Friday, September 10, 2010

Chevron Corp. v. 3TM International, Inc.

Sep 8: In the U.S. Court of Appeals, Fifth Circuit, Case No. 10-20389. The case is appealed from the Southern District of Texas (Houston Division) and involves a group of Ecuadorian citizens (the plaintiffs) who have sued Chevron Corporation in Ecuador appeal from the district court's order allowing Chevron to depose their consultant, 3TM.
    In 2003, the plaintiffs sued Chevron in Ecuador, seeking to hold Chevron liable as the successor to Texaco Petroleum Company. The plaintiffs allege that Texaco polluted the Ecuadorian Amazon Rainforest over the course of several decades while engaging in oil extraction in the region. The appeal arises out of the plaintiffs' Ecuadorian lawsuit against Chevron. Specifically, it concerns Richard Stalin Cabrera Vega (Cabrera), an individual appointed by the Ecuadorian court to serve as a neutral expert in the Ecuadorian proceedings. In 2008, Cabrera released a report recommending that Chevron be held liable for $27.3 billion in damages, but the Ecuadorian court has yet to render a judgment against Chevron.
    Despite Cabrera's professed impartiality, Chevron claims that Cabrera actually worked closely with the plaintiffs to produce his report, much of which Chevron alleges was secretly ghostwritten by the plaintiffs' U.S. consultants. Chevron filed a § 1782(a) application seeking discovery from 3TM, an environmental consultancy firm in Houston. The plaintiffs' consultant Stratus retained 3TM to assist the plaintiffs in mediation and settlement discussions with Chevron in 2007, and Chevron alleges that 3TM and Stratus produced a report that Cabrera integrated into his report, without disclosing his reliance on it. After the plaintiffs intervened to quash Chevron's subpoena of 3TM, the district court ordered 3TM to submit to limited discovery.
    The court concluded that discovery was appropriate based on the Intel factors that the Supreme Court has directed courts to consider in reviewing requests for discovery in aid of foreign proceedings. See Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004). The court also found that although some of the documents and information sought by Chevron could be protected under various privileges, this protection would have been waived by the provision of any documents to Cabrera.
    The Appeals Court affirmed the district court's order requiring 3TM to submit to a foundational deposition, and remanded the case for further proceedings consistent with the opinion and said, ". . .the district court did not err in ordering a foundational deposition, despite the lack of definite evidence of a waiver. Although we approve of the course chosen by the district court, we believe the terms that the court set for the deposition should be further refined. As already explained, the court ordered that 3TM's deposition be limited to 'whether 3TM collaborated with Cabrera' and 'the extent to which 3TM recognizes its work in the Cabrera report.' However, the district court did not clearly specify the level of similarity between the Cabrera report and 3TM work product necessary to show that a waiver of immunity from discovery occurred. Depending on 3TM's interpretation of the district court's order, it could conceivably 'recognize' material in the Cabrera report as its own that actually has another provenance. As such, for remand, we stress that similarities between the Cabrera report and 3TM work product are only relevant to the extent that they collectively show that Cabrera more likely than not incorporated 3TM work product into his report. We also note that if disputes between the parties persist after the foundational deposition, the district court may review the Cabrera report and any relevant 3TM work product in camera to help it determine whether a waiver occurred."
    Access the complete opinion (click here).

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