May 25: In the U.S. Court of Appeals, Third Circuit, Case Nos. 10-4699 & 11-1099. Appealed from the United States District Court for the Eastern District of Pennsylvania. As explained by the Appeals Court, this matter comes on before this Court on appeal from the District Court's December 20, 2010, order granting Chevron Corporation (Chevron), and two of its attorneys discovery from attorney Joseph C. Kohn and his law firm, Kohn, Swift & Graf, P.C. (KSG), pursuant to discovery applications that the Chevron applicants filed under 28 U.S.C. § 1782. Section 1782 provides that -- [t]he district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal,‖ subject to the express limitation that -- [a] person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.‖ 28 U.S.C. § 1782(a).
The Ecuadorian plaintiffs contend that the district Court misstated the law regarding waiver of the attorney-client privilege, causing it to omit fairness considerations in its analysis, and that consequently its ruling that the attorney-client privilege was waived for all documents in Kohn's file related to the Lago Agrio litigation primarily on the basis of the filming of the documentary Crude, which chronicled the Lago Agrio litigation, was too broad.
The Appeals Court rules, "Inasmuch as we hold that the communications filmed for Crude and its outtakes were not covered by the attorney-client privilege when made due to the presence of the filmmakers at the time of the communications, we will reverse the District Court's orders because the public disclosure of non-privileged communications does not lead to a subject matter waiver of the attorney-client privilege for communications covered by the privilege. We, nevertheless, will remand the matter to the District Court so that it may consider the Chevron applicants' contention that certain communications in Kohn's file are discoverable pursuant to the crime-fraud exception to the attorney-client privilege."
The Chevron Ecuador Lawsuit Clearinghouse blog summarizes the decision saying, "In a decision lending support to plaintiffs' lawyers in a massive pollution lawsuit against Chevron, the U.S. Court of Appeals for the Third Circuit on Wednesday reversed a lower-court ruling that the Philadelphia law firm of Kohn, Swift & Graf P.C. must disclose e-mails and other confidential communications it had in connection with the case. The appeals court sent the case back to U.S. District Judge Jan E. DuBois in Philadelphia, saying there must be evidence linking the Kohn firm to fraud before the firm must disclose communications with its experts in the case and other lawyers. It said it had seen no such evidence."
Access the complete opinion (click here). Access an article explaining further from The Chevron Ecuador Lawsuit Clearinghouse (click here). [*Toxics, *Remed]
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