In Re: Application to Issue a Subpoena for the Taking of a Deposition and the Production of Documents for Use in a Foreign Proceeding ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
In re Application of
RICARDO REIS VEIGA, and
RODRIGO PÉREZ PALLARES, Misc. Action No. 10-370 (CKK) (DAR)
Applicants,
To Issue a Subpoena for the Taking of a
Deposition and the Production of Documents
for Use in a Foreign Proceeding.
In re Application of
CHEVRON CORPORATION,
Misc. Action No. 10-371 (CKK) (DAR)
Applicant,
To Issue a Subpoena for the Taking of a
Deposition and the Production of
Documents.
MEMORANDUM OPINION
(November 3, 2010)
Presently before the Court is the Joint Motion by Chevron Corporation (“Chevron”) and
two of its attorneys, Rodrigo Pérez Pallares (“Pérez”) and Ricardo Reis Veiga (“Veiga”)
(collectively, “Applicants”), to Compel Discovery from Respondent Alberto Wray
(“Respondent”). See Applicants’ Joint Mot. to Compel Disc. from Alberto Wray and Mot. for
Expedited Consideration (“Mot. to Compel.”), Docket No. [66].1 For the reasons set forth below,
1
Unless otherwise indicated, references to entries on the public docket are to In re
Application of Veiga, No. 10 Misc. 370 (D.D.C.) (CKK) (DAR). For purposes of economy, the
Court will omit parallel citations for duplicative documents filed in In re Application of Chevron
Corp., No. 10 Misc. 371 (D.D.C.) (CKK) (DAR).
the Court shall GRANT Applicant’s Motion to Compel, subject to certain conditions and
limitations.
I. BACKGROUND2
Pursuant to 28 U.S.C. § 1782(a), this Court previously granted two applications – one by
Pérez and Veiga and a second by Chevron – for the issuance of subpoenas requiring Respondent
to produce documents and appear at a deposition in Washington, D.C. on or before November 3,
2010. See Order (Oct. 20, 2010) (Pérez-Veiga Application), Docket No. [60]; Order (Oct. 20,
2010) (Chevron Application), No. 10 Misc. 371, Docket No. [69]. In the course of litigating the
merits of those applications, the Republic of Ecuador (the “Republic”) and the plaintiffs in an
ongoing litigation against Chevron in Lago Agrio, Ecuador (the “Lago Agrio Plaintiffs”)
intervened as interested parties (collectively, the “Interested Parties”).
Applicants claim to have served subpoenas consistent with this Court’s prior orders upon
Respondent on Thursday, October 21, 2010 and Friday, October 22, 2010 – i.e., the two days
following the Court’s rulings – requesting the production of responsive documents on or before
Tuesday, October 26, 2010, and noticing Respondent’s deposition to begin on November 2,
2010. See Mot. to Compel at 1. Respondent does not dispute that he has been properly served.
Rather, Respondent’s counsel claims to have commenced reviewing potentially responsive
documents and preparing a privilege log after returning from out of town on the afternoon of
Monday, October 25, 2010. See Resp’t Alberto Wray’s Opp’n to the Applicants’ Joint Mot. to
2
The court assumes familiarity with its prior opinion in this action, which sets forth in
detail the factual and procedural background of this case, see In re Application of Veiga, __ F.
Supp. 2d __, 2010 WL 4225564 (D.D.C. Oct. 20, 2010), and shall therefore only address the
factual and procedural background necessary to address the discrete issues currently before the
Court.
2
Compel (“Resp’t Opp’n”), Docket No. [69], at 2. Meanwhile, Respondent avers – and
Applicants do not dispute – that the parties were simultaneously engaging in an ongoing dialogue
with respect to both the anticipated timing of Respondent’s production and his assertion of
certain privileges as a basis for withholding documents. See Resp’t Opp’n at 2.
On Wednesday, October 27, 2010, Respondent produced a relatively small number of
documents along with the first iteration of a privilege log identifying 372 documents withheld on
the basis of both foreign and United States privileges. See Mot. to Compel at 1-2; Sixth Suppl.
Fisher Decl., Ex. 110 (Oct. 27, 2010 Privilege Log), Docket No. [66-4]. During a meet-and-
confer session held on October 28, 2010, Applicants apparently expressed their dissatisfaction
with the first iteration of Respondent’s privilege log and Respondent’s broad claims of privilege.
See Resp’t Opp’n at 2. The following day, Friday, October 29, 2010, Applicants filed the present
Motion to Compel.
Notably, Respondent’s deposition was scheduled to commence the following Tuesday, on
November 2, 2010. Moreover, Pérez and Veiga were scheduled to appear in Quito, Ecuador for a
preliminary hearing in the criminal proceedings brought against them little more than a week
thereafter, on November 10, 2010, at which they may seek to introduce or discuss the purportedly
exculpatory evidence sought through this action. See Not. that Prelim. Hr’g Against Applicants
Is Set for November 10, 2010 in Quito, Ecuador, Docket No. [59].3 In light of these
circumstances, the same day it received Applicants’ Motion to Compel, the Court issued a
Minute Order establishing an expedited briefing schedule. See Min. Order (Oct. 29, 2010). In so
3
Chevron also claims to need the requested discovery to prepare for a November 6, 2010
briefing deadline in the related BIT Arbitration, see Mot. to Compel. at 2, commenced in 2009
under the Bilateral Investment Treaty between the United States and Ecuador.
3
doing, the Court also set forth certain parameters for the parties’ briefing, only some of which
merit mentioning here. First, Respondent was expressly directed to “correlate any claimed
privilege(s) with specific documents . . . and articulate with particularity the basis for invoking
the claimed privilege.” Id. Second, the parties were directed to “raise any and all arguments they
want[ed] the Court to consider in their [responsive] papers,” and were warned that the Court
would “not hunt down arguments or authorities referenced in other papers.” Id.Shortly after the issuance of the Court’s Minute Order, Respondent produced a revised
privilege log, the contents of which the Court has not seen. See Resp’t Opp’n at 3 and Ex. 2
(Oct. 29, 2010 E-mail from W. Coffield to L. Fisher et al.), Docket No. [69-2]. Two days later,
on Sunday, October 31, 2010, Respondent produced a third and final iteration of his privilege log
(the “Privilege Log”), identifying a total of 447 documents withheld on the basis of both foreign
and United States privileges, accompanied by an unsworn letter from Respondent’s counsel
briefly identifying the individuals whose names appear on the privilege log (the “Cover Letter”),
and asking that the Cover letter be incorporated into the Privilege Log. See Resp’t Opp’n Ex. 3
(Oct. 31, 2010 Ltr. from W. Coffield to T. Cubbage, III et al. and Oct. 31, 2010 Privilege Log),
Docket No. [69-3].4
Consistent with the Court’s briefing schedule, Respondent filed his opposition to
Applicants’ Motion to Compel the morning of November 1, 2010. See Resp’t Opp’n. The Lago
Agrio Plaintiffs and the Republic, for their part, filed separate oppositions that same morning.
See Interested Parties Ecuadorian Plaintiffs’ Opp’n to Applicants’ Joint Mot. to Compel (“Lago
4
Respondent’s final Privilege Log departs in several material respects from the previous
iteration reviewed by the Court, both in terms of the content of the descriptions of
communications and the privileges claimed.
4
Agrio Pls.’ Opp’n”), Docket No. [67]; Republic of Ecuador’s Opp’n to Applicants’ Joint Mot. to
Compel Disc. from Alberto Wray (“Republic’s Opp’n”), Docket No. [68]. Later that afternoon,
Applicants filed a timely reply. See Applicants’ Reply in Supp. of Their Joint Mot. to Compel
Disc. from Alberto Wray (“Applicants’ Reply”), Docket No. [70]. Upon reviewing the parties’
papers, Respondent’s counsel was contacted by telephone and asked to forward to the Court four
documents – namely, Documents 397-400 on Respondent’s Privilege Log. See Min. Entry (Nov.
1, 2010). Those documents were provided to the Court for ex parte, in camera review. Id.The Court has considered the parties’ respective papers, including the attachments and
exhibits thereto, and expresses its gratitude to the parties for their prompt filings. The motion is
now fully briefed and ripe for adjudication, and the Court now turns to the merits of the present
motion, which it has considered on an expedited basis and on the record created by the parties.
II. LEGAL STANDARD
Even if discovery is permissible under 28 U.S.C. § 1782(a),5 an applicant may not seek
information that is immune from discovery. Indeed, the statute expressly cautions 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).
5
In granting the applications at issue, the Court necessarily concluded that the discovery
sought was permissible. See In re Application of Veiga, __ F. Supp. 2d __, 2010 WL 4225564(D.D.C. Oct. 20, 2010). Quite rightly, the parties have not revisited this issue on the present
motion, which is limited to the propriety of certain assertions of privilege. The Court only
pauses to observe that it is not immediately apparent from the Privilege Log, or from the four
documents submitted for in camera review, why certain documents would be responsive to the
eight topics for which discovery was allowed. The Court, however, expresses no view on the
responsiveness of certain documents or categories of documents, an issue that has not been raised
by the parties on this motion; that issue is one more properly resolved among the parties
themselves.
5
As a threshold matter, the Court must address the applicable legal framework. Because
the jurisdictional basis for this action rests on a federal statute, federal common law governs any
assertions of privilege. See In re Federacion Internationale de Basketball, 117 F. Supp. 2d 403,
407 (S.D.N.Y. 2000); accord In re Application of Christensen, 2006 WL 278169, at *1 (S.D.N.Y
Feb. 3, 2006). Nevertheless, separate and apart from whatever privileges may be available under
the federal common law, courts have concluded – and this Court agrees – that the protections
afforded by § 1782(a) also extend to privileges recognized by foreign law, albeit only in certain
narrow and circumscribed circumstances, as described more fully below. Ecuadorian Plaintiffs
v. Chevron Corp., 619 F.3d 373, 378 (5th Cir. 2010). In this case, three separate privileges have
been claimed with respect to the withheld documents: (a) a foreign privilege premised upon
Article 335 of the Ecuadorian Code of Judicial Function; (b) the federal attorney-client privilege;
and (c) the federal attorney work product privilege.6 Although the Court shall address each of
these in greater specificity elsewhere, the Court sets out the general principles governing the
assertion of these privileges in the context of the present action.
A. Assertions of Foreign Privileges within a Section 1782(a) Proceeding
Although the protections afforded by § 1782(a) may extend to privileges recognized by
foreign law, consonant with courts’ reticence to delve into complex questions of foreign law,
parties are generally required to provide clear and authoritative proof that a foreign tribunal
would reject evidence pursuant to a foreign privilege before the court will invoke the privilege to
6
The Republic asserts privilege only over Documents 329, 330, 364-367, and 397-400,
and invokes some combination of all three privileges with respect to each of those
communications. See Republic’s Opp’n at 2 n.2. The Lago Agrio Plaintiffs assert privilege over
all documents except 364-367 and 397-400, and invoke Article 335 and the work product
privilege in support.
6
bar discovery. Ecuadorian Plaintiffs, 619 F.3d at 378; accord In re Request for Judicial
Assistance from the City Court of Jönköping, Sweden, 1997 WL 1052017, at *3 (D. Conn. Oct.
10, 1997). This well-reasoned standard is designed “to avoid speculative forays into legal
territories unfamiliar to federal judges.” Ecuadorian Plaintiffs, 619 F.3d at 378; see also
Chevron Corp. v. Stratus Consulting, Inc., 2010 WL 3923092, at *5 (D. Colo. Oct. 1, 2010)
(“This Court is in no position to presume applying the law of a foreign jurisdiction . . . and
principles of comity between sovereign entities require such philosophy.”); cf. In re Exxon
Valdez, 142 F.R.D. 380, 384-85 (D.D.C. 1992) (enforcing subpoena but deferring to tribunal in
parallel state and federal actions to determine propriety of assertions of privilege). Although
perhaps cautious, this approach recognizes the limited scope of § 1782(a) proceedings, and
furthers the statute’s twin aims of providing fair and efficient assistance to participants in
international litigation and encouraging other countries to provide similar assistance. See In re
Application of Euromepa S.A., 51 F.3d 1095, 1097 (2d Cir. 1995).
B. Assertions of Privileges under United States Law
Under the federal common law, the proponent bears the burden of demonstrating the
applicability of any asserted privilege. Fed. Trade Comm’n v. TRW, Inc., 628 F.2d 207, 213
(D.C. Cir. 1980). The nature of that burden is clear: the proponent must establish the claimed
privilege with “reasonably certainty.” In re Subpoena Duces Tecum Issued to Commodity
Futures Trading Comm’n, 439 F.3d 740, 750-51 (D.C. Cir. 2006); accord Amobi v. D.C. Dep’t
of Corrections, 262 F.R.D. 45, 51 (D.D.C. 2005). That showing must extend to “each of the
essential elements necessary to support a claim of privilege.” Alexander v. Fed. Bureau of
Investigation, 192 F.R.D. 42, 45 (D.D.C. 2000). Nor may the proponent assert blanket or
7
categorical claims of privilege; rather, the law “requires a showing that the privilege applies to
each communication for which it is asserted.” United States v. Legal Servs. for N.Y.C., 249 F.3d
1077, 1082 (D.C. Cir. 2001).
In discharging its burden, the proponent must adduce competent evidence in support of
its claims. Alexander, 192 F.R.D. at 45; see also In re Application of Chevron Corp., 2010 WL
2038826, at *4 (S.D. Tex. May 20, 2010), aff’d, 619 F.3d 373, 378 (5th Cir. 2010). Consistent
with these strictures, the proponent of the privilege must offer more than just conclusory
statements, generalized assertions, and unsworn averments of its counsel. See Alexander, 192
F.R.D. at 45; Stratus Consulting, 2010 WL 3923092, at *8. Where the proponent fails to adduce
sufficient facts to permit the court to conclude with reasonable certainty that the privilege
applies, its burden is not met. TRW, Inc., 628 F.2d at 213. With these principles in mind, the
Court address the contours of the two federal common law privileges asserted here.
1. The Attorney-Client Privilege
In order to demonstrate the applicability of the attorney-client privilege, the proponent
must establish each of the following essential elements:
(1) The holder of the privilege is, or sought to be, a client;
(2) The person to whom the communication is made is a member of the bar or
his subordinate and, in connection with the communication at issue, is
acting in his or her capacity as a lawyer;
(3) The communication relates to a fact of which the attorney was informed by
his client, outside the presence of strangers, for the purpose of securing
legal advice; and
(4) The privilege has been claimed by the client.
Elkins v. District of Columbia, 250 F.R.D. 20, 24 (D.D.C. 2008) (citing In re Sealed Case, 737
8
F.2d 94, 98-99 (D.C. Cir. 1984)). Likewise, that the communications contain confidential
information and have been maintained in confidence are prerequisites to the recognition of the
privilege. Fed. Trade Comm’n v. GlaxoSmithKline, 294 F.3d 141, 146 (D.C. Cir. 2002).
Because it inhibits the truth-finding process, the attorney-client privilege has generally
been narrowly construed. Permian Corp. v. United States, 665 F.2d 1214, 1221 (D.C. Cir.
1981). It has been said that, “[a]lthough the attorney-client privilege is of ancient lineage and
continuing importance, the confidentiality of communications covered by the privilege must be
jealously guarded by the holder of the privilege lest it be waived.” In re Sealed Case, 877 F.2d
976, 980 (D.C. Cir. 1989). Consistent with this logic, it is axiomatic that the voluntary
disclosure of an otherwise privileged communication generally vitiates the privilege. Elkins, 250
F.R.D. at 24. Courts “will grant no greater protection to those who assert the privilege than their
own precautions warrant,” Sealed Case, 877 F.2d at 980, and the proponent cannot be heard to
“invoke the privilege as to communications whose confidentiality he has already compromised
for his own benefit,” Permian Corp., 665 F.2d at 1221.
2. The Work Product Privilege
The attorney work product privilege, as codified in the Federal Rules of Civil Procedure,
protects documents and materials “that are prepared in anticipation of litigation or for trial by or
for [a] party or its representative” – a class that includes a party’s attorney, consultant, or agent.
Fed. R. Civ. P. 26(b)(3)(A). In assessing whether the proponent has carried its burden, the
relevant inquiry is as follows: “whether, in light of the nature of the document and the factual
situation in the particular case, the document can fairly be said to have been prepared or obtained
because of the prospect of litigation.” Equal Emp’t Opportunity Comm’n v. Lutheran Social
9
Servs., 186 F.3d 959, 968 (D.C. Cir. 1999) (internal quotation marks omitted). The inquiry
contains two related, but nevertheless distinct concepts – one a question of timing and the other a
question of intent. U.S. v. ex rel. Fago v. M & T Mortg. Corp., 242 F.R.D. 16, 18 (D.D.C. 2007).
The former, the temporal element, is not at issue here because the relevant foreign proceedings
had either already commenced or were within reasonable anticipation at the time the disputed
documents were created. The latter, the motivational element, demands that the document at
issue be prepared or obtained because of the prospect of litigation. Id. In this respect, the
proponent bears the burden of “showing that the documents were prepared for the purpose of
assisting an attorney in preparing for litigation, and not some other reason.” Alexander, 192
F.R.D. at 46.
The work product privilege is qualified, not absolute. Elkins, 250 F.R.D. at 26. As with
the attorney-client privilege, voluntary disclosure may waive its protections. However, due to
their distinct functions, courts employ a slightly different inquiry when asking whether the work
product privilege has been forfeited by virtue of voluntary disclosure. United States v. Deloitte
LLP, 610 F.3d 129, 140 (D.C. Cir. 2010). In this context, voluntary disclosure to a third party
constitutes a waiver where the disclosure is made under circumstances inconsistent with the
maintenance of secrecy from one’s adversary. Id. Pursuant to this so-called “maintenance of
secrecy” standard, courts inquire whether the proponent “had a reasonable basis for believing that
the recipient would keep the disclosed material confidential.” Id. at 141.
Even where the proponent has established the applicability of the work product privilege,
and that privilege has not otherwise been waived, that is not the end of the inquiry. Of the two
types of work product – “fact” work product and “opinion” work product – the requesting party
10
may discover the former upon “show[ing] that it has substantial need for the materials to prepare
its case and cannot, without undue hardship, obtain their substantial equivalent by other means.”
Fed. R. Civ. P. 26(b)(3)(A)(ii). Opinion work product, however, is “virtually undiscoverable.”
Director, Office of Thrift Supervision v. Vinson & Elkins, LLP, 124 F.3d 1304, 1307 (D.C. Cir.
1997). To support the discovery of opinion work product, “a party must show ‘extraordinary
justification.’” In re HealthSouth Corp. Secs. Litig., 250 F.R.D. 8, 10 (D.D.C. 2008) (quoting In
re Sealed Case, 676 F.2d 793, 810 (D.C. Cir. 1982)). Absent such a showing, the court “must
protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a
party’s attorney or other representative concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(B).
III. DISCUSSION
In the course of briefing the present motion, the parties addressed several general
categories of information identified on Respondent’s Privilege Log. With limited departures, the
Court shall preserve those categories in addressing the merits of the present motion. However,
before proceeding, two qualifications are in order. First, where possible, the Court has attempted
to specifically identify documents by the number listed on Respondent’s Privilege Log. For
various reasons (e.g., omissions in the Privilege Log, supplemental productions, etc.), documents
not specifically identified may very well fall within the categories described; in that event, such
documents should be treated consistently with the Court’s analysis here. Second, the Court is
aware that the categories employed are, to a large extent, overlapping, and particular documents
may fall within the metes and bounds of multiple categories. Nevertheless, so long as there is
one basis for production for a given document, that document must be produced.
11
A. Article 335 Documents
Respondent claims that Article 335 of the Ecuadorian Code of Judicial Function –
specifically, subsection (1) – shields all 447 documents from production. In full, that provision
provides as follows:
Art. 335. – Prohibitions to attorneys in representing cases. –
Attorneys are forbidden when representing [clients’] cases:
1. To reveal the secrets of their clients, their documents
or instructions;
2. To abandon, without just cause, the actions they
represent;
3. To assure their clients they will prevail in the trial;
4. To defend one party after having defended the other
[party] in related cases;
5. To authorize with their signature pleadings or drafts
made by another person;
6. To be counsel in those cases over which [they] have
presided as judge or substitute judge. To this end, the
trial and pretrial proceedings are deemed as a unit;
7. To intervene in cases when this causes the recusal of
the judge or substitute judge;
8. To meet with the Judge to discuss matters related to
the case being defended without previously and timely
notifying the other party or its attorney so that he/she
can be present if he/she so desires;
9. To abusively, maliciously or recklessly exercise the
right to bring an action or argue in trial, to violate the
principle of good faith and loyalty through practices
such as the filing of altered evidence, use of trickery
and use bad faith stall tactics to unduly delay the
progress of the trial; and
12
10. The other prohibitions set forth in this Code.
Seventh Suppl. Fisher Decl., Ex. 111 (Article 335, Certified English Translation), No. 10 Misc.
371, Docket No. [76-2].7 Respondent and the Interested Parties construe Article 335(1) as an
absolute prohibition on the production of documents, irrespective of their source, so long as the
attorney received those documents in connection with or as a result of his or her representation.
See Resp’t Opp’n at 4.
On its face, Article 335(1) does not support such a breathtakingly broad construction.
Indeed, the provision appears to be the Ecuadorian counterpart to Rule 1.6 of the D.C. Rules of
Professional Conduct. That rule, which governs the confidentiality of information obtained in
the course of an attorney-client relationship, prohibits attorneys from, inter alia, knowingly
“reveal[ing] a confidence or secret of the lawyer’s client.” D.C. Rules of Prof’l Conduct, Rule
1.6(a). It is, in other words, an ethical obligation, and the D.C. Circuit Court of Appeals has
expressed its doubts that an “exclusionary remedy” would apply to evidence obtained in violation
of its terms. See In re Grand Jury, 475 F.3d 1299, 1306 (D.C. Cir. 2007). The Court sees no
reason to afford Article 335(1) a different construction, a conclusion bolstered by the fact that
Article 335(1)’s succeeding subsections all appear to relate to the ethical obligations attaching to
the attorney function and not to evidentiary rules and standards.
7
In opposition to the present motion, Respondent relies upon an unsworn, uncertified,
and incomplete translation of Article 335. According to Respondent’s translation, Article 335(1)
prohibits attorneys from “[r]eveal[ing] the secrets, documents or instructions from their clients.”
Resp. Opp’n, Ex. 4 (Oct. 26, 2010 E-mail from W. Coffield to L. Fisher), Docket No. [69-4], at
2. For purposes of its analysis here, the Court relies upon Applicants’ certified and more fulsome
translation. The Court notes that the difference in the two translations, although perhaps not
immediately apparent, may very well affect the proper construction. However, even crediting
Respondent’s translation, it falls far short of the clear and authoritative proof required to invoke a
foreign privilege in the context of a § 1782(a) proceeding.
13
Given that the plain language of Article 335(1) does not unequivocally support their
proffered interpretation, it is unsurprising that Respondent and the Interested Parties all rely upon
the declaration of an Ecuadorian attorney and jurist – Hernán Salgado Pesantes (“Salgado”). See
Resp’t Opp’n at 3-5; Republic’s Opp’n at 3; Lago Agrio Pls.’ Opp’n at 5.8 However, Salgado’s
declaration is not even competent evidence, let alone clear and authoritative proof, that Article
335(1) should apply to bar the discovery sought here. Although a party may rely upon an
unsworn declaration in support of a given matter, such a declaration must meet certain statutory
requirements. Specifically, where the declarant is located outside the United States, his or her
declaration must include a statement in substantially the same form as follows:
I declare (or certify, verify, or state) under penalty of perjury under
the laws of the United States of America that the foregoing is true and
correct.
28 U.S.C. § 1746; see also Int’l Ins. Co. v. Caja Nacional de Ahorro y Seguro, 293 F.3d 392, 398
(7th Cir. 2002); Sterling Fifth Assocs. v. Carpentile Corp., Inc., 2003 WL 22227960, at *5
(S.D.N.Y. Sept. 26, 2003). Meanwhile, Salgado’s declaration, purportedly executed in Ecuador,
includes only the following statement:
I solemnly declare, on my honor and conscience, that what I have
stated above is the truth to the best of my knowledge.
Resp’t Opp’n, Ex. 5 (Salgado Decl.), Docket No. [69-5], ¶ 9.
8
The Republic also submits a declaration prepared in the course of parallel proceedings
in the Southern District of New York. That declaration addresses the underlying merits of the
claims made against the Republic, and not the applicability of any foreign privilege. See Foreign
Law Decl. of Genaro Eguiguren and Ernesto Alban, Docket No. [68-4], ¶¶ 10-17. As expressed
in this Court’s prior opinion, the merits of the claims and defenses raised in foreign proceedings
are matters better left for the foreign tribunals to resolve – the only issue before this Court is the
propriety of discovery sought within its jurisdiction.
14
Simply put, Salgado’s unsworn (and unsigned) declaration, provided upon his “honor and
conscience,” is not substantially the same as the statutorily required language. See Gotlin v.
Lederman, 616 F. Supp. 2d 376, 389 n.7 (E.D.N.Y. 2009) (declaration that contains “no
statement that [the declarant] is subject to perjury for any falsities, no reference to United States
law, and no language that conveys that the statement is ‘true and correct’” falls short of the
statutorily prescribed form). For this reason, Respondent and the Interested Parties cannot rely
on the Salgado declaration in support of their claims of privilege, and are therefore left only with
the language of Article 335(1) itself, which the Court has already concluded does not
unequivocally support the expansive construction suggested.
Even assuming, arguendo, the Court could consider Salgado’s declaration, the result
would be the same for a separate, independent reason – the declaration falls woefully short of the
clear and authoritative proof required to justify the assertion of a foreign privilege in the context
of a § 1782(a) proceeding. First, Salgado concedes that Article 335(1) is part of a broader set of
rules “establish[ing] the attorney’s duties and rights,” Salgado Decl. ¶ 8.1, a statement that
appears to be more in line with the conclusion that the Article speaks to an attorney’s ethical
obligations and not exclusionary rules of evidence. Second, the declaration itself is internally
inconsistent: a mere six paragraphs after declaring that Article 335(1) creates an absolute
prohibition on the disclosure of any information obtained in the course of a representation,
Salgado cites favorably to authority suggesting that attorneys cannot make “arbitrary use” of, or
“disclose without cause,” such information. Id. ¶ 8.8. If the privilege is in fact absolute, Salgado
offers no explanation as to why the reasons for use or disclosure would even be relevant. Cf. In
re Application of Metallgesellschaft AG, 121 F.3d 77, 79 (2d Cir. 1997) (declining to speculate,
15
based on ambiguous affidavit by respondent’s counsel, whether a foreign privilege applied).
Finally, and most importantly, Salgado cites to no instance – not one – in which a court or other
competent tribunal has endorsed the claimed construction.9 As such, the Court is left only with
his ipse dixit, which of course does not qualify as authoritative proof on its own. See Ecuadorian
Plaintiffs, 619 F.3d at 378 (“affidavit from an Ecuadorian attorney suggesting that the discovery
sought . . . would not be available in Ecuador” held not to suffice as authoritative proof).10
It may very well be that the Ecuadorian courts would afford Article 335 the broad
construction pressed by Respondent and the Interested Parties, but there is no indication in the
record created by the parties – let alone authoritative proof – that they would do so. Having
failed to carry their burden of proof, Respondent and the Interested Parties cannot lay claim to
Article 335(1) as a basis for withholding any of the 447 documents identified on the Privilege
Log. Accordingly, those documents for which Article 335 and no other privilege is claimed as a
basis for non-disclosure must be produced.11 However, any material produced pursuant to the
Court’s ruling shall be used by the Applicants solely for purposes of prosecuting the Lago Agrio
9
Indeed, the only decision referenced by Salgado is his own, apparently made in the
course of his responsibilities as a judge on the Inter-American Court for Human Rights, but that
decision relates not to Article 335, but to an entirely separate provision under the American
Convention on Human Rights. Salgado Decl. ¶ 8.10. Moreover, so far as the Court can tell, that
decision had more to do with a party’s right against self-incrimination than an absolute privilege
against disclosure of all information obtained by counsel in the course of a given representation.
See id.10
Because it concludes that Respondent and the Interested Parties have failed to adduce
authoritative proof in support of the claimed privilege, the Court need not resolve whether the
countervailing foreign law affidavit submitted by Applicants satisfies the requirements of 28
U.S.C. § 1746. See Seventh Suppl. Fisher Decl., Ex 112, No. 10 Misc. 371, Docket No. [76-3], ¶
16.
11
Documents 29, 120, 292, and 316-319.
16
Litigation, the BIT Arbitration, and the Criminal Proceedings. The parties shall be required to
file with the Court a proposed protective order to this effect, and incorporating any other
protections the parties deem desirable.
B. Documents Involving Respondent
The next category of documents – those where Respondent is either the author12 or a
recipient13 – unsurprisingly captures the vast majority of documents at issue. It is here where the
insufficiency of Respondent’s overall showing becomes apparent, and the Court takes this
opportunity to address these deficiencies generally before turning to the specific category at hand.
In opposition to the present motion, apart from the vague and non-specific descriptions of
documents in the Privilege Log, Respondent offers a perfunctory seven-paragraph declaration,
which consists almost exclusively of conclusory and empty invocations of privilege. See Resp’t
12
Documents 12, 20, 26, 38, 41, 43, 46, 48, 51, 53, 55, 58, 60, 62, 65, 68, 70, 72, 74, 77,
79, 81, 82, 84, 86, 88, 90, 92, 94, 96, 98, 100, 102-103, 106-107, 109, 111, 113-114, 112, 131-
133, 137-140, 147-150, 154, 157, 159-160, 176, 178-179, 181, 183-187, 190, 192, 194, 196, 198,
201-202, 204, 206, 209, 211, 213, 215, 217, 219, 221, 223, 226, 232, 236, 250, 252, 254, 256,
259, 261-263, 265, 267-269, 271, 273, 275-276, 278, 280, 282, 284-285, 287, 289, 291, 295,
298, 300, 301, 303, 311-312, 314, 316, 320, 322, 324, 326, 328, 329, 331, 332, 334, 336, 340,
341, 343, 345, 348, 350, 353, 355, 360, 362, 364, 366, 368, 371, 375, 378, 380, 382-383, 386-
387, 389-391, 393, 396-397, 399, 402, 406, 408, 409, 411, 413, 416, 420-421, 423, 426, 428,
432, 435, 437, 440, 442, 445, and 447.
13
Documents 1-11, 13-19, 21-25, 27-31, 33-34, 36-37, 40, 42, 44-45, 47, 49-50, 52, 54,
56-57, 59, 61, 63-64, 66-67, 69, 71, 73, 76, 78, 80, 83, 85, 87, 89, 91, 93, 95, 97, 99, 101, 104-
105, 108, 110, 112, 115-121, 123-130, 134-136, 141-143, 145-146, 152-153, 155-156, 158, 162-
163, 165-170, 172-175, 177, 180, 182, 188-189, 191, 193, 195, 197, 199-200, 203, 205, 207-208,
210, 212, 214, 216, 218, 220, 225, 227, 229, 230-231, 233-235, 238, 240-249, 251, 253, 255,
257-258, 260, 264, 266, 270, 272, 274, 277, 279, 281, 283, 286, 288, 290, 292-294, 296-297,
299, 302, 304-310, 313, 315, 317, 321, 323, 325, 327, 330, 333, 335, 337-339, 342, 344, 346-
347, 349, 351-352, 354, 356-359, 361, 363, 365, 367, 369-370, 372-374, 376-377, 379, 381, 384-
385, 388, 392, 394-395, 398, 400-401, 403-405, 407, 410, 412, 414-415, 417-419, 422, 424-425,
427, 429-431, 434, 436, 438-439, 441, 443-444, and 446.
17
Opp’n, Ex. 6 (Wray Decl.), Docket No. [69-6]. Specifically, for nearly all the documents at
issue, Respondent avers as follows:
Documents numbered 1-28, 30-119, 121-291, 293-315, 320-447 on
the revised privilege log are documents that were prepared during
litigation and include deliberative materials such as mental
impressions, conclusions, opinions, and legal theories and factual
materials prepared in anticipation of litigation. The documents are
communications prepared by and for counsel, legal staff, retained
consultants, and retained experts.
Id. ¶ 6. Respondent also states that, “[t]o [his] knowlege, the documents . . . have been
maintained consistent with secrecy against the Applicants in this matter.” Id. ¶ 7. For a handful
of other documents, Respondent declares:
Documents numbered 364-367 on the revised privilege log are
documents containing communications between counsel and client,
with counsel acting in his capacity as a lawyer, relating to facts
obtained from the client, without the presence of strangers, for the
purpose of securing either (i) an opinion on law or (ii) legal services
or (iii) assistance in a legal proceeding, and not for the purpose of
committing a crime or a tort.
Id. ¶ 5. Coupled with this, Respondent relies upon the two-page Cover Letter prepared by his
counsel identifying certain individuals listed on the Privilege Log in the most bare and
unilluminating fashion. See Resp’t Opp’n, Ex. 3 (Cover Letter), Docket No. [69-3], at 1-3.
As described above, Respondent must adduce competent evidence establishing each of
the essential elements necessary to support a claim of privilege for each communication, and he
must do so to a reasonable certainty. The defects in Respondent’s approach are myriad, and the
Court addresses only the most glaring here.
First, in assessing the broad claims to privilege at issue here, resort to Respondent’s
Privilege Log is of little assistance, as “the descriptions of the documents are so brief and of such
18
a general nature that they fail to give the court any basis for determining whether the privilege
was properly invoked.” Alexander, 192 F.R.D. at 45; see also Zelaya v. UNICCO Serv. Co., 682
F. Supp. 2d 28, 38 (D.D.C. 2010) (proponents’ failure to provide sufficient information to sustain
their burden of proof compelled disclosure of documents listed on privilege log). Nor do the
hopelessly vague descriptions of individuals in the Cover Letter – e.g., “retained consultant” or
“unknown” – aid the Court’s determination.15 Meanwhile, at least some individuals identified on
the Privilege Log – e.g., “Meyepez” – are not identified in the Cover Letter at all. Overall, the
Court is left to guess as to the role and relationship of various individuals, including several non-
lawyer, third parties.
Second, Respondent fails to correlate his declaration’s wholly conclusory assertions of
privilege – which are nothing more than empty recitations of the applicable legal standard devoid
of factual context – with any specific communication or communications. His failure to do so is
particularly egregious in light of this Court’s express directive that he “correlate any claimed
privilege(s) with specific documents . . . and articulate with particularity the basis for invoking
the claimed privilege.” Min. Order (Oct. 29, 2010). Far from being particularized, Respondent’s
showing is so conclusory that it stymies this Court’s ability to assess the basis for any claimed
privilege.
15
To be clear, the Court is not holding that any privilege has been waived solely due to
the formal deficiencies of Respondent’s Privilege Log. Rather, the Court concludes only that
Respondent and the Interested Parties have utterly failed to adduce sufficient evidence to
establish, with reasonable certainty, that the privileges against disclosure have been appropriately
invoked. That said, the Court observes that the Privilege Log is the third iteration prepared by
Respondent in the course of this action. Plaintiff has never sought leave nor an extension of time
to amend or further supplement his Privilege Log, despite being on notice that there were
questions as to its sufficiency. See Min. Order (Oct. 29, 2010).
19
Third, and most important for the Court’s immediate purposes here, Respondent – who
was indisputably representing the Lago Agrio Plaintiffs in one litigation and the Republic in
multiple international arbitrations, including the BIT Arbitration – offers no details as to his role
at any given moment in time, nor even attempts to identify which litigation or litigations the
communications supposedly concern.
These defects are not merely procedural. As a consequence, with respect to the work
product privilege, Respondent fails to carry his burden of demonstrating that, “in light of the
nature of the document and the factual situation in the particular case, the document can fairly be
said to have been prepared or obtained because of the prospect of litigation.” Lutheran Social
Servs., 186 F.3d at 968. Likewise, the Court cannot say, with reasonable certainty, that the
communications withheld on the basis of the attorney-client privilege were made outside the
presence of strangers, in counsel’s capacity as an attorney, or for the purposes of securing legal
advice. See Elkins, 250 F.R.D. at 24; GlaxoSmithKline, 294 F.3d at 146. In short, Respondent’s
declaration, Privilege Log, and other materials “do[] not establish any facts necessary to find the
attorney-client privilege or work product doctrine protect the sought-after documents.” In re
Application of Chevron Corp., 2010 WL 3584520, at *6 (S.D. Cal. Sept. 10, 2010).16
The immediate case – documents where Respondent is either the author or a recipient –
provides a useful illustration. Respondent avers both that he (a) was “an active member of the
16
As described elsewhere, Respondent’s broad averments are of heightened concern in
light of this Court’s in camera review of four documents withheld by Respondent (Documents
397-400).
20
legal team” representing the Lago Agrio Plaintiffs in the Lago Agrio Litigation,17 and (b)
“represent[s] [the Republic] with respect to various international arbitrations,” including the BIT
Arbitration. Wray Decl. ¶¶ 2-3. The Cover Letter is only more ambiguous, identifying
Respondent simply as “Plaintiff counsel, counsel for Ecuador.” Despite this ambiguity,
Respondent makes no attempt to articulate in the Privilege Log, with reference to competent
evidence, what role he was playing with respect to any communication in which he was a
participant, or what his relationship was to other participants. The Court is not permitted to
guess; rather, Respondent bears the burden of establishing to a reasonable certainty that the
privilege has been properly invoked.
Again, these defects are not merely a matter of form. With respect to the work product
privilege, which concerns the vast majority of documents at issue, the inquiry divides in two.
Where Respondent is the author, without knowing in what capacity Respondent was operating in
the context of the given communication and in relation to what proceeding, the Court cannot
conclude that Respondent prepared that communication because of the litigation (whatever it
may be) – i.e., for assisting Respondent in preparing for litigation and not for some other reason.
Alexander, 192 F.R.D. at 46. Similarly, where Respondent is the recipient, without knowing in
what capacity Respondent was operating in the context of a given communication and in relation
17
Although Respondent intimates that he was no longer an “active member” of that team
after 2006, Wray Decl. ¶ 2, there is no indication that he ceased having purportedly privileged
communications in connection with the Lago Agrio Litigation after 2006. Indeed, if that were
the case, there would be no basis for including such communications exclusively between him
and counsel for the Lago Agrio Plaintiffs as recently as June of this year (Document 447).
Which is just to say, based on the record created by the parties, the Court cannot conclude that all
communications after 2006 were made in Respondent’s capacity as counsel to the Republic.
Nor, for that matter, has anyone so claimed or produced competent evidence in support thereof.
21
to what proceeding, the Court cannot draw any inferences as to the author’s motivations or, for
that matter, that the communication was made consistent with the maintenance of secrecy from
one’s adversary. Deloitte LLP, 610 F.3d at 140. In neither instance does the record support the
conclusion that there would be a “reasonable basis for believing the recipient would keep the
disclosed material confidential.” Id. The same holds true for the handful of documents withheld
pursuant to the attorney-client privilege: absent some context as to Respondent’s role and the
relationship among the parties, the Court cannot say whether the communication was made for
the purposes of legal advice, and in confidence and outside the presence of strangers. Elkins, 250
F.R.D. at 24. These defects are fatal, and the Court finds that Respondent and the Interested
Parties have failed to carry their burden of proving, by competent evidence and to a reasonable
certainty, each of the essential elements necessary to support their claims of privilege for each of
communications sent or received by Respondent. Accordingly, Respondent must produce all
such documents.18
C. Documents Involving Cristobal Bonifaz
The next category merits similar treatment. Cristobal Bonifaz is identified in the Cover
Letter only as “Plaintiff counsel; counsel for Ecuador.” As a result, as was true with Respondent,
when Cristobal Bonifaz is identified in the Privilege Log as the author or recipient of a
communication, the Court has no way of knowing, in the context of that communication, in what
capacity he was operating or what his relationship was with respect to other participants.
Accordingly, Respondent and the Interested Parties have similarly failed to carry their burden
18
Everything except Documents 32, 35, 39, 75, 144, 151, 161, 164, 171, 222, 224, 228,
237, 239, and 318-319.
22
with respect to this category, and therefore Respondent must produce all documents involving
Cristobal Bonifaz.19
D. Documents Involving “Bonifaz”
The Cover Letter identifies two individuals by the name of Bonifaz: Cristobal Bonifaz,
described as “Plaintiff counsel; counsel for Ecuador;” and John Bonifaz, described only as
“Plaintiff counsel.” And yet, Respondent’s Privilege Log repeatedly references only “Bonifaz,”
without first-name identification. The Court is inclined to assume that all references to
“Bonifaz” are to Cristobal Bonifaz, given that John Bonifaz is identified as participating in
communications with the unadorned “Bonifaz” (Documents 303-310). The Court need not,
however, make such an inference; at best, Respondent’s showing is equivocal as to whether
“Bonifaz” is counsel for the Lago Agrio Plaintiffs or the Republic, and with respect to what
litigations, and therefore the Court cannot find with reasonable certainty, in the context of a given
communication, in what capacity he was operating or what his relationship was with respect to
other participants. As such, all documents involving “Bonifaz” must be produced as well.20
E. Documents Disclosed to Third-Party Attorney, Activist, and Reporter
The next category involves communications with three third parties: (a) Daria Fischer,
identified by Respondent as a “3rd party attorney;” (b) Esperanza Martinez, identified as a “3rd
party activist;” and (c) Letta Tayler, “a 3rd party reporter.” To the extent these communications
have been withheld on the basis of the attorney-client privilege, Respondent and the Interested
19
Documents 135-137, and 140.
20
Documents 7, 30-37, 78, 107, 114, 132, 134, 157, 177-178, 214-215, 218-221, 229-
236, 247-249, 251, 255-257, 259, 264-265, 296, 301, 311, 329-330, and 362-365.
23
Parties have utterly failed to demonstrate how communications with third-party attorneys,
activists, and reporters is consistent with a reasonable expectation of confidentiality, or, for that
matter, how any such communications were made in furtherance of seeking legal advice.
Similarly, to the extent such documents have been withheld on the basis of the work product
privilege, the record does not support the conclusion – and certainly, not to a reasonable certainty
– that communications with third-party attorneys, activists, and reporters could be in preparation
for litigation, or made with a reasonable basis for believing that these third parties would keep
the disclosed information confidential. Therefore, Applicants are also entitled to disclosure of
these documents.18
F. Documents Disclosed to Various Third-Party Attorneys
Several documents over which the Lago Agrio Plaintiffs assert work product privilege
were disclosed to third-party attorneys for the Republic – namely, David B. Allanoff, Derek
Baxter, Eric Bloom, Terry Collingsworth, Marta Escobar, Tomas Leonard, and Robert A.
Skirnick. In opposition to Applicants’ motion, the Lago Agrio Plaintiffs make no mention of this
group, electing instead to address other third parties and parrot non-controversial standards
governing the effect of voluntary disclosures. See Lago Agrio Pls.’ Opp’n at 11-12. As noted by
Applicants, the Lago Agrio Plaintiffs do not suggest that there was some sort of joint defense
agreement that could salvage their privilege claims, let alone adduce competent evidence in
support thereof. See Applicants’ Reply at 6 n.6. As such, to the extent these communications
have been withheld on the basis of the work product privilege, the record does not support the
conclusion – and certainly, not to a reasonable certainty – that communications with third party
18
Documents 7, 296, 316-319, 364-365, and 375-377.
24
attorneys for the Republic could be in preparation for litigation, or made with a reasonable basis
for believing that these third parties would keep the disclosed information confidential.
The Republic, for its part, asserts work product privilege only with respect to a subset of
these documents (Documents 329-330, 364-367, and 397-400). See Republic’s Opp’n at 2 n.2.
But the Republic offers nothing in addition to an empty invocation of the relevant legal standard,
asserted upon its own ipse dixit that these communications reflect attorney mental impressions
and legal conclusions in connection with ongoing litigations. See Republic’s Reply at 7. Such
conclusory allegations cannot discharge the burden of demonstrating, to a reasonable certainty,
that “in light of the nature of the document and the factual situation in the particular case, the
document can fairly be said to have been prepared or obtained because of the prospect of
litigation.” Lutheran Social Servs., 186 F.3d at 968. Moreover, because Respondent is a party to
each of the communications, the claim fails for the same reasons described above: without
knowing in what capacity Respondent was operating in the context of a given communication
and in relation to what proceeding, the Court cannot draw any inferences as to the author’s
motivations or, for that matter, that the communication was made consistent with the
maintenance of secrecy from one’s adversary.
Finally, the Court has reviewed in camera Documents 397-400, which cannot support the
claimed privilege. In an e-mail chain bearing the subject-line, “Re: Lunch?,” Respondent and
others discuss the timing and location of a meeting. Answering in the affirmative to the question
posed in the subject-line, Respondent writes, “Sure. Will Thursday at 1 work for you?” Eric
Bloom responds, “That would be great. Do you want to come by the office or meet somewhere?
The office address is 1700 K Street.” Finally, the exchange ends with Respondent’s reply, “Your
25
Office is OK.” Simply put, the work product privilege does not attach to discussions concerning
the timing and location of counsel’s lunch. The Court does not want to minimize the matter;
Respondent’s specious privilege claims with respect to these particular documents – each of
which were logged and withheld as separate communications19 – casts doubt upon Respondent’s
claims as a whole. In any event, none of the documents within this category can be withheld on
the basis of the work product privilege.20
G. Documents for which the Republic Asserts the Attorney-Client Privilege
The Republic asserts the attorney-client privilege with respect to four documents
(Documents 364-367). The assertion is unavailing. All four documents involved Respondent.
Although the Republic offers its unsworn statement that Respondent was operating in his
capacity as counsel for the Republic, see Republic’s Opp’n at 7, there is no evidentiary support in
the record for that assertion, especially given that each of the communications were made at a
time when Respondent was still – in his words – an “active member” of the Lago Agrio
Plaintiffs’ litigation team. After scouring the Privilege Log, Respondent’s declaration, the Cover
Letter, and other materials, the Court finds no competent evidence indicating, one way or the
other, what Respondent’s role was with respect to particular communications. Therefore, the
invocation of the privilege fails for the same reasons it did above: absent competent evidence
establishing some context as to Respondent’s role and the relationship among the parties, the
Court cannot say whether the communication was made for the purposes of legal advice, and in
19
Respondent should, at the bare minimum, be aware of his obligation to redact and
produce non-privileged portions of responsive documents.
20
Documents 135-137, 140, 303-310, 329-330, 364-367, and 397-400.
26
confidence and outside the presence of strangers. Moreover, Documents 366-367 are between
Respondent and Marta Escobar, who is identified by Respondent as both “client” and “attorney
for Ecuador,” without any further specification or context. Finally, Documents 364-365 both
involve Esperanza Martinez, the “3rd party activist” – and Juan Velasco, purportedly “counsel
for Petroecuador,” is copied on Document 364 – which alone vitiates the privilege absent
countervailing record support. Thus, the attorney-client privilege does not shield these
documents from production.21
H. Documents Disclosed to Testifying Experts
In their moving papers, Applicants argued that communications that were sent to or
received from the Lago Agrio Plaintiffs’ testifying experts were subject to a “bright-line” rule of
full disclosure. Mot. to Compel at 8.22 Indeed, Applicants specifically identified three such
individuals by name: (a) Charles Calmbacher; (b) Edison Camino; and (c) Oscar Davila. Id.Nevertheless, in opposing the present motion, neither Respondent nor the Lago Agrio Plaintiffs
offer any rejoinder either to Applicants’ contention that the individuals identified are in fact
“testifying experts” or that, as a consequence, their communications are subject to full disclosure.
Lago Agrio Pls.’ Opp’n at 11-12. See Phrasavang v. Deutsche Bank, 656 F. Supp. 2d 196, 201
21
Documents 364-367.
22
Although no court within this District appears to have endorsed the so-called “bright
line” rule, the majority approach, that rule directs that any matters considered by a testifying
expert are automatically discoverable – i.e., any materials that an expert generated, reviewed,
reflected upon, read, or used in formulating his or her conclusions, irrespective of whether those
materials were ultimately relied upon by the expert in reaching his or her opinions. Synthes
Spine Co., L.P. v. Walden, 232 F.R.D. 460, 464 (E.D. Pa. 2005); see also South Yuba River
Citizens League v. Nat’l Marine Fisheries Serv., 257 F.R.D. 607, 612 (E.D. Cal. 2009)
(collecting cases).
27
(D.D.C. 2009) (where party fails to respond to arguments in opposition papers, the court may
treat them as conceded) (citing Fed. Deposit Ins. Co. v. Bender, 127 F.3d 58, 68 (D.C. Cir.
1997). Accordingly, documents involving Calmbacher, Camino, and Davila are discoverable on
this ground alone.23
In their reply papers, Applicants identify additional individuals purportedly within the
confines of the “testifying expert” category, including Jen Bilbao, Jorge Jurado, and David
Russell, each of whom is identified by Respondent as a “retained expert” or “retained
consultant.” See Applicants’ Reply at 6. Because the Court concludes that neither Respondent
nor the Lago Agrio Plaintiffs were on sufficient notice that Applicants were claiming such
individuals qualified as testifying experts, and because the record is not clear on the point, the
Court does not reach the issue. In any event, each of the documents are captured within other
categories for which production is required.
Similarly, Applicants seek the disclosure of documents involving three additional third
parties not heretofore discussed: (a) Luis Yanza, identified as “member of litigation team;” (b)
Lauren Schrero, identified as “retained legal research assistant;” and (c) Manuel Pallares,
identified as a “retained consultant.” The parties dispute, with varying degrees of specificity, the
precise roles these individuals played in the context of the Lago Agrio Litigation. See Mot. to
Compel at 10; Lago Agrio Pls.’ Opp’n at 11-12; Applicants’ Reply at 6. Because each of the
communications affected are also captured within other categories for which production is
23
Documents 1, 4, 8, 11, 14-21, 23-24, 27, 39, 57-58, 63-64, 66-68, 104, 112-113, 115,
120, 124-129, 139, 141-145, 148, 151-155, 157, 161-162, 164-176, 179-182, 184-186, 188-189,
191, 193-198, 200, 202-207, 210-211, 224-225, 227-238, 240-241, 243-249, 251, 253-254, 258,
266-269, 270-273, 293, 302, 314-315, 332-333, and 338-339.
28
required, the Court need not reach the issue. Applicants are, of course, free to put to Respondent
foundational questions regarding the role of such individuals during the course of his deposition.
I. Documents Allegedly Relating to the Subject-Matter of the Crude Documentary
Applicants further contend that an unidentified number of documents identified on
Respondent’s Privilege Log touch upon the same topics that the Lago Agrio Plaintiffs’ counsel
were captured discussing during the filming of a documentary film titled “Crude.” Mot. to
Compel at 7. The Lago Agrio Plaintiffs persuasively counter that Applicants have failed to make
a sufficiently particularized showing to justify the broad subject-matter waiver they seek. Briefly
stated, Applicants make no effort to correlate specific excerpts from the documentary, for which
there are transcripts, with comparable entries on Respondent’s Privilege Log, such that would
allow this Court to draw the conclusion that the specific topics are sufficiently aligned.
Accordingly, as the record now stands, this cannot serve as a basis for compelling production of
otherwise privileged documents.
J. Substantial Need, Undue Hardship, and Crime-Fraud
Although the Court does not consider it necessary to reach the issue in light of its other
conclusions, it nevertheless pauses to observe that there is some merit to Applicants’ assertions
that they have a “substantial need” for the materials at issue and cannot, without undue hardship,
obtain their substantial equivalent by other means. The evidence sought “undoubtedly goes to
the heart” of Applicants’ claims and defenses in the foreign proceedings, HealthSouth Corp., 250
F.R.D. at 13, and the Court fails to see how Applicants could obtain the substantial equivalent of
such evidence through other avenues, particularly given the Interested Parties’ positions in this
action. Moreover, despite their generalized and conclusory allegations to the contrary, neither
29
Respondent nor the Interested Parties point to any competent evidence in the record that would
suggest that the communications at issue contain core attorney work product – i.e., the sort of
“mental impressions, conclusions, opinions, or legal theories” that may merit heightened
scrutiny. Fed. R. Civ. P. 26(b)(3)(B). Ultimately, however, the Court need not reach the issue,
and it declines to do so. Nor will the Court opine on the merits of Applicants’ proffered “crime-
fraud exception” argument based on the record created by the parties. See Stratus Consulting,
2010 WL 3923092, at *11 (deferring to Ecuadorian courts to adjudicate allegations concerning
crime-fraud).
V. CONCLUSION
The Court has considered the remaining arguments tendered by the parties, and has
concluded that they are without merit. Therefore, and for the reasons stated above, the Court
shall GRANT Applicants’ Motion to Compel. An appropriate Order accompanies this
Memorandum Opinion.
Date: November 3, 2010
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
30