Case of the Day Chevron Corp. v. Salazar

The battle before Judge Kaplan continues in the Lago Agrio case. All our prior coverage is here.

Today’s case of the day, Chevron Corp. v. Salazar (S.D.N.Y. 2011), relates to Chevron’s efforts to take the depositions of three of the Lago Agrio plaintiffs’ Ecuadorian lawyers, Pablo Fajardo Mendoza, Juan Pablo Saenz, and Julio Prieto Mendez, and to take the deposition of Luis Francisco Yanza, who is the co-founder of the Frente de Defensa de la Amazonia, known as the “ADF”.

In the action in which Chevron seeks a declaratory judgment that the multibillion dollar Ecuadorian judgment is not entitled to recognition or enforcement, most of the Lago Agrio defendants, as well as Fajardo and Yanza, defaulted rather than answer the complaint. Chevron issued notices to take the depositions of Fajardo, Saenz, Prieto, and Yanza, all of whom reside in Ecuador. It served the notices on counsel for the defendants who have appeared but not on the witnesses. Nor did Chevron seek to serve subpoenas on the four.

Fajardo failed to appear for his deposition, and the court believed the others would do likewise. Chevron moved to compel the defendants who had appeared to produce Fajardo, Saenz, Prieto, and Yanza for depositions in New York. Judge Kaplan denied the motion.

The judge noted that while the four witnesses were parties (albeit parties in default) to one of the two actions before him, they had not been served with the notices, and none of them had appeared through counsel. Presumably Chevron could seek to serve them with the notices in Ecuador, but this would require resort to the Inter-American Convention.

The judge also rejected Chevron’s argument that there was an “enterprise” comprising the Lago Agrio plaintiffs, their lawyers, etc. and that under Rule 30, the four witnesses, supposedly “managing agents” of the organization, should be required to appear. But the notices of deposition did not seek to depose the supposed “association,” and even if it had, the association is not a party to the case, and its deposition cannot, therefore, be compelled by a mere notice.

Last, the judge rejected Chevron’s argument that because three of the witnesses are the Lago Agrio plaintiffs’ lawyers, the LAPs who have appeared in the case can be compelled to produce them. He held that unlike an organization that receives a deposition notice under Rule 30(b)(6), an individual party cannot be required to produce his or her agent for deposition on a mere notice. A subpoena is required. While the judge found “strong arguments for the proposition” that Chevron was advancing, he noted that the Rules Advisory Committee had not “address[ed] this point in the entire history of the Federal Rules of Civil Procedure” making “improvisation unwise.”

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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