The case of the day is Chevron Corp. v. Weinberg Group (D.C. Cir. 2012). I discussed the underlying case in my post of April 17, 2012. Chevron had sought to compel the production of documents from the Weinberg Group, which worked with the Lago Agrio plaintiffs on new expert reports after the Cabrera report was called into question. Chevron, which had sued some of the plaintiffs and their lawyers in New York, issued a subpoena to the Weinberg Group for documents. Weinberg refused to produce some of the responsive material, citing attorney-client privilege and the work product doctrine. Chevron moved to compel. Because of the territorial limits on the New York court’s subpoena power, the subpoena issued, and the motion to compel was heard, in the District of Columbia. The magistrate judge agreed with Chevron that the crime/fraud exception to the attorney-client privilege applied and ordered production of the documents. Weinberg appealed.

The magistrate judge’s decision was based almost entirely on Judge Kaplan’s factual findings in his decision granting Chevron’s motion for a preliminary injunction enjoining the plaintiffs from seeking recognition and enforcement of the Ecuadoran judgment anywhere in the world. While Weinberg’s appeal to the Court of Appeals for the D.C. Circuit was pending, the Court of Appeals for the Second Circuit vacated Judge Kaplan’s injunction.

As predicted in the earlier post, the D.C. Circuit vacated the magistrate judge’s order. The brief opinion is by Judge Kavanaugh, who, at oral argument, expressed doubt that the magistrate judge’s order could stand in light of the Second Circuit’s order vacating the injunction. One interesting wrinkle to this: the DC Circuit seems to have more doubts about the validity of Judge Kaplan’s findings of fact, in light of the Second Circuit’s decision, than Judge Kaplan has. In his order on the motion to dismiss in the RICO case, Judge Kaplan wrote that the Second Circuit’s opinion:

did not pass, one way or the other, on this Court’s findings with respect to the nature of the Ecuadorian tribunals or the evidence of fraud in the procurement of the Judgment. Rather, it explained that the panel had vacated the preliminary injunction on the ground that:

“the procedural device [Chevron] has chosen to present those claims is simply unavailable: The [New York Recognition of Foreign Country Money Judgments Act (“Recognition Act”)] nowhere authorizes a court to declare a foreign judgment unenforceable on the preemptive suit of a putative judgment-debtor.”

The case was argued to the D.C. Circuit in April 2012, and Judge Kaplan’s remarks on the effect of the Second Circuit’s opinion came in May. Since it was clear from the oral argument that the the D.C. Circuit was concerned about the effect of the Second Circuit’s action, I’m surprised that Chevron did not seek to offer Judge Kaplan’s May opinion as a supplemental authority under FRAP 28(j).