Case of the Day: In re Republic of Ecuador

The case of the day is In re Republic of Ecuador (N.D. Fla. 2012). The judge characterized the case as a small part of “an expansive, long-running international dispute,” which is like calling the moon landing a “short, somewhat interesting jaunt for the adventurous.” The Republic of Ecuador, taking a page from Chevron’s playbook, brought a § 1782 application for discovery from Dr. Robert Hinchee, one of Texaco’s testifying experts in the Lago Agrio trial, in aid of the arbitration between Ecuador and Chevron now pending in the Hague. Chevron intervened on Dr. Hinchee’s behalf.

Chevron asserted attorney-client privilege and work product protection for many documents, and it claimed that it had inadvertently produced some privileged documents. The judge conducted an in camera review of a sampling of documents from the privilege log and a sampling of documents inadvertently produced.

The judge noted that many of the documents were trivial or cryptic, and he noted that in an ordinary case he would take undue burden into account. But because the amount in controversy “dwarfs the expense of even the broadest discovery,” and because neither party asserted burdensomeness, the judge focused on the privilege issues. He found that an “executive summary” that had been drafted for inclusion in an expert report was protected work product, but that the other documents he saw—Dr. Hinchee’s notes to himself, or communications between Dr. Hinchee and persons other than Chevron/Texaco’s lawyers—were neither privileged nor work product. Applying the 2010 amendments to FRCP 26, which protect communications between a testifying expert and the lawyer for the party on whose behalf the expert is testifying, the judge ordered Chevron to produce all of the documents requested other than documents containing communications between Dr. Hinchee and Chevron/Texaco’s lawyers.

Is anyone surprised that Chevron has appealed?

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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