Tag Archives: privilege

Boal v. United States: The Bergdahl Case, Serial, and the Belfast Project

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Bowe Bergdahl

Season 2 of the excellent podcast, Serial, featured the story of Sgt. Bowe Bergdahl, the American soldier who walked away from his post in Afghanistan, was captured and held for about five years by the Taliban before being released in a prisoner exchange. He is to be tried by a general court martial on charges of desertion and misbehavior before the enemy. For a good explanation of the case from military law experts, you may want to read CAAFLog’s coverage, and in particular, a recent article explaining some of the behind-the-scenes aspects of the Army’s charging decision.
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Case of the Day: In re Chevron Corp.

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Our case of the day, In re Chevron Corp. (3d Cir. 2011), is the Third Circuit’s contribution to the dozens of Lago Agrio-related judicial assistance proceedings around the country. I won’t rehash the background to the Lago Agrio case again, except to say that the Third Circuit evidentally shares my sense of the irony involved in Chevron’s course of action:

Chevron’s responses to what it plainly regarded as unpalatable proceedings in Ecuador did not stop with it taking steps in that country, as it obviously, and ironically in view of its contentions on its forum non conveniens application that resulted in the dismissal of the Southern District of New York litigation, had lost faith in the Ecuadorian courts.

The case involved Chevron’s efforts to obtain discovery from UBR, a New Jersey environmental firm that the Ecuadoran plaintiffs had hired. UBR allegedly employed one of the consultants who participated in the creation of the court-appointed expert’s report in the Ecuadoran litigation, and documents with the UBR logo appeared in the court-appointed expert’s report. Chevron argued that this was evidence of the court-appointed expert’s bias.

The Ecuadoran plaintiffs made an interesting argument of statutory construction. The statute permits discovery “for use in a proceeding” in a foreign tribunal. Since the purpose of the discovery was to attack the proceedings in the foreign tribunal and indeed to attack the foreign tribunal’s impartiality itself, the discovery was not “for use in a proceeding.” But this argument foundered when it ran up against Chevron’s stated intention to use the evidence it obtained to show, in the Lago Agrio proceeding, that the plaintiffs had committed a fraud on the Ecuadoran court. And of course the use of the evidence in the BIT arbitration to show that the Lago Agrio lawsuit was fraudulent would come within the scope of the statute.

The court found that the Intel factors favored Chevron. UBR was not a party to the proceedings in Ecuador; the Ecuadoran plaintiffs had not shown that the tribunals in Ecuador would not be receptive to the evidence (merely arguing that the Ecuadoran court would not allow the same discovery to be taken under its own aegis is not the same as arguing that the Ecuadoran court would not consider the evidence if obtained by other means, such as the judicial assistance statute); and there was no evidence of undue burdensomeness or intrusiveness.

Finally, the court held that any privilege or work-product protection was waived when UBR submitted documents to the court-appointed expert. It was clear from the affidavit of UBR’s own lawyer that there was no expectation of confidentiality once documents were produced, and under ordinary principles, disclosure of the documents waived the privilege that might otherwise have been applicable. The court did, however, vacate the district court’s decision to the extent it found that the crime-fraud exception to the privilege applied to require disclosure of communications between the UBR consultant that the Ecuador plaintiffs employed and the court-appointed expert or the plaintiffs’ lawyer. The apparent conflict of interest was sufficient to require the lower court to conduct an in camera review of the documents, but insufficient, without more, to establish that the exception to the privilege applied.

Digest for January 31, 2011

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Gucci America v. Guess?, Inc., 271 F.R.D. 58 (S.D.N.Y. 2010). In a trademark infringement case, the plaintiff, an American affiliate of an Italian manufacturer, sought a protective order to prevent disclosures of communications between its in-house counsel and the Italian firm’s counsel. The court held that U.S. law rather than Italian law governed the issue under the “touch base” approach used in prior S.D.N.Y. cases. The opinion also has a discussion of the limitations of document discovery under the Italian civil code.

Ethypharm S.A. France v. Abbott Labs., 271 F.R.D. 82 (D. Del. 2010). In an antitrust case brought by a French pharmaceutical company against a U.S. firm, the French firm sought to take depositions, including a Rule 30(b)(6) deposition, from employees of a French subsidiary of the U.S. defendant under the Federal Rules of Civil Procedure rather than via the Hague Evidence Convention. The plaintiff argued that the defendant’s control over the French subsidiary warranted subjecting the subsidiary to ordinary U.S. pretrial discovery. The defendant argued that even if discovery under the Rules of Civil Procedure was proper, the witnesses the plaintiff sought to depose were not subject to the court’s subpoena power and were not employees of the defendant itself, so as to require the defendant to produce them for deposition pursuant to a mere notice. The court agreed that the individual witnesses were not subject to its subpoena power and thus that it could not compel them to testify pursuant to the Rules of Civil Procedure. But it permitted the plaintiff to take a Rule 30(b)(6) deposition of the French subsidiary by notice.