Republic Of Ecuador v. Hinchee

741 F.3d 1185 (11th Cir. 2013)

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Nature of the Case

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Facts

In 1993, when a group of Ecuadorian Ps filed a class action complaint against a subsidiary of Texaco, Inc. Ps alleged that Texaco's oil exploration in the Amazonian rainforest polluted private and public lands in Ecuador and that Texaco was responsible for Ps' oil-related health problems and the environmental contamination of the Ps' property. The case was dismissed for forum non conveniens. Some of the plaintiffs filed similar claims in Lago Agrio, Ecuador in 2003. Chevron had merged with Texaco, thereby assuming liability for Texaco's operations. The Lago Agrio court in Ecuador issued its judgment in 2011, awarding the Ecuadorian plaintiffs approximately $18.2 billion in damages against Chevron. Ecuador's highest court reduced the judgment to $9.1 billion. Chevron sought arbitration against the Republic of Ecuador (P) in front of the Permanent Court of Arbitration in The Hague, Netherlands. Chevron seeks indemnification or damages from the Republic to cover the cost of the monetary award entered against Chevron in the Lago Agrio litigation. Chevron has sought materials and documents in the possession of experts who testified for Ps in the Lago Agrio litigation, including experts residing in the United States. The Republic has requested discovery from Chevron's expert witnesses in the Lago Agrio litigation, including D in Florida. The Republic requested that the district court issue a subpoena to D for a deposition and production of documents pursuant to 28 U.S.C. § 1782, which allows the district court to issue orders to give 'assistance to foreign and international tribunals and litigants before such tribunals.' The district court granted the Republic's request for a subpoena, and D and Chevron produced approximately 94,000 pages of documents. D and Chevron asserted work-product protection over 1,200 documents. The Republic moved to compel production.

The district court ruled that 39 of the 40 documents were not privileged. The one document that the district court found protected by the work-product doctrine was a draft of an expert report. The remaining 39 documents consisted of (1) D's notes and (2) communications between d and 'one or more individuals who were neither attorneys nor members of an attorney's staff.' Some of the communications in this second group were between D and other expert witnesses testifying for Chevron. The court ordered their production, and D appealed.