Chevron Allowed To Depose Plaintiff’s Counsel In Ecuador Toxic Tort Litigation

At The American Lawyer:

A federal judge in Manhattan has taken the extraordinary step of granting Chevron’s motion to depose a counsel for its adversaries in the massive toxic tort litigation over oil contamination in Lago Agrio, Ecuador.

Kaplan based his ruling on evidence Chevron produced from outtakes of the documentary "Crude," which chronicles the Lago Agrio case. He called the outtakes "extraordinarily revealing."

"The outtakes contain substantial evidence that Donziger and others were involved in ex parte contacts with the court to obtain appointment of the expert; met secretly with the supposedly neutral and impartial expert prior to his appointment and outlined a detailed work plan for the plaintiffs’ own consultants; and wrote some or all of the expert’s final report that was submitted to the Lago Agrio court and the Prosecutor General’s Office, supposedly as the neutral and independent product of the expert," Kaplan wrote.

Moreover, the judge concluded, the outtakes contained evidence that Donziger lobbied for criminal charges against the former Chevron lawyers in order to pressure Chevron in the Lago Agrio case.

Lawyers are trained from the day they arrive at law school to consider attorney-client privilege to be sacrosanct, and my initial reaction to this news was indeed surprise and outrage that a court would set that principle aside to benefit an oil company that spent years contaminating the drinking water of politically powerless people.

But the bigger picture needs to be considered. I’ve written before, back in discussing Mohawk Industries v. Carpenter (which considered whether attorney-client privilege issues are entitled to an interlocutory appeal) that attorney-client privilege is often overrated:

In one sense, the question we’re really asking is one of balance. Everyone would like to have every issue decided against them made immediately appealable. But we can’t do that; as the former judges’ brief notes, the courts are overworked as is, and, as the plaintiff’s brief notes, there are dozens of serious issues — like those affecting constitutional rights and criminal convictions — which are not immediately appealable.

Where does attorney-client privilege (involving discussions regarding a separate case) fit on the totem pole?

A little more than a year later, the Supreme Court decided that attorney-client privilege is important, but not that important: 

The crucial question, however, is not whether an interest is important in the abstract; it is whether deferring review until final judgment so imperils the interest as to justify the cost of allowing immediate appeal of the entire class of relevant orders. We routinely require litigants to wait until after final judgment to vindicate valuable rights, including rights central to our adversarial system. See, e.g., Richardson-Merrell, 472 U. S., at 426 (holding an order disqualifying counsel in a civil case did not qualify for immediate appeal under the collateral order doctrine); Flanagan v. United States, 465 U. S. 259, 260 (1984) (reaching the same result in a criminal case, notwithstanding the Sixth Amendment rights at stake). In Digital Equipment, we rejected an assertion that collateral order review was necessary to promote “the public policy favoring voluntary resolution of disputes.” 511 U. S., at 881. “It defies common sense,” we explained, “to maintain that parties’ readiness to settle will be significantly dampened (or the corresponding public interest impaired) by a rule that a district court’s decision to let allegedly barred litigation go forward may be challenged as a matter of favor.” Ibid.

We reach a similar conclusion here. In our estimation, postjudgment appeals generally suffice to protect the rights of litigants and assure the vitality of the attorney-client privilege. Appellate courts can remedy the improper disclosure of privileged material in the same way they remedy a host of other erroneous evidentiary rulings: by vacating an adverse judgment and remanding for a new trial in which the protected material and its fruits are excluded from evidence.

(Emphasis added.) A similar dynamic is at play in the Lago Agrio case. The plaintiff’s lawyer’s attorney-client privilege must be weighed against the fact that two former Chevron lawyers are facing criminal charges in Ecuador, and the fact that the evidence in possession of the plaintiff’s lawyer is apparently unavailable elsewhere.

Moreover, the order is apparently limited to the pertinent issues, and doesn’t permit a fishing expedition into the attorney’s impressions of the case or contacts with his clients:

If Southern District of New York Judge Lewis A. Kaplan’s ruling Wednesday in In re Application of Chevron Corp., 10 MC 00002, stands, Chevron’s counsel from Gibson, Dunn & Crutcher and counsel for two former Chevron lawyers facing criminal charges in Ecuador will be able to ask lead plaintiffs attorney Steven Donziger questions, under oath, about his alleged attempts to influence a supposedly neutral expert appointed by the Ecuadorean court to offer a global damages assessment. The judge also has ordered Donziger to produce documents related to his interactions with the expert.

My only hope is that this isn’t a one-shot, defendants-win, plaintiffs-lose deal. If these rules will be applied equally — and thereby permitting plaintiff’s lawyers to depose defendant’s lawyers when the circumstances warrant — then we’ll all benefit.

Indeed, plaintiffs would likely benefit from a relaxed view of attorney-client privilege; after all, multinational corporations usually have a lot more to hide than injured plaintiffs do.

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  • Douglas B. Levene

    Isn’t this a rather conventional application of the exception to the attorney-client privilege where the attorney has assisted the client in the perpetration of a fraud or crime?

  • http://www.litigationandtrial.com Max Kennerly

    That might be part of the court’s reasoning, but as far as I know there’s no indication the clients were involved in any fraud. The actions are those of the attorney (and his agents) alone.