tn magistrate judge limits discovery in chevron-ecuador case
DESCRIPTION
A Nashville Magistrate Judge overseeing one of Chevron’s numerous U.S. 1782 discovery proceedings related to the environmental lawsuit against Chevron in Ecuador issued a ruling yesterday that limits the oil giant’s aggressive attempts to pierce work-product protected documents from the plaintiffs' former scientific consultant expert. In the order, Judge Joe B. Brown wrote that the statutory relief sought is limited and Chevron cannot “use this court to try a dispute that is pending in a foreign proceeding.”TRANSCRIPT
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IN THE UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
In re Application of )CHEVRON CORPORATION, a )Delaware corporation, )
) Case No. 3:10-cv-00686Applicant, ) Judge Nixon/Brown
)))
MARK QUARLES, an individual, ))
Respondent. )
O R D E R
Presently pending before the Magistrate Judge are Chevron’s Motion to Compel and
accompanying memorandum (Docket Entries 96, 97) and Respondent Mark Quarles’s Motion
for a Telephonic Hearing. (Docket Entry 105). Respondent has filed a Response to Chevron’s
Motion, and Chevron has in turn filed a Reply. (Docket Entries 104, 107). At the request of the
Magistrate Judge, Respondent has submitted a privilege log and documents for in camera
review, as well as an ex parte brief in support of its claims of privilege and work product
protection. (Docket Entries 90, 91, 100). For the reasons set forth below, Chevron’s Motion is
GRANTED in part, and Respondent’s Motion is DENIED.
Chevron essentially raises four categories in which they allege Respondent’s testimony
and document production have been inadequate or improperly withheld. First, Chevron believes
Respondent and his attorneys, who also represent the Ecuadorian Plaintiffs, have improperly
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claimed that all documents related to Respondent’s 2007 declaration, submitted on behalf of the
Republic of Ecuador in Repub. of Ecuador v. ChevronTexaco Corp., No. 04 Civ. 8378
(S.D.N.Y.), are subject to work product and/or attorney-client privilege protection. Second,
Chevron also believes Respondent and his attorneys have improperly claimed that documents
related to Respondent’s 2008 work for the Ecuadorian Plaintiffs are subject to work product
and/or attorney-client privilege protection. Third, Chevron asserts Respondent declined to
testify about matters Respondent’s attorneys improperly characterized as privileged, subject to
work-product protection, or outside the scope of the subpoena in his deposition testimony.
Finally, Chevron alleges Respondent has not thoroughly examined the materials in his custody or
control in responding to the subpoena.
The Magistrate Judge believes it is important to note at the outset that this proceeding,
initiated pursuant to 28 U.S.C. § 1782, is not an opportunity to put on a full trial. Chevron has
raised accusations that would indeed be subject to intense scrutiny had they occurred in this
Court or in any court of the United States. The simple fact remains, however, that this
proceeding is limited to the statutory relief provided in § 1782--namely, discovery for use in a
foreign proceeding. Chevron had an opportunity to litigate this matter in the United States and
strongly opposed jurisdiction in favor of litigating in the Ecuadorian courts. While fraud on any
court is a serious accusation that must be investigated, it is not within the power of this court to
do so, any more than a court in Ecuador should be used to investigate fraud on this court. The
Magistrate Judge has found that § 1782 relief is appropriate in this matter, and Chevron is
entitled to discovery from Respondent. Neither party is entitled, however, to use this court to try
a dispute that is already pending in a foreign jurisdiction. This limited proceeding is quickly
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1 One symptom of the problem is reflected in the parties’ voluminous filings with thecourt. While the Magistrate Judge realizes this is a proceeding involving a largeamount of background documents, the parties have not adequately edited their filings. For example, the Reply brief for the instant motion attached as an exhibit a 352-pagedeposition transcript, while citing only 8 pages of that transcript.
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spiraling out of control.1
I. Claimed Privilege and Work-Product Protection
As to the first two categories of issues, the Magistrate Judge believes Quarles was
retained by the Ecuadorian Plaintiffs as a consulting, non-testifying expert in 2006 and remained
such through 2008. The Ecuadorian Plaintiffs were involved in the Lago Agrio litigation in
2006, and Quarles was clearly retained in anticipation of litigation. The requirements of Fed. R.
Civ. P. 26(b)(4)(B) are met, and Quarles’s work in that capacity is generally subject to work-
product protection.
Chevron argues that the Ecuadorian Plaintiffs have waived any protection over Quarles’s
work with regard to the 2007 declaration submitted on behalf of the Republic of Ecuador’s
Response to a Motion to Dismiss and, consequently, they are entitled to examine the materials
underlying Quarles’s declaration. The Magistrate Judge has not located any cases on all fours
with this situation, i.e., where a consulting expert retained by a non-party to the lawsuit (the
Ecuadorian Plaintiffs) provided, at the request of the non-party, a declaration in support of a
party’s preliminary pleading in a related proceeding.
Whether the underlying documents are subject to work-product protection in a related
lawsuit to which the non-party (the Ecuadorian Plaintiffs) is a party is a question that has not
been addressed by the courts. If the declaration were submitted on behalf of the Ecuadorian
Plaintiffs in a previous proceeding, the consulting expert’s underlying work likely remains
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2 In the Reply, Chevron argues that this case is distinguishable because the consultingexpert in the previous litigation was not used as an expert in the case at issue. Chevronargues that this case should be analyzed more similar to cases involving experts givingdeclarations in motions for summary judgment. See, e.g., Sims v. Metropolitan Life Ins.Co., 2006 WL 3826716 (N.D. Cal. Dec. 27, 2006). The Magistrate Judge believes,however, that a “consulting” expert providing a deposition at the summary judgmentstage is sufficiently distinguishable from a declaration submitted on behalf of a motionto dismiss, which is often made at the very early stages of litigation.
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subject to work-product protection. See, e.g., Intervet v. Merial Ltd., 2007 WL 1797643 (D.
Neb. June 20, 2007) (holding that a party was not entitled to discovery regarding a declaration
submitted by a consulting expert in a previous case in the context of a motion for a preliminary
injunction).2 However, there is a fundamental difference when a non-party submits a non-
testifying expert’s declaration on behalf of a party, and there is a good argument that any work-
product protection related to that declaration may be waived.
Nevertheless, the Magistrate Judge believes Chevron is entitled only to documents or
testimony regarding Quarles’s observations, not his opinions. See, e.g., Trepel v. Roadway Exp.,
Inc., 40 Fed. App’x 104, 110 (6th Cir. 2002) (upholding admission of deposition testimony of
non-testifying expert that was limited “to only those matters observed by her or rationally based
upon [her] perceptions.”). Chevron is not entitled to pierce the work-product protection afforded
Quarles as a non-testifying expert, because it has not shown the “exceptional circumstances”
required by Fed. R. Civ. P. 26(b)(4)(B)(ii). Chevron has obtained much of the information
sought from Quarles from other sources. Moreover, whether or not the underlying documents
are protected work-product, Chevron has in effect waived any right to them in this action by not
seeking them in the SDNY action. Chevron failed to avail themselves of the aid of the court in
the SDNY action, and this proceeding–as has been noted repeatedly–is not a full-blown
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litigation. The Magistrate Judge cannot reopen that case. Chevron is therefore entitled to any
documents or testimony regarding Quarles’s observations of Cabrera’s sampling in 2007, to the
extent the information has not already been produced by Quarles. The Magistrate Judge expects
Quarles and his attorneys to fully comply with this order. To the extent that Quarles’s notes,
emails, and other documents reflect both his observations and his opinions, they should be
redacted and produced. As has been previously noted, to the extent that any documents have
been provided to the Republic of Ecuador or any other third parties, all privilege and work-
product protection to those documents has been waived.
Because the Magistrate Judge believes Quarles was a non-testifying expert retained by
the Ecuadorian Plaintiffs, the 2008 materials at issue are entitled to work-product protection.
Quarles was hired by consultants retained by the Ecuadorian Plaintiffs, and his work was
procured in anticipation of litigation. Quarles has testified that he has no knowledge of his work
being sent to Cabrera or used in the Cabrera Report. Chevron is not entitled to these materials.
Chevron has repeatedly argued that the crime fraud exception applies to these documents,
and at least one court has agreed. E.g., In re Applic. of Chevron Corp., No. 10-mc-21 (D. N.M.)
(Docket Entry 101-1). While the Magistrate Judge believes the crime fraud arguments require
the Magistrate Judge to make fact findings outside the scope of this § 1782 proceeding, the crime
fraud exception to privilege would not apply in this case in any event. The Magistrate Judge has
reviewed the documents submitted by the parties, including those submitted under seal for in
camera review. In contrast to some of the other § 1782 proceedings, the Magistrate Judge has
not seen sufficient evidence that Quarles had actual knowledge of or participated in the alleged
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3 Chevron has attached to its Reply emails that purport to show Quarles knowingghostwrote portions of the Cabrera Report, thereby committing an intentional fraud onthe Ecuadorian court. The Magistrate Judge believes these emails are not so clear ontheir face. In any event, the Magistrate Judge has allowed Chevron to take additionaldeposition testimony, which should provide more context for these documents.
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fraud on the Ecuadorian court.3
II. Deposition Testimony
On the advice of his counsel, Quarles did not answer a number of questions in his
deposition. Chevron has filed a copy of the deposition transcript highlighting the questions and
instructions of counsel, which the Magistrate Judge has reviewed. (Docket Entry 102-1). The
objections raised can be categorized as (1) outside the scope of the subpoena or (2) subject to
work-product protection or (3) subject to attorney-client privilege.
The Magistrate Judge believes the previous discussion should clarify the privilege and
work-product protection issues. Respondent must testify as to any factual knowledge he has,
provided they are not the result of attorney-client confidences between the Ecuadorian Plaintiffs
and their attorneys and are not subject to work-product protection.
Respondent’s counsel also objected to a number of questions being outside the scope of
the subpoena. The subpoena is appropriately narrow and tailored to discover what role, if any,
Quarles’s work played in drafting the Cabrera report. (Docket Entry 3-1). As such, Quarles is
not required to divulge information related to his 2006 technical submissions (as the undersigned
has already ruled) or information related to his visits to Havoc Labs in 2006. Because this
information, based on Quarles’s testimony, is apparently not related to any of the documents
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4 It is worth noting that the subpoena is somewhat limited because it assumes Quarles’swork was used, with his knowledge (either before or after the use), in the Cabrerareport. Without establishing this conclusion as a prerequisite, it is difficult for Chevronto argue it is entitled to the additional information it seeks.
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sought in the subpoena, Chevron is not entitled to discovery in these areas.4 However, if further
deposition testimony confirms that Quarles’s work was used in the Cabrera report, Quarles must
testify regarding those subject areas.
III. Adequacy of Respondent’s Document Search
Respondent has testified regarding his examination of his computer and files, as well as
his ordinary procedures for preserving and backing-up data. While Chevron has received
additional documents from other sources suggesting Respondent had possession of additional
materials at one time, this does not reflect what is in Respondent’s custody or control at the
present time. There is no indication Respondent was under a duty to preserve documents related
to the Lago Agrio litigation or his work for the Ecuadorian Plaintiffs. Absent a showing by
Chevron that Respondent actually possesses materials not subject to privilege that were not
produced, the Magistrate Judge is unwilling to order more drastic remedies. Chevron may, of
course, ask Respondent about any documents obtained from other sources.
Conclusion
Based on the foregoing discussion, Chevron’s Motion to Compel is GRANTED in part.
Chevron may depose Respondent Quarles for up to an additional four (4) hours. Quarles is
expected to respond as fully and completely as possible, in light of the possible privilege asserted
over some of his work. Respondent is further ordered to produce any documents that are not
subject to attorney-client privilege or work product protection, as discussed above.
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Respondent’s Motion for a Telephonic Conference is DENIED.
It is so ORDERED.
Entered this 21st day of September, 2010.
JOE B. BROWNUnited States Magistrate Judge
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