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In re Chevron Corp.

ELR Citation: 41 ELR 20087
Nos. No. 10-2815, (3d Cir. , 02/03/2011) Discovery

The Third Circuit, in a $113 billion lawsuit against an oil company concerning environmental pollution in the Amazon, affirmed in part and vacated in part a lower court order granting the oil company's application to engage in discovery for use in a proceeding before an Ecuadorian court under 28 U.S.C. §1782(a). The company intends to use the evidence that it uncovers in an attempt to show the Ecuadorian court that the plaintiffs have engaged in fraud in the proceedings before that court. The lower court applied the appropriate standards in considering the company's §1782 application and correctly determined that the provision of documents to an Ecuadorian court-appointed expert to assess damages resulted in a waiver of any work-product protections and attorney-client privileges that might otherwise have precluded discovery of those documents. But the lower court's ruling that the crime-fraud exception to the attorney-client privilege was applicable, to the extent that the privilege was not waived, was too sweeping and has the potential to pierce the attorney-client privilege for documents that were not created or used in furtherance of the alleged fraud and thus are not subject to disclosure through the application of the exception. The court therefore vacated the lower court's determination with respect to the crime-fraud exception to the attorney-client privilege and remanded the case so the lower court can conduct an in camera review of the relevant documents and determine whether the crime-fraud exception to the attorney-client privilege is applicable to any of the documents and, if so, which ones.