The strange case started almost two decades ago in New York. On the motion of Texaco — later Chevron — it wound up in Lago Agrio, Ecuador.
In it, a group of Ecuadorians claimed that Texaco/Chevron's oil and gas operations in their home land caused bad problems. The court in Lago Agrio named an expert to help figure damages. The expert, Richard Stalin Cabrera Vega, valued the harm at $27.3 billion.
Cabrera had received documents from the plaintiffs but not from Texaco/Chevron. The latter deemed the idea of giving documents to the court's expert "absurd". And, it alleged, a person on Cabrera's staff, Juan Cristobal Villao Yepez, at the same time worked for an environmental consulting firm in New Jersey. And the firm was on the payroll of the plaintiffs.
Texaco/Chevron brought in New Jersey an action asking the court to order the New Jersey firm to turn over what it had given Cabrera as well as documents relating to Villao. The district court complied. It cited 28 U.S.C. § 1782(a), which permits orders compelling a person within the district to provide evidence "for use in a proceeding in a foreign or international tribunal" and the crime-fraud exception to the lawyer-client privilege and attorney work product doctrine.
The Third Circuit affirmed in part and sent the case back for more proceedings. In re Application of Chevron Corp., No. 10-2815 (3d Cir. Feb. 3, 2011). It rejected the plaintiffs' claim of privilege, holding that turning the documents over to the court expert Cabrera amounted to waiver. The court also remanded so that the district court could look at the papers dealing with Villao. The panel noted that the district court's in camera review of the documents might show that the plaintiffs' lawyers engaged in conduct that furthered a fraud on the Ecuadorian court.
The bit about the crime-fraud exception reminded Blawgletter that a finding of prima facie evidence to support the exception doesn't mean the court must order production of the documents. The court still must weigh evidence that tends to negate the exception. Prima facie doesn't get you there. Post here.