Decided: September 24, 2014
The Fourth Circuit held that decisions on applications for discovery filed under 28 U.S.C. § 1782 are immediately appealable, and affirmed the district court’s order requiring that Appellants produce the requested documents.
This appeal stemmed from a multi-billion-dollar judgment rendered in Ecuador against Chevron Corporation (“Chevron”) for claims that Chevron’s operations caused substantial environmental damage in Ecuador. Chevron alleged that Ecuadorian plaintiffs and their lawyers, Steven Donziger (“Donziger”) and Aaron and Daria Page (“Page”), fraudulently obtained the multi-billion-dollar judgment. To obtain evidence of the fraudulent behavior, Chevron sought discovery of documents in several American courts. Chevron made the discovery requests under 28 U.S.C. § 1782, which provides that federal district courts may order persons to give testimony or produce documents for use in a foreign or international proceeding. Specifically, Chevron sought to compel attorneys Donziger and Page to produce certain documents. The Second Circuit concluded that Donziger made an unsubstantiated privilege claim. Specifically, that court concluded that Donzinger had waived any privileges he may have had, and ordered him to produce the documents. Similarly, Page refused to turn over adequate responses, and Chevron asked the District Court of Maryland to compel production, arguing that Page had inappropriately asserted privilege over some of the responsive documents. The District Court of Maryland granted Chevron’s motion to compel.
After determining that the § 1782 order constituted a final order, the Fourth Circuit concluded that it had subject matter jurisdiction to hear an immediate appeal from the District Court’s order. The Court ultimately concluded that Page’s claims failed on the merits. First, the Court rejected Page’s argument that the Donzinger Waiver should not have defeated his privilege claims. The Court noted that the doctrine of comity compelled the Court to affirm the application of the waiver in the Maryland proceeding to the documents in Page’s possession because a contrary ruling would cause the courts to “step on each other’s toes.” Furthermore, the Court emphasized that the District Court had two other independent bases to permit discovery of the documents that Page had asserted privilege from disclosure: (1) Page’s involvement in the alleged fraudulent judgment invoked the crime-fraud exception to the asserted privilege; and, (2) various voluntary disclosures defeated the privileges asserted and effectively created a subject-matter waiver. Accordingly, the Court affirmed the District Court’s order.