PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-1382

In Re: HUGO GERARDO CAMACHO NARANJO; JAVIER PIAGUAJE 

PAYAGUAJE,

Appellants.

−−−−−−−−−−−−−−−−−−−−−−−−−−

CHEVRON CORPORATION,

Petitioner – Appellee,

v.

AARON MARR PAGE; DARIA FISHER PAGE,

Respondents – Appellants.

No. 13-2028

CHEVRON CORPORATION,

Petitioner – Appellee,

v.

AARON MARR PAGE,

Respondent – Appellant,

and

ECUADORIAN PLAINTIFFS,

Parties-in-Interest – Appellants.
2

Appeals from the United States District Court for the District 

of Maryland, at Greenbelt. Roger W. Titus, Senior District 

Judge. (8:11−cv−01942−RWT; 8:11−cv−00395−RWT)

Argued: March 18, 2014 Decided: September 24, 2014

Before NIEMEYER, KING, and AGEE, Circuit Judges.

No. 13-1382 dismissed; No. 13-2028 affirmed by published 

opinion. Judge Agee wrote the opinion, in which Judge Niemeyer 

and Judge King joined.

ARGUED: James Edward Tyrrell, Jr., PATTON BOGGS LLP, Newark, New 

Jersey, for Appellants. Thomas Henderson Dupree, Jr., GIBSON, 

DUNN & CRUTCHER LLP, Washington, D.C., for Appellee. ON BRIEF:

Christopher J. Gowen, THE GOWEN GROUP LAW OFFICE, PLLC, 

Washington, D.C., for Appellants Aaron Marr Page and Daria 

Fisher Page. Richard D. Carter, CARTER & COLEMAN, PLC, 

Alexandria, Virginia, for Appellants Hugo Gerardo Camacho 

Naranjo, Javier Piaguaje Payaguaje, Aaron Marr Page, Daria 

Fisher Page, and Parties-in-Interest - Appellants Ecuadorian 

Plaintiffs. Peter E. Seley, Claudia M. Barrett, GIBSON, DUNN & 

CRUTCHER LLP, Washington, D.C., for Appellee.
3

AGEE, Circuit Judge:

These consolidated appeals stem from a multi-billion-dollar 

judgment rendered in Ecuador against the Chevron Corporation. 

Chevron has sought discovery in several American courts to 

obtain evidence that the Ecuadorian plaintiffs and their lawyers

fraudulently obtained that judgment.

In the actions before us, Chevron sought documents from 

Aaron and Daria Page, two Maryland-based attorneys who assisted

Steven Donziger, the lead attorney representing the Ecuadorian 

plaintiffs. When Chevron subpoenaed documents relating to the 

Ecuadorian judgment from the Pages, they argued that some of 

those documents were privileged or protected from disclosure. 

The district court disagreed and ordered the Pages to produce 

the requested documents. The Pages, along with two of the 

original plaintiffs from the Ecuadorian suit, now appeal.

For the reasons that follow, we dismiss appeal number 13-

1382 and affirm the district court’s judgment in appeal number 

13-2028.

I.

“The story of the conflict between Chevron and the 

residents of the Lago Agrio region of the Ecuadorian Amazon must 

be among the most extensively told in the history of the 

American federal judiciary.” Chevron Corp. v. Naranjo, 667 F.3d 
4

232, 234 (2d Cir. 2012). We provide only small parts of that 

saga, which relate to matters in the two appeals now before us. 

A.

Beginning in 1967, a consortium including Texaco Petroleum 

Company (“TexPet”) and Ecuador’s state-owned oil company (now 

known as Petroecuador) managed oil-drilling operations in

Ecuador’s Oriente region. TexPet managed the consortium until 

1990, when it transferred operational control to Petroecuador.

TexPet sold its interests two years later. 

Shortly after TexPet’s withdrawal from Ecuador, a group of 

Ecuadorian plaintiffs sued TexPet’s parent corporation, Texaco, 

Inc., in the Southern District of New York in 1993. See Aguinda 

v. Texaco, Inc., 303 F.3d 470, 473 (2d Cir. 2002). The Aguinda

plaintiffs alleged that TexPet’s operations had “polluted the 

rain forests and rivers in Ecuador,” id., by “dump[ing] large 

quantities of toxic by-products of the drilling process into the 

local rivers, . . . burning them, dumping them directly into 

landfills, and spreading them on the local dirt roads,” Jota v. 

Texaco, Inc., 157 F.3d 153, 155 (2d Cir. 1998). 

While Aguinda was pending, TexPet signed a 1994 settlement 

agreement with the Government of Ecuador and Petroecuador (“the 

Settlement Agreement”). Under that agreement, TexPet agreed to 

perform environmental remediation work in the Oriente region. 

See In re Chevron Corp., 650 F.3d 276, 284 (3d Cir. 2011). In 
5

exchange, the Government of Ecuador and Petroecuador agreed to 

release TexPet and Texaco from claims relating to the 

consortium’s “environmental impact.” Id. In 1998, Petroecuador 

and the Government of Ecuador executed a release stating that 

TexPet had fulfilled its duty to remediate under the Settlement 

Agreement.

Meanwhile, “the [New York] court dismissed the Aguinda case 

in 2002 on forum non conveniens grounds,” id., and a group of 

largely the same Ecuadorian plaintiffs refiled their suit 

against Chevron in Ecuador in 2003.1 This suit became known as 

the “Lago Agrio” litigation, while the 47 plaintiffs in the suit 

are commonly termed “the Ecuadorian Plaintiffs” or, sometimes, 

the “Lago Agrio Plaintiffs.” Steven Donziger, an American 

attorney who had earlier been involved in Aguinda, assumed 

primary control as lead counsel in the Lago Agrio suit for the 

Ecuadorian Plaintiffs. 

In 2011, the Ecuadorian Plaintiffs obtained an $18.2 

billion judgment against Chevron in the Ecuadorian court.2

 The

 1 In 2001, Texaco merged with a subsidiary of Chevron, “with 

Texaco emerging as the surviving entity.” Chevron Corp. v. 

Donziger, 974 F. Supp. 2d 362, 391 (S.D.N.Y. 2014). “Chevron 

thereby became the indirect owner of all of Texaco’s common 

stock” through its subsidiary entity. Id.

2 Ecuador’s highest court later halved that figure, in 

effect ordering remittitur, but Chevron remains subject to a $9 

billion judgment.
6

judgment recited that TexPet had caused damage to the local 

environment, culture, and health; it further held that Chevron 

was responsible for that damage as Texaco’s successor-ininterest. Chevron has since exhausted its appeals in Ecuador, 

but the Constitutional Court of Ecuador has agreed to consider 

an extraordinary action seeking further review of the judgment.

B.

Several years after the Lago Agrio litigation was filed, 

Chevron initiated arbitration proceedings against the Government 

of Ecuador before the Permanent Court of Arbitration at The 

Hague, Netherlands. See Republic of Ecuador v. Hinchee, 741 

F.3d 1185, 1187 (11th Cir. 2013). Chevron alleged that the 

Ecuadorian government had violated the Ecuador-United States 

Bilateral Investment Treaty in several ways relating to the Lago 

Agrio litigation. First, Ecuador had not indemnified Chevron as

the Settlement Agreement required. Id. Second, Ecuador had 

failed to notify the Ecuadorian courts that Chevron was released

from liability in the Lago Agrio litigation under the Settlement 

Agreement. Id. And third, the Ecuadorian government had 

improperly interfered in the Lago Agrio proceedings on behalf of 

the plaintiffs. Id. The arbitration proceeding is ongoing at 

The Hague.
7

C.

The TexPet release aside, Chevron also contends that the 

Lago Agrio proceedings were a fraud that Donziger and others 

orchestrated. For instance, Chevron alleges that Donziger’s

litigation team ghostwrote expert reports from Richard Cabrera,

an “impartial,” court-appointed damages expert. Later, Donziger 

and his associates are alleged to have commissioned a series of 

“cleansing memos” –- purportedly independent reports buttressing 

or “cleansing” Cabrera’s findings that were actually based on 

the same fraudulent data. Similarly, Chevron contends that the

Ecuadorian Plaintiffs’ attorneys forged an expert report from

Dr. Charles Calmbacher, one of their own experts. Donziger and 

his team then purportedly bribed the Ecuadorian trial judge who 

authored the Lago Agrio judgment, offering $500,000 to the judge

in exchange for a favorable outcome. According to Chevron, 

Donziger and his associates then wrote the final judgment award, 

placing large verbatim portions of their own internal documents 

into the final opinion.3

Chevron maintains that the Pages, who worked for Donziger

during the Lago Agrio litigation, directly involved themselves

in this fraud. For example, Chevron contends that the Pages

 3 As noted below, after oral argument in this case, a 

district court in New York concluded that many of Chevron’s 

allegations against Donziger were true. See generally Chevron 

Corp. v. Donziger, 974 F. Supp. 2d 362 (S.D.N.Y. 2014).
8

developed certain extortion strategies meant to pressure Chevron 

into settling, such as instigating a bogus Securities and 

Exchange Commission investigation, accusing Chevron of 

committing genocide, and claiming that Chevron violated the 

Foreign Corrupt Practices Act. The Pages also allegedly

contrived an entirely unsubstantiated damages estimate. And 

most importantly, the Pages are said to have written (or at 

least helped to write) “the Draft Alegato” and “the Fusion 

Memo,” two internal documents that were then partially 

incorporated verbatim into the Ecuadorian court’s final 

judgment.

D.

To help establish its fraud and arbitration related claims, 

Chevron sought discovery in the United States. By one court’s 

count, Chevron brought “at least 25 [early] requests to obtain 

discovery from at least 30 different parties.” Chevron Corp., 

633 F.3d at 159. 

Chevron made these discovery requests under 28 U.S.C. 

§ 1782, which empowers federal district courts to order persons 

“to give testimony or produce documents for use in a proceeding 

in a foreign or international tribunal.”4 Intel Corp. v. 

 4 Any “interested person” may apply to a district court to 

obtain documents or testimony from another person “for use in a 

proceeding in a foreign or international tribunal.” 28 U.S.C. 

(Continued)
9

Advanced Micro Devices, Inc., 542 U.S. 241, 246 (2004) 

(quotation marks omitted). Chevron planned to use the discovery 

in the ongoing international arbitration proceedings and the 

pending Ecuadorian appellate proceedings.

In a § 1782 proceeding in the Southern District of New 

York, Chevron sought to compel Donziger to produce certain 

documents and submit to a deposition. Donziger moved to quash, 

arguing in part that the subpoenaed documents were privileged -–

particularly under the attorney-client and work-product 

privileges. Donziger, however, failed to file a privilege log

when he raised these objections. 

Because Donziger failed to file a privilege log, the New 

York district court determined on October 20, 2010 –- in a 

decision termed “the Donziger Waiver” -- that Donziger had 

waived any of the privileges that he claimed. See In re 

Application of Chevron Corp., 749 F. Supp. 2d 135, 140 (S.D.N.Y. 

2010). Nonetheless, the district court afforded Donziger a 

 

§ 1782(a). In deciding whether to grant the application and 

allow a subpoena to issue under the statute, the district court 

considers several factors identified in Intel Corp. v. Advanced 

Micro Devices, Inc., 542 U.S. 241, 246 (2004). This initial 

application process often occurs ex parte, though it did not in 

this case. See, e.g., In re Republic of Ecuador, No. C–10–80225 

MISC CRB (EMC), 2010 WL 3702427, at *2 (N.D. Cal. Sept. 15,

2010) (listing cases). Once the application is granted and the 

subpoena is issued, the subpoena target can move to quash it. 

Id.
10

chance to cure his waiver by filing a privilege log by a courtspecified deadline. Id. at 140 n.17. Donziger failed to do so.

In a subsequent decision on Donziger’s motion for 

reconsideration, the court then reaffirmed that “any claims of 

privilege with respect to the documents sought by the subpoena 

were waived.” In re Chevron Corp., 749 F. Supp. 2d 170, 182

(S.D.N.Y. 2010). The court ordered Donziger to produce “each 

and every document responsive to the subpoenas (irrespective of

whether any privilege or other protection against disclosure has 

been or hereafter is or may be claimed).” Id. at 188. In so 

holding, the court stressed that Donziger had deliberately 

delayed the § 1782 proceeding with unsubstantiated privilege 

claims as a litigation strategy. See, e.g., id. at 185 (“[T]he 

failure to submit a privilege log . . . was a deliberate attempt 

to structure the response to the subpoenas in a way that would 

create the maximum possibility for delay.”). 

The Second Circuit affirmed the Donziger Waiver, 

“substantially for the reasons stated by the [d]istrict 

[c]ourt.” Lago Agrio Plaintiffs v. Chevron Corp., 409 F. App’x 

393, 395 (2d Cir. 2010). It further commended the “exemplary 

manner in which the able District Judge ha[d] discharged his 

duties.” Id.
11

E.

Chevron later sued Donziger, the Ecuadorian Plaintiffs, and 

others in the Southern District of New York in February 2011. 

Chevron’s nine-count complaint asserted claims under the

Racketeer Influenced and Corrupt Organizations (“RICO”) Act and

certain New York statutes. 

After a bench trial, Chevron obtained a favorable judgment. 

The district court concluded that Donziger “and the Ecuadorian 

lawyers he led [had] corrupted the Lago Agrio case” in a variety 

of ways, including fabricating evidence, coercing judges, and 

bribing judicial officials. Donziger, 974 F. Supp. 2d at 384. 

Accordingly, the district court enjoined Donziger and the other 

defendants in the New York action from enforcing the Lago Agrio 

judgment in the United States. Donziger, his law firm, and two 

of the Ecuadorian Plaintiffs have appealed that decision to the 

Second Circuit; that appeal remains pending.5

F.

With the above background in mind, we move to the two 

appeals before us, which involve separate sets of subpoenas: one 

set issued under § 1782 (in connection with the Hague 

arbitration and Ecuadorian appellate proceedings) and the other 

 5 The district court denied their motion to stay pending 

appeal, and no stay was requested from the Second Circuit.
12

under Federal Rule of Civil Procedure 45 (in connection with 

Chevron’s New York suit).

1.

Pursuant to Rule 45, Chevron issued a pair of subpoenas to 

Aaron and Daria Page on May 20, 2011 in the District of 

Maryland.6 The subpoenas, issued here as an ancillary proceeding 

related to Chevron’s lawsuit in the Southern District of New 

York, each included 33 different document requests relating to 

the Lago Agrio litigation and its surrounding circumstances.

Although the Pages provided responses, objections, and some 

partial productions in June 2011, Chevron contended that these

responses were inadequate. Chevron then moved in the District 

of Maryland to compel production, arguing that the Pages had 

inappropriately asserted privilege –- primarily attorney workproduct privilege -- over some of the responsive documents. The 

 6 Under former Rule 45(a)(2), “a subpoena for production or 

inspection [was to] issue from the court for the district in 

which the production or inspection is to be made.” Natural Gas 

Pipeline Co. of Am. v. Energy Gathering, Inc., 2 F.3d 1397, 1406 

(5th Cir. 1993). Accordingly, “a federal court sitting in one 

district [could not] issue a subpoena duces tecum to a non-party 

for the production of documents located in another district.” 

Id. For that reason, Chevron came to the District of Maryland 

to obtain the Pages’ Maryland-based documents. The Federal 

Rules of Civil Procedure were amended in December 2013 so that 

all subpoenas now issue from the court where the underlying 

action is pending. See Fed. R. Civ. P. 45(a)(2) (“A subpoena 

must issue from the court where the action is pending.”).
13

Pages and two Ecuadorian Plaintiffs, Hugo Gerardo Camacho 

Naranjo and Javier Piaguaje Payaguaje, opposed Chevron’s motion.

On August 31, 2011, a Maryland magistrate judge granted 

Chevron’s motion to compel, concluding that the Pages’ asserted

privileges did not apply for several reasons. Of particular 

relevance, the magistrate judge determined that the Donziger 

Waiver acted to waive any privileges that applied to the Pages’

documents.7

 The Donziger Waiver reached any “legal work and 

privilege claims associated with Mr. Donziger,” and it made “no 

difference” that the Pages (rather than Donziger) physically 

possessed the documents given that they all worked on the same 

legal team for the same clients in the same proceedings. (J.A.1 

1584-85.)8 

 7 The magistrate judge identified two other bases for its 

ruling. First, the Ecuadorian Plaintiffs’ attorneys had waived 

any applicable privileges by making voluntary disclosures to 

third parties, including Cabrera. And second, the crime-fraud 

exception defeated any privileges or protections that the Pages 

claimed. According to the magistrate judge, Chevron presented 

sufficient evidence of fraud “if for no other reason than [that] 

. . . documents co-authored by the Pages . . . [had] found 

[their] way into the decision in [the] Ecuadorian court.” 

(J.A.1 1591.) In addition, “there [wa]s a lot of other 

information that [Chevron] ha[d] provided to support the notion 

that there [was] fraudulent activity.” (J.A.1 1592.)

8 We cite the joint appendix filed in appeal number 13-1382 

as “J.A.1” and the joint appendix filed in appeal number 13-2028 

as “J.A.2.”
14

Thus, in September 2011, the Pages produced the documents 

over which they had asserted privilege –- but the production 

proved temporary. On September 20, 2011, for reasons not 

relevant here, the Second Circuit effectively stayed discovery 

in the New York action.9 A few days later, the Maryland district 

court responded by staying the Maryland magistrate judge’s

discovery order and administratively closing the Maryland Rule 

45 discovery proceeding. It further ordered Chevron to return 

or destroy the Pages’ documents.

However, several months after discovery in the New York 

proceeding was completely stayed, the New York district court 

lifted its stay and permitted discovery to go forward on all 

remaining counts in that case. In response, in January 2013, 

the Maryland district court lifted its own stay in the Rule 45 

proceeding and instructed Chevron to respond to objections to 

the magistrate judge’s decision, which the Pages, Naranjo, and 

Payaguaje had previously filed. One month later, the district 

 9 After issuing a preliminary injunction order pertaining to 

count nine of Chevron’s complaint, the New York district court 

on April 15, 2011 bifurcated that count from the remaining 

counts and stayed all discovery except discovery relevant to 

count nine. Two weeks after that, on May 31, the New York 

district court formally severed count nine into a separate 

action, which the parties call Chevron v. Salazar. On September 

20, 2011, the Second Circuit stayed discovery on count nine. The 

combined effect of these orders was to stay all discovery in the 

New York proceedings at that time.
15

court overruled the objections and ordered the Pages to produce 

the documents again.

The Pages, Naranjo, and Payaguaje all timely appealed.10

2.

In November 2011, while discovery pertaining to Chevron’s 

New York suit was stayed, Chevron filed a § 1782 application in 

the District of Maryland again seeking discovery from the Pages. 

As it did in its other § 1782 applications, Chevron explained 

that the discovery was needed as part of its Ecuadorian appeals 

and the arbitration proceeding at The Hague. The application 

included all 33 of the requests included in the Pages’ Rule 45

subpoenas.11 The Pages, joined by Naranjo and Payaguaje, again 

asserted privileges from disclosure as to some of the responsive

documents.

In January 2013, the magistrate judge ordered the Pages to 

turn over the documents that they possessed. As he did in the

prior Rule 45 decision, the magistrate judge cited alternate, 

independent grounds, including the Donziger Waiver, in 

 10 Chevron later asked the district court to hold Aaron Page 

in contempt, contending that Page continued to fail to produce 

responsive documents. The magistrate judge ordered Page to make 

further productions but did not hold him in contempt.

11 The parties treat the § 1782 subpoenas as equal in scope 

to the Rule 45 subpoenas. (See, e.g., Opening Br. [13-2028] 13–

14 (comparing scope of subpoenas).)
16

determining that any privileges applicable to Page’s documents 

had been waived.12

Over objection, the district court affirmed the magistrate 

judge’s decision in a July 16, 2013 order. Aaron Page, Naranjo, 

and Payaguaje timely appealed.13

II.

To address the merits of these appeals, we must first be 

assured that we have jurisdiction to hear them. See United 

States v. Wilson, 699 F.3d 789, 793 (4th Cir. 2012) (“[S]ubject 

matter jurisdiction must . . . be decided before any other 

matter.”). Both appeals present complicated questions 

concerning our jurisdiction and involve unique procedural 

postures. They also could stand in tension with the rule that 

“[d]iscovery orders are inherently interlocutory and typically 

 12 Once again, the magistrate judge relied on two other 

separate and alternate bases: the waiver through disclosure to 

Cabrera and the crime-fraud exception. The magistrate judge 

also expounded upon his fraud findings, concluding that “Chevron 

ha[d] shown to anyone with common sense that [the Ecuadorian 

judgment was] a blatant cut and paste exercise.” (J.A.2 2632.) 

Furthermore, Chevron had provided sufficient evidence to void 

any claimed privilege of three other instances of fraud: the 

forged Calmbacher expert report, the ghostwritten Cabrera 

“impartial” expert report, and the cleansing memos.

13 Chevron moved to hold Aaron Page in contempt in the 

§ 1782 proceeding as well. Here again, the magistrate judge 

ordered Page to make further productions but did not hold him in 

contempt.
17

not appealable.” Nicholas v. Wyndham Int’l, Inc., 373 F.3d 537, 

541 (4th Cir. 2004) (quotation marks omitted). 

Having considered our subject matter jurisdiction, we

conclude that we lack jurisdiction in one appeal, number 13-1382

(the Rule 45 proceeding), but have jurisdiction in the other, 

number 13-2028 (the § 1782 proceeding).

A.

We first examine the appeal from the district court’s 

decision regarding Chevron’s Rule 45 subpoenas. Plainly, we are 

the court that must hear any appeal from the Maryland district 

court’s decisions as to these subpoenas. Although the Rule 45 

subpoenas issued in connection with a proceeding in the Second 

Circuit, that Court of Appeals does not have jurisdiction over 

the district courts in the Fourth Circuit. Only we may review a

discovery order entered in the District of Maryland. See 28 

U.S.C. § 1294(1) (explaining that appeals from district courts 

generally must be taken “to the court of appeals for the circuit 

embracing the district”).

Nonetheless, we may “review only final decisions of 

district courts.” Noohi v. Toll Bros., Inc., 708 F.3d 599, 604 

(4th Cir. 2013) (quotation marks and alteration omitted). Final 

orders are “those that end the litigation on the merits and 

leave nothing for the court to do but execute the judgment.” 

McCook Metals LLC v. Alcoa, Inc., 249 F.3d 330, 334 (4th Cir. 
18

2001) (quotation marks and alteration omitted). This “pragmatic 

rule” carries out the “twin purposes” of “avoiding the 

enfeebling of judicial administration that comes with undue 

delay . . . and preserving the primacy of the district court as 

the arbiter of the proceedings before it.” GO Computer, Inc. v. 

Microsoft Corp., 508 F.3d 170, 176 (4th Cir. 2007) (quotation 

marks and alteration omitted). 

Discovery decisions “bespeak their own interlocutory 

character,” as they constitute “only a stage in the litigation 

and almost invariably involve no determination of the 

substantive rights involved in the action.” MDK, Inc. v. Mike’s 

Train House, Inc., 27 F.3d 116, 119 (4th Cir. 1994). Ancillary 

discovery proceedings granting discovery are no different. We 

have often (and perhaps usually) declined to permit immediate 

appeals in such actions, particularly where the party from whom 

discovery is sought is not a party to the primary underlying 

action. See Nicholas, 373 F.3d at 541 (“We have held that the 

collateral order doctrine does not authorize appeal from an 

order granting discovery from a nonparty in an ancillary 

proceeding.” (emphasis in original)); MDK, Inc., 27 F.3d at 120–

22 (dismissing appeal for lack of jurisdiction where non-party 

sought review of order that granted discovery in ancillary 

proceeding related to out-of-circuit underlying proceeding). 

This is just such an ancillary action, as Chevron seeks its Rule 
19

45 discovery from two non-parties -- the Pages -- in aid of an 

underlying action in the Southern District of New York. Our 

cases hold that a non-party who wishes to appeal from an order 

granting discovery should “resist [the discovery] order, be 

cited for contempt, and then challenge the propriety of the 

discovery order in the course of appealing the contempt 

citation.” MDK, Inc., 27 F.3d at 121. The Pages, however, have 

not taken that route.

Instead, the Pages, Naranjo, and Payaguaje argue that we 

should find jurisdiction under the so-called Perlman exception, 

which has sometimes been applied to permit an appeal from “a 

discovery order directed at a disinterested third party.”14 

 14 There is a substantial question as to whether Perlman is 

applicable here –- for several reasons. For one, we have never 

explicitly held that Perlman applies to ancillary proceedings. 

The parties have not cited a particular case applying Perlman in 

an appeal from an ancillary proceeding involving a non-party, 

and we know of none. For another, Perlman may no longer provide

a viable rule in light of the Supreme Court’s more recent 

decision in Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 

103 (2009). In that case, the Supreme Court held that 

“disclosure orders adverse to the attorney-client privilege”

were not immediately appealable under the collateral order 

doctrine because “[p]ostjudgment appeals, together with other 

review mechanisms, suffice to protect [the privilege].” 558 

U.S. at 103. Some courts have suggested that Mohawk’s limited 

view of privilege-related appeal rights is inconsistent with 

Perlman. See United States v. Copar Pumice Co., Inc., 714 F.3d 

1197, 1207–08 (10th Cir. 2013) (describing cases that note 

tension between Mohawk and Perlman). Mohawk might be read to say 

that interlocutory appeals concerning the discovery of 

privileged documents should not be permitted when the privilegeholder has other means to protect his privilege rights. See

(Continued)
20

Church of Scientology of Cal. v. United States, 506 U.S. 9, 18 

n.11 (1992) (citing Perlman v. United States, 247 U.S. 7 

(1918)). That type of discovery order is “immediately 

appealable” because “the third party presumably lacks a 

sufficient stake in the proceeding to risk contempt by refusing 

compliance.” Id.; see also In re Pruett, 133 F.3d 275, 281 n.10

(4th Cir. 1997) (explaining that an uninvolved third party has

“little or no incentive to risk contempt” by resisting a 

discovery order); Eastland v. U.S. Serviceman’s Fund, 421 U.S. 

491, 514 (1975) (Marshall, J., concurring) (stating that a 

“neutral third party” could not be expected to risk contempt). 

Assuming -- but not deciding -- that the Perlman exception 

could be applied here, it nonetheless fails to establish subject 

 

Mohawk, 558 U.S. at 109, 113 (noting that post-judgment appeals, 

petitions for writs of mandamus, and motions seeking 

certification under Federal Rule of Civil Procedure 54(b) or 28 

U.S.C. § 1292(b) mitigate the need to permit an interlocutory 

appeal). The Pages did not pursue a mandamus petition or a 

certification motion. Lastly, we note that the Pages have 

already turned over their privileged documents. Yet “[t]he 

premise of an interlocutory appeal in a case such as Perlman . . 

. is that the holder of the information has yet to comply with 

the order. Interlocutory review permits a decision before the 

cat is out of the bag.” Wilson v. O’Brien, 621 F.3d 641, 643 

(7th Cir. 2010). It strikes us as odd, then, that the 

appellants would invoke an exception principally meant to avoid 

“letting the cat out of the bag” when the Pages have already 

done just that. In the end, we need not definitively resolve 

these doubts because, as explained below, we find that Perlman’s 

requirements have not been met in this case –- even assuming 

that the exception may be invoked in a case like this one.
21

matter jurisdiction because the appellants do not meet its 

requirements. 

The Pages may not rely upon Perlman, as Perlman does not 

permit an appeal by the subpoena-target. Rather, Perlman has 

come to mean that a privilege-holder may step in and appeal when 

a disinterested subpoena target is about to relinquish the 

privileged documents. See, e.g., United States v. Under Seal, 

748 F.2d 871, 873 n.2 (4th Cir. 1984) (“[W]hen the one who files 

the motion to quash, or intervenes, is not the person to whom 

the subpoena is directed, and the movant or intervenor claims 

that production of the subpoenaed documents would violate his 

attorney-client privilege, the movant or intervenor may 

immediately appeal.”). In other words, Perlman has permitted a 

privilege-holder to move into the appeal in the subpoenatarget’s place. See, e.g., In re Air Crash at Belle Harbor, 

N.Y. on Nov. 12, 2001, 490 F.3d 99, 106 (2d Cir. 2007) (“[T]he 

Perlman exception is relevant only to appeals brought by the 

holder of a privilege where the disputed subpoena is directed at 

someone else.” (emphasis in original)); Application of Am. 

Tobacco Co., 866 F.2d 552, 556 (2d Cir. 1989) (“Perlman may not 

be extended to permit the party in possession of the subpoenaed 

documents to appeal prior to contempt simply because other 

persons might have been able to do so.”). Conversely, subpoenatargets in an ancillary proceeding, like the Pages, must follow 
22

the path that we have already described: they “must either obey 

its commands or refuse to do so and contest the validity of the 

subpoena if [they are] subsequently cited for contempt on 

account of [their] failure to obey.” United States v. Ryan, 402 

U.S. 530, 532 (1971).

Although the Pages may not invoke Perlman, that does not 

resolve whether the ostensive privilege-holders, Naranjo and 

Payaguaje, may use the doctrine to establish jurisdiction for 

their appeal. After all, privilege-holders may invoke the 

Perlman exception if the subpoena-targets are truly 

disinterested. On the other hand, Naranjo and Payaguaje cannot 

invoke Perlman as a jurisdictional ground for their appeal if 

the Pages are not truly disinterested.

We have deemed attorneys disinterested in some prior cases. 

See, e.g., In re Grand Jury Subpoena, 341 F.3d 331, 334 n.2 (4th 

Cir. 2003); In re Grand Jury Subpoena, 836 F.2d 1468, 1470 n.2 

(4th Cir. 1988). The appellants suggest that we have adopted a 

blanket rule that “counsel –- whether current or former –- [are] 

indeed within the Perlman sphere.”15 (Appellants’ Supp. Br. 3.) 

 15 The opinion that they cite in support, In re Special 

Grand Jury No. 81-1 (Harvey), 676 F.2d 1005, 1008 (4th Cir. 

1982), was later withdrawn, In re Harvey, 697 F.2d 112, 112 (4th 

Cir. 1982). “Once vacated, Harvey lost precedential value 

within this circuit.” In re Grand Jury Matter, 926 F.2d 348, 

350 (4th Cir. 1991). At argument, counsel for the Ecuadorian 

Plaintiffs also invoked Potomac Electric Power Co. v. Leavitt, 

(Continued)
23

We disagree; our cases do not take that kind of categorical 

approach. And in fact, we would very likely err in doing so, as

lawyers and their clients often share substantial interests that 

sometimes keep the attorneys from being truly “disinterested.” 

Church of Scientology, 506 U.S. at 18 n.11. “[A]ttorneys assume 

an ethical obligation to serve their clients’ interests[,] . . . 

[and] [t]he effective congruence of interests between clients 

and attorneys counsels against treating attorneys like other 

nonparties for purposes of appeal.” Cunningham v. Hamilton 

Cnty., 527 U.S. 198, 207 (1999). 

On this record, we see at least three reasons to conclude 

that the Pages are not “disinterested” in the Perlman sense. 

First, the Pages have asserted their own “privilege,”16 

arguing that the subpoenaed documents are protected work 

product. The attorney, however, holds the work product 

privilege along with the client. See, e.g., Solis v. Food 

 

142 F. App’x 154, 157 n.5 (4th Cir. 2005), but that opinion is 

unpublished and of no precedential weight.

16 We recognize that the work product doctrine is not a 

privilege but rather “a qualified immunity protecting from 

discovery documents and tangible things prepared by a party or 

his representative in anticipation of litigation.” In re 

Perrigo Co., 128 F.3d 430, 437 (6th Cir. 1997). We refer to the 

privilege only as a shorthand way of referring to the doctrine’s 

protection –- and because parties (and indeed, this Court) so 

often refer to the doctrine as a “privilege.”
24

Emp’rs Labor Relations Ass’n, 644 F.3d 221, 231 (4th Cir. 2011). 

“Where the petitioner asserts its own interests in the work 

product, it has the requisite incentives to risk contempt.” In 

re Flat Glass Antitrust Litig., 288 F.3d 83, 90 n.9 (3d Cir. 

2002) (quotation marks omitted).17 In other words, the Pages

have put their own interests in play, so it is reasonable to

expect the Pages to defend them.

Second, the Pages have evidenced a willingness to face a 

contempt sanction. A party might be entitled to invoke Perlman

if that party “is able to prove that the subpoenaed party will 

comply with an order enforcing the subpoena . . . regardless of 

whether the subpoenaed witness is a current attorney, is a 

former attorney, or has some other relationship with the 

interested party.” In re Grand Jury Proceedings, 616 F.3d 1172, 

1180 (10th Cir. 2010). But the appellants here have not 

tendered proof of that nature. In fact, Aaron Page has recently

litigated a contempt sanction in the district court in this 

proceeding, which directly arose from his failure to comply with 

Chevron’s subpoena. We view this contempt contest as one of the 

 17 As then-Judge (now Justice) Ginsburg explained, “the work 

product doctrine protects interests held by both the attorney 

and the client[,] . . . [so] counsel has a double incentive to 

preserve appellate review of the work product claim.” In re 

Sealed Case, 655 F.2d 1298, 1301 (D.C. Cir. 1981); accord In re 

Sealed Case, 141 F.3d 337, 340 (D.C. Cir. 1998).
25

surest signs that the Pages will not simply produce all the 

documents to avoid a sanction.

And lastly, we cannot ignore this case’s broader context. 

The subpoenaed party is more likely to risk contempt where “he 

has either a particularly close relationship to the putative 

privilege-holder or a personal interest in nondisclosure of the 

material.” In re Grand Jury Proceedings, 832 F.2d 554, 558 

(11th Cir. 1987). Here, both circumstances exist. The Pages 

are not detached professionals who rendered disinterested

services to the Ecuadorian Plaintiffs. Quite the contrary: they 

are alleged to have proactively assisted in a broad fraudulent 

effort engineered by their direct employer.18 In fact, given 

that the lawyers are alleged to have committed greater misdeeds 

than any attributed to the clients, the Pages might have a more

substantial interest in keeping the documents confidential than 

do the Ecuadorian Plaintiffs.19 These circumstances alone would 

prevent us from calling the Pages “disinterested.” Cf. In re 

 18 Aaron Page remains associated with Donziger, as evidenced 

by his involvement in the underlying case in New York. See

Chevron Corp. v. Donziger, No. 11 Civ. 0691(LAK), 2013 WL 

4804192, at *8 (S.D.N.Y. Sept. 9, 2013) (explaining that 

Donziger “has received additional [legal] assistance . . . 

[from] Aaron Marr Page”).

19 The Pages may also have a direct and significant

pecuniary interest in thwarting Chevron’s efforts. Their law

former firm stands to receive a contingency fee in the hundreds 

of millions of dollars if the Lago Agrio judgment is ever 

collected. 
26

Grand Jury Subpoena, 190 F.3d 375, 385 (5th Cir. 1999) (refusing 

to find a subpoenaed person “disinterested” where the person was 

a potential target of the underlying action); In re Klein, 776 

F.2d 628, 630 (7th Cir. 1985) (“[F]our of the [subpoenaed] 

lawyers are suspects themselves, and they have every reason to 

resist disclosure.”).

Because the Pages are not disinterested, Naranjo and 

Payaguaje cannot rely upon Perlman to establish jurisdiction to 

hear their appeal from the district court’s Rule 45 order.

In sum, if Perlman applies at all, it applies only when 

there exists “a real possibility the third party will not risk 

being found in contempt and will turn over the subpoenaed 

documents.” United States v. Jones, 696 F.2d 1069, 1071 (4th 

Cir. 1982). No such possibility exists here. Therefore, the 

Perlman exception does not apply in this case. Accordingly, we 

lack subject matter jurisdiction to hear the appeal from the 

district court’s order on Chevron’s Rule 45 subpoenas because 

the finality rule prohibits such an interlocutory appeal. 

B.

We next consider our jurisdiction in the appeal from the 

district court’s decision on Chevron’s § 1782 application. Here 

again, we are the only court that could properly hear an appeal 

from the Maryland district court’s decision. The only real 
27

question is whether the decision below is considered final,

allowing us to hear it.

We have not previously considered whether a decision on a 

§ 1782 application is immediately appealable. But on at least 

one prior occasion, the Court has reviewed an order granting 

discovery under that statute without the need for a contempt 

sanction. See generally In re Letter of Request from 

Amtsgericht Ingolstadt, Fed. Republic of Germany, 82 F.3d 590 

(4th Cir. 1996). “[W]hile we are not bound by previous 

exercises of jurisdiction in cases in which our power to act was 

not questioned but was passed sub silentio, neither should we 

disregard the implications of an exercise of judicial authority 

assumed to be proper in previous cases.” Washlefske v. Winston, 

234 F.3d 179, 183 (4th Cir. 2000) (quotation marks omitted).

Every other circuit court that has considered the

jurisdictional issue presented here has found subject matter 

jurisdiction to hear an immediate appeal from an order on a 

§ 1782 application. See, e.g., Heraeus Kulzer, GmbH v. Biomet, 

Inc., 633 F.3d 591, 593 (7th Cir. 2011); In re Premises Located 

at 840 140th Ave. NE, Bellevue, Wash., 634 F.3d 557, 566 (9th 

Cir. 2011); Bayer AG v. Betachem, Inc., 173 F.3d 188, 189 n.1 

(3d Cir. 1999). In addition, at least two other circuit courts 

have found jurisdiction to hear § 1782 appeals related to the

very same dispute before us. See In re Application of the 
28

Republic of Ecuador, 735 F.3d 1179, 1183 (10th Cir. 2013)

(holding that the district court’s decision on Ecuador’s § 1782 

application was a final, appealable decision); Chevron Corp. v. 

Berlinger, 629 F.3d 297, 306 (2d Cir. 2011) (same as to § 1782

application filed by Chevron).

The reasoning and conclusions in this unanimous body of 

case law are convincing. In as much as § 1782 applications aid 

foreign proceedings, we are not concerned with any underlying 

merits proceeding in the United States. Lacking an “underlying”

proceeding, many of the concerns that make us reluctant to 

review discovery orders on an interlocutory basis disappear. 

See United States v. Sciarra, 851 F.2d 621, 628 (3d Cir. 1988) 

(“[T]he phrase ‘interlocutory’ necessarily implies some 

underlying proceeding from which the challenged discovery is an 

‘off-shoot.’ The many cases that characterize discovery orders 

as interlocutory become inapposite, therefore, when there simply 

is no underlying suit to disrupt. The rationale for requiring a 

witness to incur a contempt order as a jurisdictional predicate 

similarly breaks down when there is no central proceeding from 

which he must be severed.”). 

Because the § 1782 order is a sufficiently final order, we

have subject matter jurisdiction to hear an immediate appeal 

from a district court’s order granting discovery under that 

statute. We accordingly proceed to the merits of that appeal.
29

III.

“Section 1782 affords the district courts wide discretion 

in responding to requests for assistance in proceedings before 

foreign tribunals.” Al Fayed v. United States, 210 F.3d 421, 

424 (4th Cir. 2000) (quotation marks omitted). On appeal, we

generally review a district court’s order under that statute

using the familiar abuse-of-discretion standard. Amtsgericht 

Ingolstadt, 82 F.3d at 592. “A district court abuses its 

discretion by resting its decision on a clearly erroneous 

finding of a material fact, or by misapprehending the law with 

respect to underlying issues in litigation.” Scott v. Family 

Dollar Stores, Inc., 733 F.3d 105, 112 (4th Cir. 2013).

A.

Page20 first argues that the magistrate judge determined 

that his claimed privileges had been waived before the 

privilege-related issues were ripe. Page says that it was too 

early to decide these issues because (1) the subpoena had not 

yet issued and (2) neither the Pages nor the Ecuadorian 

Plaintiffs had yet raised any privilege objections. 

 20 For simplicity’s sake, we refer only to Aaron Page when 

discussing the appellants’ challenges to Chevron’s § 1782 

application. The Ecuadorian Plaintiffs join Page in all his 

arguments, and Daria Page did not appeal in appeal number 13-

2028.
30

“Ripeness concerns the appropriate timing of judicial 

intervention.” Cooksey v. Futrell, 721 F.3d 226, 240 (4th Cir. 

2013) (quotation marks and internal marks omitted). 

“Traditionally, we consider (1) the fitness of the issues for 

judicial decision and (2) the hardship to the parties of 

withholding court consideration.” Id. (quotation marks 

omitted). “A case is fit for adjudication when the action in 

controversy is final and not dependent on future uncertainties”; 

conversely, a claim is not ripe when “it rests upon contingent 

future events that may not occur as anticipated.” Scroggins v. 

Lee’s Crossing Homeowners Ass’n, 718 F.3d 262, 270 (4th Cir.

2013). In addition, a fit case would ideally present “purely 

legal” issues. Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 

2006). The hardship prong, on the other hand, “is measured by 

the immediacy of the threat and the burden imposed on the 

[parties].” Id.

Considering fitness and hardship here, we find that the 

issues were ripe. The issues presented were largely legal ones 

that did not depend on future uncertainties. In effect, Page 

argued as much at the application stage, saying that his 

privilege claims defeated Chevron’s right to issue the subpoena. 

(See, e,g., J.A.2 803 (“[T]he mere fact that Chevron’s proposed 

subpoena impermissibly and primarily targets discovery of 

privileged information and other client confidences -- standing 
31

alone -- should lead this Court to exercise its discretion to 

deny in toto Chevron’s § 1782 application.”).) As for hardship, 

Chevron demonstrated a need for the discovery in relation to the 

ongoing proceedings in Ecuador and at The Hague.

Page asserts that the magistrate judge should have waited 

for him to produce a privilege log before deciding the 

privileges issues. We disagree. To begin with, Page’s present 

argument strikes us as somewhat disingenuous given that he 

pressed the magistrate judge to decide the privilege issues 

without tendering a privilege log. Moreover, the issues were 

adequately concrete and fully briefed, so the magistrate judge 

was free to decide them. The § 1782 application sought 

documents essentially identical to those requested in the Rule 

45 subpoenas that the same magistrate judge had earlier 

considered. (See, e.g., Opening Br. [13-2028] 13–14 (noting 

parallels between the Rule 45 subpoenas and the § 1782 

applications).) The magistrate judge thus had the privilege log 

from that prior proceeding to aid his decision. The parties and 

the court below well understood what issues were at play, and 

the court justifiably refused to delay its decision on those 

well-defined questions.

B.

Next, Page contends that the Donziger Waiver should not 

have defeated his privilege claims and insists that the 
32

magistrate judge inappropriately extended the waiver across 

multiple proceedings. Page bore the burden as to this argument. 

See United States v. Bolander, 722 F.3d 199, 222 (4th Cir. 2013) 

(“The burden rests on the person invoking the privilege to 

demonstrate its applicability, including the absence of any 

waiver of it.”).

At the end of the day, we need not parse each point that 

Page raises, as we conclude that the Donziger Waiver’s 

application in the Maryland court served the interests of 

comity.

The doctrine of comity instructs federal judges to avoid

“stepping on each other’s toes when parallel suits are pending 

in different courts.” Smentek v. Dart, 683 F.3d 373, 376 (7th 

Cir. 2012); see also W. Gulf Mar. Ass’n v. ILA Deep Seal Local 

24, 751 F.2d 721, 728 (5th Cir. 1985) (explaining that comity 

requires federal courts to “exercise care to avoid interference 

with each other’s affairs”). We have invoked the doctrine, for 

instance, in explaining that a district court was precluded from 

issuing an injunction that conflicted with another district 

court’s decision in the same matter. See Ulmet v. United 

States, 888 F.2d 1028, 1031 (4th Cir. 1989). The Supreme Court, 

too, has called upon “federal courts to apply principles of 

comity” when faced with class certification decisions 

“addressing a common dispute.” Smith v. Bayer Corp., 131 S. Ct. 
33

2368, 2382 (2011). By applying comity in these and similar 

circumstances, courts achieve at least two positive results:

avoiding “an unnecessary burden on the federal judiciary” and 

preventing “the embarrassment of conflicting judgments.” Church 

of Scientology of Cal. v. U.S. Dep’t of Army, 611 F.2d 738, 750 

(9th Cir. 1979); see also Mast, Foos & Co. v. Stover Mfg. Co., 

177 U.S. 485, 488 (1900) (explaining that comity should 

“secur[e] uniformity of decision[] and discourag[e] repeated 

litigation of the same question”). 

Were we to decline to apply the Donziger Waiver in this 

proceeding, we would significantly undermine the New York 

court’s decisions and potentially spawn conflicting judgments as 

to the very same subject matter. Donziger was already required 

in New York to produce all the documents sought here. Not even 

Page contests that fact. Other than questioning the period to 

which the Donziger Waiver would apply, Page does not challenge 

the lower court’s reading of the waiver’s scope at all.21 Page 

concedes, for instance, that Donziger was required to produce 

documents in his associates’ possession, including those now 

 21 The magistrate judge found that all the documents sought 

from Page would have been within the scope of the Donziger 

Waiver and should have been produced in the New York proceeding. 

And the magistrate judge understood Page to have conceded the 

issue. (See, e.g., J.A.2 2625-26 (“Mr. Page does not dispute 

that his documents should have been produced in Mr. Donziger’s 

production.”).) Page has not challenged either finding.
34

held by Page. And Page has never identified any specific 

document that he was required to produce by the Maryland court 

that was not already subject to production by Donziger in New 

York. Page nevertheless invites us to deprive Chevron of

documents to which it is admittedly entitled under the New York 

court’s decisions, all without ever coming to grips with the 

fundamental inconsistencies that would result. We cannot accept 

that invitation, as § 1782 is “a federal statute construed in a 

federal court system” and the statute’s application “must 

ultimately be uniform.” Republic of Ecuador v. Connor, 708 F.3d 

651, 657 (5th Cir. 2013).

What is more, the Second Circuit –- a co-equal circuit 

court -- has affirmed the Donziger Waiver, deciding the same 

fundamental issue before us today “[a]fter an independent review 

of the record.” Lago Agrio Plaintiffs, 409 F. App’x at 395. 

Even in less intimately related cases, we often consider whether 

our decisions fall in line with those of our sister circuits. 

See, e.g., Nat'l Treasury Emps. Union v. Fed. Lab. Relations 

Auth., 737 F.3d 273, 280 (4th Cir. 2013); In re Frushour, 433 

F.3d 393 (4th Cir. 2005). It seems all the more appropriate to 

do so here, where the parties are re-litigating an issue 

pertaining to the same documents and affecting the same parties 

that were before the Second Circuit. After all, “[c]ourts in 

[one circuit] should not grant relief that would cause 
35

substantial interference with the established judicial 

pronouncements of such sister circuits.” United States v. AMC 

Entm’t, Inc., 549 F.3d 760, 773 (9th Cir. 2008); cf. Colby v. 

J.C. Penney Co., Inc., 811 F.2d 1119, 1124 (7th Cir. 1987) (“A 

posture somewhere in between some deference and complete 

deference is proper when cases in different circuits challenge 

the same practice of the same defendant.”).

To be sure, under the terms of § 1782, Chevron was required 

to file a separate action when it determined to seek the

documents from Page. But that ministerial step should not alter

the ultimate obligation to produce the same documents already 

under a production order. “The same dispute may . . . be framed 

in formally separate actions . . . [but] later courts tend to 

adhere to earlier courts for the same reasons that inform 

general law-of-the-case practices.” See, e.g., 18B Charles Alan 

Wright et al., Federal Practice and Procedure § 4478.4 (2d ed. 

2014 supp.). That principle applies well here.

Were we to find otherwise, Donziger could escape his

disclosure obligations because of the geographic happenstance of

where the responsive documents otherwise under his control were 

found. Indeed, Donziger might escape all of his New York 

disclosure obligations by sending the relevant documents to his 

compatriots in other districts. Yet a partner in a law firm 

cannot avoid his or her disclosure obligations by foisting the 
36

documents off to an associate who happens to reside in another 

judicial circuit. And permitting Donziger to do so here would 

not only “interfere” with the New York court’s affairs, W. Gulf 

Mar. Ass’n, 751 F.2d at 728, but nullify the power of its orders

entirely. 

We do not countenance that result. Instead, we find comity 

a compelling reason to affirm the application of the Donziger 

Waiver in the Maryland proceeding to the documents in Page’s 

possession.22

C.

Separately, Page argues that the Donziger Waiver cannot 

apply to documents created after October 20, 2010 -- the date 

that the New York district court found waiver. Chevron responds 

that the Donziger Waiver has no end date.

 22 Page suggests that the Maryland magistrate judge 

“injected himself into the S.D.N.Y. § 1782 proceeding without 

proper jurisdiction” by deciding that the Donziger Waiver 

applied. (Opening Br. [13-2028] 35.) We fail to see how this 

question presents any sort of jurisdictional issue, and Page did 

not identify how it would. Under former Federal Rule of Civil 

Procedure 45 (applied by extension in the § 1782 context), the 

magistrate judge had jurisdiction to determine whether documents 

lying within his district were to be produced. See, e.g., 

Haworth, Inc. v. Herman Miller, Inc., 998 F.2d 975, 977 (Fed. 

Cir. 1993) (“When a party pursues discovery outside the 

jurisdiction in which its suit is pending, the jurisdiction of 

the local district court may be invoked to rule on discovery 

issues in an ancillary proceeding.”). As part of that task, the 

magistrate judge had to consider the privileges tied to those 

documents and whether the privileges were validly asserted. The 

Donziger Waiver was directly relevant to that decision. 
37

The magistrate judge believed that the Donziger Waiver 

included a time limit based on the record at the time of his 

decision:

As to all of the materials held by Mr. Donziger or in 

the possession, custody, or control of Mr. Page, that 

waiver is full. It is complete for all discovery. . . 

. [But] I cannot find that that subject matter waiver 

has a prospective effect. I cannot find a waiver to 

such an extent that it would effectively neuter the 

assistance of counsel going forward. So I am hoping 

that is not the prong or the attack that Chevron is 

attempting to wage here. Otherwise, there would never 

be any kind of discussions between client and counsel 

or no opinion, drafts, and things like this. Counsel 

couldn’t be effective. So it is really about past 

activities.

(J.A.2 2629–30; see also id. 3457–58 (“[P]roduction under the 

waiver . . . only included discoverable materials through the 

October 20, 2010 date.”).) Importantly, Chevron has not 

appealed that finding. Hence, we cannot agree with its “no time 

limit” position in the absence of a cross-appeal, as Chevron

seeks a “modification of the judgment.” Country Vintner of

N.C., LLC v. E. & J. Gallo Winery, Inc., 718 F.3d 249, 257 n.8 

(4th Cir. 2013).

Chevron separately argues that –- whatever the original 

scope of the Donziger Waiver might have been -- Donziger has 

extended that waiver by producing post-October 20, 2010

materials in the New York proceeding. As to this argument, 

however, we are constrained by the record before us, which does

not contain evidence that Donziger has disclosed post-October 
38

20, 2010 documents. Consequently, neither the Maryland

magistrate judge nor the district court found that any postOctober 20 disclosure had been made. Instead, the magistrate 

judge instructed the parties to “look into that a little bit 

more.” (J.A.2 3458; see also id. at 2633 (“I also need to know 

the date of the last production of Mr. Donziger or any of those 

persons who are working under him.”).) Chevron has attempted to 

bypass the lower courts on this issue by asking us to make a

factual finding regarding post-October 20, 2010 disclosures in 

the first instance on appeal. We should not and cannot do so. 

“[A]ppellate courts . . . do not make such factual findings in 

the first instance.” Columbus-Am. Discovery Grp. v. Atl. Mut. 

Ins. Co., 56 F.3d 556, 575 (4th Cir. 1995).

Thus, the Donziger Waiver applies to documents created on 

or before October 20, 2010. Any issue of whether Donziger or 

any other relevant person has voluntarily produced post-October 

20 materials that effected an additional waiver is not properly 

before us. We take no position on how the district court should 

resolve that issue should it arise in further proceedings.

D.

In addition to the Donziger Waiver, the magistrate judge 

and the district court found two other independent bases to 

permit discovery of the documents for which Page had asserted 

privileges from disclosure. The magistrate judge found that the 
39

crime-fraud exception applied because of Page’s involvement in 

obtaining the allegedly fraudulent judgment in Ecuador. In 

addition, various voluntary disclosures –- including disclosures 

to Cabrera -- defeated the privileges that Page asserted by 

effecting a subject-matter waiver. Having already found a

substantial and independent reason to affirm the district 

court’s order in the § 1782 proceeding, we do not address these 

other grounds and express no opinion on them. See In re Under 

Seal, 749 F.3d 276, 293 (4th Cir. 2014) (“[T]o obtain reversal 

of a district court judgment based on multiple, independent 

grounds, an appellant must convince us that every stated ground 

for the judgment against him is incorrect.”). 

IV.

For the foregoing reasons, we dismiss appeal number 13-1382 

and affirm the lower court’s judgment in appeal number 13-2028.

No. 13-1382 DISMISSED

No. 13-2028 AFFIRMED