2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-3-2011

In Re: Chevron Corp

Precedential or Non-Precedential: Precedential

Docket No. 10-2815

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 10-2815

______________

IN RE Application of CHEVRON CORPORATION for

an Order Pursuant to 28 U.S.C. Section 1782 to 

Conduct Discovery for Use in Foreign Proceedings 

Uhl, Baron, Rana & Associates, Inc;

Ecuadorian Plaintiffs,

 

Appellants

______________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civ. No. 2-10-cv-02675)

Honorable Stanley R. Chesler, District Judge

______________

Argued November 17, 2010

BEFORE: AMBRO, FISHER, and GREENBERG, Circuit

Judges

(Filed: February 3, 2011)
2

______________

O. Andrew F. Wilson (argued)

Ilann M. Maazel

Adam R. Pulver

Emery Celli Brinckerhoff & Abady

75 Rockefeller Plaza

20th Floor

New York, New York 10019

James T. Hunt, Jr.

Slater, Tenaglia, Fritz & Hunt

2300 New Road

Northfield, New Jersey 08225

 Attorneys for appellants

Randy M. Mastro (argued)

Gibson, Dunn & Crutcher

200 Park Avenue

47th Floor

New York, New York 10166-0193

Scott A. Edelman

Andrea E. Neuman

Julian W. Poon

William E. Thomson

Gibson, Dunn & Crutcher

333 South Grand Avenue

Los Angeles, California 90071-3197
3

Ashley E. Johnson

Gibson, Dunn & Crutcher

2100 McKinney Avenue, Suite 1100

Dallas, Texas 75201-6912

Herbert J. Stern

Stephen M. Plotnick

Justin A. Marchetta

Stern & Kilcullen, LLC

75 Livingston Avenue

Roseland, New Jersey 07068

 Attorneys for appellee

______________

OPINION OF THE COURT

______________

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this Court on appeal from a 

District Court‟s order entered June 15, 2010, granting Chevron 

Corporation the opportunity to engage in discovery pursuant to 

its application under 28 U.S.C. § 1782. Section 1782(a) 

provides in material part that “[t]he district court of the district 

in which a person resides or is found may order him to give his 

testimony or statement or to produce a document or other thing 

for use in a proceeding in a foreign or international tribunal[.]” 
4

Section 1782(a), however, includes the limitation that “[a] 

person may not be compelled to give his testimony or statement 

or to produce a document or other thing in violation of any 

legally applicable privilege.” The District Court, following a 

hearing that consisted of arguments of counsel, found that it was 

appropriate for it to grant a portion of Chevron‟s section 1782 

application. In reaching its result the Court rejected a privilege 

issue raised in the proceeding by appellants, the plaintiffs in an 

environmental damages action in Ecuador and a New Jersey 

environmental consulting firm, Uhl, Baron, Rana & Associates, 

Inc. (UBR), engaged by the plaintiffs in the Ecuadorian case as a 

non-testifying environmental consultant.1 The Court in rejecting 

the claim of privilege held that “[t]o the extent that any privilege 

or immunity from disclosure would otherwise apply to some or 

all of the discovery sought by Chevron pursuant to its 

Application, any such privilege has been waived and/or does not 

apply pursuant to the crime-fraud exception[.]”2 App. at 3. 

We now hold that the District Court applied the 

appropriate standards in considering Chevron‟s section 1782 

application and correctly determined that the provision of 

documents to an Ecuadorian court-appointed expert to assess 

 

1 Sometimes we use the terms appellants and UBR 

interchangeably inasmuch as both the Ecuadorian plaintiffs and 

UBR are appellants and the Ecuadorian plaintiffs engaged UBR.

2 The order listed the documents, materials, information, and 

communications to which the crime-fraud exception had been 

waived or did not apply.
5

damages resulted in a waiver of any work-product protections 

and attorney-client privileges that might otherwise have 

precluded discovery of those documents. We limit our opinion, 

however, because we also hold that the District 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 attorneyclient 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. We 

therefore will vacate the District Court‟s determination with 

respect to the crime-fraud exception to the attorney-client 

privilege and will remand the case to the District Court so that it 

can conduct an in camera review of the relevant documents and 

determine whether the crime-fraud exception to the attorneyclient privilege is applicable to any of the documents and, if so, 

which ones.

II. HISTORY

It is helpful in this case, arising out of 17 years of still 

ongoing litigation spanning across two continents, to provide 

background information to place this case in its proper 

perspective. In 1993, certain communities in the Amazon River 

area of Ecuador3(the Ecuadorian plaintiffs) filed a class action 

in the United States District Court for the Southern District of 

 

3 Some of the plaintiffs were Peruvian but we do not further 

discuss their position in the case as the parties do not focus on 

them on this appeal.
6

New York against Texaco, Inc. (Texaco), claiming that its 

subsidiary, Texaco Petroleum Company (TexPet), had caused 

massive environmental contamination and degradation in 

Ecuador that sickened and killed numerous persons in the 

Amazon River area. See generally Aguinda v. Texaco, Inc., 303 

F.3d 470 (2d Cir. 2002). Texaco, and later Chevron after 

Texaco and Chevron partially merged in 2001, sought a 

dismissal of the suit on the basis of their claim of forum non 

conveniens and principles of international comity, contending 

that the Ecuadorian courts provided a more appropriate forum 

for the litigation. In advancing their forum non conveniens 

argument, Texaco, and then Chevron, contended that the 

Ecuadorian courts offered a fair and adequate forum for the 

litigation and the Ecuadorian judiciary was impartial and free 

from corruption. Id. at 474-80. After protracted litigation 

which resulted in the rendering of several opinions by the 

United States District Court for the Southern District of New 

York and the United States Court of Appeals for the Second 

Circuit, the District Court dismissed the action on the grounds of 

forum non conveniens and the Court of Appeals affirmed the 

District Court‟s dismissal of the case. The Courts conditioned 

the dismissal, however, on Chevron‟s agreement to consent to 

the jurisdiction of the Ecuadorian courts and to waive any 

statute of limitations defenses that it might have if the 

Ecuadorian plaintiffs refiled the case in Ecuador. 

Promptly after the dismissal, the Ecuadorian plaintiffs 

refiled the case in a court in Lago Agrio, Ecuador, against 

Chevron (the Lago Agrio litigation).4 Though a trial began that 

 

4 Chevron asserts that when the Ecuadorian plaintiffs filed the 
7

year in the Lago Agrio litigation, the case still is pending in the 

Lago Agrio Court.5 It is an understatement to characterize the 

Lago Agrio litigation as contentious, as both sides of the 

litigation vigorously have opposed nearly every move by the 

other, and have accused the other side of criminal or fraudulent 

conduct in the course of the litigation.6 Appellants represent 

 

Lago Agrio litigation they did not simply refile the earlier action 

from the Southern District of New York, apparently because the 

parties in the two cases are not identical. We have no need to 

discuss that point further.

5 It is our understanding that the Ecuadorian courts conduct 

trials, or at least have conducted the trial in this case, by the 

examination of written submissions.

6 Indeed, two of Chevron‟s attorneys face criminal prosecution 

in Ecuador arising out of the Lago Agrio litigation. Chevron 

believes that the Ecuadorian plaintiffs or their attorneys were 

responsible for those prosecutions. Moreover, appellants note 

that a court-appointed global damages expert filed an official 

complaint with the Lago Agrio Court asserting that individuals 

associated with Chevron were interfering with his work and 

threatening him and his team, and that the court responded to 

this complaint by providing the expert with law enforcement 

protection when he was conducting field work. For its part, 

Chevron claims that the Ecuadorian plaintiffs perpetrated a 

fraud on the Lago Agrio Court by illegally and surreptitiously 

colluding with the supposedly independent global damages 

expert that the Lago Agrio Court appointed and by essentially 

ghost-writing his report for him.
8

that the Lago Agrio litigation has generated a massive record 

containing “more than 200,000 pages of evidence, roughly 

63,000 chemical sampling results produced by laboratories 

contracted by both parties and the court experts, testimony from 

dozens of witnesses, and dozens of judicial field inspections of 

former Chevron wells and production sites conducted over a 

five-year period under the oversight of the Lago Agrio court.” 

Appellants‟ br. at 9.

Early in the Lago Agrio litigation, both sides employed 

experts who submitted reports concerning the contamination at 

former TexPet well sites. In October 2003, the Ecuadorian 

plaintiffs petitioned the Lago Agrio Court to appoint an expert 

to conduct a global damages assessment of the contamination 

that TexPet allegedly caused. At that time Chevron did not file 

a similar petition, but in 2007 it petitioned for appointment of a 

global damages assessment expert, a request that the court 

denied as untimely. Consequently, the Lago Agrio Court 

determined that it would appoint a single global damages expert, 

with the Ecuadorian plaintiffs and Chevron each nominating a 

candidate for the position. Ultimately, however, the Lago Agrio 

Court did not appoint either candidate and instead appointed 

Richard Stalin Cabrera Vega (Cabrera), an Ecuadorian 

environmental engineer and geologist who had served as a 

court-appointed expert earlier in the case, as the global damages 

expert. Although the Lago Agrio Court appointed Cabrera, it 

ordered the Ecuadorian plaintiffs to pay his fees because they 

had requested the appointment of such an expert.

Cabrera accepted the appointment, and he and his team 

conducted numerous field inspections of the contamination sites, 
9

with the parties being given notice of the date and location of 

those inspections and being allowed to participate in the 

inspection process. Moreover, Cabrera, from time to time, 

requested that the parties submit materials to him. In response 

to Cabrera‟s requests, the Ecuadorian plaintiffs submitted 

documents to him in support of their claims, but Chevron did 

not submit any documentation in support of its position to him. 

The process of this document submission has given rise to one 

of the primary issues in dispute between the parties because they 

are at odds on the question of whether they were permitted to 

submit documents on an ex parte basis to Cabrera for his 

consideration in drafting his report. Indeed, Chevron regards 

the suggestion that the Lago Agrio Court permitted the 

submission of documents on an ex parte basis as “absurd.” 

Appellee‟s br. at 17. On the other hand, the Ecuadorian 

plaintiffs contend that the submissions were authorized and that 

the Lago Agrio Court actually “encouraged” the parties to 

provide documents in support of their positions to Cabrera. 

Appellants‟ br. at 44. 

Cabrera‟s final assessment calculated the global damages 

at $27.3 billion. Chevron reacted to that assessment by filing a 

motion with the Lago Agrio Court seeking to have it strike the 

global damages assessment from evidence and declare that 

Cabrera‟s appointment as global damages assessment expert was 

null and void. Though the Lago Agrio Court did not give 

Chevron the relief it sought when it filed its motion, the court 

indicated that it understood that Chevron was dissatisfied with 

Cabrera and his final report, and reiterated that “the court is not 
10

required to abide by the opinion of the experts.”7 Appellee‟s 

Request for Judicial Notice at ex. 7.8 The court then, in what it 

explained was an effort to “receive further enlightenment and 

illustration and additional elements for judgment,” provided the 

parties with an additional 45 days to make new damages 

submissions for it to consider in reaching its judgment. Id. 

Chevron‟s responses to what it plainly regarded as 

unpalatable proceedings in Ecuador did not stop with it taking 

steps in that country, as it obviously, and ironically in view of its 

contentions on its forum non conveniens application that 

resulted in the dismissal of the Southern District of New York 

litigation, had lost faith in the Ecuadorian courts. Thus, in an 

out-of-Ecuador response, Chevron filed a notice of arbitration 

under the United Nations Commission on International Trade 

Law (UNCITRAL) pursuant to the United States-Ecuador 

Bilateral Investment Treaty (BIT) on November 23, 2009, 

 

7 Apparently, under Ecuadorian law, the presiding judge will 

not be permitted to rule on the objections to the global damages 

assessment report Cabrera prepared until the judge issues the 

final judgment in the case.

8 Even though, as we explain below, we deny the parties‟ 

motions to supplement the record on appeal, we are considering 

the Lago Agrio Court‟s response to Chevron‟s motion because 

of the significance of the response in the context of this section 

1782 application and because the court filed the response on 

August 2, 2010, a date after the District Court rendered its ruling 

on June 15, 2010.
11

challenging the Ecuadorian proceedings in an attempt to obtain 

an award that would preclude international recognition of the 

judgment that the Lago Agrio Court will enter in the Lago Agrio 

litigation.9 The parties to the arbitration proceeding are Chevron 

and the Republic of Ecuador, but not the Ecuadorian plaintiffs 

even though they have an interest in the outcome of the 

arbitration. Chevron asserts that it is entitled to the relief it 

seeks because it believes that the Ecuadorian government has 

conspired with the Ecuadorian plaintiffs to influence the 

outcome of the Lago Agrio litigation.10

 

9 According to appellants, Chevron has asked the BIT 

arbitration panel to tell the Ecuadorian government to direct the 

judge in the Lago Agrio litigation to dismiss the case but 

Chevron denies that it has asked for such relief and asserts, as 

we have pointed out, that it seeks an outcome precluding 

enforcement of a judgment entered in the Lago Agrio Court 

outside of Ecuador.

10 Both the Ecuadorian plaintiffs and the Republic of Ecuador 

filed suits in the United States District Court for the Southern 

District of New York seeking to obtain an order staying the BIT 

arbitration. In those actions the plaintiffs contended that 

Chevron should be precluded from challenging the fairness of 

the Ecuadorian court system inasmuch as Texaco argued so 

vehemently when pressing its forum non conveniens motion that 

the case should be venued in Ecuador in part because the courts 

in that country were fair and impartial. The District Court in the 

Southern District of New York has declined to stay the BIT 

arbitration, but the parties seeking that relief have appealed to 

the United States Court of Appeals for the Second Circuit and 
12

In addition to having instituted the BIT arbitration in 

reaction to the Ecuadorian proceedings, Chevron has brought an 

extraordinary series of at least 25 requests to obtain discovery 

from at least 30 different parties pursuant to section 1782 in 

United States District Courts throughout the United States. 

These requests, which include the proceedings before us now, 

seek evidence to support Chevron‟s claim that the Ecuadorian 

plaintiffs committed fraud in the prosecution of the Lago Agrio 

litigation. Chevron‟s overarching contention in seeking the 

section 1782 discovery is that the judicial process in Ecuador is 

corrupt and that the Ecuadorian plaintiffs and their associates 

have fraudulently conspired with Cabrera to produce a skewed 

damages report that the Ecuadorian plaintiffs ghost-wrote. 

Chevron seeks to use the discovery it obtains pursuant to its 

section 1782 requests in the Lago Agrio litigation and the BIT 

arbitration to support this contention. 

In the section 1782 case now before us, Chevron filed its 

suit in the District of New Jersey, contending that UBR, the 

New Jersey-based environmental consulting firm that the 

Ecuadorian plaintiffs engaged, employed Juan Cristóbal Villao 

Yepez (Villao), one of the 14 technical experts participating in 

the preparation of Cabrera‟s global damages report. Chevron 

contends that the appearance of materials in Cabrera‟s final 

global damages assessment report with UBR‟s logo 

demonstrates that Cabrera‟s report was not impartial and that 

Cabrera improperly conspired with the Ecuadorian plaintiffs and 

 

that appeal currently is pending. Apparently the BIT arbitration 

panel has not yet decided whether it has jurisdiction to entertain 

the arbitration proceeding.
13

UBR in drafting his report. 

Appellants, on the other hand, express no surprise that 

Cabrera‟s report incorporates documents that they provided to 

him, including documents that UBR prepared, for they maintain 

that, as we pointed out above, the Lago Agrio Court sanctioned 

their providing Cabrera with the documents. Appellants further 

contend that Cabrera was free to accept or reject the Ecuadorian 

plaintiffs‟ submissions and consequently was free to incorporate 

the submissions into his report so long as he found them to be 

credible. Nevertheless, in light of Villao‟s dual employment and 

the presence of materials from UBR in Cabrera‟s report, 

Chevron urges that it is entitled to an order under section 1782 

compelling UBR and Villao to turn over any documents 

transmitted between UBR and Cabrera, between Villao and 

Cabrera, and between counsel for the Ecuadorian plaintiffs and 

Villao. Chevron‟s application led to the proceedings in the 

District Court and thus has led to this appeal.

The District Court heard oral argument on Chevron‟s 

application on June 11, 2010, and issued a decision from the 

bench on that day granting Chevron‟s section 1782 discovery 

request as to UBR.11 The Court then entered an order on June 

15, 2010, requiring UBR to produce documents transmitted 

 

11 Because section 1782 only applies to a person who “resides” 

in the district of the District Court and Villao lives in Ecuador, 

the District Court dismissed Chevron‟s request to the extent that 

it related to Villao but did so “without prejudice to Chevron‟s 

right to later establish that he is found in the district.” App. at 2.
14

between UBR and Cabrera, and, so far as UBR possessed them, 

any documents transmitted between Villao and Cabrera or 

Villao and the attorneys for the Ecuadorian plaintiffs or their 

representatives. The order also permitted Chevron to cause a 

subpoena to be served in furtherance of the discovery. We 

reiterate that the District Court rejected appellants‟ claims that 

the documents that Chevron requested were privileged by 

reasoning that “[t]o the extent that any privilege or immunity 

from disclosure would otherwise apply to some or all of the 

discovery sought by Chevron pursuant to its Application, any 

such privilege has been waived and/or does not apply pursuant 

to the crime-fraud exception[.]” App. at 3. The Court directed 

UBR to produce a list of all of the documents that appellants 

believed were privileged and thus were not subject to disclosure, 

so that the Court could review the list and reach its own 

conclusion as to whether any of the documents remained 

privileged.12

Following the District Court‟s issuance of its order on 

June 15, 2010, appellants appealed to this Court and 

simultaneously filed a motion for a stay pending appeal. The 

District Court denied appellants‟ application for a stay pending 

appeal, but issued a temporary stay pending appellants‟ 

 

12 It would seem to have been inconsistent for the District Court 

both to rule that the attorney-client privilege had been waived or 

did not apply because of the crime-fraud exception and yet to 

direct UBR to produce a list of communications that appellants 

believed were privileged for the Court‟s review. Nevertheless, 

in view of our outcome we need not address this point further.
15

application for a stay to this Court. We subsequently granted 

appellants a stay pending appeal on July 6, 2010, and also 

ordered that the appeal be expedited.13 

III. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 28 U.S.C. § 

1782 and we have jurisdiction pursuant to 28 U.S.C. § 1291. 

We review the District Court‟s decision on the section 

1782 discovery request for an abuse of discretion. See In re 

Bayer AG, 146 F.3d 188, 191 (3d Cir. 1998). However, if “the 

district court misinterpreted or misapplied the law,” or if “the 

court relied on inappropriate factors in the exercise of its 

discretion, our review is plenary.” Id. We review the District 

Court‟s ruling regarding waiver of the work product privilege 

for an abuse of discretion. In re Grand Jury (Impounded), 138 

F.3d 978, 980-81 (3d Cir. 1998). Finally, we review the legal 

issues underlying the District Court‟s application of the crime-

 

13 The parties have moved on several occasions to supplement 

the record on appeal and we now deny those motions except that 

we have taken judicial notice of one proceeding in the Lago 

Agrio Court that was not in the original record in the District 

Court as it took place after the District Court decided this case 

and the proceeding is quite significant. Our denial of the 

motions to supplement the record has not affected the outcome 

of this appeal as most of the evidence with which the parties 

seek to supplement the record is related only tangentially to the 

issues on this appeal. 
16

fraud exception to the attorney-client privilege de novo, and its 

factual determinations for clear error. In re Impounded, 241 

F.3d 308, 312 (3d Cir. 2001).

IV. DISCUSSION

Appellants first claim that Chevron‟s discovery request 

was not proper under section 1782 because Chevron sought 

discovery not intended “for use in a proceeding in a foreign or 

international tribunal.” See 28 U.S.C. § 1782(a). Appellants 

argue that as a matter of statutory interpretation “[d]iscovery is 

not „for use in a proceeding before a foreign tribunal‟ where its 

purpose is to attack the tribunal itself.” Appellants‟ br. at 22 

(emphasis in original). The initial problem with appellants‟ 

contention is that Chevron intends to use the evidence that it 

uncovers in an attempt to show the Lago Agrio Court that the 

Ecuadorian plaintiffs have engaged in fraud in the proceedings 

before that court. Furthermore, use of the evidence uncovered 

in a section 1782 application in the BIT arbitration to “attack” 

the Lago Agrio Court unquestionably would be “for a use in a 

proceeding in a foreign or international tribunal.” The 

possibility that the evidence may be utilized to cast doubts on 

the impartiality of the Lago Agrio Court does not mean that 

Chevron‟s request for the evidence runs afoul of section 1782 

and that Chevron therefore may not obtain the evidence.

Appellants next contend that the District Court abused its 

discretion when it granted Chevron‟s section 1782 discovery 

request. The seminal case exploring the parameters of section 

1782 is Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 
17

241, 124 S.Ct. 2466 (2004), in which the Supreme Court 

explained that section 1782 “is the product of congressional 

efforts, over the span of nearly 150 years, to provide federalcourt assistance in gathering evidence for use in foreign 

tribunals.” Id. at 247, 124 S.Ct. at 2473. In Intel, the Court 

rejected the “suggestion that a § 1782(a) applicant must show 

that United States law would allow discovery in domestic 

litigation analogous to the foreign proceeding.” Id. at 263, 124 

S.Ct. at 2482. The Court also held that section 1782 does not 

contain a “threshold requirement that evidence sought from a 

federal district court would be discoverable under the law 

governing the foreign proceeding.” Id. at 247, 124 S.Ct. at 

2473. The Court reasoned that “[b]eyond shielding material 

safeguarded by an applicable privilege . . . nothing in the text of 

§ 1782 limits a district court‟s production-order authority . . . .” 

Id. at 260, 124 S.Ct. at 2480. 

The Supreme Court cautioned, however, that “comity and 

parity concerns may be important as touchstones for a district 

court‟s exercise of discretion in particular cases[.]” Id. at 261, 

124 S.Ct. at 2481. To that end, the Court discussed factors that 

a district court should consider when ruling on a section 1782(a) 

request:

First, when a person from whom discovery is 

sought is a participant in the foreign proceeding . . 

. , the need for § 1782(a) aid generally is not as 

apparent as it ordinarily is when evidence is 

sought from a nonparticipant in the matter arising 

abroad. A foreign tribunal has jurisdiction over 

those appearing before it, and can itself order 
18

them to produce the evidence. . . .

. . .

Second, as the 1964 Senate Report 

suggests, a court presented with a § 1782(a) 

request may take into account the nature of the 

foreign tribunal, the character of the proceedings 

underway abroad, and the receptivity of the 

foreign government or the court or agency abroad

to U.S. federal-court judicial assistance. . . . 

Specifically, a district court could consider 

whether the § 1782(a) request conceals an attempt 

to circumvent foreign proof-gathering restrictions 

or other policies of a foreign country or the 

United States. . . . Also, unduly intrusive or 

burdensome requests may be rejected or trimmed.

Id. at 264-65, 124 S.Ct. at 2483 (citations omitted). Inasmuch as 

relevant evidence is presumptively discoverable, “[t]he party 

opposing discovery [under section 1782(a)] has the „burden of 

demonstrating offense to the foreign jurisdiction, or any other 

facts warranting the denial of a particular application.‟” Bayer 

AG v. Betachem, Inc., 173 F.3d 188, 190 (3d Cir. 1999) 

(quoting In re Bayer AG, 146 F.3d at 196).

The first Intel factor favors allowing Chevron to obtain 

the discovery it seeks because UBR is not a participant in the 

Lago Agrio litigation and, so far as we can determine from the 

record before us, is not subject to the jurisdiction of the Lago 
19

Agrio Court.14 Moreover, though we are aware that appellants 

argue that the documents transmitted to Cabrera are within the 

jurisdictional reach of the Lago Agrio Court, we have no basis 

to question the District Court‟s observation or its conclusion that 

followed at the hearing on Chevron‟s application that “Cabrera 

has apparently indicated that he has not been in receipt of any 

documents from UBR,” and for that reason “directing Mr. 

Cabrera to produce documents which he says he did not have 

would be pointless and fruitless as an exercise by the 

Ecuadorian court.” App. at 50. Additionally, though we cannot 

come to a conclusive determination on the issue, it is 

questionable whether the jurisdictional reach of the BIT arbitral 

panel embraces either UBR or Cabrera, which, after all, are not 

parties to the arbitration proceeding, so that the panel may 

compel them to produce documents. In this regard, we note that,

according to the District Court, the arbitration panel “does not 

have the authority to order such a production,” and so those 

documents “would not be obtainable for use in the [BIT] 

arbitration absent discovery under Section 1782(a).” Id. at 50-

51.

Appellants claim, with respect to the second Intel factor, 

that the Lago Agrio Court is not receptive to the documents 

Chevron is seeking in its section 1782 request. We regard this 

 

14 We see nothing in the briefs advancing arguments similar to 

the contention advanced in countless cases in courts in the 

United States, that an entity foreign to the forum, by its conduct 

that had consequences within the governmental jurisdiction of 

the forum court, became subject to the jurisdiction of that 

government‟s courts.
20

claim as naked because appellants do not present adequate 

evidence to support this contention and, as they are the parties 

opposing discovery under section 1782, they bear the “burden of 

demonstrating offense to the foreign jurisdiction.” Bayer AG, 

173 F.3d at 190 (internal quotation marks and citation omitted). 

We recognize that, according to appellants, the Lago Agrio 

Court has denied Chevron‟s requests for many of these same 

documents, and we are aware of their argument that the denial 

indicates that the Lago Agrio Court would not be receptive to 

Chevron obtaining the documents in the Lago Agrio litigation. 

But in our consideration of appellants‟ argument regarding the 

Lago Agrio Court‟s position with respect to the receipt of the 

documents, we also take into account Chevron‟s contention that 

the Lago Agrio Court has not denied Chevron‟s requests for the 

documents. Overall, the status of Chevron‟s requests is not 

clear from the record. 

In any event, regardless of the Lago Agrio Court‟s 

disposition of Chevron‟s request for the documents, it is plain 

that appellants‟ argument conflates the question of whether a 

foreign court would allow analogous discovery leading to the 

production of documents with the question of whether that court 

would consider evidence revealed in a section 1782 proceeding. 

We have no reason to believe that the answers to those two 

questions necessarily are in harmony inasmuch as a court might 

offer limited discovery opportunities yet accept relevant 

evidence tendered to it if procured without its assistance. 

Furthermore, appellants‟ argument overlooks the circumstance 

that Chevron seeks the section 1782 discovery for use in both 

the Lago Agrio litigation and the BIT arbitration. In this regard, 

we point out that while appellants suggest that the BIT arbitral 
21

panel would not be receptive to the evidence, so far as we can 

ascertain they base this suggestion on pure speculation. In these 

circumstances, appellants‟ argument is insufficient given that 

they bear the burden of proof on the receptiveness issue as they 

are the parties opposing discovery under section 1782.

Appellants also contend that, under the third Intel factor, 

Chevron‟s section 1782 discovery request is nothing more than a 

concealed attempt to circumvent Ecuadorian proof-gathering 

restrictions or other Ecuadorian policies. Again, appellants base 

their argument on the proposition that the Lago Agrio Court has 

denied Chevron‟s requests for these same documents, but, as we 

have discussed already, the parties disagree about the status of 

Chevron‟s requests to the Lago Agrio Court and we are 

uncertain as to that status. Without a definitive determination 

that the Lago Agrio Court has denied Chevron access to the 

same documents that Chevron seeks in its section 1782 

discovery application, an issue on which appellants bear the 

burden of proof as the parties opposing discovery, it cannot be 

said that Chevron‟s section 1782 application is “an attempt to 

circumvent foreign proof-gathering restrictions.” Intel, 542 U.S. 

at 265, 124 S.Ct. at 2483. Moreover, as we indicated above, the 

Lago Agrio Court might be receptive to section 1782 evidence 

and, if so, regardless of that court‟s rulings on Chevron‟s request 

for documents, it would be a stretch to conclude that the section 

1782 proceeding was an attempt to circumvent Ecuadorian 

restrictions that somehow was offensive to the Lago Agrio 

Court.

We also point out that, as the Court made clear in Intel, 

there is no requirement that the material be discoverable in the 
22

foreign country for it to be discoverable pursuant to a section 

1782 request in the United States. See id. at 247, 124 S.Ct. at 

2473. Moreover, appellants‟ argument once again minimizes 

the fact that Chevron‟s section 1782 discovery request seeks the 

documents for use in the BIT arbitration. Furthermore, we have 

no basis on which we could hold that the section 1782 request is 

an attempt to circumvent proof-gathering restrictions or other 

policies of the BIT arbitral panel. Overall, we are satisfied that 

none of the first three Intel factors caution against discovery. 

Finally, in our consideration of Intel, we find no evidence 

that Chevron‟s section 1782 discovery request is “unduly 

intrusive or burdensome.” See id. at 265, 124 S.Ct. at 2483. We 

therefore conclude that the District Court did not abuse its 

discretion in applying the Intel factors in considering Chevron‟s 

request in this case.

In addition to the factors that the Supreme Court

elucidated in Intel to establish when, as a positive matter, a court 

could grant a section 1782 application, section 1782 provides 

that “[a] person may not be compelled to give his testimony or 

statement or to produce a document or other thing in violation of 

any legally applicable privilege.”15 Appellants maintain that the 

District Court erred in its rulings relating to various evidentiary 

 

15 It should be noted that section 1782(a), when providing for 

protection of documents shielded by “any legally applicable 

privilege,” does not limit the protected documents to those of 

which the respondent in the section 1782 proceedings is the 

holder of the privilege.
23

privileges.16 To start with, appellants assert that both the workproduct doctrine and the attorney-client privilege shield the 

documents from discovery. They then contend that the District 

Court improperly concluded that the disclosure of the documents 

to a third-party waived that shield. Appellants also contend that 

the Court improperly concluded that, to the extent that the 

attorney-client privilege was not waived, application of the 

crime-fraud exception to the attorney-client privilege trumps the 

protection of the privilege.17 Of course, if a privilege applied, 

then the Court should not have ordered UBR to produce the 

documents even though they were otherwise within the scope of 

disclosure that the Court could order when considering 

Chevron‟s section 1782 application.18

 

16 Appellants advance the contention that the District Court 

erred in failing to apply Ecuadorian privilege law. We, 

however, need not address that contention because even if we 

assume that privileges under Ecuadorian law should be 

considered in adjudicating Chevron‟s section 1782 application, 

appellants have not presented any reliable or credible evidence 

that there is a privilege under Ecuadorian law that would

preclude the discovery sought here.

17 We agree with the District Court that the non-testifying 

expert privilege, see Fed. R. Civ. P. 26(b)(4), is not applicable 

here because, “[b]y providing consulting expert reports to a 

testifying expert, the privilege is lost.” App. at 47.

18 The order may include documents as to which appellants do 

not claim a privilege.
24

Though they both operate to protect information from 

discovery, the work-product doctrine and the attorney-client 

privilege serve different purposes. The purpose behind the 

attorney-client privilege is “„to encourage clients to make full 

disclosure of facts to counsel so that he may properly, 

competently, and ethically carry out his representation. The 

ultimate aim is to promote the proper administration of justice.‟” 

In re Impounded, 241 F.3d at 316 (quoting In re Grand Jury 

Proceedings, 604 F.2d 798, 802 (3d Cir. 1979)). The workproduct doctrine, by contrast, “promotes the adversary system 

directly by protecting the confidentiality of papers prepared by 

or on behalf of attorneys in anticipation of litigation. Protecting 

attorneys‟ work product promotes the adversary system by 

enabling attorneys to prepare cases without fear that their work 

product will be used against their clients.” Westinghouse Elec. 

Corp. v. Republic of the Phil., 951 F.2d 1414, 1428 (3d Cir. 

1991) (citations omitted). 

Though evidentiary privileges have important purposes, 

their recognition may result in the withholding of relevant 

information and so may obstruct the search for truth. Indeed, 

the protections are effective only if they shield evidence and 

thus they necessarily obstruct the search for the truth at a trial at 

which they are recognized either implicitly or explicitly. 

Consequently, privileges should be recognized only when 

necessary to achieve their respective purposes. See Fisher v. 

United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577 (1976). 

The courts, in recognition of the purposes of the work-product

doctrine and the attorney-client privilege, hold that purposeful 

disclosure of the purportedly privileged material to a third-party, 

if that disclosure undermines the purpose behind each privilege, 
25

may waive both protections. Thus, the courts recognize that 

because the attorney-client privilege serves to protect the 

confidentiality of communications between clients and their 

attorneys, “disclosure to a third party waives the attorney-client 

privilege unless the disclosure is necessary to further the goal of 

enabling the client to seek informed legal assistance.” 

Westinghouse Elec. Corp., 951 F.2d at 1428. 

On the other hand, the work-product doctrine protects an 

attorney‟s work from falling into the hands of an adversary, and 

so “disclosure to a third party does not necessarily waive the 

protection of the work-product doctrine.” Id. Rather, the 

purpose behind the work-product doctrine “requires [a court] to 

distinguish between disclosures to adversaries and disclosures to 

non-adversaries[,]” id., and it is only in cases in which the 

material is disclosed in a manner inconsistent with keeping it 

from an adversary that the work-product doctrine is waived. See

id. 

Appellants argue that work-product and attorney-client 

protections should apply in this case and UBR‟s submission of 

documents to Cabrera did not waive the protections. In 

furtherance of this argument, appellants contend that the 

submission of documents to Cabrera was not inconsistent with 

the holders of the privileges having the intention of keeping the 

materials from Chevron. Appellants predicate this argument on 

their contention that the parties to the Lago Agrio litigation 

could submit documents to Cabrera on an ex parte basis, with 

the understanding that the documents would remain 

confidential. We find that argument to be at odds with the 

record inasmuch as the lead attorney for the Ecuadorian 
26

plaintiffs acknowledged in an affidavit that “to the extent that 

Mr. Cabrera put into his report any of the information that I 

supplied to him, it would be viewable by Chevron or any other 

member of the public that viewed Mr. Cabrera‟s report.” App. 

at 1453. 

In fact, even if we disregarded the attorney‟s affidavit, 

something we will not do, we can discern no reason for 

appellants‟ submission of the documents to Cabrera other than 

for him to consider those documents to advance appellants‟ hope 

that Cabrera‟s final global damages assessment report would 

reflect the materials and conclusions in the documents. Indeed, 

it is quite clear that appellants intended that by submitting the 

documents to Cabrera they would place him in a position to 

serve as a conduit to transmit the documents to Chevron because 

they hoped that Cabrera would agree with the documents‟ 

assessment of damages and thus would incorporate the 

documents, or at least the conclusions in them, into his report. 

Consequently, we are satisfied that the documents were 

submitted to Cabrera in a manner inconsistent with keeping 

them from Chevron, and therefore the work-product doctrine 

and the attorney-client privilege were waived as to the 

documents submitted to Cabrera. We therefore will affirm the 

District Court‟s order that all materials transmitted from UBR to 

Cabrera are subject to discovery notwithstanding any claim of 

work-product or attorney-client privilege protections.

The District Court also ruled that the crime-fraud 

exception operated to pierce the attorney-client privilege for all 

communications between Villao and Cabrera and between 

Villao and anyone affiliated with counsel for the Ecuadorian 
27

plaintiffs. As we have discussed, the attorney-client privilege 

promotes the attorney-client relationship and, in turn, furthers 

the administration of justice by protecting communications 

between attorneys and their clients. See In re Impounded, 241 

F.3d at 316. That purpose “would be frustrated if the client used 

the lawyer‟s services to further a continuing or future crime or 

tort.” Id. (quoting In re Grand Jury Proceedings, 604 F.2d at 

802) (internal quotation marks omitted). Therefore, in situations 

where the client consults the attorney for the purpose of 

committing a future crime or fraud, the crime-fraud exception to 

the attorney-client privilege applies and communications made 

in furtherance of the anticipated crime or fraud are not protected 

from disclosure as recognition of “the privilege is no longer 

defensible.” Id. at 317 (quoting In re Grand Jury Proceedings, 

604 F.2d at 802) (internal quotation marks omitted); see also

United States v. Zolin, 491 U.S. 554, 563, 109 S.Ct. 2619, 2626 

(1989) (“It is the purpose of the crime-fraud exception to the 

attorney-client privilege to assure that the seal of secrecy 

between lawyer and client does not extend to communications 

made for the purpose of getting advice for the commission of a 

fraud or crime.” (Internal quotation marks and citations 

omitted)). 

A party seeking to invoke the crime-fraud exception to 

the attorney-client privilege bears the burden of demonstrating 

that the exception is applicable. In re: Grand Jury Investigation, 

445 F.3d 266, 274 (3d Cir. 2006). Specifically, before the 

crime-fraud exception can be invoked successfully, the party 

contending that it applies

must make a prima facie showing that (1) the 
28

client was committing or intending to commit a 

fraud or crime, and (2) the attorney-client 

communications were in furtherance of that 

alleged crime or fraud. A prima facie showing 

requires presentation of evidence which, if 

believed by the fact-finder, would be sufficient to 

support a finding that the elements of the crimefraud exception were met.

Id. (quoting In re Grand Jury Subpoena, 223 F.3d 213, 217 (3d 

Cir. 2000) (internal quotation marks omitted)).

Appellants admit that UBR employed Villao when he 

was also an expert on Cabrera‟s staff. Though we recognize that 

the Lago Agrio Court may view what seems to us to be a 

conflict of interest differently than we do, we believe that this 

showing of Villao‟s dual employment is sufficient to make a 

prima facie showing of a fraud that satisfies the first element of 

the showing necessary to apply the crime-fraud exception to the 

attorney-client privilege. Thus, we agree with the District 

Court‟s conclusion that the first element of the crime-fraud 

exception to the attorney-client privilege applied on the basis of 

the alleged fraud predicated on the presence of the conflict of 

interest attributable to Villao‟s dual and, at least to us, 

inconsistent employment. 

Yet evidence of a crime or fraud, no matter how 

compelling, does not by itself satisfy both elements of the crimefraud exception to the attorney-client privilege because to 

establish the second element of the exception the party seeking 

to circumvent the privilege by invoking the exception bears the 
29

burden of making a prima facie showing that there were 

communications between the client and attorney in furtherance 

of that fraud. We believe that the evidence in the record is 

simply too sparse for us to conclude that Chevron has met that 

burden and thus, to date, Chevron has not made a sufficient

prima facie showing that the second element of the showing that 

must be made to justify the application of the crime-fraud 

exception to the attorney-client privilege is present here. 

However, even if the party seeking to invoke the crimefraud exception to the attorney-client privilege cannot make out 

a prima facie case sufficient to overcome the privilege, it still 

may be entitled to have a court make an in camera review of the 

documents in issue to determine if those documents and the 

evidence placing the documents in context establish the 

applicability of the crime-fraud exception to the privilege. See 

generally Zolin, 491 U.S. at 570-72, 109 S.Ct. at 2630-31 

(holding that in camera review of privileged documents to 

determine if those documents establish that crime-fraud 

exception applies is proper as long as party seeking to invoke 

crime-fraud exception makes threshold showing). Because “in 

camera inspection . . . is a smaller intrusion upon the 

confidentiality of the attorney-client relationship than is public 

disclosure[,]” it follows “that a lesser evidentiary showing is 

needed to trigger in camera review than is required ultimately to 

overcome the privilege.” Id. at 572, 109 S.Ct. at 2630-31 

(quotation marks and citations omitted). Thus, “[b]efore 

engaging in [an] in camera review to determine the applicability 

of the crime-fraud exception, the judge should require a showing 

of a factual basis adequate to support a good faith belief by a 

reasonable person . . . that in camera review of the materials 
30

may reveal evidence to establish the claim that the crime-fraud 

exception applies.” Id. at 572, 109 S.Ct. at 2631 (internal 

citation and quotation marks omitted).

We are satisfied that Chevron has made “a showing of a 

factual basis adequate to support a good faith belief by a 

reasonable person . . . that in camera review of the materials 

may reveal evidence to establish the claim that the crime-fraud 

exception applies.” See id. Thus, although we will vacate the 

District Court‟s ruling to the extent that it determined that the 

crime-fraud exception to the attorney-client privilege is 

applicable, our ruling is by no means the last word with respect 

to the applicability of the exception. Quite to the contrary, we 

will remand the case to the District Court to conduct an in 

camera review of the documents in issue to determine whether 

they were created or used in furtherance of a fraud and thus 

whether the crime-fraud exception to the attorney-client 

privilege is applicable to some or all of the documents the Court 

reviews.19 

 

19 It is significant that appellants in their brief, though referring 

to the application of Ecuadorian privilege law (which we have 

found they have not sufficiently documented to demonstrate its 

applicability), have suggested the use of the same process that 

we find is applicable in an analysis of the crime-fraud exception 

as they write that “[a]ny such waiver must also be understood in 

light of a document by document analysis.” Appellants‟ br. at 

19.

We do not suggest that in camera review is necessary in 

every case in which the crime-fraud exception is invoked, as a 
31

Finally we point out that, as we mentioned previously, the 

District Court dismissed Villao from this case because he is not 

within the District of New Jersey. Thus, because we lack 

jurisdiction over Villao, any order relating to documents in his 

possession that requires that he produce them will be 

unenforceable; we only have jurisdiction over UBR and in these 

proceedings we can order only UBR to produce documents. As 

the District Court recognized, an order requiring disclosure of 

documents transmitted between Villao and Cabrera or Villao 

and any attorneys associated with the Ecuadorian plaintiffs is 

valid only as to UBR and thus includes only those documents in 

UBR‟s possession. 

V. CONCLUSION

To summarize, we will affirm the District Court‟s order 

of June 15, 2010, requiring UBR to turn over to Chevron 

documents that it submitted to Cabrera because the transmission 

of those documents to Cabrera waived any work-product 

protection and the attorney-client privilege with respect to those 

 

party may be able to satisfy both elements of the crime-fraud 

exception without resort to the privileged documents 

themselves. We simply hold that in this case, based on the 

evidence before the District Court, Chevron has not met its 

burden regarding the second element of the crime-fraud 

exception, but has made the requisite showing necessary for the 

District Court to conduct an in camera review of the documents 

in issue in order to determine if the second element of the crimefraud exception is satisfied here.
32

documents. UBR should begin producing those documents 

immediately in accordance with the District Court‟s order and to 

the extent that our stay permitted UBR to delay producing those 

documents, we vacate it. 

We also will vacate the District Court‟s ruling that the 

crime-fraud exception operates to pierce the attorney-client 

privilege for all communications between Villao and Cabrera 

and between Villao and anyone affiliated with counsel for the 

Ecuadorian plaintiffs, and will remand the case to the District 

Court so that it may conduct an in camera review of the 

documents in issue. Predicated on that review and on what 

other evidence is developed on the remand, the District Court 

should determine whether any of the documents and, if so, 

which ones, were created or used in furtherance of a fraud, as it 

is only as to documents created or used in furtherance of a fraud 

that the crime-fraud exception to the attorney-client privilege is 

applicable. Finally, we express the hope that even though our 

remand requires the District Court to examine individual 

documents, a task that we recognize likely will be formidable, 

the parties will cooperate in applying the directions in this 

opinion to the documents to be examined so that the burden on 

the District Court to resolve disputes is lessened. The parties 

will bear their own costs on this appeal.