# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 17, 2012 Decided June 12, 2012

No. 11

- 7097

C HEVRON C ORPORATION , A PPELLEE

v.

W EINBERG G ROUP , A PPELLANT

Appeal from the United States District Court for the District of Columbia (No. 1:11

- mc

- 409)

James E. Tyrrell
, Jr. argued the cause for appellant. Wit h him on the briefs were Eric S. Westenberger
, Jason W. Rockwell
, Brendan M. Walsh , and Richard D

. Carter

. Gerald F. Ragland
, Jr. entered an appearance.

Theodore J. Boutrous
, J r. argued the cause for appellee. With him on the brief were Peter E. Seley and Thomas H. Dupree
, Jr.

Before: S ENTELLE , Chief Judge
, and T ATEL and K AVANAUGH , Circuit Judges

. Opinion for the Court filed by Circuit Judge K AVANAUGH

.2

K AVANAUGH , Circuit Judge : Some Ecuadorian citizens sued C hevron in an Ecuador court, alleging that Chevron was responsible for environmental damage there

. T o obtain expert reports in support of their case, t he p laintiffs enlisted the Weinberg Group, a s cientific consulting firm in Washington, D.C

. Chevron was ultimately found liable in the Ecuador

case

. As the proceedings in Ecuador unfolded, Chevron sued the Ecuadorian plaintiffs and their attorneys in the U.S. District Court for the Southern District of New York. Chevron claimed that the Ecuadorian plaintiffs and their attorneys had committed fraud in the proceedings in Ecuador.
As part of the New York litigation, Chevron subpoenaed documents from the Weinberg Group. Because the Weinberg Group is here in Washington , the s ubpoena was issued from the U.S. District Court for the District of Columbia. See Fed. R. Civ. P. 45.
The Weinberg Group asserted the attorney

- client and work product privileges over some of the documents responsive to the subpoena

. I n the D.C. district c ourt , Chevron moved to compel production of those documents

. Chevron contended that the documents fell w ithin the crime

fraud exception to the attorney

- client and work product privileges.

The D.C. district c ourt found that the crime

- fraud exception applied and granted Chevron’s motion to c ompel

. In so doing, the D.C. district c ourt relied almost entirely on a decision in favor of Chevron by the New York district c ourt in the underlying fraud litigation

. See Chevron Corp. v. Donziger
, 768 F. Supp. 2d 581 (S.D.N.Y. 2011)

. While the Weinberg Group ’s appeal to this c ourt was pending
, however, the Second Circuit reversed the decision of the New York3

district c ourt

. See Chevron Corp. v. Naranjo , 667 F.3d 232
, 247 (2d Cir. 2012).

Given that the D.C. district c ourt relied on the decision of the New York district c ourt and that the New York district

c ourt ’s d ecision was subsequently reversed by the Second Circuit , we must vacate the D.C. district c ourt’s decision and remand.

T o be sure, t he D.C. district court added in the alternative that even “if the question were an open one,” it would find “the evidence marshaled” by the New York district court to be “more than sufficient evidence of a prima facie case that th e Weinberg Group’s work was part of a fraud upon the Ecuadorian court.” Chevron Corp. v. Weinberg Group , No. 11

- mc

- 409, slip op. at 8 (D.D.C. Sept. 8, 2011). But the D.C. district court did not independently explain what facts would support that conclusi on ( no doubt because the D.C. district court principally relied on the extant New York district court decision). Moreover, it is not clear that the D.C. district court applied the crime

- fraud tests set forth by this court’s cases. We therefore cannot rel y on the D.C. district court’s statement in the alternative to affirm the order here.

* * *

W e vacate the district c ourt’s order and remand for further proceedings consistent with this opinion

.
So ordered.