Filed: Sep. 24, 2014
Latest Update: Mar. 02, 2020
Summary: 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. Appeals from the United States District Court for
Summary: 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. Appeals from the United States District Court for t..
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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.
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.
2
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
3
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
4
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.
5
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-in-
interest. 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.
6
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).
7
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)
8
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.
9
chance to cure his waiver by filing a privilege log by a court-
specified 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.
10
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.
11
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 work-
product 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.”).
12
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.”
13
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.
14
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).)
15
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.
16
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.
17
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
18
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 privilege-
holder has other means to protect his privilege rights. See
(Continued)
19
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.
20
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 subpoena-
target’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, subpoena-
targets in an ancillary proceeding, like the Pages, must follow
21
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)
22
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.”
23
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).
24
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.
25
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
26
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
27
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.
28
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.
Page 20 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.
29
“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
30
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
31
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.
32
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.
33
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
34
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
35
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.
36
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
37
20, 2010 documents. Consequently, neither the Maryland
magistrate judge nor the district court found that any post-
October 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
38
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
39
