In Re Chevron Corp.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________

Nos. 10-4699 and 11-1099
______________

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
(D.C. # 2-10-mc-00208)

RODRIGO PÉREZ PALLARES and RICARDO REIS
VEIGA

v.

JOSPEH C. KOHN, ESQUIRE and KOHN, SWIFT &
GRAF, P.C.
(D.C. # 2-10-mc-00209)

Ecuadorian Plaintiffs,

Appellants in No. 10-4699
_______________

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
(D.C. # 2-10-mc-00208)

RODRIGO PEREZ PALLARES and RICARDO REIZ
VEIGA

v.

JOSEPH C. KOHN, ESQUIRE and KOHN, SWIFT AND
GRAF, P.C.
(D.C. # 2-10-mc-00209)

*Republic of Ecuador,

Appellant in No. 11-1099

*(Pursuant to Fed. R. App. P. 12(a))
______________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. # 2-10-mc-00208 and 2-10-mc-00209)
Honorable Jan E. DuBois, District Judge
______________

Argued February 22, 2011

BEFORE: AMBRO, FISHER, and GREENBERG, Circuit
Judges

2
 (Filed: May 25, 2011)
______________

James E. Tyrell, Jr. (argued)
Adlai J.J. Small
Joseph E. Hopkins
Jason W. Rockwell
Brendan M. Walsh
Patton Boggs, LLP
One Riverfront Plaza, 6th Floor
Newark, NJ 07102

Attorneys for Appellants Ecuadorian Plaintiffs

Gene C. Schaerr (argued)
Eric W. Bloom
Nicole Y. Silver
Gregory L. Ewing
Winston & Strawn LLP
1700 K Street N.W.
Washington, DC 20006

Jonathan F. Bloom
Stradley, Ronon, Stevens & Young
2600 One Commerce Square
2005 Market Street
Philadelphia, PA 19103

Attorneys for Appellant Republic of Ecuador

Arthur Makadon

3
Burt M. Rublin
Ballard Spahr LLP
1735 Market Street, 51st Floor
Philadelphia, PA 19103

Scott A. Edelman
Andrea E. Neuman
Gibson, Dunn & Crutcher LLP
2029 Century Park East
Los Angeles, CA 90067-3026

Randy M. Mastro (argued)
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, NY 10166-0193

Thomas H. Dupree, Jr.
John F. Bash
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, NW
Washington, DC 20036

Attorneys for Appellee Chevron Corporation

Andrés Rivero (argued)
Jorge A. Mestre
Paul E. Dans
Catherine C. Grieve
Rivero Mestre LLP
2525 Ponce de Leon Boulevard
Suite 1000

4
Miami, FL 33134

Frederick A. Tecce
McShea & Tecce
1717 Arch Street
28th Floor, The Bell Tower Atlantic
Philadelphia, PA 19103-0000

Attorneys for Appellee Rodrigo Pérez Pallares

Alan Vinegrad
Jason P. Criss (argued)
Covington & Burling LLP
The New York Times Building
620 Eighth Avenue
New York, NY 10018

Enrique Armijo
Covington & Burling LLP
1201 Pennsylvania Avenue, N.W.
Washington, DC 20004

Burt M. Rublin
Ballard Spahr LLP
1735 Market Street
51st Floor
Philadelphia, PA 19103

Attorneys for Appellee Ricardo Reis Veiga

James J. Rohn

5
Patricia M. Hamill (argued)
Matthew H. Haverstick
Conrad O‘Brien PC
1515 Market Street, 16th Floor
Philadelphia, PA 19102

Attorneys for Appellees Kohn, Swift & Graf, P.C. and
Joseph C. Kohn, Esquire

______________

OPINION OF THE COURT
______________

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this Court on appeal from
the District Court‘s December 20, 2010 order granting Chevron
Corporation (Chevron), and two of its attorneys, Rodrigo Pérez
Pallares and Ricardo Reis Veiga (collectively with Chevron ―the
Chevron applicants‖), discovery from attorney Joseph C. Kohn
and his law firm, Kohn, Swift & Graf, P.C. (KSG), pursuant to
discovery applications that the Chevron applicants filed under
28 U.S.C. § 1782. Section 1782 provides 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,‖ subject to the express limitation that ―[a]
person may not be compelled to give his testimony or statement

6
or to produce a document or other thing in violation of any
legally applicable privilege.‖ 28 U.S.C. § 1782(a).

The underlying foreign litigation giving rise to the
section 1782 applications is an environmental class action in
Lago Agrio, Ecuador (the Lago Agrio litigation), that the
inhabitants of the Oriente region of eastern Ecuador (the
Ecuadorian plaintiffs) brought alleging that Texaco Petroleum
Company (TexPet), a subsidiary of Texaco, Inc. (Texaco),
which merged with Chevron in 2001, contaminated the area and
caused significant health problems for its residents. As we
explain below, Kohn and KSG have been involved for many
years on behalf of the Ecuadorian plaintiffs in the underlying
litigation in both legal and financial capacities. The Chevron
applicants sought section 1782 discovery for use in the Lago
Agrio litigation itself, criminal proceedings arising from
TexPet‘s Ecuadorian activities that have been instituted against
Pérez and Veiga1 in Ecuador, and an arbitration that Chevron
initiated against the Republic of Ecuador with the United
Nations Commission on International Trade Law (UNCITRAL)
pursuant to the United States-Ecuador Bilateral Investment
Treaty (BIT).2

1
We refer to Rodrigo Pérez Pallares as Pérez throughout this
opinion in accordance with his brief, as he is of Spanish descent.
We were informed at oral argument that Ricardo Reis Veiga is
Brazilian and, being of Portuguese descent, goes by Veiga.
2
The Ecuadorian plaintiffs are not a party to the BIT arbitration,
though they have an interest in the outcome of those

7
 The Ecuadorian plaintiffs and the Republic of Ecuador
(collectively ―appellants‖), both of whom intervened in the
District Court in this case, contend that the Court erred in
granting the Chevron applicants‘ section 1782 discovery
applications and assert several challenges to the Court‘s rulings.
The Ecuadorian plaintiffs‘ primary challenge is to the Court‘s
conclusion 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 or individual applicants, [Pérez]
and Veiga, any such privilege has been waived by public
disclosure and does not apply to any documents related to the
Lago Agrio Litigation[.]‖ In re Application of Chevron Corp.,
Nos. 10-MC-208 and 10-MC-209, 2010 WL 5173279, at *11
(E.D. Pa. Dec. 20, 2010). Specifically, the Ecuadorian plaintiffs
contend that the Court misstated the law regarding waiver of the
attorney-client privilege, causing it to omit fairness
considerations in its analysis, and that consequently its ruling
that the attorney-client privilege was waived for all documents
in Kohn‘s file related to the Lago Agrio litigation primarily on
the basis of the filming of the documentary Crude, which
chronicled the Lago Agrio litigation, was too broad. They also
argue ―that the presence of strangers‖ during attorney meetings
prevented the privilege from ever attaching to what otherwise
might have been privileged information. Ecuadorian plaintiffs‘
br. at 23. n.7. As will be seen, the ―presence of strangers‖
during attorney meetings being filmed for Crude is the critical
factor in the disposition of this appeal. The Republic of Ecuador
challenges the District Court‘s conclusion that it ―failed to
establish its right to assert the community-of-interest privilege

proceedings.

8
with respect to the documents and deposition testimony sought
in this case.‖ In re Application of Chevron Corp., 2010 WL
5173279, at *11. We, however, will have no need to address
that issue.

Inasmuch as we hold that the communications filmed for
Crude and its outtakes were not covered by the attorney-client
privilege when made due to the presence of the filmmakers at
the time of the communications, we will reverse the District
Court‘s orders because the public disclosure of non-privileged
communications does not lead to a subject matter waiver of the
attorney-client privilege for communications covered by the
privilege. We, nevertheless, will remand the matter to the
District Court so that it may consider the Chevron applicants‘
contention that certain communications in Kohn‘s file are
discoverable pursuant to the crime-fraud exception to the
attorney-client privilege.

II. FACTS AND PROCEDURAL HISTORY

This is our second encounter with a section 1782
discovery request relating to the Lago Agrio litigation, and
because much of the background factual information in this case
is the same as that we recounted in our earlier encounter in In re
Chevron Corp., 633 F.3d 153 (3d Cir. 2011), we only will
outline that background information briefly before setting forth
in more detail those facts essential to the resolution of this
appeal.

9
 The Ecuadorian plaintiffs initially brought a class action
suit against Texaco in 1993 in the United States District Court
for the Southern District of New York (the Aguinda case),
claiming that pollution from oil exploration and extraction
activities had harmed individuals inhabiting the Oriente region
of Ecuador and damaged the natural ecosystem in the area.
After years of litigation, the court dismissed the Aguinda case in
2002 on forum non conveniens grounds, based in part on
Texaco‘s representations that the Ecuadorian judiciary was
impartial and free from corruption and that the Ecuadorian
courts could provide a fair and appropriate forum in which to
resolve the dispute in the Aguinda case. See Aguinda v.
Texaco, Inc., 303 F.3d 470, 474-80 (2d Cir. 2002).

In 2003, after dismissal of the Aguinda case, the
Ecuadorian plaintiffs instituted the Lago Agrio litigation against
Chevron in Ecuador.3 On February 14, 2011, shortly before we
heard oral argument on this appeal, the Lago Agrio Court issued
a comprehensive opinion adjudicating the case and entering
judgment in United States dollars against Chevron, calculating
the compensatory damages at $8.646 billion. The breakdown of
the damages award was as follows: $5.396 billion for soil
remediation; $1.4 billion for health care costs; $800 million for
deaths due to cancer; $600 million for groundwater remediation;
$200 million for damage to the ecosystem; $150 million for
drinking water remediation; and $100 million for damages to
indigenous culture. The judgment also included a provision

3
The parties in the Aguinda case and the Lago Agrio litigation
were not identical.

10
granting an equivalent $8.646 billion in punitive damages
payable if Chevron did not issue a public apology within 15 days
of entry of the judgment.4

Both Chevron and the Ecuadorian plaintiffs have
signaled their intent to appeal from the judgment entered in the
Lago Agrio litigation. It is our understanding that the
Ecuadorian appellate court will exercise de novo review over
both the Lago Agrio Court‘s findings of fact and conclusions of
law. Moreover, the Ecuadorian plaintiffs‘ litigation team
produced a memorandum in response to a Chevron section 1782
application in the Southern District of New York seeking
discovery from Steven Donziger, the Ecuadorian plaintiffs‘ lead
American attorney, stating that ―during the pendency of that
appeal, the judgment is not deemed enforceable under
Ecuadorian law, and thus, would not appear to be enforceable
anywhere else.‖5 Chevron Supp. App. II at 480. The
Ecuadorian plaintiffs‘ attorneys‘ memo further explained that
―[b]eyond this initial level of appeal, it is our understanding that
Chevron would be required to post an appellate bond equivalent
to 100% of the judgment[,]‖ and for that reason the Ecuadorian
plaintiffs‘ attorneys believe that if the Ecuadorian plaintiffs
prevail on the initial appeal, ―it seems likely that Chevron will
pursue no further recourse in Ecuador.‖ Id.

4
We are not aware whether Chevron has issued a public
apology.

5
Even if the appeals do not stay enforcement of the judgment or
the appellate standard of review is not de novo, our result on this
appeal would not be different.

11
 As the Lago Agrio litigation progressed, Chevron‘s
opinion of the Ecuadorian courts changed dramatically, and
Chevron now contends that the Ecuadorian judiciary is rife with
corruption and that a fair trial was not possible in the Lago
Agrio litigation. Assessing that its litigation prospects in
Ecuador were not promising, correctly as it turned out, on
November 23, 2009, Chevron commenced the BIT arbitration
against the Republic of Ecuador, seeking a declaration that any
judgment the Lago Agrio Court entered would be unenforceable
by reason of the judgment having been fraudulently obtained.
Furthermore, Chevron asserted that there is corruption within
the Ecuadorian judiciary and that the Ecuadorian government
interfered in the judicial process in the Lago Agrio litigation.6
The BIT arbitral panel, which we understand is composed of
two private lawyers and a law professor, held a hearing on
February 6, 2011, and on February 9, 2011, issued interim
measures ordering the Republic of Ecuador to take all measures
at its disposal to suspend the enforcement or recognition of any
judgment entered in the Lago Agrio litigation both inside and
outside of Ecuador. We are unaware of whether the Republic of
Ecuador has taken any steps to implement the provisions in the
order.

6
Though not a party to the BIT arbitration, the Ecuadorian
plaintiffs filed suit in the Southern District of New York seeking
a stay of the BIT arbitration. The Republic of Ecuador also
moved for a stay of the BIT arbitration, but the district court
declined to issue the stay, and the United States Court of
Appeals for the Second Circuit has affirmed its ruling on appeal.
See Republic of Ecuador v. Chevron Corp., No. 10-1020-cv, --
F.3d --, 2011 WL 905118 (2d Cir. March 17, 2011).

12
 Perhaps regretting its earlier efforts to have the Aguinda
case dismissed in the Southern District of New York, Chevron
filed a civil Racketeer Influenced and Corrupt Organizations Act
(RICO) suit against Donziger and other attorneys that
represented the Ecuadorian plaintiffs, though not including
Kohn or KSG as defendants, in the Southern District of New
York on February 1, 2011. As part of that suit Chevron is
seeking a declaration that the Lago Agrio judgment is not
entitled to recognition or enforcement outside of Ecuador
because the Ecuadorian plaintiffs‘ attorneys procured the
judgment by their fraudulent conduct, and, somewhat ironically
given its past representations in the Southern District of New
York, because the Ecuadorian legal system is not impartial and
does not provide litigants due process of law. On March 7,
2011, the district court in the Southern District of New York
granted Chevron‘s motion for a worldwide preliminary
injunction barring the Ecuadorian plaintiffs from enforcing the
Lago Agrio judgment. See Chevron Corp. v. Donziger, No. 11
Civ. 0691, -- F. Supp. 2d --, 2011 WL 778052 (S.D.N.Y. March
7, 2011).

During the course of the Lago Agrio litigation Chevron
has filed a series of section 1782 discovery applications in
federal courts across the United States seeking information
related to that litigation and to its contention that the Ecuadorian
plaintiffs, through their attorneys, have been involved in
fraudulent conduct.7 Specifically, the Chevron applicants

7
According to the brief of the Republic of Ecuador, the Chevron
applicants have submitted ―twenty-three similar requests for
discovery under 28 U.S.C. § 1782, the Republic has submitted

13
contend that the Ecuadorian plaintiffs and their representatives
conspired to ghostwrite reports entered into evidence in the
Lago Agrio litigation by purportedly neutral and independent
scientists, and also surreptitiously were instrumental in the
institution of criminal charges against Pérez and Veiga in
Ecuador.

Before instituting these section 1782 proceedings,
Chevron sent Kohn and KSG a letter on November 8, 2010,
threatening to institute the proceedings against them. Kohn and
KSG responded by filing a complaint for declaratory relief in the
United States District Court for the Eastern District of
Pennsylvania on November 12, 2010, because they perceived
that they faced the dilemma of either ―choos[ing] not to resist
the forthcoming [section 1782] Application and disclos[ing] the
materials sought, but risk[ing] suit from its former clients[,]‖ or
―oppos[ing] the Application and withhold[ing] the requested
materials, but risk[ing] continued irreparable harm to its
reputation as a result of scandalous, totally unfounded, and false
allegations of fraud made by Chevron and [Pérez] & Veiga in
other § 1782 actions and subsequently repeated in the media.‖
Appellees Kohn‘s and KSG‘s br. at 3.

As they said they would do, the Chevron applicants filed

two requests, and the Ecuadorian Plaintiffs have submitted one.‖
Appellant Republic of Ecuador‘s br. at 3. In our opinion in In
re Chevron, we indicated that Chevron had brought at least 25
section 1782 requests. 633 F.3d at 159. Overall, whatever is the
correct number of section 1782 applications, this litigation must
be unique in the annals of American judicial history.

14
the present section 1782 applications in the Eastern District of
Pennsylvania on November 16, 2010, four days after Kohn and
KSG filed their declaratory judgment action. The Chevron
applicants in their applications sought discovery from Kohn and
KSG to support their contentions regarding fraudulent activity in
the Lago Agrio litigation. In particular, the applications sought
documents in Kohn‘s file relating to that litigation and also
sought an order allowing the Chevron applicants to depose
Kohn. Kohn‘s role in the underlying environmental litigation
had been that of an attorney and financier for 16 years, from the
inception of the initial class action suit in the Southern District
of New York in 1993 until Kohn had a falling out with Donziger
in 2009. Indeed, it appears that he and his firm have expended
millions of dollars in the prosecution of the Ecuadorian
plaintiffs‘ claims.

After the Chevron applicants filed their section 1782
applications, the District Court placed the Kohn/KSG
declaratory judgment action in civil suspense. Kohn did not and
does not object to producing the discovery the Chevron
applicants are seeking, though he does maintain that if there was
a crime or fraud committed in connection with the Lago Agrio
litigation, he had no knowledge of or involvement in it.8
Though Kohn and KSG are not averse to providing the
discovery that the Chevron applicants have sought, they took no
position in the District Court concerning the propriety of the

8
Kohn‘s wishes in this respect are immaterial because the
attorney-client privilege belongs to the client—in this litigation,
the Ecuadorian plaintiffs—and not their attorney. See In re
Impounded Case, 879 F.2d 1211, 1213 (3d Cir. 1989).

15
discovery applications or the applicability of any evidentiary
privileges. They, however, voluntarily did produce an 833-page
privilege log to all of the parties on December 6, 2010, an effort
that Kohn and KSG state required ―hundreds of attorney hours
reviewing and cataloging some 15,000-plus emails,
approximately 40,000 pages of hard copy documents, and nearly
5,000 electronically stored documents[.]‖ Id. at 5.
Notwithstanding Kohn‘s neutral position in the District Court,
there was opposition to the Chevron applicants‘ discovery
applications because the Ecuadorian plaintiffs and the Republic
of Ecuador intervened in that Court as interested parties and
opposed the section 1782 applications. They are the appellants
in this appeal.

The evidence the Chevron applicants presented in the
District Court in support of their contentions came primarily
from discovery that they obtained as a result of successful
section 1782 applications they filed in the Southern District of
New York, particularly from outtakes during the production of
Crude, the documentary chronicling the Lago Agrio litigation.
The outtakes were recordings made in the preparation of the
final film that were not used in the documentary and were many
times longer than the film itself. The Chevron applicants also
introduced communications produced by Donziger, the lead
American attorney for the Ecuadorian plaintiffs and who
initiated the filming of Crude, in response to a prior section
1782 discovery request.9 Kohn apparently was filmed for Crude

9
In fact, the district court in the Southern District of New York
granted the Chevron applicants nearly unfettered access to all of
Donziger‘s communications related to the Lago Agrio litigation,

16
on three occasions, during and after meetings in Philadelphia on
April 10, 2006, June 5, 2006, and January 31, 2007.10 He
appears in the released version of the documentary for less than
2 minutes, and, although we are not certain exactly how long he
appears in the 600 hours of Crude outtakes, it is not a significant
portion of that time, at least in a temporal sense, and, according
to representations made at oral argument before us, likely was
less than 2 hours.

Chevron suggests that Kohn‘s file has communications
related to its allegation that support its contention that
environmental consultants ghostwrote the global damages expert
report that Richard Stalin Cabrera Vega, a purportedly neutral
scientific expert, submitted to the Lago Agrio Court (the
Cabrera report), and that Kohn financed the work of some of
those consultants.11 Kohn denies that he had any knowledge of
or involvement in ghostwriting the Cabrera report. The Chevron
applicants also allege that Kohn and the Ecuadorian plaintiffs

in part because he failed to comply with discovery orders issued
by that court. See In re Chevron Corp., 749 F. Supp. 2d 170
(S.D.N.Y. 2010).

10
Kohn claims that he was only filmed for the documentary
twice, once in June 2006 and once in January 2007. The exact
number of times that Kohn was filmed makes no difference to
our outcome.
11
The Cabrera report was of central importance in our prior
opinion relating to the Lago Agrio litigation. See In re Chevron
Corp., 633 F.3d 153.

17
surreptitiously were involved in the institution of criminal
prosecutions against Pérez and Veiga, which stem from a
settlement and release agreement that Texaco entered into with
the Republic of Ecuador in the mid-1990s, and contend that
documents in Kohn‘s file will confirm their suspicions. The
parties‘ briefs describe the circumstances leading to the filing of
criminal charges against Pérez and Veiga, and so we will
synthesize those events, as well as the inferences the parties
draw therefrom.

As we have discussed, the Ecuadorian plaintiffs initially
filed their environmental contamination case as a class action in
the Southern District of New York. While that case was
pending, the Republic of Ecuador and TexPet entered into a
1994 Memorandum of Understanding and a 1995 Settlement
and Release Agreement whereby TexPet

agreed to perform specified
environmental remedial work in
exchange for a release of claims by
the Government of Ecuador and
Petroecuador. This release, granted
to TexPet, Texaco, Inc., and other
related companies, encompassed by
its terms ‗all the Government‘s and
Petroecuador‘s claims against the
Releases for Environmental Impact
arising from the Operations of the
Consortium[.]‘

Republic of Ecuador v. ChevronTexaco Corp., 376 F. Supp. 2d

18
334, 342 (S.D.N.Y. 2005). In 1998 the Republic of Ecuador and
Petroecuador executed a Final Release certifying that TexPet
had performed the required remediation and had met its
obligations under the 1995 Settlement and Release Agreement,
and that by its terms they released ―TexPet and related
companies from any liability and claims by the Government of
the Republic of Ecuador, PETROECUADOR and its Affiliates,
for items related to the obligations assumed by TEXPET in the
1995 Settlement.‖ Id. (internal quotation marks and citation
omitted).

The parties dispute the legal impact of the 1998 Final
Release. The Chevron applicants argue that it bars the
Ecuadorian plaintiffs from making any recovery in the Lago
Agrio litigation; indeed, this contention has been one of
Chevron‘s primary arguments in the Lago Agrio litigation, the
BIT arbitration, and the Southern District of New York
litigation. The Ecuadorian plaintiffs contend, and the Republic
of Ecuador agrees, that the Final Release, if valid at all, is valid
only against the Republic and that it was not intended to release
TexPet from liability for claims by third parties. They point to
the fact that the named parties to the Final Release negotiated it
while the Aguinda case was pending, and argue that ―it is highly
unlikely that a settlement entered into while Aguinda was
pending would have neglected to mention the third-party claims
being contemporaneously made in Aguinda if it had been
intended to release those claims or to create an obligation to
indemnify against them.‖ Id. at 374. In its opinion
accompanying its judgment that we described above awarding
the Ecuadorian plaintiffs damages, the Lago Agrio Court
expressed an understanding of the Final Release akin to those

19
that the Ecuadorian plaintiffs and the Republic of Ecuador
advanced, reasoning that the Final Release only bound the
government and not the Ecuadorian plaintiffs.

Whatever may have been the scope of the Final Release,
the Ecuadorian Comptroller General in 1997 initiated an audit
that continued until 2002, questioning the adequacy of TexPet‘s
remediation, and raising the question of whether Ecuadorian
officials and TexPet representatives had committed criminal
offenses in certifying the adequacy of the remediation work
leading to the execution of the 1998 Final Release. The audit
led to a criminal denuncia (complaint) by the Comptroller
General‘s office in October 2003, which, in turn, triggered
investigations into determining whether anyone was criminally
liable for falsifying documents or committing environmental
crimes in connection with the remediation and Final Release.
The Prosecutor General of Ecuador began an investigation into
the criminal complaint in 2004, but in 2006 the District
Prosecutor found that the evidence was insufficient to pursue a
criminal case against Pérez and Veiga.

In April 2007, President Rafael Correa, who had been
elected President of Ecuador in 2006, issued a press release
urging the Office of the Prosecutor to initiate a prosecution of
Petroecuador officials who signed off on TexPet‘s remediation
efforts. The following day he added that Chevron-Texaco
attorneys involved in any fraudulent conduct also should be
prosecuted. On March 31, 2008, a new Prosecutor General
reopened the criminal investigations of Pérez and Veiga on the
basis of what was claimed to be newly discovered evidence, and
the Prosecutor General issued an instrucción fiscal (prosecutor‘s

20
investigation report) on August 26, 2008. Part of the criminal
investigation of Pérez and Veiga included a June 2009 interview
with Cabrera—the court-appointed expert in the Lago Agrio
litigation who the Chevron applicants maintain conspired with
the Ecuadorian plaintiffs and committed a fraud on the Lago
Agrio Court by submitting a purportedly independent global
damages assessment that, in actuality, the Ecuadorian plaintiffs
ghostwrote—to discuss the remediation work that TexPet
performed. In April 2010, the Prosecutor General filed a
dictamen fiscal (prosecutor‘s report), formally charging Pérez
and Veiga, along with seven former Ecuadorian government
officials, with criminal activity.

The Chevron applicants point primarily to two pieces of
evidence that they claim demonstrate that the Ecuadorian
plaintiffs colluded with the Republic of Ecuador in a plot to
have criminal charges brought against Pérez and Veiga, and
contend that the evidence links Kohn and KSG to that effort.
First, the Chevron applicants refer to a discussion between Kohn
and Donziger from the Crude outtakes on January 31, 2007, in
which Donziger tells Kohn that the Ecuadorian plaintiffs‘ legal
team submitted a report to the Ecuadorian Attorney General
detailing their findings that Texaco had not completed the
remediation work that the 1995 Settlement and Release
Agreement required and that the 1998 Final Release said had
been done. Second, the Chevron applicants focus on a comment
that Kohn made to Donziger in the course of the same
discussion when Kohn said: ―So, again, that may be something
that we could facilitate going away at the right time . . . if
[Chevron] wanted it to go away.‖ Appellee Chevron‘s br. at 22.
The parties disagree about what Kohn‘s reference meant when

21
he made that comment, with the Chevron applicants contending
that the comment indicated that an attorney for the Ecuadorian
plaintiffs could cause the criminal charges against Pérez and
Veiga to disappear in exchange for a settlement with Chevron,
and Kohn maintaining that he merely was explaining that the
report submitted to the Attorney General could be withdrawn if
a settlement was reached, and that Chevron likely would require
such a withdrawal as part of a global settlement.

On December 20, 2010, after a hearing during which the
attorneys had an opportunity to advance their positions, the
District Court granted the Chevron applicants the discovery that
they requested in their section 1782 applications, basing its
ruling primarily on the Crude outtakes. The District Court
found that the factors the Supreme Court in Intel Corp. v.
Advanced Micro Devices, Inc., 542 U.S. 241, 124 S.Ct. 2466
(2004), enunciated for consideration in a section 1782
application were not an impediment to discovery in this case.
The District Court then considered and rejected claims of
privilege that the Ecuadorian plaintiffs raised, ruling that
Donziger, in allowing the crew filming Crude intimate access to
the proceedings in the Lago Agro litigation, effected a broad
subject matter waiver of the attorney-client privilege for all of
Kohn‘s communications related to that litigation. The Court
also ruled that the Republic of Ecuador had failed to bear its
burden of demonstrating the applicability of the community-of-
interest doctrine. Because the Court granted the Chevron
applicants discovery of all of Kohn‘s communications related to
the Lago Agrio litigation, it expressly declined to rule on the
Chevron applicants‘ contention that the crime-fraud exception
operated to vitiate the attorney-client privilege.

22
 Appellants sought a stay of the discovery ruling, but the
District Court denied their requests for both a one-week stay and
a three-day stay. The Court filed a written amplification of its
December 20, 2010 opinion pursuant to Third Circuit Local
Appellate Rule 3.1, explaining that time was of the essence12
because a preliminary hearing on the criminal charges against
Pérez and Veiga was scheduled in Ecuador for January 5,
2011.13 The Court also explained that Pérez and Veiga had
presented evidence that the Ecuadorian plaintiffs had some
involvement in the initiation of the criminal prosecution against
them.

Appellants filed a motion in this Court for a stay pending
appeal, or, in the alternative, for a temporary stay pending a
hearing on their motion for a stay. We granted a temporary stay
on December 22, 2010, and heard oral arguments on the motion
for a stay pending appeal on January 5, 2011, after which we
granted appellants‘ motion for a stay pending appeal.

12
The District Court recognized that the Chevron applicants had
created some of the time exigency by waiting until November
16, 2010, to file their section 1782 discovery applications.

13
The criminal preliminary hearing originally had been
scheduled for November 10, 2010, and then was rescheduled for
January 5, 2011. At the January 5, 2011 oral argument before us
on appellants‘ motion for a stay pending appeal, the parties
informed us that the preliminary hearing had been postponed
indefinitely. Though it later was rescheduled for March 2, it
was postponed yet again, and we are not aware of any new date.

23
 III. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction pursuant to 28 U.S.C.
§ 1782, and we have jurisdiction pursuant to 28 U.S.C. § 1291.
We review a district court‘s decision on a discovery request
under section 1782 for an abuse of discretion. In re Chevron
Corp., 633 F.3d at 161. ―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. (quoting In re Bayer AG, 146 F.3d 188, 191 (3d
Cir. 1998)). In this case we are exercising plenary review
because we will hold that the District Court erred as a matter of
law in granting the section 1782 applications.

IV. PARTIES‘ ARGUMENTS

The District Court reasoned as follows in reaching its
conclusion that the filming of Crude effected a broad subject
matter waiver of the attorney-client privilege for all of Kohn‘s
communications relating to the Lago Agrio litigation:

[B]y inviting a documentary film
crew to attend and record attorney
meetings and other events where
confidential matters were
discussed, the Lago Agrio plaintiffs
waived any otherwise applicable
privilege or work-product
protection for documents related to

24
the Lago Agrio Litigation. The
hundreds of hours of footage from
the filming of Crude demonstrate
that the Lago Agrio Plaintiffs
arranged for the filmmakers to
attend numerous attorney meetings
and gave them broad access to
information that would usually be
treated as a confidential part of the
attorney-client relationship. . . .

The voluntary disclosure by
a client of a privileged
communication waives the
privilege as to other such
communications relating to the
same subject matter made both
prior to and after the occurrence of
the waiver. Murray v. Gemplus
International, 217 F.R.D. 362, 367
(E.D. Pa. 2003). Under some
circumstances, a party making a
very limited intentional disclosure
is entitled to a fairness balancing
test to determine if that the waiver
extends to related documents. See,
e.g., Westinghouse Elec. Corp. v.
Republic of Phil., 951 F.2d 1414,
1426 at n. 13 (3d Cir. 1991). The
Court concludes, however, that
given the truly exceptional scope of

25
 the waiver in this case, the Lago
Agrio Plaintiffs are not entitled to
such a balancing test. To allow the
Lago Agrio Plaintiffs to waive [the]
privilege expansively for favorable
documents and information as part
of a calculated public relations
campaign and then shield related
documents behind the screen of
privilege would be to permit the use
of privilege and the work product
doctrine as both sword and shield,
an abuse that courts have
discouraged. See, e.g., Gemplus
Int‘l, 217 F.R.D. at 367[.]

In re Application of Chevron Corp., 2010 WL 5173279, at *7-8.

As we have indicated, the Ecuadorian appellants make
the fundamental contention that ―the presence of strangers‖
during attorney meetings precluded the attorney-client privilege
from attaching to what otherwise might be privileged
communications. Appellant Ecuadorian plaintiffs‘ br. at 23 n.7.
If that contention is correct, then the communications in the
presence of the filmmakers never were privileged and thus there
could not have been, in the words of the District Court, a
―voluntary disclosure by a client of a privileged communication‖
and the District Court necessarily erred in reaching its result.

Appellants also contend, relying on the United States
Court of Appeals for the Second Circuit‘s opinion in In re Von

26
Bulow, 828 F.2d 94 (2d Cir. 1987), that the District Court erred
in conducting its waiver analysis because it failed to distinguish
between the disclosure of communications ―made during a
judicial proceeding and those disclosures made in an
extrajudicial setting.‖ Appellant Ecuadorian plaintiffs‘ br. at 24.
In Von Bulow the court held that ―the extrajudicial disclosure
of an attorney-client communication—one not subsequently
used by the client in a judicial proceeding to his adversary‘s
prejudice—does not waive the privilege as to the undisclosed
portions of the communication.‖ Id. at 102. The Von Bulow
court reasoned that ―disclosures made in public rather than in
court—even if selective—create no risk of legal prejudice until
put at issue in the litigation by the privilege-holder[,]‖ and so in
such cases ―there exists no reason in logic or equity to broaden
the waiver beyond those matters actually revealed.‖ Id. at 103.

According to appellants, the Ecuadorian plaintiffs and
Donziger caused Crude to be filmed for public relations
purposes, and not for use in litigation. Indeed, appellants stress
that the Chevron applicants, and not appellants, are utilizing
Crude and its outtakes in litigation and the Chevron applicants
are attempting to gain an advantage from the filming of Crude
and its outtakes. Appellants argue that because Crude contained
only extrajudicial disclosures not intended to gain any advantage
in the Lago Agrio litigation, if there was a public disclosure of
privileged communications in the film, the disclosure would not
justify a finding that there was a waiver of the attorney-client
privilege for all communications in Kohn‘s file relating to the
Lago Agrio litigation. In this regard they point to Von Bulow,
in which the court explained that ―[a]lthough it is true that
disclosures in the public arena may be ‗one-sided‘ or

27
‗misleading‘, so long as such disclosures are and remain
extrajudicial, there is no legal prejudice that warrants a broad
court-imposed subject matter waiver.‖ Id.

The Chevron applicants argue that the touchstone of a
waiver analysis is not whether the beneficiaries of the privilege
disclosed the privileged information in court or in an
extrajudicial setting, but rather fairness, and that it would be
unfair to the Chevron applicants to allow the Ecuadorian
plaintiffs selectively to disclose privileged information.14
Moreover, the Chevron applicants contend that ―the very aim of
the disclosures Plaintiffs made in Crude was to influence the
litigation in Ecuador,‖ Appellees Pérez‘s and Veiga‘s br. at 46,
and that ―the obvious purpose of the film was to gain an
advantage in the Lago Agrio litigation by generating public
support for Plaintiffs and putting pressure on Chevron to pay a
future judgment or to offer a generous settlement.‖ Appellee
Chevron‘s br. at 36. Thus, according to the Chevron applicants,

14
The Chevron applicants claim that appellants abandoned any
argument regarding the broad scope of the District Court‘s
privilege ruling because they did not raise the issue in that
Court, and also claim that appellants lack standing to challenge
that Court‘s privilege rulings. We reject the Chevron
applicants‘ contentions. The Ecuadorian plaintiffs raised the
issue in the District Court, both in their brief and at oral
argument. See App. at 1347, 1829, 1863. And, because the
Ecuadorian plaintiffs are the clients to whom the privilege
belongs, they clearly have standing to challenge the District
Court‘s privilege rulings.

28
because the Ecuadorian plaintiffs and their representatives
selectively disclosed privileged communication to gain a
strategic advantage in litigation, the District Court correctly
ruled that that disclosure effected a broad subject-matter waiver
of all of Kohn‘s privileged communications relating to the Lago
Agrio litigation.

V. DISCUSSION

A. The Attorney-Client Privilege and Waiver

The Chevron applicants‘ arguments, and the District
Court‘s opinion, presuppose that the attorney-client privilege
protected the material in Crude and its outtakes from disclosure,
for only if there was such a protection could the disclosure of
that material waive the attorney-client privilege protecting
Kohn‘s file.15 Thus, our initial inquiry necessarily is whether

15
We realize that the question of whether the attorney-client
privilege protected the material in Crude and its outtakes was
raised only obliquely, if at all, in the District Court.
Nevertheless, we can consider the question on this appeal, for
we long have recognized that we can exercise discretion to
consider matters on appeal not raised in a district court ―if ‗the
public interest or justice so warrants[.]‘‖ Galena v. Leone, 638
F.3d 186, 202 n.13 (3d Cir. 2011) (quoting Appalachian State
Low-Level Radiation Comm‘n v. Pena, 126 F.3d 193, 196 (3d
Cir. 1997)). Here we are considering the question of whether
the attorney-client

29
the Crude material was privileged in the first place. In order for
the attorney-client privilege to attach to a communication, ―it
must be ‗(1) a communication (2) made between privileged
persons (3) in confidence (4) for the purpose of obtaining or
providing legal assistance for the client.‘‖ In re Teleglobe
Commc‘ns Corp., 493 F.3d 345, 359 (3d Cir. 2007) (quoting
RESTATEMENT (THIRD) OF THE LAW GOVERNING
LAWYERS § 68 (2000)). We explained with respect to the
third requirement in Teleglobe that ―if persons other than the
client, its attorney, or their agents are present, the
communication is not made in confidence, and the privilege
does not attach.‖ Id. at 361. Here, the communications captured
on film clearly were not made ―in confidence‖ due to the
presence of the filmmakers at the time of the communications,
and so the protections of the attorney-client privilege never
attached to those communications.16 In such a scenario the

privilege protected the material disclosed in the filming of
Crude. Unless we do so, we will decide the case incorrectly; if
the Crude material was not privileged, revealing the material,
including attorneys‘ discussions, simply could not waive the
privilege shielding other material, i.e., the material in Kohn‘s
file.

16
The Chevron applicants do not contend that the filmmakers
should be regarded as ―agents‖ of the Ecuadorian plaintiffs so
that the attorney-client privilege could attach to communications
in their presence. See Westinghouse Elec. Corp. v. Republic of
the Phil., 951 F.2d 1414, 1424 (3d Cir. 1991). Of course, if the
filmmakers were ―agents‖ of the Ecuadorian plaintiffs necessary
to the litigation, then the disclosure of information to them

30
waiver argument advanced by the Chevron applicants is
unavailing because, inasmuch as the communications were not
protected by the attorney-client privilege, there was no risk of a
litigant using the privilege as both a sword and a shield in an
effort to gain an advantage in litigation, and thus there is no role
for a court to play as arbiter of notions of ―fairness.‖17

would not have been a disclosure to a stranger and the disclosure
could not have waived the attorney-client privileges for other
material.
17
Of course, we recognize that in a typical case the difference
between a finding that a communication was not privileged in
the first place, and a finding that a communication was
privileged but that the privilege was waived by subsequent
disclosure of that communication to a third party, will be
meaningless, because in a typical case a party is seeking to
discover the communication in issue, and in either scenario the
communication in issue will be discoverable because it is not
protected by the attorney-client privilege. Here, however, the
Chevron applicants are not seeking to discover the
communications in issue, as they already have access to the
Crude outtakes as a result of an earlier successful section 1782
application. Rather, the Chevron applicants are attempting to
use the Crude outtakes as a means to effectuate a broad subject
matter waiver of the entirety of Kohn‘s communications related
to the Lago Agrio litigation. Because the basis for their position
is that the Ecuadorian plaintiffs selectively disclosed privileged
communications in Crude to gain an advantage in litigation, it
matters that the communications in Crude and its outtakes were

31
 This case is distinguishable from our prior decision in In
re Chevron Corp., 633 F.3d 153. There, the attorney-client
privilege covered the communications in issue because they
were made in confidence between privileged persons for the
purpose of providing legal assistance. We held that by later
disclosing those initially privileged communications to a third
party—the court-appointed expert Cabrera—the Ecuadorian
plaintiffs waived any claims of attorney-client privilege as to
those communications. Here, on the other hand, because the
communications were not made ―in confidence‖ due to the
presence of the Crude filmmakers, they were not privileged to
begin with, and there was no privilege to waive by their
disclosure. Accordingly, there is no justification for finding any
waiver of the attorney-client privilege for Kohn‘s
communications relating to the Lago Agrio litigation on the
basis of disclosures made during the filming of Crude and its
outtakes, even if those disclosures were selective, given that the
communications disclosed were not privileged when made.

For that reason, we are constrained to reverse the District
Court‘s December 20, 2010 order granting the Chevron
applicants‘ application for discovery pursuant to section 1782.18

not covered by the attorney-client privilege, because the risk of a
party using the privilege both as a sword and a shield by
selectively disclosing communications to gain an advantage in
litigation simply does not exist when the selectively disclosed
communications were not privileged when made.
18
As far as we can ascertain from their briefs and oral
arguments, the Chevron applicants do not present any arguments

32
 Because we will reverse the Court‘s order granting the
applications, it is not necessary for us to address most of the
other issues the parties raise on this appeal, including the
applicability of the community-of-interest doctrine,19 and we
decline to offer our views with respect to those issues as they
would be mere obiter dictum.

B. The Crime-Fraud Exception

The Chevron applicants maintain, however, that the
record provides a sufficient basis to affirm the District Court‘s
determination that there was a broad subject matter waiver of
the attorney-client privilege for all of Kohn‘s communications
related to the Lago Agrio litigation on the alternative ground
that application of the crime-fraud exception to the attorney-
client privilege eliminated the protection of Kohn‘s
communications related to the Lago Agrio litigation. The

on appeal in support of their contention that the attorney-client
privilege does not cover Kohn‘s communications relating to the
Lago Agrio litigation in addition to their aforementioned waiver
contention, which we reject, and the applicability of the crime-
fraud exception to the attorney-client privilege, which we
address below.

19
Inasmuch as the communications disclosed were not
privileged, it is obvious that we need not address the
community-of-interest doctrine, which protects the
confidentiality of privileged communications shared by parties
with common legal interests against a common adversary. See
In re Teleglobe, 493 F.3d at 366.

33
Chevron applicants assert that if we remand the matter to the
District Court for consideration of the crime-fraud exception,
the remand will be a waste of time and resources because the
District Court already indicated that it believed that the crime-
fraud exception to the attorney-client privilege is applicable
here. In discussing its decision with the parties on December
20, 2010, following the Court having rendered its opinion after
the hearing, the Court stated that

if an appeal is taken . . . I will
consider writing a supplemental
opinion on crime fraud, which I
don‘t think the appellants would be
very happy with. In other words, I
don‘t think that would, well, I
know it would not, in any way,
shape or form, change my ruling. It
would expand the basis for the
ruling and would give the Court of
Appeals more, well, more law to
analyze, but I don‘t think that‘s
necessary. Not on the present state
of the record, because I think my
opinion, based on disclosure to
third parties is well founded. I
share that with you.

If it is perceived as an
attempt to chill an appeal, yes,
that‘s exactly what I have in mind,
because I think this litigation ought

34
 to go forward with the discovery
that the Kohn firm has, I don‘t want
to say agreed to, but pretty much
agreed to.

App. at 1908.

Though the Chevron applicants are correct that the
District Court made it clear that it believed that the crime-fraud
exception to the attorney-client privilege was applicable to the
Kohn communications, the Court ultimately did not rule that the
exception applied. In the circumstances, because a
determination of whether the crime-fraud exception is applicable
is not purely a legal question, but rather requires a fact sensitive
inquiry involving the exercise of discretion, we believe that the
District Court should consider the crime-fraud exception issue in
the first instance and we decline the Chevron applicants‘
invitation to decide at this time whether the exception is
applicable. See Hudson United Bank v. LiTenda Mortg. Corp.,
142 F.3d 151, 159 (3d Cir. 1998) (stating that ―[w]hen the
resolution of an issue requires the exercise of discretion or fact
finding,‖ and the trial court did not reach the issue, ―it is
inappropriate and unwise for an appellate court‖ to do so in the
first instance).

Notwithstanding our determination not to decide whether
the crime-fraud exception is applicable, we think it prudent to
observe, given the current state of the record and the District
Court‘s comments on December 20, 2010, that it is not clear that
the Chevron applicants have met their burden of establishing a
prima facie case that the exception is applicable with respect to

35
Kohn‘s otherwise privileged communications. In this regard,
we make the following comments for the District Court to
consider on remand.

A party invoking the crime-fraud exception in an attempt
to vitiate the attorney-client privilege

must make a prima facie showing
that (1) the 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 crime-fraud exception were
met.

In re Chevron Corp., 633 F.3d at 166 (quoting In re Grand Jury
Investigation, 445 F.3d 266, 274 (3d Cir. 2006)). Though the
Chevron applicants present evidence that they claim
demonstrates a fraud or crime in the prosecution of the Lago
Agrio litigation, in our prior opinion we clarified that

evidence of a crime or fraud, no
matter how compelling, does not by
itself satisfy both elements of the
crime-fraud exception to the

36
 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
burden of making a prima facie
showing that there were
communications between the client
and attorney in furtherance of that
fraud.

Id. at 166-67. In order to make a prima facie showing that the
communications they seek from Kohn were made in furtherance
of the alleged crime or fraud, the Chevron applicants would
have to link Kohn himself to the purported fraud or crime, and
so it will be insufficient solely to present evidence that other
individuals involved with or representing the Ecuadorian
plaintiffs were engaged in a fraud or crime without Kohn‘s
involvement.

The Chevron applicants present two bases for invoking
the crime-fraud exception. The first theory is that Kohn was
involved in having environmental consultants ghostwrite the
Cabrera report that was submitted into evidence in the Lago
Agrio litigation. This theory is essentially the same claim that
we discussed in our prior opinion in In re Chevron Corp., 633
F.3d 153, although in that case Chevron sought section 1782
discovery from one of the environmental consulting firms and
its employees, and here the Chevron applicants seek discovery
from Kohn. Consequently, to circumvent the attorney-client
privilege with respect to Kohn the Chevron applicants will need

37
to link him to any alleged fraud. Appellants noted at oral
argument that the Lago Agrio Court found that there had been
no demonstration that there had been fraud committed in the
preparation of the Cabrera report, and the court expressly
declined to consider the Cabrera report in reaching its judgment.
Appellants contended at oral argument that we should give
those findings by the Lago Agrio Court preclusive effect, and
that the findings bar the Chevron applicants‘ fraud claims with
respect to the Cabrera report.

The Lago Agrio Court wrote the following:

[A] review of the case file shows
that there have been no defects in
the appointment of expert Cabrera,
or in the delivery of his report.
There are no legal grounds
whatsoever for quashing either his
appointment or his expert report. It
should be stressed that this issue
has been resolved on several prior
occasions, and no new evidence has
been submitted that would suggest
the existence of any grounds for
quashing that appointment or expert
opinion.20

20
Of course, the Lago Agrio Court wrote its opinion in Spanish,
so we are quoting a translation of the opinion.

38
Appellee Chevron‘s February 24, 2011 Rule 28(j) letter at 50.21
But, even though the Lago Agrio Court found that there was no
legal basis for excluding the Cabrera report from evidence, it
declined to consider the Cabrera report in reaching its judgment.
See id. at 51. Furthermore, the Lago Agrio Court issued an
order on March 4, 2011, in response to Chevron‘s motion for
clarification and expansion of its initial judgment, in which it
reiterated that

the Court decided to refrain entirely
from relying on Expert Cabrera‘s
report when rendering judgment. If
[Chevron] feels that it has been
harmed because the Court refused
to void the entire case against it in
response to the alleged fraud in
Expert Cabrera‘s expert
assessment, which is allegedly
demonstrated by those videos, the
Court reminds the defendant that its
motion was granted, and that the
report had NO bearing on the
decision. So even if there was
fraud, it could not cause any harm
to the defendant. The Court has
safeguarded the integrity of the
proceeding and the administration

We are treating the Lago Agrio Court‘s opinion as part of
21

Chevron‘s Rule 28(j) letter, as Chevron supplied the opinion
with its letter.

39
 of justice.

Appellant Ecuadorian plaintiffs‘ March 11, 2011 Rule 28(j)
letter at 8. We will leave it to the District Court to determine, in
the first instance, whether the Lago Agrio Court‘s findings are
entitled to issue preclusive or claim preclusive effect given the
surrounding circumstances, and whether the Chevron applicants‘
claim remains viable inasmuch as the Lago Agrio Court did not
consider the Cabrera report in issuing its judgment.

The second theory that the Chevron applicants present to
invoke the crime-fraud exception is that Kohn was involved
surreptitiously in having criminal charges brought against Pérez
and Veiga in an effort to pressure Chevron into settling the case.
As we mentioned previously, the Chevron applicants point to a
conversation between Kohn and Donziger on January 31, 2007,
that was filmed for Crude. In that discussion, Donziger informs
Kohn that the Ecuadorian plaintiffs‘ legal team submitted a
report to the Ecuadorian Attorney General detailing its findings
that the remediation work that TexPet performed was not
completed as required by the 1995 Settlement and Release
Agreement and reflected in the 1998 Final Release. However,
as Kohn and KSG pointed out in their District Court brief, the
Ecuadorian plaintiffs‘

submission of their findings to the
Ecuador Attorney General is no
different than what Chevron has
done recently – turned over

40
 materials it has gathered in the
course of its 1782 actions to the
United States Department of
Justice. . . . Just as the DOJ is free
to do whatever it deems appropriate
with the information Chevron has
provided, the Attorney General of
Ecuador was free to do as it thought
appropriate with any information
provided by plaintiffs.

App. at 1236 n.10.

It is also significant that the Ecuadorian plaintiffs
submitted the report to the Attorney General of Ecuador, whose
jurisdiction extends only to civil matters, and, although the
Attorney General of Ecuador forwarded the report to the United
States Department of Justice, it is unclear whether the report
ever was submitted to the Ecuadorian Prosecutor General, who
has jurisdiction over criminal matters.22 Likewise, we do not

22
We recognize that on July 31, 2008, Donziger and other
representatives of the Ecuadorian plaintiffs held a press
conference during which it was commented that they had
presented evidence to the Ecuadorian Prosecutor General‘s
office, but it is unclear whether that comment referred to the
report mentioned by Donziger in his January 31, 2007
discussion with Kohn, and that report is the only connection that
the Chevron applicants have drawn between Kohn and the
criminal charges against Pérez and Veiga.

41
view the circumstance to which Perez and Veiga point, that
Ecuadorian President Rafael Correa appointed a friend of his as
Prosecutor General, and that following this appointment the
criminal investigation of Pérez and Veiga was reopened—a fact
stressed by counsel for Pérez and Veiga at oral argument—as
probative. After all, presidential transitions in the United States
also typically include the replacement of high-level officials,
oftentimes with persons who are friends, or have an even closer
relationship to the incoming president, and it is not uncommon
to see a shift in priorities along with a change in the presidential
administration.23 Moreover, it is not uncommon for an
American president to comment on ongoing criminal
prosecutions and even urge that alleged wrongdoers be
prosecuted in accord with the president‘s priorities.

The Chevron applicants also highlight a comment that
Kohn made to Donziger in the course of the same conversation
when Kohn said: ―So, again, that may be something that we

23
This reality was recognized at a hearing before the Committee
on the Judiciary of the United States Senate on July 12, 1968,
when Senator Everett M. Dirksen of Illinois commented at
length on presidents‘ appointments of persons to whom he was
close to the United States Supreme Court, and said that ―[y]ou
do not go out looking for an enemy to put him on the Court, or
somebody whose views are so divergent that you could not
countenance them for a minute.‖ Nominations of Abe Fortas
and Homer Thornberry: Hearings Before the Committee on the
Judiciary of the United States Senate, 90th Cong. 53 (1968)
(statement of Sen. Everett M. Dirksen, Member, S. Comm. on
the Judiciary). We doubt that the comment shocked anyone.

42
could facilitate going away at the right time . . . if [Chevron]
wanted it to go away.‖ Appellee Chevron‘s br. at 22. As we
outlined previously, the parties advance differing interpretations
of the focus of Kohn‘s remarks. The Chevron applicants
contend that Kohn was referring to an ability to make the
criminal charges against Pérez and Veiga disappear in exchange
for a settlement agreement with Chevron. Kohn maintains that
the statement did not refer to making a criminal investigation or
criminal charges go away, but, instead, merely referred to
withdrawing the report that the Ecuadorian plaintiffs had
submitted to the Attorney General of Ecuador. Kohn states that
if a settlement was reached, Chevron likely would require a
global settlement that included the cessation of all
communications with the Ecuadorian Attorney General. We
note that the discussion in issue between Kohn and Donziger
was on January 31, 2007, President Correa did not appoint a
new Prosecutor General until late-2007, and the criminal
investigation into Pérez and Veiga was not reopened until March
2008. Indeed, Pérez and Veiga were not charged with any
crimes until 2010, a circumstance which tends to suggest that
Kohn was referring to the report, and not to criminal charges
that would not issue for another three years. Overall, we are
satisfied that inasmuch as the applicability of the crime-fraud
exception raises factual issues, we should leave it to the District
Court to decide any issues relating to Kohn‘s statement on
remand.

In explaining our analysis of the fraud issue, we
acknowledge the seriousness of the fraud that the Chevron
applicants have alleged has been involved in this litigation. In
addition to an Ecuadorian court entering a massive judgment

43
against Chevron, the liberty of two individuals may be at stake.
Yet the circumstances supporting the claim of fraud largely are
allegations and allegations are not factual findings.
Furthermore, the Chevron applicants are asking that American
courts make a finding that the attorneys in a civil case in
Ecuador can control the Ecuadorian criminal justice system.
Though it is obvious that the Ecuadorian judicial system is
different from that in the United States, those differences
provide no basis for disregarding or disparaging that system.
American courts, though justifiably proud of our system, should
understand that other countries may organize their judicial
systems as they see fit.

VI. CONCLUSION

Because the presence of the filmmakers prevented the
attorney-client privilege from ever attaching to the
communications filmed for Crude, there was no basis for finding
that the communications effectuated a subject matter waiver of
the attorney-client privilege for Kohn‘s communications related
to the Lago Agrio litigation. Consequently, we will reverse the
District Court‘s December 20, 2010 order granting the Chevron
applicants‘ 28 U.S.C. § 1782 discovery applications and will
remand the matter for the District Court to consider the parties‘
arguments regarding the applicability of the crime-fraud
exception to the attorney-client privilege.

44