The case of the day is Chevron Corp. v. Snaider (D. Colo. 2015). I haven’t written about a Lago Agrio-related case in a while. It’s good to be back! Chevron, after applying under § 1782, obtained leave to serve a subpoena on Andres Snaider. Snaider, an Ecuadoran national living in Connecticut, was the founder of Nextant, LLC, a consultancy, and he was a classmate of Steven Donziger and James Russell DeLeon at Harvard Law School in the 1980s. Snaider and Donziger had originally approached DeLeon, who controlled Torvia Ltd., seking an investment in a documentary about the environmental damage in the Amazon—presumably the film that became Crude. According to Chevron, DeLeon ultimately invested more than $3 million in the Lago Agrio litigation, and Snaider was alleged to be involved in structuring the investment and reviewing the Torvia funding agreement. Chevron brought a § 1782 application, seeking evidence from Snaider for use in its action in Gibraltar against DeLeon and Torvia as well as for use in the actions in Argentina and Brazil to enforce the Ecuadoran judgment. After the subpoena issued, Snaider moved to quash.
The bottom line is that the magistrate judge ruled that Chevron was entitled to much of the discovery it sought, though she did grant the motion to quash in some respects. I am not going to parse the limits of what discovery was and was not permitted. Instead, I want to comment on one interesting wrinkle. As the magistrate judge noted, Chevron had previously sought such information by way of a subpoena to Patton Boggs and by discovery request directed to Donziger himself. Judge Kaplan sustained Patton Boggs’s objections to that subpoena “with little discussion,” and he rejected the discovery requests to Donziger on grounds of overbreadth (the request, he said, was “broad as all outdoors”) and because evidence relating to the period after the Ecuadoran judgment would be protected by the work product doctrine. Judge Kaplan also rejected Chevron’s effort to serve a subpoena directly on Snaider on the grounds that it was untimely.
Circumvention of foreign proof-gathering requirements is, of course, one of the Intel factors relevant to the exercise of a court’s discretion in a § 1782 case. If the RICO case were still pending, then I would be inclined to say that Chevron, by seeking the evidence from Snaider that it had been unable to get in Judge Kaplan’s court, was attempting to circumvent a domestic court’s proof-gathering restrictions. But the RICO case has already gone to judgment, so one can’t really make such an argument in those terms. On the other hand, is there some sort of preemption that should come into play, particularly to the extent Judge Kaplan’s earlier refusals didn’t turn on procedural factors such as the timeliness of the discovery requests or subpoenas but rather on substantive issues such as the breadth of the requests relative to the issues in the litigation, or the applicability of the work-product rule? After all, Chevron is making the same basic point in the Gibraltar case and in the enforcement cases as it made in the RICO case: the Ecuadoran judgment, it claims, is a fraud. So one could argue that the outcome now should be the same as the outcome then. It’s not clear to me whether this is a real argument: we’d have to compare the discovery requests carefully as well as to be more precise about the relationship of the issues in the foreign cases with the issues in the RICO case, and of course we’d have to delve into the law of issue preclusion. Still, it’s an interesting thought.