Chevron Corporation v. Donziger

Background

Chevron Corporation was attempting to enforce several judgments against Steven Donziger and related parties. The judgments included a 2014 judgment finding that Donziger had fraudulently obtained an Ecuadorian judgment, a 2018 judgment against defaulted defendants, and supplemental money judgments. Chevron stated that the money judgments remained largely unpaid.

Chevron served nonparty Patricio Salazar Cordova, whom the opinion identifies as an Ecuadorian attorney and outside counsel for the Frente de la Defensa de la Amazonia, with document and deposition subpoenas in Manhattan on September 17, 2019. The subpoenas sought information about attempts to sell, transfer, or profit from rights connected to the Ecuadorian judgment and about property traceable to that judgment or its enforcement.

Salazar stated that he lived and worked in Cumbayé, Ecuador, and argued that the subpoenas were invalid because the deposition and document-production locations were outside the 100-mile geographic limit in Federal Rule of Civil Procedure 45. He also argued that the requested documents and testimony were likely protected by privilege under Ecuadorian law.

Geographic limits and post-judgment discovery

The court explained that Rule 69(a)(2) allows a judgment creditor to obtain discovery from any person to help enforce a money judgment or locate assets available to satisfy it. That discovery may proceed under the Federal Rules or the law of the state where the federal court is located.

The court held that the subpoenas sought discovery connected to enforcing Chevron’s money judgments against Donziger. It therefore held that the subpoenas were enforceable under Rule 69(a)(2) and New York law. New York Civil Practice Law and Rules § 5224 authorizes document and deposition subpoenas to aid enforcement of a money judgment, and the court stated that New York law did not impose Rule 45’s geographic limitation on Salazar because he had been served in Manhattan.

The court also stated that, even if Rule 69(a)(2) did not apply, it would modify rather than quash the subpoenas. In that alternative situation, Salazar would have been required to produce the documents and appear for a deposition in the Quito, Ecuador area or another location agreed upon by the parties.

Privilege

The court rejected Salazar’s general assertion that the requested materials and possible testimony were protected by Ecuadorian privilege law. Under Rule 45(e)(2)(A) and Local Civil Rule 26.2, a person withholding subpoenaed information as privileged must provide a privilege log describing the withheld materials sufficiently to allow the opposing party and the court to evaluate the claim. The court also stated that attorney-client privilege concerning testimony must be asserted in response to particular deposition questions, rather than through a blanket refusal to testify.

The court nevertheless gave Salazar an opportunity to assert any privilege claim supported by a good-faith argument and to provide the required privilege log.

Disposition

The court denied Salazar’s motion to quash. It directed him to produce by March 11, 2020, all responsive documents for which he asserted no privilege; provide by that date a privilege log for responsive documents, communications, or tangible things withheld based on privilege; and appear for a deposition at a time and place agreed to in writing by the parties. If the parties did not agree, the deposition would take place at Chevron’s counsel’s Manhattan offices on dates set by the court.