Chevron Corporation v. Donziger

Background

Steven Donziger served five subpoenas under Federal Rule of Criminal Procedure 17(c) on Gibson, Dunn & Crutcher LLP and four of its partners: Anne M. Champion, Randy M. Mastro, Andrea E. Neuman, and William E. Thomson. The subpoenaed lawyers had represented Chevron in the civil case from which Donziger’s criminal contempt charges arose. The subpoenas sought broad categories of documents and communications involving alleged private prosecutors, Judges Loretta A. Preska and Lewis A. Kaplan, efforts to have Donziger disbarred or criminally prosecuted, billing records, marketing materials, and professional or media materials.

The subpoenaed parties moved to quash, meaning to cancel or limit, the subpoenas. They offered to provide some communications and meeting information involving Gibson Dunn and people identified as private prosecutors, but Donziger declined that proposal. The subpoenas were initially returnable on the first day of trial, which was scheduled to begin eleven days after they were served.

Legal standard

The court explained that Rule 17(c) subpoenas are for obtaining specific admissible evidence, not for conducting ordinary discovery or searching for something potentially useful. Under the standard from United States v. Nixon, the person seeking the materials must show that they are relevant, admissible, and specifically identified. The person seeking the subpoena also must show that the materials are not otherwise obtainable through reasonable efforts.

The court further explained that evidence useful only to impeach a witness—such as evidence of bias, financial motivation, or inconsistent statements—is generally relevant only after the witness testifies. Therefore, subpoenas seeking impeachment material should not automatically require production before trial.

Court’s analysis

The court rejected Donziger’s argument that the requested materials were relevant to his good-faith defense or to alleged improper motives behind the criminal prosecution. It concluded that Donziger had not adequately connected the subpoenaed materials to the elements of criminal contempt: the existence of a court order, disobedience of that order, and knowing and willful disobedience. The court also said it would not allow Rule 17(c) to be used to revisit earlier rulings rejecting discovery concerning vindictive or selective prosecution.

The requests concerning communications with Judges Preska and Kaplan, their agents, or their family members were quashed. The court found those requests extremely broad, unrelated to any particular subject matter, and insufficiently specific. It also found that Donziger had not shown that the requested documents would be admissible.

The requests concerning efforts to disbar or criminally prosecute Donziger were also quashed. The court found that they overlapped with the previously rejected vindictive-prosecution issue and did not identify specific evidence. The requests for Gibson Dunn’s marketing, professional, academic, and media materials were quashed because they would encompass nearly any material mentioning Chevron, Ecuador, or Donziger and because some materials were publicly available.

The court quashed the requests for detailed bills and timesheets. It recognized that billing information might provide impeachment evidence about the partners’ financial motivations if they testified, but concluded that detailed billing records could contain attorney-client privileged information and that Donziger had not shown the requested records were admissible. The court separately concluded that quarterly totals of hours and dollar amounts were not privileged in the same way.

The requests for communications and meeting information involving Gibson Dunn and the identified private prosecutors were treated differently. The court found that these requests could yield relevant impeachment evidence, including inconsistent statements or evidence of bias, and that communications containing prior inconsistent statements could potentially be admissible. But the court found the requests too broad as written and narrowed the definition of “Private Prosecutors” to employees or agents of Seward & Kissel who were involved in this case.

Disposition

The court granted in part and denied in part the motion to quash. It quashed in full paragraphs 4 through 14 of the partner subpoenas and paragraphs 4 through 12 and 14 through 15 of the Gibson Dunn subpoena. It modified paragraph 1 of the subpoenas to limit the requested communications to employees or agents of Seward & Kissel involved in the case.

It also modified paragraph 13 of the Gibson Dunn subpoena to require a quarterly summary of hours and dollar amounts billed to Chevron for all matters, including work relating to Donziger or Ecuador. Finally, it modified every subpoena so that it would be returnable only when a partner testified at trial; if none of the partners testified, the subpoenaed information would not have to be produced. In all other respects, the motion to quash was denied.