July 19, 2019

Tenth Circuit: Disclosure of Material Considered by Expert Containing Factual Ingredients Required

The Tenth Circuit Court of Appeals published its opinion in In re Application of Republic of Ecuador on Wednesday, November 13, 2013.

Intervenor-Appellant Chevron Corporation appealed from a district court order granting a motion to compel production of documents pursuant to subpoenas issued under 28 U.S.C. § 1782. Section 1782 allows for discovery of documents to be used in a foreign proceeding. Petitioners-Appellees, the Republic of Ecuador and its Attorney General (collectively, “the Republic”) sought the discovery to defend an $18.2 billion judgment against Chevron by an Ecuadorian court in Lago Agrio. Chevron sought relief from that judgment pursuant to investment treaty arbitration under United Nations’ rules.

Prior to the Lago Agrio judgment, in September 2009, Chevron commenced arbitration proceedings against the Republic under the U.S.–Ecuador Bilateral Investment Treaty. In February 2011, immediately following the Lago Agrio judgment, the arbitral tribunal ordered that the Republic stay all efforts to enforce the Lago Agrio judgment, pending further order of the tribunal.

In June 2011, the Republic filed a § 1782 application in the District of Colorado seeking “discovery from Bjorn Bjorkman to aid the Republic in defending the validity of the Lago Agrio judgment.” The Republic alleged that Mr. Bjorkman served as one of Chevron’s chief experts and that the Ecuadorian court explicitly relied on his opinions. In the instant action, Chevron argued before the magistrate judge that the 2010 revisions to Fed. R. Civ. P. 26 brought materials prepared by or provided to Mr. Bjorkman under the protection of the work-product doctrine. The magistrate judge rejected this argument and ordered the production of all of the facts and data the expert considered in forming his opinion. The Republic filed two motions to compel after Chevron continued to improperly withhold documents. The district court adopted the magistrate judge’s recommendations that only documents protected by Rules 26(b)(4)(B) and (C) were privileged.

On appeal, Chevron made several arguments that the 2010 revisions to Fed. R. Civ. P. 26 radically changed the discoverability of documents held by experts. The Tenth Circuit disagreed, holding that the underlying purpose of the 2010 revision was to return the work-product doctrine to its traditional understanding, that it protects only the inner workings of an attorney’s mind. The court affirmed.