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In re Chevron Corp.
United States Court of Appeals for the Third Circuit
650 F.3d 276 (2011)
Chevron Corporation and two of its attorneys (collectively, Chevron) (plaintiffs) sought discovery in the United States District Court for the Eastern District of Pennsylvania of a client file from attorney Joseph Kohn and his law firm, Kohn, Swift & Graf, P.C. (KSG) (defendants). Chevron’s application was based on a statute authorizing a federal district court to order a person who resides in the district to give testimony or produce documents for use in a foreign or international tribunal, subject to the limitation that the person not be compelled to testify or produce documents in violation of any legally applicable privilege. Kohn and KSG represented the plaintiffs in an environmental class action in Ecuador known as the Lago Agrio litigation. Chevron was a defendant in the Lago Agrio litigation. In this proceeding, Chevron sought access to a file of Kohn’s that Chevron believed would contain communications relevant to its position that the plaintiffs in the Lago Agrio litigation had procured a judgment by fraud. The Lago Agrio plaintiffs intervened in this matter and claimed that Kohn’s file was protected by the attorney-client privilege. However, the Lago Agrio plaintiffs had participated in the production of a documentary called Crude, which chronicled the Lago Agrio litigation. Chevron had previously obtained access to hundreds of hours of outtakes from the filming of Crude, which included footage of attorney meetings in which ostensibly confidential matters were discussed. Chevron argued that the filming of the meetings effected a broad subject-matter waiver of the privilege for all of Kohn’s communications related to the litigation. The district court agreed with Chevron, stating that a client’s voluntary disclosure of privileged communications waived the privilege as to other communications relating to the same matter. The court also noted that permitting a client to waive the privilege for favorable communications while withholding related documents from disclosure allowed the privilege to be used as both a sword and a shield, which is an abuse that courts should discourage. Thus, the district court ordered production of the file, and the Lago Agrio plaintiffs appealed.
Rule of Law
Holding and Reasoning (Greenberg, J.)
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