(CN) – A federal judge in Washington, D.C., ordered an Ecuadorian lawyer to release 447 documents he withheld from Chevron, saying the attorney failed to prove that the items are privileged.
Alberto Wray produced “a relatively small number of documents” in response to Chevron’s subpoena, claiming the rest were privileged material, according to U.S. District Judge Colleen Kollar-Kotelly.
Chevron and two of its attorneys, Rodrigo Perez Pallares and Ricardo Reis Veiga, say they need the documents to prove corruption in the Ecuadorian judicial system. Chevron faces a $113 billion environmental lawsuit in Lago Agrio, Ecuador, for alleged contamination caused by Texaco — now a Chevron subsidiary — during 30 years of drilling in the country.
Perez and Reis, two Ecuadorian lawyers for Chevron, face criminal charges in Ecuador for the role they played in defending Chevron in the lawsuit.
Wray, a former judge on Ecuador’s Supreme Court, is of counsel to Foley Hoag in Washington, but does not practice law there, according to Foley Hoag’s website.
The latest incarnation of Wray’s privilege log, filed on Oct. 31, identifies 447 withheld documents and an unsworn letter from Wray’s counsel, Hernán Salgado Pesantes, that “briefly” identifies some of the names that appear on the log, according to the ruling.
“These defects are fatal, and the court finds that respondent and the interested parties have failed to carry their burden of proving, by competent evidence and to a reasonable certainty, each of the essential elements necessary to support their claims of privilege for each of communications sent or received by respondent,” Kollar-Kotelly wrote.
She said discovery cannot be barred under foreign privileges, because Wray did not prove that a foreign tribunal would reject such evidence.
Wray also cannot “assert blanket or categorical claims of privilege” under U.S. laws, Kollar-Kotelly wrote.
“Consistent with these strictures, the proponent of the privilege must offer more than just conclusory statements, generalized assertions and unsworn averments of its counsel,” she wrote. “Where the proponent fails to adduce sufficient facts to permit the court to conclude with reasonable certainty that the privilege applies, its burden is not met.”
Kollar-Kotelly also rejected Wray’s claim that some of the withheld documents were protected by federal attorney-client and attorney work product privileges.
She said the documents are not shielded by the Ecuadorian Code of Judicial Function, either, because the code “does not support such a breathtakingly broad construction.”
The rule is an ethical obligation meant to stop attorneys from betraying the confidence of their clients, Kollar-Kotelly wrote.
The insufficiency of Wray’s privilege claims become most apparent in his attempt to conceal documents that he directly wrote or received, according to the ruling.
“In opposition to the present motion, apart from the vague and non-specific descriptions of documents in the privilege log, respondent offers a perfunctory seven-paragraph declaration, which consists almost exclusively of conclusory and empty invocations of privilege,” Kollar-Kotelly wrote.
She also tossed the declaration from Wray’s attorney, Salgado, which she said fell “woefully short” of justifying the foreign privilege claim.
“Coupled with this, respondent relies upon the two-page cover letter prepared by his counsel identifying certain individuals listed on the privilege log in the most bare and unilluminating fashion,” she wrote.
Kollar-Kotelly said the privilege log and cover letter descriptions were too brief and “hopelessly vague” to be helpful.
“Respondent fails to correlate his declaration’s wholly conclusory assertions of privilege — which are nothing more than empty recitations of the applicable legal standard devoid of factual context — with any specific communication or communications,” she wrote.
“His failure to do so is particularly egregious in light of this court’s express directive that he ‘correlate any claimed privilege(s) with specific documents … and articulate with particularity the basis for invoking the claimed privilege.’ Far from being particularized, respondent’s showing is so conclusory that it stymies this court’s ability to assess the basis for any claimed privilege.”
Kollar-Kotelly said she reviewed four withheld documents ex parte and in camera, and found that they cannot support the claim of attorney-client or work product privilege.
She cited one e-mail chain bearing the subject line, “Re: Lunch?,” as an example of communication that might not come under the topics requested in the subpoena, adding that Chevron and Wray can resolve that issue themselves.
“Respondent’s specious privilege claims with respect to these particular documents — each of which were logged and withheld as separate communications — casts doubt upon respondent’s claims as a whole,” the ruling states.
Wray also failed to prove that he was acting as counsel for the Republic of Ecuador in such communications, Kollar-Kotelly wrote.
“After scouring the privilege log, respondent’s declaration, the cover letter and other materials, the court finds no competent evidence indicating, one way or the other, what respondent’s role was with respect to particular communications,” the judge wrote.
“Therefore, the invocation of the privilege fails for the same reasons it did above: absent competent evidence establishing some context as to respondent’s role and the relationship among the parties, the court cannot say whether the communication was made for the purposes of legal advice, and in confidence and outside the presence of strangers.”
Kollar-Kotelly also ordered Wray to turn over any documents disclosed to testifying experts or discussed in front of the filmmakers behind “Crude,” a 2009 documentary about the trial against Chevron and the environmental devastation in Ecuador.