## Facts

- Chevron Corporation and two Chevron attorneys sought discovery in the Southern District of New York under 28 U.S.C. § 1782.
- The discovery targeted filmmaker Joseph Berlinger and affiliated production entities located in New York that created the documentary *Crude* about Ecuadorian environmental litigation involving Chevron.
- Petitioners requested unpublished footage and outtakes, plus related documents and testimony.
- Petitioners asserted the materials likely showed (1) improper coordination between the plaintiffs’ team and a court-appointed expert in Ecuador and (2) improper governmental or lawyer influence on the Ecuadorian judiciary.
- Petitioners sought to use the materials in (1) the Ecuadorian *Lago Agrio* civil proceedings, (2) threatened Ecuadorian criminal proceedings against the Chevron attorneys, and (3) an investment-treaty arbitration against Ecuador.
- Respondents opposed discovery, arguing the request would interfere with the foreign proceedings and that the materials were protected by a journalist’s (reporter’s) privilege.

## Issues

1. Whether the applications satisfied the statutory requirements of 28 U.S.C. § 1782, including that the evidence was “for use” in a “foreign or international tribunal” and sought from persons “found” in the district by an “interested person.”
2. Whether discretionary considerations identified in *Intel* supported granting discovery, including nonparty status, foreign-tribunal receptivity, circumvention concerns, and undue burden.
3. Whether a qualified reporter’s privilege protected the documentary outtakes and, if so, whether Chevron’s showing of need overcame any privilege.

## Decision

- The court granted the § 1782 applications and authorized subpoenas requiring production of outtakes and related discovery, subject to limitations and protective measures.
- The court found the § 1782 statutory predicates satisfied: respondents were found in the district; petitioners were “interested person[s]”; and the materials were for use in qualifying foreign and international proceedings, including the arbitration.
- Applying the *Intel* factors, the court exercised discretion to allow discovery because respondents were nonparticipants in the foreign proceedings, there was no persuasive evidence of foreign-tribunal hostility to the evidence, the request was not a circumvention effort, and any burden could be managed through tailoring and protective orders.
- The court rejected the privilege-based objections, concluding that any qualified reporter’s privilege was weakened by the filmmaker’s close collaboration with one side and was overcome by Chevron’s demonstrated need for likely unique, highly relevant evidence.

## Legal Principles

- Under 28 U.S.C. § 1782, a district court may order discovery from a person found in the district for use in a foreign or international tribunal upon application by an “interested person.”
- Once statutory requirements are met, the court has discretion guided by *Intel* considerations, including: (1) whether the target is a participant in the foreign proceeding, (2) foreign-tribunal receptivity, (3) avoidance of circumvention of foreign proof-gathering limits, and (4) intrusiveness or burden.
- A reporter’s privilege for unpublished journalistic materials, to the extent recognized, is qualified rather than absolute and may be overcome by a sufficient showing of need, including that the materials are likely relevant and not reasonably obtainable elsewhere.
- Close entanglement between a journalist or filmmaker and an interested litigating party can diminish the weight accorded to privilege claims, particularly where the materials bear on alleged fraud or misconduct in adjudicative proceedings.

## Conclusion

The court ordered production of *Crude* outtakes and related discovery under § 1782 for use in Ecuadorian litigation and investment-treaty arbitration, holding that the statutory requirements and discretionary factors favored assistance and that any qualified reporter’s privilege yielded to the petitioners’ need for probative, otherwise unavailable evidence.


In re Application of Chevron Corp., 709 F. Supp. 2d 283 (S.D.N.Y. 2010)