## Facts

- Environmental litigation in Ecuador (the Lago Agrio litigation) alleged contamination and resulting health harms from operations tied to Chevron’s predecessor.
- Chevron Corporation and two attorneys sought discovery in the Eastern District of Pennsylvania under 28 U.S.C. § 1782 from attorney Joseph C. Kohn and his firm, Kohn, Swift & Graf, P.C., who had long provided legal and financial support to the Ecuadorian plaintiffs.
- Chevron sought Kohn’s client file for use in multiple proceedings, including the Ecuadorian litigation, related criminal proceedings in Ecuador, and an UNCITRAL arbitration against the Republic of Ecuador under a bilateral investment treaty.
- The Ecuadorian plaintiffs and the Republic of Ecuador intervened and asserted attorney-client privilege over the requested materials.
- A documentary film crew recorded meetings involving the plaintiffs’ legal team, and Chevron obtained extensive outtakes showing discussions of legal matters in the crew’s presence.
- Chevron argued that the filming and disclosure created a broad subject-matter waiver that opened otherwise privileged materials in Kohn’s files.

## Issues

1. Whether communications recorded in the presence of a documentary film crew were confidential attorney-client communications protected by privilege.
2. If those recorded communications were privileged, whether their disclosure caused a subject-matter waiver that justified compelled production of related materials from counsel’s files under § 1782.
3. Whether the crime-fraud exception could justify discovery of otherwise privileged materials.

## Decision

- The Third Circuit reversed the district court’s order granting Chevron’s § 1782 applications and remanded.
- The court held that attorney-client privilege did not attach to the communications recorded in the presence of the film crew because they were not confidential.
- Because privilege never attached to those communications, the court held there could be no waiver (including no subject-matter waiver) based on their disclosure.
- The court declined to resolve the crime-fraud issue and left it for the district court to address on remand.

## Legal Principles

- Attorney-client privilege applies only to communications made in confidence between privileged persons for the purpose of obtaining or providing legal advice.
- The presence of non-essential third parties generally defeats confidentiality and prevents the privilege from attaching.
- Subject-matter waiver presupposes an existing privilege; where privilege never attached, disclosure cannot operate as a waiver to compel related privileged materials.
- In § 1782 proceedings, discovery is available only to the extent it does not require production of materials protected by any legally applicable privilege; privilege determinations must precede waiver analysis.

## Conclusion

The Third Circuit held that filmed attorney-client discussions involving a documentary crew were never privileged due to lack of confidentiality, and therefore could not support a subject-matter waiver theory to compel broader production under § 1782; it reversed the discovery order and remanded for further proceedings, including consideration of crime-fraud.


In re Chevron Corp., 650 F.3d 276 (3d Cir. 2011)