Steve Donziger's Failure to Submit a Privilege Log Basis for Forensic Inspection Protocol
Steven Donziger's legal disputes with Chevron have received a lot of news coverage this year. The American attorney obtained a $9.5 billion judgment against Chevron in an Ecuadorian court for Texaco's (which merged with Chevron in 2001) pollution of rivers near its drilling sites in the South American country. Donziger was imprisoned for contempt of court In October, and was released to serve the remainder of his sentence at home this month. Tonight's post is a summary of a decision issued by Judge Lewis Kaplan, Chevron Corporation v. Donziger, 425 F. Supp. 3d 297 (S.D.N.Y. 2019) which approved a forensic inspection protocol for the imaging and examination of devices by a neutral expert. Donziger was convicted of contempt for his refusal to comply with this and other court orders.
After Donziger was found by the S.D.N.Y. to have committed fraud in obtaining the judgment in Ecuador, he was taxed for $800,000 in costs. The forensic inspection protocol was issued so Chevron could conduct discovery to locate Donziger's assets, after he refused to make a good faith effort to produce relevant documents. Judge Kaplan noted that while Donziger had responded to a previous order to conduct a search of his electronic media using search terms chosen by Chevron and made a production of 90,000 documents, it was apparent that he did not produce some responsive documents. The Court ordered that hard drives belonging to Donziger be imaged and searched, and 151,000 additional responsive documents were uncovered.
Judge Kaplan also criticized Donziger for a "specious ad hominem attack on Chevron's forensic expert". Id. at 305.
The protocol that was the subject of this 2019 decision required that electronic media be imaged by a neutral court appointed expert that would also generate reports listing persons and entities named in the data that the parties could review, look for signs of data spoliation, and try to recover deleted files. The Chevron expert was to search the culled documents. The decision states that:
"First, the neutral expert will isolate the documents that are responsive to the search terms and potentially relevant to the document requests. Second, the neutral expert will provide the Chevron forensic expert with the greater of 100 or 10 percent of those documents for review by counsel for Chevron. Counsel will code this sample set of documents as 'relevant' or 'not relevant' to the document requests. Third, Chevron's forensic expert, under the supervision of the neutral expert, will create, refine, and use technical search tools, including but not limited to predictive coding and concept clustering, to search the documents that are responsive to the search terms and potentially relevant and to identify those that indeed are relevant to the document requests.
Thus, the process limits the roles of Chevron's forensic expert and counsel for Chevron to protect Donziger's privacy interests without hamstringing Chevron's efforts to obtain the discovery to which it is entitled." Id. at 303.
Donziger contended that the protocol would allow Chevron to review privileged communications, but Judge Kaplan noted that Donziger had forfeited this privilege, referring to a 2018 order that found that, "Danziger [sic] has failed to comply with Fed. R. Civ. P. 26(b)(5) and S.D.N.Y. Civ. R. 26.2 - and as (a) this is not the first time that he has ignored the requirements of those rules, e.g., In re Chevron Corp., 749 F. Supp. 2d 170 (S.D.N.Y. 2010), aff'd sub nom. Lago Agrio Plaintiffs v. Chevron Corp., 409 Fed. App'x 393 (2d Cir. 2010), and (b) Danziger [sic] failed to comply even after Chevron asserted that his prior failure should result in waiver of any otherwise applicable privileges - the Court holds that Danziger [sic] has waived or forfeited any claim of privilege to responsive documents and information that otherwise might have applied. Accordingly, Danziger [sic] shall comply fully with the outstanding discovery requests forthwith without withholding any responsive documents or information on privilege grounds." D.I. 2108, Chevron Corporation v. Donziger, No. 1:11-cv-00691-LAK-RWL (S.D.N.Y. Oct. 18, 2018). Fed. R. Civ. P. 26(b)(5) requiries parties withholding privileged documents to disclose information about the documents so that other parties can assess the basis for the privileged claim. S.D.N.Y. Civ. R. 26.2 specifies the information to be included in a privilege log - the document type; general subject matter, date, author and recipients.
Judge Kaplan concluded that, "Donziger unjustifiably has refused to comply with his discovery obligations. Had he done so — i.e., had he produced responsive documents as to which there was no colorable claim of privilege, submitted a privilege log as to responsive documents as to which there was such a colorable claim, and submitted any disputes for judicial resolution – there would be no need to examine his ESI. " Id. at 306.