Overview
In the RICO litigation Chevron has brought to challenge an allegedly fraudulent multibillion dollar judgment against it in Ecuador, Chevron has sought documents from Patton Boggs, counsel for Ecuadorian citizens (referred to as “Afectados”) trying to enforce the judgment. On Friday, Patton Boggs moved Judge Kaplan to quash the subpoena because of alleged “gamesmanship” and because Patton Boggs claims complying with the subpoena would cost $6-8 million and take over a year:
The gamesmanship motivating Chevron’s subpoena is reason enough to quash it. But there are also other fundamental reasons. Chevron’s subpoena—which contains 58 document requests—reaches every aspect of Patton Boggs’ representation of the Afectados (as well as other clients). Chevron demands internal communication, notes, memoranda, draft briefs and all manner of attorney work product generated in connection with proceedings in Ecuador, judgment recognition actions, and the litany of U.S. collateral proceedings spawned by Chevron. The subpoena already has significantly disrupted Patton Boggs’ business operations by diverting the time of attorneys and support staff to document collection—a situation that will only worsen should the subpoena persist. (See Declaration of Charles Talisman, July 20, 2012 (“Talisman Decl.”), at ¶¶ 11-34.) Assuming that 50 review attorneys working nine hours per day are devoted to the project, it will take an estimated 55 to 67 weeks to review and log potentially responsive electronic documents. (See Declaration of Ari Perlstein, July 20, 2012 (“Perlstein Decl.”), at ¶¶ 4-7.) At a minimum, it is estimated that the review of electronic documents alone will cost the firm between $6.35 million and $7.75 million dollars, plus roughly $550,000 for electronic document collection—to say nothing of the roughly 260,000 pages of paper documents potentially encompassed by the subpoena. (See Perlstein Decl. at ¶¶ 6-7; Declaration of Jon Kessler, July 20, 2012 (“Kessler Decl.”), at ¶¶ 5-8; Talisman Decl. at ¶¶ 18-21.). Chevron is attempting to exploit the amorphous and unbounded nature of its civil RICO claim—particularly as applied in this unusual context. Suing one’s current litigation adversary on a theory that his prosecution of legal claims in another jurisdiction should be considered a racketeering operation is a convenient pretext for demanding unfettered access to his counsel’s litigation file. A line has to be drawn. This subpoena crosses it. Courts are skeptical of subpoenas served on active counsel because of the risk that counsel’s litigation strategy will be revealed—Chevron’s subpoena unabashedly targets counsel’s strategy.
