In the RICO litigation Chevron has brought to challenge an allegedly fraudulent multibillion dollar judgment against it in Ecuador, Judge Kaplan today denied, without prejudice, the motion of Patton Boggs, counsel to certain Ecuadorian citizens trying to enforce the judgment, to quash a subpoena from Chevron. As we blogged before, Patton Boggs’s motion argued that compliance with the subpoena would cost between $6-8 million. Judge Kaplan found that it was likely Patton Boggs had discoverable material, including potentially material covered by the crime-fraud exception to attorney-client privilege, and that a wholesale quashing of the subpoena was not justified. He concluded that Patton Boggs’s concerns about the burden of compliance were best addressed after the parties determined the proper scope of the subpoena, and chided both sides for “extraordinary stubbornness” in not having attempted to negotiate terms in the first place:
[T]he parties are at loggerheads over the proper scope of the subpoena and consequent scope of the search that is appropriate, even putting aside all questions of privilege. This in part is a product of the fact that PB has not yet interposed specific objections to particular subpoena specifications, preferring instead to attempt to have the subpoena quashed without any detailed examination of the information it seeks. It is further attributable in part to the fact that there was no meaningful effort to negotiate the scope of the subpoena in the weeks preceding the filing of the motion to quash and what appears to have been extraordinary stubbornness on both sides in the weeks since. And while PB, through counsel, has advanced a number of suggestions that, if adopted, might limit the burden on it, the declarations upon which it relies to substantiate the claim of undue burden assume that the subpoena is enforced as written. Thus, for example, while PB has suggested that its obligation to search for responsive documents be limited to documents prepared by or sent to personnel who have devoted at least 50 hours to the relevant matters, it has provided no evidence as to whether and to what extent that might reduce the burden. . . . . In short, it is impossible on the basis of the record before the Court to conclude that compliance with the appropriate specifications of the subpoena would be unduly burdensome.
Judge Kaplan ordered the parties to “meet in person and confer for as long as is necessary to discuss each of the subpoena specifications.”