US Courts Order Discovery for Use Overseas in Chevron-Ecuador Disputes

Context:

The Chevron-Ecuador Litigation A high profile and complex dispute involving a group of Ecuadorian residents, Chevron Corporation and the Republic of Ecuador is forcing courts and the media to focus on an arcane provision of federal law that authorizes federal courts in the United States to order testimony or the production of documents for use in a foreign or international tribunal. This once-obscure statute, 28 U.S.C. § 1782(a), authorizes, but does not require, U.S. courts to compel U.S.-style discovery in aid of non-U.S. proceedings. Federal courts on opposite sides of the United States recently ordered parties on opposite sides of the Chevron-Ecuador disputes to provide discovery under section 1782(a).

The statute has been around for many years, but it took the extraordinary circumstances of the Chevron-Ecuador litigation to thrust it into the headlines. The litigation started in 1993, when a group of residents from the Oriente region in Ecuador brought a class action against Chevron's predecessor, Texaco, in the Southern District of New York, Aguinda v. Texaco, Inc. The plaintiffs alleged that between 1964 and 1992, Texaco's oil operations polluted the rain forests and rivers of Ecuador. The court in New York dismissed the case on forum non conveniens grounds, with a condition that Texaco submit to jurisdiction in Ecuador. In the meantime, a Texaco subsidiary entered into a settlement with Ecuador whereby the subsidiary agreed to perform specified environmental remediation in exchange for a release of claims by the government.

In 2003, after appellate wrangling in Aguinda concluded and the case was dismissed, an overlapping but not identical group of Ecuadorians sued Chevron (which by then had acquired Texaco) in domestic court in Ecuador, the so-called "Lago Agrio litigation." The plaintiffs in the Lago Agrio litigation assert claims for deterioration of their health and the environment.

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