Relaxed and confident, a U.S. lawyer held court with his allies in a conference room in Quito, Ecuador. He laid out his plan to form a “private army” to “watch over the court” overseeing a multi-billion-dollar Ecuadorian lawsuit against Chevron Corporation. When one of those present raised concerns about a documentary filmmaker’s camera crew recording this conversation — saying, “it’s illegal to conspire to break the law” — the lawyer brushed off the concern, relying on his conclusion that they “don’t have the power of subpoena in Ecuador.” And the video of this conversation remained secret for years, along with even more incriminating footage. But in July 2010, a U.S. federal court ordered production of over 600 hours of the filmmaker’s video to Chevron, and, in the words of a U.S. federal judge, it “sent shockwaves through the nation’s legal communities, primarily because the footage shows, with unflattering frankness, inappropriate, unethical and perhaps illegal conduct.” The footage, and other document and computer hard drive productions ordered by U.S. courts, would ultimately lead to Chevron’s successful racketeering case against U.S. lawyer Steven Donziger and others.
Donziger was correct that Ecuador — like many foreign jurisdictions — does not provide private litigants with subpoena power. So how did Chevron obtain this incriminating footage? Chevron relied on a powerful discovery device, 28 U.S.C. § 1782, which authorizes U.S. courts to order discovery “for use in” foreign proceedings. It puts the power, and the risks, of U.S.-style civil discovery in the hands of litigants abroad.