Commercial Litigation and Arbitration

Comity among Circuits — Separate Proceedings Concerning Same Subject Matter Should Be Decided Alike — Like Law of the Case — One Circuit Shouldn’t Grant Relief Substantially Interfering with Decisions of Sister Circuit — Good Quotes

Chevron Corp. v. Page (In re Narango), 2014 U.S. App. LEXIS 18293 (4th Cir. Sept. 24, 2014) (Note:  In the ongoing Chevron/Ecuador litigation, Chevron sought documents from co-counsel of Donziger in Maryland both under Rule 45 in connection with litigation in the Southern District of New York and under § 1782 in connection with its continuing BIT arbitration against Ecuador at The Hague.  In this opinion, the Fourth Circuit found no jurisdiction to review the lower courts’ Rule 45 decisions (its analysis is the subject of a separate blog post) but did find jurisdiction over the § 1782 appeal.  The “Donziger Waiver” referred to below is a waiver of privilege found in the New York proceedings, and affirmed by the Second Circuit, because of privilege log failures that were not cured):

Next, Page contends that the Donziger Waiver should not  have defeated his privilege claims and insists that the magistrate judge inappropriately extended the waiver across multiple proceedings. Page bore the burden as to this argument. See United States v. Bolander, 722 F.3d 199, 222 (4th Cir. 2013) ("The burden rests on the person invoking the privilege to demonstrate its applicability, including the absence of any waiver of it.").

At the end of the day, we need not parse each point that Page raises, as we conclude that the Donziger Waiver's  application in the Maryland court served the interests of  comity.

The doctrine of comity instructs federal judges to avoid  "stepping on each other's toes when parallel suits are pending in different courts." Smentek v. Dart, 683 F.3d 373, 376 (7th  Cir. 2012); see also W. Gulf Mar. Ass'n v. ILA Deep Seal Local 24, 751 F.2d 721, 728 (5th Cir. 1985) (explaining that comity requires federal courts to "exercise care to avoid interference with each other's affairs"). We have invoked the doctrine, for instance, in explaining that a district court was precluded from issuing an injunction that conflicted with another district court's decision in the same matter. See Ulmet v. United States, 888 F.2d 1028, 1031 (4th Cir. 1989). The Supreme Court, too, has called upon "federal courts to apply principles of comity" when faced with class certification decisions "addressing a common dispute." Smith v. Bayer Corp., 131 S. Ct. 2368, 2382 (2011).  By applying comity in these and similar circumstances, courts achieve at least two positive results:  avoiding "an unnecessary burden on the federal judiciary" and preventing "the embarrassment of conflicting judgments." Church of Scientology of Cal. v. U.S. Dep't of Army, 611 F.2d 738, 750 (9th Cir. 1979); see also Mast, Foos & Co. v. Stover Mfg. Co., 177 U.S. 485, 488 (1900) (explaining that comity should "secur[e] uniformity of decision[] and discourag[e] repeated litigation of the same question").

Were we to decline to apply the Donziger Waiver in this proceeding, we would significantly undermine the New York court's decisions and potentially spawn conflicting judgments as to the very same subject matter. Donziger was already required in New York to produce all the documents sought here. Not even Page contests that fact. Other than questioning the period to which the Donziger Waiver would apply, Page does not challenge the lower court's reading of the waiver's scope at all. Page concedes, for instance, that Donziger was required to produce documents in his associates' possession, including those now held by Page. And Page has never identified any specific document that he was required to produce by the Maryland court that was not already subject to production by Donziger in New York. Page nevertheless invites us to deprive Chevron of documents to which it is admittedly entitled under the New York court's decisions, all without ever coming to grips with the fundamental inconsistencies that would result. We cannot accept that invitation, as § 1782 is "a federal statute construed in a federal court system" and the statute's application "must ultimately be uniform." Republic of Ecuador v. Connor, 708 F.3d 651, 657 (5th Cir. 2013).

What is more, the Second Circuit -- a co-equal circuit court -- has affirmed the Donziger Waiver, deciding the same fundamental issue before us today "[a]fter an independent review of the record." Lago Agrio Plaintiffs, 409 F. App'x at 395. Even in less intimately related cases, we often consider whether our decisions fall in line with those of our sister circuits. See, e.g., Nat'l Treasury Emps. Union v. Fed. Lab. Relations Auth., 737 F.3d 273, 280 (4th Cir. 2013); In re Frushour, 433 F.3d 393 (4th Cir. 2005). It seems all the more appropriate to do so here, where the parties are re-litigating an issue pertaining to the same documents and affecting the same parties that were before the Second Circuit. After all, "[c]ourts in [one circuit] should not grant relief that would cause substantial interference with the established judicial pronouncements of such sister circuits." United States v. AMC Entm't, Inc., 549 F.3d 760, 773 (9th Cir. 2008); cf. Colby v. J.C. Penney Co., Inc., 811 F.2d 1119, 1124 (7th Cir. 1987) ("A posture somewhere in between some deference and complete deference is proper when cases in different circuits challenge the same practice of the same defendant.").

To be sure, under the terms of § 1782, Chevron was required to file a separate action when it determined to seek the documents from Page. But that ministerial step should not alter the ultimate obligation to produce the same documents already under a production order. "The same dispute may . . . be framed in formally separate actions . . . [but] later courts tend to  adhere to earlier courts for the same reasons that inform  general law-of-the-case practices." See, e.g., 18B Charles Alan Wright et al., Federal Practice and Procedure § 4478.4 (2d ed. 2014 supp.). That principle applies well here.

Were we to find otherwise, Donziger could escape his disclosure obligations because of the geographic happenstance of where the responsive documents otherwise under his control were found. Indeed, Donziger might escape all of his New York disclosure obligations by sending the relevant documents to his compatriots in other districts. Yet a partner in a law firm cannot avoid his or her disclosure obligations by foisting the 35 documents off to an associate who happens to reside in another judicial circuit. And permitting Donziger to do so here would not only "interfere" with the New York court's affairs, W. Gulf Mar. Ass'n, 751 F.2d at 728, but nullify the power of its orders entirely.

We do not countenance that result. Instead, we find comity a compelling reason to affirm the application of the Donziger Waiver in the Maryland proceeding to the documents in Page's possession.

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