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The case involves the adequacy of Chevron’s privilege log. The magistrate judge reviewed the supposedly privileged documents at issue in camera.

The case illustrates the (unfortunately common) misuse of claims of privilege in US civil litigation.

In Re Chevron Corp., No. 10-2815 (3d Cir. Feb. 2011), involves a review by the United States Court of Appeals for the Third Circuit of a District Court’s order granting Chevron discovery under 28 U.S.C. § 1782 (see the discussion the use of U.S. discovery in international proceedings in our e-book, International Practice: Topics and Trends).

While the court in Chevron said little else about the applicability of § 1782, an opinion issued by a federal magistrate judge in the Southern District of Florida one week before, in In re Winning (HK) Shipping Co. Ltd., offered a detailed approach to determining whether a private international arbitral tribunal is a foreign tribunal that qualifies for judicial assistance under § 1782. Specifically, the court in Winning discussed a functional test for determining whether an international arbitral tribunal qualifies as a foreign tribunal under § 1782.

The Winning opinion is yet another addition to the growing body of conflicting case law on whether, and if so when, judicial assistance under § 1782 is available to parties in international arbitral proceedings – a body of conflicting case law that ultimately will need to be clarified by the federal appellate courts and possibly by the U.S. Supreme Court.

should analyze, among other things, whether the tribunal: (1) has the ability to gather evidence; (2) is obligated to apply the law to the facts in an impartial manner; (3) has the authority to issue a binding decision; (4) will issue opinions that are judicially reviewable; and (5) is state-sponsored or purely private.