THEODORE J. BOUTROUS JR., SBN 132099 GIBSON, DUNN ... · 1/16/2013 · 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 notice of supplemental authority

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NOTICE OF SUPPLEMENTAL AUTHORITY AND EVIDENCE

CASE NO. 5:12-80237 MISC CRB NC

Gibson, Dunn & Crutcher LLP

THEODORE J. BOUTROUS JR., SBN 132099 [email protected]

GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: 213.229.7000 Facsimile: 213.229.7520 ETHAN DETTMER, SBN 196046

[email protected] GIBSON, DUNN & CRUTCHER LLP 555 Mission Street San Francisco, California 94105-0921 Telephone: 415.393.8200 Facsimile: 415.393.8306

Attorneys for Plaintiff CHEVRON CORPORATION

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

CHEVRON CORP.,

Plaintiff,

v.

STEVEN DONZIGER, et al.,

Defendant.


NOTICE OF SUPPLEMENTAL AUTHORITY AND EVIDENCE

Case3:12-mc-80237-CRB Document55 Filed01/16/13 Page1 of 2

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1 NOTICE OF SUPPLEMENTAL AUTHORITY AND EVIDENCE


Gibson, Dunn & Crutcher LLP

Chevron Corporation respectfully submits for the Court’s reference the authority and evidence

presented at today’s hearing on the pending motions to quash:

1) Taylor v. Sturgell, 553 U.S. 880 (2008), addressing “virtual representation,” attached

as Attachment A; and

2) The January 24, 2011 letter from Yahoo! legal to Bruce Kaplan, counsel for Steven

Donziger, responding to Mr. Donziger’s subpoena directed at Yahoo! seeking “1) the user profile, as

produced by the Yahoo! Account Management Tool; and 2) the dates, times and Internet Protocol

(“IP”) addresses for logins,” attached as Attachment B.

Respectfully submitted,

DATED: January 16, 2013 GIBSON, DUNN & CRUTCHER LLP

By: /s/ Theodore B. Boutrous Theodore B. Boutrous Attorneys for Plaintiff CHEVRON CORPORATION

Case3:12-mc-80237-CRB Document55 Filed01/16/13 Page2 of 2

Attachment A

Case3:12-mc-80237-CRB Document55-1 Filed01/16/13 Page1 of 21

2161TAYLOR v. STURGELLCite as 128 S.Ct. 2161 (2008)

that the vast majority of such claims areasserted in complaints advancing otherclaims as well, and that all but a handfulare dismissed well in advance of trial. Ex-perience also demonstrates that there arein fact rare cases in which a petty tyranthas misused governmental power. Proofthat such misuse was arbitrary becauseunsupported by any conceivable rationalbasis should suffice to establish a violationof the Equal Protection Clause withoutrequiring its victim also to prove that thetyrant was motivated by a particular vari-ety of class-based animus. When the alle-gations of a complaint plainly identify ‘‘theproverbial needle in a haystack,’’ ante, at2157, a federal court should not miscon-strue the Constitution in order to make iteven easier to dismiss unmeritoriousclaims.

* * *

In sum, there is no compelling reason tocarve arbitrary public-employment deci-sions out of the well-established categoryof equal protection violations when the fa-miliar rational review standard can suffi-ciently limit these claims to only whollyunjustified employment actions. Accord-ingly, I respectfully dissent.

,

Brent TAYLOR, Petitioner,

v.

Robert A. STURGELL, Acting Ad-ministrator, Federal Aviation

Administration, et al.No. 07–371.

Argued April 16, 2008.

Decided June 12, 2008.

Background: Following denial by FederalAviation Administration (FAA) of hisFreedom of Information Act (FOIA) re-quest for plans and specifications of vin-tage aircraft, requester sued to compeldisclosure. The United States DistrictCourt for the District of Columbia, Ricar-do M. Urbina, J., granted summary judg-ment for FAA, and intervenor aircraftmanufacturer, on claim preclusiongrounds. The United States Court of Ap-peals for the District of Columbia Circuit,490 F.3d 965, affirmed. Certiorari wasgranted.

Holdings: The United States SupremeCourt, Justice Ginsburg, held that:

(1) ‘‘adequate representation’’ exception torule against nonparty claim preclusioncould not serve as basis for broadertheory of ‘‘virtual representation’’;

(2) ‘‘virtual representation’’ exceptioncould not be justified on grounds of‘‘close enough’’ relationship betweenparty and nonparty;

(3) purported ‘‘public-law’’ nature of FOIAsuits did not warrant application of‘‘virtual representation’’ exception;

(4) there is no ‘‘virtual representation’’ ex-ception to general rule against nonpar-ty claim preclusion, abrogating Tyus v.Schoemehl, 93 F.3d 449, and Kourtis v.Cameron, 419 F.3d 989;

every court that was presented with one. Yetthere have been only approximately 150cases—both in the district courts and the

courts of appeals—addressing such claimssince Olech.


2162 128 SUPREME COURT REPORTER

(5) fact issue existed as to whether reques-ter was acting in collusion with reques-ter in preceding FOIA suit that hadsought same disclosures; and

(6) on remand, FAA would have burden ofproof to show collusion/agency justify-ing claim preclusion.

Vacated and remanded.

1. Judgment O668(3), 707

In general, one is not bound by judg-ment in personam in litigation in which heis not designated as party or to which hehas not been made party by service ofprocess.

2. Federal Courts O420

Preclusive effect of federal-court judg-ment is determined by federal commonlaw.

3. Federal Courts O420, 441

United States Supreme Court has ulti-mate authority to determine and declareuniform federal rules of res judicata forjudgments in federal-question cases.

4. Constitutional Law O4012

Federal common law of preclusion issubject to due process limitations.U.S.C.A. Const.Amends. 5, 14.

5. Judgment O584

Under doctrine of claim preclusion,final judgment forecloses successive litiga-tion of very same claim, whether or notrelitigation of claim raises same issues asearlier suit.

6. Judgment O713(1)

Issue preclusion bars successive litiga-tion of issue of fact or law actually litigatedand resolved in valid court determinationessential to prior judgment, even if issuerecurs in context of different claim.

7. Judgment O675(1), 677, 681, 707General rule against nonparty claim

preclusion is subject to exceptions, in fed-eral-question cases, where: (1) personagrees to be bound by determination ofissues in action between others; (2) there ispre-existing substantive legal relationshipbetween person to be bound and party tojudgment, e.g. preceding/succeeding prop-erty owners, bailee/bailor, assignee/assign-or; (3) nonparty was adequately represent-ed by someone with same interests whowas party, as in properly conducted classaction or suit brought by trustee, guardianor other fiduciary; (4) nonparty assumedcontrol over litigation; (5) nonparty servesas proxy for party; or (6) special statutoryscheme expressly forecloses successive liti-gation by nonlitigants and is otherwiseconsistent with due process. U.S.C.A.Const.Amend. 5.

8. Constitutional Law O4012 Judgment O677

‘‘Adequate representation’’ exceptionto rule against nonparty claim preclusioncould not serve as basis for broader ‘‘virtu-al representation’’ exception in federal-question case, under which nonparty wouldbe bound by earlier judgment simply be-cause party had had strong incentive tolitigate, and because nonparty had hiredparty’s attorney in second suit; ‘‘adequaterepresentation’’ exception, in order to com-port with due process, required either spe-cial procedures in first suit to protect non-parties’ interests, or understanding byconcerned parties in first suit that it wasbrought in representative capacity.U.S.C.A. Const.Amend. 5.

9. Judgment O677Broad ‘‘virtual representation’’ excep-

tion to rule against nonparty claim preclu-sion could not be justified, in federal-ques-tion cases, on ground that any relationshipbetween party and nonparty ‘‘close



enough’’ to bring nonparty within judg-ment warranted preclusion; fundamentalnature of general rule dictated a con-strained approach to exceptions, and ‘‘closeenough’’ criterion fell short of minimumrequirements for ‘‘adequate representa-tion’’ exception to general rule.

10. Judgment O677Purported ‘‘public-law’’ nature of

Freedom of Information Act (FOIA) suitsdid not warrant application of broad ‘‘vir-tual representation’’ exception to ruleagainst nonparty claim preclusion; FOIAactions sought grants of relief to individualplaintiffs rather than decrees benefitingpublic at large, it was for Congress ratherthan courts to proscribe or confine succes-sive FOIA suits by different requesters,and there was no evidence of vexatiousFOIA litigation resulting from applicationof general rule. 5 U.S.C.A. § 552.

11. Judgment O677There is no ‘‘virtual representation’’

exception to general rule against nonpartyclaim preclusion, in federal-question cases;abrogating Tyus v. Schoemehl, 93 F.3d449, and Kourtis v. Cameron, 419 F.3d989.

12. Federal Civil Procedure O2509.8Fact issue as to whether nonparty to

initial, unsuccessful Freedom of Informa-tion Act (FOIA) suit acted as party’s agentin filing second FOIA suit seeking to com-pel release of same information, i.e. actedin collusion with party, precluded sum-mary judgment in second action ongrounds of claim preclusion. 5 U.S.C.A.§ 552(a)(4)(B).

13. Judgment O955In Freedom of Information Act

(FOIA) suit brought by nonparty to earlier

FOIA action that had unsuccessfullysought same records, defendant agencyhad burden of proof to establish collu-sion/agency basis for claim preclusion;claim preclusion was affirmative defense,and was within general rule that defendanthas burden of proof on affirmative defens-es. 5 U.S.C.A. § 552(a)(4)(B).

Syllabus *

Greg Herrick, an antique aircraft en-thusiast seeking to restore a vintage air-plane manufactured by the Fairchild En-gine and Airplane Corporation (FEAC),filed a Freedom of Information Act(FOIA) request asking the Federal Avia-tion Administration (FAA) for copies oftechnical documents related to the air-plane. The FAA denied his request basedon FOIA’s exemption for trade secrets, see5 U.S.C. § 552(b)(4). Herrick took an ad-ministrative appeal, but when respondentFairchild, FEAC’s successor, objected tothe documents’ release, the FAA adheredto its original decision. Herrick then filedan unsuccessful FOIA lawsuit to securethe documents. Less than a month afterthat suit was resolved, petitioner Taylor,Herrick’s friend and an antique aircraftenthusiast himself, made a FOIA requestfor the same documents Herrick had un-successfully sued to obtain. When theFAA failed to respond, Taylor filed suit inthe U.S. District Court for the District ofColumbia. Holding the suit barred byclaim preclusion, the District Court grant-ed summary judgment to the FAA and toFairchild, as intervenor in Taylor’s action.The court acknowledged that Taylor wasnot a party to Herrick’s suit, but held thata nonparty may be bound by a judgment ifshe was ‘‘virtually represented’’ by a party.The D.C. Circuit affirmed, announcing a

* The syllabus constitutes no part of the opinionof the Court but has been prepared by theReporter of Decisions for the convenience of

the reader. See United States v. Detroit Tim-ber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct.282, 50 L.Ed. 499.



five-factor test for ‘‘virtual representation.’’The first two factors of the D.C. Circuit’stest—‘‘identity of interests’’ and ‘‘adequaterepresentation’’—are necessary but notsufficient for virtual representation. Inaddition, at least one of three other factorsmust be established: ‘‘a close relationshipbetween the present party and his putativerepresentative,’’ ‘‘substantial participationby the present party in the first case,’’ or‘‘tactical maneuvering on the part of thepresent party to avoid preclusion by theprior judgment.’’ The D.C. Circuit ac-knowledged the absence of any indicationthat Taylor participated in, or even hadnotice of, Herrick’s suit. It nonethelessfound the ‘‘identity of interests,’’ ‘‘adequaterepresentation,’’ and ‘‘close relationship’’factors satisfied because the two mensought release of the same documents,were ‘‘close associates,’’ had discussedworking together to restore Herrick’splane, and had used the same lawyer topursue their suits. Because these condi-tions sufficed to establish virtual represen-tation, the court left open the questionwhether Taylor had engaged in tacticalmaneuvering to avoid preclusion.

Held:1. The theory of preclusion by ‘‘vir-

tual representation’’ is disapproved. Thepreclusive effects of a judgment in a feder-al-question case decided by a federal courtshould instead be determined according tothe established grounds for nonparty pre-clusion. Pp. 2171 – 2178.

(a) The preclusive effect of a federal-court judgment is determined by federalcommon law, subject to due process limita-tions. Pp. 2171 – 2173.

(1) Extending the preclusive effect ofa judgment to a nonparty runs up againstthe ‘‘deep-rooted historic tradition that ev-eryone should have his own day in court.’’Richards v. Jefferson County, 517 U.S.793, 798, 116 S.Ct. 1761, 135 L.Ed.2d 76

(internal quotation marks omitted). Indi-cating the strength of that tradition, thisCourt has often repeated the general rulethat ‘‘one is not bound by a judgment inpersonam in a litigation in which he is notdesignated a party or to which he has notbeen made a party by service of process.’’Hansberry v. Lee, 311 U.S. 32, 40, 61 S.Ct.115, 85 L.Ed. 22. Pp. 2171 – 2172.

(2) The rule against nonparty preclu-sion is subject to exceptions, grouped forpresent purposes into six categories.First, ‘‘[a] person who agrees to be boundby the determination of issues in an actionbetween others is bound in accordancewith the [agreement’s] terms.’’ Restate-ment (Second) of Judgments § 40. Sec-ond, nonparty preclusion may be based ona pre-existing substantive legal relation-ship between the person to be bound and aparty to the judgment, e.g., assignee andassignor. Third, ‘‘in certain limited cir-cumstances,’’ a nonparty may be bound bya judgment because she was ‘‘ ‘adequatelyrepresented by someone with the sameinterests who [wa]s a party’ ’’ to the suit.Richards, 517 U.S., at 798, 116 S.Ct. 1761.Fourth, a nonparty is bound by a judg-ment if she ‘‘assume[d] control’’ over thelitigation in which that judgment was ren-dered. Montana v. United States, 440U.S. 147, 154, 99 S.Ct. 970, 59 L.Ed.2d 210.Fifth, a party bound by a judgment maynot avoid its preclusive force by relitigat-ing through a proxy. Preclusion is thus inorder when a person who did not partici-pate in litigation later brings suit as thedesignated representative or agent of aperson who was a party to the prior adju-dication. Sixth, a special statutory schemeotherwise consistent with due process—e.g., bankruptcy proceedings—may ‘‘ex-pressly foreclos[e] successive litigation bynonlitigants.’’ Martin v. Wilks, 490 U.S.755, 762, n. 2, 109 S.Ct. 2180, 104 L.Ed.2d835. Pp. 2171 – 2173.



(b) Reaching beyond these six catego-ries, the D.C. Circuit recognized a broad‘‘virtual representation’’ exception to therule against nonparty preclusion. None ofthe arguments advanced by that court, theFAA, or Fairchild justify such an expan-sive doctrine. Pp. 2171 – 2173.

(1) The D.C. Circuit purported toground its doctrine in this Court’s state-ments that, in some circumstances, a per-son may be bound by a judgment if shewas adequately represented by a party tothe proceeding yielding that judgment.But the D.C. Circuit’s definition of ‘‘ade-quate representation’’ strayed from themeaning this Court has attributed to thatterm. In Richards, the Alabama SupremeCourt had held a tax challenge barred by ajudgment upholding the same tax in a suitby different taxpayers. 517 U.S., at 795–797, 116 S.Ct. 1761. This Court reversed,holding that nonparty preclusion was in-consistent with due process where therewas no showing (1) that the court in thefirst suit ‘‘took care to protect the inter-ests’’ of absent parties, or (2) that theparties to the first litigation ‘‘understoodtheir suit to be on behalf of absent [par-ties],’’ id., at 802, 116 S.Ct. 1761. In hold-ing that representation can be ‘‘adequate’’for purposes of nonparty preclusion evenwhere these two factors are absent, theD.C. Circuit misapprehended Richards.Pp. 2173 – 2174.

(2) Fairchild and the FAA ask thisCourt to abandon altogether the attemptto delineate discrete grounds and clearrules for nonparty preclusion. Instead,they contend, only an equitable and heavilyfact-driven inquiry can account for all ofthe situations in which nonparty preclusionis appropriate. This argument is rejected.First, respondents’ balancing test is atodds with the constrained approach ad-vanced by this Court’s decisions, whichhave endeavored to delineate discrete, lim-ited exceptions to the fundamental rule

that a litigant is not bound by a judgmentto which she was not a party, see, e.g.,Richards, 517 U.S., at 798–799, 116 S.Ct.1761. Second, a party’s representation ofa nonparty is ‘‘adequate’’ for preclusionpurposes only if, at a minimum: (1) theinterests of the nonparty and her repre-sentative are aligned, see Hansberry, 311U.S., at 43, 61 S.Ct. 115, and (2) either theparty understood herself to be acting in arepresentative capacity or the originalcourt took care to protect the nonparty’sinterests, see Richards, 517 U.S., at 801–802, 116 S.Ct. 1761. Adequate representa-tion may also require (3) notice of theoriginal suit to the persons alleged to havebeen represented. See id., at 801, 116S.Ct. 1761. In the class-action context,these limitations are implemented by Fed-eral Rule of Civil Procedure 23’s procedur-al safeguards. But an expansive virtualrepresentation doctrine would recognize acommon-law kind of class action shorn ofthese protections. Third, a diffuse balanc-ing approach to nonparty preclusion wouldlikely complicate the task of district courtsfaced in the first instance with preclusionquestions. Pp. 2174 – 2177.

(3) Finally, the FAA contends thatnonparty preclusion should apply morebroadly in ‘‘public-law’’ litigation than in‘‘private-law’’ controversies. First, theFAA points to Richards’ acknowledgmentthat when a taxpayer challenges ‘‘an al-leged misuse of public funds’’ or ‘‘otherpublic action,’’ the suit ‘‘has only an indi-rect impact on [the plaintiff’s] interests,’’517 U.S., at 803, 116 S.Ct. 1761, and ‘‘theStates have wide latitude to establish pro-cedures [limiting] the number of judicialproceedings that may be entertained,’’ibid. In contrast to the public-law litiga-tion contemplated in Richards, however, asuccessful FOIA action results in a grantof relief to the individual plaintiff, not adecree benefiting the public at large. Fur-



thermore, Richards said only that, for thetype of public-law claims there envisioned,States were free to adopt procedures limit-ing repetitive litigation. While it appearsequally evident that Congress can adoptsuch procedures, it hardly follows that thisCourt should proscribe or confine succes-sive FOIA suits by different requesters.Second, the FAA argues that, because thenumber of plaintiffs in public-law cases ispotentially limitless, it is theoretically pos-sible for several persons to coordinate aseries of vexatious repetitive lawsuits.But this risk does not justify departingfrom the usual nonparty preclusion rules.Stare decisis will allow courts to dispose ofrepetitive suits in the same circuit, andeven when stare decisis is not dispositive,the human inclination not to waste moneyshould discourage suits based on claims orissues already decided. Pp. 2176 – 2178.

2. The remaining question is wheth-er the result reached by the courts belowcan be justified based on one of the six theestablished grounds for nonparty preclu-sion. With one exception, those groundsplainly have no application here. Respon-dents argue that Taylor’s suit is a collusiveattempt to relitigate Herrick’s claim. Thatargument justifies a remand to allow thecourts below the opportunity to determinewhether the fifth ground for nonparty pre-clusion—preclusion because a nonparty toearlier litigation has brought suit as anagent of a party bound by the prior adjudi-cation—applies to Taylor’s suit. Butcourts should be cautious about findingpreclusion on the basis of agency. A merewhiff of ‘‘tactical maneuvering’’ will notsuffice; instead, principles of agency lawindicate that preclusion is appropriate onlyif the putative agent’s conduct of the suit issubject to the control of the party who isbound by the prior adjudication. Finally,the Court rejects Fairchild’s suggestionthat Taylor must bear the burden of prov-ing he is not acting as Herrick’s agent.

Claim preclusion is an affirmative defensefor the defendant to plead and prove. Pp.2178 – 2180.

490 F.3d 965, vacated and remanded.

GINSBURG, J., delivered the opinionfor a unanimous Court.

Adina H. Rosenbaum, Washington, DC,for Petitioner.

Douglas Hallward–Driemeier, Washing-ton, DC, for Federal Respondent.

Catherine E. Stetson, for RespondentThe Fairchild Corporation

Michael John Pangia, Washington, DC,Adina H. Rosenbaum, Brian Wolfman,Scott L. Nelson, Washington, DC, for Peti-tioner.

Paul D. Clement, Solicitor General, Jef-frey S. Bucholtz, Acting Assistant Attor-ney General, Edwin S. Kneedler, DeputySolicitor General, Douglas Hallward–Driemeier, Assistant to the Solicitor Gen-eral, Leonard Schaitman, Robert D. Ka-menshine, Washington, D.C., for FederalRespondent.

Emily M. Yinger, N. Thomas Connally,Michael M. Smith, Hogan & Hartson LLP,McLean, VA, Catherine E. Stetson, Chris-topher T. Handman, Dominic F. Perella,Hogan & Hartson LLP, Washington, D.C.,for Respondent The Fairchild Corporation.

For U.S. Supreme Court briefs, see:

2008 WL 494946 (Pet.Brief)

2008 WL 782551 (Resp.Brief)

2008 WL 795155 (Resp.Brief)

2008 WL 976392 (Reply.Brief)

Justice GINSBURG delivered theopinion of the Court.

[1] ‘‘It is a principle of general applica-tion in Anglo–American jurisprudence thatone is not bound by a judgment in person-



am in a litigation in which he is not desig-nated as a party or to which he has notbeen made a party by service of process.’’Hansberry v. Lee, 311 U.S. 32, 40, 61 S.Ct.115, 85 L.Ed. 22 (1940). Several excep-tions, recognized in this Court’s decisions,temper this basic rule. In a class action,for example, a person not named as aparty may be bound by a judgment on themerits of the action, if she was adequatelyrepresented by a party who actively partic-ipated in the litigation. See id., at 41, 61S.Ct. 115. In this case, we consider forthe first time whether there is a ‘‘virtualrepresentation’’ exception to the generalrule against precluding nonparties.Adopted by a number of courts, includingthe courts below in the case now before us,the exception so styled is broader than anywe have so far approved.

The virtual representation question weexamine in this opinion arises in the fol-lowing context. Petitioner Brent Taylorfiled a lawsuit under the Freedom of Infor-mation Act seeking certain documentsfrom the Federal Aviation Administration.Greg Herrick, Taylor’s friend, had previ-ously brought an unsuccessful suit seekingthe same records. The two men have nolegal relationship, and there is no evidencethat Taylor controlled, financed, participat-ed in, or even had notice of Herrick’searlier suit. Nevertheless, the D.C. Cir-cuit held Taylor’s suit precluded by thejudgment against Herrick because, in thatcourt’s assessment, Herrick qualified asTaylor’s ‘‘virtual representative.’’

We disapprove the doctrine of preclusionby ‘‘virtual representation,’’ and hold,based on the record as it now stands, thatthe judgment against Herrick does not barTaylor from maintaining this suit.

I

The Freedom of Information Act(FOIA) accords ‘‘any person’’ a right to

request any records held by a federalagency. 5 U.S.C. § 552(a)(3)(A) (2006 ed.).No reason need be given for a FOIA re-quest, and unless the requested materialsfall within one of the Act’s enumeratedexemptions, see § 552(a)(3)(E), (b), theagency must ‘‘make the records promptlyavailable’’ to the requester, § 552(a)(3)(A).If an agency refuses to furnish the re-quested records, the requester may filesuit in federal court and obtain an injunc-tion ‘‘order[ing] the production of anyagency records improperly withheld.’’§ 552(a)(4)(B).

The courts below held the instant FOIAsuit barred by the judgment in earlierlitigation seeking the same records. Be-cause the lower courts’ decisions turned onthe connection between the two lawsuits,we begin with a full account of each action.

A

The first suit was filed by Greg Herrick,an antique aircraft enthusiast and the own-er of an F–45 airplane, a vintage modelmanufactured by the Fairchild Engine andAirplane Corporation (FEAC) in the1930’s. In 1997, seeking information thatwould help him restore his plane to itsoriginal condition, Herrick filed a FOIArequest asking the Federal Aviation Ad-ministration (FAA) for copies of any tech-nical documents about the F–45 containedin the agency’s records.

To gain a certificate authorizing themanufacture and sale of the F–45, FEAChad submitted to the FAA’s predecessor,the Civil Aeronautics Authority, detailedspecifications and other technical dataabout the plane. Hundreds of pages ofdocuments produced by FEAC in the cer-tification process remain in the FAA’s rec-ords. The FAA denied Herrick’s request,however, upon finding that the documentshe sought are subject to FOIA’s exemptionfor ‘‘trade secrets and commercial or finan-



cial information obtained from a personand privileged or confidential,’’ 5 U.S.C.§ 552(b)(4) (2006 ed.). In an administra-tive appeal, Herrick urged that FEAC andits successors had waived any trade-secretprotection. The FAA thereupon contactedFEAC’s corporate successor, respondentFairchild Corporation (Fairchild). Be-cause Fairchild objected to release of thedocuments, the agency adhered to its orig-inal decision.

Herrick then filed suit in the U.S. Dis-trict Court for the District of Wyoming.Challenging the FAA’s invocation of thetrade-secret exemption, Herrick placedheavy weight on a 1955 letter from FEACto the Civil Aeronautics Authority. Theletter authorized the agency to lend anydocuments in its files to the public ‘‘for usein making repairs or replacement parts foraircraft produced by Fairchild.’’ Herrickv. Garvey, 298 F.3d 1184, 1193 (C.A.102002) (internal quotation marks omitted).This broad authorization, Herrick main-tained, showed that the F–45 certificationrecords held by the FAA could not beregarded as ‘‘secre[t]’’ or ‘‘confidential’’within the meaning of § 552(b)(4).

Rejecting Herrick’s argument, the Dis-trict Court granted summary judgment tothe FAA. Herrick v. Garvey, 200F.Supp.2d 1321, 1328–1329 (D.Wyo.2000).The 1955 letter, the court reasoned, didnot deprive the F–45 certification docu-ments of trade-secret status, for those doc-uments were never in fact released pursu-ant to the letter’s blanket authorization.See id., at 1329. The court also statedthat even if the 1955 letter had waivedtrade-secret protection, Fairchild had suc-cessfully ‘‘reversed’’ the waiver by object-ing to the FAA’s release of the records toHerrick. Ibid.

On appeal, the Tenth Circuit agreedwith Herrick that the 1955 letter hadstripped the requested documents of

trade-secret protection. See Herrick, 298F.3d, at 1194. But the Court of Appealsupheld the District Court’s alternative de-termination—i.e., that Fairchild had re-stored trade-secret status by objecting toHerrick’s FOIA request. Id., at 1195. Onthat ground, the appeals court affirmedthe entry of summary judgment for theFAA.

In so ruling, the Tenth Circuit notedthat Herrick had failed to challenge twosuppositions underlying the DistrictCourt’s decision. First, the District Courtassumed trade-secret status could be ‘‘re-stored’’ to documents that had lost protec-tion. Id., at 1194, n. 10. Second, theDistrict Court also assumed that Fairchildhad regained trade-secret status for thedocuments even though the companyclaimed that status only ‘‘after Herrick hadinitiated his request’’ for the F–45 records.Ibid. The Court of Appeals expressed noopinion on the validity of these supposi-tions. See id., at 1194–1195, n. 10.

B

The Tenth Circuit’s decision issued onJuly 24, 2002. Less than a month later, onAugust 22, petitioner Brent Taylor—afriend of Herrick’s and an antique aircraftenthusiast in his own right—submitted aFOIA request seeking the same docu-ments Herrick had unsuccessfully sued toobtain. When the FAA failed to respond,Taylor filed a complaint in the U.S. Dis-trict Court for the District of Columbia.Like Herrick, Taylor argued that FEAC’s1955 letter had stripped the records oftheir trade-secret status. But Taylor alsosought to litigate the two issues concerningrecapture of protected status that Herrickhad failed to raise in his appeal to theTenth Circuit.

After Fairchild intervened as a defen-



dant,1 the District Court in D.C. concludedthat Taylor’s suit was barred by claimpreclusion; accordingly, it granted sum-mary judgment to Fairchild and the FAA.The court acknowledged that Taylor wasnot a party to Herrick’s suit. Relying onthe Eighth Circuit’s decision in Tyus v.Schoemehl, 93 F.3d 449 (1996), however, itheld that a nonparty may be bound by ajudgment if she was ‘‘virtually represent-ed’’ by a party. App. to Pet. for Cert.30a–31a.

The Eighth Circuit’s seven-factor testfor virtual representation, adopted by theDistrict Court in Taylor’s case, requires an‘‘identity of interests’’ between the personto be bound and a party to the judgment.See id., at 31a. See also Tyus, 93 F.3d, at455. Six additional factors counsel in favorof virtual representation under the EighthCircuit’s test, but are not prerequisites:(1) a ‘‘close relationship’’ between the pres-ent party and a party to the judgmentalleged to be preclusive; (2) ‘‘participationin the prior litigation’’ by the present par-ty; (3) the present party’s ‘‘apparent ac-quiescence’’ to the preclusive effect of thejudgment; (4) ‘‘deliberat[e] maneu-ver[ing]’’ to avoid the effect of the judg-ment; (5) adequate representation of thepresent party by a party to the prior adju-dication; and (6) a suit raising a ‘‘publiclaw’’ rather than a ‘‘private law’’ issue.App. to Pet. for Cert. 31a (citing Tyus, 93F.3d, at 454–456). These factors, the D.C.District Court observed, ‘‘constitute a fluidtest with imprecise boundaries’’ and callfor ‘‘a broad, case-by-case inquiry.’’ App.to Pet. for Cert. 32a.

The record before the District Court inTaylor’s suit revealed the following factsabout the relationship between Taylor and

Herrick: Taylor is the president of theAntique Aircraft Association, an organiza-tion to which Herrick belongs; the twomen are ‘‘close associate[s],’’ App. 54; Her-rick asked Taylor to help restore Herrick’sF–45, though they had no contract oragreement for Taylor’s participation in therestoration; Taylor was represented bythe lawyer who represented Herrick in theearlier litigation; and Herrick apparentlygave Taylor documents that Herrick hadobtained from the FAA during discoveryin his suit.

Fairchild and the FAA conceded thatTaylor had not participated in Herrick’ssuit. App. to Pet. for Cert. 32a. The D.C.District Court determined, however, thatHerrick ranked as Taylor’s virtual repre-sentative because the facts fit each of theother six indicators on the Eighth Circuit’slist. See id., at 32a–35a. Accordingly, theDistrict Court held Taylor’s suit, seekingthe same documents Herrick had request-ed, barred by the judgment against Her-rick. See id., at 35a.

The D.C. Circuit affirmed. It observed,first, that other Circuits ‘‘vary widely’’ intheir approaches to virtual representation.Taylor v. Blakey, 490 F.3d 965, 971 (2007).In this regard, the D.C. Circuit contrastedthe multifactor balancing test applied bythe Eighth Circuit and the D.C. DistrictCourt with the Fourth Circuit’s narrowerapproach, which ‘‘treats a party as a virtu-al representative only if the party is ‘ac-countable to the nonparties who file a sub-sequent suit’ and has ‘the tacit approval ofthe court’ to act on the nonpart[ies’] be-half.’’ Ibid. (quoting Klugh v. UnitedStates, 818 F.2d 294, 300 (C.A.4 1987)).

Rejecting both of these approaches, theD.C. Circuit announced its own five-factor

1. Although Fairchild provided documents tothe Wyoming District Court and filed an ami-cus brief in the Tenth Circuit, it was not aparty to Herrick’s suit. See Herrick v. Garvey,

298 F.3d 1184, 1188 (C.A.10 2002); Herrick v.Garvey, 200 F.Supp.2d 1321, 1327 (D.Wyo.2000).



test. The first two factors—‘‘identity ofinterests’’ and ‘‘adequate representa-tion’’—are necessary but not sufficient forvirtual representation. 490 F.3d, at 971–972. In addition, at least one of threeother factors must be established: ‘‘a closerelationship between the present party andhis putative representative,’’ ‘‘substantialparticipation by the present party in thefirst case,’’ or ‘‘tactical maneuvering on thepart of the present party to avoid preclu-sion by the prior judgment.’’ Id., at 972.

Applying this test to the record in Tay-lor’s case, the D.C. Circuit found both ofthe necessary conditions for virtual repre-sentation well met. As to identity of inter-ests, the court emphasized that Taylor andHerrick sought the same result—release ofthe F–45 documents. Moreover, the D.C.Circuit observed, Herrick owned an F–45airplane, and therefore had ‘‘if anything, astronger incentive to litigate’’ than Taylor,who had only a ‘‘general interest in publicdisclosure and the preservation of antiqueaircraft heritage.’’ Id., at 973 (internalquotation marks omitted).

Turning to adequacy of representation,the D.C. Circuit acknowledged that someother Circuits regard notice of a prior suitas essential to a determination that a non-party was adequately represented in thatsuit. See id., at 973–974 (citing Perez v.Volvo Car Corp., 247 F.3d 303, 312 (C.A.12001), and Tice v. American Airlines, Inc.,162 F.3d 966, 973 (C.A.7 1998)). Disagree-

ing with these courts, the D.C. Circuitdeemed notice an ‘‘important’’ but not anindispensable element in the adequacy in-quiry. The court then concluded that Her-rick had adequately represented Tayloreven though Taylor had received no noticeof Herrick’s suit. For this conclusion, theappeals court relied on Herrick’s ‘‘strongincentive to litigate’’ and Taylor’s later en-gagement of the same attorney, which in-dicated to the court Taylor’s satisfactionwith that attorney’s performance in Her-rick’s case. See 490 F.3d, at 974–975.

The D.C. Circuit also found its ‘‘closerelationship’’ criterion met, for Herrickhad ‘‘asked Taylor to assist him in restor-ing his F–45’’ and ‘‘provided information toTaylor that Herrick had obtained throughdiscovery’’; furthermore, Taylor ‘‘did notoppose Fairchild’s characterization of Her-rick as his ‘close associate.’ ’’ Id., at 975.Because the three above-described factorssufficed to establish virtual representationunder the D.C. Circuit’s five-factor test,the appeals court left open the questionwhether Taylor had engaged in ‘‘tacticalmaneuvering.’’ See id., at 976 (calling thefacts bearing on tactical maneuvering‘‘ambigu[ous]’’).2

We granted certiorari, 552 U.S. ––––,128 S.Ct. 977, 169 L.Ed.2d 800 (2008), toresolve the disagreement among the Cir-cuits over the permissibility and scope ofpreclusion based on ‘‘virtual representa-tion.’’ 3

2. The D.C. Circuit did not discuss the DistrictCourt’s distinction between public-law andprivate-law claims.

3. The Ninth Circuit applies a five-factor testsimilar to the D.C. Circuit’s. See Kourtis v.Cameron, 419 F.3d 989, 996 (2005). TheFifth, Sixth, and Eleventh Circuits, like theFourth Circuit, have constrained the reach ofvirtual representation by requiring, inter alia,the existence of a legal relationship betweenthe nonparty to be bound and the putativerepresentative. See Pollard v. Cockrell, 578

F.2d 1002, 1008 (C.A.5 1978); Becherer v.Merrill Lynch, Pierce, Fenner, & Smith, Inc.,193 F.3d 415, 424 (C.A.6 1999); EEOC v.Pemco Aeroplex, Inc., 383 F.3d 1280, 1289(C.A.11 2004). The Seventh Circuit, in con-trast, has rejected the doctrine of virtual rep-resentation altogether. See Perry v. GlobeAuto Recycling, Inc., 227 F.3d 950, 953(2000).



II

[2–4] The preclusive effect of a feder-al-court judgment is determined by federalcommon law. See Semtek Int’l Inc. v.Lockheed Martin Corp., 531 U.S. 497, 507–508, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001).For judgments in federal-question cases—for example, Herrick’s FOIA suit—federalcourts participate in developing ‘‘uniformfederal rule[s]’’ of res judicata, which thisCourt has ultimate authority to determineand declare. Id., at 508, 121 S.Ct. 1021.4

The federal common law of preclusion is,of course, subject to due process limita-tions. See Richards v. Jefferson County,517 U.S. 793, 797, 116 S.Ct. 1761, 135L.Ed.2d 76 (1996).

Taylor’s case presents an issue of firstimpression in this sense: Until now, wehave never addressed the doctrine of ‘‘vir-tual representation’’ adopted (in varyingforms) by several Circuits and relied uponby the courts below. Our inquiry, howev-er, is guided by well-established precedentregarding the propriety of nonparty pre-clusion. We review that precedent beforetaking up directly the issue of virtual rep-resentation.

A

[5, 6] The preclusive effect of a judg-ment is defined by claim preclusion andissue preclusion, which are collectively re-ferred to as ‘‘res judicata.’’ 5 Under thedoctrine of claim preclusion, a final judg-ment forecloses ‘‘successive litigation ofthe very same claim, whether or not reliti-gation of the claim raises the same issuesas the earlier suit.’’ New Hampshire v.

Maine, 532 U.S. 742, 748, 121 S.Ct. 1808,149 L.Ed.2d 968 (2001). Issue preclusion,in contrast, bars ‘‘successive litigation ofan issue of fact or law actually litigatedand resolved in a valid court determinationessential to the prior judgment,’’ even ifthe issue recurs in the context of a differ-ent claim. Id., at 748–749, 121 S.Ct. 1808.By ‘‘preclud[ing] parties from contestingmatters that they have had a full and fairopportunity to litigate,’’ these two doc-trines protect against ‘‘the expense andvexation attending multiple lawsuits, con-serv[e] judicial resources, and foste[r] reli-ance on judicial action by minimizing thepossibility of inconsistent decisions.’’Montana v. United States, 440 U.S. 147,153–154, 99 S.Ct. 970, 59 L.Ed.2d 210(1979).

A person who was not a party to a suitgenerally has not had a ‘‘full and fair op-portunity to litigate’’ the claims and issuessettled in that suit. The application ofclaim and issue preclusion to nonpartiesthus runs up against the ‘‘deep-rooted his-toric tradition that everyone should havehis own day in court.’’ Richards, 517 U.S.,at 798, 116 S.Ct. 1761 (internal quotationmarks omitted). Indicating the strengthof that tradition, we have often repeatedthe general rule that ‘‘one is not bound bya judgment in personam in a litigation inwhich he is not designated as a party or towhich he has not been made a party byservice of process.’’ Hansberry, 311 U.S.,at 40, 61 S.Ct. 115. See also, e.g., Rich-ards, 517 U.S., at 798, 116 S.Ct. 1761;Martin v. Wilks, 490 U.S. 755, 761, 109S.Ct. 2180, 104 L.Ed.2d 835 (1989); Zenith

4. For judgments in diversity cases, federallaw incorporates the rules of preclusion ap-plied by the State in which the renderingcourt sits. See Semtek Int’l Inc. v. LockheedMartin Corp., 531 U.S. 497, 508, 121 S.Ct.1021, 149 L.Ed.2d 32 (2001).

5. These terms have replaced a more confusinglexicon. Claim preclusion describes the rulesformerly known as ‘‘merger’’ and ‘‘bar,’’while issue preclusion encompasses the doc-trines once known as ‘‘collateral estoppel’’and ‘‘direct estoppel.’’ See Migra v. WarrenCity School Dist. Bd. of Ed., 465 U.S. 75, 77,n. 1, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984).



Radio Corp. v. Hazeltine Research, Inc.,395 U.S. 100, 110, 89 S.Ct. 1562, 23L.Ed.2d 129 (1969).

B

Though hardly in doubt, the rule againstnonparty preclusion is subject to excep-tions. For present purposes, the recog-nized exceptions can be grouped into sixcategories.6

[7] First, ‘‘[a] person who agrees to bebound by the determination of issues in anaction between others is bound in accor-dance with the terms of his agreement.’’ 1Restatement (Second) of Judgments § 40,p. 390 (1980) (hereinafter Restatement).For example, ‘‘if separate actions involvingthe same transaction are brought by dif-ferent plaintiffs against the same defen-dant, all the parties to all the actions mayagree that the question of the defendant’sliability will be definitely determined, oneway or the other, in a ‘test case.’ ’’ D.Shapiro, Civil Procedure: Preclusion inCivil Actions 77–78 (2001) (hereinafterShapiro). See also California v. Texas,459 U.S. 1096, 1097, 103 S.Ct. 714, 74L.Ed.2d 944 (1983) (dismissing certain de-fendants from a suit based on a stipulation‘‘that each of said defendants TTT will be

bound by a final judgment of this Court’’on a specified issue).7

Second, nonparty preclusion may be jus-tified based on a variety of pre-existing‘‘substantive legal relationship[s]’’ betweenthe person to be bound and a party to thejudgment. Shapiro 78. See also Rich-ards, 517 U.S., at 798, 116 S.Ct. 1761.Qualifying relationships include, but arenot limited to, preceding and succeedingowners of property, bailee and bailor, andassignee and assignor. See 2 Restatement§§ 43–44, 52, 55. These exceptions origi-nated ‘‘as much from the needs of propertylaw as from the values of preclusion byjudgment.’’ 18A C. Wright, A. Miller, &E. Cooper, Federal Practice and Proce-dure § 4448, p. 329 (2d ed.2002) (hereinaf-ter Wright & Miller).8

Third, we have confirmed that, ‘‘in cer-tain limited circumstances,’’ a nonpartymay be bound by a judgment because shewas ‘‘adequately represented by someonewith the same interests who [wa]s a party’’to the suit. Richards, 517 U.S., at 798, 116S.Ct. 1761 (internal quotation marks omit-ted). Representative suits with preclusiveeffect on nonparties include properly con-ducted class actions, see Martin, 490 U.S.,at 762, n. 2, 109 S.Ct. 2180 (citing Fed.Rule Civ. Proc. 23), and suits brought by

6. The established grounds for nonparty pre-clusion could be organized differently. See,e.g., 1 & 2 Restatement (Second) of Judg-ments §§ 39–62 (1980) (hereinafter Restate-ment); D. Shapiro, Civil Procedure: Preclu-sion in Civil Actions 75–92 (2001); 18A C.Wright, A. Miller, & E. Cooper, Federal Prac-tice and Procedure § 4448, pp. 327–329 (2ded.2002) (hereinafter Wright & Miller). Thelist that follows is meant only to provide aframework for our consideration of virtualrepresentation, not to establish a definitivetaxonomy.

7. The Restatement observes that a nonpartymay be bound not only by express or impliedagreement, but also through conduct inducingreliance by others. See 2 Restatement § 62.

See also 18A Wright & Miller § 4453, pp.425–429. We have never had occasion toconsider this ground for nonparty preclusion,and we express no view on it here.

8. The substantive legal relationships justifyingpreclusion are sometimes collectively referredto as ‘‘privity.’’ See, e.g., Richards v. JeffersonCounty, 517 U.S. 793, 798, 116 S.Ct. 1761,135 L.Ed.2d 76 (1996); 2 Restatement § 62,Comment a. The term ‘‘privity,’’ however, hasalso come to be used more broadly, as a wayto express the conclusion that nonparty pre-clusion is appropriate on any ground. See18A Wright & Miller § 4449, pp. 351–353,and n. 33 (collecting cases). To ward offconfusion, we avoid using the term ‘‘privity’’in this opinion.



trustees, guardians, and other fiduciaries,see Sea–Land Services, Inc. v. Gaudet, 414U.S. 573, 593, 94 S.Ct. 806, 39 L.Ed.2d 9(1974). See also 1 Restatement § 41.

Fourth, a nonparty is bound by a judg-ment if she ‘‘assume[d] control’’ over thelitigation in which that judgment was ren-dered. Montana, 440 U.S., at 154, 99S.Ct. 970. See also Schnell v. Peter Eck-rich & Sons, Inc., 365 U.S. 260, 262, n. 4,81 S.Ct. 557, 5 L.Ed.2d 546 (1961); 1Restatement § 39. Because such a personhas had ‘‘the opportunity to present proofsand argument,’’ he has already ‘‘had hisday in court’’ even though he was not aformal party to the litigation. Id., Com-ment a, p. 382.

Fifth, a party bound by a judgment maynot avoid its preclusive force by relitigat-ing through a proxy. Preclusion is thus inorder when a person who did not partici-pate in a litigation later brings suit as thedesignated representative of a person whowas a party to the prior adjudication. SeeChicago, R.I. & P.R. Co. v. Schendel, 270U.S. 611, 620, 623, 46 S.Ct. 420, 70 L.Ed.757 (1926); 18A Wright & Miller § 4454,pp. 433–434. And although our decisionshave not addressed the issue directly, italso seems clear that preclusion is appro-priate when a nonparty later brings suit asan agent for a party who is bound by ajudgment. See id., § 4449, p. 335.

Sixth, in certain circumstances a specialstatutory scheme may ‘‘expressly forec-los[e] successive litigation by nonlitigantsTTT if the scheme is otherwise consistentwith due process.’’ Martin, 490 U.S., at762, n. 2, 109 S.Ct. 2180. Examples of suchschemes include bankruptcy and probateproceedings, see ibid., and quo warrantoactions or other suits that, ‘‘under [thegoverning] law, [may] be brought only onbehalf of the public at large,’’ Richards,517 U.S., at 804, 116 S.Ct. 1761.

III

Reaching beyond these six establishedcategories, some lower courts have recog-nized a ‘‘virtual representation’’ exceptionto the rule against nonparty preclusion.Decisions of these courts, however, havebeen far from consistent. See 18A Wright& Miller § 4457, p. 513 (virtual representa-tion lacks a ‘‘clear or coherent theory’’;decisions applying it have ‘‘an episodicquality’’). Some Circuits use the label, butdefine ‘‘virtual representation’’ so that it isno broader than the recognized exceptionfor adequate representation. See, e.g.,Becherer v. Merrill Lynch, Pierce, Fenner& Smith, Inc., 193 F.3d 415, 423, 427(C.A.6 1999). But other courts, includingthe Eighth, Ninth, and D.C. Circuits, applymultifactor tests for virtual representationthat permit nonparty preclusion in casesthat do not fit within any of the establishedexceptions. See supra, at 2168 – 2170, andn. 3.

The D.C. Circuit, the FAA, and Fair-child have presented three arguments insupport of an expansive doctrine of virtualrepresentation. We find none of thempersuasive.

A

[8] The D.C. Circuit purported toground its virtual representation doctrinein this Court’s decisions stating that, insome circumstances, a person may bebound by a judgment if she was adequate-ly represented by a party to the proceed-ing yielding that judgment. See 490 F.3d,at 970–971. But the D.C. Circuit’s defini-tion of ‘‘adequate representation’’ strayedfrom the meaning our decisions have at-tributed to that term.

In Richards, we reviewed a decision bythe Alabama Supreme Court holding thata challenge to a tax was barred by ajudgment upholding the same tax in a suit



filed by different taxpayers. 517 U.S., at795–797, 116 S.Ct. 1761. The plaintiffs inthe first suit ‘‘did not sue on behalf of aclass,’’ their complaint ‘‘did not purport toassert any claim against or on behalf ofany nonparties,’’ and the judgment ‘‘didnot purport to bind’’ nonparties. Id., at801, 116 S.Ct. 1761. There was no indica-tion, we emphasized, that the court in thefirst suit ‘‘took care to protect the inter-ests’’ of absent parties, or that the partiesto that litigation ‘‘understood their suit tobe on behalf of absent [parties].’’ Id., at802, 116 S.Ct. 1761. In these circum-stances, we held, the application of claimpreclusion was inconsistent with ‘‘the dueprocess of law guaranteed by the Four-teenth Amendment.’’ Id., at 797, 116 S.Ct.1761.

The D.C. Circuit stated, without elabora-tion, that it did not ‘‘read Richards to holda nonparty TTT adequately representedonly if special procedures were followed [toprotect the nonparty] or the party to theprior suit understood it was representingthe nonparty.’’ 490 F.3d, at 971. As theD.C. Circuit saw this case, Herrick ade-quately represented Taylor for two princi-pal reasons: Herrick had a strong incen-tive to litigate; and Taylor later hiredHerrick’s lawyer, suggesting Taylor’s ‘‘sat-isfaction with the attorney’s performancein the prior case.’’ Id., at 975.

The D.C. Circuit misapprehended Rich-ards. As just recounted, our holding thatthe Alabama Supreme Court’s applicationof res judicata to nonparties violated dueprocess turned on the lack of either specialprocedures to protect the nonparties’ in-terests or an understanding by the con-cerned parties that the first suit wasbrought in a representative capacity. SeeRichards, 517 U.S., at 801–802, 116 S.Ct.1761. Richards thus established that rep-resentation is ‘‘adequate’’ for purposes of

nonparty preclusion only if (at a minimum)one of these two circumstances is present.

We restated Richards’ core holding inSouth Central Bell Telephone Co. v. Ala-bama, 526 U.S. 160, 119 S.Ct. 1180, 143L.Ed.2d 258 (1999). In that case, as inRichards, the Alabama courts had heldthat a judgment rejecting a challenge to atax by one group of taxpayers barred asubsequent suit by a different taxpayer.See 526 U.S., at 164–165, 119 S.Ct. 1180.In South Central Bell, however, the non-party had notice of the original suit andengaged one of the lawyers earlier em-ployed by the original plaintiffs. See id.,at 167–168, 119 S.Ct. 1180. Under theD.C. Circuit’s decision in Taylor’s case,these factors apparently would have suf-ficed to establish adequate representation.See 490 F.3d, at 973–975. Yet South Cen-tral Bell held that the application of resjudicata in that case violated due process.Our inquiry came to an end when we de-termined that the original plaintiffs hadnot understood themselves to be acting ina representative capacity and that therehad been no special procedures to safe-guard the interests of absentees. See 526U.S., at 168, 119 S.Ct. 1180.

Our decisions recognizing that a nonpar-ty may be bound by a judgment if she wasadequately represented by a party to theearlier suit thus provide no support for theD.C. Circuit’s broad theory of virtual rep-resentation.

B

[9] Fairchild and the FAA do not ar-gue that the D.C. Circuit’s virtual repre-sentation doctrine fits within any of therecognized grounds for nonparty preclu-sion. Rather, they ask us to abandon theattempt to delineate discrete grounds andclear rules altogether. Preclusion is inorder, they contend, whenever ‘‘the rela-tionship between a party and a non-party



is ‘close enough’ to bring the second liti-gant within the judgment.’’ Brief for Re-spondent Fairchild 20. See also Brief forRespondent FAA 22–24. Courts shouldmake the ‘‘close enough’’ determination,they urge, through a ‘‘heavily fact-driven’’and ‘‘equitable’’ inquiry. Brief for Respon-dent Fairchild 20. See also Brief for Re-spondent FAA 22 (‘‘there is no clear test’’for nonparty preclusion; rather, an ‘‘equi-table and fact-intensive’’ inquiry is de-manded (internal quotation marks omit-ted)). Only this sort of diffuse balancing,Fairchild and the FAA argue, can accountfor all of the situations in which nonpartypreclusion is appropriate.

We reject this argument for three rea-sons. First, our decisions emphasize thefundamental nature of the general rulethat a litigant is not bound by a judgmentto which she was not a party. See, e.g.,Richards, 517 U.S., at 798–799, 116 S.Ct.1761; Martin, 490 U.S., at 761–762, 109S.Ct. 2180. Accordingly, we have endeav-ored to delineate discrete exceptions thatapply in ‘‘limited circumstances.’’ Id., at762, n. 2, 109 S.Ct. 2180. Respondents’amorphous balancing test is at odds withthe constrained approach to nonparty pre-clusion our decisions advance.

Resisting this reading of our precedents,respondents call up three decisions theyview as supportive of the approach theyespouse. Fairchild quotes our statementin Coryell v. Phipps, 317 U.S. 406, 411, 63S.Ct. 291, 87 L.Ed. 363 (1943), that privity‘‘turns on the facts of particular cases.’’See Brief for Respondent Fairchild 20.That observation, however, scarcely im-plies that privity is governed by a diffusebalancing test.9 Fairchild also cites Blon-

der–Tongue Laboratories, Inc. v. Univer-sity of Ill. Foundation, 402 U.S. 313, 334,91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), whichstated that estoppel questions turn on ‘‘thetrial courts’ sense of justice and equity.’’See Brief for Respondent Fairchild 20.This passing statement, however, was notmade with nonparty preclusion in mind; itappeared in a discussion recognizing dis-trict courts’ discretion to limit the use ofissue preclusion against persons who wereparties to a judgment. See Blonder–Tongue, 402 U.S., at 334, 91 S.Ct. 1434.

The FAA relies on United States v. DesMoines Valley R. Co., 84 F. 40 (C.A.81897), an opinion we quoted with approvalin Schendel, 270 U.S., at 619–620, 46 S.Ct.420. Des Moines Valley was a quiet titleaction in which the named plaintiff was theUnited States. The Government, however,had ‘‘no interest in the land’’ and had‘‘simply permitted [the landowner] to useits name as the nominal plaintiff.’’ 84 F.,at 42. The suit was therefore barred, theappeals court held, by an earlier judgmentagainst the landowner. As the court ex-plained: ‘‘[W]here the government lendsits name as a plaintiff TTT to enable oneprivate person to maintain a suit againstanother,’’ the government is ‘‘subject tothe same defenses which exist TTT againstthe real party in interest.’’ Id., at 43. DesMoines Valley, the FAA contended at oralargument, demonstrates that it is some-times appropriate to bind a nonparty incircumstances that do not fit within any ofthe established grounds for nonparty pre-clusion. See Tr. of Oral Arg. 31–33.Properly understood, however, DesMoines Valley is simply an application ofthe fifth basis for nonparty preclusion de-scribed above: A party may not use a

9. Moreover, Coryell interpreted the term‘‘privity’’ not in the context of res judicata,but as used in a statute governing shipownerliability. See Coryell v. Phipps, 317 U.S. 406,407–408, and n. 1, 63 S.Ct. 291, 87 L.Ed. 363

(1943). And we made the statement Fairchildquotes in explaining why it was appropriateto defer to the findings of the lower courts,not as a comment on the substantive rules ofprivity. See id., at 411, 63 S.Ct. 291.



representative or agent to relitigate anadverse judgment. See supra, at 2172 –2173.10 We thus find no support in ourprecedents for the lax approach to nonpar-ty preclusion advocated by respondents.

Our second reason for rejecting a broaddoctrine of virtual representation rests onthe limitations attending nonparty preclu-sion based on adequate representation. Aparty’s representation of a nonparty is‘‘adequate’’ for preclusion purposes only if,at a minimum: (1) the interests of thenonparty and her representative arealigned, see Hansberry, 311 U.S., at 43, 61S.Ct. 115; and (2) either the party under-stood herself to be acting in a representa-tive capacity or the original court took careto protect the interests of the nonparty,see Richards, 517 U.S., at 801–802, 116S.Ct. 1761; supra, at 2173 – 2174. In ad-dition, adequate representation sometimesrequires (3) notice of the original suit tothe persons alleged to have been repre-sented, see Richards, 517 U.S., at 801, 116S.Ct. 1761.11 In the class-action context,these limitations are implemented by theprocedural safeguards contained in Feder-al Rule of Civil Procedure 23.

An expansive doctrine of virtual repre-sentation, however, would ‘‘recogniz[e], ineffect, a common-law kind of class action.’’

Tice, 162 F.3d, at 972 (internal quotationmarks omitted). That is, virtual represen-tation would authorize preclusion based onidentity of interests and some kind of rela-tionship between parties and nonparties,shorn of the procedural protections pre-scribed in Hansberry, Richards, and Rule23. These protections, grounded in dueprocess, could be circumvented were we toapprove a virtual representation doctrinethat allowed courts to ‘‘create de factoclass actions at will.’’ Tice, 162 F.3d, at973.

Third, a diffuse balancing approach tononparty preclusion would likely createmore headaches than it relieves. Mostobviously, it could significantly complicatethe task of district courts faced in the firstinstance with preclusion questions. An all-things-considered balancing approachmight spark wide-ranging, time-consum-ing, and expensive discovery tracking fac-tors potentially relevant under seven- orfive-prong tests. And after the relevantfacts are established, district judges wouldbe called upon to evaluate them under astandard that provides no firm guidance.See Tyus, 93 F.3d, at 455 (conceding that‘‘there is no clear test for determining theapplicability of’’ the virtual representationdoctrine announced in that case). Preclu-sion doctrine, it should be recalled, is in-

10. The FAA urges that there was no agencyrelationship between the landowner and theUnited States because the landowner did notcontrol the U.S. Attorney’s conduct of thesuit. See Tr. of Oral Arg. 33. That point isdebatable. See United States v. Des MoinesValley R. Co., 84 F. 40, 42–43 (C.A.8 1897)(the United States was only a ‘‘nominal plain-tiff’’; it merely ‘‘len[t]’’ its name to the land-owner). But even if the FAA is correct aboutagency, the United States plainly litigated asthe landowner’s designated representative.See id., at 42 (‘‘The bill does not attempt toconceal the fact that TTT its real purpose is tochampion the cause of [the landowner] TTT.’’).See also Chicago, R.I. & P.R. Co. v. Schendel,270 U.S. 611, 618–620, 46 S.Ct. 420, 70 L.Ed.757 (1926) (classifying Des Moines Valley with

other cases of preclusion based on representa-tion).

11. Richards suggested that notice is requiredin some representative suits, e.g., class actionsseeking monetary relief. See 517 U.S., at801, 116 S.Ct. 1761 (citing Hansberry v. Lee,311 U.S. 32, 40, 61 S.Ct. 115, 85 L.Ed. 22(1940), Eisen v. Carlisle & Jacquelin, 417 U.S.156, 177, 94 S.Ct. 2140, 40 L.Ed.2d 732(1974), and Mullane v. Central Hanover Bank& Trust Co., 339 U.S. 306, 319, 70 S.Ct. 652,94 L.Ed. 865 (1950)). But we assumed with-out deciding that a lack of notice might beovercome in some circumstances. See Rich-ards, 517 U.S., at 801, 116 S.Ct. 1761.



tended to reduce the burden of litigationon courts and parties. Cf. Montana, 440U.S., at 153–154, 99 S.Ct. 970. ‘‘In thisarea of the law,’’ we agree, ‘‘ ‘crisp ruleswith sharp corners’ are preferable to around-about doctrine of opaque stan-dards.’’ Bittinger v. Tecumseh ProductsCo., 123 F.3d 877, 881 (C.A.6 1997).

C

[10] Finally, relying on the Eighth Cir-cuit’s decision in Tyus, 93 F.3d, at 456, theFAA maintains that nonparty preclusionshould apply more broadly in ‘‘public-law’’litigation than in ‘‘private-law’’ controver-sies. To support this position, the FAAoffers two arguments. First, the FAAurges, our decision in Richards acknowl-edges that, in certain cases, the plaintiffhas a reduced interest in controlling thelitigation ‘‘because of the public nature ofthe right at issue.’’ Brief for RespondentFAA 28. When a taxpayer challenges ‘‘analleged misuse of public funds’’ or ‘‘otherpublic action,’’ we observed in Richards,the suit ‘‘has only an indirect impact on[the plaintiff’s] interests.’’ 517 U.S., at803, 116 S.Ct. 1761. In actions of thischaracter, the Court said, ‘‘we may assumethat the States have wide latitude to estab-lish procedures TTT to limit the number ofjudicial proceedings that may be enter-tained.’’ Ibid.

Taylor’s FOIA action falls within thecategory described in Richards, the FAAcontends, because ‘‘the duty to discloseunder FOIA is owed to the public general-ly.’’ See Brief for Respondent FAA 34.The opening sentence of FOIA, it is true,states that agencies ‘‘shall make [informa-tion] available to the public.’’ 5 U.S.C.§ 552(a) (2006 ed.). Equally true, we haveseveral times said that FOIA vindicates a‘‘public’’ interest. E.g., National Archives

and Records Admin. v. Favish, 541 U.S.157, 172, 124 S.Ct. 1570, 158 L.Ed.2d 319(2004). The Act, however, instructs agen-cies receiving FOIA requests to make theinformation available not to the public atlarge, but rather to the ‘‘person’’ makingthe request. § 552(a)(3)(A). See also§ 552(a)(3)(B) (‘‘In making any recordavailable to a person under this paragraph,an agency shall provide the record in any[readily reproducible] form or format re-quested by the person TTT.’’ (emphasisadded)); Brief for National Security Ar-chive et al. as Amici Curiae 10 (‘‘Govern-ment agencies do not systematically makereleased records available to the generalpublic.’’). Thus, in contrast to the public-law litigation contemplated in Richards, asuccessful FOIA action results in a grantof relief to the individual plaintiff, not adecree benefiting the public at large.

Furthermore, we said in Richards onlythat, for the type of public-law claimsthere envisioned, States are free to adoptprocedures limiting repetitive litigation.See 517 U.S., at 803, 116 S.Ct. 1761. Inthis regard, we referred to instances inwhich the first judgment foreclosed succes-sive litigation by other plaintiffs because,‘‘under state law, [the suit] could bebrought only on behalf of the public atlarge.’’ Id., at 804, 116 S.Ct. 1761.12

Richards spoke of state legislation, but itappears equally evident that Congress, inproviding for actions vindicating a publicinterest, may ‘‘limit the number of judicialproceedings that may be entertained.’’Id., at 803, 116 S.Ct. 1761. It hardlyfollows, however, that this Court shouldproscribe or confine successive FOIA suitsby different requesters. Indeed, Con-gress’ provision for FOIA suits with nostatutory constraint on successive actionscounsels against judicial imposition of con-

12. Nonparty preclusion in such cases ranksunder the sixth exception described above:

special statutory schemes that expressly limitsubsequent suits. See supra, at 2173.



straints through extraordinary applicationof the common law of preclusion.

The FAA next argues that ‘‘the threat ofvexatious litigation is heightened’’ in pub-lic-law cases because ‘‘the number of plain-tiffs with standing is potentially limitless.’’Brief for Respondent FAA 28 (internalquotation marks omitted). FOIA does al-low ‘‘any person’’ whose request is deniedto resort to federal court for review of theagency’s determination. 5 U.S.C.§ 552(a)(3)(A), (4)(B) (2006 ed.). Thus it istheoretically possible that several personscould coordinate to mount a series of re-petitive lawsuits.

But we are not convinced that this riskjustifies departure from the usual rulesgoverning nonparty preclusion. First,stare decisis will allow courts swiftly todispose of repetitive suits brought in thesame circuit. Second, even when staredecisis is not dispositive, ‘‘the human ten-dency not to waste money will deter thebringing of suits based on claims or issuesthat have already been adversely deter-mined against others.’’ Shapiro 97. Thisintuition seems to be borne out by experi-ence: The FAA has not called our atten-tion to any instances of abusive FOIA suitsin the Circuits that reject the virtual-rep-resentation theory respondents advocatehere.

IV

[11] For the foregoing reasons, we dis-approve the theory of virtual representa-tion on which the decision below rested.The preclusive effects of a judgment in afederal-question case decided by a federalcourt should instead be determined accord-ing to the established grounds for nonpar-ty preclusion described in this opinion.See Part II–B, supra.

Although references to ‘‘virtual repre-sentation’’ have proliferated in the lowercourts, our decision is unlikely to occasion

any great shift in actual practice. Manyopinions use the term ‘‘virtual representa-tion’’ in reaching results at least arguablydefensible on established grounds. See18A Wright & Miller § 4457, pp. 535–539,and n. 38 (collecting cases). In thesecases, dropping the ‘‘virtual representa-tion’’ label would lead to clearer analysiswith little, if any, change in outcomes. SeeTice, 162 F.3d, at 971. (‘‘[T]he term ‘virtu-al representation’ has cast more shadowsthan light on the problem [of nonpartypreclusion].’’).

In some cases, however, lower courtshave relied on virtual representation toextend nonparty preclusion beyond the lat-ter doctrine’s proper bounds. We nowturn back to Taylor’s action to determinewhether his suit is such a case, or whetherthe result reached by the courts below canbe justified on one of the recognizedgrounds for nonparty preclusion.

A

[12] It is uncontested that four of thesix grounds for nonparty preclusion haveno application here: There is no indicationthat Taylor agreed to be bound by Her-rick’s litigation, that Taylor and Herrickhave any legal relationship, that Taylorexercised any control over Herrick’s suit,or that this suit implicates any specialstatutory scheme limiting relitigation.Neither the FAA nor Fairchild contendsotherwise.

It is equally clear that preclusion cannotbe justified on the theory that Taylor wasadequately represented in Herrick’s suit.Nothing in the record indicates that Her-rick understood himself to be suing onTaylor’s behalf, that Taylor even knew ofHerrick’s suit, or that the Wyoming Dis-trict Court took special care to protectTaylor’s interests. Under our pathmark-ing precedent, therefore, Herrick’s repre-



sentation was not ‘‘adequate.’’ See Rich-ards, 517 U.S., at 801–802, 116 S.Ct. 1761.

That leaves only the fifth category: pre-clusion because a nonparty to an earlierlitigation has brought suit as a representa-tive or agent of a party who is bound bythe prior adjudication. Taylor is not Her-rick’s legal representative and he has notpurported to sue in a representative capac-ity. He concedes, however, that preclu-sion would be appropriate if respondentscould demonstrate that he is acting asHerrick’s ‘‘undisclosed agen[t].’’ Brief forPetitioner 23, n. 4. See also id., at 24, n. 5.

Respondents argue here, as they didbelow, that Taylor’s suit is a collusive at-tempt to relitigate Herrick’s action. SeeBrief for Respondent Fairchild 32, and n.18; Brief for Respondent FAA 18–19, 33,39. The D.C. Circuit considered a similarquestion in addressing the ‘‘tactical maneu-vering’’ prong of its virtual representationtest. See 490 F.3d, at 976. The Court ofAppeals did not, however, treat the issueas one of agency, and it expressly declinedto reach any definitive conclusions due to‘‘the ambiguity of the facts.’’ Ibid. Wetherefore remand to give the courts belowan opportunity to determine whether Tay-lor, in pursuing the instant FOIA suit, isacting as Herrick’s agent. Taylor con-cedes that such a remand is appropriate.See Tr. of Oral Arg. 56–57.

We have never defined the showing re-quired to establish that a nonparty to aprior adjudication has become a litigatingagent for a party to the earlier case. Be-

cause the issue has not been briefed inany detail, we do not discuss the matterelaboratively here. We note, however,that courts should be cautious about find-ing preclusion on this basis. A mere whiffof ‘‘tactical maneuvering’’ will not suffice;instead, principles of agency law are sug-gestive. They indicate that preclusion isappropriate only if the putative agent’sconduct of the suit is subject to the controlof the party who is bound by the prior ad-judication. See 1 Restatement (Second) ofAgency § 14, p. 60 (1957) (‘‘A principalhas the right to control the conduct of theagent with respect to matters entrusted tohim.’’).13

B

[13] On remand, Fairchild suggests,Taylor should bear the burden of provinghe is not acting as Herrick’s agent. Whena defendant points to evidence establishinga close relationship between successive liti-gants, Fairchild maintains, ‘‘the burden[should] shif[t] to the second litigant tosubmit evidence refuting the charge’’ ofagency. Brief for Respondent Fairchild27–28. Fairchild justifies this proposedburden-shift on the ground that ‘‘it is un-likely an opposing party will have access todirect evidence of collusion.’’ Id., at 28, n.14.

We reject Fairchild’s suggestion. Claimpreclusion, like issue preclusion, is an affir-mative defense. See Fed. Rule Civ. Proc.8(c); Blonder–Tongue, 402 U.S., at 350, 91S.Ct. 1434. Ordinarily, it is incumbent on

13. Our decision in Montana v. United States,440 U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210(1979), also suggests a ‘‘control’’ test foragency. In that case, we held that the UnitedStates was barred from bringing a suit be-cause it had controlled a prior unsuccessfulaction filed by a federal contractor. See id.,at 155, 99 S.Ct. 970. We see no reason whypreclusion based on a lesser showing wouldhave been appropriate if the order of the two

actions had been switched—that is, if theUnited States had brought the first suit itself,and then sought to relitigate the same claimthrough the contractor. See Schendel, 270U.S., at 618, 46 S.Ct. 420 (‘‘[I]f, in legalcontemplation, there is identity of parties’’when two suits are brought in one order,‘‘there must be like identity’’ when the orderis reversed.).



the defendant to plead and prove such adefense, see Jones v. Bock, 549 U.S. 199,204, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007),and we have never recognized claim pre-clusion as an exception to that generalrule, see 18 Wright & Miller § 4405, p. 83(‘‘[A] party asserting preclusion must car-ry the burden of establishing all necessaryelements.’’). We acknowledge that directevidence justifying nonparty preclusion isoften in the hands of plaintiffs rather thandefendants. See, e.g., Montana, 440 U.S.,at 155, 99 S.Ct. 970 (listing evidence ofcontrol over a prior suit). But ‘‘[v]eryoften one must plead and prove matters asto which his adversary has superior accessto the proof.’’ 2 K. Broun, McCormick onEvidence § 337, p. 475 (6th ed.2006). Inthese situations, targeted interrogatoriesor deposition questions can reduce the in-formation disparity. We see no greatercause here than in other matters of affir-mative defense to disturb the traditionalallocation of the proof burden.

* * *

For the reasons stated, the judgment ofthe United States Court of Appeals for theDistrict of Columbia Circuit is vacated,and the case is remanded for further pro-ceedings consistent with this opinion.

It is so ordered.

,

REPUBLIC OF The PHILIPPINES,et al., Petitioners,

v.

Jerry S. PIMENTEL, Temporary Ad-ministrator of the Estate of Mari-

ano J. Pimentel, Deceased, et al.No. 06–1204.

Argued March 17, 2008.

Decided June 12, 2008.

Background: Holder of assets trans-ferred to Panamanian company by then-President of Republic of the Philippinesbrought interpleader action, seeking to re-solve conflicting claims to assets. Follow-ing remand, 309 F.3d 1143, the UnitedStates District Court for the District ofHawaiji, Manuel L. Real, J., awardedfunds to class of human rights victims.Appeal was taken. The United StatesCourt of Appeals for the Ninth Circuit, 464F.3d 885, affirmed. Certiorari was granted.

Holding: The United States SupremeCourt, Justice Kennedy, held that actioncould not proceed without Republic of thePhilippines and good-government commis-sion created by the Republic as parties.

Reversed and remanded.

Justice Stevens filed opinion concurring inpart and dissenting in part.

Justice Souter filed opinion concurring inpart and dissenting in part.

1. Federal Civil Procedure O1747, 1824A court with proper jurisdiction may

consider sua sponte the absence of a re-quired person and dismiss for failure tojoin. Fed.Rules Civ.Proc.Rule 19(b), 28U.S.C.A.

2. Federal Civil Procedure O1747Decision whether to dismiss case for

nonjoinder of a person who should bejoined if feasible must be based on factors


Attachment B


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date: January 24, 2011

to: Bruce S. Kaplan., Esq. j'ax#: 212-833-1250/973-877-6452

Rc:

from:

Friedman Kaplan Seiler & Adelman LLP

In re Chevron Corporation (Internal Reference No, 169381)

Svetlana Shatnenko Paralegal II 408-349-1099

pages: _7_ (including coversheet)

COMMENTS: Originals will follow via U.S. Mail. Please contact me if you have any questions. Thank you.

J_ 1m r

701 First Avenue Sunnyvale, CA 94089

Compliance Fax: 408-349-7941 Phone: 408-349-3300

www.yahoo.com

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01/2412011 15:54 FAX 4083497945

Via Fllcsimile and U.S. Mail 212-833-1250

Bruce S. Kaplan, Esq. Friedman Kaplan Seiler & Adelman LLP 1633 Broadway, 46th Floor New York, NY 100 I 9-6708

YAH a a

January 24, 2011

Re: In re Chevmn Corporation United State&' District COlirt for the Northern District or Cali{omia (pending in SOllthem District orNe"" York), Case # lO"MC-0002 (Internal Reference No.169381)

Dear Mr. Kaplan:

141 002/007

Pursuant to the Subpoena issued in the above-referenced matter on January 3, 2011, Yahoo! Inc. ("Yahoo!") conducted a diligent search for infommtion accessible on Yahoo! ' s systems relating to the user specified in the Subpoena. Our response is made in accordance with state and federal law, including the Stored Communications Act, and docs not include any contents of communication or otherwise protected information. See 18 U.S.C. § 2701 elseq.

Enclosed is the following information regarding the user account specified in the Subpoena, including any previously existing infonnation: 1) the user profile, as produced by the Yahoo! Account Management Tool; and 2) the dates, times and Internet Protocol ("IF") addresses [or logins. A declaration authenticating these records also is enclosed.

To the extent any document provided herein contains infol1l1ation that exceeds the scope of your request, is protected from disclosure, or is otherwise not subject to production, we have redacted such information or removed such data fields. Yahoo! may not require or verifY user information because it offers many of its user services for free.

Yahoo! requests reimbursement in the amount of$75.00 for the reasonable costs incurred in processing your request, including searching for records, reproduction and delivery costs. Please forward payment to Yahoo! Custodian of Records, 701 First Avenue, Sunnyvale, CA 94089 Please write the Intel11aJ Reference number (listed above) on your check. The federal tax ID number for Yahoo! is .

By this response, Yahoo! does not waive any objection to further proceedings in this matter.

Please contact e if you have any questions.

Sincerely,

Enclosures

701 first avenue .5unnyvale. Co 94089 phone 408 349 3300 fax 408 349 3301

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01/2412011 15:55 FAX 4083497945 YAH 0 0 I

141 003/007

3

4

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT Q}' CALIFORNIA

Case No. IO-MC-0002

5 In re Chevron Corporation

6

! )

~

DECLARA nON OF SVETLANASHATNENKO

7

8

)

------------------------j

(pending in Southern District of New York)

9 1, Svetlana Shatnenko, declare:

10

II

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

1.

2.

I am a Custodian of Records for Yahoo! Inc. ("Yahoo!"), located in SU1U1yvale,

California. I am authorized to submit this declaration on behalf of Yahoo!. I make

this declaration pursuant to the Federal Rilles of Evidence Rule 902(11) and in

response to a Subpoena dated January 3, 2011. I have personal knowledge of the

following facts, except as noted, and could testify competently thereto if called as

a witness.

Attached hereto are true and correct copies of 3 pages of the following data

pertaining to the Yahoo! ID identified in the Subpoena: 1) the user profile, as

produced by the Yahoo! Account Management Tool; and 2) the dates, times and

Internet Protocol ("IP") addresses for logins. Y 81100!' s servers record this data

automatically at the time, or reasonably soon after, it is entered or transmitted, and

this data is kept in the course of this regularly conducted activity and was made by

regularly conducted activity as a regular practice. Yahoo! may not require or

verify user information because it offers many of its user services for free.

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2

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o.

3. Pursuant to the Federal Stored Communications Act, 18 U.S.C. §§2701, et seq., we

have redacted information, including removing certain data fields, that exceeds the

scope of this request, is protected from disclosure or is otherwise not subject to

producti on.

I declare under penalty of perjury under the laws of the State of Ca ifomia that the

foregoing is true and correct.

DATED:

Svetlana Shatne 0

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01/24/2011 15:55 FAX 4083497945 YAH a a

YAHOO! ACCOUNT MANAGEMENT TOOL

Login Name:

GUID:

Yahoo Mail Name:

Registration IP address:

Account Created (reg):

Other Identities:

Full Name

Addressl:

Address2:

City:

State, territory or province:

Country:

ZiplPostal Code:

Phone:

Time Zone:

Birthday:

Gender:

Occupation:

Business Name:

Business Address:

Business City:

Business State:

[email protected]

5H3QSY 4HBFIX4NV5D75J7EQNM4

[email protected]

67.243.11.39

SUD Jan 03 20:38:14 2010 GMT

[email protected] (Yahoo! Mail)

Mr Not Applicable

United States

94583

Male

Business Country: us

Business Zip:

Business Phone:

Business Email:

Additional IP Addresses: Sun Jan 03 20:38:14 2010 GMT 67.243.11.39

Account Status: Active

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documents2010@ymaiLcom Search for Date Range Total Results

07 -Jan-201 0 00:00:00 I 05·Jan-2011 23:59:59 18

Yahoo ID IP Address [email protected] 67243.11.39 documents2010@ymaiLcom 69.204.232.104 documents2010@ymaiLcom 69204.232.104 [email protected] 69.204.232.104 [email protected] 67.243.11.39 documents2010@ymaiLcom 67243.11.39 [email protected] 69204.232.104 documents2010@ymaiLcom 67.243.11.39 documents2010@ymaiLcom 67.243.11.39 [email protected] 69.204.232.104 [email protected] 69204.232.104 documents2010@ymaiLcom 67.243.11.39 [email protected] 69204.232.104 [email protected] 69.204.232.104 [email protected] 69.204.232.104 [email protected] 69.204.232.104 [email protected] 69.204.232.104 [email protected] 24.129.41.67

Login Time Tue 15:41:31 (GMT) 27-Apr-2010 Mon 19:23: 1 0 (GMT) 15-Mar-201 0 Thu 18:11:37 (GMT) 11-Mar-2010 Mon 15:24:40 (GMT) 08-Mar-2010 Mon 00:25:05 (GMT) 08-Mar-2010 Wed 22: 13:40 (GMT) 03-Mar-201 0 Thu 18:01 :04 (GMT) 04-Feb-2010 Man 12:48:09 (GMT) 25-Jan-2010 Fri 1538;23 (GMT) 22-Jan-201 0 Thu 21:54:46 (GMT) 21-Jan-2010 Thu 19:17:30 (GMT) 21-Jan-2010 Wed 05:31:13 (GMT) 20-Jan-2010 Sat 21 :09:29 (GMT) 16-Jan-2010 Wed 20:12:13 (GMT) 13-Jan-2010 Wed 18:30:33 (GMT) 13-Jan-201 0 Wed 18:20:55 (GMT) 13-Jan-2010 Mon 23:41 :20 (GMT) 11-Jan-2010 Sat 14:03:28 (GMT) 09-Jan-2010

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Search for Date Range Total Results

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Yahoo ID IP Address documents201 [email protected] documents201 [email protected] 69204.232.104 dOGuments201 [email protected]. 104 documents201 [email protected] documents201 [email protected] 67.243. 11 .39 documents201 [email protected] .39 documents201 [email protected]. 1 04 documenls201 [email protected] documents201 [email protected] .39 documenls201 [email protected]. 1 04 documents201 [email protected]. 1 04 documenls201 [email protected]. 11 .39 documents201 [email protected]. 1 04 documents201 [email protected]. 1 04 documents201 [email protected]. 1 04 dOGuments201 [email protected] documents201 [email protected] [email protected] documents201 [email protected] documents201 [email protected]. 11 .39 documents201 [email protected]. 1 04 documents201 [email protected] 67.243.11.39

Login Time Tue 1541:31 (GMT) 27-Apr-2010 Mon 19:23:10 (GMT) 15-Mar-2010 Thu 18:11:37 (GMT) 11-Mar-2010 Mon 15:2440 (GMT) OB·Mar-201 0 Mon 00:25:05 (GMT) 08-Mar-2010 Wed 22: 13:40 (GMT) 03-Mar-2010 Thu 1801:04 (GMT) 04-Feb-201 0 Man 12:48:09 (GMT) 25-Jan-2010 Fri 15:38:23 (GMT) 22-Jan-201 0 Thu 21:54:46 (GMT) 21-Jan-2010 Thu 19:17:30 (GMT) 21-Jan~2010 Wed 05:31:13 (GMT) 20~Jan-2010 Sat 21:09:29 (GMT) 16-Jan-2010 Wed 20:12:13 (GMT) 13-Jan-2010 Wed 18:30:33 (GMT) 13-Jan-201 0 Wed 18:20:55 (GMT) 13-Jan-201 0 Mon 23:41 :20 (GMT) 11-Jan-201 0 Sat 14:03:28 (GMT) 09·Jan-2010 Wed 20:05:57 (GMT) 06-Jan-201O Wed 18:46:43 (GMT) 06~Jan-2010 Tue 14:25:47 (GMT) 05-Jan-2010 Sun 23:48:18 (GMT) 03-Jan-2010

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Documents

THEODORE J. BOUTROUS JR., SBN 132099 GIBSON, DUNN ... · 1/16/2013 · 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 notice of supplemental authority