United States Court of Appeals for the SECOND CIRCUIT

Case: 10-4341 Document: 154 Page: 1 11/22/2010 151840 134 10-4341-cv(L), 10-4405-cv(CON)

IN THE United States Court of Appeals FOR THE SECOND CIRCUIT

LAGO AGRIO PLAINTIFFS and STEVEN R. DONZIGER, Respondents-Appellants, —against—

CHEVRON CORPORATION, RICARDO REIS VEIGA, RODRIGO PEREZ PALLARES, Petitioners-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF AND SPECIAL APPENDIX FOR RESPONDENT-APPELLANT LAGO AGRIO PLAINTIFFS

ILANN M. MAAZEL JONATHAN S. ABADY O. ANDREW WILSON ADAM R. PULVER EMERY CELLI BRINCKERHOFF & ABADY LLP 75 Rockefeller Plaza, 20th Floor New York, New York 10019 (212) 763-5000 Attorneys for the Lago Agrio Plaintiffs Case: 10-4341 Document: 154 Page: 2 11/22/2010 151840 134

TABLE OF CONTENTS

PRELIMINARY STATEMENT ...... 1

JURISDICTIONAL STATEMENT...... 2

STATEMENT OF THE ISSUES...... 3

STATEMENT OF THE CASE...... 3

A. Chevron’s Destruction of the Amazonian Rainforest...... 3

(i) Chevron’s Audits and Internal Memos Reveal Massive Contamination4

(ii) The Outtakes Reveal Massive Contamination ...... 5

(iii) Chevron’s Recent Deposition of Bill Powers Reveals Massive Contamination ...... 6

B. Plaintiffs Sue Chevron in New York ...... 9

C. The Release, the Sham Remediation, and the Criminal Prosecution ...... 10

D. Chevron’s Scorched Earth Policy in Lago Agrio: “We can’t let little countries screw around with big companies like this” ...... 11

E. Chevron’s Many Ex Parte Contacts with the Lago Court...... 13

F. Chevron’s Word-for-Word Contributions to the Report of a Neutral, Independent Court Expert...... 14

G. Chevron’s Repeated, but Failed, Attempts to Undermine the Rule of Law in Ecuador ...... 15

(i) Chevron’s “Dirty Tricks”...... 15

(ii) Chevron’s Efforts to Pressure the President to Pressure the Lago Court to Rule in Chevron’s Favor ...... 16

(iii) Chevron’s Effort to Pressure Ecuador with Trade Sanctions ...... 17

(iv) Chevron’s Effort to Have Three Arbitrators Order the ROE to Order the Lago Judge to Rule in Chevron’s Favor...... 17

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H. Chevron’s War of Attrition: “Until Hell Freezes Over”...... 18

I. This Section 1782 Application...... 20

J. The Massively Overbroad Subpoenas ...... 22

K. Procedural History ...... 24

(i) The District Court Grants Petitions Demanding 600 Hours of Outtakes From the Documentary Crude...... 24

(ii) The District Court Rules for Chevron, Ex Parte...... 25

(iii) The District Court Sua Sponte Questions Plaintiffs’ Standing, Notwithstanding Plain Second Circuit Precedent to the Contrary...... 25

(iv) The District Court Grants Chevron’s Massive, Untimely Motion to Supplement, then Fails to Rule on Plaintiffs’ Modest Motion to Correct a False Translation by Chevron in the Petition...... 26

(v) At Oral Argument, the District Court Gives Its Unsupported View of the Merits of the Underlying Lago Litigation...... 27

(vi) The District Court Denies the Motions to Quash in Their Entirety...... 28

(vii) The District Court Tells Donziger to Pay For His Lawyers, For Subpoena Review, and Even (in part) For a Cleary Gottlieb Partner to Serve as Special Master...... 29

(viii) After the Appeal, the District Court Issues a Second Opinion Explaining the First ...... 29

SUMMARY OF THE ARGUMENT ...... 35

ARGUMENT ...... 36

THE GRANTING OF THE CHEVRON PARTIES’ SECTION 1782 APPLICATION SHOULD BE REVERSED ...... 36

I. Standard of Review...... 36

II. Legal Framework...... 36

III. The Intel Factors Weigh Heavily Against the Chevron Parties ...... 37

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A. The Proposed Discovery Is Highly Intrusive and Burdensome ...... 37

B. The Nature of the Foreign Tribunal, the Character of the Proceedings Underway Abroad, and the Receptivity of the Foreign Court Weigh Heavily Against the Petition...... 41

C. The Section 1782 Request Conceals an Attempt to Circumvent Foreign Proof-Gathering Restrictions and Other Policies of the United States...... 44

IV. Chevron Cannot Use the BIT Proceeding to Support This Petition...... 48

A. A BIT Arbitration Is Not a “Foreign Tribunal”...... 48

B. The Donziger Subpoenas “In Aid of” the BIT Arbitration Conceal an Attempt to Undermine Foreign Proof Gathering...... 52

C. The Donziger Subpoenas Are Premature: the Arbitration Panel Has Not Yet Determined Its Jurisdiction and Is Subject to a Stay Application ...... 55

V. Fed. R. Civ. P. 30(a)(2)(A)(i) Prohibits Applicants From Taking Mr. Donziger’s Deposition...... 56

CONCLUSION...... 59

iii

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TABLE OF AUTHORITIES

Page(s) CASES

Application of Sarrio, S.A., 119 F.3d 143, 148 (2d Cir. 1997) ...... 26

Aventis Pharma v. Wyeth, 2009 WL 3754191 (S.D.N.Y. Nov. 9, 2009)...... 43, 46, 55

Bayer AG v. Betachem, Inc., 173 F.3d 188 (3d Cir. 1999)...... 39, 58

Chevron Corporation v. Mark Quarles, No. 3:10-cv-00686, Dkt. 108 ...... 20

Edelman v. Tattinger, 295 F.3d 171 (2d Cir. 2001)...... 40

EI Paso Corp. v. La Comision Ejecutiva, Hidroelectrica Del Rio Lempa, No. 08-20771, 2009 WL 2407189 (5th Cir. Aug. 6, 2009) ...... 49

In La Comision Ejecutiva, Hidroelectrica Del Rio Lempa v. EI Paso Corp., 617 F. Supp. 2d 481,487 (S.D. Tex. 2008) ...... 52

In re Apotex, Inc., 2009 WL 618243 (S.D.N.Y. Mar. 9, 2009) ...... 37, 38, 41

In re Application of Babcock Borsig AG, 583 F. Supp. 2d 233 (D. Mass. 2008) ...... 44

In Re Application of Blue Oil Trading Ltd., No. 3:09-MC-152, 2009 U.S. Dist. LEXIS 97224 (W.D.N.C. Oct. 5, 2009)...... 39

In re Application of Caratube Int’l Oil Co., LLP, No. 10-0285, 2010 WL 3155822 (D.D.C. Aug. 11, 2010) ...... 50, 51

In re Application of Microsoft Corp., No. 06-10061-MLW, 2006 WL 1344091 (D. Mass. Apr. 17, 2006)...... 42

In Re Application of OOO Promnefstroy, 2009 WL 3335608 (S.D.N.Y. Oct. 15, 2009)...... 45

In re Microsoft Corp., 428 F. Supp. 2d 188 (S.D.N.Y. 2006)...... passim

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In re Minatec Finance S.A.R.L., No. 1:08-CV-269, 2008 U.S. Dist. LEXIS 63802 (N.D.N.Y. Aug. 18, 2008) ...... 44

In re Opera-dora DB Mexico, S .A. DEC, No. 6:09-CV 383-ORL-22GJK, 2009 WL 2423138 (M.D. Fla. Aug. 4, 2009) ...... 52

In re Subpoena Issued to Dennis Friedman, 350 F.3d 65 (2d Cir. 2003)...... passim

Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004)...... passim

Kulzer v. Biomet Inc., No. 3:09-MC-275, 2009 U.S. Dist. LEXIS 101283 (N.D. Ind. Oct. 29, 2009)...... 39

NBC v. Bear Stearns & Co., 165 F.3d 184 (2d Cir. 1999)...... 36, 48, 51

New Hampshire v. Maine, 532 U.S. 742 (2001)...... 47

Republic of Ecuador v. Chevron Corporation, et al., 10-1020 ...... 18, 33

Republic of Kazakhstan v. Beidermann, 168 F.3d 880 (5th Cir. 1999) (noting international arbitration is intended as a “speedy, economical, and effective means of dispute resolution” and § 1782 discovery would complicate and undermine arbitration process) ...... 49, 51, 54

Schmitz v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79 (2d Cir. 2004)...... 36, 42, 43

Smoothline Ltd. v. N. Am. Foreign Trading Corp., No. 00-CIV-2298, 2000 U.S. Dist. LEXIS 10225 (S.D.N.Y. July 21, 2000)...... 39

Weber v. Finker, 554 F.3d 1379 (11th Cir. 2009) ...... 58

STATUTES

28 U.S.C. § 1291...... 2

28 U.S.C. § 1331...... 2

28 U.S.C. § 1782...... passim

28 U.S.C. § 1782(a) ...... passim

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RULES

Fed. R. Civ. P. 30...... 56, 57, 58

Fed. R. Civ. P. 31...... 57

OTHER AUTHORITIES

E.E. Daschbach, Where There’s a Will, There's a Way: The Cause for a Cure and Remedial and Remedial Prescriptions for Forum Non Conveniens as Applied in Latin American Plaintiffs’ Actions Against U.S. Multinationals L. & Bus. Rev. Am. 11, 32 (2007)...... 44

James H. Carter, Existing Rules and Procedures Int’l L. 5, 5 (1979) ...... 45

O. Susler, The Jurisdiction of the Arbitral Tribunal, 6 Macquarie J. Bus. L. 119, 125 (2009)...... 55, 56

Prácticas y Reglamentos Internacionales Para el Uso y la Remediación de Piscinas de Campos Petroleros. A-168, Vol.4 ...... 15

S. Rep. No. 88-1580, reprinted in 1964 U.S.C.C.A.N...... 40

Stephen N. Subrin, Discovery in Global Perspective: Are We Nuts?, 52 DePaul L. Rev. 299, 302 (2002)...... 44

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Plaintiffs in a related civil action against the Chevron Corporation pending in Lago Agrio, Ecuador (the “Lago Agrio plaintiffs” or “plaintiffs”), submit this memorandum of law as Interested Parties in support of their appeal from an Order denying motions to quash two 28 U.S.C. § 1782(a) subpoenas of plaintiffs’ counsel, Steven Donziger, by plaintiffs’ adversary, Chevron, and Chevron’s lawyers, Rodrigo Perez Pallares and Richard Reis Veiga (the “Chevron parties”).

PRELIMINARY STATEMENT This case arises from one of some eighteen 28 U.S.C. § 1782 lawsuits by the

Chevron Corporation against dozens of parties throughout the county, in a national circus that, as one federal judge noted, is “quickly spiraling out of control.”1

Having sued over twenty of plaintiffs’ experts, a documentary filmmaker and his associates, plaintiffs’ former lead counsel, and plaintiffs’ former co-counsel,

Chevron and its allies now sue current counsel, Steven Donziger, a human rights lawyer who for seventeen years has represented thousands of indigenous

Ecuadorians in a bitterly fought action to redress one of the greatest oil disasters in the world.

The Chevron Parties seek Donziger’s work product, communications with co-counsel, with clients, investigators, consulting experts, plaintiffs’ press liaison, affiliated groups, in short, almost his entire case file. They essentially seek a

1 (A-708-709, Vol.4)

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roadmap into counsel’s every litigation move since 1993. And now, in an extraordinary ruling apparently unprecedented in American jurisprudence, the district court has ordered an active attorney in a decades-old litigation to turn over documents and a privilege log of substantial parts of his entire file to his adversary in the midst of a massive, hotly-contested case. See A-806, Vol.4 (the “Order”).

The burden already imposed by these subpoenas is stunning: preparation of

a 2,000-page privilege log and review of an entire case file for a multi-decade

litigation, more than 3,000 hours of attorney time by Donziger’s attorneys alone,

hundreds of thousands of dollars in costs and fees, and multiple days of future

deposition time for an active attorney in the middle of a massive litigation in

fifteen states and three continents. The unsupported ruling improperly applies

Second Circuit case law, is unjustly prejudicial and inequitable, and threatens to set

a terrible precedent for civil discovery in this Circuit. If ever subpoenas of an

active lawyer should be quashed, it is here.

The Order should be reversed.

JURISDICTIONAL STATEMENT

The district court had original jurisdiction over this matter pursuant to 28

U.S.C. § 1331 and 28 U.S.C. § 1782. This Court has appellate jurisdiction

pursuant to 28 U.S.C. § 1291. This is an appeal from a final memorandum opinion

and order, dated October 20, 2010. Timely notice of appeal by the Lago Agrio

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appellants was filed on October 26, 2010.

STATEMENT OF THE ISSUES 1. Does the Order misapply In re Subpoena Issued to Dennis Friedman,

350 F.3d 65 (2d Cir. 2003)?

2. Does the Order misapply Intel Corp. v. Advanced Micro Devices, Inc.,

542 U.S. 241 (2004)?

3. Does the Order improperly rely on the private arbitration, which, inter alia, is not a “foreign tribunal” within 28 U.S.C. § 1782?

STATEMENT OF THE CASE

A. Chevron’s Destruction of the Amazonian Rainforest From 1964 to 1992, Chevron operated a 1,500 square-mile concession in the

Ecuadorian Amazon, designing, building, and managing all oil exploration, extraction, and production infrastructure and operations in the concession area, including numerous oil fields and more than 350 well sites. Republic of Ecuador

(“ROE”) v. ChevronTexaco Corp., 376 F. Supp.2d 334, 338-412; A-756, ¶ 13,

Vol.1.3 Chevron dumped billions of gallons of toxic waste into drinking water,

gouged over 900 toxic waste pits that continue to run into streams and rivers,

burned hundreds of millions of cubic feet of gas and waste oil, and polluted

2 Id. at 338, 340. 3 For a fuller description of Chevron’s conduct in the Amazon, see id. ¶¶ 1-3, 13- 18.

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Ecuador’s Amazon rainforest with many more times the amount of oil spilled by the Exxon Valdez. Id.; A-494, Vol.4.

(i) Chevron’s Audits and Internal Memos Reveal Massive Contamination Chevron claims in this § 1782 petition that “there is no evidence that

Chevron is responsible for any environmental damage” in Ecuador. (A-70, Vol.1).

The claim is not merely frivolous; it is a flat-out misrepresentation.

Chevron’s own internal audits of its environmental impact, conducted in the early 1990s by independent outside consultants and placed in evidence in the

Ecuadorian case, found extensive contamination at Chevron’s oil production facilities:

The audit identified hydrocarbon contamination requiring remediation at all production facilities and a majority of the drill sites . . . . Based on the field observations and the assumptions herein, approximately 50 percent of the drill pad and pit contamination and thirty percent of the hydrocarbon contamination at production facilities was attributed to TEXPET’s operations from 1964 through 1990. . . . All produced water from the production facilities eventually discharged to creeks and streams except for one facility which used a percolation pit. None of the discharges were registered with the Ecuadorian Institute of Sanitary Works (IEOS) as required by the Regulations for the Prevention and Control of Environmental Pollution related to Water Resources (1989).

(A-456-457, Vol.2) (emphasis added). This is only a miniscule part of an overwhelming 200,000-page trial record in Ecuador indicting Chevron for its

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destruction of the Ecuadorian Amazon. See also A-723, Vol.2 (Apr. 17, 1992

Memo detailing contamination); A-726, Vol.2 (Jan. 3, 1995 Memo discussing oil discharges into various rivers and tributaries); A-62-67, Vol.2 (Oct. 1993 Report of

Chevron’s auditors) (“oil emulsion and produced water is discharged into a local creek or river or in some instances directly into the jungle”) and A-100-108, Vol.2

(finding “environmental damage that may require extensive mitigative action or may be of long-term duration before recovery,” where “contaminants appear to have migrated out of the pit”).

(ii) The Outtakes Reveal Massive Contamination As set forth infra, in a prior action before this Court, Chevron received hundreds of hours of outtakes from a documentary about the Lago litigation entitled Crude. Notwithstanding selective snippets produced by Chevron below, the outtakes in toto reveal a plaintiffs’ team determined to expose Chevron’s massive contamination of the Amazon, both before and after its so-called

“remediation.” See A-69-70, Vol.4 (summarizing hundreds of contaminated samples, as found by both plaintiffs and Chevron); A-71, Vol.4 (“the majority of the[ sites] are sites that supposedly underwent remediation by Texaco. All of them currently show contamination.”); id. (“Texaco is proving our case. With all of their manipulation of the sampling, as can be seen in the inspections, they are still drawing soil and water samples that violate the laws of Ecuador.”); A-73, Vol.4

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(discussing “remediation”: “They came in, they capped it off, took something out, poured water, planted trees and that was the remediation.”); A-74-76, Vol.4

(discussing Chevron’s manipulation of sampling techniques to minimize findings of contamination); A-79, Vol.4 (describing how Chevron takes water samples upstream to avoid findings of contamination); A-79, Vol.4 (describing soil samples exceeding permissible limits); A-87-88, Vol.4 (describing groundwater contamination); A-89-92, Vol.4 (challenges of remediation); A-98, Vol.4

(remediation is “a 17 to 20 year project”); A-98, Vol.4 (same). In short, the outtakes reveal a serious case to redress substantial harm caused by Chevron.

(iii) Chevron’s Recent Deposition of Bill Powers Reveals Massive Contamination Chevron’s recent § 1782 deposition in California of Bill Powers, one of plaintiffs’ consultants, provided further, devastating evidence of Chevron’s responsibility for this massive ecological disaster. Although Chevron attempted to market the Powers deposition before the district court as evidence of “fraud,” his testimony provides further evidence that Chevron’s denial of liability are themselves the true fraud being perpetrated in this proceeding4:

4 Chevron pulled out all the stops to prevent any cross-examination of Mr. Powers, claiming that the “office is closing,” (A-484, at 294:15, Vol.4), that Chevron was not “notified of that in advance,” as if one must give advance notice of cross- examination in a deposition, (A-484, at 294:21-23, Vol.4), that “the cameraman has to pack up” and “we literally have to leave the building,” (A-485, at 295:1-2, 15-16, Vol.4), and that counsel “honestly d[idn’t]” have five minutes for Mr.

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Q: Now, when Chevron-Texaco designed its pits in the Ecuadorian Amazon, what design did it use?

A: Dug a whole in the dirt and deposited the drilling muds in the un[l]ined hole.

Q: And if Chevron-Texaco was designing those pits in the United States, would it have been able to dig a pit in the -- and put in the drilling muds as you described?

A: No.

(A-497, at 307:8-16, Vol.4). Chevron’s substandard design – dumping toxic chemicals into unprotected, unlined pits – had dramatic consequences:

Q: What’s the consequence of Chevron’s design of its pits in the Lago Agrio concession?

A: Two consequences: the leeching of the chemicals into the ground, and ultimately into the ground water; and the overflow of the pits due to lack of maintenance and rain water and overflowing directly into the drainage channels surrounding that pit.

(A-497-98, at 307:15-308:6, Vol.4). Mr. Powers further testified that Chevron should have reinjected the toxic chemicals into subsurface formations, where they would not have spread into surface water and groundwater, rather than simply leave toxic chemicals in open, unlined pits:

Wilson to question Mr. Powers. (A-485, at 295:20-21, Vol.4). Notwithstanding this obstreperous conduct, Mr. Wilson insisted on fifteen minutes of cross- examination, during which the building did not shut down, the office did not close, the cameraman did not have to pack up, and no one had to leave the building. Ms. Neuman’s speaking objections are excised from the following excerpts.

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Q: And when Chevron developed the oil field in Ecuador, did it do so in conformity with standards for treatment of production water that were in place in the United States at the time that it was building its infrastructure in Ecuador?

A: No.

BY MR. WILSON: Q: Can you describe the ways in which Chevron’s Ecuadorian concession fell below standards it would have been required to meet if that field were in the United States? …. THE WITNESS: Based on the salinity and the produced water from the field, the company would have been required to reinject that water into a subsurface formation. Could not have operated that oil field or produced a single barrel of oil without having that produced water injection system operational.

BY MR. WILSON: Q: By failing to reinject production water in the Lago Agrio concession, what impact did that have on the environment in Lago Agrio?

THE WITNESS: It contaminated the surface water at the points where it was injected, not only with the high salinity of the produced water in an environment that has almost no natural salinity, but the trace contaminants of heavy metals and oil also contributed to the generalized contamination of that surface water.

(A-488-491, at 298:21-301:9, Vol. 4) This was no minor pollution, but according to Mr. Powers, one of the biggest man-made oil disasters in the world:

Q: If you include the produced water in your comparison between the discharge into the environment from Chevron’s Lago Agrio concession, when you compare that to the Exxon-Valdez oil discharge from that catastrophe, how would you compare them?

A: Both the produced water and the crude oil are toxic. The -- you

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can argue about the relative toxicity of them both. But the amount of toxic liquids that should not have been in the environment in Ecuador was at least 30 times the quantity or the volume of crude that was spilled in the Exxon-Valdez disaster.

(A-493-494, at 303:19-304:6, Vol.4). Thirty times the Exxon-Valdez disaster, yet

Chevron has repeatedly misrepresented to this and other federal courts that it did not pollute at all in the Amazon.

B. Plaintiffs Sue Chevron in New York In 1993, the Amazon communities filed a federal class-action lawsuit against

Texaco, Inc., a predecessor to Chevron, in the Southern District of New York, the

site of Texaco’s then-global headquarters. See Aguinda v. Texaco, Inc., 303 F.3d

470, 473 (2d Cir. 2002); A-48, Vol.3. Plaintiffs “sought money damages under

theories of negligence, public and private nuisance, strict liability, medical

monitoring, trespass, civil conspiracy, and violations of the Alien Tort Claims

Act,” as well as “extensive equitable relief to redress contamination of the water

supplies and environment.” 303 F.3d at 473.

From the lawsuit’s inception, Chevron fought vigorously to re-venue the

case from the Southern District of New York to Ecuador.5 Chevron’s motion on

forum non conveniens and international comity grounds rested on two principal

5 See Aguinda v. Texaco, Inc., 945 F. Supp. 625 (S.D.N.Y. 1996), vacated by Jota v. Texaco, Inc., 157 F.3d 153 (2d Cir. 1998), Aguinda v. Texaco, Inc., 142 F. Supp. 2d 534 (S.D.N.Y. 2001), aff’d, 303 F.3d 470, 476 (2d Cir. 2002).

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assertions: (1) the Ecuadorian courts provided an adequate, fair, and neutral forum; and (2) the evidence and the witnesses were in Ecuador.

For nine years, Chevron touted the virtues of the Ecuadorian judicial system, submitting numerous affidavits from experts and its own counsel, and repeating these assertions in extensive briefing. See, e.g., A-418, Vol.1, Affidavit of Texaco

Attorney (and applicant here) Dr. Rodrigo Perez Pallares (“the Ecuadorian courts

provide an adequate forum for claims such as those asserted by the plaintiffs”); A-

465, Vol.1; A.495, Vol.1 (“Ecuador’s judicial system provides a fair and adequate

alternative forum”) at A-496, Vol.1 (“Ecuadorian legal norms are patterned on

those in many European nations. . . . Ecuador’s Constitution guarantees due

process and equal protection, and its courts provide important substantive and

procedural rights”); A-594, Vol.1, (“Ecuadorian legal norms are similar to those in

many European nations.”).

The Court of Appeals for the Second Circuit ultimately agreed, and sent the

case to Ecuador. Aguinda, 303 F.3d at 476

C. The Release, the Sham Remediation, and the Criminal Prosecution During Aguinda, Chevron procured a release from the Republic of Ecuador

(“ROE”), based on an alleged remediation of certain sites by Chevron. That

release was given by ROE (not plaintiffs), applied only to claims by ROE, and

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expressly excluded third-party claims.6 The Prosecutor General in ROE later

determined that the official certification of the alleged remediation by two Chevron

lawyers (petitioners Veiga/Perez) and ten Ecuadorian officials was fraudulent, and

charged them in a criminal accusation. That criminal investigation originated in an

audit by the Comptroller General before there was a civil case in Ecuador. (A-

40,Vol.1). The investigation involved an interplay between various Comptrollers

General, the Prosecutor General, and the Supreme Court, (A-40-50, Vol.1), during

which time the prosecutor dismissed some claims, (A-42, Vol.1), and pursued a

thorough investigation, (A-47-50, Vol.1), ultimately resulting in an imputacion

(indictment) on some of the charges.

D. Chevron’s Scorched Earth Policy in Lago Agrio: “We can’t let little countries screw around with big companies like this” After Aguinda was dismissed, plaintiffs re-filed the case in Lago Agrio,

Ecuador. The trial that began in the Lago Agrio Litigation in 2003 remains

pending before the Supreme Court of Nueva Loja in Lago Agrio. Chevron’s

Ecuadorian legal team has adopted a “scorched earth” legal strategy, including

menacing and threatening a court expert, A-726, Vol.1, and drowning the Court

6 Memorandum of Understanding “shall apply without prejudice to the rights possibly held by third parties,” A-161, Vol.4, see also ROE, 376 F. Supp. 2d at 374 (“it is highly unlikely that a settlement entered into while Aguinda was pending would have neglected to mention the third-party claims being contemporaneously made in Aguinda if it had been intended to release those claims or to create an obligation to indemnify against them”).

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with frivolous motions. Appellants’ Joint Request for Judicial Notice (“RJN”), Ex.

H at RJN000123-000146 (some 80 motions by Chevron, including 14 motions on

July 7). These abusive practices not only have frustrated the progress of the litigation, but ultimately led to the recusal of a judge who apparently could not or would not keep up with Chevron’s filings. RJN Ex. I, RJN000147-000153; see also SA-120, Vol.1. Two of Chevron’s Ecuadorian lawyers were recently sanctioned for attempting to obstruct the trial through this abusive motion practice: on one day Chevron attorneys Alberto Racines and Diego Larrea filed nineteen motions in a thirty-minute period. (SA-120, Vol.1). This obstreperous conduct reflects Chevron’s philosophy in this case: “We can’t let little countries screw around with big companies like this—companies that have made big investments around the world.”7

Plaintiffs pressed forward nevertheless, and today the record contains some

200,000 pages of evidence, roughly 63,000 chemical sampling results produced by laboratories contracted by both parties and the court experts, testimony from dozens of witnesses, and dozens of judicial field inspections of former Chevron wells and production sites conducted over a five-year period under the oversight of

the Lago Agrio Court. (A-664, Vol.1).

7 http://www.newsweek.com/2008/07/25/a-16-billion-problem.html. Chevron denied making the comment, but Newsweek stood by its story and the quotation. Id.

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E. Chevron’s Many Ex Parte Contacts with the Lago Court Chevron also participated in ex parte litigation in Ecuador: (1) Chevron has never denied that its own lawyers met ex parte with court experts in the Lago case;

(2) Chevron admitted below that it is appropriate under Ecuadorian law to meet ex parte with court experts8; and (3) Chevron’s lawyers repeatedly met secretly and ex parte, not just with court experts, but with the Lago court itself.

Chevron’s attorneys met ex parte with the Lago Court multiple times, concerning court expert Richard Cabrera and other aspects of the case:

On multiple occasions, I personally saw the lawyers who represent Chevron Corporation in the Lago Agrio case, their technical personnel and their security guards, meeting alone with the judge in charge of the case, without the presence of the plaintiffs’ lawyers. . . . I especially remember two cases where I saw Iván Alberto Racines, a lawyer of Chevron in the Lago Agrio case, and other lawyers of Chevron whose names I do not remember, meeting with Doctor Germán Yánez Ruiz, who was the judge of the case at the time. These meetings were without the participation of the Plaintiffs’ representatives in the Lago Agrio case.

A-726, ¶¶ 4-5, Vol.2 (Decl. of Robinson Yumbo Salazar); see A-45, ¶ 3, Vol.3

(Decl. of Donald Rafael Moncayo Jimenez) (“[o]n multiple occasions, I personally saw the lawyers who represent Chevron Corporation in the Lago Agrio case meeting alone with the judges who heard the case without the presence of the plaintiffs’ lawyers”).

8 A-555, ¶ 50, Vol.3.

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On one occasion, a plaintiffs’ representative “saw attorneys Adolfo Callejas

Ribadeneira and Ivan Alberto Racines (lawyers of Chevron), and Dr. Efraín

Novillo (who was in charge of the case at the time) in the offices of Judge Novillo.

They were talking about the expert designated by the Judge, Mr. Richard

Cabrera.” A-46, ¶ 4, Vol.3. When he “approached the offices, the private security guards of Chevron and a Chevron technician tried to chase [him] away.” Id. Mr. Moncayo describes another incident where Judge Juan Núñez, then-President of the Provincial Court of Justice of Sucumbíos, “was talking to Dr.

Diego Larrea and Alberto Racines about the inspection of the Auca wells and other stations, where there were oil wells, topic of the Lago Agrio case.” A-46, ¶ 5,

Vol.3.

F. Chevron’s Word-for-Word Contributions to the Report of a Neutral, Independent Court Expert Chevron’s § 1782 petition complains about plaintiffs’ submission of materials (including proposed findings) to a court expert, what it calls

“ghostwriting.” But, in another fact lost in the district court’s rulings, Chevron’s private expert made word-for-word contributions to the report of a different independent, neutral court expert in Lago Agrio: Mr. Barros.

Chevron’s private expert, Mr. Connor, wrote a report dated June 16, 2005, titled Prácticas y Reglamentos Internacionales Para el Uso y la Remediación de

Piscinas de Campos Petroleros. Apparently without any attribution, the neutral

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and independent expert appointed by the Lago Agrio Court, Mr. Barros, copied entire pages of Chevron’s report, word for word. In his expert report submitted to the Court, Barros included a five-page passage with the same title as the Connor report: Prácticas y Reglamentos Internacionales Para el Uso y la Remediación de

Piscinas de Campos Petroleros. A-168, Vol.4. The first two pages of this section mirror the Connor report exactly. Cf. A-165-167, Vol.4; A-186-189, Vol.4.

Barros then follows this introductory section with three other passages directly copied from different sections of Connor’s report, all without attribution. Compare

A-173-174, 179, 183, Vol.4; A-187-191, Vol.4. Nowhere does Barros appear to acknowledge that he has copied Chevron’s expert’s materials into his own avowedly neutral and independent report.

G. Chevron’s Repeated, but Failed, Attempts to Undermine the Rule of Law in Ecuador When Chevron spent nine years seeking to transfer Aguinda to Ecuador, it

plainly believed it could control the Ecuadorian judiciary and manipulate a

favorable outcome. But to Chevron’s shock and dismay, the judiciary has proved

to be neutral, independent, and capable. Unable to manipulate the court system

through legal means, Chevron decided to pursue a more sinister strategy:

(i) Chevron’s “Dirty Tricks” Chevron attempted to entrap the then-Lago judge (Judge Nuñez) in a

manipulated bribery scheme, perpetrated by a convicted American drug trafficker

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(Wayne Hansen) and an Ecuadorian associate now holed up in the United States at

Chevron’s expense (Diego Borja).9 Judge Nuñez denied wrongdoing but nevertheless felt compelled to recuse himself to avoid tainting the trial with any appearance of impropriety. One of these Chevron operatives, Mr. Borja, has also admitted his involvement in various “dirty tricks” and unseemly and highly disturbing schemes to support Chevron in the Lago case. Id.

Two federal courts in California have now granted § 1782 discovery of

Hansen and Borja to uncover these extraordinary schemes by Chevron. RJN Exs.

J, K, RJN000162-167.

(ii) Chevron’s Efforts to Pressure the President to Pressure the Lago Court to Rule in Chevron’s Favor Chevron has also repeatedly tried, and failed, to get various organs of the

Ecuadorian state to illegally pressure the judiciary to rule for Chevron. For example, Chevron brought a baseless AAA arbitration against ROE in the United

States, later stayed by the Southern District of New York after considerable time and expense. Republic of Ecuador v. ChevronTexaco Corp., 499 F. Supp. 2d 452

(S.D.N.Y. 2007). Before the Court stayed the baseless arbitration, however,

Chevron attempted to leverage the AAA proceeding to force ROE to pressure the

9 http://chevrontoxico.com/assets/media/borja/borja-report.pdf; Editorial, Chevron's Legal Fireworks, L.A. Times, Sept. 05, 2009, http://articles.latimes.com/2009/sep/05/opinion/ed-chevron5.

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Lago judge to rule against plaintiffs. Chevron asked the President of the Republic to “intervene” to quash the “Succumbios [Lago Agrio] trial” and “in exchange,

Texaco would be willing to drop the [AAA] arbitration in New York.” (A-110-

111, Vol.1).

(iii) Chevron’s Effort to Pressure Ecuador with Trade Sanctions When this outrageous attempt to interfere with the judiciary failed, Chevron pressured the U.S. Congress to impose trade sanctions on the Republic of Ecuador if the Ecuadorian government did not get the judiciary to “quash the [Lago Agrio] case”—what a Member of Congress has referred to as “extortion.” (A-689, Vol.1)

(Press Release of Representative Linda Sanchez of California); http://www.newsweek.com/2008/07/25/a-16-billion-problem.html (“Chevron is pushing the Bush administration to take the extraordinary step of yanking special trade preferences for Ecuador if the country’s leftist government doesn’t quash the case. A spokesman for U.S. Trade Representative Susan Schwab confirmed that her office is considering the request.”).

(iv) Chevron’s Effort to Have Three Arbitrators Order the ROE to Order the Lago Judge to Rule in Chevron’s Favor

When sting operations, attempted backroom deals, and outright extortion all

failed, Chevron went to a new venue to undermine the rule of law: three private

arbitrators. On September 23, 2009, Chevron filed a “notice of arbitration”

supposedly against Ecuador pursuant to the U.S.-Ecuador Bilateral Investment

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Treaty. (A-667, Vol.1). But the relief Chevron seeks is against the Lago Agrio

plaintiffs. Chevron has asked this private arbitration panel to tell the government

of Ecuador to force the judge to dismiss the Lago Agrio litigation via an order

requiring that the Republic’s President violate Ecuador’s Constitution, interfere in

the country’s independent judiciary, and quash a trial brought by his own citizens

against Chevron in the very court in which Chevron sought to have the claims

heard. (A-686 ¶ 76(3), Vol.1). Under BIT rules, plaintiffs cannot even be a party

to this proceeding.

Plaintiffs’ and ROE’s applications to stay the arbitration are pending in this

Circuit. Republic of Ecuador v. Chevron Corporation, et al., 10-1020 (2d Cir.

2010; A-255, Vol.1 (Transcript of August 10, 2010 Oral Argument). Although

Chevron recently represented to the Second Circuit that it would not seek to

prevent entry of a final judgment in Ecuador, e.g., A-307-309, Vol.1, that proved

to be just another Chevron misrepresentation: on November 6, 2010, Chevron

again asked the arbitrators to prevent entry of a final judgment in Ecuador. A

catalogue of just some of Chevron’s misrepresentations to this Court on this issue

is contained at A-553-555, Vol.4.

H. Chevron’s War of Attrition: “Until Hell Freezes Over” Faced with overwhelming evidence of liability, Chevron in 2007 promised

the plaintiffs in the Lago Agrio action a “lifetime” of appellate and collateral

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litigation if they persisted in pursuing their claims. (A-656, Vol.1). Or as a

Chevron spokesperson put it, the company would “fight” the Lago Agrio case

“until hell freezes over” and then “fight it out on the ice.” (A-661, Vol.1).

As part of this scorched-earth strategy, Chevron has within the last year filed eighteen separate § 1782 proceedings in District Courts throughout the country: in

New York, New Jersey, Pennsylvania, Tennessee, Colorado, New Mexico,

California, Texas, Ohio, Maryland, Vermont, North Carolina, Virginia,

Massachusetts, and Washington, D.C. Chevron has sued at least thirty-three separate persons or entities affiliated with the plaintiffs. This unprecedented invocation of §1782 – an abuse of the statute that could not possibly have been envisioned by Congress – has now resulted in document productions of some

275,000 pages, and the taking of eleven depositions, with at least a dozen more on the horizon.

As noted by one district court that foresaw how Chevron’s § 1782 campaign would play out if left unchecked:

[I]t is important to note at the outset that this proceeding, initiated pursuant to 28 U.S.C. § 1782, is not an opportunity to put on a full trial . . . . Chevron had an opportunity to litigate this matter in the United States and strongly opposed jurisdiction in favor of litigating in the Ecuadorian courts. While fraud on any court is a serious accusation that must be investigated, it is not within the power of this court to do so, any more than a court in Ecuador should be used to investigate fraud on this court . . . . This limited proceeding is quickly spiraling out of

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control.

(A-708-709, Vol.4) (Chevron Corporation v. Mark Quarles, No. 3:10-cv-00686,

Dkt. 108, at 2-3 (M.D. Tenn.) (emphasis added).

Chevron has used these depositions to threaten, intimidate and harass plaintiffs’ consultants, questioning so outrageous that a federal court just last week sanctioned Chevron for abusive deposition conduct. RJN Ex. A, RJN000001-

000002. Chevron has also used the media to threaten prospective counsel and funders for plaintiffs. See, e.g., http://www.law.com/jsp/tal/

PubArticleTAL.jsp?id=1202474516910 (“More immediately, will the embarrassment be too great for the Am Law 100 firm that plaintiffs have said is on the verge of joining their team? ‘Anyone jumping into bed with plaintiffs at this point needs to understand what they’re signing on to,’ Chevron spokesman Kent

Robertson said. ‘They will be funding a fraudulent lawsuit.’”).

I. This Section 1782 Application In this petition, Chevron targets Steven Donziger, a lawyer for plaintiffs who, since 1993, has spent the majority of his career working on the Aguinda/Lago case. (A-172, Vol.1). Any party would no doubt like to seek discovery from opposing counsel, and Chevron is no exception. Chevron’s principal excuse here is the relationship between court expert Richard Cabrera and plaintiffs’ counsel.

Mr. Cabrera was an expert appointed by the Court to provide an assessment of the

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damage from Chevron’s pollution of the Amazon. The Court asked both Plaintiffs and Chevron to “submit to the expert whatever documentation they believe may be useful in preparing his report.” (A-392, Vol.1). Chevron refused; plaintiffs cooperated, supplying Cabrera with proposed findings for inclusion in his global damages report. (A-352, Vol. 1).

Though Chevron (1) has never denied meeting ex parte with independent, neutral court experts, and (2) has repeatedly met secretly and ex parte, not just with court experts, but with the Lago Court itself, it now complains of “ex parte” (and entirely permissible) contact between plaintiffs and Cabrera. And, though Chevron prepared materials later adopted word-for-word by a neutral, independent court expert, Chevron also complains that plaintiffs submitted materials (including proposed findings) adopted by Cabrera.

The Lago Court is well aware that plaintiffs submitted materials to Cabrera: plaintiffs told the Court. (A-356-357, Vol.1).10 When Chevron made the very

same complaints about Cabrera in Lago Agrio that it made to the district court

here, citing hundreds of pages from discovery in other recent § 1782 actions, the

10 “Plaintiffs took advantage of the opportunity to advocate their own findings, conclusions, and valuations before Cabrera. . . . The information provided to Cabrera by Plaintiffs’ counsel included proposed findings of fact and economic valuations . . . . Cabrera was, of course, free to adopt, wholly or in part, plaintiffs’ views, proposed findings and valuations. And, in fact, apparently finding them credible, Cabrera adopted the proposals, analyses, and conclusions of the Plaintiffs concerning the damages and the valuation.”

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Lago Court ruled that “the judge is not required to agree with the opinion of the experts,” and instead ordered the parties to submit their own supplemental submissions on damages. (A-370, Vol.1).

Surely, any litigant with a professed desire for more due process would welcome such a development. Not Chevron. Chevron opposed the motion, and remarkably, announced it had no interest in filing a supplemental damages submission to the Court. (A-376, Vol.1) (referring to filings by Dr. Callejas, counsel for Chevron). The Court rejected Chevron’s cynical and completely indefensible position. (A-369, 375, Vol.1) (“ordering the parties to comply with the provisions of the order of August 2, 2010”).

Against its own wishes, Chevron has now had the opportunity to provide a damages assessment directly to the Court. Chevron has never identified a single order, a single rule, a single regulation, or a single law prohibiting ex parte contact between either party and the court experts in the Lago Agrio case. Instead,

Chevron was reduced to citing two “expert” affidavits from lawyers paid by

Chevron, who were forced to rely upon “doctrine developed by Chilean,

Colombian, Spanish and French authors” to claim that plaintiffs’ contacts with

Cabrera were improper. (A-613, Vol.3).

J. The Massively Overbroad Subpoenas The subpoenas from Chevron and its lawyers (Perez/Veiga) are in no way

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limited to Cabrera; rather, they are overly broad demands for substantial parts of the entire litigation file of their adversary. Chevron’s subpoena demands, inter alia:

x All communications (privileged or not) between Donziger and this law firm, about anything, (A-143, #60, Vol.1);

x All communications (whether subject to a common interest privilege or not) between Donziger and anyone who works for ROE, about the entire Lago litigation, (A-143, #61, Vol. 1);

x All documents related to any communications with any pension fund, investment analyst, institutional investor, or shareholder group, regarding Chevron, (A-144, #68, Vol.1);

x The Orwellian demand for all documents relating to any website containing any document relating to the Lago case, including the names of anyone who viewed any such website, (A-144, #67, Vol.1);11

x All documents (whether privileged or not) relating not to Cabrera, but to any and all of plaintiffs’ own judicial inspection experts, (A-140-141, #41, Vol.1);

x Any documents relating to (including communications with) the Rainforest Action Network, (A-140, #40, Vol.1), Amazon Watch, (A-137, #20, Vol.1), or the Amazon Defense Front, (A- 138, #25, Vol.1), and any number of other organizations, (A- 138, e.g., #28, #29, Vol.1), concerning anything at all;

x Any documents relating to (including communications with) plaintiffs’ press liaison Karen Hinton, about anything at all (again, irrespective of privilege), (A-137, #21, Vol.1);

x All documents (notwithstanding any privilege) concerning

11 Apparently, Chevron would like to infiltrate, among other sites, www.chevrontoxico.com, a website devoted to exposing Chevron’s misconduct in the Amazon.

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plaintiffs’ investigator Grant Fine, not because he has anything to do with Cabrera, but because he issued a report uncovering Chevron’s unsuccessful attempt to bribe an Ecuadorian judge with the Borja/Hansen scheme, (A-140, #37, Vol.1);12 and the list goes on.

The Chevron lawyers’ subpoena is also prohibitively broad, demanding, inter alia, all documents concerning a host of plaintiffs’ consulting experts,

Amazon Watch, (A-134, Vol.1) #18, Karen Hinton, #19, the Amazon Defense

Front, #23, all of plaintiffs’ judicial inspection experts, #28, all documents concerning tens of thousands of soil samples taken in the civil case, #29, apparently all communications various co-counsel about anything, #47, and all documents relating to any website containing any document relating to the Lago case, including the names of anyone who viewed any such website, #54.

K. Procedural History

(i) The District Court Grants Petitions Demanding 600 Hours of Outtakes From the Documentary Crude In January 2009, Crude, a documentary about the Lago litigation, was premiered. After a substantial and unexplained delay of over fifteen months, applicants sued the filmmaker in April 2010, demanding all 600 hours of his outtakes from the film (the “Berlinger action”). The district court (Judge Kaplan) disregarded a pending motion before the Lago court concerning its receptivity to

12 http://chevrontoxico.com/assets/media/borja/borja-report.pdf

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Chevron’s § 1782 discovery. (RJN Ex. E, RJN000081 (“Believe me, if this were the High Court in London, I’d wait [for the ruling from the foreign court].”).)

Ultimately, notwithstanding the journalist’s privilege, the court granted the applications in their entirety. In re Application of Chevron Corp., 709 F. Supp.2d

283 (S.D.N.Y. 2010). On appeal, the Second Circuit ordered a more narrow

production. Case. No. 10-1918, Dkt. # 278. A full opinion is still pending.13

(ii) The District Court Rules for Chevron, Ex Parte Applicants then filed this § 1782 petition secretly and ex parte, without any notice to Donziger or the Lago Agrio Plaintiffs. They did so, even though the parties were already involved in litigation of the Berlinger action. Rather than give plaintiffs or Mr. Donziger an opportunity to contest the application, the district court granted it, ex parte, without analysis. (A-115, Vol.1).14

(iii) The District Court Sua Sponte Questions Plaintiffs’ Standing, Notwithstanding Plain Second Circuit Precedent

13 Since the remand, and with hundreds of hours of outtakes in hand, applicants then “amended” their § 1782 applications, this time demanding depositions of the filmmakers and tens of thousands of documents. Overwhelmed, and without the resources to fight Chevron ad infinitum, they essentially gave up the legal fight. Filmmaker Berlinger has already been deposed for three days (and counting), another filmmaker (Bonfiglio) is scheduled to be deposed for multiple days, a third filmmaker may be deposed, and Berlinger has produced tens of thousands of documents to Chevron (but not to plaintiffs). In addition, Berlinger has likely spent hundreds of hours reviewing and producing documents for Chevron and incurred massive attorneys’ fees as a result of applicants’ actions. 14 In contrast, then-Part 1 Judge Koeltl in the prior Berlinger action permitted all parties to brief that § 1782 application.

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to the Contrary When plaintiffs’ counsel then filed notices of appearance, Judge Kaplan sua sponte issued an order to show cause questioning whether plaintiffs had standing to appear, (A-171, Vol.1), even though (i) plaintiffs’ adversary sought substantial parts of the entire case file of their own lawyer, and (ii) it is well-settled in the

Second Circuit (and every other court to consider the issue) that “the ultimate targets of a § 1782 discovery order issued to third parties have standing to challenge the district court’s power to issue a subpoena under the terms of an authorizing statute.” Application of Sarrio, S.A., 119 F.3d 143, 148 (2d Cir. 1997).

After plaintiffs briefed the standing issue, (A-743, Vol.4), the district court never ruled.

(iv) The District Court Grants Chevron’s Massive, Untimely Motion to Supplement, then Fails to Rule on Plaintiffs’ Modest Motion to Correct a False Translation by Chevron in the Petition Plaintiffs/Donziger moved to quash the subpoenas. After the completion of

briefing, Chevron moved to supplement the record with hundreds of pages of

material, including material in its possession prior to briefing. Plaintiffs and Mr.

Donziger opposed the untimely motion, and at a minimum, requested that the court

hold the record open to permit submission of responsive documents. Judge Kaplan

granted Chevron’s motion in its entirety, but refused to hold the record open for

plaintiffs or Donziger to submit responsive documents. (A-715, Vol.4).

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Shortly thereafter, plaintiffs made a considerably more modest motion to supplement, to correct a single, false translation Chevron gave of a comment during a meeting with plaintiffs and Mr. Cabrera. Chevron had claimed falsely that plaintiffs’ Ecuadorian counsel, Pablo Fajardo, stated that Cabrera would simply “sign the report and review it.” (A-65, at 8, 16, Vol.1; A-99, ¶ 11, Vol.1).

But plaintiffs’ motion attached an accurate translation: “What the expert will do is give his criteria . . . right . . . .his opinion, and sign the report, and review it as well.” (A-797, Vol.4). The district court has still not ruled on plaintiffs’ motion to supplement.

(v) At Oral Argument, the District Court Gives Its Unsupported View of the Merits of the Underlying Lago Litigation At oral argument below, the district court let the parties know exactly what it thinks of the merits of the litigation in Ecuador:

[T]he truth of the matter is that Petroecuador was in this up to their eyeballs at the time Texaco made the deal to pull out 18 years ago and a deal was made between Ecuador and Texaco, and it was like all other settlements, presumably; nobody admits anything, but whatever, and here’s the deal. We’re out, we’re going to do this, you’re going to do that and it’s all over. And then you come along

with Mr. Donziger and the, I guess the Ecuadorian legislature amends the constitution to revive a claim or to create some new claim. I understand all that. Believe me I do. The imagination of American lawyers is just without parallel in the world. It is our one absolutely

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overwhelming comparative advantage against the rest of the world, apart from medicine. You know, we used to do a lot of other things. Now we cure people and we kill them with interrogatories. It’s a sad pass. But that’s where we are. And Mr. Donziger is trying to become the next big thing in fixing the balance of payments deficit. I got it from the beginning.

A-792-793, Vol.4. Needless to say, this snap judgment was not made with the benefit of the Lago Court’s seven-year, 200,000 page trial record.

(vi) The District Court Denies the Motions to Quash in Their Entirety On October 20, Judge Kaplan denied the motions in their entirety. (A-804,

Vol.4) (the “Order”). In so doing, the district court: (1) engaged in no analysis of the subpoenas themselves, yet ordered Donziger to comply “forthwith” with both of them in their entirety; (2) notwithstanding the Chevron lawyers’ own description of Donziger as “lead U.S. attorney for the plaintiffs in that litigation,” (A-58, at ¶

3, Vol.1), described Donziger as a “political operative” not an attorney, and therefore failed to engage in the analysis required by In re Subpoena Issued to

Dennis Friedman, 350 F.3d 65 (2d Cir. 2003); and (3) suggested (incorrectly as a matter of law) that Donziger waived all privileges as to all documents, even though the motion to quash was timely filed.15

15 The district court stated that if Donziger filed a “complete” privilege log as to many thousands of privileged documents by October 29, the court “may” relieve Donziger of his alleged “waiver,” “in the exercise of [the court’s] discretion.” (A- 806, at 7 n.17, Vol.4).

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(vii) The District Court Tells Donziger to Pay For His Lawyers, For Subpoena Review, and Even (in part) For a Cleary Gottlieb Partner to Serve as Special Master Chevron is the third largest company in the United States, has an annual litigation budget in excess of $300 million/year, and in the Lago case alone has engaged at least three multinational law firms that employ many hundreds of attorneys. Mr. Donziger, in contrast, now has one associate. (A-176, Vol.1). At oral argument below, Mr. Donziger’s counsel requested that, if the court granted any discovery, Chevron pay the cost of discovery review. In response, the court told counsel to go to Donziger’s “backers.” (A-751, Vol.4). The Order not only requires Mr. Donziger to shoulder the enormous expense for his counsel’s search, review, and production of thousands of documents, it also requires him to shoulder one-third of the costs of a retired partner at Cleary Gottlieb (and others at Cleary) to serve as a special master in this case. (A-806, at 9, Vol.4).

On October 26, plaintiffs noticed an appeal. Dkt. No. 1. On October 27,

Donziger noticed an appeal. Dkt. No. 51. On October 27, appellants filed a stay motion to this Court. Dkt. No. 4. After granting a temporary stay, the Court did not extend the stay pending appeal, but did grant an expedited appeal. Dkt. No.

118.

(viii) After the Appeal, the District Court Issues a Second Opinion Explaining the First On November 4, after the notice of appeal, and after appellants filed a stay

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motion noting the above errors, the district court issued an opinion explaining and expounding upon the first (“Opinion”). The Opinion makes a number of sweeping

(albeit prima facie) findings unsupported by the record, and its facts section

essentially adopts applicants’ briefs, without context or any acknowledgment of

any evidence submitted by plaintiffs or Mr. Donziger. It is a startling fact that,

with one minor exception (n.38), the facts section does not once cite or even

acknowledge any of the evidence or many exhibits submitted by plaintiffs. (A-

828, at 1-30 nn.1-117, Vol.4).

Thus, as to Cabrera, the Opinion disregards that ex parte contacts with

experts were permitted in Ecuador, that Chevron engaged in multiple ex parte contacts even with the Lago Court, that the Lago Court invited both parties to submit “whatever documentation” they wanted to Cabrera, (A-392, Vol.1), that

Plaintiffs told the Lago Court it submitted proposed findings to Cabrera, (A-351-

368, Vol.1), and that the Lago Court in no way believed such conduct improper,

(A-369-375, Vol.1). None of this is discussed or even alluded to in the Opinion, cf.

(A-832, Vol.4). Instead, the district court assumed that submissions of proposed sections of a report to a court expert was “evidence” of “fraud” under the law or procedure of Ecuador, (A-832, Vol.4).

The Opinion’s discussion of ROE’s release also ignores the central factual point: the release was by ROE on behalf of ROE and on its face excluded third-

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party claims. A-161, Vol.4; cf. A-832, 840, Vol.4. Whether the release is valid or not, on its face it has nothing to do with plaintiffs’ claims.

The Opinion repeatedly blames plaintiffs for the criminal prosecutions of

Perez/Veiga. Leaving aside the unsupported assumption that Ecuadorian prosecutors are simply incapable of making their own decisions about whom, when, and how to prosecute, the court’s recitation of plaintiffs’ “involvement” is thin and at odds with the record. The outtakes reflect that: (1) plaintiffs held a press conference in which they advocated for criminal charges; (2) Donziger told someone on the phone “perhaps it is time to ask for the head of Perez Pallares”; and (3) a member of the Amazon Defense Front (Luis Yanza) had “coordinated”

President Correa’s visit to a toxic waste site, (A-851-852, Vol.4). The Opinion provides exactly one citation for the proposition that plaintiffs were working directly with the Prosecutor General, (A-850, at 21 & n.70, Vol.4), but the citation is wrong. That outtake (CRS-170-00-03) actually discusses contact with the

Attorney General, not the Prosecutor General. Unlike in the United States, the

Ecuadorian Attorney General has nothing to do with criminal prosecutions.

Criminal cases are handled by a separate, autonomous agency within the judiciary, the Prosecutor General. RJN Ex. C, RJN000031-000044. In any event, nowhere does the Opinion explain why it would be improper for plaintiffs to advocate for the prosecution of persons whom they believe committed a crime.

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The Opinion further suggests that the ROE has somehow pressured the Lago

Court to rule in plaintiffs’ favor, but this is based on no more than public statements by President Correa blaming Chevron for the Chevron disaster, statements much milder than what our own President has said about the BP disaster.16

The Opinion states that ROE has a financial interest in the outcome of the

Lago case, (A-832, 841, Vol.4), but this fiction, based solely on a single hearsay statement by a prosecutor, (A-726, Vol.3), is squarely at odds with the

Environmental Management Act, RJN Ex. F, RJN000097-000114, and was contradicted by Chevron’s counsel just months ago, when Chevron claimed to the

BIT panel that 90% of the proceeds would go to an NGO, not Ecuador. RJN Ex.

G, RJN000119.

The Opinion recites the testimony of Dr. Calmbacher from an ex parte deposition where there was no cross-examination. But Dr. Calmbacher had a minimal role in the Lago case, only looked at a few toxic waste sites among hundreds, (SA-127, at 242-243, Vol.1), violated his duties to the Lago Court, (id. at 243:7-18), had payment disputes with plaintiffs’ counsel, (id. at 243-44), and

16 See, e.g., http://www.whitehouse.gov/the-press-office/remarks-president-oil-spill (President Obama: “BP is responsible for this leak. BP will be paying the bill”); http://abcnews.go.com/GMA/Media/obama-takes-aim-bp-ceo-tony- hayward/story?id=10853212 (“Obama Says He Would Fire BP CEO, Wants to Know ‘Whose Ass To Kick’”).

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even threatened to sue plaintiffs, (id. at 244, Vol.1). This was an unreliable, disgruntled, and in any event, minor expert in the case.

The Opinion accuses Donziger of attempting to intimidate a court in

Ecuador, (A-834, at 5, Vol.4), but the single instance cited is taken wildly out of context. “Chevron’s lawyers and representatives have a long history of attempting to bypass the authority of the Lago Agrio court.” (A-665, Vol.1). In 2005,

Chevron made an improper, secret ex parte application to a judge in Quito who was not even presiding on the underlying case, to obtain an order to enter laboratories used by experts for the plaintiffs. Id. As a result of Chevron’s patently improper ex parte application in Ecuador, no less to the wrong court,

“plaintiffs were forced to appear before the Quito judge in the scene depicted in

Crude.” Id. In that scene, Crude at 39:15, Donziger states: “this is how the game is played, it’s dirty. We have to occasionally use pressure tactics to neutralize their

[Chevron’s] corruption.” Crude at 39:50. Plaintiffs then made the application, in full view of a number of television cameras, and the court reversed the prior ex parte order, notwithstanding further colloquy with Chevron’s counsel. Id.

Culling from hundreds of hours of outtakes, the Opinion also recites a number of remarks by Donziger, some ill-considered or crass, some taken out-of context, some plainly hyperbolic or made in jest. For example, to anyone watching the clips, the comments about an army are plainly not about an actual military

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army, but a group of monitors, such as the monitors who discovered Chevron meeting ex parte with the Lago Court. Cf. (A-858-859, Vol.4). There is simply no evidence that any plaintiffs’ “army” pressured the court, or anything remotely like it. There is, however, sworn record evidence that Chevron used its own security personnel to attempt to keep away a plaintiffs’ representative who saw Chevron’s counsel meeting ex parte with the Court. (A-46, Vol.3).

Finally, the Opinion states that the parties are in a “race,” (A-833, Vol.4), but ignores that the underlying litigation is seventeen years old, that Chevron to this day is engaged in abusive and sanctionable delaying tactics in Ecuador, and that Chevron delayed filing any § 1782 actions until the end of 2009, sixteen years into Aguinda, over six years into the Lago case, and well over a year after the

Cabrera report. To the extent there is a “race,” it was manufactured by Chevron’s own delay and procedural gamesmanship.

Unlike the Order, the Opinion at least discusses the Friedman factors (see infra), but it misapplies them, and makes no attempt to narrow the subpoenas even to subjects raised by the Petition, (A-879-880, Vol.4). Though the court had some modest suggestions to Donziger’s proposed narrowing of the subpoenas, (A-879-

880, Vol.4), it did not craft a narrowed subpoena incorporating those suggestions.

Instead, the Court approved both subpoenas, wholesale.

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SUMMARY OF THE ARGUMENT For the reasons set forth in Mr. Donziger’s brief, the subpoenas violate In re

Subpoena Issued to Dennis Friedman (“Friedman”), 350 F.3d 65, 70 (2d Cir.

2003), are massively overbroad, and are not even tailored to the allegations in the petitions. Every Friedman factor weighs in favor of the motions to quash.

The petitions also do not satisfy Intel Corp. v. Advanced Micro Devices,

Inc., 542 U.S. 241 (2004). The subpoenas impose an overwhelming burden on plaintiffs and their lawyer, and are remarkably intrusive, both as to the time and cost of responding, and as to the character of the information sought. There is no showing that any foreign court is receptive to this discovery; the evidence is quite to the contrary. And the petitions are a plain end run around the Ecuadorian courts.

The Intel factors weigh in favor of the motion to quash.

The BIT proceeding is also not a basis for the petition: it may be enjoined by this Court, may not even have jurisdiction to proceed or act under its governing rules, and in any event, is not a “foreign tribunal” within § 1782.

Finally, applicants improperly seek over ten depositions in this case, in violation of applicable Federal Rules.

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ARGUMENT17

THE GRANTING OF THE CHEVRON PARTIES’ SECTION 1782 APPLICATION SHOULD BE REVERSED

I. Standard of Review The Court “review[s] the district court’s interpretation of 28 U.S.C. § 1782

de novo.” NBC v. Bear Stearns & Co., 165 F.3d 184, 186 (2d Cir. 1999). The

Court reviews the district court’s application of the factors under Intel Corp. v.

Advanced Micro Devices, Inc., 542 U.S. 241 (2004), for abuse of discretion, but

“[t]his discretion . . . is not boundless.” Schmitz v. Bernstein Liebhard & Lifshitz,

LLP, 376 F.3d 79, 83-84 (2d Cir. 2004).

II. Legal Framework Section 1782 provides:

The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a . . . request made, by a foreign or international tribunal or upon the application of any interested person.

28 U.S.C. § 1782(a). The discovery must be for use in a “foreign tribunal,”

Schmitz, 376 F.3d at 83-84, which the BIT tribunal is not. The discovery must also

“assist foreign tribunals in obtaining relevant information that the tribunal may

17 In addition to the below, plaintiffs adopt the opening brief of Mr. Donziger in its entirety, and incorporate by reference all arguments therein.

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find useful.” Intel, 542 U.S. at 262 (emphasis added).

In addition, the proposed subpoena must satisfy the Supreme Court’s four- factor test:

(1) Whether the documents or testimony sought are within the foreign tribunal’s jurisdictional reach, and thus accessible absent § 1782 aid;

(2) The nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance;

(3) Whether the § 1782 request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States; and

(4) Whether the subpoena contains unduly intrusive or burdensome requests.

In re Microsoft Corp., 428 F. Supp. 2d 188, 192-93 (S.D.N.Y. 2006) (quoting Intel,

542 U.S. at 264-65). These factors weigh heavily against the petitions.

III. The Intel Factors Weigh Heavily Against the Chevron Parties

A. The Proposed Discovery Is Highly Intrusive and Burdensome A court may deny a § 1782 application based solely on the burden imposed by the proposed subpoena. See, e.g., In re Apotex, Inc., 2009 WL 618243, at *3-4

(S.D.N.Y. Mar. 9, 2009) (denying § 1782 application based solely on intrusiveness and burden). This is such a case.

The burden already imposed by these subpoenas is grotesque: preparation of a 2,000-page privilege log and review of the entire non-privileged case file of an

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attorney in a 17-year old case, production of some 9,000 documents and 15,000-

20,000 pages, more than 3,000 hours of attorney time by Donziger’s attorneys alone, hundreds of thousands of dollars in costs and fees, and multiple days of deposition time to come for an active attorney in the middle of a hotly-contested litigation in fifteen states and three continents. If ever a subpoena cried out for rejection under Friedman, 350 F.3d 65, it is this. For all the reasons set forth in

Donziger’s brief, the subpoenas violate Friedman and must be quashed.

The burden in terms of cost and time alone compels denial of the § 1782 application. Apotex, 2009 WL 618243, at *3-4 (petition rejected as unduly burdensome; burden significantly less than here). But the court must also consider the character of what is being demanded. See, e.g., In re Microsoft, 428 F. Supp.

2d at 196 (looking at confidentiality and/or privilege in evaluating burden factor); id. (“[T]hird-party undertakings which submit documents to the Commission in the course of its investigations . . . can do so only if they know that account will be taken of their request for confidentiality. . . . Enforcement of Microsoft’s subpoenas would both undermine the Commission’s ability to enforce European antitrust law by discouraging cooperation by third parties, and potentially harm

Respondents and their clients.”). Here, the subpoenas squarely target thousands of pages of core work product, including communications among co-counsel, with consulting experts, and with others on plaintiffs’ litigation team. They are a direct

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attack on the attorney-client relationship, seeking a roadmap into almost every communication plaintiffs’ counsel had with anyone concerning this case, and his every litigation move, no less in the middle of the case being litigated. One could scarcely imagine subpoenas more intrusive than these.

Courts examining this Intel factor have consistently denied applications to

take discovery where litigants have sought “unbridled and unlimited discovery.”

Bayer AG v. Betachem, Inc., 173 F.3d 188 (3d Cir. 1999); see also In Re

Application of Blue Oil Trading Ltd., No. 3:09-MC-152, 2009 U.S. Dist. LEXIS

97224 (W.D.N.C. Oct. 5, 2009) (denying application for § 1782 discovery where

requests were unlimited in time and general in nature). Foreign litigants are simply

“not permitted to use this Court’s discovery procedures to undertake a fishing

expedition.” Kulzer v. Biomet Inc., No. 3:09-MC-275, 2009 U.S. Dist. LEXIS

101283, at *31 (N.D. Ind. Oct. 29, 2009); see also Smoothline Ltd. v. N. Am.

Foreign Trading Corp., No. 00-CIV-2298, 2000 U.S. Dist. LEXIS 10225, at *15

(S.D.N.Y. July 21, 2000) (denying petition to compel discovery where the

discovery request was a “‘fishing expedition’ [and] a vehicle for harassment”

(citation omitted)).

Courts are not only required to guard against unduly intrusive or

burdensome discovery requests under § 1782, they must also maintain procedural

parity by preventing imbalanced discovery between parties to a foreign litigation.

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Edelman v. Tattinger, 295 F.3d 171, 181 (2d Cir. 2001). In Edelman, the Second

Circuit cautioned against the over-application of § 1782, warning that the statute should not be utilized in a way “that will create obvious confusion or skew the results in the foreign litigation.” Id.; see also S. Rep. No. 88-1580, reprinted in

1964 U.S.C.C.A.N. at 3783 (§ 1782(a) exists to provide equitable procedures for the benefit of litigants in international litigation). For the Second Circuit, the risk of confusion and imbalance was high where a foreign litigant had already obtained significant U.S. discovery under § 1782. Id.

That is this case. Using multiple multinational law firms (Gibson Dunn,

Jones & Day, King & Spalding, Williams & Connolly, Covington & Burling), and claiming “urgency” caused by their own unexplained and lengthy delay, Chevron and its allies have barnstormed across the country, targeting for discovery plaintiffs’ experts (Kamp, Champ, Quarles, Powers, Beltman, Peers, Mills,

Chapman, Carney, Maest, Belanger, Jones, Horsak, Calmbacher, Uhl Baron Rana

& Associates, Barnthouse, Picone, Allen, Shefftz, Rourke, Scardina); a documentary filmmaker and his associates (Berlinger, three days of deposition and counting; Bonfiglio, three days scheduled; and a 30(b)(6) witness to come); plaintiffs’ former lead counsel (Dr. Wray), former co-counsel (Kohn), and now current counsel (Donziger). Chevron is using its unlimited resources to force plaintiffs to incur costs and expenses related to wasteful discovery, and to

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exacerbate the inherent imbalance between a corporate giant and indigenous residents of the Ecuadorian Amazon who do not have the luxury of engaging in unlimited litigation. This is apparently what is meant by fighting “until hell freezes over” and then “fight[ing] it out on the ice.” (A-661, Vol.1). If any semblance of parity between the parties to the Lago Agrio litigation is to be maintained, Chevron’s § 1782 campaign – after eighteen separate actions, eleven depositions, and approximately 275,000 pages of discovery – must finally be halted. Otherwise, it will continue “spiraling out of control,” with no end in sight.

(A-707 at 2-3, Vol.4).

The startlingly intrusive nature of this application compels denial of the petition. In re Apotex, Inc., 2009 WL 618243, at *3-4; In re Microsoft, 428 F.

Supp. 2d at 196.

B. The Nature of the Foreign Tribunal, the Character of the Proceedings Underway Abroad, and the Receptivity of the Foreign Court Weigh Heavily Against the Petition The Lago Agrio Court’s attitude toward this specific discovery sought in this proceeding is embodied unmistakably in its August 2, 2010 Order (A-369-374,

Vol.1), refusing to hear more evidence concerning Cabrera, noting that the court need not agree with the experts, and ordering the parties to file further submissions from their own experts. For this Court to allow Chevron to undertake additional discovery concerning Cabrera would ignore the Ecuadorian court’s express

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unwillingness to consider additional materials submitted by Chevron. “[A] decision by this Court upholding [Chevron’s] discovery request would contravene the purpose of § 1782 by pitting this Court against the [Lago Agrio Court], rather than fostering cooperation between them, and would violate established principles of comity, under which ‘United States courts ordinarily refuse to review acts of foreign governments and defer to proceedings taking place in foreign countries.’”

In re Microsoft, 428 F. Supp. 2d 188, 195-96 (S.D.N.Y. 2006) (citation omitted); see also In re Application of Microsoft Corp., No. 06-10061-MLW, 2006 WL

1344091, at *4 (D. Mass. Apr. 17, 2006) (“[T]he Supreme Court has recognized that a primary purpose of § 1782(a) is to aid foreign tribunals…. It is now evident that granting Microsoft the discovery it requests from Novell would interfere with the foreign tribunal, not assist it.”). The Court should deny Chevron’s application on the basis that the Ecuadorian courts do not desire the discovery sought – indeed, a grant of additional discovery to a party that will use it to further bury the foreign court in abusive motions is an affront to that court, and contravenes the very purpose of § 1782.

As the Second Circuit has held, granting a § 1782 application over the opposition of a foreign court “would in fact encourage foreign countries to potentially disregard the sovereignty concerns of the United States and generally discourage future assistance to our courts.” Schmitz, 376 F.3d at 84-85 (citation

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omitted). “Granting discovery in the face of opposition from the foreign tribunal would undermine the spirit and purpose of the statute by discouraging that and other foreign tribunals from heeding similar sovereignty concerns posited by our governmental authorities to foreign courts.” Microsoft, 428 F. Supp. 2d at 194

(quotation marks omitted).

In considering the “character of the proceedings underway abroad,” Intel,

542 U.S. at 264-65, the Court must also take notice of the very late nature of this application: many years after the evidentiary phase of the Lago Agrio litigation has ended, after the judicial inspection phase, and over two years after the Cabrera report. Aventis Pharma v. Wyeth, 2009 WL 3754191, at *1 (S.D.N.Y. Nov. 9,

2009). Chevron’s application “is untimely given the current procedural posture of the case before the [Ecuadorian] Courts.” Id. Granting the application would therefore “frustrate, rather than promote, the twin aims of § 1782: ‘providing efficient means of assistance to participants in international litigation in our federal courts and encouraging foreign countries by example to provide similar means of assistance to our courts.’” Id. (quoting Schmitz, 376 F.3d at 84).

This factor strongly weighs against the petition.

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C. The Section 1782 Request Conceals an Attempt to Circumvent Foreign Proof-Gathering Restrictions and Other Policies of the United States The Court must also consider “whether a § 1782(a) request conceals an attempt to circumvent foreign proof-gathering restriction or other policies of a foreign country or the United States.” Intel, 542 U.S. at 265. “[T]his factor is calculated to shield against an abuse or end run around a foreign jurisdiction’s policies.” In re Minatec Finance S.A.R.L., No. 1:08-CV-269, 2008 U.S. Dist.

LEXIS 63802, at *25 (N.D.N.Y. Aug. 18, 2008). Courts must carefully consider whether there is “reliable evidence that the foreign tribunal would not make any use of the requested material.” In re Application of Babcock Borsig AG, 583 F.

Supp. 2d 233, 241 (D. Mass. 2008). In such a circumstance, “it may be

irresponsible for a district court to order discovery.” Id. This is just such a

circumstance.

As a general matter, “[t]he approach to discovery and evidence in Latin

American legal systems is strikingly different than that in the U.S. system.” E.E.

Daschbach, Where There’s a Will, There's a Way: The Cause for a Cure and

Remedial and Remedial Prescriptions for Forum Non Conveniens as Applied in

Latin American Plaintiffs’ Actions Against U.S. Multinationals, 13 L. & Bus. Rev.

Am. 11, 32 (2007). “In Latin American legal systems, there are generally no

depositions, and document discovery is exceedingly limited.” Id.; see also Stephen

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N. Subrin, Discovery in Global Perspective: Are We Nuts?, 52 DePaul L. Rev.

299, 302 (2002) (noting in some civil law systems “‘a party may be compelled to produce a document [only] when the judge concludes that the document is the only evidence concerning the point in issue’” (citation omitted)); James H. Carter,

Existing Rules and Procedures, 13 Int’l L. 5, 5 (1979) (noting U.S. discovery laws are “so completely alien to the procedure in most other jurisdictions”).

This § 1782 application is a plain attempt to circumvent foreign proof- gathering restrictions in Ecuador. The heart of Applicants’ claim here is that there was impropriety involving an Ecuadorian court expert, Ecuadorian prosecutors, and (somehow or another) the Republic of Ecuador. The Ecuadorian Court is more than capable of investigating its own experts, prosecutors, and even the ROE, all of whom are, after all, in Ecuador. Rather than rely upon requests to the court actually hearing the case, though, Chevron runs to New York to seek testimony and documents from an American lawyer.

“[D]istrict courts may consider how the applicant fared or is faring in the foreign jurisdiction in its attempts to procure the same information it now seeks under § 1782.” In Re Application of OOO Promnefstroy, 2009 WL 3335608, at *8

(S.D.N.Y. Oct. 15, 2009); Microsoft, 428 F. Supp. 2d at 195 (same). Where, as here, a party has tried but failed to procure the discovery in a foreign jurisdiction, this factor weighs heavily against the 1782 petition. Id.; In Re Application of OOO

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Promnefstroy, 2009 WL 3335608, at *10 (“Put simply, this Court would not provide ‘efficient means of assistance’ to litigants by giving parties an incentive, after losing in their original requests for information in the foreign tribunal, to rush to the United States in hopes of obtaining a second bite at the apple. . . . [O]rdering the discovery would not encourage foreign countries by example, unless that example is to aid litigants in circumventing the judicial systems of foreign countries.”).

“[O]ther policies of . . . the United States” also weigh heavily against the petition. Intel, 542 U.S. at 265. First, it is unjust for Chevron to delay the case in the United States for nine years with forum non conveniens motions, all while touting the virtues of the Ecuadorian judicial system, and then, post-hoc, attempt to use the American judicial system to undermine the Ecuadorian Court. Chevron chose the forum of Ecuador. Chevron is a “sophisticated part[y]” that “freely chose the [Ecuadorian] forum with all its requisite procedural rules.” Aventis,

2009 WL 3754191, at *1. Chevron must now live by those procedural rules and approach the Ecuadorian court with complaints about the court’s experts and proceedings.

Second, Chevron should not be permitted to use this Court to compel evidence in aid of an improper BIT proceeding. During the decade when it sought to evade American justice, Chevron made repeated, unambiguous and emphatic

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promises to the Southern District and this Court that it would consent to

Ecuadorian jurisdiction and satisfy any Ecuadorian judgment, subject to a single limited defense in an enforcement proceeding. Relying on those representations, the district court, then this Court, dismissed the Aguinda complaint on forum non conveniens grounds. Yet last year, Chevron violated all those promises, and filed an arbitration in a forum in which plaintiffs cannot even appear, seeking a

“declaration” of “no liability or responsibility for environmental impact” for its destruction of the Amazonian rainforest, A-685, ¶ 76(1), Vol.1), and an “[a]n order and award requiring Ecuador to inform the court in the Lago Agrio Litigation” that

Chevron “has been released from all environmental impact arising out of the former Consortium’s activities,” (A-686, ¶ 76(3), Vol.1).

This bait and switch violates principles of judicial, equitable, and collateral estoppel and “the integrity of the judicial process,” which “prohibit[s] parties from deliberately changing positions according to the exigencies of the moment.” New

Hampshire v. Maine, 532 U.S. 742, 750 (2001) (internal citations and quotations omitted). Even worse, Chevron now runs to this Court, the very Court to which

Chevron made all those false representations, to aid the arbitration that violates the

Court’s prior orders and Chevron’s prior promises. The Court should estop

Chevron from violating “the integrity of the judicial process,” New Hampshire,

532 U.S. at 750, and certainly should not “aid” Chevron’s improper arbitration in

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this proceeding.

The Intel factors strongly weigh against the petition. The Order should be reversed.

IV. Chevron Cannot Use the BIT Proceeding to Support This Petition The district court’s finding that Chevron could also justify issuing subpoenas to Mr. Donziger “in aid of” its arbitration with Ecuador, (A-862-865,

Vol.4), was based on three separate errors: (1) a bilateral investment treaty

arbitration is not a “foreign proceeding,” under Nat’l Broadcasting Co., Inc. v.

Bear Stearns & Co., Inc., 165 F.3d 184 (2d Cir. 1999); (2) the Donziger subpoenas

would undermine proof gathering in that forum; and (3) any such discovery is

premature given the status of those proceedings.

A. A BIT Arbitration Is Not a “Foreign Tribunal” This arbitration is not a “foreign tribunal.” Cf. Op. at 34 n.138 (citation

omitted). Section 1782 provides, in pertinent part, “[t]he district court . . . may

order . . . [discovery] for use in a proceeding in a foreign or international tribunal.”

28 U.S.C. § 1782(a). In National Broadcasting Co., this Court held that a

commercial arbitration in Mexico, conducted under the auspices of the

International Chamber of Commerce, was not within the scope of § 1782 as a

matter of law, as “Congress did not intend for that statute to apply to an arbitral

body established by private parties.” 165 F.3d at 19l. As this Court reasoned, §

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1782’s reference to a “foreign or international tribunal” contemplates a “state- sponsored” proceeding; thus, private arbitration falls outside § 1782’s coverage.

Id. at 188. The only other circuit court to reach this question, the Fifth Circuit, reached a similar conclusion. See Republic of Kazakhstan v. Beidermann, 168

F.3d 880, 881-83 (5th Cir. 1999) (noting international arbitration is intended as a

“speedy, economical, and effective means of dispute resolution” and § 1782 discovery would complicate and undermine arbitration process). After Intel, this

Court has not revisited its stance on arbitral panels vis-à-vis § 1782, and thus,

National Broadcasting Co. remains good law. In addition, the Fifth Circuit –

which revisited its Beiedermann decision last year post-Intel – declined to broaden

its interpretation of “foreign tribunal” to include international arbitration panels,

finding Intel irrelevant to that issue. EI Paso Corp. v. La Comision Ejecutiva,

Hidroelectrica Del Rio Lempa, No. 08-20771, 2009 WL 2407189, at *3 (5th Cir.

Aug. 6, 2009).

In this case, the district court departed from National Broadcasting Co. and

Biedermann, reasoning that (1) Chevron’s treaty arbitration was established

pursuant to UNCITRAL rules; (2) dicta in Intel suggests such arbitrations could be

“foreign tribunals”; and (3) three district court opinions that have held that such arbitrations constitute “foreign tribunals” for purposes of Section 1782. (A-863, n.138, Vol.4) (citing In re Application of Chevron Corp., 709 F. Supp. 2d 283, 291

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(S.D.N.Y. 2010)).) None of these reasons justifies revisiting this Court’s precedent in Nat’l Broadcasting.

First, application of UNCITRAL Arbitration Rules does not convert an otherwise private arbitration into a “public investment arbitration.” See generally

Caratube, 2010 WL 3155822 (D.D.C. Aug. 11, 2010). The proceedings remain the opposite of a “public” proceeding: the arbitral panel meets in secret and any award ultimately rendered is only made public by agreement of the parties. (See

UNCITRAL Arbitration Rules, http://www.jus.uio.no/lm/un.arbitration.rules.1976/

(last visited November 22, 2010) (Art. 28: “Hearings shall be held in camera . . .

.”; Art. 34: “An award may be made public with the consent of all parties . . . .”).)

Here, under the U.S.-Ecuador BIT, Chevron was able to choose to either litigate

the instant matter in court (with discovery mechanisms at its disposal) or,

alternatively, to bring its claims against the Republic of Ecuador through a private

international arbitration body and subject to international arbitration rules. (SA-10,

Vol.1). Chevron not only chose arbitration, it chose its procedural rules as well

(UNCITRAL rules). But Chevron’s election of UNCITRAL rules does not make

the arbitration any less “private.”

Second, and contrary to the district court’s appeal to dicta from Intel, the

private nature of bilateral investment treaty arbitrations removes the comity

concerns inherent in the § 1782 framework, which is concerned with public

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institutions. This international arbitration is not a “court” in any sense of the term: arbitrators are not sitting judges (the Permanent Court of Arbitration has no sitting judges), and they are selected by the parties themselves on an ad hoc basis. (SA-

123, Vol.1). Nor are the proceedings public; as with other private arbitrations, they

are “held in private and confidential.” Id.18 See In re Application of Caratube Int’l

Oil Co., LLP, No. 10-0285, 2010 WL 3155822, at *4 (D.D.C. Aug. 11, 2010)

(noting that though “Caratube could have brought an action in the Kazakhstan

courts . . . it chose to bring this dispute before an ICSID arbitration panel . . .

[where] parties . . . are ‘free to set the procedural rules for arbitrators to follow’”)

(citations omitted). Private arbitrations, as creatures of contract, enable parties to

freely agree to modify the rules governing the arbitration process – including

whether to allow for more extensive discovery than ordinarily permitted in an

international arbitration. See, e.g., Beidermann, 168 F.3d at 883 (“parties may pre-

arrange discovery mechanisms directly or by selecting an established forum or

body of governing principles” in private arbitrations); Nat’l Broadcasting Co., 165

F.3d at 189 (“If the parties to a private international arbitration make no provision

18 Neither the fact that the arbitration arises under a treaty, nor that a sovereign is a party, changes the private nature of a bilateral investment arbitration. See, e.g., In re Application of Caratube Int’l Oil Co., LLP, 2010 WL 3155822, at *4 (bilateral investment treaty arbitration was private, because party “had the option of arbitrating this dispute in ‘any other arbitration institution, or in accordance with any other arbitration rules, as may be mutually agreed between the parties to the dispute’”) (citations omitted).

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for some degree of consensual discovery inter se in their agreement to arbitrate, the arbitrators control discovery, and neither party is deprived of its bargained-for efficient process by the other party’s tactical use of discovery devices.”).

Finally, district courts have split on whether international commercial arbitrations can be considered “foreign or international tribunal[s]” under § 1782.

Intel itself dealt with a § 1782 application in aid of an antitrust proceeding before the Commission of European Communities, not an international arbitration. Intel,

542 U.S. at 246. Other district courts have either explicitly or implicitly recognized that Intel was of no consequence to the issue of whether an international arbitral panel is a “foreign tribunal” under § 1782. See, e.g., In re

Opera-dora DB Mexico, S .A. DEC, No. 6:09-CV 383-ORL-22GJK, 2009 WL

2423138, at *12 (M.D. Fla. Aug. 4, 2009) (International Chamber of Commerce

International Court of Arbitration is not a foreign or international tribunal under §

1782); In La Comision Ejecutiva, Hidroelectrica Del Rio Lempa v. EI Paso Corp.,

617 F. Supp. 2d 481,487 (S.D. Tex. 2008) (finding that private arbitral panel was not “foreign or international tribunal” under § 1782).

This private arbitration is not a “foreign tribunal” under § 1782(a).

B. The Donziger Subpoenas “In Aid of” the BIT Arbitration Conceal an Attempt to Undermine Foreign Proof Gathering The district court also erred below by finding the proposed subpoenas would not undermine foreign proof gathering in the BIT arbitration. (A-865, Vol.4).

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Contrary to the district court’s conclusory finding, the boundless discovery sought by Chevron is in a form and of a nature that international arbitration – the forum in which Chevron chose to bring its claims against the Republic of Ecuador – does not permit or contemplate.

Discovery in international arbitrations is extremely limited, if permitted at all. In circumstances where depositions or other discovery is permitted in international arbitration, it is almost always limited to an exchange of very specifically identified documents, and as a general matter does not include any

depositions.19 Unlike the Federal Rules of Civil Procedure, which provide detailed

19 See Eric Ordway, International Arbitration, The Benefits and the Drawbacks, Aspatore (2007) (unpaginated), available at 2007 WL 6082200; see also Nathan D. O’Malley & Shawn C. Conway, Document Discovery in International Arbitration—Getting the Documents You Need, 18 Transnat’l Law. 371, 371 (2005) (emphasizing that “[i]n international arbitration . . . discovery is not allowed on a level comparable to what is standard within the American legal practice, if allowed at all. To a very limited degree, international arbitral tribunals may order document production, but depositions, even of party witnesses, are almost never allowed”); Lucille M. Ponte & Erika M. Brown, Resolving Information Technology Disputes After NAFTA: A Practical Comparison of Domestic and International Arbitration, 7 Tul. J. Int’l & Comp. L. 43, 57 (1999) (observing that arbitrators in international arbitrations are unlikely to require parties to respond to interrogatories and depositions); George M. von Mehren, A Brief Overview of International Arbitration, Aspatore (2007) (unpaginated) (noting that the “convention in international arbitration is to have document discovery that is far more limited than what is typical in U.S. court litigation” and that “depositions are rare”), available at 2007 WL 6082203. The International Bar Association (“IBA”) Rules of Evidence, which is the document representing “the growing consensus of how evidential matters are to be handled in cross-cultural arbitrations,” is silent with respect to depositions and interrogatories. See Elena v. Helmer, International Commercial Arbitration: Americanized, "Civilized," or Harmonized, 19 Ohio St.

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rules regarding the taking of depositions of parties, non-party witnesses, and experts, the rules of UNCITRAL, which govern the international arbitration, do not provide for or contemplate the taking of depositions in international arbitrations at all.

Chevron cannot be permitted to take advantage of the benefits of arbitration

– while at the same time seeking to acquire extensive discovery from its adversary’s attorney in the midst of that underlying litigation. See, e.g., Republic of Kazakhstan v. Biedermann International, 168 F.3d 880, 883 (5th Cir. 1999).

“[E]mpowering parties in international arbitrations to seek ancillary discovery through federal courts” could destroy arbitration’s principal advantage as “a speedy, economical, and effective means of dispute resolution” if the parties

“succumb to fighting over burdensome discovery requests far from the place of arbitration.” Id.20 Chevron’s voluntary election of arbitration and its narrower

J. on Disp. Resol. 35, 51-52 (2003) (“By the mere fact of omission of [these] U.S. discovery practices, [the IBA] withdraws its ‘blessings’ from those practices in order to preserve specificity of international arbitration . . . keep it speedier, and control costs.”). 20 See also, e.g., Gary Born, International Commercial Arbitration: Commentary and Materials 510, 512 (2d ed. 2001) (arguing that “[i]f § 1782 is interpreted to permit judicial assistance in aid of arbitrations, it should be limited to restrict discovery efforts by parties (as opposed to the arbitral tribunal)” given considerations related to “the risk of judicial interference in the arbitral process” and “the fact that, in agreeing to arbitration, parties impliedly agree to forego the benefits and avoid the costs of judicial discovery” (emphasis added)).

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discovery strictures militate against its § 1782 application here. Aventis Pharma v.

Wyeth, No. M-19-70, 2009 WL 3754191, at *1 (S.D.N.Y. Nov. 9, 2009) (denying

§ 1782 application where “[t]hese sophisticated parties freely chose the French forum with all its requisite procedural rules”).

C. The Donziger Subpoenas Are Premature: the Arbitration Panel Has Not Yet Determined Its Jurisdiction and Is Subject to a Stay Application Even if the BIT arbitration were a “foreign tribunal,” and the character and nature of the international arbitration were remotely receptive to the subpoenas,

Chevron’s application for discovery should have been denied because it is premature.

The arbitral panel has not yet determined whether it even has the jurisdiction to hear Chevron’s claims. See O. Susler, The Jurisdiction of the Arbitral Tribunal,

6 Macquarie J. Bus. L. 119, 125 (2009) (determinations of jurisdiction in

international arbitrations is a “preliminary matter” and threshold issue for arbitral

tribunals to determine). A hearing is scheduled for November 22 and 23, 2010 for

the limited purpose of determining “jurisdiction and admissibility.” (RJN), Ex. G,

at 150:15 – 151:4.) Even if the arbitrators themselves find there is sufficient

jurisdiction to continue the arbitration, plaintiffs recently moved to stay the

arbitration on the grounds that the arbitration violates Chevron’s representations to

this Court and should be enjoined. See Republic of Ecuador v. Chevron Corp., No.

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10-1020 (2d Cir. 2010). That stay motion is currently pending before the Second

Circuit. Id. (transcript of Second Circuit oral argument).) Should the Second

Circuit enjoin Chevron’s participation in the BIT proceeding, the arbitration will a fortiori not be a basis for the § 1782 petition.

Chevron’s efforts to seek discovery in aid of an arbitration where jurisdiction has not been established and which is subject to a pending motion to stay is premature, at best. The subpoenas should be quashed.

V. Fed. R. Civ. P. 30(a)(2)(A)(i) Prohibits Applicants From Taking Mr. Donziger’s Deposition As of this writing, Chevron has now conducted eleven depositions in aid of the Lago Agrio Litigation and international arbitration.21 Applicants have also noticed a number of other depositions in this case. In total, Chevron has conducted or is presently seeking to conduct no fewer than twenty-two depositions, with the

promise of more. This, of course, does not include the repeated interrogatories

Chevron has propounded to the Lago Agrio Court’s witnesses and experts, or

Chevron’s pending request in the Lago Agrio Litigation to depose Mr. Cabrera in

Ecuador.

21 These depositions include Charles W. Calmbacher, David Chapman, Mark Quarles, Charles Champ, William Powers, Douglas Beltman (for one day, to be continued in December), Richard Kamp, David Mills, Randy Horsak, Joseph Berlinger (for three days and counting), and Alberto Wray (for over two days).

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Applicants had not reached their limit when Judge Kaplan ruled. But they have reached their limit now. Rule 30(a)(2) provides that “[a] party must obtain leave of court, . . . (A) if the parties have not stipulated to the deposition and: (i) the deposition would result in more than 10 depositions being taken under this rule or Rule 31 by the plaintiffs, or by the defendants, or by the third-party defendants.”

22 Absent specific application by a party seeking leave to exceed the limits specified in Rule 30, the taking of more than ten depositions must be denied.23

The protection against abusive discovery practices embodied in Rule 30

22 See Raniola v. Bratton, 243 F.3d 610, 628 (2d Cir. 2001) (specific court approval required); Scanlan v. Potter, No. 1:05 CV 291, 2006 WL 1207748, at *1 (D. Vt. May 4, 2006) (denying request to conduct additional depositions for failing to articulate specific need for more than ten depositions); see also San Francisco Health Plan v. McKesson Corp., 264 F.R.D. 20, 21 (D. Mass. 2010) (“In the absence of an agreement between the parties, to secure leave to depose more than ten persons . . . the party seeking the additional depositions must specify who is to be deposed and the reasons why their testimony is necessary” beyond allowed ten depositions.); Zeinali v. Raytheon Co., No. 07 cv 01852, 2008 WL 4820993, at *1 (S.D. Cal. Nov. 3, 2008) (same). 23 The party seeking more than ten depositions must demonstrate to the satisfaction of the reviewing court that: (i) the discovery sought is not unreasonably cumulative or duplicative, or cannot be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has not had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery does not outweigh its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. See Fed. R. Civ. P. 26(b)(2). Because applicants have not made an Application under the Rule, or briefed these factors, it would be inappropriate to respond preemptively in detail to each factor here. It should be enough that applicants failed to make a request to this Court for leave in the first instance.

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applies to § 1782 actions. Bayer AG v. Betachem, Inc., 173 F.3d 188, 191 (3d Cir.

1999) (“The reference in § 1782 to the Federal Rules suggests that under ordinary circumstances the standards for discovery under those rules should also apply when discovery is sought under the statute.”); Weber v. Finker, 554 F.3d 1379

(11th Cir. 2009) (taking as “given” that “§ 1782(a) directs judges to provide discovery assistance pursuant to the Federal Rules of Civil Procedure”); 28 U.S.C.

§ 1782(a) (“[T]estimony . . . shall be taken . . . in accordance with the Federal

Rules of Civil Procedure.”). That Chevron has filed multiple § 1782 actions in multiple jurisdictions does not obfuscate the fact that Chevron seeks testimony in aid of the same underlying litigation. Nor should it render Rule 30’s application inoperative merely because the various respondents in a foreign litigation reside in different districts across the United States. There is simply no justification for a framework that would allow more discovery in aid of a foreign litigation than would be permitted if the same litigation was prosecuted in the United States. The deposition of Mr. Donziger should be quashed.

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CONCLUSION For these reasons, and the reasons set forth in Mr. Donziger’s brief, the

Order should be reversed, the motions to quash should be granted in their entirety, and the Court should grant all other relief as is just and proper.

Dated: November 22, 2010 New York, New York

EMERY CELLI BRINCKERHOFF & ABADY LLP 75 Rockefeller Plaza, 20th Floor New York, New York 10019 (212) 763-5000

By: /s /Ilann M. Maazel Ilann M. Maazel Jonathan S. Abady O. Andrew F. Wilson Adam R. Pulver

Attorneys for Ecuadorian Plaintiffs-Appellants

Case: 10-4341 Document: 154 Page: 67 11/22/2010 151840 134

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Rule

32(a)(7)(B) of the Federal Rules of Appellate Procedure because it contains 13,961 words, excluding the parts of the brief exempted by

Rule 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Rule

32(a)(5) and the type style requirements of Rule 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word in Times Roman 14-point font.

Dated: November 22, 2010 New York, New York

EMERY CELLI BRINCKERHOFF & ABADY LLP 75 Rockefeller Plaza, 20th Floor New York, New York 10019 (212) 763-5000

By: /s /Ilann M. Maazel Ilann M. Maazel Jonathan S. Abady O. Andrew F. Wilson Adam R. Pulver

Attorneys for Ecuadorian Plaintiffs-Appellants

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SPECIAL APPENDIX

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TABLE OF CONTENTS

PAGE

Exhibit A to Notice of Appeal— Memorandum and Order Appealed From, dated October 20, 2010 ...... SPA-1

Judge Kaplan’s Corrected Opinion Further Explaining Denial of Lago Agrio Plaintiffs’ and Steven Donziger’s Motions to Quash Subpoenas Directed to Steven Donziger, dated November 10, 2010 ...... SPA-10

28240 Client: PATTON Table of ContentsSPA rh 11/22/10 00:00 Case: 10-4341 Document: 154 Page: 70 11/22/2010 151840 134 SPA-1

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------x In re Application of

CHEVRON CORPORATION, et aI., 10 Me 00002 (LAK)

This Document Applies to: ALL CASES ------x

MEMORANDUM AND ORDER

LEWIS A. KAPLAN, District Judge.

Chevron Corporation ("Chevron") is the target oflitigation brought in by the Lago Agrio plaintiffs in which the latter seek to recover $113 billion for alleged environmental pollution by Texaco, Inc. ("Texaco").} Chevron, Rodrigo Perez Pallares, and Richard Reis Veiga, two Chevron attorneys who nowface criminal prosecution inEcuador (the"IndividualPetitioners"), applied under 28 U.S.C. § 1782 to obtain "outtakes" from Joseph Berlinger's documentary Crude.

This Court overruled the objections to the application and ordered production ofthe outtakes?

Although appeals remain pending before the Second Circuit, the Court of Appeals has ordered

Berlinger's compliance with this Court's order to the extent of producing certain categories of outtakes, categories that aggregated more than 85 percent of the total footage.3 This Court also granted Chevron's motion seeking additional discovery from Berlinger.

Basedonthe outtakes, ChevronandtheIndividual Petitioners obtainedtwo additional

Chevron acquired Texaco after Texaco discontinued operations in Ecuador and settled environmental claims with its government.

2 In re Application of Chevron Corp., 709 F. Supp.2d 283 (S.D.N.Y. 2010) (hereinafter Chevron 1).

See Chevron Corp. v. Berlinger, Nos. 10-1919-cv, 10-1966-cv (2d Cir. filed July 15,2010). Case: 10-4341 Document: 154 Page: 71 11/22/2010 151840 134 SPA-2

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2 subpoenas, under 28 U.S.C. § 1782. The new subpoenas seek discovery from Steven R. Donziger, who serves as an attorney-advisor to the Lago Agrio plaintiffs, regarding Donziger's communications and interactions with a supposedly neutral, independent Ecuadorian court- appointed expert, who has rendered a so-called "global assessment" of the case, the Lago Agrio plaintiffs' experts, Ecuadorian courts, the Ecuadorian government, and others affiliated with the plaintiffs. The matter now is before the Court on motions byDonzigerand the Lago Agrio plaintiffs to quash or modify the subpoenas.

Donziger and the Lago Agrio plaintiffs advance several arguments in support of quashing the subpoenas, most notably that (1) discovery from opposing counsel is disfavored, (2) the subpoenas are overbroad and undulyburdensome, (3) the information sought is privileged, and

(4) the statutory and discretionary factors pertinent to Section 1782 applications are not satisfied.

All will be dealt with in detail in a full opinion that the Court will file as promptly as possible. In view ofthe facts that (l) the Individual Petitioners are facing a preliminary hearing in the criminal proceeding inEcuadoronNovember 10, 2010 and (2) the Lago Agrio plaintiffs are seeking to move the Ecuadorian civil litigation to judgment as quickly as possible,4 petitioners have an urgent need for any discovery to which they are entitled here. The Court therefore now rules in this summary form on the motions to quash with the understanding that more extensive findings and conclusions will follow as promptly as the Court's other responsibilities permit.

The Court has had the benefit ofextensive evidentiary submissions, legal briefs, and oral argument. It has had an opportunity to review the Crude outtakes, which are extraordinarily

4 Donziger and the Lago Agrio plaintiffs rejected this Court's suggestion that proceedings in Ecuador be stayed pending a more extended determination ofthese motions. Tr., Sept. 23, 2010, at 34:18-35:9. Case: 10-4341 Document: 154 Page: 72 11/22/2010 151840 134 SPA-3

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3 revealing. On the basis ofthose materials as well as the extensive evidentiary submissions, briefs, and argument, the Court makes the following findings and conclusions.

First. The Section 1782 statutory requirements are satisfied, and the discretionary factors weigh in favor ofdiscovery. The reasons they do so are at least as strong as those which led to the same conclusion in Chevron I, where this Court granted the applications for Section 1782 subpoenas for the Crude outtakes. Moreover, the Individual Petitioners seek documents and testimony from Donziger that are highly relevant to their pending Ecuadorian criminal proceeding while the relevance ofthe evidence sought by Chevron is even clearer than was the case with the outtakes.

The government ofEcuadoris prosecutingthe Individual Petitioners for alleged fraud in connection the Settlement and Final Release agreements among Texaco, the Government of

Ecuador, and Petroecuador, Ecuador's state-owned oil company. These same charges were dropped several years ago after Ecuadorian prosecutors concluded that there was no basis for criminal liability.5 The outtakes, however, depict Donziger, along with others acting for the Lago Agrio plaintiffs, describing their campaign for a renewed criminal investigation ofthe same allegations6 for the purposes of(1) undermining and defeating the agreements to bolstertheir claim that Chevron is liable notwithstanding the prior settlement and (2) exerting pressure on Chevron byprosecuting

Dans Decl. Ex. 11, at 10.

6 See e.g.} id. Ex. 2, CRS-170-00-03 (Donziger states that the plaintiffs have been working with the Prosecutor General's office because there is "no finality" in Ecuador); CRS-198-00- 04 (Donziger and others plan a press conference to pressure the Prosecutor General to bring criminal charges); Hendricks Dec!. II Ex. A, CRS-053-02-02 (Donziger and others brainstorm criminal allegations to use to inspect the offices of Chevron personnel); CRS- 204-01-02 (Donziger suggests making posters showing "Texaco's four accomplices"); CRS-268-00-01 ("[P]erhaps it is time to ask for the head ofPerez Pallares - given what the President said."). Case: 10-4341 Document: 154 Page: 73 11/22/2010 151840 134 SPA-4

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its personnel. The Prosecutor General changed course and reopened the criminal investigation in

light ofnew evidence? within days ofthe completion ofthe ostensibly neutral and impartial "global

assessment" for the civil litigation.

This "global assessment" is the central focus of the discovery that the Individual

Petitioners and Chevron seek. The Lago Agrio court appointed an ostensibly independent expert

to submit a neutral report.8 The outtakes, however, contain substantial evidence that Donziger and

others (1) were involved in exparte contacts with the court to obtain appointment ofthe expert,9 (2) met secretlywith the supposedlyneutral andimpartial expertpriorto his appointmentlO and outlined

a detailed work plan for the plaintiffs' own consultants,ll and (3) wrote some or all ofthe expert's

See Dans Dec!. Ex. 15.

Dkt. 15-2, at 4.

9 See, e.g., Hendricks Dec!. II Ex. A, CRS-158-02-06 (Fajardo mentions three separate meetings with an Ecuadorian judge regarding the global assessment. Fajardo has an idea of which expert will be appointed); CRS-210-02-01 (a representative of the Lago Agrio plaintiffs refer to a meeting with the judge concerning the global expert report); CRS-261- 11-01 (Lago Agrio court "never would have done [the expert's appointment] had [the plaintiffs] not really pushed him.").

10 See, e.g.,id. CRS-187-01-02-01 (court expert Cabrera present at the plaintiffs' March 3 meeting); CRS-187-01-02-02 (Cabrera's introduction at the March 3rd meeting); CRS-187- 01-02-10 ("Today's goal is to define the overall structure of this comprehensive expert examination."); CRS-189-00-01 (Cabrera participates in background conversation at the March 3rd meeting); CRS-189-00-03 (additional footage of the March 3 meeting); CRS- 189-01-01(Cabrera is pictured in the background as the importance of a particular piece of evidence is discussed); ("[T]he work isn't going to be the expert's."); CRS-196-00-01 (one ofthe plaintiffs' expert expressed surprise that there was an advance meeting with the expert in which "everything" was laid out).

11 See, e.g.,id. CRS-189-00-02 (Donziger states that the work definition includes not only evidence and remediation costs but also the expert's opinion. Donziger tells Cabrera that he needs to be comfortable with the work plan.); CRS-191-00-03 (Fajardo makes a presentation regarding coordination with the expert and the Ecuadorian court). Case: 10-4341 Document: 154 Page: 74 11/22/2010 151840 134 SPA-5

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5 final report that was submitted to the Lago Agrio court and the Prosecutor General's Office,t2 supposedly as the neutral and independent product ofthe expert.

In these circumstances, the outtakes and other evidence demonstrate at least a significant need for the discovery sought by the Individual Petitioners and Chevron - discovery concerning, inter alia, the role of the Lago Agrio plaintiffs in selecting and procuring the appointment ofthe expert, in writing his report, and in procuring the reopening ofcriminal charges against the Individual Petitioners. The likely relevance ofthe discovery sought is high.

Second. Itis common ground that depositions ofadversary counsel in civil litigation are disfavored, albeit not prohibited in all circumstances. That generalization, however, does not decide these motions.

As an initial marter, that principle has no bearing with respect to the Individual

Petitioners because the Individual Petitioners seek Donziger's testimony and documents in their attempt to fend off or defeat a criminal prosecution brought or threatened against them by the

Republic ofEcuador. While Donziger appears to have had quite a bit to do with instigating that matter, he does not represent the Republic ofEcuador. Nor are the Individual Petitioners parties in the Lago Agrio litigation. The rationale underlYing the principle that discoverybyone litigant from the attorney for the litigant's adversary is discouraged therefore does not apply to the Individual

Petitioners.

The policy regarding depositions ofadversary counsel is not as palpably irrelevant with respect to Chevron. But it does not carry the day here even as to it. As an initial matter,

12 See, e.g., id. CRS-138-02-01 ("The judge is going to appoint a guy in Ecuador, urn, to be the expert but really, you know, we'll be supporting him with the work - our people, E-Tech, whoever we choose to use."); CRS-158-02-09 (Donziger discusses the advantages and disadvantages ofE-Tech's participation in the global assessment. Donziger does not know ifE-Tech will be "comfortable with the plan"); CRS-191-00-03 ("[T)he work isn't going to be the expert;s;;)(emphasis added). Case: 10-4341 Document: 154 Page: 75 11/22/2010 151840 134 SPA-6

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Donziger is not representing the Lago Agrio plaintiffs before the Ecuadorian courts. He is not admitted to practice there. While he is a member ofthe New York Bar and presumably benefits from his legal training, there is abundant evidence in the outtakes that Donziger's role in connection with events in Ecuador has been at least primarily in capacities other than that ofan attorney. His principal functions have included lobbying, Inedia and press relations, and politics. He has acknowledged in the outtakes that the purported civil litigation in Ecuador "is not a legal case. It's a political battle" in which "[w]e need to get the politics in order in a country that doesn't favor people from the rainforest.,,13 On another occasion he said:

"Hold on a second, you know, this is Ecuador, okay. You can say whatever you want. In the end of the day, there's a thousand people around the courthouse. You're going to get what you want. ***At the end ofthe day, this is all for the Court, just a bunch ofsmoke and mirrors ..."14

Donziger's role at least in major respects is that ofa political operative, not a lawyer. Moreover,

Donziger admitted in March 2007 that he had not done legal work in two years. IS While this comment perhaps was offered in a somewhat jocular vein, there is substantial truth to it.

Inany event, the risk ofencountering privileged material is relatively low given that the subpoena requests are largely related to interactions with third parties, including the court- appointed expert andEcuadoriangovernment officials, and anywork ofplaintiffs' experts submitted to the court-appointed expert are not protected by attorney-client privilege or the work product doctrine.

Third. Although Donziger claims that compliance with the subpoenas would be

13 ld. CRS-060-00-04.

14 ld. CRS-195-05-01.

15 Id. CRS-198-00-06. Case: 10-4341 Document: 154 Page: 76 11/22/2010 151840 134 SPA-7

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7 unduly burdensome, that claim is somewhat conclusory. Donziger speaks in terms ofa "massive" number ofdocuments and the possible need.to produce thousaJ.1.ds ofthem. 16 But no serious effort has been made to quantify the amount of time or effort that would be required. In any case, any burden on Donziger must be counterbalanced against the need for the documents, which is very great indeed.

In these circumstances, the Court is not prepared to find that any burden would be undue. Nor is the Court satisfied that the subpoenas are overbroad, especially given the highly relevant nature ofthe material sought.

Fourth. Donziger's privilege claims have been waived, are premature, or both.

Insofar as he claims privilege with respect to the requested documents, the failure to file a privilege· log as required by Local Civ. R. 26.2 and Fed. R. Civ. P. 26(b)(5) waived the objections. 17 His claims with respect to questions that might be asked ofhim at the deposition cannot be resolved in the abstract.18 The specific communications or other materials with respect to which privilege may be claimed have not beenidentified. Noris there a sufficient basis for determining whether any such cOmhlunications or materials were made when Donzigerwas functioning as a lawyer as opposed to

16 Donziger Aff., at 3.

17 UBS Intern Inc. v. Itete Brasil Instalacoes Telefonicas Ltd., No. 09 Civ. 4286(LAK), 2010 WL 743371, at *3 (S.D.N.Y. Feb. 24, 2010); Five Borough Bicycle Club v. City o/New York, No. 07 Civ. 2448 (LAK), 2008 WL 704209, at *3 (S.D.N.Y. Mar. 10, 2008)(collecting cases).

Provided that Donziger files a complete privilege log on or before October 29, 2010, the Court in the exercise of its discretion may relieve him of the waiver. As he has had the subpoenas since August 9, 2010 and was told on September 23,2010 that he would be well advised to pull the requested materials together, this is ample time. Tr., Sept. 23,2010, at 76:22-77:2.

18 See, e.g., In re Application ofChevron Corp., No. 10 MC 0001 (LAK), 2010 WL 3489341, at *7-8 (S.D.N.Y. Sept. 7, 2010). Case: 10-4341 Document: 154 Page: 77 11/22/2010 151840 134 SPA-8

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perfonning another role. Also lacking, among other things, is any infonnation as to whether the

communications or other materials were made and kept in confidence or disclosed to persons

would have been outside any privilege. Accordingly, Donziger's privilege claims, to whatever

extent theyhave not been waived, are premature at best. The Court does not now intimate any view

with respect to the contention that the crime-fraud exception vitiates any otherwise applicable

privilege. 19

***

In all the circumstances, the motions ofDonziger and the Lago Agrio plaintiffs to

quash the subpoenas to Donziger are denied. Donziger shall comply with them forthwith.

The Court hereby appoints Max Gitter, Esq. as special master to preside over the deposition. The special master shall rule on objections and make such findings of fact and

conclusions oflaw as maybe appropriate to that end. The special master is authorized to direct the witness to answer questions. In the event that the special master directs a witness to answer a question as to which privilege is claimed and the objector wishes to seek review from this Court, the question need not be answered pending this Court's ruling, providedreview is sought bymotion

19 In other Section 1782 proceedings brought by Chevron outside of this district, other courts have concluded that the crime-fraud exception applies here. In re Chevron Corp., No. 10- MC-2IJH/LFG [DIll] (D.N.M. Sept. 13,2010) (finding "that ... discussions trigger the crime-fraud exception, because they relate to corruption of the judicial process, the preparation of fraudulent reports, the fabrication of evidence, and the preparation of the purported expert reports by the attorneys and their consultants."); In re Application of Chevron Corp., No. 10-cv-1146-IEG (Wmc) [DI 9] (S.D. Cal. Sept. 10,2010) (crime-fraud exception applies because "[t]here is ample evidence in the record that the Ecuadorian Plaintiffs secretly provided information to Mr. Cabrera, who was supposedly a neutral court-appointed expert, and colluded with Mr. Cabrera to make it look like the opinions were his own."); Chevron Corp. v. Champ, No.1 :10-mc-0027-GCM-DLH [DI 12] (W.n.N.C. Aug. 30, 2010) ("While this court is unfamiliar with the practices ofthe Ecuadorian judicial system, the court must believe that the concept of fraud is universal, and that what has blatantly occurred in this matter would in fact be considered fraud by any court. If such conduct does not amount to fraud in a particular country, then that country has larger probiems than an oii spiit"). This Court need not yet reach that issue. Case: 10-4341 Document: 154 Page: 78 11/22/2010 151840 134 SPA-9

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9 to this Court within 48 hours ofthe special master's ruling. This Court's review ofprivilege rulings by the special master and the facts upon which they are based shall be de novo. The fees and disbursements ofthe special master shall be born one-third by Chevron, one-third bythe Individual

Petitioners, and one-third by Donziger unless otherwise ordered.

SO ORDERED.

Dated: October 20, 2010 Case: 10-4341 Document: 154 Page: 79 11/22/2010 151840 134 SPA-10 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 1 of 54

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------x In re Application of

CHEVRON CORPORATION, et al., 10 MC 00002 (LAK)

This Document Applies to ALL CASES ------x

OPINION (CORRECTED)

Appearances:

Randy M. Mastro Bruce S. Kaplan Scott A. Edelman Robert D. Kaplan Kristen Hendricks Ellen London Andrew E. Neuman FRIEDMAN KAPLAN SEILER & ADELMAN LLP William E. Thomson Attorneys for Movant Steven R. Donziger GIBSON DUNN & CRUTCHER LLP Attorneys for Chevron Corporation Ilann M. Maazel Jonathan S. Abady Paul E. Dans Adam Pulver Jorge A. Mestre O. Andrew F. Wilson EMERY CELLI BRINCKERHOFF & ABADY LLP Andrés Rivero Attorneys for Lago Agrio Plaintiffs RIVERO MESTRE & CASTRO Attorneys for Rodrigo Pérez Pallares

Alan Vinegrad Jason P. Criss John Han COVINGTON & BURLING LLP Attorneys for Ricardo Reis Veiga Case: 10-4341 Document: 154 Page: 80 11/22/2010 151840 134 SPA-11 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 2 of 54

Table of Contents

Facts...... 3 I. The Present Posture of the Ecuadorian Proceedings and the Urgency of this Matter...... 3 II. Crude, Donziger’s Central Role in the Events at Issue, and these Subpoenas. . . . 5 III. The U.S. Litigation Against Texaco and Chevron...... 9 A. Texaco’s Operations in Ecuador...... 9 B. The Aguinda Action...... 10 IV. The Settlement and Release...... 11 V. The Ecuadorian Litigation and Criminal Prosecutions...... 12 A. The Lago Agrio Litigation, the Global Assessment and Other Evidence of Misconduct...... 12 B. The Initial Criminal Investigation...... 19 C. Donziger Solicits the Making of Crude...... 20 D. President Correa Takes Office...... 20 VI. The UNCITRAL Arbitration...... 25 VII. The Nature of Donziger’s Activities...... 26 A. The March 30, 2006 Intimidation of the Judge...... 28 B. The Plan to Pressure the Court With an “Army”...... 29 C. Killing the Judge?...... 31

Discussion...... 32 I. Judicial Code Section 1782...... 32 A. Statutory Requirements...... 33 B. Discretionary Factors...... 34 II. Deposition of Adverse Counsel...... 36 A. The Need to Depose Donziger...... 37 B. Donziger’s Role...... 38 C. Extent of Discovery Already Conducted...... 40 D. Risk of Encountering Privilege and Work-Product Issues...... 40 1. Basic Principles...... 41 2. The Normal Means of Claiming Privilege...... 44 3. Application to Donziger...... 46 III. The Proposed Modification of the Subpoenas...... 50

Conclusion...... 52 Case: 10-4341 Document: 154 Page: 81 11/22/2010 151840 134 SPA-12 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 3 of 54

LEWIS A. KAPLAN, District Judge.

Chevron is the target of litigation brought in Ecuador by the so-called Lago Agrio plaintiffs1 in which the latter seek to recover $113 billion2 for alleged environmental pollution by

Texaco, Inc. (“Texaco”), from Texaco’s current owner, Chevron Corporation (“Chevron”).3

Rodrigo Pérez Pallares and Ricardo Reis Veiga (the “Individual Petitioners”) are facing criminal charges there as a result of having signed a settlement of such claims on behalf of Texaco some years ago. The criminal charges at least in part are a result of an alliance between the Lago Agrio plaintiffs and the Ecuadorian government, which has both financial and political interests in the success of the lawsuit. Chevron and the Individual Petitioners are seeking to defend themselves by obtaining discovery in the United States under Section 1782 of the Judicial Code,4 which they believe will demonstrate that both the civil litigation and the criminal prosecution in Ecuador have been tainted by fraud and other misconduct by the Lago Agrio plaintiffs and improper collusion among them and the government of Ecuador (“GOE”).

At the heart of this matter is Steven R. Donziger, a member of the New York Bar but, much more importantly, the field general of the Lago Agrio plaintiffs’ efforts in Ecuador – efforts that include lobbying, media and public relations, fund raising, and other activities. Chevron and

1 The Lago Agrio plaintiffs are forty-eight individuals.

2 In September 2010, the Lago Agrio plaintiffs raised their damages assessment, in a submission to the Lago Agrio court, to $113 billion at the high end of the range, which is significantly greater than the $27 billion figure in the report published by the supposedly independent court-appointed expert.

3 Chevron acquired Texaco in 2001, after Texaco discontinued operations in Ecuador and settled environmental claims with its government.

4 28 U.S.C. § 1782. Case: 10-4341 Document: 154 Page: 82 11/22/2010 151840 134 SPA-13 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 4 of 54

2 the Individual Petitioners here subpoenaed Donziger to produce documents and to give testimony, as they maintain that Donziger is the prime actor, or among the prime actors, in the alleged fraud and misconduct. Donziger moved to quash the subpoenas. Most significantly, he argued in substance that his status as an attorney involved adversely to Chevron and the Individual Petitioners in the Ecuadorian litigation protects him from (1) being compelled to assert his claims of attorney- client privilege and work product protection on a document-by-document, communication-by- communication basis and thus depriving Chevron and the Individual Petitioners of a meaningful opportunity to challenge those claims and (2) giving evidence even as to obviously non-privileged matters.

It is common ground that one party to a litigation should not easily be permitted to take discovery of the lawyers on the other side. The possibilities for mischief and abuse are too great. In the quite unusual circumstances of this case, however, the need for the discovery, the plainly unprivileged nature of many of Donziger’s activities, the evidence of possible fraud and misconduct by Donziger, and other considerations are sufficiently great to require that Donziger respond on the merits to the subpoenas. He must give discovery as to non-privileged matters. He must not be exempted from making specific claims of privilege or from defending those claims against any challenges. Accordingly, the Court denied the motions to quash and required compliance, saving to Donziger the ability to make specific claims of privilege for later adjudication by the Court. It did so in a summary order5 with the promise of a fuller opinion to follow. This is that fuller opinion.

5 In re Application of Chevron Corp., No. 10 MC 00002 (LAK), 2010 WL 4118093 (S.D.N.Y. Oct. 20, 2010). Case: 10-4341 Document: 154 Page: 83 11/22/2010 151840 134 SPA-14 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 5 of 54

Facts

I. The Present Posture of the Ecuadorian Proceedings and the Urgency of this Matter

It is important to begin with a brief statement of the present posture of matters in

Ecuador, which has two especially significant aspects.

First, the Ecuadorian court in which the civil case is pending appointed a supposedly neutral, independent Ecuadorian expert, Richard Stalin Cabrera Vega, to render a “global assessment” of the claim. Cabrera has recommended a multi-billion dollar award against Chevron.

As will appear, however, there is substantial evidence that (1) Cabrera was appointed as a result of

Lago Agrio plaintiffs’ ex parte contacts with and pressure on the Ecuadorian courts, (2) at least part of his report was written by consultants retained by the Lago Agrio plaintiffs, and (3) the report was passed off as Cabrera’s independent work. In short, there is evidence to support Chevron’s claim that the “global assessment” is a fraud orchestrated by the Lago Agrio plaintiffs. There is evidence too that other expert evidence submitted to the Ecuadorian courts on behalf of those plaintiffs also was fraudulent. Chevron thus stands in jeopardy of a huge judgment that, if ultimately rendered, could be the result of a fraud practiced by the Lago Agrio plaintiffs.

Second, the Lago Agrio plaintiffs are attempting to procure the criminal prosecution of the Individual Petitioners. The reason they do so relates to the fact Texaco long ago entered into a settlement with the GOE, signed on its behalf by the Individual Petitioners, which may well have released the claims upon which the Lago Agrio plaintiffs sue. A criminal prosecution of the

Individual Petitioners, especially a successful one, would overcome or at least help to overcome that obstacle – especially in a country in which, at least according to Donziger: “You can solve anything with politics as long as the judges are intelligent enough to understand the politics . . . . [T]hey Case: 10-4341 Document: 154 Page: 84 11/22/2010 151840 134 SPA-15 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 6 of 54

4 don‘t have to be intelligent enough to understand the law, just as long as they understand the politics.”6

Until recently, the Lago Agrio plaintiffs’ efforts to instigate criminal charges against the Individual Petitioners were unsuccessful, as Ecuadorian prosecutors had rejected their claims.

But the political climate in Ecuador has changed, and these plaintiffs have obtained the support of the Ecuadorian president. The president, after at least one meeting with plaintiffs’ representatives, called for the prosecution of these and other individuals involved in the settlement. Cabrera’s

“global assessment” then was submitted to the prosecutor who, soon thereafter, reopened criminal proceedings against the Individual Petitioners, citing new evidence. A preliminary hearing – which will determine whether the Individual Petitioners must stand trial – is scheduled for November 10,

2010. The Individual Petitioners therefore have an urgent need quickly to obtain evidence of the allegedly fraudulent nature of the global assessment and of any misconduct by the Lago Agrio plaintiffs and the GOE with respect to the criminal prosecution.

As the foregoing demonstrates, the parties are engaged in a race – the Lago Agrio plaintiffs to bring the Ecuadorian proceedings to a close and Chevron and the Individual Petitioners to obtain evidence that they hope will demonstrate that the proceedings against them have been tainted. The Lago Agrio plaintiffs have refused to stay or cooperate in efforts to stay the Ecuadorian proceedings pending resolution of this and other efforts by Chevron and the Individual Petitioners to obtain proof of their allegations through the collection of evidence in the United States. They thus have forced this and other courts to choose between conducting expedited proceedings or depriving

Chevron and the Individual Petitioners of meaningful opportunities to obtain relief here.

6 Hendricks Decl. II Ex. A, CRS-129-00-02. Case: 10-4341 Document: 154 Page: 85 11/22/2010 151840 134 SPA-16 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 7 of 54

II. Crude, Donziger’s Central Role in the Events at Issue, and these Subpoenas

Chevron and the Individual Petitioners have responded to their plight in Ecuador by bringing a series of actions in the United States under Section 1782 of the Judicial Code7 to obtain discovery in aid of the Lago Agrio litigation and of a related international arbitration in which

Chevron claims, among other things, that it is being denied due process in Ecuador. Many U.S. courts have granted such discovery,8 which has focused in part on the effort to demonstrate that the global assessment and evidence submitted in Ecuador have been fraudulent, at least in significant respects.

Donziger is at the center of this controversy. While he is a member of the New York

Bar and years ago worked on a predecessor to the Lago Agrio lawsuit that was brought in this Court, he is not qualified to practice law in Ecuador. He does not serve as litigation counsel there. He nevertheless has been extremely active in support of the Lago Agrio plaintiffs.

The evidence before this Court shows that Donziger has attempted to (1) intimidate the Ecuadorian judges, (2) obtain political support for the Ecuadorian lawsuit, (3) persuade the GOE to promote the interests of the Lago Agrio plaintiffs, (4) obtain favorable media coverage, (5) solicit

7 28 U.S.C. § 1782.

8 In re Application of Chevron Corp., No. 1:10-mi-00076 (N.D. Ga. Mar. 2, 2010) (Calmbacher); Chevron v. Stratus Consulting, Inc., No. 10-cv-00047 (D. Colo. Mar. 4, 2010); In re Application of Chevron Corp., No. 4:10-mc-134 (S.D. Tex. Apr. 5, 2010) appeal docketed, No. 10-20389 (5th Cir. June 11, 2010) (3TM); In re Application of Chevron Corp., No. 2:10-cv-02675 (D.N.J. June 15, 2010), appeal docketed, No.10-2815 (3d Cir. June 18, 2010) (UBR); In re Application of Chevron Corp., No. 10-cv-1146-IEG (WMc) (S.D. Cal. June 23, 2010) (E-Tech); In re Application of Chevron Corp., No. 1:10-mc-00371 (D.D.C. July 22, 2010) (Wray); In re Application of Chevron Corp., No. 3:10-cv-00686 (M.D. Tenn. Aug. 17, 2010), appeal docketed, No.10-6035 (6th Cir. Aug. 25, 2010) (Quarles); Chevron Corp. v. Champ, No. 1:10-mc-0027-GCM-DLH (W.D.N.C. Aug. 30, 2010); In re Chevron Corp., No. 10-MC-21JH/LFG (D.N.M. Sept. 1, 2010) (Kamp). Case: 10-4341 Document: 154 Page: 86 11/22/2010 151840 134 SPA-17 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 8 of 54

6 the support of celebrities (including Daryl Hannah and Trudie Styler) and environmental groups,

(6) procure and package “expert” testimony for use in Ecuador, (7) pressure Chevron to pay a large settlement, and (8) obtain a book deal. Among his efforts was his persuasion of Joseph Berlinger, a documentary film maker, to make a documentary about the Lago Agrio litigation from the plaintiffs’ point of view. That film, entitled Crude, purports to tell the story of the Lago Agrio litigation. It is no exaggeration to say that Donziger is the star of the film, much of which focuses on his words and activities.

Crude contains a good deal of material that casts Donziger and his cause in a negative light, although that doubtless was not the aura in which he expected to appear when he acted and spoke before Mr. Berlinger’s cameras. Crude itself contains evidence that (1) Donziger participated in a supposedly neutral focus group conducted by one Carlos Beristain, who provided a report used by Cabrera to support the damages assessment, thus calling into question the impartiality of the global assessment,9 (2) Donziger engaged in “what he called ‘pressure tactics’ to influence a judge to prevent the judicial inspection of a laboratory allegedly being used by the Lago Agrio plaintiffs to test for environmental contamination . . . [and] declare[d] that ‘[t]his is something you would never do in the United States, but Ecuador, you know, this is how the game is played, it’s dirty,’”10

(3) “suggest[s] the possibility of misconduct on the part of both [Donziger] and GOE” in connection with the prosecution of the Individual Petitioners,11 and (4) an associate of Donziger’s

9 In re Application of Chevron Corp., 709 F. Supp. 2d 283, 296 (S.D.N.Y. 2010) (hereinafter Chevron I).

10 Id.

11 Id. at 298. Case: 10-4341 Document: 154 Page: 87 11/22/2010 151840 134 SPA-18 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 9 of 54

“coordinat[ed] everything” with the president of Ecuador.12 But the content of the publicly released documentary film has proved to be only the tip of the iceberg.

Crude prompted Chevron and the Individual Petitioners to seek production of Mr.

Berlinger’s outtakes – the footage he shot that did not appear in the film. That effort was largely successful,13 and more than 85 percent of all of the outtakes now have been produced.

The outtakes are even more disturbing. They contain statements by Donziger that the Ecuadorian court system is corrupt, that the Lago Agrio plaintiffs can prevail only by pressuring and intimidating the courts, and that the facts have to be twisted to support the plaintiffs’ theories.

Donziger’s own words raise substantial questions as to his possible criminal liability and amenability to professional discipline. Among his other statements in the outtakes are these:

“They’re all [i.e., the Ecuadorian judges] corrupt! It’s – it’s their birthright to be corrupt.”14

“The only language that I believe this judge is going to understand is one of pressure, intimidation and humiliation. And that’s what we’re doing today. We’re going to let him know what time it is. . . . As a lawyer, I never do this. You don’t have to do this in the United States. It’s dirty. . . . It’s necessary. I’m not letting them get away with this stuff.”15

“The judicial system is so utterly weak. The only way that you can secure a fair trial is if you do things like that. Like go in and confront the judge with media around and fight and yell and scream and make a scene. That would never happen in the

12 Id. at 289, 296.

13 See id.

14 Hendricks Decl. II Ex. A, CRS-053-02-03.

15 Id., CRS-052-00-06. Case: 10-4341 Document: 154 Page: 88 11/22/2010 151840 134 SPA-19 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 10 of 54

United States or in any judicial system that had integrity.”16

“Science has to serve the law practice; the law practice doesn’t serve science.”17

“At the end of the day, this is all for the Court, just a bunch of smoke and mirrors and bullshit.”18

“I once worked for a lawyer who said something that I have never forgotten. Facts do not exist. Facts are created. Ever since that day, I realized how the law works.”19

Nor do the outtakes stand alone. There is evidence obtained in other Section 1782 actions brought by Chevron that Donziger and others associated with him have presented false evidence and engaged in other misconduct in Ecuador. Indeed, the overall record has resulted in findings by three other district courts, in Chevron’s Section 1782 proceedings against other respondents involved in the plaintiffs’ efforts in the Lago Agrio case, that any claims of attorney- client privilege were overcome by the crime-fraud exception.20

16 Id., CRS-053-02-01.

17 Id., CRS-158-02-09.

18 Id., CRS-195-05-01.

19 Id., CRS-198-00-06.

20 In re Chevron Corp., No. 10-MC-21 (J/LFG) [DI 11] (D.N.M. Sept. 13, 2010) (finding “that . . . discussions trigger the crime-fraud exception, because they relate to corruption of the judicial process, the preparation of fraudulent reports, the fabrication of evidence, and the preparation of the purported expert reports by the attorneys and their consultants.”); In re Application of Chevron Corp., No. 10-cv-1146-IEG (WMc) [DI 9] (S.D. Cal. Sept. 10, 2010) (crime-fraud exception applies because “[t]here is ample evidence in the record that the Ecuadorian Plaintiffs secretly provided information to Mr. Cabrera, who was supposedly a neutral court-appointed expert, and colluded with Mr. Cabrera to make it look like the opinions were his own.”); Chevron Corp. v. Champ, No. 1:10-mc-0027 (GCM-DLH) [DI 12] (W.D.N.C. Aug. 30, 2010) (“While this court is unfamiliar with the practices of the Ecuadorian judicial system, the court must believe that the concept of fraud is universal, and that what has blatantly occurred in this matter would in fact be considered fraud by any Case: 10-4341 Document: 154 Page: 89 11/22/2010 151840 134 SPA-20 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 11 of 54

Following production of the outtakes, Chevron and the Individual Petitioners obtained the subpoenas at issue here. In brief summary, these subpoenas seek documents and deposition testimony from Donziger regarding his interactions and communications with (1) the supposedly neutral, independent Ecuadorian court-appointed expert who rendered the so-called

“global assessment” of the case, (2) the Lago Agrio plaintiffs’ experts, (3) the Ecuadorian courts,

(4) the GOE, and (5) others affiliated with the plaintiffs. The matter then came before the Court on motions by Donziger and the Lago Agrio plaintiffs to quash the subpoenas.

With this overall view of where matters stand in Ecuador and how the present controversy developed, the Court turns to a more detailed consideration of the pertinent facts.

III. The U.S. Litigation Against Texaco and Chevron

This dispute arises in the context of nearly two decades of litigation concerning oil exploration and extraction in Ecuador by Texaco, which became a wholly-owned subsidiary of

Chevron in 2001.21

A. Texaco’s Operations in Ecuador

In 1964, Texaco Petroleum Company (“TexPet”), a subsidiary of Texaco, began oil exploration and drilling in the Oriente region of eastern Ecuador. In the following year, TexPet

court. If such conduct does not amount to fraud in a particular country, then that country has larger problems than an oil spill.”).

21 The background of this matter is further described in other decisions of this Court and the Second Circuit. See generally Jota v. Texaco, Inc., 157 F.3d 153 (2d Cir. 1998); Republic of Ecuador v. ChevronTexaco Corp., 376 F. Supp. 2d 334 (S.D.N.Y. 2005); Aguinda v. Texaco, 945 F. Supp. 625 (S.D.N.Y. 1996); Aguinda v. Texaco, Inc., 142 F. Supp. 2d 534 (S.D.N.Y. 2001). Case: 10-4341 Document: 154 Page: 90 11/22/2010 151840 134 SPA-21 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 12 of 54

10 started operating a petroleum concession for a consortium owned in equal shares by TexPet and Gulf

Oil Corporation (the “Consortium”). The GOE thereafter acquired Gulf’s interest through its state- owned oil company, Petroecuador, and the GOE became the majority stakeholder in the Consortium in 1976. TexPet operated a trans-Ecuadorian oil pipeline and the Consortium’s drilling activities until 1990, when Petroecuador assumed those functions. Two years later, TexPet relinquished all of its interests in the Consortium, leaving it owned entirely by Petroecuador.22 While not especially important to the matter immediately at issue here, it is interesting that whatever pollution may have occurred in the past eighteen years thus seems to have been the responsibility of the GOE, not

Chevron or Texaco.

B. The Aguinda Action

In 1993, a group of residents of the Oriente region brought a class action in this Court against Texaco arising from TexPet’s role in the Consortium. The complaint, captioned Aguinda v. Texaco, alleged that “between 1964 and 1992 Texaco’s oil operation activities polluted the rain forests and rivers in Ecuador.” The plaintiffs sought billions of dollars on a variety of theories, including negligence, strict liability, and equity, to “redress contamination of the water supplies and environment.”23 Donziger, then two years out of law school, was one of the lawyers who represented the plaintiffs.

Texaco sought dismissal of the Aguinda action on the ground of forum non conveniens. It argued, among other things, that Ecuador was an adequate and appropriate alternative

22 Aguinda v. Texaco, Inc., 303 F.3d 470, 473 (2d Cir. 2002).

23 See Republic of Ecuador, 376 F. Supp. 2d at 341. Case: 10-4341 Document: 154 Page: 91 11/22/2010 151840 134 SPA-22 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 13 of 54

11 forum. This Court ultimately dismissed the case on forum non conveniens grounds in 2001,24 and the Second Circuit affirmed.25

IV. The Settlement and Release

While the Aguinda litigation was pending in New York, TexPet in 1995 entered into a settlement agreement with the GOE and Petroecuador (the “Settlement”) whereby TexPet agreed to perform specified remedial environmental work in exchange for a release of claims by the GOE.

The release, which covered TexPet, Texaco, and related companies, encompassed “all the

Government’s and Petroecuador’s claims against the Releases for Environmental Impact arising from the Operations of the Consortium, except for those related to the obligations contracted” under the Settlement, which were to be “released as the Environmental Remedial Work is performed to the satisfaction of the Government and Petroecuador.”26

Three years later, the GOE entered into an agreement with TexPet (the “Final

Release”) according to which the GOE agreed that the Settlement had been “fully performed and concluded” and “proceede[ed] to release, absolve, and discharge” TexPet and related companies

“from any liability and claims . . . for items related to the obligations assumed by TexPet” in the

Settlement.27

24 See Aguinda, 142 F. Supp. 2d 534.

25 See Aguinda, 303 F.3d 470.

26 Republic of Ecuador, 376 F. Supp. 2d at 341-42.

27 Id. at 342. Case: 10-4341 Document: 154 Page: 92 11/22/2010 151840 134 SPA-23 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 14 of 54

V. The Ecuadorian Litigation and Criminal Prosecutions

A. The Lago Agrio Litigation, the Global Assessment and Other Evidence of Misconduct

In 2003, following the dismissal of the Aguinda action by this Court, a group of

Ecuadorians, including a number of the Aguinda plaintiffs, sued Chevron in Lago Agrio, Ecuador

(the “Lago Agrio litigation”). The Lago Agrio plaintiffs assert, among other things, claims for damages for deterioration of their health and the environment. They do so under an Ecuadorian statute – enacted in 1999, and thus after the Final Release – that purports to permit such actions by persons “directly affected.”28 The defendants contend that the statute impermissibly purports to allow plaintiffs to assert, as private attorneys-general, claims that belonged to the GOE but that were released pursuant to the Settlement and Final Release.29 Interestingly, the GOE later announced that it would receive ninety percent of any recovery for remediation purposes.30

It is unnecessary for present purposes to trace all of the twists and turns of the Lago

Agrio litigation. It is, however, important to focus on the fact that the Lago Agrio court, to complete the “final evidentiary phase” of the litigation, ordered the “global assessment” referred to above.

On March 19, 2007, it appointed Cabrera to serve as an independent expert. Cabrera was officially sworn on June 13, 2007, promising to “perform his duties faithfully and in accordance with science,

28 Hendricks Decl. I Ex. BB, ¶ 28.

29 Republic of Ecuador, 376 F. Supp. 2d at 342.

30 Dans Decl. Ex. 21, at 2. Case: 10-4341 Document: 154 Page: 93 11/22/2010 151840 134 SPA-24 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 15 of 54

13 technology, and the law, with complete impartiality and independence vis-à-vis the parties.”31 On

March 28, 2008, Cabrera set the amount of damages at $16 billion and filed his report several days later. Cabrera amended his report on November 17, 2008, raising the damages figure to $27 billion.

But that is not even remotely the whole story.

For one thing, the outtakes reveal Pablo Fajardo, one of the Lago Agrio plaintiffs’

Ecuadorian lawyers,32 describing several apparently ex parte meetings he had with an Ecuadorian judge – before Cabrera was appointed – regarding the global assessment and the appointment of a neutral and impartial expert to conduct it. In the course of doing so, he stated that he had a pretty good idea of who would be appointed.33 This appears to have been an understatement.

Donziger boasted in the Crude outtakes that Cabrera “never would have [been appointed] had we not really pushed him.”34 And the outtakes confirm that the Lago Agrio plaintiffs indeed did know in advance that Cabrera would be the appointee. On March 3, 2007, more than two weeks before the appointment, they held an all-day meeting – attended by Cabrera, Donziger, plaintiffs’ Ecuadorian counsel, and partisan experts retained by the plaintiffs – to plan the report that

Cabrera would issue. During that meeting, Fajardo informed the group that the goal of the meeting was to “define the overall structure of [the] comprehensive expert examination.”35 Donziger later

31 Request for Judicial Notice [DI 15] Ex. B - Part 1, at 4.

32 As Crude and the outtakes make clear, Fajardo and Donziger are close associates.

33 Hendricks Decl. II Ex. A, CRS-158-02-06.

34 Id., CRS-361-11-01.

35 Id., CRS-187-01-02-02. Case: 10-4341 Document: 154 Page: 94 11/22/2010 151840 134 SPA-25 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 16 of 54

14 clarified that the plaintiffs’ work plan would involve not only evidence and remediation, but also writing the expert’s opinion.36

The Crude outtakes reveal that Fajardo presented a PowerPoint presentation during the morning session that outlined the Plan Para Examen Pericial Global, or Plan for the Global

Expert Assessment.37 He emphasized that everyone would contribute to the report, explaining:

“And here is where we do want the support of our [i.e., the Lago Agrio plaintiffs’] entire technical team . . . of experts, scientists, attorneys, political scientists, so that all will contribute to that report

– in other words – you see . . . the work isn’t going to be the expert’s. All of us bear the burden.”38

Someone asked whether the final report would be prepared only by the expert. Fajardo responded that the expert would “sign the report and review it. But all of us . . . have to contribute to that

36 Id., CRS-189-00-02.

37 Id., CRS-187-01-02.

38 Id., CRS-191-00-03 (emphasis added).

Chevron and the Lago Agrio plaintiffs disagree about a portion of the translation of this clip. The disagreement, however, is immaterial for two reasons. First, the Lago Agrio plaintiffs do not dispute that Fajardo said “the work isn’t going to be the expert’s.” They instead quibble over a subsequent statement. Second, all agree that one of the plaintiffs’ American experts, through a translator, asked Fajardo in substance whether “the final report [is] going to be prepared only by the expert?” (In the alternate translation, the question is “will the final report be prepared by the expert alone?). The Lago Agrio plaintiffs contend that Fajardo responded, “What the expert will do is give his criteria . . . right . . . his opinion, and sign the report, and review it as well. But we, all of us, have to contribute to the report. Together, right.” Chevron’s translation attributes the following statement to Fajardo: “What the expert is going to do is [unintelligible] and sign the report and review it. But all of us [unintelligible] have to contribute to that report.” The substance of both translations therefore is the same. It is not disputed that the Lago Agrio plaintiffs planned to make a significant contribution to the Cabrera’s report, quarreling only as to whether Cabrera would have some limited involvement. And if there were any remaining doubt about the Lago Agrio plaintiffs’ intent, the lunch meeting the following day, which was conducted in English, offers clarity. Case: 10-4341 Document: 154 Page: 95 11/22/2010 151840 134 SPA-26 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 17 of 54

15 report.”39 Plaintiffs’ consultant Ann Maest said, “Together?,” which Fajardo confirmed. Maest then stated, “But not Chevron,” a comment met with widespread laughter.40

In the afternoon session, the group discussed the “work plan,” the first document that

Cabrera would be required to sign and file with the Ecuadorian court.41 Donziger proposed that he and the U.S.-based consultants form a “work committee” to present a “draft plan” in a few days.42

Looking at Cabrera, Donziger then said, “and Richard, of course you really have to be comfortable with all that. And we’ll also define the support the expert needs.”43 The recording of the meeting ended with Donziger commenting, “We could jack this thing up to $30 billion in one day.”44

Outtakes recorded on the following day reveal that Donziger made clear to one of plaintiffs’ U.S. environmental consultants that everything the plaintiffs were doing was to be concealed from Chevron, his “goal [being] that they don’t know shit.”45 During the same lunch, the consultants told Donziger that there was no evidence that contamination from the pits had spread

39 Id.

40 Id.

41 Id., CRS-189-00-02.

42 Id.

43 Id.

It is interesting, and possibly significant, that Donziger and Cabrera, soon to be appointed the neutral and impartial expert, already were on a first-name basis.

44 Hendricks Decl. I Ex. A, CRS-193-00-01.

45 Hendricks Decl. II Ex. A, CRS-196-00-01. Case: 10-4341 Document: 154 Page: 96 11/22/2010 151840 134 SPA-27 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 18 of 54

16 into the surrounding groundwater. Donziger responded, saying “You can say whatever you want and at the end of the day, there’s a thousand people around the courthouse, you’re going to get what you want,” and “[t]herefore, if we take our existing evidence on groundwater contamination, which admittedly is right below the source . . . [a]nd wanted to extrapolate based on nothing other than our

. . . theory,” then “[w]e can do it. And we can get money for it.”46 He went on saying, “[T]his is all for the Court just a bunch of smoke and mirrors and bullshit.”47 When one consultant argued that

“there is not enough information on that groundwater” and that “the one hole in the remediation, is the water,” Donziger broke off the discussion, stating, “There’s another point I got to make to these guys, but I can’t get this on camera,” and the footage ended.48 Nor was that the only occasion during lunch in which Donziger asked to go off the record. When one expert commented that it had been

“bizarre” to have Cabrera present at the meeting the day before, Donziger instructed the expert not to talk about that fact and told the camera operator that those comments were off the record.49 The expert elaborated that he was surprised that there had been a meeting during which “everything” had been laid out while the expert was present.50

Thus, the Crude outtakes give substantial reason to believe that Cabrera, the supposedly neutral expert, worked in collusion with the plaintiffs and that his report was written,

46 Id., CRS-195-05-01.

47 Id.

48 Id.

49 Id., CRS-196-00-01.

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17 at least in major part, by plaintiffs and their consultants.51 And that suspicion is supported by other evidence.52 Another example relates to Dr. Charles William Calmbacher, one of the plaintiffs’ experts. Earlier in the litigation, the court directed that the plaintiffs and Chevron jointly investigate and report on conditions at a number of former Consortium production sites.53 The plaintiffs selected Calmbacher to act as their expert in charge of the inspections and to report with respect to some of the sites.54 In early 2005, reports were filed in his name for two of those sites, each purporting to show extensive environmental damage.55 In March 2010, however, Dr. Calmbacher testified in a Section 1782 deposition as follows:

“Q . . . To the extent that someone took this signature page that is currently attached at the last page of Exhibit 12 and attached it to this report and represented to the Court in Lago Agrio that you had written this report and reached these conclusions, that would be false, correct? A. That’s correct. I did not reach these conclusions and

51 Chevron challenged Cabrera’s appointment in Ecuador. The Lago Agrio plaintiffs responded that he was impartial. Neuman Decl. Ex. C, at 2.

52 Prior to the submission of the first Cabrera report in March 2008, plaintiffs’ consulting experts sent English language emails regarding proposed language for a summary report and other annexes to a translation service. Neuman Decl. Ex. U, at 141. Another email exchange reflected correspondence about an “attached proposed global damages assessment” and an “[attached] draft Summary Report.” Id. at 136, 546. Finally, a linguistic analysis of the Cabrera report found that certain sections were written by a native English speaker and translated to Spanish, while a native Spanish speaker wrote other sections of the report. Hendricks Decl. II Ex. S, at 6. There is no evidence that Cabrera, an Ecuadorian, is a native English speaker.

53 Hendricks Decl. I Ex. EE, ¶ 44.

54 In re Application of Chevron Corp., No. 1:10-MI-0076-TWT-GGB, Order, at 2 (N.D. Ga. dated Mar. 2, 2010).

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I did not write this report.”56

“Q. So the conclusions in the expert report for Shushufindi 48, Exhibit 13, to the extent they’re presented to the Court as conclusions you reached, that presentation would be false, correct? A. Correct.”57

“Q. Did you ever find that any of the sites that you inspected required any further remediation? A. No.”58

“Q. While you were working as a judicial inspection expert for the plaintiffs, did you ever conclude that TexPet had failed to adequately remediate one of the sites? A. I didn’t no.”59

Dr. Calmbacher made clear also that he had “discussed what [his] findings were on this site and others” with Donziger and believes that Donziger would have known that the reports submitted over

Calmbacher’s name were not authorized by Calmbacher.60 He testified as well that Donziger told him that “he wanted the answer to be that there was contamination and people were injured . . .

[b]ecause it makes money. That’s what wins his case.”61

There is still more disturbing evidence. Prior to the start of the global inspection, the

Lago Agrio plaintiffs performed analyses of purported judicial inspection samples that bore the name “Selva Viva Laboratory” on the chain of custody forms. According to Dr. Calmbacher, however, there is no Selva Viva Laboratory in Ecuador – it in fact was the plaintiffs’ team’s hotel

56 Hendricks Decl. I Ex. DD, at 116:9-10.

57 Id. at 117:16-20.

58 Id. at 113:23-25.

59 Id. at 115:15-19.

60 Id. at 118:15-119:1.

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19 room, where they apparently did some rudimentary tests.62 Indeed, Selva Viva is an entity organized in Ecuador in 2004; Donziger is the president.63

B. The Initial Criminal Investigation

In 2003, the same year in which the Lago Agrio litigation was filed, the GOE filed a criminal complaint against the Individual Petitioners and former GOE and Petroecuador officials, alleging that they had falsified public documents in connection with the Settlement and Final

Release and had violated Ecuador’s environmental laws.

In 2004, the Ecuadorian Prosecutor General began an investigation of the criminal charges. The Ecuadorian Deputy Attorney General explained in an email to plaintiffs’ counsel in the Lago Agrio litigation that the criminal prosecutions were potentially a “way to nullify or

62 Id. at 132:11-133:19, 107:15-108:2.

63 Hendricks Decl. I Ex. BB.

In other disturbing incidents, Donziger appears to have used a remediation cost estimate that he knew to have been overstated.

One of plaintiffs’ consulting experts, David Russell, in 2003 estimated that the cost of the environmental clean-up would be $6 billion. In late January 2006, Amazon Watch, a non- governmental organization closely allied with Donziger and the Lago Agrio plaintiffs, cited that estimate in a letter to the U.S. Securities and Exchange Commission that accused Chevron of securities law violations in relation to its disclosures about the Lago Agrio litigation. On February 14, 2006, Russell directed Donziger to stop using that estimate because it was “too high by a substantial margin, perhaps by a factor of ten, or more” and said that he would so testify if subpoenaed. Hendricks Decl. II Ex. TT. Donziger, however, continued to use the $6 billion cost estimate. See id. Ex. A, CRS-023-07-04, CRS-116-01- 01, CRS-38-02-02.

Another incident occurred later in 2006. A different expert estimated the clean-up cost at $3 billion. Id. Ex. VV. Donziger then wrote to him as follows: “GUARD THAT NUMBER WITH YOUR LIFE PLEASE. DO NOT TELL ANYBODY. THIS HAS A WAY OF GETTING BACK TO TEXACO.” Id. (emphasis in original). Case: 10-4341 Document: 154 Page: 100 11/22/2010 151840 134 SPA-31 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 22 of 54

20 undermine the value of the” Settlement and Final Release, though “evidence of criminal liability established by the Comptroller [General’s] Office was rejected by the prosecutor.”64 Two years later, however, the District Prosecutor found that “there [was] not sufficient evidence to pursue the case against . . . Mr. Ricardo Reis Veiga and Mr. Rodrigo Pérez Pallares, representatives of

TEXPET.”65 As we shall see, the same District Prosecutor in his subsequent capacity as national

Prosecutor General later decided to reopen the criminal investigation and charge the Individual

Petitioners based on the same allegations that he had previously dismissed for lack of evidence.

C. Donziger Solicits the Making of Crude

In 2005, Donziger solicited Joseph Berlinger to make a documentary film depicting the litigation from the perspective of the Lago Agrio plaintiffs. Berlinger agreed. For three years, he and his staff shadowed Donziger and other plaintiffs’ lawyers and representatives, capturing six hundred hours of raw footage of the people and events surrounding the litigation. In 2009, Berlinger released Crude.

D. President Correa Takes Office

In 2006, while the Lago Agrio litigation was still pending, Rafael Vincente Correa

Delgato was elected president of Ecuador on a platform of economic and social reform. President

Correa, who describes himself as a “humanist,” a “Christian of the left,” and a proponent of

64 Dans Decl. Ex. 3, at 1-2.

65 Id. Ex. 11, at 10. Case: 10-4341 Document: 154 Page: 101 11/22/2010 151840 134 SPA-32 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 23 of 54

21 twenty-first century socialism,66 condemned Ecuador’s oil contracts as “true entrapment for the country.”67 The election appears to have marked a turning point for the prospects of a criminal prosecution of the Individual Petitioners.

Crude outtakes include a brief interview with Donziger on his way to President

Correa’s January 2007 inauguration. Donziger boasted that President Correa’s inauguration was a potentially “critical event” for the outcome of the Lago Agrio litigation. Soon thereafter, Donziger explained that the Lago Agrio plaintiffs and the GOE had “been really helping each other.”68 The outtakes depict Donziger discussing the importance of working his contacts in the new government.69 And work them he did.

On January 31, 2007, Donziger met with Joseph C. Kohn of Kohn Swift & Graf, P.C., a U.S. law firm providing financial support for the Lago Agrio litigation. The outtakes depict

Donziger explaining that the plaintiffs had been working with the Prosecutor General’s office and that, although the criminal proceedings were closed, there is “no finality” in Ecuador.70

Approximately a week later in a radio segment, plaintiffs asked President Correa to bring criminal

66 'Socialismo' en el discurso de Correa, EL UNIVERSO, July 23, 2007, http://www.eluniverso.com/2007/07/23/0001/8/52BB6011269D4A87B7E96771F48D4A 62.html (last visited Oct. 8, 2010); see also Rafael Correa Biography, GUERRILLERO, June 29, 2009, http://www.guerrillero.cu/english/index.php?option=com_content&view=article&id=577 :rafael-correa-biography&catid=41:varieties&Itemid=61 (last visited Oct. 8, 2010).

67 Rafael Correa Biography, supra note 66.

68 Hendricks Decl. II Ex. A, CRS-163-02-02.

69 Id.

70 Dans Decl. Ex. 2, CRS-170-00-03. Case: 10-4341 Document: 154 Page: 102 11/22/2010 151840 134 SPA-33 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 24 of 54

22 charges against Chevron’s attorneys. Donziger specifically suggested filing criminal charges against

Pérez.71

This campaign continued. The outtakes show Donziger and others planning a press conference to pressure the Prosecutor General to bring criminal charges.72 On the following day,

Donziger asked that posters be made of “Texaco’s four accomplices,”73 including the Individual

Petitioners – posters that later were displayed at a press conference and a demonstration.

In March 2007, President Correa pledged his full support for the Lago Agrio plaintiffs.74 He followed that pledge with a meeting with Luis Yanza, co-founder of the Amazon

Defense Front and a close ally of Donziger. In a telephone conversation on or about April 23, 2007,

Yanza reported to Donziger and Fajardo on a conversation he had had with President Correa. To the extent that his report may be gleaned from the outtakes, Yanza told Donziger that President

Correa had an interest in learning more about the alleged environmental harm and “fraud in the field.”75 Yanza added to Donziger that President Correa “insist[ed]” that he continued to “[think] about doing something in the Prosecutor’s Office.”76 A day or two later, Yanza again reported to

Donziger and Fajardo, asserting on that occasion that Yanza had “coordinat[ed] everything” with

71 Id. Ex. 17.

72 Id. Ex. 2, CRS-198-00-04.

73 Hendricks Decl. II Ex. A, CRS-204-01-02.

74 Dans Decl. Ex. 12.

75 Id. Ex. 2, CRS-248-03-01.

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President Correa.77

Within a day or two, President Correa, Yanza, Fajardo, and others boarded a government helicopter together to tour the Oriente region.78 In a voiceover in Crude, Donziger bragged: “We have achieved something very important in the case. We are now friends with the

President.” That “friendship” immediately became apparent. On the same day as his visit to the

Oriente region, President Correa issued a press release “urg[ing] the Office of the Prosecutor to permit the Prosecution of the Petroecuador officials who accepted the remediation carried out by

Texaco.”79

The fact that there was no mention of the Texaco lawyers apparently bothered

Donziger. In a telephone conversation the next day that was captured by Berlinger’s cameras,

Donziger said that “perhaps it is time to ask for the head of Pérez Pallares – given what the President said.”80 On the following day, President Correa broadcast a call for the criminal prosecution of

“Chevron-Texaco . . . homeland-selling lawyers” in addition to the prosecution of Petroecuador officials.81

On November 30, 2007, Ecuador’s new Constituent Assembly, which at least then

77 Crude, 1:03:03.

78 Portions of President Correa’s visit are depicted in Crude and the outtakes.

79 Id. Ex. 14.

80 Hendricks Decl. II Ex. A, CRS-268-00-01.

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24 was controlled by President Correa,82 removed the Prosecutor General, who had found no basis to support criminal charges against the Individual Petitioners and former GOE officials, and replaced him with Dr. Washington Pesántez Muñoz. Dr. Pesántez had been the District Prosecutor who had decided in March 2007 that “the report on the special audit conducted by the Comptroller General of Ecuador . . . showed that there was no evidence of civil, administrative or criminal nature liability on the part of . . . representatives of the TEXACO company, with respect to environmental damage that had allegedly been caused in the Amazon region.”83 Several months later, however, Dr.

Pesántez decided that the criminal case should be reopened.84

On March 31, 2008, less than a week after Cabrera reported a damages finding of $16 billion and a day before he filed his report with the court, the Individual Petitioners received notice that the new Prosecutor General had reactivated the criminal charges based on “new” evidence.85

On July 31, 2008, representatives of the Lago Agrio plaintiffs, including Donziger, held a press conference during which one of the plaintiffs’ representatives commented that the plaintiffs had presented evidence to the Prosecutor General’s office to encourage an investigation.86 President

Correa, in a radio address less than two weeks later, offered his support for the criminal prosecutions:

Ecuador Forum Dissolves Congress, BBC NEWS (Nov. 30, 2007, 04:55 GMT), http://news.bbc.co.uk/2/hi/americas/7119373.stm.

83 Id. Ex. 11, at 10.

84 See id. Ex. 15.

85 Id.

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“But previous governments supported Texaco Chevron and betrayed our people: they signed agreements saying that everything was resolved, which has been one of the principal arguments by Texaco Chevron in its defense, when in fact nothing was resolved. Now, the Prosecutor General (Washington Pesántez), has, very properly, opened an investigation to punish those people, because it was a lie: there was nothing, nothing resolved, nothing cleaned up, all of the pollution.”87

In June 2009, the Prosecutor General’s office ordered Cabrera, in his capacity as the expert who conducted the environmental analysis regarding Texaco’s presence in Ecuador, to give

“free and unsworn” testimony.88 The Prosecutor General’s office issued a statement a month later describing Cabrera’s testimony. The account of Cabrera’s testimony included a description of the global assessment process. Cabrera reportedly declined to comment explicitly on his conclusions, but he did refer the Prosecutor General to his report.89

The Individual Petitioners now face criminal charges in Ecuador. On April 29, 2010, the Prosecutor General issued official accusations to the Individual Petitioners which were served approximately six weeks later. A preliminary hearing, which will determine whether the action will proceed, now is scheduled for November 10, 2010.

VI. The UNCITRAL Arbitration

The United States and Ecuador are parties to a bilateral investment treaty (the

“BIT”).90 The BIT, broadly speaking, provides that private parties having investment disputes with

87 Id. Ex. 23.

88 Id. Ex. 19.

89 Id. Ex. 20.

90 Investment Treaty With the Republic of Ecuador, Aug. 27, 1993, S. Treaty Doc. No. 103-15. Case: 10-4341 Document: 154 Page: 106 11/22/2010 151840 134 SPA-37 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 28 of 54

Ecuador may pursue their claims in accordance with the Arbitration Rules of the United Nations

Commission on International Trade Law.91

In 2009, Chevron commenced an arbitration against Ecuador pursuant to the BIT.

It there alleges that the GOE improperly colluded with the Lago Agrio plaintiffs in relation to the

Lago Agrio litigation, abused the criminal justice system and engaged in other coercive tactics, and breached its investment agreements and treaty obligations.92 It seeks, among other things, declarations that Chevron and its affiliates have no liability with respect to the alleged environmental pollution, that Ecuador has breached the BIT and its treaty obligations in various respects, and indemnification from Ecuador for any liability Chevron may have in the Lago Agrio litigation.93

VII. The Nature of Donziger’s Activities

As noted, Donziger was among the lawyers for the plaintiffs in the Aguinda case.

When it was dismissed and the focus shifted to the Lago Agrio case in Ecuador, however, his role changed dramatically. In his own words, “[w]hen the case shifted to Ecuador, really it became much more focused on lawyers in Ecuador. It was not effective for American lawyers or the American legal team to run the case out of Ecuador.”94 Donziger has described himself as the “link to all of

91 Id. Art. VI(3)(A), VI(4).

92 Hendricks Decl. I, Ex. EE, passim.

93 Id. at 17-18.

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27 the work in the United States and all of the institutional history of the case.”95 An Ecuadorian representative of the Lago Agrio plaintiffs referred to Donziger as a “big help” because he was responsible for setting up some of strategies of the Lago Agrio plaintiffs.96 In a telephone conversation about a potential book deal, Donziger assured the person with whom he was speaking that he, Donziger, is “so much a part of the story that it would be hard for someone to do a book without [his] cooperation.”97

Although Donziger and others have viewed Donziger as a member of the Lago Agrio legal team, the outtakes reveal that Donziger’s activities have gone far beyond the rendition of professional legal services, even assuming that he has performed such services to any significant degree. Donziger has made clear that the Lago Agrio litigation, in his words, is not a “legal case” but a “political battle . . . being played out through a legal case,”98 a view that dovetails with his assessment of the Ecuadorian court system as entirely corrupt and driven by politics. He has claimed that press strategy and relations are “as important, if not more important, than the lawyering that goes on in” the Lago Agrio litigation.99 In 2006, he described the next steps in the “battle” as getting “politics in order in a country that doesn’t favor people from the rainforest” and said that

“the country [has to be made] ready to deal with the idea that a judge can impose a multi-billion

95 Id.

96 Id., CRS-027-16-03.

97 Id., CRS-151-03-02.

98 Id., CRS-060-00-04.

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28 dollar judgment on an American company.”100 According to Donziger, it was important to mobilize the country politically “[s]o that no judge can rule against [the plaintiffs] and feel like he can get away with it in terms of his career.”101

Donziger has served as the field general in this political battle. Indeed when asked by a plaintiffs’ consulting expert for a statement of the facts of the case, Donziger remarked that he had not done any legal work in nearly two years.102 While this comment perhaps was offered in a somewhat jocular vein, there is substantial truth to it.

On behalf of the Lago Agrio plaintiffs, Donziger, directly or indirectly, has lobbied the Ecuadorian and United States governments, raised money to support the litigation efforts, organized the plaintiffs’ media campaign, and solicited and interacted with celebrity supporters.

Donziger’s statements, conduct, and demeanor in Crude and the outtakes, as well as other evidence, suggest that many of his activities have had little to do with the performance of legal services and a great deal to do with political activity, intimidation of the Ecuadorian courts, attempts to procure criminal prosecutions for the purpose of extracting a settlement, and presenting a message to the world media. This becomes even clearer when one considers still other statements and incidents depicted in Crude and the outtakes.

A. The March 30, 2006 Intimidation of the Judge

The outtakes depict Donziger and other plaintiffs representatives traveling to an ex

100 Id.

101 Id., CRS-032-00-01.

102 See id., CRS-198-00-06. Case: 10-4341 Document: 154 Page: 109 11/22/2010 151840 134 SPA-40 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 31 of 54

29 parte meeting with a judge on March 30, 2006. At least parts of the meeting appear in Crude.

Prior to the meeting, Donziger described his plan to “intimidate,” “pressure,” and

“humiliate” the judge:

Donziger repeatedly referred to the Ecuadorian judicial system as “weak,” “corrupt,” and lacking integrity. He further explained to the camera:

B. The Plan to Pressure the Court With an “Army”

Over a year later, the Crude crew filmed a conversation between Donziger and

Fajardo in which Donziger and Fajardo discussed the need to “be more and more aggressive” and to “organize pressure demonstrations at the court.” In the same clip, Donziger referred to the litigation as a “matter of combat” that requires “actually . . . put[ting] an army together.”105

The outtakes captured a June 6, 2007 meeting in which Donziger outlined a strategy

103 Id., CRS-052-00-06. This is not the first time that Donziger deployed such a strategy. When an Ecuadorian judge would not allow Donziger to appear in court because he did not have his passport. Donziger instructed an Ecuadorian attorney to lie and say that the judge called Donziger a “gringo.” See id., CRS-046-02-01.

104 Id., CRS-053-02-01.

105 Id., CRS-346-00-02. Case: 10-4341 Document: 154 Page: 110 11/22/2010 151840 134 SPA-41 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 32 of 54

30 to pressure an Ecuadorian court. Donziger told those present that the Lago Agrio plaintiffs needed to “do more politically, to control the court, to pressure the court” because Ecuadorian courts “make decisions based on who they fear most, not based on what the laws should dictate.”106 Donziger expressed concern that no one feared the plaintiffs, and he stated that the plaintiffs would not win unless the courts begin to fear them.107 Donziger described also his desire to take over the court with a massive protest as a way to send a message to the court of “don’t fuck with us anymore – not now, and not – not later, and never.”108 He then proposed raising “our own army” to which Yanza interjected “a specialized group . . . for immediate action.”109 At that point, Atossa Soltani of

Amazon Watch interrupted and asked whether “you guys know if anybody can, uh, subpoena these videos.”110 Donziger responded, “We don’t have the power of subpoena in Ecuador.”111 Soltani then asked “What about U.S.?,” but Donziger interrupted her and ignored the question.112 She persisted, saying “I just want you to know that it’s . . . illegal to conspire to break the law” to which Donziger said, “No law’s been conspired to be broken.”113 The conversation about raising an army to pressure

106 Id., CRS-350-04-01.

107 Id.

108 Id.

109 Id., CRS-350-04-02.

110 Id.

111 Id.

112 Id.

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31 the court then continued, with Yanza waving the camera away as he told Donziger that the

“army”could be supplied with weapons.114

Two days later, speaking directly to the camera, Donziger continued to emphasize the importance of pressuring the judge in the Lago Agrio litigation. According to Donziger, the plaintiffs’ “biggest problem” had been their inability to pressure the judge. He explained that suing

Chevron for moral damages or pressuring the Prosecutor General to open criminal investigations was not sufficient to make the judge feel pressure.115 Donziger asserted that the plaintiffs needed to do things that the judge would “really feel” such as being “called out” by the president of the country or the supreme court, implying that Donziger and others could develop strategies that would result in such actions.116

C. Killing the Judge?

Finally, Donziger participated in a dinner conversation about what might happen to a judge who ruled against the Lago Agrio plaintiffs. One or more other participants in the conversation suggested that a judge would be “killed” for such a ruling. Donziger replied that the judge “might not be [killed], but he’ll think – he thinks he will be . . . which is just as good.”117

114 Id.

115 Id., CRS-376-04-01.

116 Id.

117 Id., CRS-129-00-02. Case: 10-4341 Document: 154 Page: 112 11/22/2010 151840 134 SPA-43 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 34 of 54

Discussion

Donziger and the Lago Agrio plaintiffs advanced several arguments in support of quashing the subpoenas, viz. that (1) the statutory and discretionary factors pertinent to Section 1782 applications were not satisfied, (2) the subpoenas are overbroad and unduly burdensome, (3) discovery from opposing counsel is disfavored, and (4) the information sought is privileged. The

Court here sets out more fully its reasons for having denied the motions.

I. Judicial Code Section 1782

Section 1782 of the Judicial Code provides in pertinent part:

“The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a . . . request made by a foreign or international tribunal or upon the application of any interested person . . . . A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.”118

As stated in Chevron I, a district court is authorized to grant a Section 1782 application where (1) the person from whom discovery is sought resides or is found in the district of the district court to which the application is made, (2) the discovery is for use in a proceeding before a foreign tribunal, and (3) the application is made by a foreign or international tribunal or

“any interested person.”119 A district court, however, is not required to grant a Section 1782

118 28 U.S.C. § 1782.

119 Schmitz v. Bernstein, Liebhard & Lifshitz, LLP, 376 F.3d 79, 83 (2d Cir. 2004) (quoting In re Esses, 101 F.3d 873, 875 (2d Cir. 1996) (per curiam)). Case: 10-4341 Document: 154 Page: 113 11/22/2010 151840 134 SPA-44 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 35 of 54

33 application simply because it has the authority to do so.120 “Once the statutory requirements are met, a district court is free to grant discovery in its discretion.”121

The Supreme Court has identified four discretionary factors to guide the Court’s determination whether to grant a Section 1782 application: (1) whether the material sought is within the foreign tribunal’s jurisdictional reach and thus accessible absent Section 1782 aid; (2) the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court jurisdictional assistance; (3) whether the Section 1782 request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States; and (4) whether the subpoena contains unduly intrusive or burdensome requests.122 In addition, “district courts must exercise their discretion under Section 1782 in light of the twin aims of the statute: ‘providing efficient means of assistance to participants in international litigation in our federal courts and encouraging foreign countries by example to provide similar means of assistance to our courts.’”123

A. Statutory Requirements

Donziger is located in New York. Chevron and the Individual Petitioners all are

“interested” persons. Chevron is a party to both the Lago Agrio litigation and the arbitration. The

120 Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264 (2004); In re Application of Microsoft Corp., 428 F. Supp. 2d 188, 192 (S.D.N.Y. 2006).

121 Schmitz, 376 F.3d at 83-84.

122 Intel, 542 U.S. at 264-65; Microsoft Corp., 428 F. Supp. 2d at 192-93.

123 Schmitz, 376 F.3d at 84 (quoting In re Metallgesellschaft AG, 121 F.3d 77, 79 (2d Cir. 1997)). Case: 10-4341 Document: 154 Page: 114 11/22/2010 151840 134 SPA-45 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 36 of 54

Individual Petitioners are facing criminal charges in Ecuador. The Ecuadorian civil and criminal courts are foreign tribunals. The BIT, a tribunal established by an international treaty, is a foreign tribunal for purposes of Section 1782 applications.124 Chevron and the Individual Petitioners therefore all have satisfied the threshold requirements of Section 1782.

B. Discretionary Factors

Donziger asserts that the discretionary factors weigh in favor of quashing the subpoenas.

The first three discretionary factors favor Chevron and the Individual Petitioners for the same reasons set out in Chevron I,125 and there is no need to repeat that analysis in full.

First, like Berlinger, Donziger is located in this district and is not a party to any of the foreign proceedings. Neither the Ecuadorian courts nor the arbitral tribunal is empowered to compel Donziger to testify and produce documents. Indeed, Donziger, in a moment caught in the

Crude outtakes, bragged that there is no “power of subpoena” in Ecuador.126

To be sure, Donziger is correct in arguing that the specifications describing the documents sought from him by these subpoenas probably describe also materials in Cabrera’s possession. But that would not be a satisfactory answer, even assuming that Cabrera has some responsive materials and that they could be obtained by the Ecuadorian courts. Donziger’s (and

Cabrera’s) documents in any case would be beyond the reach of the BIT tribunal. Even more

124 Chevron I, 709 F. Supp. 2d at 291.

125 Id. at 291-93.

126 Hendricks Decl. II Ex. A, CRS-350-04-02. Case: 10-4341 Document: 154 Page: 115 11/22/2010 151840 134 SPA-46 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 37 of 54

35 important, the outtakes contain evidence that (1) the Lago Agrio plaintiffs were involved in ex parte communications with the Ecuadorian court to obtain Cabrera’s appointment, and (2) Donziger and others working with him (a) met secretly with Cabrera prior to his appointment and outlined a detailed plan for his work, at least a good part of which appears to have been performed by the plaintiffs’ own consultants, and (b) wrote some or all of Cabrera’s report. Whatever may be in

Cabrera’s files, it is quite likely that the primary source of responsive material lies in Donziger’s hands. Moreover, even if some responsive documents are in Cabrera’s possession and could be reached by the Ecuadorian courts, it must be borne in mind that the subpoenas seek not only

Donziger’s files, but also his testimony. There is every reason to believe that Donziger is in a unique position to shed light on what in fact has happened in relation to this seemingly sordid tale.

The second of the discretionary factors also favors the applicants, as evidenced by the fact that numerous district courts have granted Section 1782 applications in connection with matters pending in Ecuadorian courts, including the Lago Agrio litigation.127 Moreover, even if the

Ecuadorian courts opposed these subpoenas, which they have not, such opposition would not be dispositive. That is especially so in light of the fact that Chevron and the Individual Petitioners seek relief here, in part, out of concerns regarding inappropriate influence in both the Lago Agrio

127 See, e.g., Chevron I, 709 F. Supp. 2d 283; In re Application of Chevron Corp., No. 1:10-mi-00076 (N.D. Ga. Mar. 2, 2010) (Calmbacher); Chevron v. Stratus Consulting, Inc., No. 10-cv-00047 (D. Colo. Mar. 4, 2010); In re Application of Chevron Corp., No. 4:10-mc-134 (S.D. Tex. Apr. 5, 2010) appeal docketed, No. 10-20389 (5th Cir. June 11, 2010) (3TM); In re Application of Chevron Corp., No. 2:10-cv-02675 (D.N.J. June 15, 2010), appeal docketed, No.10-2815 (3d Cir. June 18, 2010) (UBR); In re Application of Chevron Corp., No. 10-cv-1146-IEG (WMc) (S.D. Cal. June 23, 2010) (E-Tech); In re Application. of Chevron Corp., No. 1:10-mc-00371 (D.D.C. July 22, 2010) (Wray); In re Application of Chevron Corp., No. 3:10-cv-00686 (M.D. Tenn. Aug. 17, 2010), appeal docketed, No.10-6035 (6th Cir. Aug. 25, 2010) (Quarles); Chevron Corp. v. Champ, No. 1:10-mc-0027-GCM-DLH (W.D.N.C. Aug. 30, 2010); In re Chevron Corp., No. 10-MC-21JH/LFG (D.N.M. Sept. 1, 2010) (Kamp). Case: 10-4341 Document: 154 Page: 116 11/22/2010 151840 134 SPA-47 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 38 of 54

36 litigation and the criminal proceedings.128 Finally, sight must not be lost of the role of the discovery sought here in respect of the BIT arbitration. Certainly this discovery would be helpful to that tribunal.

Third, it is not likely that discovery pursuant to these applications would undermine

Ecuadorian proof gathering. As noted, there is no basis for concluding that either the Ecuadorian court or the arbitral tribunal could compel Donziger to produce documents or testify. Donziger is not a party to those proceedings. Any testimony given or materials produced by Donziger could be offered in the arbitration and supplement the existing record in Ecuador, thus providing a more complete picture than appears to be before the Ecuadorian court.

The fourth discretionary factor – whether the additional disclosure sought would be intrusive or burdensome – overlaps with Donziger’s objections based on his claim that he is an attorney adverse to Chevron and that whatever he knows or has is protected by the attorney-client privilege or work product doctrine. Accordingly, the Court proceeds to those issues.

II. Deposition of Adverse Counsel

“Courts have been . . . concerned about the burdens imposed on the adversary process when lawyers themselves have been the subject of discovery requests, and have resisted the idea that lawyers should routinely be subject to broad discovery.”129 Despite that concern – which has been born also of a reluctance to intrude on the attorney-client relationship and a sense that depositions

128 See, e.g., Chevron I, 709 F. Supp. 2d at 292 .

129 In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 70 (2d Cir. 2003) (hereinafter In re Friedman). Case: 10-4341 Document: 154 Page: 117 11/22/2010 151840 134 SPA-48 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 39 of 54

37 of adversary counsel are unseemingly – our Circuit has adopted a “flexible approach” that affords district courts discretion to permit such discovery when appropriate rather than prohibiting or more severely restricting discovery of adverse counsel.130 Indeed, it has made clear that “the disfavor with

. . . the practice of seeking discovery from adversary counsel is . . . not a talisman for the resolution of all controversies of [that] nature.”131 Rather, district courts in such cases are to “consider[] all of the relevant facts and circumstances,” including:

“[1] the need to depose the lawyer, [2] the lawyer’s role in connection with the matter on which discovery is sought and in relation to the pending litigation, [3] the risk of encountering privilege and work-product issues, and [4] the extent of discovery already conducted.”132

The Court considered all of these factors in exercising its discretion to decline to quash the subpoenas.

A. The Need to Depose Donziger

The Individual Petitioners are faced with a criminal prosecution that appears to have been instigated by Donziger and others working with him for the base purposes of coercing Chevron to settle and undermining a significant element of its defense in Ecuador, the release it obtained from the GOE. Chevron itself is attempting to pursue its arbitration before the BIT tribunal and to defend itself in the Lago Agrio litigation. There is substantial evidence that Donziger and others working with him have improperly (1) pressured, intimidated, and influenced Ecuadorian courts, (2) colluded

130 Id. at 69-72.

131 Id. at 71.

132 Id. at 72. Case: 10-4341 Document: 154 Page: 118 11/22/2010 151840 134 SPA-49 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 40 of 54

38 with Cabrera to substitute their own biased work product for the neutral and impartial assessment that Cabrera was appointed to produce, (3) concealed that role, (4) submitted to the Ecuadorian court over the signature of Dr. Calmbacher a report that Dr. Calmbacher denies having written, and (5) colluded with the GOE. Crude and the Crude outtakes – most notably Donziger’s own words – as well as other evidence obtained in other Section 1782 proceedings, make clear that Donziger is a central figure in all of this. As Donziger himself said in promoting a book deal about the Lago

Agrio litigation, he is “so much a part of the story that it would be hard for someone to do a book without [his] cooperation.”133

In short, this is not an attempt to take the deposition of a lawyer in a routine civil case, attempts that often are made out of pique and personal animosity. The stakes here are huge both for the Individual Petitioners and for Chevron. The evidence of irregularities is powerful.

Donziger’s central role is undeniable. The need for his testimony and documents is very strong indeed.

B. Donziger’s Role

The second of the Friedman factors focuses on the role of the lawyer from whom discovery is sought both in the litigation in question and in relation to the subjects on which disclosure is sought. The first of these considerations bears on the extent to which the discovery would disrupt the litigation by injecting one of the lawyers charged with its conduct into the case as a witness or by making the advocate’s conduct or knowledge an issue in the proceeding. The second goes at least in part to the issue whether the lawyer is likely to have first-hand evidence that

133 Hendricks Decl. II Ex. A, CRS-151-03-02. Case: 10-4341 Document: 154 Page: 119 11/22/2010 151840 134 SPA-50 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 41 of 54

39 is important to the resolution of the lawsuit. Both of these considerations cut strongly against quashing the subpoenas.

It is important to recognize at the outset that Donziger is a New York, rather than an

Ecuadorian, lawyer. He most assuredly is not litigating the criminal charges against the Individual

Petitioners, which are in the hands of the GOE. While he is involved with the Lago Agrio plaintiffs’

Ecuadorian lawyers and experts in the civil case, he is not conducting that case in the Ecuadorian courts. Perhaps even more significant, there is abundant evidence that Donziger’s role in connection with events in Ecuador has been at least primarily in capacities other than that of an attorney.

The Court understands that some of Donziger’s statements may have reflected some degree of hyperbole. No doubt he has brought his legal training to bear from time to time. But it remains the case that his role in Ecuador has gone far beyond the rendition of professional legal services. Courts would have no hesitation in allowing otherwise appropriate discovery of lay lobbyists, public relations consultants, media representatives, and political organizers. There is no sound reason for reaching a different result where someone with a law degree engages in similar activities. Indeed, as is shown below, it is well settled that the attorney-client privilege does not extend to communications involving a lawyer where the lawyer is engaged in such activities. That principle is instructive here.

Nor is this a case in which the applicants have sought discovery of Donziger to gain access to information that he gathered in the manner in which litigating counsel, lacking personal knowledge of any of the facts at issue in the lawsuit, normally gather information – interviewing witnesses and reviewing documents and other evidence. Rather, the proposed discovery focuses on matters concerning which Donziger is a percipient witness and a principal actor. In other words, the discovery is sought to shed light on what Donziger and those working with him did, allegedly Case: 10-4341 Document: 154 Page: 120 11/22/2010 151840 134 SPA-51 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 42 of 54

40 in corrupting the process in Ecuador. The special solicitude ordinarily shown to litigation counsel with respect to discovery in the cases that they handle is unwarranted in these circumstances.

C. Extent of Discovery Already Conducted

District courts have granted Chevron Section 1782 applications in a number of other cases, chiefly involving U.S. environmental consultants involved in the Lago Agrio plaintiffs’ efforts in Ecuador. Nevertheless, the outtakes demonstrate that this application is unique. Donziger appears to have played a central role in questionable aspects of the Lago Agrio litigation and related events. Those previously subjected to Section 1782 discovery would have had no more than fragmentary knowledge of some of the matters at issue. The Court is unaware that any of the

Section 1782 witnesses save Berlinger, for example, had any knowledge at all concerning the attempts to intimidate and pressure the Ecuadorian judiciary, the interactions with the Ecuadorian government, or the criminal prosecutions. The fact of the matter is that Donziger appears to be the leading man in this play. No one will have much of a sense of the overall plot by seeing and hearing only the lines of those few members of the supporting cast who reside in the United States and have been examined under Section 1782.

D. Risk of Encountering Privilege and Work-Product Issues

The fourth of the factors articulated in Friedman is the risk that proceeding with the deposition of adverse counsel would encounter privilege and work-product issues.

Of course, Donziger has attempted to invoke both attorney-client privilege and work product in an effort to head off any discovery against him. So too might any attorney faced with a demand for his or her documents or deposition. Hence, there is a risk that a court will have to Case: 10-4341 Document: 154 Page: 121 11/22/2010 151840 134 SPA-52 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 43 of 54

41 resolve such claims whenever a litigant seeks a deposition of adverse counsel. But the Second

Circuit in Friedman rejected any per se rule against even depositions of active litigation counsel.134

Indeed, it rejected the Eighth Circuit’s view that a litigant seeking a deposition of adverse counsel must demonstrate, inter alia, that “the information sought is relevant and not privileged.”135 Rather, it “requires a flexible approach to lawyer depositions whereby the judicial officer supervising discovery takes into consideration all of the relevant facts and circumstances . . . [which] may include . . . the risk of encountering privilege and work product issues.”136 As every such case entails at least some risk of encountering such issues, what is required is a sensitive consideration of the extent to which substantial privilege issues are raised, their likely merit or lack thereof, and whether the effort that would be required to resolve those issues would be outweighed by the need for the discovery of whatever non-privileged information the lawyer may have. Naturally, the first step in this analysis is to focus on the scope of the attorney-client privilege and the work product doctrine, each of which is considerably narrower than is implied by the capacious claims made by

Donziger.

1. Basic Principles

A party invoking the attorney-client privilege has the burden of showing, as to each allegedly privileged communication, that the communication was (1) between counsel and client,

134 See In re Friedman, 350 F.3d at 71 (“the disfavor with which the practice of seeking discovery from adversary counsel is regarded is not a talisman for the resolution of all controversies of this nature”).

135 Id. at 70-72.

136 Id. at 72. Case: 10-4341 Document: 154 Page: 122 11/22/2010 151840 134 SPA-53 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 44 of 54

(2) intended to be and remained confidential, and (3) made for the purpose of providing or obtaining legal advice.137 The “predominant purpose” of a communication must involve legal advice. A court should determine predominant purpose of a communication “dynamically and in light of the advice being sought or rendered, as well as the relationship, between advice that can be rendered only consulting the legal authorities and advice that can be given by a non-lawyer.”138 A lawyer’s “dual legal and non-legal responsibilities may bear on whether a particular communication was generated for the purpose of soliciting or rendering legal advice.”139

This latter point is especially significant in this case. As demonstrated above,

Donziger – at least in major respects – has not functioned as a lawyer with respect either to the Lago

Agrio litigation or the criminal prosecution. As Crude and the outtakes make clear, his efforts have been concentrated heavily in media and public relations, lobbying, and political activism. But communications, even between lawyer and client, are not privileged unless they are made for the purpose of rendering legal advice140 or, to use another formulation, unless they relate to the rendition of “professional legal services.”141 Hence, the attorney-client privilege does not apply to communications with respect to many of the activities in which Donziger has engaged, at least in

137 United States v. Const. Prod. Research, Inc.,73 F.3d 464, 473 (2d Cir.1996).

138 In re County of Erie, 473 F.3d 413, 420-21 (2d Cir. 2007).

139 Id. at 421.

140 Const. Prod. Research, Inc.,73 F.3d at 473.

141

SUP. CT. STD. 503. Case: 10-4341 Document: 154 Page: 123 11/22/2010 151840 134 SPA-54 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 45 of 54

43 the absence of very unusual circumstances.142

The work product doctrine is comparable in this respect. It “provides qualified protection for materials prepared by or at the behest of counsel in anticipation of litigation or for trial.”143 Its purpose “is to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy ‘with an eye toward litigation,’ free from unnecessary intrusion by his adversaries.”144 It is not intended, however, to obscure “what [i]s essentially a lobbying and political effort,” even one undertaken by a lawyer.145 Put another way:

“If a lawyer happens to act as a lobbyist [or in some other capacity], matters conveyed to the attorney for the purpose of having the attorney fulfill the lobbyist [or other] role do not become privileged by virtue of the fact that the lobbyist has a law degree or may under other circumstances give legal advice to the client, including advice on matters that may also be the subject of lobbying [or other non-

142 See, e.g., NXIVM Corp. v. O'Hara, 241 F.R.D. 109, 130 (N.D.N.Y. 2007) (when an attorney is “wearing multiple hats and . . . advising . . . on anything and everything other than legal services, whether business, media, public relations, or lobbying, there is no attorney-client privilege”); Haugh v. Schroder Inv. Mgmt. North America Inc., No. 02 Civ. 7955, 2003 WL 21998674, at *3 (S.D.N.Y. Aug. 25, 2003) (“A media campaign is not a litigation strategy. Some attorneys may feel it is desirable at times to conduct a media campaign, but that does not transform their coordination of a campaign into legal advice.”); In re Grand Jury Subpoenas dated March 9, 2001, 179 F. Supp. 2d 270, 274, 290 (S.D.N.Y. 2001) (communications with lawyers acting as lobbyists not privileged); City of Springfield v. Rexnord Corp., 196 F.R.D. 7, 9 (D.Mass. 2000) (documents prepared to respond to media inquires not privileged); Burton v. R.J. Reynolds Tobacco Co., Inc., 170 F.R.D. 481, 487 (D.Kan. 1997) (“The fact that the client chose to channel the work through an attorney rather than perform the work with non-legal personnel does not provide the basis for a claim of privilege.”).

143 In re Grand Jury Subpoenas Dated March 19, 2002 and August 2, 2002, 318 F.3d 379, 383 (2d Cir. 2003).

144 United States v. Adlman, 134 F.3d 1194, 1196 (2d Cir.1998) (quoting Hickman v. Taylor, 329 U.S. 495, 511 (1947)).

145 In re Grand Jury Subpoenas dated March 9, 2001, 179 F. Supp. 2d at 290 (no work product protection for lawyers involved in seeking a pardon, a political and lobbying enterprise). Case: 10-4341 Document: 154 Page: 124 11/22/2010 151840 134 SPA-55 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 46 of 54

legal] efforts.”146

2. The Normal Means of Claiming Privilege

Not only is it important to have a proper regard for the scope and limits of the attorney-client privilege and the work product doctrine, but it is vital also to bear in mind the extent to which the motions to quash sought a wholesale departure from the normal manner in which such claims of immunity from disclosure are adjudicated.

There is a well-established procedure for the invocation of alleged privileges in response to subpoenas and other demands for tangible evidence. Those in possession, custody or control of allegedly privileged documents called for by subpoenas and document requests are obliged to enumerate the documents as to which they claim privilege and assert their privilege claims in the manner prescribed by both local and federal rules.147 In most circumstances, a party cannot rely on “mere conclusory or ipse dixit assertions, for any such rule would foreclose meaningful inquiry into the existence of the relationship, and any spurious claims could never be exposed.”148

Where a party seeks disclosure from a witness who may have relevant information concerning allegedly privileged attorney-client communications, the fact that the witness may be asked questions that call for information as to privileged communications does not protect a witness

146

Id. at 285 (quoting EDNA STEIN EPSTEIN, THE ATTORNEY-CLIENT PRIVILEGE & THE WORK PRODUCT DOCTRINE 239 (2001)) (internal quotation marks omitted).

147

FED. R. CIV. P. 26(b)(5)(A); S.D.N.Y. CIV. R. 26.2.

148 von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 146 (2d Cir. 1987) (quoting In re Bonanno, 344 F.2d 830, 833 (2d Cir.1965)). Case: 10-4341 Document: 154 Page: 125 11/22/2010 151840 134 SPA-56 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 47 of 54

45 from being deposed or called to testify at a trial or before a grand jury.149 Rather, the witness must appear and give testimony. When a question seeking disclosure of allegedly privileged material is posed, however, the holder of the alleged privilege may object and delay disclosure until a court rules on the objection. When an objection is made the party seeking disclosure nevertheless is entitled to discover the dates and places of and the identities of the participants in the communications, the identities of others who were present and to whom the communications were disclosed, and the general subject matter (but not the content) of the communications.150 This permits the party seeking disclosure and, if need be, the court to know which communications are at issue, something about their general nature, whether they in fact were confidential, and whether any privilege has been waived by disclosure of the contents of the communications to persons other than the attorney and client. Once such a record is developed, the court rules on the objection.

These procedures serve vitally important purposes. The attorney-client privilege and the work product doctrine can serve to conceal highly relevant evidence that may be important to the just resolution of a controversy. The burden of establishing their applicability therefore rests with the party asserting them. Moreover, the adverse party has the right to challenge such assertions by pointing to a failure to satisfy their prerequisites or establishing waiver or some other reason for disclosure of otherwise protected evidence.151 Dispensing with the usual procedures effectively

149

See 24 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 5507, at 567 (2007) (“One cannot assert the privilege by a blanket refusal to testify; there must be specific objection to particular questions calling for privileged information.”).

150

See FED. R. CIV. P.26(b)(5)(A); S.D.N.Y. CIV. R. 26.2.

151 For example, a party resisting a claim of privilege or work product could establish that the material in question is not protected by virtue of the crime-fraud exception. Many claims of work product may be overcome by a showing of good cause for disclosure. FED. R. CIV. Case: 10-4341 Document: 154 Page: 126 11/22/2010 151840 134 SPA-57 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 48 of 54

46 absolves the claimant of the need to prove the applicability of the privilege or of work product protection and may deprive the adverse party of an effective means of disputing the claim or establishing an exception.

3. Application to Donziger

With these principles in mind, we turn to Donziger’s claims.

As an initial matter, there is considerable reason to doubt that there are any, or at least many, attorney-client communications involving Donziger and subject to the subpoenas. Donziger has offered no proof of even a single communication between him and any of the Lago Agrio plaintiffs, let alone such a communication that was related to seeking or providing legal advice. And that should not be surprising in light of the fact that Donziger is not licensed to practice law in

Ecuador and is not conducting the Lago Agrio litigation.

Second, most of the discovery sought by the applicants is of communications involving third parties, such as the GOE and Cabrera, who have not been shown to be within any privileged relationship.152

Third, there is substantial evidence that suggests that Donziger’s predominant role with respect to the matters in Ecuador is not the rendition of professional legal services, but politics,

P. 26(b)(3)(A).

152 The Lago Agrio plaintiffs attempt to avoid disclosure of communications between Donziger and others in their corner with the GOE on the theory that they have a common interest with the GOE and that this “protect[s] the confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel.” But the existence of a common interest privilege has not been established. Moreover, acceptance the common interest claim at this stage would have prevented Chevron and the Individual Petitioners from challenging the claim. Case: 10-4341 Document: 154 Page: 127 11/22/2010 151840 134 SPA-58 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 49 of 54

47 lobbying, and media and public relations. This may well be fatal to all his privilege and work product claims. Even if it is not fatal across the board, it may be fatal with respect to particular items of evidence.

Fourth, there is more than a little evidence that Donziger’s activities – as several courts already have held in the context of Section 1782 applications against experts involved on the

Lago Agrio plaintiffs’ side – come within the crime-fraud exception to both the privilege and to work product protection.153

Even assuming that Donziger is not entirely without attorney-client privilege and work product protection for reasons already referred to, he may lack protection as to substantial categories of evidence. For example, there is evidence in Crude, the outtakes, and other Section

1782 proceedings that he has communicated with various experts in relation to the Lago Agrio litigation – knowledge or materials that might enjoy qualified work product protection. But even that is far from clear. Whatever has passed between him and Cabrera and other testifying experts is not subject to work product protection154 even without regard to issues of waiver and the crime- fraud exception. And while interactions with non-testifying experts might enjoy work product

153 In re Chevron Corp., No. 10-MC-21JH/LFG [DI 11] (D.N.M. Sept. 13, 2010); In re Application of Chevron Corp., No. 10-cv-1146-IEG (Wmc) [DI 9] (S.D. Cal. Sept. 10, 2010); Chevron Corp. v. Champ, No. 1:10-mc-0027-GCM-DLH [DI 12] (W.D.N.C. Aug. 30, 2010).

154 See, e.g., Lugosch v. Congel, 219 F.R.D. 220, 250 (N.D.N.Y. 2003) (“[I]nformation considered by the [testifying] expert should be disclosed notwithstanding the presence of work product consideration.”); Mfg. Admin. & Mgmt. Systs., Inc. v. ICT Group, Inc., 212 F.R.D. 110, 115-16 (E.D.N.Y. 2002) (attorney work product not protected when shared with testifying experts); MIC Commc’ns Corp. v. Dataline, Inc., No. 01 Civ. 3849(LAP) (DFE), 2001 WL 1335291, at *1 (S.D.N.Y. Oct. 30, 2001) (collecting cases); B.C.F. Oil Ref. v. Consol. Edison Co., 171 F.R.D. 57, 66 (S.D.N.Y. 1997) (holding that attorney work product reviewed by a testifying expert is not protected by work product). Case: 10-4341 Document: 154 Page: 128 11/22/2010 151840 134 SPA-59 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 50 of 54

48 protection, there certainly has not been proof sufficient to conclude that such protection extends to any of the subpoenaed evidence. The protection may have been waived. The crime-fraud exception may vitiate any otherwise applicable protection, as at least one other court has held in another

Section 1782 proceeding brought by Chevron to obtain discovery from an expert.155 Moreover, most work product is not protected absolutely and is discoverable on a showing of good cause.156

Chevron and the Individual Petitioners, assuming they knew enough about the specific evidence in question, might well be able to establish good cause and thus overcome any otherwise applicable protection.

In the last analysis, then, denial of the motions to quash these subpoenas will require adjudication of Donziger’s claims of privilege. But there is good reason to believe that those claims are exaggerated and, at least in many cases, without merit or at least questionable. So the ultimate question on the motions to quash reduces to whether the applicants’ need for whatever unprivileged material Donziger possesses is sufficiently great to make adjudication of the privilege claims a worthwhile endeavor.

In this Court’s judgment, the need is extremely great in view of the extraordinary evidence already before it. To turn a blind eye to evidence suggesting improper influence on and intimidation of the Ecuadorian courts by both Donziger and the GOE, improper manipulation of the criminal process in that country, knowing submission by the Lago Agrio plaintiffs of at least one fraudulent report, and improper collusion with Cabrera, the supposedly neutral court-appointed

155 In re Application of Chevron Corp., No. 10-cv-1146-IEG (Wmc) [DI 9] (S.D. Cal. Sept. 10, 2010).

156

See FED. R. CIV. P. 26(b)(3)(A). Case: 10-4341 Document: 154 Page: 129 11/22/2010 151840 134 SPA-60 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 51 of 54

49 expert, could defeat the purpose of Section 1782, deprive the Individual Petitioners of evidence needed for their defense in a criminal case, and frustrate the BIT arbitration.

Considering all of the facts and circumstances before the Court, including the need to resolve privilege issues, the fact that Donziger is a lawyer and that he is allied with Chevron’s adversaries in the Lago Agrio litigation is not sufficient to warrant the quashing of these subpoenas.

The proper course is to allow the process to go forward and to adjudicate the claims of privilege in due course.157

That is exactly what this Court’s order provided. It held open the possibility of adjudicating the merits of his privilege claims with respect to the documents demanded notwithstanding his failure to comply with FED. R. CIV. P. 26(b)(5)(A) and S.D.N.Y. CIV. R. 26.2.

It appointed a special master to preside at the deposition in order to deal effectively and properly with any claims of privilege that may be made in response to specific questions. And it made clear that this Court ultimately stands ready to resolve whatever privilege claims may be made.

157 Donziger has advanced no persuasive reason why he should not be compelled to claim privilege in the same manner as any other litigant – providing a privilege log enumerating the documents as to which privilege is claimed, claiming privilege in response to deposition questions, and in each case providing such information as may be necessary to make out his claim. Although Donziger claims that a privilege review of his files would be “time consuming” and “complicated,” the Court is not persuaded that he should not be required to conform to the usual rules because, among other things, (1) he has provided no estimate of the number of documents as to which he has colorable claims of privilege, (2) Chevron has dropped the one subpoena request that blatantly called for privileged information, Chevron Mem. 48, and (3) his evidence is so central to the applicants’ interests. Moreover, it appears that there can be no viable claim of privilege with respect to large areas of the discovery sought because it involves communications between Donziger and unrelated third parties. Case: 10-4341 Document: 154 Page: 130 11/22/2010 151840 134 SPA-61 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 52 of 54

III. The Proposed Modification of the Subpoenas

In the alternative, Donziger suggested that the Court limit the subpoenas to communications with Cabrera and Ecuadorian prosecutorial authorities.158 This proposal was not persuasive.

First, Donziger’s proposal would exclude Chevron Request 5, which relates to ex parte communications with Ecuadorian judges or judicial officers. These communications are not subject to attorney-client privilege or work product because the communications were not made in confidence between lawyer and client and were not made to others in a privileged relationship either.

These communications are highly relevant to extent that they might shed light on any alleged improper communications with that court.

Second, Donziger’s proposal would narrow Chevron Request 6/Individual Petitioners

Request 6 inappropriately. Donziger suggested limiting the request to communications with

Ecuadorian prosecutorial authorities. Such a proposal, however, would exclude any inappropriate communications between those representing the Lago Agrio plaintiffs and other GOE officials, including the office of President Correa, regarding the criminal prosecution.

Third, Donziger’s suggested modifications ignore the notion that alleged improper influence is not limited to direct communications with Cabrera and prosecutorial authorities.

Chevron Requests 7-19, 23-24, 26/Individual Petitioners Requests 7-19, 21-22, 24, relate to laboratories, environmental consulting firms, and specific consulting experts that might have been

158 Donziger Mem. 20. Case: 10-4341 Document: 154 Page: 131 11/22/2010 151840 134 SPA-62 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 53 of 54

51 involved with the alleged improper influence on the Cabrera report.159 Donziger’s proposal would prevent discovery of such communications, which the Court views as highly relevant. Furthermore,

Donziger’s proposal would ignore requests related to Cabrera that are relevant, but do not call for direct communications with Cabrera. For example, Donziger may control documents regarding preparation for the “global assessment” that were not communicated directly to Cabrera but nonetheless would fall under Chevron Request 54/Individual Petitioners Request 41. And Donziger may have non-privileged communications regarding the “global assessment,” such as communications or documents exchanged with representatives of Amazon Watch or the GOE, as described in the outtakes.

Finally, the Court is not convinced that the subpoena would require “wholesale turnover” of Donziger’s files related to the Lago Agrio litigation. The Ecuadorian court appointed and swore Cabrera as the expert responsible for the “global assessment” in 2007. Cabrera submitted his initial report approximately one year after his appointment and a supplemental report several months later. As a result, many of the subpoena requests are effectively limited to a two-year period. The Court is still not prepared to find that the subpoenas require modification or impose an undue burden on Donziger.

159 It must be borne in mind that there is evidence that the purpose of the March 3, 2007 meeting was to outline a work plan pursuant to which consultants hired by the Lago Agrio plaintiffs would at least contribute to and at worst write Cabrera’s report. Case: 10-4341 Document: 154 Page: 132 11/22/2010 151840 134 SPA-63 Case 1:10-mc-00002-LAK Document 101 Filed 11/10/10 Page 54 of 54

Conclusion

For the foregoing reasons, as well as those set forth in the Court’s prior ruling, the motions to quash the subpoenas were denied in the exercise of the Court’s discretion.

SO ORDERED.

Dated: November 4, 2010 Corrected: November 10, 2010 Case: 10-4341 Document: 154 Page: 133 11/22/2010 151840 134 CERTIFICATE OF SERVICE & CM/ECF FILING

10-4341-cv(L), 10-4405-cv(CON) In Re: Chevron Corporation

I hereby certify that I caused the foregoing Brief and Special Appendix for Respondent-Appellant Lago Agrio Plaintiffs to be served on counsel for Steven R. Donziger and Petitioners-Appellees via Electronic Mail generated by the Court’s electronic filing system (CM/ECF) with a Notice of Docket Activity pursuant to Local Appellate Rule 25.1: Scott Alan Edelman Bruce S. Kaplan Gibson, Dunn & Crutcher LLP Robert D. Kaplan 333 South Grand Avenue Friedman, Kaplan, Seiler Los Angeles, California 90071 & Adelman LLP (213) 229-7000 1633 Broadway, 46th Floor New York, New York 10019-6708 Kristen L. Hendricks (212) 833-1251 Randy Michael Mastro Attorneys for Appellant Gibson, Dunn & Crutcher LLP Steven R. Donziger 200 Park Avenue New York, New York 10166 (212) 351-4000

Jason Criss Alan Vinegrad Covington & Burling LLP The New York Times Building 620 Eighth Avenue New York, New York 10018 (212) 841-1000

Andres Rivero Jorge Alejandro Mestre Paul Edouard Dans Rivero Mestre & Castro LLP 2525 Ponce de Leon Boulevard Coral Gables, Florida 33134 (305) 445-2500

Attorneys for Petitioners-Appellees

Case: 10-4341 Document: 154 Page: 134 11/22/2010 151840 134

I certify that an electronic copy was uploaded to the Court’s electronic filing system. Six hard copies of the foregoing Brief and Special Appendix for Respondent-Appellant Lago Agrio Plaintiffs were sent to the Clerk’s Office By Hand Delivery to: Clerk of Court United States Court of Appeals, Second Circuit United States Courthouse 500 Pearl Street, 3rd floor New York, New York 10007 (212) 857-8576 on this 22nd day of November 2010. Notary Public:

______/s/ Ramiro A. Honeywell /s/______Samantha Collins Sworn to me this SAMANTHA COLLINS Record Press, Inc. November 22, 2010 th th 229 West 36 Street, 8 Floor RAMIRO A. HONEYWELL New York, New York 10018 Notary Public, State of New York (212) 619-4949 No. 01HO6118731 Qualified in Kings County Commission Expires November 15, 2012

Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 1 of 54

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------x In re Application of

CHEVRON CORPORATION, et al., 10 MC 00002 (LAK)

This Document Applies to ALL CASES ------x

OPINION

Appearances:

Randy M. Mastro Bruce S. Kaplan Scott A. Edelman Robert D. Kaplan Kristen Hendricks Ellen London Andrew E. Neuman FRIEDMAN KAPLAN SEILER & ADELMAN LLP William E. Thomson Attorneys for Movant Steven R. Donziger GIBSON DUNN & CRUTCHER LLP Attorneys for Chevron Corporation Ilann M. Maazel Jonathan S. Abady Paul E. Dans Adam Pulver Jorge A. Mestre O. Andrew F. Wilson Andrés Rivero EMERY CELLI BRINCKERHOFF & ABADY LLP Attorneys for Lago Agrio Plaintiffs RIVERO MESTRE & CASTRO Attorneys for Rodrigo Pérez Pallares

Alan Vinegrad Jason P. Criss John Han COVINGTON & BURLING LLP Attorneys for Ricardo Reis Veiga Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 2 of 54

Table of Contents

Conclusion...... 52 Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 3 of 54

LEWIS A. KAPLAN, District Judge.

Chevron is the target of litigation brought in Ecuador by the so-called Lago Agrio plaintiffs1 in which the latter seek to recover $113 billion2 for alleged environmental pollution by

Texaco, Inc. (“Texaco”), from Texaco’s current owner, Chevron Corporation (“Chevron”).3

1 The Lago Agrio plaintiffs are forty-eight individuals.

3 Chevron acquired Texaco in 2001, after Texaco discontinued operations in Ecuador and settled environmental claims with its government.

4 28 U.S.C. § 1782. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 4 of 54

5 In re Application of Chevron Corp., No. 10 MC 00002 (LAK), 2010 WL 4118093 (S.D.N.Y. Oct. 20, 2010). Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 5 of 54

Facts

I. The Present Posture of the Ecuadorian Proceedings and the Urgency of this Matter

It is important to begin with a brief statement of the present posture of matters in

Ecuador, which has two especially significant aspects.

As will appear, however, there is substantial evidence that (1) Cabrera was appointed as a result of

Individual Petitioners, especially a successful one, would overcome or at least help to overcome that obstacle – especially in a country in which, at least according to Donziger: “You can solve anything with politics as long as the judges are intelligent enough to understand the politics . . . . [T]hey Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 6 of 54

4 don‘t have to be intelligent enough to understand the law, just as long as they understand the politics.”6

Until recently, the Lago Agrio plaintiffs’ efforts to instigate criminal charges against the Individual Petitioners were unsuccessful, as Ecuadorian prosecutors had rejected their claims.

Chevron and the Individual Petitioners of meaningful opportunities to obtain relief here.

6 Hendricks Decl. II Ex. A, CRS-129-00-02. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 7 of 54

II. Crude, Donziger’s Central Role in the Events at Issue, and these Subpoenas

Donziger is at the center of this controversy. While he is a member of the New York

7 28 U.S.C. § 1782.

8 In re Application of Chevron Corp., No. 1:10-mi-00076 (N.D. Ga. Mar. 2, 2010) (Calmbacher); Chevron v. Stratus Consulting, Inc., No. 10-cv-00047 (D. Colo. Mar. 4, 2010); In re Application of Chevron Corp., No. 4:10-mc-134 (S.D. Tex. Apr. 5, 2010) appeal docketed, No. 10-20389 (5th Cir. June 11, 2010) (3TM); In re Application of Chevron Corp., No. 2:10-cv-02675 (D.N.J. June 15, 2010), appeal docketed, No.10-2815 (3d Cir. June 18, 2010) (UBR); In re Application of Chevron Corp., No. 10-cv-1146-IEG (WMc) (S.D. Cal. June 23, 2010) (E-Tech); In re Application of Chevron Corp., No. 1:10-mc-00371 (D.D.C. July 22, 2010) (Wray); In re Application of Chevron Corp., No. 3:10-cv-00686 (M.D. Tenn. Aug. 17, 2010), appeal docketed, No.10-6035 (6th Cir. Aug. 25, 2010) (Quarles); Chevron Corp. v. Champ, No. 1:10-mc-0027-GCM-DLH (W.D.N.C. Aug. 30, 2010); In re Chevron Corp., No. 10-MC-21JH/LFG (D.N.M. Sept. 1, 2010) (Kamp). Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 8 of 54

6 the support of celebrities (including Daryl Hannah and Trudie Styler) and environmental groups,

(3) “suggest[s] the possibility of misconduct on the part of both [Donziger] and GOE” in connection with the prosecution of the Individual Petitioners,11 and (4) an associate of Donziger’s

9 In re Application of Chevron Corp., 709 F. Supp. 2d 283, 296 (S.D.N.Y. 2010) (hereinafter Chevron I).

10 Id.

11 Id. at 298. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 9 of 54

“coordinat[ed] everything” with the president of Ecuador.12 But the content of the publicly released documentary film has proved to be only the tip of the iceberg.

Crude prompted Chevron and the Individual Petitioners to seek production of Mr.

Berlinger’s outtakes – the footage he shot that did not appear in the film. That effort was largely successful,13 and more than 85 percent of all of the outtakes now have been produced.

Donziger’s own words raise substantial questions as to his possible criminal liability and amenability to professional discipline. Among his other statements in the outtakes are these:

“They’re all [i.e., the Ecuadorian judges] corrupt! It’s – it’s their birthright to be corrupt.”14

12 Id. at 289, 296.

13 See id.

14 Hendricks Decl. II Ex. A, CRS-053-02-03.

15 Id., CRS-052-00-06. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 10 of 54

United States or in any judicial system that had integrity.”16

“Science has to serve the law practice; the law practice doesn’t serve science.”17

“At the end of the day, this is all for the Court, just a bunch of smoke and mirrors and bullshit.”18

“I once worked for a lawyer who said something that I have never forgotten. Facts do not exist. Facts are created. Ever since that day, I realized how the law works.”19

16 Id., CRS-053-02-01.

17 Id., CRS-158-02-09.

18 Id., CRS-195-05-01.

19 Id., CRS-198-00-06.

20 In re Chevron Corp., No. 10-MC-21 (J/LFG) [DI 11] (D.N.M. Sept. 13, 2010) (finding “that . . . discussions trigger the crime-fraud exception, because they relate to corruption of the judicial process, the preparation of fraudulent reports, the fabrication of evidence, and the preparation of the purported expert reports by the attorneys and their consultants.”); In re Application of Chevron Corp., No. 10-cv-1146-IEG (WMc) [DI 9] (S.D. Cal. Sept. 10, 2010) (crime-fraud exception applies because “[t]here is ample evidence in the record that the Ecuadorian Plaintiffs secretly provided information to Mr. Cabrera, who was supposedly a neutral court-appointed expert, and colluded with Mr. Cabrera to make it look like the opinions were his own.”); Chevron Corp. v. Champ, No. 1:10-mc-0027 (GCM-DLH) [DI 12] (W.D.N.C. Aug. 30, 2010) (“While this court is unfamiliar with the practices of the Ecuadorian judicial system, the court must believe that the concept of fraud is universal, and that what has blatantly occurred in this matter would in fact be considered fraud by any Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 11 of 54

“global assessment” of the case, (2) the Lago Agrio plaintiffs’ experts, (3) the Ecuadorian courts,

(4) the GOE, and (5) others affiliated with the plaintiffs. The matter then came before the Court on motions by Donziger and the Lago Agrio plaintiffs to quash the subpoenas.

With this overall view of where matters stand in Ecuador and how the present controversy developed, the Court turns to a more detailed consideration of the pertinent facts.

III. The U.S. Litigation Against Texaco and Chevron

This dispute arises in the context of nearly two decades of litigation concerning oil exploration and extraction in Ecuador by Texaco, which became a wholly-owned subsidiary of

Chevron in 2001.21

A. Texaco’s Operations in Ecuador

In 1964, Texaco Petroleum Company (“TexPet”), a subsidiary of Texaco, began oil exploration and drilling in the Oriente region of eastern Ecuador. In the following year, TexPet

court. If such conduct does not amount to fraud in a particular country, then that country has larger problems than an oil spill.”).

21 The background of this matter is further described in other decisions of this Court and the Second Circuit. See generally Jota v. Texaco, Inc., 157 F.3d 153 (2d Cir. 1998); Republic of Ecuador v. ChevronTexaco Corp., 376 F. Supp. 2d 334 (S.D.N.Y. 2005); Aguinda v. Texaco, 945 F. Supp. 625 (S.D.N.Y. 1996); Aguinda v. Texaco, Inc., 142 F. Supp. 2d 534 (S.D.N.Y. 2001). Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 12 of 54

10 started operating a petroleum concession for a consortium owned in equal shares by TexPet and Gulf

Chevron or Texaco.

B. The Aguinda Action

Texaco sought dismissal of the Aguinda action on the ground of forum non conveniens. It argued, among other things, that Ecuador was an adequate and appropriate alternative

22 Aguinda v. Texaco, Inc., 303 F.3d 470, 473 (2d Cir. 2002).

23 See Republic of Ecuador, 376 F. Supp. 2d at 341. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 13 of 54

11 forum. This Court ultimately dismissed the case on forum non conveniens grounds in 2001,24 and the Second Circuit affirmed.25

IV. The Settlement and Release

The release, which covered TexPet, Texaco, and related companies, encompassed “all the

Three years later, the GOE entered into an agreement with TexPet (the “Final

Release”) according to which the GOE agreed that the Settlement had been “fully performed and concluded” and “proceede[ed] to release, absolve, and discharge” TexPet and related companies

“from any liability and claims . . . for items related to the obligations assumed by TexPet” in the

Settlement.27

24 See Aguinda, 142 F. Supp. 2d 534.

25 See Aguinda, 303 F.3d 470.

26 Republic of Ecuador, 376 F. Supp. 2d at 341-42.

27 Id. at 342. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 14 of 54

V. The Ecuadorian Litigation and Criminal Prosecutions

A. The Lago Agrio Litigation, the Global Assessment and Other Evidence of Misconduct

In 2003, following the dismissal of the Aguinda action by this Court, a group of

Ecuadorians, including a number of the Aguinda plaintiffs, sued Chevron in Lago Agrio, Ecuador

It is unnecessary for present purposes to trace all of the twists and turns of the Lago

On March 19, 2007, it appointed Cabrera to serve as an independent expert. Cabrera was officially sworn on June 13, 2007, promising to “perform his duties faithfully and in accordance with science,

28 Hendricks Decl. I Ex. BB, ¶ 28.

29 Republic of Ecuador, 376 F. Supp. 2d at 342.

30 Dans Decl. Ex. 21, at 2. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 15 of 54

13 technology, and the law, with complete impartiality and independence vis-à-vis the parties.”31 On

March 28, 2008, Cabrera set the amount of damages at $16 billion and filed his report several days later. Cabrera amended his report on November 17, 2008, raising the damages figure to $27 billion.

But that is not even remotely the whole story.

For one thing, the outtakes reveal Pablo Fajardo, one of the Lago Agrio plaintiffs’

Cabrera would issue. During that meeting, Fajardo informed the group that the goal of the meeting was to “define the overall structure of [the] comprehensive expert examination.”35 Donziger later

31 Request for Judicial Notice [DI 15] Ex. B - Part 1, at 4.

32 As Crude and the outtakes make clear, Fajardo and Donziger are close associates.

33 Hendricks Decl. II Ex. A, CRS-158-02-06.

34 Id., CRS-361-11-01.

35 Id., CRS-187-01-02-02. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 16 of 54

14 clarified that the plaintiffs’ work plan would involve not only evidence and remediation, but also writing the expert’s opinion.36

The Crude outtakes reveal that Fajardo presented a PowerPoint presentation during the morning session that outlined the Plan Para Examen Pericial Global, or Plan for the Global

Expert Assessment.37 He emphasized that everyone would contribute to the report, explaining:

– in other words – you see . . . the work isn’t going to be the expert’s. All of us bear the burden.”38

Someone asked whether the final report would be prepared only by the expert. Fajardo responded that the expert would “sign the report and review it. But all of us . . . have to contribute to that

36 Id., CRS-189-00-02.

37 Id., CRS-187-01-02.

38 Id., CRS-191-00-03 (emphasis added).

Chevron and the Lago Agrio plaintiffs disagree about a portion of the translation of this clip. The disagreement, however, is immaterial for two reasons. First, the Lago Agrio plaintiffs do not dispute that Fajardo said “the work isn’t going to be the expert’s.” They instead quibble over a subsequent statement. Second, all agree that one of the plaintiffs’ American experts, through a translator, asked Fajardo in substance whether “the final report [is] going to be prepared only by the expert?” (In the alternate translation, the question is “will the final report be prepared by the expert alone?). The Lago Agrio plaintiffs contend that Fajardo responded, “What the expert will do is give his criteria . . . right . . . his opinion, and sign the report, and review it as well. But we, all of us, have to contribute to the report. Together, right.” Chevron’s translation attributes the following statement to Fajardo: “What the expert is going to do is [unintelligible] and sign the report and review it. But all of us [unintelligible] have to contribute to that report.” The substance of both translations therefore is the same. It is not disputed that the Lago Agrio plaintiffs planned to make a significant contribution to the Cabrera’s report, quarreling only as to whether Cabrera would have some limited involvement. And if there were any remaining doubt about the Lago Agrio plaintiffs’ intent, the lunch meeting the following day, which was conducted in English, offers clarity. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 17 of 54

15 report.”39 Plaintiffs’ consultant Ann Maest said, “Together?,” which Fajardo confirmed. Maest then stated, “But not Chevron,” a comment met with widespread laughter.40

In the afternoon session, the group discussed the “work plan,” the first document that

39 Id.

40 Id.

41 Id., CRS-189-00-02.

42 Id.

43 Id.

It is interesting, and possibly significant, that Donziger and Cabrera, soon to be appointed the neutral and impartial expert, already were on a first-name basis.

44 Hendricks Decl. I Ex. A, CRS-193-00-01.

45 Hendricks Decl. II Ex. A, CRS-196-00-01. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 18 of 54

Thus, the Crude outtakes give substantial reason to believe that Cabrera, the supposedly neutral expert, worked in collusion with the plaintiffs and that his report was written,

46 Id., CRS-195-05-01.

47 Id.

48 Id.

49 Id., CRS-196-00-01.

50 Id. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 19 of 54

51 Chevron challenged Cabrera’s appointment in Ecuador. The Lago Agrio plaintiffs responded that he was impartial. Neuman Decl. Ex. C, at 2.

53 Hendricks Decl. I Ex. EE, ¶ 44.

54 In re Application of Chevron Corp., No. 1:10-MI-0076-TWT-GGB, Order, at 2 (N.D. Ga. dated Mar. 2, 2010).

55 Id. at 3. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 20 of 54

I did not write this report.”56

“Q. Did you ever find that any of the sites that you inspected required any further remediation? A. No.”58

“Q. While you were working as a judicial inspection expert for the plaintiffs, did you ever conclude that TexPet had failed to adequately remediate one of the sites? A. I didn’t no.”59

Dr. Calmbacher made clear also that he had “discussed what [his] findings were on this site and others” with Donziger and believes that Donziger would have known that the reports submitted over

Calmbacher’s name were not authorized by Calmbacher.60 He testified as well that Donziger told him that “he wanted the answer to be that there was contamination and people were injured . . .

[b]ecause it makes money. That’s what wins his case.”61

There is still more disturbing evidence. Prior to the start of the global inspection, the

56 Hendricks Decl. I Ex. DD, at 116:9-10.

57 Id. at 117:16-20.

58 Id. at 113:23-25.

59 Id. at 115:15-19.

60 Id. at 118:15-119:1.

61 Id. at 92:2-11. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 21 of 54

19 room, where they apparently did some rudimentary tests.62 Indeed, Selva Viva is an entity organized in Ecuador in 2004; Donziger is the president.63

B. The Initial Criminal Investigation

Release and had violated Ecuador’s environmental laws.

62 Id. at 132:11-133:19, 107:15-108:2.

63 Hendricks Decl. I Ex. BB.

In other disturbing incidents, Donziger appears to have used a remediation cost estimate that he knew to have been overstated.

Another incident occurred later in 2006. A different expert estimated the clean-up cost at $3 billion. Id. Ex. VV. Donziger then wrote to him as follows: “GUARD THAT NUMBER WITH YOUR LIFE PLEASE. DO NOT TELL ANYBODY. THIS HAS A WAY OF GETTING BACK TO TEXACO.” Id. (emphasis in original). Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 22 of 54

TEXPET.”65 As we shall see, the same District Prosecutor in his subsequent capacity as national

Prosecutor General later decided to reopen the criminal investigation and charge the Individual

Petitioners based on the same allegations that he had previously dismissed for lack of evidence.

C. Donziger Solicits the Making of Crude

D. President Correa Takes Office

In 2006, while the Lago Agrio litigation was still pending, Rafael Vincente Correa

Delgato was elected president of Ecuador on a platform of economic and social reform. President

Correa, who describes himself as a “humanist,” a “Christian of the left,” and a proponent of

64 Dans Decl. Ex. 3, at 1-2.

65 Id. Ex. 11, at 10. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 23 of 54

Crude outtakes include a brief interview with Donziger on his way to President

On January 31, 2007, Donziger met with Joseph C. Kohn of Kohn Swift & Graf, P.C., a U.S. law firm providing financial support for the Lago Agrio litigation. The outtakes depict

Donziger explaining that the plaintiffs had been working with the Prosecutor General’s office and that, although the criminal proceedings were closed, there is “no finality” in Ecuador.70

Approximately a week later in a radio segment, plaintiffs asked President Correa to bring criminal

67 Rafael Correa Biography, supra note 66.

68 Hendricks Decl. II Ex. A, CRS-163-02-02.

69 Id.

70 Dans Decl. Ex. 2, CRS-170-00-03. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 24 of 54

22 charges against Chevron’s attorneys. Donziger specifically suggested filing criminal charges against

Pérez.71

This campaign continued. The outtakes show Donziger and others planning a press conference to pressure the Prosecutor General to bring criminal charges.72 On the following day,

Donziger asked that posters be made of “Texaco’s four accomplices,”73 including the Individual

Petitioners – posters that later were displayed at a press conference and a demonstration.

In March 2007, President Correa pledged his full support for the Lago Agrio plaintiffs.74 He followed that pledge with a meeting with Luis Yanza, co-founder of the Amazon

Defense Front and a close ally of Donziger. In a telephone conversation on or about April 23, 2007,

Yanza reported to Donziger and Fajardo on a conversation he had had with President Correa. To the extent that his report may be gleaned from the outtakes, Yanza told Donziger that President

Donziger and Fajardo, asserting on that occasion that Yanza had “coordinat[ed] everything” with

71 Id. Ex. 17.

72 Id. Ex. 2, CRS-198-00-04.

73 Hendricks Decl. II Ex. A, CRS-204-01-02.

74 Dans Decl. Ex. 12.

75 Id. Ex. 2, CRS-248-03-01.

76 Id. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 25 of 54

President Correa.77

President.” That “friendship” immediately became apparent. On the same day as his visit to the

Oriente region, President Correa issued a press release “urg[ing] the Office of the Prosecutor to permit the Prosecution of the Petroecuador officials who accepted the remediation carried out by

Texaco.”79

The fact that there was no mention of the Texaco lawyers apparently bothered

Donziger. In a telephone conversation the next day that was captured by Berlinger’s cameras,

“Chevron-Texaco . . . homeland-selling lawyers” in addition to the prosecution of Petroecuador officials.81

On November 30, 2007, Ecuador’s new Constituent Assembly, which at least then

77 Crude, 1:03:03.

78 Portions of President Correa’s visit are depicted in Crude and the outtakes.

79 Id. Ex. 14.

80 Hendricks Decl. II Ex. A, CRS-268-00-01.

81 Dans Decl. Ex. 13. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 26 of 54

Pesántez decided that the criminal case should be reopened.84

Correa, in a radio address less than two weeks later, offered his support for the criminal prosecutions:

Ecuador Forum Dissolves Congress, BBC NEWS (Nov. 30, 2007, 04:55 GMT), http://news.bbc.co.uk/2/hi/americas/7119373.stm.

83 Id. Ex. 11, at 10.

84 See id. Ex. 15.

85 Id.

86 Id. Ex. 16. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 27 of 54

In June 2009, the Prosecutor General’s office ordered Cabrera, in his capacity as the expert who conducted the environmental analysis regarding Texaco’s presence in Ecuador, to give

VI. The UNCITRAL Arbitration

The United States and Ecuador are parties to a bilateral investment treaty (the

“BIT”).90 The BIT, broadly speaking, provides that private parties having investment disputes with

87 Id. Ex. 23.

88 Id. Ex. 19.

89 Id. Ex. 20.

90 Investment Treaty With the Republic of Ecuador, Aug. 27, 1993, S. Treaty Doc. No. 103-15. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 28 of 54

Ecuador may pursue their claims in accordance with the Arbitration Rules of the United Nations

Commission on International Trade Law.91

In 2009, Chevron commenced an arbitration against Ecuador pursuant to the BIT.

It there alleges that the GOE improperly colluded with the Lago Agrio plaintiffs in relation to the

VII. The Nature of Donziger’s Activities

As noted, Donziger was among the lawyers for the plaintiffs in the Aguinda case.

When it was dismissed and the focus shifted to the Lago Agrio case in Ecuador, however, his role changed dramatically. In his own words, “[w]hen the case shifted to Ecuador, really it became much more focused on lawyers in Ecuador. It was not effective for American lawyers or the American legal team to run the case out of Ecuador.”108 Donziger has described himself as the “link to all of

91 Id. Art. VI(3)(A), VI(4).

92 Hendricks Decl. I, Ex. EE, passim.

107 Id. at 17-18.

108 Hendricks Decl. II Ex. A, CRS-027-16-05. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 29 of 54

27 the work in the United States and all of the institutional history of the case.”109 An Ecuadorian representative of the Lago Agrio plaintiffs referred to Donziger as a “big help” because he was responsible for setting up some of strategies of the Lago Agrio plaintiffs.110 In a telephone conversation about a potential book deal, Donziger assured the person with whom he was speaking that he, Donziger, is “so much a part of the story that it would be hard for someone to do a book without [his] cooperation.”111

Although Donziger and others have viewed Donziger as a member of the Lago Agrio legal team, the outtakes reveal that Donziger’s activities have gone far beyond the rendition of professional legal services, even assuming that he has performed such services to any significant degree. Donziger has made clear that the Lago Agrio litigation, in his words, is not a “legal case” but a “political battle . . . being played out through a legal case,”112 a view that dovetails with his assessment of the Ecuadorian court system as entirely corrupt and driven by politics. He has claimed that press strategy and relations are “as important, if not more important, than the lawyering that goes on in” the Lago Agrio litigation.113 In 2006, he described the next steps in the “battle” as getting “politics in order in a country that doesn’t favor people from the rainforest” and said that

“the country [has to be made] ready to deal with the idea that a judge can impose a multi-billion

109 Id.

110 Id., CRS-027-16-03.

111 Id., CRS-151-03-02.

112 Id., CRS-060-00-04.

113 Id. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 30 of 54

28 dollar judgment on an American company.”114 According to Donziger, it was important to mobilize the country politically “[s]o that no judge can rule against [the plaintiffs] and feel like he can get away with it in terms of his career.”115

Donziger has served as the field general in this political battle. Indeed when asked by a plaintiffs’ consulting expert for a statement of the facts of the case, Donziger remarked that he had not done any legal work in nearly two years.116 While this comment perhaps was offered in a somewhat jocular vein, there is substantial truth to it.

A. The March 30, 2006 Intimidation of the Judge

The outtakes depict Donziger and other plaintiffs representatives traveling to an ex

114 Id.

115 Id., CRS-032-00-01.

116 See id., CRS-198-00-06. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 31 of 54

29 parte meeting with a judge on March 30, 2006. At least parts of the meeting appear in Crude.

Prior to the meeting, Donziger described his plan to “intimidate,” “pressure,” and

“humiliate” the judge:

Donziger repeatedly referred to the Ecuadorian judicial system as “weak,” “corrupt,” and lacking integrity. He further explained to the camera:

B. The Plan to Pressure the Court With an “Army”

Over a year later, the Crude crew filmed a conversation between Donziger and

The outtakes captured a June 6, 2007 meeting in which Donziger outlined a strategy

117 Id., CRS-052-00-06. This is not the first time that Donziger deployed such a strategy. When an Ecuadorian judge would not allow Donziger to appear in court because he did not have his passport. Donziger instructed an Ecuadorian attorney to lie and say that the judge called Donziger a “gringo.” See id., CRS-046-02-01.

118 Id., CRS-053-02-01.

119 Id., CRS-346-00-02. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 32 of 54

30 to pressure an Ecuadorian court. Donziger told those present that the Lago Agrio plaintiffs needed to “do more politically, to control the court, to pressure the court” because Ecuadorian courts “make decisions based on who they fear most, not based on what the laws should dictate.”120 Donziger expressed concern that no one feared the plaintiffs, and he stated that the plaintiffs would not win unless the courts begin to fear them.121 Donziger described also his desire to take over the court with a massive protest as a way to send a message to the court of “don’t fuck with us anymore – not now, and not – not later, and never.”122 He then proposed raising “our own army” to which Yanza interjected “a specialized group . . . for immediate action.”123 At that point, Atossa Soltani of

Amazon Watch interrupted and asked whether “you guys know if anybody can, uh, subpoena these videos.”124 Donziger responded, “We don’t have the power of subpoena in Ecuador.”125 Soltani then asked “What about U.S.?,” but Donziger interrupted her and ignored the question.126 She persisted, saying “I just want you to know that it’s . . . illegal to conspire to break the law” to which Donziger said, “No law’s been conspired to be broken.”127 The conversation about raising an army to pressure

120 Id., CRS-350-04-01.

121 Id.

122 Id.

123 Id., CRS-350-04-02.

124 Id.

125 Id.

126 Id.

127 Id. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 33 of 54

31 the court then continued, with Yanza waving the camera away as he told Donziger that the

“army”could be supplied with weapons.128

Chevron for moral damages or pressuring the Prosecutor General to open criminal investigations was not sufficient to make the judge feel pressure.129 Donziger asserted that the plaintiffs needed to do things that the judge would “really feel” such as being “called out” by the president of the country or the supreme court, implying that Donziger and others could develop strategies that would result in such actions.130

C. Killing the Judge?

128 Id.

129 Id., CRS-376-04-01.

130 Id.

131 Id., CRS-129-00-02. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 34 of 54

Discussion

Court here sets out more fully its reasons for having denied the motions.

I. Judicial Code Section 1782

Section 1782 of the Judicial Code provides in pertinent part:

“any interested person.”133 A district court, however, is not required to grant a Section 1782

132 28 U.S.C. § 1782.

133 Schmitz v. Bernstein, Liebhard & Lifshitz, LLP, 376 F.3d 79, 83 (2d Cir. 2004) (quoting In re Esses, 101 F.3d 873, 875 (2d Cir. 1996) (per curiam)). Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 35 of 54

33 application simply because it has the authority to do so.134 “Once the statutory requirements are met, a district court is free to grant discovery in its discretion.”135

The Supreme Court has identified four discretionary factors to guide the Court’s determination whether to grant a Section 1782 application: (1) whether the material sought is within the foreign tribunal’s jurisdictional reach and thus accessible absent Section 1782 aid; (2) the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court jurisdictional assistance; (3) whether the Section 1782 request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States; and (4) whether the subpoena contains unduly intrusive or burdensome requests.136 In addition, “district courts must exercise their discretion under Section 1782 in light of the twin aims of the statute: ‘providing efficient means of assistance to participants in international litigation in our federal courts and encouraging foreign countries by example to provide similar means of assistance to our courts.’”137

A. Statutory Requirements

Donziger is located in New York. Chevron and the Individual Petitioners all are

“interested” persons. Chevron is a party to both the Lago Agrio litigation and the arbitration. The

134 Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264 (2004); In re Application of Microsoft Corp., 428 F. Supp. 2d 188, 192 (S.D.N.Y. 2006).

135 Schmitz, 376 F.3d at 83-84.

136 Intel, 542 U.S. at 264-65; Microsoft Corp., 428 F. Supp. 2d at 192-93.

137 Schmitz, 376 F.3d at 84 (quoting In re Metallgesellschaft AG, 121 F.3d 77, 79 (2d Cir. 1997)). Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 36 of 54

Individual Petitioners are facing criminal charges in Ecuador. The Ecuadorian civil and criminal courts are foreign tribunals. The BIT, a tribunal established by an international treaty, is a foreign tribunal for purposes of Section 1782 applications.138 Chevron and the Individual Petitioners therefore all have satisfied the threshold requirements of Section 1782.

B. Discretionary Factors

Donziger asserts that the discretionary factors weigh in favor of quashing the subpoenas.

The first three discretionary factors favor Chevron and the Individual Petitioners for the same reasons set out in Chevron I,139 and there is no need to repeat that analysis in full.

Crude outtakes, bragged that there is no “power of subpoena” in Ecuador.140

Cabrera’s) documents in any case would be beyond the reach of the BIT tribunal. Even more

138 Chevron I, 709 F. Supp. 2d at 291.

139 Id. at 291-93.

140 Hendricks Decl. II Ex. A, CRS-350-04-02. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 37 of 54

141 See, e.g., Chevron I, 709 F. Supp. 2d 283; In re Application of Chevron Corp., No. 1:10-mi-00076 (N.D. Ga. Mar. 2, 2010) (Calmbacher); Chevron v. Stratus Consulting, Inc., No. 10-cv-00047 (D. Colo. Mar. 4, 2010); In re Application of Chevron Corp., No. 4:10-mc-134 (S.D. Tex. Apr. 5, 2010) appeal docketed, No. 10-20389 (5th Cir. June 11, 2010) (3TM); In re Application of Chevron Corp., No. 2:10-cv-02675 (D.N.J. June 15, 2010), appeal docketed, No.10-2815 (3d Cir. June 18, 2010) (UBR); In re Application of Chevron Corp., No. 10-cv-1146-IEG (WMc) (S.D. Cal. June 23, 2010) (E-Tech); In re Application. of Chevron Corp., No. 1:10-mc-00371 (D.D.C. July 22, 2010) (Wray); In re Application of Chevron Corp., No. 3:10-cv-00686 (M.D. Tenn. Aug. 17, 2010), appeal docketed, No.10-6035 (6th Cir. Aug. 25, 2010) (Quarles); Chevron Corp. v. Champ, No. 1:10-mc-0027-GCM-DLH (W.D.N.C. Aug. 30, 2010); In re Chevron Corp., No. 10-MC-21JH/LFG (D.N.M. Sept. 1, 2010) (Kamp). Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 38 of 54

36 litigation and the criminal proceedings.142 Finally, sight must not be lost of the role of the discovery sought here in respect of the BIT arbitration. Certainly this discovery would be helpful to that tribunal.

Third, it is not likely that discovery pursuant to these applications would undermine

II. Deposition of Adverse Counsel

“Courts have been . . . concerned about the burdens imposed on the adversary process when lawyers themselves have been the subject of discovery requests, and have resisted the idea that lawyers should routinely be subject to broad discovery.”143 Despite that concern – which has been born also of a reluctance to intrude on the attorney-client relationship and a sense that depositions

142 See, e.g., Chevron I, 709 F. Supp. 2d at 292 .

143 In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 70 (2d Cir. 2003) (hereinafter In re Friedman). Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 39 of 54

37 of adversary counsel are unseemingly – our Circuit has adopted a “flexible approach” that affords district courts discretion to permit such discovery when appropriate rather than prohibiting or more severely restricting discovery of adverse counsel.144 Indeed, it has made clear that “the disfavor with

. . . the practice of seeking discovery from adversary counsel is . . . not a talisman for the resolution of all controversies of [that] nature.”145 Rather, district courts in such cases are to “consider[] all of the relevant facts and circumstances,” including:

The Court considered all of these factors in exercising its discretion to decline to quash the subpoenas.

A. The Need to Depose Donziger

144 Id. at 69-72.

145 Id. at 71.

146 Id. at 72. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 40 of 54

Agrio litigation, he is “so much a part of the story that it would be hard for someone to do a book without [his] cooperation.”147

Donziger’s central role is undeniable. The need for his testimony and documents is very strong indeed.

B. Donziger’s Role

147 Hendricks Decl. II Ex. A, CRS-151-03-02. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 41 of 54

39 is important to the resolution of the lawsuit. Both of these considerations cut strongly against quashing the subpoenas.

It is important to recognize at the outset that Donziger is a New York, rather than an

Ecuadorian, lawyer. He most assuredly is not litigating the criminal charges against the Individual

Petitioners, which are in the hands of the GOE. While he is involved with the Lago Agrio plaintiffs’

Nor is this a case in which the applicants have sought discovery of Donziger to gain access to information that he gathered in the manner in which litigating counsel, lacking personal knowledge of any of the facts at issue in the lawsuit, normally gather information – interviewing witnesses and reviewing documents and other evidence. Rather, the proposed discovery focuses on matters concerning which Donziger is a percipient witness and a principal actor. In other words, the discovery is sought to shed light on what Donziger and those working with him did, allegedly Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 42 of 54

40 in corrupting the process in Ecuador. The special solicitude ordinarily shown to litigation counsel with respect to discovery in the cases that they handle is unwarranted in these circumstances.

C. Extent of Discovery Already Conducted

D. Risk of Encountering Privilege and Work-Product Issues

The fourth of the factors articulated in Friedman is the risk that proceeding with the deposition of adverse counsel would encounter privilege and work-product issues.

Of course, Donziger has attempted to invoke both attorney-client privilege and work product in an effort to head off any discovery against him. So too might any attorney faced with a demand for his or her documents or deposition. Hence, there is a risk that a court will have to Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 43 of 54

41 resolve such claims whenever a litigant seeks a deposition of adverse counsel. But the Second

Circuit in Friedman rejected any per se rule against even depositions of active litigation counsel.148

Indeed, it rejected the Eighth Circuit’s view that a litigant seeking a deposition of adverse counsel must demonstrate, inter alia, that “the information sought is relevant and not privileged.”149 Rather, it “requires a flexible approach to lawyer depositions whereby the judicial officer supervising discovery takes into consideration all of the relevant facts and circumstances . . . [which] may include . . . the risk of encountering privilege and work product issues.”150 As every such case entails at least some risk of encountering such issues, what is required is a sensitive consideration of the extent to which substantial privilege issues are raised, their likely merit or lack thereof, and whether the effort that would be required to resolve those issues would be outweighed by the need for the discovery of whatever non-privileged information the lawyer may have. Naturally, the first step in this analysis is to focus on the scope of the attorney-client privilege and the work product doctrine, each of which is considerably narrower than is implied by the capacious claims made by

Donziger.

1. Basic Principles

A party invoking the attorney-client privilege has the burden of showing, as to each allegedly privileged communication, that the communication was (1) between counsel and client,

148 See In re Friedman, 350 F.3d at 71 (“the disfavor with which the practice of seeking discovery from adversary counsel is regarded is not a talisman for the resolution of all controversies of this nature”).

149 Id. at 70-72.

150 Id. at 72. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 44 of 54

(2) intended to be and remained confidential, and (3) made for the purpose of providing or obtaining legal advice.151 The “predominant purpose” of a communication must involve legal advice. A court should determine predominant purpose of a communication “dynamically and in light of the advice being sought or rendered, as well as the relationship, between advice that can be rendered only consulting the legal authorities and advice that can be given by a non-lawyer.”152 A lawyer’s “dual legal and non-legal responsibilities may bear on whether a particular communication was generated for the purpose of soliciting or rendering legal advice.”153

This latter point is especially significant in this case. As demonstrated above,

Donziger – at least in major respects – has not functioned as a lawyer with respect either to the Lago

Agrio litigation or the criminal prosecution. As Crude and the outtakes make clear, his efforts have been concentrated heavily in media and public relations, lobbying, and political activism. But communications, even between lawyer and client, are not privileged unless they are made for the purpose of rendering legal advice154 or, to use another formulation, unless they relate to the rendition of “professional legal services.”155 Hence, the attorney-client privilege does not apply to communications with respect to many of the activities in which Donziger has engaged, at least in

151 United States v. Const. Prod. Research, Inc.,73 F.3d 464, 473 (2d Cir.1996).

152 In re County of Erie, 473 F.3d 413, 420-21 (2d Cir. 2007).

153 Id. at 421.

154 Const. Prod. Research, Inc.,73 F.3d at 473.

155

SUP. CT. STD. 503. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 45 of 54

43 the absence of very unusual circumstances.137

The work product doctrine is comparable in this respect. It “provides qualified protection for materials prepared by or at the behest of counsel in anticipation of litigation or for trial.”138 Its purpose “is to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy ‘with an eye toward litigation,’ free from unnecessary intrusion by his adversaries.”139 It is not intended, however, to obscure “what [i]s essentially a lobbying and political effort,” even one undertaken by a lawyer.140 Put another way:

137 See, e.g., NXIVM Corp. v. O'Hara, 241 F.R.D. 109, 130 (N.D.N.Y. 2007) (when an attorney is “wearing multiple hats and . . . advising . . . on anything and everything other than legal services, whether business, media, public relations, or lobbying, there is no attorney-client privilege”); Haugh v. Schroder Inv. Mgmt. North America Inc., No. 02 Civ. 7955, 2003 WL 21998674, at *3 (S.D.N.Y. Aug. 25, 2003) (“A media campaign is not a litigation strategy. Some attorneys may feel it is desirable at times to conduct a media campaign, but that does not transform their coordination of a campaign into legal advice.”); In re Grand Jury Subpoenas dated March 9, 2001, 179 F. Supp. 2d 270, 274, 290 (S.D.N.Y. 2001) (communications with lawyers acting as lobbyists not privileged); City of Springfield v. Rexnord Corp., 196 F.R.D. 7, 9 (D.Mass. 2000) (documents prepared to respond to media inquires not privileged); Burton v. R.J. Reynolds Tobacco Co., Inc., 170 F.R.D. 481, 487 (D.Kan. 1997) (“The fact that the client chose to channel the work through an attorney rather than perform the work with non-legal personnel does not provide the basis for a claim of privilege.”).

138 In re Grand Jury Subpoenas Dated March 19, 2002 and August 2, 2002, 318 F.3d 379, 383 (2d Cir. 2003).

139 United States v. Adlman, 134 F.3d 1194, 1196 (2d Cir.1998) (quoting Hickman v. Taylor, 329 U.S. 495, 511 (1947)).

140 In re Grand Jury Subpoenas dated March 9, 2001, 179 F. Supp. 2d at 290 (no work product protection for lawyers involved in seeking a pardon, a political and lobbying enterprise). Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 46 of 54

legal] efforts.”141

2. The Normal Means of Claiming Privilege

There is a well-established procedure for the invocation of alleged privileges in response to subpoenas and other demands for tangible evidence. Those in possession, custody or control of allegedly privileged documents called for by subpoenas and document requests are obliged to enumerate the documents as to which they claim privilege and assert their privilege claims in the manner prescribed by both local and federal rules.142 In most circumstances, a party cannot rely on “mere conclusory or ipse dixit assertions, for any such rule would foreclose meaningful inquiry into the existence of the relationship, and any spurious claims could never be exposed.”143

141

Id. at 285 (quoting EDNA STEIN EPSTEIN, THE ATTORNEY-CLIENT PRIVILEGE & THE WORK PRODUCT DOCTRINE 239 (2001)) (internal quotation marks omitted).

142

FED. R. CIV. P. 26(b)(5)(A); S.D.N.Y. CIV. R. 26.2.

143 von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 146 (2d Cir. 1987) (quoting In re Bonanno, 344 F.2d 830, 833 (2d Cir.1965)). Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 47 of 54

45 from being deposed or called to testify at a trial or before a grand jury.144 Rather, the witness must appear and give testimony. When a question seeking disclosure of allegedly privileged material is posed, however, the holder of the alleged privilege may object and delay disclosure until a court rules on the objection. When an objection is made the party seeking disclosure nevertheless is entitled to discover the dates and places of and the identities of the participants in the communications, the identities of others who were present and to whom the communications were disclosed, and the general subject matter (but not the content) of the communications.145 This permits the party seeking disclosure and, if need be, the court to know which communications are at issue, something about their general nature, whether they in fact were confidential, and whether any privilege has been waived by disclosure of the contents of the communications to persons other than the attorney and client. Once such a record is developed, the court rules on the objection.

These procedures serve vitally important purposes. The attorney-client privilege and the work product doctrine can serve to conceal highly relevant evidence that may be important to the just resolution of a controversy. The burden of establishing their applicability therefore rests with the party asserting them. Moreover, the adverse party has the right to challenge such assertions by pointing to a failure to satisfy their prerequisites or establishing waiver or some other reason for disclosure of otherwise protected evidence.146 Dispensing with the usual procedures effectively

144

145

See FED. R. CIV. P.26(b)(5)(A); S.D.N.Y. CIV. R. 26.2.

146 For example, a party resisting a claim of privilege or work product could establish that the material in question is not protected by virtue of the crime-fraud exception. Many claims of work product may be overcome by a showing of good cause for disclosure. FED. R. CIV. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 48 of 54

3. Application to Donziger

With these principles in mind, we turn to Donziger’s claims.

Ecuador and is not conducting the Lago Agrio litigation.

Second, most of the discovery sought by the applicants is of communications involving third parties, such as the GOE and Cabrera, who have not been shown to be within any privileged relationship.147

Third, there is substantial evidence that suggests that Donziger’s predominant role with respect to the matters in Ecuador is not the rendition of professional legal services, but politics,

P. 26(b)(3)(A).

147 The Lago Agrio plaintiffs attempt to avoid disclosure of communications between Donziger and others in their corner with the GOE on the theory that they have a common interest with the GOE and that this “protect[s] the confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel.” But the existence of a common interest privilege has not been established. Moreover, acceptance the common interest claim at this stage would have prevented Chevron and the Individual Petitioners from challenging the claim. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 49 of 54

Fourth, there is more than a little evidence that Donziger’s activities – as several courts already have held in the context of Section 1782 applications against experts involved on the

Lago Agrio plaintiffs’ side – come within the crime-fraud exception to both the privilege and to work product protection.148

1782 proceedings that he has communicated with various experts in relation to the Lago Agrio litigation – knowledge or materials that might enjoy qualified work product protection. But even that is far from clear. Whatever has passed between him and Cabrera and other testifying experts is not subject to work product protection149 even without regard to issues of waiver and the crime- fraud exception. And while interactions with non-testifying experts might enjoy work product

148 In re Chevron Corp., No. 10-MC-21JH/LFG [DI 11] (D.N.M. Sept. 13, 2010); In re Application of Chevron Corp., No. 10-cv-1146-IEG (Wmc) [DI 9] (S.D. Cal. Sept. 10, 2010); Chevron Corp. v. Champ, No. 1:10-mc-0027-GCM-DLH [DI 12] (W.D.N.C. Aug. 30, 2010).

149 See, e.g., Lugosch v. Congel, 219 F.R.D. 220, 250 (N.D.N.Y. 2003) (“[I]nformation considered by the [testifying] expert should be disclosed notwithstanding the presence of work product consideration.”); Mfg. Admin. & Mgmt. Systs., Inc. v. ICT Group, Inc., 212 F.R.D. 110, 115-16 (E.D.N.Y. 2002) (attorney work product not protected when shared with testifying experts); MIC Commc’ns Corp. v. Dataline, Inc., No. 01 Civ. 3849(LAP) (DFE), 2001 WL 1335291, at *1 (S.D.N.Y. Oct. 30, 2001) (collecting cases); B.C.F. Oil Ref. v. Consol. Edison Co., 171 F.R.D. 57, 66 (S.D.N.Y. 1997) (holding that attorney work product reviewed by a testifying expert is not protected by work product). Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 50 of 54

Section 1782 proceeding brought by Chevron to obtain discovery from an expert.150 Moreover, most work product is not protected absolutely and is discoverable on a showing of good cause.151

150 In re Application of Chevron Corp., No. 10-cv-1146-IEG (Wmc) [DI 9] (S.D. Cal. Sept. 10, 2010).

151

See FED. R. CIV. P. 26(b)(3)(A). Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 51 of 54

49 expert, could defeat the purpose of Section 1782, deprive the Individual Petitioners of evidence needed for their defense in a criminal case, and frustrate the BIT arbitration.

The proper course is to allow the process to go forward and to adjudicate the claims of privilege in due course.152

152 Donziger has advanced no persuasive reason why he should not be compelled to claim privilege in the same manner as any other litigant – providing a privilege log enumerating the documents as to which privilege is claimed, claiming privilege in response to deposition questions, and in each case providing such information as may be necessary to make out his claim. Although Donziger claims that a privilege review of his files would be “time consuming” and “complicated,” the Court is not persuaded that he should not be required to conform to the usual rules because, among other things, (1) he has provided no estimate of the number of documents as to which he has colorable claims of privilege, (2) Chevron has dropped the one subpoena request that blatantly called for privileged information, Chevron Mem. 48, and (3) his evidence is so central to the applicants’ interests. Moreover, it appears that there can be no viable claim of privilege with respect to large areas of the discovery sought because it involves communications between Donziger and unrelated third parties. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 52 of 54

III. The Proposed Modification of the Subpoenas

In the alternative, Donziger suggested that the Court limit the subpoenas to communications with Cabrera and Ecuadorian prosecutorial authorities.153 This proposal was not persuasive.

These communications are highly relevant to extent that they might shed light on any alleged improper communications with that court.

Second, Donziger’s proposal would narrow Chevron Request 6/Individual Petitioners

Request 6 inappropriately. Donziger suggested limiting the request to communications with

Third, Donziger’s suggested modifications ignore the notion that alleged improper influence is not limited to direct communications with Cabrera and prosecutorial authorities.

Chevron Requests 7-19, 23-24, 26/Individual Petitioners Requests 7-19, 21-22, 24, relate to laboratories, environmental consulting firms, and specific consulting experts that might have been

153 Donziger Mem. 20. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 53 of 54

51 involved with the alleged improper influence on the Cabrera report.154 Donziger’s proposal would prevent discovery of such communications, which the Court views as highly relevant. Furthermore,

154 It must be borne in mind that there is evidence that the purpose of the March 3, 2007 meeting was to outline a work plan pursuant to which consultants hired by the Lago Agrio plaintiffs would at least contribute to and at worst write Cabrera’s report. Case 1:10-mc-00002-LAK Document 97 Filed 11/05/10 Page 54 of 54

Conclusion

For the foregoing reasons, as well as those set forth in the Court’s prior ruling, the motions to quash the subpoenas were denied in the exercise of the Court’s discretion.

SO ORDERED.

Dated: November 4, 2010 Case 1:10-mc-00021-JCH-LFG Document 77 Filed 09/02/10 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

CHEVRON CORPORATION,

Petitioner, CIVIL NO. 10-MC-21JH/LFG

To Issue Subpoenas For the Taking of Depositions and the Production of Documents.

Consolidated with

In Re Application of RODRIGO PÉREZ PALLARES, an Eduadorian citizen, and RICARDO REIS VEIGA, an American citizen,

Petitioners. CIVIL NO. 10-MC-22 JH/LFG

for an Order to Conduct Discovery for Use in Foreign Proceedings.

AMENDED MEMORANDUM OPINION AND ORDER AUTHORIZING DISCOVERY1

THIS MATTER is before the Court2 on consolidated Applications by Chevron Corporation,

Rodrigo Pérez Pallares and Ricardo Reis Veiga (“Applicants”) for an order authorizing discovery

pursuant to 28 U.S.C. § 1782.

Applicants seek to obtain discovery from individuals who reside in or may be found within

the District of New Mexico for use in legal proceedings pending before foreign tribunals in Ecuador and the Netherlands. Specifically, Applicants wish to take depositions and obtain document

1This Amended Memorandum Opinion and Order is filed to correct a typographical error in the original.

2This matter was referred to the undersigned Magistrate Judge [Doc. 53] for disposition, as it relates to a discovery dispute. Case 1:10-mc-00021-JCH-LFG Document 77 Filed 09/02/10 Page 2 of 12

production from Respondents Richard A. Kamp (“Kamp”), a New Mexico resident, and E-Tech

International (“E-Tech”), a corporation with its principal place of business within this judicial district. Applicants contend that the discovery from Respondents is relevant to the claims and defenses pending before the foreign tribunals, and seek to take discovery that would be helpful to such tribunals.3

The Court considered the Applications, Kamp and E-Tech’s (“Respondents”) Response

[Doc. 60], the Replies [Docs. 70, 72] and the documents submitted in support and opposition to the requests, and determines that oral argument is not necessary.

Factual and Procedural Background

In 2003, a lawsuit was filed in the Republic of Ecuador seeking damages from Chevron for environmental damage allegedly caused by its oil exploration and drilling activities. The lawsuit is captioned Maria Aguinda y Otros v. Chevron Corporation and is generally referred to as the

“Lago Agrio Litigation.” That case is currently pending in the Superior Court of Nueva Loja,

Ecuador. Also pending in Ecuadorian courts are criminal proceedings brought against Pérez and

Veiga, Respondents in this case, arising from their work as attorneys for a subsidiary of Chevron.

The other foreign proceeding at issue in connection with Applicants’ request for discovery is a international arbitration brought in September 2009 in the Hague, Netherlands, by Chevron under the Bilateral Investment Treaty between the United States and Ecuador. That case, captioned

Chevron Corporation and Texaco Petroleum Corporation v. The Republic of Ecuador, arises from the Lago Agrio Litigation.

3Richard Kamp’s website states in part, “Kamp worked with E-Tech staff on assessing Chevron- Texaco oil dumping environmental impacts in Ecuador . . . .” Indeed, it was Richard A. Kamp’s and E-Tech International’s work that serves as the basis for the discovery requests. http://www.etechinternational.org/staff.html.

2 Case 1:10-mc-00021-JCH-LFG Document 77 Filed 09/02/10 Page 3 of 12

In the Lago Agrio Litigation, the Ecuadorian court ordered a global assessment of

environmental damages to be conducted by a team of expert witnesses, but thereafter substituted a

sole expert, Richard Cabrera-Vega (“Cabrera”), as Special Master for that purpose. Cabrera issued

a voluminous Special Master’s report assessing damages against Chevron in the amount of 27 billion

dollars. Subsequent to issuance of the report, Applicants discovered evidence supporting claims of

corruption of the judicial process, fraud, attorney collusion with the Special Master, inappropriate

ex parte communications with the court, and fabrication of reports and evidence. This newly

discovered evidence concerns information created by the Lago Agrio plaintiffs’ lawyers themselves.

In 2005, Steven Donziger, one of the lead attorneys for the Lago Agrio plaintiffs, solicited

a filmmaker to create a real-time documentary relating to the litigation. The result was a film

entitled “Crude,” which concerned the planning, strategies, investigation, litigation, and outcome

of the lawsuit. The filmmaker accumulated over 600 hours of raw film footage.

Upon learning of this footage, Applicants filed applications under 28 U.S.C. § 1782 in the

Southern District of New York, seeking production of hundreds of hours of outtake footage. See

In re Application of Chevron Corporation, ___ F. Supp. 2d ___, 2010 WL 1801526 (S.D.N.Y. May

10, 2010)(correcting opinion issued on May 6). The district court in the Southern District of New

York ordered production of the outtakes and Respondents appealed. On July 15, 2010, the Second

Circuit affirmed the production order. See, In re Application of Chevron Corporation, No. M-19-

111, 2010 WL 2891202 (S.D.N.Y. July 20, 2010), at * 1.

The release of many hours of the outtakes has sent shockwaves through the nation’s legal

communities, primarily because the footage shows, with unflattering frankness, inappropriate,

3 Case 1:10-mc-00021-JCH-LFG Document 77 Filed 09/02/10 Page 4 of 12

unethical and perhaps illegal conduct.4 In the film itself, Attorney Donziger brags of his ex parte contacts with the Ecuadorian judge, confessing that he would never be allowed to do such things in the United States, but, in Ecuador, everyone plays dirty.5 The outtakes support, in large part,

Applicants’ contentions of corruption in the judicial process. They show how non-governmental organizations, labor organizations, community groups and others were organized by the Lago Agrio attorneys to place pressure on the new Ecuadorian government to push for a specific outcome in the litigation, and how the Ecuadorian government intervened in ongoing litigation.

Chevron asserts that the outtakes reveal that Respondent Kamp, along with E-Tech’s chief scientist Maest, were present at a meeting with Lago Agrio’s counsel, their consultants and Cabrera to plan Cabrera’s expert investigation and report; and the meeting was held weeks before Cabrera was appointed as the Lago Agrio Litigation Special Master [Doc. 2 at 3-4]. The footage shows one of the Lago Agrio Ecuadorian attorneys explaining that the Special Master’s report will be prepared by Lago Agrio attorneys and their consultants, and not by the Special Master.6

4After being told by Kamp and E-Tech’s chief scientist, Anne Maest (“Maest”), that there is no evidence of groundwater contamination except at the oil pits themselves, and certainly no evidence of extensive contamination, attorney Donziger stated, “Hold on a second, you know. This is Ecuador. Okay? You can say whatever you want and at the end of the day, there’s a thousand people around the courthouse [and] you’re going to get what you want.” [Doc. 13, Ex. A, at 195-00-CLIP-05]. When pressed by Kamp, Maest, and another scientist about the absence of evidence, Donziger states, “And [it] really wouldn’t matter that much . . . because at the end of the day, this is all for the court, just a bunch of smoke and mirrors and bullshit. It really is. We have enough to get money, to win.” [Id.].

5David Folkenflik, “A ‘Crude’ Awakening: Chevron vs. the Documentarian,” All Things Considered, National Pubic Radio (June 4, 2010), audio clip at 2:05-2:15, available at http://www.npr.org/templates/story/story.php?storyId=127410188, as of August 31, 2010.

6Pablo Fajardo (Lago Agrio’s Ecuadorian attorney) stated, “The plaintiffs’ technical coordinator must be [involved] in the process full time. Accompany the expert in the field. In other words, we’ll attach an attorney who will always be in the field to also protect the activity being performed. To provide facilities and necessary support to the field team. To support the expert in writing the report. And here is where we do want support of our entire technical team . . . of experts, scientists, attorneys, political scientists so that all will contribute to that report–in other words, you see, the work isn’t going to be the expert’s.” [Doc. 13, Ex. A, at 191-00-CLIP-03].

4 Case 1:10-mc-00021-JCH-LFG Document 77 Filed 09/02/10 Page 5 of 12

The outtakes include a luncheon meeting with Kamp, E-Tech’s chief scientist Maest, Charles

Champ (another consultant) and Attorney Donziger. Kamp, Maest and Champ candidly state that the investigations show water contamination only at the pit sites and do not support an assertion of widespread groundwater contamination. [Doc. 13, Ex. A, at 195-00-CLIP-05].

Undeterred by the news that the investigation did not support claims of groundwater

contamination and the multi-billion dollar remediation costs that would naturally flow, Donziger

tells Kamp and the chief scientist that they can “extrapolate” findings of contamination at the pits to other areas, on nothing more than a theory. Id. In other words, contamination of the pits could

be “extrapolated” to areas with no documented contamination. The admonition appears to have

been effective, as the Cabrera Report now lists extensive water contamination and multi-billion

dollars of remediation costs, allegedly caused by Chevron and Texaco’s oil exploration activities.

[Doc. 17, Ex. Q].

Chevron alleges that the Cabrera Report is the sole “damage assessment” presented to the

Ecuadorian court in the Lago Agrio Litigation. In the Treaty Arbitration litigation in the Hague,

Chevron contends that the Republic of Ecuador is colluding with the Lago Agrio plaintiffs to use

the Cabrera Report to support a grossly improper damages award against Chevron, and to shift the

Ecuadorian government’s own environmental liability onto Chevron.

Meanwhile, Pérez, a citizen of Ecuador, and Veiga, a citizen of the United States, were

served with a criminal Accusation in Ecuador. They are attorneys and represented Texaco

Petroleum Company (“TexPet”), now a subsidiary of Chevron, in negotiating with the Government

of Ecuador and Ecuador’s state-owned oil company a Final Release of TexPet with respect to any

future claims for damage to the environment arising from its oil operations in Ecuador. The criminal

charges arise from allegations that the Final Release was executed based on a false certification that

5 Case 1:10-mc-00021-JCH-LFG Document 77 Filed 09/02/10 Page 6 of 12

certain environmental remediation had been completed, when it fact it had not. Pérez and Veiga

contend that the criminal charges are unfounded, and that the prosecution was brought in bad faith

in order to pressure Chevron to pay billions of dollars to settle the Lago Agrio Litigation.

Analysis

Applicants in this matter are proceeding under 28 U.S.C. § 1782. This statute provides

authority for a United States court to authorize discovery for use in a foreign tribunal, and it states

in pertinent part:

The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a . . . request made by a foreign or international tribunal or upon the application of any interested person . . . . A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.

Exigent circumstances occasioned by time deadlines imposed by the Ecuadorian court in the Lago Agrio Litigation compelled this Court to order expedited briefing on the requests for discovery under § 1782.

A. Expedited Briefing and Waiver of Objections

Chevron’s urgent need for discovery is based on its assertion that “[o]n August 2, 2010, the

Ecuadorian court issued an order, at Plaintiffs’ request, directing the parties to file by September 16,

2010, submissions ‘setting forth and justifying their positions . . . with respect to the economic and

applicable criteria for remediation of environmental damages’ – topics that relate directly to the

discovery here.” [Doc. 2, at 4].

Pérez and Veiga’s urgent need for discovery is based their assertion that they were served

with a Criminal Accusation on June 17, 2010, and they need this discovery to aid in their defense.

6 Case 1:10-mc-00021-JCH-LFG Document 77 Filed 09/02/10 Page 7 of 12

They state they face a preliminary hearing which may be set at any time, with as little as ten days’ notice. [Doc. 70, at 5].

On August 20, 2010, this Court issued an Order to Show Cause [Doc. 50 in 10-MC-21, and

Doc. 13 in 10-MC-22] directing Respondents to show cause why they should not be compelled to

respond to discovery and, specifically, to state any objections they have to the proposed discovery.

Respondents were directed to show cause in writing prior to 5:00 p.m. on August 25, 2010,

why an order should not be issued granting the Applications.7 While the response was timely filed,

the entirety of the response was directed at urging this Court to deny the Applications because a

prior application was filed in the United States District Court for the Southern District of California,

or to transfer these proceedings to the District Court in California, or to stay proceedings pending disposition of the California court’s ruling.8

Inexplicably, while Respondents objected to the Applications, they failed to state any

objection to the specific document requests or proposed discovery. The failure to object does not

appear to be an oversight, as Respondents sought, without Court authorization, to preserve the right

to file objections at a later date. Unfortunately, a party may not establish its own schedule to file objections. In this case, the Court gave Respondents a specific deadline for filing objections to the proposed discovery. That deadline lapsed and no objections were filed.

A party failing to assert objections to a discovery request in a timely and adequate fashion waives the right to bring those objections, even if the objections would have been sustained had they been brought correctly. Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984).

7At Respondents’ request, the response time was extended to midnight on August 25, 2010.

8Respondents’ arguments for dismissal, transfer or stay were made moot when the district court in the Southern District of California court stayed its own proceedings so as to allow this Court to act on the Applications [Doc. 77].

7 Case 1:10-mc-00021-JCH-LFG Document 77 Filed 09/02/10 Page 8 of 12

See also, Wang v. Hsu, 919 F.2d 130 (10th Cir. 1990) (a party failing to lodge timely objections to a subpoena duces tecum similarly waives the right to object).

Respondents contend that they have not been given enough time to brief the underlying substantive issues as to propriety of the requested discovery. As noted above, instead of briefing these issues Respondents presented the argument, now moot, that the case should be transferred to the Southern District of California. In the alternative, they requested that this Court establish a longer briefing schedule. Respondents further state in their Response:

If the Court permits the Chevron Applicants to issue their proposed subpoenas, Respondents and the Ecuadorian Plaintiffs reserve the right to raise all of their substantive arguments – including those based on the text of Section 1782, on the propriety of discovery under the U.S. Supreme Court’s Intel factors, and on the applicability of any privilege – in the context of a motion to quash.

[Doc. 60, at 24 & n.9].

Respondents contend that Chevron “fabricated” a false urgency in this case and there is no reason to issue an expedited decision. Respondents say that they actually asked the Ecuadorian court to extend the time for the parties to submit new damage submissions. However, Chevron points out that the Lago Agrio plaintiffs filed a document on June 21, 2010 in which they request that the Ecuadorian court set a 30-day deadline for the parties to submit any final information about the Cabrera Report “to assure that this trial may proceed to conclusion without further delay and distraction resulting from Chevron’s attacks in foreign [i.e., United States] courts.” [Doc. 71, at 5].

This language indicates that the Lago Agrio plaintiffs would resist any attempt by Applicants to submit evidence obtained in these §1782 proceedings after the short deadline.

Respondents also contend that the Ecuadorian court’s August 2, 2010 order did not place any deadline on additional submissions concerning the Cabrera Report. However, Chevron points out that the Ecuadorian court ruled that, after the 45-day deadline established in its August 2 order, it

8 Case 1:10-mc-00021-JCH-LFG Document 77 Filed 09/02/10 Page 9 of 12

would not consider “any other pleadings that the parties may submit.”

The Court finds that the urgency is real, not only for Chevron but also for Applicants Pérez and Veiga, who face criminal charges related to their representation of a subsidiary of Chevron in the Ecuadorian courts. The Court agrees with Pérez and Veiga that they “face serious criminal charges that threaten their liberty and seek evidence here to demonstrate that these charges are baseless. Their urgent need for this evidence is genuine.” [Doc. 70, at 5].

In addition, it is apparent that Respondent E-Tech already filed extensive briefing in the proceedings in the Southern District of California, and that the Respondents’ claim that they need more time to brief the issues is simply unbelievable. Unfortunately for Respondents, they chose to ignore the urgency of these proceedings and to use the time allotted by this Court to argue that the proceedings are more properly brought elsewhere. In so doing, they waived their right to present their substantive arguments to this Court.

B. Basis for Granting Discovery

By its own terms § 1782 authorizes a district court to grant an application where (1) the person from whom discovery is sought resides or is found in the district; (2) the discovery is for use in a proceeding before a foreign tribunal; and (3) the application is made by a foreign or international tribunal or by “any interested person.”

The Applications before the Court show compliance with § 1782 requirements. Specifically, it is undisputed that Respondents reside in or may be found within the District of New Mexico.

Additionally, the discovery sought appears relevant to claims and defenses in the aforementioned extraterritorial proceedings in the Republic of Ecuador and the Hague, Netherlands. Finally, the

Applications are made by interested persons, in that the Applicants are either parties or otherwise involved in the extraterritorial proceedings in the foreign tribunals. Thus, all statutory prerequisites

9 Case 1:10-mc-00021-JCH-LFG Document 77 Filed 09/02/10 Page 10 of 12

are met.

In determining whether a court should exercise its discretion to permit discovery under §

1782, the Court considers the Supreme Court’s analysis in Intel Corporation v. Advanced Micro

Devices, Inc., 542 U.S. 241, 264-65 (2004). In the Intel case, the Supreme Court identified various

discretionary factors to guide a district court’s determination on whether to grant a § 1782

application for discovery.

First, the Court should determine whether the material sought is within the foreign tribunal’s

jurisdictional reach. In this case, Respondents are not parties to the foreign tribunal proceedings.

They reside in the United States within the District of New Mexico, and because all of the

documents relevant to the proposed discovery are within the District of New Mexico, it is likely that

Respondents and their documents would be outside the reach of the foreign tribunals. In other

words, those tribunals would have no authority to compel Respondents to appear for depositions, nor would they have authority to issue orders requiring foreign non-parties to produce documents.

Secondly, Intel instructs that the District Court must determine the nature of the foreign

tribunal, the character of proceedings underway abroad, and the receptivity of the foreign

government or court abroad to the United States federal court’s assistance. In this case, there are

three proceedings – one an international arbitration at the Hague, another the environmental damage

proceeding in the Republic of Ecuador, and finally, the criminal prosecutions brought against Pérez

and Veiga.

It would appear reasonable that these foreign tribunals would welcome the availability of

evidence relevant to the prosecution and defense of claims in those respective tribunals. However,

it is also clear that the Republic of Ecuador is a respondent in one proceeding, is accused in the

other, at least by inference, of colluding with the Lago Agrio attorneys, and has initiated criminal

10 Case 1:10-mc-00021-JCH-LFG Document 77 Filed 09/02/10 Page 11 of 12

proceedings against two of the Applicants herein. Thus, the Court cannot state that the Republic of

Ecuador would specifically be receptive to the discovery of this information.

The third factor outlined by the Court in Intel is whether the § 1782 request conceals an

attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or

the United States. In this case, no one asserts that the Applicants are attempting to make an end run

around information-gathering restrictions imposed either by the arbitration panel in the Hague or

by the Ecuadorian courts.

Finally, the Intel decision requires that the Court must determine whether the subpoena

contains unduly intrusive or burdensome requests. In this case, it is clear that there will be a

significant burden on Respondents to provide documents and appear for depositions on short notice.

However, the documents being sought are contested by the Applicants in proceedings throughout the United States, and the issues relating to the production of documents have been briefed and

argued.9 Thus, the information sought is known to the Respondents, and the arguments and

authorities relevant to the production have been discussed in multiple proceedings.

C. Conclusion

Given that Kamp and E-Tech scientist Maest were present at the meeting where the Special

Master’s report was discussed and planned, it is clear that Respondents have information that is

relevant to prosecution or defense of the aforementioned extraterritorial proceedings. Further, to

the extent there is a burden, the benefit of shining light on allegedly corrupt proceedings

significantly outweighs the burden, cost or hardship imposed on the Respondents. It appears that

9The same or similar requests were filed in various districts. Respondents state in their Response, “These proceedings, which now total eleven in number (a total that is certain to grow), are targeted at Plaintiffs’ American and Ecuadorian lawyers and environmental experts for the purpose of uncovering the basis for the damages assessment expert report prepared by Mr. Cabrera.” [Doc. 60, at 13].

11 Case 1:10-mc-00021-JCH-LFG Document 77 Filed 09/02/10 Page 12 of 12

Applicants are not seeking the information in bad faith and, because Respondents failed to state any substantive objections to the discovery requests, they have waived any objections.

The present request is not unique. Other applicants have filed similar requests in various

United States courts, and those requests have been granted by the United States District Courts in

Georgia, Colorado, Texas, New Jersey, California, New York and the District of Columbia.

Order

Having considered the Applications, responses and replies, and determining that all prerequisites under 28 U.S.C. § 1782 have been satisfied and the discretionary factors set forth in

Intel Corporation, supra, demonstrate the propriety of discovery in this case; and, further, noting that

Respondents’ failure to file any objections to the requests constitutes waiver of any objections, the

Court issues its order pursuant to 28 U.S.C. § 1782 authorizing Applicants to conduct the discovery sought for use in foreign proceedings; and further directs Respondents to answer outstanding discovery requests, to produce the documents sought in discovery requests, and to appear for depositions as required by Applicants. Respondents are directed to comply with the requests set forth in the proposed subpoenas [Doc. 3, Ex. 13; and Doc. 13, Ex. P] without necessity for service of the subpoenas, with the exception that the date for disclosure is changed from August 30, 2010 to September 8, 2010.

IT IS SO ORDERED.

______Lorenzo F. Garcia United States Magistrate Judge

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10-4341-cv In re: Chevron Corp. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to summary orders filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 15th day of December, two thousand and ten.

PRESENT: JOSÉ A. CABRANES, DENNY CHIN, Circuit Judges, EDWARD R. KORMAN, District Judge.* ------x

LAGO AGRIO PLAINTIFFS and STEVEN R. DONZIGER,

Respondents-Appellants,

-v.- Nos. 10-4341-cv; 10-4405-cv(CON)

CHEVRON CORPORATION, RICARDO REIS VEIGA, and RODRIGO PEREZ PALLARES,

Petitioners-Appellees. ------x

FOR RESPONDENTS-APPELLANTS: J AMES E. TYRRELL, JR., Patton Boggs LLP, New York, NY; and Ilann M. Maazal (Jonathan S. Abady, O. Andrew F. Wilson, and Adam R. Pulver, on the brief), Emery Celli Brinckerhoff & Abady LLP, New York, NY, for Respondents-Appellants the Lago Agrio Plaintiffs.

* The Honorable Edward R. Korman, of the United States District Court for the Eastern District of New York, sitting by designation.

1 Case: 10-4341 Document: 234-1 Page: 2 12/15/2010 167412 4

BRUCE S. KAPLAN (Robert D. Kaplan, on the brief), Friedman Kaplan Seiler & Adelman LLP, New York, NY, for Respondent-Appellant Donziger.

FOR PETITIONERS-APPELLEES: R ANDY M. MASTRO (Andrea E. Neuman, William E. Thomson and Scott A. Edelman, on the brief), Gibson, Dunn & Crutcher LLP, New York, NY, Irvine, CA, and Los Angeles, CA, for Petitioner-Appellee Chevron Corporation.

ANDRÉS RIVERO (Jorge A. Mestre and Paul E. Dans, on the brief), Rivero Mestre, LLP, Miami, FL, for Petitioner-Appellee Rodrigo Pérez Pallares.

ALAN VINEGRAD (Jason P. Criss and Natalie MacLean Leino, on the brief), Covington & Burling LLP, New York, NY, for Petitioner-Appellee Ricardo Reis Veiga.

Appeal from October 20 and November 29, 2010, orders of the United States District Court for the Southern District of New York (Lewis A. Kaplan, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the orders of the District Court be AFFIRMED.

We are presented with two of the many cases percolating in the federal courts arising from efforts by petitioners-appellees, Chevron Corporation and two of its attorneys (“the Individual Petitioners”), to obtain discovery in the United States pursuant to 28 U.S.C. § 1782 in aid of defending themselves against civil litigation—brought by respondents-appellants the Lago Agrio Plaintiffs (“LAP”)—and/or criminal prosecution in Ecuador. Here, petitioners secured subpoenas requiring respondent-appellant Steven Donziger, a New York attorney advising the LAP, to submit to a deposition and to produce certain documents related to his conduct with respect to the foreign proceedings. On appeal, respondents argue that the District Court erred in denying their request to quash the subpoenas, In re Chevron Corp., — F. Supp. 2d —, 2010 WL 4910248, at *23 (S.D.N.Y. Nov. 10, 2010), and in ordering Donziger to produce “each and every document responsive to the subpoenas (irrespective of whether any privilege or other protection against disclosure has been or hereafter is or may be claimed) forthwith,” In re Chevron Corp., No. 10-MC-00002, 2010 WL 4922312, at *13 (S.D.N.Y. Nov. 30, 2010).1

1 While respondents-appellants appeal from orders of the District Court originally filed on October 20 and November 29, 2010, the District Court corrected and expanded on those orders on November 10 and November 30, 2010, respectively. For ease of reference we cite exclusively to the later opinions.

2 Case: 10-4341 Document: 234-1 Page: 3 12/15/2010 167412 4

We review decisions of a district court regarding whether to quash a subpoena and the waiver of attorney-client privilege under the same “abuse of discretion” standard. Compare Schmitz v. Bernstein Leibhard & Lifshitz, LLP, 376 F.3d 79, 85 (2d Cir. 2004) (discussing the standard of review for decisions regarding whether to quash subpoenas), with In re Grand Jury Proceedings, 219 F.3d 175, 182 (2d Cir. 2000) (discussing the standard of review for decisions regarding whether there has been a waiver of attorney-client privilege). It is well settled that “[a] district court has abused its discretion if it [has] based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions.” Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (citation, alterations, and quotation marks omitted). After an independent review of the record, we conclude, substantially for the reasons stated by the District Court in its orders of November 10 and November 30, 2010, that the District Court did not abuse its discretion. We therefore affirm the October 20 and November 29, 2010, orders of the District Court and we remand the cause to the District Court for further proceedings consistent with this order.

With regard to Donziger’s argument that the District Court erred in requiring him to share the costs associated with the Special Master appointed to adjudicate claims of privilege asserted during the deposition, it may be that requiring a third-party to bare the burden of discovery in depositions that are designed to strengthen petitioners’ hands in foreign litigation and international arbitration is inequitable, and that requiring petitioners to bear those costs would encourage them to resolve such these § 1782 claims more quickly. Until the court-appointed master’s work is completed, however, it is difficult to assess the extent to which the parties’ conduct has facilitated or deterred an orderly and expeditious resolution of these issues. We therefore hold that the Special Master shall recommend to the District Court an allocation of costs to the parties pursuant to Federal Rule of Civil Procedure 53(g)(3) at the conclusion of his work. In the interim, the costs of the Special Master shall be divided between Chevron and the Individual Petitioners according to a formula of their choosing, or in the alternative, a formula adopted and directed by the District Court.

Finally, two points are worth noting. First, as this panel observed at oral argument and the District Court stressed several times in its orders, see, e.g., In re Chevron Corp., 2010 WL 4922312, at *2, the severity of the consequences imposed by the District Court in this case are justified almost entirely by the urgency of petitioners’ need for the discovery in light of impending criminal proceedings in Ecuador. We recognize that the parties’ ability to influence the pace of the Ecuadorian criminal justice system may be limited. However, to the extent that the parties can successfully petition the Government of Ecuador to postpone the preliminary hearing scheduled for January 5, 2011 in the Individual Petitioners’ criminal proceeding, the District Court may wish to stay the enforcement of the subpoenas sua sponte to permit a more probing (and time-

3 Case: 10-4341 Document: 234-1 Page: 4 12/15/2010 167412 4

consuming) review of the parties’ various arguments with respect to privilege and relevance.2 Such a review might, for example, consider whether some of the documents inadvertently contained in Donziger’s privilege log include purely-privileged material such as attorney-client communications between the LAP and their counsel that were channeled through Donziger. That said, we leave any decision on these issues to the informed discretion of the District Court.

Second, in light of the complexity of this case and the urgency of its adjudication, we wish to note the exemplary manner in which the able District Judge has discharged his duties. There is no question but that all concerned, not least this Court, are well served by the careful and comprehensive analysis which is evident repeatedly throughout the many memoranda and orders of the District Court, many of which were produced with rapidity in the context of the District Court’s daunting schedule in this and other important cases.

The mandate shall issue forthwith. Any subsequent appeal related to the disposition of the subpoenas referenced in this order will be assigned to this panel. See United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994).

FOR THE COURT Catherine O’Hagan Wolfe, Clerk of Court

2 We note—mindful that “[t]he doctrine of separation of powers prohibits the federal courts from excursions into areas committed to the Executive Branch or the Legislative Branch,” In re Austrian and German Holocaust Litig., 250 F.3d 156, 163-64 (2d Cir. 2001) and that “[t]he legitimacy of our courts depends in no small measure on exercising authority only in those areas entrusted to the courts,” Attorney Gen. of Can. v. R.J. Reynolds Tobacco Holdings, Inc., 268 F.3d 103, 114 (2d Cir. 2001)—that the Government of Ecuador’s efforts to intervene in this case precisely “to assert a claim of privilege in some of the documents in Donziger’s possession,” In re Chevron Corp., 2010 WL 4922312, at *12, might suggest that it would, on its own, facilitate a temporary stay in the criminal proceedings in order to achieve that result if given the opportunity to do so.

4 Case: 10-4341 Document: 234-2 Page: 1 12/15/2010 167412 2

United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007

DENNIS JACOBS CATHERINE O'HAGAN WOLFE CHIEF JUDGE CLERK OF COURT

Date: December 15, 2010 DC Docket #: 10-mc-2 Docket #: 10-4341 cv DC Court: SDNY (NEW YORK Short Title: In Re: Chevron Corporation CITY) DC Docket #: 10-mc-2 DC Court: SDNY (NEW YORK CITY) DC Judge: Kaplan

BILL OF COSTS INSTRUCTIONS

The requirements for filing a bill of costs are set forth in FRAP 39. A form for filing a bill of costs is on the Court's website.

The bill of costs must: * be filed within 14 days after the entry of judgment; * be verified; * be served on all adversaries; * not include charges for postage, delivery, service, overtime and the filers edits; * identify the number of copies which comprise the printer's unit; * include the printer's bills, which must state the minimum charge per printer's unit for a page, a cover, foot lines by the line, and an index and table of cases by the page; * state only the number of necessary copies inserted in enclosed form; * state actual costs at rates not higher than those generally charged for printing services in New York, New York; excessive charges are subject to reduction; * be filed via CM/ECF or if counsel is exempted with the original and two copies.

Case: 10-4341 Document: 234-2 Page: 2 12/15/2010 167412 2

VERIFIED ITEMIZED BILL OF COSTS

Counsel for ______respectfully submits, pursuant to FRAP 39 (c) the within bill of costs and requests the Clerk to prepare an itemized statement of costs taxed against the ______and in favor of ______for insertion in the mandate.

Docketing Fee ______

Costs of printing appendix (necessary copies ______) ______

Costs of printing brief (necessary copies ______) ______

Costs of printing reply brief (necessary copies ______) ______

(VERIFICATION HERE)

______Signature

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES DEPARTMENT 45 HON. VICTORIA G. CHANEY, JUSTICE

JOSE ADOLFO TELLEZ, et al., ) ) Plaintiffs, ) ) vs. ) Case No. BC312852 ) DOLE FOOD COMPANY, INC., et al., ) ) ______Defendants.______) ______

REPORTER'S_TRANSCRIPT_OF_PROCEEDINGS ______THURSDAY, JULY 15, 2010

APPEARANCES_OF_COUNSEL: ______FOR PLAINTIFFS: LAW OFFICES OF STEVE CONDIE BY: STEVE CONDIE, ESQUIRE 11 Embarcadero West, Suite 140 Oakland, California 94607

FOR DEFENDANT GIBSON, DUNN & CRUTCHER DOLE FOOD BY: SCOTT A. EDELMAN, ESQUIRE COMPANY, INC.: THEODORE J. BOUTROUS, ESQUIRE THOMAS A. MANAKIDES, ESQUIRE 333 South Grand Avenue Los Angeles, California 90071-3197 FOR DEFENDANT FILICE, BROWN, EASSA & McLEOD, LLP THE DOW CHEMICAL BY: RICHARD POULSON, ESQUIRE COMPANY: 1999 Harrison Street, Suite 1800 Oakland, California 94612-08950

SCHIRRMEISTER, DIAZ-ARRASTIA, BREM, LLP BY: MICHAEL L. BREM, ESQUIRE 700 Milam Street, 10th Floor Houston, Texas 77002

TIMOTHY J. McCOY, CSR NO. 4745 OFFICIAL REPORTER Page 1 Page 3 1 CASE NUMBER: BC312852 1 including corporations (Please see Pembina Consolidated 2 CASE NAME: TELLEZ vs. DOLE, et al. 2 Silver Mining & Milling vs. Pennsylvania, an 1888 case 3 LOS ANGELES, CA THURSDAY, JULY 15, 2010 3 found at 125 U.S. 181). That's an old principle, obviously. 4 DEPARTMENT 45 HON. VICTORIA CHANEY, JUSTICE 4 And not only in legislative actions, but also in judicial 5 TIME: 2:00 P.M. 5 proceedings (New York Times Company vs. Sullivan (1964) 6 REPORTER: TIMOTHY J. McCOY, CSR NO. 4745 6 376 United States 254). Due process requires fundamental 7 APPEARANCES: (AS HERETOFORE NOTED) 7 fairness. 8 * * * 8 When a state undertakes to deprive an 9 9 individual or a corporation of property, fundamental 10 (Proceedings commenced in open court, as follows:) 10 fairness requires that the state abide by two discrete 11 11 due process standards: substantive due process and 12 THE BAILIFF: Everyone rise, please, and face the 12 procedural due process. 13 flag. 13 Substantive due process requires the state 14 In the presence of the flag of the United 14 to have an adequate justification for taking the property. 15 States, emblem of the Constitution and of freedom and 15 For example, to hold a negligent actor liable for harm to 16 justice for all, Department 324 of the Superior Court of 16 another, the actor's negligence must be adjudicated to be 17 the State of California, for the County of Los Angeles, 17 the legal cause of the harm. (Restatement 2d. of Torts 18 is now in session. Justice Victoria Gerrard Chaney 18 section 430). Procedural due process requires that the 19 presiding. 19 parties to a dispute be given a fair opportunity to present 20 Please be seated and come to order. 20 their respective cases. 21 THE COURT: Thank you. 21 The power to adjust disputes has been vested 22 Okay. Welcome everybody. 22 by the people of the State of California in the Supreme 23 This is in the matter of Tellez vs. Dole, 23 Court, courts of appeal, and superior courts. That's in 24 BC312852. The record should reflect that present in 24 the California Constitution Article VI, Section 1. A court 25 court are: Steve Condie for plaintiffs; Scott Edelman 25 is not an active participant in a legal dispute; it is a 26 and Thomas Manakides, hiding behind Mr. Condie over there, 26 passive forum for adjudicating a dispute, having no power 27 for Dole. I believe present on conference call, on speaker 27 to investigate facts or initiate proceedings. (Sale vs. 28 phone, is Theodore Boutrous for Dole. Present as the 28 Railroad Commission (1940) 15 Cal.2d 612). Page 2 Page 4 1 Dole representatives are Jered Gale and Michael Carter. 1 The court is served by attorneys, who present 2 For Dow we have Mr. Richard Poulson and 2 the dispute, and bench officers, judges, who adjudicate. 3 Mr. Michael Brem. Also present apparently is the 3 (Von Schmidt vs. Widber (1893) 99 Cal. 511 at 512). 4 corporate representative of Dow today, Scott Scarpelli. 4 An attorney must be licensed by the State of 5 Hello, Mr. Scarpelli. Welcome back. I 5 California to practice law in the state. An attorney is 6 haven't seen you for awhile. 6 considered to be an officer of the court and is required 7 All right. The purpose of this inquiry 7 to work for the advancement of justice. (Hickman vs. Taylor 8 is not to consider or comment on whether Dole committed 8 (1946) 329 U.S. 495). 9 wrongful acts in its use of DBCP between 1970 and 1980 9 Thus, attorneys operate in a threefold 10 in Nicaragua on banana plantations, but to decide if fraud 10 capacity: as self-employed businessmen, as trusted agents 11 was perpetrated on the court in the filing and litigation 11 of their clients, and as assistants to the court in search 12 of this dispute, and, if so, what action should be taken. 12 of just solution to disputes. That's Cohen vs. Hurley 13 Only those persons who were in a position 13 (1961) 366 U.S. 117 at 124. 14 to be injured as a result of the wrongful acts of Dole, if 14 To effect fundamental fairness in litigation, 15 any, are entitled to compensation under our legal system no 15 the People and their representatives have enacted the 16 matter how egregious those claimed acts may appear. Persons 16 Code of Civil Procedure, which governs the presentation of 17 who were not directly injured by Dole's actions cannot seek 17 disputes, and the Evidence Code, which governs introduction 18 redress against the defendant in this type of lawsuit. 18 of evidence. Code of Civil Procedure section 2016.010 19 This court's personal thoughts concerning the 19 through 2036.050 set forth the Civil Discovery Act, which 20 issue of liability, causation and damages are not relevant 20 sets forth procedures for discovering evidence. 21 to this inquiry. 21 Each party in a dispute is permitted to 22 The first principle in American jurisprudence 22 conduct an investigation and discover and present evidence. 23 is that the state may not deprive a person of life, liberty 23 A party has available the following methods of discovery: 24 or property without due process of law. (U.S. Constitution 24 depositions, interrogatories, requests for admissions, 25 Amendments V and XIV, and California Constitution Article I 25 requests to produce, medical examinations, and requests 26 Section 7). 26 for exchange of expert information. 27 Due process protection applies not only 27 Discovery is liberally allowed on matters not 28 to citizens of the United States, but to all persons, 28 otherwise privileged and that are relevant and reasonably 2 (Pages 1 to 4) Page 5 Page 7 1 likely to lead to the discovery of admissible evidence. 1 safety and witnesses could not be ignored. 2 To safeguard confidential information, the court may employ 2 To verify the existence and depth of any 3 confidentiality agreements and protective orders. Discovery 3 fraud and address the twin problems of witness safety and 4 is subject to proper requests. 4 the absence of compulsory discovery, this court crafted a 5 Generally, a California court's authority to 5 protective order after balancing all parties' due process 6 order a person to respond to a discovery request ends at the 6 rights, logistical and procedural problems that would flow 7 state's border. When evidence is located out of state, it 7 from the imposition of such a protective order, and the 8 may be discovered only when one of the parties controls it, 8 strong interest of this court to protect itself from 9 the foreign jurisdiction has agreed, under the principles of 9 and root out any fraud subverting the legal process. 10 comity or through mechanisms as the Hague Convention or the 10 The original plan in Mejia was to hold a 11 Pan-American Convention, to permit compulsory process, or 11 jury trial involving a limited issue: whether the Mejia 12 the party that controls the evidence voluntarily agrees to 12 plaintiffs had actually worked on a Dole-affiliated banana 13 produce it. 13 plantation between 1970 and 1980. The evidence was to 14 A court has statutory and inherent power 14 include all proof of fraud by the plaintiffs and the 15 to manage its processes and to prevent fraud from being 15 community at large and all evidence of bribery by Dole. 16 perpetrated on it. For example, unreasonable behavior 16 There were to be special findings requested of the jury 17 in requesting discovery or responding to requests is not 17 about fraud and bribery. 18 tolerated. Neither is witness tampering. To prevent 18 Without taking action such as an OSC Re 19 discovery abuse or fraud, the court may levy a number 19 Dismissal and implementing the protective order, the 20 of sanctions, including monetary penalties, issue and 20 alleged fraud would have continued unchecked, making 21 evidence preclusion, and termination of the action. 21 this court system impotent to safeguard its processes. 22 The DBCP story began in Nicaragua in 1973 when 22 The plan was thwarted by escalating threats 23 it was first applied and ended in 1980 when the Sandinista 23 of violence and other events directed against witnesses 24 Revolution overran the country. Dole was forced to pull up 24 and investigators. A more in-depth history of the 25 stakes quickly and leave behind many records. These records 25 protective order's metamorphosis can be found in the 26 were destroyed by 1983 and are no longer available to assist 26 Mejia record itself. 27 either party. Memories faded with the passage of years, 27 The John Doe witnesses stated in declarations 28 and no government or private records exist with which to 28 and in deposition testimony that they were afraid for their Page 6 Page 8 1 reconstruct the work history of the banana plantation 1 safety and that of their families. Dole's investigators, 2 workers or to refresh memories. In short, the work history 2 Luis Madrigal and Francisco Valadez, declared and testified 3 of almost no one can be verified. 3 that plaintiffs' agents hindered them in their investigation 4 Because Nicaragua has not agreed with the 4 and that they, too, feared for their safety. 5 United States to permit compulsory discovery process, the 5 Several events following the Tellez trial 6 parties have had to rely on third parties giving evidence 6 shed light on the problem encountered by the investigators 7 on a voluntary basis only. This lack of comity has been 7 and indicated the mood of the community actively hampered 8 a significant hindrance to discovery in these cases. 8 meaningful investigation. Although this list is not 9 By the end of September 2008, this court had 9 intended to be comprehensive, the following illustrates 10 sat through a four-and-a-half-month trial in Tellez and was 10 the significant tribulations met during the investigative 11 aware of some disconcerting events in the Mejia case, such 11 phase: 12 as the infamous incident involving coffee and pork rinds 12 A criminal charge for slander was brought 13 as a cure for an upset stomach and an admission of being 13 against Dole's investigator Francisco Valadez by Antonio 14 coached to answer questions like a parrot. 14 Hernandez Ordenana, the plaintiffs' Nicaraguan attorney, 15 Based on at that time about 18 years as a 15 followed by an orchestrated march on and demonstration 16 judge and 12 years before as a trial attorney, this court 16 at the courthouse. Pressure was so severe on the judge 17 sensed the strong possibility of fraud surrounding these 17 assigned to hear the matter that she recused herself in 18 cases, not fraud known about or promoted by the attorneys 18 a strongly-written statement of the problems she faced. 19 affiliated with the plaintiffs' law firm of Miller, Axline & 19 Valadez was sufficiently concerned for his 20 Sawyer, but fraud in the background surrounding these cases. 20 safety that he came to the courthouse early to avoid being 21 This concern pre-existed the Dole September 21 seen by the crowds, had security with him, and carried 22 2008 presentation of John Doe witness declarations and was 22 provisions to supply sustenance in the event of a siege 23 not based on the Witness X's then-inchoate claims of fraud 23 upon the courthouse. 24 at the conclusion of the Tellez trial. 24 Fliers were circulated with Madrigal's picture. 25 Added to this hint of fraud, in late September 25 Neither of Dole's investigators, Luis Madrigal 26 2008 Dole presented credible John Doe declarations 26 nor Francisco Valadez, felt safe, and both were forced to 27 indicating the potential of harm or serious injury existed 27 move frequently. 28 to anyone who came forward openly. This threat to the 28 Government agents made inquiries about Madrigal 3 (Pages 5 to 8) Page 9 Page 11 1 to intimidate him. 1 by exposure to DBCP during the 1970s. These Nicaraguan 2 Valadez's visa was not renewed and he is unable 2 attorneys created a system of recruiters, called captains, 3 to re-enter Nicaragua. 3 who enticed people to pose as injured banana workers. 4 Bounties were offered for information 4 These Nicaraguan attorneys and captains created recruiting 5 relating to the John Doe witnesses. 5 stations and training camps to bring in and educate 6 Radio broadcasts were made concerning the 6 unsophisticated persons in the ways of life on a banana 7 investigators, encouraging the public to report their 7 plantation. 8 whereabouts to the Dominguez/Ordenana law offices and 8 Given the numbers of claimants, around 14,000, 9 to government offices. 9 multiple Nicaraguan law firms were complicit in perpetrating 10 Placards with Madrigal's photograph were 10 the fraud. At least one American attorney actively assisted 11 waved about at rallies. 11 in bringing the sham plaintiffs into the courts: Juan 12 This court found Valadez and Madrigal to 12 Dominguez. 13 be highly credible. Although they have been much maligned 13 Mr. Dominguez partnered and appears to 14 during these proceedings, the Court still finds their 14 continue to be partnered with Antonio Hernandez Ordenana, 15 declarations and testimony to be credible. 15 a Nicaraguan attorney based in Chinandega. 16 Madrigal's and Valadez's efforts to uncover 16 Considering the consistency of the fraud 17 admissible evidence refuting the Tellez plaintiffs' claims 17 across the board in the various cases, I believe, and so 18 were hampered before the Tellez trial and again in Mejia. 18 find, that some planning meetings occurred to coordinate 19 The investigators' failure was due in significant part to 19 efforts to perpetuate this fraudulent scheme. 20 the actions of the plaintiffs' agents. In short, there was 20 After listening to Benton Musselwhite and 21 a violation of the defendants' rights to conduct reasonable 21 viewing his passport, I believe that Mr. Musselwhite did 22 discovery. 22 not participate in the meeting with Juan Dominguez to 23 How did this occur? It resulted from a 23 actively plan the fraud. 24 confluence of historical, political, and social factors 24 Given the concern about the veracity of some 25 and from the machinations of plaintiffs' agents. 25 of the John Doe plaintiffs, I no longer can say that Mark 26 Politically, Nicaragua is somewhat isolated 26 Sparks actively participated in the fraud against the 27 from other countries in the Western Hemisphere. Its 27 defendants. 28 courts are in disarray. The Nicaraguan legal system 28 At most, both Mr. Musselwhite and Mr. Sparks Page 10 Page 12 1 is not problematic because it is different from the 1 should have more studiously supervised the questionable 2 common law countries such as the United States and 2 activities of their associated Nicaraguan law firms. 3 England. Many diverse, stable, excellent legal systems 3 Based on all of the evidence before me and 4 exist throughout the world. According to the U.S. State 4 from the Mejia and Tellez cases, the Court finds that 5 Department reports for the last ten years, the legal system 5 Juan Dominguez was, and is, actively involved in hatching 6 is at best fragile -- I'm talking about the legal system 6 and perpetrating this fraudulent scheme upon this court. 7 in Nicaragua -- in its ability to present consistent rule 7 As a result of the scheme and historical, 8 of law and outcomes. 8 social and political factors, defendants were unable to 9 Socially, heart-wrenching testimony has been 9 conduct reasonable discovery prior to the start of the 10 given about the day-to-day existence of the individuals who 10 Tellez trial. 11 have brought suit in the Tellez, Mejia, and Rivera actions. 11 What do we know? There were 4- to 5,000 12 Their subsistence is meager, poverty surrounds them, and 12 maximum banana plantation fieldworkers between 1970 and 13 severe illness is the daily burden of many. The education 13 1980 per the declaration of Dr. Weisberg, or about 3,500 14 level is relatively low. They are naive about scientific 14 according to Mr. DeLorenzo at trial. 15 principles. They are among the disenfranchised in life 15 About 14,000 claimants have participated in 16 and are impotent to effect social change. 16 lawsuits against Dole and potentially thousands more exist 17 It is understandable therefore how and why 17 according to Juan Dominguez's website and statements by 18 desperate individuals banded together to bring these claims. 18 Antonio Hernandez Ordenana, who I will be referring to 19 A consequence of the lawsuits and the hope of compensation 19 as "Ordenana" throughout the rest of the proceedings. 20 which would bring wealth into these communities is that 20 There was an exceedingly high attrition rate 21 members of their community rallied behind the claimants. 21 in both Tellez vs. Dole and Mejia vs. Dole. 22 A threat to one was perceived as a threat to all. This 22 Using Judge Paul Huck's ruling in Osorio and 23 adherence to the cause of "The Affected" impeded the 23 the sterilization occurrence rates found in chemical workers 24 defendants' ability to obtain voluntary statements by 24 during DBCP manufacture, not every person allegedly exposed 25 individuals willing to speak in the open and on the record. 25 to DBCP becomes sterile. For example, according to the 26 Nicaraguan attorneys engineered a scheme to 26 testimony of Mr. Perez -- at least I believe his name was 27 bring to both the Nicaraguan and American courts bogus 27 Mr. Perez -- plaintiffs' trial witness who was rendered 28 plaintiffs claiming that they were banana workers injured 28 sterile following his work in manufacturing DBCP without 4 (Pages 9 to 12) Page 13 Page 15 1 protective gear at the Occidental Chemical plant in Lathrop, 1 coordinate their versions of who exactly was the father of 2 California, chemical workers were exposed to significantly 2 his young children. After DNA testing proved him to have 3 higher doses of DBCP on a daily basis for a prolonged time. 3 fathered the young children, contrary to his and his wife's 4 Not all became sterile. These conditions were at the 4 testimony, he dropped out of the case. 5 opposite end of the spectrum from the maximum possible 5 Multiple plaintiffs claiming to have worked 6 exposure of the alleged banana workers. 6 with or other plaintiffs failed to recognize the names or 7 Logically, therefore, not every person who 7 faces of their fellow employees. 8 worked on Dole-related plantations could be sterile, even 8 Juan Dominguez actively coached plaintiffs 9 assuming exposure. No studies have demonstrated DBCP 9 during their depositions. In response to direct questioning 10 has caused conditions other than sterility in humans. 10 by Dominguez in the depositions, the plaintiffs' responses 11 In 2001 the Nicaraguan legislature enacted 11 resembled rote answers in a catechism class far beyond the 12 Law 364, which could be used with the streamlined trial 12 simple comfort levels encountered when a witness responds 13 process referred to as 3-8-3, which gave the presumption 13 to a friendly face asking questions. 14 of causation of sterility to a claimant meeting certain 14 Plaintiffs were unable to extrapolate these 15 basic conditions. 15 learned answers to questioning during cross-examination 16 Going by this court's personal observations 16 because of their clear lack of basic experience on or with 17 of the Tellez and Mejia plaintiffs and statements by 17 banana plantations. 18 both plaintiffs' witnesses and plaintiffs' counsel, the 18 Some plaintiffs were accompanied during their 19 Nicaraguan DBCP claimants are unsophisticated, the majority, 19 deposition by other plaintiffs and were actively coached. 20 if not all, having no scientific training or background. 20 Carlos Enrique Diaz Artiaga acted as such a plaintiff coach. 21 Probably 30 to 40 percent were not literate and most of 21 There was extreme deviation in many of the 22 the rest had limited educations. 22 Tellez plaintiffs' deposition testimony as opposed to the 23 According to the Tellez trial testimony of 23 trial testimony. 24 DeLorenzo and Gurdeon, banana plantation employment records 24 What, if anything, can we learn from the 25 between 1970 and 1980 could not be located and apparently 25 John Doe witnesses? 26 no longer exist. 26 According to John Doe witnesses, and supported 27 It not reasonable to conclude that 14,000 27 by the testimony of some plaintiffs, plaintiffs were 28 claimants in the several lawsuits were made sterile by DBCP. 28 encouraged to conceal the birth of their children born Page 14 Page 16 1 Some or all of the plaintiffs had brought fraudulent claims. 1 after the alleged exposure. 2 Nor is it reasonable to conclude, given their general lack 2 Training manuals, scripts and phony histories 3 of sophistication and limited education, that the claimants 3 were used to prepare plaintiffs for testimony in court. 4 conceived and executed a plan to bring fraudulent claims on 4 Laboratory reports in cases other than in 5 their own. There had to have been, and was, a coordinated 5 Tellez vs. Dole were falsified. 6 effort by persons knowledgeable in the legal process to 6 What evidence did Jason Glaser bring which 7 bring fraudulent claims before this and other courts. 7 informs this proceeding? 8 What does a review of the testimony of the 8 Jason Glaser gave perhaps the best insight 9 plaintiffs in the Tellez and Mejia cases demonstrate? 9 into the situation in Nicaragua among the campesinos and 10 Quinonez, a Mejia plaintiff, during his 10 the captains. Mr. Glaser is obviously very bright and 11 deposition admitted to having been coached by an employee 11 is a keen observer of people. Despite the defendants' 12 of the Dominguez/Ordenana law offices. Such coaching was 12 attempts to tarnish him, he came across as being an 13 confirmed by John Doe testimony. 13 objective observer of conditions and events in Nicaragua. 14 Peralta, a Mejia plaintiff, ended his 14 He has had the opportunity the live among the populace 15 deposition in midcourse after being caught in multiple 15 and interview many alleged banana workers and their 16 falsehoods. 16 captains. 17 Many other plaintiffs in both the Tellez 17 I found Mr. Glaser to be extremely credible 18 and Mejia cases dropped out of the cases shortly after 18 and I value his opinion in this matter. 19 discovery revealed significant untruths and other 19 Mr. Glaser presented a picture of people 20 shortcomings. This tremendous attrition rate cannot be 20 living in desperate poverty, sick and dying from exposure 21 explained away as a result of simple language problems 21 to multiple pesticides. These pesticides are sold at nearby 22 or nerves, nor is it an example of the system's success 22 bodegas and are advertised heavily. These pesticides are 23 in weeding out questionable or weak plaintiffs. It is 23 apparently sold to literacy-challenged individuals with 24 indicative of fraud. 24 minimal or no training in pesticide use and protective gear. 25 Plaintiff Morales-Mendoza during his testimony 25 Mr. Glaser is here in court and is nodding 26 in the Tellez trial changed his story on the stand from 26 his head to this statement. 27 having one natural child to no biological children. 27 These people suffer high rates of chronic 28 A plaintiff in Mejia and his wife failed to 28 kidney disease, cancer, and skin lesions. 5 (Pages 13 to 16) Page 17 Page 19 1 Epidemiologic studies are underway. Clearly 1 John Doe witnesses and the transcripts of video and audio 2 there is a public health crisis of major proportions in 2 testimony presented by Mr. Glaser, I find it credible that 3 these impoverished areas. It is understandable that the 3 threats have been made to the Dole investigators and John 4 populace is angry and feels impotent. One problem is that 4 Doe witnesses. 5 the focus of their rage is on one target -- Dole's use of 5 Mr. Ordenana and Mr. Dominguez, through 6 DBCP -- which has been blamed as a root of all mischief 6 demonstrations, radio broadcasts, rallies, and fliers, 7 that has befallen them. 7 have stirred up and manipulated the frantic and forlorn 8 I agree with Mr. Glaser that this situation 8 populace. This has created an atmosphere of intimidation 9 is intolerable and must be dealt with immediately. 9 and fear in anyone attempting to assist Dole's effort to 10 Unfortunately, this lawsuit is not the appropriate 10 investigate. 11 vehicle to address this horrific situation. 11 Although Mr. Glaser can only personally report 12 Civil actions are sometimes brought to induce 12 on events in Nicaragua since mid 2007, I find, based on 13 social change. This is neither the platform nor the time 13 the testimony of Mr. Madrigal and Mr. Valadez, that this 14 to debate the relative merits and outcomes of using the 14 threatening atmosphere has existed since at least 2004 and 15 court system to further the goal of impacting corporate or 15 has significantly interfered with the defendants' ability 16 governmental actions to bring about different policies that 16 to conduct discovery. 17 affect society in general. Whatever the nature of such 17 In conclusion, the Tellez and Mejia plaintiffs 18 lawsuits brought before a court, it behooves the attorneys 18 were assisted by Dominguez and Ordenana, their attorneys, 19 representing the plaintiffs to be scrupulous in ensuring the 19 to put forth fraudulent claims. 20 legitimacy of the representative plaintiffs, lest the cause 20 Plaintiffs' counsel makes much of the 21 they hope to influence be hopelessly besmirched by avarice 21 questionable and possibly corrupt conduct of some of 22 and falsehoods. 22 the John Doe witnesses. This conduct was, and has been, a 23 These DBCP cases are a tragic example of what 23 factor in the Mejia findings, and continues to be a factor 24 can occur, and may have a negative effect both with other 24 in determining their credibility in this OSC in Tellez vs. 25 DBCP actions and more broadly on the use of a court action 25 Dole. 26 to encourage broad social change. 26 However, simply because a person has been 27 Mr. Glaser indicated that rumors were abundant 27 dishonest in the past does not mean that person is incapable 28 that Dole engaged in bribery of John Dole witnesses. 28 of ever speaking the truth or is mendacious in his or her Page 18 Page 20 1 Mr. Glaser discussed the 4,000 cordobas -- which is about 1 testimony here. 2 $200 American -- payment to one witness made after the 2 The jury instructions that are currently 3 testimony and Witness X's apparent demand for money and 3 used by the superior courts in the state, commonly referred 4 a U.S. visa before testifying. Even Mr. Glaser did not 4 to as CACI instructions, are informative. CACI Instruction 5 credit as truthful Witness X's tale. 5 No. 107 entitled "Witnesses" reads in part: 6 After reviewing mounds of evidence, I am 6 "In deciding whether to believe a witness's 7 unable to detect, however, instances of actual intentional 7 testimony, you may consider, among other factors, 8 bribery of potential witnesses by Dole. Dole's employees 8 the following: 9 clearly do not have an understanding of the value of money 9 How well did the witness see, hear or 10 in Nicaragua and Costa Rica. Though Dole may have been 10 otherwise sense what he or she described in 11 naive in its generous outlay of expense money to the John 11 court? 12 Doe witnesses, I do not believe that its expenditure of cash 12 How well did the witness remember and 13 to these witnesses was motivated by the desire to suborn 13 describe what happened? 14 perjury. 14 How did the witness look, act, and speak 15 Mr. Glaser, upon reflection, stated that there 15 while testifying? 16 was a significant group who are threatened by the unraveling 16 Did the witness have any reason to say 17 of their get-rich-quick scheme -- the false bananeros and 17 something that was not true? Did the witness 18 campesinos together with the captains who recruited and 18 show any bias or prejudice? Did the witness 19 trained them. A large influx of money from these DBCP 19 have a personal relationship with any of the 20 lawsuits into the area would affect many in the community. 20 parties involved in the case? Does the witness 21 "Bananeros," is that how I say that, 21 have a personal stake in how this case is 22 Mr. Glaser? 22 decided? 23 MR. JASON GLASER (IN THE AUDIENCE): "Bananeros." 23 What was the witness's attitude towards 24 THE COURT: And "campesinos," did I pronounce that 24 this case or about the giving of testimony? 25 correctly? 25 Sometimes a witness may say something 26 MR. JASON GLASER (IN THE AUDIENCE): Correct. 26 that is not consistent with something else he 27 THE COURT: Mr. Glaser stated that he himself was 27 or she said. Sometimes different witnesses 28 concerned for his safety. Based on the statements of the 28 will give different versions of what happened. 6 (Pages 17 to 20) Page 21 Page 23 1 People often forget things or make mistakes in 1 One other thing I want to add there, and 2 what they remember. Also, two people may see 2 that is, much of what the John Doe witnesses have said has 3 the same event but remember it differently. 3 been confirmed by testimony under oath by plaintiffs in 4 You may consider these differences, but do not 4 Tellez and in the Mejia process and from this court's own 5 decide that the testimony is untrue just because 5 observations. 6 it differs from other testimony. 6 Plaintiffs have argued that the presentation of 7 However, if you decide that a witness 7 evidence secured in the manner that the John Doe testimony 8 has deliberately testified untruthfully about 8 was gathered in the Mejia case in a criminal trial would 9 something important, you may choose not to 9 blatantly violate the constitutional rights of the defendant 10 believe anything that a witness said. On the 10 under the Sixth Amendment. Plaintiffs have forgotten two 11 other hand, if you think the witness testified 11 key elements: First, this is not a criminal proceeding 12 untruthfully about some things but told the 12 where liberty is at stake. There was no prosecutor as 13 truth about others, you may accept the part 13 a party that the court could sanction for inappropriate 14 you think is true and ignore the rest." 14 behavior, such as a Brady violation. Second, plaintiffs 15 I believe that CACI Instruction No. 107, 15 brought these cases to this court's doorstep using the 16 which informs jurors how to go about their job in judging 16 lack of any compulsive discovery process in Nicaragua and 17 credibility, is equally applicable here to a court trial 17 the collective mood of the community as shields to obscure 18 or to a hearing by a court such as during this OSC process. 18 the truth and bring money into a very impoverished region. 19 Plaintiffs' counsel has questioned the 19 Plaintiffs contend Dole bribed several 20 truthfulness of some of the John Doe witnesses' testimony 20 witnesses. The court is not persuaded. 21 based on subsequent statements made by those witnesses 21 Plaintiffs contend Dole orchestrated a 22 disavowing their prior testimony in Mejia as false. 22 conspiracy to discredit their claims. Plaintiffs first 23 In the absoluciones process -- did I pronounce 23 argued Dole was in league with principals in the DBCP 24 that correctly? 24 activist group with the intent of actively undermining 25 MR. CONDIE: I believe so, your Honor. 25 other DBCP cases or settlements by coming forth as John 26 THE COURT: Okay. Both Mr. Conway and Mr. Glaser 26 Doe witnesses with false information. Dole was criticized 27 are nodding their heads. 27 for meeting with these individuals who claimed not to be 28 In the absoluciones process conducted in 28 affiliated with U.S. law firms. Page 22 Page 24 1 Nicaragua, apparently led by Ordenana and assisted by 1 According to the McKnight declaration executed 2 Palacios, a captain in Ordenana's employ, individuals 2 on September 31st, 2009, and attached as Exhibit A, counsel 3 came forward stating that they had been John Doe witnesses, 3 for some DBCP plaintiffs, not associated with the Tellez 4 had been paid or bribed by Dole to render testimony 4 matter, brought an ex-parte application for a restraining 5 supportive of Dole, and had falsified their testimony. 5 order against Michael Carter, general counsel for Dole, 6 The Court has been informed that approximately 70 persons 6 and James Teater of Jones Day, Dole's counsel in the DBCP 7 were compelled by Ordenana and Palacios to undergo this 7 matters, purportedly to prevent from interfering with the 8 absoluciones process. 8 attorney-client relationship between plaintiffs and their 9 Do I have that number right? 9 counsel in other cases. In reality, this restraining order 10 MR. EDELMAN: Yes, your Honor. 10 prevented Dole from freely contacting individuals in the 11 THE COURT: As outlined by Dole's Nicaraguan legal 11 community who have knowledge about the Tellez plaintiffs. 12 expert, several notable problems exist with the absoluciones 12 It had a chilling effect in Dole's investigation in the 13 process, including the appropriateness of the absoluciones 13 matters before this court. 14 for these proceedings. 14 As time has passed, this spin has been 15 Assuming for the sake of argument that the 15 modified, stating that these DBCP activists, not Dole, 16 individuals who supposedly came forward voluntarily were 16 motivated by the allure of money, have been the primary 17 indeed John Doe witnesses, their testimony is suspect. 17 architects of the John Doe witness testimony. No credible 18 If this testimony in the absoluciones process may be 18 facts have been put forth to support the conspiracy theory. 19 used at all in support of either side, then there must 19 Which plaintiffs, if any, actually were 20 be additional corroborative evidence supporting any facts 20 employed on a Dole-related plantation and exposed to DBCP? 21 given by the John Doe witnesses. 21 Dole submitted clear and convincing evidence 22 But this court has watched the video tape 22 that Jose Anastacio Rojas Laguna and Claudio Gonzalez 23 of the Mejia depositions, in addition to reading the 23 were never banana workers and were not exposed. 24 transcripts, and based not only on the words spoken but 24 Dole did not submit clear and convincing 25 also on the nonverbal clues, such as tone of voice, rapidity 25 evidence that Carlos Enrique Diaz Artiaga was never employed 26 of response, body posture and facial expression, this court 26 as a fieldworker on a Dole-related banana plantation. But 27 finds that much of the Mejia testimony was reliable and 27 this plaintiff actively assisted a fraudulent plaintiff in 28 trustworthy. 28 this action. 7 (Pages 21 to 24) Page 25 Page 27 1 It is uncertain whether the remaining 1 excluded this evidence. Although these rulings were correct 2 plaintiffs, Mendoza Gutierrez, Matilde Jose Lopez 2 at the time, the Court now has the benefit of hindsight. 3 Mercado, and Jose Uriel Calero Gonzalez, worked on a 3 Based on the doctrine of judicial estoppel, the plaintiffs 4 banana plantation, as Dole's evidence that they had not 4 cannot now argue that this evidence should have been brought 5 is equivocal. No plaintiffs presented any evidence in 5 forth at an earlier time. 6 this proceeding indicating that they actually worked on 6 This court is satisfied that it was impossible 7 a plantation, apart from evidence submitted during trial 7 to bring forth evidence of fraud at the time of or before 8 in Tellez vs. Dole. 8 the trial of Tellez vs. Dole. 9 Mr. Condie suggested that each time DBCP was 9 Finally, with nothing before either the 10 used, each of the plaintiffs had DBCP rain down upon them 10 jury or this court at the time of the Tellez trial in 2007, 11 from high-powered water cannons as they slept in farmworker 11 the trier of fact did not have the opportunity to consider 12 housing. This is not possible when one considers the method 12 the potential of fraud. Consequently, the issue of fraud 13 of spraying and the location of the housing. According to 13 by plaintiffs in the Tellez matter has not been litigated 14 the trial testimony of DeLorenzo and Gurdeon, which this 14 before this hearing in any other proceeding. 15 court finds credible, each cannon spread DBCP-laden water 15 Should the Court dismiss the claims of only 16 over an area between three and four acres of land. Most, if 16 those plaintiffs wrongfully before this court or should 17 not all, plantations were at least 400 acres in size, many 17 all plaintiffs' claims be dismissed? 18 considerably larger. The spraying was done at night in a 18 Should this court look to preserving this case 19 checkerboard fashion. Therefore, any housing located only 19 as to only a few plaintiffs with potentially legitimate 20 in one discrete area of the plantation could not possibly 20 claims or should this court be governed by the need to 21 be within reach of the spray, if at all, more than once in 21 maintain the integrity of the court system and protect 22 a season. 22 it against such fraud? 23 Plaintiffs contend that prior to the Tellez 23 If the only issue before this court, without 24 trial in July 2007 defendants were dilatory in failing 24 more, was the preservation of some claims following a 25 to bring evidence of fraud to this court's attention. 25 hearing such as this, then on balance these potentially 26 The court finds defendants were diligent. 26 legitimate claims should and would remain intact. However, 27 The idea of an OSC Re Dismissal in Mejia 27 this situation involves other ingredients: blatant fraud, 28 was put forward by this court and not the parties. The 28 active concealment by plaintiffs' agents, and witness Page 26 Page 28 1 notion of the OSC process in lieu of trial was born of the 1 tampering. 2 realization that to wait for a trial on the limited issue 2 Based on all of the evidence submitted, 3 of employment on a Dole-related banana plantation imperiled 3 the demeanor of the witnesses while testifying in court, 4 the safety of the attorneys for all parties, investigators, 4 in video-taped deposition and video recordings presented 5 and the John Doe witnesses in Nicaragua. Time has proved 5 by plaintiffs' witness Jason Glaser, the pleadings and 6 the accuracy of this assessment. 6 arguments of counsel, this court makes the following 7 This court only functions on admissible 7 conclusions of fact and law: 8 evidence. Without the ability to compel discovery in 8 These plaintiffs never actually were employed 9 Nicaragua, given the mood of the community against outsiders 9 on a Dole-related banana plantation between 1970 and 1980: 10 investigating facts that occurred 30 years before, and the 10 Rojas Laguna and Claudio Gonzalez. 11 actions of Ordenana and Dominguez in blocking meaningful 11 This plaintiff probably was employed on a 12 discovery into these events, it was not possible to gather 12 Dole-related banana plantation between 1970 and 1980, but 13 information in an admissible format to bring to the 13 actively assisted another plaintiff with a fraudulent case 14 attention of the Court. 14 brought into this court: Diaz Artiaga. 15 Dole's investigation costs on the pretrial 15 The evidence regarding these plaintiffs is 16 Tellez discovery alone exceeded $1.6 million. 16 equivocal: Mendoza Gutierrez, Calero Gonzalez, and Lopez 17 The case of Schlesinger vs. Walt Disney was 17 Mercado. 18 not decided until September 2007, a couple of months after 18 Defendants were unable to bring this fraud to 19 the Tellez trial began. I would not have halted the trial 19 the Court's attention at an earlier stage in the process. 20 in Tellez midstream to allow fraud discovery once Slesinger 20 The defendants acted with all due diligence and did not have 21 was published even if Dole had admissible evidence, which 21 admissible evidence to present to this court before April 22 it did not. 22 2009, after the trial in Tellez. 23 When the defendants tried to raise even the 23 Defendants were denied their right to conduct 24 possibility of a problem, plaintiffs moved in limine to 24 reasonable discovery in Tellez vs. Dole due to the actions 25 exclude this meager evidence, which was at best equivocal, 25 of plaintiffs and their agents. 26 about the activities of Dominguez and Ordenana in Nicaragua 26 There has been a massive fraud perpetrated on 27 and the plaintiffs' attrition rate. This court relied on 27 this court in the cases of Tellez vs. Dole, Mejia vs. Dole, 28 the plaintiffs' arguments in their motions in limine and 28 and Rivera vs. Dole. 8 (Pages 25 to 28) Page 29 Page 31 1 When a fraudulent case such as this is brought 1 I'm going to leave it to the attorneys to get back to me 2 into the court system, there is a significant impact on the 2 within one week of today's date with a schedule on how to 3 courts and on society in general. I inquired about the cost 3 go about this and potential hearing dates. 4 per day to maintain a trial court. It is my understanding 4 I think you folks know my upcoming travel 5 that the cost estimates vary according to what items of 5 schedule and you know the dates of my oral arguments. 6 overhead are included. I therefore opted for the most 6 I know that, Mr. Condie, you have some things 7 conservative daily cost figure of $7,000 per day to sustain 7 coming up in the future. 8 a fully-staffed open courtroom. 8 Mr. Edelman, I believe you have a vacation 9 The cost to the taxpayers to try a full-scale 9 coming up in the near future. 10 matter for four and a half months is therefore considerable. 10 I don't know about you, Mr. Manakides, and 11 The cost is even higher when one takes into account all of 11 any vacations. 12 the pretrial and post-trial hearings that have occurred in 12 Mr. Poulson and Mr. Brem, I believe you folks 13 Tellez vs. Dole. 13 also have vacations in the next few weeks. 14 But the true costs of dealing with this 14 Is that right, Mr. Brem? 15 fraudulent case do not end with the trial. When a courtroom 15 MR. BREM: Yes, your Honor. 16 is engaged in one trial, it is not available to handle other 16 THE COURT: And Mr. Poulson? 17 pressing matters pending in the court system. Consequently, 17 MR. POULSON: We'll see. 18 this court was not available to adjudicate other cases with 18 THE COURT: Okay. 19 equally compelling needs. 19 I want to thank Mr. Condie for working with 20 Yet, the true costs are not only within the 20 me. I hope to have the opportunity to work with you in 21 court system. Mr. Brem, how many total jurors did we have 21 my regular job, my new job on the Court of Appeal. 22 in Tellez finally, including alternates? Was it 15 or 16? 22 MR. CONDIE: I do have a case coming up in the 23 MR. BREM: It was 16, your Honor. 23 Second District, your Honor. 24 THE COURT: Thank you. 24 THE COURT: Fantastic. 25 16 jurors were required to sit through the 25 MR. CONDIE: But I don't know which panel. 26 entire four and a half months, listen to and deliberate 26 THE COURT: If I'm lucky it will be in Divison 1 27 over all of the massive evidence presented, and then to 27 where I will be able to sit. But you have been an 28 arrive at a special verdict as to each plaintiff and each 28 impressive litigant, an advocate for your cause. I have Page 30 Page 32 1 defendant. Their commitment to their duty during this 1 disagreed with you, but for the reasons I've stated, 2 trial was impressive. During this four and a half months 2 nothing that you've done. 3 they were required to forgo the many opportunities that 3 Mr. Edelman, Mr. Manakides, and Mr. Boutrous, 4 might have been available in their daily lives. Forcing 4 if you can hear me on the phone, I have enjoyed working with 5 these good citizens to commit themselves to this fraudulent 5 you folks. 6 endeavor flaunted their commitment to this system of justice 6 Mr. Boutrous, I think I hear you making noise 7 and wasted their considerable efforts. 7 on the phone. 8 Additionally, many businesses made a 8 MR. BOUTROUS: Yes. Thank you, your Honor. I can 9 commitment to this legal system by subsidizing the jurors' 9 hear your Honor, and I appreciate that very much. 10 effort, continuing to pay their salaries throughout their 10 THE COURT: Okay. I have enjoyed working with 11 jury service. This money spent has been for naught. 11 the attorneys from Gibson Dunn, you've all been very helpful 12 Defendants' petition for a writ of error corum 12 in supplying records, especially Mr. Manakides who, for 13 vobis is granted. The judgment in plaintiffs' favor in 13 all of us -- and that includes Mr. Condie and Mr. Brem and 14 Tellez vs. Dole is vacated. 14 Mr. Poulson -- he I believe has been Johnny on the spot with 15 Retrial is not an option. Plaintiffs' agents 15 providing evidence when it's been needed at the last minute, 16 have admittedly and unabashedly tampered with witnesses and 16 especially by me, who never could find anything in all of 17 it is undisputed that further investigation is virtually 17 the thousands of documents that you folks gave me. 18 impossible. There is no longer a reasonable probability 18 Mr. Brem has been our historian in the DBCP 19 that any party will ever get to the truth. 19 cases and has been with me since the beginning in May 2007 20 The matter is dismissed. 20 when I first touched the DBCP cases, and I've been grateful 21 All right. Dole is to, one, give Notice of 21 for your knowledge and your input and especially from an 22 Ruling, and two, prepare a Statement of Decision based 22 historical standpoint. You've come up with a lot of good 23 on this Court's oral comments today. That Statement 23 ideas along the way. 24 of Decision needs to include citations to the massive 24 And Mr. Poulson, it's been great working with 25 evidentiary record that was submitted to this court 25 you. It's very hard to be second chair I know, but you've 26 during these proceedings. I just couldn't do it all. 26 done it with grace and probably a lot of frustration along 27 Now, we are going to need to meet again at a 27 the way, trying to keep that guy next to you in line. 28 future time to work on the Statement of Decision. However, 28 MR. POULSON: Thank you for noticing that. 9 (Pages 29 to 32) Page 33 Page 35 1 THE COURT: Okay. So I don't know when our next 1 THE COURT: Okay. What about you, Mr. Edelman? 2 date will be, but we'll work it out among the group of 2 MR. EDELMAN: No, your Honor. Thank you. 3 us by either e-mail or telephonically, and then I will 3 THE COURT: Mr. Boutrous, where are you in Europe 4 contact Marty in Department 1 to work out a new date. 4 right now? 5 And for everybody out there in the audience 5 Mr. Boutrous? 6 that stuck with me since early on in these cases, like 6 MR. CONDIE: I think he's done. 7 Ms. Deutsch, and the people from The Daily Journal and 7 THE COURT: He's done apparently. Okay. 8 the L.A. Times, and there's probably others of you out 8 MR. BOUTROUS: Your Honor, I'm here. I'm in Paris, 9 there as well that I just don't know or don't recognize, 9 and I appreciate very much your hearing us, and hope you're 10 but for you folks that have stuck with us during all of 10 doing better with your knee. 11 these various trials, thank you for hanging in there, I 11 THE COURT: Yeah, well, it's got an ice bag stuck 12 know it's been a long haul for the last three years. 12 on it and it's been elevated during this whole hearing, 13 Anyway, it's been nice working with you. 13 so it's been quite an interesting time. 14 This session adjourned. 14 Can I do anything for you, Mr. Boutrous? 15 Did you want to say something? 15 MR. BOUTROUS: You've done everything. Nothing more 16 MR. EDELMAN: Your Honor, on behalf of all the 16 from me, your Honor. 17 parties, I think we want to thank you for your unstinting 17 THE COURT: Mr. Manakides? 18 dedication to the resolution of this matter. We all 18 MR. MANAKIDES: Nothing, your Honor. Thank you. 19 appreciate the fact that this has been a second job for 19 THE COURT: And Mr. Poulson, I want to take you 20 you -- 20 before the fellow that you're sitting next to. Is there 21 THE COURT: Oh, yes. 21 anything else I can do for you? 22 MR. EDELMAN: -- that you've done on top of your 22 MR. POULSON: Nothing, your Honor. 23 duties at the Court of Appeal, and I think your dedication 23 THE COURT: Last but not least, the man that always 24 is once again exemplified by the fact that you're here 24 wants to have the last word? 25 somehow miraculously the day after surgery to do what 25 MR. BREM: Yes, your Honor, you can do what your 26 you did today. 26 doctor told you to do and get out of here. 27 THE COURT: Yes, I'm still gimpy, that's true. I 27 THE COURT: You mean put the leg up and put ice on 28 came in here limping. I limped in the Tellez No. 1 in 28 it? That one? Page 34 Page 36 1 the trial and I'm still limping. It's amazing. 1 MR. BREM: Yes. 2 MR. EDELMAN: We do appreciate all your efforts, 2 THE COURT: Okay. Thanks. 3 your Honor. 3 Bye-bye everybody. 4 And I did just want to address one housekeeping 4 5 matter. 5 (At 3:02 p.m., the proceedings were adjourned) 6 THE COURT: Sure. 6 - - - 7 MR. EDELMAN: Which is, we're still working with 7 8 Mr. Condie to finalize the exhibit list. I think we need 8 9 a few more days. Neither of us has an issue with that if 9 10 your Honor doesn't. 10 11 THE COURT: No. 11 12 MR. EDELMAN: We will get you an agreed-upon list at 12 13 some point next week. 13 14 THE COURT: Okay. It will need to be in a format 14 15 that I can sign as an order, and then we'll need to get it 15 16 to Department 1. And that's going to be Dole's job to help 16 17 me get it to Department 1. 17 18 MR. EDELMAN: Okay. 18 19 THE COURT: So if you work out a time when I'm 19 20 going to be there and e-mail it to me ahead of time so I 20 21 can review it and make sure there's no issues, I'll get it 21 22 signed and then Dole can have it brought over here. I'm 22 23 not walking that far right now. 23 24 MR. EDELMAN: Understood. 24 25 Thank you, your Honor. 25 26 THE COURT: Is there anything else I can do for you, 26 27 Mr. Condie? 27 28 MR. CONDIE: I think we're done, your Honor. 28 10 (Pages 33 to 36) 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 FOR THE COUNTY OF LOS ANGELES 3 DEPARTMENT 45 HON. VICTORIA G. CHANEY, JUSTICE 4 5 6 JOSE ADOLFO TELLEZ, et al., ) ) 7 Plaintiffs, ) ) 8 vs. ) Case No. BC312852 ) 9 DOLE FOOD COMPANY, INC., et al., ) ) 10 ______Defendants.______) ______11 12 I, TIMOTHY J. McCOY, CSR No. 4745, Official 13 Reporter of the Superior Court of the State of California, 14 for the County of Los Angeles, do hereby certify that the 15 foregoing pages, 1 through 36, inclusive, comprise a full, 16 true and correct transcript of the proceedings held in 17 the above-entitled matter on Thursday, July 15, 2010. 18 19 DATED THIS 19TH DAY OF JULY 2010. 20 21 22 23 ______TIMOTHY J. McCOY, CSR NO. 4745 24 OFFICIAL REPORTER 25 26 27 28 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500

MOTION INFORMATION STATEMENT

Docket Number(s): 10-1918(L) and 10-1966(con) Caption [use short titlel

Motion for: Leave to file brief amici curiae In re Application of Chevron Corporation

Set forth below precise, complete statement of relief sought: Leave to file brief amici curiae on behalf of ABC. Inc. et al. and leave to file out oftime.

MOVINGPARTY:-;:-____-.=.--=--,,----,--- ______OPPOSING PARTY: Chevron Corp., R. Pallares, R. Veiga D Plaintiff D Defendant D AppellantiPetitioner D Appellee/Respondent

MOVING ATTORNEY: _____---,,-_-:- __-,--:-:::--- OPPOSING ATTORNEY: (see below and attached) [name of attorney, with firm, address, phone number and e-mail] Floyd Abrams Randy M. Mastro, Attorney for Chevron Corp. Cahill Gordon & Reindel LLP Gibson, Dunn & Crutcher LLP -';'8~0~P~in~e"'S"i'tr""e~e"'t,~N'""e""w"-'Y'""'0""rk"','-"N""e"'w"-'Y"'0""rk"-..!.1O"'O"'O",S'--____ 200 Park Avenue, 47th Floor. New York, New York 10 166 ~(2~1~2)L7~0~1~-3~0~00L______~(2~1~2)~3~S~1-~3~82~S~ ______

Court-Judge/Agency appealed from: U.S. District Court for the Southern District of New York (Kaplan. J.)

Please check appropriate boxes: FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND INJUNCTIONS PENDING APPEAL: Has movant notified opposing counsel (required by Local Rule 27.1): Has request for relief been made below? DYes mNo EI Yes 0 No (explain):, ______Has this relief been previously sought in this Court? DYes 0 No Requested return date and explanation of emergency: Motion for leave Opposing counsel's position on motion: o Unopposed OOpposed ODon't Know to file brief. amici curiae. is made re: pending emergencv Does opposing counsel intend to file a response: o Yes ONo EIDon'tKnow motion for stav which is being argued on June 8. 2010.

Is oral argument on motion requested? DYes mNo (requests for oral argument will not necessarily be granted)

Has argument date of appeal been set? o Yes EI No If yes, enter date: ______

Signature of Moving Attorney: ______~Date: June 1. 2010 Has service been effected? mYes 0 No [Attach proof of service]

ORDER

IT IS HEREBY ORDERED THAT the motion is GRANTED DENIED.

FOR THE COURT: CATHERINE O'HAGAN WOLFE, Clerk of Court

Date: ______By:

Form T-I080 Motion Information Statement- Additional Opposing Attorneys

Paul E. Dans Jorge A. Mestre Andres Rivero RIVERO MESTRE & CASTRO 2525 Ponce de Leon Boulevard Suite 1000 Miami, FL 33134 (305) 445-2500

Attorneys/or Rodrigo Perez Pallares

Christopher N. Manning Beth A. Stewart WILLIAMS & CONNOLLY LLP 725 Twelfth Street, N.W. Washington, D.C. 20005 (202) 434-5000

Attorneys/or Ricardo Reis Veiga IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

In re Application of CHEVRON CORPORATION

JOSEPH BERLINGER, CRUDE PRODUCTIONS, LLC, MICHAEL BONFIGLIO, THIRD EYE MOTION PICTURE COMPANY, INC., and @RADICAL.MEDIA, INC., Docket Nos. 10-1981(L) and Appellants, 10-1966( con) LAGO AGRIO PLAINTIFFS,

Appellants,

CHEVRON CORPORATION, RODRIGO PEREZ P ALLARES and RICARDO REIS VEGA,

Appellees.

MOTION BY ABC, INC., THE ASSOCIATED PRESS, CBS BROADCASTING INC., DAILY NEWS, L.P., THE DIRECTORS GUILD OF AMERICA, INC., DOW JONES & COMPANY, INC., GANNETT CO., INC., HEARST CORPORATION, HOME BOX OFFICE, INC., THE INTERNATIONAL DOCUMENTARY ASSOCIATION, NBC UNIVERSAL, INC., THE NEW YORK TIMES COMPANY, AND THE WASHINGTON POST FOR LEAVE TO FILE BRIEF AMICI CURIAE AND FOR LEAVE TO FILE OUT OF TIME

Floyd Abrams Landis C. Best (admission pending) Catherine Suvari (admission pending) CAHILL GORDON & REINDEL LLP 80 Pine Street New York, New York 10005 (212) 701-3000

Attorneys for Proposed Amici Curiae CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, proposed amici curiae ABC, Inc., The Associated Press, CBS Broadcasting Inc., Daily

News, L.P., the Directors Guild of America, Inc., Dow Jones & Company, Inc.,

Gannett Co., Inc., Hearst Corporation, Home Box Office, Inc., the International

Documentary Association, NBC Universal, Inc., The New York Times Company, and the Washington Post certifY as follows:

ABC, Inc. has the following publicly held corporate parent: The Walt Dis ney Company.

The Associated Press has no parents, subsidiaries, or affiliates that have any outstanding securities in the hands of the public, has no publicly held stock, and no publicly held company owns 10% or more of its stock.

CBS Broadcasting Inc. is an indirect, wholly-owned subsidiary of CBS Cor poration, which is a publicly-traded company.

Daily News, L.P., is a limited partnership, the general partner of which is

New DN Company, a privately-held corporation. No publicly-held corporation holds an interest of 10% or more in Daily News, L.P.

The Directors Guild of America, Inc. is a non-profit mutual benefit corporation.

11 News Corporation, a publicly held company, is the indirect parent corpora tion of amicus Dow Jones & Company, Inc. ("Dow Jones"), and Ruby Newco

LLC, a subsidiary of News Corporation and a non-publicly held company, is the direct parent of Dow Jones. No publicly held company owns 10% or more Dow

Jones stock.

Gannett Co., Inc. is a publicly traded corporation. It has no parents, subsidi aries or affiliates that are publicly traded. J.P. Morgan Chase and Co. owns more than 10% of Gannett Co., Inc. stock.

Hearst Corporation is a privately held company.

Time Warner Inc., a publicly-traded company, is the ultimate parent corpo ration of amicus Home Box Office, Inc. No publicly held company owns 10% or more of Time Warner Inc.'s stock.

The International Documentary Association is a nonprofit membership or ganization.

NBC Universal, Inc. is owned by General Electric Corporation, a publicly traded U.S. corporation, and Vivendi, S.A., a publicly traded French company.

The New York Times Company has no parent, and no publicly-held corpo ration holds an interest of 10% or more in the New York Times Company.

WP Company LLC d/b/a The Washington Post is a wholly-owned subsidi ary of The Washington Post Company, a publicly held corporation. Berkshire

111 Hathaway, Inc., a publicly held company, has a 10% or greater ownership interest in The Washington Post Company.

iv ABC, Inc., The Associated Press, CBS Broadcasting Inc., Daily News, L.P., the Directors Guild of America, Inc., Dow Jones & Company, Inc., Gannett Co.,

Inc., Hearst Corporation, Home Box Office, Inc., the International Documentary

Association, NBC Universal, Inc., The New York Times Company, and the Wash ington Post respectfully move this Court, pursuant to Federal Rule of Appellate

Procedure 29(a), for permission to file a brief amici curiae in support of the emer gency motions for a stay and expedited appeal by Respondents-Appellants Joseph

A. Berlinger, Crude Productions, LLC, Michael Bonfiglio, Third Eye Motion Pic ture Company, Inc., and @radical.media (collectively, the "Filmmakers"), and the

Lago Agrio Plaintiffs. In light of the expedited schedule assigned to Appellants' motion combined with the time necessary to secure the participation of interested proposed amici, as explained more fully below, the undersigned further move for permission to file their brief out of time. In support of this motion, proposed amici state as follows.

1. Proposed amici and their employees and members broadcast news and documentaries on television, produce, create and direct films, including documen taries, publish newspapers and magazines, and otherwise prepare for and offer to the public the widest array of information covering subjects of public interest. Pro posed amici span this country and the world and include: national broadcasting networks ABC, CBS and NBC; producer of award winning documentaries and

1 other television content Home Box Office; publishers of major newspapers and magazines The New York Times Company, The Washington Post, Gannett,

Hearst, Dow Jones and the Daily News; the worldwide news cooperative and dis tributor the Associated Press; as well as the Directors Guild of America, a non profit organization founded to protect the rights of directors, and the International

Documentary Association, a nonprofit organization dedicated to supporting the ef forts of nonfiction film and video makers throughout this country and the world.

2. Proposed amici are vitally interested in ensuring that the journalist's privilege set forth by this Court in Gonzales v. National Broadcasting Company,

Inc., 194 F.3d 29 (2d Cir. 1999), is fully and appropriately applied. Proposed amici, their employees and members rely upon the journalist's privilege in going about their work of producing, creating, publishing, and broadcasting news, film, including documentaries, and other information. Without vigorous implementation ofthe privilege, proposed amici's work will be seriously jeopardized.

3. The instant stay application presents just those concerns. The District

Court, focusing primarily on three scenes in a two-hour documentary, held that the reporter's privilege was overcome and ordered the production of over 600 hours of

"outtakes" - work product that was not used in the final published feature film documentary entitled Crude. Proposed amici believe the District Court's analysis

2 was fundamentally flawed, and respectfully request permission to file a brief, amici curiae, that would address those flaws. Proposed amici respectfully suggest that an amici brief addressing the reporter's privilege from the proposed amici's per spective will be of aid to the motions panel as it considers the stay applications.

4. Proposed amici respectfully request permission to file their proposed brief on Tuesday, June 1, one week prior to the scheduled hearing on the motions on June 8. The Appellants' motions and briefs were filed on Thursday, May 20.

Thereafter, this Court set an expedited briefing schedule whereby Appellees' briefs were filed on Monday, May 24, and Appellants' reply briefs filed on Thursday,

May 27. Counsel for proposed amici was first contacted about a possible amici brief on or about Wednesday, May 19. Due to the expedited briefing schedule, it would have been impossible for proposed amici to prepare and file an amici brief prior to Appellees' filing of their responsive briefs on Monday, May 24. While one prospective amicus curiae expressed interest in filing a brief on May 19, not until May 28th had all amici agreed to participate, reviewed and commented on a draft brief, and obtained clearance within their organizations to complete all tasks required to authorize the filing of the brief. Proposed amici respectfully urge the

Court to accept the brief, which is limited to addressing the likelihood of success of

Appellants' reporter's privilege argument and is filed one week prior to the sched uled hearing on June 8.

3 5. Counsel for proposed amici contacted the parties to seek consent for the filing of this proposed amici brief and for filing on June 1. Appellants consented.

Appellee Reis Veiga did not consent. Appellees Chevron Corp. and Perez Pallares indicated that they would consent if proposed amici consented to their submission of a written response. Proposed amici are not parties in the case and cannot, in any event, affect the Court's scheduling order.

For the foregoing reasons, proposed amici respectfully request permission to file on June 1,2010 the proposed brief amici curiae in support of Appellants.

Dated: New York, New York June 1,2010

Respectfully Submitted,

By:

Floyd Abrams Landis C. Best (admission pending) Catherine Suvari (admission pending) CAHILL GORDON & REINDEL LLP 80 Pine Street New York, New York 10005 (212) 701-3000

Of counsel:

John W. Zucker Indira Satyendra ABC, INC. 77 West 66th Street New York, NY 10023 (212) 456-7832 4 Karen Kaiser The Associated Press 450 West 33rd Street New York, NY 10001 (212) 621-7287

Anthony M. Bongiorno CBS Corporation 51 West 52nd Street New York, NY 10019 (212) 975-2721

Anne B. Carroll Daily News, L.P. 450 W. 33 Street, New York, NY 10001 (212) 210-2100

David Korduner Directors Guild of America, Inc. 7920 Sunset Blvd. Los Angeles, CA 90046 (310) 289-2015

Mark H. Jackson Jason P. Conti Gail Gove Dow Jones & Company, Inc. 1211 Avenue of the Americas, 7th Floor New York, NY 10036 (212) 416-2164

Barbara Wall Gannett Co., Inc. 7950 Jones Branch Drive McLean, VA 22107 (703) 854-6951

5 Jonathan Donnellan Hearst Corporation Office of General Counsel 300 West 57th Street, 40th FIr. New York, New York 10019 (212) 649-2051

Stephanie S. Abrutyn Peter Rienecker Home Box Office, Inc. 11 00 Avenue ofthe Americas New York, NY 10036 (212) 512-5610

Christopher Perez, for the International Documentary Association Donaldson & Callif 900 South Beverly Dr., Suite 400 Beverly Hills, CA 90212 (310) 277-8394

Daniel M. Kummer NBC Universal, Inc. 30 Rockefeller Plaza, Rm. 1091E New York, NY 10112 (212) 664-4017

George Freeman The New York Times Company 620 8th Avenue New York, NY 10018 (212) 556-1558

Eric N. Lieberman James A. McLaughlin The Washington Post 1150 15th Street, N.W. Washington, D.C. 20071 (202) 334-7988

6 lO-1918(L) and lO-1966(con)

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

In re Application of CHEVRON CORPORATION

JOSEPH BERLINGER, CRUDE PRODUCTIONS, LLC, MICHAEL BONFIGLIO, THIRD EYE MOTION PICTURE COMPANY, INC., and @RADICAL.MEDIA, INC., Appellants, LAGO AGRIO PLAINTIFFS, Appellants,

CHEVRON CORPORATION, RODRIGO PEREZ PALLARES and RICARDO REIS VEGA, Appellees.

BRIEF AMICI CURIAE OF ABC, INC., THE ASSOCIATED PRESS, CBS BROADCAST· ING INC., DAILY NEWS, L.P., THE DIRECTORS GUILD OF AMERICA, INC., DOW JONES & COMPANY, INC., GANNETT CO., INC., HEARST CORPORATION, HOME BOX OFFICE, INC., THE INTERNATIONAL DOCUMENTARY ASSOCIATION, NBC UNIVERSAL, INC., THE NEW YORK TIMES COMPANY, AND THE WASHINGTON POST IN SUPPORT OF APPELLANTS' EMERGENCY MOTIONS FOR A STAY PENDING APPEAL

Floyd Abrams Landis C. Best (admission pending) Catherine Suvari (admission pending) CAHILL GORDON & REINDEL LLP 80 Pine Street New York, New York 10005 (212) 701-3000 Attorneys for Amici Curiae CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, amici cu riae ABC, Inc., The Associated Press, CBS Broadcasting Inc., Daily News, L.P., the Directors Guild of America, Inc., Dow Jones & Company, Inc., Gannett Co.,

Inc., Hearst Corporation, Home Box Office, Inc., the International Documentary

Association, NBC Universal, Inc., The New York Times Company, and the Wash ington Post certify as follows:

ABC, Inc. has the following publicly held corporate parent: The Walt Dis ney Company.

CBS Broadcasting Inc. is an indirect, wholly-owned subsidiary of CBS Cor poration, which is a publicly-traded company.

Daily News, L.P., is a limited partnership, the general partner of which is

New DN Company, a privately-held corporation. No publicly-held corporation holds an interest of 10% or more in Daily News, L.P.

The Directors Guild of America, Inc. is a non-profit mutual benefit corporation.

-1- News Corporation, a publicly held company, is the indirect parent corpora tion of amicus Dow Jones & Company, Inc. ("Dow Jones"), and Ruby Newco

LLC, a subsidiary of News Corporation and a non-publicly held company, is the direct parent of Dow Jones. No publicly held company owns 10% or more Dow

Jones stock.

Gannett Co., Inc. is a publicly traded corporation. It has no parents, subsidi aries or affiliates that are publicly traded. J.P. Morgan Chase and Co. owns more than 10% of Gannett Co., Inc. stock.

Hearst Corporation is a privately held company.

Time Warner Inc., a publicly-traded company, is the ultimate parent corpo ration of amicus Home Box Office, Inc. No publicly held company owns 10% or more of Time Warner Inc.'s stock.

The International Documentary Association is a nonprofit membership or ganization.

NBC Universal, Inc. is owned by General Electric Corporation, a publicly traded U.S. corporation, and Vivendi, S.A., a publicly traded French company.

The New York Times Company has no parent, and no publicly-held corpo ration holds an interest of 10% or more in the New York Times Company.

WP Company LLC d/b/a The Washington Post is a wholly-owned subsidi ary of The Washington Post Company, a publicly held corporation. Berkshire

-11- Hathaway, Inc., a publicly held company, has a 10% or greater ownership interest in The Washington Post Company.

-111- TABLE OF CONTENTS

TABLE OF AUTHORITIES ...... v

INTERESTS OF THE AMICI...... 2

MOVANTS ARE HIGHLY LIKELY TO PREVAIL ON THE MERITS OF THEIR APPEAL ...... 8

CONCLUSION ...... 19

CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(A)

-lY- TABLE OF AUTHORITIES

Cases

Baker v. F&F Investment, 470 F.2d 778 (2d Cir. 1972) ...... 9

Branzburg v. Hayes, 408 U.S. 665 (1972) ...... 9

Gonzales v. National Broadcasting Company, Inc., 194 F.3d 29 (2d Cir. 1999) ...... passim

In re Application o/Chevron Corp., No. M-19-111,_F. Supp. 2d_, 2010 WL 1801526 (S.D.N.Y. May 6,2010, corrected May 10, 2010) ...... passim

In re Application 0/ Chevron Corp., No. M-19-111, _F. Supp. 2d_, 2010 WL 2000386 (S.D.N.Y. May 20, 2010) ...... passim

In re Application to Quash Subpoena to National Broadcasting Company, Inc., 79 F.3d 346 (2d Cir. 1996) ...... 17-18

In re Petroleum Products Antitrust Litigation, 680 F.2d 5 (2d Cir.), cert. denied, 459 U.S. 909 (1982) ...... 9

United States v. Marcos, No. SSSS 87 CR 598, 1990 WL 74521 (S.D.N.Y. June 1, 1990) ...... 11

Von Bulow v. von Bulow, 811 F.2d 136 (2d Cir. 1987) ...... 9

Statutes

28 U.S.C. § 1782...... 8

-v- ABC, Inc., The Associated Press, CBS Broadcasting Inc., Daily News, L.P., the Directors Guild of America, Inc., Dow Jones & Company, Inc., Gannett Co.,

Inc., Hearst Corporation, Home Box Office, Inc., the International Documentary

Association, NBC Universal, Inc., The New York Times Company, and the Wash-

ington Post respectfully submit this memorandum of law, as amici curiae, in sup-

port of the emergency motions by Respondents-Appellants Joseph A. Berlinger,

Crude Productions, LLC, Michael Bonfiglio, Third Eye Motion Picture Company,

Inc., and @radical.media (collectively, the "Filmmakers"), and the Lago Agrio

Plaintiffs for a stay ofthe May 10,2010 order issued by the U.S. District Court for

the Southern District of New York (Kaplan, l) (the "District Court").!

The District Court's order granted an application by Petitioners-Appellees

Chevron Corporation, Rodrigo perez Pallares, and Ricardo Reis Veiga (collec-

tively, "Petitioners") to subpoena what appears to be the largest amount of film

outtakes in American history - approximately six hundred hours of documentary

Pursuant to Local Rule 29 .1 (b), amici hereby confirm that no party to the instant application, or their counsel, has contributed money that was intended to fund the preparation or submission of amici's proposed brief. In addition, no non-party other than the amici, or their members and counsel, has contributed such funds. Counsel for the parties to this application did not author the proposed brief in whole or in part. film outtakes created by the Filmmakers. While purporting to apply the journalist privilege standard articulated by this Court in Gonzales v, National Broadcasting

Company, Inc., 194 F.3d 29 (2d Cir. 1999), the District Court opinion is at odds with both the letter and spirit of that opinion. Because the District Court's analysis severely undermines the continued vitality of a journalist's privilege with respect to outtakes and unpublished news gathering material in a manner which imperils not only the rights of the Filmmakers before this Court but those of all who engage in news reporting and film-making, and ultimately all who read and view their efforts, the undersigned urge this Court to stay the District Court's order pending appeal and review on the merits.2

INTERESTS OF THE AMICI

The amici and their employees and members broadcast news and documentaries on television, produce, create and direct films, including documentaries, pub-

2 Appellants consented to the filing of this brief, but because not all Petitioners Appellees have so consented, the amici move separately for leave to file this brief pursuant to Federal Rule of Appellate Procedure 29(a). See Motion by ABC, Inc., The Associated Press, CBS Broadcasting Inc., Daily News, L.P., the Directors Guild of America, Inc., Dow Jones & Company, Inc., Gannett Co., Inc., Hearst Corporation, Home Box Office, Inc., the International Documentary Association, NBC Universal, Inc., The New York Times Company, and the Washington Post For Leave to File a Brief Amici Curiae and For Leave to File Out of Time, dated June 1,2010.

-2- lish newspapers and magazines, and otherwise prepare for and offer to the public the widest array of information covering subjects of public interest. In doing so, all the amici broadcast, include in their films, or publish only a limited amount of the information gathered and initially considered for possible inclusion. The mate rials not included - outtakes and other unpublished newsgathering material - have long been held by this Circuit to be protected by a qualified privilege de

signed to assure that news reporters, filmmakers, writers, and their sources will not

be chilled from participating in the gathering and dissemination of information of

interest and importance to the public. A ruling such as that before this Court,

which too easily and too sweepingly requires the production of such material, can

well have just that effect.

Individually, the amici are as follows:

ABC, Inc. is a broad-based communications company with significant hold

ings in the United States and abroad. Alone or through its subsidiaries, it owns

ABC News, abcnews.com, and local broadcast television stations that regularly

gather and report news to the public. ABC News produces the television programs

World News, 20/20, Primetime, Good Morning America and Nightline, among

others.

-3- The Associated Press ("AP") is a news cooperative organized under the Not for-Profit Corporation Law of New York. AP's members and subscribers include the nation's newspapers, magazines, broadcasters, cable news services and Internet content providers. AP distributes news worldwide through its global network of

243 bureaus and offices and, on any given day, AP's content can reach more than half of the world's population.

CBS Broadcasting Inc. ("CBS Broadcasting") produces and broadcasts news, public affairs and entertainment programming. Its CBS News Division pro duces morning, evening and weekend news programming, as well as news and public affairs newsmagazine shows such as 60 MINUTES and 48 HOURS

INVESTIGATES. CBS Broadcasting also directly owns and operates television stations across the country, including WCBS-TV in New York.

Daily News, L.P., publishes the New York Daily News, which is the sixth largest circulation newspaper in the country, serving primarily the New York City metropolitan area. The Daily News' website, nydailynews.com, had 21.6 million unique visitors and 211 million page views in April 2010.

The Directors Guild of America, Inc. ("DGA") was founded in 1936 to pro tect the economic and creative rights of Directors. Over the years, its membership has expanded to include the entire directorial team, including Unit Production

-4- Managers, Assistant Directors, Associate Directors, Stage Managers, and Produc

tion Associates. DGA's over 14,500 members live and work throughout the

United States and abroad, and are vital contributors to the production of feature

films, television programs, documentaries, news and sports programs, commer

cials, and content made for the Internet and other new media.

Dow Jones & Company, Inc. is the publisher of The Wall Street Journal, a

daily newspaper with a national circulation of over two million, WSJ.com, a news

website with more than one million paid subscribers, Barron's, a weekly business

and finance magazine, and through its Dow Jones Local Media Group, community

newspapers throughout the United States. In addition, Dow Jones provides real

time financial news around the world through Dow Jones Newswires as well as

news and other business and financial information through Dow Jones Factiva and

other Dow Jones products and services.

Gannett Co., Inc. is an international news and information company that

publishes 81 daily newspapers in the United States, including USA TODAY, and a

number of non-daily publications, including USA Weekend, a weekly newspaper

magazine. Gannett also owns 23 television stations, and operates over 100 U.S.

websites that are integrated with its publishing and broadcast operations.

-5- Hearst Corporation is one ofthe nation's largest diversified media compa meso Its major interests include ownership of 15 daily and 38 weekly newspapers; nearly 200 magazines around the world; 29 television stations, which reach a com bined 18% of US. viewers; ownership in leading cable networks; as well as busi ness publishing, Internet businesses, television production, newspaper features dis tribution and real estate.

Home Box Office, Inc. is America's most successful premium television company, delivering two 24-hour pay television services - HBO and Cinemax to over 40 million US. subscribers. HBO documentary films offers a full spec trum of non-fiction programming by acclaimed documentary filmmakers and has earned virtually every major programming award.

The International Documentary Association ("IDA") was founded in 1982 as a nonprofit membership organization dedicated to supporting the efforts of nonfic tion film and video makers throughout the United States and the world; promoting the documentary form; and expanding opportunities for the production, distribu tion, and exhibition of documentary. Over the past twenty-eight years IDA has served as a forum and voice for documentarians around the world. IDA currently serves over 11,000 members and community users in over fifty countries, offering

-6- programs, seminars, lectures, workshops, and screenings for those members and the general public.

NBC Universal, Inc. is one of the world's leading media and entertainment

companies in the development, production, and marketing of news, entertainment

and information to a global audience. Among other businesses, NBC Universal

owns and operates NBC News, the NBC television network, the Spanish-language

television network Telemundo, several news and entertainment networks including

MSNBC, CNBC and Bravo, a television stations group consisting of 19 owned

and-operated television broadcast stations that produce substantial amounts of local

news, sports and public affairs programming, and the Universal and Focus Features

film studios.

The New York Times Company, a leading media company with 2009 reve

nues of $2.4 billion, publishes The New York Times with a circulation of close to

one million daily and 1.4 million Sundays, the International Herald Tribune, The

Boston Globe, 15 other daily newspapers and operates more than 50 Web sites, in

cluding NYTimes.com, Boston.com and About.com.

WP Company LLC publishes, among other things, The Washington Post, a

leading newspaper with daily and Sunday circulation primarily in the Washington,

D.C. metropolitan area, and operates websites such as washingtonpost.com.

-7- MOVANTS ARE HIGHLY LIKELY TO PREVAIL ON THE MERITS OF THEIR APPEAL

In this brief, amici deal only with one aspect of the factors to be considered by the Court in determining whether to grant a stay - the likelihood of success by

Respondents-Appellants on appeal. The District Court concluded that the chances of success on the merits were "quite modest.,,3 The amici believe, to the contrary, that movants are highly likely to prevail on the merits and that they should do so.

We set forth the reasons for that assessment in this brief.

As explained more fully in the parties' submissions to this Court, the District

Court issued a [mal order granting Petitioners' application under 28 U.S.C. § 1782

("Section 1782") on May 10,2010. See In re Application a/Chevron Corp., No.

M-19-111, _ F. Supp. 2d _,2010 WL 1801526 (S.D.N.Y. May 6, 2010, corrected May 10, 2010) (the "May 10 Order"). Pursuant to that order, Petitioners served subpoenas three days later that require Mr. Berlinger to produce approximately 600 hours of unedited video footage shot during the three years of filming for the.feature film documentary entitled Crude, which was released in 2009. The

3 See In re Application a/Chevron Corp., No. M-19-11l, _ F. Supp. 2d _,2010 WL 2000386 (S.D.N.Y. May 20, 2010) (the "May 20 Order"), at 10.

-8- Filmmakers timely moved for a temporary stay of the District Court's order on

May 14, and the instant emergency motion arises out of the District Court's May

20 refusal to grant such a stay beyond that required to make this application. See

May 20 Order, at 10.

The standards governing this Court's determination of whether to grant a

stay are outlined in the parties' briefing to this Court and are not in dispute. Nor,

in fact, is there dispute between the parties - or with the District Court - as to

the identity of the ruling by this Court that governs the Filmmakers' privilege

claim. All agree that Gonzales v. National Broadcasting Company, Inc., 194 F.3d

29 (2d Cir. 1999), provides a sufficient basis for deciding that claim. Where the

parties differ with each other and where the amici differ with the District Court is

as to nothing less than the meaning of Gonzales.

The Gonzales case was not some sort of judicial outlier, created out of whole

cloth by this Court. It followed a number of rulings, after the Supreme Court's de

cision in Branzburg v. Hayes, 408 U.S. 665 (1972), holding that a qualified privi

lege protects confidential journalistic sources. See Baker v. F&F Investment, 470

F.2d 778, 783 (2d Cir. 1972); In re Petroleum Products Antitrust Litigation, 680

F.2d 5 (2d Cir.), cert. denied, 459 U.S. 909 (1982); von Bulow v. von Bulow, 811

F.2d 136, 142 (2d Cir. 1987).

-9- In Gonzales, this Court resolved all doubt as to the applicability in this Cir- cuit of a qualified privilege for non-confidential newsgathering materials, holding that a party seeking to compel production of such materials must make a somewhat less demanding showing than for confidential information - but a showing that is, nonetheless, still significantly more substantial than the burden on a litigant seeking ordinary garden-variety discovery. The Court summed up its ruling as follows:

[W]e reaffirm that the qualified privilege for journalists applies to nonconfidential, as well as to confidential, information. . .. Where a civil litigant seeks nonconfidential materials from a nonparty press en tity, the litigant is entitled to the requested discovery notwithstanding a valid assertion of the journalists' privilege if he can show that the materials at issue are of likely relevance to a significant issue in the case, and are not reasonably obtainable from other available sources.

Gonzales, 194 F.3d at 35-36 (holding that the privilege applied to non-confidential outtakes subpoenaed from a television network).4 The Court explained its reasons for extending a qualified privilege to all non-public journalist materials:

These broader concerns, [such as the "pivotal function of reporters to collect information for public dissemination,"] we believe, are rele vant regardless whether the information sought from the press is con fidential. If the parties to any lawsuit were free to subpoena the press

4 Amici note that the Filmmakers have consistently asserted the confidentiality of certain outtake footage throughout the proceedings below and have expressly reserved their right to challenge the District Court's finding of non-confidentiality on appeal.

-10- at will, it would likely become standard operating procedure for those litigating against an entity that had been the subject of press attention to sift through press files in search of information supporting their claims. The resulting wholesale exposure of press files to litigant scrutiny would burden the press with heavy costs of subpoena compli ance. . .. [P]ermitting litigants unrestricted, court-enforced access to journalistic resources would risk the symbolic harm of making jour nalists appear to be an investigative arm of the judicial system, the government, or private parties.

Id. at 35.

The privilege articulated in Gonzales protects journalists' credibility with

sources while promoting, at the same time, an editorial process free from undue,

outside intrusion. As Judge Keenan explained twenty years ago:

The second interest recognized in the journalist's privilege is the press' independence in its "selection and choice of material for publi cation." Ready obtainment by litigants of court orders compelling disclosure of outtakes and unpublished information could prompt re porters or editors to purge from publication any information they fear would excite the interest of current or prospective litigants.

United States v. Marcos, No. SSSS 87 CR 598, 1990 WL 74521, at *2 (S.D.N.Y.

June 1, 1990) (quashing subpoena that sought outtakes from 60 Minutes interview

with Imelda Marcos) (citations omitted). But the District Court in this case recog-

nized none of these interests, and certainly none such as were well-identified by

Mr. Berlinger in his declaration:

If the subjects of my films believed that the raw footage, as opposed to a release of footage as part ofthe overall story told by me, would be

-11- handed over to third-parties and potentially taken out of context (es pecially by their adversaries in the lawsuit), they would be far less in clined to trust me and allow me to film them. Without the protections of the journalists' privilege and the confidence that I can honor my commitment to maintain control over my footage, I cannot make documentary films like Crude.

Dec!. ofJoseph A. Berlinger, dated Apr. 22, 2010 ("Berlinger Dec!."), at ~ 11.

The vast distance between the District Court's reading of Gonzales and its text and spirit is illustrated by the Court's emphasis in both its May 10 and May 20 orders on the proposition that, because the individual subjects captured in the outtake footage voluntarily chose to expose themselves to public scrutiny through the inevitable screening of a completed film, it would "not credit any assertion that the discovery of the outtakes by [PJetitioners would compromise the ability of Berlin- ger or, for that matter, any other film maker, to obtain material from individuals interested in confidential treatment." May 10 Order, at 7. See also May 20 Order, at 8-9. This analysis completely ignores the relationship between a documentary filmmaker and the individuals that he or she interviews; it assumes, wrongly, that the participants in such a project would see no difference between the pu1;>lic circulation of a final film painstakingly prepared and edited by the filmmaker who solicited their contribution and whom they entrusted with telling their story and the potentially unlimited display of their every word in a widely-publicized multi-billion

-12- dollar internationallitigation.5

The District Court correctly recited the governing standards, set forth in

Gonzales, for the consideration of a qualified journalists' privilege in its May 10 order.6 But the Court's application of those standards to the instant dispute is at war with - and threatens to consume - the standards themselves. Most obviously, there was no basis in the record for the sweeping assumption that all 600 hours of tape - nearly 350 times the footage that appeared in the final film itself

- contained material "of likely relevance to a significant issue in the case." Ap- plying the Gonzales standard in name only, the Court focused on three scenes in the publicly-released film to support its conclusion that all the footage sought, none of which was even reviewed by the District Court, would be of likely relevance to the Petitioners' claims.

5 The District Court also noted in its May 20 opinion that "this case has little or nothing in common with the archetypal situations in which a journalist privilege is claimed[.]" May 20 Order, at 8. But the facts of this case cut especially strongly against the disclosure or dered. Petitioners' subpoena for 600 hours of outtake footage far surpasses in scope any requests previously addressed by this or, we believe, any Court. Never before, to amici's knowledge, has a court confronted with the journalist's privilege approved production of a body of work approaching the elephantine amount of material at issue here.

6 See May 10 Order, at 9 (quoting Gonzales); May 20 Order, at 6.

-13- Confronted with the limits of its review in Respondents' request for a stay, the District Court described its findings as resting on a "far broader base than Ber- linger acknowledges," but it did not clarifY how any review of the published film could establish the likely relevance of all 600 hours not included in that public ver-

sion.? Assuming, arguendo, that the outtake footage does contain the particular

categories of footage that Petitioners and the District Court predict, the Court did

not find - because it could not - that all the outtakes bore a likelihood of re1e-

vance to Petitioners' foreign claims. Indeed, the May 10 order authorized Petition-

ers to subpoena an enormous quantity of outtake footage without any specification

of particular topics or time periods that are supposedly relevant to their claims: ab-

sent reversal or remand by this Court, Petitioners would obtain 600 hours' worth of

7 See, e.g., May 20 Order, at 5 ("The fact that Crude contains only excerpts of foot age depicting such interactions amply supports an inference that the outtakes con tain additional relevant material. ... Further .... [p]laintiffs' counsel indeed are on the screen throughout most of Crude, which contains less than one percent of the total footage Berlinger shot in connection with the litigation. Berlinger con cededly removed at least one scene from the final version of Crude at their direc tion. In these circumstances, there is considerable reason to believe that the out takes are relevant to significant issues in the Lago Agrio Litigation and the Arbi tration, including whether plaintiffs' counsel improperly influenced expert wit nesses and the [Government of Ecuador].") (quoting May 10 Order). At most, such an analysis - even if deemed a fair sununary of the film - suggests only that some outtakes might be ordered disclosed. Nothing in the Court's opinion even begins to demonstrate that all the outtakes should have been ordered dis closed.

-14- privately-created footage based solely on a self-serving extrapolation from the

Filmmakers' published material. See, e.g., Transcript of Apr. 30, 2010 Oral Ar gument before Hon. Lewis A. Kaplan ("Apr. 30 Tr."), at 5:20. This is fishing with the largest possible net.

The District Court attempted to minimize the breadth of its order by main taining that any insistence on greater specificity or a more targeted application would be unfair to Petitioners, because Petitioners cannot "reasonably be expected to identify with particularity the outtakes that they seek where knowledge of their

content lies exclusively with Berlinger." May 20 Order, at 5 (quoting May 10 Or

der). This argument ignores the reality that outtake cases routinely involve parties

seeking production of previously unseen material. The Court effectively shifted

the burden of alleged unfairness onto the Filmmakers, rendering this Circuit's re

quirement of a relevance showing meaningless.

The contention of the individual applicants that it would not be "reasonable

to expect the district court to review all 600 hours of footage in camera," Opp. of

Petitioners-Appellees Perez Pallares and Reis Veiga, dated May 24, 2010, at 14,

similarly misses the point that a legally-recognized First Amendment-rooted privi

lege surely cannot disappear because the amount of material at issue is so enor

mous. While resolution of this issue undoubtedly required creativity, the use of a

-15- magistrate judge, a special master, an agreed-upon third party or some other mechanism could have been ordered rather than simply sweeping aside the privi

lege at issue in wholesale fashion.

Finally, the District Court acknowledged that, under Gonzales, Petitioners must demonstrate that the evidence they seek is "not reasonably obtainable from

other sources." May 10 Order, at 9. Review ofthe Court's order, however, reveals

only a cursory and misguided application of the considerations behind Gonzales's

test.

The public news report at issue in Gonzales asserted, in part, that non-public

program outtakes retained by NBC could confirm that NBC's undercover reporter

had not violated any traffic laws prior to being stopped by the same police officer

who was the defendant in the underlying civil rights action. Specifically, the out

takes at issue purportedly contained factual information about the reporter's driv

ing speed and vehicle operation prior to the stop, as well as details of the reporter's

one-on-one interaction with the defendant, that could not reasonably be obtained

through deposition testimony. Gonzales, 194 F.3d at 36. The district court's con

clusion in Gonzales that no alternative source for such evidence existed was not

based on NBC's exclusive possession of a particular videotape, but on the specific

factual contents of the footage at issue. This Court approved the district court's

-16- finding that such outtake tapes "contain[ed] information that [was] not reasonably

obtainable from other available sources, because they [could] provide unim- peachably objective evidence of [defendant's] conduct." Id. (emphasis added). No

such distinction between form and function was drawn or 'even attempted in this

case. Compare Mem. of Law by Chevron Corporation in Support of Petition and

Application for an Order Pursuant to 28 U.S.C. § 1782, at 18 ("[T]he 600 hours of

footage shot by Mr. Berlinger and his colleagues are likely to be in their sole pos-

session, and thus the footage itself is not known to be available from any other

source.") (emphasis added) and May 10 Order, at 11 ("The issue ... here is ....

whether there is sufficient ground to believe that the footage [P]etitioners seek

would not reasonably be obtainable elsewhere.") (emphasis added).

It is generally true that the footage itself is unobtainable elsewhere, but the

correct test is whether the information contained in that footage is so obtainable.

This Court used just this analysis three years before Gonzales in In re Application

to Quash Subpoena to National Broadcasting Company, Inc., 79 F.3d 346 (2d Cir.

1996) ("Graco"), reversing denial of a motion to quash where defendants failed to

demonstrate unavailability. The Graco court explained as follows:

The district court concluded that, because the material contained in the out-takes sought by Graco is solely in the hands of NBC, it is 'therefore, unavailable from any other source.' However, it cannot be

-17- said that pertinent material is not obtainable elsewhere just because it is included in some out-takes. . .. Graco has made no showing that it attempted to obtain the information from other sources, such as the medical examiner. Graco simply failed to exhaust all other available sources of information.

Id. at 353

The alleged offenses depicted in Crude for which Petitioners seek additional evidence, involving an alleged Ecuadorian expert, counsel, and a judge in Quito, can be probed directly in Ecuador. Mr. Berlinger has also testified that: "Chev- ron's attorneys, often accompanied by their own cameras and film crew, were present at every public event and hearing concerning the judicial inspections at which the Crude cameras were rolling. . .. Thus, my raw footage is not the only source of the information sought by Chevron." Berlinger Dec!. at ~ 34. In their brief to the District Court, the Lago Agrio Plaintiffs also emphasized that Petitioners had not sought discovery of any evidence probative of the judicial corruption that they allege through Ecuadorian channels. See Mem. of Law by the Lago Agrio Plain- tiffs in Opposition to Application for an Order Pursuant to 28 U.S.C. § 1782, at 18

("Chevron . . . did not even try to get discovery concerning the Court expert from the foreign jurisdiction."). The District Court offered only a passing response to these submissions, concluding that the presence of Chevron's attorneys, "often accompanied by their own cameras," did not match Berlinger's "unprecedented ac-

-18- cess." May 10 Order, at 11-12. But the question is not who had better or more access; it is whether the access Chevron concededly had or other information it could obtain was inadequate for it to make its case without the addition of Berlinger's outtakes. Having Berlinger's material as well as its own might (or might not) prove a useful addition to Chevron - but that is not the standard. Here, as was the case throughout the District Court's opinion, the District Court made it far too easy for Chevron to obtain far too much, precisely what Gonzales forbids.

CONCLUSION

For all of the foregoing reasons, amici respectfully request that the Court stay the May 10 Order pending review on the merits.

Dated: New York, New York June 1,2010

Respectfully Submitted,

By:

Floyd Abrams Landis C. Best (admission pending) Catherine Suvari (admission pending) CAHILL GORDON & REINDEL LLP 80 Pine Street New York, New York 10005 (212) 701-3000

-19- OF COUNSEL

John W. Zucker Indira Satyendra ABC, INC. 77 West 66th Street New York, NY 10023 (212) 456-7832

Karen Kaiser The Associated Press 450 West 33rd Street New York, NY 10001 (212) 621-7287

Anthony M. Bongiorno CBS Corporation 51 West 52nd Street New York, NY 10019 (212) 975-2721

Anne B. Carroll Daily News, L.P. 450 W. 33 Street, New York, NY 10001 (212) 210-2100

David Korduner Directors Guild of America, Inc. 7920 Sunset Blvd. Los Angeles, CA 90046 (310) 289-2015

Mark H. Jackson Jason P. Conti Gail Gove Dow Jones & Company, Inc. 1211 Avenue of the Americas, 7th Floor

-20- New York, NY 10036 (212) 416-2164

Barbara Wall Gannett Co., Inc. 7950 Jones Branch Drive McLean, VA 22107 (703) 854-6000

Jonathan Donnellan Hearst Corporation Office of General Counsel 300 West 57th Street, 40th FIr. New York, New York 10019 (212) 649-2051

Stephanie S. Abrutyn Peter Rienecker Home Box Office, Inc. 1100 Avenue of the Americas New York, NY 10036 (212) 512-5610

Christopher Perez, for the International Documentary Association Donaldson & Callif 900 South Beverly Dr., Suite 400 Beverly Hills, CA 90212 (310) 277-8394

Daniel M. Kummer NBC Universal, Inc. 30 Rockefeller Plaza, Rm. 1091 E New York, NY 10112 (212) 664-4017

-21- George Freeman The New York Times Company 620 8th Avenue New York, NY 10018 (212) 556-1558

Eric N. Lieberman James A. McLaughlin The Washington Post 1150 15th Street, N.W. Washington, D.C. 20071 (202) 334-7988

-22- CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(A)

1. This brief complies with the type-volume limitation of Fed. R. App. P.

29(d) and Fed. R. App. P. 32(a)(7)(B)(i) because it contains 4,566 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the typestyle requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in

14 point Times New Roman.

Dated: New York, New York June 1,2010

Floyd Abrams