Chevron Corporation v. Donziger et al
MEMORANDUM AND OPINION re: 959 MOTION for Reconsideration re; 905 Memorandum & Opinion Memorandum of Law in Support of Defendants' Joint Motion to Reconsider the Court's March 15, 2013 Order Regarding Chevron's Subpoena to Patto n Boggs. MOTION for Reconsideration re; 905 Memorandum & Opinion Memorandum of Law in Support of Defendants' Joint Motion to Reconsider the Court's March 15, 2013 Order Regarding Chevron's Subpoena to Patton Boggs filed b y Javier Piaguaje Payaguaje, The Law Offices of Steven R. Donziger, Hugo Gerardo Camacho Naranjo, Steven Donziger. For the foregoing reasons, defendants' motion for reconsideration [DI 959] is granted. On reconsideration, the Court adheres to the result previously reached. The discussion of the Prieto e-mail in the Opinion will be amended to reflect the final point made above. (Signed by Judge Lewis A. Kaplan on 5/14/2013) (mro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
11 Civ. 0691 (LAK)
STEVEN DONZIGER et al.,
MEMORANDUM AND OPINION
Randy M. Mastro
Andrea E. Neuman
William E. Thomson
GIBSON, DUNN & CRUTCHER, LLP
Attorneys for Plaintiff
John W. Keker
Elliot R. Peters
Jan Nielsen Little
Matthew M. Werdegar
KEKER & VAN NEST, LLP
Attorneys for the Donziger Defendants
James K. Leader
S. Alyssa Young
LEADER & BERKON, LLP
Attorneys for Patton Boggs LLP
Julio C. Gomez
Larry R. Veselka
Tyler G. Doyle
SMYSER KAPLAN & VESELKA, L.L.P.
Attorney for Defendants Hugo Gerardo
Camacho Naranjo and Javier Piaguaje
LEWIS A. KAPLAN, District Judge.
In June 2012, Chevron Corporation (“Chevron”) served a subpoena duces tecum on
Patton Boggs LLP (“PB”), which has both sued Chevron on its own behalf in other cases and
represented the LAPs in other cases against Chevron, although not as a formal matter before the
district court in this case. PB moved to quash the subpoena in its entirety for alleged undue burden
and on the ground that it sought only or predominantly documents protected by attorney-client
privilege or the work product doctrine. Chevron contended inter alia that any privilege or other
protection had been overcome by the crime-fraud exception.
PB’s initial motion was denied without prejudice to the privilege and burden claims,
thus setting in motion a more informal process that has been described elsewhere and that included
individualized consideration of 185 pages of PB objections to the subpoena, further written
submissions, and extensive oral argument.1 That culminated on March 15, 2013, in an extensive
opinion in which the Court completed a dramatic narrowing of the PB subpoena and held that
Chevron had satisfied the first prong of the crime-fraud exception with respect to a few specific
subjects. But the Court did not order production of any PB documents as to which there are any
unresolved claims of opinion work product or attorney-client privilege because it remains to be
determined whether and to what extent the second prong of the crime-fraud exception – the “in
furtherance” requirement – is satisfied.
The LAP Representatives and the Donziger Defendants (collectively, “movants”)
now move for reconsideration of that ruling. They begin by asserting that “[i]n its rush to render
findings that the Court plans to use to attack the recognizability of the Lago Agrio Judgment, the
Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 WL 1087236 (the “Opinion”),
at *19-20 (S.D.N.Y. Mar. 15, 2013).
Court has gone outside the record in the relevant briefing.”2 A few lines later, they assert that “the
Court adopted as true the bought-and-paid-for declaration of disgraced former Ecuadorian Judge
Alberto Guerra . . .” And they contend that the Court acted prematurely in other respects.
As will appear, their arguments lack merit. At the most basic level, they essentially
ignore the fact that the question before the Court was whether there was probable cause to suspect
fraudulent or criminal activity – not whether such activity had been proved. They ignore also that
it was entirely appropriate for the Court to consider the entire record before it in making that
determination. Indeed, they cite no authority to the contrary. At the outset, however, movants’
over-the-top rhetoric require that two points be made with crystal clarity.
First, movants’ statement that the Court acted as it did “[i]n its rush to render findings
that the Court plans to use to attack the recognizability of the Lago Agrio Judgment” is, to say the
very least, unprofessional. Counsel should keep in mind their responsibility under Rule 3.3(f)(2)
of the Rules of Professional Conduct.3
Second, movants’ assertion that “the Court adopted as true” the Guerra declaration
is entirely false. It is utterly inconsistent with the Court’s clear and unmistakable statements in the
prior opinion that are directly to the contrary.
That said, this motion is baseless, largely for the reasons stated in plaintiff’s
DI 959, at 1.
That rule, like its predecessor in the Code of Professional Responsibility, prohibits lawyers
from engaging “in undignified or discourteous conduct.” Statements akin to this have
resulted in disciplinary action. See, e.g., In re Hayes, 7 A.D. 3d 108, 109, 777 N.Y.S.2d
120, 121 (1st Dept. 2004) (lawyer disciplined for insolent and disrespectful remarks to
judge following unfavorable ruling); In re Dinhofer, 257 A.D.2d 326, 690 N.Y.S.2d 245
(1st Dept. 1999) (lawyer disciplined for accusing judge before whom he was appearing of
corruption and bias).
opposition.4 The Court, however, writes briefly to emphasize a few points.
Movants make three principal contentions in seeking reconsideration: (1) the Court
improperly went “outside the record in the relevant briefing” on this motion; (2) if the Court was
going to go beyond the “relevant briefing,” it should have considered and did not “consider all of
the record,5 and (3) the Court erred in its “characterization of the facts.”6 All of these contentions
The Court Was Entitled to Consider Any Evidence in the Entire Record
Movants argue that the Court erred in considering evidence “outside the record in the
relevant briefing.”7 Specifically, they complain that the Court relied upon evidence in support of
Chevron’s most recent motion for partial summary judgment, since denied, and its pending motion
for sanctions, both of which were filed after the submission of the last briefs on the PB subpoena
issue and neither of which had been fully briefed by the time the Court issued the Opinion.8 This
argument is without merit. Indeed, it rests significantly on an incorrect factual premise.
See DI 1032.
DI 959, at 4.
DI 959, at 1-2
The Court notes at the outset that, notwithstanding movants’ arguments about what
was and was not considered, this aspect of the present motion for reconsideration is moot. The
briefing on Chevron’s motion for summary judgment and motion for sanctions is now complete.
Indeed, the former motion has been decided. In the interest of utter clarity, the Court will grant the
motion for reconsideration as a matter of discretion rather than of right. Upon consideration of
everything in the record through May 14, 2013, the Court now reaches exactly the same conclusions
it reached in the Opinion. Accordingly, movants’ argument about the Court’s consideration of the
“new evidence,” irrespective of the merit or lack of merit of those arguments, is entirely immaterial.
Nonetheless, in the interest of completeness, the Court will address them.
First, the suggestion that the Court was bound to consider only the briefs and exhibits
referred to thereon in deciding this motion – and required to ignore all the other evidence in the
record – is wrong.
Even in deciding a motion for summary judgment, which can result in a final decision
on the merits, a district court is not limited to consideration of evidence specifically brought to its
attention by the parties in the briefing on the summary judgment motion. Rule 56(c) and its local
counterpart, S.D.N.Y. Civ. R. 56.1, require parties supporting or opposing summary judgment
motions to cite to particular materials in the record, and a court may confine its review to those
materials.9 But Rule 56(c)(3) makes clear that while, “[t]he court need consider only the cited
materials, . . . it may consider other materials in the record.” Indeed, the Advisory Committee Note
states that this “rule . . . recognizes that a court may consider record materials not called to its
FED. R. CIV. P. 56(c)(1); S.D.N.Y. Civ. R. 56.1( ); e.g., Amnesty Int’l v. Town of West
Hartford, 288 F.3d 467, 470-71 (2d Cir. 2002) (“We agree with those circuits that have held
that Fed. R. Civ. P. 56 does not impose an obligation on a district court to perform an
independent review of the record to find proof of a factual dispute.”).
attention by the parties.”10 As a court in deciding a motion for summary judgment may consider
record materials not called to its attention by the parties, which may result in a definitive and final
determination of the lawsuit, it necessarily follows that it may do so in deciding a discovery motion
like this one. Indeed, movants cite no case, statute, or rule that says otherwise.
Second, the argument that movants did not have an opportunity to respond to the
evidence submitted after the briefing on the PB subpoena closed – which is moot now in any case
in view of the Court’s subsequent reconsideration based on their recent responses – is not accurate.
The Court did consider the Guerra declaration – which alleges inter alia the existence
of an agreement to bribe the Ecuadorian trial judge and which first was filed on January 28, 2013
in support of Chevron’s motion for partial summary judgment. It is true also that the Opinion on
the PB subpoena was rendered before the movants’ papers in opposition to the Chevron summary
judgment motion were filed. But the suggestion that the movants were not heard on the subject of
the Guerra declaration before the Opinion was rendered is not correct.
On January 30, 2013, two days after the filing of Guerra’s declaration and the filing
also, and under seal, of two additional declarations, Chevron moved for a protective order in order
to prevent disclosure of the names or identifying information of the two additional declarants.11 In
responding to that motion, defendants attacked Guerra’s credibility, making arguments substantially
similar to the arguments they later made in their papers in opposition to Chevron’s partial summary
FED. R. CIV. P. 56 advisory committee’s note to 2010 amendments.
DI 760, DI 761.
judgment motion.12 The Court considered those arguments in connection with Chevron’s motion
for a protective order and considered them again for purposes of the Opinion.
Moreover, the issue before the Court in considering the PB subpoena motion was
whether there was “[p]robable cause . . . to suspect the perpetration or attempted perpetration of a
crime or fraud.”13 “[A] finding of probable cause is not negated by ‘an innocent explanation which
may be consistent with the facts alleged.’”14 The Court was aware then, as it is aware now, that
there are issues of credibility with respect to Guerra.15 But it held in the Opinion, and it holds again
with the benefit, as noted, of movants’ subsequent filings,16 that Guerra’s declaration alone is
sufficient basis to suspect that the LAPs bribed the Ecuadorian judge and wrote the decision issued
in his name. That is not to say Guerra’s declaration is the only evidence that the Ecuadorian
Judgment was written by the LAPs and not by the Ecuadorian judge whose name is on it.17 But the
Compare DI 766, at 7-9 with DI 917, at 15-24, DI 920, at 18-23. And, to the extent
movants advanced new arguments in their opposition to Chevron’s motion for partial
summary judgment, the Court has now considered them.
Opinion, at *25 (quoting In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983,
731 F.2d at 1039 (2d Cir.1984)).
Id. (quoting United States v. McDonald, 01–CR–1168JSWDW, 2002 WL 31956106, at *5
(E.D.N.Y. May 9, 2002) (quoting A.I.A. Holdings, S .A. v. Lehman Bros. Inc., 97 Civ.
4978(LMM) HBP, 1999 WL 61442, at *5 (S.D.N.Y. Feb. 3, 1999) (citing United States v.
Farma, 758 F .2d 834, 838 (2d. Cir.1985)).
Indeed, it explicitly so recognized in ruling on the protective order motion.
Including the Declaration of Nicolás Augusto Zambrano Lozada (the “Zambrano
Declaration”), which defendants recently attached to their motion to supplement the record
on summary judgment. See Smyser Decl [DI 974], Ex. 1.
As will be seen, there is an abundance of such evidence – more than a sufficient basis for the
finding of probable cause.
fact that Guerra’s account doubtless will be challenged does not negate the declaration’s sufficiency
on the issue of probable cause.
Third, movants’ contention that the Court inappropriately “relied on information
submitted by Chevron in its Motion for Sanctions for Contempt, filed . . . more than two months
after Patton Boggs briefing closed . . . [and] more than two weeks before Defendants’ briefing in
opposition was due” is incorrect, not that it would matter if it were accurate.18 Movants point to no
“information” from Chevron’s motion for sanctions on which the Court relied in the Opinion.
Indeed, the only “information” common to the motion for sanctions and the Opinion that was not
in the record before briefing on the PB subpoena closed was the recent Ecuadorian court ruling,
which defendants submitted to the Court on January 23, 2013,19 and which will be discussed below.
Thus, when stripped of the rhetoric, movants’ complaints of “later-submitted
evidence”20 boil down only to the Guerra declaration, to which defendants responded before the
Opinion was rendered. Moreover, the Court now has considered their more recent responses to the
partial summary judgment and sanctions motions and has reached the identical result.
The Guerra Declaration
The Court Did Not Adopt the Guerra Declaration as True
Movants contend further that the Court’s ruling was flawed because it not only
considered, but also “adopted as true the bought-and-paid for declaration of disgraced former
DI 959, at 2.
See DI 734.
DI 959, at 2.
Ecuadorian Judge Alberto Guerra.”21 That contention is false.
The Opinion, referring to the Guerra declaration, stated in relevant part the following:
“Most recently, Chevron has come forward with evidence that, if credited, would
establish that the Judgment was written by the LAPs, who bribed the Lago Agrio
judge to submit it under his name.
Alleged Bribing of the Judge”22
It then continued in a similar vein for some pages.
Quite obviously, the Court did not “adopt as true” anything that Guerra said. It
recognized that it had before it a sworn declaration asserting certain facts and that the declaration,
in some respects alone and in all respects together with other evidence, established in particular
respects the requisite probable cause to suspect fraud or criminality. Whether the testimony of the
declarant eventually is credited by the trier of fact remains to be seen – as the Court repeatedly has
In Any Event, There was Probable Cause Even Without Regard to the Guerra
Finally, the Opinion made clear that there was probable cause to suspect a crime or
fraud had been committed with respect to various aspects of the Ecuadorian and U.S. litigations even
without the Guerra declaration.
Opinion, at *6.
E.g., Chevron Corp v. Donziger, 11 Civ. 0691 (LAK), 2013 WL 646399, at *6 (“[w]hile
the question whether Guerra’s account is accurate will be decided on another day . . . .”),
*11(“[w]ithout passing on the question whether Guerra will prove a credible witness at
trial”) (S.D.N.Y. Feb. 21, 2013).
In March 2012, Chevron made an earlier motion for partial summary judgment on
its fraud claims. The Court concluded on that motion – after exhaustive briefing by both sides – that
the record as it stood eight months before the ruling now at issue showed that there was no genuine
issue of fact that the Ecuadorian proceedings were tainted by fraud in several key respects: the
Calmbacher report, the termination of the judicial inspections, and Cabrera’s appointment and
report.24 While summary judgment was inappropriate in almost all respects given the high standard
applicable to such motions, the probable cause standard applicable here is much more relaxed. The
evidence underlying the conclusions reached on the summary judgment motion, without
consideration of any additional evidence, was more than sufficient to establish probable cause for
purposes of the PB subpoena on three of the five subjects on which the Opinion found probable
With respect to the remaining two subjects – the authorship of the Judgment and
obstruction of the Stratus Section 1782 proceeding – the Opinion found that probable cause was
warranted even without consideration of evidence submitted after the “relevant briefing” on the PB
subpoena had closed.25 Indeed, the Court held that “[e]ven before the Guerra affidavit was filed .
Chevron Corp. v. Donziger, 886 F. Supp. 2d 235, 286-290 (S.D.N.Y. 2012).
The Court concluded that Chevron had presented evidence in connection with its March
2012 motion for partial summary judgment and its briefing on the PB subpoena which was
“sufficient to . . . support the existence of probable cause to suspect that the LAPs, not the
judge, wrote the relevant part of the Judgment.” Opinion, at *9.
The Opinion made clear also – based entirely on evidence submitted in connection with the
PB subpoena motion (i.e., in movants’ terms, evidence inside the “record on the relevant
briefing”) – that there was “probable cause to suspect that at least some of those involved .
. . committed mail and/or wire fraud and obstructed justice in at least the Stratus 1782
proceeding in Colorado by formulating and filing the Fajardo declaration, which was a
seriously misleading account of what had happened.” Id. at *15. Movants do not contend
. . Chevron had presented substantial evidence of fraud in the procurement of the Judgment,” and
that evidence was sufficient for a finding of probable cause.26
Thus, the evidence previously submitted – to which defendants had responded – as
well as evidence submitted in connection with the “relevant briefing” on the PB subpoena – was
sufficient to establish probable cause to suspect a crime or fraud had been committed with respect
to: the Calmbacher report, the decision to terminate the judicial inspection process, Cabrera’s
appointment and the submission of his report, the procurement of the Judgment, and the Stratus
Section 1782 proceeding in Colorado. The Guerra declaration further confirmed that conclusion.
The Court Did Not Make Material Errors of Fact
The Opinion found that Chevron needed documents from PB in part because it has
been largely unable to get them from the defendants. In particular, the Court noted that “[i]n both
this action and the Count 9 action, defendants have refused to produce any documents in the
possession, custody, or control of their attorneys and agents in Ecuador despite orders by this Court
compelling them to do so.”27 Although defendants have offered varying justifications for their
refusal to produce these documents, their latest is that they are unable to do so because their
Ecuadorian attorneys are prohibited by Ecuadorian law from turning them over. The Opinion noted
Id. at *9. Chevron’s evidence consisted in part of reports by experts who analyzed the
documents and compared them to the language in the Judgment. Movants contend that the
Court should not have considered these experts’ reports because the experts have not been
deposed. DI 959, at 2, 3. But the PB subpoena matter was a discovery issue, not a motion
for summary judgment. There is no basis whatever for supposing that a party opposed to
discovery on some particular point is entitled to finish depositions before the discovery
dispute may be ruled upon. Movants cite no authority for supposing that there is.
Opinion, at *20.
that, most recently:
“While Chevron’s motion [to compel documents from Ecuador] was pending and
unbeknownst to the Court or to Chevron . . . a lawsuit was filed in Ecuador in
October 2012 in the name of one of the non-appearing LAPs, Octavio Ismael
Cordova Huanca, against Cordova’s attorneys—Fajardo, Saenz, and Prieto as well
as the head of the Amazon Defense Front, Luis Yanza—to bar them from turning
over any information in discovery in this case.”28
The Court concluded that “[t]he case obviously was collusive in the sense that, as the
judgment recites, the ostensible defendants agreed with the ostensible plaintiff.”29 In the course of
doing so, the Opinion noted that “the only attorney appearance listed on the decision is that of
Movants contend that the Court made “made multiple errors of fact” in suggesting
that the “Protection Order issued in Ecuador was the result of ‘collusive’ proceedings.”31 They take
exception in particular to what they inaccurately describe as the Court’s conclusion that Fajardo
“appear[ed] on behalf of Mr. Cordova.”32 This is erroneous.33
Id. at *21 (footnote omitted).
Opinion, at *21.
DI 959, at 4.
DI 950, at 14.
Movants “take exception” also to the Court’s characterization of (1) an email sent by a PB
lawyer in which he discussed “cleans[ing] any perceived impropriety related to the Cabrera
Report,” and (2) the Fajardo submission to the Lago Agrio court.
With respect to the first point, movants contend that the PB lawyer was referring to
“cleansing” the Cabrera report in a filing to the Ecuadorian court, not, as the Opinion
suggests, to the District of Colorado in the Stratus Section 1782 proceeding. But Chevron
First, there is no dispute that the suit was collusive in the sense that the purported
plaintiff (even if he was represented by an attorney other than Fajardo) and the purported defendant
(Fajardo) both sought the same outcome: a declaration that Fajardo was barred from producing the
documents sought by Chevron. Indeed, movants’ attorneys readily admit this.34
Second, the Opinion did not conclude that Fajardo appeared on behalf of Cordova.
It stated, correctly, that movants had provided no evidence that the two parties – Fajardo and
Cordova – were represented by separate counsel.35 And this is not surprising, given that Fajardo was
indeed the only attorney appearance listed on the copy of the decision defendants submitted to the
is correct that this “is a distinction without a difference.” DI 1032, at 11. PB was involved
in drafting the submissions made to the Colorado court and to the Ecuadorian court, both of
which were intended to “g[ive] a bland [and misleading] description of the process by which
the judicial inspections had been terminated, the global expert proposal adopted, and Cabrera
in particular selected.” Opinion, at *14. Thus, regardless of whether the email referred to
the submission made in Colorado or the submission made in Ecuador, it is clear that both
were intended to “cleanse” the Cabrera report, and both were drafted by PB.
With respect to the second, movants take issue with the Court’s labeling of the submission
to the Ecuadorian court as a “declaration,” when, they say, it actually was a brief. But
movants do not explain why this distinction is material, nor do they take issue with the
Court’s conclusion that the submission – regardless of its label – omitted material facts and
was intentionally deceptive.
Movants’ attorneys readily admit this. See, e.g., Apr. 18, 2013 Tr. at 380: 10-18 (LAPs’
counsel explaining that “there was no chance [Ecuadorian attorney Fajardo] would turn over
the documents,” and that, even if the LAP Representatives had been represented in the
Ecuadorian protective order action, “Mr. Fajardo wasn’t going to turn over the documents
anyway.”); id. at 362: 15-23 (LAPs’ counsel agreeing that “Mr. Cordova was the plaintiff
in the case. . . [a]nd he was against the production of documents . . . . And . . . Mr. Fajardo
[w]as the defendant[,] who always told [the LAPs’ counsel] he would never produce the
Opinion, at *21 n.202.
Court (on which the Court relied).36
The Prieto Email
There is one aspect of the Opinion the Court finds it appropriate to revisit in more
detail. For reasons that will become readily apparent, it is not one about which movants complain.
In its discussion of the Stratus Section 1782 proceeding, the Court noted that, after
the “District of Colorado granted Chevron’s Section 1782 application on March 4, 2010 . . . [t]he
LAPs, realizing that production from Stratus was virtually inevitable, were anxious to ‘minimize the
effects’ of the court-ordered production of Stratus’ documents. In an email to Donziger, Fajardo,
and others, Julio Prieto, one of the LAPs’ Ecuadorian lawyers wrote:
‘Today Pablo [Fajardo] and Luis [Yanza] were kind enough to tell us what was going
on in Denver, and the fact that ALL will be made public, including correspondence
.... Apparently this is normal in the U.S. and there is no risk there, but the problem,
my friend, is that the effects are potentially devastating in Ecuador (apart from
destroying the proceeding, all of us, your attorneys, might go to jail), and we are not
willing to minimize our concern and to sit to wait for whatever happens. For us it is
NOT acceptable for the correspondence, the e-mails, between Stratus and Juanpa
[Saenz] and myself to be divulged.’”37
This email plainly seems to betray consciousness of wrongdoing in Ecuador and a
motive to obstruct justice in Colorado on order to cover it up. The email certainly supports probable
See DI 734. Chevron, in connection with its motion for sanctions, submitted what appears
to be a complete copy of the decision and the other relevant pleadings, which do in fact note
that the plaintiff in the case was represented by one Dr. Nicolás Samaniego Agila. DI 895,
Ex. 3508. Movants therefore are correct that the full decision – provided to the Court by
Chevron – does not list Fajardo as representing the plaintiff. But that does not undermine
the Court’s conclusion that the suit was collusive, nor does it merit reconsideration of the
determination that discovery from PB is necessary in part because Chevron cannot obtain
these critical documents from the defendants.
Opinion at *13 (footnotes omitted).
cause. Movants nevertheless argued that “a close[ ] reading of Prieto’s email suggest[ed] that the
email betrayed concern that disclosure of the emails between Stratus, on the one hand, and Prieto
and Saenz, on the other was not acceptable because it would have violated duties they owed to their
clients as Ecuadorian lawyers, not, as Chevron maintain[ed] that [Prieto] was concerned that
disclosure of what had occurred vis-a-vis Cabrera amounted to misconduct such that the lawyers
might go to jail.”38 The Court noted that movants’ interpretation of the document was “[p]erhaps”
plausible, but that “whatever impact [defendants’ contention] someday may have before a trier of
fact, is neither material at this stage nor, in all circumstances, persuasive.”39
But the Court mistakenly was far too charitable, as it overlooked evidence long of
record. That evidence shows that movants’ recently advanced interpretation of the email is entirely
inconsistent with Donziger’s prior sworn testimony.
In his January 2011 deposition in Chevron’s Section 1782 proceeding, Donziger was
asked about this email. He testified as follows:
[Prieto] says he is concerned about the e-mails between Stratus and Juan
Pablo Saenz . . . and himself being divulged, correct?
So Mr. Prieto was concerned that all of the local Ecuadorian lawyers for the
Lago Agrio plaintiffs might end up in jail because of the role they played in
drafting the Cabrera report, correct?
The role they played related to Stratus, Mr. Cabrera, yes.”40
Id. at *15 n.132 (quoting DI 712, at 10-11) (emphasis added).
DI 287-15 (Jan. 19, 2011 Donziger Dep.) at 3381:14-20 (emphasis added).
Donziger then was asked whether this concern was relayed to the LAPs’ U.S. counsel:
And did you share with the Patton Boggs lawyers in or about April 2010
[Prieto’s] concern that all of them might end up in jail if there were full
disclosure of the plaintiffs’ team’s role in Cabrera’s work?
That was shared, yes.”41
It thus is clear from Donziger’s 2011 testimony that he understood Prieto’s email to
express concern that the LAPs’ lawyers could go to jail “because of the role they played in drafting
the Cabrera report” and not, as he and the LAPs argued in their brief on the PB subpoena, that
production of the documents would violate Ecuadorian laws with respect to attorney client
confidentiality. And it is clear also that Donziger shared Prieto’s true concern with PB.42
Id. at 3387:22- 3388:4
. . . . The e-mail says that the effects of full disclosure of plaintiffs’ team’s
role in Cabrera’s work are potentially devastating in Ecuador, is that
something you discussed with the Patton Boggs lawyers in or about April
The impact of this information on the case in Ecuador was a topic I did
discuss with Patton Boggs and the other law firms.”).
Donziger testified that he shared Prieto’s concern with the lawyers at Emery Celli
Brinckerhoff & Abady, LLC, which was representing the LAPs at the time, as well. Id. at
For the foregoing reasons, defendants’ motion for reconsideration [DI 959] is
granted. On reconsideration, the Court adheres to the result previously reached. The discussion of
the Prieto e-mail in the Opinion will be amended to reflect the final point made above.
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