Chevron Corporation v. Donziger et al

Filing 843

MEMORANDUM OPINION: #102920 (CORRECTED): Plaintiff Chevron Corporation moved for a protective order preventing defendants from disclosing two witness declarations that have been filed under seal, from revealing or identifying information concerning t he witnesses, except to counsel of record who have appeared in this action. The dispute that gave rise to the motion concerned principally whether the protection available under a previous protective order should be expanded to include, among other r estrictions, the prohibition of disclosure of the witnesses' identities and statements to Ecuadorian counsel in the Lago Agrio litigation, among others. On February 14, 2013, the Court granted Chevron's motion in significant part and enter ed a protective order barring defendants from disclosing either of the Doe declarations, or any identifying information about Doe 1 or Doe 2 that has been redacted from other declarations, to anyone other than counsel of record in this action except with prior leave granted on notice to plaintiff and upon such conditions as the Court may impose. The foregoing sets forth the reasoning and amplifies the findings underlying the Court's February 14 order and constitutes findings of fact and conclusions of law for the purposes of this motion. (Signed by Judge Lewis A. Kaplan on 2/21/2013) (mro) Modified on 2/21/2013 (jab).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------x
CHEVRON CORPORATION,
Plaintiff,

-against-

11 Civ. 0691 (LAK)

STEVEN DONZIGER, et al.,
Defendants.
---------------------------------------x

MEMORANDUM OPINION
(CORRECTED)

Appearances:
Randy M. Mastro
Andrea E. Neuman
Kristen L. Hendricks
Scott A. Edelman
William E. Thompson
GIBSON, DUNN & CRUTCHER, LLP
Attorneys for Plaintiff
John W. Keker
Elliot R. Peters
Christopher J. Young
Jan Nielsen Little
Matthew M. Werdeger
Nikki H. Vo
Paula L. Blizzard
William S. Hicks
KEKER & VAN NEST, LLP
Attorneys for Donziger Defendants

Julio C. Gomez
JULIO C. GOMEZ, ATTORNEY AT LAW LLC
Tyler G. Doyle
Craig Smyser
Larry R. Veselka
Christina A. Bryan
Garlard D. Murphy, IV
SMYSER KAPLAN & VESELKA, L.L.P.
Attorneys for Defendants Hugo Gerardo, Camacho
Naranjo and Javier Piaguaje Payaguaje
Benjamin H. Green
Michael Erik Sims
Stuart Alan Krause
ZEICHNER ELLMAN & KRAUSE LLP
Gordon Mehler
LAW OFFICES OF GORDON MEHLER, P.L.L.C.
Jessica R. Torbin
Joe L. Silver
Martin Beier
SILVER & DEBOSKEY, A PROFESSIONAL
CORPORATION
Attorneys for Stratus Consulting, Inc.

2
LEWIS A. KAPLAN, District Judge.
Plaintiff Chevron Corporation (“Chevron”) moved for a protective order preventing
defendants from disclosing two witness declarations that have been filed under seal, from revealing
or identifying information concerning the witnesses, except to counsel of record who have appeared
in this action. The dispute that gave rise to the motion concerned principally whether the protection
available under a previous protective order should be expanded to include, among other restrictions,
the prohibition of disclosure of the witnesses’ identities and statements to Ecuadorian counsel in the
Lago Agrio litigation, among others.
On February 14, 2013, the Court granted Chevron’s motion in significant part and
entered a protective order barring defendants from disclosing either of the Doe declarations, or any
identifying information about Doe 1 or Doe 2 that has been redacted from other declarations, to anyone
other than counsel of record in this action except with prior leave granted on notice to plaintiff and
upon such conditions as the Court may impose (the “February 14 order”).1 This opinion explains the
reasons for the Court’s action, amplifies its findings, and establishes a framework for additional
tailoring to the order, should that prove appropriate, to ensure that the restriction on public access is
no broader than is necessary.

Background
In order to understand the context of this motion, it is essential to have some of the

1

DI 802. The order is being modified in one respect by a separate filing today.

3
complex background of this case.

The Ecuadorian Judgment and this Litigation
An Ecuadorian court has entered an $18.2 billion judgment (the “Judgment”) against
Chevron Corporation (“Chevron”)2 in an action brought by 47 individuals referred to as the Lago
Agrio Plaintiffs (the “LAPs”), two of whom, Hugo Gerardo Camacho Naranjo and Javier Piaguaje
Payaguaje (the “LAP Representatives”), have appeared in this action.3
Chevron brought this action against the LAPs, their lead U.S. attorney, Steven
Donziger, and his law offices, and others involved in the Lago Agrio litigation.4 It claims in part that
the Judgment is the product of fraud and violations of the Racketeer Influenced and Corrupt
Organizations Act (“RICO”). The RICO and, to some extent, the fraud claims rest on allegations that
Donziger, a New York lawyer, and others based in the United States, here conceived, substantially
executed, largely funded, and significantly directed a scheme to extort5 and defraud Chevron by,

2

DI 168 (Lago Agrio Judgment).
3

The other LAPs have defaulted and are not defending against this action. Hendricks Decl.
[DI 206] ¶ 15 & Ex. 16 (Clerk’s certificate).
4

Chevron alleges also that various “co-conspirators” were part of the RICO enterprise, but
they are not named as defendants.
5

Amended complaint (“Cpt.”) ¶ 1 (alleging that defendants “sought to extort defraud, and
otherwise tortiously injure plaintiff Chevron by means of a plan they conceived and
substantially executed in the United States.”); id. ¶ 2 (“The enterprise’s ultimate aim is to
create enough pressure on Chevron in the United States to extort it into paying to stop the
campaign against it.”).

4
among other things, (1) bringing the Lago Agrio case;6 (2) fabricating (principally in the United States)
evidence for use in that lawsuit and corrupting and intimidating the Ecuadorian judiciary in order to
obtain a tainted judgment;7 (3) exerting pressure on Chevron to coerce it to pay money not only by
means of the Lago Agrio litigation and judgment, but also by subjecting Chevron to public attacks in
the United States and elsewhere based on false and misleading statements;8 (4) inducing U.S. public
officials to investigate Chevron;9 and (5) making false statements to U.S. courts and intimidating and
tampering with witnesses in U.S. court proceedings to cover up their improper activities.10 The LAPs
reportedly are pursuing proceedings to enforce the Judgment in at least Canada, Brazil, and Argentina,
this being consistent with an apparent strategy “to pursue an aggressive world-wide enforcement
strategy in order to obtain settlement leverage over Chevron.”11

6

Id. ¶ 3.
7

E.g., id. ¶ 145 (“Back in the United States, preparations were well underway for drafting
Cabrera’s report [the report of a supposedly independent, court-appointed expert].”); id. ¶
151 (“While Stratus [LAP environmental consultant] was the primary coordinator of the
. . . Cabrera Report, other members of the [LAP’s] U.S.-based team of experts . . . also
contributed to the report without attribution in the report or disclosure to Chevron.”); id. ¶¶
353–56; Mastro Decl. [DI 746] Ex. C (hereinafter “Guerra Decl.”).
8

Cpt. ¶ 214.
9

Id. (“And they have taken this pressure campaign to U.S. state and federal agencies, seeking
their falsely induced assistance in this racketeering scheme.”); id. ¶ 216.
10

Id. ¶¶ 273–77, 291–300, 311–16.
11

Chevron Corp. v. Donziger, 768 F. Supp.2d 581, 622–24 (S.D.N.Y. 2011), rev’d on other
grounds sub nom. Chevron Corp. v. Naranjo, 667 F.3d 232 (2d Cir. 2012), cert. denied, 133
S.Ct. 423 (2012).

5
The New Evidence – The LAPs’ Alleged Bribery of Ecuadorian Judge
The most recent development in this saga set the stage for Chevron’s motion. On
January 28, 2013, Chevron submitted a declaration of Alberto Guerra Bastidas, a former judge of the
Provincial Court of Sucumbios, Ecuador,12 the Court that rendered the Judgment, and at one time the
judge assigned to the case against Chevron. In summary, Guerra states that the LAPs’ counsel – Pablo
Fajardo and Donziger – bribed the judge who signed the Ecuadorian Judgment to obtain their desired
result and, in fact, supplied him with the decision, which the LAPs had written in all important
respects.
Turning to the details, Guerra’s declaration, which is corroborated in some particulars
by other publicly filed declarations,13 states that when Judge Nicholas Zambrano14 was assigned the
Chevron case, he asked Guerra “to get in touch with the attorneys for Chevron in order to negotiate
an agreement by which the company would pay Mr. Zambrano and [Guerra] for issuing the final

12

Mr. Guerra was dismissed as a judge in 2008, ostensibly for private statements to the effect
that the case against Chevron should be dismissed. He avers, however, that the real reason
for his dismissal was his confrontation of two judges who later served on the Chevron case
“regarding several dubious and illegal rulings that had issued in the proceedings, and
regarding their practice of asking the settling experts for 25 percent of their fees in
consideration for having them appointed as such.” Guerra Decl. ¶ 6.
13

Mastro Decl. [DI 746] Ex. E (hereinafter “Callejas Decl.”); id. Ex. F (hereinafter “Racines
Decl.”); id. Ex. G (hereinafter “Campuzano Decl.”), id. Ex. H (hereinafter “Carvajal
Decl.”).
14

Judge Zambrano reportedly was removed from the bench after rendering the decision
against Chevron “for releasing a suspected drug trafficker in an act of ‘obvious negligence
or an inexcusable mistake.” Eduardo Garcia and Alexandria Valencia, Chevron Hopes to
Benefit from Ecuador’s Judge Dismissal, REUTERS (Mar. 12, 2012) (available at
http://www.reuters.com/article/2012/03/09/ecuador-chevron-idUSL2E8E9ETI20120309)
(last visited Feb. 17, 2013).

6
judgment in Chevron’s favor.”15 Guerra obliged, but Chevron rejected the overture. So Judge
Zambrano, who had told Guerra that he already had reached an agreement with the LAPs’
representatives “to quickly move the case along in their favor,” suggested that Guerra meet with the
LAPs’ Ecuadorian lawyer, Fajardo.16 Guerra then met with Fajardo. They discussed the fact that
Guerra already had an arrangement with Zambrano pursuant to which Guerra wrote Zambrano’s
decisions in civil cases. Guerra and Fajardo then agreed that (1) Guerra would make the Chevron case
move quickly, (2) “Chevron’s procedural options would be limited by not granting their motions on
alleged essential errors in rulings [Guerra] was to write,” and (3) the LAPs’ “representatives would pay
[Guerra] approximately USD $1,000 per month for writing the court rulings Mr. Zambrano was
supposed to write.”17
This arrangement is said to have continued until Judge Zambrano was replaced on the
Chevron case by a Judge Ordoñez.18 In time, however, a motion to recuse Judge Ordoñez in the
Chevron case came before Judge Zambrano, which the latter allegedly “saw . . . as an opportunity to
once again take control of the Chevron case, and asked [Guerra] to help him write the court ruling
sustaining Judge Ordoñez’s disqualification from the case.”19 Judge Zambrano allegedly “saw this as

15

Guerra Decl. ¶ 12.
16

Id. ¶ 13.
17

Id.
18

Id. ¶ 20.
19

Id. ¶ 21.

7
an opportunity to once again approach Chevron’s attorneys to see if they were willing to pay to have
the case decided in their favor.”20 He dispatched Guerra to explore that possibility, but Chevron again
rejected the overture.21
At that point, Judge Zambrano, according to Guerra, “suggested and authorized
[Guerra] to seek an agreement with the Plaintiffs’ representatives so that they could obtain a verdict
in their favor, in exchange for a payment of at least USD $500,000 to Mr. Zambrano; and whatever
amount [Guerra] could negotiate or agree to for [himself]. The proposal entailed Plaintiffs writing a
draft of the judgment and Judge Zambrano signing it and issuing it as his own.”22 Guerra took the
offer to Fajardo, who expressed interest and said that he would discuss it with Donziger. Later, Guerra
received a call from Fajardo who asked him to a meeting with himself, Donziger, and Luis Yanza.23
At that meeting, Guerra summarized the proposal. Donziger replied that they, the LAPs, did not then
have that sum of money. Subsequently, however, Zambrano told Guerra that he had been in direct
contact with Fajardo and that “the Plaintiffs’ representatives had agreed to pay him USD $500,000
from whatever money they were to collect on the judgment, in exchange for allowing them to write

20

Id.¶ 22.
Judge Zambrano was appointed to replace Judge Ordoñez on the Chevron case in the fall
of 2010. Carvajal Decl. ¶ 3.
21

Guerra Decl. ¶ 22.
22

Id. ¶ 23.
23

Yanza is the co-founder of the Amazon Defense Front (“ADF”), a non-profit organization
that purports to represent the LAPs, and the general manager of Selva Viva, an Ecuadorian
company that administers funds for the Lago Agrio litigation.

8
the judgment in Plaintiffs’ favor.”24 Zambrano told Guerra that he would share the money with
Guerra.25
Guerra then resumed his role as Judge Zambrano’s ghostwriter. When it came to the
final judgment, however, Guerra relates that his role changed somewhat. About two weeks before the
Judgment was issued, “Zambrano gave [Guerra] a draft of the judgment [that had been written by the
attorneys for the plaintiffs and delivered to Zambrano] so that [Guerra] could revise it.” Zambrano
asked Guerra “to work on the document to fine-tune and polish it so it would have a more legal
framework.”26 He did so at Zambrano’s residence using Fajardo’s computer.27 He made few changes,
making “it seem more like a judgment issued by the Sucumbios [i.e., Lago Agrio] court.”28
When Guerra was through, he returned the document to Zambrano, which “was not too
different from the one the Plaintiffs had given him.” Zambrano told him that the LAPs’ lawyers made
changes to the judgment “up to the very last minute before it was published.”29
As noted, Guerra’s account is corroborated in a number of respects by other

24

Guerra Decl.¶ 23.
25

Id.
26

Id. ¶ 25.
27

Id.
28

Id. ¶¶ 26–27.
29

Id. ¶ 28.

9
declarations that recently were filed publicly.30

This Court’s Previous Rulings With Respect to the Fraud Allegations
Even before the Guerra declaration was filed, Chevron had presented substantial
evidence of fraud in the procurement of the Judgment. In this regard, the Court incorporates by
reference its July 2012 decision on Chevron’s motion for partial summary judgment.31 Pertinent
highlights are that this Court then concluded, on a record less complete than now is before it, that there
was no genuine issue of fact as to at least the following:
•

Donziger and Fajardo, the LAPs’ principal Ecuadorian lawyer, coerced an
Ecuadorian judge to (1) terminate the judicial inspections that previously had
been ordered, (2) substitute a single global inspection to determine the extent
of the alleged environmental damage, and (3) select a “global expert” chosen
by the LAPs, Richard Cabrera, to conduct it. They did so by threatening the
judge with the filing of a misconduct complaint if he failed to comply with
their wishes.

•

The report that Cabrera ultimately rendered:
“was not entirely or even predominantly his own work or that of any assistants
or consultants working only for him. There is no genuine issue with respect
to the facts that the LAP team secretly prepared his work plan, worked closely

30

See generally Callejas Decl.; Racines Decl.; Campuzano Decl.; Carvajal Decl.
31

See Chevron Corp. v. Donziger, — F.Supp.2d —, 2012 WL 3538749 (S.D.N.Y. July 31,
2012).

10
with him in carrying it out, and drafted most of the report and its annexes. Nor
is there any genuine issue regarding the fact that the LAP team then publicly
objected to the very report that they, in large part, secretly had drafted as
‘unjustly favorable to [Chevron]’ and ‘too conservative’ in its damage
assessment. The answers filed by Cabrera in response to the LAPs’ (and
Chevron’s) objections – like the report itself – were drafted at least in
substantial part by the LAP team and written to read as if Cabrera had written
them. This uncontradicted evidence demonstrates that the report and
subsequent responses filed in Cabrera’s name were tainted by fraud.”32
•

Portions of the Judgment, which supposedly had been written by Judge
Zambrano, in fact were substantially identical to an internal memo prepared for
the LAPs that was not part of the Ecuadorian court record.33 Thus, at least part
of the decision was written by the LAPs and adopted unchanged by the judge,
all in secret. This conclusion, of course, preceded the Guerra declaration,
which if true makes clear that the LAPs bribed Zambrano and Guerra to adopt
a judgment written by the LAPs.

•

The Judgment, although professing that it did not consider the Cabrera report,
in fact relied on it at least to some extent.34

Fraud Findings By Other Courts
Nor is this Court alone in finding substantial evidence of fraud.
Chevron, the LAPs, and others have been litigating Section 1782 and other discovery

32

Chevron Corp., 2012 WL 3538749, at *33 (footnote omitted).

33

Id. at *31.
34

Id. at *33.

11
proceedings before other district courts around the country for well over a year. Persons resisting
disclosure to Chevron in these proceedings, including the LAPs, typically have asserted claims of work
product protection and attorney client privilege. Chevron has countered that any work product
protection or attorney-client privilege has been overcome by the crime-fraud exception.
At this writing, at least six other federal district courts have concluded – all preceding
the filing of the Guerra declaration and related materials – that Chevron established a prima facie case
of fraud with respect to the procurement of the Judgment.35

The Subjects of the Protective Order Motion
Guerra obviously is an important witness in this case. He claims that he was on the
inside of a corrupt conspiracy to fix the case against Chevron and now says that he has revealed
internal workings of the conspiracy.
In any case with a witness of this sort, one expects an attack on credibility. And just
as in any other such case, corroboration of the witness’s story can be very important.
Among the evidence that Chevron has submitted is declarations of two witnesses, Doe
1 and Doe 2, which have been filed under seal and made available only to the Court and counsel of
record in this action. Both witnesses reside in Ecuador. Both fear reprisals against their families and
35

See Chevron Corp. v. Champ, No. 10-mc-27, 2010 WL 3418394, at *6 (W.D.N.C. Aug. 30,
2010); In re Applic. of Chevron Corp., No. 10-cv-1146-IEG, 2010 WL 3584520, at *6 (S.D.
Cal. Sept. 10, 2010); In re Applic. of Chevron Corp., 633 F.3d 153, 166 (3d Cir. 2011);
Transcript of Hearing at 43:13–44:16, In re Applic. of Chevron Corp., No. cv-10-2675
(D.N.J. June 11, 2010), DI 33; Chevron Corp. v. Salazar, 275 F.R.D. 437, 442 (S.D.N.Y.
2011); Transcript of Hearing at 56:23–58:10, Chevron Corp. v. Page, No. RWT-11-1942
(D. Md. Jan. 25, 2013).

12
themselves. One of the declarations contains information that, if credited, would substantially
corroborate Guerra. The other offers more modest corroboration but contains important information
regarding the risk of reprisals against these and other witnesses.

Discussion
Defendants say that Federal Rule of Civil Procedure 26(c) authorizes the relief sought
here on a showing of “good cause.” In any case, “[i]t is . . . fundamental that ‘[e]very court has

supervisory power over its own records and files,’”36 that it may seal them and prevent their
disclosure in appropriate circumstances,37 and that all such actions are informed by presumptions
of public access to judicial records under the common law and the First Amendment. The Court
begins from these premises.

36

Gambale v. Deutsche Bank AG, 377 F.3d 133, 140–41 (2d Cir. 2004) (quoting Nixon v.
Warners Comm’ns, Inc., 435 U.S. 589, 598 (1978)).
37

E.g., Bridge C.A.T. Scan Assoc’s v. Technicare Corp., 710 F.2d 940, 945 (2d Cir. 1983);
Int’l Prods. Corp. v. Koons, 325 F.2d 403, 407–08 (2d Cir. 1963) (“Whether or not the Rule
itself authorizes so much of the order as also seals all affidavits submitted by defendants on
various motions, we have no question as to the court’s jurisdiction to do this under the
inherent ‘equitable powers of courts of law over their own process, to prevent abuses,
oppression, and injustices,’ Gumbel v. Pitkin, 124 U.S. 131, 144, 8 S.Ct. 379, 31 L.Ed. 374
(1888); Parker v. Columbia Broadcasting System,[], 320 F.2d [937,] 938 [(2d Cir.
1963)].”).

13
Good Cause
As an initial matter, and putting to one side for the moment the presumptions of public
access, district courts may issue protective and sealing orders to protect a party or person from
“annoyance, embarrassment, oppression, or undue burden or expense,”38 not to mention even graver
concerns. Here, the disclosure of the identities of the Does to the LAPs and, especially their
Ecuadorian counsel and allies, particularly at this juncture, would entail serious risks.

The LAPs’ Ecuadorian Counsel and Allies
Several considerations bear on the risk of disclosure to the LAPs and their Ecuadorian
counsel and allies.

Refusal to Recognize or Comply With Orders of this Court
First, although Fajardo, Yanza, and all of the LAPs are defendants in this action, were
duly served with process, all – save for the two LAP Representatives – have defaulted, thus waiving
any jurisdictional defenses. Fajardo, Yanza, the ADF, and forty-five of the LAPs do not recognize
either the jurisdiction of this Court or the binding effect of its orders.39 Fajardo and others repeatedly

38

The burden of establishing good cause then is on the party seeking relief. Gambale v.
Deutsche Bank AG, 377 F.3d 133, 142 (2d Cir. 2004).
39

See, e.g., Champion Decl. [DI 770] Ex. 2, at 2 (Fajardo “stated that Judge Kaplan does not
have jurisdiction over the non-American lawyers or plaintiffs, and therefore he felt no
obligation to comply with his order”granting the preliminary injunction.).

14
have refused to cooperate in discovery.40 There is no reason to believe that they would comply with
any restrictions that might be placed on their use of information regarding the Does or their other
actions if the information were released either to the public generally or to these individuals in
particular.

Threats to Other Witnesses
Second, Yanza and Fajardo already have threatened two other Chevron witnesses –
Guerra and Reyes41 – with slander suits and criminal prosecution based on their submission of
evidence in this Court.42 As previously determined, there is no genuine issue of material fact that

40

For example, despite the Court’s ruling in the Count 9 Action (11 Civ. 3718) that the LAPs’
attorneys were agents for their clients and that the LAP Representatives therefore were
obliged to produce all documents in their custody or control, Fajardo, Yanza, and others
persisted in their refusal to produce a single responsive document, claiming that Ecuadorian
law prevents them from doing so. See DI 562, 563. Most recently, when Chevron noticed
the deposition of Pablo Saenz – one of the LAPs’ Ecuadorian lawyers – counsel for the
LAPs informed Chevron that Saenz refused to make himself available for deposition. See
Champion Decl. [Ex. 770] Ex. 4; see also DI 778.
41

Ramiro Fernando Reyes Cisneros (“Reyes”) is an Ecuadorian petroleum and environmental
engineer who claims that he was asked by Donziger and Fajardo to serve as the
“independent” court-appointed global expert. After the team settled on Cabrera instead,
Reyes claims to have been present at a meeting with Fajardo, Donziger, and Yanza during
which they “dropped any pretense that Mr. Cabrera would act independently in writing an
expert report that would be technically sound and executed according to professional
standards.” Mastro Decl. [DI 658] Ex. 3014 (Reyes Decl.).
42

Neuman Decl. [DI. 796] Ex. 11, at 6 (Yanza – “we’re going to file legal actions against the,
uh, former judge, uhm, of the Court [Guerra] and Mr. Reyes . . . because what they’re
saying and doing is really, uh, slanderous or – or serious crimes that affect the leaders, the
case and the very government of Ecuador”) (emphasis added); Ex. 12 (Fajardo - “We’ll file
a criminal claim [against Guerra] here in Ecuador so that [he] will come and answer for a
felony”).

15
Fajardo participated in coercing an Ecuadorian judge to terminate the judicial inspections and appoint
Cabrera as the global expert by threatening the judge with a disciplinary complaint. In addition, as the
foregoing shows, there is substantial evidence that at least Fajardo and Yanza bribed the trial judge in
order to obtain a judgment favorable to the LAPs. According to Guerra, both Fajardo and Yanza
personally participated in the meeting at which the bribery proposal was put to the plaintiffs by Guerra
and it was Fajardo who later is said to have conveyed the counteroffer of the LAP Representatives for
the corrupt bargain that Zambrano allegedly accepted. Now that Guerra’s declaration is on the public
record, Fajardo, Yanza, and their associates have enormous personal and economic stakes in
attempting to protect themselves and the Judgment by attacking Guerra and anyone whose testimony
could corroborate Guerra. And Fajardo has made clear that the LAP team closely monitors “people
tied to Chevron” like Guerra and Reyes, so they can “know what they’re doing and where they’re
traveling frequently.”43 Fajardo admitted, for example, that they found out about prior activities of
Guerra by “ask[ing] for the information – the migration movements of Mr. Guerra . . . where he goes,
and where he can be” found.44
While the question whether Guerra’s account is accurate will be decided on another
day, the threats by Yanza and Fajardo against Reyes and Guerra as well as Fajardo’s undisputed role
in coercing the judge with respect to the judicial inspections and Cabrera’s appointment, the persistent
obstruction of discovery in this case, and virtually the entire record evidence a substantial risk that

43

Champion Decl. [DI 759] Ex. 3, at 4.
44

Id. at 4–5.

16
Fajardo, Yanza, and their associates would attempt to coerce, intimidate, and initiate reprisals against
the Does if they learned their identities.

Intimidation of the Ecuadorian Courts
Third, the LAPs’ strategy in Ecuador, at least until they bribed Judge Zambrano if
indeed that is what occurred, was to intimidate the judiciary in order to obtain the result they wanted.
We have seen already that the LAPs, through Fajardo, brought pressure to bear on the
Lago Agrio judge to secure adoption of their proposal for a global assessment and the selection of
Cabrera as the court-appointed expert. But they did not stop there.
Donziger has served as the field general in what he describes in the Crude outtakes45
as a “political battle . . . being played out through a legal case,”46 a view that dovetails with his
assessment of the Ecuadorian court system as corrupt and driven by politics. Donziger, Fajardo,
Yanza, and the ADF have made determined efforts to intimidate the Ecuadorian judiciary. According
to Donziger, it has been important to mobilize the country politically “so that no judge can rule against
[the plaintiffs] and feel like he can get away with it in terms of his career.”47 Donziger directed a
member of the LAPs’ legal team to “prepare a detailed plan with the necessary steps to attack the judge
45

A discussion of the film Crude and the outtakes is found in In re Chevron Corp., 749 F.
Supp. 2d 141, 146 (S.D.N.Y. 2010) aff’d sub nom. Lago Agrio Plaintiffs v. Chevron Corp.,
409 F. App'x 393 (2d Cir. 2010).
46

Hendricks Decl., [DI 41, No. 10–MC–00002 (LAK) ] (hereinafter “Hendricks Decl. I”) Ex.
A, CRS–060–00–04.
47

Id., CRS–032–00–01.

17
through legal, institutional channels and through any other channel [he could] think of.”48 One
example, depicted in part in Crude, shows Donziger and other LAP representatives traveling to an ex
parte meeting with a judge on March 30, 2006. Prior to the meeting, Donziger described his plan to
“intimidate,” “pressure,” and “humiliate” the judge:
“The only language that I believe this judge is gonna understand is one of pressure,
intimidation and humiliation. And that’s what we’re doin’ today. We’re gonna let him
know what time it is. . . . As a lawyer, I never do this. You don't have to do it in the
United States. It’s, it’s dirty. I hate it, hate it, but it’s necessary. I'm not lettin’ ‘em
get away with this stuff.”49
Donziger further explained to the film maker’s camera that:
“[T]he judicial system [in Ecuador] is so utterly weak. Like, 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. And, you know,
that would never happen in the United States. That would never happen in any judicial
system that had integrity.”50
“They’re all [i.e., the Ecuadorian judges] corrupt! It’s—it's their birthright to be
corrupt.”51 “You can solve anything with politics as long as the judges are intelligent
enough to understand the politics. . . . [T]hey don’t have to be intelligent enough to
understand the law, just as long as they understand the politics.”52
“[I]t’s a problem of institutional weakness in the judiciary, generally, and of this court,
48

Hendricks Decl., [DI 6, No. 11 Civ. 0691 (LAK)] (hereinafter “Hendricks Decl. II”) Ex. 96.
49

Hendricks Decl. I Ex. A, 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.” Id., CRS–046–02–01.
50

Id., CRS–053–02–01.
51

Id., CRS–053–02–03.
52

Hendricks Decl. II Ex. 1, CRS–129–00–02.

18
in particular. . . . We believe they make decisions based on who they fear the most, not
based on what the laws should dictate.”53
In addition, among the events filmed by the crew was a conversation between Donziger
and Fajardo in which the two 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.”54
The Crude outtakes captured a June 6, 2007 meeting in which Donziger outlined a
strategy to pressure the Ecuadorian court. Donziger told those present that the LAPs 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.”55 Donziger
expressed concern that no one feared the plaintiffs, and he stated that the plaintiffs would not win
unless the courts began to fear them.56 He 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.”57 He then proposed raising “our own army” to which Yanza interjected “a

53

Hendricks Decl. I Ex. A, CRS–350–04–01.
54

Id., CRS–346–00–02.
55

Id., CRS–350–04–01.
56

Id.
57

Id.

19
specialized group . . . for immediate action.”58 The conversation about raising an army to pressure
the court then continued, with Yanza waving the camera away as he told Donziger that the “army”
could be supplied with weapons.59
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” to that point 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.60 Donziger asserted that the plaintiffs needed to do
things that the judge would “really feel” such as having the president of the country or the supreme
court “call[] him out,” implying that Donziger and others could develop strategies that would result
in such actions. Later that month, Donziger asked Berlinger and his crew to film the LAPs’ “private
‘army,’” which he characterized as being “very effective” because “it followed a Texaco lawyer into
the judge’s chambers and had a confrontation” “a critical part of [the] strategy . . . allowing the case
to go forward . . . .”61
Finally, Donziger participated in a dinner conversation about what might happen to a
judge who ruled against the LAPs. One or more other participants in the conversation suggested that

58

Id., CRS–350–04–02.
59

Id.
60

Id., CRS–376–04–01.
61

Hendricks Decl. II Ex. 99, at 1.

20
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 . . . [w]hich is just as good.”62 The comment reveals at least
Donziger’s desire to benefit from fear engendered in the Ecuadorian judges.
In sum, there is ample evidence that the LAPs’ counsel in the Lago Agrio case and
allies deliberately pursued a strategy of intimidation and coercion aimed at the judiciary at least until
the point at which they are alleged to have bribed the trial judge, thus perhaps making further
intimidation unnecessary.

The Alliance Between the LAPs and the Ecuadorian Government and the
Consequent Risks to the Does
The Reopening of Closed Criminal Allegations at the LAPs’ Instance
The Crude outtakes include a brief interview with Donziger on his way to President
Correa’s January 2007 inauguration. For present purposes, it is relevant that 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 LAPs and the ROE had “been really helping
each other”63 and discussed the importance of working his contacts in the new government.64 A short
time later, the LAPs, in a radio segment, named TexPet’s attorneys and accused them of being
“accomplices,” “Ecuadorians who are more interested in making money than on showing solidarity

62

Hendricks Decl. I Ex. A, CRS–129–00–02.
63

Hendricks Decl. I Ex. I, CRS–163–02–02.
64

Id.

21
towards their fellow countrymen whose lives are in peril.”65
This campaign continued. The outtakes show Donziger and others planning a press
conference to pressure the Prosecutor General to bring criminal charges.66 On the following day,
Donziger asked that posters be made of “Texaco's four accomplices,”67 including Pérez and
Veiga—posters that later were displayed at a press conference and a demonstration.
In March 2007, President Correa pledged his full support for the LAPs.68 He followed
that pledge with a meeting with Yanza. 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.”69 He added
to Donziger that President Correa “insist[ed]” that he continued to “[think] about doing something in
the Prosecutor’s Office.”70 A day or two later, Yanza again reported to Donziger and Fajardo,

65

Id. Ex. 17.
66

Hendricks Decl., [DI 14, No. 10–MC–00002] (hereinafter “Hendricks Decl. III”) Ex. 2,
CRS–198–00–04.
67

Hendricks Decl. I Ex. A, CRS–204–01–02.
68

Dans Decl., [DI 40, No. 10–MC–00002 (LAK)] (hereinafter “Dans Decl.”) Ex. 12.
69

Id. Ex. 2, CRS–248–03–01.
70

Id.

22
asserting on that occasion that Yanza had “coordinat[ed] everything” with President Correa.71
Within a few days, President Correa, Yanza, Fajardo, and others boarded a government
helicopter together to tour the Oriente region.72 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.”73
The fact that there was no mention of the TexPet lawyers apparently bothered
Donziger. In a telephone conversation the next day that was captured in the Crude outtakes, Donziger
said that “perhaps it is time to ask for the head of Pérez Pallares—given what the President said.”74
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.75
Finally, in one of the outtakes, Fajardo reported: “So, the President thinks that if we
put in a little effort, before getting the public involved, the Prosecutor will yield, and will re-open that
71

Hendricks Decl. II Ex. 4 (Crude ), 1:03:03.
72

Portions of President Correa’s visit are depicted in Crude and the outtakes. See also id. Ex.
230A.
73

Dans Decl. Ex. 14.
74

Hendricks Decl. III Ex. 1, CRS–268–00–01.
75

Dans. Decl. Ex. 13 (emphasis added).

23
investigation into the fraud of–of the contract between Texaco and the Ecuadorian Government.”76
On November 30, 2007, Ecuador’s then new Constituent Assembly, which was
controlled by President Correa,77 removed the Prosecutor General, who had found no basis to support
criminal charges against the Individual Petitioners and former ROE 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.”78 Several months later, however, Dr. Pesántez decided
that the criminal case should be reopened.79
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, Pérez and Veiga received notice that the new
Prosecutor General had reactivated the criminal charges based on “new” evidence.80 On July 31, 2008,
representatives of the LAPs, including Donziger, held a press conference during which Yanza
commented that the plaintiffs had presented evidence to the Prosecutor General’s office to encourage

76

Hendricks Decl. II Ex. 1, CRS–376–03–01.
77

In re Chevron Corp., 749 F.Supp.2d at 155.
78

Hendricks Decl. II Ex. 394, at 9.
79

Dans Decl. Ex. 15.
80

Id.

24
an investigation.81 President Correa, in a radio address less than two weeks later, offered his support
for the criminal prosecutions:
“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, of all the pollution.”82
In the end, the reopening of the prosecution appears to have backfired. The two
lawyers who were charged criminally joined with Chevron in seeking discovery in the United States
under Section 1782(a) of the Judicial Code83 in order to defend themselves in Ecuador. This Court
ordered, among other things, disclosure by Donziger and concluded that he had forfeited any work
product or attorney-client privilege. In affirming that ruling on December 15, 2010, with a hearing in
the Ecuadorian criminal case scheduled for January 5, 2011, the Second Circuit wrote:
“[A]s this panel observed at oral argument and the District Court stressed several times
in its orders, see, e.g., In re Chevron Corp., 749 F. Supp.2d 170, 173–75, 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.”84
The subsequent history of the criminal case in Ecuador is instructive. On January 5,
2011, the LAPs’ counsel advised the Third Circuit, which was hearing a related matter, that the hearing
81

Hendricks Decl. II Ex. 224, at 5–6.
82

Dans Decl. Ex. 23.
83

28 U.S.C. § 1782(a).
84

Lago Agrio Plaintiffs v. Chevron Corp., 409 F. App’x 393, 395-96 (2d Cir. 2010) (emphasis
added).

25
in Ecuador “had been postponed indefinitely. Though it was later rescheduled for March 2, it was
postponed yet again.”85 And then it reportedly was dropped altogether in June 2011.86 While we may
never know exactly what occurred, the probable interpretation of the events is that the criminal
prosecution of the allegedly “homeland-selling lawyers” became inconvenient to the LAPs and so the
government abandoned it.

*

*

*

In sum, the Republic of Ecuador is an avowed supporter of the LAPs. It reopened long
closed criminal accusations against former TexPet lawyers at the LAPs’ instance. And then abandoned
the case when that served the LAPs’ interests. Given its past actions with respect to this case and its
actions with respect to critics of the current regime that are discussed below, not to mention the
evidence of other uses and threatened uses of state power to intimidate persons assisting Chevron that
is discussed in the sealed supplement to this decision, the declarants are justified in fearing reprisals
at the hands of their own government if their identities become known.

The Broader Ecuadorian Environment
Account must be taken also of the environment in which these confidential witnesses
live. Ecuador’s record with respect to crime, violence, law enforcement, and the legal process gives
little comfort that these witnesses, were their identities revealed at this stage, would be safe from

85

In re Chevron Corp., 650 F.3d 276, 286 n.13 (3d Cir. 2011).
86

See Lawrence Hurley, Dropping Charges in Ecuador Could Affect Chevron Racketeering
TIMES,
June
3,
2011,
available
at
Case,
NY
http://www.nytimes.com/gwire/2011/06/03/03greenwire-dropped-charges-in-ecuadorcould-affect-chevro-90134.html (last visited Feb. 20, 2012).

26
retribution.
First, it has been reported widely that the current government of Ecuador has been
intolerant of dissent, at least in one well known incident. In the El Universo case, three newspaper
executives and a columnist were criminally prosecuted for and convicted of criminal defamation and
sentenced to jail terms and multimillion dollar fines, reportedly for statements critical of the president.
Although the individuals eventually were pardoned, all reportedly fled Ecuador.87 Moreover, the
president, on the occasion of the affirmance of the convictions but before the pardons, said that the
case was an historic precedent and “that nobody has the right to tarnish the truth.”88
Second, it is well to consider conclusions reached by the U.S. Department of State.
Among the findings set out in the 2011 Country Report on Human Rights Practices in Ecuador are
these:
•

“[T]here continued to be credible reports that security forces, particularly

87

Ecuador journalists convicted in Correa libel case, BBC NEWS, July 21, 2011, available
at http://www.bbc.co.uk/news/world-latin-america-14234695 (last visited Feb. 19, 2013);
Ecuador’s Assault on Free Speech, NY TIMES, Feb. 21, 2012, available at
http://www.nytimes.com/2012/02/22/opinion/ecuadors-assault-on-free-speech.html?_r=0
(last visited Feb. 19, 2013); Ecuador journalist Emilio Palacios granted asylum in the US,
N E W S ,
A u g .
2 1 ,
2 0 1 2 ,
a v a i l a b l e
a t
B B C
http://www.bbc.co.uk/news/world-latin-america-19431682 (last visited Feb. 19, 2013);
Ecuador’s media Muzzled, Economist, Feb. 17, 2012, available at
http://www.economist.com/blogs/americasview/2012/02/ecuadors-media (last visited Feb.
19, 2013); Correa pardons journalists jailed by Ecuadorian court for libel, EL PAÍS, March
1 ,
2 0 1 2 ,
a v a i l a b l e
a t
http://elpais.com/elpais/2012/03/01/inenglish/1330619576_394133.html (last visited Feb.
19, 2013).
88

Mariano Costillo and Nelson Quinones, Ecuador high court upholds $40 million libel suit,
C N N ,
F e b .
1 6 ,
2 0 1 2 ,
a v a i l a b l e
a t
http://www.cnn.com/2012/02/16/world/americas/ecuador-libel-lawsuit (last visited Feb. 19,
2013). President Correa repeatedly praised the ruling: “We have set a precedent. This
sentence and this process are historic. They demonstrate that nobody has the right to tarnish
the truth . . . . Not only is the person who wrote it responsible, but also the directors who
allowed the offense and the newspaper where it was printed.” Id.

27
police units, used excessive force and committed isolated unlawful killings.”
•

“The National Police are responsible in law and practice for internal security
and law enforcement and are under the authority of the Ministry of Interior.
National Police effectiveness was impaired by corruption, poor hiring
procedures, and insufficient training, supervision, and resources.”

•

“Authorities charged with determining the validity of detention often allowed
frivolous charges to be brought, either because they were overworked or
because the accuser bribed them. The system frequently was used as a means
of harassment in civil cases in which one party sought to have the other
arrested on criminal charges.”

•

“While the constitution provides for an independent judiciary, in practice the
judiciary was susceptible to outside pressure and corruption. The media
reported on the susceptibility of the judiciary to bribes for favorable decisions
and faster resolution of legal cases. Judges occasionally reached decisions
based on media influence or political and economic pressures.”

•

“In some cases the outcome of trials appeared predetermined, and there were
credible allegations by defendants and the press that verdicts delivered by
judges were not actually written by them. In the libel suit brought by President
Correa against the newspaper El Universo . . . , the presiding judge published
a 156-page decision 25 hours after the hearing.”

•

“The law provides criminal penalties for official corruption. However, the
government did not implement the law effectively, and officials sometimes
engaged in corrupt practices with impunity.”

•

“Academics and think tank analysts said that legal cases were not processed
unless the police and judicial officials were bribed.”

Likewise, the State Department’s travel advisory for Ecuador states the following:
•

“Due to the spread of organized crime, drug and small-arms trafficking, and
incursions by terrorist organizations near Ecuador’s border with Colombia, the
U.S. Embassy in Quito advises caution when traveling to northern Ecuador,
including the provinces of Sucumbios [the province containing Lago Agrio],
northern Orellana, Carchi, and northern Esmeraldas. U.S. government
personnel are prohibited from traveling alone or staying overnight in these
areas.”

•

“Crime is a severe problem in Ecuador. . . . Very low rates of apprehension
and conviction of criminals – due to limited police and judicial resources –
contribute to Ecuador’s high crime rate.”

28
Summary as to Good Cause
Without passing on the question whether Guerra will prove a credible witness at trial,
the testimony set out in his declaration is potentially devastating to the LAPs, to their Ecuadorian
counsel and Mr. Donziger, and to their various associates and allies. Their incentive to intimidate and
retaliate against him – and against anyone who corroborates his story even in part – is enormous. The
Does plainly would be potential targets of intimidation, retribution, and conceivably worse if their
identities became known.
No comfort can be taken from the past behavior of the potential sources of such
behavior. It already has been determined that there is no genuine issue of fact with respect to the
intimidation of an Ecuadorian judge by Fajardo and Donziger with the threat of a disciplinary
complaint if he did not go along with their plan to end the judicial inspections and appoint their choice,
Cabrera, as the global expert. They have openly threatened Guerra and Reyes with civil litigation and
criminal prosecution for providing evidence in this case. They previously prevailed upon the
Ecuadorian government to prosecute two of Chevron’s Ecuadorian counsel criminally. The LAPs’
determination to intimidate Ecuadorian judges to get their way is evident from statements made by
their lawyers in Crude and the video outtakes. And there is little reason to suppose that any of these
individuals could be constrained by any order this Court might issue to restrict their behavior if the
identity of the Does became known to them.
This situation is compounded both by the alliance between the LAPs and the
Ecuadorian government and the limited effectiveness of Ecuadorian law enforcement and judiciary
in the best of circumstances. The president of Ecuador is an advocate for the LAPs and played a role
in securing the now abandoned criminal prosecution of two of Chevron’s attorneys that included his
inflammatory broadcast call for the criminal prosecution of “Chevron–Texaco . . . ‘homeland-selling

29
lawyers.’” The sealed supplement to this decision provides other reasons for concern with respect to
reprisals by the government. Moreover, Ecuador as this is written is defying a highly pertinent order
of a tribunal issued by a panel of the Permanent Court of Arbitration.
In all the circumstances, the Court finds that the disclosure of the Does’ identities in
any manner that could lead to their identities being learned by the LAPs, their counsel and allies in
Ecuador, including the Ecuadorian government, is substantially likely to result in reprisals against them
as well as efforts to intimidate them and thus to cause them to alter their testimony. There is good
cause for preventing any such disclosure for as long as possible.

Public Access to Judicial Documents
Our Circuit has made clear that there is a common law presumption of public access
to judicial documents which may be overcome by countervailing factors including “the privacy
interests of those resisting disclosure,”89 that there is in addition a “qualified First Amendment right
to attend judicial proceedings and to access certain judicial documents,”90 that the qualified First
Amendment right extends “to documents submitted to the court in connection with a summary
judgment motion,”91 that the weight of the presumption favoring public availability of such documents

89

Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119–20 (2d Cir. 2006) (quoting
United States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995) (“Amodeo II”) (internal
quotation marks omitted)).
90

Lugosch, 435 F.3d at 120 (quoting Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 91 (2d
Cir. 2004) (internal quotation marks omitted)).
91

Lugosch, 435 F.3d at 124.

30
“is of the highest,”92 and that “continued sealing of [such] documents may be justified only with
specific, on-the-record findings that sealing is necessary to preserve higher values and only if the
sealing order is narrowly tailored to achieve that aim.”93 The Court therefore turns to balancing the
need for protection of the identities of the Does and to the tailoring of the order.

The Balance
In Amodeo II, the Circuit stated that “the weight to be given the presumption of access”
is determined by where a particular document falls along “a continuum from matters that directly affect
an adjudication to matters that come within a court’s purview solely to insure their irrelevance.”94 We
deal here with two declarations submitted in support of a motion for partial summary judgment. And
though it has been argued with some force that the weight of the presumption for such documents
ought to depend on whether they ultimately play a role in the determination of the motion, Lugosch
stated that the weight of the presumption favoring public availability of such documents “is of the
highest.”95 But Lugosch made clear also that the presumption, even at its weightiest, may be
overcome by “competing considerations” including but not limited to “the privacy interests of those

92

Id. at 123.
93

Id. at 124.
94

71 F.3d at 1049.
95

435 F.3d at 123.

31
resisting disclosure”96 and the need “to preserve higher values.”97
In this case, there are weighty considerations that support protection of the identities
of the Does. If their identities become known in Ecuador, it is all but certain that they will be subjected
to vilification and economic reprisals by the LAPs and their allies. There is a significant risk of such
actions by the government. Although the record does not establish that others in similar positions have
been victims of violence in the past, the climate in Ecuador, the stakes of this litigation, the attitude
of those representing the LAPs in Ecuador, and the characteristics of Ecuadorian law enforcement
noted by our State Department combine to justify the finding that the risk of physical violence cannot
be disregarded entirely in the balance of interests.98 Finally, there is an important public and private
interest in ensuring that those with knowledge of whatever went on in Ecuador come forward with
pertinent evidence. As the Circuit recognized in Amodeo II, the likely consequences of failure to
protect the identities of confidential sources such as these weigh
in favor of keeping that information from the public.99
In all the circumstances, the Court finds that the privacy interests of the Does, the need
96

Id. at 120 (quoting Amodeo II, 71 F.3d at 1049–50).
97

Lugosch, 435 F.3d at 120 (quoting In re New York Times Co., 828 F.3d 110, 116 (2d Cir.
1987) (internal quotation marks omitted)).
98

Where there are concerns for witness safety, a district court may restrict a defendants access
to the witness’s identity or other information, such as the witness’s address. Morgan v.
Bennett, 204 F.3d 360, 367 (2d Cir. 2000); United States v. Cavallaro, 553 F.2d 300, 304
(2d Cir. 1977).
99

See Amodeo II, 71 F.3d at 1047–48, 1050 (“ If . . . confidentiality cannot be assured,
cooperation will not be forthcoming.”).
This is so notwithstanding that these individuals are confidential sources of Chevron rather
than of law enforcement officials particularly in light of the fact that the Ecuadorian
government is openly aligned against Chevron.

32
to safeguard them from intimidation and economic and physical reprisals, and ensuring as far as
possible that the public and private interests in obtaining the cooperation of witnesses with pertinent
evidence in this and related cases are higher values that outweigh the private interests of the defendants
and overcome the presumption of public access to judicial documents to the extent that the Doe
declarations identify them or contain information that would be likely to lead to their identification.

Tailoring the Protection
So far as public access is concerned, the presumption has been overcome only to the
extent that the documents filed with the Court would identify the Does, directly or indirectly. Yet the
parties have addressed the issues before the Court on an all or nothing basis, effectively assuming that
the entirety of Doe declarations and the redacted identifying information in other declarations either
should or should not be sealed. That is why the Court’s February 14 order took the form it did.
Nonetheless, the Court accepts in theory that there may be parts of the Doe declarations that could be
unsealed without compromising the protection properly afforded to the Does identities. Defendants
– whose counsel of record in this action have copies of the unredacted declarations – are free to apply
to the Court to unseal portions of the declarations that they believe could be made public without
material risk of harm to higher values.
Defendants also have an important interest in properly preparing this action for trial
and, in particular, in preparing to meet the testimony of the Does that is foretold by their declarations.
That interest is served, at least to a very important extent and perhaps fully, by the fact that their
counsel of record have the sealed declarations of the Does and the unredacted declarations of other
witnesses and thus can prepare, subject always to their duties not to reveal the identities of the Does
or any information that might lead to their identification. To whatever extent they feel that some

33
relaxation of the terms of the order is needed for specific purposes in order for them properly to serve
their clients, they are free to apply to the Court for appropriate relief on terms consistent with the
values articulated here.
One final point. Chevron’s motion initially sought an order blocking defendants from
sharing the information in question “with anyone in Ecuador, other than, if necessary, the two
appearing LAP Defendants, after making them aware of their court-ordered obligation to maintain the
strict confidentiality of the information.”100 Thus, as the motion was drafted, Chevron apparently was
willing to permit disclosure to the two LAP Representatives and to Donziger,101 if that were necessary,
in reliance on their promise to comply with a court order requiring them to maintain the information
in confidence.
The LAP Representatives’ counsel found that confusing in view of Chevron’s stated
desire to avoid having the Doe information disseminated in Ecuador.102 When queried at oral
argument, Chevron’s counsel said that she thought that the defendants’ counsel “need to share the
information with their client [i.e., the LAP Representatives and Donziger] if their clients agree[d] to
keep it confidential in a way where it cannot be made public or otherwise distributed in Ecuador.”103
Paradoxically, however, she then said that (1) it would be inappropriate to send the declarations to
Ecuador, (2) the LAP Representatives should not be permitted to share the information with their
Ecuadorian counsel, (3) both Chevron and “[t]he witnesses would prefer . . . that no one in Ecuador
100

DI 757, at 2.
101

See DI 769, at 10 & n.11.
102

See Tr., Feb. 4, 2013, at 23–24
103

Id. at 41.

34
have the information,” and (4) “[t]he point . . . is to provide for and address the safety concerns that
these witnesses have raised, by keeping their identities out of Ecuador and out of the possession of
people who have shown to have a pattern and practice of attacking the witnesses.”104
If this application concerned purely the private interests of Chevron, there would be
little reason not to accept its original formulation of the relief it sought – i.e., to allow disclosure of the
information to the LAP Representatives and to Donziger if that proved necessary, subject to their
agreement to comply with confidentiality restrictions. But the interests of these witnesses in personal
safety and in freedom from reprisals and intimidation, not merely Chevron’s private interests, are at
stake here. The Court would have no effective means of remedying any breach by the LAP
Representatives of restrictions on their use of the Doe information, assuming it were disclosed to them,
even if such a breach could be laid unequivocally at their doorsteps. Donziger’s actions give little
comfort that he would comply with confidentiality obligations imposed upon him, at least on those
occasions where he is in Ecuador. In the interest of the safety and well being of these witnesses, the
Court therefore has granted the relief warranted by the record and that Chevron ultimately seeks
despite the confusion and internal inconsistency in Chevron’s initial position. To the extent counsel
later believes that disclosure to the two LAP Representatives or Donzigeris necessary, they may apply
to the Court for appropriate relief.
Upon further consideration from the February 14 order, however, the Court is not
persuaded that the Stratus defendants cannot be trusted to comply with the terms of the protective
order. Accordingly, on its own motion and by order of even date, the Court modifies the February 14
order to the extent that it applies to the Stratus defendants.

104

Id. at 41–43.

35
Conclusion
The foregoing sets forth the reasoning and amplifies the findings underlying the Court’s
February 14 order and constitutes findings of fact and conclusions of law for the purposes of this
motion.
SO ORDERED.
Dated:
Corrected:

February 21, 2013
February 21, 2013, 11:55 a.m.