chevron corp. v. berlinger, no. 10-1918 (2d cir. june 14 ... · v. the chevron supporters’...

10-1918-cv(L), 10-1966-cv(CON)

United States Court of Appeals for the

Second Circuit

CHEVRON CORPORATION, RODRIGO PEREZ PALLARES, RICARDO REIS VEIGA,

Petitioners-Appellees,

– v. –

JOSEPH A. BERLINGER, CRUDE PRODUCTIONS, LLC, MICHAEL BONFIGLIO, THIRD EYE MOTION PICTURE COMPANY, INC.,

@RADICAL.MEDIA, LAGO AGRIO PLAINTIFFS,

Respondents-Appellants.

_______________________________

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

BRIEF AND SPECIAL APPENDIX FOR RESPONDENT-APPELLANTLAGO AGRIO PLAINTIFFS

EMERY CELLI BRINCKERHOFF

& ABADY LLP Attorneys for Respondent-Appellant Lago

Agrio Plaintiffs 75 Rockefeller Plaza, 20th Floor New York, NewYork 10019 (212) 763-5000

Case: 10-1918 Document: 200 Page: 1 06/14/2010 52509 99

i

TABLE OF CONTENTS

PAGE NO(s):

TABLE OF AUTHORITIES ............................................................................... iv-vi PRELIMINARY STATEMENT ............................................................................... 1 JURISDICTIONAL STATEMENT .......................................................................... 5 STATEMENT OF THE ISSUES............................................................................... 5 STATEMENT OF THE CASE .................................................................................. 6

Chevron’s Destruction of the Amazonian Rainforest ..................................... 6

Plaintiffs File in the Southern District, but Chevron Successfully Moves to Transfer the Litigation to Ecuador, Because “the Evidence is in Ecuador” .................................................................................................. 9

The Trial in Ecuador Reveals Overwhelming Evidence of Chevron’s Liability and Plaintiffs’ Damages .................................................................. 11

Chevron Files a Private Arbitration to Avoid Its Chosen Forum of Ecuador ...................................................................................................... 12

Chevron Files a Series of § 1782 Lawsuits Throughout the United States ................................................................................................. 13

The Chevron Supporters ................................................................................ 15

The Making of Crude .................................................................................... 16

Crude is Released in January 2009, and Seen and Approved by Chevron .......................................................................................................... 17

Crude is Devastating to Chevron................................................................... 17


ii

The Few Minutes in Crude that Form the Alleged Basis for the 1782 Petition ........................................................................................................... 18

i. Chevron’s Improper Ex Parte Application in Quito .................... 18 ii. Lobbying Efforts by Chevron ...................................................... 20 iii. Meeting at Which Dr. Beristain is Present .................................. 22

Crude Does not Concern the Criminal Case ................................................. 23

The Chevron Parties Wait 15 Months to Bring This Application ................. 25

The Lago Agrio Court’s Pending Decision Concerning Its Receptivity to § 1782 Evidence ........................................................................................ 25

The District Court’s Order ............................................................................. 26

Procedural History ......................................................................................... 29

SUMMARY OF THE ARGUMENT ...................................................................... 30 ARGUMENT ........................................................................................................... 31

I. Legal Framework ....................................................................................... 32

II. The Intel Factors Weigh Heavily Against the Chevron Parties ................. 35

A. The Proposed Discovery is Highly Intrusive and Burdensome .......... 35

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 ...................... 38

C. The Section 1782 Request Conceals an Attempt to

Circumvent Foreign Proof-Gathering Restrictions and Other Policies of the United States ............................................... 41


iii

III. The Application is Prohibited Under Section 1782 Because it Violates the Journalist’s Privilege .............................................................. 45

IV. Chevron Cannot Use the BIT Proceeding to Support This Petition .......... 47

V. The Chevron Supporters’ Petition Is Even Weaker Than

Chevron’s ................................................................................................... 52 CONCLUSION ........................................................................................................ 56


iv

TABLE OF AUTHORITIES

PAGE NO(s):

Federal Cases: Aguinda v. Texaco, Inc.,

142 F. Supp. 2d 534 (S.D.N.Y. 2001) ................................................................ 2, 9 Aguinda v. Texaco, Inc.,

303 F.3d 470 (2d Cir. 2002) ............................................................................... 2, 9 Aguinda v. Texaco, Inc.,

945 F. Supp. 625 (S.D.N.Y. 1996) ..................................................................... 2, 9 Aventis Pharma v. Wyeth, 2009 WL 3754191 (S.D.N.Y. Nov. 9, 2009) .......... 40-43 Comision Ejecutiva, Hidroelectrica Del Rio Lempa v. Nejapa Power Co., LLC,

2008 WL 4809035 (D. Del. Oct. 14, 2008) .......................................................... 50 EI Paso Corp. v. La Comision Ejecutiva, Hidroelectrica Del Rio Lempa,

2009 WL 2407189 (5th Cir. Aug. 6, 2009) .......................................................... 51 Gonzales v. National Broadcasting Co., Inc.,

194 F.3d 29 (2d Cir. 1999) ......................................................... 3, 5, 28, 36, 46-47 In La Comision Ejecutiva, Hidroelectrica Del Rio Lempa v. EI Paso Corp.,

617 F.Supp.2d 481 (S.D. Tex. 2008) .................................................................... 50 In re Apotex, Inc.,

2009 WL 618243 (S.D.N.Y. March 9, 2009) ................................................. 35, 38 In Re Application of OOO Promnefstroy,

2009 WL 3335608 (S.D.N.Y. Oct. 15, 2009) ...................................................... 42 In re Microsoft Corp.,

428 F.Supp.2d 188 (S.D.N.Y. 2006) .............................................................passim


v

In re Opera-dora DB Mexico, S.A. DE C.V., 2009 WL 2423138 (M.D.Fla. Aug 4, 2009) ......................................................... 50

In re Oxus Gold PLC,

2007 WL 1037387 (D.N.J. Apr. 2, 2007) ............................................................. 50 Intel Corp. v. Advanced Micro Devices, Inc.,

542 U.S. 241 (2004) ......................................................................................passim Jota v. Texaco, Inc., 157 F.3d 153 (2d Cir. 1998) ................................................................................ 2, 9 Lo Duca v. United States,

93 F.3d 1100 (2d Cir. 1996) ........................................................................... 54-55 NBC v. Bear Stearns & Co., Inc.,

165 F.3d 184 (2d Cir. 1999) ........................................................... 4, 27, 31, 48, 51 New Hampshire v. Maine,

532 U.S. 742 (2001) ............................................................................................. 44 OJSC Ukrnafata v. Carpatsky Petroleum Corp.,

2009 WL 2877156 (D. Conn. Aug. 27, 2009) ...................................................... 50 Pravin Banker Assocs., Ltd. v. Banco Popular Del Peru,

109 F.3d 850 (2d Cir.1997) .................................................................................. 39 Republic of Kazakhstan v. Beidermann,

168 F.3d 880 (5th Cir. 1999) .......................................................................... 48-50 Schmitz v. Bernstein Liebhard & Lifshitz, LLP,

376 F.3d 79 (2d Cir. 2004) ............................................................................passim


vi

Federal Statutes: 28 U.S.C. § 1291 ........................................................................................................ 5 28 U.S.C. § 1331 ........................................................................................................ 5 28 U.S.C. § 1782 ...............................................................................................passim


Plaintiffs1 in a related civil action against the Chevron Corporation

venued in Lago Agrio, Ecuador (the “Lago Agrio plaintiffs” or “Ecuadorian

plaintiffs”), submit this memorandum of law in support of their appeal of an Order

granting the 28 U.S.C.A. § 1782(a) application of Chevron and its lawyers,

Rodrigo Perez Pallares and Richard Reis Veiga (the “Chevron parties”).

PRELIMINARY STATEMENT

This petition is the latest attempt by the Chevron Corporation to evade

responsibility for one of the greatest man-made ecological disasters of the last

century, dwarfing both BP and the Exxon Valdez. For twenty-five years, Chevron

deliberately dumped billions of gallons of toxic waste into rivers, wells, drinking

1 Plaintiffs include: Daniel Carlos Lusitande Yaiguaje, Venancio Freddy Chimbo Grefa, Miguel Mario Payaguaje Payaguaje, Teodoro Gonzalo Piaguaje Payaguaje, Simón Lusitande Yaiguaje, Armando Wilmer Piaguaje Payaguaje, Javier Piaguaje Payaguaje, Fermín Piaguaje, Luis Agustín Payaguaje Piaguaje, Emilio Martin Lusitande Yaiguaje, Reinaldo Lusitande Yaiguaje, María Victoria Aguinda Salazar, Carlos Grega Huatatoca, Catalina Antonia Aguinda Salazar, Lidia Alexandra Aguinda Aguinda, Clide Ramiro Aguinda Aguinda, Luis Armando Chimbo Yumbo, Beatriz Mercedes Grefa Tanguila, Lucio Enrique Grefa Tanguila, Patricio Wilson Aguinda Aguinda, Patricio Alberto Chimbo Yumbo, Segundo Ángel Amanta Milán, Francisco Matías Alvarado Yumbo, Olga Gloria Grefa Cerda, Narcisa Tanguila Narváez, Bertha Yumbo Tanguila, Lucrecia Tanguila Grefa, Francisco Víctor Tanguila Grefa, Rosa Teresa Chimbo Tanguila, María Clelia Reascos Revelo, Heleodoro Pataron Guaraca, María Viveros Cusangua, Lorenzo José Alvarado Yumbo, Francisco Alvarado Yumbo, José Gabriel Revelo Llore, Luisa Delia Tanguila Narváez, José Miguel Ipiales Chicaiza, Hugo Gerardo Camacho Naranjo, María Magdalena Rodríguez, Elías Piyahuaje Payahuaje, Lourdes Beatriz Chimbo Tanguila, Octavio Córdova Huanca, Celia Irene Vivero Cusangua, Guillermo Payaguaje Lucitande, Alfredo Payaguaje, and Delfíin Payaguaje.


2

water, and the land of thousands of indigenous residents and farmers in the

Ecuadorian Amazon. Chevron later falsely certified a sham remediation of the

toxic sites, resulting in the criminal indictments, inter alia, of the two Chevron

employees joining this action.

Now, after seventeen years of litigation, including nine years fighting

jurisdiction in the Southern District,2 and an over seven-year litigation in

Chevron’s chosen forum of Ecuador involving 200,000 pages of evidence, 63,000

chemical sampling results, testimony from dozens of witnesses, and dozens of

judicial field inspections, Chevron seeks to subpoena 600 hours of footage from a

prominent filmmaker (Joe Berlinger3) whose documentary, Crude, helped to

expose and publicize Chevron’s conduct in the Amazon. This effort is an abuse of

28 U.S.C. § 1782: an attempt to attack and embarrass (not to aid) the Ecuadorian

Court Chevron originally sought, and to silence filmmakers such as Berlinger

whose work has helped expose Chevron’s shocking, unconscionable, and illegal

misconduct. See, e.g., Crude at 28:50-31:55.4

2 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 Aguinda v. Texaco, 303 F.3d 470, 476 (2d Cir. 2002). 3 Berlinger was joined by Respondent Crude Productions, LLC, and Respondents Michael Bonfiglio, Third Eye Motion Picture Company, Inc., and @radical.media (together, “Berlinger”). 4 All citations to Crude are to the Netflix version of the film, attached to the joint appendix.


3

Faced with devastating and overwhelming evidence in Ecuador, and

with no case to defend, Chevron has done the only thing left to do: attack the

lawyers, the court, and the proceeding itself. And now, based on the flimsiest

evidence of alleged wrongdoing, the district court has ordered the single-greatest

seizure of outtakes from a journalist in American history. This unprecedented,

blunderbuss Order not only violates the journalist’s privilege, see Gonzales v.

National Broadcasting Co., Inc., 194 F.3d 29 (2d Cir. 1999), it has sparked alarm

and fear from hundreds of filmmakers and the nation’s leading media

organizations, resulting even in the submission of an amicus brief in support of a

stay motion to this Court.5

The Order is a startling departure from the entire purpose of 28 U.S.C.

§ 1782: to foster comity and cooperation between countries and to aid foreign

litigation.6 Here, the district court flatly ignored a pending motion before the

Ecuadorian court concerning its receptivity to Chevron’s § 1782 discovery,

because, in the district court’s words, the Lago Agrio Court is not “the High Court

5 The brief was signed by ABC, the Associated Press, CBS, the Daily News, The Directors Guild, Gannett, Hearst Corporation, HBO, the International Documentary Association, NBC, the New York Times, and the Washington Post and is filed at Dkt. #151. See also A-1826-36. 6 See Schmitz v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79, 83-84 (2d Cir. 2004).


4

in London.” A-1572:9-10.7 This disregard for a sovereign nation and ranking of

countries—apparently based upon the district court’s extemporaneous research and

distaste for Ecuador’s government8—is exactly the opposite of the analysis this

Court required in Schmitz. The court also discounted entirely the burden faced by

Berlinger,9 and ignored Chevron’s failed discovery efforts in Ecuador, both of

which weigh heavily against the application. Finally, the court improperly relied

on Chevron’s application to a private arbitral tribunal, disregarding (1) this Court’s

holding that private arbitral tribunals are not “foreign tribunal[s]” within § 1782,

NBC v. Bear Stearns & Co., Inc., 165 F.3d 184 (2d Cir. 1999), and (2) the

substantial possibility that this Court (as part of a separate, pending appeal) will

enjoin Chevron’s participation in that proceeding, mooting Chevron’s reliance on

the tribunal application entirely. A-1685.

The petition violates the journalist’s privilege, undermines the policies

of comity and cooperation underlying § 1782, and is an untimely and unseemly

attempt to attack the Ecuadorian forum that Chevron chose seven years ago. If

Chevron has complaints about the Ecuadorian Court’s expert team, Chevron

should lodge those complaints in Ecuador. But the true purpose of this application

7 “Believe me, if this were the High Court in London, I’d wait [for the ruling from the foreign court].” Id. 8 SPA-8 & n.22, 30. 9 SPA-18. Cf. In re Microsoft Corp., 428 F.Supp.2d 188, 196 (S.D.N.Y. 2006) (burden analysis is not limited solely to size of production, but to other interests such as protecting confidentiality).


5

is not to “aid” the Ecuadorian Court at all. It is part of a global campaign by one of

the world’s largest oil companies to undermine a Court that it believes will hold it

accountable for outrageous conduct that continues to devastate the lives of

thousands of indigenous people.

The petition should be denied.

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

(the “Order”) dated May 10, 2010. Timely notice of appeal by the Lago Agrio

appellants was filed on May 18, 2010.

STATEMENT OF THE ISSUES

1. Does the unprecedented Order to seize 600 hours of outtakes, the

greatest seizure of outtakes in American history, violate Gonzales and the

journalist’s privilege?

2. Does the Order’s failure to address or acknowledge the burdens on

journalists caused by the production of non-confidential outtakes violate Gonzales

and the journalist’s privilege?


6

3. Does the Order, which undermines the comity concerns at the heart of

§ 1782, circumvents the Ecuadorian Court, imposes an undue burden on Berlinger,

grants an untimely application, and gives undue credit to the Chevron parties’

flimsy and highly speculative allegations, violate Intel Corp. v. Advanced Micro

Devices, Inc., 542 U.S. 241 (2004)?

4. Does the Order improperly rely on the BIT arbitration, which this

Court may enjoin this summer in a separate appeal and which in any event is not a

“foreign tribunal” within § 1782?

STATEMENT OF THE CASE10

Chevron’s Destruction of the Amazonian Rainforest

From 1964 to 1992, Chevron owned an interest in an approximately

1,500 square-mile concession in Ecuador that contained numerous oil fields and

more than 350 well sites. A-633-34 ¶ 13.11 Beginning in 1964 and continuing at

least until June 30, 1990—when it ceased being operator of the concession area—

Chevron engineered and presided over what some experts believe is the worst oil-

related environmental disaster in the world. It deliberately dumped many billions

of gallons of waste byproduct from oil drilling directly into the rivers and streams

of the rainforest covering an area roughly the size of Rhode Island. It gouged more

10 For a cogent summary of the history of this epic case, see A-764. 11 For a fuller description of Chevron’s conduct in the Amazon, see A-630-36, ¶¶ 1-3, 13-18.


7

than 900 unlined waste pits out of the jungle floor—pits which to this day leach

toxic waste into soils and groundwater. It burned hundreds of millions of cubic

feet of gas and waste oil into the atmosphere, poisoning the air and creating “black

rain” which inundated the area during tropical thunderstorms. Chevron discharged

into Ecuador’s Amazon rainforest many more times the amount of oil spilled by

the Exxon Valdez. But unlike that disaster, which was an accident, Chevron

planned the dumping in Ecuador to cut costs. In the impacted area of Ecuador

today, due to the legacy created by Chevron, the natural environment of the

Amazon rainforest on which thousands of people depend for their daily sustenance

is for the most part poisoned. Id.

To minimize production costs, Chevron built an oil extraction system

that was designed to pollute. First, it discharged billions of gallons of “production

water” (the contaminated waste water that is mixed with crude oil as it comes out

of the ground) into streams and rivers—four million gallons per day at the height

of the operation. At Chevron’s oil production facilities, the “formation water” was

separated from the crude and discharged onto the ground and into the surface

waters on a continuous basis, 24 hours per day, seven days per week, over a period

of decades. A-634 ¶ 14.

Second, Chevron built some 916 open-air toxic waste pits in and

around its well sites. Chevron cut these pits directly into the floor of the jungle,


8

and they had no lining to prevent their contents from migrating into the soil and

groundwater. To the contrary, Chevron designed the waste pits to flow into

neighboring streams and rivers. (An example of this is found in Crude at 36:45).

Chevron filled the waste pits with “drilling muds” and waste crude oil and then

used them for permanent storage in violation of established industry standards.12

Chevron built many of its pits with piping systems used to drain these oil

byproducts into nearby streams and rivers. Chevron would also set the pits on fire.

In addition, the company regularly dumped the oil sludge from the waste pits along

dirt roads in the region. A-635 ¶ 16.

Chevron’s operation was grossly substandard by any measure: it

violated, inter alia, then-current U.S. industry standards, Ecuadorian

environmental law, the company’s contract with Ecuador’s government—which

prohibited Chevron from using production methods that contaminated the

environment—and international law. Even Chevron’s own internal audits of its

environmental impacts, conducted in the early 1990s by independent outside

consultants and placed in evidence in the Lago Agrio trial, found extensive

contamination at Chevron’s oil production facilities. Consistent with its willful

neglect of Ecuador’s Amazon and the people who lived there, Chevron also

12 “Drilling muds” are a combination of lubricants and heavy metals, which are combined with the waste oil and formation waters that are the end by-products of the well perforation and maintenance process. A-635 ¶ 16.


9

engaged in deliberate malfeasance: a 1972 memo from R.C. Shields, then head of

Latin American production for Chevron, issued a blunt directive to Chevron’s

acting manager in Ecuador to destroy previous reports of oil spills and to forego

documenting future spills in writing unless they were already known to the press or

regulatory authorities. A-635-36 ¶ 17, 759.

Plaintiffs File in the Southern District, but Chevron Successfully Moves to Transfer the Litigation to Ecuador, Because “the Evidence is in Ecuador”

In 1993, the Amazon communities filed a federal class-action lawsuit

against Chevron in the Southern District of New York, the site of Chevron’s global

headquarters. 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.”

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

From the lawsuit’s inception, and for nine years, Chevron did

everything it could to transfer the case away from the Southern District to the

courts of Ecuador.13 Chevron’s motion on forum non conveniens and international

comity grounds rested on two principal grounds: first, that the Ecuadorian courts

13 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 Aguinda v. Texaco, 303 F.3d 470, 476 (2d Cir. 2002).


10

provided an adequate, fair, and neutral forum, comparable to those “in many

European nations,” A-687; second, that the evidence and the witnesses were in

Ecuador.

For nine years, Chevron touted the Ecuadorian judicial system,

submitting numerous affidavits from experts and its own counsel, and repeating

these assertions in extensive briefing. See, e.g., A-687 (“Ecuadorian legal norms

are similar to those in many European nations.”);14 A-603-606 ¶ 2 (“the courts in

Ecuador . . . represent a totally adequate forum”), ¶¶ 5-7;15 A-607 ¶ 7 (“the

Ecuadorian courts provide an adequate forum for claims such as those asserted by

the plaintiffs”);16 A-654 (“Ecuador’s judicial system provides a fair and adequate

alternative forum”);17 A-655 (“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-613-619;18 A-624-627;19 A-669.20

14 Brief for ChevronTexaco, Inc., U.S. Court of Appeals for the Second Circuit dated December 20, 2001. 15 Affidavit of Dr. Alejandro Ponce Martinez dated February 9, 2000. 16 Affidavit of Texaco attorney Dr. Rodrigo Perez Pallares dated December 1, 1995. 17 Texaco Inc.’s Memorandum of Law in Support of Its Renewed Motions to Dismiss Based on Forum Non Conveniens and International Comity, dated January 11, 1999. 18 Affidavit of Dr. Enrique Ponce y Carbo dated December 7, 1995. 19 Affidavit of Dr. Vicente Bermeo Lanas dated December 11, 1995.


11

Chevron also argued repeatedly that the case did not belong in the

Southern District, because the evidence and the witnesses were in Ecuador. See,

e.g., A 658-662, 716-19. As ChevronTexaco put it, “[t]he evidence is in Ecuador,”

A-722, a position with which the Second Circuit ultimately agreed. Aguinda v.

Texaco, 303 F.3d 470, 476 (2d Cir. 2002).

The Trial in Ecuador Reveals Overwhelming Evidence of Chevron’s Liability and Plaintiffs’ Damages

After final dismissal of the Aguinda action in 2002, the same plaintiffs

re-filed the case in Lago Agrio, Ecuador. The case began in 2003. It has been

highly contested and vigorously defended by Chevron. The record contains more

than 200,000 pages of evidence, roughly 63,000 chemical sampling results

produced by laboratories contracted by both parties and the court expert, testimony

from dozens of witnesses, and dozens of judicial field inspections of former

Chevron well and production sites conducted over a five-year period under the

auspices of the court. A-1628 ¶ 3. Soil samples from the production wells and

separation stations inspected reveal extensive contamination in violation of

Ecuadorian law. A-640-41 ¶ 28.

After over seven years of the Lago Agrio litigation, the evidentiary

20 Texaco Inc.’s Reply Memorandum of Law in Support of Its Renewed Motions to Dismiss Based on Forum Non Conveniens and International Comity dated January 25, 1999.


12

phase of the trial has ended. A-1629 ¶ 5.

Chevron Files a Private Arbitration to Avoid Its Chosen Forum of Ecuador

Realizing that the evidence in Ecuador will likely lead to a judgment,

Chevron has taken a new tack: to defeat the Ecuadorian jurisdiction it sought for

nine years in the United States. Faced with overwhelming evidence of liability,

Chevron in 2007 promised the plaintiffs in the Lago Agrio action a “lifetime” of

appellate and collateral litigation if they persisted in pursuing their claims. A-724.

Or as a Chevron spokesperson recently said, the company would “fight” the Lago

Agrio case “until hell freezes over” and then “fight it out on the ice.” A-727.

Chevron is making good on its threat of a lifetime of litigation. Given

the overwhelming evidence before the Court in its chosen forum of Ecuador,

Chevron has pursued a multi-prong strategy to undermine the Ecuadorian

proceedings. First, on September 23, 2009, Chevron purported to file a “notice of

arbitration” pursuant to the U.S.-Ecuador Bilateral Investment Treaty (“BIT”). A-

645, 729. In a private venue where plaintiffs cannot even appear in the

proceedings, Chevron has asked the arbitrators to resolve the very claims of

plaintiffs pending in the Ecuador court. Chevron has asked the panel simply to

order the government of Ecuador to tell the judge to dismiss the Lago Agrio

litigation. A-748 ¶ 76(3). In short, Chevron is seeking an order from the arbitral

panel requiring that the Republic’s President violate Ecuador’s Constitution,


13

interfere in the country’s independent judiciary, and quash a trial brought by

Ecuadorian citizens against Chevron in the very court in which Chevron sought to

have the claims heard. Id.

Plaintiffs moved to stay the BIT arbitration in the Southern District of

New York. A-628. Judge Sand dismissed the complaint and the matter is

currently on expedited appeal before this Court. A-1685-1733. Oral argument is

scheduled as early as the week of July 19. Case No. 10-1020, Dkt. # 66. Should

this Court enjoin Chevron’s participation in the BIT, a principal basis for this §

1782 petition will no longer exist. See infra §§ II(C), IV.

Chevron Files a Series of § 1782 Lawsuits Throughout the United States

As part of its global strategy to delay the case ad infinitum and avoid

any Ecuadorian judgment, Chevron has also in recent months filed a series of ex

parte § 1782 petitions. These actions seek vast amounts of discovery throughout

the United States (so far, in district courts in Georgia, Texas, Colorado, New York,

New Jersey, California, and the District of Columbia),21 from inter alia, plaintiffs’

consulting experts, and most recently in the District of Columbia, from one of

21 Chevron Corporation v. Stratus Consulting, Inc., Index No. 10-cv-00047 (D. Co.); In re Application of Chevron Corporation, Index No. 10-371 (D.D.C.); In re Application of Chevron Corporation, Index No. 10-cv-02675 (D. N.J.); In re Application of Chevron Corporation, Index No. 10-MI-0076 (N.D. Ga.); In re Application of Chevron Corporation, Index No. 10-cv-01146 (S.D. Ca.); In re Application of Chevron Corporation, Index No. M-19-111 (S.D.N.Y.); In re Application of Chevron Corporation, Index No. H-10-134 (S.D.Tex.).


14

plaintiffs’ lawyers. In an about-face from its previous litigation position of nine

years, Chevron now argues that it needs discovery in the United States, not

Ecuador. Notwithstanding that the evidentiary phase of the trial ended in Ecuador,

notwithstanding that Chevron failed to seek any of the discovery sought in any of

the § 1782 actions in Ecuador, and notwithstanding a massive trial record in

Ecuador, Chevron seeks at this late date essentially to begin a new round of

American discovery in an end-run around a seven-year litigation in a foreign

nation.

Largely because of the ex parte nature of the proceedings, neither the

Court in Georgia or Colorado issued a § 1782 ruling in a contested proceeding.22

In Texas, the court held that Chevron’s application was substantially overbroad,

ordered a foundational deposition limited to two questions, then stayed its ruling

and any discovery pending appeal.23 The California and District of Columbia

District Courts have yet to rule on Chevron’s applications, and a preliminary order

from the New Jersey court is pending.24

22 In Georgia, Chevron provided no formal notice to plaintiffs and the application was ex parte. A-221. In Colorado, Judge Kane provisionally granted Chevron the right to serve the subpoenas, but stated that “It is not necessary at this time to rule on the merits of any potential opposition,” pending a future motion to quash. A-217:1-2. 23 In re Chevron, Index No. H-10-134 (S.D.Tex.), Dkt. # 57, 66. 24 Chevron has burdened the Court with a series of exhibits that have no relevance to this application, but exist only to try to taint the plaintiffs, including the entire ex parte deposition in Georgia of a disgruntled, unpaid, former minor expert for


15

The Chevron Supporters

In this particular § 1782 petition, Chevron has rather inventively added as

petitioners two Chevron supporters, Chevron lawyers who have represented

Chevron in the Ecuador case, Messrs. Perez and Reis Veiga. Along with ten

former employees of PetroEcuador and the Ecuadorian government, these two

Chevron lawyers have been the subject of a criminal investigation in Ecuador

arising from their official certifications of a sham remediation performed by

Chevron allegedly to clean up a few of their toxic waste pits, pursuant to an

agreement with the Republic of Ecuador. A-1774 ¶¶ 79-80. The criminal

investigation dates back to an audit by the Comptroller General that predated the

filing of the Lago Agrio case in Ecuador. A-1775. The investigation has involved

an interplay between various Comptrollers General, the Prosecutor General, and

the Supreme Court, A-1777-86, during which time the prosecutor dismissed some

claims, A-1777 ¶ 83, and pursued a thorough investigation, A-1782-86 ¶¶ 90, 93-

94, ultimately resulting in an imputacion (indictment) on some of the charges.

plaintiffs in Ecuador (Charles Calmbacher, A-233), whose memory of events is, to put it charitably, questionable, and two orders from a different proceeding in California involving separate plaintiffs (A-480, 501). Submissions of these exhibits is little more than an attempt to distract the Court from the weakness of Chevron’s underlying application.


16

The Chevron lawyers face no imminent threat to their liberty. They

live in Miami, Florida, and Mr. Veiga was in London shortly after the imputacion

participating in the BIT arbitration. A-1766. There is no indication that the

prosecutors have decided to initiate extradition proceedings in the United States.

The Making of Crude

Crude is a documentary film created by filmmaker Joe Berlinger

about Chevron’s oil operations in Ecuador and the Lago Agrio litigation. A-579 ¶

14. Berlinger filmed, inter alia, attorneys for Chevron, attorneys for plaintiffs, and

members of the community affected by the oil disaster. A-579 ¶ 15. Berlinger has

“produced several films about ongoing lawsuits,” and prior to Crude, had a history

of protecting his raw footage from any third-party, including litigants. A-583 ¶¶

23-24. Berlinger’s ability to control his own footage was critical to his ability to

make Crude: “[W]hen [plaintiffs’ counsel Steven] Donziger was considering the

level of access to grant me, I was able to encourage him to trust me, in part, by

explaining that I had a history of successfully fighting against third-party attempts

to obtain access to raw footage.” A-584-85 ¶ 28. As Berlinger has testified, “If the

subjects of my films believed that the raw footage, as opposed to a release of

footage as part of the overall story told by me, would be handed over to third-

parties and potentially taken out of context (especially by their adversaries in the

lawsuit), they would be far less inclined to trust me and allow me to film them.


17

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.” A-585 ¶ 30.

Crude is Released in January 2009, and Seen and Approved by Chevron

The film was publicly released in January 2009, and played

throughout the United States. A-582 ¶ 18. Berlinger invited Chevron to see the

film, and they did: “Chevron’s PR representative reviewed the film on behalf of

Chevron and told me that he thought the film was fair and balanced.” A-586-87 ¶

33. It is undisputed that every scene that is the purported basis for this April 2010

§ 1782 petition was in the publicly-released January 2009 film.

Crude is Devastating to Chevron

Crude was applauded for its evenhanded treatment of the Lago Agrio

case, A-580-81, but no documentary of Chevron’s activities in Ecuador could fail

to expose the extraordinary devastation caused by Chevron in the Amazon.

Indeed, through the words of the victims and the film of the toxic waste pits and

polluted streams and rivers, Crude did expose Chevron’s unconscionable conduct

that has destroyed the lives of the people of the region. See, e.g., Crude at 9:30

(“My first son stopped developing six months after being born. My second son,

one day we were walking to the beach and the river had oil in it and my child


18

bathed and drank the water. We came back home in the afternoon and he started

vomiting blood. He didn’t last 24 hours. One day he got sick at 10am and the next

day at 2 in the afternoon he was dead. They came and spilled oil, contaminated the

river and my children died.”); Crude at 28:50-31:55 (“Two of us in the same

family suffer from cancer. My daughter was diagnosed 9 months ago. . . . I say the

cancer is caused by the contamination because we live about 10 meters away from

the production station. The water is contaminated. The air is contaminated. . . .

First, I had the problem and now my daughter, who is so young to have a disease

such as cancer. . . . The animals drink that water and die and there’s nothing you

can do about it, and that’s why we say there is no life here for the animals, and it’s

even worse for us humans.”); Crude at 36:45-38:50 (film of Chevron toxic pit

designed with pipes to overflow into rivers and streams); Crude at 45:10-47:00

(film of diseased children exposed to oil pollution); Crude at 1:14:00 (Chevron

spokesperson comparing asphalt on American roads to oil disaster in Ecuador);

Crude at 1:19:00.

The Few Minutes in Crude that Form the Alleged Basis for the § 1782 Petition

The Chevron parties focus on three scenes—just a few minutes in the

film—as a basis for their demand for 600 hours of raw footage.

i. Chevron’s Improper Ex Parte Application in Quito

“Chevron’s lawyers and representatives have a long history of


19

attempting to bypass the authority of the Lago Agrio court.” A-1629 ¶ 4. In 2005,

Chevron made an improper ex parte application to a judge in Quito who was not

presiding on the underlying case, to obtain an order to enter laboratories used by

experts for the plaintiffs. Id. Consistent with its improper conduct in the Lago

Agrio litigation, Chevron made the application to the wrong court and it did so

secretly. Id. This reflects Chevron’s repeated history of making secret, ex parte

applications in this case both in Ecuador and in the United States, including in

Georgia, Texas, Colorado, and in this case in New York.25

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,

Steven Donziger, a lawyer for the plaintiffs, discusses Chevron’s prior improper

application, then states that plaintiffs are going to ask the court to rescind its prior

ex parte order. Mr. Donziger states: “This is something you would never do in the

United States. But Ecuador, you know, this is how the game is played, it’s dirty.

We have to occasionally use pressure tactics to neutralize their [Chevron’s]

25 The-then Part 1 Judge in this case, Judge Koeltl, rebuffed Chevron’s secret application and ordered Chevron to serve plaintiffs pursuant to a briefing schedule. A-1803-04. When Chevron does not make secret, ex parte applications, it files applications with inadequate notice to plaintiffs. For example, just last week Chevron rather cynically gave plaintiffs’ counsel in New York City “notice” of an over 500-page § 1782 application it intended to bring in Washington, D.C., 90 minutes later. Needless to say, counsel was unable to appear at the Court proceeding, which Chevron conducted without plaintiffs.


20

corruption.” Crude at 39:50. Plaintiffs then made the application, in full view of a

number of television cameras (not just Berlinger’s), and the court reversed the

prior ex parte order, notwithstanding further colloquy with Chevron’s counsel. Id.

Mr. Donziger’s comment—“This is something you would never do in

the United States”—is, of course, quite ironic, given Chevron’s repeated ex parte

conduct in the United States, including in this case, and its deliberate filing of

lengthy petitions in the United States while giving plaintiffs’ counsel insufficient

notice even to get to court. See supra n.25.

ii. Lobbying Efforts by Chevron

Throughout this case, Chevron has tried to exert its extraordinary

political and financial power to improperly engineer a favorable result in the

litigation. Once it became clear that the Ecuadorian court was sufficiently

independent to resist Chevron’s attempts to engineer a favorable result, the

company launched an aggressive lobbying campaign in both Ecuador and the

United States, attempting to curry favor with the Ecuadorian government,

including the President. In Chevron’s counsel’s words: “For four decades,

Texaco’s, and now Chevron’s, representatives have met regularly with

representatives of the Republic to discuss various matters between the Company

and the Republic. As new administrations have come to power in Ecuador from

time to time, Texaco and Chevron representatives have always made efforts to


21

meet with government officials, including the President if possible. . . .” A-762.

Chevron thought nothing wrong with lobbying the Ecuadorian government and

President during this litigation: “[I]t is clear under Ecuadorian law, just as it is

under the laws of the United States, that individuals and corporate representatives

have the right to meet with representatives of governments—even if the parties are

engaged in litigation on one issue or another.” Id.

Chevron has also lobbied extensively in the United States, going so

far as to pressure Congress to impose trade sanctions on the Republic of Ecuador if

the Ecuadorian government did not “quash the [Lago Agrio] case.” A-1801.

Members of Congress have referred to these strong-arm tactics as “extortion.” Id.;

see A-1802 (“Chevron has engaged in a lobbying effort that looks like little more

than extortion. Apparently, if it can’t get the outcome it wants from the

Ecuadorian court system, Chevron will use the U.S. government to deny trade

benefits until Ecuador cries uncle.”); Kenneth Vogel, Chevron’s Lobbying

Campaign Backfires, POLITICO, Nov. 16, 2009, available at

http://www.politico.com/news/stories/1109/29560.html (Chevron spokesman: “If

we were able to call a timeout and make the lawsuit disappear, then this entire

issue disappears.”).

Apparently to Chevron’s dismay, Crude includes a scene where, for

once, community leaders from the Amazon and their legal representatives


22

persuaded President Correa to visit one of the toxic waste pits left by Chevron.

Crude at 1:02:45. Like President Obama in the BP disaster, President Correa

spoke out concerning the ChevronTexaco disaster. Crude at 1:05:00 (“The world

needs to know about this. How many times bigger than the Exxon Valdez? 30

times more damage, but the Exxon Valdez was in the United States so this doesn’t

matter.”); cf., 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’”).

Before the district court, and notwithstanding its own four-decade

lobbying effort, Chevron now cites the invitation by the plaintiffs to Ecuador’s

President to visit the zone of a catastrophic environmental disaster as some form of

improper contact meriting the seizure of 600 hours of raw footage from Berlinger.

iii. Meeting at Which Dr. Beristain is Present

Finally, as the apparent centerpiece of its entire application, Chevron

pointed below to a scene in which Dr. Beristain, one of a number of people who

later joined the team of court expert Richard Cabrera, appeared in a meeting of

indigenous people affected by Chevron’s actions in the Amazon. This scene was

edited in the later DVD version of Crude (as plaintiffs freely admit, at counsel’s


23

request), to avoid the misimpression, cynically fostered by Chevron below, that

plaintiffs participated in one of Dr. Beristain’s focus groups after he was a court

expert. But in fact he was not an expert at the time at all. A 585-86 ¶¶ 31-32;

Crude at 1:15:00.

These three scenes in Ecuador—in which plaintiffs’ counsel attempts

to counter an improper ex parte application by Chevron, A-1629 ¶ 4; invites the

President of Ecuador to visit the site of the world’s worst oil-related contamination,

cf. A-762, 1801-02; and appears at a meeting with an individual working for an

NGO who later became involved as an aide to an expert in the case—are the flimsy

basis for Chevron’s application to seize an astonishing 600 hours of raw footage

from Mr. Berlinger.

Crude Does not Concern the Criminal Case

Perhaps recognizing the weakness of its own application, Chevron has

in this case recruited two of its attorneys to serve as “stalking horses” for the

company. In this role, they have filed a parallel application for the very same 600

hours of footage. But their application is even further afield than Chevron’s. First,

in a sworn statement, Mr. Berlinger testified that “the unpublished footage contains

no material regarding the criminal prosecutions in general or specifically the

prosecutions against Messrs. Perez and Reis Veiga.” A-587 ¶ 35. This is

undisputed and was unrebutted below. Mr. Berlinger’s sworn statement is


24

consistent with Crude itself. On its face, Crude does not concern the criminal case

at all. See Crude. This is also beyond dispute.

The Chevron supporters below did not point to even one scene in

Crude as a basis for this application. Indeed, the only passing reference to a

criminal proceeding against anyone is the reaction of Mr. Donziger to a statement

by President Correa to the country that an investigation would be opened vis-à-vis

employees of Ecuadorian government.26

This statement, a reaction by an attorney to a public statement by a

public figure, has now become the linchpin of the Chevron supporters’ claim that

600 hours of raw footage might contain something relevant to their criminal case.

26 Crude at 1:05:30 (“Correa just said that anyone in the Ecuadorian government who approved the so-called remediation is now going to be subject to litigation in Ecuador. Those guys are shitting in their pants right now.”).


25

The Chevron Parties Wait 15 Months to Bring This Application

Although the film was publicly released in January 2009 and Chevron

saw and even approved of the film in early 2009, the Chevron parties waited 15

months to bring this application. A-19, 150.

Prior to this petition, to plaintiffs’ knowledge, Chevron failed to make

these flimsy allegations or present this alleged evidence of “wrongdoing” to the

Ecuadorian Court. Instead, after successfully evading American justice for nine

years, Chevron now runs back to the United States to seek evidence to attack the

Lago Agrio court that it chose.

The Lago Agrio Court’s Pending Decision Concerning Its Receptivity to § 1782 Evidence

On April 9, 2010, plaintiffs filed an application with the Lago Agrio

Court, requesting a ruling from the Court concerning its receptivity to evidence

gathered in Chevron’s various § 1782 applications around the United States. A-

751. The Ecuadorian Court’s ruling has not been issued, but its decision will

reveal whether it is receptive to evidence from the these § 1782 actions.27

27 Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 262 (2004) (The purpose of § 1782 is to “assist foreign tribunals in obtaining relevant information that the tribunal may find useful.”) (emphasis added).


26

The District Court’s Order

On April 9, 2010, the Chevron parties brought a secret § 1782

application in the Southern District, requesting ex parte relief. A-15-19, 147-50.

The-then Part 1 Judge, Judge Koeltl, rejected the request, instead ordering the

Chevron parties to serve counsel and setting a briefing schedule (later amended by

Judge Kaplan). A-1803-04.

After briefing and oral argument, the district court issued its Order.

The court began by, sua sponte, going outside the record to discuss the “socialist”

government of President Correa, from sources such as www.marketwatch.com, and

a biography of Mr. Correa. SPA-7-8 & nn. 17, 18, 19, 22. After performing this

extemporaneous research, reflecting the court’s apparent distaste for President

Correa, the Order inaccurately discusses the three short scenes that are the basis for

Chevron’s application. SPA 10-11.

The Order first recites that “Plaintiffs’ Counsel Meets with Expert

Witness,” SPA 10, ignoring that Mr. Beristain was not an expert witness when

plaintiffs’ counsel appeared at the meeting. Cf. A-585-86 ¶¶ 31-32; Crude at

1:15:18. The Order inexplicably fails to address Mr. Berlinger’s declaration or the

film itself, both of which make clear that Mr. Beristain was not an expert at the


27

time of the meeting.28

The Order then mistakenly describes counsel’s application in Quito as

an “interfer[ence] with Judicial Inspection,” SPA-10, notwithstanding the

unrebutted sworn testimony demonstrating that it was Chevron that had improperly

interfered with the judiciary. A-1629 ¶ 4. Without addressing Berlinger’s sworn

declaration, id., the Order simply adopts Chevron’s (unsworn) and completely false

description of the proceeding. SPA-10.

Ignoring Chevron’s lobbying efforts over four decades, A-762, 1801-

02, including its “efforts to meet . . . the President if possible,” A-762, the Order

finally describes plaintiffs’ counsel’s invitation to President Correa to visit one of

the toxic waste pits. The Order also recites Mr. Donziger’s colorful reaction to the

President’s public statement concerning the opening of an investigation into

Ecuadorian officials who approved the remediation of the toxic pits. SPA-10.

In the discussion section, the district court relied on dictum in Intel for

the proposition that private arbitrations are “foreign tribunals” within § 1782,

notwithstanding this Court’s holding to the contrary in NBC v. Bear Stearns & Co.,

Inc., 165 F.3d 184 (2d Cir. 1999). The district court flatly ignored a pending

motion before the Ecuadorian court concerning its receptivity to Chevron’s § 1782

28 This appeal comes to the Court on a cold record. The district court’s inadequate and at times inaccurate recitation of the record (now fully before this Court) is entitled to no deference.


28

discovery, A-751, SPA-16-17, because, in the court’s words, the Lago Agrio Court

is not “the High Court in London.” A-1572 at 36:9-10; id. (“Believe me, if this

were the High Court in London, I’d wait [for the ruling from the foreign court].”).

The district court also discounted entirely the “burden” Intel factor,

SPA-18, refusing to “credit” (notwithstanding an undisputed, unrebutted

declaration from Berlinger, A-585 ¶ 30) any assertion of burden at all on Berlinger.

Missing from the court’s analysis is any discussion or acknowledgement of

Berlinger’s declaration. Also missing is any recognition that the compelled

production of non-confidential raw footage places heavy burdens on journalists.

Compare SPA-18 (failing to recognize any burden on Berlinger or “any other film

maker” for production of non-confidential outtakes), with Gonzales v. National

Broadcasting Co., Inc., 194 F.3d 29, 35 (2d Cir. 1999) (in the context of non-

confidential information, expressing concerns, inter alia, of “wholesale exposure

of press files to litigant scrutiny,” the “heavy costs of subpoena compliance,” fear

that “potential sources [might be] deterred from speaking to the press,” perverse

“[i]ncentives . . . for press entities to clean out files containing potentially valuable

information,” and “the symbolic harm of making journalists appear to be an

investigative arm of the judicial system, the government, or private parties.”).

In the journalist’s privilege section, the Order again (inaccurately)

recites the three short scenes in Crude, then makes an extraordinary leap from


29

these few minutes of film to an order requiring the seizure of an unprecedented 600

hours of footage. SPA-24-27.

Finally, in a perfunctory section devoted to the criminal proceedings,

and without citing to even a single scene in Crude, the Order holds that all 600

hours of footage are likely relevant to the criminal case as well. SPA-27. The

Order fails to cite Berlinger’s sworn declaration that “the unpublished footage

contains no material regarding the criminal prosecutions in general or specifically

the prosecutions against Messrs. Perez and Reis Veiga,” A-587 ¶ 35, which alone

should have ended the Chevron supporters’ petition. The Order also fails to

address the obvious point that, on its face, Crude does not concern the criminal

case at all. See Crude.

Procedural History

Following the May 10 Order, the Chevron parties served subpoenas

on Berlinger on May 13, returnable May 21. On May 14, the Lago Agrio plaintiffs

and Berlinger each moved by order to show cause before the district court to stay

the Order pending appeal. Over appellants’ objections, the district court refused to

schedule the return date until the afternoon of May 19, two days before the return

date of the subpoenas. On May 19, the parties had oral argument before the court,

which said it would issue a ruling “soon.” On May 20, appellants moved for a stay

pending appeal before this Court. A-1681-82 ¶ 2. Later that day, the district court


30

denied appellants’ motion for a stay pending appeal, and granted only ten days for

this Court to rule on appellants’ stay application. On May 21, Judge Chin granted

a stay pending the resolution of the motion for a stay before this Court, and set

argument for June 8. Dkt. # 51. On June 8, a panel of Judges Winter, Hall and

Cedarbaum (sitting by designation) overruled the district court and granted

appellants’ application for a stay pending appeal. Dkt. # 187.

SUMMARY OF THE ARGUMENT

The untethered, unprecedented Order compelling the greatest seizure

of outtakes in American history violates the journalist’s privilege. The Order’s

complete failure to acknowledge or address the burden created by the compelled

production of non-confidential outtakes is also fundamentally at odds with

Gonzales. The Order also fails to acknowledge Berlinger’s sworn statement

removing any good faith basis for the Chevron supporters’ application, as well as

the subject matter of Crude itself, which has nothing to do with the criminal case.

The petition also fails under Intel. The substantial burden the petition

places on Berlinger, Chevron’s complete failure to seek relief from the Ecuadorian

Court, the untimely nature of the application, Chevron’s own choice of the

Ecuadorian forum, the comity concerns undermined by the petition, and the flimsy

nature of Chevron’s highly speculative allegations all weigh heavily against this

diversionary fishing expedition.


31

Finally, the BIT proceeding is not a basis for the petition: it may be

enjoined by this Court this summer and, in any event, is not a “foreign tribunal”

within § 1782.

ARGUMENT

THE CHEVRON PARTIES’ SECTION 1782 APPLICATION SHOULD BE DENIED

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). Rather, “district courts must exercise their

discretion under § 1782 in light of the twin aims of the statute.” Id. at 84

(emphasis added).


32

I. Legal Framework

Section 1782 provides in relevant 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.

28 U.S.C.A. § 1782(a). A § 1782 application may not be granted unless “(1) the

person from whom discovery is sought reside[s] (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.” Schmitz, 376 F.3d at 83-84.

If the petitioner meets these gateway requirements, the petitioner must

then convince the court to exercise its discretion to grant the discovery. Id. “This

discretion, however, is not boundless.” Id. at 84. Rather, “district courts must

exercise their discretion under § 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.” Id. (internal quotation marks omitted; emphasis


33

added). As the Supreme Court has held, the purpose of § 1782 is to “assist foreign

tribunals in obtaining relevant information that the tribunal may find useful.”

Intel, 542 U.S. at 262 (emphasis added). Given the comity concerns at the heart of

the statute, this Court has also emphasized the importance of the foreign court’s

receptivity to the evidence in determining whether to grant a § 1782 petition.

Schmitz, 376 F.3d at 84 (leaning heavily on statements of German government in

dismissing § 1782 petition).

The Supreme Court has identified four factors to assist district courts

in determining whether to grant § 1782 applications:

(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 a 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).


34

In addition, irrespective of these factors, “[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.” 28 U.S.C.A. § 1782. The

legislative history of the statute is equally plain: “[N]o person shall be required

under the provisions of [§ 1782] to produce any evidence in violation of an

applicable privilege.” S.Rep. No. 1580, at 9, U.S. Code Cong. & Admin.News

1964, pp. 3782, 3789-90 (emphasis added). The Supreme Court has also

emphasized the importance of not abusing § 1782 to discover privileged

information. “We . . . count it significant, that § 1782(a) expressly shields

privileged material.” Intel, 542 U.S. at 260.

The Chevron parties’ application should be rejected for three

independent reasons: (1) the district court misapplied the Intel factors, which

weigh heavily against the application; (2) the application violates the journalist’s

privilege, and therefore fails under § 1782; and (3) to the extent Chevron’s

application concerns the BIT, it fails as a matter of law, because under Second

Circuit case law, the BIT is not a “foreign or international tribunal” within § 1782,

and in any event, this Court may enjoin Chevron’s participation in the arbitration

in a separate appeal to be heard this summer.

The Chevron supporters’ application should be rejected for the

additional reason that Crude plainly has nothing to do with the criminal case.


35

II. The Intel Factors Weigh Heavily Against the Chevron Parties

Although it is unlikely that Berlinger is within Ecuador’s

jurisdictional reach, this factor is substantially outweighed by the remaining three

Intel factors.

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.

Even if the § 1782 application did not violate the journalist’s privilege

(and it does, see infra, at § III), the forced production of 600 hours of raw footage

by this well-known documentary filmmaker is highly “intrusive and burdensome.”

28 U.S.C. § 1782. This factor weighs heavily against the Chevron parties; indeed,

it is all but dispositive.

The question is not merely how long it would take to produce

documents and information, but 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. .


36

. . 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.”).

In the district court’s view, the forced production of non-confidential

footage places no burden at all on journalists. SPA-18. That view is wrong as a

matter of law. This Court has eloquently set forth the heavy burden placed on

journalists forced to produce non-confidential materials:

[W]holesale exposure of press files to litigant scrutiny would burden the press with heavy costs of subpoena compliance, and could otherwise impair its ability to perform its duties—particularly if potential sources were deterred from speaking to the press, or insisted on remaining anonymous, because of the likelihood that they would be sucked into litigation. Incentives would also arise for press entities to clean out files containing potentially valuable information lest they incur substantial costs in the event of future subpoenas. And permitting litigants unrestricted, court-enforced access to journalistic resources would risk the symbolic harm of making journalists appear to be an investigative arm of the judicial system, the government, or private parties.

Gonzales, 194 F.3d at 35. In its perfunctory discussion of burden, the Order

simply fails to acknowledge any of these burdens set forth in Gonzales. SPA-18.

This case is a perfect illustration of the burdens imposed by the

seizure of non-confidential outtakes. Berlinger testified that, “[i]f the subjects of

my films believed that the raw footage, as opposed to a release of footage as part of

the overall story told by me, would be handed over to third-parties and potentially

taken out of context (especially by their adversaries in the lawsuit), they would be


37

far less inclined 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.”

A-585 ¶ 30. Here, Berlinger actually convinced Donziger to grant him access and

trust him “by explaining that [he] had a history of successfully fighting against

third-party attempts to obtain access to raw footage.” A-584-85 ¶ 28.

The record is plain: seizure of the footage threatens to place a great

burden on Berlinger, and his ability to get access to and document the sorts of

events that make for important documentaries. If a documentary filmmaker such

as Mr. Berlinger has no confidence that his outtakes will be protected, he would

not get the access necessary to make Crude, and a great tragedy such as Chevron’s

destruction of the Amazon would not and could not receive the attention it

deserves. Chevron’s application thus has the (no doubt intended) effect of

silencing critics of Chevron, and more broadly, any documentary filmmaking of

corporate or other wrongdoing. No doubt Chevron will next seek the outtakes of

Mr. Donziger’s interview with 60 Minutes,29 and his other interviews with news

organizations in the United States, to pursue this fishing expedition of anything and

everything allegedly wrong with the Lago Agrio litigation. As interpreted by

Chevron, the Intel factors would authorize such discovery as well.

29 http://www.cbsnews.com/stories/2009/05/01/60minutes/main4983549.shtml


38

Whether or not the privilege applies, the startlingly intrusive nature of

this weak application alone 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 Pending before the Lago Agrio Court is an April 9 application

requesting a ruling concerning the Court’s receptivity to evidence gathered in

Chevron’s various § 1782 applications around the United States. A-751. The

Ecuadorian’s Court’s ruling, which has not been issued, will be the best evidence

concerning the Court’s “receptivity” to the § 1782 discovery sought here.

Schmitz, 376 F.3d at 84 (leaning heavily on statements of German government in

dismissing § 1782 petition); In re Microsoft, 428 F.Supp.2d 188, 194 (S.D.N.Y.

2006) (leaning heavily on opposition to discovery request by the EU

Commission).30

Plaintiffs are unaware of any case where a court has granted a § 1782

application over the objection of the foreign court. Id. (“Indeed, Microsoft has not

cited, and this Court has not found, a single case where a court has granted § 1782

discovery in the face of express objection by the foreign court where the

30 As set forth infra, the private arbitration is not a “foreign tribunal” and may in any event be enjoined by this Court this summer, and the application in “aid” of the foreign criminal proceeding is frivolous. See infra §§ IV, V.


39

underlying proceeding is pending.”);31 id. at 195-96 (“[A] decision by this Court

which would either preempt or contradict a decision by the Commission-would

render the Commission’s proceedings meaningless and undermine the

Commissions rules on confidentiality . . . . Moreover, a decision by this Court

upholding Microsoft’s discovery request would contravene the purpose of § 1782

by pitting this Court against the Commission, 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.’ Pravin Banker Assocs.,

Ltd. v. Banco Popular Del Peru, 109 F.3d 850, 854 (2d Cir.1997)”). Indeed, the

entire purpose of § 1782 is to “assist foreign tribunals in obtaining relevant

information that the tribunal may find useful.” Intel, 542 U.S. at 262 (emphasis

added).

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

omitted). “Granting discovery in the face of opposition from the foreign tribunal

31 In Intel, the Court said it was “not altogether clear” whether the European Commission “never” or “hardly ever” sought judicial assistance from United States courts. 542 U.S. at 266; cf. Microsoft, 428 F.Supp.2d at 194 (post-dating Intel).


40

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).

Chevron’s attempt to moot and then rush this appeal is no doubt

motivated by a desire to avoid the consequences of the Lago Agrio Court’s

pending ruling. As set forth infra, the Court should deny the § 1782 application,

inter alia, because it seeks privileged information, is unduly intrusive and

burdensome, and is an end run around the jurisdiction of the Ecuadorian Court.

However, if this Court were at all inclined to consider the application, at a

minimum the Court should defer ruling until the Ecuadorian Court determines

whether it finds the information “useful.” Intel, 542 U.S. at 262; Schmitz, 376 F.3d

at 84; In re Microsoft, 428 F.Supp.2d at 194.

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, over two years after the Cabrera

report, and well over a year after Crude was released. A-1629 ¶ 6; 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


41

[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).

Federal courts in this country routinely reject discovery requests after

the close of discovery. One can only imagine how a federal court would respond if

a litigant sought fact discovery in a foreign jurisdiction years after the discovery

deadline and soon before pretrial briefs were due. Yet that is precisely what

Chevron seeks here. This request undermines the comity concerns at the heart of §

1782 and should be rejected. Aventis, 2009 WL 3754191, at *1.

C. The Section 1782 Request Conceals an Attempt to Circumvent

Foreign Proof-Gathering Restrictions and Other Policies of the United States

This § 1782 application is a plain attempt to circumvent foreign proof-

gathering restrictions in Ecuador. The heart of Chevron’s claim here is that there

was impropriety involving an Ecuadorian court expert, Richard Cabrera, and a

member of his team, Carlos Beristain. The Ecuadorian Court is more than capable

of investigating its own experts, who are, after all, in Ecuador. Rather than make a

request to the Court actually hearing the case, though, Chevron runs to New York

to seek 600 hours of outtakes from a filmmaker.


42

“[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 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

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.”).

Here, Chevron is in an even worse position, because it did not even

try to get discovery concerning the court expert from the foreign jurisdiction. See,

e.g., Aventis, 2009 WL 3754191, at *1 (“There are myriad reasons for denying

Aventis’ Application. First, despite the fact that it appears that the French Court

has the jurisdictional reach over these documents, in five years, Aventis has never

sought the subject § 1782 documents in the French Tribunal.”). Chevron knows

how to make an application in the court it chose, but has instead pursued an


43

American end-run around the entire Ecuadorian legal system. Even more galling,

Chevron seeks to impugn an Ecuadorian court expert without approaching the

Ecuadorian court itself. The Lago Agrio Court plainly has jurisdictional reach over

its own experts—if Chevron wants to impugn or question them, Chevron should

direct that inquiry to the Lago Agrio Court. Id.

“[O]ther policies of . . . the United States” also weigh heavily against

the petition. Intel, 542 U.S. at 265. First, it is unseemly for Chevron to delay the

case in the United States for nine years with forum non conveniens motions, all

while touting the wonders 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 its own court

experts and proceedings.

Second, Chevron should not be permitted to use this Court to compel

evidence in aid of an improper BIT proceeding. A-628, 1685. During the decade

when it sought to evade American justice, Chevron made repeated, unambiguous

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

to Ecuadorian jurisdiction and satisfy any Ecuadorian judgment, subject to a single


44

limited defense in an enforcement proceeding. A-636-40, 1703-06. Relying on

those representations, the district court, then this Court, dismissed the Aguinda

complaint on forum non conveniens grounds. Id.; A-1710-11. 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-747-48 ¶ 76(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-748 ¶ 76(3).

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, A-628, 1685, and certainly should not “aid”

Chevron’s improper arbitration in this proceeding.


45

Another important policy interest, indeed the policy at the heart of §

1782, is fostering comity and respect for other nations. But by the Chevron

parties’ own admission, the purpose of this proceeding is to undermine and attack

the Lago Agrio court, not to aid it. This Court should not be the first circuit court

to countenance a § 1782 petition intended to attack a sister foreign court. Such a

petition undermines the “twin aims of the statute,” Schmitz, 376 F.3d at 84; indeed,

it encourages foreign countries not to assist but to undermine and attack our courts

as well.

Given the substantial burden the petition places on Berlinger,

Chevron’s complete failure to seek relief from the Ecuadorian Court, the untimely

nature of the application, Chevron’s own choice of the Ecuadorian forum, the

comity concerns undermined by the petition, and the flimsy nature of Chevron’s

highly speculative and irrelevant allegations, the question in this case is not close:

the petition should be denied.

III. The Application is Prohibited Under Section 1782 Because it Violates

the Journalist’s Privilege The application should be denied for a second, independent reason.

Where a § 1782 application violates a privilege, it must be rejected. 28 U.S.C. §

1782.


46

The United States Supreme Court “count[s] it significant, that §

1782(a) expressly shields privileged material.” Intel, 542 U.S. at 260. But the

blunderbuss Order runs roughshod over the journalist’s privilege. Berlinger and

amici will no doubt address the privilege at greater length, but a few points deserve

mention. First, this is the most sweeping order of journalist outtakes in American

history. Neither the Chevron parties, nor the district court, nor the amici who filed

a brief in support of the stay motion, nor Berlinger, nor the undersigned has found

an order remotely as broad as the Order below. Even if the few minutes of film

cited by the Order established likely relevance for a very discrete portion of

footage (which they certainly do not), there is no basis at all for the astonishing

order of all 600 hours of outtakes, more than 300 times the footage of Crude itself,

and thousands of times more footage than the few minutes the Chevron parties

cited below. If this is the definition of “likely relevance,” then the Gonzales

standard has no meaning at all.

Second, the Order improperly sweeps aside Berlinger’s unrebutted

claims of burden, without even paying lip service to the concerns that animated

Gonzales’ recognition of a journalist’s privilege for non-confidential footage.

Gonzales, 194 F.3d at 35; cf. SPA-18. It was error for the district court to ignore

Berlinger’s unrebutted, sworn declaration. A-584-85 ¶¶ 28, 30. It was even

greater error for the court to disregard the enormous impact the seizure of non-


47

confidential outtakes would have on filmmakers and journalists—an impact this

Court recognized in Gonzales. Id., 194 F.3d at 35. Exposing Berlinger’s entire

work product “to litigant scrutiny” undermines his ability (indeed, the ability of all

journalists) to gain access to people like Donziger involved in issues of public

importance, particularly those involving litigation. Id. It effectively makes

Berlinger an “investigative arm” of Chevron in the Lago Agrio case. Id. And it

betrays the trust that counsel and the Ecuadorian plaintiffs placed in Berlinger to

control his own footage, not to hand it over to plaintiffs’ adversary in the midst of

litigation. In short, the seizure of Berlinger’s work will intimidate and dissuade

Berlinger and others from exploring and exposing corporate wrongdoing, precisely

Chevron’s goal here. As filmmaker Ric Burns put it, “next time, there won’t be a

Crude. There won’t be a film.” A-1828.

The journalist’s privilege exists for non-confidential outtakes, it is

animated by core First Amendment values, and it is being trampled in this case.

The Order should be reversed.

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

Chevron’s disregard for the Lago Agrio court is now a matter of

undisputed record. Perhaps realizing that § 1782 cannot properly be used to attack

foreign courts, Schmitz, 376 F.3d at 84, Chevron bootstraps this petition with the

improper BIT arbitration. But the arbitration violates Chevron’s representations to


48

this Court and should be enjoined. A-628, 1685. 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.

Even if the improper arbitration were to survive, it cannot be a basis

for the § 1782 petition, because the BIT is not a “foreign or international tribunal”

within § 1782. Under Second Circuit case law, this portion of Chevron’s

application simply fails under the statute.

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). Only two Courts of Appeal have considered the issue of whether an

international arbitral tribunal constitutes a “foreign or international tribunal” for

purposes of discovery under § 1782(a), and both courts held they are not. NBC v.

Bear Stearns & Co., Inc., 165 F.3d 184 (2d Cir. 1999); Republic of Kazakhstan v.

Beidermann, 168 F.3d 880 (5th Cir. 1999).

In NBC, the Second Circuit 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 “Congress did not intend for that statute to apply to an

arbitral body established by private parties.” NBC, 165 F.3d at 191. According to the

Second Circuit, § 1782’s reference to a “foreign or international tribunal”

contemplates a “state-sponsored” proceeding; thus, private arbitration falls outside §


49

1782’s coverage. Id. at 188. Examples of state-sponsored proceedings include

“government entities, such as administrative or investigative courts, acting as

instrumentalities or with the authority of the state,” for example “investigating

magistrates in foreign countries,” or “a foreign administrative tribunal or quasi-

judicial agency,” id. at 189 (internal citation omitted), or “intergovernmental

tribunals” such as the “United States-German Mixed Claims Commission,” id. The

Fifth Circuit reached a similar holding. Beidermann, 168 F.3d at 881-83 (extensive

discovery through the federal courts pursuant to § 1782 would complicate and

undermine private international arbitration, which is intended as a “speedy,

economical, and effective means of dispute resolution”); id. at 883 (“Empowering

arbitrators or, worse, the parties, in private international disputes to seek ancillary

discovery through the federal courts does not benefit the arbitration process.”).

Since the Supreme Court’s decision in Intel, district courts have split on

the issue of 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 arbitral panel. Intel, 542 U.S. at 246. Although Intel did not

address private international arbitration tribunals, the Court’s opinion quoted a law

review article which suggests that arbitral panels may qualify as “foreign tribunals.”

Intel, 542 U.S. at 258 (quoting Hans Smit, International Litigation Under the United


50

States Code, 65 Colum. L. Rev. 1015, 1026-27 & nn.71, 73 (1965)). A few district

courts have seized on this language (dicta, at best) to conclude that the Supreme Court

was adopting the law review article’s definition of “tribunal” in toto. See Comision

Ejecutiva, Hidroelectrica Del Rio Lempa v. Nejapa Power Co., LLC, 2008 WL

4809035, at *1 (D. Del. Oct. 14, 2008), appeal dismissed as moot, No. 08-3518 (3d

Cir. Aug. 3, 2009); OJSC Ukrnafata v. Carpatsky Petroleum Corp., 2009 WL

2877156 (D. Conn. Aug. 27, 2009); In re Oxus Gold PLC, 2007 WL 1037387 (D.N.J.

Apr. 2, 2007).

Other district courts, however, 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. DE C.V., 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 tribunal was not “foreign or international tribunal”

under § 1782).

Post-Intel, the Second Circuit has not revisited its stance on arbitral

panels vis-à-vis § 1782, and thus, NBC remains good law. In addition, the Fifth

Circuit, which revisited its Beidermann decision last year in the face of Intel, declined


51

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, 2009 WL 2407189, at *3 (5th Cir. Aug. 6, 2009)

(“[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.”)

(quotation marks omitted).

The same public policy considerations that girded the Second Circuit's

holding in NBC—that arbitration involves limited discovery, making arbitration more

efficient and less costly than traditional litigation—remain valid today. Id., 165 F.3d

at 190-91. Allowing additional discovery in aid of an international arbitration through

separate judicial discovery proceedings undermines the policy goals animating

arbitration as a mechanism for dispute resolution. NBC, 165 F.3d at 190-91 (allowing

U.S. courts to compel discovery in aid of an international arbitration would undermine

the efficiency and cost-effectiveness advantages of arbitration “and thus [would]

arguably conflict with the strong federal policy favoring arbitration”). Thus, allowing

broad discovery here in “aid” of the BIT arbitral proceedings is inconsistent with both

the decisional law of the Second Circuit and the policies undergirding arbitration as a

dispute resolution mechanism.


52

Finally, Intel relied on the fact that the European Commission is a “quasi-

judicial agenc[y],” which this arbitration panel is not, Intel, 542 U.S. at 258, and that

the Commission was gathering proof as part of a proceeding reviewable by the Court

of First Instance and the European Court of Justice, both unquestionably foreign

tribunals within § 1782, id. at 257; see id. at 254 (describing “judicial review” by the

Court of First Instance and the European Court of Justice). In contrast, the BIT

arbitral panel of three lawyers is apparently no more accountable to a court than a

AAA panel, and unlike the European Commission, is certainly not gathering proof for

the purpose of submission to a reviewing court. There is simply no indication that

Congress meant to use the good offices of American courts to aid unaccountable,

private arbitrators, a service which does little to foster the comity concerns at the heart

of the statute, but does create delay and inefficiency, and—as the series of Chevron §

1782 petitions in Georgia, Colorado, Texas, New York, California, New Jersey, and

Washington, D.C. makes clear—unnecessarily burden our already-overloaded federal

courts.

This private arbitration is not within § 1782; the petition should be

denied.

V. The Chevron Supporters’ Petition Is Even Weaker Than Chevron’s

The petition of Chevron’s supporters, Messrs. Perez and Veiga, is

frivolous. Mr. Berlinger testified unequivocally in a sworn declaration that “the


53

unpublished footage contains no material regarding the criminal prosecutions in

general or specifically the prosecutions against Messrs. Perez and Reis Veiga.” A-

587 ¶ 35. This is undisputed and, alone, defeats any claim of “likely relevance.”

On its face, Crude does not concern the criminal case at all. See Crude. This is

also beyond dispute.

Before the district court, the Chevron supporters could not point to

even one scene that provided any basis for the application. Nor did they claim that

any outtake might contain exculpatory evidence, or any evidence concerning the

underlying criminal charges.

Instead of attempting to establish a nexus between the outtakes and

potential evidence in the criminal case, the Chevron supporters claim “collusion”

based upon a meeting between plaintiffs’ counsel and President Correa, not unlike

the many meetings Chevron has had with the President of Ecuador. The Chevron

supporters below were then reduced to citing (i) that the current President has

spoken out forcefully on a case of public concern, as elected officials often do; (ii)

an email from a line attorney in the Attorney General’s office to plaintiffs’ counsel,

SPA-6, ignoring that, unlike in the United States, a completely separate and

autonomous organization of the judicial branch, the General Prosecutor, brings

criminal prosecutions, A-1790-91, Arts. 281, 282, not the Attorney General, A-

1787-89; and (iii) the utterly absurd (hearsay) claim that Ecuador will itself receive


54

90% of the proceeds of the Lago Agrio case, a false claim, A-1756, contradicted by

Chevron’s counsel two weeks ago, A-1769:7-11, A-1771:13-1772:12.32

As they have done previously, the Chevron supporters will attempt to

mask the abject weakness of their claim by citing the urgency of pending criminal

proceedings. As a preliminary matter, the Court should not be fooled by false

claims of urgency. The Chevron supporters waited 15 months after they had

access to Crude to bring the petition. And they face no deprivation of liberty

within the foreseeable future. The imputacion did not request pretrial detention or

impose any restriction on travel. Both petitioners reside in Miami, Florida. Before

petitioners could conceivably face any deprivation of liberty, the prosecutors

would (i) have to decide to seek extradition, and (ii) initiate a formal extradition

process, and (iii) under the principle of “dual criminality,” the United States would

have to determine whether the alleged offense is (a) an extraditable offense under

the U.S.-Ecuadorian Extradition Treaty, and (b) punishable under both United

States and Ecuadorian law. Lo Duca v. United States, 93 F.3d 1100, 1111 (2d Cir.

32 In their appellate stay papers, appellees claimed that Ecuador will receive 90% proceeds of the Lago Agrio case, a claim based upon a hearsay statement by a local prosecutor in Ecuador. The Ecuadorian law that served as a basis for this misinformed statement is set forth at A-1747, 1756 (The Environmental Management Act, Title VI, Chp. I “Civil Actions,” Art. 43). But as is plain from the actual statute, which petitioners were careful not to cite below, there is no provision for the Republic of Ecuador to be paid at all from a judgment in the Lago Agrio case. Id. In addition, just a few weeks ago, Chevron’s counsel represented to the BIT panel that 90% of the recovery would go to the Amazon Defense Front, an NGO, not to the Republic of Ecuador. A-1769:7-11, A-1771:13-1772:12.


55

1996). None of this has happened, and none of this may ever happen. The 15-

month delay and the remote and speculative nature of the criminal proceedings

defeat any claim of urgency, even if their petition had any merit, which it plainly

does not.

In any event, whatever the stage of the criminal proceedings, the

petition fails on the merits. There is no urgency to seize the outtakes, because

there is no basis in Crude to believe that anything in the outtakes is relevant to the

criminal case, and Mr. Berlinger’s declaration conclusively refutes such

speculation. The Chevron supporters’ petition should be denied.


56

CONCLUSION

For these reasons, the petition should be denied in its entirety, and the

Court should grant all other relief as is just and proper.

Dated: June 14, 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

Attorneys for Ecuadorian Plaintiffs-Appellants


CERTIFICATE OF COMPLIANCE

Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate

Procedure, the foregoing brief is in 14-Point Times Roman proportional font

and contains 13,554 words and thus is in compliance with the type-volume

limitation set forth in Rule 32(a)(8)(B) of the Federal Rules of Appellate

Procedure.

Dated June 14, 2010

EMERY CELLI BRINCKERHOFF & ABADY LLP 75 Rockefeller Plaza, 20th Floor New York, New York 10019 (212) 763-5000 By: ___________________________ Ilann M. Maazel Jonathan S. Abady O. Andrew F. Wilson

Attorneys for Ecuadorian Plaintiffs-Appellants


SPECIAL APPENDIX


i

SPECIAL APPENDIX TABLE OF CONTENTS

Page

Memorandum Opinion of the Honorable Lewis A. Kaplan, dated May 10, 2010, Appealed From ....... SPA-1


SPA-1

~

!I l ~, M'

L .. U SI ~ cr ....J '- c::> l.L ~

0 c::I N

a: N

() ..-

- ~ :>- ~

,... ! I~CUMENT

UNITED STATES DISTRICT COURT 0 r\ I G I ~I 1\ L 1\ ,-.n DOO#: _ SOUTHERN DISTRICT OF NEW YORK. f " It' .-----~.

~ ;e-~~;l~;a~i~~ -of CHEVRON CORPO~TiON~ x DATEFIL-ED-=:"", ;"'5'-/""J-O~71""", 0--

Petitioner. I

------------------------------------x (n re Application of RODRIGO PEREZ PALLARBS and RICHARD RBIS VEIGA,

Petitioners. ------------------------------------x

MEMORANDUM OPINION (Corrected)

Appearances:

Randy M. Mastro Scott A. Edelman Andrea E. Neuman GIBSON DUNN & CRUTCHER LLP Attorneys for Petitioner Chevron Corporation

Paul E. Dans I

Jorge A. Mestre Andre Rivero RIVERO MESTRE & CASTRO

Attorneys for Petitioner Rodrigo Perez Palla res

Peter 1. Kahn Beth A. Stewart WILLIAMS & CONNOLLY LLP Attorneysfor Petitioner Ricardo Reis Veiga

lIann M. Maazel Jonathan S, Abady O. Andrew F. Wilson EMERY CELLI BRlNCKERHOFF & ABADY LLP Attorneys for Respondents Lago Agrio Plaintiffs

Maura J. Wogan Jeremy S. Goldman FRANKFURT KURNIT KLEIN & SELZ, P .C.

M-19-11l

Attorneys for Respondents Joseph A. Berlinger, Michael Bonfiglio. Third Eye Motion Picture Co., Inc., Crude Produtions, UC, and @radical.media


SPA-2

• • • • • • • •

2

LEWIS A. KAPLAN, District Judge.

These are applications pursuant to 28 U .S.C. § 1782 to issue subpoenas in connection

with a multi-billion dollar Ecuadorian litigation against Chevron Corporation ("Chevron"), the

threatened criminal prosecution in Ecuador of two of its attorneys, and an international arbitration.

Specifically, Chevron and the attorneys seek to subpoena the "outtakes" of a documentary film

entitled Crude, the making of which was solicited by the plaintiffs' lawyers and depicts events

relating to the litigation. Respondents, the Ecuadorian plaintiffs and the documentary filmmaker,

oppose the applications principally on the grounds that the discovery would undermine the

Ecuadorian proceedings and that the material sought is protected by the journalists' privilege.

Facts

1. Background

These applications arise in the context of three decades of oil exploration and

extraction in Ecuador by Texaco, Inc. ("Texaco"), which became a wholly-owned subsidiary of

Chevron in 2001. The following is a briefsummary of Texaco's activities in Ecuador and the nine-

year litigation that ensued in this District.'

A. Texaco's Oil Operations in Ecuador

In 1964, Texaco Petroleum Company ("TexPet"), a subsidiary of Texaco, began oil

The background of this matter is described in detail in the decisions of this District and the Second Circuit. See Jotav. Texaco, Inc., 157 F.3d 153 (2d Cir. 1998); Republic a/Ecuador v. ChevronTexaco Corp., 376 F. Supp. 2d 334, 341 (S.D.N.Y. 2005); Aguinda v. Texaco, Inc., 945 F. Supp. 625 (S.D.N.Y. 1996); Aguinda v. Texaco, Inc, 142 F. Supp. 2d 534 (S.D.N.Y.2001).

•


SPA-3

• • • • • • • •

3

exploration and drilling in the Oriente region of eastern Ecuador. In the following year, TexPet

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

Oil Corporation (the "Consortium"). The government of Ecuador ("GOE") thereafter obtained Gulf

Oil's interest through its state-owned oil company, Petroecuador, and 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.2

B. The Aguinda Action

In 1993, a group of residents of the Oriente region of Ecuador brought a class action

suit in this Court against Texaco arising from TexPet's operations in the Consortium. The complaint

in the action, 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 in damages on a variety of theories, including negligence, strict liability, and equity to

"redress contamination of the water supplies and environment."3

C. Settlement and Release Agreements

While the Aguinda litigation was pending, TexPet entered into a 1995 settlement

agreement with the GOE and Petroecuador (the "Settlement") whereby TexPet agreed to perform

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

See Republic of Ecuador, 376 F. S upp. 2d at 341 .

•


SPA-4

• • • • • • • •

4

specified environmental remedial work in exchange for a release of claims by the GOE. The release,

which covered TexPet, Texaco, and other related companies, encompassed "all the Government's

and Petroecuador's claims against the Releasees for Environmental Impact 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.,,4

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

Release") according to which the GOE deemed the Settlement to have 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

Settl ement. 5

D. Dismissalo/the Aguinda Action

In the meantime, Texaco worked in earnest to transfer the Aguinda action from this

district to the courts of Ecuador on the grounds of/orum non conveniens and international comity.

Texaco touted the ability of the Ecuadorian courts to "provide a fair and alternative forum" for the

plaintiffs' claims.6 It argued also that the case did not belong in this district because the evidence

and witnesses were predominantly in Ecuador. After nine years oflitigation, this Court dismissed

ld. at 341-42.

ld. at 342.

See, e.g., Maazel Dec\. Ex. 1, Martinez Aff. ~ 2 ("The Courts in Ecuador still represent a totally adequate forum .... "); ld. Ex. 4-8 (Texaco briefs).

•


SPA-5

• • • • • • • •

5

the case on/arum non conveniens grounds in 2001.7 The Second Circuit affirmed the dismissal

the following year.s

II. Ecuadorian Litigation and Criminal Prosecutions

A. The Lago Agrio Litigation

In 2003, following the dismissal of the Aguinda action, a group of Ecuadorians

including "a substantial number of the Aguinda Plaintiffs" brought an action against

ChevronTexac09 in Lago Agrio, Ecuador (the "Lago Agrio Litigation"). Plaintiffs asserted claims

for, among other things, violations of an Ecuadorian environmental law enacted in 1999. The

defendants contended that the law in effect impermissibly allowed plaintiffs to assert, as private

attorneys-general, claims that belonged to the GOE but were released pursuant to the Settlement and

Final Release. JO The GOE announced that it would receive ninety percent of any recovery. II

The Lago Agrio court ordered a "global" assessment of damages to be conducted by

a team of expert witnesses led by Richard Stalin Cabrera Vega, who was required to "perform his

work in an impartial matter" and to "maintain strict independence with regard to the parties.,,12 Dr.

9

10

II

12

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

See Aguinda, 303 F.3d 470.

Chevron merged with Texaco in 2001.

Aguinda, 376 F. Supp. 2d at 342.

Hendricks Dec!. Ex. UU, at 2.

Mastro Decl. Ex. S, at 11; Ex. V (Oct. 3, 2007 Order) at 6, 10, 16.

•


SPA-6

• • • • • • • •

6

Carlos Beristain, who was appointed to Cabrera's team of expert witnesses, contributed to Cabrera's

damages assessment for cancer deaths by meeting in "focus groups" with inhabitants ofthe region

allegedly polluted by Chevron. As we shall see, Chevron maintains that Dr. Beristain failed to

maintain "strict independence" with respect to counsel for the Lago Agrio plaintiffs.

B. Criminal Prosecution of Pal/ares and Veiga

The same year that the Lago Agrio Litigation was filed, the GOE filed a criminal

complaint against two of Chevron's lawyers, petitioners Pallares and Veiga, 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 District Prosecutor, however, found that "there [was] not sufficient evidence to pursue

the case against ... Mr. Ricardo Reis Veiga and Mr. Rodrigo Perez Pallares, representatives of

TexPet.,,13 The Ecuadorian Deputy Attorney General nevertheless explained in an email to

plaintiffs' counsel in the Lago Agrio Litigation that the criminal prosecutions were a potential "way

to nullifY or undermine the value ofthe" Settlement and Final Release, though "evidence of criminal

liability established by the Comptroller [General's] Office was rejected by the prosecutor.,,14

C. Plaintiffs' Counsel Solicits a Documentary Film

13

14

In 2005, Steven Donziger, one of the lead counsel forthe plaintiffs in the Lago Agrio

Dans Decl. Ex. 2, at 8, 10.

Id. Ex. 1.


SPA-7

• • • • • • • •

7

Litigation, solicited award-winning producer and filmmaker Joseph Berlinger to create a

documentary depicting the Lago Agrio Litigation from the perspective of his clients. Berlinger

recounted that:

"During the summer of2005, a charismatic American environmental lawyer named Steven Donziger knocked on my Manhattan office door. He was running a classaction lawsuit on behalfof30,OOO Ecuadorian inhabitants of the Amazon rainforest and was looking for a filmmaker to tell his clients' story.,,15

For the next three years, Berlinger shadowed the plaintiffs' lawyers and filmed "the

events and people surrounding the trial,,,16 compiling six hundred hours of raw footage.

D. President Correa Takes Office

In 2006, while the Lago Agrio Litigation was pending, Rafael Vincente Correa

Delgato was elected President of Ecuador on a platform of economic and social reform. President

Correa, who describes himselfas a "humanist," a "Christian ofthe left," and a proponent of twenty-

first century socialism, 17 condemned Ecuador's oil contracts as "true entrapment for the country.,,18

15

16

17

IS

ld. Ex. 9 ("Crude Realities").

Berlinger Mem. at 4 (citing Berlinger Decl. ~ 14).

'Socialismo' en el discurso de Correa, EL UNlVERSa, July 23, 2007, http://www.eluniverso.com/2007/07/23/000 IIS/52BB60 11269D4AS7B7E96771 F48D4 A62.html; see also Rcifael Correa Biography, GUERRILLERO, June 29, 2009, http://www.guerrillero.culenglish/index.php?option=colTI_content&view=article&id=57 7: rafae I-correa-bi ography &cati d=4 J :varieties&ltem i d=61.

Ecuador Candidate Correa to Redraw Private Oil Contracts, MARKETW ATCH, Oct. 13, 2006, http://www.marketwatch.com/s tory I s to ry Ire s cue? S ou rce Uri = http%3A %2F%2Fwww.marketwatch.com%2 Fstory%2 Fstory%2 Fseo i ndex%3 Fseoheadl i ne%3D%26dist%3Dnewsfinder'l1026siteid%3Dgoogle; Rafael Correa Biography, supra note 17.

•


SPA-8

• • • • • • • •

8

He accused oil companies offailing to meet environmental regulations and soughtto divert a portion

of their revenue to fund social programs.19

A short time after President Correa took office, he 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.,,20 He thereafter appointed a new Prosecutor General, who

decided that the criminal case against Pallares, Veiga, and former GOE officials should proceed.21

In 2009, Correa became the first Ecuadorian president in thirty years to be elected

to a second term. He pledged that:

"Socialism will continue. The Ecuadorian people voted for that. We are going to emphasize this fight for social justice, for regional justice. We are going to continue the fight to eliminate all forms of workplace exploitation within our socialist conviction: the supremacy of human work over capital. Nobody is in any doubt that our preferential option is for the poorest people, we are here because of them. Hasta la victoria siempre!,,22

E. The International Arbitration

The year that President Correa was reelected, Chevron commenced an arbitration

pursuant to the Bilateral Investment Treaty between the United States and Ecuador ("BIT') and

19

20

21

22

Ecuador Candidate Correa to Redraw Private Oil Contracts, supra note 18; Rafael Correa Biography, supra note 17.

Dans Dec!. Ex. 5.

Id Ex. 7.

Enrico Tortolano, Revolution on March as Correa Makes History, TRlBUNE MAGAZINE,

Apr. 30, 2009, http://www.tribunemagazine.co.uk/2009/04130/ revolution-on-march-as-correa-makes-history/,

•


SPA-9

• • • • • • • •

9

United Nations Commission on International Trade Law ("UNCITRAL") rules (the "Arbitration,,).23

Chevron there asserts that the GOE "abuse[d] the criminal justice system" in connection with the

Lago Agrio Litigation and the criminal prosecutions and violated the BIT and the American

Convention on Civil Rights.24 It seeks, among other things, dismissal ofthe Lago Agrio Litigation

and a declaration that it "has no liability or responsibility for environmental impact ... arising out

of the former Consortium that was jointly owned by TexPet and Ecuador."25

III Berlinger Releases Crude

In 2009, Berlinger released his documentary, entitled Crude, which, according to its

own press package, "captures the evidentiary phase of the Lago Agrio trial, including field

inspections and the appointment of independent expert Richard Cabrera to assess the region.,,26 The

film depicts also the environmental damage allegedly caused by TexPet and interviews with

Ecuadorians dying of diseases perhaps caused by oil spills. Petitioners highlight the following

scenes in connection with their applications.

23

24

25

26

Mastro Decl. Ex. S.

Jd., ~, 55-65.

Jd. ~, 76(1), 76(3).

Mastro Decl. Ex. AA (Crude Press Package) at 9-11. Berlinger received over twenty international awards from film, environmental, and human rights organizations for Crude, which was named one of the Top Five Documentaries of the Year by the National Board of Review and Best International Green Film at Berlin's Cinema for Peace. See Berlinger Dec\. ~ 18.

•


SPA-10

• • • • • • • •

10

A. Plaintiffs' Counsel Meets with Expert Witness

Crude contains footage of a number of meetings that took place in the Dureno

community of the indigenous Cofan people. A version of Crude "streamed" over Netflix depicts

one such meeting, at which Dr. Beristain, an expert who contributed to Cabrera's neutral damages

assessment, is shown working directly with both the Cofan people and plaintiffs' counsel.27

Berlinger, however, altered the scene at the direction of plaintiffs' counsel to conceal all images of

Dr. Beristain before Crude was released on DVD.28 The interaction between plaintiffs' counsel and

Dr. Beristain therefore does not appear in the final version of Crude sold on DVD in the Un ited

States.

B. Plaintiff's Counsel Interferes with Judicial Inspection

In another scene of Crude, Danziger, one of plaintiffs' lead counsel, persuades an

Ecuadorian judge, apparently in the presence of Chevron's lawyers and news media, to block the

judicial inspection of a laboratory allegedly being used by the Lago Agrio plaintiffs to test for

environmental contamination. Donziger describes his use of "pressure tactics" to influence the

judge and concedes 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.,,29

27

Mastro Dec!. Ex. G, at I.

28

Berlinger Dec!. '\J 33. 29

Mastro Dec\. Ex. G, at 2.

•


SPA-11

• • • • • • • •

II

C. Plaintiffs' Representatives Meet with the Ecuadorian Government

In another scene, a representative of the plaintiffs informs Donziger that he had left

the office of President Correa "after coordinating everything.,,30 Donziger declares,

"Congratulations. We've achieved something very important in this case .... Now we are friends

with the President." The film then offers a glimpse of a meeting between President Correa and

plaintiffs' counsel that takes place on a helicopter. Later on, President Correa embraces Donzigcr

and says, "Wonderful. keep it up!"

Donziger explains also that President Correa had called for criminal prosecutions to

proceed against those who engineered the Settlement and Final Release. "Correa just said that

anyone in the Ecuador government who approved the so-called remediation is now going to be

subject to litigation in Ecuador. Those guys are shittin' in their pants right now.,,31

IV The Applications

Chevron and its attorneys, Pallares and Veiga, file these applications pursuant to 28

U.S.c. § 1782 to obtain "the production of all 'Crude' footage that was shot, acquired. or licensed

in connection with the movie 'Crude.",32 They assert that the Crude outtakes are "highly likely to

be directly relevant" to the Lago Agrio Litigation, the Arbitration, and the criminal proceedings

3D

31

32

Id Ex. G, at 3.

Id Ex. G, at 4.

Chevron Mem. at 3.

•


SPA-12

• • • • • • • •

12

against Pallares and Vega.33

Discussion

I Judicial Code Section 1782

Section 1782 of the Judicial Code provides in pertinent part:

"The district court ofthe 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.,,34

A district court is authorized to grant a Section 1782 application where (I) 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.,,35 A district

court, however, is not required to grant a Section 1782 application simply because it has the

authority to do 50.36 "Once the statutory requirements are met, a district court is free to grant

33

34

35

36

Id

28 U.S.C. § 1782.

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».

Intel Corp. v. Advanced Micro Devices. Inc., 542 U.S. 241,264,124 S. Ct. 2466 (2004); In re Application a/Microsoft Corp., 428 F. Supp. 2d 188, 192 (S.D.N.Y. 2006).

•


SPA-13

• • • • • • • •

13

discovery in its discretion.,,37

The Supreme Court has identified four factors to guide the Court's determination

whether to grant a Section 1782 application: (I) 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 ofthe 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.38 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. ,,,)9

A. Statutory Requirements

Joseph Berlinger, the producer of Crude, is located in New York and concededly is

in sole possession of the film's raw footage. Chevron is an "interested person" because it is a party

to the Lago Agrio Litigation and the Arbitration. Pallares and Veiga likewise are "interested"

because they are threatened with criminal charges in Ecuador. Petitioners therefore have satisfied

37

38

39

Schmitz, 376 F.3d at 83-84.

Intel, 542 U.S. at 264-65; Microsoft Corp., 428 F. Supp. 2d at 192-93.

Schmitz, 376 F.3d at 84 (quoting In re Metallgesellschaft AG, 121 F.3d 77, 79 (2d eir. 1997»).

•


SPA-14

• • • • • • • •

14

the first two factors.

As to the third factor, respondents do not dispute that the Ecuadorian court is a

foreign tribunal. They nevertheless contend that the arbitral tribunal does not constitute a "foreign

or international tribunal" within the meaning of Section 1782. Respondents rely on National

Broadcasting Co. v. Bear Stearns & CO.,40 in which the Second Circuit held that a commercial

arbitration panel in Mexico conducted under the auspices of the International Chamber of

Commerce was beyond the scope of Section 1782 because "Congress did not intend for that statute

to apply to an arbitral body established by private parties.,,41 Respondents' argument is without

merit.

As an initial matter, the arbitration here at issue is not pending in an arbitral tribunal

established by private parties. It is pending in a tribunal established by an international treaty, the

BIT between the United States and Ecuador, and pursuant to UNCITRAL rules. 42 Further, in Intel

Corp. v. Advanced Micro Devices, Inc.,43 which postdated National Broadcasting, the Supreme

Court in dictum quoted a law review article for the proposition that "[t]he term 'tribunal' ...

includes investigating magistrates, administrative and arbitral tribunals, and quasi-judicial agencies,

as well as conventional civil, commercial, criminal, and administrative courts.,,44 In the wake of

40

41

42

43

44

165 F.3d 184, 191 (2d Cir. 1999).

ld.

Mastro Decl. Ex. S.

542 U.S. 241 (2004).

ld. at 258 (quoting Hans Smit, International Litigation under the United States Code, 65 COLUM. L. REv. 1015, 1026-27 (1965» (emphasis added).

•


SPA-15

• • • • • • • •

15

Intel, at least two district courts in our Circuit and one in the Third Circuit have followed the

Supreme Court's dictum and held that international arbitral bodies operating under UNCITRAL

rules constitute "foreign tribunals" for purposes of Section 1782.45 This Court agrees.

In consequence, petitioners have satisfied the threshold requirements of Section 1782.

B. Discretionary Factors

Respondents assert that the discretionary factors cut in their favor. They argue that

petitioners have attempted to circumvent the policies and restrictions of the Ecuadorian court and

that their discovery request is unduly burdensome. Petitioners respond that courts have granted

Section 1782 applications routinely in connection with the Lago Agio Litigation and, in any event,

that the discovery sought would place "little or no burden" on respondents.46

1. The Jurisdictional Reach a/the Foreign Tribunal

"A foreign tribunal hasjurisdiction over those appearing before it, and can itself order

them to produce the evidence.'>47 The first factor therefore weighs against granting discovery where

45

46

47

See, e.g, Ukrnafta v. Carpatsky Petroleum Corp., No. 3:09 MC 265 (JBA), 2009 WL 2877156, at *4 (D. Conn. Aug 27, 2009); In re Oxus Gold PLC, No. MISe 06-82-GEB. 2007 WL 1037387, at *5 (D. N.J. Apr. 2,2007) (holding that a bilateral investment treaty governed by UNCITRAL rules constituted a foreign tribunal under § 1782); see also Comision Ejecutiva Hidroelectrica del Rio Lempa v. Nejapa Power Co., LLC, No. 08-135-GMS, 2008 WL 4809035, at * 1 (D. Del. Oct. 14,2008) ("[T]he Supreme Court's decision in Intel (and post-Intel decisions from other district courts) indicate that Section 1782 does indeed apply to private foreign arbitrations.").

Chevron Mem. at 18.

Intel, 542 U.S. at 264.

•


SPA-16

• • • • • • • •

16

the person from whom discovery is sought is a participant in the foreign proceeding. On the other

hand, "nonparticipants in the foreign proceed ing may be outside the foreign tribunal's juri sd ictional

reach; hence, their evidence, available in the United States, may be unobtainable absent § I 782(a)

Berlinger, who is in sole possession of the raw footage of Crude, is located in this

district and is not a party to any ofthe foreign proceedings. The Ecuadorian court and the arbitral

tribunal lack jurisdiction to compel Berlinger to produce the material. The first ofthe discretionary

factors therefore favors petitioners.

2. The Nature and Receptivity of the Foreign Tribunals

In April 201 0, respondents filed an application with the Lago Agrio court requesting

a ruling "concerning its receptivity to evidence gathered in Chevron's various Section 1782

applications."49 That court has not yet ruled. Respondents nevertheless assert that granting

petitioners' applications would undermine the Ecuadorian court and therefore frustrate the comity

interests underlying the statute.so

The first point to be made is that respondents point does not even address the fact that

the applications are made not only for the Ecuadorian litigation, but also for the Arbitration. In

consequence, even if their argument were persuasive as respects Ecuador, it would not carry the day.

48

49

so

Jd

Maazel Decl. Ex. 13; PI. Mem. at 15.

Respondents neither contend that granting the applications would undenninethe Arbitration nor suggest that the arbitral tribunal would oppose the discovery sought here.

•


SPA-17

• • • • • • • •

17

And it is not persuasive as to Ecuador in any case.

While the views of the Ecuadorian court could be helpful, even opposition by it to

these applications would not be dispositive.51 District courts have granted Section 1782 applications

routinely in connection with matters pending in Ecuadorian courts, including the Lago Agrio

Litigation.52 Moreover, it must be borne in mind that the petitioners seek relief here in part out of

concern that political influence may have been brought to bear in Ecuador in an inappropriate way.

In all the circumstances, this factor surely favors petitioners insofar as the Arbitration

is concerned and does so, albeit perhaps less strongly, with respect to the Lago Agrio litigation.

3. Whether Petitioners Attempt to Circumvent Foreign Proof Gathering Restrictions and Policies

Respondents assert that petitioners have attempted to circumventthe proof-gathering

restrictions of the Ecuadorian court because they "did not even try to get discovery" from it before

filing the instant applications. But the case on which respondents rely, Aventis Pharma v. Wyeth,53

is distinguishable because the foreign tribunal there had '~urisdictional reach ofthe[] documents.,,54

Here, neither the Ecuadorian court nor the arbitral tribunal could compel Berlinger to produce the

outtakes because he is not a party to the foreign proceedings or subject to their writs. Respondents'

51

S2

53

54

See Intel Corp., 542 U.S. at 265 (holding that § 1782 application could be granted though the "European Commission has stated in amicus curiae briefs to this Court that it does not need or want the District Court's assistance").

See, e.g., Mastro Dec!. Ex. O-Q (court orders granting Chevron § 1782 applications).

No. M-19-70, 2009 WL 3754191 (S.D.N.Y. Nov. 9, 2009).

Id. at * 1.

•


SPA-18

• • • • • • • •

18

argument therefore is without merit.

4. Whether the Discovery Would Be Intrusive or Burdensome

Respondents argue that complying with a subpoena to produce six hundred hours of

Crude raw footage would be unduly burdensome because it would (1) impose administrative costs

on Berlinger and (2) inhibit Berlinger's ability to obtain material from sources in confidence. These

arguments are unpersuasive.

Requiring Berlinger to make the raw footage available to petitioners would impose

minimal administrative costs on him. Petitioners, not Berlinger, would bear the burden of copying,

editing, and reviewing the material. Indeed, the burden of resisting the subpoenas undoubtedly

already has imposed a greater burden on Berlinger than would compliance.

Nor would the production of the outtakes compromise Berlinger's ability to obtain

material from sources in confidence. For reasons discussed in connection with Berlinger's claim

ofjournaIist privilege, the Court does not credit any assertion that the discovery of the outtakes by

petitioners would compromise the ability of Berlinger or, for that matter, any other film maker, to

obtain material from individuals interested in confidential treatment. These subpoenas would

impose no undue burden on respondents.

* * *

In sum, petitioners have satisfied the Intel discretionary factors.

•


SPA-19

• • • • • • • •

19

II. The Journalist Privilege

Under Section 1782, "[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.,,55

Respondents assert that the Crude raw footage is protected from disclosure by the journalists'

privilege. Petitioners rejoin that they overcome the qualified privilege on the ground that the

material sought is highly likely to be relevant to the foreign proceedings.

The Second Circuit "has long recognized the existence of a qualified privilege for

journalistic information.,,56 The privilege protects against "the wholesale exposure of press files to

litigant scrutiny," "the heavy costs of subpoena compliance," and the likelihood that "potential

sources [would be] deterred from speaking to the press, or [would] insistO on remaining anonymous,

because of the likelihood that they would be sucked into Iitigation.,,57

The threshold issue is whether Crude falls within the journalists' privilege.

Petitioners contend that the privilege does not apply to documentary films and, in any event, that

Crude "was not the result of a newsgathering process, but rather ... is a piece of theater deliberately

designed to win over audiences to the Plaintiffs' side and to facilitate the Lago Agrio Litigation."58

The Second Circuit has not addressed squarely whether the journalists' privilege

encompasses a documentary film. It nevertheless has stated that "an individual successfully may

55

S6

57

58

28 U.S.C. § 1782.

Gonzales v. Nat 'I Broadcasting Co., 194 F.3d 29, 32 (2d Cif. 1999); see also von Bulow v. von Bulow, 811 F.2d 136, 142 (2d CiT. 1987).

Gonzales, 194 F.3d at 35.

Chevron Reply Mem. at 10.

•


SPA-20

• • • • • • • •

20

assert the journalist's privilege if he is involved in activities traditionally associated with the

gathering and dissemination of news, even though he may not ordinarily be a member of the

institutional ized press. ,,59

To create Crude, Berlinger investigated "the events and people surrounding" the

Lago Agrio Litigation, a newsworthy event, and disseminated his film to the public. The Court

therefore assumes that the qualified journalists' privilege appl ies to Berlinger's raw footage.

A. Confidentiality

The protection afforded by the journalists' privilege turns on whether the material

sought is confidential or nonconfidential. "[W]hile nonconfidential press materials are protected

by a qualified privilege, the showing needed to overcome the privilege is less demanding than the

showing required where confidential materials are sought.,,60 It is the journalist's burden to

demonstrate that the material he or she seeks to protect from disclosure is confidential.61

Respondents argue that the outtakes of Crude are confidential because Berlinger (I)

"entered into agreements with some of [his] sources, promising that [he] would not use certain

59

60

61

von Bulow, 811 F.2d at 142; see Gonzales, J 94 F.3d at35 (holding that journalists' privilege attached to NBC Dateline footage).

Gonzales, 194 F.3d at 36. Under In re Petroleum Products Antitrust Litigation, 680 F.2d 5,7 (2d Cir. 1982), where the litigant seeks confidential matcrial, the litigant must make a "clear and specific showing [that] the information is highly material and relevant, necessary or critical to the maintenance ofthe claim, and not obtainable from other available sources."

See von Bulow, 811 F.2d at 145-46.

•


SPA-21

• • • • • • • •

21

footage in which they appeared without first obtaining their express authorization,,,62 and (2) in all

cases "built a foundation of trust with the subjects of his film," who were depicted in "sensitive,

painful and conflict-ridden situations."63 They therefore contend that there was an "implicit (and

sometimes explicit) understanding that the materials Berlinger decides to leave out of the finished

product would remain confidential and not turned over to th ird parties. ,,64 Respondents' contentions

are not persuasive.

First, Berlinger's assertion that he is prohibited by confidentiality agreements from

using "certain footage" absent the consent of "some" of his sources is conclusory. He does not

identify any source or subject with whom he has such an agreement. He does not identify any

particular footage allegedly covered by any such agreements. He does not even state whether the

footage allegedly subject to such understandings is included in the outtakes or, instead, already is

in the publicly available documentary. And he makes no effort to reconcile the claim of explicit

assurances ofconfidentiality with the standard form of release he obtained from his subjects, which

granted him carte blanche to use all of the footage in his production.65 He therefore has not

sustained his burden of establishing that any ofthe material sought is subject to any con fidentiality

62

63

64

65

Berlinger Aff. ~~ 19,21 (emphasis added).

Berlinger Mem. at 15.

ld.

See Hendricks Dec!. Ex. PP (Standard Release) ("I understand and acknowledge that the filmmakers may use my Contribution in connection with the creation of a nonfiction production, which may be released theatrically, non-theatrically, [or] on television .... [ acknowledge that the Producer and/or Licensed Parties may edit or alter my Contribution to the Production as they wish.").

•


SPA-22

• • • • • • • •

22

agreement.66

This leaves for consideration two other categories of footage. The first is that

involving subjects to whom no explicit assurances were given at all. The second is footage

involving those to whom explicit assurances were given, but that is not included in the portion as

to which those assurances were provided. The argument, however, is the same in each case, viz.,

that Berlinger had tacit understandings of confidentiality based on "trust." This argument is even

less persuasive.

Berlinger no doubt won the confidence of many of his subjects. The standard release

that his subjects signed, however, expressly disclaims any expectation ofconfidentiality.67 [n any

event, all of Berlinger's subjects appeared on camera for the very purpose of having their images

and words shown publicly in whatever film Berlinger decided to create.68 With perhaps some

exceptions as to some footage, Berlinger alone retained control of the content of the film and

determined what footage would be made public. To that extent, there could not possibly have been

any understanding of confidentiality, as Berlinger had the uncontrolled right to make public all or

66

67

68

See von Bulow, 811 F.2d at 145-46.

Supra n. 65.

See, e.g., Gonzales, 194 F.3d at 39 ("United States v. Cutler, 6 F.3d 67 (2d Cir. 1993), .. . did not involve confidential materials, as the attorney's pronouncements were made publicly in front of television cameras."); see also Saperstein v. Palestinian AUfh., No. 09-mc-00619 (SL T)(ALC), 2010 WL 1371384, at *2 (E.D.N.Y. Apr. 6, 2010) (holding that outtakes of a BBe documentary were nonconfidential).

The cases upon which respondents rely are unavailing because they predate Gonzales, in which the Second Circuit articulated separate standards applicable to confidential and nonconfidential material. See In re Application to Quash Subpoena to NBC, Inc., 79 F.3d 346 (2d Cir. 1996); United States v. Karen Bags, Inc., 600 F. Supp. 667 (S.D.N.Y. 1985).

•


SPA-23

• • • • • • • •

23

any part of the footage that he desired. I therefore find that Berlinger has not sustained his burden

of demonstrating confidentiality for purposes of the journalist privilege.69

B. Protection of Non confidential Material

"Where a civil litigant seeks nonconfidential materials from a nonparty press entity,

the litigant is entitled to the requested discovery notwithstanding a valid assertion of the journalist

privilege ifhe 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.,,70

1. Relevance

Chevron contends that there is ample reason to believe that the Crude outtakes would

be relevant to the Lago Agio Litigation and the Arbitration given that Berlinger was solicited by

plaintiffs' counsel to create the film, had vast access to events relating to the litigation, and filmed

extraordinary interactions between plaintiffs' counsel, on the one hand, and an expert witness and

the ODE, on the other. Pallares and Veiga likewise contend that the outtakes would be relevant to

their criminal proceedings because they likely would show that those proceedings are tainted by

plaintiffs' counsel's influence and improper meddling with the Ecuadorian judiciary on the part of

the ODE. Respondents argue that petitioners' have not met their burden of demonstrating relevance

69

70

Respondents of course had a full opportunity to submit affidavits, declarations and other evidence in an effort to sustain their burden. Any legitimate confidentiality interests with respect to such submissions could have been addressed by applying for leave to file such materials under seal as litigants routinely do in this Court in a myriad of circumstances. No such application was made.

Gonzales v. Nat'/ Broadcasting Co., 194 FJd 29 (2d Cir. 1999).

•


SPA-24

• • • • • • • •

24

because they are engaged in a "fishing expedition" based purely upon speculation about the content

ofthe outtakes.

a. The Lago Agrio Litigation and the Arbitration

Chevron contends that three scenes of Crude are "concrete evidence" thflt the

outtakes of the film are "more than likely relevant" to Chevron's claims and defenses in the Lago

Agrio Litigation and the Arbitration.

First, Chevron asserts that Crude contains footage of plaintiffs' counsel's

participation in one of Beristain's supposedly "neutral" focus groups, which he conducted in

furtherance of his damages assessment. It argues that Beristain therefore was "biased by the direct

participation of the plaintiffs counsel" in the performance of his task. Berlinger, moreover,

concededly edited the scene at the direction of plaintiffs' counsel to remove all images ofBeristain

before Crude was released on DVD, a fact suggestive of an awareness of questionable activity.

Chevron therefore contends that the outtakes are likely to depict plaintiffs' counsel's interaction with

at least one supposedly neutral expert who was engaged pursuant to court direction.71

Second, Crude depicts plaintiffs' counsel Steven Donziger's use of 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. Danziger declares

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."72 Chevron argues that the Crude outtakes are highly likely to

71

Chevron Mem. at 8. n

Mastro Dec!. Ex. G.

•


SPA-25

• • • • • • • •

25

depict plaintiffs' improper influence on the Ecuadorian judicial system.7J

Third, petitioners highlight the Crude scene in which a representative of plaintiffs

visits the office of the president of Ecuador "after coordinating everything." Donziger responds that

"We've achieved something very important in this case .... Now we are friends with the

President." Chevron argues that the outtakes are likely to depict plaintiffs' attempts to "curry favor"

with the GOE.74

Respondents rejoin that Chevron has failed to meet its burden of demonstrating the

relevance of the outtakes. First, they argue that the meeting between Beristain and plaintiffs

counsel was not one ofBeristain's independent focus groups because Beristain had not yet begun

his damages "field work" at the time the meeting took place.7> They assert that Berl inger edited the

scene so that it would not be "taken out of context" and viewed as a meeting conducted in

furtherance of Beristain's damages assessment. They therefore maintain that Chevron's

"assumption that unreleased footage not in the film is also relevant is entirely speculative.,,76

Second, respondents argue in the alternative that petitioners have failed "to particularize a specific

portion ofth[e] footage ... that they believe is relevant.'077 These arguments are not persuasive.

Any interaction between plaintiffs' counsel and a supposedly neutral expert in the

73

Chevron Mem. at 11.

74

fd at 11 (citing Mastro Dec\. Ex. G, at 3). 75

Berlinger Mem. at 19 (citing Mastro Dec!. Ex. U, at 1.). 76

fd at 16. 77

Apr. 30, 2009 Hr'gTr. 22:21-23:3.

•


SPA-26

• • • • • • • •

26

Lago Agrio Litigation would be relevant to whether the expert is independent and his damages

assessment reliable. Plaintiffs' counsel's interactions with the Ecuadorianjudiciary and government

officials likewise would be relevant to Chevron's Arbitration claims for denial of due process and

violations of the Settlement and Release agreements and the BIT.78 The fact that Crude contains

only excerpts of footage depicting such interactions amply supports an inference that the outtakes

contain additional relevant material.

Further, Donziger in fact solicited Berlinger to create a documentary of the litigation

from the perspective of his clients. Berlinger in turn was given "extraordinary access to players on

all sides of the legal fight and beyond.'>79 Plaintiffs' counsel indeed are on the screen throughout

most of Crude,80 which contains less than one percent of the total footage Berlinger shot in

connection with the litigation. Berlinger concededly removed at least one scene from the final

version of Crude at their direction.sl In these circumstances, there is considerable reason to believe

that the outtakes are relevant to significant issues in the Lago Agrio Litigation and the Arbitration,

including whether plaintiffs' counsel improperly influenced expert witnesses and the GOE.82

78

79

80

81

82

Finally, respondents' assertion that the applications are insufficiently particular is

In addition, the presence of Berlinger and his crew would destroy any privilege attached to conversations among plaintiffs' counsel. Chevron may be entitled to discovery concerning the content of otherwise privi leged discussions conducted in the presence of Berlinger's crew.

Mastro Ex. AA (Crude press package).

See Hendricks Decl. ~~ 2-5.

Berlinger Dec!. ~ 33.

See Gonzales, 194 FJd at 36.

•


SPA-27

• • • • • • • •

27

unavail ing. As an initial matter, there is no uncertainty as to the type of evidence petitioners seek.

Respondents, however, have refused to provide any information whatsoever as to the content ofthe

outtakes. Petitioners cannot reasonably be expected to identify with particularity the outtakes that

they seek where knowledge oftheir content lies exclusively with Berlinger.83

b. The Criminal Proceedings

Pallares and Veiga assert that the outtakes are relevant to their criminal proceedings

because the outtakes are likely to depict (1) efforts "to bring unfounded criminal charges," (2) the

"joint strategy" of plaintiffs' lawyers and the OOE, and (3) "procedural irregularities in the criminal

case."B4 Respondents maintain that Crude contains only one passing reference to criminal

proceedings and that there is no basis upon which to infer that the outtakes contain any relevant

material. 85

The released version of Crude nevertheless depicts interactions which suggest the

possibility of misconduct on the part ofboth plaintiffs' counsel and OOE. In all the circumstances,

it is likely that the outtakes will be relevant to significant issues in the prosecutions, including

whether the prosecutions were motivated by a desire to put pressure on Chevron in the Lago Agrio

Litigation and the role, ifany, that plaintiffs' counsel and the OOE played in those proceedings.

83

84

85

Respondents' claim that petitioners must identify "particular scene[s]" in fact would require them to review the entirety of Berlinger's raw footage. an approach respondents assuredly would not entertain. See Tr., Apr. 30, 2009 at 23:6-8.

PallareslVeiga Mem. at 16.

Berlinger Mem. at 23-24 n.9.

•


SPA-28

• • • • • • • •

28

2. Availability from Other Sources

Respondents argue that petitioners have failed to meet their burden because the

outtakes would be "cumulative or duplicative of the decades-worth of scientific reports and analyses

performed by Chevron."86 Their argument is inapposite. The issue is here is not whether the

evidence petitioners seek would shed light on issues such as the existence and source of any

pollution in the Ecuadoran Amazonian forests. It is whether there is sufficient ground to believe that

the footage petitioners seek would not reasonably be obtainable elsewhere.87

Respondents argue that petitioners have not satisfied their burden with respect to

footage of plaintiffs' alleged interference with judicial inspections because those events allegedly

were witnessed by "Chevron's attorneys, often accompanied by their own cameras.,,88 The

argument, however, is not persuasive, as indicated by Gonzales v. National Broadcasting CO. 89

In that case, NBC asserted that outtakes of Dateline were protected from disclosure

by the journalist privilege on the ground that evidence of the event in question was available

elsewhere. The Second Circuit, however, was "persuaded that the outtakes contain information that

is not reasonably obtainable from other available sources, because they can provide unimpeachably

objective evidence of [defendant's] conduct." It found also that "a deposition is not an adequate

86

Jd. at 21.

87

Gonzales, 194 F.3d at 36.

88

Berlinger Mem. at 22; Berlinger Decl. ~ 34.

89

194 F.3d 29 (2d Cir. 1999).

•


SPA-29

• • • • • • • •

29

substitute for the information that may be obtained from the videotapes.,,9o

The same rationale applies here. Berlinger, who is in sole possession of the Crude

outtakes, concededly was "shocked at the almost unprecedented access" he was granted "behind the

scenes of' the Lago Agrio Litigation. 91 The raw footage he compiled would be "unimpeachably

objective" evidence of any misconduct on the part of plaintiffs' counsel, expert witnesses, or the

OOE. Petitioners therefore have shown that the material they seek would not reasonably be

obtainable from other sources.

In consequence, petitioners have overcome the qualified journalists' privilege.

Conclusion

The Court is not blind to the broader context in which the current applications appear.

Chevron fought a long and ultimately successful battle to obtain dismissal of

plaintiffs' original lawsuit in this Court on/orum non conveniens grounds. During that battle, it

extolled the virtues of the Ecuadorian legal system while the plaintiffs questioned its abilities and

rectitude.92 The present positions of Chevron and the plaintiffs - Chevron's claim that it is or is

about to become a victim of political influence on the Ecuadorian courts and prosecutors or worse

and plaintiffs' pleas for deference to those institutions - thus represent dramatic reversals that are

in considerable tension, to say the least, with their past arguments. The reason for these reversals,

however, perhaps is not difficult to understand.

90

91

92

ld. at 36. See also Schiller v. City o/New York, 245 F.R.O. 112, 120 (S.D.N.Y. 2007).

Dans Reply Dec!. Ex. 11.

See Maazel Dec!. Ex. 7-8 (Aguinda briefs).

•


SPA-30

• • • • • • • •

30

Ecuador in recent years has seen the ascendency ofa socialist governmentthat is not

as well disposed to private oil interests as its predecessor. Moreover, the State Department last year

observed:

"While the constitution [of Ecuador] provides for an independent judiciary, in practice the judiciary was at times susceptible to outside pressure and corruption. The media reported on the susceptibility of the judiciary to bribes for favorable decisions and resolution of legal cases and on judges parceling out cases to outside lawyers who wrote judicial sentences on cases before the court and sent them back to the presidingjudge for signature. Judges occasionally reached decisions based on media influence or political and economic pressures.,,93

It went on to note that "there continued to be problems in ... corruption and denial of due process

within the judicial system.,,94 Thus, one readily sees why Chevron and the lawyer petitioners now

might be concerned about their fate in the Ecuadorian courts, regardless of whether events ultimately

will prove those concerns to be justified. And, indeed, so too was the concern that undoubtedly

motivated plaintiffs, at least in part, previously to resist Chevron's earlier effort to force this dispute

into Ecuadorian courts during the tenure of a previous and (to Chevron) perhaps more favorably

disposed government.

The Court expresses no view as to whether the concerns of either side are supported

by proof of improper political influence, corruption, or other misconduct affecting the Ecuadorian

proceedings. As Justice Brandeis once wrote, however, "sunlight is said to be the best of

disinfectants.,,95 Review of Berlinger's outtakes will contribute to the goal of seeing not only that

93

94

95

U.S. Dept. of State, Bureau of Democracy, Human Rights and Labor, 2009 Human Rights Report: Ecuador (available at http://www.state.gov/gldrlfrls/hrrptJ2009/whaJI36111.htm) (last visited May 6, 20 I 0).

ld.

LOUIS D. BRANDEIS, OTHER PEOPLE'S MONEY 62 (1933).

•


SPA-31

31

justice is done, but that it appears to be done.

I

In all of the circumstances, petitioners' applications pursuant to 28 U.S.C. § 1782 to

subpoena the raw footage of Joseph Berlinger's Crude and for a deposition to authenticate it are

granted.

SO ORDERED.

Dated: May 10, 2010


STATE OF NEW YORK COUNTY OF NEW YORK

) ) )

ss.:

AFFIDAVIT OF CM/ECF SERVICE

I, Cristina E. Stout, being duly sworn, depose and say that deponent is not a party to the action, is over 18 years of age.

On June 14, 2010 deponent served the within: Brief and Special Appendix for Respondent-Appellant Lago Agrio Plaintiffs

upon:

See Attached Service List via the CM/ECF Case Filing System. All counsel of record in this case are registered CM/ECF users. Filing and service were performed by direction of counsel. Sworn to before me on June 14, 2010

Maryna Sapyelkina Notary Public State of New York

No. 01SA6177490 Qualified in Kings County

Commission Expires Nov. 13, 2011

Job # 230456


FRANKFURT KURNIT KLEIN & SELZ PC Attorneys for Respondents-Appellants Joseph A. Berlinger, Crude Productions, LLC,

Michael Bonfiglio, Third Eye Motion Picture Company, Inc. and @radical.media 488 Madison Avenue New York, New York 10022 (212) 980-0120 GIBSON, DUNN & CRUTCHER LLP Attorneys for Petitioner-Appellee Chevron Corporation 200 Park Avenue New York, New York 10166 (212) 351-4000 RIVERO MESTRE & CASTRO Attorneys for Petitioner-Appellee

Rodrigo Perez Pallares 2525 Ponce de Leon Boulevard, Suite 1000 Miami, Florida 33134 (305) 445-2500 WILLIAMS & CONNOLLY LLP Attorneys for Petitioner-Appellee Ricardo Reis Veiga 725 12th Street, NW Washington, DC 20005 (202) 434-5000


chevron corp. v. berlinger, no. 10-1918 (2d cir. june 14 ... · v. the chevron supporters’...

Documents