LEWIS A. KAPLAN, District Judge.
Table of Contents Facts...............................................................................144 I. The Present Posture of the Ecuadorian Proceedings and the Urgency of this Matter..............................................................144 II. Crude, Donziger's Central Role in the Events at Issue, and these Subpoenas................................................................145 III. The U.S. Litigation Against Texaco and Chevron.............................148 A. Texaco's Operations in Ecuador..........................................148 B. The Aguinda Action .....................................................148 IV. The Settlement and Release.................................................149 V. The Ecuadorian Litigation and Criminal Prosecutions........................149 A. The Lago Agrio Litigation, the Global Assessment and Other Evidence of Misconduct................................................149 B. The Initial Criminal Investigation .....................................153 C. Donziger Solicits the Making of Crude ..................................154 D. President Correa Takes Office...........................................154 VI. The UNCITRAL Arbitration ..................................................156 VII. The Nature of Donziger's Activities........................................157 A. The March 30, 2006 Intimidation of the Judge............................158 B. The Plan to Pressure the Court With an "Army" ..........................158 C. Killing the Judge?......................................................159 Discussion..........................................................................159 I. Judicial Code Section 1782.................................................159 A. Statutory Requirements..................................................160 B. Discretionary Factors...................................................160 II. Deposition of Adverse Counsel..............................................162 A. The Need to Depose Donziger ............................................162 B. Donziger's Role.........................................................163 C. Extent of Discovery Already Conducted...................................164 D. Risk of Encountering Privilege and Work-Product Issues .................164 1. Basic Principles ....................................................164 2. The Normal Means of Claiming Privilege...............................166 3. Application to Donziger..............................................167 III. The Proposed Modification of the Subpoenas.................................169 Conclusion..........................................................................170
Chevron is the target of litigation brought in Ecuador by the so-called Lago Agrio plaintiffs
At the heart of this matter is Steven R. Donziger, a member of the New York Bar but, much more importantly, the field general of the Lago Agrio plaintiffs' efforts in Ecuador—efforts that include lobbying, media and public relations, fund raising, and other activities. Chevron and the Individual Petitioners here subpoenaed Donziger to produce documents and to give testimony, as they maintain that Donziger is the prime actor, or among the prime actors, in the alleged fraud and misconduct. Donziger moved to quash the subpoenas. Most significantly, he argued in substance that his status as an attorney involved adversely to Chevron and the Individual Petitioners in the Ecuadorian litigation protects him from (1) being compelled to assert his claims of attorney-client privilege and work product protection on a document-by-document, communication-by-communication basis and thus depriving Chevron and the Individual Petitioners of a meaningful opportunity to challenge those claims and (2) giving evidence even as to obviously non-privileged matters.
It is common ground that one party to a litigation should not easily be permitted to take discovery of the lawyers on the other side. The possibilities for mischief and abuse are too great. In the quite unusual circumstances of this case, however, the need for the discovery, the plainly unprivileged nature of many of Donziger's activities, the evidence of possible fraud and misconduct by Donziger, and other considerations are sufficiently great to require that Donziger respond on the merits to the subpoenas. He must give discovery as to non-privileged matters. He must not be exempted from making specific claims of privilege or from defending those claims against any challenges. Accordingly, the Court denied the motions to quash and required compliance, saving to Donziger the ability to make specific claims of privilege for later adjudication by the Court. It did so in a summary order
It is important to begin with a brief statement of the present posture of matters in Ecuador, which has two especially significant aspects.
First, the Ecuadorian court in which the civil case is pending appointed a supposedly neutral, independent Ecuadorian expert, Richard Stalin Cabrera Vega, to render a "global assessment" of the claim. Cabrera has recommended a multi-billion dollar award against Chevron. As will appear, however, there is substantial evidence that (1) Cabrera was appointed as a result of Lago Agrio plaintiffs' ex parte contacts with and pressure on the Ecuadorian courts, (2) at least part of his report was written by consultants retained by the Lago Agrio plaintiffs, and (3) the report
Second, the Lago Agrio plaintiffs are attempting to procure the criminal prosecution of the Individual Petitioners. The reason they do so relates to the fact Texaco long ago entered into a settlement with the GOE, signed on its behalf by the Individual Petitioners, which may well have released the claims upon which the Lago Agrio plaintiffs sue. A criminal prosecution of the Individual Petitioners, especially a successful one, would overcome or at least help to overcome that obstacle—especially in a country in which, at least according to Donziger: "You can solve anything with politics as long as the judges are intelligent enough to understand the politics. . . . [T]hey don't have to be intelligent enough to understand the law, just as long as they understand the politics."
Until recently, the Lago Agrio plaintiffs' efforts to instigate criminal charges against the Individual Petitioners were unsuccessful, as Ecuadorian prosecutors had rejected their claims. But the political climate in Ecuador has changed, and these plaintiffs have obtained the support of the Ecuadorian president. The president, after at least one meeting with plaintiffs' representatives, called for the prosecution of these and other individuals involved in the settlement. Cabrera's "global assessment" then was submitted to the prosecutor who, soon thereafter, reopened criminal proceedings against the Individual Petitioners, citing new evidence. A preliminary hearing—which will determine whether the Individual Petitioners must stand trial—is scheduled for November 10, 2010. The Individual Petitioners therefore have an urgent need quickly to obtain evidence of the allegedly fraudulent nature of the global assessment and of any misconduct by the Lago Agrio plaintiffs and the GOE with respect to the criminal prosecution.
As the foregoing demonstrates, the parties are engaged in a race—the Lago Agrio plaintiffs to bring the Ecuadorian proceedings to a close and Chevron and the Individual Petitioners to obtain evidence that they hope will demonstrate that the proceedings against them have been tainted. The Lago Agrio plaintiffs have refused to stay or cooperate in efforts to stay the Ecuadorian proceedings pending resolution of this and other efforts by Chevron and the Individual Petitioners to obtain proof of their allegations through the collection of evidence in the United States. They thus have forced this and other courts to choose between conducting expedited proceedings or depriving Chevron and the Individual Petitioners of meaningful opportunities to obtain relief here.
Chevron and the Individual Petitioners have responded to their plight in Ecuador by bringing a series of actions in the United States under Section 1782 of the Judicial Code
Donziger is at the center of this controversy. While he is a member of the New York Bar and years ago worked on a predecessor to the Lago Agrio lawsuit that was brought in this Court, he is not qualified to practice law in Ecuador. He does not serve as litigation counsel there. He nevertheless has been extremely active in support of the Lago Agrio plaintiffs.
The evidence before this Court shows that Donziger has attempted to (1) intimidate the Ecuadorian judges, (2) obtain political support for the Ecuadorian lawsuit, (3) persuade the GOE to promote the interests of the Lago Agrio plaintiffs, (4) obtain favorable media coverage, (5) solicit the support of celebrities (including Daryl Hannah and Trudie Styler) and environmental groups, (6) procure and package "expert" testimony for use in Ecuador, (7) pressure Chevron to pay a large settlement, and (8) obtain a book deal. Among his efforts was his persuasion of Joseph Berlinger, a documentary film maker, to make a documentary about the Lago Agrio litigation from the plaintiffs' point of view. That film, entitled Crude, purports to tell the story of the Lago Agrio litigation. It is no exaggeration to say that Donziger is the star of the film, much of which focuses on his words and activities.
Crude contains a good deal of material that casts Donziger and his cause in a negative light, although that doubtless was not the aura in which he expected to appear when he acted and spoke before Mr. Berlinger's cameras. Crude itself contains evidence that (1) Donziger participated in a supposedly neutral focus group conducted by one Carlos Beristain, who provided a report used by Cabrera to support the damages assessment, thus calling into question the impartiality of the global assessment,
Crude prompted Chevron and the Individual Petitioners to seek production of Mr. Berlinger's outtakes—the footage he shot that did not appear in the film. That effort was largely successful,
The outtakes are even more disturbing. They contain statements by Donziger that the Ecuadorian court system is corrupt, that the Lago Agrio plaintiffs can prevail only by pressuring and intimidating the courts, and that the facts have to be twisted to support the plaintiffs' theories. Donziger's own words raise substantial questions as to his possible criminal liability and amenability to professional discipline. Among his other statements in the outtakes are these:
Nor do the outtakes stand alone. There is evidence obtained in other Section 1782 actions brought by Chevron that Donziger and others associated with him have presented false evidence and engaged in other misconduct in Ecuador. Indeed, the overall record has resulted in findings by three other district courts, in Chevron's Section 1782 proceedings against other respondents involved in the plaintiffs' efforts in the Lago Agrio case, that any claims of attorney-client privilege were overcome by the crime-fraud exception.
With this overall view of where matters stand in Ecuador and how the present controversy developed, the Court turns to a more detailed consideration of the pertinent facts.
This dispute arises in the context of nearly two decades of litigation concerning oil exploration and extraction in Ecuador by Texaco, which became a wholly-owned subsidiary of Chevron in 2001.
In 1964, Texaco Petroleum Company ("TexPet"), a subsidiary of Texaco, began oil exploration and drilling in the Oriente region of eastern Ecuador. In the following year, TexPet started operating a petroleum concession for a consortium owned in equal shares by TexPet and Gulf Oil Corporation (the "Consortium"). The GOE thereafter acquired Gulf's interest through its state-owned oil company, Petroecuador, and the GOE became the majority stakeholder in the Consortium in 1976. TexPet operated a trans-Ecuadorian oil pipeline and the Consortium's drilling activities until 1990, when Petroecuador assumed those functions. Two years later, TexPet relinquished all of its interests in the Consortium, leaving it owned entirely by Petroecuador.
In 1993, a group of residents of the Oriente region brought a class action in this Court against Texaco arising from TexPet's role in the Consortium. The complaint, captioned Aguinda v. Texaco, alleged that "between 1964 and 1992 Texaco's oil operation activities polluted the rain forests and rivers in Ecuador." The plaintiffs sought billions of dollars on a variety of theories, including negligence, strict liability, and equity, to "redress contamination
Texaco sought dismissal of the Aguinda action on the ground of forum non conveniens. It argued, among other things, that Ecuador was an adequate and appropriate alternative forum. This Court ultimately dismissed the case on forum non conveniens grounds in 2001,
While the Aguinda litigation was pending in New York, TexPet in 1995 entered into a settlement agreement with the GOE and Petroecuador (the "Settlement") whereby TexPet agreed to perform specified remedial environmental work in exchange for a release of claims by the GOE. The release, which covered TexPet, Texaco, and related companies, encompassed "all the Government's and Petroecuador's claims against the Releases for Environmental Impact arising from the Operations of the Consortium, except for those related to the obligations contracted" under the Settlement, which were to be "released as the Environmental Remedial Work is performed to the satisfaction of the Government and Petroecuador."
Three years later, the GOE entered into an agreement with TexPet (the "Final Release") according to which the GOE agreed that the Settlement had been "fully performed and concluded" and "proceede[ed] to release, absolve, and discharge" TexPet and related companies "from any liability and claims . . . for items related to the obligations assumed by TexPet" in the Settlement.
In 2003, following the dismissal of the Aguinda action by this Court, a group of Ecuadorians, including a number of the Aguinda plaintiffs, sued Chevron in Lago Agrio, Ecuador (the "Lago Agrio litigation"). The Lago Agrio plaintiffs assert, among other things, claims for damages for deterioration of their health and the environment. They do so under an Ecuadorian statute—enacted in 1999, and thus after the Final Release—that purports to permit such actions by persons "directly affected."
It is unnecessary for present purposes to trace all of the twists and turns of the Lago Agrio litigation. It is, however, important to focus on the fact that the Lago Agrio court, to complete the "final evidentiary phase" of the litigation, ordered the
For one thing, the outtakes reveal Pablo Fajardo, one of the Lago Agrio plaintiffs' Ecuadorian lawyers,
Donziger boasted in the Crude outtakes that Cabrera "never would have [been appointed] had we not really pushed him."
The Crude outtakes reveal that Fajardo presented a PowerPoint presentation during the morning session that outlined the Plan Para Examen Pericial Global, or Plan for the Global Expert Assessment.
In the afternoon session, the group discussed the "work plan," the first document that Cabrera would be required to sign and file with the Ecuadorian court.
Outtakes recorded on the following day reveal that Donziger made clear to one of plaintiffs' U.S. environmental consultants that everything the plaintiffs were doing was to be concealed from Chevron, his "goal [being] that they don't know shit."
Thus, the Crude outtakes give substantial reason to believe that Cabrera, the supposedly neutral expert, worked in collusion with the plaintiffs and that his report was written, at least in major part, by plaintiffs and their consultants.
Dr. Calmbacher made clear also that he had "discussed what [his] findings were on this site and others" with Donziger and believes that Donziger would have known
There is still more disturbing evidence. Prior to the start of the global inspection, the Lago Agrio plaintiffs performed analyses of purported judicial inspection samples that bore the name "Selva Viva Laboratory" on the chain of custody forms. According to Dr. Calmbacher, however, there is no Selva Viva Laboratory in Ecuador—it in fact was the plaintiffs' team's hotel room, where they apparently did some rudimentary tests.
In 2003, the same year in which the Lago Agrio litigation was filed, the GOE filed a criminal complaint against the Individual Petitioners and former GOE and Petroecuador officials, alleging that they had falsified public documents in connection with the Settlement and Final Release and had violated Ecuador's environmental laws.
In 2004, the Ecuadorian Prosecutor General began an investigation of the criminal charges. The Ecuadorian Deputy Attorney General explained in an email to plaintiffs' counsel in the Lago Agrio litigation that the criminal prosecutions were potentially a "way to nullify or undermine the value of the" Settlement and Final Release, though "evidence of criminal liability established by the Comptroller [General's] Office was rejected by the prosecutor."
In 2005, Donziger solicited Joseph Berlinger to make a documentary film depicting the litigation from the perspective of the Lago Agrio plaintiffs. Berlinger agreed. For three years, he and his staff shadowed Donziger and other plaintiffs' lawyers and representatives, capturing six hundred hours of raw footage of the people and events surrounding the litigation. In 2009, Berlinger released Crude.
In 2006, while the Lago Agrio litigation was still pending, Rafael Vincente Correa Delgato was elected president of Ecuador on a platform of economic and social reform. President Correa, who describes himself as a "humanist," a "Christian of the left," and a proponent of twenty-first century socialism,
Crude outtakes include a brief interview with Donziger on his way to President Correa's January 2007 inauguration. Donziger boasted that President Correa's inauguration was a potentially "critical event" for the outcome of the Lago Agrio litigation. Soon thereafter, Donziger explained that the Lago Agrio plaintiffs and the GOE had "been really helping each other."
On January 31, 2007, Donziger met with Joseph C. Kohn of Kohn Swift & Graf, P.C., a U.S. law firm providing financial support for the Lago Agrio litigation. The outtakes depict Donziger explaining that the plaintiffs had been working with the Prosecutor General's office and that, although the criminal proceedings were closed, there is "no finality" in Ecuador.
This campaign continued. The outtakes show Donziger and others planning a press conference to pressure the Prosecutor General to bring criminal charges.
In March 2007, President Correa pledged his full support for the Lago Agrio plaintiffs.
Within a day or two, President Correa, Yanza, Fajardo, and others boarded a government helicopter together to tour the Oriente region.
The fact that there was no mention of the Texaco lawyers apparently bothered Donziger. In a telephone conversation the next day that was captured by Berlinger's cameras, Donziger said that "perhaps it is time to ask for the head of Pérez Pallares—given what the President said."
On November 30, 2007, Ecuador's new Constituent Assembly, which at least then was controlled by President Correa,
On March 31, 2008, less than a week after Cabrera reported a damages finding of $16 billion and a day before he filed his report with the court, the Individual Petitioners received notice that the new Prosecutor General had reactivated the criminal
In June 2009, the Prosecutor General's office ordered Cabrera, in his capacity as the expert who conducted the environmental analysis regarding Texaco's presence in Ecuador, to give "free and unsworn" testimony.
The Individual Petitioners now face criminal charges in Ecuador. On April 29, 2010, the Prosecutor General issued official accusations to the Individual Petitioners which were served approximately six weeks later. A preliminary hearing, which will determine whether the action will proceed, now is scheduled for November 10, 2010.
The United States and Ecuador are parties to a bilateral investment treaty (the "BIT").
In 2009, Chevron commenced an arbitration against Ecuador pursuant to the BIT. It there alleges that the GOE improperly colluded with the Lago Agrio plaintiffs in relation to the Lago Agrio litigation, abused the criminal justice system and engaged in other coercive tactics, and breached its investment agreements and treaty obligations.
As noted, Donziger was among the lawyers for the plaintiffs in the Aguinda case. When it was dismissed and the focus shifted to the Lago Agrio case in Ecuador, however, his role changed dramatically. In his own words, "[w]hen the case shifted to Ecuador, really it became much more focused on lawyers in Ecuador. It was not effective for American lawyers or the American legal team to run the case out of Ecuador."
Although Donziger and others have viewed Donziger as a member of the Lago Agrio legal team, the outtakes reveal that Donziger's activities have gone far beyond the rendition of professional legal services, even assuming that he has performed such services to any significant degree. Donziger has made clear that the Lago Agrio litigation, in his words, is not a "legal case" but a "political battle . . . being played out through a legal case,"
Donziger has served as the field general in this political battle. Indeed when asked by a plaintiffs' consulting expert for a statement of the facts of the case, Donziger remarked that he had not done any legal work in nearly two years.
On behalf of the Lago Agrio plaintiffs, Donziger, directly or indirectly, has lobbied the Ecuadorian and United States governments, raised money to support the litigation efforts, organized the plaintiffs' media campaign, and solicited and interacted with celebrity supporters. Donziger's statements, conduct, and demeanor in Crude and the outtakes, as well as other evidence, suggest that many of his activities have had little to do with the performance of legal services and a great deal to do with political activity, intimidation of
The outtakes depict Donziger and other plaintiffs representatives traveling to an ex parte meeting with a judge on March 30, 2006. At least parts of the meeting appear in Crude.
Prior to the meeting, Donziger described his plan to "intimidate," "pressure," and "humiliate" the judge:
Donziger repeatedly referred to the Ecuadorian judicial system as "weak," "corrupt," and lacking integrity. He further explained to the camera:
Over a year later, the Crude crew filmed a conversation between Donziger and Fajardo in which Donziger and Fajardo discussed the need to "be more and more aggressive" and to "organize pressure demonstrations at the court." In the same clip, Donziger referred to the litigation as a "matter of combat" that requires "actually. . . put[ting] an army together."
The outtakes captured a June 6, 2007 meeting in which Donziger outlined a strategy to pressure an Ecuadorian court. Donziger told those present that the Lago Agrio plaintiffs needed to "do more politically, to control the court, to pressure the court" because Ecuadorian courts "make decisions based on who they fear most, not based on what the laws should dictate."
Two days later, speaking directly to the camera, Donziger continued to emphasize the importance of pressuring the judge in the Lago Agrio litigation. According to Donziger, the plaintiffs' "biggest problem" had been their inability to pressure the judge. He explained that suing Chevron for moral damages or pressuring the Prosecutor General to open criminal investigations was not sufficient to make the judge feel pressure.
Finally, Donziger participated in a dinner conversation about what might happen to a judge who ruled against the Lago Agrio plaintiffs. One or more other participants in the conversation suggested that a judge would be "killed" for such a ruling. Donziger replied that the judge "might not be [killed], but he'll think—he thinks he will be . . . which is just as good."
Donziger and the Lago Agrio plaintiffs advanced several arguments in support of quashing the subpoenas, viz. that (1) the statutory and discretionary factors pertinent to Section 1782 applications were not satisfied, (2) the subpoenas are overbroad and unduly burdensome, (3) discovery from opposing counsel is disfavored, and (4) the information sought is privileged. The Court here sets out more fully its reasons for having denied the motions.
Section 1782 of the Judicial Code provides in pertinent part:
As stated in Chevron I, a district court is authorized to grant a Section 1782 application where (1) the person from whom discovery is sought resides or is found in the district of the district court to which the application is made, (2) the discovery is for use in a proceeding before a foreign tribunal, and (3) the application is made by a foreign or international tribunal or "any interested person."
The Supreme Court has identified four discretionary factors to guide the Court's determination whether to grant a Section 1782 application: (1) whether the material sought is within the foreign tribunal's jurisdictional reach and thus accessible absent Section 1782 aid; (2) the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court jurisdictional assistance; (3) whether the Section 1782 request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States; and (4) whether the subpoena contains unduly intrusive or burdensome requests.
Donziger is located in New York. Chevron and the Individual Petitioners all are "interested" persons. Chevron is a party to both the Lago Agrio litigation and the arbitration. The Individual Petitioners are facing criminal charges in Ecuador. The Ecuadorian civil and criminal courts are foreign tribunals. The BIT, a tribunal established by an international treaty, is a foreign tribunal for purposes of Section 1782 applications.
Donziger asserts that the discretionary factors weigh in favor of quashing the subpoenas.
The first three discretionary factors favor Chevron and the Individual Petitioners for the same reasons set out in Chevron I,
To be sure, Donziger is correct in arguing that the specifications describing the documents sought from him by these subpoenas probably describe also materials in Cabrera's possession. But that would not be a satisfactory answer, even assuming that Cabrera has some responsive materials and that they could be obtained by the Ecuadorian courts. Donziger's (and Cabrera's) documents in any case would be beyond the reach of the BIT tribunal. Even more important, the outtakes contain evidence that (1) the Lago Agrio plaintiffs were involved in ex parte communications with the Ecuadorian court to obtain Cabrera's appointment, and (2) Donziger and others working with him (a) met secretly with Cabrera prior to his appointment and outlined a detailed plan for his work, at least a good part of which appears to have been performed by the plaintiffs' own consultants, and (b) wrote some or all of Cabrera's report. Whatever may be in Cabrera's files, it is quite likely that the primary source of responsive material lies in Donziger's hands. Moreover, even if some responsive documents are in Cabrera's possession and could be reached by the Ecuadorian courts, it must be borne in mind that the subpoenas seek not only Donziger's files, but also his testimony. There is every reason to believe that Donziger is in a unique position to shed light on what in fact has happened in relation to this seemingly sordid tale.
The second of the discretionary factors also favors the applicants, as evidenced by the fact that numerous district courts have granted Section 1782 applications in connection with matters pending in Ecuadorian courts, including the Lago Agrio litigation.
Third, it is not likely that discovery pursuant to these applications would undermine Ecuadorian proof gathering. As noted, there is no basis for concluding that either the Ecuadorian court or the arbitral
The fourth discretionary factor—whether the additional disclosure sought would be intrusive or burdensome—overlaps with Donziger's objections based on his claim that he is an attorney adverse to Chevron and that whatever he knows or has is protected by the attorney-client privilege or work product doctrine. Accordingly, the Court proceeds to those issues.
"Courts have been ... concerned about the burdens imposed on the adversary process when lawyers themselves have been the subject of discovery requests, and have resisted the idea that lawyers should routinely be subject to broad discovery."
The Court considered all of these factors in exercising its discretion to decline to quash the subpoenas.
The Individual Petitioners are faced with a criminal prosecution that appears to have been instigated by Donziger and others working with him for the base purposes of coercing Chevron to settle and undermining a significant element of its defense in Ecuador, the release it obtained from the GOE. Chevron itself is attempting to pursue its arbitration before the BIT tribunal and to defend itself in the Lago Agrio litigation. There is substantial evidence that Donziger and others working with him have improperly (1) pressured, intimidated, and influenced Ecuadorian courts, (2) colluded with Cabrera to substitute their own biased work product for the neutral and impartial assessment that Cabrera was appointed to produce, (3) concealed that role, (4) submitted to the Ecuadorian court over the signature of Dr. Calmbacher a report that Dr. Calmbacher denies having written, and (5) colluded with the GOE. Crude and the Crude outtakes—most notably Donziger's own words—as well as other evidence obtained in other Section 1782 proceedings, make clear that Donziger is a central figure in all of this. As Donziger himself said in
In short, this is not an attempt to take the deposition of a lawyer in a routine civil case, attempts that often are made out of pique and personal animosity. The stakes here are huge both for the Individual Petitioners and for Chevron. The evidence of irregularities is powerful. Donziger's central role is undeniable. The need for his testimony and documents is very strong indeed.
The second of the Friedman factors focuses on the role of the lawyer from whom discovery is sought both in the litigation in question and in relation to the subjects on which disclosure is sought. The first of these considerations bears on the extent to which the discovery would disrupt the litigation by injecting one of the lawyers charged with its conduct into the case as a witness or by making the advocate's conduct or knowledge an issue in the proceeding. The second goes at least in part to the issue whether the lawyer is likely to have first-hand evidence that is important to the resolution of the lawsuit. Both of these considerations cut strongly against quashing the subpoenas.
It is important to recognize at the outset that Donziger is a New York, rather than an Ecuadorian, lawyer. He most assuredly is not litigating the criminal charges against the Individual Petitioners, which are in the hands of the GOE. While he is involved with the Lago Agrio plaintiffs' Ecuadorian lawyers and experts in the civil case, he is not conducting that case in the Ecuadorian courts. Perhaps even more significant, there is abundant evidence that Donziger's role in connection with events in Ecuador has been at least primarily in capacities other than that of an attorney.
The Court understands that some of Donziger's statements may have reflected some degree of hyperbole. No doubt he has brought his legal training to bear from time to time. But it remains the case that his role in Ecuador has gone far beyond the rendition of professional legal services. Courts would have no hesitation in allowing otherwise appropriate discovery of lay lobbyists, public relations consultants, media representatives, and political organizers. There is no sound reason for reaching a different result where someone with a law degree engages in similar activities. Indeed, as is shown below, it is well settled that the attorney-client privilege does not extend to communications involving a lawyer where the lawyer is engaged in such activities. That principle is instructive here.
Nor is this a case in which the applicants have sought discovery of Donziger to gain access to information that he gathered in the manner in which litigating counsel, lacking personal knowledge of any of the facts at issue in the lawsuit, normally gather information—interviewing witnesses and reviewing documents and other evidence. Rather, the proposed discovery focuses on matters concerning which Donziger is a percipient witness and a principal actor. In other words, the discovery is sought to shed light on what Donziger and those working with him did, allegedly in corrupting the process in Ecuador. The special solicitude ordinarily shown to litigation counsel with respect to discovery in the cases that they handle is unwarranted in these circumstances.
District courts have granted Chevron Section 1782 applications in a number of other cases, chiefly involving U.S. environmental consultants involved in the Lago Agrio plaintiffs' efforts in Ecuador. Nevertheless, the outtakes demonstrate that this application is unique. Donziger appears to have played a central role in questionable aspects of the Lago Agrio litigation and related events. Those previously subjected to Section 1782 discovery would have had no more than fragmentary knowledge of some of the matters at issue. The Court is unaware that any of the Section 1782 witnesses save Berlinger, for example, had any knowledge at all concerning the attempts to intimidate and pressure the Ecuadorian judiciary, the interactions with the Ecuadorian government, or the criminal prosecutions. The fact of the matter is that Donziger appears to be the leading man in this play. No one will have much of a sense of the overall plot by seeing and hearing only the lines of those few members of the supporting cast who reside in the United States and have been examined under Section 1782.
The fourth of the factors articulated in Friedman is the risk that proceeding with the deposition of adverse counsel would encounter privilege and work-product issues.
Of course, Donziger has attempted to invoke both attorney-client privilege and work product in an effort to head off any discovery against him. So too might any attorney faced with a demand for his or her documents or deposition. Hence, there is a risk that a court will have to resolve such claims whenever a litigant seeks a deposition of adverse counsel. But the Second Circuit in Friedman rejected any per se rule against even depositions of active litigation counsel.
A party invoking the attorney-client privilege has the burden of showing, as to each allegedly privileged communication, that the communication was (1) between counsel and client, (2) intended to be
This latter point is especially significant in this case. As demonstrated above, Donziger—at least in major respects—has not functioned as a lawyer with respect either to the Lago Agrio litigation or the criminal prosecution. As Crude and the outtakes make clear, his efforts have been concentrated heavily in media and public relations, lobbying, and political activism. But communications, even between lawyer and client, are not privileged unless they are made for the purpose of rendering legal advice
The work product doctrine is comparable in this respect. It "provides qualified protection for materials prepared by or at the behest of counsel in anticipation of litigation or for trial."
Not only is it important to have a proper regard for the scope and limits of the attorney-client privilege and the work product doctrine, but it is vital also to bear in mind the extent to which the motions to quash sought a wholesale departure from the normal manner in which such claims of immunity from disclosure are adjudicated.
There is a well-established procedure for the invocation of alleged privileges in response to subpoenas and other demands for tangible evidence. Those in possession, custody or control of allegedly privileged documents called for by subpoenas and document requests are obliged to enumerate the documents as to which they claim privilege and assert their privilege claims in the manner prescribed by both local and federal rules.
Where a party seeks disclosure from a witness who may have relevant information concerning allegedly privileged attorney-client communications, the fact that the witness may be asked questions that call for information as to privileged communications does not protect a witness from being deposed or called to testify at a trial or before a grand jury.
With these principles in mind, we turn to Donziger's claims.
As an initial matter, there is considerable reason to doubt that there are any, or at least many, attorney-client communications involving Donziger and subject to the subpoenas. Donziger has offered no proof of even a single communication between him and any of the Lago Agrio plaintiffs, let alone such a communication that was related to seeking or providing legal advice. And that should not be surprising in light of the fact that Donziger is not licensed to practice law in Ecuador and is not conducting the Lago Agrio litigation.
Second, most of the discovery sought by the applicants is of communications involving third parties, such as the GOE and Cabrera, who have not been shown to be within any privileged relationship.
Third, there is substantial evidence that suggests that Donziger's predominant role with respect to the matters in Ecuador is not the rendition of professional legal services, but politics, lobbying, and media and public relations. This may well be fatal to all his privilege and work product claims. Even if it is not fatal across the board, it may be fatal with respect to particular items of evidence.
Fourth, there is more than a little evidence that Donziger's activities—as several courts already have held in the context of Section 1782 applications against experts involved on the Lago Agrio plaintiffs' side—come within the crime-fraud exception to both the privilege and to work product protection.
Even assuming that Donziger is not entirely without attorney-client privilege and work product protection for reasons already referred to, he may lack protection as to substantial categories of evidence.
In the last analysis, then, denial of the motions to quash these subpoenas will require adjudication of Donziger's claims of privilege. But there is good reason to believe that those claims are exaggerated and, at least in many cases, without merit or at least questionable. So the ultimate question on the motions to quash reduces to whether the applicants' need for whatever unprivileged material Donziger possesses is sufficiently great to make adjudication of the privilege claims a worthwhile endeavor.
In this Court's judgment, the need is extremely great in view of the extraordinary evidence already before it. To turn a blind eye to evidence suggesting improper influence on and intimidation of the Ecuadorian courts by both Donziger and the GOE, improper manipulation of the criminal process in that country, knowing submission by the Lago Agrio plaintiffs of at least one fraudulent report, and improper collusion with Cabrera, the supposedly neutral court-appointed expert, could defeat the purpose of Section 1782, deprive the Individual Petitioners of evidence needed for their defense in a criminal case, and frustrate the BIT arbitration.
Considering all of the facts and circumstances before the Court, including the need to resolve privilege issues, the fact that Donziger is a lawyer and that he is allied with Chevron's adversaries in the Lago Agrio litigation is not sufficient to warrant the quashing of these subpoenas. The proper course is to allow the process to go forward and to adjudicate the claims of privilege in due course.
In the alternative, Donziger suggested that the Court limit the subpoenas to communications with Cabrera and Ecuadorian prosecutorial authorities.
First, Donziger's proposal would exclude Chevron Request 5, which relates to ex parte communications with Ecuadorian judges or judicial officers. These communications are not subject to attorney-client privilege or work product because the communications were not made in confidence between lawyer and client and were not made to others in a privileged relationship either. These communications are highly relevant to extent that they might shed light on any alleged improper communications with that court.
Second, Donziger's proposal would narrow Chevron Request 6/Individual Petitioners Request 6 inappropriately. Donziger suggested limiting the request to communications with Ecuadorian prosecutorial authorities. Such a proposal, however, would exclude any inappropriate communications between those representing the Lago Agrio plaintiffs and other GOE officials, including the office of President Correa, regarding the criminal prosecution.
Third, Donziger's suggested modifications ignore the notion that alleged improper influence is not limited to direct communications with Cabrera and prosecutorial authorities. Chevron Requests 7-19, 23-24, 26/Individual Petitioners Requests 7-19, 21-22, 24, relate to laboratories, environmental consulting firms, and specific consulting experts that might have been involved with the alleged improper influence on the Cabrera report.
Finally, the Court is not convinced that the subpoena would require "wholesale turnover" of Donziger's files related to the Lago Agrio litigation. The Ecuadorian court appointed and swore Cabrera as the expert responsible for the "global assessment" in 2007. Cabrera submitted his initial report approximately one year after his appointment and a supplemental report several months later. As a result, many of the subpoena requests are effectively limited to a two-year period. The Court is still not prepared to find that the subpoenas require modification or impose an undue burden on Donziger.
For the foregoing reasons, as well as those set forth in the Court's prior ruling, the motions to quash the subpoenas were denied in the exercise of the Court's discretion.
SO ORDERED.
