Chevron Corp. v. DonzigerREPLYN.D. Cal.April 1, 2013 Case No. C 13-80038- MISC CRB (NMC) REPLY IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Richard Herz [admitted pro hac vice] rick@earthrights.org Marco Simons [SBN #237314] marco@earthrights.org Michelle Harrison michelle@earthrights.org Marissa Vahlsing marissa@earthrights.org EARTHRIGHTS INTERNATIONAL 1612 K Street NW, Suite 401 Washington, DC 20006 Telephone: (202) 466-5188 Facsimile: (202) 466-5189 Jose Luis Fuentes jlf@siegelyee.com Siegel & Yee 499 14th Street Ste 300 Oakland, CA 94612 Tele: (510) 839-1200 Facsimile: (510) 444-6698 Attorneys for Non-Party Amazon Watch UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA CHEVRON CORP., Plaintiff, v. STEVEN DONZIGER, et al. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. C 13-80038-MISC CRB (NMC) REPLY IN SUPPORT OF NON-PARTY AMAZON WATCH’S MOTION TO QUASH AND/OR MODIFY DEPOSITION SUBPOENAS; DECLARATION OF RICHARD HERZ; DECLARATION OF ATOSSA SOLTANI Case3:13-mc-80038-CRB Document54 Filed04/01/13 Page1 of 82 Case No. C 13-80038- MISC CRB (NMC) REPLY IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i TABLE OF CONTENTS TABLE OF AUTHORITIES................................................................................................................................. ii I. INTRODUCTION AND SUMMARY OF ARGUMENT....................................................................... 1 II. ARGUMENT ..................................................................................................................................................... 2 A. Chevron’s claim that Amazon Watch has waived its objections is meritless.................................... 2 1. Amazon Watch’s motion is not untimely................................................................................................. 2 2. Even if Amazon Watch’s motion was untimely, waiver is unwarranted ................................................... 4 B. Chevron’s subpoena would unduly burden Amazon Watch............................................................... 5 1. Chevron has not met its initial burden to show that the information it seeks is highly relevant ................... 6 2. Chevron cannot meet its burden to show that the testimony it seeks is otherwise unavailable ...................... 9 C. Amazon Watch was not a member of any conspiracy .......................................................................10 1. Chevron’s attempt to smear Amazon Watch violates the First Amendment ...........................................10 2. Amazon Watch did not participate in, nor was it aware of, any conspiracy ............................................11 D. Chevron’s subpoenas violate the First Amendment...........................................................................13 E. Chevron seeks confidential business information...............................................................................14 F. Chevron should pay the reasonable costs of any deposition ............................................................14 G. If the deposition is permitted, the Court should issue an appropriate protective order...............15 III. CONCLUSION ...............................................................................................................................................15 Case3:13-mc-80038-CRB Document54 Filed04/01/13 Page2 of 82 Case No. C 13-80038- MISC CRB (NMC) REPLY IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii TABLE OF AUTHORITIES FEDERAL CASES Andersion v. Abercrombie & Fitch Stores Inc., No. 06-cv-991, 2007 WL 1994059 (S.D. Cal. July 2, 2007).................................................... 3 n.1 Cent. 21 Real Est., LLC v. All Prof. Realty, Inc., 2:10-CV-2751 WBS GGH, 2012 WL 2090434 (E.D. Cal. 2012).................................................5 Compaq Computer Corp. v. Packard Bell Electronics, Inc., 163 F.R.D. 329 (N.D. Cal. 1995).....................................................................................................14 E.E.O.C. v. Safeway Store, Inc., C-00-3155 TEH(EMC), 2002 WL 31947153 (N.D. Cal. 2002) ..................................................5 Gonzales v. Google, Inc., 234 F.R.D. 674 (N.D. Cal. 2006).................................................................................................. 5-6 Innomed Labs, LLC v. Aha Corp., 211 F.R.D. 237 (S.D.N.Y. 2002) ................................................................................................ 3 n.1 Karr v. Napolitano, C 11-02207 LB, 2012 WL 1965855 (N.D. Cal. 2012) ....................................................................5 Mattel Inc. v. Walking Mt. Productions, 353 F.3d 792 (9th Cir. 2003) .............................................................................................................7 McCoy v. S.W. Airlines Co., Inc., 211 F.R.D. 381 (C.D. Cal. 2002) .......................................................................................................4 NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) ................................................................................................................1, 10, 11 Perry v. Schwarzenegger, 591 F.3d 1126 (9th Cir. 2010) ..............................................................................................1, 11, 13 Pioche Mines Consol Inc. v. Dolman, 333 F.2d 257 (9th Cir. 1964) ....................................................................................................... 3 n.1 Simplex Mfg. Co. v. Chien, C12-835RAJ, 2012 U.S. Dist. LEXIS 124625 (W.D. Wash. Aug. 31, 2012) .............................7 U.S. ex rel. Pogue v. Diabetes Treatment Ctr. of Am., Inc., 238 F. Supp. 2d 270 (D.D.C. 2002) ........................................................................................... 3 n.1 Williams v. City of Weed, CIVS07-1787 FCD EFB, 2008 WL 1733026 (E.D. Cal. Apr. 10, 2008) ............................... 4-5 LOCAL RULES Local Rule 30-1 ..............................................................................................................................................1, 2 Case3:13-mc-80038-CRB Document54 Filed04/01/13 Page3 of 82 1 Case No. C 13-80038- MISC CRB (NMC) REPLY IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION AND SUMMARY OF ARGUMENT In arguing that AW has somehow waived its right to object to Chevron’s burdensome and unconstitutional subpoena, Chevron seeks to profit from its own violation of Local Rule 30-1. That Rule required Chevron to meet and confer about the schedule. But it refused, and now claims waiver based on its assertion that AW did seek relief prior to Chevron’s unilateral “deadline.” Even that claim is false, because AW filed a motion to enlarge time. Thus, Chevron’s argument that the Court should not even consider AW’s burden, First Amendment, and other objections is nothing more than the claim that AW purportedly filed the wrong kind of motion. It is no wonder that Chevron wants the Court to ignore the merits. Judge Kaplan recently denied discovery into the same issues Chevron seeks here, because inter alia it is not sufficiently important. Dkt. 48-1, Order at 65. That disposes of Chevron’s claim that it is “highly relevant.” And given the vast, if not unprecedented amount of discovery Chevron has already received, Chevron cannot show that the evidence it seeks is unavailable elsewhere. Indeed, Chevron does not even attempt to show that it cannot otherwise obtain the specific evidence it seeks. Nor does it deny the huge burden preparing for this subpoena will place on AW, a small non-profit. Chevron repeats its shameful and baseless claim that AW was a member of a conspiracy. That could not salvage its subpoena; in the Order referenced above, Judge Kaplan found “inferences” that the subpoena target, non-party Patton Boggs, knew of and was involved in the alleged conspiracy, Dkt 48-1, Order at 61, but still denied the kind of discovery Chevron wishes to impose on AW. Regardless, the “evidence” Chevron provides does not remotely support its false claim that AW joined or intended to further any conspiracy. Indeed, NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), forecloses Chevron’s effort to brand AW as a co-conspirator based on AW’s exercise of its First Amendment rights. Chevron’s subpoena is constitutionally infirm because it seeks testimony regarding the internal campaign strategy of its political opponent. Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010). Chevron does not seriously dispute this; rather it falls back on its bogus fraud argument. Thus, at bottom, it asks this Court to ignore the First Amendment protections in Claiborne Hardware Case3:13-mc-80038-CRB Document54 Filed04/01/13 Page4 of 82 2 Case No. C 13-80038- MISC CRB (NMC) REPLY IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in order to violate the First Amendment protections in Perry. Chevron has opted not to depose Ms. Soltani in her individual capacity, nor even listed her as a potential alternate. See Herz Decl., Ex. G. Thus, although Chevron forced AW to brief the issue, it is now moot. But because Chevron also claims that Ms. Soltani is still “under subpoena,” Dkt. 52 at 1, n.1, whatever that means, Chevron’s failure to oppose AW’s objections here should preclude any attempt to depose her twice. Last, the fact that Chevron is unwilling to agree to a protective order that would prevent Chevron itself from learning the campaign strategy of its critics, even though it has agreed to such protections for others, confirms that Chevron seeks this information at least in part for a non- litigation purpose that the Court should not allow. II. ARGUMENT A. Chevron’s claim that Amazon Watch has waived its objections is meritless. 1. Amazon Watch’s motion is not unt imely . According to Chevron, AW did not file a “timely motion” and has thus waived the right to even object to the subpoena. Dkt. 52 at 2-5. That is wrong. First, what Chevron asserts to be a deadline that triggered waiver was no deadline at all. Local Rule 30-1 prohibits precisely what Chevron did: order a deponent to appear on the date of its choosing while refusing to meet and confer about scheduling. AW repeatedly informed Chevron that Ms. Soltani, AW’s designated 30(b)(6) representative, did not have adequate time to prepare; reminded Chevron that AW had not received Chevron’s position on the numerous objections AW raised in a detailed letter and that the substantive meet-and-confer had not concluded; and noted Chevron’s Local Rule 30-1 obligation. Dkt. 27-1 at 15, 16, 19. Rather than working with AW to agree on a schedule that would allow the parties to finish the substantive meet-and-confer and either brief any disputes or allow Ms. Soltani time to prepare, Chevron declared that it could dictate the date of the deposition and the “deadline” for filing a motion to quash, Dkt. 27-1 at 15, 17, and unequivocally refused to extend the time. Dkt. 1 at 3-4; Dkt 27-1 at 18 (“we cannot grant an extension”); Id. at 17 (“your client’s appearance is not excused.”); Id. at 15-16 (“We will not extend Case3:13-mc-80038-CRB Document54 Filed04/01/13 Page5 of 82 3 Case No. C 13-80038- MISC CRB (NMC) REPLY IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the time.”). Since Chevron violated Rule 30-1, there was no “properly noticed deposition;” the cases Chevron cites are therefore irrelevant. See Dkt. 52 at 2-3.1 Second, AW did file a motion prior to the noticed date. In an abundance of caution, AW filed an ordinary motion to enlarge time, so the parties could finish the meet-and-confer. Chevron concedes that “Rule 45(c)(3)(A)(i) provides the vehicle for the exact type of challenge that underlies Amazon Watch’s motion to enlarge time.” Dkt. 27 at 3 (emphasis in original). Thus, their argument is that AW waived its rights, not because it impermissibly sought relief, but rather because it allegedly filed the wrong motion. Does a deponent’s right to raise objections-including those asserting well-established First Amendment protections-really turn on such empty formalism? Last, Chevron mischaracterizes the meet-and-confer. See Dkt. 52 at 3-5. The nub of Chevron’s claim is that AW’s arguments were somehow “available to them” prior to the completion of the meet-and-confer. Id. at 3. Chevron pretends that the deposition subpoena raised no different issues than the document subpoena. Id. But AW sent Chevron a detailed letter outlining its objections to the deposition subpoena, Dkt. 4, Ex. U, and while it is certainly true that both subpoenas suffer from many of the same infirmities, AW’s February 20th letter identified a host of issues unique to the deposition subpoena. Dkt. 44 at 4-5 & n.5; Dkt. 27-1 at 30-35. Thus, prior to the March 1 meet-and-confer, AW did not know Chevron’s position on these issues and, thus, could not know the need for, or scope of, a motion to quash. Dkt. 44 at 4, n.4; Dkt. 1 at 2-3; Dkt. 31 at 1- 2, 6-8.2 1None of Chevron’s cases, see Dkt. 52 at 2-3, address a motion to extend time filed prior to the noticed date. In contrast to AW’s good faith effort to meet and confer, each of Chevron’s cases involved improper behavior to evade discovery or failure to respond in any way. See Pioche Mines Consol Inc. v. Dolman, 333 F.2d 257, 269 (9th Cir. 1964) (finding deponent’s repeated “failure to appear was willful” and “a direct flaunting of the authority of the court”); Andersion v. Abercrombie & Fitch Stores Inc., No. 06-cv-991, 2007 WL 1994059 (S.D. Cal. July 2, 2007) (finding objections were waived where a party failed to respond to a document subpoena in any way prior to the noticed date of production); U.S. ex rel. Pogue v. Diabetes Treatment Ctr. of Am., Inc., 238 F. Supp. 2d 270, 278 (D.D.C. 2002) (finding motion to quash untimely when originally filed in the wrong court 3 months after return date, and filed in the correct court 10 months after the return date); Innomed Labs, LLC v. Aha Corp., 211 F.R.D. 237, 240 (S.D.N.Y. 2002) (noting that even if the party seeking discovery had properly sought leave of court to re-depose, court would have denied request since subpoena lacked “reasonable particularity”-even though target of subpoena failed to respond by date of deposition). 2 Under Chevron’s view, every issuing party could, like Chevron, refuse to meet and confer about scheduling and force a deponent to seek a protective order based on a premature motion to quash, and claim waiver if she does not. Chevron’s position would eviscerate Local Rule 30-1. Case3:13-mc-80038-CRB Document54 Filed04/01/13 Page6 of 82 4 Case No. C 13-80038- MISC CRB (NMC) REPLY IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Chevron’s assertion that AW sought delay is belied by the fact that the meet-and-confer was completed on March 1-a mere three days after Chevron’s unilateral “deadline.” And even that “delay” could easily have been shortened or avoided by Chevron. AW asked Chevron for a response in writing to AW’s letter during the brief absence of its lead attorney-who was most familiar with the issues-so that counsel could ascertain Chevron’s position, confer with its client, and then negotiate by phone upon lead counsel’s return a few days later. See Dkt. 1 at 3; see also Dkt. 3 at 7 & n.12. That approach was exceedingly reasonable, since AW’s counsel hoped that Chevron would be willing to engage in a real meet-and-confer involving compromise on both sides. Chevron, however, refused to provide a written response. Its refusal is particularly inexplicable, since Chevron ultimately refused to compromise one iota on any substantive issue. See Dkt. 31 at 7-8; Dkt. 44 at 4-6.3 In short, according to Chevron, AW should either have sat for the deposition with insufficient time to prepare, or filed a premature and potentially unnecessary motion to quash without knowing Chevron’s position. In these circumstances, AW’s motion to extend time was eminently reasonable, and procedurally proper, and the motion to quash was timely. 2. Even i f Amazon Watch’s motion was unt imely , waiver i s unwarranted. Even if the Court finds that AW failed to timely object by filing a motion to enlarge time instead of a motion to quash, the circumstances do not warrant the extreme sanction of waiver. Courts have refused to find waiver where: (1) the subpoena is overbroad on its face and exceeds the bounds of fair discovery; (2) the subpoenaed witness is a non-party acting in good faith; and (3) counsel for the witness and counsel for the subpoenaing party were in contact concerning the witness’ compliance prior to the time the witness challenged the legal basis for the subpoena. McCoy v. S.W. Airlines Co., Inc., 211 F.R.D. 381, 385 (C.D. Cal. 2002). Moreover, where the subpoena is directed at a non-party and much of the information sought is likely obtainable from the parties, 3 Chevron misleadingly cites AW’s counsel’s statement that there was not sufficient time for a call, Dkt. 52 at 4, without noting the reasons-that Chevron had not responded to AW’s letter and that AW was on that day (Friday) finishing its motion to quash the document subpoena due Monday-and worse, without noting that AW tried to arrange a call for that Tuesday. Dkt 27-1 at 16. That is hardly “run[ning] out the discovery clock.” Dkt. 52 at 4. What forced AW to file a motion to enlarge time was not, as Chevron claims, id. at 4, n.2, the need for a teleconference-both parties agreed on that-but rather Chevron’s refusal to confer over the schedule and to provide its position in writing while AW’s lead counsel was away and its insistence that AW seek relief before Chevron had provided its position. Dkt. 44 at 4, n.4. Case3:13-mc-80038-CRB Document54 Filed04/01/13 Page7 of 82 5 Case No. C 13-80038- MISC CRB (NMC) REPLY IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that also weighs against waiver. Williams v. City of Weed, CIVS07-1787 FCD EFB, 2008 WL 1733026 at *3 (E.D. Cal. Apr. 10, 2008). All of these circumstances exist here. First, the 24 topics and 18 subtopics are overly broad, exceedingly vague, and would cover thirteen years. Dkt. 44 at 6-10, n.8, n.9, Herz Decl., Ex. A. Moreover, Chevron seeks information that Judge Kaplan has already suggested is not central to Chevron’s case. See infra, Section II.B.1. Second, AW acted in good faith. AW reasonably asked for a short extension of Chevron’s unilateral “deadline” to allow time to finish the meet-and-confer. In an effort to reach a mutually acceptable compromise on the merits, AW provided its objections and offered proposals that would allow AW to begin preparation on the issues of highest priority to Chevron. See Dkt. 44 at 5. AW never refused to sit for deposition, but asked for adequate time to prepare. See Dkt. 27-1 at 19, 35. Chevron refused to compromise at all. Dkt. 31 at 7-8. Third, as the previous paragraph suggests, prior to the noticed date, AW was in frequent contact with Chevron regarding compliance with the subpoena. See Dkt 1; Dkt. 44; Dkt. 27-1 at 29, 31-35; see, e.g., Cent. 21 Real Est., LLC v. All Prof. Realty, Inc., 2:10-CV-2751 WBS GGH, 2012 WL 2090434 at *4 (E.D. Cal. 2012); Williams, 2008 WL 1733026 at *3. Fourth, as detailed below, Chevron almost certainly could obtain-or has already obtained- much of the information sought from parties to the underlying litigation, or the many non-parties that have been subpoenaed. See infra Section II.B.2. & n.7. In short, waiver is a “harsh sanction” inappropriate here. See E.E.O.C. v. Safeway Store, Inc., C- 00-3155 TEH(EMC), 2002 WL 31947153 at *2 (N.D. Cal. 2002); Karr v. Napolitano, C 11-02207 LB, 2012 WL 1965855 at *6 (N.D. Cal. 2012) (“complete waiver” would be “disproportionately harsh”). AW did not “unjustifiably delay[] discovery,” E.E.O.C., 2002 WL 31947153 at *2, and there is no prejudice; Chevron only finalized its Rule 16 list of deponents days ago. See Herz Decl., Ex. G. B. Chevron’s subpoena would unduly burden Amazon Watch. Chevron does not dispute that the burden on AW to comply with its subpoena would be overwhelming. Dkt. 52 at 5. Instead, it suggests a sufficient showing of relevance and need necessarily overcomes any burden, no matter how large. Id. That is incorrect. Courts balance the Case3:13-mc-80038-CRB Document54 Filed04/01/13 Page8 of 82 6 Case No. C 13-80038- MISC CRB (NMC) REPLY IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 relevance of and need for the information with the potential hardship to the non-party. Gonzales v. Google, Inc., 234 F.R.D. 674, 680 (N.D. Cal. 2006). Thus, burden is no secondary consideration. The extreme burden placed on AW easily outweighs Chevron’s need; indeed Chevron can show neither that the information it seeks is relevant nor that it is unobtainable from other sources. Chevron’s further claim that any burden is not undue because AW is a co-conspirator fails along with its conspiracy theory. 1. Chevron has not met i t s ini t ia l burden to show that the information i t seeks i s highly re l evant . Chevron fails to mention that its claim that the discovery it seeks in both the deposition and document subpoenas is central to its case has been rejected by Judge Kaplan. According to Chevron, it needs from AW information about “how Donziger and his co- conspirators” allegedly “used AW’s name and public relations pulpit” as part of an effort to compel Chevron to settle the Ecuador litigation. Dkt. 52 at 6. But in the underlying litigation, Chevron sought broad discovery from Patton Boggs (“PB”), one of the law firms representing the LAPs, based on the argument that the LAPs’ Ecuadorian counsel and agents had resisted discovery. Dkt. 48-1. The discovery Chevron served on PB explicitly sought “communications relating to AMAZON WATCH” and many of the same topics as sought here, including: communications among any LAP “related parties” and any NGOs; communications with media, stock market analysts, energy industry journalists; all documents related to protests, rallies, marches, and demonstrations related to Chevron and all documents related to the entities involved; communications between LAP related parties and any US government official, agency, employee, Congress, and any State Attorney General or Comptroller’s office. See Herz Decl., Ex. B (Requests 40-43, 45, 52-54).4 PB objected to 4 Compare with the noticed topics from the 30(b)(6) subpoena: 15 (the LAPs, and AW’s communications with the LAPs), 20 (communications with LAP related parties about the judgment), 21 (communications relating to the allegations in Chevron’s complaint), 10 (communications related to protests, rallies, demonstrations), 12 (communications with U.S. government agencies, Congress, NYC Comptroller), 9 (communications with LAP related parties about publications, press releases, etc., including public relation campaigns), 11 (communications with owners, managers, content providers of related websites), 23(a)-(h) (communications with LAP activists, media, NGOs, energy industry analysts, stock analysts, investment professionals, authors, artists, filmmakers, etc.). See Dkt. 1, Ex. A (30(b)(6) subpoena). The document subpoena issued to AW includes many of the same requests, e.g.: 6 (communications with U.S. and state level government agencies, Congress), 7 (communications with LAP related parties, NGOs, etc.), 17 (documents concerning protests, rallies, Case3:13-mc-80038-CRB Document54 Filed04/01/13 Page9 of 82 7 Case No. C 13-80038- MISC CRB (NMC) REPLY IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that discovery, Dkt. 48-1, Order at 2, and Judge Kaplan refused to order it, based in part on the “desirability of focusing only on that which is most important.” Dkt. 48-1, Order at 65. The court limited discovery of PB to specific factual issues regarding Chevron’s allegation that the Ecuadorian judgment was fraudulent. Id. at 65-66 (limiting discovery to the alleged bribery of the judge and authorship of the judgment; the submission of certain reports to the court; the termination of the judicial inspection; the appointment of the expert and the preparation and submission of his report; and the submission in U.S. courts of allegedly deceptive accounts of the LAPs’ relationship with the expert). Given Judge Kaplan’s refusal to order the same discovery Chevron seeks in the deposition and document subpoenas here, Chevron can hardly claim it is relevant, let alone “highly relevant.” Regardless, Chevron misstates its burden. It suggests that if AW has any relevant information, the subpoena in its entirety is valid. In fact, however, the relevance of each particular topic must be assessed individually. Indeed, courts will quash an overbroad subpoena even if it seeks some relevant information. See Mattel Inc. v. Walking Mt. Productions, 353 F.3d 792, 813 (9th Cir. 2003) (upholding decision to quash subpoena where topics were “way too broad for the explanation given”); Simplex Mfg. Co. v. Chien, C12-835RAJ, 2012 U.S. Dist. LEXIS 124625 at *7-8 (W.D. Wash. Aug. 31, 2012) (quashing subpoena because although “it is possible that some of the requests . . . are narrowly drawn to seek relevant information,” the requesting party “has not given the court enough information to reach that conclusion”). Chevron has refused to “tailor” the subpoena “to the immediate needs of the case” and failed to provide a sufficient explanation to justify the breadth of the subpoena. See Mattel, 353 F.3d at 813; see also Dkt. 44 at 6-10, 13-14. Chevron makes no attempt to defend any particular topic. It has not met its burden. Chevron’s claim that AW has highly relevant evidence because it was a member of a conspiracy fails because Chevron cannot show-and AW was not-a member of any conspiracy. See infra, Section II.C.2. Chevron asserts that “AW played what Donziger described as ‘an absolutely marches, demonstrations), 21 (communications with any media professional or organization, stock market analysts, investment professionals, energy analysts), 22 (communications with owners, managers, administrators of any related website). See Dkt. 4, Ex. E (document subpoena). Case3:13-mc-80038-CRB Document54 Filed04/01/13 Page10 of 82 8 Case No. C 13-80038- MISC CRB (NMC) REPLY IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 critical role’ in the underlying RICO conspiracy.” Dkt. 52 at 6 (quoting Dkt. 38-14). But, of course, Donziger did not say there was a conspiracy, let alone that AW was a part of it. Dkt. 38-14. AW’s advocacy for justice for communities in Ecuador was not because of the legal case; it preceded the legal case. Dkt. 37 at 41-3 ¶¶6-11. And the Defendants did not control AW. See Dkt. 41 at 6-7 & n. 14; Dkt. 49 at 7-9; Dkt. 37 at 4. In short, AW’s campaign about Chevron’s history of environmental degradation is protected expression, not evidence of a conspiracy. Regardless, what Chevron claims makes AW a “co-conspirator” is AW’s public campaign. But discovery on that topic is precisely what Judge Kaplan refused to order. Nor can Chevron show that AW has evidence regarding the obtaining of the allegedly fraudulent Ecuadorian judgment-the core of Chevron’s RICO action.5 AW had nothing to do with litigating the case in Ecuador, and thus nothing to do with obtaining the judgment. See Dkt. 49 at 6- 7.6 Indeed, when Chevron sought documents from Patton Boggs regarding alleged fraud leading to the judgment, it told Judge Kaplan that “[f]ew of these documents will be in the hands of third parties,” explicitly including AW. Herz Decl. Ex. D at 21. The court agreed, determining PB was the proper source because “it is doubtful that [the third parties Chevron has subpoenaed] will provide Chevron with the discovery it seeks from PB.” Dkt 48-1, Order at 68. Chevron’s claim that AW witnessed “illegal acts” by Donziger is also meritless. Dkt. 52 at 6 (citing Dkt. 38-6). The discussion Chevron references did not involve “illegal acts.” See infra, Section II.C.2. But even accepting Chevron’s mischaracterization, that discussion had nothing to do with the alleged false reports or ghostwritten judgment. Chevron notes that AW sometimes worked out of the same office space in Ecuador as members of the LAPs’ legal team. Dkt. 52 at 7 (citing Dkt. 52-9 at 3-4). But the cited document refutes the very inference they seek to draw; Donziger specifically confirmed that “[AW] is not part 5 Chevron’s theory of the case is that Defendants forged reports submitted to the Ecuadorian court; pressured the Ecuadorian court to appoint a neutral expert, Cabrera, and then paid him and ghostwrote his reports; and ultimately paid the judge and ghostwrote the judgment. Dkt. 42 at 3-4. 6 Chevron’s own evidence proves that AW was not member of the legal team. Dkt. 52-9 at 3-4. AW never “submitted any evidence or findings to the court” or “assist[ed] the court appointed expert in preparing his submissions to the court.” Dkt. 37 at 43 ¶15; see also id. at 51 ¶ 6, 59 ¶19. Case3:13-mc-80038-CRB Document54 Filed04/01/13 Page11 of 82 9 Case No. C 13-80038- MISC CRB (NMC) REPLY IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of the legal team,” and that, for precisely that reason, “there is a lot we do that we do not share with them.” Dkt. 52-9 at 3-4. Likewise, Chevron observes that an intern for the LAPs’ legal team traveled to the jungle with an AW staffer “to examine the damage.” Dkt. 52 at 7; Dkt. 52-9 at 4. But Chevron does not claim that it needs information about that trip, Donziger specifically warned the intern about sharing information with the AW staffer because he was not a member of the legal team, Dkt. 52-9 at 4, and the fact that an AW staffer traveled with an intern hardly suggests a conspiracy. 2. Chevron cannot meet i t s burden to show that the tes t imony i t seeks i s o therwise unavai lable . Chevron also fails to meet its burden to prove that the evidence it seeks is unavailable from more appropriate sources, including the Defendants themselves. According to Chevron, the Defendants “relied on AW to bring the news of [their] corrupt efforts to Chevron’s doorstep in the United States,” and they therefore seek discovery regarding how Donziger and his co-defendants “used” AW for this purpose. Dkt. 52 at 6. Even assuming any of that is true, which it is not, evidence of Defendants’ alleged effort to use AW would be in the Defendants’ possession. But Chevron has already had vast discovery from the defendants and non-parties, including nearly unfettered access to anything in Donziger’s possession or control, see Dkt. 44 at 7-8 & n.6; Dkt. 41 at 3-4 & n.6, and 16 days of deposition from Donziger, see Herz Decl. Ex. E at 22, and has issued over 100 subpoenas.7 Yet Chevron still has no evidence that AW had any intent to participate in a conspiracy (assuming the Defendants conspired), because AW did not. Chevron claims that it needs evidence from AW because Defendants have resisted discovery. But it cannot meet its burden to show that it has been unable to obtain the specific evidence it seeks. As noted, Chevron seeks evidence about AW’s political campaign in the United States. Dkt. 52 at 6. But the Orders Chevron cites refer, at least to the extent one can tell, largely to 7 A January 2013 filing by PB in the underlying litigation shows that as of that date, Chevron had “issued 102 subpoenas” relating to the same topics as the PB subpoena, “issued 31 additional subpoenas on the eve of the discovery deadline[ ]”, and “obtained approximately 320 hours of depositions,” Herz Decl., Ex. E at 22, Ex. F, not including the 21 Rule 16 depositions it has yet to conduct. Herz Decl. Ex. G. At least 52 of the subpoenas have requested information related to the Cabrera report, 16 about the Calmbacher report, 17 regarding the alleged “ghostwriting”, and 31 regarding alleged undue influence over the judiciary. Herz Decl. Ex. C at 16-17. Case3:13-mc-80038-CRB Document54 Filed04/01/13 Page12 of 82 10 Case No. C 13-80038- MISC CRB (NMC) REPLY IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 evidence located in Ecuador.8 And Judge Kaplan required the Defendants to answer interrogatories, Dkt. 14, Ex. 22 at 1-2, and Patton Boggs to provide documents, Dkt 48-1, to afford Chevron even that information. Regardless, it makes no sense for Chevron to rely on Judge Kaplan’s finding that Defendants have resisted discovery, given his further finding that the information Chevron seeks here was not sufficiently important to warrant discovery. See supra, Section II.B.1 (citing Dkt. 48-1, Order at 65). Chevron also asserts that Donziger was unable to answer certain questions at deposition. Dkt. 52 at 7. But Chevron cites only three examples-and two are the same question. Donziger’s alleged inability to answer two questions during 16 days of deposition cannot justify the 24 topics and 18 subtopics in this subpoena.9 Chevron’s further claim that it cannot obtain communications with AW for which Donziger has claimed privilege is addressed to the wrong court. Dkt. 52 at 6-7. If Donziger’s assertion of privilege is unwarranted, Chevron can obtain those documents by challenging it in the underlying litigation. If the assertion is meritorious, Chevron is not entitled to the documents here either, and cannot evade that limit by asking for the privileged information in deposition. C. Amazon Watch was not a member of any conspiracy. 1. Chevron’s at tempt to smear Amazon Watch vio lates the First Amendment . Chevron claims that AW is a member of a conspiracy largely based on AW’s advocacy campaign. But as AW has explained in detail, Dkt. 49 at 3-6, individuals’ First Amendment rights are not limited simply because their partners in expressive activity violated the law in furtherance of their joint campaign. Claiborne Hardware, 458 U. S. at 908, 915, 919-20, 934. To show that the First Amendment does not protect AW’s political advocacy, Chevron must prove that AW had “a specific 8 Dkt. 52 at 6, 14 citing Dkt. 38-2 at 1 (“[Defendants have] utterly refused to comply with court orders directing them to comply with discovery of documents and information in the possess ion o f the ir Ecuadorian counse l .”) (emphasis added, language Chevron omits in bold); Dkt. 14, Ex. 22 at 1-2 (Defendants “refus[ed] to produce responsive documents located in Ecuador.”) (emphasis added); Dkt. 48-1 at 46-47 (noting the RICO defendants’ refusal to produce documents in the “control of their attorneys and agents in Ecuador”) (emphasis added). 9 The fact that Donziger did not know whether AW had communicated with the SEC confirms that Chevron’s claim that Donziger controlled AW is false. And the notion that the answer to that question is somehow central to Chevron’s claims has already been rejected by Judge Kaplan. Case3:13-mc-80038-CRB Document54 Filed04/01/13 Page13 of 82 11 Case No. C 13-80038- MISC CRB (NMC) REPLY IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 intent to further an unlawful aim.” Id. at 925-26; accord id. at 920; id. at 933 (party must have “agreed to use unlawful means.”). Chevron simply cannot show that AW had the requisite “specific intent” to further any illegal aims. See infra, Section II.C.2. Chevron erroneously suggests that Claiborne Hardware somehow does not apply because this is a discovery dispute. Dkt. 52 at 13-14. But that case limits the conduct that can be defined as illegal. And defining AW’s conduct as illegal is central to Chevron’s argument. It claims that the subpoena reflects AW’s “role in the conspiracy,” Dkt. 52 at 1 (internal quotations omitted), and that “AW is an active co-conspirator,” id. at 5, and that as a result, AW “is not . . . entitled to the protections of Rule 45 against undue burden,” id., or to the protections of the First Amendment. Id. at 10. Chevron cannot have it both ways. It cannot argue that its broad subpoena is justified and that AW can be stripped of constitutional and Rule 45 rights because AW was a conspirator, and then spin on its heel and argue that it need not meet the strict standards of Claiborne Hardware, which carefully limit who can be deemed a conspirator. 2. AW did not part i c ipate in , nor was i t aware o f , any conspiracy . Chevron’s latest attempt to tarnish AW by its association with the Defendants, Dkt. 52 at 10-13, proves no more effective than its previous efforts. Its conspiracy theory against AW cannot survive even the most cursory review, let alone review with the “extreme care” that Claiborne Hardware requires. 458 U. S. at 915-16, 926-27. Chevron claims that the fact that Donziger and Ecuadorian lawyers for the LAPs are listed in the “core group” somehow suggests that AW was a member of the alleged conspiracy. Dkt. 52 at 10. Nonsense. They are so designated because AW worked with them, not on the case, but on the “formulation of campaign strategy and messages.” Perry, 591 F.3d 1147, 1165 n.12 (emphasis added, original emphasis deleted); Dkt. 42-41. That advocacy campaign was designed to call public attention to Chevron’s pollution in Ecuador and to ask Chevron to provide justice for the victims. Dkt. 37 at 2-3. It has nothing to do with Chevron’s allegations of fraudulent evidence and ghostwritten judgments. As detailed above, AW was not a member of the legal team and was not involved in the legal case. Dkt. 52-9 at 3-4. Nor does AW’s core group designation conflict, as Chevron suggests, Case3:13-mc-80038-CRB Document54 Filed04/01/13 Page14 of 82 12 Case No. C 13-80038- MISC CRB (NMC) REPLY IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 with AW’s showing that the Defendants did not direct AW’s campaign. Dkt. 52 at 10. That AW worked on campaign strategy with others does not mean that it acted under their control. Indeed, while Chevron cites Judge Kaplan’s finding that there is probable cause to believe that the Defendants engaged in fraudulent activity with respect to the Ecuadorian judiciary, Dkt. 52 at 10, Judge Kaplan refused to require the discovery Chevron sought that specifically related to AW and its campaign. See supra, Section II.B.1.10 Chevron recycles selective quotes taken out of context. Dkt. 52 at 11-13.11 AW has already refuted Chevron’s baseless assertion that AW acts at Donziger and the Defendants’ direction. See, e.g., Dkt. 37 at 4; id. at 43, ¶¶12-13; id. at 45-46 ¶22; Dkt. 41 at 6-7 & n. 14.12 Chevron claims that AW published untrue information. Dkt. 52 at 12-13. Even accepting Chevron’s mischaracterization of the evidence, it would be an unwarranted leap of logic to conclude this means that AW was a conspirator. Regardless, as AW has explained, once David Russell asked AW not to use his $6 billion figure, AW stopped using it going forward. See, e.g., Dkt. 49 at 8 & n.11; Dkt. 37 at 46 ¶25.13 Chevron’s latest submission confirms just that. Dkt. 52-4 at 13 (Donziger affirms that AW stopped using the Russell figure after Russell repudiated it).14 Similarly, when doubt arose as to Bill Powers’s “Exxon Valdez” figure, AW stopped using that figure as well. Dkt. 37 at 4; Dkt. 49 at 12.15 Thus, 10 Judge Kaplan devoted 36 pages to Defendants’ alleged criminal activities, but did not even mention AW. Dkt. 48-1 at 14-50. Indeed, Judge Kaplan “limited” discovery “to the subjects as to which Chevron has established probable cause to suspect fraud or criminal activity,” Dkt 48-1, Order at 5, suggesting there has been no such showing with respect to the advocacy campaign. 11 Chevron’s reliance on quotes from the Crude outtakes continues its pattern of using such quotes to mislead; the director of Crude, who spent three years filming the LAPs legal team, was “dismayed at the level of mischaracterizations [by Chevron] . . . The footage citations are being taken out of context and not being presented to the court in its entirety, creating numerous false impressions.” Dkt. 52!7 at 4. 12See also Dkt. 42 at 6; Dkt. 37 at 5 n.7 (addressing Chevron’s “propaganda” argument); Dkt. 37 at 45 ¶21 (addressing the “press release” arguments); id. at 47 ¶30 (addressing the “propaganda” argument); id. at 51-52 ¶¶9-12 (addressing Chevron’s “patently false” argument about “press releases” and “wholly misleading” “propaganda” argument). 13 Chevron can cite only a single instance in which AW “continued to use” the figure, which was “a mistake on our part since we had previously decided not to reference Mr. Russell’s report.” Dkt. 37 at 47 ¶27. Chevron’s claim that the figure continues to appear on AW’s website refers to old, archived documents. Dkt. 37 at 46-47, ¶¶ 23-24, 27. Regardless, AW had reason to believe the figure was, if anything, too low. Dkt. 37 at 46 ¶26. 14 That Donziger told Ms. Soltani the $6 billion figure was an overestimate, Dkt. 52 at 12 & n.9, makes no difference. That conversation took place in December, 2006, after AW decided to stop using this number. See Chevron’s own submission in Case No. 11-00691-LAK, Dkt. 365 at ¶ 28. 15 Chevron supports its tired claim that AW continues to use this figure with only an old Case3:13-mc-80038-CRB Document54 Filed04/01/13 Page15 of 82 13 Case No. C 13-80038- MISC CRB (NMC) REPLY IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Chevron is reduced to arguing that “fail[ure] to correct” past, allegedly false statements or the failure to remove archived statements on AW’s website is somehow evidence of conspiracy. It is not. Chevron attempts the same gambit with respect to postings about the Cabrera report, Dkt. 52 at 11, but here the archived material, Dkt. 52-5; Dkt. 52-6, is on chevrontoxico.com, not AW’s website. Dkt. 52-1, Monagas Decl. at 3 ¶¶17-19. And the most recent posting noted Chevron had accused the LAPs of fraud with respect to the report, and that as a result, the court had decided to order new assessments. Dkt. 52-7 at 2. This hardly shows conspiracy.16 Last, Chevron claims that AW “exert[ed] pressure” on the Ecuadorian judiciary, Dkt. 52 at 13, but none of the “evidence” Chevron cites shows that AW did any such thing, let alone that it had any intent to further any conspiracy. Chevron cites a public lunch prepared by local women for those participating in a site inspection, at which there is no indication Ms. Soltani and the judge even spoke to each other. Dkt. 42-2; Dkt. 49 at 6 & n.5. Chevron’s latest submission reflects Ms. Soltani’s account of a conversation in which “the judge came over to [her],” thanked her for coming to the trial, and made small talk-again without any indication that Ms. Soltani tried to “pressure” the judge. Dkt. 52-10; Soltani Decl. ¶ 7. And Chevron’s further claim that “[t]hese interactions demonstrate that AW. . . served as the RICO defendants’ agents” is a non-sequitur. Dkt. 52 at 13.17 There is nothing new or availing about Chevron’s latest attempt to smear AW. It cannot show that AW knew of, or participated in, the alleged fraud at the heart of the underlying case. posting by Karen Hinton on the CHEVRONTOXICO website, Dkt. 38-8, which posting AW had no authority to prevent, Dkt. 37 at 45 ¶21, and a 2010 web story posted by AW in which Powers, affirms, under oath in a deposition by Chevron, that “the amount of toxic liquids that should not have been in the environment in Ecuador was at least 30 times the quantity or the volume of crude that was spilled in the Exxon-Valdez disaster.” Dkt. 38-10, Ex. 9; see also Dkt 37 at 52-53 ¶14. 16 Chevron’s claim that Ms. Soltani had reason to know that the Defendants planned to ghostwrite the global damages report is false; Donziger told her that the LAPs would be supporting the expert with work, Dkt. 52 at 11, n.7, but Ms. Soltani always understood that both sides supported experts with technical assistance and never understood this to mean that Cabrera’s report would be the product of fraud. Soltani Decl. ¶4. See also id. ¶5-6. 17 The meetings to which Chevron refers are permitted under Ecuadorian law and the judge also met with Chevron. Dkt. 37 at 44 ¶17. Nor is Ms. Soltani’s presence in a meeting during which the Defendants joked about “raising a private army” relevant: it is crystal clear Donziger was kidding about an “army,” as such statements were made amidst continuous laughter. E.g., Dkt. 38-6 at 7 (“And we need our own army. No! I’m just kidding [laughter]”). And, of course, no army was ever raised. Unarmed groups of campesinos and indigenous people stood outside the court in peaceful vigils, but people affiliated with Chevron outnumbered them. Dkt. 41 at 43-4, ¶¶ 14-19. Moreover, during that meeting, Ms. Soltani repudiated the statements of the RICO defendant. Dkt. 41 at 32, ¶4. Case3:13-mc-80038-CRB Document54 Filed04/01/13 Page16 of 82 14 Case No. C 13-80038- MISC CRB (NMC) REPLY IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. Chevron’s subpoenas violate the First Amendment. Chevron does not deny that it seeks information into the formulation of campaign strategy-which is protected under Perry, 591 F.3d at 1165 n.12. Dkt. 44 at 11-13. Its claims that the information is highly relevant and otherwise unavailable, Dkt. 52 at 14, are refuted above. See supra, Sections II.B.1 and 2. Chevron’s assertion that “the subpoena topics are narrowly tailored to address AW’s long-standing partnership with the RICO defendants,” id. at 14, is untrue. Chevron seeks testimony about issues far beyond the interactions between AW and the Defendants. Dkt. 44 at 8-9. E. Chevron seeks confidential business information. AW has shown that 17 subpoena topics demand important proprietary information-AW’s campaign strategies-which AW has always sought to keep confidential, and that disclosure would irreversibly impair AW’s primary function: public advocacy campaigning. Dkt. 44 at 14-15 & n.22; Dkt. 3 at 11-14, 22-24; see Compaq Computer Corp. v. Packard Bell Electronics, Inc., 163 F.R.D. 329, 338 (N.D. Cal. 1995). Chevron has not shown relevance and need sufficient to overcome AW’s showing. F. Chevron should pay the reasonable costs of any deposition. Chevron cites Judge Kaplan’s recent Order regarding PB, which denied costs to PB because “[m]any of the events in which it was involved underlie Chevron’s main allegations.” Dkt. 52 at 8-9 (quoting Dkt. 48-1 at 71). But Chevron can hardly claim that is true of AW; its alleged involvement is based on its campaign activity, exactly the subject about which Judge Kaplan denied discovery because it was not sufficiently important. See supra, Section II.B.1.18 Chevron’s suggestion that the fact that AW has so many documents potentially responsive to the document subpoena means AW must have been a conspirator is just another iteration of Chevron’s effort to brand protected First Amended expression as conspiracy. Dkt. 52 at 8. Likewise, Chevron’s notion that AW could anticipate that ordinary campaign activities would give rise to litigation erroneously assumes that AW could predict Chevron would ignore the First Amendment. The claim that AW did in fact anticipate that its actions could give rise to 18 Judge Kaplan also noted that PB is actively involved in the underlying litigation, has a stake in the outcome potentially worth “hundreds of millions of dollars,” and has initiated lawsuits against Chevron arising out of the same facts. Dkt. 48-1 at 69, 71 n.261. AW has brought no suit, has no financial interest in the case, and has limited resources. See Soltani Decl. ¶8. Case3:13-mc-80038-CRB Document54 Filed04/01/13 Page17 of 82 15 Case No. C 13-80038- MISC CRB (NMC) REPLY IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 litigation is meritless. Once again, Chevron entirely mischaracterizes the discussion, see Dkt. 41 at 32 ¶4 (Ms. Soltani explaining she did not feel comfortable with jokes being made on film, for fear they would be used against them later), but for present purposes, it is enough to note that the “private army” comment was not made by Ms. Soltani; there was no act by AW that could foreseeably lead to discovery of AW. Regardless, even if AW could somehow foresee discovery into that discussion, that would not suggest AW could foresee Chevron’s broad subpoena addressing unrelated topics. Chevron claims that efforts to reduce the extreme burden on AW amount to a request for a “special exemption” from Rule 30(b)(6). Dkt. 52 at 9. But as Chevron concedes, the Rule requires only that a witness take “reasonable measures to prepare.” Dkt. 52 at 9. There is nothing reasonable about expecting the representative of a small, non-profit, non-party to amass and learn the content of tens of thousands of documents without any limit on the required preparation time or any guidance from Chevron about which of the 24 topics and 18 subtopics are its priority. Thus, it is Chevron that seeks a special exemption from the protections Rule 45 affords non-parties. G. If the deposition is permitted, the Court should issue an appropriate protective order. Any deposition should be subject to a protective order that prevents Chevron itself from learning AW’s internal strategy and tactics. With respect to other third-parties in this case, Chevron has agreed to “a protective order limiting access to confidential documents to outside counsel until such time as those documents are introduced at trial or as exhibits in court filings.” Dkt 49-2 at 2. That Chevron is unwilling to do likewise here confirms that it seeks information from AW at least in part for improper purposes, and highlights AW’s need for the Court’s protection. IV. CONCLUSION For the forgoing reasons, the 30(b)(6) subpoena should be quashed in its entirety, or in the alternative, modified and a protective order issued. Case3:13-mc-80038-CRB Document54 Filed04/01/13 Page18 of 82 16 Case No. C 13-80038- MISC CRB (NMC) REPLY IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: April 1, 2013 Respectfully submitted EARTHRIGHTS INTERNATIONAL /s/_Richard Herz_________ Richard Herz [admitted pro hac vice] rick@earthrights.org Marco Simons marco@earthrights.org Michelle C. Harrison michelle@earthrights.org Marissa A. Vahlsing marissa@earthrights.org 1612 K Street NW, Suite 401 Washington, DC 20006 Telephone: (202) 466-5188 Facsimile: (202) 466-5189 Counsel For Non-Party Amazon Watch Case3:13-mc-80038-CRB Document54 Filed04/01/13 Page19 of 82 Case No. C 13-80038- MISC CRB (NMC) DECLARATION OF RICHARD HERZ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Marco Simons [SBN #237314] marco@earthrights.org Richard Herz [admitted pro hac vice] rick@earthrights.org Michelle Harrison michelle@earthrights.org Marissa Vahlsing marissa@earthrights.org EARTHRIGHTS INTERNATIONAL 1612 K Street NW, Suite 401 Washington, DC 20006 Telephone: (202) 466-5188 Facsimile: (202) 466-5189 Jose Luis Fuetes jlf@siegelyee.com Siegel & Yee 499 14th Street Ste 300 Oakland, CA 94612 Telephone: (510) 839-1200 Facsimile: (510) 444-6698 Attorneys for Non-Party Amazon Watch UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA CHEVRON CORP., Plaintiff, v. STEVEN DONZIGER, et al. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. C 13-80038-MISC CRB (NMC) DECLARATION OF RICHARD HERZ IN SUPPORT OF NON-PARTY AMAZON WATCH’S REPLY IN SUPPORT OF AMAZON WATCH’S MOTION TO QUASH AND/OR MODIFY DEPOSITION SUBPOENAS Case3:13-mc-80038-CRB Document54 Filed04/01/13 Page20 of 82 1 Case No. C 13- 80038-MISC CRB (NMC) DECLARATION OF RICHARD HERZ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF RICHARD HERZ I, Richard Herz, hereby declare as follows: 1. I am over the age of 18 and am competent to make this declaration. 2. I have personal knowledge of all matters set forth in this declaration. If called upon to do so I could and would testify to all matters set forth herein. 3. I am an attorney duly licensed to practice law in the State of New York. I serve as counsel for Amazon Watch with respect to the subpoena at issue, and am admitted pro hac vice in this Court. 4. Attached hereto as Exhibit A is a true and correct copy of an email I received from Enrique Monagas on March 12, 2013. 5. Attached hereto as Exhibit B is a true and correct copy of the modified document requests in Chevron’s subpoena issued to non-party Patton Boggs. 6. Attached hereto as Exhibit C is a true and correct copy of relevant excerpts from Patton Boggs’ Memorandum of Law in Support of its Motion to Quash the document subpoena. Chevron v. Donziger, Memorandum of Law in Support of Motion to Quash Subpoena for Documents and For Other Relief, No. 11-cv-0691, Dkt. 527 (S.D.N.Y. July 20, 2012). 7. Attached hereto as Exhibit D is a true and correct copy of relevant excerpts from Chevron’s Opposition to Patton Boggs’ Supplemental Submission with respect to the modified document subpoena. Chevron v. Donziger, Opposition to Patton Boggs LLP’s Supplemental Submission, No. 11-cv-0691, Dkt. 713 (S.D.N.Y. Jan. 7, 2013). 8. Attached hereto as Exhibit E is a true and correct copy of relevant excerpts from Patton Boggs’ Response to Chevron’s Supplemental brief with respect to the document subpoena. Chevron v. Donzige, Response to Chevron Corporation’s Supplemental Brief, No. 11-cv-0691, Dkt. 718, (S.D.N.Y. Jan. 7, 2013). 9. Attached hereto as Exhibit F is a true and correct copy of two exhibits submitted with Patton Boggs’ Response listing all discovery actions noticed by Chevron and all depositions carried out by Chevron across all proceedings. Case3:13-mc-80038-CRB Document54 Filed04/01/13 Page21 of 82 Case3:13-mc-80038-CRB Document54 Filed04/01/13 Page22 of 82 EXHIBIT A Case3:13-mc-80038-CRB Document54 Filed04/01/13 Page23 of 82 3/31/13 1:30 PMEarthRights International Mail - Re: FW: Amazon Watch Deposition Subpoena Page 1 of 2https://mail.google.com/mail/u/0/?ui=2&ik=2434e07365&view=pt&as_f…rique&as_subset=all&as_within=1d&search=adv&msg=13d61d92f13395dc Michelle Harrison Re: FW: Amazon Watch Deposition Subpoena Michelle Harrison Tue, Mar 12, 2013 at 11:44 PM To: Rick Herz Wow an even broader time frame than the document subpoena! On Tue, Mar 12, 2013 at 11:42 PM, Rick Herz wrote: I am back and will put in a few edits and tweak the brief to deal with this from Enrique. From: Monagas, Enrique A. [mailto:EMonagas@gibsondunn.com] Sent: Tuesday, March 12, 2013 7:12 PM To: rick@earthrights.org Cc: Blume, Robert C.; Partridge, John D.W.; Halbert, Aimee M. Subject: Amazon Watch Deposition Subpoena Rick, Following up on our meet and confer regarding the deposition subpoena directed at Amazon Watch (“AW”), below are answers to the three questions you posed. 1) COSTS: You asked “whether Chevron would cover reasonable costs.” Dkt. 31 at 3 n. 3. Because AW is a co-conspirator in fraudulent activity, Chevron will not cover the costs incurred by AW. 2) WAIVER: You asked “whether Chevron would assert that answering questions in the deposition would waive rights and privileges with respect to the document production.” Dkt. 31 at 2 n. 3. Chevron proposes that the parties engage a special master to oversee the deposition. This will ensure that AW’s objections are properly noted and evaluated before deposition testimony is elicited, thus avoiding inadvertent disclosure. 3/31/13 1:30 PMEarthRights International Mail - Re: FW: Amazon Watch Deposition Subpoena Page 2 of 2https://mail.google.com/mail/u/0/?ui=2&ik=2434e07365&view=pt&as_f…rique&as_subset=all&as_within=1d&search=adv&msg=13d61d92f13395dc 3) TIME PERIOD: You asked “the applic ble time frame about which Chevron intends to question the deponent.” Dkt. 31 at 2 n. 3. We intend to ask questions within the date range from January 1, 2000, to the time of the deposition. This timeframe is reasonable given the timeframe of the conspiracy alleged in the amended complaint. Indeed, you acknowledged in your previous letters that AW “worked for decades on advocacy for Amazonian communities living in the areas impacted by Chevron and its subsidiaries.” Although Amazon Watch was founded in 1996 and admittedly has worked on “advocacy” relating to “Chevron and its subsidiaries” for “decades,” we narrowed the timeframe to January 1, 2000, through the present. Let us know if you have any questions. Best, Enrique Enrique A. Monagas GIBSON DUNN Gibson, Dunn & Crutcher LLP 555 Mission Street, San Francisco, CA 94105-0921 Tel +1 415.393.8353 • Fax +1 415.374.8403 EMonagas@gibsondunn.com • www.gibsondunn.com This message may contain confidential and privileged information. If it has been sent to you in error, please reply to advise the sender of the error and then immediately delete this message. Case3:13-mc-80038-CRB Document54 Filed04/01/13 Page24 of 82 3/31/13 1:30 PMEarthRights International Mail - Re: FW: Amazon Watch Deposition Subpoena Page 2 of 2https://mail.google.com/mail/u/0/?ui=2&ik=2434e07365&view=pt&as_f…rique&as_subset=all&as_within=1d&search=adv&msg=13d61d92f13395dc 3) TIME PERIOD: You asked “the applicable time frame about which Chevron intends to question the deponent.” Dkt. 31 at 2 n. 3. We intend to ask questions within the date range from January 1, 2000, to the time of the deposition. This timeframe is reasonable given the timeframe of the conspiracy alleged in the amended complaint. Indeed, you acknowledged in your previous letters that AW “worked for decades on advocacy for Amazonian communities living in the areas impacted by Chevron and its subsidiaries.” Although Amazon Watch was founded in 1996 and admittedly has worked on “advocacy” relating to “Chevron and its subsidiaries” for “decades,” we narrowed the timeframe to January 1, 2000, through the present. Let us know if you have any questions. Best, Enrique Enrique A. Monagas GIBSON DUNN Gibson, Dunn & Crutcher LLP 555 Mission Street, San Francisco, CA 94105-0921 Tel +1 415.393.8353 • Fax +1 415.374.8403 EMonagas@gibsondunn.com • www.gibsondunn.com This message may contain confidential and privileged information. If it has been sent to you in error, please reply to advise the sender of the error and then immediately delete this message. Case3:13-mc-80038-CRB Document54 Filed04/01/13 Page25 of 82 EXHIBIT B Case3:13-mc-80038-CRB Document54 Filed04/01/13 Page26 of 82 ! ! ! ! ! ! ! ! ! ! ! ! ! ! EXHIBIT 3016! Case 1:11-cv-00691-LAK-JCF Document 658-23 Filed 12/12/12 Page 1 of 23Case3:13-mc-80038 CRB Document54 Filed04/01/13 Page27 of 82 Request Number Text of Request (as modified where applicable) Areas of Crime, Fraud, or Other Misconduct at Issue 1 Text of Request: All DOCUMENTS RELATED TO the scope of YOUR authority to represent or act on behalf of the LAGO AGRIO PLAINTIFFS in Ecuador, the United States, Canada or any other jurisdiction in which the LAGO AGRIO PLAINTIFFS are now seeking or plan to seek enforcement of the LAGO AGRIO JUDGMENT. Request as Modified: All DOCUMENTS discussing, referring to, or evidencing YOUR authority or YOUR authority to represent or act on behalf of the LAGO AGRIO PLAINTIFFS in Ecuador, the United States, Canada or any other jurisdiction in which the LAGO AGRIO PLAINTIFFS are now seeking or plan to seek enforcement of the LAGO AGRIO JUDGMENT. Patton Boggs is also required to produce executed retention agreements. • Purported authority to act on behalf of the LAPs (and the extent to which the lack of authority would be fraud on the court); • Management and control of RICO enterprise; • Role in procurement and enforcement of fraudulent judgment; • Illicit pressure campaign 2 Text of Request: All DOCUMENTS RELATED TO YOUR actual or potential involvement in the PREPARATION of any brief, motion, or pleading in connection with the LAGO AGRIO LITIGATION or the appeal of the LAGO AGRIO JUDGMENT. Request as Modified: All DOCUMENTS RELATED TO YOUR involvement in the PREPARATION of any brief, motion, or pleading in connection with the LAGO AGRIO LITIGATION, the alegato, the cleansing motions, and any post-judgment motion or application. • Judgment fraud; • Extortion; • Role in procurement and enforcement of fraudulent judgment; • Illicit pressure campaign. Case 1:11-cv-00691-LAK-JCF Document 658-23 Filed 12/12/12 Page 2 of 23Case3:13-mc-80038 CRB Document54 Filed04/01/13 Page28 of 82 2 Request Number Text of Request (as modified where applicable) Areas of Crime, Fraud, or Other Misconduct at Issue 3 Text of Request: All DOCUMENTS RELATED TO YOUR travel to Ecuador RELATED TO CHEVRON or the CHEVRON LITIGATIONS, including but not limited to passports, itineraries, credit card bills, receipts, invoices, expense reports, notes, sketches, diaries, calendars, trip logs, photographs, and video recordings. Request as Modified: A single travel log relating to YOUR travel to Ecuador, including the identity of each attorney, the arrival and departure dates of each trip and, with respect to each meeting relating to the Chevron litigations in any way, the dates, times, durations, and participants of such meetings. • Role in procurement and enforcement of fraudulent judgment; • Travel log would corroborate key dates and meetings with judges, experts, others in Ecuador. 5 All DOCUMENTS RELATED TO any travel by any of the LAGO AGRIO PLAINTIFFS, any of the non-U.S. resident RICO DEFENDANTS or any of the non-U.S. resident CO-CONSPIRATORS to the United States RELATED TO CHEVRON or the CHEVRON LITIGATIONS, including but not limited to passports, itineraries, credit card bills, receipts, invoices, expense reports, notes, sketches, diaries, calendars, trip logs, photographs, and video recordings. • Judgment fraud; • Extortion; • Illicit pressure campaign. 8 All DOCUMENTS RELATED TO any power of attorney granted by any LAGO AGRIO PLAINTIFF to anyone, including but not limited to YOU, Pablo Fajardo Mendoza, Luis Yanza, Julio Prieto Mendéz, Juan Pablo Sáenz, or Ermel Chávez, related to the LAGO AGRIO LITIGATION. • Patton Boggs’s and others’ purported authority to act on behalf of the LAPs (and the extent to which the lack of authority would be fraud on the court); • Management and control of RICO enterprise; • Role in enforcement of fraudulent Case 1:11-cv-00691-LAK-JCF Document 658-23 Filed 12/12/12 Page 3 of 23Case3:13-mc-80038 CRB Document54 Filed04/01/13 Page29 of 82 3 Request Number Text of Request (as modified where applicable) Areas of Crime, Fraud, or Other Misconduct at Issue judgment. 9 Text of Request: All DOCUMENTS RELATED TO the funding of the LAGO AGRIO LITIGATION or the CRIMINAL CASES. Request as Modified: All final executed funding agreements relating to the LAGO AGRIO LITIGATION or the CRIMINAL CASES. • Extortion; procurement and enforcement of fraudulent judgment; • Management of RICO enterprise; • Money laundering; • Fraud on third-party funders of litigation. 13 All DOCUMENTS RELATED TO meetings or COMMUNICATIONS between any PERSON on the one hand, and the ROE, on the other hand, REGARDING CHEVRON or the CHEVRON LITIGATIONS, including but not limited to meetings or COMMUNICATIONS with President Rafael Correa and his staff, all government ministries (including the Ministry of Environment), all executive branch agencies, prosecutors, legislators, judicial bodies, and judges. • Extortion; • Procurement and enforcement of fraudulent judgment; • Unlawful threats to and intimidation of members of judiciary; • Bribery; • Improper government influence over result of Lago Agrio litigation. 14 All DOCUMENTS RELATED TO the writing, drafting, creation, editing, advance knowledge of, or revision by any of the LAGO AGRIO PLAINTIFF RELATED PARTIES of any official communication, order, statement, ruling, report, judgment, sentencia, escrito, providencia, edict, or other writing issued by the LAGO AGRIO COURT, any appellate court reviewing any ruling of the LAGO • Extortion; • Role in procurement and enforcement of fraudulent judgment; • Unlawful threats to and intimidation Case 1:11-cv-00691-LAK-JCF Document 658-23 Filed 12/12/12 Page 4 of 23Case3:13-mc-80038 CRB Document54 Filed04/01/13 Page30 of 82 4 Request Number Text of Request (as modified where applicable) Areas of Crime, Fraud, or Other Misconduct at Issue AGRIO COURT, or ROE REGARDING CHEVRON or the CHEVRON LITIGATIONS. of members of judiciary; • Illicit pressure campaign; • Bribery. 16 All DOCUMENTS RELATED TO the CRIMINAL CASES and any purported basis for the CRIMINAL CASES, including documents PROVIDED to the Ecuadorian Attorney General in support of criminal prosecution. • Extortion; • Judgment fraud; • Role in procurement and enforcement of fraudulent judgment; • Illicit pressure campaign. 17 All DOCUMENTS RELATED TO any suspected, purported, or actual fraudulent testing, sampling, or measuring of samples by the LAGO AGRIO PLAINTIFFS, the LAGO AGRIO PLAINTIFF RELATED PARTIES, the LAGO AGRIO PLAINTIFF CONSULTANTS, the LAGO AGRIO PLAINTIFF LABORATORIES or CHEVRON. • Extortion; • Procurement and enforcement of fraudulent judgment; • Illicit pressure campaign; • Manufacturing of evidence in Lago Agrio litigation. 18 All DOCUMENTS RELATED TO Dr. Charles Calmbacher including but not limited to: a. All DOCUMENTS RELATED TO the PREPARATION or filing of any DOCUMENT purportedly submitted to the LAGO AGRIO COURT by Dr. Charles Calmbacher or in the name of Dr. Charles Calmbacher; b. All DOCUMENTS RELATED TO any payments to Dr. Charles • Procurement and enforcement of fraudulent judgment; • Manufacturing of evidence in Lago Agrio litigation; • Witness tampering Case 1:11-cv-00691-LAK-JCF Document 658-23 Filed 12/12/12 Page 5 of 23Case3:13-mc-80038 CRB Document54 Filed04/01/13 Page31 of 82 5 Request Number Text of Request (as modified where applicable) Areas of Crime, Fraud, or Other Misconduct at Issue Calmbacher in connection with the LAGO AGRIO LITIGATION; and c. All DOCUMENTS RELATED TO COMMUNICATIONS with Dr. Charles Calmbacher RELATING TO his [March] 29, 2010 deposition. 19 All DOCUMENTS RELATED TO any COMMUNICATIONS between any of the LAGO AGRIO PLAINTIFF RELATED PARTIES and the COURT EXPERTS, including but not limited to all AGREEMENTS with, payments or benefits conferred or to be conferred upon, the COURT EXPERTS, whether before, during, or after the COURT EXPERT’s appointment by the LAGO AGRIO COURT. • Extortion; • Procurement and enforcement of fraudulent judgment; • Bribery of court officials; • Illicit pressure campaign • Money laundering. 20 All DOCUMENTS RELATED TO the writing, drafting, creation, editing, or revision of any DOCUMENT or draft DOCUMENT or other writing filed with the LAGO AGRIO COURT, including but not limited to any DOCUMENT or draft DOCUMENT or other writing filed with the LAGO AGRIO COURT under the signature of or in the name CABRERA. • Extortion; • Procurement and enforcement of fraudulent judgment; • Illicit pressure campaign • Manufacturing evidence. 21 All DOCUMENTS RELATED TO CABRERA or the PURPORTED CABRERA TEAM, including but not limited to: a. All DOCUMENTS RELATED TO the selection and appointment of CABRERA as an expert in the LAGO AGRIO LITIGATION; • Extortion; • Procurement and enforcement of fraudulent judgment; • Illicit pressure campaign; Case 1:11-cv-00691-LAK-JCF Document 658-23 Filed 12/12/12 Page 6 of 23Case3:13-mc-80038 CRB Document54 Filed04/01/13 Page32 of 82 6 Request Number Text of Request (as modified where applicable) Areas of Crime, Fraud, or Other Misconduct at Issue b. All DOCUMENTS RELATED TO the inclusion of any PERSON in Annex V of the CABRERA REPORT; c. All COMMUNICATIONS with CABRERA or any member of the PURPORTED CABRERA TEAM; d. All DOCUMENTS RELATED TO meetings with CABRERA or any member of the PURPORTED CABRERA TEAM; e. All DOCUMENTS RELATED TO the planning, drafting, writing, revision, finalization, translation, and submission of THE CABRERA REPORTS, including but not limited to Annex H-1 of the CABRERA REPORT; f. All DOCUMENTS RELATED TO the CABRERA WORKPLAN; g. All DOCUMENTS RELATED TO the planning, drafting, writing, revision, finalization, translation, and submission of any and all filings submitted in the LAGO AGRIO LITIGATION purportedly by or in the name of CABRERA; h. All DOCUMENTS RELATED TO payments or compensation to CABRERA or any member of the PURPORTED CABRERA TEAM, including but not limited to payments made through the bank account referred to as the “secret account” in DONZ-HDD-0124585; i. All DOCUMENTS RELATED TO WORK by any of the LAGO AGRIO PLAINTIFF CONSULTANTS appearing in whole or in part in THE CABRERA REPORTS or any DOCUMENT filed in the LAGO AGRIO LITIGATION by CABRERA; j. All DOCUMENTS RELATED TO revisions, edits, modifications or changes made by any and all lawyers to THE CABRERA REPORTS, including • Manufacturing evidence; • Money laundering. Case 1:11-cv-00691-LAK-JCF Document 658-23 Filed 12/12/12 Page 7 of 23Case3:13-mc-80038 CRB Document54 Filed04/01/13 Page33 of 82 7 Request Number Text of Request (as modified where applicable) Areas of Crime, Fraud, or Other Misconduct at Issue but not limited to changes made by or at the direction of any LAGO AGRIO PLAINTIFF RELATED PARTY who is or purports to be a lawyer; k. All DOCUMENTS RELATED TO CABRERA’s independence or lack thereof or claims or statements made by any PERSON or entity relating to CABRERA’s independence or lack thereof; l. All DOCUMENTS RELATED TO any claims that any member of the PURPORTED CABRERA TEAM acted independent of the LAGO AGRIO PLAINTIFF RELATED PARTIES; m. All DOCUMENTS RELATED TO the independence or lack of independence of any member of the PURPORTED CABRERA TEAM; n. All DOCUMENTS RELATED TO public comments on the CABRERA REPORT; o. All COMMUNICATIONS with the ROE RELATED TO CABRERA or THE CABRERA REPORTS; p. All COMMUNICATIONS RELATED TO CABRERA or the CABRERA REPORT with any PERSON who financially supported or invested in, was asked to financially support or invest in, or offered to financially support or invest in the LAGO AGRIO LITIGATION; q. All DOCUMENTS RELATED TO samples taken for THE CABRERA REPORTS; and r. All DOCUMENTS RELATED TO CABRERA’s scheduled deposition, including but not limited to COMMUNICATIONS among any of the LAGO AGRIO PLAINTIFF RELATED PARTIES REGARDING pressuring the Case 1:11-cv-00691-LAK-JCF Document 658-23 Filed 12/12/12 Page 8 of 23Case3:13-mc-80038 CRB Document54 Filed04/01/13 Page34 of 82 8 Request Number Text of Request (as modified where applicable) Areas of Crime, Fraud, or Other Misconduct at Issue LAGO AGRIO COURT to prevent the deposition 22 All DOCUMENTS RELATED TO the work of Uhl, Baron, Rana & Associates for the LAGO AGRIO PLAINTIFFS, or any attempts to pass off that work as being on behalf of CABRERA or to conceal any facts related to that work. • Extortion; • Procurement and enforcement of fraudulent judgment; • Illicit pressure campaign; • Manufacturing evidence. 23 All DOCUMENTS RELATED TO the work of the POST-CABRERA CLEANSING CONSULTANTS, including but not limited to the Weinberg Group, Douglas C. Allen, P.A.; Jonathan Shefftz; JShefftz Consulting; Lawrence W. Barnthouse; Carlos E. Picone; Daniel L. Rourke; R. Paolo Scardina; Alejandro Garro; Dagmar Schmidt Etkin; Environmental Research Consultants; Industrial Economics, Inc.; and any other PERSONS whose work was sought for the purpose of submitting reports to the LAGO AGRIO COURT REGARDING damages assessments in 2010, or any attempts to pass off their work as not being dependent on any of CABRERA’s alleged work product or to conceal any facts related to their work. • Extortion; • Role in procurement and enforcement of fraudulent judgment; • Illicit pressure campaign; • Manufacturing evidence. 24 All DOCUMENTS RELATED TO the writing, drafting, creation, editing, or revision of any DOCUMENT or draft DOCUMENT or other writing filed with the LAGO AGRIO COURT under the signature of, in the name of, or purported to be authored by, any of the POST-CABRERA CLEANSING CONSULTANTS. • Extortion; • Procurement and enforcement of fraudulent judgment; • Manufacturing evidence; • Illicit pressure campaign. Case 1:11-cv-00691-LAK-JCF Document 658-23 Filed 12/12/12 Page 9 of 23Case3:13-mc-80038 CRB Document54 Filed04/01/13 Page35 of 82 9 Request Number Text of Request (as modified where applicable) Areas of Crime, Fraud, or Other Misconduct at Issue 26 Text of Request: All DOCUMENTS RELATED TO COMMUNICATIONS between the LAGO AGRIO PLAINTIFFS or any of the LAGO AGRIO PLAINTIFF RELATED PARTIES, on the one hand, and any judge, official, or employee of the LAGO AGRIO COURT, or any judge, official, or employee of any other court in the ROE, on the other hand, RELATED TO the CHEVRON LITIGATIONS. Request as Modified: All DOCUMENTS RELATED TO COMMUNICATIONS between the LAGO AGRIO PLAINTIFFS or any of the LAGO AGRIO PLAINTIFF RELATED PARTIES, on the one hand, and any judge, official, or employee of the LAGO AGRIO COURT, or any judge, official, or employee of any other court in the ROE, on the other hand, RELATED TO the CHEVRON LITIGATIONS. The term “LAGO AGRIO PLAINTIFF RELATED PARTIES” shall mean the “RICO DEFENDANTS, COCONSPIRATORS, FRONT, ASSEMBLY OF THE AFFECTED; LAGO AGRIO PLAINTIFF LAW FIRMS; LAGO AGRIO PLAINTIFF CONSULTANTS; LAGO AGRIO PLAINTIFF LOBBYISTS; LAGO AGRIO PLAINTIFFS PUBLIC RELATIONS CONSULTANTS,” for purposes of this Specification. [Tr. 95:15-22.].” • Extortion; • Procurement and enforcement of fraudulent judgment; • Unlawful threats to and intimidation of members of the judiciary; • Bribery; • Money laundering. 27 Text of Request: All DOCUMENTS RELATED TO Judge Alberto Guerra Bastidas; Judge Efrain Novillo Guzmán; Judge Germán Yánez Ricardo Ruiz; Judge Juan Evangelista Núñez Sanabria; Judge Leonardo Ordóñez Pina; and Judge Nicolás Augusto Zambrano Lozada in both their judicial and nonjudicial capacities. • Extortion; • Procurement and enforcement of fraudulent judgment; • Unlawful threats to and intimidation of members of the judiciary; Case 1:11-cv-00691-LAK-JCF Document 658-23 Filed 12/12/12 Page 10 of 23Case3:13-mc-80038- RB Document54 Filed04/01/13 Page36 of 82 10 Request Number Text of Request (as modified where applicable) Areas of Crime, Fraud, or Other Misconduct at Issue Request as Modified: All DOCUMENTS RELATED TO communications, actual or proposed, with Judge Alberto Guerra Bastidas; Judge Efrain Novillo Guzmán; Judge Germán Yánez Ricardo Ruiz; Judge Juan Evangelista Núñez Sanabria; Judge Leonardo Ordóñez Pina; and Judge Nicolás Augusto Zambrano Lozada in both their judicial and nonjudicial capacities relating to the LAGO AGRIO LITIGATION. • Bribery; • Illicit pressure campaign; • Money laundering. 28 All DOCUMENTS RELATED TO the drafting, use, and distribution of the UNFILED LAGO AGRIO PLAINTIFFS’ WORK PRODUCT in connection with the LAGO AGRIO JUDGMENT or any appellate court review of the LAGO AGRIO JUDGMENT. • Extortion; • Procurement and enforcement of fraudulent judgment; • Manufacturing evidence; • Unlawful threats and intimidation of members of judiciary; • Money laundering; • Bribery. 29 All DOCUMENTS RELATED TO the writing, drafting, editing, advance knowledge of, or revision of the LAGO AGRIO JUDGMENT by any of the LAGO AGRIO PLAINTIFF RELATED PARTIES. • Extortion; • Procurement and enforcement of fraudulent judgment; • Manufacturing evidence; • Unlawful threats and intimidation of Case 1:11-cv-00691-LAK-JCF Document 658-23 Filed 12/12/12 Page 11 of 23Case3:13-mc-80038- RB Document54 Filed04/01/13 Page37 of 82 11 Request Number Text of Request (as modified where applicable) Areas of Crime, Fraud, or Other Misconduct at Issue members of judiciary; • Money laundering; • Bribery. 30 All DOCUMENTS PROVIDED by any LAGO AGRIO PLAINTIFF RELATED PARTY for use in any way by the author(s) of the LAGO AGRIO JUDGMENT, but not contained in the RECORD. • Extortion; • Procurement and enforcement of fraudulent judgment; • Manufacturing evidence; • Unlawful threats and intimidation of members of judiciary; • Money laundering; • Illicit pressure campaign; • Bribery. 31 Text of Request: All DOCUMENTS and COMMUNICATIONS of the LAGO AGRIO PLAINTIFF RELATED PARTIES RELATED TO the proposing, writing, drafting, creation, editing, advance knowledge, or revision of any order, statement, ruling, report, or other writing RELATED TO the LAGO AGRIO LITIGATION and issued by the LAGO AGRIO COURT, including any commenting or advising as to the content of the same. Request as Modified: • Extortion; • Procurement and enforcement of fraudulent judgment; • Manufacturing evidence; • Unlawful threats and intimidation of members of judiciary; • Money laundering; Case 1:11-cv-00691-LAK-JCF Document 658-23 Filed 12/12/12 Page 12 of 23Case3:13-mc-80038- RB Document54 Filed04/01/13 Page38 of 8 12 Request Number Text of Request (as modified where applicable) Areas of Crime, Fraud, or Other Misconduct at Issue All DOCUMENTS and COMMUNICATIONS of the LAGO AGRIO PLAINTIFF RELATED PARTIES RELATED TO the proposing, writing, drafting, creation, editing, advance knowledge, or revision of any order, statement, ruling, report, or other writing RELATED TO the LAGO AGRIO LITIGATION and issued by the LAGO AGRIO COURT, including but not limited to the LAGO AGRIO JUDGMENT, including any commenting or advising as to the content of the same. “Specification 31 is modified by limiting the term ‘LAGO AGRIO PLAINTIFF RELATED PARTIES’ as used therein to the ‘RICO DEFENDANTS, COCONSPIRATORS, FRONT, ASSEMBLY OF THE AFFECTED; LAGO AGRIO PLAINTIFF LAW FIRMS; LAGO AGRIO PLAINTIFF CONSULTANTS; LAGO AGRIO PLAINTIFF LOBBYISTS; LAGO AGRIO PLAINTIFFS PUBLIC RELATIONS CONSULTANTS’” • Illicit pressure campaign; • Bribery. . 32 Text of Request: All DOCUMENTS and COMMUNICATIONS with the ROE RELATED TO the proposing, writing, drafting, creation, editing, advance knowledge, or revision of any order, statement, ruling, report, or other writing issued in the Lago Agrio litigation, including any commenting or advising as to the content of the same. Request as Modified: All DOCUMENTS and COMMUNICATIONS with the ROE RELATED TO the proposing, writing, drafting, creation, editing, advance knowledge, or revision of any order, statement, ruling, report, or other writing issued in the Lago Agrio litigation by the LAGO AGRIO COURT or the LAGO AGRIO APPELLATE PANEL, including but not limited to the LAGO AGRIO JUDGMENT, including any commenting or advising as to the content of the same. • Extortion; • Procurement and enforcement of fraudulent judgment; • Manufacturing evidence; • Unlawful threats and intimidation of members of judiciary; • Bribery; • Money laundering; • Illicit pressure campaign; • Improper government influence over Case 1:11-cv-00691-LAK-JCF Document 658-23 Filed 12/12/12 Page 13 of 23Case3:13-mc-80038- RB Document54 Filed04/01/13 Page39 of 82 13 Request Number Text of Request (as modified where applicable) Areas of Crime, Fraud, or Other Misconduct at Issue result of Lago Agrio litigation. 33 All DOCUMENTS RELATED TO the constitution or make-up of the LAGO AGRIO APPELLATE COURT or LAGO AGRIO APPELLATE PANEL in connection with the LAGO AGRIO LITIGATION, including but not limited to the nomination, appointment, removal, dismissal, or recusal of Judge Wilfrido Enrique Erazo Araujo, Judge Luis Alberto Legña Zambrano, Judge Juan Carlos Encarnación Sanchez, Judge Cruz María Ávila Delgado, Judge Marco Antonio Yaguache Mora, Judge Milton David Rafael Toral Zevallos, and Judge Alejandro Kleber Orellana Pineda, including any “sorteos” (lotteries) and COMMUNICATIONS between the LAGO AGRIO PLAINTIFF RELATED PARTIES and the ROE REGARDING the same. • Extortion; • Procurement and enforcement of fraudulent judgment; • Manufacturing evidence; • Unlawful threats and intimidation of members of judiciary; • Bribery; • Money laundering; • Improper government influence over result of Lago Agrio litigation. 34 Text of Request: All DOCUMENTS RELATED TO Judge Milton David Toral Cevallos, Judge Luis Alberto Legña Zambrano, Judge Alejandro Kleber Orellana Pineda, Judge Juan Carlos Encarnación Sanchez, Judge Cruz María Ávila Delgado, Judge Wilfrido Enrique Erazo Araujo or Judge Marco Antonio Yaguache Mora in both their judicial and nonjudicial capacities. Request as Modified: All DOCUMENTS RELATED TO communications actual or proposed with • Extortion; • Procurement and enforcement of fraudulent judgment; • Manufacturing evidence; • Unlawful threats and intimidation of members of judiciary; • Money laundering; Case 1:11-cv-00691-LAK-JCF Document 658-23 Filed 12/12/12 Page 14 of 23Case3:13-mc-80038- RB Document54 Filed04/01/13 Page40 of 82 14 Request Number Text of Request (as modified where applicable) Areas of Crime, Fraud, or Other Misconduct at Issue Judge Milton David Toral Cevallos, Judge Luis Alberto Legña Zambrano, Judge Alejandro Kleber Orellana Pineda, Judge Juan Carlos Encarnación Sanchez, Judge Cruz María Ávila Delgado, Judge Wilfrido Enrique Erazo Araujo or Judge Marco Antonio Yaguache Mora in both their judicial and nonjudicial capacities relating to the LAGO AGRIO LITIGATION. • Bribery. 37 All DOCUMENTS RELATED TO Steven Donziger’s allocation or distribution of any of the proceeds RELATED TO the LAGO AGRIO JUDGMENT including all COMMUNICATIONS RELATING TO the same. • Extortion; • Role in procurement and enforcement of fraudulent judgment; • Money laundering; • Bribery; • Role in RICO enterprise. 40 All DOCUMENTS RELATED TO any COMMUNICATIONS by any of the LAGO AGRIO PLAINTIFF RELATED PARTIES with any current or former elected or appointed government official of the government of the United States or any state, territory, or possession thereof including any city or town RELATED TO CABRERA, alleged remediation costs or remediation damages in the Oriente attributable to CHEVRON, the extent of alleged environmental harms in the Oriente attributable to CHEVRON, any alleged fraud in connection with the TEXPET REMEDIATION AND RELEASE, the supposed independence of the LAGO AGRIO PLAINTIFFS from the Ecuadorian Government, and the supposed independence or integrity of the Ecuadorian judiciary in adjudicating the CHEVRON LITIGATIONS. This includes but is not limited to the President, any ambassador, governor, attorney general, mayor, legislator, controller, or • Extortion; • Procurement and enforcement of fraudulent judgment; • False statements in judicial proceedings; • Illicit pressure campaign; • False statements to public officials. Case 1:11-cv-00691-LAK-JCF Document 658-23 Filed 12/12/12 Page 15 of 23Case3:13-mc-80038- RB Document54 Filed04/01/13 Page41 of 82 15 Request Number Text of Request (as modified where applicable) Areas of Crime, Fraud, or Other Misconduct at Issue comptroller. Note: The parties addressed this request at a subsequent meet-and-confer. Chevron has agreed to modify the definition of “Lago Agrio Plaintiff Related Parties” so as to exclude “PURPORTED CABRERA TEAM;” “POST-CABRERA CLEANSING CONSULTANTS;” LAGO AGRIO PLAINTIFF LABORATORIES;” LAGO AGRIO PLAINTIFF ACTIVISTS;” “and any other PERSON working for or on behalf of the LAGO AGRIO PLAINTIFFS.” Chevron has also added language seeking communications relating to “AMAZON WATCH; RAINFOREST ACTION NETWORK; Acción Ecológica, including employees of Acción Ecológica; Simon Billenness;” and “any other PERSON employed, paid or contracted with to perform services for the LAGO AGRIO PLAINTIFFS.” 41 All DOCUMENTS RELATED TO any COMMUNICATION by any of the LAGO AGRIO PLAINTIFF RELATED PARTIES with any United States Government Agency or its employees including the Securities and Exchange Commission, the Department of Justice, the Department of State, and the Office of the United States Trade Representative RELATED TO CABRERA, the extent of the alleged remediation costs or remediation damages in the Oriente attributable to CHEVRON, the extent of alleged environmental harms in the Oriente attributable to CHEVRON, any alleged fraud in connection with the TEXPET REMEDIATION AND RELEASE, the supposed independence of the LAGO AGRIO PLAINTIFFS from the Ecuadorian Government, the supposed independence of the Ecuadorian judiciary in adjudicating the CHEVRON LITIGATIONS, the LAGO AGRIO JUDGMENT, the LAGO AGRIO APPELLATE DECISION, the LAGO AGRIO APPELLATE CLARIFICATION ORDER, enforcement of the LAGO AGRIO JUDGMENT, and attachment of CHEVRON’S assets. • Extortion; • Procurement and enforcement of fraudulent judgment; • False statements in judicial proceedings; • Illicit pressure campaign; • False statements to public officials. Case 1:11-cv-00691-LAK-JCF Document 658-23 Filed 12/12/12 Page 16 of 23Case3:13-mc-80038- RB Document54 Filed04/01/13 Page42 of 82 16 Request Number Text of Request (as modified where applicable) Areas of Crime, Fraud, or Other Misconduct at Issue Note: The parties addressed this request at a subsequent meet-and-confer. Chevron has agreed to modify the definition of “Lago Agrio Plaintiff Related Parties” so as to exclude “PURPORTED CABRERA TEAM;” “POST-CABRERA CLEANSING CONSULTANTS;” LAGO AGRIO PLAINTIFF LABORATORIES;” LAGO AGRIO PLAINTIFF ACTIVISTS;” “and any other PERSON working for or on behalf of the LAGO AGRIO PLAINTIFFS.” Chevron has also added language seeking communications relating to “AMAZON WATCH; RAINFOREST ACTION NETWORK; Acción Ecológica, including employees of Acción Ecológica; Simon Billenness;” and “any other PERSON employed, paid or contracted with to perform services for the LAGO AGRIO PLAINTIFFS.” 42 All DOCUMENTS RELATED TO any COMMUNICATION by any of the LAGO AGRIO PLAINTIFF RELATED PARTIES with any State Attorney General’s Office or its employees REGARDING CHEVRON or the CHEVRON LITIGATIONS. Note: The parties addressed this request at a subsequent meet-and-confer. Chevron has agreed to modify the definition of “Lago Agrio Plaintiff Related Parties” so as to exclude “PURPORTED CABRERA TEAM;” “POST-CABRERA CLEANSING CONSULTANTS;” LAGO AGRIO PLAINTIFF LABORATORIES;” LAGO AGRIO PLAINTIFF ACTIVISTS;” “and any other PERSON working for or on behalf of the LAGO AGRIO PLAINTIFFS.” Chevron has also added language seeking communications relating to “AMAZON WATCH; RAINFOREST ACTION NETWORK; Acción Ecológica, including employees of Acción Ecológica; Simon Billenness;” and “any other PERSON employed, paid or contracted with to perform services for the LAGO AGRIO PLAINTIFFS.” • Extortion; • Procurement and enforcement of fraudulent judgment; • Illicit pressure campaign; • False statements to public officials. Case 1:11-cv-00691-LAK-JCF Document 658-23 Filed 12/12/12 Page 17 of 23Case3:13-mc-80038- RB Document54 Filed04/01/13 Page43 of 82 17 Request Number Text of Request (as modified where applicable) Areas of Crime, Fraud, or Other Misconduct at Issue 43 All DOCUMENTS RELATED TO any COMMUNICATION by any of the LAGO AGRIO PLAINTIFF RELATED PARTIES with any State’s Office of the Comptroller or its employees including the Office of the New York State Comptroller, and the California State Controller’s Office REGARDING CHEVRON or the CHEVRON LITIGATIONS. Note: The parties addressed this request at a subsequent meet-and-confer. Chevron has agreed to modify the definition of “Lago Agrio Plaintiff Related Parties” so as to exclude “PURPORTED CABRERA TEAM;” “POST-CABRERA CLEANSING CONSULTANTS;” LAGO AGRIO PLAINTIFF LABORATORIES;” LAGO AGRIO PLAINTIFF ACTIVISTS;” “and any other PERSON working for or on behalf of the LAGO AGRIO PLAINTIFFS.” Chevron has also added language seeking communications relating to “AMAZON WATCH; RAINFOREST ACTION NETWORK; Acción Ecológica, including employees of Acción Ecológica; Simon Billenness;” and “any other PERSON employed, paid or contracted with to perform services for the LAGO AGRIO PLAINTIFFS.” • Extortion; • Procurement and enforcement of fraudulent judgment; • Illicit pressure campaign; • False statements to public officials 44 All DOCUMENTS RELATED TO any submission of letters, requests, complaints, or petitions on behalf of any of the LAGO AGRIO PLAINTIFF RELATED PARTIES to any international agency, including the International Commission of Jurists, the Inter-American Commission on Human Rights, the Organization of American States, Hina Jilani, or the United Nations and sub- agencies, commissions, and committees thereof RELATED TO CHEVRON or the CHEVRON LITIGATIONS. Note: The parties addressed this request at a subsequent meet-and-confer. Chevron has • Extortion; • Procurement and enforcement of fraudulent judgment; • Illicit pressure campaign; • False statements to public officials. Case 1:11-cv-00691-LAK-JCF Document 658-23 Filed 12/12/12 Page 18 of 23Case3:13-mc-80038- RB Document54 Filed04/01/13 Page44 of 82 18 Request Number Text of Request (as modified where applicable) Areas of Crime, Fraud, or Other Misconduct at Issue agreed to modify the definition of “Lago Agrio Plaintiff Related Parties” so as to exclude “PURPORTED CABRERA TEAM;” “POST-CABRERA CLEANSING CONSULTANTS;” LAGO AGRIO PLAINTIFF LABORATORIES;” LAGO AGRIO PLAINTIFF ACTIVISTS;” “and any other PERSON working for or on behalf of the LAGO AGRIO PLAINTIFFS.” Chevron has also added language seeking communications relating to “AMAZON WATCH; RAINFOREST ACTION NETWORK; Acción Ecológica, including employees of Acción Ecológica; Simon Billenness;” and “any other PERSON employed, paid or contracted with to perform services for the LAGO AGRIO PLAINTIFFS.” 45 All DOCUMENTS RELATED TO any statement or testimony prepared or given to any committee within the United States Congress RELATED TO CHEVRON or the CHEVRON LITIGATIONS. Note: The parties addressed this request at a subsequent meet-and-confer. Chevron has agreed to modify the definition of “Lago Agrio Plaintiff Related Parties” so as to exclude “PURPORTED CABRERA TEAM;” “POST-CABRERA CLEANSING CONSULTANTS;” LAGO AGRIO PLAINTIFF LABORATORIES;” LAGO AGRIO PLAINTIFF ACTIVISTS;” “and any other PERSON working for or on behalf of the LAGO AGRIO PLAINTIFFS.” Chevron has also added language seeking communications relating to “AMAZON WATCH; RAINFOREST ACTION NETWORK; Acción Ecológica, including employees of Acción Ecológica; Simon Billenness;” and “any other PERSON employed, paid or contracted with to perform services for the LAGO AGRIO PLAINTIFFS.” • Extortion; • Procurement and enforcement of fraudulent judgment; • Illicit pressure campaign; • False statements to public officials. 47 All DOCUMENTS RELATED TO COMMUNICATIONS with Karen Hinton REGARDING CHEVRON, the CHEVRON LITGATIONS, or consideration of • Extortion; • Procurement and enforcement of Case 1:11-cv-00691-LAK-JCF Document 658-23 Filed 12/12/12 Page 19 of 23Case3:13-mc-80038- RB Document54 Filed04/01/13 Page45 of 82 19 Request Number Text of Request (as modified where applicable) Areas of Crime, Fraud, or Other Misconduct at Issue enforcing or attempting to enforce the LAGO AGRIO JUDGMENT. fraudulent judgment; • Illicit pressure campaign; • False statements to public officials. 49 All DOCUMENTS RELATED TO payments of any kind made or given by any person or entity to any official, court expert, employee, representative or agent of the LAGO AGRIO COURT, including but not limited to compensation, bonuses, bribes, awards, honorariums, or gifts or exchanges of money, goods or services, regardless of form and regardless of whether such payments were ever actually offered or delivered. • Extortion; procurement and enforcement of fraudulent judgment; • Manufacturing evidence; • Unlawful threats and intimidation of members of judiciary; • Bribery; • Money laundering; • Improper government influence over result of Lago Agrio litigation. 52 All DOCUMENTS RELATED TO COMMUNICATIONS with stock market analysts, energy industry analysts, energy industry journalists, or other MEDIA professionals RELATED TO CABRERA, alleged remediation costs or remediation damages in the Oriente attributable to CHEVRON, the extent of alleged environmental harms in the Oriente attributable to CHEVRON, any alleged fraud in connection with the TEXPET REMEDIATION AND RELEASE, the supposed independence of the LAGO AGRIO PLAINTIFFS from the • Extortion; • Illicit pressure campaign. Case 1:11-cv-00691-LAK-JCF Document 658-23 Filed 12/12/12 Page 20 of 23Case3:13-mc-80038- RB Document54 Filed04/01/13 Page46 of 82 20 Request Number Text of Request (as modified where applicable) Areas of Crime, Fraud, or Other Misconduct at Issue Ecuadorian Government, and the supposed independence or integrity of the Ecuadorian judiciary in adjudicating the CHEVRON LITIGATIONS. 53 All DOCUMENTS RELATED TO any protests, rallies, marches, demonstrations, or other events (as well as all DOCUMENTS RELATED TO the entities which have organized, promoted, financed, or otherwise furthered these activities) REGARDING CHEVRON or the CHEVRON LITIGATIONS. Note: The parties addressed this request in a subsequent meet-and-confer. Chevron has agreed to delete the phrase “or other events.” • Judgment fraud; • Extortion; • Role in procurement or enforcement of fraudulent judgment; • Obstruction of justice; • Unlawful threats and intimidation of members of judiciary. 54 All DOCUMENTS RELATED to any COMMUNICATIONS between any of the LAGO AGRIO PLAINTIFF RELATED PARTIES, on the one hand, and any non- governmental organization (“NGO”) or its employees, on the other hand, REGARDING CHEVRON or the CHEVRON LITIGATIONS. Note: The parties addressed this request at a subsequent meet-and-confer. Chevron has agreed to modify the definition of “Lago Agrio Plaintiff Related Parties” so as to exclude “PURPORTED CABRERA TEAM;” “POST-CABRERA CLEANSING CONSULTANTS;” LAGO AGRIO PLAINTIFF LABORATORIES;” LAGO AGRIO PLAINTIFF ACTIVISTS;” “and any other PERSON working for or on behalf of the LAGO AGRIO PLAINTIFFS.” Chevron has also added language seeking communications relating to “AMAZON WATCH; RAINFOREST ACTION NETWORK; Acción Ecológica, including employees of Acción • Judgment fraud; • Extortion; • Role in procurement or enforcement of fraudulent judgment; • Obstruction of justice; Case 1:11-cv-00691-LAK-JCF Document 658-23 Filed 12/12/12 Page 21 of 23Case3:13-mc-80038- RB Document54 Filed04/01/13 Page47 of 82 21 Request Number Text of Request (as modified where applicable) Areas of Crime, Fraud, or Other Misconduct at Issue Ecológica; Simon Billenness;” and “any other PERSON employed, paid or contracted with to perform services for the LAGO AGRIO PLAINTIFFS.” Note: The term NGO shall be defined to encompass the organizations listed in the 2012.11.27 letter from R. Mastro to A. Young. 55 All DOCUMENTS RELATED TO COMMUNICATIONS among the LAGO AGRIO PLAINTIFF RELATED PARTIES REGARDING any plan on the part of any LAGO AGRIO PLAINTIFF RELATED PARTIES, COURT EXPERTS, or other deponents, to avoid providing responsive answers to questioning during depositions conducted in the CHEVRON LITIGATIONS, including but not limited to the 1782 ACTIONS. • Extortion; • Procurement and enforcement of fraudulent judgment; • Manufacturing evidence; • Suborning perjury; • Obstruction of justice; • Witness tampering. 56 All DOCUMENTS RELATED TO any tampering or influencing of any witness’ testimony in any of the CHEVRON LITIGATIONS whether made or contemplated, including the discouragement of witnesses from appearing for their depositions. • Extortion; • Procurement and enforcement of fraudulent judgment; • Manufacturing evidence; • Suborning perjury; • Obstruction of justice; Witness tampering. Case 1:11-cv-00691-LAK-JCF Document 658-23 Filed 12/12/12 Page 22 of 23Case3:13-mc-80038- RB Document54 Filed04/01/13 Page48 of 8 22 Request Number Text of Request (as modified where applicable) Areas of Crime, Fraud, or Other Misconduct at Issue 57 All DOCUMENTS RELATED TO any THREATS made by any of the LAGO AGRIO PLAINTIFF RELATED PARTIES to any individual who has testified, or been deposed during the LAGO AGRIO LITIGATION or the 1782 Actions. • Extortion; • Procurement and enforcement of fraudulent judgment; • Manufacturing evidence; • Suborning perjury; • Obstruction of justice; • Witness tampering. 58 All DOCUMENTS RELATED TO COMMUNICATIONS between and among the LAGO AGRIO PLAINTIFF RELATED PARTIES, whether or not including any third party, REGARDING efforts to delay or obstruct CHEVRON’S discovery efforts in any of the CHEVRON LITIGATIONS. • Extortion; • Procurement and enforcement of fraudulent judgment; • Manufacturing evidence; • Suborning perjury; • Obstruction of justice; • Witness tampering. Case 1:11-cv-00691-LAK-JCF Document 658-23 Filed 12/12/12 Page 23 of 23Case3:13-mc-80038- RB Document54 Filed04/01/13 Page49 of 82 EXHIBIT C Case3:13-mc-80038-CRB Document54 Filed04/01/13 Page50 of 82 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CHEVRON CORPORATION, Plaintiff, v. STEVEN DONZIGER et al., Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X : : : : : : : : : X 11 Civ. 0691 (LAK) ------------------------------------------------------------------------------ MEMORANDUM OF LAW IN SUPPORT OF NON-PARTY PATTON BOGGS LLP’S MOTION TO QUASH SUBPOENA FOR DOCUMENTS AND FOR OTHER RELIEF ------------------------------------------------------------------------------ Case 1:11-cv-00691-LAK-JCF Document 527 Filed 07/20/12 Page 1 of 41Case3:13 mc-80038-CRB Document54 Filed04/01/13 Page51 of 82 15 after the events depicted in the outtakes from the 2009 film Crude, on which Chevron’s Complaint relies so heavily. These events and the allegations surrounding them unmistakably form the core of Chevron’s claims. In comparison, Chevron’s accusations against Patton Boggs-i.e., that the firm coordinated additional expert reports that cited to the Cabrera Report; that the firm fought Chevron’s efforts to obtain discovery by defending against § 1782 proceedings; and that the firm is involved in enforcing the Ecuadorian judgment-are derivative of and secondary to Chevron’s fraud allegations. Indeed, this Court’s stated reasoning for upholding Chevron’s subpoena to Steven Donziger illustrates why the Patton Boggs subpoena must be, in contrast, quashed: 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 . . . normally gather information. . . . 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. In re Chevron Corp., 749 F.Supp.2d at 163. According to Chevron, Patton Boggs is and was a “witness and a principal actor” only in helping its clients respond to allegations of fraud regarding the Cabrera Report, and to obtain international recognition of a judgment through the prosecution of legal proceedings in countries where Chevron conducts business. In short, Patton Boggs is not a “witness” at all. It is entitled to the “special solicitude” identified by this Court. C. The Subpoena Demands Largely Cumulative Discovery Over the past two-and-a-half years, Chevron filed over 20 discovery actions pursuant to 28 U.S.C. § 1782 in 16 different jurisdictions throughout the United States. These proceedings resulted in the production of hundreds of thousands of pages of documents and roughly 320 hours of depositions. In fact, between its § 1782 proceedings and the Salazar proceedings, Case 1:11-cv-00691-LAK-JCF Document 527 Filed 07/20/12 Page 21 of 41Case3:13-mc-80038-CRB t54 Filed04/ 1/13 Page52 of 82 16 Chevron has served 73 subpoenas, not counting the Patton Boggs Subpoena. These prior subpoenas have the issues central to Chevron’s Complaint well-covered indeed: ! 52 respondents received demands regarding the Cabrera Report: 3TM Consulting; 3TM International; Douglas Allen, P.A.; Christopher Arthur; Banco Pichincha; Lawrence Barnthouse; Laura Belanger; Douglas Beltman; Cristobal Bonifaz; Charles Calmbacher; Charles Champ; David Chapman; Richard Clapp; Ted Dunkelberger; Steven Donziger; ELAW; E-Tech International; Laura Garr; Thomas Golojuch; Katia Fach Gomez; Google; H5; Hotmail; Peter Jones; Richard Kamp; Joseph Kohn; Kohn, Swift & Graft; Orin Kramer; Ann Maest; David Mills; Aaron Marr Page; Daria Fisher Page; Brian Parker; Jennifer Peers; Carlos Picone; William Powers; Mark Quarles; Kerry Roche; Daniel Rourke; Robert Scardina; Marla Scarola; Jonathan Shefftz; Stratus; Sun Trust Bank; Uhl, Baron, Rana & Associates; Uhl & Associates; Juan Cristobal Villao; The Weinberg Group; Matthew Weinberg; Andrew Woods; Alberto Wray; and Yahoo!.10 ! 16 respondents received demands regarding the Calmbacher Report: Douglas Allen; Christopher Arthur; Banco del Pacifico; Charles Calmbacher; Steven Donziger; Laura Garr; Katia Fach Gomez; H5; Joseph Kohn; Kohn, Swift & Graft; Aaron Marr Page; Daria Fisher Page; Brian Parker; The Weinberg Group; Andrew Woods; and Alberto Wray. 11 ! 17 respondents received demands regarding the alleged “ghostwriting” of the Ecuadorian Judgment: Douglas Allen; Christopher Arthur; Richard Clapp; Steven Donziger; ELAW; Laura Garr; Katia Fach Gomez; H5; Joseph Kohn; Kohn, Swift & Graft; Orin Kramer; Aaron Marr Page; Daria Fisher Page; Brian Parker; Uhl & Associates; The Weinberg Group; and Andrew Woods. 12 ! 26 respondents received demands regarding the supplemental experts: Douglas Allen; Christopher Arthur; Lawrence Barnthouse; Richard Clapp; Steven Donziger; Ted Dunkelberger; ELAW; Laura Garr; Thomas Golojuch; Katia Fach Gomez; H5; Joseph Kohn; Kohn, Swift & Graft; Orin Kramer; Aaron Marr Page; Daria Fisher Page; Brian Parker; Carlos Picone; Kerry Roche; Daniel Rourke; Robert Scardina; Marla Scarola; Jonathan Shefftz; The Weinberg Group; Matthew Weinberg; and Andrew Woods. 13 ! 31 respondents received demands regarding counsel’s alleged undue influence over the Ecuadorian judiciary: Douglas Allen; Christopher Arthur; Cristobal Bonifaz; Charles Champ; Richard Clapp; Ted Dunkelberger; Steven Donziger; E-Tech International; 10 See Declaration of Caroline Marino (“Marino Decl.”), Exs. 1; 2; 3; 4; 5; 6; 7; 8; 9; 10; 11; 12; 13; 14; 15; 16; 17; 19; 20; 21; 22; 23; 24; 25; 26; and 28; 29; 30; 31; 32; 33; 34; 35; 36; 37; 38; 39; 40; 41; 42; 45; 46; 4748; 50; 51; 52; 53; 54; 55; 56; 57; 58; 59; 60; 61; 62; 63; 64; 65; and 66. 11 See Marino Decl., Exs. 3; 4; 5; 7; 15; 18; 26 37; 44; 50; 52; 53; 55; 56; 57; 59; 60; 61; 62; 63; 64; and 66. 12 See Marino Decl., Exs. 2; 3; 42; 45; 50; 52; 53; 54; 55; 56; 57; 59 60; 61; 62; 63; 64; 65; and 66. 13 See Marino Decl., Exs., 2; 3; 4; 5; 11; 12; 13; 14; 15; 16; 17; 30; 31; 32; 33; 34; 35; 45; 50; 52; 53; 54; 55; 56; 57; 59; 60; 61; 62; 63; 65; 66; 66. Case 1:11-cv-00691-LAK-JCF Document 527 Filed 07/20/12 Page 22 of 41Case3:13-mc-80038-CRB t54 Filed04/ 1/13 Page53 of 82 17 ELAW; Laura Garr; Thomas Golojuch; Katia Fach Gomez; H5; HomeTown Bank; Richard Kamp; Joseph Kohn; Kohn, Swift & Graft; Orin Kramer; Aaron Marr Page; Daria Fisher Page; Brian Parker; Carlos Picone; Kerry Roche; Daniel Rourke; Robert Scardina; Marla Scarola; Jonathan Shefftz; The Weinberg Group; Matthew Weinberg; Andrew Woods; and Alberto Wray.14 ! 17 respondents received demands regarding alleged sham criminal charges against Chevron attorneys in Ecuador: Cristobal Bonifaz; Charles Champ; Steven Donziger; ELAW; E-Tech International; Laura Garr; Katia Fach Gomez; H5; Richard Kamp; Joseph Kohn; Kohn, Swift & Graft; Orin Kramer; Aaron Marr Page; Daria Fisher Page; Brian Parker; Andrew Woods; and Alberto Wray.15 Chevron does not need to access opposing counsel counsel’s litigation file for discovery concerning these same, well-tread areas of inquiry. Chevron undoubtedly will contend that Patton Boggs’ documents are somehow uniquely critical, but where it already subjected the Afectados’ lead counsel for the past 19 years, Steven Donziger, to 16 days of deposition and collected more than 18,000 documents from him, that claim rings hollow. Of the 58 document requests in Chevron’s Subpoena to Patton Boggs, 33 are identical and 23 are nearly identical to discovery demands issued to Mr. Donziger. Compare Young Decl., Ex. A with Young Decl., Ex. M. Moreover, while Chevron’s principal complaint about Patton Boggs seems to be the firm’s coordination of the supplemental expert reports submitted to the Sucumbíos Trial Court in September 2011, Chevron already obtained, through § 1782, a complete production of documents and testimony from all six of the experts who prepared these reports.16 Chevron also obtained additional documents on the “cleansing report” issue from the Weinberg Group-the consulting firm hired to oversee preparation of these reports-in the U.S. District Court for the District of Columbia, and is now pursuing the 14 See Marino Decl., Exs. 3; 6; 8; 10; 11; 13; 14; 15; 16; 17; 26; 31; 32; 33; 35; 45; 50; 52; 53; 54; 56; 57; 59; 60; 61; 62; 65; 66. 15 See Marino Decl., Exs. 2; 3; 4; 5; 6; 7; 8; 9; 10; 26; 50; 52; 53; 54; 55; 57; 59; 60 61; 62; 63; 64; 65. 16 Chevron Corporation v. Rourke, 8:10-cv-02989-AW (D. Md.); Chevron Corp. v. Picone, No. 8:10-mc-02990-AW (D.Md.); Chevron Corp. v. Barnthouse, No. 1:10-mc-00053-SSB (S.D. Ohio); Chevron Corporation v. Scardina, No. 7:10-mc-00067-JCT (W.D. Va.); Chevron Corporation v. Allen, No. 2:10-mc-00091-WKS (D. Vt.); Chevron Corporation v. Shefftz, No. 1:10-mc-10352-JLT (D. Mass.). Case 1:11-cv-00691-LAK-JCF Document 527 Filed 07/20/12 Page 23 of 41Case3:13-mc-80038-CRB t54 Filed04/ 1/13 Page54 of 82 18 Weinberg Group’s privileged documents in that proceeding.17 The possibility that Chevron could potentially acquire some quantity of additional documents from Patton Boggs regarding these subjects does not justify disrupting the adversarial process with an incursion into opposing counsel’s litigation file. II. THE SUBPOENA PRIMARILY SEEKS DOCUMENTS PROTECTED BY THE ATTORNEY- CLIENT PRIVILEGE AND THE ATTORNEY WORK PRODUCT DOCTRINE The attorney-client privilege “recognizes that sound legal advice or advocacy . . . depends upon the lawyer’s being fully informed by the client.” Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981). Similarly, the work product doctrine has its roots in the “orderly prosecution and defense of legal claims.” Hickman v. Taylor, 329 U.S. 495, 510 (1947). The doctrine is fundamental to our adversarial system: It is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. . . . This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways[.] Hickman, 329 U.S. at 510-11. “Opinion” or “core” work product-which can reveal the “mental impressions, conclusions, opinions, or legal theories of an attorney or other representative-is entitled to even greater, “special protection.” In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180, 183 (2d Cir. 2007) (citing United States v. Adlman, 134 F.3d 1194, 1197 (2d Cir. 1998)); Upjohn Co. v. United States, 449 U.S. 383, 401-02 (1981). For the past two years, Patton Boggs has appeared on behalf of the Afectados in numerous federal district courts and courts of appeal, and has supported co-counsel in still other jurisdictions, particularly in terms of bearing the legal-briefing load. The vast majority of its 17 See Chevron Corporation v. The Weinberg Group, No. 1:11-mc-00409-JMF (D. D.C.). 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