UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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CHEVRON CORPORATION,
Plaintiff,
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STEVEN R. DONZIGER, et al.,
Defendants.
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Case No. 11 Civ. 0691 (LAK)
CHEVRON CORPORATION’S MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANTS HUGO GERARDO CAMACHO NARANJO AND JAVIER PIAGUAJE
PAYAGUAJE’S MOTION,
JOINED BY THE DONZIGER DEFENDANTS,
TO STRIKE AFFIDAVITS ACCOMPANYING CHEVRON’S
MOTION FOR PARTIAL SUMMARY JUDGMENT
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue
New York, New York 10166-0193
Telephone: 212.351.4000
Facsimile: 212.351.4035
Attorneys for Plaintiff Chevron Corporation
i
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT .................................................................................................... 1
ARGUMENT .................................................................................................................................. 3
I. The Court Should Not Strike the Guerra Affidavit Because Guerra Was Not
Paid For His Testimony. ..................................................................................................... 3
II. The Challenged Affidavits Are Admissible Evidence. ....................................................... 8
A. The Court Can Consider the Affidavits on Summary Judgment Because
the Evidence Can Be Reduced to Admissible Form. ............................................... 8
B. The Challenged Testimony Is Admissible as Non-Hearsay or Under an
Exception to the Hearsay Rule. ................................................................................ 9
1. Affidavit of Alberto Guerra Bastidas .......................................................... 10
a. Admissible Non-Hearsay Testimony .............................................. 10
b. Testimony Admissible Under an Exception to the Rule
Against Hearsay .............................................................................. 13
2. The Chevron Attorneys Affidavits .............................................................. 15
a. Specific Challenges to the Callejas Affidavit ................................. 16
b. General Challenge to the Chevron Attorneys Affidavits ................ 18
III. Chevron Produced the Challenged Affidavits and Related Materials in
Discovery. ......................................................................................................................... 18
A. Chevron Fully Responded to Defendants’ Discovery Requests. ........................... 19
B. The 2009 Affidavits of Chevron’s Attorneys Were Properly Withheld
as Attorney Work Product. ..................................................................................... 21
C. Chevron Has No Duty to Supplement Its Discovery Responses From
the Count 9 Action. ................................................................................................ 22
CONCLUSION ............................................................................................................................. 23
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Caldwell v. Cablevision Systems Corp.,
925 N.Y.S.2d 103 (App. Div. 2011) ..................................................................................... 8
Centennial Mgmt. Servs., Inc. v. Axa Re Vie,
193 F.R.D. 671 (D. Kan. 2000) ............................................................................................. 3
Chapala v. Interfaith Med. Ctr.,
2006 U.S. Dist. LEXIS 73033 (E.D.N.Y. Oct. 5, 2006) ..................................................... 10
Design Strategy, Inc. v. Davis,
469 F.3d 284 (2d Cir. 2006) ................................................................................................ 23
Erie Painting & Maint., Inc. v. Ill. Union Ins. Co.,
876 F. Supp. 2d 222 (W.D.N.Y. 2012) ................................................................................. 9
Golden Door Jewelry Creations, Inc. v. Lloyds Underwriters Non-Marine Ass’n,
865 F. Supp. 1516 (S.D. Fla. 1994) ................................................................................... 6, 7
Guang Dong Light Headgear Factory Co., Ltd. v. ACI Int’l, Inc.,
No. 03-4165-JAR, 2008 WL 53665 (D. Kan. Jan. 2, 2008) ............................................... 22
Halebian v. Berv, 869 F. Supp. 2d 420, 443 (S.D.N.Y. 2012) ....................................................... 8
Hausler v. JPMorgan Chase Bank, N.A.,
845 F. Supp. 2d 553 (S.D.N.Y. 2012) ....................................................................... 8, 16, 18
Inst. for the Dev. of Earth Awareness v. People for the Ethical Treatment of Animals,
272 F.R.D. 124 (S.D.N.Y. 2011) ......................................................................................... 22
J.F. Feeser, Inc. v. Serv-A-Portion, Inc.,
909 F.2d 1524 (3d Cir. 1990) ........................................................................................ 17, 18
Lujan v. Cabana Mgmt., Inc.,
284 F.R.D. 50 (E.D.N.Y. 2012) .......................................................................................... 22
Metso Minerals, Inc. v. Powerscreen Int’l Distrib. Ltd.,
833 F. Supp. 2d 282, 319 (E.D.N.Y. 2011) ........................................................................... 8
Patterson v. Balsamico,
440 F.3d 104 (2d Cir. 2006) ................................................................................................ 23
Prasad v. MML Investors Services, Inc.,
No. 04 Civ. 380 (RWS), 2004 WL 1151735 (S.D.N.Y. May 24, 2004) ............................... 3
Presbyterian Church of Sudan v. Talisman Energy, Inc.,
582 F.3d 244 (2d Cir.2009) ................................................................................................... 8
Rocheux Int’l of N.J. v. U.S. Merchants Fin. Grp., Inc.,
No. 06-6147, 2009 WL 3246837 (D.N.J. Oct. 5, 2009) ........................................................ 7
TABLE OF AUTHORITIES (continued)
Page(s)
iii
Saltzman v. Commissioner,
131 F.3d 87 (2d Cir. 1997) .................................................................................................. 14
Schindler Elevator Corp. v. Otis Elevator Co.,
No. 06 Civ. 5377-CM-THK, 2010 WL 4007303 (S.D.N.Y. Oct. 6, 2010) ......................... 23
Sphere Drake Ins., Ltd. v. All Am. Life Ins. Co.,
300 F. Supp. 2d 606 (N.D. Ill. 2003) .................................................................................... 8
Stinnett v. Iron Works Gym/Executive Health Spa, Inc.,
301 F.3d 610 (7th Cir. 2002) ................................................................................................. 9
Stokes v. City of New York,
No. CV 2005-7-JFB-MDG, 2006 WL 2064976 (E.D.N.Y. July 24, 2006) ........................ 22
U.S. v. Dambruck,
270 F. App’x 30 (2d Cir. 2008) ........................................................................................... 10
United States v. Badalamenti,
794 F.2d 821 (2d Cir. 1986) ................................................................................................ 14
United States v. Best,
219 F.3d 192 (2d Cir. 2000) ................................................................................................ 14
United States v. Delvecchio,
816 F.2d 859 (2d Cir. 1987) ................................................................................................ 14
United States v. Farhane,
634 F.3d 127 (2d Cir. 2011) ................................................................................................ 10
United States v. Innamorati,
996 F. 2d 456 (1st Cir. 1992) ................................................................................................ 3
United States v. Persico,
645 F.3d 85 (2d Cir. 2011) .................................................................................................. 14
United States v. Vitale,
459 F.3d 190 (2d Cir. 2006) .................................................................................................. 7
White v. Fin. Credit Corp.,
No. 99 C 4023, 2001 WL 1665386 (N.D. Ill. Dec. 27, 2001) ............................................. 22
Other Authorities
5 Weinstein’s Federal Evidence, § 16.04 ...................................................................................... 13
Rules
Fed. R. Civ. P. 56(c)(2) ................................................................................................................... 8
Fed. R. Evid. 611(b) ........................................................................................................................ 7
TABLE OF AUTHORITIES (continued)
Page(s)
iv
Fed. R. Evid. 801(c) ............................................................................................................ 9, 17, 18
Fed. R. Evid. 801(d) ........................................................................................................................ 9
Fed. R. Evid. 801(d)(2) ........................................................................................................... 12, 13
Fed. R. Evid. 801(d)(2)(E) .......................................................................... 2, 10, 11, 12, 13, 16, 17
Fed. R. Evid. 802 ............................................................................................................................ 9
Fed. R. Evid. 803 ............................................................................................................................ 9
Fed. R. Evid. 803(3) ................................................................................................................ 13, 14
Fed. R. Evid. 804 ............................................................................................................................ 9
Fed. R. Evid. 805 ................................................................................................................ 9, 12, 13
Fed. R. Evid. 807 ............................................................................................................................ 9
PRELIMINARY STATEMENT
Unable to dispute the evidence of ghostwriting and bribery, Defendants attack the mes-
senger. Nominally seeking to exclude the testimony of Alberto Guerra Bastidas and four of
Chevron’s lawyers in Ecuador, Defendants’ motion is an extension of a public relations cam-
paign calculated to smear any witness who testifies against them and exposes their scheme, and
ignores applicable law. The Court should deny Defendants’ motion. Defendants’ practice of
filing a motion as cover for “a libel-proof press release . . . needs to come to a halt.” Ex. 3632 at
35:20–36:9.
Guerra has not been paid for his testimony. Rather, Chevron reasonably compensated
Guerra for obtaining and providing documentary evidence, and it is now providing reasonable
living expenses for Guerra and his family to ensure their security and minimize the sacrifice he is
making coming forward to testify now that he and his family have had to move to the United
States; no payments to Guerra are contingent on his giving any particular testimony in this or any
other case. Dkt. 746-3 ¶ 2 (Ex. C); Dkt. 755-14 (Ex. 3268) at 4. Indeed, it is Defendants and
their allies who have created the conditions in Ecuador that have twice obligated Chevron to
come to the aid of those who provide evidence of Defendants’ corruption, and which this Court
has found justifies sealing the affidavits of witnesses. Dkt. 843. Defendants suggest that Chev-
ron’s payments to Guerra for a hard drive and other related items are unreasonable, but ignore
compensation for Guerra’s time and effort to collect this information, and conflate the items with
the information they contain—information that confirms Defendants’ role in the procurement of
a fraudulent $18 billion judgment against Chevron. Indeed, while Defendants now suggest “it
doesn’t take any expert” to find these payments objectionable, they were already aware by the
time they made this meritless motion that one of the nation’s leading ethics experts, Dr. George
Cohen of the University of Virginia School of Law, has opined that such reasonable, disclosed
2
payments on Chevron’s part are ethically appropriate.
Defendants’ other purported bases for striking these affidavits are similarly unmoored
from the law and facts. Arguing that the affidavits comprise inadmissible hearsay, Defendants
assert that “no exception applies” to the statements (Dkt. 916 at 4) but they do not discuss or
even cite a single one of the many exceptions, or address the circumstances that render an out-of-
court statement non-hearsay. For instance, Defendants state that “[n]one of the purported state-
ments come from Judge Zambrano directly,” (id.) but fail to address that statements made by
Zambrano to Guerra are not hearsay because they are statements against interest by a co-
conspirator made during and in furtherance of the conspiracy. Fed. R. Evid. 801(d)(2)(E).
Moreover, their discovery arguments mischaracterize the proceedings upon which they rely and
ignore the explanations Chevron has provided. Defendants claim “Chevron has not explained”
its reasoning in response to a letter from Defendants (Dkt. 916 at 8) even though Chevron re-
sponded with a detailed letter just days later. Ex. 3633. And the discovery requests upon which
Defendants rely, provided in a different action, did not reach the two extant affidavits, which
were work product at the time in any event. Furthermore, Defendants mischaracterize Adolfo
Callejas’s deposition testimony regarding Guerra. In fact, the LAPs refused to accept Callejas’s
incorporation of Chevron’s interrogatory responses, and the LAPs’ counsel never asked Callejas
about Guerra, despite Callejas’s express invitation that counsel identify the specific judges on
which he wanted testimony. Even assuming arguendo some deficiency in responses in a prior
action, however, that would not warrant suppressing the response now in this separate case.
The affidavits at issue are admissible evidence in support of Chevron’s motion for partial
summary judgment, and Chevron properly disclosed the affidavits in response to Defendants’
discovery requests. The Court should deny Defendants’ motion to strike these affidavits.
3
ARGUMENT
I. The Court Should Not Strike the Guerra Affidavit Because Guerra Was Not Paid
For His Testimony.
Reasonable compensation of a witness for information or expenses is proper and is not
cause for the exclusion of the witness’s testimony. Prasad v. MML Investors Services, Inc., No.
04 Civ. 380 (RWS), 2004 WL 1151735, at *5–7 (S.D.N.Y. May 24, 2004); United States v.
Innamorati, 996 F. 2d 456, 481–82 (1st Cir. 1993); Centennial Mgmt. Servs., Inc. v. Axa Re Vie,
193 F.R.D. 671, 679–81 (D. Kan. 2000). Chevron’s payments to Guerra fall into two categories:
payments for the information contained on Guerra’s computer and other sources, and relocation
expenses for Guerra and his family to live in the United States. All of Chevron’s payments to
Guerra were disclosed to Defendants, and no payment was made or will be made depending on
Guerra’s testimony or the outcome of this, or any, litigation. Dkt. 746-3 (Ex. C) ¶ 2 (“Guerra
Affidavit”); Dkt. 755-14 (Ex. 3268) at 4. Defendants cannot assert otherwise. Dkt. 916 at 2–3.
After Guerra came forward with information regarding Zambrano and the fraudulent
judgment, he provided corroborating evidence to Chevron, contained on a computer hard drive,
flash drives, discs, cell phones, and planners. Dkt. 755-14 (Ex. 3268) ¶¶ 5-6. Guerra also
assembled telephone and bank records, and provided them to Chevron. Id. In exchange for this
corroborating information, and Guerra’s efforts to collect this information, Chevron compensated
Guerra a fixed sum of $38,000. Id. Defendants mischaracterize Chevron’s payments to Guerra
as payments only for the physical items themselves (Dkt. 916 at 2 n.1; Dkt. 766 at 8 n.2),
ignoring Chevron’s explanation that it purchased the information reflected in Guerra’s
documents and records, and not just the physical materials. Ex. 3633 at 2.1 Defendants’
1 Defendants falsely assert that Chevron has “not explained” its position in response to Defendants’ February 8,
2013 letter. Dkt. 916 at 8. Chevron sent a detailed response to Defendants three days later. See Ex. 3633.
4
unsupported estimate of “no more than $500” for the physical items is a red herring. See Dkt.
916 at 2 n.1. In addition to the time Guerra spent gathering that evidence, the information
contained in those items corroborates the statements in the Guerra Affidavit, including draft
orders in the Lago Agrio Litigation that Guerra ghostwrote for Judge Zambrano, shipping
records, calendars, and other documents corroborating Guerra’s account, as well as proof of the
LAP team’s payment of Guerra’s monthly fee directly into his bank account. See, e.g., Dkt. 764
¶¶ 197–203, 205-06. As this Court recently held, “the Guerra declaration, in and of itself,
establishes probable cause to suspect that the LAPs’ representatives, including Fajardo,
Donziger, and Yanza, bribed Judge Zambrano to obtain their desired result in the Ecuadorian
case and the privilege of writing the Judgment and that they took advantage of the latter.” Dkt.
905 at 62. Chevron’s fixed-sum compensation of $38,000 to Guerra for information
corroborating that testimony—corroborating evidence that was expected to be of significant
value in demonstrating Defendants’ illegal scheme—is reasonable.
Chevron’s payments to Guerra for living expenses are also legal and ethical. As an initial
matter, the relocation of Guerra and his family to the United States for their safety and security is
justified, because as this Court recently recognized, there is an “unacceptable risk of retaliation
and harm” to those individuals who have come forward in Ecuador to expose the truth about
ghostwriting the judgment. See Dkt. 837; Dkt. 843; Dkt. 941. Guerra’s living expenses are
guaranteed for two years and “[n]o payment is contingent on the content of Guerra’s statements
or testimony or the outcome of any matter in which Guerra testifies.” Dkt. 755-14 (Ex. 3268) at
4. The agreement between Guerra and Chevron states: “It is expressly acknowledged that
Chevron has no control over, and places no limits on the content of, Guerra’s testimony.” Id.
Moreover, at the end of two years, there will be an “independent assessment” of Guerra’s safety
5
and security, and if necessary, “Chevron and Guerra will act in good faith to reach an agreement
on new terms” which “will not be contingent on the content of Guerra’s statements or testimony
or the outcome of any matter in which Guerra testifies, or on the outcome of any investigation in
which he provides statements or testimony.” Id.
The amount of the payments to Guerra for living expenses are reasonable—indeed, they
will provide for a “materially” lesser standard of living in the United States than Guerra enjoyed
in Ecuador. In his expert declaration, Professor Jerry Nickelsburg compared the standard of
living of Guerra and his family in Quito, Ecuador to their location in the United States and
concluded that Guerra’s standard of living would “likely materially decrease” as a result of the
relocation. Ex. 3634 at 1; see also id. at 4 (monthly payments by Chevron are “significantly less
than that which would be required to maintain in the United States the standard of living enjoyed
by the individuals in Ecuador”).
To ensure that Chevron’s payments to Guerra were proper, Chevron retained Professor
George M. Cohen, the Brokaw Professor of Corporate Law at the University of Virginia School
of Law, and the author of numerous books and articles on legal ethics, to evaluate those
payments. See Exs. 3635–3637. With respect to Chevron’s payments to Guerra for information,
Professor Cohen opines that “Chevron’s counsel may pay the witness solely for the information
in his possession, so long as that payment is a fixed sum not in any way contingent on his
testimony or the outcome of any litigation; the payment is reasonable relative to the prior
payment, the effort to be expended to acquire it, and its expected value in demonstrating the
illegal scheme; the witness makes no promise to testify in exchange for the payment; and no
future payment will be made to the witness for his testimony other than legally and ethically
6
permitted payment for expenses incurred in connection with testifying.” Ex. 3636 ¶ 6. The
record shows that all of these requirements are satisfied.
With respect to Chevron’s payments to Guerra for his living expenses, Professor Cohen
opines that “Chevron’s counsel may compensate the witness for expenses, so long as that
payment is a fixed sum not in any way contingent on the content of his testimony or the outcome
of any litigation and the payment is reasonable.” Ex. 3637 ¶ 6. Professor Cohen concludes that
such “permitted expenses” may include “any expenses incurred by a witness in preparing to
testify, in connection with testifying, or as a consequence of testifying, including expenses for
housing and subsistence that extend beyond the time of his testifying, so long as sufficient
evidence is presented to support the basis for these incurred expenses – in this case, legitimate
concerns for the safety and security of the witness and his family.” Id.
Defendants fail to even acknowledge the expert opinions of Professors Cohen and
Nickelsburg, and they make no attempt to contest these expert opinions. Rather, Defendants rely
on two distinguishable cases to support their argument that paid-for testimony of a fact witness
should be excluded. In Golden Door Jewelry Creations, Inc. v. Lloyds Underwriters Non-
Marine Ass’n, 865 F. Supp. 1516 (S.D. Fla. 1994), the court divided payments to a fact witness
into several categories—information, living expenses, deposition testimony, and future trial
testimony—and excluded witness testimony because of certain payments to witnesses “in return
for their testimony,” and because payments were contingent on “helpful” testimony. Id. at 1521-
22, 1526. Here, Chevron made payments for specific information and expenses with no such
quid pro quo. In fact, the court in Golden Door specifically noted that “[p]ayments made to fact
witnesses as actual expenses as permitted by law will not be disturbed or set aside. The Court’s
opinion today pertains only to payments made to fact witnesses for the purpose of obtaining their
7
testimony in a case.” Id. at 1526 n.11. Similarly, Defendants rely on Rocheux Int’l of N.J. v.
U.S. Merchants Fin. Grp., Inc., No. 06-6147, 2009 WL 3246837 (D.N.J. Oct. 5, 2009), which
involved the payment of a witness in exchange for testimony rather than for information and
expenses. In Rocheux, the court excluded a witness’s testimony after counsel paid the witness a
“consulting” fee and then belatedly identified the witness as an expert in an attempt to justify the
payment. Id. at *1. The court held that counsel “improperly procured payment for [the
witness’s] factual testimony” and that counsel “did not compensate [the witness] for his costs.”
Id. at *3–4. Thus, neither of Defendants’ cases involves compensating a witness for information,
and both cases support Chevron’s compensation of Guerra for reasonable living expenses. This
is consistent with Professor Cohen’s expert opinion that case law supports “a line between
paying for information, which is permissible, and paying for testimony, which is not.” Ex. 3635
¶ 25; Ex. 3636 ¶ 25. Thus, this Court has no reason to exclude Guerra’s testimony as improper.
Finally, Chevron disclosed its compensation to Guerra for information and expenses, and
Defendants are free to challenge the credibility, veracity, or bias of any witness at trial. See Fed.
R. Evid. 611(b) (permitting cross-examination on “matters affecting the witness’s credibility”);
United States v. Vitale, 459 F.3d 190, 195 (2d Cir. 2006) (“Cross-examination is the principal
means to show that a witness is biased” and a party “may conduct a general attack on the
credibility of the witness, or it may mount a more particular attack on the witness’ credibility” by
“revealing possible biases, prejudices, or ulterior motives of the witness.”) (internal citations and
quotations omitted). Moreover, Defendants noticed Guerra’s deposition and will have the
opportunity to ask any such questions. Therefore, this Court should not strike the affidavit.2
2 Even if this Court were somehow to determine that Guerra had been paid in exchange for testimony, such
payments do not require the exclusion of the witness’s testimony. “Many courts, including courts in this Circuit,
have found that a compensated fact witness is competent to testify as long as the fact that payments were made to
[Footnote continued on next page]
8
II. The Challenged Affidavits Are Admissible Evidence.
A. The Court Can Consider the Affidavits on Summary Judgment Because
the Evidence Can Be Reduced to Admissible Form.
On a motion for summary judgment, “‘[t]he principles governing admissibility of evi-
dence do not change,’ but the Court is afforded ‘broad discretion in choosing whether to admit
evidence’ into the record before [it].” Halebian v. Berv, 869 F. Supp. 2d 420, 443 (S.D.N.Y.
2012) (quoting Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 262 (2d
Cir.2009)). It is within the Court’s discretion to consider the affidavits in support of the motion
for summary judgment because the testimony therein will be presented in an admissible form at
trial. See, e.g., Fed. R. Civ. P. 56(c)(2) (under Rule 56, the non-movant may object to considera-
tion of “material cited to support . . . a fact [that] cannot be presented in a form that would be
admissible in evidence”); Hausler v. JPMorgan Chase Bank, N.A., 845 F. Supp. 2d 553, 573
n.12 (S.D.N.Y. 2012) (“Though the [affidavits] themselves may or may not be admissible as evi-
dence at trial, the expert opinions contained therein are certainly amenable to presentation in
forms that would be admissible. In short, the Court may consider and credit the [affidavits] in
the summary judgment context because this expert testimony would be admissible as such if [the
witness] was called to testify in person.”); Sphere Drake Ins., Ltd. v. All Am. Life Ins. Co., 300 F.
Supp. 2d 606, 614 (N.D. Ill. 2003) (“The material that is submitted in support of a summary
judgment motion is not necessarily itself admissible at trial, but must set forth evidence that
would be admissible if presented in appropriate form at trial. In other words, ‘the evidence need
[Footnote continued from previous page]
that witness is disclosed to the trier of fact.” Metso Minerals, Inc. v. Powerscreen Int’l Distrib. Ltd., 833 F. Supp.
2d 282, 319 (E.D.N.Y. 2011) (citations omitted); see also Caldwell v. Cablevision Systems Corp., 925 N.Y.S.2d
103, 110 (App. Div. 2011) (“[T]he appropriate remedy in a case such as this one, where one might reasonably infer
that a fact witness has been paid a fee for testifying, is to permit opposing counsel to fully explore the matter of
compensation on cross-examination and summation, and to leave it for a properly instructed jury to consider wheth-
er the payment made to the witness was, in fact, disproportionate to the reasonable value of the witness’s lost time
and, if so, what effect, if any, that payment had on the witness’s credibility.”) (citations omitted).
9
not be admissible in form (for example, affidavits are not normally admissible at trial), but it
must be admissible in content.’”) (quoting Stinnett v. Iron Works Gym/Executive Health Spa,
Inc., 301 F.3d 610, 613 (7th Cir. 2002)).
Defendants do not dispute the fact that Callejas, Racines, Campuzano, and Carvajal (the
“Chevron Attorneys”) and Guerra will testify if properly noticed during a deposition or at trial,
and do not appear to dispute that the affidavits as such may be considered on summary judgment.
In fact, Defendants have included all of these witnesses among the 21 fact witnesses they intend
to depose, pursuant to the Court’s Rule 16 Order. See Dkt. 910; Ex. 3638. The Court may there-
fore assume the testimony contained in the Guerra and Chevron Attorneys affidavits will be pre-
sented in an admissible form at trial and that on summary judgment, they are not hearsay, but the
functional equivalent of live testimony.
B. The Challenged Testimony Is Admissible as Non-Hearsay or Under an
Exception to the Hearsay Rule.
Defendants challenge statements within these affidavits as inadmissible hearsay, but they
are incorrect. Federal Rule of Evidence 801(c) defines hearsay as a statement, other than one
made by the declarant while testifying at trial, offered “in evidence to prove the truth of the
matter asserted in the statement.” Fed. R. Evid. 801(c). While hearsay is generally inadmissible,
there are several categories of statements that are excluded or qualify as exceptions to this rule.
See generally Fed. R. Evid. 802, 803, 804, 807. Other statements, such as prior witness
statements and statements by a party-opponent, are not hearsay. See Fed. R. Evid. 801(d). In
addition, Rule 805 specifically condones the admission of evidence containing multiple layers of
hearsay, where each layer is independently covered by a hearsay exception. Fed. R. Evid. 805;
Erie Painting & Maint., Inc. v. Ill. Union Ins. Co., 876 F. Supp. 2d 222, 233 n.74 (W.D.N.Y.
2012) (admitting evidence containing multiple layers of hearsay); Chapala v. Interfaith Med.
10
Ctr., 2006 WL 2882567, at *6 (E.D.N.Y. Oct. 6, 2006) (admitting evidence containing “two or
more levels of hearsay”). Each challenged statement in the affidavits can either be reduced to
admissible form at trial, is not hearsay, or falls within an exception to the hearsay rule.
1. Affidavit of Alberto Guerra Bastidas
Defendants concede the admissibility of the majority of the Guerra Affidavit and only
challenge as hearsay statements made to Guerra by Zambrano. Dkt. 916 at 5–6. Defendants ar-
gue that because “the statements do not fall within any exception to the hearsay rule, they are
inadmissible and should be struck.” Id. at 6. But Defendants’ request to strike the Guerra Affi-
davit should be denied because the contested testimony is either not hearsay or falls within an
exception to the hearsay rule and is therefore admissible. Defendants ignore this governing law.
a. Admissible Non-Hearsay Testimony
Statements made by Zambrano to Guerra are not hearsay because they are statements
against interest by a co-conspirator. See Fed. R. Evid. 801(d)(2)(E) (statement “made by the
party’s co-conspirator during and in furtherance of the conspiracy” is not hearsay and is
admissible); U.S. v. Dambruck, 270 F. App’x 30, 34 (2d Cir. 2008). A statement falls within the
co-conspirator exemption where a preponderance of the evidence shows that: (i) there was a
conspiracy, (ii) its members included the declarant and the party against whom the statement is
offered, and (iii) the statement was made during the course of and in furtherance of the
conspiracy. United States v. Farhane, 634 F.3d 127, 161 (2d Cir. 2011).
Chevron offers Guerra’s testimony against Defendants, and has submitted substantial
evidence demonstrating a conspiracy involving Zambrano and the Defendants. Indeed, this
Court recently held that “Chevron has established at least probable cause to believe there was
fraud or other criminal activity in the procurement of the Judgment and in other respects relating
to the Lago Agrio litigation in which that Judgment was rendered and in certain litigations in the
11
United States relating to the Ecuadorian litigation,” and specifically held that “there is probable
cause also to suspect that LAP lawyers and other representatives later bribed Judge Zambrano to
obtain the result they wanted and, pursuant to the arrangement they struck with him, actually
wrote the decision to which he signed his name[] after some cosmetic and inconsequential
editing by Guerra.” Dkt. 905 at 3–4, 29. The Court’s findings regarding the ghostwritten
judgment are “supported by abundant evidence that portions of the Judgment are identical or
substantially similar to internal documents prepared by the LAPs that never were filed with the
Court.” Id. at 62; see also Dkt. 550 at 86 (holding as a “matter of law” that the author of the
judgment had access to the LAPs’ unfiled “Fusion Memo”); id. at 97 (finding “serious questions
concerning the preparation of the Judgment itself in view of the identity between some portions
of the Judgment and the Unfiled Fusion Memo, especially in light of the undisputed pattern of ex
parte advocacy in the Lago Agrio Litigation and the undisputed instance of the LAP team’s
coercion of and duress on one of the judges to obtain a desired result”). Chevron has submitted
expert analyses, bank records, shipping records, emails between and among the co-conspirators,
and supporting affidavits that leave no doubt as to the existence of the conspiracy and
Zambrano’s participation in it. See Dkt. 764.
Zambrano’s statements were made “during and in furtherance of the conspiracy.” Fed. R.
Evid. 801(d)(2)(E). Indeed, they lie at its heart. Defendants’ conspiracy was ongoing in 2010
and 2011, when Zambrano made the challenged statements. See Dkt. 283; Dkt. 764 ¶¶ 23–99.
Zambrano’s statements to Guerra about securing a payment from the LAPs in return for allowing
them to draft a favorable judgment, and the logistics of doing so, are in furtherance of Defend-
ants’ conspiracy to defraud Chevron by bribing Zambrano and ghostwriting the judgment.
The following statements in the Guerra Affidavit are therefore admissible non-hearsay:
12
• “Once it became clear that Mr. Núñez would have to withdraw from the Chevron case, Mr.
Zambrano asked me to attempt, through friends of mine, to get in touch with the attorneys for
Chevron in order to negotiate an agreement by which the company would pay Mr. Zambrano
and me for issuing the final judgment in Chevron’s favor. Mr. Zambrano told me that
Chevron would have much more money than the Plaintiffs for this agreement, and therefore
we could get a better deal and greater profits for ourselves.” Dkt. 746-3 (Ex. C) ¶ 12.
• “Mr. Zambrano told me to have that meeting because he had reached an agreement with the
Plaintiffs’ representatives to quickly move the case along in their favor, but he did not tell me
the details of that agreement.” Id. ¶ 13.
• “Around August of 2010, Chevron filed a motion for the recusal of Mr. Ordóñez as judge of
the case, which Mr. Zambrano had to rule on. Mr. Zambrano saw this as an opportunity to
once again take control of the Chevron case, and asked me to help him write the court ruling
sustaining Judge Ordóñez’s disqualification from the case.” Id. ¶ 21.
• “Mr. Zambrano suggested and authorized me to seek an agreement with the Plaintiffs’
representatives so that they could obtain a verdict in their favor, in exchange for a payment of
at least USD $500,000 to Mr. Zambrano; and whatever amount I could negotiate or agree to
for myself.” Id. ¶ 23.
• “Subsequently, Mr. Zambrano told me he was in direct contact with Mr. Fajardo and that the
Plaintiffs’ representatives had agreed to pay him USD $500,000 from whatever money they
were to collect from the judgment, in exchange for allowing them to write the judgment in
the Plaintiffs’ favor. Mr. Zambrano told me he would share with me part of that money once
it was paid to him.” Id.3
• “Mr. Zambrano advised me that we had to be more careful because the attorneys for Chevron
would be very attentive to any irregularities.” Id. ¶ 24.
• “It was through [Zambrano] that I found out that the attorneys for the Plaintiffs had written
that judgment and had delivered it to him.” Id. ¶ 25.
• “Mr. Zambrano asked me to work on the document to fine-tune and polish it so it would have
a more legal framework.” Id.
• “Mr. Zambrano explicitly asked me not to make copies nor leave traces of this document nor
the changes I was making, outside of the file on which I worked.” Id.
3 To the extent Defendants allege this statement involves multiple layers of hearsay, each layer qualifies as an
exemption from the rule prohibiting hearsay. Fed. R. Evid. 805. Statements made by Fajardo to Zambrano are ad-
missible non-hearsay as statements of a party-opponent. Fed. R. Evid. 801(d)(2). Statements made by Zambrano to
Guerra are admissible non-hearsay statements made by a co-conspirator during and in furtherance of the conspiracy.
Fed. R. Evid. 801(d)(2)(E).
13
• “Based on what Mr. Zambrano told me, it is my understanding that the Plaintiffs’ attorneys
made changes to the judgment up to the very last minute before it was published.” Id. ¶ 28.4
• “And I knew at that time, as I know now, that the agreement that Mr. Zambrano told me he
had reached with the representatives’ attorneys, to let them draft the judgment in favor of the
Plaintiffs and against Chevron, in exchange for him receiving USD $500,000 once they
collected the money from the judgment, was a violation of Ecuadoran law.” Id. ¶ 29.5
• “Mr. Zambrano has had a change of heart for reasons he has not fully explained to me, and
now says he is not willing to cooperate with Chevron and to reveal the truth.”6 Id. ¶ 33.
b. Testimony Admissible Under an Exception to the Rule
Against Hearsay
Statements made to Guerra by Zambrano regarding Zambrano’s motive, intent, and plan
to secure a bribe in exchange for entering a fraudulent judgment are also admissible under the
state-of-mind exception to the hearsay rule. See Fed. R. Evid. 803(3) (“The following are not
excluded by the rule against hearsay, regardless of whether the declarant is available as a
witness . . . A statement of the declarant’s then-existing state of mind (such as motive, intent, or
plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily
health), but not including a statement of memory or belief to prove the fact remembered or
believed unless it relates to the validity or terms of the declarant’s will.”). In short, statements
expressing intent are admissible despite the hearsay rule as long as the statement is not merely an
assertion about the past. See 5 Weinstein’s Federal Evidence, § 16.04.
4 To the extent Defendants allege this statement involves multiple layers of hearsay, each layer qualifies as an
exemption from the rule prohibiting hearsay. Fed. R. Evid. 805. Statements made by “Plaintiffs’ attorneys” to
Zambrano are admissible non-hearsay as statements of a party-opponent or statements of a co-conspirator. Fed. R.
Evid. 801(d)(2), (2)(E). Statements made by Zambrano to Guerra are admissible non-hearsay statements made by a
co-conspirator during and in furtherance of the conspiracy. Fed. R. Evid. 801(d)(2)(E).
5 Defendants do not specify what alleged hearsay they challenge in ¶ 29 of the Guerra Affidavit. Chevron as-
sumes Defendants challenge this statement, which is admissible as a non-hearsay statement by a co-conspirator
made during and in furtherance of the conspiracy. Fed. R. Evid. 801(d)(2)(E).
6 Defendants continue to actively pursue enforcement of the fraudulent judgment, and Zambrano will not be
paid until the judgment is enforced. Dkt. 746-3 (Ex. C) ¶ 29. Therefore, the conspiracy is ongoing and Defendants
and Zambrano continue to be active participants. Zambrano’s statement that he will not cooperate to tell the truth
regarding the judgment furthers the conspiracy’s goal of enforcing the fraudulent judgment.
14
Under the state-of-mind exception to the rule against hearsay, “[a] declarant’s out-of-
court statement of intent may be introduced to prove that the declarant acted in accordance with
that intent.” Saltzman v. Comm’r, 131 F.3d 87, 94 (2d Cir. 1997) (quoting United States v.
Delvecchio, 816 F.2d 859, 863 (2d Cir. 1987)). Evidence that would otherwise be excluded as
hearsay is admissible under this exception to show both the declarant’s intent and that he or she
carried out that intent. See, e.g., United States v. Persico, 645 F.3d 85, 100–03 (2d Cir. 2011)
(wife of a murder victim testified the victim said he had to go to Brooklyn to meet his organized
crime boss, and the statement was admitted against the crime boss in a RICO case to show the
victim’s intent to go to Brooklyn and that he acted in furtherance of that intent).
Where, as here, a statement by a declarant of his or her own state of mind is offered
against a non-declarant, it will be admissible if there is independent evidence that connects the
declarant’s statement with the non-declarant’s activities. United States v. Best, 219 F.3d 192,
198 (2d Cir. 2000) (in defendant’s prosecution for Medicare fraud, co-defendant’s out-of-court
statement that he intended to ask defendant to create fraudulent document was proper because
there was sufficient independent evidence of defendant’s own conduct that corroborated the
proposition that co-defendant had followed through on his intent). Corroboration need not be
eyewitness observations and may be provided by circumstantial evidence. Id. at 199 (citing
United States v. Badalamenti, 794 F.2d 821, 825–26 (2d Cir. 1986)). Because independent evi-
dence corroborates Zambrano’s statements regarding his intent, plan, and motive for seeking a
bribe and connects those statements with the activities of Defendants—their payments to Guerra
and drafting of the judgment—the following statements7 are admissible against Defendants un-
7 Dkt. 746-3 (Ex. C) ¶ 23, discussed above as an admissible non-hearsay statement of a co-conspirator during
and in furtherance of the conspiracy, is also admissible under the state-of-mind exception as evidence of Zambrano’s
motive, intent, and plan to accept a bribe in exchange for entering a false judgment. Fed. R. Evid. 803(3).
15
der the state-of-mind exception:
• “Mr. Zambrano asked me to attempt, through friends of mine, to get in touch with the
attorneys for Chevron in order to negotiate an agreement by which the company would pay
Mr. Zambrano and me for issuing the final judgment in Chevron’s favor.” Dkt. 746-3 (Ex.
C) ¶ 12.
• “Mr. Zambrano told me that Chevron would have much more money than the Plaintiffs for
this agreement, and therefore we could get a better deal and greater profits for ourselves.” Id.
¶ 12.
• “Mr. Zambrano again asked me to get in touch with my contacts to try to negotiate a
financial agreement with Chevron.” Id. ¶ 22.
These statements can be corroborated by independent supporting declarations that demonstrate
Zambrano directed Guerra to act in accordance with this plan. Dkts. 746-10 (Ex. E); Dkt. 746-11
(Ex. F); Dkt. 746-12 (Ex. G); Dkt. 746-13 (Ex. H); Dkt. 746-14 (Ex. I). Corroborating evidence
also connects Zambrano’s statements to Defendants’ activities—when his solicitation attempts
were rebuffed by Chevron, Zambrano accepted Defendants’ bribe and allowed them to draft a
fraudulent judgment. Dkt. 764 ¶¶ 104–09, 125–29, 143–71, 181–206.
Thus, all of the challenged statements in the Guerra Affidavit are admissible as either
non-hearsay statements or an exception to the hearsay rule.
2. The Chevron Attorneys Affidavits
Defendants concede the admissibility of the majority of the testimony in the Chevron
Attorneys’ affidavits, and challenge as hearsay only “statements allegedly made to [the Chevron
Attorneys] by admittedly corrupt former Judge Guerra, and others supposedly made on behalf of
former Judge Zambrano.” Dkt. 916 at 3. Defendants’ motion to strike the Chevron Attorneys’
affidavits should be denied because the statements in the Chevron Attorneys’ affidavits can
either be reduced to admissible form at trial, are non-hearsay, or fall within an exception to the
hearsay rule.
16
a. Specific Challenges to the Callejas Affidavit
Defendants challenge three statements in the Callejas affidavit, claiming the “multiple
levels of hearsay are dizzying.” See Dkt. 916 at 3. But Callejas’s challenged testimony can be
reduced to admissible, non-hearsay at trial. See Hausler, 845 F. Supp. 2d at 573 n.12. For
example, Defendants challenge the following two statements in Callejas’s affidavit:
• “In the summer of 2009, one of the lawyers on my legal team representing Chevron
Corporation in the Aguinda case, Dr. Ivan Alberto Racines Enriquez, informed me that he
had happened to encounter Dr. Alberto Guerra Bastidas, who was by then a former judge and
former President of the Sucumbíos Provincial Court who previously presided over the
Aguinda case, on the street in Quito. Dr. Racines told me that Dr. Guerra had said, in words
and substance, that the judgment in the Aguinda case could issue soon and that Dr. Guerra
wanted to discuss it with Dr. Racines. Dr. Racines told me he understood this to be an
overture by Dr. Guerra to influence the outcome of the Aguinda case in Chevron’s favor for a
price. Dr. Racines told me that, although he had responded with words to the effect, ‘Yeah,
sure,’ to appease Dr. Guerra for the moment, Dr. Racines had no intention of following up
with Dr. Guerra on the matter.” Dkt. 746-10 (Ex. E) ¶ 2.
• “At about the same time, in early October 2009, Dr. Racines told me that he received a
telephone call from Dr. Alberto Guerra Bastidas. As recounted by Dr. Racines, Dr. Guerra
told him that Dr. Guerra could serve as an intermediary for communicating with Judge
Zambrano regarding the Aguinda case and correcting the errors that Former Judge Juan
Evangelista Nunez Sanabria had committed, that Dr. Guerra could ‘fix’ the entire case, and
that Dr. Guerra could influence the subject of the judgment in the Aguinda case in Chevron’s
favor.” Id. ¶ 4.
There are three layers of alleged hearsay embedded in this testimony: (i) statements made by
Guerra to Racines,8 (ii) statements made by Racines to Callejas, and (iii) Callejas’s statements in
the affidavit itself. The fact that Callejas is available to testify at trial eliminates the third layer
of alleged hearsay. The first two layers of purported hearsay are likewise eliminated by the fact
that the other two declarants, Guerra and Racines, have submitted declarations corroborating
these statements, are available to provide deposition or trial testimony, and will presumably
8 Guerra’s statements to Racines are independently admissible as non-hearsay statements made by a co-
conspirator during and in furtherance of the conspiracy. Fed. R. Evid. 801(d)(2)(E).
17
testify in accordance with their written declarations.9 See Dkt. 746-11 (Ex. F) ¶¶ 2, 4; Dkt. 746-3
(Ex. C) ¶ 12. Once the testimony of Guerra and Racines is introduced at trial, Callejas’s
testimony will be reduced to an admissible form because it will concern statements made by the
declarants “while testifying at the current trial or hearing.” See Fed. R. Evid. 801(c); J.F.
Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1529, 1542 (3d Cir. 1990) (holding an
affidavit submitted by Spagnola, which was “based upon information from Spagnola’s sales
personnel,” could be considered on summary judgment because “there is no indication that
Spagnola’s sales force would be unavailable to testify at trial” and “[t]he averments of
Spagnola’s affidavit are capable of proof through admissible evidence”).
The final statement in Callejas’s affidavit that Defendants challenge is:
• “In approximately the last quarter of 2010, another one of the lawyers on my legal team in
the Aguinda case, Dr. Patricio Efrain Campuzano Merino, told me that, earlier that day, he
received a telephone call from [REDACTED] who said she had something important to
discuss with him regarding the Aguinda case, and that he met with her shortly thereafter. Dr.
Campuzano told me that, in his meeting with [REDACTED], she said that Judge Zambrano
wanted to know whether Chevron would be interested in drafting the final judgment of the
trial court in favor of Chevron in the Aguinda case. Dr. Campuzano told me that he
understood Dr. Guerra had conveyed that information to [REDACTED]. Based on Dr.
Campuzano’s recitation of his discussion with [REDACTED] I understood [REDACTED] to
mean that Chevron could pay an amount of money to Judge Zambrano to obtain and
ghostwrite a judgment in its favor in the Aguinda case.” Dkt. 746-10 (Ex. E) ¶7.
There are four layers of alleged hearsay embedded in this testimony: (i) statements made by
Guerra to Doe Witness,10 (ii) statements made by Doe Witness to Campuzano, (iii) statements
made by Campuzano to Callejas, and (iv) Callejas’s statements in the affidavit itself. Callejas is
available to testify at trial, therefore eliminating the fourth layer of alleged hearsay. The first
9 At Defendants’ request, Chevron made available for deposition all of the declarants relied upon in its motion
for partial summary judgment (Dkt. 744), including Guerra and the Chevron Attorneys, prior to the date of Defend-
ants’ opposition to that motion. However, Defendants refused to depose those witnesses. See Exs. 3639–3642.
10 Guerra’s statements to Doe Witness are independently admissible as non-hearsay statements made by a co-
conspirator during and in furtherance of the conspiracy. Fed. R. Evid. 801(d)(2)(E).
18
three layers of purported hearsay are eliminated because the other three declarants—Guerra, Doe
Witness, and Campuzano—have submitted declarations discussing these incidents, are available
to provide deposition or trial testimony, and will presumably testify in accordance with their
written declarations. See Dkt. 746-12 (Ex. G) ¶¶ 2, 3; Dkt. 746 ¶ 2 (Doe Decl. filed under seal).
Thus, Callejas’s testimony itself can be reduced to an admissible form because it concerns
statements made by the declarants “while testifying at the current trial or hearing.” See Fed. R.
Evid. 801(c); J.F. Feeser, 909 F.2d at 1542.
b. General Challenge to the Chevron Attorneys Affidavits
Defendants do not challenge any specific statements in the Racines, Campuzano, and
Carvajal affidavits. Instead, Defendants generally argue that all of the Chevron Attorneys’
affidavits “contain similar statements by Guerra [from Zambrano]” and that “[n]one of the
purported statements come from Judge Zambrano directly.” Dkt. 916 at 4.
As discussed in detail above, all of the statements in the Chevron Attorneys’ affidavits
can be presented in a form admissible at trial and should be considered by the Court on summary
judgment. See Hausler, 845 F. Supp. 2d at 573 n.12. Moreover, any statements by Zambrano—
the only statements which appear to be challenged by Defendants—are admissible as non-
hearsay statements made by a co-conspirator during and in furtherance of the conspiracy. See
supra Section II.B.1.a. The Court should therefore consider the Chevron Attorneys’ affidavits
on summary judgment as corroborating evidence of Guerra’s testimony.
III. Chevron Produced the Challenged Affidavits and Related Materials in Discovery.
Although Defendants refer to discovery requests made in this action (Dkt. 916 at 8 n.5),
they do not argue that Chevron violated its discovery requirements in this case. Nor could
they—the Guerra Affidavit and the related affidavits identified by Defendants were produced on
January 28, 2013, as Defendants admit (Dkt. 916 at 6), which is nearly a month prior to the
19
February 22, 2013 deadline for discovery related to those documents.
Defendants’ discovery argument is actually predicated on discovery in the Count 9 action
(Case No. 11-cv-3718). Dkt. 916 at 7 (detailing Chevron’s responses to discovery requests and
deposition questions in Count 9). But Chevron fulfilled its discovery obligations in the Count 9
action—it logged the 2009 Affidavits as attorney work product, and of course it did not produce
or disclose documents or information related to its 2012 interactions with Guerra, because those
interactions had not yet occurred. By the time they took place, the Count 9 action had been
closed, terminating Chevron’s discovery obligations.
A. Chevron Fully Responded to Defendants’ Discovery Requests.
In 2009, when Chevron attorneys Callejas and Racines were approached by Guerra and
others with offers from Zambrano to fix the Lago Agrio Litigation, they summarily rejected
Zambrano’s overtures and drafted contemporaneous affidavits recounting the events for potential
use in litigation. See Dkt. 746-10 (Ex. E); Dkt. 746-11 (Ex. F) (the “2009 Affidavits”). The
2009 Affidavits were not publicly filed at that time, and remained confidential.
Years later, in the Count 9 action, Chevron responded to Defendants’ requests for the
production of documents, and produced all non-privileged documents subject to any objections
and clarifications. See, e.g., Dkt. 916-5 (Ex. E). Documents subject to the attorney-client privi-
lege or work product doctrine were withheld or redacted, and logged accordingly—specifically
Chevron withheld the 2009 Affidavits as work product. See Ex. 3643 at 29 (logging “Non-
public drafts, reports, or affidavits relating to the LAGO AGRIO LITIGATION” authored by
“OUTSIDE COUNSEL or IN-HOUSE COUNSEL or CHEVRON OTHER IN-HOUSE or
COMMON INTEREST COUNSEL” as “Attorney Work Product”). In response to Defendants’
20
interrogatories, and specifically in response to Interrogatory No. 911—the interrogatory Defend-
ants discuss in their motion to strike—Chevron interposed various objections, stated that “the full
extent” of these judges’ “improper conduct of the Lago Agrio Litigation, including any improper
contacts with the Lago Agrio Plaintiffs and their representatives” was “not yet known,” and then
listed detailed facts demonstrating the corruption and impartiality of each judge in the Lago
Agrio Litigation. Dkt. 916-2 (Ex. B) at 12–30. At the time, as reflected in the 2009 Affidavits,
Chevron was not aware of the contacts between Zambrano and the LAP team that Guerra would
ultimately reveal, and thus, could not have disclosed them in response to an interrogatory on that
topic.
In September 2011, the LAPs’ counsel deposed Callejas as Chevron’s Rule 30(b)(6) rep-
resentative in the Count 9 action. The LAPs’ counsel asked him to “identify the specific judges
that Chevron is saying acted in a biased manner or were corrupt.” Ex. 3644 at 33:5-7. Callejas
identified “all the judges who have heard the case in Lago Agrio,” which necessarily includes
both Guerra and Zambrano, and then attempted to incorporate the aforementioned interrogatory
responses into his testimony. Id. at 33:25–34:5, 45:18–46:17. But counsel for the LAPs refused
to accept that adoption, instead instructing Callejas, “I don’t want you to answer in any way
based on the interrogatories.” Id. at 47:2–3. Callejas invited the LAPs’ counsel to ask for facts
regarding specific judges, but the LAPs’ counsel never asked Callejas about Zambrano or Guer-
ra. Id. at 41:20–21.
On February 21, 2012, this Court dismissed the Count 9 action. Case No. 11-cv-3718,
Dkt. 380. In April 2012, Guerra came forward and over the next several months revealed his in-
volvement as ghostwriter for Zambrano and his knowledge of the LAPs’ bribery scheme. Dkt.
11 See Dkt. 916-1 (Ex. A) at 12 (“Describe each and every specific factual basis for your contention that the
judges in the ECUADORIAN LITIGATION were and are corrupt and not impartial.”).
21
755-14 (Ex. 3268) at 1. On November 17, 2012, Guerra signed an affidavit describing these
events. Dkt. 746-3 (Ex. C). Subsequently, on January 28, 2013, Chevron filed its motion for
partial summary judgment, including the Guerra Affidavit, and submitted the Chevron Attor-
neys’ affidavits and other corroborating evidence of Guerra’s account—including the 2009 Affi-
davits. Chevron also produced other documents related to Guerra, including tapes and tran-
scripts of conversations with Guerra. These documents were produced to Defendants, or made
available to them, prior to the February 22, 2013 deadline for responses to the relevant written
discovery. See Dkt. 808. Defendants do not argue otherwise.
Not only has Chevron timely produced the material in question, it has already explained
these facts to Defendants. On February 8, 2013, Defendants sent a letter to Chevron setting forth
many of the arguments made again in the instant motion to strike. Dkt. 916-7. Three days later,
Chevron responded to Defendants with a detailed letter (i) identifying documents that Chevron
previously produced from Guerra, (ii) reiterating its offer for Defendants to inspect the devices,
(iii) explaining that Chevron compensated Guerra for information, not just physical devices, and
(iv) demonstrating that Chevron fully responded to discovery requests in the Count 9 action. Ex.
3633. Also on February 11, 2013 Chevron sent Defendants copies of the Cohen and
Nickelsburg expert reports, as well as the executive summary of a report on the security situation
in Ecuador. Ex. 3645. Defendants did not submit either of these letters with their motion to
strike or address their content, and even imply that Chevron did not respond to their letter at all,
which is false. See Dkt. 916 at 8.
B. The 2009 Affidavits of Chevron’s Attorneys Were Properly Withheld as
Attorney Work Product.
Chevron properly logged the 2009 Affidavits as work product in the Count 9 action, and
its decision not to rely on them at that time has no bearing on its ability to do so now, where, as
22
Defendants do not dispute, it has timely produced them in discovery. “[W]here an affidavit or
declaration has been drafted with the assistance of counsel and executed by the affiant for
possible use in conjunction with a motion, courts have held that such affidavits qualify for work
product protection up until the time the affidavit or declaration is publicly filed in connection
with the motion.” Lujan v. Cabana Mgmt., Inc., 284 F.R.D. 50, 60–62 (E.D.N.Y. 2012) (holding
that declarations “constituted work product up until the date they were filed” and plaintiff’s
“failure to provide the privileged [declarations] in advance of their filing does not violate Rule
26”); see also Inst. for the Dev. of Earth Awareness v. People for the Ethical Treatment of
Animals, 272 F.R.D. 124, 125 (S.D.N.Y. 2011) (executed affidavits drafted for possible use on a
summary judgment motion “remained work product until the lawyer elected to serve and file
them”); Stokes v. City of New York, No. CV 2005-7-JFB-MDG, 2006 WL 2064976, at *2
(E.D.N.Y. July 24, 2006) (affidavit is protected by work product doctrine until it is “filed in this
action or otherwise publicly disclosed”). Work product protection of affidavits is necessary
because “the attorney who caused the preparation of the affidavit may have a strategic reason for
changing course and deciding not to file the document.” Lujan, 284 F.R.D. at 61. The cases
Defendants cite are inapposite and did not concern documents protected by the work product
doctrine. See White v. Fin. Credit Corp., No. 99 C 4023, 2001 WL 1665386, at *3 (N.D. Ill.
Dec. 27, 2001) (striking plaintiff’s credit report); Guang Dong Light Headgear Factory Co., Ltd.
v. ACI Int’l, Inc., No. 03-4165-JAR, 2008 WL 53665, at *1 (D. Kan. Jan. 2, 2008) (striking
declaration of witness who was not properly disclosed).
C. Chevron Has No Duty to Supplement Its Discovery Responses From the
Count 9 Action.
Defendants cite Rule 26(e)(1)(A) for the proposition that Chevron has not supplemented
its discovery responses (Dkt. 916 at 6), but Defendants fail to specify any discovery response
23
requiring supplementation. Assuming that Defendants refer to Chevron’s interrogatory respons-
es from the Count 9 action, Chevron is not required to supplement its interrogatory response in
an inactive case. See, e.g., Schindler Elevator Corp. v. Otis Elevator Co., No. 06 Civ. 5377-CM-
THK, 2010 WL 4007303, at *4–5 (S.D.N.Y. Oct. 6, 2010) (denying motion to strike supple-
mental interrogatory responses, submitted after case was remanded, because “[o]nce the court
granted summary judgment and dismissed the complaint, [plaintiff] could not supplement its in-
terrogatory responses, because the case was closed”). The Count 9 action terminated on Febru-
ary 21, 2012 (Case No. 11-cv-3718, Dkt. 380) and Chevron’s response to Interrogatory No. 9
was still complete at that time, as Guerra had not yet contacted Chevron with his additional in-
formation.12
CONCLUSION
The Court should deny Defendants’ motion to strike affidavits accompanying Chevron’s
motion for partial summary judgment.
Dated: April 4, 2013 Respectfully submitted,
New York, New York
/s/ Randy M. Mastro
Randy M. Mastro
Andrea E. Neuman
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue
New York, New York 10166
12 Defendants fail to acknowledge that preclusion of testimony under Rule 37(c), for failure to comply with
Rule 26(e), is a discretionary remedy. See Design Strategy, Inc. v. Davis, 469 F.3d 284, 298 (2d Cir. 2006) (holding
that “the plain text” of Rule 37(c) provides a court with “discretion to impose other, less drastic, sanctions”). In
exercising its discretion, the Court should consider “(1) the party’s explanation for the failure to comply with the
[disclosure requirement]; (2) the importance of the testimony of the precluded witness[es]; (3) the prejudice suffered
by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a contin-
uance.” Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006) (quotation omitted) (brackets in original). De-
fendants make no attempt to justify their “drastic” sanction—notably, they ignore the fact that the purported discov-
ery failures were in a separate action, and thus could not prejudice Defendants in this action, where the information
and documents were disclosed.
24
Telephone: 212.351.4000
Facsimile: 212.351.4035
William E. Thomson
333 South Grand Avenue
Los Angeles, California 90071
Telephone: 213.229.7000
Facsimile: 213.229.7520
Attorneys for Chevron Corporation