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    UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK

    In re Application of:

    CHEVRON CORPORATION, et al.,

    Applicants ,

    for an Order Pursuant to 28 U.S.C. 1782 toConduct Discovery for Use in ForeignProceedings

    Index No. 10-mc-0002 (LAK)

    ________________________________________________________________________

    THE ECUADORIAN PLAINTIFFS CONSOLIDATED REPLY MEMORANDUMOF LAW IN SUPPORT OF THEIR MOTIONS TO QUASH OR MODIFY

    SUBPOENAS SERVED UPON STEVEN R. DONZIGER ________________________________________________________________________

    Emery Celli Brinckerhoff & Abady LLP75 Rockefeller Plaza, 20 th Floor

    New York, NY 10019(212) 763-5000

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    TABLE OF CONTENTSPAGE NO.

    TABLE OF AUTHORITIES .............................................................................................. ii

    INTRODUCTION ...............................................................................................................1

    ARGUMENT.......................................................................................................................4

    I. Applicants Resort to the Crime Fraud Exception Fails ..............................4

    II. The Chevron Parties Other Arguments Fail ...............................................9

    CONCLUSION..................................................................................................................11

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    ii

    TABLE OF AUTHORITIESPAGE NO(s).

    CASES

    Coeur DAlene Tribe of Idaho v. Hammond ,384 F.3d 674 (9th Cir. 2004) .................................................................................. 9

    In re App. of Chevron Corp. , No. 10-mc-134,2010 U.S. Dist. LEXIS 50113 (S.D. Tex. May 20, 2010) ...................................... 8

    In re Currency Conversion Fee Antitrust Litigation, No. MDL No. 1409,2002 WL 31458230 (S.D.N.Y. Nov. 4, 2002)........................................................ 9

    In re Grand Jury Proceedings ,

    219 F.3d 175 (2d. Cir. 2000)................................................................................... 9 In re Kidder Peabody Securities Litig.,

    168 F.R.D. 459 (S.D.N.Y. 1996) ............................................................................ 9

    In re Von Bulow ,929 F.2d 94 (2d Cir. 1984)...................................................................................... 9

    Pravin Banker Assocs., Ltd. v. Banco Popular Del Peru, 109 F.3d 850 (2d Cir.1997)..................................................................................... 8

    Republic of Ecuador v. ChevronTexaco Corp. ,

    376 F. Supp.2d 334 (S.D.N.Y. 2005)...................................................................... 1

    Republic of Philippines v. Pimentel ,553 U.S. 851, 128 S.Ct. 2180 (2008)...................................................................... 8

    Royal & Sun Alliance v. Century Intl Arms, Inc .,466 F.3d 88 (2d Cir. 2006)...................................................................................... 8

    Syverson v. Intl Bus. Mach. Corp. ,472 F.3d 1072 (9th Cir. 2007) ................................................................................ 8

    Trudeau v. N.Y. State Consumer Protection Bd. ,237 F.R.D. 325 (N.D.N.Y. 2006)............................................................................ 9

    United States v. Jacobs ,117 F.3d 82 (2d Cir. 1997)...................................................................................... 9

    United States v. Zolin ,491 U.S. 554 (1989).................................................................................................5

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    Agrio Court, and that court has given no indication that such contacts are improper; (ii)

    (ii) Chevron has still not denied it that also had ex parte contacts with court experts in

    Lago Agrio; and (iii) Chevron still cannot point to a single order, rule, regulation, or law

    prohibiting such contact; to the contrary; it is reduced to relying on lengthy expert

    opinions to resolve what it had claimed was a cut and dry example of fraud under

    Ecuadorian law.

    Chevron complains about the ghostwriting of expert reports, yet it has become

    clear that Chevrons private expert, John A. Connor, ghostwrote part of the report of

    another independent, neutral court expert in Lago Agrio: Mr. Barros. Attached as Exhibit67 is a report Chevrons private expert, Mr. Connor, prepared dated June 16, 2005 titled

    Prcticas y Reglamentos Internacionales Para el Uso y la Remediacin de Piscinas de

    Campos Petroleros . Apparently without any attribution, the neutral and independent

    expert appointed by the Lago Agrio Court, Mr. Barros, copied entire pages of Chevrons

    report, word for word. In his expert report submitted to the Court, Barros included a five-

    page passage with the same title as the Connor report: Prcticas y Reglamentos

    Internacionales Para el Uso y la Remediacin de Piscinas de Campos Petroleros . Ex.

    68. The first two pages of this section mirror the Connor report exactly . Cf. Ex. 67 at 1-

    3; Ex. 68 at 2-3. Barros then follows this introductory section with three other passages

    directly cut from different sections of Connors report, all without attribution. Compare

    Ex. 67 at 8-9, 15, 19; Ex. 68 at 3-6. Nowhere does Barros appear to acknowledge that he

    has cut and pasted Chevrons experts materials into his own avowedly neutral and

    independent report. Does Chevron deny it had ex parte conduct with Barros? It does not.

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    this very discovery plaintiffs submissions to Cabrera but the Lago Court rebuffed it.

    Ex. 47 at 4; Ex.17 at 9; Ex. 12. If, as Chevron claims, it is entitled to these documents

    under the Lago Courts own orders, why did the Lago Court deny Chevrons application?

    Transparency in a civil law system such as Ecuadors plainly means something

    different than it does here, and this Court should reject the invitation (hastily and

    imprudently accepted by a couple of magistrates) to opine on the meaning of the Lago

    Courts prior rulings to make a finding, of all things, of a crime/fraud.

    In a recent Fifth Circuit argument, Judge Crone summed it up best:

    Youre not getting what you want there, so now you cometo the United States and where theres more liberaldiscovery allowed perhaps than in Ecuador, and I and Ithink that you, in the first place got a forum non conveniensdismissal from in the United States in favor of having

    procedures in Ecuador, and now maybe this is kind of whatyou bargained for. 4

    Chevron and its lawyers seek a first in their Section 1782 cavalcade: discovery,

    primarily of privileged material, from an active lawyer in this ongoing litigation. This is

    1782 beyond the breaking point. The motion to quash should be granted.

    ARGUMENT

    I. Applicants Resort to the Crime Fraud Exception Fails

    Realizing, of course, that the overwhelming majority of the discovery it seeks is

    privileged, the Chevron parties make the sweeping argument that the crime fraud

    exception justifies all of this discovery. This argument fails on a number of levels.

    4 Ex. 62 at 31.

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    First, the Chevron parties have made no showing that particular, responsive

    materials satisfy the crime fraud exception. Even if the Chevron parties had such a

    factual basis adequate to support a good faith belief by a reasonable person, United

    States v. Zolin , 491 U.S. 554, 572 (1989), which they do not, the appropriate procedure

    would be in camera review of particular documents the Chevron parties allege come

    within the exception. Id. at 572, 574-75 (before a district court may engage in in

    camera review at the request of the party opposing the privilege, that party must present

    evidence sufficient to support a reasonable belief that in camera review may yield

    evidence that establishes the [crime fraud] exceptions applicability.).Second, the Chevron parties fail to identify specifically the alleged crime or fraud,

    and which specific documents are in furtherance of it. Is the fraud the submissions to

    Cabrera, already before the Lago Court? Is the fraud materials relating to Calmbacher?

    Is the fraud the whole case? The Chevron parties briefs are a moving target on this

    topic; thus, it is difficult to know which specific documents they believe come within the

    exception. This is particularly difficult on a cold record, absent a privilege log and a

    motion to compel production of specific documents the Chevron parties believe come

    within the exception. See 10 MC 00002, Dkt. #52, at 14 (Order of Judge Kaplan). 5

    If the argument, however, is that the entire case is a fraud, plaintiffs suggest that

    the Court review the entire transcript of the Cabrera meeting, not just Chevrons one or

    5 Unlike in the Berlinger case, however, Donziger has claimed that the volume of responsive documents is so great that the burden of enumerating them and making

    particularized claims of privilege with respect to each would be unreasonable. Cf . id n.33. Indeed, in their opposition, the Chevron parties did not dispute the immense burdenthese subpoenas would place on Donziger, and instead blamed him for spending asubstantial portion of his professional life on this case.

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    two snippets. 6 It is a serious, sober discussion concerning Chevrons massive

    contamination, both before and after the so-called remediation. See Ex. 65, CRS 188-

    1, at 3-4 (summarizing hundreds of contaminated samples, as found by both plaintiffs and

    Chevron); at 5 (Here is all of the summary chart for the sites inspected. As we can see,

    the majority of them are sites that supposedly underwent remediation by Texaco. All of

    them currently show contamination.); id. (if they take out all of our evidence, I think

    that well win this case. In other words, Texaco is proving our case. With all of their

    manipulation of the sampling, as can be seen in the inspections, they are still drawing soil

    and water samples that violate the laws of Ecuador.); at 7 (discussing remediation:They came in, they capped it off, took something out, poured water, planted trees and

    that was the remediation. As you can see, there are 8 wells out of 64. The rest of the sites

    are just as Texaco left them.); at 8-10 (discussing Chevrons manipulation of sampling

    techniques to minimize findings of contamination); at 13 (describing how Chevron takes

    water samples upstream to avoid findings of contamination); at 13 (For barium, weve

    found 8,030 in soil. The permissible standard in Ecuador is 750 PPM. And in one sample

    we found 8,030. For cadmium, 27. The permissible limit is one. Nickel, 199.37. The

    permissible limit is 40. Zinc, 617.91. This sample is from Texaco. The permissible limit

    is 200. Chromium, 232.8. The permissible limit is 63. Copper, 120.); CRS 188-2, at 2-3

    (describing groundwater contamination); at 4-7 (challenges of remediation); CRS 189-1

    at 4 (remediation is a 17 to 20 year project); 12 (17 to 20 years to remediate

    6 Two cameras covered the meeting. Plaintiffs have thus far managed to get a completetranscription from Camera 1. Chevron has been in possession of these outtakes for anumber of weeks.

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    groundwater contamination). The outtakes do not reveal a massive fraud; they reveal a

    serious case to redress substantial harm caused by Chevron.

    Third, the question is whether there is a fraud under Ecuadorian, not U.S., law.

    The entire basis for Chevrons allegations of impropriety rests upon orders of the Lago

    Court, concerning independence, impartiality, and the like. Ch. Br. at 25-26. Yet

    Chevron would have this Court, somehow applying American law, determine that

    plaintiffs violated the Lago Courts orders. In the context of this case, this backwards

    approach has no jurisprudential basis and makes no sense.

    The Lago Court is in the best, indeed the only, position to determine whether itsown orders were violated. Chevron chose the Ecuadorian court as the site for this case.

    Chevron relies on the Ecuadorian courts orders for its claims of fraud. Chevron is before

    the Ecuadorian court right now. Chevrons suggestion that an American court should

    apply American law to determine whether plaintiffs violated court orders in Ecuador is

    absurd, indeed, impossible. There is no American law on the topic of the meaning and

    interpretation of the Lago Courts orders. 7

    Realizing that its appeal to American law is absurd on its face, Chevron resorts to

    two opinions of hired experts, who claim essentially that plaintiffs committed impropriety

    under Ecuadorian law. First, it is telling that Chevron is compelled to resort to experts at

    all. Because Chevron could find no order, rule, regulation, or law that prohibited

    plaintiffs conduct, it must pay people to provide opinions on the topic. If the crime or

    fraud were so plain, why must Chevron hire not one but two experts to prove it?

    7 Chevrons presentation concerning alleged violations of U.S. law revolves around theuse of the word independent in filings in the United States a topic addressed in 10MC 00001, Dkt. # 15 at 5-8 (incorporated herein) and Mr. Calmbacher, addressed infra .

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    In any event, given the comity concerns at the heart of Section 1782, and the

    ongoing proceedings taking place in the court of a sovereign nation where this claim can

    be and has been raised, the place for such a filing, if at all, is in Ecuador. 8 See, e.g. ,

    Republic of Philippines v. Pimentel , 553 U.S. 851, 128 S.Ct. 2180, 2190 (2008) (The

    dignity of a foreign state is not enhanced if other nations bypass its courts without right or

    good cause.); Pravin Banker Assocs., Ltd. v. Banco Popular Del Peru, 109 F.3d 850,

    854 (2d Cir.1997) (United States courts ordinarily . . . defer to proceedings taking place

    in foreign countries.); Royal & Sun Alliance v. Century Intl Arms, Inc ., 466 F.3d 88, 94

    (2d Cir. 2006) (In the context of parallel proceedings in a foreign court, a district courtshould be guided by . . . the proper respect for litigation in and the courts of a sovereign

    nation).

    The Cabrera issue is before the Lago Court, that Court has not found the conduct

    fraudulent in any way, and Chevron engaged in similar conduct. 9 The Chevron parties do

    not come close to establishing a fraud.

    8 One could scarcely imagine hiring an American expert to tell the American court that itsown orders were violated. It is unclear whether the Ecuadorian court will be any moreinterested in the opinion of an Ecuadorian expert concerning whether its own orderswere violated.9 Chevrons last-ditch argument collateral estoppel fails. First, it cannot apply toDonziger, who was not a party to these other actions. Second, Chevron is cherry-pickingfindings favorable to it while at the same ignoring other rulings favorable to Plaintiffs.Syverson v. Intl Bus. Mach. Corp. , 472 F.3d 1072, 1080 (9th Cir. 2007) ([A]llowing [a

    party] to cherry-pick favorable prior decisions to preclude issues in an ongoing or subsequent litigation raises serious fairness concerns.). Chevron omits from its collateralestoppel discussion the fact that Chevron advanced a similar crime-fraud argument beforethe Southern District of Texas, and that the court there did not find such an exceptionapplied. Instead, the Texas court ordered merely a foundational deposition, andexpressed substantial reservations about Chevrons overbroad requests which, like here,

    plainly impinge upon attorney-client and work-product privilege. In re App. of ChevronCorp. , No. 10-mc-134, 2010 U.S. Dist. LEXIS 50113, at *11-*13 (S.D. Tex. May 20,2010). Chevron also repeatedly invoked crime-fraud in the District of Colorado, but that

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    interaction with Mr. Cabrera waive any and all privileges concerning their consulting

    experts.

    Chevrons attempt to refute the common interest privilege plaintiffs have had (as

    to certain matters) with the Republic of Ecuador is particularly ironic. For years, in

    judicial filings too numerous to mention, Chevron has accused plaintiffs of colluding

    with ROE. But now, other than citing an excerpt from a Second Circuit argument that

    has nothing to do with the common interest privilege, Chevron speculates without any

    knowledge at all that ROE and plaintiffs have no common interest in any of the various

    litigations around the world.11

    Chevrons speculation is simply wrong. By way of example, plaintiffs and ROE brought parallel litigations to enjoin Chevron from

    participating in the BIT arbitration (itself a rearguard attack on the Lago case) and have

    a common interest in pursuing the case. The parties with the common interest know the

    existence and contours of the interest; not Chevron.

    There is neither time nor space to address every single one of the Chevron parties

    misleading use of effectively a few minutes of outtakes, a feat of editing that might make

    even Joe Berlinger jealous. But one aspect of their papers deserves some mention:

    Charles Calmbacher.

    Mr. Calmbacher is a disgruntled former expert, who had a very minor role in the

    Lago case, and who threatened to sue plaintiffs for unpaid fees. His deposition occurred

    outside the presence of plaintiffs, he was never cross-examined, and his testimony was

    11 The excerpt dealt with the source of payment to satisfy a judgment in the Lago Agriocase. The full, relevant transcript is set forth at Ex. 8, 85-89. Chevrons citation wedont really have a dog in that fight [in the Treaty Arbitration] obscures that plaintiffs

    brought an entire case, along with ROE, to enjoin Chevrons participation in the TreatyArbitration, which is itself a naked attempt to dismiss the Lago case.

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    less than candid. In order to avoid any arguable claim of waiver of privilege, plaintiffs

    will file an exhibit reflecting correspondence between Calmbacher and Donziger under

    seal.

    CONCLUSION

    For the foregoing reasons, and those set forth in plaintiffs moving brief and

    Donzigers papers, the Lago Agrio Plaintiffs respectfully submit that the subpoenas be

    quashed.

    Dated: New York, New York

    September 7, 2010EMERY CELLI BRINCKERHOFF

    & ABADY LLP

    /s/ Ilann M. Maazel _________________________

    Jonathan S. AbadyIlann M. MaazelO. Andrew F. WilsonAdam Pulver

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

    Attorneys for Lago Agrio/ Ecuadorian Plaintiffs

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