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Chevron Corporation v. Donziger

United States District Court, Second Circuit

August 9, 2013

STEVEN DONZIGER, et al., Defendants.


JAMES C. FRANCIS, IV, Magistrate Judge.

With apologies, plaintiff Chevron Corporation ("Chevron") has added two more discovery motions to the already crammed docket in this case.[1] These motions seek production of documents that defendants Steven R. Donziger, Hugo Gerardo Camacho Naranjo, and Javier Piaguaje Payaguaje claim are privileged. For the reasons that follow, the motions are granted in part and denied in part.


This case arises out of a multi-billion dollar judgment obtained in Ecuador against Chevron based on claims of environmental destruction. In this action, Chevron contends that the plaintiffs in the Ecuadorian litigation (the "LAPs"), along with their consultants and their attorneys, including Mr. Donziger, procured the judgment through fraud.[2]

In the course of the litigation, in response to a motion to quash a subpoena duces tecum issued to non-party Patton Boggs, LLP ("Patton Boggs"), the Honorable Lewis A. Kaplan, U.S.D.J., identified a number of areas for which attorney-client privilege and work product protection was inapplicable on the basis of the crime-fraud exception, which abrogates privilege "where there is probable cause to believe that a fraud or crime has been committed [by someone] and that the communications in question were in furtherance of the fraud or crime." Chevron Corp. v. Donziger, 11 Civ. 691, 2013 WL 1087236, at *3 (S.D.N.Y. March 15, 2013) (alteration in original) (emphasis and internal quotation marks omitted) (the "March 15 Decision"); see also id. at *6-11, 13-15, 28-29. I summarized these findings in a recent order:

[Judge Kaplan] found probable cause to believe that a crime or fraud had been committed in connection with:
(1) Bribery of an Ecuadorian Judge, Nicolás Zambrano, in order to obtain a favorable outcome in the Ecuadorian litigation and allow the LAPs to compose the judgment, which was then filed in the judge's name;
(2) Interference with an independent inspection of the pollution sites in Ecuador by (a) submitting an expert report that purported to be the work of Dr. Charles Calmbacher but contained views to which he did not subscribe, and (b) using duress and coercion to obtain the appointment of Richard Stalin Cabrera Vega as the "global" court-appointed expert and then submitting a report in Mr. Cabrera's name that was in fact written by lawyers and consultants retained by the LAPs; and
(3) Perpetuation of a fraud on the court in a proceeding brought in the District of Colorado by Chevron pursuant to 28 U.S.C. § 1782, in which Patton Boggs was involved in the drafting and submission of an affidavit by Pablo Fajardo, one of the LAPs' attorneys, which provided false information about the appointment of Mr. Cabrera and the authorship of the report he submitted to the Ecuadorian court.

Chevron Corp. v. Donziger, No. 11 Civ. 691, 2013 WL 3805140, at *1-2 (S.D.N.Y. July 19, 2013) (internal citations omitted)).

As noted above, there are two motions concerning privilege logs at issue here. The first asserts that Mr. Donziger has waived claimed privileges because (1) his privilege log is inadequate (Pl. Memo. re Donziger at 1-2); (2) crime-fraud rulings "vitiate any privilege" (Pl. Memo. re Donziger at 2-3); (3) communications with third parties such as Stratus Consulting ("Stratus"), Public Citizen, Amazon Watch, and Rainforest Action Network are not privileged (Pl. Memo. re Donziger at 3-4); and (4) communications with media strategists are not privileged (Pl. Memo. re Donziger at 4).[3]

The second motion addresses the privilege log of Mr. Naranjo and Mr. Payaguaje, contending that they have waived their claims of privilege because they have failed to log communications between counsel of record for the defendants and (1) "any other law firm that has represented anyone affiliated with the LAPs in any other action, " including Patton Boggs, Emery Celli Brinckerhoff & Abady, LLC, and Silver & DeBoskey, P.C.; (2) "any individual or entity with whom the LAPs claim a common interest"; and (3) "any other individuals or entities within the ambit" of the March 15 Decision regarding the crime-fraud exception. (Pl. Memo. re Naranjo at 2, 3). In addition, Chevron asserts that the log improperly claims privilege for documents produced in other related litigation (Pl. Memo. re Naranjo at 3), and that the log's descriptions are so deficient that these defendants should be found to have waived any privilege (Pl. Memo. re Naranjo at 4).

A. Donziger

1. Sufficiency of the Privilege Log and the ...

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