Welcome to Scribd. Sign in or start your free trial to enjoy unlimited e-books, audiobooks & documents.Find out more
Download
Standard view
Full view
of .
Look up keyword
Like this
1Activity
0 of .
Results for:
No results containing your search query
P. 1
Ex. 12

Ex. 12

Ratings: (0)|Views: 9|Likes:
Chevron evidence in motion for contempt against Steven Donziger
Chevron evidence in motion for contempt against Steven Donziger

More info:

Published by: National Association of Manufacturers (NAM) on May 01, 2011
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

04/15/2014

pdf

text

original

 
 
Exhibit 12
 
Case 1:10-mc-00002-LAK Document 194-12 Filed 04/26/11 Page 1 of 10
 
PRIVILEGED/CONFIDENTIAL/ATTORNEY WORK PRODUCT
Dear Fellow Counsel,
As
you know, I was in Ecuador last week where I spent several hours meeting with local counsel andconducting due diligence on Ecuador law issues and the trial record as they relate to the
Aguinda
case. Iwas accompanied by Laura
GaIT
and Aaron Page, both
of
whom are lawyers who have workedintensively on the case for several months and who have done substantial research on some
of
the issues.Among other things, we analyzed the status
of
the
Aguinda
case, the time frame for a possible decisiongiven the various uncertainties now in theU.S. and the Hague, and how information gleaned by Chevronvia its 1782 strategy could impact expectations and impose additional risks both for the case itself and forcurrent counsel personally (including the undersigned). These issues need to be weighed carefully by ourteam, and plans needs to be in place to deal with likely contingencies.
The Status
of
he
Aguinda
Case
Local counsel believes a judgment in the
Aguinda
case could come as early as September
of
this year,assuming that the 1782 actions in the U.S. or other events don't impede the schedule. (My experiencewith these predictions
is
that they tend to be overly optimistic.) There are three evidentiary reports, allrequested by Chevron, that are still outstanding although they have been ordered to be completed by May.Our counsel believes the court will issue the
autos para sentencia
(meaning the case
is
ripe for decision)as early as June or July, at which point the parties will submit their alegatos or final written arguments.Because
of
risks relating to the Cabrera report as described below, it
is
possible the sentence won't comeas quickly as local counsel predicts and there are several contingencies at play.
The Cabrera Report
and
the
Role
of
Stratus: Ecuador
Law
A major contingency
is
obviously the Colorado 1782 action.
As
previously indicated,
if
Chevronsucceeds in obtaining discovery from Stratus and deposing the Stratus principals (which we assume willhappen although questions remain about the scope
of
production), they will find that Stratus wrote thebulk
of
the report adopted by Cabrera and submitted to the court. Various annexes and an executivesummary were provided to local counsel, who provided it to Cabrera, who adopted
it.
There wassignificant back and forth collaboration between local counsel and Cabrera, and separately, via localcounsel and Stratus. There are also numerous emails between Stratus and local counsel documenting howthis work was done, and there are some emails between Stratus andU.S. counsel that show U.S. counsel(relying on guidance
of
local counsel) approved
of
this process, encouraged it, and was involved in itfrom a supervisory perspective. There was also at least one ex parte meeting between Stratus and Cabreraat which U.S. counsel was present. The emails and testimony likely will show some effort to keep theextent
of
this ex parte collaboration between our local counsel and Cabrera from being disclosed. (Theentirety
of
the
emailsandproductionneedstobereviewedandprivilegesasserted.soit
is
uncertainwhether the emails will be disclosed.)Our local counsel indicates there will be two very different perspectives on these facts. The traditionalEcuadorian law perspective (which will be asserted by Chevron) would hold that the level
of
collaboration between one party and the expert
is
problematic and improper in that all court-appointedexperts in Ecuador should be independent. By working so closely with our local counsel and Stratus,
DONZ-HDD-0008596
Case 1:10-mc-00002-LAK Document 194-12 Filed 04/26/11 Page 2 of 10
 
Cabrera violated his duties to the court. Under this perspective, treating Cabrera like a u.S.-style expertas we did will be seen as a violation
of
local court rules. Whether the court will see these facts as
no
bigdeal, improper, some sort
of
procedural defect that can be corrected, or (as the Gibson lawyers will surelyassert) a fraud
is
uncertain. Our side believes we can weather the storm with good advocacy in both thecourt and the media, in Ecuador and in the U.S. However, it was not lost on us that our local counselseemed concerned about how the information would land in Ecuador and what impact it would have onthe case, and to them personally. They fully expect that Chevron would refer the information to thenational prosecutor for action. (Note that two Chevron lawyers are currently under indictment inEcuador for lying about the results
of
Texaco's earlier remediation.) Local counsel agrees that we need toimmediately take steps to expand and fortify our team in Ecuador to have in place a plan to defend theprocess in a timely manner.Generally, our local team believes it
is
likely that the Cabrera report will survive and will be used by thecourt as a basis (along with some
of
the
103
other expert reports in evidence) to impose a damages claimon Chevron. However, local counsel believes it
is
also possible that the information could prompt thecourt to nullify the Cabrera report and order a new damages assessment based on the existing evidence.This would set back the timing
of
a decision for approximately two years. An absolute worse-casescenario, which local counsel sees as highly unlikely for several reasons, would be for the court toconclude one party litigated in "bad faith" and end the trial. Chevron will certainly ask that the Cabrerareport be stricken and that the judge throw out the case. (Chevron already has made these requests re" theCabrera report with no success, although with lesser facts.)The other perspective
is
that given the customs and practices
of
the
Aguinda
case, nothing improperhappened. The information in the Cabrera report
is
sound, and
is
consistent with the high quality
of
workthat Stratus has done as a world class environmental consultancy.
As
you know, all
of
the courtappointed experts in the judicial inspections have been working closely with the parties in one form oranother for several years with full knowledge
of
the court, and Cabrera was
no
different. Chevron'sexperts, including U.S. citizens appointed by the judge at Chevron's request were working withChevron's counsel. Even though Cabrera was not an expert put forth by the parties, given that theplaintiffs unilaterally sought the global expert report and are paying him, that Chevron boycotted theprocess, and that the court ordered the parties to
tum
over materials to Cabrera and otherwise assist him,then the role
of
local counsel and Stratus was well within our rights and custom under the rules andpractices
of
the
Aguinda
case as they had evolved since its inception almost seven years ago. Further,there are three other court-appointed experts preparing reports right now at Chevron's behest along thesame lines as Cabrera, with Chevron paying all costs and Chevron counsel presumably working closelywith the individual experts.In my opinion, it
is
critical that create a plan to deal with the disclosure
of
these facts and Chevron'spublic relations campaign. This might involve hiring a crisis communications consultancy, havingstatements ready to be given to the press, getting in front
of
the issue by announcing the results
of
eachdeposition before Chevron can, putting out new counsel both in Ecuador and the
U.
S.
to announce theywill deal with any problems, possible change
of
status
of
existing counsel etc. Ultimately, we need toproject the image that these facts are more "business as usual" as Chevron tries to undermine a trial that itknows it will lose based on the scientific evidence. Nevertheless, these are critical questions that need tobe given thoughtful consideration immediately by the team.
DONZ-HDD-0008597
Case 1:10-mc-00002-LAK Document 194-12 Filed 04/26/11 Page 3 of 10

You're Reading a Free Preview

Download
scribd
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->