Case 1:10-mc-00001-LAK Document 21 Filed 08/12/10 Page 1 of 18

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------------------- x
In re:

Application of CHEVRON 10 MC 00001 (LAK)

This Document Applies to: ALL CASES

-------------------------------------------------------------------- x

CHEVRON CORPORATION’S MEMORANDUM OF LAW (1) IN FURTHER SUP-

PORT OF ITS MOTION FOR A PRESERVATION ORDER AND TO SUPPLEMENT
AND ENFORCE THE SUBPOENAS, AND (2) IN OPPOSITION TO RESPONDENTS’
CROSS-MOTION FOR AN ORDER COMPELLING CHEVRON CORPORATION TO
COMPLY WITH SECOND CIRCUIT’S ORDER

GIBSON, DUNN & CRUTCHER LLP

200 Park Avenue, 47th Floor
New York, New York 10166-0193
Telephone: 212.351.4000
Facsimile: 212.351.4035

Attorneys for Applicant Chevron Corporation

 Case 1:10-mc-00001-LAK Document 21 Filed 08/12/10 Page 2 of 18

TABLE OF CONTENTS

PRELIMINARY STATEMENT ................................................................................................... 1

I. RESPONDENTS HAVE NOT COMPLIED WITH THE ORDERS OF THIS COURT AND
THE SECOND CIRCUIT, AND THEIR RECENT TARDY PRODUCTIONS
CONFIRM CHEVRON’S NEED FOR ADDITIONAL DICOVERY. ............................ 3

II. THE ADDITIONAL DISCOVERY REQUESTED BY CHEVRON IS NOT

FORECLOSED BY THE JOURNALIST’S PRIVILEGE. ............................................. 10

A. The Additional Discovery Chevron Seeks Is Non-Confidential.......................... 10

B. The Journalist’s Privilege Cannot Be Used To Conceal Fraudulent Conduct or

Other Acts of Wrongdoing................................................................................... 11

C. Berlinger Has Waived Any Viable Assertion of Privilege In Any Event

Through His Public Commentary about the Footage and By Voluntarily
Providing the Footage to the Lago Agrio Plaintiffs............................................. 12

III. THE CONTENTION THAT CHEVRON HAS VIOLATED THE SECOND CIRCUIT
ORDER IS WITHOUT MERIT. ..................................................................................... 13

IV. CHEVRON’S REQUEST FOR A PRESERVATION ORDER SHOULD BE GRANTED

AS TO ALL RESPONDENTS AND THE LAGO AGRIO PLAINTIFFS..................... 14

CONCLUSION............................................................................................................................ 15

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TABLE OF AUTHORITIES

Page(s)

Cases

Ayala v. Ayers,
668 F. Supp. 2d 1248 (S.D. Cal. 2009)..................................................................................... 13

Gonzales v. Nat’l Broad. Co.,

194 F.3d 29 (2d Cir. 1999)........................................................................................................ 11

In re Edelman,
295 F.3d 171 (2d Cir.2002)……………………………………………………………………15

In re Kidder Peabody Sec. Litig.,

168 F.R.D. 459 (S.D.N.Y. 1996) .............................................................................................. 13

In re Sims,
534 F.3d 117 (2d Cir. 2008)...................................................................................................... 12

Kronisch v. United States,

150 F.3d 112 (2d Cir. 1998)...................................................................................................... 14

U.S. v. Jacobs,
117 F.3d 82 (2d Cir. 1997)........................................................................................................ 11

ii
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PRELIMINARY STATEMENT

The Crude outtakes submitted with Chevron’s August 3 Motion for a preservation order

and additional discovery are incontrovertible evidence of fraud and corruption on the part of the

Lago Agrio Plaintiffs’ counsel and those working in concert with them. Moreover, as we explain

below, our ongoing review of hundreds of hours of outtakes has revealed shocking, additional

evidence of further, serious misconduct.

In their opposition briefs, the Filmmaker and the Plaintiffs have continued to try to mask

the misconduct and hide the truth. Without so much as a background glance to their years of

prior denials, including those made to multiple federal courts in the U.S., Plaintiffs claim that

their March 3, 2007, meeting with Cabrera for the express purpose of planning his “global expert

report”—an “independent” expert assessment that Cabrera had not yet been publicly appointed to

perform—was “unremarkable.” And while they do not deny that the purpose of the March 3rd

meeting was to plan Cabrera’s would-be $27.3 billion “damages” assessment, they argue without

any basis in fact that Chevron has somehow taken footage “out of context” and violated the Sec-

ond Circuit’s disclosure restrictions. Neither the Filmmaker nor Plaintiffs have demonstrated

that any evidence submitted with Chevron’s motion was misleading or devoid of contextual ma-

terial that would explain away the Plaintiffs’ illicit dealings with “Special Master” Cabrera or

their other misconduct. Nor have they shown that referring journalists to information already on

public file with this Court has in any way violated the Second Circuit’s order.

In the face of the mounting evidence of Plaintiffs’ fraud and corruption in the Lago Agrio

Litigation, the Filmmaker has now further aligned himself with the Plaintiffs’ campaign. He has

voluntarily given to the Plaintiffs’ counsel many hours of footage that he earlier refused to give

to Chevron on alleged journalists’ privilege grounds, and he has made unsupportable public

statements (notably not repeated in his under-oath declaration filed with this Court) claiming that
 Case 1:10-mc-00001-LAK Document 21 Filed 08/12/10 Page 5 of 18

Chevron took these outtakes “out of context,” joining in Plaintiffs’ theme. All of this is an effort

on their collective part to distract attention from Chevron’s reasonable, tailored requests for more

information. This Court should not countenance this procedural gamesmanship.

Chevron has not taken any footage out of context. No court order has been violated. In-

stead, the fear that Mr. Berlinger’s footage might some day be subpoenaed—a fear expressed by

one of the Plaintiffs’ representatives and caught on camera by the Filmmaker—has come to pass.

These Crude outtakes reveal that Plaintiffs’ lead counsel Steven Donziger thought he and the

Filmmaker could shield his misconduct because “[w]e don’t have the power of subpoena in Ec-

uador.”1 He was wrong. Plaintiffs’ counsel cannot hide their fraudulent conduct from the sub-

poena power of this Court—they knowingly waived attorney-client privilege to star in this

movie, and fall squarely within the crime-fraud exception to the privilege in any event—and they

cannot therefore attempt to hide behind any journalist’s privilege claimed by their Filmmaker

ally, who himself has now waived any arguable privilege. The truth of Plaintiffs’ counsel’s mis-

conduct is finally starting to be revealed. And now the rest must follow in the interests of fair-

ness and justice. Chevron’s August 3 Motion should therefore be granted in its entirety, and Re-

spondents’ cross-motion should be denied.

1 With this reply brief, Chevron submits a CD (Ex. 1), a DVD (Ex. 2) and certified transcripts (Ex. 3) containing
the video excerpts discussed here. Chevron is also prepared to submit copies of the relevant video tapes on
which each of these excerpts appears in their entirety so that the Court can be assured of the full context. Refer-
ences to Exhibits A through BBB herein are references to exhibits to the Declaration of Kristen L. Hendricks,
dated August 3, 2010 (“Hendricks Decl. I”). References to Exhibits 1 through 20 herein are references to the
Declaration of Kristen L. Hendricks, dated August 12, 2010 (“Hendricks Decl. II”).

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ARGUMENT

I.
RESPONDENTS HAVE NOT COMPLIED WITH THE ORDERS OF THIS COURT
AND THE SECOND CIRCUIT, AND THEIR RECENT TARDY PRODUCTIONS
CONFIRM CHEVRON’S NEED FOR ADDITIONAL DICOVERY.

As a result of Chevron’s August 3 Motion, the Filmmaker, Joseph Berlinger, has supple-

mented his production to Chevron. While certain progress has been made on account of Mr.

Berlinger’s tardy productions, they also confirm the need for the relief Chevron now seeks.

On August 6, Mr. Berlinger, having previously represented that he made a complete pro-

duction by July 30, made a new production to Chevron that included the following:

1) Mr. Berlinger’s original footage log in native electronic format;

2) Five back-up audio tapes;
3) One tape previously designated by Mr. Berlinger as “missing” and three tapes previ-
ously designated by Mr. Berlinger as “DNE” (“Does Not Exist”);
4) A revised privilege log accounting for one tape previously designated as “missing”
and one tape previously designated as “DNE” (“Does Not Exist”), both of which Mr.
Berlinger apparently found and determined to be non-responsive upon review.

See Ex. 5. While Chevron appreciates that Mr. Berlinger has tried to address some of the con-

cerns raised in Chevron’s August 3 Motion, the August 6 supplemental production raises a host

of new issues. First, Mr. Berlinger’s sudden discovery of tapes he previously claimed were

“missing” or even “did not exist” is troubling in itself. In addition, one of the audio tapes pro-

duced by Mr. Berlinger on August 6 is nowhere listed in his log, while the other four audio tapes

produced on August 6 are listed. Compare Ex. 6 with Ex. 5. This, of course, raises the question

whether Mr. Berlinger has other tapes in his possession that are not listed in his original footage

log. Moreover, Mr. Berlinger’s original footage log contains a listing of 122 tapes that fall under

a category he designates as “Archival.”2 These “Archival” tapes appear to contain at least some

2 In his August 10 declaration, Mr. Berlinger refers to this footage as “third-party archival footage.” See Declara-

[Footnote continued on next page]

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responsive material. For example, the Archival tape designated as CRA003 is described as con-

taining footage of “Donziger on TV.” See Ex. 6 at 16. However, not one of these Archival tapes

has been produced. In fact, Chevron did not even learn of their existence until Mr. Berlinger

produced his new “original” log last Friday. If this material, indeed, features Mr. Donziger, as

the log suggests, it should be turned over to Chevron forthwith.3

Moreover, just this past Monday, August 9, Mr. Berlinger made a new production of 21

tapes previously withheld as “nonresponsive,” including tape number CRS472, a tape previously

identified as “missing” but apparently now found by Respondents but withheld on privilege

grounds on August 6. See Exs. 5; 7. Mr. Berlinger’s counsel, Maura Wogan, explained in her

letter enclosing the tapes that co-filmmaker Michael Bonfiglio was responsible for reviewing

these tapes initially and did not notice the responsive individuals who appear in these tapes dur-

ing his review. See Ex. 8. But for this decision to belatedly produce this responsive footage,

Chevron never would have known that Respondents had improperly withheld these tapes. The

privilege log Mr. Berlinger provided gave no indication that any responsive individuals were fea-

tured in these tapes. See Ex. V. Yet Mr. Berlinger nonetheless maintains that his privilege log

“set[s] forth the detailed information required by the July 21 Order” of this Court. Resp. Opp. at

3. This late production of responsive footage demonstrates that Chevron’s initial concerns about

the review process were justified, that neither Chevron nor this Court can have full confidence in

Respondents’ review and production of the Crude outtakes, and that there are obvious deficien-

[Footnote continued from previous page]

tion of Joe Berlinger, dated August 10, 2010 (“Berlinger Decl. III”) ¶ 18.
3 The Second Circuit’s Order requires production of “all footage that does not appear in publicly released ver-
sions of Crude” showing individuals falling within three categories identified by the panel (counsel for the
plaintiffs, experts, and government officials). See Ex. M ¶ 1.

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cies in Mr. Berlinger’s various privilege logs.

Most of all, these recent productions demonstrate that Mr. Berlinger’s representations

cannot be taken at face value. The new log produced on August 6, which Mr. Berlinger now

calls the “original production log” (see Exs. 5; 6) is, in fact, substantively different from the

“original footage log” he produced to Chevron on July 20, 2010 (see Ex. U). The latest “origi-

nal” log lists tapes that were entirely excluded from the “original” log produced on July 20.

Thus, Mr. Berlinger misrepresented that the log produced on July 20 was, in fact, the “original”

footage log. Moreover, tapes that supposedly “d[id] not exist” have now been produced, as have

tapes that were “missing.” Ex. 5. And 21 tapes that were previously withheld in full as non-

responsive have now been produced in their entirety, but only after Chevron filed its August 3

Motion. Ex. 8. Furthermore, Mr. Berlinger now asserts that “[a]ny statement that shooting be-

gan in November 2005 was a mistake.” Berlinger Decl. III ¶ 17. Yet on April 22, 2010, Mr.

Berlinger swore to this Court that “[p]rincipal photography for Crude began in November 2005 .

. . .” Ex. S ¶ 15. These constantly evolving representations about the Crude footage and Mr.

Berlinger’s production make it impossible for Chevron or this Court to trust Mr. Berlinger’s

claims or even attempt to verify their accuracy without further discovery.

Even worse, Chevron has now discovered that both Mr. Berlinger and the Plaintiffs made

false representations to this and other Courts regarding the content of the footage and its signifi-

cance. For example, in Chevron’s ongoing review, it has learned that, although Mr. Berlinger

represented to this Court and the Second Circuit on multiple occasions that “the unpublished

footage contains no material regarding the criminal prosecutions in general or specifically the

prosecutions against Messrs. Pérez and Reis Veiga” (Ex. S ¶ 35 (emphasis added); see also Ex.

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R at 16, 23; Ex. 9 at 17-20; Ex. 10 at 70: 17-24)4, the unreleased footage, in fact, contains re-

peated references to the criminal case against Chevron attorneys Rodrigo Pérez Pallares and Ri-

cardo Reis Veiga. In just one example, Steven Donziger is seen talking on the phone, suggesting

to the person on the other end of the line that, “perhaps it is time to ask for the head of Pérez Pal-

lares—given what the President said.” Exs. 1-3 at CRS-268-000-Clip 01; see also id. at 198-00-

CLIP-04; CRS-376-03-CLIP-01.

Similarly, in trying to convince this Court that Dr. Beristain’s presence in the film was

“unimportant” (Ex. 11 at 40:21), Berlinger and the Plaintiffs argued that Dr. Beristain “was not

with the Court expert team at [the] time” of the meeting edited by Berlinger at the request of

Plaintiffs' counsel. Ex. 11 at 39; see also Ex. S ¶ 31. Regarding Dr. Beristain’s attendance at

this meeting with Plaintiffs’ counsel, Mr. Maazel even asked this Court, “What is the impropri-

ety?” See Ex. 11 at 39. But a privilege log produced to Chevron by Plaintiffs in the Colorado

1782 proceeding shows that Plaintiffs’ expert consultants and attorneys had direct communica-

tion with Dr. Beristain in July and August 2008, during the period between the submission of

Cabrera’s first report (which included $2.7 billion in damages for alleged “excess” cancer deaths

based on Beristain's purportedly independent study) and the submission of Cabrera’s second re-

port (which increased that damage component to $9.5 billion). See Ex. 12 at 108-12, 195-97.

Incredibly, Plaintiffs’ counsel are so desperate to conceal their misconduct in this regard that

they have interposed a frivolous attorney-client privilege claim over their expert consultants’

4 Ilann Maazel, counsel for the Lago Agrio Plaintiffs, repeatedly and explicitly referenced these misrepresenta-
tions by Mr. Berlinger. See, e.g., Ex. O at 1, 22; Ex. P at 23-24; Ex. Q at 26; Ex. 10 at 72: 2-10; Ex. 11 at 43:
16-24.

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communications with a supposedly “independent” party, Dr. Beristain.5 In light of this new evi-

dence of Plaintiffs’ counsel’s collusion with the supposedly “neutral” and “independent” court

expert, it now seems obvious that Berlinger sought to mislead this Court when he claimed that he

“edited Dr. Beristain from the Cofán meeting scene . . . not to ‘conceal’ any improper conduct by

plaintiffs’ counsel, but to prevent the scene from being misconstrued and taken out of context . . .

.” See, e.g., Ex. S ¶ 32; Ex. R at 19-20.

In trying to prevent Chevron from obtaining this critical discovery, Berlinger and his

counsel also represented on multiple occasions that “there’s probably nothing in the outtakes.

Filmmakers put the best stuff in the film.” See Ex. 11 at 31; see also Ex. R at 16-17. And Mr.

Maazel told this Court that the notion that “there is something in the outtakes . . . relevant to the

case” is “far fetched at best.” Ex. 13 at 24. But the evidence that Chevron now has submitted

proves that the “best stuff” for revealing the truth went onto the cutting room floor. For exam-

ple, in May, Mr. Maazel represented to the federal district court in Denver that the undeniable

appearance of Plaintiffs’ consulting experts’ work in the Cabrera Report was not inconsistent

with Plaintiffs’ and Cabrera’s previous denials of collusion because in January 2008, the “land-

scape changed” as a result of an Ecuadorian court order purportedly allowing Plaintiffs to submit

documents to Cabrera via the court process. Ex. MM at 2-3. Yet Mr. Maazel now represents to

this Court that the footage showing Plaintiffs’ counsel meeting with Cabrera in March 2007 for

the express purpose—and Plaintiffs do not deny this—of planning his so-called “independent”

5 It is ironic that Plaintiffs would argue on opposition to this motion that the material Chevron seeks is reasonably
obtainable through Plaintiffs’ consultants in Chevron’s other 1782 proceedings (see Pl. Opp. at 19) when Plain-
tiffs have sought to block the discovery in nearly all of these proceedings, just as they have with Stratus.

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global damages assessment before he was appointed,6 is “unremarkable.” Pl. Opp. at 5. Mr.

Maazel further represents to this Court that such ex parte contact was permitted in Ecuador

throughout the Lago Agrio Litigation. These representations are undeniably inconsistent with

those made to other district courts in related 1782 proceedings over the last six months. The evo-

lution of Plaintiffs’ positions and representations in this and related 1782 proceedings, as well as

in Ecuador, is equally as disturbing as the events documented in the footage.

The latest outtakes reviewed show Plaintiffs’ counsel (1) colluding to form an “army” to

“watch over” the Ecuadorian court as a “political force” to intimidate the court, and discussing

potentially supplying the “army” with “weapons” (Exs. 1-3 at 350-04-CLIP-02); (2) gloating

over the fact that the judge might think he would be “killed” if he ruled in favor of Chevron (id.

at CRS-129-00-CLIP-02); and (3) discussing their communications with President Correa about

the need to put “pressure on the Prosecutor” to “reopen the investigation” “into the fraud of—of

the contract between Texaco and the Ecuadorian Government” (id. at CRS-376-03-CLIP-01).

Chevron continues to uncover compelling evidence that is, indeed, directly relevant to its claims

in the Lago Agrio Litigation and the Treaty Arbitration—evidence that reveals the extent to

which Chevron has been railroaded in Ecuador by these Plaintiffs’ lawyers and their collabora-

tors. See Hendricks Decl. II ¶¶ 10-30.

All of these recent developments, and the revealing evidence still emerging from our on-

6 Plaintiffs now repeat their false claim that there was never anything wrong with either side having ex parte con-
tact with Cabrera (see Pl. Opp. at 5), even though the Court’s own orders required Cabrera to “maintain strict
independence with regard to the parties.” Ex. Y at 132853; see also Chevron Mot. at 2-3, 9, 13-21. Pointing to
their recent efforts to whitewash the Cabrera fraud, Plaintiffs direct this Court to filings in Lago Agrio where
they supposedly volunteered the extent of their “ex parte dealings” with Cabrera to that court. Yet Plaintiffs
neglect to mention that this “disclosure” came only after Plaintiffs’ consultants (represented by separate coun-
sel) were forced to admit to the ex parte contacts with Cabrera in a related Section 1782 proceeding. Even now,
Plaintiffs have not admitted to the Lago Agrio court that, as expert forensic analysis they have never disputed
proves, Plaintiffs drafted Cabrera’s Report in English, only to have it translated into Spanish for him to sign.

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going review of the hundreds of hours of outtakes continues, demonstrate that either Mr. Berlin-

ger and his Crude colleagues do not understand the import of what they witnessed in Ecuador

and caught on tape, or they are so wedded to Plaintiffs’ counsel that they do not care. But, in any

event, they clearly cannot be relied upon to determine responsiveness or relevance. Indeed, Mr.

Bonfiglio even admits in his declaration that he “was not aware of who Mr. Cabrera was” at the

time of the March 3, 2007 meeting. Bonfiglio Decl. ¶ 4. This is precisely why Chevron needs

the requested substantive depositions of Respondents. As another example, Mr. Berlinger states

in his August 10 declaration that Respondents “do not believe that Amazon Watch . . . is a mem-

ber of Plaintiffs’ counsel.” Berlinger Decl. ¶ 14. Respondents have withheld as non-responsive

footage featuring Amazon Watch representatives such as Atossa Soltani and Kevin Koenig. See

Ex. 14. But the Crude footage reveals that Amazon Watch representatives routinely accompa-

nied Plaintiffs and their counsel and served essentially the same representative and supportive

function as representatives of the Amazon Defense Front.

Indeed, in one scene, both Soltani and Koenig participate in a discussion among Plain-

tiffs’ counsel about a strategy to “make our own army” “for immediate action . . . [w]hen the

court is needed—when action is needed.” Exs. 1-3 at 350-04-CLIP-02. As this discussion about

forming an army proceeds, Soltani expresses concern about whether Berlinger’s videos could be

“subpoena[ed]” and about the legality of their plan. Id. Donziger assures her blithely that “[w]e

don’t have the power of subpoena in Ecuador.” Id. After Donziger reassures Soltani, she joins a

discussion about forming an army and supplying it with “weapons,” adding, “we want it to be of

a movement, we don’t just want to be paid mercenaries, right? It’s gotta be a movement.” Id. In

another scene, Soltani reveals that she has been communicating with Bill Powers, one of Plain-

tiffs’ US-based technical consultants, on behalf of the Plaintiffs. See id. at 350-03-CLIP-01. Re-

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spondents’ unilateral decision that the Amazon Defense Front qualifies as part of the team of in-

dividuals constituting “counsel for the plaintiffs” but that Amazon Watch does not, shows a fun-

damental misunderstanding of the true role of Amazon Watch and its representatives.

The most appropriate solution in this case, therefore, is to require Respondents to appear

for substantive depositions and truthfully answer questions posed by an attorney who does un-

derstand the import of the key players in this case and the timeline of the litigation. In addition,

Respondents should be required to (1) produce a more detailed and complete privilege log de-

scribing the content of the footage not produced as it is abundantly clear that the current privilege

log is inadequate; and (2) ensure compliance with the Second Circuit order by producing all re-

sponsive footage (including the responsive “Archival” footage listed in the recently produced

“original” footage log and any footage featuring Amazon Watch representatives) immediately.7

II.
THE ADDITIONAL DISCOVERY REQUESTED BY CHEVRON IS NOT
FORECLOSED BY THE JOURNALIST’S PRIVILEGE.

A. The Additional Discovery Chevron Seeks Is Non-Confidential.

 
Despite Mr. Berlinger’s repeated claims of “independen[ce]” and “balance” (see, e.g., Ex.

S ¶¶ 14-17), he now seeks to conceal Plaintiffs’ counsel’s wrongdoing by claiming for the first

time “confidentiality” as to Donziger’s instructions to turn the camera off before making his

most egregious statements in furtherance of the massive fraud now being exposed. See Resp.

Opp. at 7-8.8 Mr. Berlinger already had a chance to prove that he held confidentiality agree-

7 Respondents’ staggered production, as well as the statements by Mr. Berlinger and Mr. Bonfiglio referenced
above, suggest that Respondents are not fully capable of handling this task independently. Chevron is willing to
provide a representative to assist in a final review of all outstanding footage to ensure compliance.
8 Respondents also claim that they “have no recollection” of any instruction to avoid filming Cabrera, and that they
“did not focus on Mr. Cabrera . . . because they did not know who he was at the time, he barely spoke during the
meeting, and the two cameras in the room were positioned in a way that made it difficult to capture Cabrera.” Bon-

[Footnote continued on next page]

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ments with the subjects of this film, and he utterly failed to do so. As this Court found, Berlinger

failed to “sustain[] his burden of establishing that any of the material sought is subject to any

confidentiality agreement.” Ex. 15 at 20-23. Berlinger has yet to produce a single confidential-

ity agreement or any evidence of any “understanding” or “agreement” as to confidentiality. And

even after Chevron highlighted in its briefing the fact that “the Filmmaker has never claimed that

the Lago Agrio Plaintiffs’ attorneys . . . received any assurances of ‘confidential’ treatment” (Ex.

16 at 6; Ex. 17 at 36 n.5), Berlinger still never asserted that he had confidentiality agreements

with Donziger or any other Plaintiffs’ representative. Therefore, he has waived the very argu-

ment he now belatedly seeks to make, and any such “confidentiality” claim would be meritless.9

Moreover, Chevron easily satisfies the standard for overcoming the journalist’s privilege for

“non-confidential” materials. See Chevron Mot. at 23-28; Gonzales v. Nat’l Broad. Co., 194

F.3d 29 (2d Cir. 1999).

B. The Journalist’s Privilege Cannot Be Used To Conceal Fraudulent Conduct

or Other Acts of Wrongdoing.

Even if Berlinger could demonstrate that he had any confidentiality agreement with

Donziger or any of the Plaintiffs’ representatives—which he cannot—that confidence has no

meaning in light of the evidence now discovered. The outtakes show that Donziger had the

filmmakers stop filming when he was on the verge of saying or doing further incriminating and

even illegal things. See, e.g., Ex. F at CRS-196-00-CLIP-01; CRS-195-05-CLIP-01. Because

these unrecorded acts and conversations are likely damning and compelling evidence, Chevron’s

[Footnote continued from previous page]

figlio Decl. ¶¶ 3-7; Resp. Opp. at 5. On this issue, Chevron would invite the Court to simply watch the opening por-
tion of the March 3 meeting when the introductions take place. See Ex. F at 187-01-02-CLIP-03; 191-00-CLIP-02.
9 In light of the conduct that has been revealed and Berlinger’s alliance with the Plaintiffs in an effort to conceal it,
there is now a serious question about whether Berlinger can even be considered a journalist.

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requests here would satisfy the higher standard for obtaining confidential journalist’s material as

well. The journalist’s privilege cannot serve to protect material from disclosure when the only

person with any interest in maintaining “confidentiality” is a person who seeks the confidential-

ity in order to conceal a crime or fraud. And the person committing the crime cannot be ex-

pected to confess on his own. The crime-fraud exception to privilege would apply in such cir-

cumstances, by analogy, to vitiate any other asserted privilege. See, e.g., U.S. v. Jacobs, 117

F.3d 82, 88 (2d Cir. 1997) (crime-fraud exception to privilege applies when communications are

intended “to facilitate or to conceal the criminal activity”).

C. Berlinger Has Waived Any Viable Assertion of Privilege In Any Event

Through His Public Commentary about the Footage and By Voluntarily
Providing the Footage to the Lago Agrio Plaintiffs.

If any question remained about the lack of an applicable privilege here, it has now surely

been waived by Mr. Berlinger’s conduct since Chevron’s August 3 Motion. On August 9, 2010,

Mr. Berlinger represented in the press that, “The footage citations are being taken out of context

and not being presented to the court in its entirety, creating numerous false impressions . . . .”

Ex. 18. These public statements relating to the content of the footage effectuate a waiver by Mr.

Berlinger. See Ex. 11 at 43-47. Moreover, Mr. Berlinger has now apparently voluntarily pro-

duced at least seven hours of outtakes to the Plaintiffs. Plaintiffs represented to this Court that

they obtained some of the outtakes last Friday. See Ex. 19. And an August 11, 2010 news arti-

cle confirms the same. See Ex. 20. Mr. Berlinger made this statement in the press but failed to

reiterate it to this Court in his opposition, and he has failed to articulate in what way the outtakes

Chevron provided have been taken out of context.10 By publicly commenting on the content of

10 Plaintiffs’ counsel, unsurprisingly, have also argued, without basis, that Chevron has taken the Crude footage
out of context. In support of this argument, they allege that Chevron “hid the actual evidence” of Plaintiffs’

[Footnote continued on next page]

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the outtakes and voluntarily disclosing several hours of them to Plaintiffs’ counsel, he has

waived any privilege claim. See, e.g., In re Sims, 534 F.3d 117, 132 (2d Cir. 2008); Ayala v.

Ayers, 668 F. Supp. 2d 1248, 1250 (S.D. Cal. 2009); In re Kidder Peabody Sec. Litig., 168

F.R.D. 459, 469 (S.D.N.Y. 1996).

III.
THE CONTENTION THAT CHEVRON HAS VIOLATED THE SECOND
CIRCUIT ORDER IS WITHOUT MERIT.

Contrary to Respondents’ and Plaintiffs’ baseless charge, Chevron did not provide foot-

age to anyone other than this Court, and it fully complied with the Second Circuit’s order. Chev-

ron e-filed its brief in support of this motion on Tuesday, August 3 at approximately 5:40 p.m.11

The brief described in detail and quoted at length the footage excerpts filed with the Court. Im-

mediately upon e-filing, in keeping with the First Amendment’s guarantee of the public’s right of

access to judicial filings, Chevron’s motion papers became available to the public through the

Court’s public filing system. The public filing included transcripts of the footage filed by Chev-

ron, and those transcripts were available for any member of the public to review from the mo-

ment of filing. Indeed, at oral argument before the Second Circuit on July 14, 2010, Judge Leval

[Footnote continued from previous page]

consultants’ statements on groundwater contamination from the Court, Pl. Opp. at 1, 4-5, and they include two
snippets in which two of their consultants allege that there is water contamination. Tellingly, neither of these
snippets takes away from the fact that the experts told Steven Donziger at the March 4 meeting that they did not
have sufficient evidence of groundwater contamination, and Donziger replying to them it didn’t matter, and
then asking that the cameras be turned off so he could “make a point” to his experts off the record. See Exs. F,
G at CRS-195-05-CLIP-01. Moreover, the statement by Plaintiffs’ expert Champ cited by Plaintiffs in their op-
position that the contamination is “still going on” (see Pl. Opp. at 4) proves the point that Chevron it is not re-
sponsible for any current contamination—Chevron never operated in Ecuador and TexPet ceased operations
there in 1990. Clearly, Champ could only have been referring to ongoing contamination by Petroecuador—the
state-owned oil company that has been the exclusive operator in the concession area for the past 20 years—not
by Chevron or Texaco.
11 The Second Circuit’s order provides that “[m]aterial produced under this order shall be used by the petitioners
solely for litigation, arbitration, or submission to official bodies, either local or international.” Ex. M. The ma-
terial produced under this order is the footage itself, which Chevron only provided to the Court.

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 Case 1:10-mc-00001-LAK Document 21 Filed 08/12/10 Page 17 of 18

contemplated that Chevron would not be restricted from publicly commenting on the footage “to

the extent that the PR is publicizing the official use” of the footage in connection with court fil-

ings. Ex. 10 at 64: 5-25. In filing this footage with this Court, Chevron, in fact, did not release

any of the footage to anyone other than the Court. Instead, it simply referred parties interested in

its Tuesday filing to the public court file. And the sources quoted by Respondents demonstrate

as much, as they show that Chevron representatives refused to provide third parties with copies

of the footage and, instead, directed them to the Court. Indeed, it is absurd for Respondents to

argue that Chevron violated the Second Circuit’s Order when everything they complain about

here was already on public file with this Court and available for any member of the public to ac-

cess by going to the Court’s file.

IV.
CHEVRON’S REQUEST FOR A PRESERVATION ORDER SHOULD BE
GRANTED AS TO ALL RESPONDENTS AND THE LAGO AGRIO PLAINTIFFS.

There is nothing controversial about Chevron’s request for a preservation order here. In-

deed, the parties to this action and those in privity with them are already under a continuing duty

to preserve evidence relevant to this litigation. See Kronisch v. United States, 150 F.3d 112,

126-27 (2d Cir. 1998). Respondents have already agreed to the preservation order requested by

Chevron. In light of the clear evidence of fraud already discovered, Chevron further requests

that the Court enter a preservation order requiring Respondents (including Mr. Bonfiglio and

@radical.media Inc., who were not listed in Ms. Wogan’s email confirming the Respondents’

agreement to the preservation order) and Plaintiffs and their counsel (who chose to appear here)

to preserve all potentially relevant evidence.12

12 It is surprising yet telling that Plaintiffs here, both as litigating parties and as counsel, would resist a preserva-
tion order by claiming that this Court lacks jurisdiction to order them to comply with such an order when they

[Footnote continued on next page]

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 Case 1:10-mc-00001-LAK Document 21 Filed 08/12/10 Page 18 of 18

CONCLUSION

For the foregoing reasons, Chevron requests that the Court deny Respondents’ cross-

motion and grant Chevron’s August 3 Motion in its entirety.

Dated: August 12, 2010

New York, New York

GIBSON, DUNN & CRUTCHER LLP

By: /s/ Randy M. Mastro

Randy M. Mastro
200 Park Avenue, 47th Floor
New York, New York 10166-0193
Telephone: 212.351.4000
Facsimile: 212.351.4035

Scott A. Edelman
2029 Century Park East
Los Angeles, CA 90067
Telephone: 310.552.8500
Facsimile: 310.551.8741

Andrea E. Neuman
3161 Michelson Drive
Irvine, CA 92612
Telephone: 949.451.3800
Facsimile: 949.451.4220

Attorneys for Applicant Chevron Corporation

[Footnote continued from previous page]

have chosen to interject themselves into this proceeding and others in this District, including one in which
Plaintiffs themselves initiated a Complaint against Chevron. See Yaiguaje, et al. v. Chevron Corp., Case No.
10-CV-0316 (LBS). The evidence of fraud and collusion that has emerged in these proceedings gives this Court
every right to order these parties before it to preserve evidence. See, e.g., 7C Wright, Miller & Kane, Federal
Practice and Procedure, Civil 3D § 1920, at 612 (3d ed. 2007). Furthermore, ensuring effective discovery
through the preservation of evidence is consistent with Congress’ intent that district courts “exercise broad dis-
cretion” in fashioning Section 1782 orders. See In re Edelman, 295 F.3d 171, 181 (2d Cir.2002). Plaintiffs’
argument that the 1782 factors have not been satisfied is equally without merit, as the preservation order itself
does not seek discovery from Plaintiffs and, in any event, this Court has already considered the arguments
raised by Plaintiffs in this regard and found them to be without merit.

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