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Second Circuit Court of Appeals Affirms Previous SDNY Decisions; Grants Discovery and Depositions from Steven Donziger

Date: Dec 15, 2010

Earlier today, the Second Circuit Court of Appeals affirmed a Southern District of New York order granting discovery and depositions from Steven Donziger, the lead Lago Agrio plaintiffs’ representative.  In his prior ruling, District Judge Lewis A. Kaplan ordered Donziger to turn over all documents and materials that complied with a 1782 discovery motion filed by Chevron.  In considering Chevron’s petition, the District Court found:

  • The government of Ecuador “has been working closely with Donziger for years and stands to gain billions for Ecuador if the Lago Agrio plaintiffs prevail against Chevron.” (View memorandum opinion)
  • “The evidence before this Court shows that Donziger has attempted to (1) intimidate the Ecuadorian judges, (2) obtain political support for the Ecuadorian lawsuit, (3) persuade the GOE to promote the interests of the Lago Agrio plaintiffs, (4) obtain favorable media coverage, (5) solicit the support of celebrities (including Daryl Hannah and Trudie Styler) and environmental groups, (6) procure and package ‘expert’ testimony for use in Ecuador, (7) pressure Chevron to pay a large settlement, and (8) obtain a book deal.”
  • “There is evidence obtained in other Section 1782 actions brought by Chevron that Donziger and others associated with him have presented false evidence and engaged in other misconduct in Ecuador.”
  • “In this Court’s judgment, the need (for discovery) is extremely great in view of the extraordinary evidence already before it. To turn a blind eye to evidence suggesting improper influence on and intimidation of the Ecuadorian courts by both Donziger and the GOE, improper manipulation of the criminal process in that country, knowing submission by the Lago Agrio plaintiffs of at least one fraudulent report, and improper collusion with Cabrera, the supposedly neutral court-appointed expert, could defeat the purpose of Section 1782, deprive the Individual Petitioners of evidence needed for their defense in a criminal case, and frustrate the BIT arbitration.”
  • “Donziger’s own words raise substantial questions as to his possible criminal liability and amenability to professional discipline.”

Today’s Second Circuit decision not only affirmed the District Court’s prior orders, but lauded Judge Kaplan’s analysis.  The panel wrote, “in light of the complexity of this case and the urgency of its adjudication, we wish to note the exemplary manner in which the able District Judge has discharged his duties. There is no question but that all concerned, not least this Court, are well served by the careful and comprehensive analysis which is evident repeatedly throughout the many memoranda and orders of the District Court, many of which were produced with rapidity in the context of the District Court’s daunting schedule in this and other important cases.”