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In re Application of Veiga

October 20, 2010

IN RE APPLICATION OF RICARDO REIS VEIGA, AND RODRIGO PÉREZ PALLARES, APPLICANTS, TO ISSUE A SUBPOENA FOR THE TAKING OF A DEPOSITION AND THE PRODUCTION OF DOCUMENTS FOR USE IN A FOREIGN PROCEEDING.
IN RE APPLICATION OF CHEVRON CORPORATION, APPLICANT, TO ISSUE A SUBPOENA FOR THE TAKING OF A DEPOSITION AND THE PRODUCTION OF DOCUMENTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Before the Court are applications by Chevron Corporation ("Chevron") and two of its attorneys, Rodrigo Pérez Pallares ("Pérez") and Ricardo Reis Veiga ("Veiga") (collectively, "Applicants") pursuant to 28 U.S.C. § 1782(a) for the issuance of subpoenas requiring Respondent Alberto Wray Espinosa ("Wray") to produce documents and appear at a deposition in Washington, D.C. See 10 Misc. 370, Docket No. [1] (Pérez-Veiga Application); 10 Misc. 371, Docket No. [1] (Chevron Application). Intervening as interested parties are the Republic of Ecuador (the "Republic") and the plaintiffs in an ongoing litigation against Chevron in Lago Agrio, Ecuador (the "Lago Agrio Plaintiffs") (collectively, the "Interested Parties"). Notwithstanding the parties' all-too-frequent detours, these proceedings are limited to the narrow question of whether the Applicants have properly invoked the statutory relief contemplated by § 1782(a) -- i.e., whether discovery should be allowed in this District for potential use in proceedings abroad.*fn1 For the reasons set forth below, the Court shall GRANT both the PérezVeiga Application and the Chevron Application, subject to certain limitations and conditions.

I. PRELIMINARY MATTERS

Preliminarily, the parties have raised various issues concerning the submissions in this action, none of which requires extensive discussion.

A. The Republic's Motion to Strike

First, the Republic moves to strike what it describes as "new evidence" presented to this Court by Chevron in the course of briefing in this matter -- for the most part, selected excerpts of outtakes from a documentary about the ongoing litigation against Chevron in Lago Agrio -- or, alternatively, for leave to file a sur-reply. See 10 Misc. 370, Docket No. [50]; 10 Misc. 371, Docket No. [65]. The Republic's objections are two-fold: first, that Chevron failed to present the evidence in the proceedings before the Hon. Magistrate Judge Deborah A. Robinson; and, second, that Chevron effectively deprived the Republic of an opportunity to respond by submitting such evidence with a reply brief.

The Republic concedes, however, that this Court retains the discretion to accept and consider the evidence submitted by Chevron. See id.; see also Local Rule LCvR 72.3(c) ("A district judge may make a determination based solely on the record developed before the magistrate judge, or may... receive further evidence"). Nor can the Republic credibly dispute that Chevron only came into possession of the outtakes at issue a short period before the Magistrate Judge last held a hearing in this action. See 3d Supp. Fisher Decl., 10 Misc. 371, Docket No. [62-1], ¶ 2. Instead, the Republic dedicates the lion's share of its moving papers to the substance of the outtakes themselves, providing its alternative interpretations with specific and detailed citations to the relevant transcripts. Indeed, the Republic encourages the Court to review the entirety of the evidence submitted by Chevron to assess the accuracy of Chevron's representations. To the extent it is even required, the Republic has already taken for itself a full and fair opportunity to respond to the evidence at issue. Accordingly, the Republic's Motion is DENIED; in an exercise of its discretion, the Court has reviewed the evidence submitted by Chevron, as well as the Republic's rebuttal thereto, and will cite to portions thereof where helpful to the Court's disposition of the Applications. However, the Court notes that its consideration of the evidence does not affect the ultimate outcome of these proceedings; even absent the outtakes, Chevron has made a sufficiently particularized prima facie showing to justify the invocation of § 1782(a).

B. The Lago Agrio Plaintiffs' Motion to Supplement the Record

Second, the Lago Agrio Plaintiffs move to supplement the record to correct an allegedly erroneous and incomplete translation submitted by Applicants. See 10 Misc. 370, Docket No. [57]; 10 Misc. 371, Docket No. [66]. Although the Court shall GRANT the Motion, the difference between the two submissions does not affect the Court's disposition, and the Court makes no finding as to the accuracy of the parties' respective submissions.

C. Chevron's Motion to File Corrected Submissions

Finally, Chevron has moved to file a corrected brief and exhibit omitting references to information that was apparently sealed by another district court following Chevron's initial filing. See 10 Misc. 371, Docket No. [64]. The Court shall GRANT the Motion, which as of the date of this Opinion remains unopposed.

II. BACKGROUND*fn2

Applicants seek discovery from Wray in connection with a lawsuit pending against Chevron in Lago Agrio, Ecuador (the "Lago Agrio Litigation"), criminal proceedings commenced against Pérez and Veiga in Ecuador (the "Criminal Proceedings"), and an arbitration commenced by Chevron against the Republic under the Bilateral Investment Treaty between Ecuador and the United States (the "BIT Arbitration"). The nature of those proceedings may be briefly summarized as follows:

* THE LAGO AGRIO LITIGATION.Commenced in 2003, the Lago Agrio Litigation involves claims that Chevron, as the purported successor-in-interest to Texaco Petroleum Company ("Texaco"), is liable for Texaco's alleged pollution of the Ecuadorian Amazon Rainforest over the course of several decades while engaging in oil extraction in the region. In 1995, Texaco entered into a settlement agreement with the Republic and its state-owned oil company, pursuant to which Texaco agreed to engage in certain environmental remediation efforts in exchange for a release of claims (the "Settlement Agreement"). In 1998, the aforementioned parties entered into a final release (the "Release"). As part of its defense in the Lago Agrio Litigation, Chevron relies upon the Settlement Agreement and Release, which Chevron contends operate to bar the Lago Agrio Plaintiffs' claims. See Fisher Decl. Ex. 66 (Chevron's Answer to Compl.), 10 Misc. 371, Docket Nos. [29-78] and [29-79].*fn3

* THE CRIMINAL PROCEEDINGS.Around the same time that the Lago Agrio Litigation was initiated, a criminal complaint was filed against two of Chevron's lawyers -- namely, Applicants Pérez and Veiga. Pérez and Veiga are essentially accused of falsifying or misrepresenting the nature of Texaco's environmental remediation efforts in connection with the Settlement Agreement and Release and violating environmental laws. See Stewart Decl. Ex. 10 (Dictamen Fiscal Acusatorio), 10 Misc. 370, Docket No. [1-12]. The charging documents appear to reference, among other things, expert reports conducted in connection with the Lago Agrio Litigation. As part of their defense, Pérez and Veiga assert that the Criminal Proceedings were improperly brought at the behest of the Republic and the Lago Agrio Plaintiffs for purposes of undermining the validity of the Settlement Agreement and Release and pressuring Chevron to settle the Lago Agrio Litigation.

* THE BITARBITRATION. Chevron and the Republic are also parties to an arbitration commenced in 2009 under the Bilateral Investment Treaty between the United States and Ecuador, an arbitration working under the United Nations Commission on International Trade Law ("UNCITRAL") rules and procedures. In the BIT Arbitration, Chevron asserts that the Republic has abused the criminal justice system by issuing frivolous and unfounded indictments against Pérez and Veiga and has colluded with the Lago Agrio Plaintiffs to undermine the Settlement Agreement and Release in an attempt to secure an illegitimate financial windfall from Chevron. See Fisher Decl. Ex. 13 (Notice of Arbitration), 10 Misc. 371, Docket No. [1-3], ¶¶ 30-65.

In connection with these proceedings, Chevron previously deposed Dr. Charles W. Calmbacher, Ph.D ("Calmbacher"), formerly a technical expert for the Lago Agrio Plaintiffs. See Fisher Decl., Ex. 24 (Calmbacher Dep.), 10 Misc. 371, Docket No. [29-26]. Calmbacher testified that two expert reports that were filed in his name in the Lago Agrio Litigation purport to reach conclusions -- namely, that there was harmful environmental contamination -- that he did not actually reach (the "Calmbacher Reports"). Id. at 112:1-117:20. Calmbacher further testified that the reports at issue were, like other expert reports created during the course of the litigation, prepared in Wray's law offices in Ecuador. Id. at 61:19-61:23, 69:4-69:19, 72:25-73:2, 93:23-94:1. At the time, Wray served as the Lago Agrio Plaintiffs' lead counsel in Ecuador, a role he held until approximately 2006.*fn4 See Burke Decl. Ex. G (Wray Aff.), 10 Misc. 370, Docket No. [13-2], ¶ 4. The Lago Agrio Plaintiffs, for their part, paint Calmbacher as a "disgruntled" former expert, and characterize his memory of events as questionable.

In light of Wray's alleged connection with the preparation of the Calmbacher Reports, Applicants seek documents and testimony relating to the following eight topics:*fn5

1. The preparation and filing of the Calmbacher Reports;

2. Communications with Calmbacher relating to his work with respect to the Lago Agrio Litigation;

3. The preparation of any plaintiff expert's work relating to the Lago Agrio Litigation;

4. Communications between any plaintiff-affiliated person and any plaintiff expert relating to any plaintiff expert's work relating to the Lago Agrio Litigation;

5. Communications related to any factual representations, analyses, or conclusions in any plaintiff expert's work ...


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