GIBSON DUNN

December 13, 2010

VIA E-FILING AND HAND DELIVERY

The Hon. Jose A. Cabranes The Hon. Denny Chin The Hon. Edward R. Korman United States Court of Appeals for the Second Circuit Daniel Patrick Moynihan United States Courthouse 500 Pearl Street New York, New York 10007

Re: In Re: Chevron Corporation, No. 10-4341-cv(L), 10-4405-cv(CON)

pear Judges Cabranes, Chin, and Korman:

Gibson, Dunn & Crutcher LLP

200 Park Avenue New York , NY 10166-0 193 Tel 21 2.351.4000 www.gibsond unn.com

Randy M. Mastro Direct: 212.351.3825 Fax: 212.351.5219 RMastro@gibsondunn.com

Client: T 19624-00016

I write on behalf of Petitioner-Appellee Chevron Corporation in response to the pan-el's request for a summary of all of the related § 1782 actions that have been filed around the country.

Chevron's Section 1782 Actions

Chevron has filed 19 separate applications, pursuant to 28 U.S.C. § 1782 seeking dis-covery in aid of foreign litigations (i.e., the Lago Agrio Litigation and the Bilateral Invest-ment Treaty Arbitration that Chevron has commenced against the Republic of Ecuador ("Treaty Arbitration"). 1 To date, 17 of Chevron's applications have already been granted and the other two are awaiting decision. In granting these applications, courts have observed that "[t]he release of many hours of the [Crude] outtakes has sent shockwaves through the nation's legal communities, primarily because the footage shows, with unflattering frank-ness, inappropriate, unethical and perhaps illegal conduct," In re Chevron Corp., Nos. 1: 1 0-mc-00021-22, Amended Order at 3-4 (D.N.M. Sept. 2, 2010), and "what has blatantly oc-curred in this matter would in fact be considered fraud by any court," Chevron Corp. v. Champ, Nos. 1: 1 0-mc-00027-28, Order at 11-12 (W.D.N.C. Aug. 30, 2010). In all 17 cases

Attached hereto as Exhibit A is a chaIt summarizing the subject matter and status of each of Chevron's 19 discovery applications under Section 1782.

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The Hon. Jose A. Cabranes The Hon. Denny Chin The Hon. Edward R. Korman United States Court of Appeals for the Second Circuit Daniel Patrick Moynihan United States COUl1house 500 Pearl Street New York, New York 10007 Page 2

already decided in Chevron's favor, courts have rejected objectors' arguments that privilege claims (such as attorney-client privilege and work product) barred Chevron's requested dis-covery;2 and four of these courts expressly found that the "crime-fraud" exception vitiated privilege altogether) The misconduct recognized by these many courts is the same miscon-duct that led Judge Kaplan here to find that Respondent-Appellant Steven "Donziger's own words raise substantial questions as to his possible criminal liability." Ex. B (Nov. 4, 2010, Opinion, corrected Nov. 10, 2010) at 7. As a result, in the proper exercise his discretion, and following Respondents' failure to timely file a privilege log or request additional time to do so, Judge Kaplan ordered Donziger to provide discovery to Chevron.

Of the 17 orders granting Chevron's discovery thus far, seven have been appealed, six of which (including this one) have either had stays denied pending appeal or already been affirmed outright, and one other is awaiting an appellate decision. In its two other pending Section 1782 applications, Chevron seek discovery from former attorneys of the Lago Agrio Plaintiffs (Philadelphia-based attorney Joseph Kohn and Massachusetts-based attorney Cristobal Bonifaz), neither of whom opposes Chevron's applications.4

2 One of these decisions has already resulted in Chevron obtaining discovery from another of the Lago Agrio Plaintiffs' attorneys. See Order, In re Applic. a/Chevron Corp., Nos. IO-MC-370-71 (D.D.C. Nov. 3,2010).

3 See, e.g., Chevron Corp. v. Champ, Nos. 1 :10-mc-00027-28, Order at 11-12 (W.D.N.C. Aug. 30,2010); In re Chevron Corp., Nos. ] :10-mc-00021-22, Amended Order at 3-4 (D.N.M. Sept. 2, 2010); In re Applic. a/Chevron, No. 10-2675, Dkt. 166-6 at 44:11-16 (D.N.J. June 21, 2010); In re Applic. a/Chevron Corp., No. 10CV00047, Order at 9 (S.D. Cal. Sept. 10,2010). In the instant case, while Judge Kaplan did not find it necessary to reach the "crime-fraud" exception issue, he nevertheless expressly noted that "there is more than a little evidence that Donziger's activities . .. come within the crime-fraud ex-ception to both the [attorney-client] privilege and to work product protection." Ex. B (Nov. 4, 2010, Opinion, corrected Nov. 10,2010) at 47.

4 The discovery that these two former Lago Agrio Plaintiffs' attorneys are prepared to pro-vide will undoubtedly be revealing. Donziger himself has produced an August 9, 2010, letter from Kohn, in which Kohn expresses "shock[]" that the Lago Agrio litigation has

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The Hon. Jose A. Cabranes The Hon. Denny Chin The Hon. Edward R. Korman United States Court of Appeals for the Second Circuit Daniel Patrick Moynihan United States Courthouse 500 Pearl Street New York, New York 10007 Page 3

Other Section 1782 Actions

The Republic of Ecuador has filed two applications pursuant to 28 U .S.C. § 1782 seeking discovery for use in the Treaty Arbitration. See In re The Republic of Ecuador, No. 3: 1 0-mc-80225-CRB (N.D. Cal.); In re Applic. of The Republic of Ecuador, No.1 :10-mc-00040 GSA (E.D. Cal.). Both courts have permitted the requested discovery, and one of those two courts has denied a motion to quash filed by the target of the discovery. Chevron has not appeared in these actions.

Related Appeals Pending Before this Court

In addition to the instant appeal by Steven Donziger and the Lago Agrio Plaintiffs, there are three other appeals pending before this Court involving these parties:

[Footnote continued from previous page] become rife with fraud that "has undermined the entire case and the credibility of the en-tire plaintiffs' team" and "makes it highly unlikely that any court in the United States or elsewhere would ever enforce any judgment" obtained there. Ex. C (Letter from Kohn, Aug. 9,2010) at 1, 5. In that same letter, Kohn effectively concedes that the Lago Agrio Plaintiffs' lawyers have waived privilege, acknowledging "the utter stupidity, arrogance and conceit of inviting a film to be made documenting this improper conduct." Id. Simi-larly, Bonifaz has already produced a revealing privilege log that sheds further light on the Lago Agrio Plaintiffs' misconduct and collusion with the Republic of Ecuador to im-pose a fraudulent judgment on Chevron. Bonifaz's privilege log reveals for the first time that the Lago Agrio Plaintiffs have apparently long had an "agreement not to sue Ecua-dor." Ex. D (Excerpt from Bonifaz Privilege Log, submitted Dec. 7, 2010) at 10, entries CH-231-234, CH-270-285. This is a shocking revelation because (i) the Lago Agrio Plaintiffs could be bringing claims against the Republic of Ecuador and its government-owned oil company over the same environmental damages they seek to impose only on Chevron and (ii) the Lago Agrio Plaintiffs' counsel represented to a panel of this Court last August in the Treaty Arbitration appeal that they are "indifferent as to who pays," have "no preference" "who pays the claims of [their] clients," and find it "offensive" to suggest they are "in bed" with the Republic of Ecuador. Republic of Ecuador v. Chevron Corp., 1O-1020(L), 10-1026(CON), Hr'g Tr. at 84:12-19, 85:8-11 (2d Cir. Aug. 5,2010). Bonifaz's privilege log belies those representations.

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The Hon. Jose A. Cabranes The Hon. Denny Chin The Hon. Edward R. Korman United States Court of Appeals for the Second Circuit Daniel Patrick Moynihan United States Courthouse 500 Pearl Street New York, New York 10007 Page 4

• Republic of Ecuador v. Chevron Corp., et al., and Yaiguaje, et ale v. Chevron Corp., et aI., Nos. 10-1020, 10-1026: On December 3, 2009, the Republic ofEcua-dor filed a petition to stay the Treaty Arbitration in the Southern District of New York. No. 09 Civ. 9958 (LBS) (S.D.N.Y.). On January 14,2010, the Lago Agrio Plaintiffs filed their own petition, seeking that same relief. No.1 ° Cv. 0316 (LBS) (S.D.N.Y). On March 11,2010, Judge Sand declined to stay the Treaty Arbitration and granted Chevron's motion to dismiss with prejudice. The Lago Agrio Plaintiffs and Ecuador filed notices of appeal on March 26 and March 29, 2010, respectively. Oral argument was held before this Court on August 5, 2010. The panel consisted of Judges Pooler, Raggi, and Lynch. Following the oral argument, Chief Judge Jacobs replaced Judge Raggi on the panel. The appeal remains pending, and the panel has yet to issue its decision. There has been no stay entered there, and the Treaty Arbitra-tion continues to progress.

• In re Applic. of Chevron Corp., Nos. 10-1918, 10-1966: On April 9,2010, Chevron filed an application in the Southern District of New York, pursuant to 28 U .S.c. § 1782, seeking discovery of the outtakes from the movie, Crude. Judge Kaplan granted Chevron's application on May 6, 2010. The respondent filmmakers and the Lago Agrio Plaintiffs filed notices of appeal on May 14 and May 19, 2010, respec-tively. Oral argument was held before a panel of this Court consisting of Judges Hall, Leval, and Parker on July 14,2010. On July 15,2010, the day after argument, this Court issued an interim order directing the filmmakers to produce all unreleased foo-tage from Crude showing "(a) counsel for the plaintiffs in the case of Maria Aguinda y Otros v. Chevron Corp.; (b) private or court-appointed experts in that proceeding; or ( c) current or fonner officials of the Govemment of Ecuador." The effect of this interim order was that the filmmakers had to produce approximately 90 percent of the Crude outtakes. The panel has yet to issue its decision. Meanwhile, the case has con-tinued before Judge Kaplan, and the filmmakers have provided document and deposi-tion discovery.

• In re Chevron Corp., No. 10-4850: The Republic of Ecuador is seeking to intervene in the instant proceedings now on appeal before this Court. On August 6,2010, Judge Kaplan granted Chevron's application to take discovery from Steven Donziger, pursuant to 28 U.S.c. § 1782. On August 9,2010, Chevron served its subpoena on Donziger, and by late August 2010, both Donziger and the Lago Agrio Plaintiffs moved to quash. The Republic of Ecuador, though served with a courtesy copy of the

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subpoena served on Donziger, as well as all briefing by Chevron, did not move to quash the subpoena or appear in the action. On September 23,2010, Judge Kaplan held a hearing on Donziger's and the Lago Agrio Plaintiffs' motions to quash, and on October 20, 2010, Judge Kaplan issued an order denying those motions. Again, the Republic of Ecuador did not appear. On November 17, 20 10, Chevron moved to compel Donziger to comply with Judge Kaplan's October 20,2010, Order forthwith and to produce all of his responsive documents. On November 19,2010, Ecuador en-tered a notice of appearance, opposed Chevron's motion to compel, and moved to in-tervene in the action, for the first time. On November 29,2010, Judge Kaplan granted Chevron's motion to compel and denied Ecuador's motion to intervene. On December 1, 2010, Ecuador then filed a notice of appeal.

cc: All counsel of record

Respectfull y,

IslRandy M. Mastro Randy M. Mastro Counsel for Appellee Chevron Corporation