Oral Argument Legal Case Summary

Oral Audio Transcript(Beta version)

. So is that a reason that what you're saying there is the any purported need for urgency doesn't exist as much as the other side claims? Is that we will certainly argue that, Your Honor. Certainly, there is time for the district court to do what we believe it should have done. A careful review of the lengthy privilege log to determine whether or not there should be subject matter waiver as to every single document on that log. That is what I would argue. How many? I'm sorry. How many? I have not prepared or know the privilege log, but the privilege log has 833 pages. If you assume there's 20 or 25 entries per page, it's in the thousands. Well, I'm going to my original appointment to the federal court was to the court of appeals. Back to context. As a consequence of the district court's decision, all privileged documents of all attorneys who have worked on this matter, who are in the past, currently and indeed in the future, have to be overturned over to Chevron. By way of contrast, Chevron is under no obligation, not withstanding believe them or not, the charges made against its employees to turn over any of its privileged material whatsoever. This occurs at a time 17 years into a legal battle when the court and Ecuador sometime in 2011 is expected to render a final decision. Why does it happen? It happens because the district court concludes that Mr. Cohen's a very well-known lawyer from Philadelphia, that his brief appearance in a documentary film resulted in a total subject matter waiver of all of my clients, not Mr. Cohen's, my clients privileges over a 17-year period. The district court reaches- I was lucky was that appearance. You said there are five excerpts that are referred to. I haven't seen the film of the outtakes. It's in the outtakes, as my understanding it. There may be something in the film I'm not positive. If it's in the film, it's extraordinarily brief, and the outtakes, the only five, five I haven't read. I would say, you know, minutes, we're talking minutes, not hours. But how many outtakes? Five were referred to in the district court's opinion. All right. The district court, I submit, reaches this conclusion without any evidence that a single privileged document was submitted to or used in the judicial proceeding, in Ecuador, therefore impossible to create an intra-judicial effect. And I'm going to focus on that in my argument. I submit to you in the broader context that section 1782, which is a limited device to gain discovery to aid in a foreign proceeding, was never intended to allow federal courts to tip the scales of justice in favor of American defendants in foreign courts, especially when that American defendant rejected an American court in the southern district of New York, and specifically asked after nine years of foreign non-convainants litigation to have its case heard in Ecuador. The thing that's going on here is, I mean, you've got a very experienced, bright, savvy street smart district judge, and something has caused him to say, look, this is so blatant. And I looked at some of the things that, you know, he's referring to the meeting in the offices of KSG, where Cone and Donzinger and other attorneys from the Logo Aguio Planets discussed the financing of the litigation, a meeting at which they discussed the Cabrera report, and it goes on and on. And I guess he ultimately came to the conclusion, this is just a total waiver. I mean, turning client privilege is you don't talk with third parties, and here you got stuff where people are filming. What would ordinarily be considered to be privileged? It is my understanding that I realize I'm touching on the merits. No, no, but that, that, I'm just trying to figure out why, I mean, this is not a judge who flies by the seat of his pants, nor at all, and very careful. And in this case, he thought he had just seen enough. The context in which he made this decision is one that I'm not happy about, but it's there. There's 17 different federal courts in this country that have been asked by Chevron to deal with these issues. Some have gone one way, some have gone another way. Some have decided maybe there's a basis for crime fraud. We'll talk about that later. Some have said there's no basis for crime fraud. Judge Kaplan in the Southern District of New York has been most vocal. He was shocked and dismayed by Mr

. Donziger, not Mr. Cohen, Mr. Donziger's level of appearance. And frankly, the things that he said that trained as a defense lawyer all my life, I would never have said. And he was shocked by that. And to some extent, he was also faced. Well, the New York Times, he poured it on some of those. Absolutely. And he was faced with a January 5 deadline, urged by the criminal plaintiffs who said their lives were in jeopardy. And he was faced between two very tough choices. One choice was go through the normal procedure that you should go through to analyze whether there was really waiver or whether subject matter waivers should occur. But that would be very time consuming with 15, 17 years of documents numbering more than 50,000 or decide what was decided there. I think our judge here was affected by the same thing. He looked at these outtakes. He said, no lawyer should be doing this. This is not what lawyers do. Privileges are something that sacrosanct and that's maintained. What I suggest that maybe he overlooks is that this is the first time I've ever lived in this world. Okay. I'm not a cause lawyer. I don't go into jungles. Most recent six years has been spent as chief counsel for the city of New York on all 9-11 cases before Judge Ellers came. But it's a different world for people who fight someone like Chevron, who have to go into the jungles who have to drive public opinion as well to bring pressure. And my reading of the most recent decisions of our ethics authorities say that's part of the responsibility. I'm not saying how he did it, but you have an obligation to represent your client, including getting his story out there. Now, I think this judge who I think is, I don't know him well, but everything I know about him is careful, was led to make some fundamental errors that I will discuss because he was appalled at the extent to which Mr. Donziger and to a much lesser extent, Mr. Cohen said ridiculous things in these outtakes and allowed this crude document. So, I think it's a very important thing to do in this country to come and follow him around for years. You pose this case as if the application made here is only in connection with the pending criminal charges against the two Chevron attorneys in Ecuador. But I thought they also wanted to document with respect to the damages assessed by the Crabberra. They want all three and the bit arbitration and I'm going to talk about all three. No, but the timing was most tight on the criminal cases. And what drove, because I argued this before the second circuit, and if you read the second circuit's opinion, they were disturbed. Okay, they had to look at a judge who also is, is as a reputation for being a good jurist and very careful and look at my argument, which essentially said, I've now been brought in, filed my first notice of appearance in November, to do two things. To try to see that a judgment that will command international respect is in Ecuador is entered in Ecuador. If I have to try to work to clean anything up, I'm going to try to do it. And then if that judgment is rendered in favor of my clients, to try to seek international enforcement, because in the intervening 17 years Chevron has stripped Ecuador of its assets. It is in that context that it's taken its assets out of Ecuador. It's made itself judgment-proof. It's taken its own assets. It sounded like you were saying that they stripped the country of the country's assets, which is something that they blew town

. They blew town with their money. Exactly. In the end, if we were to continue to stay, how expedited could we make this? It's expedited as you want it to be made. I mean, it'll take a couple of weeks to write the merits brief, but I don't think anything more than that. And it would be in parry material in what you decided in admittedly a different issue. But in the case that arose from I believe the District of New Jersey that's also before this panel, which in which you have said a schedule, it's now I believe under consideration by the panel. But you allowed a couple of weeks from merits briefs to occur. If something happens in the interim now, and that criminal proceeding gets reset, I am sure my friends from Chevron will be quickly back here to suggest that you alter this schedule. And candidly, I won't oppose that. But to allow a couple of weeks for this merits briefing to take place before all of the rest of the documents are turned over to Chevron. And most importantly, and I will be asking this court that if you allow the state to continue, you specifically direct that Chevron is not to continue to take these documents that it already has and turn them over to the press and do other things with them. It should stay. The stay means the stay. And we're looking for a couple of weeks to be able to argue on the merits. If I may turn to the merits, because I think that while the court has tried to do the right thing, it is committed to obvious errors of law, which of course are reviewed denovo by this court and three exercises of what I would suggest are abuse of discretion. The first error on the merits, I'm not. That's my colleagues want to. I'm not sure that I need to get into the merits for today, but I'm only concerned about it because I need to show you that I have a substantial prospect of winning on the merits. Now, I know it's a sliding scale. The greater my prejudice, which I suggest is terribly great if my clients are going to lose absolutely all their privileges now and into the future, may not require much demonstration with respect to the with respect to prevailing as a matter of law. But the short answer is and I won't elaborate all of them. The district court failed to take cognizance of the distinction recognized by this court, the first circuit, the second circuit, that public disclosure of privileged information matters whether it is intra judicial in the proceeding and affects the fairness to the determination of the truth process or extra judicial like a press release or a movie. This was extra judicial and those courts cited in my brief uniformly hold that where it's an extra judicial disclosure of privileged information, you have to operate with a scalpel and not a chainsaw, which is what the court did by declaring subject matter waiver. You need to look at what was waived, you need to fairly decide the documents that therefore should also be waived, but everything does not automatically become waived. For example, I've said to you, my mission now is to provide advice on issues of international judgment enforcement. That's one of my responsibilities. I've just come into the case. Why should my advice memorandum were they to appear in Mr. Donziger or Mr. Cohen's file to my clients hired to be sure that a judgment with integrity is entered before fitted by the happenstance that there's this respectfully overly broad decision by the district court in Philadelphia? The second piece of that error related is that in this court's decision in Westinghouse versus the Republic of the Philippines, the court said that there should be a careful analysis of balancing as to exactly what needs to be disclosed. This court said, the district court said, that doesn't have to happen here. I'm rejecting it. I'm not doing it at all because of the sort of gross nature of the waiver. We've searched for every case since this court's decision in Westinghouse and could find no rule of the gross nature of the waiver. Sui generous decided by the district court that excuses the district court from performing the analysis that this court requires under Westinghouse. By way of abuse of discretion, I'll simply touch on it. The subpoena should have been limited in scope. The court said it would and then in its opinion, it didn't. It said, I'll only require everything having to do with the Ecuadorian litigation, nine years of work, not the New York litigation, but then it's used the term related. Now understand the practicality here. Mr. Cohen, who has been counseled to the plaintiffs for a long time, but had his severance with the plaintiffs, an issue I don't need to go into, he's not opposing turning these documents over

. What do you make of that? In other words, apparently nothing in those documents were I read that. I thought I guess nothing in those documents were. No, what I think it is is the following. Mr. Donziger and Mr. Cohen have had a falling out. Mr. Cohen did not approve of Mr. Donziger's doing this film, maybe for very good reason. Mr. Cohen is interested in showing the world he had little to no part in it. So he's interested in basically showing he's got clean skirts in the affair. And while he's doing the right thing by saying, let new counsel for the Lago Agrioplane have argued their privileges, he's doing nothing to defend their privileges. And the net effect of that is when you look at the order that the district court entered that says related to. And when you figure out who's going to make the call as to what's turned over based on related to, there's going to be a very generous turnover of documents. I suggest to you virtually everything. The last privilege, the last abuse of discretion issue and it is troubling to me. I it's troubling to me. My partner argued this before the district court before Christmas and asked for a brief period of time for a stay to take this matter to this court. He asked for a couple of weeks denied a week denied a day denied a minute denied. And the court was quite clear in what it then said. The court said in the transcript, I do not know whether an appeal of disorder will be taken and I'd like to do what I can to eliminate the appeal. He then threatened that if we had the audacity to appeal, he would go to the question of crime fraud. And he concluded by saying, if it is perceived as an attempt to chill and appeal, yes, that's exactly what I have in mind. Respectfully, this is a judge who felt very strongly about these issues, but it is not the province of a district judge to admit on the record that he's trying to chill a party's appeal. I thought that too, but then I thought, you know, what a court may do as a trial court why was a state trial judge is that sometimes the judge will say, I'm not writing on that issue because it's not necessary to write on that issue in view of the disposition I'm making. But if there's an appeal, there's something else that I would have said that would support the result that I reached and then I'll get involved in it. And that if he had maybe put it more diplomatic, it would have sounded better. Difference in degree, difference in kind. There's no doubt your address, right? It's perfectly appropriate to say, I don't need to reach this question now, but this wasn't said in that tone. And the transcript even without the tone speaks for itself. I want these documents turned over now. I want to discourage you from your appeal right. When you marry that up with the failure to do the things that I had just outlined, you become very concerned bluntly that justice was not done in this case in Philadelphia. Why don't we hear from, let's see if my two versions are. Thank you very much for your time, Your Honor. Mr. Rivera first. Master, sorry, I'm sorry. Thank you, Your Honor. It's pleasure to appear before you again. Your Honor, let me come right to the heart of the matter because why did this, as Your Honor put, that street smart district court judge find such a sweeping waiver because what happened with the filming of crude

. Several hundred hours of filmmakers following around plaintiffs council, Stephen Donziger, who was the star of the movie, who solicited the film, who invited the filmmakers in. He was working for the cone firm being paid by the cone firm at the time and Joe Cone on multiple hours of time. And that may be an exceptionally good argument on the merits, but at this point, we're trying, do we get to the merits because if we lift the stay in effect, the case is moved. Well, Your Honor, I'm glad you asked that because this is like a replay of what just happened in the second circuit. It was Mr. Tarell against Mr. Mastro and the second circuit rejected the stay outright. It praised Judge Capon for how he'd handled the case and it said as to Stephen Donziger, the ringleader here, who was working for the cone firm at the time being paid by the cone firm, that he had had a blanket waiver and there was going to be. What November 24th or what when did it come out? That Judge Capon's decisions were in October and November timeframe. The second circuit denied a stay when Judge Capon ruled at the end of November that there'd been a blanket waiver by Mr. Donziger. Second circuit denied a stay, the interim stay. Then we appeared before a full panel and the panel denied the stay then. We had an expedited appeal on the merits because Mr. Tarell and his colleagues argued at the time, even though we don't have a stay and even though everything has been produced, you could still maybe subsequently water relief. If we do grant a stay here and we expedite it like two weeks, two weeks, five days. Here's the problem, Your Honor. First of all, we don't come here on a clean slate. There have now been four circuits that have addressed exactly these same issues in every one of those instances. The second circuit, multiple times, the DC circuit, the fifth circuit, the ninth circuit. They rejected stays, they rejected their position on the merits and two of them were lawyers. I can use it about this. When you say the same issue, you're not defining that as meaning the movie issue. You mean other aspects? Yes, Your Honor. You could say we had the same issue. Correct, Your Honor. I am saying, Your Honor, that in those other circuits and either involved an expert of theirs as to whom they claimed there was privilege or it involved attorneys on the case. DC Circuit was Mr. Rye. Second circuit was Mr. Donziger. And Mr. Donziger was found to have had a blanket waiver. And there was no stay put in place by any court. I suggest to Your Honor it's the following because I don't think we can sit here and wipe our minds clean of the first appeal, if I can call it that. I believe you are. I mean, we appreciate. We're aware of what we saw there. Appreciate Your Honor bringing that up because that was then one of the very first 1782s when there were no crude outtakes when there was no Donziger testimony and disclosure of his documents when they we had yet to establish that stratus plaintiffs experts had ghost written the cabrera report. We filed in UBR. I think Judge Chester got it absolutely right that when it came out in that proceeding that the same expert was both the plaintiffs expert and working for the court appointed expert at the same time that that was a blanket waiver and crime fraud. There was a stay there, but that was then this is now

. We were in the dark then because they fought so hard to keep us in the dark. Now the light has been shown on this massive thought. If we have the outtakes, if they stay with an expedited briefing schedule is granted, what is the harm? I'm going to explain it as clearly as I can, Your Honor. Because it's not just that the sort of democlases over the heads of the two individual Chevron attorneys. But what was just even there that you have an indefinite postponement of what a preliminary hearing that was initially to be held today, correct? Your Honor's Chevron now has the sort of democlase over a tent. In Ecuador, the court there in mid-December, December 17th issued what's called the autos. The autos is a summoning of the parties that we're going to go to final judgment now. It's your last chance to make your closing argument and writing something that the parties are doing this very weak. And that court, we moved to give us more time. The court denied that motion. But we're not responsible for you being in Ecuador. I mean, you could have been in the Southern District of New York, right? Oh, but Your Honor, that's not really what's going on in Ecuador. How does that affect what we do here? Absolutely, it affects it, Your Honor, because there's a lot of that. How does it affect what we do here? Because that's why we want the discovery. We need it now. They're going to the final judgment stage in Ecuador. That's what the court has told us. You don't have to take my word for it. Mr. Tarell's firm, and I think he said he was, you know, just come into the case. They've been working on the case for months. But you've already got documents from the second, in the second circuit case, right? You've got it from Mr. Donziger. We've got it from Mr. Donziger, but here's the difference between Mr. Donziger and Mr. Cohn. Mr. Donziger is still a part of the cover-up and the fraud fighting at every turn to try and prevent the truth from coming out. Mr. Cohn has said very openly, and we take him at his word, that he wants to tell what happened. He's in fact accused Mr. Donziger and the rest of the places to be. That's not his decision to make. Well, Your Honor, I would submit this to you. I would submit this to you, that in the case of Mr. Cohn, his attorneys have forthrightly said to Judge Du Bois that they don't disagree that there's been a crime fraud here. They don't disagree that we should be entitled to this discovery. They want to produce it. I agree with you. It's not his decision alone, but I would say this to you. We are facing imminent judgment in Ecuador

. Don't take my word for it. A memo they wrote in the late summer. Their words, not my words, it's the patent bog's firm describing what steps they're going to take next. They said that this outtose order, this is how they described it. They said, quote, shortly before judgment, end quote, the Ecuadorian judge will issue an outtose, and that that is the judge literally demanding the evidence that brought to him for final judgment. I noticed that court is referred to as the Supreme Court. Is that in the sense that the trial level court of the highest jurisdiction in New York is the Supreme Court? In other words, there are a court of appeals. There is, Your Honor, but in the same memo, patent bog's plotting, its enforcement strategy. And this is the key. As Judge Kaplan and the Second Circuit have recognized, we're in a race. They're trying to slow down our discovery, so we get the evidence to the BIT panel and Ecuadorian court to get their judgment in place so that they can then try and enforce it. I thought you were at this issue was about getting the con material for the criminal prosecution of Polaris and Vega. I think that's what the Polarianry are hearing to be held. That's what this is all about. How does this affect Chevron? Because the judgment could literally be entered today. How does that affect the criminal proceeding? But Your Honor, it's not just about the criminal proceeding. They have an application, and Chevron has a 17.82 application, and Judge Du Bois granted it as to both, and found that both will be prejudiced if we don't get the discovery. How does Joe Kohn's notes help you in the Chevron case? They absolutely do, Your Honor, for the reasons that Judge Greenberg pointed out. We're trying to show that these multi-billion-dollar court expert findings, assessments, damage estimates, are bogus. They're a part of a fraud. They were ghost-twritten by the plaintiffs themselves, and we need to put that before the Ecuadorian court to try and prevent it from that. That's what you just wanted for. For the Council for Polaris Envega, we're pointing to the criminal trial. The criminal preliminary hearing, which is scheduled to be held. We both have an urgent need, and I have to say Judge Kaplan recognized that both the individuals and Chevron have this urgent need, because judgment could be entered against us at any point, and they will run around the world, literally Mr. Donzakus words, to wreak havoc on us by trying to enforce that judgment in Venezuela, and Angola, and Nigeria, all around the world. You know, you can understand we're not familiar with Ecuadorian court. The United States has sued all these and pos2 aspects, the liability and the damages. And when you read this, I'm not sure what has liability been established, or we now just determined damage. No, Your Honor, the Ecuadorian court will issue, and now having issued this outtos that they say- No, it's because they know, of course. Yes, they could, a judgment is going to occur. The judgment will establish both liability and damages. Once that judgment is entered, and the court, their words by entering the outtos is saying that, you know, shortly before judgment, now's the time. We're going to have judgment now. That court condition with judgment at any moment, and Your Honor asked the right question, which is, well, what happens when the trial court enters judgment? Is there an appellate process in Ecuador, and that court is the trial court? In connection with the answer. The answer is, yes, there is, but again, the patent bogs firm and its own internal memo from the summer tells us that that will not substantially delay enforcement. And indeed, it lays out a strategy for pre-judgment attachments around the world in venues outside the United States to try and wreak havoc on Chevron and forces. What happened with the race? What's the status of the United? I never even heard of that law to tell you the truth until I read this case, about the other case, you know, the one you already had first. What's the status of that case, the arbitration? The arbitration is progressing, and we have application. It means Your Honor, it's progressed past the jurisdictional motion stage, and we're in the merit stage. We have an application literally for emergency relief there that they shouldn't be permitted until that panel has had a chance to hear the case

. Who are the arbitrators? There are three very distinguished one-former judge, two very famous lawyers in the international community. It's a very distinguished panel, and here is another thing that you need to know about that case. We have sought the provisional remedy that they shouldn't be, Ecuador should be told that they shouldn't be trying to enforce the judgment until that panel can act. But I have the authority to it. But the Ecuadorian plaintiffs are not a party to the arbitration proceeding. Correct, Your Honor, although the evidence is overwhelming of the collusion between the two in trying to, with the Republic of Ecuador's case, impose its own mediation obligations and indemnification obligations on to Chevron through the private plaintiffs. But Your Honor, there we seek the relief that the Republic of Ecuador should be required to take steps to delay attempts to enforce the court's judgment until that panel has been approved. And I will tell you that the arbitration panel can be heard. Now that arbitration panel is very important. Because of what's happened, the autos issuing final judgment imminent, that arbitration panel very distinguished, wrote to the judge in Ecuador a month ago and said, please tell us, give us some estimate of when you're going to enter a judgment. And he has refused to respond, nothing. Is there a new judge in Ecuador? There absolutely has been a new judge appointed. You're out of the last judge. There was a disqualification motion and he had to, he was kicked off the case. Are the arbitrators what country are they from? Your Honor, I can get to the specific countries. I know that one of them is from England. They're all renowned international... International panel. And this is not an American panel. It is not. It's an international bit treaty arbitration under the unsatrial rules, Your Honor. And one that's done by international treaty between the United States and Ecuador. But we need this evidence, both there. Mr. Master, let me ask you this. Please. And this sort of gets to the merits. But it's an issue that concerns me. The issue is the waiver of the attorney client privilege here by virtue of the, the at takes from the crude documentary. Yes, Your Honor. And you talked about the Second Circuit's decision. The Second Circuit decision involved Don Ziggers. No, it's correct. Yes, Your Honor. All right. And how did the Second Circuit treat the decision of that circuit in the class fund Burelok is? Well, Your Honor... Because what I'm concerned about here is the breadth of the waiver. I'm pleased that Your Honor asked about the merits because it is an element of the state

. So let me address... It's an element of the state. Because they have to show substantial likelihood on the merits. Now, Your Honor asks about how they dealt with the Von Burelok case. In fact, the way that Judge Kaplan and the Second Circuit addressed it in Don Ziggers case, Don Ziggers had committed a waiver because of his, you know, delay tactics and not producing a privilege log. Judge Kaplan had found that he had substantially waived already. And then, because he was dilatory when he was ordered to produce forthwith, which in the Southern District requires a privilege log at the same time, and didn't do that, that he'd had a blanket waiver. He had a substantial waiver already, and then he had a blanket. So the facts there were somewhat different. Correct. But let me explain Von Burelok and Westinghouse. How would you distinguish Von Burelok if... Completely for us. Yes, I'm pleased Your Honor asked. Von Burelok is distinguishable for the following reason. What the Second Circuit said there, and what this circuit recognized in Westinghouse, and what Judge Ambrow recognized in Teleglow, is that there's nothing unusual about an extrajudicial waiver. When that waiver, though, is intentional and causes prejudice or unfairness or was done to advantage one's litigation position so that you are using the privilege invocations as both a sword and a shield under those circumstances, that the only fair thing to do is to recognize that there's been a broader waiver. Let me give you the exact language from Von Burelok. The extra- quote, the extrajudicial disclosure of an attorney-client conversation, one not subsequently used by the client to his adversaries prejudice, does not waive privilege more broadly. In Von Burelok, the issue was someone after trial, Von Burelok, he'd already won the trial. He clearly wasn't allowing his lawyer to put those things in the book to try and gain any kind of litigation advantage. And then subsequently, Von Burelok got sued by family members, including his wife, over the torts that had been committed, she was in a coma at the time. So the court concluded a blanket waiver under those circumstances would have been unfair. He wasn't doing it. He wasn't waiving for some kind of litigation advantage. Here, Judge DeBoys found exactly right, and it's an abuse of discretion standard. He said this was done for tactical litigation reasons. It was a concerted public relation strategy to try and force Chevron to settle or to influence the outcome of the litigation, intentional his words. And this is what Judge DeBoys held, absolutely consistent with Von Burelok, and what this court said in Westinghouse, that unless the partial waiver would be unfair to the party's adversary. That's exactly what Judge DeBoys found. It would be unfair to us because of their intentional waiver to try to influence the outcome of the case and to force Chevron to settle through a film that was going to give a one-sided version that didn't reveal the Cabrera fraud, that didn't reveal all the other frauds that have gone on here and the threats and intimidations and judges. But it was designed to prejudice us in the case and to force us to settle that it's unfair for them to say, I'm going to allow filmmakers to film me for hundreds of hours. I'm going to solicit the film and have them do that. The most intimate strategy sessions about legal strategy, about settlement strategy, about their experts and what happened with Cabrera and to not say that that is a blanket waiver. Judge DeBoys had it exactly right when he wrote, this is a truly exceptional scope of waiver. Quote, given that these disclosures were intentional and covered the entire scope of the ongoing LEGO Agria litigation. Did he look at all the Aztecs? He had dozens of Aztecs with him, you're on it. He didn't look at all 500 hours

. Okay. How many hours did he look at? Well, he looked at dozens of Aztecs. How many hours did he look at? They were several hours of Aztecs. How many hours did you estimate he looked at? I would be estimating, Your Honor. I mean, I would be guessing, but it's more than an hour, it's probably less than 10. It was the highlights. It was the highlights, but there were dozens of 500 hours. And Your Honor, those Aztecs showed private meetings in Mr. Cohn's office where they were discussing some of them where Mr. Cohn's office. But Your Honor, it's not limited to what was in Mr. Cohn's office. Mr. Donziger was on the vast majority of the Aztecs and in the vast majority of the film. And he was literally working for and being paid by the Cohn law firm during this period of time. So what Mr. Cohn said in the Aztecs and what Mr. Donziger said in the Aztecs, they're all part of the body of deciding whether there was a waiver. And Your Honor, the things that are on those Aztecs, the dozens of Aztecs that Judge Du Bois saw and spent the time to review and gave you side hours of argument on those Aztecs. Mr. Donziger, saying that maybe a judge won't be killed, but if you think he will, that's good. Threatening to close down the courthouse, shut down any presentation that the judge has viewed the documentary? Apparently not, Your Honor, but they have influenced the judge. Well, Your Honor, I think the evidence that they've influenced the judge on the case now is they demanded that he go to the judge stage and issue the outtos. Two days later, he issues the outtos. This is mid-December, then he rejects our motion and literally judgment could be entered any day now. And Your Honor, on those Aztecs, but Your Honor, it's not a question of argument. I like them speak for themselves. I don't ask you to trust me. I use his words. This is a case where the other side in the race wants the delay us on discovery at every phase and wants to speed up the judgment and echo. Have the Donziger documents that have been given to you to date been used in connection with any aspect of the Ecuadorian proceedings? Absolutely, Your Honor, and in the bid arbitration. And we believe that what Mr. Cohen, but we have also explained, as has Judge Kaplan. Is that in connection with the film crew? Isn't it on to Donziger? Outtakes far more important to you than anything else? Your Honor, they're extraordinarily important because they reveal the wholesale waiver and fraud that is gone on here. And that's what every court that has viewed them has found. It appears that they're the big enchilada. So why is it that you want us to decide this minute in effect the merits of this case relating to Mr. Cohen? Well, actually, Your Honor, the crewed outtakes are extremely important evidence that should convince you that they have no likelihood of sincere action. And you may be right, but why do you want us to decide in effect is if we live for stay, as I said before, in effect what it's doing is it's mooding the cases, isn't it? Your Honor, you are rewarding an intentional course in delay and judgment. I'm not trying to bring a value judgment on it. If we live for stay, is it mooding the appeal? So, Your Honor, they told the second circuit on Donziger even after they lost a stay motion, both interim and full panel, that it didn't move their appeal, that this court could expedite the appeal. And if the court found otherwise, then you could issue appropriate orders that wherever we'd use the documents, we should try and retrieve them and give them back. What would you expect the documents to do in the best, if they really, really want you wanted, that they would be the smoking gun and you could present these to them? Yes, Your Honor. And to the court, hey, this is a whole thing as a whole. And to the bit panel, Your Honor, where we're trying to get orders against the Republic of Ecuador, slowing the enforcement train once a judgment is entered, so we have an opportunity to challenge. But can you use Section 1782 to get the discovery for the bit panel? Absolutely, Your Honor. Yes, and that's what every court in this country has found that's been asked to address that issue, including the second circuit. Because the bit panel is an international treaty arbitration under unsit, trial rules by treaty compact between the US and the US. It was not, they didn't raise it, well, they've lost it so often, collateral stop will eventually come into play. But if I can just respond to Your Honor's question, yes, the crude outtake sir extremely valuable. Yes, the discovery we've gotten from Mr. Donziger has been extremely valuable, lowies fighting tooth and nail, not to admit it in his deposition. But Mr. Cohen, and I have to make this distinction, Mr. Donziger hasn't produced everything. Mr. Cohen has already before the stay was put in place, and we haven't used his documents anywhere, Your Honor, no matter what Mr. Tarell said. Mr. Cohen's documents, once the stay was entered, we have not submitted them anywhere, we're waiting for this court. But Mr. Donziger, in fact, even though he's been on the case for 70 years, produced fewer documents, even with his complete privilege. If the Cohen documents are as important as you say they are, and we're willing to expedite the matter, beyond what we normally do and expedite it significantly, why is it that you don't even want us to do that? Your Honor, it's for the simple reason that literally any day the court in Ecuador could enter a judgment, and then we will have lost that opportunity to have that evidence when Mr. Cohen says, and he said it in correspondence with Mr. Donziger that Donziger had to produce. Mr. Donziger, I don't want to tell you that there's a fraud going on here, and I want to tell my side. I don't read that in the document you submitted yesterday. The court allowed time for additional briefs. I mean, this case has gone on for nine years. You're trying to make us believe that the decision is going to be made overnight when the court clearly said in that document that they were allowing for additional briefing. I'm sorry, which I don't want the documents we got yesterday from the clerk. It was submitted by I believe it was submitted on December 29th. Okay, and I'm not sure which well I'll find it here. I appreciate your honor. I appreciate your honor because is there anything else you want to add before we hear from anyone else? I really want to explain your honor that as Judge Kaplan, who's lived with this case the longest he did both the crude outtakes and Donziger as the second circuit which is reviewed both have recognized. This is not a situation where the delay tactics on the discovery, the appeals, the stays, the limited productions have been done for any other reason than tactical to prevent the information from coming out before Ecuador enters a judgment. They've now succeeded in getting us to the judgment stage in Ecuador and that could happen any day. Okay, here it is since you're saying you submitted it on December 30th. Yes, Your Honor. And the document from that's with the translation from the Ecuador in court, which says that it is what you says it say it is, but the last sentence says the parties may submit their legal briefs and defense of their interests. Oh, yes, that's exactly right. You're right. That's what I that doesn't sound to me

. What would you expect the documents to do in the best, if they really, really want you wanted, that they would be the smoking gun and you could present these to them? Yes, Your Honor. And to the court, hey, this is a whole thing as a whole. And to the bit panel, Your Honor, where we're trying to get orders against the Republic of Ecuador, slowing the enforcement train once a judgment is entered, so we have an opportunity to challenge. But can you use Section 1782 to get the discovery for the bit panel? Absolutely, Your Honor. Yes, and that's what every court in this country has found that's been asked to address that issue, including the second circuit. Because the bit panel is an international treaty arbitration under unsit, trial rules by treaty compact between the US and the US. It was not, they didn't raise it, well, they've lost it so often, collateral stop will eventually come into play. But if I can just respond to Your Honor's question, yes, the crude outtake sir extremely valuable. Yes, the discovery we've gotten from Mr. Donziger has been extremely valuable, lowies fighting tooth and nail, not to admit it in his deposition. But Mr. Cohen, and I have to make this distinction, Mr. Donziger hasn't produced everything. Mr. Cohen has already before the stay was put in place, and we haven't used his documents anywhere, Your Honor, no matter what Mr. Tarell said. Mr. Cohen's documents, once the stay was entered, we have not submitted them anywhere, we're waiting for this court. But Mr. Donziger, in fact, even though he's been on the case for 70 years, produced fewer documents, even with his complete privilege. If the Cohen documents are as important as you say they are, and we're willing to expedite the matter, beyond what we normally do and expedite it significantly, why is it that you don't even want us to do that? Your Honor, it's for the simple reason that literally any day the court in Ecuador could enter a judgment, and then we will have lost that opportunity to have that evidence when Mr. Cohen says, and he said it in correspondence with Mr. Donziger that Donziger had to produce. Mr. Donziger, I don't want to tell you that there's a fraud going on here, and I want to tell my side. I don't read that in the document you submitted yesterday. The court allowed time for additional briefs. I mean, this case has gone on for nine years. You're trying to make us believe that the decision is going to be made overnight when the court clearly said in that document that they were allowing for additional briefing. I'm sorry, which I don't want the documents we got yesterday from the clerk. It was submitted by I believe it was submitted on December 29th. Okay, and I'm not sure which well I'll find it here. I appreciate your honor. I appreciate your honor because is there anything else you want to add before we hear from anyone else? I really want to explain your honor that as Judge Kaplan, who's lived with this case the longest he did both the crude outtakes and Donziger as the second circuit which is reviewed both have recognized. This is not a situation where the delay tactics on the discovery, the appeals, the stays, the limited productions have been done for any other reason than tactical to prevent the information from coming out before Ecuador enters a judgment. They've now succeeded in getting us to the judgment stage in Ecuador and that could happen any day. Okay, here it is since you're saying you submitted it on December 30th. Yes, Your Honor. And the document from that's with the translation from the Ecuador in court, which says that it is what you says it say it is, but the last sentence says the parties may submit their legal briefs and defense of their interests. Oh, yes, that's exactly right. You're right. That's what I that doesn't sound to me. Like something's going to happen over your honor. I mentioned that. How do you submit briefs quickly because you've gotten a lot quickly from all of you, Your Honor. I mentioned that earlier. When the court in Ecuador denied last week our motion to revoke that order, we literally have had a week to put in our final papers. They're called the alugato and we are putting that in if not today or tomorrow. So that's that's happening. You don't you only have a matter of days. Again, don't take my word for it. In the patent box memo from the summer, they say you have a short time to put in that final brief. We're putting it in today or tomorrow. And that's the maximum time you have. You have literally a week. I'll take your word for it. And Your Honor, I just want to be crystal clear about it because Judge Kaplan and the second circuit denied stays repeatedly because as they found. And we put the documents before Judge Du Bois exhibits 87 through 89. The pattern of appealing, seeking stays, giving only a little bit of the discovery. So we had to go back into compel. This is what's happening in Donzegar's case. That pattern has been one orchestrated by the plaintiffs. Again, counsel, don't take it from me. Take it from their own words. I urge you to read exhibits 87 and 89 where Mr. Terrell's colleague specifically wrote in the context of one of these earlier 1782s. This is what he wrote in May 2010. And months ago, Mr. Terrell didn't just come on the case. His firm has been on it for months. Quote, what about the following as a strategy? Appeal, move for stay. If we win, great. If we lose, we produce whatever we want. Now a weed, Gibson done complains. And then we move for clarification. If we lose again, we think about another appeal to which Mr. Donzegar responds, I like the approach. I like this approach. That's what they've been doing with every court. And in the second circuit and before Judge Kaplan, he said enough. He said their arguments were not entirely in good faith. Not just Donzegar, the plaintiffs lawyers. The second circuit said, no stay. They lived with this case

. Like something's going to happen over your honor. I mentioned that. How do you submit briefs quickly because you've gotten a lot quickly from all of you, Your Honor. I mentioned that earlier. When the court in Ecuador denied last week our motion to revoke that order, we literally have had a week to put in our final papers. They're called the alugato and we are putting that in if not today or tomorrow. So that's that's happening. You don't you only have a matter of days. Again, don't take my word for it. In the patent box memo from the summer, they say you have a short time to put in that final brief. We're putting it in today or tomorrow. And that's the maximum time you have. You have literally a week. I'll take your word for it. And Your Honor, I just want to be crystal clear about it because Judge Kaplan and the second circuit denied stays repeatedly because as they found. And we put the documents before Judge Du Bois exhibits 87 through 89. The pattern of appealing, seeking stays, giving only a little bit of the discovery. So we had to go back into compel. This is what's happening in Donzegar's case. That pattern has been one orchestrated by the plaintiffs. Again, counsel, don't take it from me. Take it from their own words. I urge you to read exhibits 87 and 89 where Mr. Terrell's colleague specifically wrote in the context of one of these earlier 1782s. This is what he wrote in May 2010. And months ago, Mr. Terrell didn't just come on the case. His firm has been on it for months. Quote, what about the following as a strategy? Appeal, move for stay. If we win, great. If we lose, we produce whatever we want. Now a weed, Gibson done complains. And then we move for clarification. If we lose again, we think about another appeal to which Mr. Donzegar responds, I like the approach. I like this approach. That's what they've been doing with every court. And in the second circuit and before Judge Kaplan, he said enough. He said their arguments were not entirely in good faith. Not just Donzegar, the plaintiffs lawyers. The second circuit said, no stay. They lived with this case. The gun is to our head. We're in the last lap. The Ecuadorian court can enter a judgment any day. And it's a potential $113 billion judgment. And then they're going to run around the world to enforce it. Why don't we hear from them? Why don't we hear from one of the other counsels? Thank you very much. Thank you. I really, really appreciate it. May I please the court? I'm Alan Vingrad from coming to an enrolling and I represent Ricardo Vega. I want to get right to the point that I think was on the minds of all three of your honors based on the questions I've heard, which is the timing issue, which goes to the injury to Mr. Vega. If the stay is continued, one of the four factors under the four factors stay test. The preliminary hearing in Ecuador in the criminal case has already been scheduled twice. And the latest postponement is I think we made clear in our submissions to this court. It was based on what the prosecutor down there said was a scheduling conflict between this case, which was scheduled for today and another case in which he had to appear in court on Friday. So as far as we know and having consulted with our Ecuadorian Council, the preliminary hearing can be rescheduled at any time. There is no minimum prior notice period required under the law as there was for the initial scheduling of the hearing. And given the reason for the requested postponement, one would think that the postponement would be temporary. I don't know when your honors, but there's certainly not putting it past the realm of reality that in a few days from now, there will be a notice, say next Monday saying we're going to have the hearing next Thursday or Friday, the 13th of the 14th. So that recognizing your honors concern about the truncating of the discussion of the merits into the stay litigation. If that hearing is rescheduled and that type of timeframe or anything close to it, even an expedited briefing, the schedule of the type that your honor, Judge Ambre, has suggested, which would put even expedited briefing into February to be followed by argument and then whatever time would be required for the squirt to make a decision. It won't be quick enough for the applicants to use whatever evidence that it certainly appears that is going to be very significant in the agreement. In obviously we're not familiar with Ecuadorian procedures, but in this country, defendants don't normally prefer any evidence at a preliminary hearing. And as I understand what was scheduled for today, it was that kind of a preliminary forum. How does Ecuadorian process differ from ours that your clients wouldn't be able to use this information from Mr. Cones files at a later time at the case in chief? Well, we're not saying that it could not be used at a trial. What we are saying, and this is unrebutted through the Declaration of Ecuadorian Council, which was tender to the district court in this proceeding. The preliminary hearing is the only opportunity that Mr. Vega and Mr. Poyatus will have before trial to present either legal arguments or evidentiary arguments in support of the dismissal of the charges. And it is certainly our intention. Well, I understand that. Well, I understand that. The evidence that we've gained both independent of the 1782 process, as well as through the 1782 discovery we've achieved in other proceedings. I understand that the statement that this will be the only opportunity to use it before trial is correct. And you could make that statement here in the United States. Yes. But it might not be the time at which the tribunal in Ecuador is really going to consider that evidence. Well, well, two answers to that. A Dutch Fisher one is, as a matter of law, again, as explained by Ecuadorian Council, we certainly have the right to present that type of information here. And you think that the record should that before judge the boys. Absolutely

. The gun is to our head. We're in the last lap. The Ecuadorian court can enter a judgment any day. And it's a potential $113 billion judgment. And then they're going to run around the world to enforce it. Why don't we hear from them? Why don't we hear from one of the other counsels? Thank you very much. Thank you. I really, really appreciate it. May I please the court? I'm Alan Vingrad from coming to an enrolling and I represent Ricardo Vega. I want to get right to the point that I think was on the minds of all three of your honors based on the questions I've heard, which is the timing issue, which goes to the injury to Mr. Vega. If the stay is continued, one of the four factors under the four factors stay test. The preliminary hearing in Ecuador in the criminal case has already been scheduled twice. And the latest postponement is I think we made clear in our submissions to this court. It was based on what the prosecutor down there said was a scheduling conflict between this case, which was scheduled for today and another case in which he had to appear in court on Friday. So as far as we know and having consulted with our Ecuadorian Council, the preliminary hearing can be rescheduled at any time. There is no minimum prior notice period required under the law as there was for the initial scheduling of the hearing. And given the reason for the requested postponement, one would think that the postponement would be temporary. I don't know when your honors, but there's certainly not putting it past the realm of reality that in a few days from now, there will be a notice, say next Monday saying we're going to have the hearing next Thursday or Friday, the 13th of the 14th. So that recognizing your honors concern about the truncating of the discussion of the merits into the stay litigation. If that hearing is rescheduled and that type of timeframe or anything close to it, even an expedited briefing, the schedule of the type that your honor, Judge Ambre, has suggested, which would put even expedited briefing into February to be followed by argument and then whatever time would be required for the squirt to make a decision. It won't be quick enough for the applicants to use whatever evidence that it certainly appears that is going to be very significant in the agreement. In obviously we're not familiar with Ecuadorian procedures, but in this country, defendants don't normally prefer any evidence at a preliminary hearing. And as I understand what was scheduled for today, it was that kind of a preliminary forum. How does Ecuadorian process differ from ours that your clients wouldn't be able to use this information from Mr. Cones files at a later time at the case in chief? Well, we're not saying that it could not be used at a trial. What we are saying, and this is unrebutted through the Declaration of Ecuadorian Council, which was tender to the district court in this proceeding. The preliminary hearing is the only opportunity that Mr. Vega and Mr. Poyatus will have before trial to present either legal arguments or evidentiary arguments in support of the dismissal of the charges. And it is certainly our intention. Well, I understand that. Well, I understand that. The evidence that we've gained both independent of the 1782 process, as well as through the 1782 discovery we've achieved in other proceedings. I understand that the statement that this will be the only opportunity to use it before trial is correct. And you could make that statement here in the United States. Yes. But it might not be the time at which the tribunal in Ecuador is really going to consider that evidence. Well, well, two answers to that. A Dutch Fisher one is, as a matter of law, again, as explained by Ecuadorian Council, we certainly have the right to present that type of information here. And you think that the record should that before judge the boys. Absolutely. It's in the Declaration of Jaime de Noce. And secondly, we intend to do that. Part of the evidence that we intend to submit, for example, has to do with how the prosecution of this case, having been rejected by several prosecutors. In the years prior to the Cabrera report, surfacing and being filed, then got reinitiated. A day after the Cabrera report was finalized, and we definitely intend to introduce evidence to the court that this Cabrera report was a fraud. And it was secretly ghostwritten by the plaintiffs' lawyers. The general is against the two defendants in Ecuador, the two lawyers specifically. What are they charged with? The essential charge to use the United States analogy is akin to a violation of 18 U.S.C. 2001, essentially making a false statement in a public document. We're not conceding that those elements were met, obviously. But that's the nature of the charge. And then are both residents of Ecuador? No, they're not. How does the court have them before? Well, they were charged allegedly based on conduct that occurred while they were 15 or so years ago in Ecuador. They don't reside there now. Extruded? I mean, I'm just trying to understand this. So they're not in Ecuador so that it would be very difficult to try them in their absence, I don't know. And yes, some day if somebody was really interested try to get extradition and all that. Agreed. Where are they from? My client is originally from Brazil. He's a naturalized citizen of the United States. Mr. Piotis is a citizen of Ecuador. But they're not in Ecuador. No, they're not. They're not presently in Ecuador. But in terms of the focus of what we want, the information from Mr. Cone now, it does relate to the preliminary hearing, which will go forward. In Ecuador, whether they are present for that hearing, we're not. So that's our time. In Ecuadorian courts can allow them to present evidence and defend themselves without appearing. Yes, they will at the preliminary hearing. And that is documented in Mr. Dinosos, David Unrebutted in the court below. Yes, they will. And after the substance, I won't believe it, but what Mr. Amastura said, you know, Mr. Cone has a distinct and unique role in this entirely. And he has a very strong sense of the legal litigation that sets him apart from our perspective from some of the consultants and others who have been the subject of 1782 actions. And he is ready to reveal what he knows. And based on what we know from other proceedings, he has evidence that goes to the heart of the arguments that we intend to make in descending Mr

. It's in the Declaration of Jaime de Noce. And secondly, we intend to do that. Part of the evidence that we intend to submit, for example, has to do with how the prosecution of this case, having been rejected by several prosecutors. In the years prior to the Cabrera report, surfacing and being filed, then got reinitiated. A day after the Cabrera report was finalized, and we definitely intend to introduce evidence to the court that this Cabrera report was a fraud. And it was secretly ghostwritten by the plaintiffs' lawyers. The general is against the two defendants in Ecuador, the two lawyers specifically. What are they charged with? The essential charge to use the United States analogy is akin to a violation of 18 U.S.C. 2001, essentially making a false statement in a public document. We're not conceding that those elements were met, obviously. But that's the nature of the charge. And then are both residents of Ecuador? No, they're not. How does the court have them before? Well, they were charged allegedly based on conduct that occurred while they were 15 or so years ago in Ecuador. They don't reside there now. Extruded? I mean, I'm just trying to understand this. So they're not in Ecuador so that it would be very difficult to try them in their absence, I don't know. And yes, some day if somebody was really interested try to get extradition and all that. Agreed. Where are they from? My client is originally from Brazil. He's a naturalized citizen of the United States. Mr. Piotis is a citizen of Ecuador. But they're not in Ecuador. No, they're not. They're not presently in Ecuador. But in terms of the focus of what we want, the information from Mr. Cone now, it does relate to the preliminary hearing, which will go forward. In Ecuador, whether they are present for that hearing, we're not. So that's our time. In Ecuadorian courts can allow them to present evidence and defend themselves without appearing. Yes, they will at the preliminary hearing. And that is documented in Mr. Dinosos, David Unrebutted in the court below. Yes, they will. And after the substance, I won't believe it, but what Mr. Amastura said, you know, Mr. Cone has a distinct and unique role in this entirely. And he has a very strong sense of the legal litigation that sets him apart from our perspective from some of the consultants and others who have been the subject of 1782 actions. And he is ready to reveal what he knows. And based on what we know from other proceedings, he has evidence that goes to the heart of the arguments that we intend to make in descending Mr. Vega from these criminal charges, both relating to the fraudulent Cabrera report, as well as, frankly, the entire overarching picture of this case. Which is the criminal prosecution being instigated by the Lago Aguil plaintiffs. And the record is replete with the evidence of that. They are the ones who helped procure this sham prosecution of Mr. Vega and Mr. Paiades in order to secure a large settlement from Chevron. But he can't reveal what he knows and he doesn't want to take the chance, I gather, without the cover of something from the court. In other words, that's why he's in a unique position. He's ready to reveal that he needs court cover. Well, I mean, he needs the approval of a court, either based on a waiver. The theory is adopted by the district court based on the crime fraud exception, which is an alternative basis that the district courts certainly hinted at and serval of the courts have adopted. Yes, Judge Greenberg, I think that's correct. My point though really deals with the public interest factor. And if you're weighing all four of the factors under this court's precedence, I think I want to spend a minute talking about that one. They are the ones who procured this prosecution, which is now hanging over our client's head. The district court in its supplemental memo denying the request for a stay said that it specifically said and it recognized the evidence that we submitted. That one of the grounds for denying the stay was they were the ones who put us in the position. We did not choose to be in Ecuador. I think Chef Hanna has answered the question of how they ended up there in the civil litigation, but we didn't choose to be there. We're hostages to the battle between these folks here and Chevron over here. In what other locations in the United States, are you currently trying to get documents and of those how many of them are you currently getting documents? Currently, the only other pending proceeding where we're getting information is in the case of Mr. Donziger. Otherwise, the other 1782 proceedings that we have filed, we've prevailed in every one of them. We've gotten the depositions in every one of them and we've gotten the documents in every one of them. Say for one consultant, one proceeding, and it's a small number of documents. So this is the only one that we're involved in that is still actively being litigated. Anyone else that we want to hear from? Anything else that you have, does it additional to that? I may briefly address Mr. Perez's circumstances, which is slightly different. And attempt to just answer questions. I know the court has been very generous in time. And Drace Rivera for a Rodrigo Perez pay-offs. And I want to make clear, I represent an individual. Mr. Perez is 74 years old. He's a native of Ecuador. He's a lawyer in Ecuador for 40 plus years with a clean record as an attorney. All that time, a practicing lawyer. In part of his career, he represented a predecessor to Chevrolet. In the course of his work, he signed a release. And because he signed their release, in our view, and we think the evidence that we've been able to develop in the 1782s has shown that the expulatory evidence that these plaintiffs engendered a claim, a criminal case, through the government against my client, in order to advance their civil case. That's my theory. I want you to consider me a, I'm assisting an Ecuadorian criminal defense lawyer

. Vega from these criminal charges, both relating to the fraudulent Cabrera report, as well as, frankly, the entire overarching picture of this case. Which is the criminal prosecution being instigated by the Lago Aguil plaintiffs. And the record is replete with the evidence of that. They are the ones who helped procure this sham prosecution of Mr. Vega and Mr. Paiades in order to secure a large settlement from Chevron. But he can't reveal what he knows and he doesn't want to take the chance, I gather, without the cover of something from the court. In other words, that's why he's in a unique position. He's ready to reveal that he needs court cover. Well, I mean, he needs the approval of a court, either based on a waiver. The theory is adopted by the district court based on the crime fraud exception, which is an alternative basis that the district courts certainly hinted at and serval of the courts have adopted. Yes, Judge Greenberg, I think that's correct. My point though really deals with the public interest factor. And if you're weighing all four of the factors under this court's precedence, I think I want to spend a minute talking about that one. They are the ones who procured this prosecution, which is now hanging over our client's head. The district court in its supplemental memo denying the request for a stay said that it specifically said and it recognized the evidence that we submitted. That one of the grounds for denying the stay was they were the ones who put us in the position. We did not choose to be in Ecuador. I think Chef Hanna has answered the question of how they ended up there in the civil litigation, but we didn't choose to be there. We're hostages to the battle between these folks here and Chevron over here. In what other locations in the United States, are you currently trying to get documents and of those how many of them are you currently getting documents? Currently, the only other pending proceeding where we're getting information is in the case of Mr. Donziger. Otherwise, the other 1782 proceedings that we have filed, we've prevailed in every one of them. We've gotten the depositions in every one of them and we've gotten the documents in every one of them. Say for one consultant, one proceeding, and it's a small number of documents. So this is the only one that we're involved in that is still actively being litigated. Anyone else that we want to hear from? Anything else that you have, does it additional to that? I may briefly address Mr. Perez's circumstances, which is slightly different. And attempt to just answer questions. I know the court has been very generous in time. And Drace Rivera for a Rodrigo Perez pay-offs. And I want to make clear, I represent an individual. Mr. Perez is 74 years old. He's a native of Ecuador. He's a lawyer in Ecuador for 40 plus years with a clean record as an attorney. All that time, a practicing lawyer. In part of his career, he represented a predecessor to Chevrolet. In the course of his work, he signed a release. And because he signed their release, in our view, and we think the evidence that we've been able to develop in the 1782s has shown that the expulatory evidence that these plaintiffs engendered a claim, a criminal case, through the government against my client, in order to advance their civil case. That's my theory. I want you to consider me a, I'm assisting an Ecuadorian criminal defense lawyer. But I am in this case a criminal defense lawyer. And Judge Fisher there, I want to address very specifically the question that you asked. What are the consequences of preliminary hearing? You're on a federal prosecutor, I understand. Within our system, the significance and preliminary hearing is almost going to exist. Non indictment and that kind of thing, etc. The difference in the system we're talking about in Ecuador. And the charges Judge Greenberg, our articles 338 and 339 of the Ecuadorian code, exactly as Mr. Bygred says most comparable to our 18 USC 2001. The difference judge is on a preliminary hearing in Ecuador. And this is a word to end docket entry number one, the declaration of my colleague Paul Danes, who attaches the uncontroverted testimony of our Ecuadorian criminal counsel, Jaime Dunoz. In a preliminary hearing in Ecuador, we can present documentary evidence to disprove the allegations. And the judge will consider the documentary evidence in making a very clear determination, which is whether the purpose of preliminary hearing is whether the case will proceed to trial, whether it will be dismissed. The evidence that goes towards the elements of this offense are absolutely part of the consideration of the preliminary hearing judge. And that is uncontrollable to the standard for holding the case for court. Is this name is here or a prime of the case? I can't know it. I'm told not judge, but I, but you know, there have to be careful because I'm not an extra one in Ecuadorian law. But I would say it's more akin to sufficiency, not primafacial, although I think the prime of the issue analysis comes into digimed an element. But I think it's more it's more liberal than our standard, which is a very minimal standard of the meat judge the consequence. In addition, I understand why the courts are asking about standard. We have a chance judge that that's I think the practical thing is, especially with this extraordinarily powerful, excopatory evidence judge, I've been doing this for 24 years, including five years of federal prosecutor. I have never seen lawyers conduct themselves in the way that these gentlemen, including with all respect, I know Mr. Cones known here in Philadelphia. I'm not from here and I'll be careful, but for a lawyer to say an outtake, I think judge Du Bois saw this as to material put in front of the attorney general of Ecuador. Well, if the time comes, we could make this go away. Judge, I've never seen that kind of stuff and it's recorded. Okay, but judge, what's the consequence? I don't want to lose my thread. If we don't prevail, I'll put them in here. That preliminary hearing happens. Not only do we go to trial and understand, well, you can defend a trial just like you would in this country. Judge, extradition proceedings can't proceed from there immediately. And that goes to what Judge Grahamburg was asking about. Yes, my client is in Miami, your honor. I say this with unfortunate personal knock. He is exiled. I'm Cuban American. I feel like he is in practical effect exiled from his country. I'm Cuban American and I say this with great personal understanding. He cannot return to his country without risk of his liberty because of the conduct of the folks represented by these counts. Now, but my point is if we were to lose at that preliminary hearing, and this is why I just want to say this is very important. That judge can enter an order starting extradition proceedings, which we'd have to defend in this country. We think we have good arguments. All that existed

. But I am in this case a criminal defense lawyer. And Judge Fisher there, I want to address very specifically the question that you asked. What are the consequences of preliminary hearing? You're on a federal prosecutor, I understand. Within our system, the significance and preliminary hearing is almost going to exist. Non indictment and that kind of thing, etc. The difference in the system we're talking about in Ecuador. And the charges Judge Greenberg, our articles 338 and 339 of the Ecuadorian code, exactly as Mr. Bygred says most comparable to our 18 USC 2001. The difference judge is on a preliminary hearing in Ecuador. And this is a word to end docket entry number one, the declaration of my colleague Paul Danes, who attaches the uncontroverted testimony of our Ecuadorian criminal counsel, Jaime Dunoz. In a preliminary hearing in Ecuador, we can present documentary evidence to disprove the allegations. And the judge will consider the documentary evidence in making a very clear determination, which is whether the purpose of preliminary hearing is whether the case will proceed to trial, whether it will be dismissed. The evidence that goes towards the elements of this offense are absolutely part of the consideration of the preliminary hearing judge. And that is uncontrollable to the standard for holding the case for court. Is this name is here or a prime of the case? I can't know it. I'm told not judge, but I, but you know, there have to be careful because I'm not an extra one in Ecuadorian law. But I would say it's more akin to sufficiency, not primafacial, although I think the prime of the issue analysis comes into digimed an element. But I think it's more it's more liberal than our standard, which is a very minimal standard of the meat judge the consequence. In addition, I understand why the courts are asking about standard. We have a chance judge that that's I think the practical thing is, especially with this extraordinarily powerful, excopatory evidence judge, I've been doing this for 24 years, including five years of federal prosecutor. I have never seen lawyers conduct themselves in the way that these gentlemen, including with all respect, I know Mr. Cones known here in Philadelphia. I'm not from here and I'll be careful, but for a lawyer to say an outtake, I think judge Du Bois saw this as to material put in front of the attorney general of Ecuador. Well, if the time comes, we could make this go away. Judge, I've never seen that kind of stuff and it's recorded. Okay, but judge, what's the consequence? I don't want to lose my thread. If we don't prevail, I'll put them in here. That preliminary hearing happens. Not only do we go to trial and understand, well, you can defend a trial just like you would in this country. Judge, extradition proceedings can't proceed from there immediately. And that goes to what Judge Grahamburg was asking about. Yes, my client is in Miami, your honor. I say this with unfortunate personal knock. He is exiled. I'm Cuban American. I feel like he is in practical effect exiled from his country. I'm Cuban American and I say this with great personal understanding. He cannot return to his country without risk of his liberty because of the conduct of the folks represented by these counts. Now, but my point is if we were to lose at that preliminary hearing, and this is why I just want to say this is very important. That judge can enter an order starting extradition proceedings, which we'd have to defend in this country. We think we have good arguments. All that existed. I represent an individual whose liberty is at stake. Any semi-fiery rule. If the preliminary hearing is delayed indefinitely, I guess what we were told is it can be restarted on no notice. That doesn't make much sense. It has to be some notice. No, the answer is no notice, Judge. But I judge. But then what he didn't want to be there? Well, no, it can be the preliminary hearing. I mean, I mean, I mean, I guess counsel won't be there or somebody won't be there to hear what's going on to preliminary hearing. Oh, no, no, of course. I'm exaggerating the sense of course, it has to be a notice that permits defense counsel to appear a day, two days, whatever time. Going to that subject, because I judge Fisher, I hope I addressed. There are important consequences. Judge Ambrug. Yes, the preliminary hearing can proceed in absentia. The trial cannot. The preliminary hearing can proceed in absentia. The amount of notice is different immediately after the indictment. After the indictment under the Ecuadorian Code. This is in the declaration. It's like the United States is a preliminary hearing and it goes with grand jury. No, the honor is different. It turns the indictment. It has completely different. It's the continental system, Judge. You have a prosecutor's in fact, it's a specific information. Exactly. It's like a preliminary hearing on an information. That's what I would most compare it. That's exactly right. But it's not precisely like like our system, but it is a prosecutor's investigation that leads to a dictum in which is close to an information is how I would describe it. And then a point is on the timing. In the first instance within the judge within expiry to time has to give an order. Within expiry to time has to give an order that sets the hearing for 10 days thereafter. There is a regime of times for the initial setting on the normal case or council tells us this is not and this is not in the record. So I would just say what council tells me like happen this was continued once before from October or November to January 5th. They set the date in the order. This is a very unusual circumstance where there is an indefinite continuance not far in the future judge Greenberg. But as you asked before, but simply for an unknown date, whether that is a day a week a month, a year, a decade, I can't tell. I don't want to prolong because you all have listed the older, if all of the leaders of trial in the content now I think occasionally they now have jury trials. Is there a jury trial? No judge in the Latin American systems which are also from the Napoleonic code with the exception of as I understand it Brazil and a couple of other Brazilian capital cases in some other countries. Ecuador is moving towards an American system but has not adopted juries

. I represent an individual whose liberty is at stake. Any semi-fiery rule. If the preliminary hearing is delayed indefinitely, I guess what we were told is it can be restarted on no notice. That doesn't make much sense. It has to be some notice. No, the answer is no notice, Judge. But I judge. But then what he didn't want to be there? Well, no, it can be the preliminary hearing. I mean, I mean, I mean, I guess counsel won't be there or somebody won't be there to hear what's going on to preliminary hearing. Oh, no, no, of course. I'm exaggerating the sense of course, it has to be a notice that permits defense counsel to appear a day, two days, whatever time. Going to that subject, because I judge Fisher, I hope I addressed. There are important consequences. Judge Ambrug. Yes, the preliminary hearing can proceed in absentia. The trial cannot. The preliminary hearing can proceed in absentia. The amount of notice is different immediately after the indictment. After the indictment under the Ecuadorian Code. This is in the declaration. It's like the United States is a preliminary hearing and it goes with grand jury. No, the honor is different. It turns the indictment. It has completely different. It's the continental system, Judge. You have a prosecutor's in fact, it's a specific information. Exactly. It's like a preliminary hearing on an information. That's what I would most compare it. That's exactly right. But it's not precisely like like our system, but it is a prosecutor's investigation that leads to a dictum in which is close to an information is how I would describe it. And then a point is on the timing. In the first instance within the judge within expiry to time has to give an order. Within expiry to time has to give an order that sets the hearing for 10 days thereafter. There is a regime of times for the initial setting on the normal case or council tells us this is not and this is not in the record. So I would just say what council tells me like happen this was continued once before from October or November to January 5th. They set the date in the order. This is a very unusual circumstance where there is an indefinite continuance not far in the future judge Greenberg. But as you asked before, but simply for an unknown date, whether that is a day a week a month, a year, a decade, I can't tell. I don't want to prolong because you all have listed the older, if all of the leaders of trial in the content now I think occasionally they now have jury trials. Is there a jury trial? No judge in the Latin American systems which are also from the Napoleonic code with the exception of as I understand it Brazil and a couple of other Brazilian capital cases in some other countries. Ecuador is moving towards an American system but has not adopted juries. I do a fair amount of work in cases related to Ecuador. So, to jambrow the question is I know the core question is stay versus expedited appeal. I really return to the reason I'm making this perhaps not long when the argument is as a criminal defense lawyer for someone who could face extradition from a haven. I it is a risk. What are the chances of his being extradited? You are right. I wouldn't want to run that risk. Let me tell you my experience as to your traditions. You have a form of a hearing at state. Once it gets to office and international affairs and judge I've done this on the prosecution side and I'm defense side. You don't have a right to be heard at the office of international affairs in the Department of Justice. Once it gets to a US attorney's office even if I'm a respect for the prosecutor in the Southern District of Florida, I cannot go to the head of economic crimes at that office. They won't have discretion. I can go to a magistrate judge in Miami and ask for bond but I think you all know that's not that's extremely difficult. The defense is on an extradition at that point before a neutral magistrate become technical. I have extradinary evidence and I believe that Mr. Cone who says he wants to give it on a ruling from the court has more of it. We need it to defend very briefly and closing. My point is simply judge. You can understand from my perspective why it is an extraordinary risk. I understand the courts as judges how you need to try to organize this and I respect that and I'm running uphill in some senses because you've indicated as the timing in the rest. But I am very sincerely asking the court to consider these risks if the court does not wish to lift the stay and I am asking urgently to lift the stay. Even a timing I can add two weeks, two weeks and five days and that the time this court will take to rule something could happen. I know we could run back but there is no defined time. What you're saying is if you get these documents you can present them to the Ecuadorian court and you believe that this might assist in an argument that the case should not continue in Ecuador. That is correct. But when a dismissal of this thing is that is correct. You had the feeling of well maybe this comment would have been left unsaid. Judge I hope I hope my team is doing an outtake. I hope my I hope my telepathy is not working but I have certain fears. Is there anything else you were said? Briefly only judge that I want the court to bear in mind that Judge Kaplan, Judge Dubois, the second circuit and as recently as yesterday. The special master had asked these plaintiffs to stop their proceedings as to Chevron and also as to us. And with regard to Chevron they have never they have never been willing to stop anything to allow any court to do rational consideration. As I know is your preference of course you're going to consider rational the judicious time taking the time to do it. They have never been willing. In fact they asked for expedition after such requests as to Chevron as to us very briefly. This was asked of many courts of these plaintiffs and only at the 11th hour did they go through this supposed process that the Attorney General has to start the prosecutor general and then on December 29th. They come up with the excuse that they suddenly realize they have a trial on January 7th. They have not made it easy for us or for you to do this in a in a orderly way. And I ask you to take that into account when you consider I understand these principles of of of judicial decision making. But they I think are on their own patar at this point and I ask the court to lift this next. Thank you. Is there anyone else? Mr

. I do a fair amount of work in cases related to Ecuador. So, to jambrow the question is I know the core question is stay versus expedited appeal. I really return to the reason I'm making this perhaps not long when the argument is as a criminal defense lawyer for someone who could face extradition from a haven. I it is a risk. What are the chances of his being extradited? You are right. I wouldn't want to run that risk. Let me tell you my experience as to your traditions. You have a form of a hearing at state. Once it gets to office and international affairs and judge I've done this on the prosecution side and I'm defense side. You don't have a right to be heard at the office of international affairs in the Department of Justice. Once it gets to a US attorney's office even if I'm a respect for the prosecutor in the Southern District of Florida, I cannot go to the head of economic crimes at that office. They won't have discretion. I can go to a magistrate judge in Miami and ask for bond but I think you all know that's not that's extremely difficult. The defense is on an extradition at that point before a neutral magistrate become technical. I have extradinary evidence and I believe that Mr. Cone who says he wants to give it on a ruling from the court has more of it. We need it to defend very briefly and closing. My point is simply judge. You can understand from my perspective why it is an extraordinary risk. I understand the courts as judges how you need to try to organize this and I respect that and I'm running uphill in some senses because you've indicated as the timing in the rest. But I am very sincerely asking the court to consider these risks if the court does not wish to lift the stay and I am asking urgently to lift the stay. Even a timing I can add two weeks, two weeks and five days and that the time this court will take to rule something could happen. I know we could run back but there is no defined time. What you're saying is if you get these documents you can present them to the Ecuadorian court and you believe that this might assist in an argument that the case should not continue in Ecuador. That is correct. But when a dismissal of this thing is that is correct. You had the feeling of well maybe this comment would have been left unsaid. Judge I hope I hope my team is doing an outtake. I hope my I hope my telepathy is not working but I have certain fears. Is there anything else you were said? Briefly only judge that I want the court to bear in mind that Judge Kaplan, Judge Dubois, the second circuit and as recently as yesterday. The special master had asked these plaintiffs to stop their proceedings as to Chevron and also as to us. And with regard to Chevron they have never they have never been willing to stop anything to allow any court to do rational consideration. As I know is your preference of course you're going to consider rational the judicious time taking the time to do it. They have never been willing. In fact they asked for expedition after such requests as to Chevron as to us very briefly. This was asked of many courts of these plaintiffs and only at the 11th hour did they go through this supposed process that the Attorney General has to start the prosecutor general and then on December 29th. They come up with the excuse that they suddenly realize they have a trial on January 7th. They have not made it easy for us or for you to do this in a in a orderly way. And I ask you to take that into account when you consider I understand these principles of of of judicial decision making. But they I think are on their own patar at this point and I ask the court to lift this next. Thank you. Is there anyone else? Mr. Terrell, come back to you then. Thank you, Your Honor. I'll be brief and we very much appreciate all the time you've given to this. I will touch on only a couple of points first to answer judge Fisher's question about Van Buella. Those issues were never before any other courts. The decision in New York was based on a New York local court rule and a failure to timely submit a privilege log. That was the basis of the waiver, not the issue here. With respect to the DC circuits decision, it also had to do with a privilege log. This court is going to be making the first decision with respect to Van Buella or Westinghouse. I mean, go to the issue of it's at the core of this, I hope. What we've got is balancing certainty against uncertainty with substantial risk on both sides. The certainty is if you release this stay, Chevron will take all of these documents. I frankly chuckled when I listen to Mr. Master read my memos. He makes my point. He'll release all of these documents to the press and use them immediately. Will it be moot? You've asked the question. It won't be moot under the Supreme Court standard. The Supreme Court says maybe you can fashion a remedy that will try to fix it, but 90% of the damage will be done. What Chevron could gain by releasing the documents, you know, they make interesting reading to anybody who wants to read that. But what advantage it would gain in terms of the Ecuadorian litigation by releasing the documents to the American press? Well, Chevron has released everything to the American press so far. It's sophisticated public relations people have engendered stories because what's really at stake? They're afraid that a judgment will enter an Ecuador that their predecessor, Texaco, destroyed an area of the Ecuadorian Amazon, the size of Rhode Island. And they don't want that judgment enforceable in the United States. Why would we be releasing the documents to American newspapers? I remember years ago, I once had a case, I was an assistant attorney general. Somebody said, the television station, if you don't come one, you'll have problems because the side against the state is coming on. I said, and if the judge decides it on the basis of television, I'm out of luck, but I don't think he will. I mean, why does that have to do with anything? Chevron believes respectfully or they wouldn't be doing it consistently, that by claiming fraud, crime, and other things, they are so casting dispersions on the integrity of this case. And on the integrity of the Ecuadorian courts that no United States enforcement court will enforce that Ecuadorian law. You know, I tell you the side that we could go out on market street and I could stop a thousand people before I found anybody to do anything about the whole thing. That's the truth. I remember it because I learned that about litigation. Sometimes it's criminal defendant, thinks the whole world is looking at him and no one even knows about the case. No, I can't disagree with you. If I had, if I weren't in this case, I would know a thing about it. The whole thing. And you'd be happy? Yeah, no, I know, no, I know plenty. My wife says that I've reached an age where I don't remember tomorrow what I did yesterday, and so perhaps that's all. Let me just finish the single thing. Well, I never knew what to start with, and I never would start with. The certainty is that we will lose our privileges and the documents will be circulated. The uncertainty and speculation at this point, and what drove the other courts and doesn't exist now, is that whatever it means, the January 5 date is often definitely.

The record, this is in-ray application of Chevron Corporation number 10-4699. And purpose we're here today to deal with the motion, that motion and responses that were filed just prior to Christmas. I understand that what we'll have is Council for the plaintiffs first. Is that Mr. Terrell? Yes, sir. And then we'll have Council for the for Chevron and Mr. Vinegard? Yes, Your Honor, Mr. Master. Okay, Master. Okay, got you. And Alan Vinegrat from Mr. Daga. Okay. And Dr. Scrogero from Mr. Perez Plans. Okay. Why don't we, there's no time set, so we're just going to deal with it in order to get the issues out of the way. So why don't you begin, Mr. Terrell? May I please the court for the record? My name is James Terrell from the firm of Patent Boggs, and I argue today on behalf of the Lago Agriro plaintiffs. It is important to understand the context in which we ask this court to maintain in place the stay that was entered before Christmas. As a result of the district court's order, all what's the status of what was to have occurred today has been postponed. Post-poned indefinitely. And that relates to Mr. Polaris, Mr. Vega? Yes, Your Honor. And definitely, so it's not postponed to the seventh. I have to say it's postponed indefinitely. There is no new date. Can you say indefinitely, indefinitely can mean like somebody, that's in, you know, can mean like far in the future, what can mean simply mean, well, the date hasn't been set, you know, so it's indefinite. And I don't know the answer. What's that? I don't know the answer, Your Honor. We do not have. You don't know what to win. It could be soon, could be later. That's correct, Your Honor. I don't know the answer. It was adjourned. I think, by way of full answer to your question, in the proceedings in New York, my clients were asked to publicly state which we did that we had no opposition whatsoever to the adjournment of the criminal proceedings, respecting the individuals. The Republic of Ecuador went to its client, the Attorney General of Ecuador, and asked if the Attorney General would go to the prosecutor general who under Ecuadorian procedures, the chief prosecutor, and decides the schedules and requests that an adjournment take place. They don't know what happened in the interim. We only know that the hearing was canceled and that there is no new hearing. Coming back to context, if I may. So is that a reason that what you're saying there is the any purported need for urgency doesn't exist as much as the other side claims? Is that we will certainly argue that, Your Honor. Certainly, there is time for the district court to do what we believe it should have done. A careful review of the lengthy privilege log to determine whether or not there should be subject matter waiver as to every single document on that log. That is what I would argue. How many? I'm sorry. How many? I have not prepared or know the privilege log, but the privilege log has 833 pages. If you assume there's 20 or 25 entries per page, it's in the thousands. Well, I'm going to my original appointment to the federal court was to the court of appeals. Back to context. As a consequence of the district court's decision, all privileged documents of all attorneys who have worked on this matter, who are in the past, currently and indeed in the future, have to be overturned over to Chevron. By way of contrast, Chevron is under no obligation, not withstanding believe them or not, the charges made against its employees to turn over any of its privileged material whatsoever. This occurs at a time 17 years into a legal battle when the court and Ecuador sometime in 2011 is expected to render a final decision. Why does it happen? It happens because the district court concludes that Mr. Cohen's a very well-known lawyer from Philadelphia, that his brief appearance in a documentary film resulted in a total subject matter waiver of all of my clients, not Mr. Cohen's, my clients privileges over a 17-year period. The district court reaches- I was lucky was that appearance. You said there are five excerpts that are referred to. I haven't seen the film of the outtakes. It's in the outtakes, as my understanding it. There may be something in the film I'm not positive. If it's in the film, it's extraordinarily brief, and the outtakes, the only five, five I haven't read. I would say, you know, minutes, we're talking minutes, not hours. But how many outtakes? Five were referred to in the district court's opinion. All right. The district court, I submit, reaches this conclusion without any evidence that a single privileged document was submitted to or used in the judicial proceeding, in Ecuador, therefore impossible to create an intra-judicial effect. And I'm going to focus on that in my argument. I submit to you in the broader context that section 1782, which is a limited device to gain discovery to aid in a foreign proceeding, was never intended to allow federal courts to tip the scales of justice in favor of American defendants in foreign courts, especially when that American defendant rejected an American court in the southern district of New York, and specifically asked after nine years of foreign non-convainants litigation to have its case heard in Ecuador. The thing that's going on here is, I mean, you've got a very experienced, bright, savvy street smart district judge, and something has caused him to say, look, this is so blatant. And I looked at some of the things that, you know, he's referring to the meeting in the offices of KSG, where Cone and Donzinger and other attorneys from the Logo Aguio Planets discussed the financing of the litigation, a meeting at which they discussed the Cabrera report, and it goes on and on. And I guess he ultimately came to the conclusion, this is just a total waiver. I mean, turning client privilege is you don't talk with third parties, and here you got stuff where people are filming. What would ordinarily be considered to be privileged? It is my understanding that I realize I'm touching on the merits. No, no, but that, that, I'm just trying to figure out why, I mean, this is not a judge who flies by the seat of his pants, nor at all, and very careful. And in this case, he thought he had just seen enough. The context in which he made this decision is one that I'm not happy about, but it's there. There's 17 different federal courts in this country that have been asked by Chevron to deal with these issues. Some have gone one way, some have gone another way. Some have decided maybe there's a basis for crime fraud. We'll talk about that later. Some have said there's no basis for crime fraud. Judge Kaplan in the Southern District of New York has been most vocal. He was shocked and dismayed by Mr. Donziger, not Mr. Cohen, Mr. Donziger's level of appearance. And frankly, the things that he said that trained as a defense lawyer all my life, I would never have said. And he was shocked by that. And to some extent, he was also faced. Well, the New York Times, he poured it on some of those. Absolutely. And he was faced with a January 5 deadline, urged by the criminal plaintiffs who said their lives were in jeopardy. And he was faced between two very tough choices. One choice was go through the normal procedure that you should go through to analyze whether there was really waiver or whether subject matter waivers should occur. But that would be very time consuming with 15, 17 years of documents numbering more than 50,000 or decide what was decided there. I think our judge here was affected by the same thing. He looked at these outtakes. He said, no lawyer should be doing this. This is not what lawyers do. Privileges are something that sacrosanct and that's maintained. What I suggest that maybe he overlooks is that this is the first time I've ever lived in this world. Okay. I'm not a cause lawyer. I don't go into jungles. Most recent six years has been spent as chief counsel for the city of New York on all 9-11 cases before Judge Ellers came. But it's a different world for people who fight someone like Chevron, who have to go into the jungles who have to drive public opinion as well to bring pressure. And my reading of the most recent decisions of our ethics authorities say that's part of the responsibility. I'm not saying how he did it, but you have an obligation to represent your client, including getting his story out there. Now, I think this judge who I think is, I don't know him well, but everything I know about him is careful, was led to make some fundamental errors that I will discuss because he was appalled at the extent to which Mr. Donziger and to a much lesser extent, Mr. Cohen said ridiculous things in these outtakes and allowed this crude document. So, I think it's a very important thing to do in this country to come and follow him around for years. You pose this case as if the application made here is only in connection with the pending criminal charges against the two Chevron attorneys in Ecuador. But I thought they also wanted to document with respect to the damages assessed by the Crabberra. They want all three and the bit arbitration and I'm going to talk about all three. No, but the timing was most tight on the criminal cases. And what drove, because I argued this before the second circuit, and if you read the second circuit's opinion, they were disturbed. Okay, they had to look at a judge who also is, is as a reputation for being a good jurist and very careful and look at my argument, which essentially said, I've now been brought in, filed my first notice of appearance in November, to do two things. To try to see that a judgment that will command international respect is in Ecuador is entered in Ecuador. If I have to try to work to clean anything up, I'm going to try to do it. And then if that judgment is rendered in favor of my clients, to try to seek international enforcement, because in the intervening 17 years Chevron has stripped Ecuador of its assets. It is in that context that it's taken its assets out of Ecuador. It's made itself judgment-proof. It's taken its own assets. It sounded like you were saying that they stripped the country of the country's assets, which is something that they blew town. They blew town with their money. Exactly. In the end, if we were to continue to stay, how expedited could we make this? It's expedited as you want it to be made. I mean, it'll take a couple of weeks to write the merits brief, but I don't think anything more than that. And it would be in parry material in what you decided in admittedly a different issue. But in the case that arose from I believe the District of New Jersey that's also before this panel, which in which you have said a schedule, it's now I believe under consideration by the panel. But you allowed a couple of weeks from merits briefs to occur. If something happens in the interim now, and that criminal proceeding gets reset, I am sure my friends from Chevron will be quickly back here to suggest that you alter this schedule. And candidly, I won't oppose that. But to allow a couple of weeks for this merits briefing to take place before all of the rest of the documents are turned over to Chevron. And most importantly, and I will be asking this court that if you allow the state to continue, you specifically direct that Chevron is not to continue to take these documents that it already has and turn them over to the press and do other things with them. It should stay. The stay means the stay. And we're looking for a couple of weeks to be able to argue on the merits. If I may turn to the merits, because I think that while the court has tried to do the right thing, it is committed to obvious errors of law, which of course are reviewed denovo by this court and three exercises of what I would suggest are abuse of discretion. The first error on the merits, I'm not. That's my colleagues want to. I'm not sure that I need to get into the merits for today, but I'm only concerned about it because I need to show you that I have a substantial prospect of winning on the merits. Now, I know it's a sliding scale. The greater my prejudice, which I suggest is terribly great if my clients are going to lose absolutely all their privileges now and into the future, may not require much demonstration with respect to the with respect to prevailing as a matter of law. But the short answer is and I won't elaborate all of them. The district court failed to take cognizance of the distinction recognized by this court, the first circuit, the second circuit, that public disclosure of privileged information matters whether it is intra judicial in the proceeding and affects the fairness to the determination of the truth process or extra judicial like a press release or a movie. This was extra judicial and those courts cited in my brief uniformly hold that where it's an extra judicial disclosure of privileged information, you have to operate with a scalpel and not a chainsaw, which is what the court did by declaring subject matter waiver. You need to look at what was waived, you need to fairly decide the documents that therefore should also be waived, but everything does not automatically become waived. For example, I've said to you, my mission now is to provide advice on issues of international judgment enforcement. That's one of my responsibilities. I've just come into the case. Why should my advice memorandum were they to appear in Mr. Donziger or Mr. Cohen's file to my clients hired to be sure that a judgment with integrity is entered before fitted by the happenstance that there's this respectfully overly broad decision by the district court in Philadelphia? The second piece of that error related is that in this court's decision in Westinghouse versus the Republic of the Philippines, the court said that there should be a careful analysis of balancing as to exactly what needs to be disclosed. This court said, the district court said, that doesn't have to happen here. I'm rejecting it. I'm not doing it at all because of the sort of gross nature of the waiver. We've searched for every case since this court's decision in Westinghouse and could find no rule of the gross nature of the waiver. Sui generous decided by the district court that excuses the district court from performing the analysis that this court requires under Westinghouse. By way of abuse of discretion, I'll simply touch on it. The subpoena should have been limited in scope. The court said it would and then in its opinion, it didn't. It said, I'll only require everything having to do with the Ecuadorian litigation, nine years of work, not the New York litigation, but then it's used the term related. Now understand the practicality here. Mr. Cohen, who has been counseled to the plaintiffs for a long time, but had his severance with the plaintiffs, an issue I don't need to go into, he's not opposing turning these documents over. What do you make of that? In other words, apparently nothing in those documents were I read that. I thought I guess nothing in those documents were. No, what I think it is is the following. Mr. Donziger and Mr. Cohen have had a falling out. Mr. Cohen did not approve of Mr. Donziger's doing this film, maybe for very good reason. Mr. Cohen is interested in showing the world he had little to no part in it. So he's interested in basically showing he's got clean skirts in the affair. And while he's doing the right thing by saying, let new counsel for the Lago Agrioplane have argued their privileges, he's doing nothing to defend their privileges. And the net effect of that is when you look at the order that the district court entered that says related to. And when you figure out who's going to make the call as to what's turned over based on related to, there's going to be a very generous turnover of documents. I suggest to you virtually everything. The last privilege, the last abuse of discretion issue and it is troubling to me. I it's troubling to me. My partner argued this before the district court before Christmas and asked for a brief period of time for a stay to take this matter to this court. He asked for a couple of weeks denied a week denied a day denied a minute denied. And the court was quite clear in what it then said. The court said in the transcript, I do not know whether an appeal of disorder will be taken and I'd like to do what I can to eliminate the appeal. He then threatened that if we had the audacity to appeal, he would go to the question of crime fraud. And he concluded by saying, if it is perceived as an attempt to chill and appeal, yes, that's exactly what I have in mind. Respectfully, this is a judge who felt very strongly about these issues, but it is not the province of a district judge to admit on the record that he's trying to chill a party's appeal. I thought that too, but then I thought, you know, what a court may do as a trial court why was a state trial judge is that sometimes the judge will say, I'm not writing on that issue because it's not necessary to write on that issue in view of the disposition I'm making. But if there's an appeal, there's something else that I would have said that would support the result that I reached and then I'll get involved in it. And that if he had maybe put it more diplomatic, it would have sounded better. Difference in degree, difference in kind. There's no doubt your address, right? It's perfectly appropriate to say, I don't need to reach this question now, but this wasn't said in that tone. And the transcript even without the tone speaks for itself. I want these documents turned over now. I want to discourage you from your appeal right. When you marry that up with the failure to do the things that I had just outlined, you become very concerned bluntly that justice was not done in this case in Philadelphia. Why don't we hear from, let's see if my two versions are. Thank you very much for your time, Your Honor. Mr. Rivera first. Master, sorry, I'm sorry. Thank you, Your Honor. It's pleasure to appear before you again. Your Honor, let me come right to the heart of the matter because why did this, as Your Honor put, that street smart district court judge find such a sweeping waiver because what happened with the filming of crude. Several hundred hours of filmmakers following around plaintiffs council, Stephen Donziger, who was the star of the movie, who solicited the film, who invited the filmmakers in. He was working for the cone firm being paid by the cone firm at the time and Joe Cone on multiple hours of time. And that may be an exceptionally good argument on the merits, but at this point, we're trying, do we get to the merits because if we lift the stay in effect, the case is moved. Well, Your Honor, I'm glad you asked that because this is like a replay of what just happened in the second circuit. It was Mr. Tarell against Mr. Mastro and the second circuit rejected the stay outright. It praised Judge Capon for how he'd handled the case and it said as to Stephen Donziger, the ringleader here, who was working for the cone firm at the time being paid by the cone firm, that he had had a blanket waiver and there was going to be. What November 24th or what when did it come out? That Judge Capon's decisions were in October and November timeframe. The second circuit denied a stay when Judge Capon ruled at the end of November that there'd been a blanket waiver by Mr. Donziger. Second circuit denied a stay, the interim stay. Then we appeared before a full panel and the panel denied the stay then. We had an expedited appeal on the merits because Mr. Tarell and his colleagues argued at the time, even though we don't have a stay and even though everything has been produced, you could still maybe subsequently water relief. If we do grant a stay here and we expedite it like two weeks, two weeks, five days. Here's the problem, Your Honor. First of all, we don't come here on a clean slate. There have now been four circuits that have addressed exactly these same issues in every one of those instances. The second circuit, multiple times, the DC circuit, the fifth circuit, the ninth circuit. They rejected stays, they rejected their position on the merits and two of them were lawyers. I can use it about this. When you say the same issue, you're not defining that as meaning the movie issue. You mean other aspects? Yes, Your Honor. You could say we had the same issue. Correct, Your Honor. I am saying, Your Honor, that in those other circuits and either involved an expert of theirs as to whom they claimed there was privilege or it involved attorneys on the case. DC Circuit was Mr. Rye. Second circuit was Mr. Donziger. And Mr. Donziger was found to have had a blanket waiver. And there was no stay put in place by any court. I suggest to Your Honor it's the following because I don't think we can sit here and wipe our minds clean of the first appeal, if I can call it that. I believe you are. I mean, we appreciate. We're aware of what we saw there. Appreciate Your Honor bringing that up because that was then one of the very first 1782s when there were no crude outtakes when there was no Donziger testimony and disclosure of his documents when they we had yet to establish that stratus plaintiffs experts had ghost written the cabrera report. We filed in UBR. I think Judge Chester got it absolutely right that when it came out in that proceeding that the same expert was both the plaintiffs expert and working for the court appointed expert at the same time that that was a blanket waiver and crime fraud. There was a stay there, but that was then this is now. We were in the dark then because they fought so hard to keep us in the dark. Now the light has been shown on this massive thought. If we have the outtakes, if they stay with an expedited briefing schedule is granted, what is the harm? I'm going to explain it as clearly as I can, Your Honor. Because it's not just that the sort of democlases over the heads of the two individual Chevron attorneys. But what was just even there that you have an indefinite postponement of what a preliminary hearing that was initially to be held today, correct? Your Honor's Chevron now has the sort of democlase over a tent. In Ecuador, the court there in mid-December, December 17th issued what's called the autos. The autos is a summoning of the parties that we're going to go to final judgment now. It's your last chance to make your closing argument and writing something that the parties are doing this very weak. And that court, we moved to give us more time. The court denied that motion. But we're not responsible for you being in Ecuador. I mean, you could have been in the Southern District of New York, right? Oh, but Your Honor, that's not really what's going on in Ecuador. How does that affect what we do here? Absolutely, it affects it, Your Honor, because there's a lot of that. How does it affect what we do here? Because that's why we want the discovery. We need it now. They're going to the final judgment stage in Ecuador. That's what the court has told us. You don't have to take my word for it. Mr. Tarell's firm, and I think he said he was, you know, just come into the case. They've been working on the case for months. But you've already got documents from the second, in the second circuit case, right? You've got it from Mr. Donziger. We've got it from Mr. Donziger, but here's the difference between Mr. Donziger and Mr. Cohn. Mr. Donziger is still a part of the cover-up and the fraud fighting at every turn to try and prevent the truth from coming out. Mr. Cohn has said very openly, and we take him at his word, that he wants to tell what happened. He's in fact accused Mr. Donziger and the rest of the places to be. That's not his decision to make. Well, Your Honor, I would submit this to you. I would submit this to you, that in the case of Mr. Cohn, his attorneys have forthrightly said to Judge Du Bois that they don't disagree that there's been a crime fraud here. They don't disagree that we should be entitled to this discovery. They want to produce it. I agree with you. It's not his decision alone, but I would say this to you. We are facing imminent judgment in Ecuador. Don't take my word for it. A memo they wrote in the late summer. Their words, not my words, it's the patent bog's firm describing what steps they're going to take next. They said that this outtose order, this is how they described it. They said, quote, shortly before judgment, end quote, the Ecuadorian judge will issue an outtose, and that that is the judge literally demanding the evidence that brought to him for final judgment. I noticed that court is referred to as the Supreme Court. Is that in the sense that the trial level court of the highest jurisdiction in New York is the Supreme Court? In other words, there are a court of appeals. There is, Your Honor, but in the same memo, patent bog's plotting, its enforcement strategy. And this is the key. As Judge Kaplan and the Second Circuit have recognized, we're in a race. They're trying to slow down our discovery, so we get the evidence to the BIT panel and Ecuadorian court to get their judgment in place so that they can then try and enforce it. I thought you were at this issue was about getting the con material for the criminal prosecution of Polaris and Vega. I think that's what the Polarianry are hearing to be held. That's what this is all about. How does this affect Chevron? Because the judgment could literally be entered today. How does that affect the criminal proceeding? But Your Honor, it's not just about the criminal proceeding. They have an application, and Chevron has a 17.82 application, and Judge Du Bois granted it as to both, and found that both will be prejudiced if we don't get the discovery. How does Joe Kohn's notes help you in the Chevron case? They absolutely do, Your Honor, for the reasons that Judge Greenberg pointed out. We're trying to show that these multi-billion-dollar court expert findings, assessments, damage estimates, are bogus. They're a part of a fraud. They were ghost-twritten by the plaintiffs themselves, and we need to put that before the Ecuadorian court to try and prevent it from that. That's what you just wanted for. For the Council for Polaris Envega, we're pointing to the criminal trial. The criminal preliminary hearing, which is scheduled to be held. We both have an urgent need, and I have to say Judge Kaplan recognized that both the individuals and Chevron have this urgent need, because judgment could be entered against us at any point, and they will run around the world, literally Mr. Donzakus words, to wreak havoc on us by trying to enforce that judgment in Venezuela, and Angola, and Nigeria, all around the world. You know, you can understand we're not familiar with Ecuadorian court. The United States has sued all these and pos2 aspects, the liability and the damages. And when you read this, I'm not sure what has liability been established, or we now just determined damage. No, Your Honor, the Ecuadorian court will issue, and now having issued this outtos that they say- No, it's because they know, of course. Yes, they could, a judgment is going to occur. The judgment will establish both liability and damages. Once that judgment is entered, and the court, their words by entering the outtos is saying that, you know, shortly before judgment, now's the time. We're going to have judgment now. That court condition with judgment at any moment, and Your Honor asked the right question, which is, well, what happens when the trial court enters judgment? Is there an appellate process in Ecuador, and that court is the trial court? In connection with the answer. The answer is, yes, there is, but again, the patent bogs firm and its own internal memo from the summer tells us that that will not substantially delay enforcement. And indeed, it lays out a strategy for pre-judgment attachments around the world in venues outside the United States to try and wreak havoc on Chevron and forces. What happened with the race? What's the status of the United? I never even heard of that law to tell you the truth until I read this case, about the other case, you know, the one you already had first. What's the status of that case, the arbitration? The arbitration is progressing, and we have application. It means Your Honor, it's progressed past the jurisdictional motion stage, and we're in the merit stage. We have an application literally for emergency relief there that they shouldn't be permitted until that panel has had a chance to hear the case. Who are the arbitrators? There are three very distinguished one-former judge, two very famous lawyers in the international community. It's a very distinguished panel, and here is another thing that you need to know about that case. We have sought the provisional remedy that they shouldn't be, Ecuador should be told that they shouldn't be trying to enforce the judgment until that panel can act. But I have the authority to it. But the Ecuadorian plaintiffs are not a party to the arbitration proceeding. Correct, Your Honor, although the evidence is overwhelming of the collusion between the two in trying to, with the Republic of Ecuador's case, impose its own mediation obligations and indemnification obligations on to Chevron through the private plaintiffs. But Your Honor, there we seek the relief that the Republic of Ecuador should be required to take steps to delay attempts to enforce the court's judgment until that panel has been approved. And I will tell you that the arbitration panel can be heard. Now that arbitration panel is very important. Because of what's happened, the autos issuing final judgment imminent, that arbitration panel very distinguished, wrote to the judge in Ecuador a month ago and said, please tell us, give us some estimate of when you're going to enter a judgment. And he has refused to respond, nothing. Is there a new judge in Ecuador? There absolutely has been a new judge appointed. You're out of the last judge. There was a disqualification motion and he had to, he was kicked off the case. Are the arbitrators what country are they from? Your Honor, I can get to the specific countries. I know that one of them is from England. They're all renowned international... International panel. And this is not an American panel. It is not. It's an international bit treaty arbitration under the unsatrial rules, Your Honor. And one that's done by international treaty between the United States and Ecuador. But we need this evidence, both there. Mr. Master, let me ask you this. Please. And this sort of gets to the merits. But it's an issue that concerns me. The issue is the waiver of the attorney client privilege here by virtue of the, the at takes from the crude documentary. Yes, Your Honor. And you talked about the Second Circuit's decision. The Second Circuit decision involved Don Ziggers. No, it's correct. Yes, Your Honor. All right. And how did the Second Circuit treat the decision of that circuit in the class fund Burelok is? Well, Your Honor... Because what I'm concerned about here is the breadth of the waiver. I'm pleased that Your Honor asked about the merits because it is an element of the state. So let me address... It's an element of the state. Because they have to show substantial likelihood on the merits. Now, Your Honor asks about how they dealt with the Von Burelok case. In fact, the way that Judge Kaplan and the Second Circuit addressed it in Don Ziggers case, Don Ziggers had committed a waiver because of his, you know, delay tactics and not producing a privilege log. Judge Kaplan had found that he had substantially waived already. And then, because he was dilatory when he was ordered to produce forthwith, which in the Southern District requires a privilege log at the same time, and didn't do that, that he'd had a blanket waiver. He had a substantial waiver already, and then he had a blanket. So the facts there were somewhat different. Correct. But let me explain Von Burelok and Westinghouse. How would you distinguish Von Burelok if... Completely for us. Yes, I'm pleased Your Honor asked. Von Burelok is distinguishable for the following reason. What the Second Circuit said there, and what this circuit recognized in Westinghouse, and what Judge Ambrow recognized in Teleglow, is that there's nothing unusual about an extrajudicial waiver. When that waiver, though, is intentional and causes prejudice or unfairness or was done to advantage one's litigation position so that you are using the privilege invocations as both a sword and a shield under those circumstances, that the only fair thing to do is to recognize that there's been a broader waiver. Let me give you the exact language from Von Burelok. The extra- quote, the extrajudicial disclosure of an attorney-client conversation, one not subsequently used by the client to his adversaries prejudice, does not waive privilege more broadly. In Von Burelok, the issue was someone after trial, Von Burelok, he'd already won the trial. He clearly wasn't allowing his lawyer to put those things in the book to try and gain any kind of litigation advantage. And then subsequently, Von Burelok got sued by family members, including his wife, over the torts that had been committed, she was in a coma at the time. So the court concluded a blanket waiver under those circumstances would have been unfair. He wasn't doing it. He wasn't waiving for some kind of litigation advantage. Here, Judge DeBoys found exactly right, and it's an abuse of discretion standard. He said this was done for tactical litigation reasons. It was a concerted public relation strategy to try and force Chevron to settle or to influence the outcome of the litigation, intentional his words. And this is what Judge DeBoys held, absolutely consistent with Von Burelok, and what this court said in Westinghouse, that unless the partial waiver would be unfair to the party's adversary. That's exactly what Judge DeBoys found. It would be unfair to us because of their intentional waiver to try to influence the outcome of the case and to force Chevron to settle through a film that was going to give a one-sided version that didn't reveal the Cabrera fraud, that didn't reveal all the other frauds that have gone on here and the threats and intimidations and judges. But it was designed to prejudice us in the case and to force us to settle that it's unfair for them to say, I'm going to allow filmmakers to film me for hundreds of hours. I'm going to solicit the film and have them do that. The most intimate strategy sessions about legal strategy, about settlement strategy, about their experts and what happened with Cabrera and to not say that that is a blanket waiver. Judge DeBoys had it exactly right when he wrote, this is a truly exceptional scope of waiver. Quote, given that these disclosures were intentional and covered the entire scope of the ongoing LEGO Agria litigation. Did he look at all the Aztecs? He had dozens of Aztecs with him, you're on it. He didn't look at all 500 hours. Okay. How many hours did he look at? Well, he looked at dozens of Aztecs. How many hours did he look at? They were several hours of Aztecs. How many hours did you estimate he looked at? I would be estimating, Your Honor. I mean, I would be guessing, but it's more than an hour, it's probably less than 10. It was the highlights. It was the highlights, but there were dozens of 500 hours. And Your Honor, those Aztecs showed private meetings in Mr. Cohn's office where they were discussing some of them where Mr. Cohn's office. But Your Honor, it's not limited to what was in Mr. Cohn's office. Mr. Donziger was on the vast majority of the Aztecs and in the vast majority of the film. And he was literally working for and being paid by the Cohn law firm during this period of time. So what Mr. Cohn said in the Aztecs and what Mr. Donziger said in the Aztecs, they're all part of the body of deciding whether there was a waiver. And Your Honor, the things that are on those Aztecs, the dozens of Aztecs that Judge Du Bois saw and spent the time to review and gave you side hours of argument on those Aztecs. Mr. Donziger, saying that maybe a judge won't be killed, but if you think he will, that's good. Threatening to close down the courthouse, shut down any presentation that the judge has viewed the documentary? Apparently not, Your Honor, but they have influenced the judge. Well, Your Honor, I think the evidence that they've influenced the judge on the case now is they demanded that he go to the judge stage and issue the outtos. Two days later, he issues the outtos. This is mid-December, then he rejects our motion and literally judgment could be entered any day now. And Your Honor, on those Aztecs, but Your Honor, it's not a question of argument. I like them speak for themselves. I don't ask you to trust me. I use his words. This is a case where the other side in the race wants the delay us on discovery at every phase and wants to speed up the judgment and echo. Have the Donziger documents that have been given to you to date been used in connection with any aspect of the Ecuadorian proceedings? Absolutely, Your Honor, and in the bid arbitration. And we believe that what Mr. Cohen, but we have also explained, as has Judge Kaplan. Is that in connection with the film crew? Isn't it on to Donziger? Outtakes far more important to you than anything else? Your Honor, they're extraordinarily important because they reveal the wholesale waiver and fraud that is gone on here. And that's what every court that has viewed them has found. It appears that they're the big enchilada. So why is it that you want us to decide this minute in effect the merits of this case relating to Mr. Cohen? Well, actually, Your Honor, the crewed outtakes are extremely important evidence that should convince you that they have no likelihood of sincere action. And you may be right, but why do you want us to decide in effect is if we live for stay, as I said before, in effect what it's doing is it's mooding the cases, isn't it? Your Honor, you are rewarding an intentional course in delay and judgment. I'm not trying to bring a value judgment on it. If we live for stay, is it mooding the appeal? So, Your Honor, they told the second circuit on Donziger even after they lost a stay motion, both interim and full panel, that it didn't move their appeal, that this court could expedite the appeal. And if the court found otherwise, then you could issue appropriate orders that wherever we'd use the documents, we should try and retrieve them and give them back. What would you expect the documents to do in the best, if they really, really want you wanted, that they would be the smoking gun and you could present these to them? Yes, Your Honor. And to the court, hey, this is a whole thing as a whole. And to the bit panel, Your Honor, where we're trying to get orders against the Republic of Ecuador, slowing the enforcement train once a judgment is entered, so we have an opportunity to challenge. But can you use Section 1782 to get the discovery for the bit panel? Absolutely, Your Honor. Yes, and that's what every court in this country has found that's been asked to address that issue, including the second circuit. Because the bit panel is an international treaty arbitration under unsit, trial rules by treaty compact between the US and the US. It was not, they didn't raise it, well, they've lost it so often, collateral stop will eventually come into play. But if I can just respond to Your Honor's question, yes, the crude outtake sir extremely valuable. Yes, the discovery we've gotten from Mr. Donziger has been extremely valuable, lowies fighting tooth and nail, not to admit it in his deposition. But Mr. Cohen, and I have to make this distinction, Mr. Donziger hasn't produced everything. Mr. Cohen has already before the stay was put in place, and we haven't used his documents anywhere, Your Honor, no matter what Mr. Tarell said. Mr. Cohen's documents, once the stay was entered, we have not submitted them anywhere, we're waiting for this court. But Mr. Donziger, in fact, even though he's been on the case for 70 years, produced fewer documents, even with his complete privilege. If the Cohen documents are as important as you say they are, and we're willing to expedite the matter, beyond what we normally do and expedite it significantly, why is it that you don't even want us to do that? Your Honor, it's for the simple reason that literally any day the court in Ecuador could enter a judgment, and then we will have lost that opportunity to have that evidence when Mr. Cohen says, and he said it in correspondence with Mr. Donziger that Donziger had to produce. Mr. Donziger, I don't want to tell you that there's a fraud going on here, and I want to tell my side. I don't read that in the document you submitted yesterday. The court allowed time for additional briefs. I mean, this case has gone on for nine years. You're trying to make us believe that the decision is going to be made overnight when the court clearly said in that document that they were allowing for additional briefing. I'm sorry, which I don't want the documents we got yesterday from the clerk. It was submitted by I believe it was submitted on December 29th. Okay, and I'm not sure which well I'll find it here. I appreciate your honor. I appreciate your honor because is there anything else you want to add before we hear from anyone else? I really want to explain your honor that as Judge Kaplan, who's lived with this case the longest he did both the crude outtakes and Donziger as the second circuit which is reviewed both have recognized. This is not a situation where the delay tactics on the discovery, the appeals, the stays, the limited productions have been done for any other reason than tactical to prevent the information from coming out before Ecuador enters a judgment. They've now succeeded in getting us to the judgment stage in Ecuador and that could happen any day. Okay, here it is since you're saying you submitted it on December 30th. Yes, Your Honor. And the document from that's with the translation from the Ecuador in court, which says that it is what you says it say it is, but the last sentence says the parties may submit their legal briefs and defense of their interests. Oh, yes, that's exactly right. You're right. That's what I that doesn't sound to me. Like something's going to happen over your honor. I mentioned that. How do you submit briefs quickly because you've gotten a lot quickly from all of you, Your Honor. I mentioned that earlier. When the court in Ecuador denied last week our motion to revoke that order, we literally have had a week to put in our final papers. They're called the alugato and we are putting that in if not today or tomorrow. So that's that's happening. You don't you only have a matter of days. Again, don't take my word for it. In the patent box memo from the summer, they say you have a short time to put in that final brief. We're putting it in today or tomorrow. And that's the maximum time you have. You have literally a week. I'll take your word for it. And Your Honor, I just want to be crystal clear about it because Judge Kaplan and the second circuit denied stays repeatedly because as they found. And we put the documents before Judge Du Bois exhibits 87 through 89. The pattern of appealing, seeking stays, giving only a little bit of the discovery. So we had to go back into compel. This is what's happening in Donzegar's case. That pattern has been one orchestrated by the plaintiffs. Again, counsel, don't take it from me. Take it from their own words. I urge you to read exhibits 87 and 89 where Mr. Terrell's colleague specifically wrote in the context of one of these earlier 1782s. This is what he wrote in May 2010. And months ago, Mr. Terrell didn't just come on the case. His firm has been on it for months. Quote, what about the following as a strategy? Appeal, move for stay. If we win, great. If we lose, we produce whatever we want. Now a weed, Gibson done complains. And then we move for clarification. If we lose again, we think about another appeal to which Mr. Donzegar responds, I like the approach. I like this approach. That's what they've been doing with every court. And in the second circuit and before Judge Kaplan, he said enough. He said their arguments were not entirely in good faith. Not just Donzegar, the plaintiffs lawyers. The second circuit said, no stay. They lived with this case. The gun is to our head. We're in the last lap. The Ecuadorian court can enter a judgment any day. And it's a potential $113 billion judgment. And then they're going to run around the world to enforce it. Why don't we hear from them? Why don't we hear from one of the other counsels? Thank you very much. Thank you. I really, really appreciate it. May I please the court? I'm Alan Vingrad from coming to an enrolling and I represent Ricardo Vega. I want to get right to the point that I think was on the minds of all three of your honors based on the questions I've heard, which is the timing issue, which goes to the injury to Mr. Vega. If the stay is continued, one of the four factors under the four factors stay test. The preliminary hearing in Ecuador in the criminal case has already been scheduled twice. And the latest postponement is I think we made clear in our submissions to this court. It was based on what the prosecutor down there said was a scheduling conflict between this case, which was scheduled for today and another case in which he had to appear in court on Friday. So as far as we know and having consulted with our Ecuadorian Council, the preliminary hearing can be rescheduled at any time. There is no minimum prior notice period required under the law as there was for the initial scheduling of the hearing. And given the reason for the requested postponement, one would think that the postponement would be temporary. I don't know when your honors, but there's certainly not putting it past the realm of reality that in a few days from now, there will be a notice, say next Monday saying we're going to have the hearing next Thursday or Friday, the 13th of the 14th. So that recognizing your honors concern about the truncating of the discussion of the merits into the stay litigation. If that hearing is rescheduled and that type of timeframe or anything close to it, even an expedited briefing, the schedule of the type that your honor, Judge Ambre, has suggested, which would put even expedited briefing into February to be followed by argument and then whatever time would be required for the squirt to make a decision. It won't be quick enough for the applicants to use whatever evidence that it certainly appears that is going to be very significant in the agreement. In obviously we're not familiar with Ecuadorian procedures, but in this country, defendants don't normally prefer any evidence at a preliminary hearing. And as I understand what was scheduled for today, it was that kind of a preliminary forum. How does Ecuadorian process differ from ours that your clients wouldn't be able to use this information from Mr. Cones files at a later time at the case in chief? Well, we're not saying that it could not be used at a trial. What we are saying, and this is unrebutted through the Declaration of Ecuadorian Council, which was tender to the district court in this proceeding. The preliminary hearing is the only opportunity that Mr. Vega and Mr. Poyatus will have before trial to present either legal arguments or evidentiary arguments in support of the dismissal of the charges. And it is certainly our intention. Well, I understand that. Well, I understand that. The evidence that we've gained both independent of the 1782 process, as well as through the 1782 discovery we've achieved in other proceedings. I understand that the statement that this will be the only opportunity to use it before trial is correct. And you could make that statement here in the United States. Yes. But it might not be the time at which the tribunal in Ecuador is really going to consider that evidence. Well, well, two answers to that. A Dutch Fisher one is, as a matter of law, again, as explained by Ecuadorian Council, we certainly have the right to present that type of information here. And you think that the record should that before judge the boys. Absolutely. It's in the Declaration of Jaime de Noce. And secondly, we intend to do that. Part of the evidence that we intend to submit, for example, has to do with how the prosecution of this case, having been rejected by several prosecutors. In the years prior to the Cabrera report, surfacing and being filed, then got reinitiated. A day after the Cabrera report was finalized, and we definitely intend to introduce evidence to the court that this Cabrera report was a fraud. And it was secretly ghostwritten by the plaintiffs' lawyers. The general is against the two defendants in Ecuador, the two lawyers specifically. What are they charged with? The essential charge to use the United States analogy is akin to a violation of 18 U.S.C. 2001, essentially making a false statement in a public document. We're not conceding that those elements were met, obviously. But that's the nature of the charge. And then are both residents of Ecuador? No, they're not. How does the court have them before? Well, they were charged allegedly based on conduct that occurred while they were 15 or so years ago in Ecuador. They don't reside there now. Extruded? I mean, I'm just trying to understand this. So they're not in Ecuador so that it would be very difficult to try them in their absence, I don't know. And yes, some day if somebody was really interested try to get extradition and all that. Agreed. Where are they from? My client is originally from Brazil. He's a naturalized citizen of the United States. Mr. Piotis is a citizen of Ecuador. But they're not in Ecuador. No, they're not. They're not presently in Ecuador. But in terms of the focus of what we want, the information from Mr. Cone now, it does relate to the preliminary hearing, which will go forward. In Ecuador, whether they are present for that hearing, we're not. So that's our time. In Ecuadorian courts can allow them to present evidence and defend themselves without appearing. Yes, they will at the preliminary hearing. And that is documented in Mr. Dinosos, David Unrebutted in the court below. Yes, they will. And after the substance, I won't believe it, but what Mr. Amastura said, you know, Mr. Cone has a distinct and unique role in this entirely. And he has a very strong sense of the legal litigation that sets him apart from our perspective from some of the consultants and others who have been the subject of 1782 actions. And he is ready to reveal what he knows. And based on what we know from other proceedings, he has evidence that goes to the heart of the arguments that we intend to make in descending Mr. Vega from these criminal charges, both relating to the fraudulent Cabrera report, as well as, frankly, the entire overarching picture of this case. Which is the criminal prosecution being instigated by the Lago Aguil plaintiffs. And the record is replete with the evidence of that. They are the ones who helped procure this sham prosecution of Mr. Vega and Mr. Paiades in order to secure a large settlement from Chevron. But he can't reveal what he knows and he doesn't want to take the chance, I gather, without the cover of something from the court. In other words, that's why he's in a unique position. He's ready to reveal that he needs court cover. Well, I mean, he needs the approval of a court, either based on a waiver. The theory is adopted by the district court based on the crime fraud exception, which is an alternative basis that the district courts certainly hinted at and serval of the courts have adopted. Yes, Judge Greenberg, I think that's correct. My point though really deals with the public interest factor. And if you're weighing all four of the factors under this court's precedence, I think I want to spend a minute talking about that one. They are the ones who procured this prosecution, which is now hanging over our client's head. The district court in its supplemental memo denying the request for a stay said that it specifically said and it recognized the evidence that we submitted. That one of the grounds for denying the stay was they were the ones who put us in the position. We did not choose to be in Ecuador. I think Chef Hanna has answered the question of how they ended up there in the civil litigation, but we didn't choose to be there. We're hostages to the battle between these folks here and Chevron over here. In what other locations in the United States, are you currently trying to get documents and of those how many of them are you currently getting documents? Currently, the only other pending proceeding where we're getting information is in the case of Mr. Donziger. Otherwise, the other 1782 proceedings that we have filed, we've prevailed in every one of them. We've gotten the depositions in every one of them and we've gotten the documents in every one of them. Say for one consultant, one proceeding, and it's a small number of documents. So this is the only one that we're involved in that is still actively being litigated. Anyone else that we want to hear from? Anything else that you have, does it additional to that? I may briefly address Mr. Perez's circumstances, which is slightly different. And attempt to just answer questions. I know the court has been very generous in time. And Drace Rivera for a Rodrigo Perez pay-offs. And I want to make clear, I represent an individual. Mr. Perez is 74 years old. He's a native of Ecuador. He's a lawyer in Ecuador for 40 plus years with a clean record as an attorney. All that time, a practicing lawyer. In part of his career, he represented a predecessor to Chevrolet. In the course of his work, he signed a release. And because he signed their release, in our view, and we think the evidence that we've been able to develop in the 1782s has shown that the expulatory evidence that these plaintiffs engendered a claim, a criminal case, through the government against my client, in order to advance their civil case. That's my theory. I want you to consider me a, I'm assisting an Ecuadorian criminal defense lawyer. But I am in this case a criminal defense lawyer. And Judge Fisher there, I want to address very specifically the question that you asked. What are the consequences of preliminary hearing? You're on a federal prosecutor, I understand. Within our system, the significance and preliminary hearing is almost going to exist. Non indictment and that kind of thing, etc. The difference in the system we're talking about in Ecuador. And the charges Judge Greenberg, our articles 338 and 339 of the Ecuadorian code, exactly as Mr. Bygred says most comparable to our 18 USC 2001. The difference judge is on a preliminary hearing in Ecuador. And this is a word to end docket entry number one, the declaration of my colleague Paul Danes, who attaches the uncontroverted testimony of our Ecuadorian criminal counsel, Jaime Dunoz. In a preliminary hearing in Ecuador, we can present documentary evidence to disprove the allegations. And the judge will consider the documentary evidence in making a very clear determination, which is whether the purpose of preliminary hearing is whether the case will proceed to trial, whether it will be dismissed. The evidence that goes towards the elements of this offense are absolutely part of the consideration of the preliminary hearing judge. And that is uncontrollable to the standard for holding the case for court. Is this name is here or a prime of the case? I can't know it. I'm told not judge, but I, but you know, there have to be careful because I'm not an extra one in Ecuadorian law. But I would say it's more akin to sufficiency, not primafacial, although I think the prime of the issue analysis comes into digimed an element. But I think it's more it's more liberal than our standard, which is a very minimal standard of the meat judge the consequence. In addition, I understand why the courts are asking about standard. We have a chance judge that that's I think the practical thing is, especially with this extraordinarily powerful, excopatory evidence judge, I've been doing this for 24 years, including five years of federal prosecutor. I have never seen lawyers conduct themselves in the way that these gentlemen, including with all respect, I know Mr. Cones known here in Philadelphia. I'm not from here and I'll be careful, but for a lawyer to say an outtake, I think judge Du Bois saw this as to material put in front of the attorney general of Ecuador. Well, if the time comes, we could make this go away. Judge, I've never seen that kind of stuff and it's recorded. Okay, but judge, what's the consequence? I don't want to lose my thread. If we don't prevail, I'll put them in here. That preliminary hearing happens. Not only do we go to trial and understand, well, you can defend a trial just like you would in this country. Judge, extradition proceedings can't proceed from there immediately. And that goes to what Judge Grahamburg was asking about. Yes, my client is in Miami, your honor. I say this with unfortunate personal knock. He is exiled. I'm Cuban American. I feel like he is in practical effect exiled from his country. I'm Cuban American and I say this with great personal understanding. He cannot return to his country without risk of his liberty because of the conduct of the folks represented by these counts. Now, but my point is if we were to lose at that preliminary hearing, and this is why I just want to say this is very important. That judge can enter an order starting extradition proceedings, which we'd have to defend in this country. We think we have good arguments. All that existed. I represent an individual whose liberty is at stake. Any semi-fiery rule. If the preliminary hearing is delayed indefinitely, I guess what we were told is it can be restarted on no notice. That doesn't make much sense. It has to be some notice. No, the answer is no notice, Judge. But I judge. But then what he didn't want to be there? Well, no, it can be the preliminary hearing. I mean, I mean, I mean, I guess counsel won't be there or somebody won't be there to hear what's going on to preliminary hearing. Oh, no, no, of course. I'm exaggerating the sense of course, it has to be a notice that permits defense counsel to appear a day, two days, whatever time. Going to that subject, because I judge Fisher, I hope I addressed. There are important consequences. Judge Ambrug. Yes, the preliminary hearing can proceed in absentia. The trial cannot. The preliminary hearing can proceed in absentia. The amount of notice is different immediately after the indictment. After the indictment under the Ecuadorian Code. This is in the declaration. It's like the United States is a preliminary hearing and it goes with grand jury. No, the honor is different. It turns the indictment. It has completely different. It's the continental system, Judge. You have a prosecutor's in fact, it's a specific information. Exactly. It's like a preliminary hearing on an information. That's what I would most compare it. That's exactly right. But it's not precisely like like our system, but it is a prosecutor's investigation that leads to a dictum in which is close to an information is how I would describe it. And then a point is on the timing. In the first instance within the judge within expiry to time has to give an order. Within expiry to time has to give an order that sets the hearing for 10 days thereafter. There is a regime of times for the initial setting on the normal case or council tells us this is not and this is not in the record. So I would just say what council tells me like happen this was continued once before from October or November to January 5th. They set the date in the order. This is a very unusual circumstance where there is an indefinite continuance not far in the future judge Greenberg. But as you asked before, but simply for an unknown date, whether that is a day a week a month, a year, a decade, I can't tell. I don't want to prolong because you all have listed the older, if all of the leaders of trial in the content now I think occasionally they now have jury trials. Is there a jury trial? No judge in the Latin American systems which are also from the Napoleonic code with the exception of as I understand it Brazil and a couple of other Brazilian capital cases in some other countries. Ecuador is moving towards an American system but has not adopted juries. I do a fair amount of work in cases related to Ecuador. So, to jambrow the question is I know the core question is stay versus expedited appeal. I really return to the reason I'm making this perhaps not long when the argument is as a criminal defense lawyer for someone who could face extradition from a haven. I it is a risk. What are the chances of his being extradited? You are right. I wouldn't want to run that risk. Let me tell you my experience as to your traditions. You have a form of a hearing at state. Once it gets to office and international affairs and judge I've done this on the prosecution side and I'm defense side. You don't have a right to be heard at the office of international affairs in the Department of Justice. Once it gets to a US attorney's office even if I'm a respect for the prosecutor in the Southern District of Florida, I cannot go to the head of economic crimes at that office. They won't have discretion. I can go to a magistrate judge in Miami and ask for bond but I think you all know that's not that's extremely difficult. The defense is on an extradition at that point before a neutral magistrate become technical. I have extradinary evidence and I believe that Mr. Cone who says he wants to give it on a ruling from the court has more of it. We need it to defend very briefly and closing. My point is simply judge. You can understand from my perspective why it is an extraordinary risk. I understand the courts as judges how you need to try to organize this and I respect that and I'm running uphill in some senses because you've indicated as the timing in the rest. But I am very sincerely asking the court to consider these risks if the court does not wish to lift the stay and I am asking urgently to lift the stay. Even a timing I can add two weeks, two weeks and five days and that the time this court will take to rule something could happen. I know we could run back but there is no defined time. What you're saying is if you get these documents you can present them to the Ecuadorian court and you believe that this might assist in an argument that the case should not continue in Ecuador. That is correct. But when a dismissal of this thing is that is correct. You had the feeling of well maybe this comment would have been left unsaid. Judge I hope I hope my team is doing an outtake. I hope my I hope my telepathy is not working but I have certain fears. Is there anything else you were said? Briefly only judge that I want the court to bear in mind that Judge Kaplan, Judge Dubois, the second circuit and as recently as yesterday. The special master had asked these plaintiffs to stop their proceedings as to Chevron and also as to us. And with regard to Chevron they have never they have never been willing to stop anything to allow any court to do rational consideration. As I know is your preference of course you're going to consider rational the judicious time taking the time to do it. They have never been willing. In fact they asked for expedition after such requests as to Chevron as to us very briefly. This was asked of many courts of these plaintiffs and only at the 11th hour did they go through this supposed process that the Attorney General has to start the prosecutor general and then on December 29th. They come up with the excuse that they suddenly realize they have a trial on January 7th. They have not made it easy for us or for you to do this in a in a orderly way. And I ask you to take that into account when you consider I understand these principles of of of judicial decision making. But they I think are on their own patar at this point and I ask the court to lift this next. Thank you. Is there anyone else? Mr. Terrell, come back to you then. Thank you, Your Honor. I'll be brief and we very much appreciate all the time you've given to this. I will touch on only a couple of points first to answer judge Fisher's question about Van Buella. Those issues were never before any other courts. The decision in New York was based on a New York local court rule and a failure to timely submit a privilege log. That was the basis of the waiver, not the issue here. With respect to the DC circuits decision, it also had to do with a privilege log. This court is going to be making the first decision with respect to Van Buella or Westinghouse. I mean, go to the issue of it's at the core of this, I hope. What we've got is balancing certainty against uncertainty with substantial risk on both sides. The certainty is if you release this stay, Chevron will take all of these documents. I frankly chuckled when I listen to Mr. Master read my memos. He makes my point. He'll release all of these documents to the press and use them immediately. Will it be moot? You've asked the question. It won't be moot under the Supreme Court standard. The Supreme Court says maybe you can fashion a remedy that will try to fix it, but 90% of the damage will be done. What Chevron could gain by releasing the documents, you know, they make interesting reading to anybody who wants to read that. But what advantage it would gain in terms of the Ecuadorian litigation by releasing the documents to the American press? Well, Chevron has released everything to the American press so far. It's sophisticated public relations people have engendered stories because what's really at stake? They're afraid that a judgment will enter an Ecuador that their predecessor, Texaco, destroyed an area of the Ecuadorian Amazon, the size of Rhode Island. And they don't want that judgment enforceable in the United States. Why would we be releasing the documents to American newspapers? I remember years ago, I once had a case, I was an assistant attorney general. Somebody said, the television station, if you don't come one, you'll have problems because the side against the state is coming on. I said, and if the judge decides it on the basis of television, I'm out of luck, but I don't think he will. I mean, why does that have to do with anything? Chevron believes respectfully or they wouldn't be doing it consistently, that by claiming fraud, crime, and other things, they are so casting dispersions on the integrity of this case. And on the integrity of the Ecuadorian courts that no United States enforcement court will enforce that Ecuadorian law. You know, I tell you the side that we could go out on market street and I could stop a thousand people before I found anybody to do anything about the whole thing. That's the truth. I remember it because I learned that about litigation. Sometimes it's criminal defendant, thinks the whole world is looking at him and no one even knows about the case. No, I can't disagree with you. If I had, if I weren't in this case, I would know a thing about it. The whole thing. And you'd be happy? Yeah, no, I know, no, I know plenty. My wife says that I've reached an age where I don't remember tomorrow what I did yesterday, and so perhaps that's all. Let me just finish the single thing. Well, I never knew what to start with, and I never would start with. The certainty is that we will lose our privileges and the documents will be circulated. The uncertainty and speculation at this point, and what drove the other courts and doesn't exist now, is that whatever it means, the January 5 date is often definitely

Legal Case Summary

In Re Applicationof Chevron Corp Motion Hearing

Date Argued: Wed Oct 16 2013

Case Number: 13-50657

Docket Number: 2598690

Judges:Not available

Duration: 74 minutes

Court Name: Court of Appeals for the Third Circuit

Case Summary

In Re Applicationof Chevron Corp Motion Hearing

Oral Audio Transcript(Beta version)