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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK--------------------------------------------------------------------x

In re Application of CHEVRON CORPORATION for

an Order Pursuant to 28 U.S.C. 1782 to ConductDiscovery from H5, Nicolas Economou, and JuliaBrickell for Use in Foreign Proceedings.

::

::::

Case No. M-_____

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

MEMORANDUM OF LAW IN SUPPORT OF PETITION AND APPLICATION FOR AN

ORDER PURSUANT TO 28 U.S.C. 1782 TO CONDUCT DISCOVERY FROM H5,

NICOLAS ECONOMOU, AND JULIA BRICKELL FOR USE IN FOREIGN

PROCEEDINGS

GIBSON, DUNN & CRUTCHER LLPRandy M. MastroAndrea E. NeumanAnne Champion200 Park AvenueNew York, New York 10166T: (212) 351-4000

F: (212) 351-4035

STERN & KILCULLEN, LLCHerbert J. SternJoel M. Silverstein325 Columbia Turnpike, Suite 110Florham Park, NJ 07932-0992T: (973) 535-1900F: (973) 535-9664

KOBRE & KIM LLPSteven G. KobreCarrie A. TendlerJosef M. Klazen800 Third AvenueNew York, New York 10022T: (212) 488-1200F: (212) 488-1220

Attorneys for Petitioner Chevron Corporation

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TABLE OF CONTENTS

Page

I. INTRODUCTION ............................................................................................................. 1

II. FACTUAL BACKGROUND ............................................................................................ 4

A. H5s Role in the Lago Agrio Litigation and Related Proceedings ........................ 4

1. Overview of H5s Role in the Conspiracy and Its Retention of an Interestin the Fraudulent Judgment ........................................................................ 4

2. H5s Involvement in the Obstruction of Chevrons Section 1782Proceeding Against Stratus ........................................................................ 7

3. H5s Involvement in the Cleansing Scheme .......................................... 9

4. H5s Involvement in the Public Pressure Campaign ............................... 10

5. H5s Role in Obtaining Financing from DeLeon to Further the LAPsScheme ..................................................................................................... 11

6. H5s Involvement in Establishing Amazonia .......................................... 12

7. Prior Discovery from H5 ......................................................................... 13

B. The Gibraltar Proceeding ..................................................................................... 15

C. The Enforcement Proceedings ............................................................................. 16

III. ARGUMENT ................................................................................................................... 17

A. The Information Sought Is Highly Relevant and Presumptively DiscoverableUnder Section 1782.............................................................................................. 18

B. The Requested Discovery Meets the Statutory Requirements of Section 1782 .. 19

1. H5, Economou, and Brickell Are All Found Within this District and theDiscovery Sought Is Intended for Use Before a Foreign Tribunal .......... 19

2. Chevron Is an Interested Person .............................................................. 21

3. The Discovery Sought Is Not Privileged ................................................. 22

4. The Crime-Fraud Exception Applies ....................................................... 23

C. Discretionary Factors Also Heavily Favor the Requested Discovery ................. 25

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(continued)Page

ii

1. H5, Economou, and Brickell Are Not Parties to the Gibraltar Proceedingor the Enforcement Actions ..................................................................... 25

2. The Foreign Tribunal Is Receptive to Federal Court Assistance UnderSection 1782............................................................................................. 26

3. This Application Is an Attempt to Obtain Probative and Relevant Evidencefor a Foreign Proceeding and Does Not Circumvent Foreign Proof-Gathering Restrictions ............................................................................. 27

4. The Discovery Is Neither Unduly Burdensome Nor Intrusive ................ 28

IV. CONCLUSION ................................................................................................................ 30

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iii

TABLE OF AUTHORITIES

Page(s)

Cases

Chevron Corp. v. Berlinger,629 F.3d 297 (2d Cir. 2011) ..................................................................................................... 27

Chevron Corp. v. Donziger,No. 11 Civ. 0691, Dkt. 1874 (S.D.N.Y. Mar. 4, 2014) ..................................................... passim

Chevron Corp. v. Naranjo,Nos. 11-1150-cv(L), 111264cv(con), 112259op(con), 2011 WL 4375022 (2d Cir.Sept. 19, 2011) .......................................................................................................................... 14

Chevron Corp. v. Page,No. RWT-11-1942, Hearing Tr. at 11:2-24 (D. Md. Aug. 31, 2011) ....................................... 24

Chevron Corp. v. Salazar,275 F.R.D. 437 (S.D.N.Y. 2011) .......................................................................................... 4, 23

Chevron Corp. v. Weinberg Grp.,682 F.3d 96 (D.C. Cir. 2012) ...................................................................................................... 4

Chevron Corp. v. Weinberg Grp.,Misc. No. 11-409 (JMF) (D.D.C. Sept. 8, 2011) ........................................................................ 4

Chevron v. Champ,Nos. 10-mc-00027 & 10-mc-00028, 2010 WL 3418394 (W.D.N.C. Aug. 30, 2010)................ 4

Euromepa S.A. v. R. Esmerian, Inc.,51 F.3d 1095 (2d Cir. 1995) ..................................................................................................... 26

In re Application for an Order for Judicial Assistance in a Foreign Proceeding in theLabor Court of Brazil,466 F. Supp. 2d 1020 (N.D. Ill. 2006) ...................................................................................... 28

In re Application of Chevron Corp. (Kamp 1782),Civil Nos. 10-MC-21JH/LFG, 10MC22 J/LFG., 2010 WL 9545704(D.N.M. Sept.13, 2010) ............................................................................................................................... 4, 23

In re Application of Chevron Corp.,709 F. Supp. 2d 283 (S.D.N.Y. 2010) ...................................................................................... 27

In re Application of Chevron Corp.,

736 F. Supp. 2d 773 (S.D.N.Y. 2010) ...................................................................................... 18

In re Application of Chevron Corp.,749 F. Supp. 2d 135 (S.D.N.Y. 2010) ........................................................................................ 4

In re Application of Chevron Corp.,No. 1:10-MI-0076-TWT-GGB, 2010 WL 8767265 (N.D. Ga. Mar. 2, 2010) ......................... 28

In re Application of Chevron Corp.,No. 4:10-mc-134, 2010 WL 8814519 (S.D. Tex. Apr. 5, 2010) ............................................. 28

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TABLE OF AUTHORITIES

(continued)Page(s)

iv

In re Application of Inversiones y Gasolinera Petroleos Valenzuela, S. de R.L.,No. 08-20378-MC, 2011 WL 181311 (S.D. Fla. Jan. 19, 2011) .............................................. 20

In re Application of Winning (HK) Shipping Co. Ltd.,

No. 0922659MC, 2010 WL 1796579 (S.D. Fla. Apr. 30, 2010) .......................................... 21In re Application. of OOO Promnefstroy,

No. M 19-99 (RJS), 2009 WL 3335608 (S.D.N.Y. Oct. 15, 2009) .......................................... 26

In re Bayer AG,146 F.3d 188 (3d Cir. 1998) ......................................................................................... 18, 26, 27

In re Campania Chilena de Navegacion,No. 03 CV 5382 (ERK), 2004 WL 1084243 (E.D.N.Y. Feb. 6, 2004) .................................... 19

In re Chevron Corp.(E-Tech 1782),No. 10-cv-1146-IEG (WMc), 2010 WL 3584520 (S.D. Cal. Sept. 10, 2010) ..................... 4, 23

In re Chevron Corp.,749 F. Supp. 2d 141 (S.D.N.Y. 2010) .................................................................................. 4, 18

In re Chevron Corp.,749 F. Supp. 2d 170 (S.D.N.Y. 2010) ...................................................................................... 22

In re Chevron Corp.,753 F. Supp. 2d 536 (D. Md. 2010) .......................................................................................... 27

In re Edelman,295 F.3d 171 (2d Cir. 2002) ..................................................................................................... 19

In re Godfrey,526 F. Supp. 2d 417 (S.D.N.Y. 2007) ...................................................................................... 19

In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983,731 F.2d 1032 (2d Cir. 1984) ................................................................................................... 24

In re Heraeus Kulzer, GmbH,No. 09-MC-00017, 2009 WL 2981921 (E.D. Pa. Sept. 11, 2009) ........................................... 25

In re IPC Do Nordeste, LTDA,for an Order Seeking Discovery Under 28 U.S.C. 1782, No. 12-50624, 2012 WL4448886 (E.D. Mich. Sept. 25, 2012) ....................................................................................... 27

In re Oxus Gold PLC,MISC No. 06-82-GEB, 2007 WL 1037387 (D.N.J. Apr. 2, 2007) .............................. 19, 21, 25

In re Roz Trading Ltd.,Case No. 1:06-cv-02305-WSD, 2007 WL 120844 (N.D. Ga. Jan. 11, 2007) .......................... 25

In re Strand Invs. Ltd.,No. 09-21985-CIV., 2009 WL 2225536 (S.D. Fla. July 24, 2009) .......................................... 21

In re Veiga,746 F. Supp. 2d 8 (D.D.C. 2010) .............................................................................................. 27

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v

Intel Corp. v. Advanced Micro Devices, Inc.,542 U.S. 241, 124 S. Ct. 2466 (2004) ...................................................................... 3, 21, 25, 27

London v. Does 1-4,

279 F. Appx 513 (9th Cir. 2008) ....................................................................................... 28, 29Metro. Life Ins. Co. v. Robertson-Ceco Corp.,

84 F.3d 560 (2d Cir. 1996) ....................................................................................................... 21

Minatec Fin. S. .R.L. v. SI Grp. Inc.,No. 1:08-CV-269 (LEK/RFT), 2008 WL 3884374 (N.D.N.Y. Aug. 18, 2008) ....................... 27

Pott v. Icicle Seafoods, Inc.,945 F. Supp. 2d 1197 (W.D. Wash. 2013) ............................................................................... 27

Sandoval v. Abaco Club on Winding Bay,507 F. Supp. 2d 312 (S.D.N.Y. 2007) ...................................................................................... 20

SR Intl Bus. Ins. Co. v. World Trade Ctr. Prop. LLC,No. 01 CIV 9291 (JSM), 2002 WL 1455346 (S.D.N.Y. July 3, 2002) .................................... 23

United States v. Adman,134 F.3d 1194 (2d Cir. 1998) ................................................................................................... 22

United States v. Ghavami,882 F. Supp. 2d 532 (S.D.N.Y. 2012) ...................................................................................... 23

United States v. Kerik,531 F. Supp. 2d 610 (S.D.N.Y. 2008) ...................................................................................... 25

United States v. Mejia,655 F.3d 126 (2d Cir. 2011) ..................................................................................................... 22

Wiwa v. Royal Dutch Petroleum Co.,226 F.3d 88 (2d Cir. 2000) ....................................................................................................... 20

Statutes

28 U.S.C. 1782 .................................................................................................................... passim

28 U.S.C. 1961 et seq................................................................................................................. 1

Gibraltar Act No. 1948-10 (Evidence Act) 911 ..................................................................... 28

Other Authorities

Hans Smit,American Assistance to Litigation in Foreign and International Tribunals:Section 1782 of Title 28 of the U.S.C. Revisited,25 Syracuse J. Intl L. & Com. 1 (1998) .................................................................................. 19

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I. INTRODUCTIONPursuant to 28 U.S.C. 1782 (Section 1782), applicant Chevron Corporation

(Chevron) respectfully applies to this Court for an order to conduct discovery from respondent

H5, a corporation located in New York, New York; its CEO, Nicolas Economou; and its

Executive Managing Director and General Counsel, Julia Brickell. Chevron seeks this discovery

in aid of its case before the Supreme Court of Gibraltar against James Russell DeLeon (Russell

DeLeon) and an investment vehicle he controls, Torvia Limited, Chevron Corp. v. James

Russell DeLeon and Torvia Limited, Claim No. 2012 C 232 (Supreme Court of Gibraltar)

(the Gibraltar proceeding), as well as current and potential enforcement proceedings Chevron

is facing in multiple jurisdictions (the Enforcement Proceedings).

In the Gibraltar proceeding, Chevron alleges claims for unlawful means conspiracy,

conspiracy to injure, and unlawful interference with economic interests. These claims are based

on the provision by DeLeon and Torvia of millions of dollars in funding for what this Court,

following a seven-week trial, found to be an extortionate enterprise against Chevron in violation

of the Racketeering Influenced and Corrupt Organizations Act, 28 U.S.C. 1961 et seq.

(RICO).1 This Court concluded that the evidence demonstrated that the enterprise used

criminal means, including attempted extortion, wire fraud, money laundering, obstruction of

justice, witness tampering, and violations of the Foreign Corrupt Practice Act, to procure a

corrupt $9.5 billion judgment from an Ecuadorian court, including by promising the judge

$500,000 of the proceeds if he let the enterprise ghostwrite the courts judgment in its favor. In

1 Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), ___ F. Supp. 2d ___, 2014 WL815961, at *5 (S.D.N.Y. Mar. 4, 2014) (RICO Opinion at 40203);see also 2014 WL815553; 2014 WL 815613; 2014 WL 815715; 2014 WL 815869; 2014 WL 815923; 2014WL 815961; 2014 WL 816086. Because the RICO Opinion is split across several WestlawReporter citations, citations to page numbers throughout this brief will be to the docketedversion of the Opinion available on PACER. Chevron Corp. v. Donziger, No. 11 Civ. 0691(LAK), Dkt. 1874 (S.D.N.Y. Mar. 4, 2014), hereinafter RICO Opinion.

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denying DeLeon and Torvias motion to dismiss the Gibraltar proceeding, the Gibraltar court

recently concluded that Chevron had established a prima facie case that DeLeon and Torvia were

part of this fraudulent scheme. The Gibraltar court held that [Chevrons factual allegations] do

support the conclusion that [DeLeon and Torvia] were conspirators and fully involved in the

conspiracy, continuing to fund it well after they were aware of the fraudulent activities, and

that, the stronger the case of fraud became, the more involved the Defendants became. Ex. 1

at 23.2

H5 is a litigation consulting firm that worked for the plaintiffs (Lago Agrio Plaintiffs or

LAPs) in the Ecuadorian litigation against Chevron. H5 has actively participated in the

ongoing conspiracy to extort a multi-billion dollar payoff from Chevron, including engaging in

the extortionate public pressure campaign, aiding in the LAPs obstruction of the Stratus 1782

proceeding and concealment of the Cabrera fraud, helping execute the cleansing expert

scheme, and securing funding from investors to support the LAPs ongoing fraud (including

funding from DeLeon). Funds obtained from DeLeon and Torvia were used in furtherance of the

LAPs corrupt scheme to extort and defraud Chevron, including by filing enforcement

proceedings throughout the world, a scheme this Court has called vexatious. See RICO

Opinion at 384-87, 471. Indeed, it now appears that DeLeon has been the principal funder of the

LAPs corrupt scheme, and there are documents stating he has provided approximately $25

million in funding. Ex. 2.

The discovery Chevron seeks is relevant to Chevrons claims in the Gibraltar proceeding,

as well as Chevrons defenses in the Enforcement Proceedings. H5s documents and

information, based on the involvement of H5s senior executives in the inner workings of the

2 All references to Ex. __ herein are to the Declaration of Anne Champion (Champion

Dec.), filed concurrently, unless otherwise noted.

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scheme against Chevron, will be relevant generally to the conspiracy and other tort claims at

issue in the Gibraltar proceeding. In addition, because evidence obtained to date reveals that H5

consulted with DeLeon on finalizing funding agreements, budgeting, and litigation strategy, and

has information regarding DeLeons involvement in Amazonia Recovery Limited, it is clear that

H5 possesses information that directly addresses DeLeons and Torvias knowledge of and

involvement in the fraud in the Ecuadorian proceeding and the ongoing efforts to fund and

perpetuate the extortionate conspiracy against Chevron.

Chevron previously subpoenaed H5 for the production of documents in connection with

Chevrons Count 9 and RICO proceedings in this Court. SeeExs. 3-4. Chevron has thus tailored

the present subpoena to avoid overlap or duplication, requesting only documents regarding

DeLeon, Torvia, and Amazonia, and documents related to the underlying frauds only to the

extent they were created or generated after the service date of the RICO subpoena (November

30, 2012).

Section 1782 authorizes [t]he district court of the district in which a person resides or is

found may order him to give his testimony or statement or to produce a document or other thing

for use in a proceeding in a foreign or international tribunal . . . . 28 U.S.C. 1782(a). The

requirements for issuance of a Section 1782 subpoena are minimal and are met by this

application. See, e.g.,Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 249, 26465,

124 S. Ct. 2466, 2474, 2482-83 (2004). Accordingly, Chevron hereby applies under Section

1782 for an order to conduct discovery from H5, including document discovery and depositions,

for use in the Gibraltar proceeding and the Enforcement Proceedings.

Chevron further requests that this Court apply the crime-fraud exception to the attorney-

client privilege and work product protections to relevant documents in the possession of H5. As

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discussed in more detail below, H5s activities have been performed in furtherance of the

racketeering scheme against Chevron. In addition to this Court, numerous other U.S. federal

courts have issued judicial findings that privileges have been waived or vitiated by the crime-

fraud exception.3

Chevron has provided H5 and counsel for the LAPs with copies of this application

contemporaneously with its filing with this Court, and respectfully requests that this Court order

a schedule for briefing related to this petition.

II. FACTUAL BACKGROUNDThe facts underlying the racketeering enterprise against Chevron are set forth in detail in

this Courts RICO Opinion, as well as other prior opinions by this Court. See supra n.1. Rather

than reiterate the background of these related proceedings here, Chevron will focus on the role of

H5 in the overall conspiracy (which is relevant to both the Gibraltar and Enforcement

Proceedings) and its connection to DeLeon and Torvia, the defendants in the Gibraltar

proceeding.

A. H5s Role in the Lago Agrio Litigation and Related Proceedings1. Overview of H5s Role in the Conspiracy and Its Retention of an Interest in

the Fraudulent Judgment

H5 is a litigation consulting firm that advertises itself as a leading provider of global

technology-assisted review and e-discovery services that is dedicated to finding information

3

See In re Application of Chevron Corp., 749 F. Supp. 2d 135, 140 (S.D.N.Y. 2010); ChevronCorp. v. Salazar, 275 F.R.D. 437, 455 (S.D.N.Y. 2011); Chevron Corp. v. Weinberg Grp.,Misc. No. 11-409 (JMF), at *5 (D.D.C. Sept. 8, 2011), vacated on other grounds by ChevronCorp. v. Weinberg Grp., 682 F.3d 96 (D.C. Cir. 2012) (attached as Ex. 79);In re ChevronCorp., 749 F. Supp. 2d 141, 144-45,167-168 (S.D.N.Y. 2010); Chevron v. Champ, Nos. 10-mc-00027 & 10-mc-00028, 2010 WL 3418394, at *6 (W.D.N.C. Aug. 30, 2010);In reApplication of Chevron Corp., No. 10cv1146-IEG(WMC), 2010 WL 3584520, at *6 (S.D.Cal. Sept. 10, 2010;In re Application of Chevron Corp. (Kamp 1782), Civil Nos. 10-MC-21JH/LFG, 10MC22 J/LFG., 2010 WL 9545704(D.N.M. Sept. 13, 2010).

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that our clients need to win cases, meet regulatory requirements, and address risks before they

become liabilities. Ex. 5 at 2. As this Court noted in its RICO Opinion, Donziger and the LAPs

began working with H5 in late 2009, to secure financing. RICO Opinion at 166. H5s CEO,

Nicolas Economou, and Donziger appear to have been introduced by an investment banker

referred to Donziger by the Ben Barnes Group. Exs. 6-7. Following that introduction, H5s role

expanded considerably, and at least two of H5s senior executives have acted as key advisors

to the LAPs. Ex. 8. Indeed, this Court held that H5 was a part of Donzigers RICO enterprise.

RICO Opinion at 349 n.1341.

For example, Economou has been involved with virtually every aspect of the case,

including recruiting investors, Ex. 9, negotiating investment agreements, Ex. 10, hiring legal

experts, Ex. 11, managing public relations strategy, Exs. 12-13, hiring U.S. law firms (including

Patton Boggs), Ex. 14; RICO Opinion at 276, collaborating with shareholder activists, Ex. 15,

managing e-discovery, Ex. 16, meeting with the clients, Ex. 17 at 2, and consulting on legal

strategy, Ex. 18. This Court found that, after reviewing Donzigers phone records, it is clear

that they [i.e., Donziger and individuals from H5] communicated extensively. RICO Opinion at

438, n.1679.

Julia Brickell is H5s Executive Managing Director and General Counsel. See, e.g., Ex.

19 at 1. She also has worked on virtually every aspect of H5s work for the LAPs. She helped

negotiate investment agreements, Ex. 19, and provided input on strategy, particularly in

connection with the LAPs efforts to obstruct the Stratus 1782 proceeding, Ex. 20. She also

introduced the Weinberg Group to Donziger and the LAPs and was involved in hiring them, Exs.

21-23.

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H5 began performing a variety of financing-related tasks for the LAPs beginning in 2009,

including, according to a draft engagement letter, [a]ssessment of current case financial

structure; [i]dentification of financing opportunities from (i) investors and/or (ii) contingent

legal counsel; and [a]nalysis of the different financial options and financial valuation of the

Chevron Litigation. Ex. 24 at 1-2. In April 2010, Economou sent Donziger a signed

confirmation of H5s engagement. Ex. 25. In this correspondence, Economou noted that H5

was engaged at the rate of $250 per hour for each H5 professional assigned to provide the

Services, invoiced monthly and would defer fifty percent (50%) of the Initial Fee until Final

Disposition. Id.at 1. Furthermore, [u]pon Final Disposition of the Chevron Litigation, an

amount equal to the Deferred Fee plus two (2) times the Deferred Fee would be invoiced to

and payable by Donziger. Id.

On February 24, 2011after Chevron filed the RICO case, and a mere 10 days after the

Ecuadorian court issued the Lago Agrio judgmentH5 and LAP representatives executed a new

engagement agreement. Ex. 26. Under the terms of the amended engagement letter, H5 was

responsible for (1) management of payables, cash flow and budgeting; (2) capital raising

strategies; (3) engaging legal and other service providers (including identifying and collecting

due diligence on such service providers); and (4) such other services and advice in respect of

the Litigation as [the LAPs and H5] may from time to time mutually agree. Id.at 2. H5 was

required to report directly to Donziger. Id. at 2.

The February 2011 agreement gave H5 the rights to 1.25 percent of all money paid to the

LAPs from any judgment or settlement worldwide related to the Lago Agrio litigation, subject to

the Intercreditor Agreements distribution terms. Id. In addition, it provided that H5 would

receive $450 per hour for every hour over 80 hours per month that its senior executives and

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management worked on the case. Id.at 3. Of these Excess Hours Fees, 50 percent were due

up front, and, as with the April 2010 agreement, the remaining 50 percent plus two times the

deferred amount would be paid after a settlement or final verdict. Id. The February 2011

agreement also provided that the LAPs had to consider in good faith paying H5 a discretionary

bonus of up to .5 percent of all funds recovered worldwide from the Lago Agrio litigation, id.at

3, and the agreement guaranteed H5 reimbursement for all out of pocket expenses (although any

expenses over $5,000 per month required Donzigers advanced written approval). Id.at 3, 4.

2. H5s Involvement in the Obstruction of Chevrons Section 1782 ProceedingAgainst Stratus

H5s involvement in the Cabrera cover-up started just a few months after Economou first

met Donziger. At the time H5 joined in the LAPs obstruction, it knew the truth about Stratus

and the ghostwriting of the Cabrera report. Economou and Brickell were copied on an e-mail

from Jonathan Abady of Emery Celli Brinckerhoff in which Abady proposed that the LAPs just

confess to having authored specific portions of the [Cabrera] report. Ex. 27 at 1. Brickell was

copied on e-mails in which attorneys for the LAPs discussed global strategy and options, for

get[ting] past th[e] Cabrera business, including that they [l]ay out for the Ecuadorian court

what happened with Cabrera and advise the court to take it into account in whatever way it

deems appropriate (mea culpa strategy). SeeEx. 28 at 1. In addition, after the Second Circuit

ordered production of the Crudeouttakes, the LAP Team, including H5, discussed the disclosure

of the outtakesparticularly the outtakes that would expose the relationship between the LAPs

and Cabreraand scheduled a call to discuss next steps. SeeEx. 29 at 1.

H5 actively participated in the efforts to conceal the Cabrera fraud. For example, it

handled aspects of the Stratus privilege review that resulted in the majority of the responsive

documents being withheld for months, only to be dumped on Chevron the night before the

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deposition of Douglas Beltman. See Ex. 30; Ex. 77 at 4, 10-13. In April 2010, H5 attended at

least two critical strategy meetings in New York with Donziger, Patton Boggs and other

members of the conspiracy. See Exs. 31-32. Patton Boggs hosted these meetings at its New

York offices. SeeEx. 31 at 1. The agendas for these included entries such as How Do We

Characterize Cabrera Going Forward? and Risks Associated with Full Disclosure of Stratus

Documents. Ex. 31 at 1; Ex. 32 at 3.

Economou and Brickell were copied on Patton Boggs partner Eric Westenbergers email

in which he described the LAPs strategy to delay production of documents: Appeal; move for

a stay; if we win with kane great; if we lose, we produce whatever we want (narrow read); gd

complains and then we move for clarification. If we lose again, we think about another appeal.

Ex. 33 at 1-2. Brickell responded, [w]e did agree to move for clarification, and for an interim

stay, tomorrow, because there is a reasonable likelihood that well get a favorable clarification

narrowing the interpretation. Eric, were you reopening that decision? Id.at 1. In another email

chain, Brickell wondered how to prevent Stratus contractors from producing documents to

Chevron: What could you safely say to the folks so they dont produce . . . . say their counsel

will get in touch with Gibson? Ex. 20 at 2;see alsoEx. 34 at 1. In another email exchange,

Brickell responded that she and Economou like[d] a draft email in which Illan Maazel of

Emery Celli proposed telling Chevrons counsel at Gibson Dunn that Stratuss consultants would

not produce documents as planned because [t]hey did not understand . . . their legal[]rights,

privileges, motion to quash, etc. Ex. 18 at 1.

In sum, H5 was a key player in the efforts to mislead U.S. courts and obstruct the truth

from coming out about the Cabrera reportone of the central frauds in the Lago Agrio litigation

that was used to publicly attack and pressure Chevron in the U.S.

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3. H5s Involvement in the Cleansing SchemeBeginning in or around May 2010, H5 received outlines and drafts of a submission to be

filed in the Ecuadorian courtan effort to cleanse any perceived impropriety related to the

Cabrera Report. Ex. 35 at 2. Patton Boggs explained to H5 and others that the [t]he sole open

issue with a draft of the cleansing submission was the specificity with which we describe the

meetings with Cabrera. Ex. 27.

Once the Ecuadorian court granted the LAPs request for supplemental expert reports, H5

introduced, helped engage, and coordinated with the Weinberg Group and experts to execute the

cleansing expert strategy. On August 13, 2010, Brickell set up a call with Ted Dunkelberger

of the Weinberg Group to discuss hiring the Weinberg Group to write the reports

under[]direction of counsel after receiving an oral[ ]confidentiality commitment from him.

Ex. 21 at 3. Brickell then served as a conduit for documents and information to help individuals

at the Weinberg Group familiarize themselves with the project. Ex. 30. H5 and Economou

knew that the cleansing process was intended to perpetuate the false impression that the

Ecuadorian court had avoided the taint of the Cabrera fraud. A Patton Boggs attorney told H5

and others that our new expert will most likely rely on some of the same data as Cabrera (and

come to the same conclusions as Cabrera). Ex. 36 at 1.

H5 also knew that the speedy and effective implementation of the cleansing process was

critical to the overall scheme. Donziger forwarded key strategy emails to H5 expressing concern

about the increasing risk that our cleansing process is going to be outrun by the judge and we

will end up with a decision based entirely on Cabrera. Ex. 37 at 1. H5, however, made sure

that the cleansing experts themselves did not know about the Cabrera fraud. On the first

conference call with the Weinberg Groupin which H5 participatedWestenberger represented

that Cabrera was an independent expert, Ex. 39 at 49:6-11, 60:7-61:11, and H5 provided the

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Weinberg Group with copies of the Cabrera Report without disclosing that Stratus had

ghostwritten it, Ex. 38.

4. H5s Involvement in the Public Pressure CampaignH5 also actively participated in the extortionate public relations and pressure campaign

against Chevron. In recommending the retention of Motley Rice, for example, Brickell wrote,

[w]e believe that Motley Rice will add value in strategy and execution of activities designed to

speed recognition by Chevron directors that they should try to settle the case sooner rather than

later for a number in the double digit billions. We think that involves: Influencing large

shareholders, credit rating agencies, financial analysts[;] hitting them at the pumps[;] starting

affirmative 1782 actions that will disclose covert actions of Chevron[;] focusing on regulatory

issues (calling attention to deficiencies in the SEC filing, foreign corrupt practices, and the

like)[;] pursuing investigations into foreign corrupt practices. Ex. 40 at 1. These activities were

all part of Donzigers pressure campaign, which included a plethora of false and misleading

representations to persons and entitiesincluding among others members of the media, the New

York Attorney General, the SEC, the New York State Comptroller, and Chevron shareholders.

RICO Opinion at 408.

Similarly, Economou suggested a campaign against Chevron in countries where Chevron

was planning projects, arguing that hitting hard [in those countries] with PR related to the

Ecuador disaster and with a do you want this happening to you message could be very

powerful. Ex. 12. As Economou proposed, a campaign in those countries could provide

considerable leverage, especially if launched concurrently. Id.

H5 also was well aware of the plans of various media strategists for the LAPs, including

New Partners, a consultancy that proposed a strategy to create a tipping point that pushes

Chevron to decide to settle the case. Exs. 41-42. H5 also participated in meetings with

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Amazon Watch and the Rainforest Action Network, both of which have been and continue to be

actively involved in efforts to publicly attack Chevron on behalf of the LAPs. See, e.g.,Exs. 82-

83; RICO Opinion at 35 & n.138-41.

In April 2010, Economou and Brickell exchanged emails with Woods and Donziger to

coordinate the media response to the exposure of the Calmbacher fraud in Chevrons Section

1782 proceeding against Calmbacher, and the LAPs response to investors. Ex. 43 at 1-2. In

an email to Donziger and Woods, copying Brickell, Economou outlined the 2 key messages for

Calmbacher talking points: it was his report, he signed it, he knew it was going to the court,

he never contested it until now, and that the pollution levels exceed the Ecuadorian limits

which are very lax, and vastly exceed US limits. Ex. 13. As Economou said, The key is to

focus on the scientific data, not on the side issue. Id.

In May 2010, H5 introduced Michael York of Wehner & York, P.C., a litigation

counseling firm, to the LAPs. Ex. 44. York subsequently worked with H5 and other members of

the LAPs team on various media relations issues, including revising press releases intended to

drive down Chevrons share price. See, e.g., Ex. 45. H5 later oversaw the formation of a new

strategic communications plan for the LAPs, which was managed primarily by Todd Elmer

(H5s former Director of Communications and Public Affairs), Hinton, and York. See Ex. 46;

Ex. 84.

5. H5s Role in Obtaining Financing from DeLeon to Further the LAPsScheme

In addition to actively participating in the LAPs scheme to defraud Chevron, H5 played

a lead role in obtaining and structuring funding for the enterprise, including funds to pay experts,

lawyers, and public relations personnel and to execute the cleansing expert process and other

activities in furtherance of the plan to extort money from Chevron.

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In November 2009, the same month in which Kohn officially informed Donziger he no

longer would finance the Lago Agrio case, Economou contacted Burford Capital to solicit

investment capital for international judgment enforcement activities in connection with the Lago

Agrio litigation. RICO Opinion at 167. As this Court concluded: There is not much doubt

that Donziger misled Burford either by misstating or failing to disclose material facts in his

determination to raise money to pay for the litigation. RICO Opinion at 175.

H5 was also actively involved in securing millions of dollars in investments from

DeLeon and his company, Torvia Limited. Donziger introduced Economou and DeLeon in

November of 2009. Ex. 48. At the time, Donziger explained to DeLeon that H5 was helping us

gain a more sustainable financial footing for the case. I think they could benefit from your

expertise and I want you to know what they are planning given your importance as our lead

outside investor. Id.at 1. From January through March of 2010, H5 worked with Donziger,

Woods, and DeLeon to finalize a funding agreement pursuant to which DeLeon provided

$500,000. Exs. 49-50;see also, e.g., Exs. 51-53.

In the summer of 2010, H5, Woods, and Donziger addressed amendments that DeLeon

requested in relation to the previously-executed March 2010 agreement and additional funding

proposals. See, e.g., Exs. 54-55. Throughout 2010, H5 continued to work with Donziger and

DeLeon with respect to procuring additional funding from DeLeon, as well as on structuring the

Burford funding agreement and assisting in the negotiation of the Intercreditor Agreement. See,

e.g., Exs. 58-62; Ex. 87.

6. H5s Involvement in Establishing AmazoniaBeginning in or around April 2011months after the RICO case began, and Chevrons

detailed complaint was filedH5 began working on a project to create an offshore vehicle to

finance the Lago Agrio litigation and hold and distribute judgment proceeds. This project was

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alternately referred to as the Amazonia Project or NewCo. Ex. 47; Exs. 56-57; Exs. 63-65;

Ex. 67; Chevron Corp. v. Donziger, 11 Civ. 0691, Dkt. 1899 at 2 (S.D.N.Y. Apr. 11, 2014)

(stating Amazonia [Recovery Limited] is a corporation that exists to enforce the Ecuadorian

judgment against Chevron and to distribute any funds recovered from that enforcement.). As

with prior efforts, the goal appeared to be to keep the proceeds [of any Ecuadorian judgment]

out of Ecuador. Ex. 66; Ex. 68.

H5 took a lead role in planning for Amazonia, including creating a proposed budget to

support various aspects of the LAPs efforts, including legal fees in Ecuador and the U.S., press,

and lobbying. Eoin Beirne of H5 emailed the budget to Juan Pablo Navas at Nextant, suggesting

that they check the allocations with Steven. Exs. 85-86.

This project ultimately resulted in the creation of an entity named Amazonia Recovery

Limited (Amazonia), which the LAPs incorporated in Gibraltar in May 2012. See Ex. 68.

Amazonia currently serves as a depository for financing provided to the LAPs and as a vehicle

for distributing any enforcement proceeds to the conspirators who contributed to the fraudulent

and extortionate scheme. See Chevron Corp. v. Donziger, 11 Civ. 0691, Dkt. 1899 at 2

(S.D.N.Y. Apr. 11, 2014) (stating Amazonia [Recovery Limited] is a corporation that exists to

enforce the Ecuadorian judgment against Chevron and to distribute any funds recovered from

that enforcement.). DeLeons funding entity, Torvia, is a shareholder in Amazonia, and

DeLeons right-hand, Julian Jarvis, is a member of Amazonias board of directors. See Ex. 68.

7.

Prior Discovery from H5

Chevron already obtained some discovery from H5 in prior litigations. But the discovery

sought here is different.

Chevron served H5 with a subpoena in connection with the Count 9 action on July 20,

2011. Ex. 3. Chevron deposed Economou during Count 9 proceedings in his individual

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capacity, on topics limited to Count 9, as all other discovery was stayed. See Chevron Corp. v.

Donziger, 11 Civ. 0691, Dkt. 279, at *2 (S.D.N.Y. Apr. 12, 2013). On September 19, 2011, H5

produced approximately 334 documents totaling approximately 622 pages, but the Second

Circuit stayed the action before Chevrons Count 9 discovery from H5 was completed. Chevron

Corp. v. Naranjo, Nos. 11-1150-cv(L), 111264cv(con), 112259op(con), 2011 WL

4375022, at *1 (2d Cir. Sept. 19, 2011).

On November 30, 2012, Chevron served H5 with a second document subpoena in

connection with the RICO action. Ex. 4. H5 produced approximately 9,290 documents in

response to that subpoena, totaling approximately 22,846 pages. H5 also produced privilege logs

listing 8,197 documents as withheld on behalf of an assertion of privilege by Donziger or the

LAPs. Chevron Corp. v. Donziger, 11 Civ. 0691, Dkts. 1106-1, 1106-2, 1106-3 (S.D.N.Y. Apr.

12, 2013). The parties were unable to come to an agreement as to the documents over which H5

claimed privilege, and Chevron moved to compel. Id. at Dkts. 1106, 1106-32. However, the

Court ordered the parties to meet and confer further, which resulted in an amicable resolution of

H5s privilege objections (which were made on behalf of Donziger and the LAPs). Id. at Dkt.

1150. As a result of those negotiations, Chevron was permitted to review the logged documents

and select 1,000 documents for production. Id. at Dkts. 1202, 1563. Chevron is permitted to use

those documents in any related proceeding, for any purpose.

Chevron does not seek re-production here of any documents H5 has previously produced.

Rather, the subpoena is specifically limited only to documents created or received after the date

of the last subpoena, as well as limited additional categories of documentsnamely, any

documents related to DeLeon, Torvia or Amazoniato ensure those most relevant to the

Gibraltar and Enforcement Proceedings have been produced.

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There is little doubt that H5 has additional relevant information for discovery. Brickell

has never been deposed. And although Economou was deposed by Chevron during the Count 9

proceedings, the topics were limited to those relevant to Count 9, and Economous attorneys and

attorneys for the LAPs instructed Economou not to answer at least 25 times on alleged privilege

grounds. Ex. 69 at 59:23-63:2; 64:13-66:4; 66:24-67:9; 67:20-68:11; 75:4-12; 81:19-84:18;

86:20-87:14; 91:17-94:25; 95:2-96:21; 97:5-98:13; 100:19-103:15; 105:21-106:7; 109:7-19;

111:16-112:10; 112:20-114:2; 117:3-19; 133:2-16; 137:10-140:11; 189:5-190:16; 195:18-196:7;

198:21-200:22; 221:20-222:20; 222:21-223:13; 278:8-23; 278:24-279:14. Accordingly, to date,

Chevron has not been able to fully probe the extent of H5s knowledge of and participation in the

scheme.

B. The Gibraltar ProceedingOn December 17, 2012, Chevron filed a claim before the Supreme Court of Gibraltar

against Gibraltar-based Russell DeLeon and Torvia Limited for their previous and ongoing

involvement in the conspiracy to defraud and extort Chevron. Ex. 70. Chevron alleged that the

defendants knew or were recklessly indifferent to the commission of the numerous frauds in

Ecuador and the United States in furtherance of Donziger and the LAPs scheme. As noted in

Chevrons Particulars of Claim, DeLeon and Torvia have provided millions of dollars in funds to

support the Lago Agrio litigation, have participated in an unlawful means conspiracy and a

conspiracy to injure, and engaged in unlawful interference with Chevrons economic interests.

Id.at 106-10.

The Supreme Court of Gibraltar recently denied DeLeon and Torvias motion to dismiss

the case, finding that Chevron had demonstrated sustainable causes of action to support its

claims. Ex. 1. The decision followed a five-day hearing by the court and its review of thousands

of pages of documents, many of which were originally produced to Chevron in Section 1782

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proceedings across the United States. See id. 3, 6, 41(ii) (noting the voluminous record and

information Chevron obtained in part through 1782 petitions).

In a 72-page opinion, the court rejected defendants claim that Chevron was launching an

impermissible collateral attack upon the decisions of courts of competent jurisdiction in

Ecuador. . . . Id. 44, 48. The court noted that it was not impressed with [DeLeons and

Torvias] submissions that the [Lago Agrio Court] at first instance disregarded the Calmbacher

and Cabrera reports and was not convinced that the Ecuadorian courts considered Chevrons

allegations either at trial or on appeal. Id. 48(i), (xvi). The court noted that [i]f the Appeal

court in Ecuador had before it anything like the evidence which has been put before me, it is

indeed surprising on the face of it that at the least a rehearing [on Chevrons fraud allegations in

the Lago Agrio litigation] was not ordered and that it is difficult to envisage how [Chevron]

could have properly and fairly contested the [Lago Agrio] proceedings if its allegations of

wholesale corruption of the judiciary and Government [of Ecuador] are true. Id. 48(vi), (ix).

This ruling paves the way for Chevron to seek discovery in advance of trial.

C. The Enforcement ProceedingsAs part of the ongoing scheme to defraud Chevron, Patton Boggs proposed a multi-

jurisdictional strategy for expeditiously delivering the Aguinda Plaintiffs [LAPs] their due

recovery. RICO Opinion at 167 (alteration in original). The strategy called for attacking

Chevron on multiple fronts in the United States and abroad in order to leverage the

expense, risks, and burden to Chevron of defending itself in multiple jurisdictions to achieve a

swift recovery, most likely by precipitating a settlement. Id. at 167-168. In pursuit of this

strategy, the LAPs are already seeking enforcement of the Ecuadorian judgment against

subsidiaries of Chevron in multiple jurisdictions, and plan to file enforcement actions in others.

Id. at 293.

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For example, on June 27, 2012, the LAPs filed an action against Chevron in the Superior

Court of Justice (STJ) in Brasilia, Brazil, for recognition of the Ecuadorian judgment. Ex. 80. On

March 11, 2013, Chevron filed its opposition to the LAPs request for exequatur of the Lago Agrio

judgment. Champion Dec. 75. Chevron has also submitted several supplemental petitions to

provide the STJ with new evidence as it is produced. The action remains pending, and is expected

to take several years to resolve. Similarly, on November 21, 2012, the LAPs filed an exequatur

complaint in Argentinas National Civil Trial Court 61 against Chevron for recognition of the

Ecuadorian judgment. Ex. 81. On February 27, 2014, Chevron filed an opposition to the LAPs

exequatur request. Champion Dec. 76. On March 11, 2014, an apostilled copy of the RICO

judgment was filed in the Argentine enforcement proceedings attached to a 38-page filing

highlighting the key overlap between the courts findings of fact and Chevrons allegations of

fraud in its opposition to the LAPs exequatur request. Champion Dec. 77. The action is

ongoing.

Furthermore, the LAPs maintain a list of approximately 30 potential countries that

recognize foreign judgments and where Chevron has assets and have vowed to file enforcement

actions in these countries as necessary to ensure that the full amount of the judgment can be

satisfied. Ex. 74 at 2.

III. ARGUMENTTo obtain discovery under 28 U.S.C. 1782, the applicant must satisfy the statutory

requirements as well as certain discretionary factors. The discovery Chevron seeks is highly

relevant to the Gibraltar proceeding and the Enforcement Proceedings, and meets the minimal

showings required by 1782. Chevrons request is narrowly tailored to obtain only those

documents not previously produced in response to subpoenas to H5 in connection with the RICO

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action. Chevron also seeks depositions of Nicolas Economou, Julia Brickell, and a deponent

from H5 to provide testimony pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure.

A. The Information Sought Is Highly Relevant and Presumptively Discoverable UnderSection 1782

Where the information sought is relevant, it is presumptively discoverable under

Section 1782. In re Bayer AG, 146 F.3d 188, 196 (3d Cir. 1998) (relevant evidence is

presumptively discoverable under 1782 . . . .). Since 2009, Chevron, the LAPs, and the

Republic of Ecuador all have sought Section 1782 discovery from multiple sources in aid of

ongoing Ecuadorian litigation, as well as related international arbitration between the Republic

of Ecuador and Chevron, including before this Court. SeeIn re Application of Chevron Corp.,

736 F. Supp. 2d 773 (S.D.N.Y. 2010);In re Application of Chevron Corp., 749 F. Supp. 2d 141

(S.D.N.Y. 2010). All of Chevrons applications that have been decided to date have been

granted. Ex. 75.

As discussed above, the discovery sought here is highly relevant to the Gibraltar

proceeding and the Enforcement Proceedings because of H5s involvement in and knowledge of

securing funding from DeLeon, as well as H5s involvement in and knowledge of the creation

and use of Amazonia to facilitate funding and distribution of judgment proceeds. H5 is likely to

have additional important information, for example, regarding DeLeons knowledge for purposes

of the Gibraltar proceeding. Although H5 was soliciting and negotiating funding from DeLeon

and Torvia, it also was involved in a number of the key aspects of the underlying fraud,

including the obstruction of the Stratus 1782 proceedings, the cleansing process, and the public

pressure campaign. H5 likely can speak to what information was shared with DeLeon while he

was making his investment decisions, and the information and explanations shared with DeLeon

when evidence of the frauds began to emerge in 2010 and when various courts decided that there

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was prima facie evidence of crime/fraud. Accordingly, H5, Economou and Brickell are likely to

have information relevant to DeLeon and Torvias knowledge of or reckless indifference

regarding the fraud in the Lago Agrio and related litigations.

B. The Requested Discovery Meets the Statutory Requirements of Section 1782Discovery under 28 U.S.C. 1782 is proper if: (1) directed at someone found within the

District; (2) intended for use before a foreign tribunal; (3) based upon the application of a person

interested in the foreign proceeding; and (4) not disclosing privileged materials. The discovery

Chevron seeks in the present application satisfies each requirement.

1.

H5, Economou, and Brickell Are All Found Within this District and theDiscovery Sought Is Intended for Use Before a Foreign Tribunal

Both Economou and Brickell live in Manhattan and, accordingly, can be found in this

district. See In re Campania Chilena de Navegacion, No. 03 CV 5382 (ERK), 2004 WL

1084243, at *4 (E.D.N.Y. Feb. 6, 2004) (finding that physical presence in New York satisfied

1782s requirement that the target reside or be found in the district);see also In re Edelman, 295

F.3d 171, 179 (2d Cir. 2002) (holding that a witness who does not reside in New York may be

found in the district merely by being served with a subpoena there);In re Oxus Gold PLC,

MISC No. 06-82-GEB, 2007 WL 1037387, at *3-4 (D.N.J. Apr. 2, 2007) (holding that a resident

of Russia who lived two months a year in New Jersey was found within that district).

Similarly, H5 is found in the Southern District of New York. A corporation is

found in a district where it conducts systematic and continuous activities. See In re

Godfrey, 526 F. Supp. 2d 417, 422 (S.D.N.Y. 2007) (citing Hans Smit,American Assistance to

Litigation in Foreign and International Tribunals: Section 1782 of Title 28 of the U.S.C.

Revisited, 25 Syracuse J. Intl L. & Com. 1, 10 (1998)). Courts considering 1782 petitions

against corporations have held that a corporation is found in a district when the corporation

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would be subject to personal jurisdiction in the district. See In re Application of Inversiones y

Gasolinera Petroleos Valenzuela, S. de R.L., No. 08-20378-MC, 2011 WL 181311, at *8 (S.D.

Fla. Jan. 19, 2011) ([S]ince it is undisputed that Exxon is subject to personal jurisdiction in this

District by virtue of its continuous and systematic activities, the undersigned concludes that

Exxon is found here within the meaning of section 1782.) (footnote omitted).

H5s continuous and systematic contacts with Manhattan plainly satisfy this requirement.

To assess whether a foreign corporation has maintained . . . continuous and systematic contacts

with New York, courts focus on, among other factors: whether the company has an office in the

state, whether it has any bank accounts or other property in the state, whether it has a phone

listing in the state, whether it does public relations work there, and whether it has individuals

permanently located in the state to promote its interests. Sandoval v. Abaco Club on Winding

Bay, 507 F. Supp. 2d 312, 315-16 (S.D.N.Y. 2007) (quoting Wiwa v. Royal Dutch Petroleum

Co., 226 F.3d 88, 98 (2d Cir. 2000)). In Wiwa,the Second Circuit held that the presence of an

Investor Relations office in New York City sufficed to confer jurisdiction. Wiwa, 226 F.3d at 99.

Much like the defendant in Wiwa, H5 has a New York office (located at 340 Madison Avenue,

New York, New York). Ex. 76. This office has individuals permanently located in the state to

promote H5s interests, including the companys Executive Managing Director and General

Counsel, Julia Brickell, and its Chief Executive Officer, Nicholas Economou. Ex. 57; Ex. 26 at

7. As H5s engagement with the LAPs confirms, the company offers consulting services out of

its New York office. Ex. 26 at 7. And as that agreement further demonstrates, H5 has availed

itself of the protections of New York law by choosing to apply it in binding arbitrations with its

clients. Id. Thus, H5 is a business that may be found in this district. See Metro. Life Ins. Co.

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v. Robertson-Ceco Corp., 84 F.3d 560, 572-73 (2d Cir. 1996) (holding that a business had

continuous and systematic contacts with Vermont even without physical presence in the state).

And the discovery Chevron seeks is for use in proceedings before foreign tribunals: the

Supreme Court of Gibraltar and the Enforcement Proceedings which the LAPs have filed and

plan to file in multiple foreign jurisdictions. See, e.g.,Intel,542 U.S. at 258, 124 S. Ct. at 2479.

The fact that certain of the Enforcement Proceedings have yet to be filed is of no consequence.

InIntel, the Supreme Court held that section 1782(a) does not limit the provision of assistance

to pending adjudicative proceedings and that 1782(a) requires only that a dispositive ruling

. . . be within reasonable contemplation. Id.at 253-254, 258-259, 2476-77, 2479-80;see also,e.g.,In re Oxus Gold PLC, 2007 WL 1037387, at *6 (D.N.J. Apr. 2, 2007) (noting the

petitioners claims that it has made plain its intention to pursue litigation and holding that

[t]he fact that any information elicited pursuant to the Section 1782 Order may not be

immediately presented to the foreign courts does not compel that the Section 1782 Order be

vacated); In re Application of Winning (HK) Shipping Co. Ltd., No. 0922659MC, 2010 WL

1796579 (S.D. Fla. Apr. 30, 2010) (granting application for use in foreign and international

arbitration proceedings that Petitioner intendedto commence). Here, there is no question that

additional enforcement actions to be filed by the LAPs are within reasonable contemplation.

See, e.g., RICO Opinion at 292-93; Ex. 74 at 2.

2. Chevron Is an Interested PersonAs the claimant in the Gibraltar proceeding and a party to the Enforcement Proceedings

(as well as a party to potential future enforcement actions), Chevron is an interested person. In

re Strand Invs. Ltd., No. 09-21985-CIV., 2009 WL 2225536, at *1 (S.D. Fla. July 24, 2009)

(interested person includes parties to international proceedings);In re Oxus Gold PLC, No.

MISC 06-82-GEB, 2007 WL 1037387, at *7 (D.N.J. Apr. 2, 2007) (The Supreme Court inIntel

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held that the text of 1782(a), upon the application of any interested person, plainly reaches

beyond the universe of persons designated litigant.) (internal quotation marks and citation

omitted). Accordingly, the statutory prerequisites for discovery under 28 U.S.C. 1782 are met.

3. The Discovery Sought Is Not PrivilegedThe requested discovery is not privileged. First, documents created before October 21,

2010 are subject to the waiver imposed on Donziger in the Chevron Section 1782 proceeding

against him because Donziger has possession, custody, or control over documents in H5s

possession and should have produced them in response to Chevrons subpoena. See In re

Chevron Corp., 749 F. Supp. 2d 170, 185 (S.D.N.Y. 2010) (finding that each and everyprivilege claim with respect to the documents sought by [Chevrons] subpoenas has been

waived); Chevron Corp. v. Donziger,No. 11 Civ. 0691, Dkt. 1012, at *14 (S.D.N.Y. Apr. 12,

2013) (This Court finds that Donziger controlled the documents in Garrs possession and

therefore waived privilege as to all of them.).

Second, in this subpoena, Chevron largely seeks documents related to financing and

distribution of judgment proceeds. These documents do not represent legal advice, United

States v. Mejia, 655 F.3d 126, 132 (2d Cir. 2011), nor do they represent Donzigers or the LAPs

legal theories and strategy [developed] with an eye toward litigation, cf.United States v.

Adman, 134 F.3d 1194, 1196 (2d Cir. 1998) (internal quotation marks omitted). Consequently,

they are not protected by either the attorney-client privilege or the work product doctrine.

Third, even if these documents contained any privileged material, such material was

disclosed to non-privileged third-parties: the various funders of Donzigers and the LAPs

scheme. While these funders may share a commercial interest with Donziger and the LAPs in

seeing that their scheme can continue, such interest is insufficient to create the identical legal

interest necessary to provide for a joint-defense privilege. See United States v. Ghavami, 882 F.

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Supp. 2d 532, 53738 (S.D.N.Y. 2012); SR Intl Bus. Ins. Co. v. World Trade Ctr. Prop. LLC,

No. 01 CIV 9291 (JSM), 2002 WL 1455346, at *1 (S.D.N.Y. July 3, 2002).

4. The Crime-Fraud Exception AppliesThis Court has already held that the crime-fraud exception applies to specific categories

of documents related to the underlying fraudulent scheme against Chevron. To the extent H5 has

documents in those categories and has not already produced them to Chevron, they too are

subject to the crime-fraud exception. Where there is probable cause to believe that a fraud or

crime has been committed by someone and that the communications in question were in

furtherance of the fraud or crime, no privilege or work product protection exists. Chevron Corpv. Donziger, 11 Civ. 0691, Dkt. 905 at 6 (S.D.N.Y. Mar. 15, 2013) (internal marks and emphasis

omitted). Probable cause exists where a prudent person has a reasonable basis to suspect the

perpetration or attempted perpetration of a crime or fraud, and that the communications were in

furtherance thereof. Chevron Corp. v. Donziger, 11 Civ. 0691, Dkt. 1012 at 17-18 (S.D.N.Y.

April 12, 2013) (internal marks omitted).

There is little doubt that crime and/or fraud was committed here, and that H5s work and

communications were in furtherance of aspects of the scheme.4 For example, H5 participated in

4 Numerous other courts have also found that the crime-fraud exception to privilege applies to

documents related to the LAPs fraudulent and extortionate scheme. See Chevron Corp. v.Salazar, 275 F.R.D. 437, 455 (S.D.N.Y. 2011) (Chevron has thus carried its burden ofdemonstrating that the crime-fraud exception applies to the creation of the Calmbacherreport, the Cabrera report, and the cleansing memos.);In re Chevron Corp.(Kamp 1782),

Civil Nos. 10-MC-21JH/LFG, 10MC22 J/LFG., 2010 WL 9545704, at *7 (D.N.M. Sept.13, 2010) (finding that . . . discussions trigger the crime-fraud exception, because they relateto corruption of the judicial process, the preparation of fraudulent reports, the fabrication ofevidence, and the preparation of the purported expert reports by the attorneys and theirconsultants);In re Chevron Corp.(E-Tech 1782), No. 10-cv-1146-IEG (WMc), 2010 WL3584520, at *6 (S.D. Cal. Sept. 10, 2010)) (upholding Magistrate Judges application ofcrime-fraud exception because [t]here is ample evidence in the record that the EcuadorianPlaintiffs secretly provided information to Mr. Cabrera, who was supposedly a neutral court-appointed expert, and colluded with Mr. Cabrera to make it look like the opinions were his

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the obstruction of the Stratus 1782 proceeding, and also helped recruit funders such as Burford

using misrepresentations and lies of omission. See RICO Opinionat 167,supra Sections II.A.2,

II.A.5. In the RICO Opinion, this Court held by a preponderance of the evidence that the LAPs

engaged in obstruction in the Stratus 1782 proceeding, RICO Opinion at 38889, and that there

is not much doubt that Donziger misled Burford either by misstating or failing to disclose

material facts in his determination to raise money to pay for the litigation, id. at 175.5

Furthermore, while there is evidence that H5 was aware of the fraud, such a finding is not

necessary to establish applicability of the crime-fraud exception. In re Grand Jury Subpoena

Duces Tecum Dated Sept. 15, 1983, 731 F.2d 1032, 1038 (2d Cir. 1984) (holding that

communications in furtherance of a crime or fraud are properly excluded from the scope of the

privilege even if the attorney is unaware that his advice is sought in furtherance of such an

own); Chevron Corp. v. Page, No. RWT-11-1942, Hearing Tr. at 11:2-24 (D. Md. Aug. 31,2011) (Ex. 78) (applying crime-fraud exception to documents held by LAPs representativeAaron Page).

5 Among the conduct to which the crime-fraud exception could potentially be found applicable

here is the cleansing expert scheme, in which H5 was an active participant. Section II.A.3,supra. This Court previously declined to apply the crime-fraud exception to that scheme inthe context of denying Patton Boggs motion to quash the discovery subpoena served on it byChevron before the RICO trial, finding insufficient factual basis at that earlier stage,despite whatever questionable conduct may have been done to convince the Ecuadoriancourt to permit their filing. Chevron Corp. v. Donziger, 11 Civ. 0691, Dkt. 905 at 64(S.D.N.Y. Mar. 15, 2013). Chevron submits that the full evidentiary record since adduced atthe RICO trial supports application of the crime-fraud exception to the cleansing expertscheme. Indeed, that evidence established that the cleansing experts themselves were misledin order to procure the reports that the co-conspirators with whom H5 was working on thisproject then submitted to the Ecuadorian court as cover for the Cabrera fraud and the

resulting huge damages figure ultimately awarded there. As this Court found in its opinion:Westenberger of Patton Boggs and Donziger told employees of the Weinberg Group thatCabrera wrote the report and was an independent expert. . . ., and that [t]he WeinbergGroup was not told that Cabrera had met with the LAPs representatives without the LagoAgrio courts knowledge or that Stratus had worked with the LAPs lawyers to write theReport under Cabreras name. RICO Opinion at 178;see also id. at 262 (Donziger did notinform the Weinberg Group or the cleansing experts that Cabrera had not beenindependent). And H5 was unquestionably involved in this cleansing expert process.Indeed, it was Brickell who sent the Weinberg Group the Cabrera Report. Ex. 38.

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improper purpose.); United States v. Kerik, 531 F. Supp. 2d 610, 617 (S.D.N.Y. 2008) ([T]he

statements would still be admissible under the crime-fraud exception, even where, as here, the

attorney was not a knowing participant in the crime or fraud in question.).

C. Discretionary Factors Also Heavily Favor the Requested DiscoveryThe Supreme Court has directed district courts to consider four additional factors in

exercising their discretion to grant a Section 1782 application: (1) whether the person from

whom discovery is sought is a party in the foreign proceeding; (2) the receptivity of the foreign

tribunal to federal-court assistance; (3) whether the request conceals an attempt to circumvent

foreign proof-gathering restrictions; and (4) whether the request is unduly intrusive or

burdensome. See Intel, 542 U.S. at 264-65, 124 S. Ct. at 2483;In re Heraeus Kulzer, GmbH,

No. 09-MC-00017, 2009 WL 2981921, at *2 (E.D. Pa. Sept. 11, 2009), vacated on other grounds

by390 F. Appx 88 (3d Cir. 2010);In re Oxus, 2007 WL 1037387, at *3-4 (D.N.J. Apr. 2, 2007).

As detailed below, each factor weighs in favor of granting the requested discovery.

1. H5, Economou, and Brickell Are Not Parties to the Gibraltar Proceeding orthe Enforcement Actions

One discretionary factor is whether the parties from whom discovery is sought are parties

to the foreign litigation at issue. Intel Corp., 542 U.S. at 264, 124 S. Ct. at 2483;In re Roz

Trading Ltd., Case No. 1:06-cv-02305-WSD, 2007 WL 120844, at *2 (N.D. Ga. Jan. 11, 2007)

(Respondent is not a party to the arbitration, and on this ground alone the firstIntelfactor is

satisfied.). The parties to be subpoenaed here, H5 and two of its executives, are not parties to

the Gibraltar proceeding or the Enforcement Proceedings. This is not a situation where [a]

foreign tribunal has jurisdiction over those appearing before it, and can itself order them to

produce evidence. Intel, 542 U.S. at 264, 124 S. Ct. at 244. The status of H5 as a United States

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resident under the jurisdiction of this Court thus weighs heavily in favor of granting this

Application.

2. The Foreign Tribunal Is Receptive to Federal Court Assistance UnderSection 1782

Section 1782 discovery also is appropriate here because the Gibraltar Supreme Court can

receive and act upon Section 1782 discovery in accordance with its own rules of evidence.

Receptivity is not a question of whether the foreign court would permit discovery in this or any

other particular case; instead, it is an inquiry into whether a foreign legal system would reject

evidence obtained with the aid of section 1782. In re Application. of OOO Promnefstroy, No.

M 19-99 (RJS), 2009 WL 3335608, at *7 (S.D.N.Y. Oct. 15, 2009) (emphasis in original);see

also In re Bayer AG, 146 F.3d 188, 196 (3d Cir. 1998);Euromepa S.A. v. R. Esmerian, Inc., 51

F.3d 1095, 1100 (2d Cir. 1995) (burden is on party opposing Section 1782 discovery to prove

lack of receptivity). To show lack of receptivity, a party must provide authoritative proof that

the foreign tribunal would reject the evidence sought under Section 1782. See Promnefstroy,

2009 WL 3335608, at *7. No such authoritative proof exists here.

Rather, the Gibraltar court is receptive to this discovery as it has already reviewed and

considered thousands of pages of evidence from both Chevron and Defendants DeLeon and

Torvia, much of which was obtained through prior Section 1782 discovery proceedings. Ex. 1 at

6, 41(ii) (stating [t]he bundles [of document submitted by the parties] contain thousands of

pages of documents, including pleadings, statements and judicial and economic authorities on a

wide range of legal issues. I have read them all at least once and discussing the evidence

uncovered by Chevron in various Section 1782 proceedings).

Furthermore, there is no evidence that the courts in Brazil and Argentina would be

unreceptive to Section 1782 discovery. See, e.g.,In re IPC Do Nordeste, LTDA, for an Order

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Seeking Discovery Under 28 U.S.C. 1782, No. 12-50624, 2012 WL 4448886 (E.D. Mich. Sept.

25, 2012) (internal quotations omitted) ([T]here is . . . no conclusive evidence that a Brazilian

court would be unreceptive to materials discovered here.) ;Pott v. Icicle Seafoods, Inc., 945 F.

Supp. 2d 1197, 1200 (W.D. Wash. 2013) (noting a lack of evidence that an Argentinian court

would be unreceptive to Section 1782 discovery).

3. This Application Is an Attempt to Obtain Probative and Relevant Evidencefor a Foreign Proceeding and Does Not Circumvent Foreign Proof-Gathering

Restrictions

The third discretionaryIntelfactor, whether the applicant is attempting to circumvent

foreign proof-gathering restrictions, is meant to preclude bad faith misuse of the process. There

is no requirement for an applicant to seek discovery of the materials from the foreign tribunal

before filing a Section 1782 application. Intel, 542 U.S. at 253, 124 S. Ct. at 2476 (We now

hold that 1782(a) does not impose . . . a [foreign-discoverability] requirement.);see also

Minatec Fin. S. .R.L. v. SI Grp. Inc., No. 1:08-CV-269 (LEK/RFT), 2008 WL 3884374, at *8

(N.D.N.Y. Aug. 18, 2008);In re Bayer, 146 F.3d at 196 (Indeed, a quasi-exhaustion

requirement . . . has been rejected by those courts that have addressed it.).

Every court to have considered Chevrons prior Section 1782 applications, including this

Court, has found that Chevrons requests for discovery into the ongoing fraud are made in good

faith and are not an attempt to circumvent foreign restrictions. See, e.g.,In re Application of

Chevron Corp., 709 F. Supp. 2d 283, 293 (S.D.N.Y. 2010), aff'd sub nom., Chevron Corp. v.

Berlinger, 629 F.3d 297 (2d Cir. 2011) (finding that respondents argument that Chevron

attempted to circumvent foreign proof-gathering restrictions is without merit);In re Chevron

Corp., 753 F. Supp. 2d 536, 54041 (D. Md. 2010);In re Veiga, 746 F. Supp. 2d 8, 25 (D.D.C.

2010) (There is no evidence in the record none that would lead this Court to believe that

Applicants have sought to circumvent the proof-gathering procedures or policies of the foreign

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tribunals or otherwise brought their applications in bad faith.);In re Application of Chevron

Corp., No. 1:10-MI-0076-TWT-GGB, 2010 WL 8767265, at *4 (N.D. Ga. Mar. 2, 2010)

([T]here is nothing before this court to suggest that Chevron is attempting to conceal an attempt

to circumvent foreign proof-gathering restrictions.);In re Application of Chevron Corp., No.

4:10-mc-134, 2010 WL 8814519, at *1 (S.D. Tex. Apr. 5, 2010) (The Court finds that the

Application does not conceal an attempt to circumvent foreign proof gathering restrictions, and

the discovery is not being sought in bad faith.). Furthermore, Gibraltar is a nation with

comparable rules to assist parties in obtaining evidence for use in foreign proceedings. See

Gibraltar Act No. 1948-10 (Evidence Act) 911 (addressing applications for assistance in

obtaining evidence in foreign civil proceedings in another court outside of Gibraltar). Moreover,

Chevrons requests for discovery in aid of the Enforcement Proceedings are also made in good

faith and are not an attempt to circumvent foreign restrictions. See, e.g.,In re Application for an

Order for Judicial Assistance in a Foreign Proceeding in the Labor Court of Brazil, 466 F.

Supp. 2d 1020, 1032 (N.D. Ill. 2006) (finding application for discovery under Section 1782 was

not an attempt to circumvent Brazilian proof-gathering restrictions and that this factor supports

granting the discovery request.). Accordingly, this factor also weighs in Chevrons favor.

4. The Discovery Is Neither Unduly Burdensome Nor IntrusiveChevrons discovery requests are neither unduly burdensome nor intrusive. See London

v. Does 1-4, 279 F. Appx 513, 515 (9th Cir. 2008). The proposed subpoena requests documents

relating to H5s involvement in and knowledge of securing funding from DeLeon and Torvia, as

well as documents related to the underlying fraudulent conduct that H5 and DeLeon furthered

with their assistance to and funding of the LAPs. To the extent the subpoena overlaps with prior

subpoenas, it is limited to categories of documents most relevant to the Gibraltar proceeding that

H5 may not have previously produced, and documents related to the underlying fraud that post-

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date the prior subpoenas and that H5 did not previously produce or log in response to those

subpoenas, i.e., documents which were created or received after November 30, 2012. Compare

Exs. 3-4 with Exhibit A.

The proposed depositions are amply justified. Economou refused to testify numerous

times during his Count 9 deposition in response to questions about H5s knowledge of and

participation in key aspects of the scheme. There is no genuine dispute that issues such as H5s

participation in the Cabrera fraud, the cleansing experts, and negotiation of funding agreements

from DeLeon and others go to the heart of a criminal enterprise that resulted in the procurement

of a fraudulent judgment. While Economou was deposed in the Count 9 action, that deposition

was restricted to topics relevant to that proceeding, and H5s interactions with and knowledge

relating to DeLeon and Torvia were not a focus. In addition, the documents produced to date

show that Julia Brickell, who was not previously deposed, was also involved in these activities

and is an important source of information. The Court should permit these depositions, as well as

a deposition of a deponent from H5 pursuant to Rule 30(b)(6) of the Federal Rules of Civil

Procedure, to proceed. The Court should also rule that, to the extent any claim of privilege is

raised, the crime/fraud exception should apply to prevent H5 from continuing to contribute to the

LAPs ongoing efforts to obstruct and conceal the true extent of the outrageous misconduct at the

heart of the Lago Agrio litigation, the Gibraltar proceeding, and the Enforcement Proceedings.

In short, Chevron has tailored its requests to seek only those materials relevant to the

Gibraltar proceeding and enforcement actions, and obtaining this discovery from H5 is crucial to

Chevrons efforts to uncover further evidence of an ongoing fraud and its financing. See

London, 279 F. Appx at 515 (no undue burden [g]iven the need for the evidence, and the

minimal invasion required where 1782 request tailored narrowly).

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