RICARDO S. MARTINEZ
Devin T. Theriot–Orr, Robert H. Gibbs, Gibbs Houston Pauw, Seattle, WA, for Plaintiffs. Melissa Leibman, Washington, DC, Priscilla To–Yin Chan, Seattle, WA, for Defendants.
ORDER ON MOTION FOR A PRELIMINARY INJUNCTION
RICARDO S. MARTINEZ, District Judge.
This matter is before the Court for consideration of a motion for a preliminary injunction filed by plaintiffs. Dkt. # 32. The Court heard oral argument on this motion on Monday, November 1, 2010 and has fully considered the parties' memoranda and exhibits. For the reasons set forth below, the motion shall be granted as to the alternative relief requested by plaintiffs.
FACTUAL BACKGROUND
Plaintiff Rashid Abdur–Rahman, a computer programmer and citizen of India, entered the United States in 2000 as the beneficiary of a non-immigrant H–IB work visa. His wife and two children, also plaintiffs in this action, accompanied him on visas as dependants. The family has lived lawfully and continuously in the United States for nearly ten years, during which time they had another child. This child, a United States citizen, is the fifth plaintiff in this action.
Plaintiffs allege in their First Amended Complaint that Mr. Abdur–Rahman's employer filed I–129 petitions to extend his H–IB status in 2001, 2003, and 2004, and all were approved. The employer submitted I–129 petitions to extend plaintiff's employment in 2006 and 2007, but these were not timely adjudicated. As a result, the company could not employ Mr. Abdur–Rashid and he became unemployed in March, 2007. Amended Complaint, Dkt. # 51, ¶¶ 19–30. That same month, the employer filed an I–140 immigrant visa petition, seeking to employ Mr. Abdur–Rashid as a Programmer Analyst, based on an approved Department of Labor certification for the position. Id., ¶ 29.
Plaintiff was employed during this time by either Wiztech, Inc., or its subsidiary Intellibytes, Inc. For the purposes of this factual recitation, the Court does not distinguish between the two and shall refer to both simply as plaintiff Abdur–Rahman's employer.
On August 3, 2007, the four family members filed I–485 applications for adjustment of status to Lawful Permanent Resident (“LPR”), based on the pending I–140 petition. At this time, there was a visa available for Mr. Abdur–Rahman in the Second Preference category, as a worker with an advanced degree. Amended Complaint, ¶ 34. The family members also filed four I–765 applications for Employment Authorization Documents (“EAD”). The I–140 petition filed in 2007 was approved June 23, 2009. Id., ¶ 46. In the meantime, the two pending I–129 petitions were denied, in January of 2009. Id., ¶ 42. These denials were appealed by the employer. The United States Customs and Immigration Service (“USCIS”) Administrative Appeals Office (“AAO”) issued a decision dismissing the appeal of the 2006 I–129 petition on June 29, 2009; the appeal of the 2007 I–129 decision remained pending. Id., ¶ 49. On July 10, 2009, USCIS denied the plaintiffs' I–485 applications for adjustment of status, on the basis that the 2009 denial of the 2006 I–129 petition placed them out of lawful immigration status at the time the I-485 applications were filed.
Plaintiffs filed this action in September, 2009, originally asserting jurisdiction under the Administrative Procedures Act (“APA”) and Mandamus Act, and seeking review of the denial of the 2006 and 2007 immigrant benefit applications. After filing, the parties negotiated and defendants agreed to re-open the I–485 applications for adjustment of status, as well as the 2006 and 2007 I–129 petitions. Dkt. # 17. The stipulation specifically states, “The Plaintiffs' I–485 adjustment of status applications are now pending. Plaintiffs' travel documents and employment authorizations remain valid and they are eligible to renew them at expiration.” Id. (emphasis added). This stipulation was entered by the Court as an Order. Id. The parties also entered several stipulations to hold the matter in abeyance pending resolution of the underlying administrative proceedings, with the latest agreement extending the stay until August 31, 2010. These stipulations were adopted by the Court and entered as Orders. Dkt. 23, 25.
The family was during this time living in Western Washington and Mr. Abdur–Rahman was working for Cascade Engineering (“Cascade”). Cascade filed a new H–1B petition which was approved on June 28, 2010. Mr. Abdur–Rahman and his non-citizen family members were required to apply for the necessary visa outside the US, so the family planned to travel to India for this purpose. Amended Complaint, Dkt. # 51, ¶¶ 54, 55. To insure that their travel outside the United States did not constitute an abandonment of their adjustment of status applications, the four non-citizen plaintiffs each submitted a Form I–131, Application for Reentry Permit, also known as “Advance Parole.” Plaintiffs' counsel in this action filed an Entry of Appearance with each I–131 application. Amended Complaint, ¶ 5 6. Two of the four I–131 applications were initially rejected on the erroneous basis that the applicant did not have a pending I–485 application. See, Dkt. # 26–5. Plaintiffs filed a motion to enforce the previous stipulation regarding the status of their I–485 applications, which stated that they were still pending. Dkt. # 26. After further delay, totally a month in all, the four I–131 applications for advance parole were approved, and plaintiffs withdrew their motion to enforce the stipulation. Dkt. # 30.
Regulations promulgated by the Department of Homeland Security state, in part, “The travel outside of the United States by an applicant for adjustment who is not under exclusion, deportation, or removal proceedings shall not be deemed an abandonment of the application if he or she was previously granted advance parole by the Service for such absences, and was inspected and paroled upon returning to the United States.” 8 C.F.R. § 245.2(a)(4)(ii)(B). The regulation goes on to state, “If the adjustment of status application of such individual is subsequently denied, he or she will be treated as an applicant for admission, and subject to the provisions of section 212 and 235 of the [Immigration and Naturalization] Act.” Id.
On the other hand, travel outside the United States by an applicant for adjustment of status “who is in lawful H–1 or L–1 status” shall not be deemed abandonment if upon return, “the alien remains eligible for H or L status, is coming to resume employment with the same employer for whom he or she had previously been authorized to work as an H–1 or L–1 nonimmigrant, and, is in possession of a valid H or L visa (if required.) 8 C.F.R. § 245.2(a)(4)(ii)(c).
This delay forms part of the basis for plaintiffs' due process claims.
With advance parole documents in hand, the family departed for India on July 26, 2010, for what was intended to be a one-month visit. The two older children in the family needed to return by September 1, 2010 in time for the start of the school term. They applied at the United States consulate at Hyderabad, India for their H–1B visa on July 30, 2010. The visas were not issued. Amended Complaint, Dkt. # 51, ¶ 62. The previous day, on July 29, 2010, the AAO issued a decision revoking the previously-approved I–140 immigrant worker petition submitted by plaintiff's previous employer, Wiztech/Intellibytes. Plaintiffs, as the beneficiary rather than the petitioner on this petition, did not receive notice of this revocation either personally or through counsel. Id., ¶ 64, 69; Declaration of Devin Theriot–Orr, Dkt. # 35, Exhibit H. This revocation retroactively rendered plaintiffs “out of lawful status” in 2007 when they applied for Adjustment of status to LPR. Their I–485 applications were denied on August 11, 2010. Declaration of Devin Theriot–Orr, Dkt. # 35, Exhibit I. Again, neither plaintiffs not their current counsel received notice of this action. Notice was sent instead to plaintiffs' former counsel in the I–129 and I–140 worker benefit petitions, despite the fact that plaintiffs had constantly kept their United States address current and new counsel had entered an appearance on their behalf with the filing of the I–131 applications. Amended Complaint, Dkt. # 51, ¶¶ 72–74. Counsel's representation in this action led to the reopening of their I–485 applications in October of 2009. Dkt. # 17.
Unaware that the I–485 applications had been denied, plaintiffs boarded their flight for their return to the United States. They arrived at Chicago on August 30, 2010 and were denied entry. Plaintiffs state that their advance parole documents were seized, they were denied an opportunity to speak with their attorney, and their cell phone was taken away. Declaration of Rashid Abdur–Rahman, Dkt. # 33. When plaintiff Abdur–Rahman protested that they had a case pending in this Court and provided copies of court documents, including the stipulation regarding the I–485 application, a Customs and Border Patrol (“CBP”) agent stated that the case had been “withdrawn.” Id., ¶¶ 7–8. Plaintiffs were given the choice between (a) withdrawing their application for admission and returning immediately to India on the same airplane that brought them to the U.S., or (b) spending a night in detention (including the children), and being deported the following day, with the resulting bar on re-entry. Amended Complaint, Dkt. # 51, ¶ 75; Declaration of Abdur–Rahman, Dkt. # 33, ¶ 9. Although plaintiffs' youngest child, as a U.S. citizen, was “admitted”, no one explained to the family how their three-year-old child could enter the United States without his parents. Id., ¶ 11.
It appears that CBP agents did not advise plaintiffs of the provision for temporary parole into the United States under the “urgent humanitarian reasons” or “significant public benefit” considerations which may be applied to inadmissible aliens (particularly juveniles) in expedited removal proceedings under 8 C.F.R. § 235.3(b). 8 C.F.R. § 212.5(b).
Faced with these choices, plaintiffs elected to return to India rather than face a night in detention and deportation with the consequent bar to re-entry. Plaintiffs deny that their withdrawal of their application of admission was “voluntary” but instead was coerced. After the decision was made to re-board the airplane to return to India, plaintiffs were allowed one telephone call, to someone other than an attorney. Plaintiff Abdur–Rahman elected to call his brother, a U.S. citizen. Id., ¶¶ 12, 13.
After their return to India, plaintiffs amended their complaint to add two additional causes of action based upon their denied entry. They contend that they were denied due process by misapplication of agency rules and regulations, including denial of an opportunity for a hearing, denial of an opportunity to speak to counsel, lack of notice regarding their I–485 and advance parole revocation, and other irregularities. Amended Complaint, ¶¶ 158–168. They also contend that their right to equal protection was violated because they are members of a “suspect class” (Muslim), and were treated differently than other arriving, non-Muslim aliens. The two women in the family wear hajib and are thus “identifiably Muslim.” Amended Complaint, ¶¶ 169–173.
Plaintiffs have now moved for a preliminary injunction, asking that the Court either (1) set aside the revocation of the I–140 petition and the denials of the I–485 applications, and direct the agency to readjudicate the applications in accordance with applicable statutes and regulations, or (2) find that the plaintiffs are entitled to a removal hearing where they have an opportunity to renew their applications for adjustment of status and seek alternative forms of relief. Defendants have opposed the motion on the basis of lack of jurisdiction, as well as on the merits of plaintiffs' claims to relief.
DISCUSSION
I. Preliminary Injunction Standard
The Supreme Court has cautioned that a “preliminary injunction is an extraordinary and drastic remedy never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 376, 172 L.Ed.2d 249 (2008) ( citing Munaf v. Geren, 553 U.S. 674, 128 S.Ct. 2207, 2219, 171 L.Ed.2d 1 (2008)). Courts must balance the competing claims of injury and consider the effect on each party of granting or denying the injunction. “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter, 129 S.Ct. at 374; accord Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir.2009).
II. Jurisdiction
In opposing the motion for a preliminary injunction, defendants assert three jurisdictional barriers, arguing that (1) the Court lacks jurisdiction to review USCIS's revocation of advance parole; (2) the Court lacks jurisdiction to review decisions of consular officers declining to issue a visa; and (3) the Court lacks jurisdiction to review decisions to commence removal proceedings or execute removal orders. Defendants' Opposition, Dkt. # 42, pp. 12–13. While each of these jurisdictional bars may apply in appropriate cases, none applies here. (1) Advance parole revocation
Defendants contend that advance parole is a discretionary benefit which is expressly precluded from review under 8 U.S.C. § 1252(a)(2)(B)(ii). The statute states, in relevant part, that “no court shall have jurisdiction to review ... (ii) any ... decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this title to be in the discretion of the Attorney General or the Secretary of Homeland Security....” 8 U.S.C. § 1252(a)(2)(B)(ii). Defendants contend that advance parole is a discretionary benefit, citing 8 U.S.C. § 1182(d)(5)(A) (the Secretary may “in his discretion parole in to the United States .. any alien.”)
Defendants contend that this case is governed by Hassan v. Chertoff, 593 F.3d 785 (9th Cir.2010), in which the Ninth Circuit Court of Appeals affirmed a district court ruling that it lacked jurisdiction to consider the revocation of advance parole because the revocation, like the grant of advance parole, is discretionary. Hassan, 593 F.3d at 785. The appellate court's discussion relied on 8 U.S.C. § 1182(d)(5)(A), which states, in relevant part,
The Attorney General may, ... in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States....[W]hen the purposes of such parole have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States. 8 U.S.C. § 1182(d)(5)(A). The court also cited to the implementing regulation for this section, which states,
upon accomplishment of the purpose for which parole was authorized or when in the opinion of one of the officials listed in paragraph (a) of this section, neither humanitarian reasons nor public benefit warrants the continued presence of the alien in the United States, parole shall be terminated upon written notice to the alien and he or she shall be restored to the status that he or she had at the time of parole. 8 CFR § 212.5(e)(2)(i). Hassan, 593 F.3d at 790.
Here, it is undisputed that no notice of the advance parole revocation was provided to plaintiffs. Nor was there any actual decision made to revoke the advance parole; according to defendants the revocation was “automatic” upon the denial of plaintiffs' I–485 applications for adjustment of status. That being so, it was not a “discretionary” decision insulated from review by this Court.
Plaintiffs have invoked the notice requirement of § 212.5(e)(2)(i) in their due process claim, arguing that defendants violated the regulation by failing to provide notice of the revocation of their advance parole. Further, they argue that under this section defendants were required to restore plaintiffs to the status they had at the time they received their advance parole. Plaintiffs' Reply, Dkt. # 43, p. 6. In opposition to these claims, defendants asserted at the hearing on this motion that this section applies to parole, not to “advance parole,” and therefore not to plaintiffs. If that is so, then Hassan, which was based squarely on 8 CFR § 212.5(e)(2)(i), is inapposite and does not control the result there. On the other hand, if this section does apply to advance parole, then plaintiffs' due process rights were violated by the failure to give them notice and failure to restore them to their prior status.
On the other hand, defendants cited to § 212.5(e)(2)(i) as the basis for the termination of plaintiffs' advance parole in their opposition to the preliminary injunction. Defendants' Opposition, Dkt. # 42, p. 12.
Defendants also rely on Hassan for the assertion that “it is well-settled that the agency's discretionary determination regarding the grant or denial of advance parole, are expressly precluded from judicial review pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii). Defendants' Opposition, Dkt. # 42, p. 12, citing Hassan, 593 F.3d at 789. However, the Hassan court carefully distinguished cases involving constitutional claims, noting that “[h]owever, ‘[w]e retain jurisdiction to review constitutional claims, even when those claims address a discretionary decision.’ ” Hassan, 593 F.3d at 789; quoting Ramirez–Perez v. Ashcroft, 336 F.3d 1001, 1004 (9th Cir.2003). As the Ninth Circuit Court of Appeals has explained, “decisions that violate the Constitution cannot be ‘discretionary,’ so claims of constitutional violations are not barred by § 1252(a)(2)(B).” Kwai Fun Wong v. United States, 373 F.3d 952, 963 (9th Cir.2004); citing Torres–Aguilar v. INS, 246 F.3d 1267, 1270 (9th Cir.2001). Further, “decisions made on a purely legal basis may be reviewed, as they do not turn on discretionary judgment.” Id. The appellate court found on this basis that “the district court properly exercised jurisdiction over Wong's claims regarding advance parole, adjustment of status, and parole revocation ...” Id., at 966.
The Court finds that Wong and cases cited therein control this Court's jurisdiction over plaintiffs' due process and equal protection claims. Either the automatic revocation of advance parole was not a discretionary decision insulated from review or, even if it was discretionary, plaintiffs' claims are constitutional ones over which the Court may exercise jurisdiction. Wong, 373 F.3d at 963, 966. The Court will proceed to the merits of this claim in the section below.
(2) Review of the Consular Officer's Action or Inaction
Defendants also assert that “the Court lacks jurisdiction to review decisions of consular officers declining to issue a visa.” Defendants' Opposition, Dkt. # 42, p. 13. Defendants base this argument on the doctrine of consular nonreviewability, based on authority noting that “it has been consistently held that the consular official's decision to issue or withhold a visa is not subject to administrative or judicial review.” Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir.1986). However, this rule applies to the consular official's decision to grant or deny a visa, not to inaction. Id. Thus, a district court has jurisdiction to consider a petition to compel the consular official to take action he has withheld. Raduga USA Corp. v. United States Department of State, 440 F.Supp.2d 1140, 1146 (S.D.Ca.2005). Further, there are exceptions to the general rule on nonreviewability, such as when a consular official denies a visa on illegitimate grounds. Patel v. Reno, 134 F.3d 929, 933 n. 1 (9th Cir.1997).
Plaintiffs have not requested any relief with respect to the visas they requested at the Hyderabad consulate in their motion for a preliminary injunction. Therefore, while the Court finds no basis for denial of the motion in defendants' “consular nonreviewability” argument, neither does it find a basis for granting any relief to plaintiffs. (3) Review of a Decision to Commence Removal Proceeding
In their third jurisdictional argument, defendants assert that in general, “[c]ourts lack jurisdiction to review DHS's decision whether or not to commence removal proceedings or execute removal order.” Defendants' Opposition, Dkt. # 42, p. 13. This argument is based on a provision in the Immigration and Nationality Act (“INA”) which states in relevant part that “[n]o court shall have jurisdiction to hear any cause or claim ... arising from the decision or action ... to commence proceedings, adjudicate cases, or execute removal orders.” 8 U.S.C. § 1252(g). In Reno v. American–Arab AntiDiscrimination Comm., 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999), the Supreme Court that the jurisdictional bar in section 1252(g) applies only to the three discrete actions listed in the statute: a decision to commence proceeding, adjudicate cases, or execute removal orders. Id. at 482, 119 S.Ct. 936 (emphasis in original). Section 1252(g) does not apply to bar review of the actions that occur [ ] prior to any decision to commence proceedings. Kwai Fun Wong v. United States, 373 F.3d 952, 965 (9th Cir.2004). In that case, the Ninth Circuit court noted that after American–Arab, “we have narrowly construed § 1252(g).” Id.
As there is neither an already-commenced removal proceeding nor a removal order at issue here, this section does not apply to deprive this Court of jurisdiction over plaintiffs' claims. III. Injunctive Relief
Plaintiffs have requested alternate forms of injunctive relief. As to their request that the Court set aside the revocation of the I–140 petition and the denials of the I–485 applications, and direct the agency to readjudicate the applications in accordance with applicable statutes and regulations, the Court finds that the record is insufficiently developed at this time for the Court to conduct the proper analysis and grant this relief. The APA claims regarding these petitions and applications will remain subject to further proceedings. However, as to plaintiffs' request that the Court find that they are entitled to a removal hearing where they have an opportunity to renew their applications for adjustment of status, the court finds that they have demonstrated a right to this relief.
(1) Likelihood of success on the merits: As demonstrated in the discussion above, plaintiffs have a strong likelihood of succeeding on the merits of the constitutional claim of denial of due process in the revocation of their advance parole and consequent denial of entry at the Chicago airport. Plaintiffs lived lawfully and productively in the United States for ten years before traveling to India for a brief visit, with advance approval to return. Defendants stipulated, in an Order filed in this case, to re-open the I-485 applications and to hold this case in abeyance until August 31, 2010. Dkt. # 317, 24. Yet defendants denied plaintiffs, including the U.S. citizen child, re-entry based on revocation, without notice, of the approved advance parole.
Defendants have not produced any evidence to refute plaintiffs' statement that they were given no notice of the revocation, they were denied an opportunity to speak with counsel, they were told that their case in federal court (this case) had been terminated or withdrawn, and they were threatened with detention if they did not re-board the aircraft and return immediately to India. Nor have defendants addressed the situation with regard to the U.S. citizen child.
In a case presenting much less-troubling circumstances than this one, a district court held that a returning alien whose advance parole was revoked was entitled to a removal hearing before an immigration judge. Samirah v. Mukasey, 716 F.Supp.2d 734 (N.D.Ill.2008). The court, finding a denial of due process, held that
[t]he government cannot bypass the mandatory step of a removal hearing by granting plaintiff advance parole, revoking that parole while the plaintiff is outside of the United States, and then refusing to allow him to return to the United States.... We agree that we cannot order the Attorney General to commence removal proceedings against plaintiff, but that is not what this order accomplishes. We simply hold that the Attorney General may not bar the plaintiff from returning to the United States without providing a hearing. Whether the Attorney General decides to commence removal proceedings or to let plaintiff return to the United States to pursue his application to adjust his status is a matter for the Attorney General's discretion.
...
In sum, we hold that the government has a non-discretionary duty to provide plaintiff a removal hearing before removing him from the country, whether that removal is accomplished by normal procedures or by barring his travel to the United States once his advance parole was revoked. Plaintiff has a clear right to a removal hearing. Id. at 739. Any other outcome, as the court noted, “would render all grants of advance parole meaningless.” Id. “If the revocation of a grant of advance parole extinguished an alien's right to a removal hearing, the government could save the trouble of holding a removal hearing any time an alien requested advance parole....” Id. Instead, the government could grant the request, and then revoke the advance parole as soon as the alien departed the United States. “this new method or removing aliens with advance parole would bypass the congressionally mandated removal procedures found in the INA.” Id.
(2) Likelihood of irreparable harm: Deportation involves a loss of liberty, such that the government cannot permanently remove aliens from the United States without a removal hearing. Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). Deportation “visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom.... Meticulous care must be exercised lest the procedures by which he is deprived of that liberty not meet the essential standards of fairness.” Bridges v. Wixon, 326 U.S. 135, 154, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945).
The harm alleged here is particularly great to the children. The oldest child has submitted a declaration in which she states her wish to continue her studies at the University of Washington to become a physician. Declaration of I.A., Dkt. # 34. The youngest child, a U.S. citizen, is being deprived of the opportunity to live in the country of his birth. Mr. Abdur–Rahman, who with his family has accrued ten years of physical presence in the United States and is eligible for cancellation of removal under 8 U.S.C. § 1229b(b), based on hardship to his son, has been deprived of the opportunity to apply for this status.
(3) Balance of equities: Defendants, by contrast, have alleged no irreparable harm that would accrue to them from the granting of the injunction. The balance of equities thus tips strongly in plaintiffs' favor.
(4) Public interest: The public interest is best served by the orderly and fair treatment of persons subject to the laws of this land, citizens and non-citizens alike. The public interest is also best served when the courts uphold the constitutional rights of individuals who have been aggrieved by government action.
CONCLUSION
Plaintiffs' motion for a preliminary injunction is GRANTED as to their alternative request for relief, namely that they are entitled to a removal hearing under 8 U.S.C. § 1229a, where they can renew their applications for adjustment of status, or seek other forms of relief. The Court directs defendants to allow plaintiffs to return to the United States within thirty days of this date. The time that plaintiffs have spent in India following their forced return on august 30, 2010 shall not count against them as accrued time outside the United States; they shall be deemed to have accrued only 35 days outside the United States for the purposes of 8 U.S.C. § 1229b(d)(2). -------- Notes:
erspective of the Lago Agrio plaintiffs. Berlinger agreed. For three years, he and his staff shadowed Donziger and other plaintiffs' lawyers and representatives, capturing six hundred hours of raw footage of the people and events surrounding the litigation. In 2009, Berlinger released
Crude.
D. President Correa Takes Office
In 2006, while the Lago Agrio litigation was still pending, Rafael Vincente Correa Delgato was elected president of Ecuador on a platform of economic and social reform. President Correa, who describes himself as a "humanist," a "Christian of the left," and a proponent of twenty-first century socialism, condemned Ecuador's oil contracts as "true entrapment for the country." The election appears to have marked a turning point for the prospects of a criminal prosecution of the Individual Petitioners.
`Socialismo' en el discurso de Correa, EL UNIVERSO, July 23, 2007,
http://www.eluniverso.com/2007/07/23/0001/8/52BB6011269D4A87B7E96771F48D4A62.html (last visited Oct. 8, 2010); see also Rafael Correa Biography, GUERRILLERO, June 29, 2009, http://www.guerrillero.cu/english/index.php?option=com_contentview=articleid=577:rafael-correa-biographycatid=41:varietiesItemid=61 (last visited Oct. 8, 2010).
Rafael Correa Biography, supra note 66.
Crude outtakes include a brief interview with Donziger on his way to President Correa's January 2007 inauguration. Donziger boasted that President Correa's inauguration was a potentially "critical event" for the outcome of the Lago Agrio litigation. Soon thereafter, Donziger explained that the Lago Agrio plaintiffs and the GOE had "been really helping each other." The outtakes depict Donziger discussing the importance of working his contacts in the new government. And work them he did.
Hendricks Decl. II Ex. A, CRS-163-02-02.
Id.
On January 31, 2007, Donziger met with Joseph C. Kohn of Kohn Swift Graf, P.C., a U.S. law firm providing financial support for the Lago Agrio litigation. The outtakes depict Donziger explaining that the plaintiffs had been working with the Prosecutor General's office and that, although the criminal proceedings were closed, there is "no finality" in Ecuador. Approximately a week later in a radio segment, plaintiffs asked President Correa to bring criminal charges against Chevron's attorneys. Donziger specifically suggested filing criminal charges against Pérez.
Dans Decl. Ex. 2, CRS-170-00-03.
Id. Ex. 17.
This campaign continued. The outtakes show Donziger and others planning a press conference to pressure the Prosecutor General to bring criminal charges. On the following day, Donziger asked that posters be made of "Texaco's four accomplices," including the Individual Petitioners — posters that later were displayed at a press conference and a demonstration.
Id. Ex. 2, CRS-198-00-04.
Hendricks Decl. II Ex. A, CRS-204-01-02.
In March 2007, President Correa pledged his full support for the Lago Agrio plaintiffs. He followed that pledge with a meeting with Luis Yanza, co-founder of the Amazon Defense Front and a close ally of Donziger. In a telephone conversation on or about April 23, 2007, Yanza reported to Donziger and Fajardo on a conversation he had had with President Correa. To the extent that his report may be gleaned from the outtakes, Yanza told Donziger that President Correa had an interest in learning more about the alleged environmental harm and "fraud in the field." Yanza added to Donziger that President Correa "insist[ed]" that he continued to "[think] about doing something in the Prosecutor's Office." A day or two later, Yanza again reported to Donziger and Fajardo, asserting on that occasion that Yanza had "coordinat[ed] everything" with
Dans Decl. Ex. 12.
Id. Ex. 2, CRS-248-03-01.
Id.
President Correa.
Crude, 1:03:03.
Within a day or two, President Correa, Yanza, Fajardo, and others boarded a government helicopter together to tour the Oriente region. In a voiceover in Crude, Donziger bragged: "We have achieved something very important in the case. We are now friends with the President." That "friendship" immediately became apparent. On the same day as his visit to the Oriente region, President Correa issued a press release "urg[ing] the Office of the Prosecutor to permit the Prosecution of the Petroecuador officials who accepted the remediation carried out by Texaco."
Portions of President Correa's visit are depicted in Crude and the outtakes.
Id. Ex. 14.
The fact that there was no mention of the Texaco lawyers apparently bothered Donziger. In a telephone conversation the next day that was captured by Berlinger's cameras, Donziger said that "perhaps it is time to ask for the head of Pérez Pallares — given what the President said." On the following day, President Correa broadcast a call for the criminal prosecution of "Chevron-Texaco . . . homeland-selling lawyers" in addition to the prosecution of Petroecuador officials.
Hendricks Decl. II Ex. A, CRS-268-00-01.
Dans Decl. Ex. 13.
On November 30, 2007, Ecuador's new Constituent Assembly, which at least then was controlled by President Correa, removed the Prosecutor General, who had found no basis to support criminal charges against the Individual Petitioners and former GOE officials, and replaced him with Dr. Washington Pesántez Muñoz. Dr. Pesántez had been the District Prosecutor who had decided in March 2007 that "the report on the special audit conducted by the Comptroller General of Ecuador . . . showed that there was no evidence of civil, administrative or criminal nature liability on the part of . . . representatives of the TEXACO company, with respect to environmental damage that had allegedly been caused in the Amazon region." Several months later, however, Dr. Pesántez decided that the criminal case should be reopened.
Ecuador Forum Dissolves Congress, BBC NEWS (Nov. 30, 2007, 04:55 GMT), http://news.bbc.co.uk/2/hi/americas/7119373.stm.
Id. Ex. 11, at 10.
See id. Ex. 15.
On March 31, 2008, less than a week after Cabrera reported a damages finding of $16 billion and a day before he filed his report with the court, the Individual Petitioners received notice that the new Prosecutor General had reactivated the criminal charges based on "new" evidence. On July 31, 2008, representatives of the Lago Agrio plaintiffs, including Donziger, held a press conference during which one of the plaintiffs' representatives commented that the plaintiffs had presented evidence to the Prosecutor General's office to encourage an investigation. President Correa, in a radio address less than two weeks later, offered his support for the criminal prosecutions:
"But previous governments supported Texaco Chevron and betrayed our people: they signed agreements saying that everything was resolved, which has been one of the principal arguments by Texaco Chevron in its defense, when in fact nothing was resolved. Now, the Prosecutor General (Washington Pesántez), has, very properly, opened an investigation to punish those people, because it was a lie: there was nothing, nothing resolved, nothing cleaned up, all of the pollution."
Id.
Id. Ex. 16.
In June 2009, the Prosecutor General's office ordered Cabrera, in his capacity as the expert who conducted the environmental analysis regarding Texaco's presence in Ecuador, to give "free and unsworn" testimony. The Prosecutor General's office issued a statement a month later describing Cabrera's testimony. The account of Cabrera's testimony included a description of the global assessment process. Cabrera reportedly declined to comment explicitly on his conclusions, but he did refer the Prosecutor General to his report.
Id. Ex. 19.
Id. Ex. 20.
The Individual Petitioners now face criminal charges in Ecuador. On April 29, 2010, the Prosecutor General issued official accusations to the Individual Petitioners which were served approximately six weeks later. A preliminary hearing, which will determine whether the action will proceed, now is scheduled for November 10, 2010.
VI. The UNCITRAL Arbitration
The United States and Ecuador are parties to a bilateral investment treaty (the "BIT"). The BIT, broadly speaking, provides that private parties having investment disputes with Ecuador may pursue their claims in accordance with the Arbitration Rules of the United Nations Commission on International Trade Law.
Investment Treaty With the Republic of Ecuador, Aug. 27, 1993, S. Treaty Doc. No. 103-15.
Id. Art. VI(3)(A), VI(4).
In 2009, Chevron commenced an arbitration against Ecuador pursuant to the BIT. It there alleges that the GOE improperly colluded with the Lago Agrio plaintiffs in relation to the Lago Agrio litigation, abused the criminal justice system and engaged in other coercive tactics, and breached its investment agreements and treaty obligations. It seeks, among other things, declarations that Chevron and its affiliates have no liability with respect to the alleged environmental pollution, that Ecuador has breached the BIT and its treaty obligations in various respects, and indemnification from Ecuador for any liability Chevron may have in the Lago Agrio litigation.
Hendricks Decl. I, Ex. EE, passim.
Id. at 17-18.
VII. The Nature of Donziger's Activities
As noted, Donziger was among the lawyers for the plaintiffs in the Aguinda case. When it was dismissed and the focus shifted to the Lago Agrio case in Ecuador, however, his role changed dramatically. In his own words, "[w]hen the case shifted to Ecuador, really it became much more focused on lawyers in Ecuador. It was not effective for American lawyers or the American legal team to run the case out of Ecuador." Donziger has described himself as the "link to all of the work in the United States and all of the institutional history of the case." An Ecuadorian representative of the Lago Agrio plaintiffs referred to Donziger as a "big help" because he was responsible for setting up some of strategies of the Lago Agrio plaintiffs. In a telephone conversation about a potential book deal, Donziger assured the person with whom he was speaking that he, Donziger, is "so much a part of the story that it would be hard for someone to do a book without [his] cooperation."
Hendricks Decl. II Ex. A, CRS-027-16-05.
Id.
Id., CRS-027-16-03.
Id., CRS-151-03-02.
Although Donziger and others have viewed Donziger as a member of the Lago Agrio legal team, the outtakes reveal that Donziger's activities have gone far beyond the rendition of professional legal services, even assuming that he has performed such services to any significant degree. Donziger has made clear that the Lago Agrio litigation, in his words, is not a "legal case" but a "political battle . . . being played out through a legal case," a view that dovetails with his assessment of the Ecuadorian court system as entirely corrupt and driven by politics. He has claimed that press strategy and relations are "as important, if not more important, than the lawyering that goes on in" the Lago Agrio litigation. In 2006, he described the next steps in the "battle" as getting "politics in order in a country that doesn't favor people from the rainforest" and said that "the country [has to be made] ready to deal with the idea that a judge can impose a multi-billion dollar judgment on an American company." According to Donziger, it was important to mobilize the country politically "[s]o that no judge can rule against [the plaintiffs] and feel like he can get away with it in terms of his career."
Id., CRS-060-00-04.
Id.
Id.
Id., CRS-032-00-01.
Donziger has served as the field general in this political battle. Indeed when asked by a plaintiffs' consulting expert for a statement of the facts of the case, Donziger remarked that he had not done any legal work in nearly two years. While this comment perhaps was offered in a somewhat jocular vein, there is substantial truth to it.
See id., CRS-198-00-06.
On behalf of the Lago Agrio plaintiffs, Donziger, directly or indirectly, has lobbied the Ecuadorian and United States governments, raised money to support the litigation efforts, organized the plaintiffs' media campaign, and solicited and interacted with celebrity supporters. Donziger's statements, conduct, and demeanor in Crude and the outtakes, as well as other evidence, suggest that many of his activities have had little to do with the performance of legal services and a great deal to do with political activity, intimidation of the Ecuadorian courts, attempts to procure criminal prosecutions for the purpose of extracting a settlement, and presenting a message to the world media. This becomes even clearer when one considers still other statements and incidents depicted in Crude and the outtakes.
A. The March 30, 2006 Intimidation of the Judge
The outtakes depict Donziger and other plaintiffs representatives traveling to an ex parte meeting with a judge on March 30, 2006. At least parts of the meeting appear in Crude.
Prior to the meeting, Donziger described his plan to "intimidate," "pressure," and "humiliate" the judge:
"The only language that I believe this judge is going to understand is one of pressure, intimidation and humiliation. And that's what we're doing today. We're going to let him know what time it is. . . . As a lawyer, I never do this. You don't have to do this in the United States. It's dirty. . . . It's necessary. I'm not letting them get away with this stuff."
Donziger repeatedly referred to the Ecuadorian judicial system as "weak," "corrupt," and lacking integrity. He further explained to the camera:
"The judicial system is so utterly weak. The only way that you can secure a fair trial is if you do things like that. Like go in and confront the judge with media around and fight and yell and scream and make a scene. That would never happen in the United States or in any judicial system that had integrity."
B. The Plan to Pressure the Court With an "Army"
Over a year later, the Crude crew filmed a conversation between Donziger and Fajardo in which Donziger and Fajardo discussed the need to "be more and more aggressive" and to "organize pressure demonstrations at the court." In the same clip, Donziger referred to the litigation as a "matter of combat" that requires "actually . . . put[ting] an army together."
Id., CRS-346-00-02.
The outtakes captured a June 6, 2007 meeting in which Donziger outlined a strategy to pressure an Ecuadorian court. Donziger told those present that the Lago Agrio plaintiffs needed to "do more politically, to control the court, to pressure the court" because Ecuadorian courts "make decisions based on who they fear most, not based on what the laws should dictate." Donziger expressed concern that no one feared the plaintiffs, and he stated that the plaintiffs would not win unless the courts begin to fear them. Donziger described also his desire to take over the court with a massive protest as a way to send a message to the court of "don't fuck with us anymore — not now, and not — not later, and never." He then proposed raising "our own army" to which Yanza interjected "a specialized group . . . for immediate action." At that point, Atossa Soltani of Amazon Watch interrupted and asked whether "you guys know if anybody can, uh, subpoena these videos." Donziger responded, "We don't have the power of subpoena in Ecuador." Soltani then asked "What about U.S.?," but Donziger interrupted her and ignored the question. She persisted, saying "I just want you to know that it's . . . illegal to conspire to break the law" to which Donziger said, "No law's been conspired to be broken." The conversation about raising an army to pressure
Id., CRS-350-04-01.
Id.
Id.
Id., CRS-350-04-02.
Id.
Id.
Id.
Id.
the court then continued, with Yanza waving the camera away as he told Donziger that the "army" could be supplied with weapons.
Id.
Two days later, speaking directly to the camera, Donziger continued to emphasize the importance of pressuring the judge in the Lago Agrio litigation. According to Donziger, the plaintiffs' "biggest problem" had been their inability to pressure the judge. He explained that suing Chevron for moral damages or pressuring the Prosecutor General to open criminal investigations was not sufficient to make the judge feel pressure. Donziger asserted that the plaintiffs needed to do things that the judge would "really feel" such as being "called out" by the president of the country or the supreme court, implying that Donziger and others could develop strategies that would result in such actions. C. Killing the Judge?
Id., CRS-376-04-01.
Id.
Finally, Donziger participated in a dinner conversation about what might happen to a judge who ruled against the Lago Agrio plaintiffs. One or more other participants in the conversation suggested that a judge would be "killed" for such a ruling. Donziger replied that the judge "might not be [killed], but he'll think — he thinks he will be . . . which is just as good."
Id., CRS-129-00-02.
Discussion
Donziger and the Lago Agrio plaintiffs advanced several arguments in support of quashing the subpoenas, viz. that (1) the statutory and discretionary factors pertinent to Section 1782 applications were not satisfied, (2) the subpoenas are overbroad and unduly burdensome, (3) discovery from opposing counsel is disfavored, and (4) the information sought is privileged. The Court here sets out more fully its reasons for having denied the motions.
I. Judicial Code Section 1782
Section 1782 of the Judicial Code provides in pertinent part:
"The 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, including criminal investigations conducted before formal accusation. The order may be made pursuant to a . . . request made by a foreign or international tribunal or upon the application of any interested person. . . . A person may not be compelled to give his testimony or statement or to produce a document or other thing
in violation of any legally applicable privilege."
As stated in Chevron I, a district court is authorized to grant a Section 1782 application where (1) the person from whom discovery is sought resides or is found in the district of the district court to which the application is made, (2) the discovery is for use in a proceeding before a foreign tribunal, and (3) the application is made by a foreign or international tribunal or "any interested person." A district court, however, is not required to grant a Section 1782 application simply because it has the authority to do so. "Once the statutory requirements are met, a district court is free to grant discovery in its discretion."
Schmitz v. Bernstein, Liebhard Lifshitz, LLP, 376 F.3d 79, 83 (2d Cir. 2004) (quoting In re Esses, 101 F.3d 873, 875 (2d Cir. 1996) (per curiam)).
Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264 (2004); In re Application of Microsoft Corp., 428 F. Supp. 2d 188, 192 (S.D.N.Y. 2006).
Schmitz, 376 F.3d at 83-84.
The Supreme Court has identified four discretionary factors to guide the Court's determination whether to grant a Section 1782 application: (1) whether the material sought is within the foreign tribunal's jurisdictional reach and thus accessible absent Section 1782 aid; (2) the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court jurisdictional assistance; (3) whether the Section 1782 request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States; and (4) whether the subpoena contains unduly intrusive or burdensome requests. In addition, "district courts must exercise their discretion under Section 1782 in light of the twin aims of the statute: `providing efficient means of assistance to participants in international litigation in our federal courts and encouraging foreign countries by example to provide similar means of assistance to our courts.'" A. Statutory Requirements
Intel, 542 U.S. at 264-65; Microsoft Corp., 428 F. Supp. 2d at 192-93.
Schmitz, 376 F.3d at 84 (quoting In re Metallgesellschaft AG, 121 F.3d 77, 79 (2d Cir. 1997)).
Donziger is located in New York. Chevron and the Individual Petitioners all are "interested" persons. Chevron is a party to both the Lago Agrio litigation and the arbitration. The Individual Petitioners are facing criminal charges in Ecuador. The Ecuadorian civil and criminal courts are foreign tribunals. The BIT, a tribunal established by an international treaty, is a foreign tribunal for purposes of Section 1782 applications. Chevron and the Individual Petitioners therefore all have satisfied the threshold requirements of Section 1782.
Chevron I, 709 F. Supp. 2d at 291.
B. Discretionary Factors
Donziger asserts that the discretionary factors weigh in favor of quashing the subpoenas.
The first three discretionary factors favor Chevron and the Individual Petitioners for the same reasons set out in Chevron I, and there is no need to repeat that analysis in full.
Id. at 291-93.
First, like Berlinger, Donziger is located in this district and is not a party to any of the foreign proceedings. Neither the Ecuadorian courts nor the arbitral tribunal is empowered to compel Donziger to testify and produce documents. Indeed, Donziger, in a moment caught in the Crude outtakes, bragged that there is no "power of subpoena" in Ecuador.
Hendricks Decl. II Ex. A, CRS-350-04-02.
To be sure, Donziger is correct in arguing that the specifications describing the documents sought from him by these subpoenas probably describe also materials in Cabrera's possession. But that would not be a satisfactory answer, even assuming that Cabrera has some responsive materials and that they could be obtained by the Ecuadorian courts. Donziger's (and Cabrera's) documents in any case would be beyond the reach of the BIT tribunal. Even more important, the outtakes contain evidence that (1) the Lago Agrio plaintiffs were involved in ex parte communications with the Ecuadorian court to obtain Cabrera's appointment, and (2) Donziger and others working with him (a) met secretly with Cabrera prior to his appointment and outlined a detailed plan for his work, at least a good part of which appears to have been performed by the plaintiffs' own consultants, and (b) wrote some or all of Cabrera's report. Whatever may be in Cabrera's files, it is quite likely that the primary source of responsive material lies in Donziger's hands. Moreover, even if some responsive documents are in Cabrera's possession and could be reached by the Ecuadorian courts, it must be borne in mind that the subpoenas seek not only Donziger's files, but also his testimony. There is every reason to believe that Donziger is in a unique position to shed light on what in fact has happened in relation to this seemingly sordid tale.
The second of the discretionary factors also favors the applicants, as evidenced by the fact that numerous district courts have granted Section 1782 applications in connection with matters pending in Ecuadorian courts, including the Lago Agrio litigation. Moreover, even if the Ecuadorian courts opposed these subpoenas, which they have not, such opposition would not be dispositive. That is especially so in light of the fact that Chevron and the Individual Petitioners seek relief here, in part, out of concerns regarding inappropriate influence in both the Lago Agrio litigation and the criminal proceedings. Finally, sight must not be lost of the role of the discovery sought here in respect of the BIT arbitration. Certainly this discovery would be helpful to that tribunal.
See, e.g., Chevron I, 709 F. Supp. 2d 283; In re Application of Chevron Corp., No. 1:10-mi-00076 (N.D. Ga. Mar. 2, 2010) (Calmbacher); Chevron v. Stratus Consulting, Inc., No. 10-cv-00047 (D. Colo. Mar. 4, 2010); In re Application of Chevron Corp., No. 4:10-mc-134 (S.D. Tex. Apr. 5, 2010) appeal docketed, No. 10-20389 (5th Cir. June 11, 2010) (3TM); In re Application of Chevron Corp., No. 2:10-cv-02675 (D.N.J. June 15, 2010), appeal docketed, No. 10-2815 (3d Cir. June 18, 2010) (UBR); In re Application of Chevron Corp., No. 10-cv-1146-IEG (WMc) (S.D. Cal. June 23, 2010) (E-Tech); In re Application. of Chevron Corp., No. 1:10-mc-00371 (D.D.C. July 22, 2010) (Wray); In re Application of Chevron Corp., No. 3:10-cv-00686 (M.D. Tenn. Aug. 17, 2010), appeal docketed, No. 10-6035 (6th Cir. Aug. 25, 2010) (Quarles); Chevron Corp. v. Champ, No. 1:10-mc-0027-GCM-DLH (W.D.N.C. Aug. 30, 2010); In re Chevron Corp., No. 10-MC-21JH/LFG (D.N.M. Sept. 1, 2010) (Kamp).
See, e.g., Chevron I, 709 F. Supp. 2d at 292.
Third, it is not likely that discovery pursuant to these applications would undermine Ecuadorian proof gathering. As noted, there is no basis for concluding that either the Ecuadorian court or the arbitral tribunal could compel Donziger to produce documents or testify. Donziger is not a party to those proceedings. Any testimony given or materials produced by Donziger could be offered in the arbitration and supplement the existing record in Ecuador, thus providing a more complete picture than appears to be before the Ecuadorian court.
The fourth discretionary factor — whether the additional disclosure sought would be intrusive or burdensome — overlaps with Donziger's objections based on his claim that he is an attorney adverse to Chevron and that whatever he knows or has is protected by the attorney-client privilege or work product doctrine. Accordingly, the Court proceeds to those issues.
II. Deposition of Adverse Counsel
"Courts have been . . . concerned about the burdens imposed on the adversary process when lawyers themselves have been the subject of discovery requests, and have resisted the idea that lawyers should routinely be subject to broad discovery." Despite that concern — which has been born also of a reluctance to intrude on the attorney-client relationship and a sense that depositions of adversary counsel are unseemingly — our Circuit has adopted a "flexible approach" that affords district courts discretion to permit such discovery when appropriate rather than prohibiting or more severely restricting discovery of adverse counsel. Indeed, it has made clear that "the disfavor with . . . the practice of seeking discovery from adversary counsel is . . . not a talisman for the resolution of all controversies of [that] nature." Rather, district courts in such cases are to "consider[] all of the relevant facts and circumstances," including:
In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 70 (2d Cir. 2003) (hereinafter In re Friedman).
Id. at 69-72.
Id. at 71.
"[1] the need to depose the lawyer, [2] the lawyer's role in connection with the matter on which discovery is sought and in relation to the pending litigation, [3] the risk of encountering privilege and work-product issues, and [4] the extent of discovery already conducted."
The Court considered all of these factors in exercising its discretion to decline to quash the subpoenas.
A. The Need to Depose Donziger
The Individual Petitioners are faced with a criminal prosecution that appears to have been instigated by Donziger and others working with him for the base purposes of coercing Chevron to settle and undermining a significant element of its defense in Ecuador, the release it obtained from the GOE. Chevron itself is attempting to pursue its arbitration before the BIT tribunal and to defend itself in the Lago Agrio litigation. There is substantial evidence that Donziger and others working with him have improperly (1) pressured, intimidated, and influenced Ecuadorian courts, (2) colluded with Cabrera to substitute their own biased work product for the neutral and impartial assessment that Cabrera was appointed to produce, (3) concealed that role, (4) submitted to the Ecuadorian court over the signature of Dr. Calmbacher a report that Dr. Calmbacher denies having written, and (5) colluded with the GOE. Crude and the Crude outtakes — most notably Donziger's own words — as well as other evidence obtained in other Section 1782 proceedings, make clear that Donziger is a central figure in all of this. As Donziger himself said in promoting a book deal about the Lago Agrio litigation, he is "so much a part of the story that it would be hard for someone to do a book without [his] cooperation."
Hendricks Decl. II Ex. A, CRS-151-03-02.
In short, this is not an attempt to take the deposition of a lawyer in a routine civil case, attempts that often are made out of pique and personal animosity. The stakes here are huge both for the Individual Petitioners and for Chevron. The evidence of irregularities is powerful. Donziger's central role is undeniable. The need for his testimony and documents is very strong indeed.
B. Donziger's Role
The second of the Friedman factors focuses on the role of the lawyer from whom discovery is sought both in the litigation in question and in relation to the subjects on which disclosure is sought. The first of these considerations bears on the extent to which the discovery would disrupt the litigation by injecting one of the lawyers charged with its conduct into the case as a witness or by making the advocate's conduct or knowledge an issue in the proceeding. The second goes at least in part to the issue whether the lawyer is likely to have first-hand evidence that is important to the resolution of the lawsuit. Both of these considerations cut strongly against quashing the subpoenas.
It is important to recognize at the outset that Donziger is a New York, rather than an Ecuadorian, lawyer. He most assuredly is not litigating the criminal charges against the Individual Petitioners, which are in the hands of the GOE. While he is involved with the Lago Agrio plaintiffs' Ecuadorian lawyers and experts in the civil case, he is not conducting that case in the Ecuadorian courts. Perhaps even more significant, there is abundant evidence that Donziger's role in connection with events in Ecuador has been at least primarily in capacities other than that of an attorney.
The Court understands that some of Donziger's statements may have reflected some degree of hyperbole. No doubt he has brought his legal training to bear from time to time. But it remains the case that his role in Ecuador has gone far beyond the rendition of professional legal services. Courts would have no hesitation in allowing otherwise appropriate discovery of lay lobbyists, public relations consultants, media representatives, and political organizers. There is no sound reason for reaching a different result where someone with a law degree engages in similar activities. Indeed, as is shown below, it is well settled that the attorney-client privilege does not extend to communications involving a lawyer where the lawyer is engaged in such activities. That principle is instructive here.
Nor is this a case in which the applicants have sought discovery of Donziger to gain access to information that he gathered in the manner in which litigating counsel, lacking personal knowledge of any of the facts at issue in the lawsuit, normally gather information — interviewing witnesses and reviewing documents and other evidence. Rather, the proposed discovery focuses on matters concerning which Donziger is a percipient witness and a principal actor. In other words, the discovery is sought to shed light on what Donziger and those working with him did, allegedly in corrupting the process in Ecuador. The special solicitude ordinarily shown to litigation counsel with respect to discovery in the cases that they handle is unwarranted in these circumstances. C. Extent of Discovery Already Conducted
District courts have granted Chevron Section 1782 applications in a number of other cases, chiefly involving U.S. environmental consultants involved in the Lago Agrio plaintiffs' efforts in Ecuador. Nevertheless, the outtakes demonstrate that this application is unique. Donziger appears to have played a central role in questionable aspects of the Lago Agrio litigation and related events. Those previously subjected to Section 1782 discovery would have had no more than fragmentary knowledge of some of the matters at issue. The Court is unaware that any of the Section 1782 witnesses save Berlinger, for example, had any knowledge at all concerning the attempts to intimidate and pressure the Ecuadorian judiciary, the interactions with the Ecuadorian government, or the criminal prosecutions. The fact of the matter is that Donziger appears to be the leading man in this play. No one will have much of a sense of the overall plot by seeing and hearing only the lines of those few members of the supporting cast who reside in the United States and have been examined under Section 1782.
D. Risk of Encountering Privilege and Work-Product Issues
The fourth of the factors articulated in Friedman is the risk that proceeding with the deposition of adverse counsel would encounter privilege and work-product issues.
Of course, Donziger has attempted to invoke both attorney-client privilege and work product in an effort to head off any discovery against him. So too might any attorney faced with a demand for his or her documents or deposition. Hence, there is a risk that a court will have to resolve such claims whenever a litigant seeks a deposition of adverse counsel. But the Second Circuit in Friedman rejected any per se rule against even depositions of active litigation counsel. Indeed, it rejected the Eighth Circuit's view that a litigant seeking a deposition of adverse counsel must demonstrate, inter alia, that "the information sought is relevant and not privileged." Rather, it "requires a flexible approach to lawyer depositions whereby the judicial officer supervising discovery takes into consideration all of the relevant facts and circumstances . . . [which] may include . . . the risk of encountering privilege and work product issues." As every such case entails at least some risk of encountering such issues, what is required is a sensitive consideration of the extent to which substantial privilege issues are raised, their likely merit or lack thereof, and whether the effort that would be required to resolve those issues would be outweighed by the need for the discovery of whatever non-privileged information the lawyer may have. Naturally, the first step in this analysis is to focus on the scope of the attorney-client privilege and the work product doctrine, each of which is considerably narrower than is implied by the capacious claims made by Donziger.
See In re Friedman, 350 F.3d at 71 ("the disfavor with which the practice of seeking discovery from adversary counsel is regarded is not a talisman for the resolution of all controversies of this nature").
Id. at 70-72.
Id. at 72.
1. Basic Principles
A party invoking the attorney-client privilege has the burden of showing, as to each allegedly privileged communication, that the communication was (1) between counsel and client, (2) intended to be and remained confidential, and (3) made for the purpose of providing or obtaining legal advice. The "predominant purpose" of a communication must involve legal advice. A court should determine predominant purpose of a communication "dynamically and in light of the advice being sought or rendered, as well as the relationship, between advice that can be rendered only consulting the legal authorities and advice that can be given by a non-lawyer." A lawyer's "dual legal and non-legal responsibilities may bear on whether a particular communication was generated for the purpose of soliciting or rendering legal advice."
United States v. Const. Prod. Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996).
In re County of Erie, 473 F.3d 413, 420-21 (2d Cir. 2007).
Id. at 421.
This latter point is especially significant in this case. As demonstrated above, Donziger — at least in major respects — has not functioned as a lawyer with respect either to the Lago Agrio litigation or the criminal prosecution. As Crude and the outtakes make clear, his efforts have been concentrated heavily in media and public relations, lobbying, and political activism. But communications, even between lawyer and client, are not privileged unless they are made for the purpose of rendering legal advice or, to use another formulation, unless they relate to the rendition of "professional legal services." Hence, the attorney-client privilege does not apply to communications with respect to many of the activities in which Donziger has engaged, at least in the absence of very unusual circumstances.
Const. Prod. Research, Inc., 73 F.3d at 473.
SUP. CT. STD. 503.
See, e.g., NXIVM Corp. v. O'Hara, 241 F.R.D. 109, 130 (N.D.N.Y. 2007) (when an attorney is "wearing multiple hats and . . . advising . . . on anything and everything other than legal services, whether business, media, public relations, or lobbying, there is no attorney-client privilege"); Haugh v. Schroder In v. Mgmt. North America Inc., No. 02 Civ. 7955, 2003 WL 21998674, at *3 (S.D.N.Y. Aug. 25, 2003) ("A media campaign is not a litigation strategy. Some attorneys may feel it is desirable at times to conduct a media campaign, but that does not transform their coordination of a campaign into legal advice."); In re Grand Jury Subpoenas dated March 9, 2001, 179 F. Supp. 2d 270, 274, 290 (S.D.N.Y. 2001) (communications with lawyers acting as lobbyists not privileged); City of Springfield v. Rexnord Corp., 196 F.R.D. 7, 9 (D.Mass. 2000) (documents prepared to respond to media inquires not privileged); Burton v. R.J. Reynolds Tobacco Co., Inc., 170 F.R.D. 481, 487 (D.Kan. 1997) ("The fact that the client chose to channel the work through an attorney rather than perform the work with non-legal personnel does not provide the basis for a claim of privilege.").
The work product doctrine is comparable in this respect. It "provides qualified protection for materials prepared by or at the behest of counsel in anticipation of litigation or for trial." Its purpose "is to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy `with an eye toward litigation,' free from unnecessary intrusion by his adversaries." It is not intended, however, to obscure "what [i]s essentially a lobbying and political effort," even one undertaken by a lawyer. Put another way:
"If a lawyer happens to act as a lobbyist [or in some other capacity], matters conveyed to the attorney for the purpose of having the attorney fulfill the lobbyist [or other] role do not become privileged by virtue of the fact that the lobbyist has a law degree or may under other circumstances give legal advice to the client, including advice on matters that may also be the subject of lobbying [or other non-legal]
efforts."
2. The Normal Means of Claiming Privilege
In re Grand Jury Subpoenas Dated March 19, 2002 and August 2, 2002, 318 F.3d 379, 383 (2d Cir. 2003).
United States v. Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998) (quoting Hickman v. Taylor, 329 U.S. 495, 511 (1947)).
In re Grand Jury Subpoenas dated March 9, 2001, 179 F. Supp. 2d at 290 (no work product protection for lawyers involved in seeking a pardon, a political and lobbying enterprise).
Not only is it important to have a proper regard for the scope and limits of the attorney-client privilege and the work product doctrine, but it is vital also to bear in mind the extent to which the motions to quash sought a wholesale departure from the normal manner in which such claims of immunity from disclosure are adjudicated.
There is a well-established procedure for the invocation of alleged privileges in response to subpoenas and other demands for tangible evidence. Those in possession, custody or control of allegedly privileged documents called for by subpoenas and document requests are obliged to enumerate the documents as to which they claim privilege and assert their privilege claims in the manner prescribed by both local and federal rules. In most circumstances, a party cannot rely on "mere conclusory or ipse dixit assertions, for any such rule would foreclose meaningful inquiry into the existence of the relationship, and any spurious claims could never be exposed."
FED. R. CIV. P. 26(b)(5)(A); S.D.N.Y. CIV. R. 26.2.
von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 146 (2d Cir. 1987) (quoting In re Bonanno, 344 F.2d 830, 833 (2d Cir. 1965)).
Where a party seeks disclosure from a witness who may have relevant information concerning allegedly privileged attorney-client communications, the fact that the witness may be asked questions that call for information as to privileged communications does not protect a witness from being deposed or called to testify at a trial or before a grand jury. Rather, the witness must appear and give testimony. When a question seeking disclosure of allegedly privileged material is posed, however, the holder of the alleged privilege may object and delay disclosure until a court rules on the objection. When an objection is made the party seeking disclosure nevertheless is entitled to discover the dates and places of and the identities of the participants in the communications, the identities of others who were present and to whom the communications were disclosed, and the general subject matter (but not the content) of the communications. This permits the party seeking disclosure and, if need be, the court to know which communications are at issue, something about their general nature, whether they in fact were confidential, and whether any privilege has been waived by disclosure of the contents of the communications to persons other than the attorney and client. Once such a record is developed, the court rules on the objection.
See 24 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 5507, at 567 (2007) ("One cannot assert the privilege by a blanket refusal to testify; there must be specific objection to particular questions calling for privileged information.").
See FED. R. CIV. P. 26(b)(5)(A); S.D.N.Y. CIV. R. 26.2.
These procedures serve vitally important purposes. The attorney-client privilege and the work product doctrine can serve to conceal highly relevant evidence that may be important to the just resolution of a controversy. The burden of establishing their applicability therefore rests with the party asserting them. Moreover, the adverse party has the right to challenge such assertions by pointing to a failure to satisfy their prerequisites or establishing waiver or some other reason for disclosure of otherwise protected evidence. Dispensing with the usual procedures effectively absolves the claimant of the need to prove the applicability of the privilege or of work product protection and may deprive the adverse party of an effective means of disputing the claim or establishing an exception.
For example, a party resisting a claim of privilege or work product could establish that the material in question is not protected by virtue of the crime-fraud exception. Many claims of work product may be overcome by a showing of good cause for disclosure. FED. R. CIV. P. 26(b)(3)(A).
3. Application to Donziger
With these principles in mind, we turn to Donziger's claims.
As an initial matter, there is considerable reason to doubt that there are any, or at least many, attorney-client communications involving Donziger and subject to the subpoenas. Donziger has offered no proof of even a single communication between him and any of the Lago Agrio plaintiffs, let alone such a communication that was related to seeking or providing legal advice. And that should not be surprising in light of the fact that Donziger is not licensed to practice law in Ecuador and is not conducting the Lago Agrio litigation.
Second, most of the discovery sought by the applicants is of communications involving third parties, such as the GOE and Cabrera, who have not been shown to be within any privileged relationship.
The Lago Agrio plaintiffs attempt to avoid disclosure of communications between Donziger and others in their corner with the GOE on the theory that they have a common interest with the GOE and that this "protect[s] the confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel." But the existence of a common interest privilege has not been established. Moreover, acceptance the common interest claim at this stage would have prevented Chevron and the Individual Petitioners from challenging the claim.
Third, there is substantial evidence that suggests that Donziger's predominant role with respect to the matters in Ecuador is not the rendition of professional legal services, but politics, lobbying, and media and public relations. This may well be fatal to all his privilege and work product claims. Even if it is not fatal across the board, it may be fatal with respect to particular items of evidence.
Fourth, there is more than a little evidence that Donziger's activities — as several courts already have held in the context of Section 1782 applications against experts involved on the Lago Agrio plaintiffs' side — come within the crime-fraud exception to both the privilege and to work product protection.
In re Chevron Corp., No. 10-MC-21JH/LFG [DI 11] (D.N.M. Sept. 13, 2010); In re Application of Chevron Corp., No. 10-cv-1146-IEG (Wmc) [DI 9] (S.D. Cal. Sept. 10, 2010); Chevron Corp. v. Champ, No. 1:10-mc-0027-GCM-DLH [DI 12] (W.D.N.C. Aug. 30, 2010).
Even assuming that Donziger is not entirely without attorney-client privilege and work product protection for reasons already referred to, he may lack protection as to substantial categories of evidence. For example, there is evidence in Crude, the outtakes, and other Section 1782 proceedings that he has communicated with various experts in relation to the Lago Agrio litigation — knowledge or materials that might enjoy qualified work product protection. But even that is far from clear. Whatever has passed between him and Cabrera and other testifying experts is not subject to work product protection even without regard to issues of waiver and the crime-fraud exception. And while interactions with non-testifying experts might enjoy work product
See, e.g., Lugosch v. Congel, 219 F.R.D. 220, 250 (N.D.N.Y. 2003) ("[I]nformation considered by the [testifying] expert should be disclosed notwithstanding the presence of work product consideration."); Mfg. Admin. Mgmt. Systs., Inc. v. ICT Group, Inc., 212 F.R.D. 110, 115-16 (E.D.N.Y. 2002) (attorney work product not protected when shared with testifying experts); MIC Commc'ns Corp. v. Dataline, Inc., No. 01 Civ. 3849 (LAP) (DFE), 2001 WL 1335291, at *1 (S.D.N.Y. Oct. 30, 2001) (collecting cases); B.C.F. Oil Ref. v. Consol. Edison Co., 171 F.R.D. 57, 66 (S.D.N.Y. 1997) (holding that attorney work product reviewed by a testifying expert is not protected by work product).
protection, there certainly has not been proof sufficient to conclude that such protection extends to any of the subpoenaed evidence. The protection may have been waived. The crime-fraud exception may vitiate any otherwise applicable protection, as at least one other court has held in another Section 1782 proceeding brought by Chevron to obtain discovery from an expert. Moreover, most work product is not protected absolutely and is discoverable on a showing of good cause. Chevron and the Individual Petitioners, assuming they knew enough about the specific evidence in question, might well be able to establish good cause and thus overcome any otherwise applicable protection.
In re Application of Chevron Corp., No. 10-cv-1146-IEG (Wmc) [DI 9] (S.D. Cal. Sept. 10, 2010).
See FED. R. CIV. P. 26(b)(3)(A).
In the last analysis, then, denial of the motions to quash these subpoenas will require adjudication of Donziger's claims of privilege. But there is good reason to believe that those claims are exaggerated and, at least in many cases, without merit or at least questionable. So the ultimate question on the motions to quash reduces to whether the applicants' need for whatever unprivileged material Donziger possesses is sufficiently great to make adjudication of the privilege claims a worthwhile endeavor.
In this Court's judgment, the need is extremely great in view of the extraordinary evidence already before it. To turn a blind eye to evidence suggesting improper influence on and intimidation of the Ecuadorian courts by both Donziger and the GOE, improper manipulation of the criminal process in that country, knowing submission by the Lago Agrio plaintiffs of at least one fraudulent report, and improper collusion with Cabrera, the supposedly neutral court-appointed expert, could defeat the purpose of Section 1782, deprive the Individual Petitioners of evidence needed for their defense in a criminal case, and frustrate the BIT arbitration.
Considering all of the facts and circumstances before the Court, including the need to resolve privilege issues, the fact that Donziger is a lawyer and that he is allied with Chevron's adversaries in the Lago Agrio litigation is not sufficient to warrant the quashing of these subpoenas. The proper course is to allow the process to go forward and to adjudicate the claims of privilege in due course.
Donziger has advanced no persuasive reason why he should not be compelled to claim privilege in the same manner as any other litigant — providing a privilege log enumerating the documents as to which privilege is claimed, claiming privilege in response to deposition questions, and in each case providing such information as may be necessary to make out his claim. Although Donziger claims that a privilege review of his files would be "time consuming" and "complicated," the Court is not persuaded that he should not be required to conform to the usual rules because, among other things, (1) he has provided no estimate of the number of documents as to which he has colorable claims of privilege, (2) Chevron has dropped the one subpoena request that blatantly called for privileged information, Chevron Mem. 48, and (3) his evidence is so central to the applicants' interests. Moreover, it appears that there can be no viable claim of privilege with respect to large areas of the discovery sought because it involves communications between Donziger and unrelated third parties.
That is exactly what this Court's order provided. It held open the possibility of adjudicating the merits of his privilege claims with respect to the documents demanded notwithstanding his failure to comply with FED. R. CIV. P. 26(b)(5)(A) and S.D.N.Y. CIV. R. 26.2. It appointed a special master to preside at the deposition in order to deal effectively and properly with any claims of privilege that may be made in response to specific questions. And it made clear that this Court ultimately stands ready to resolve whatever privilege claims may be made.
III. The Proposed Modification of the Subpoenas
In the alternative, Donziger suggested that the Court limit the subpoenas to communications with Cabrera and Ecuadorian prosecutorial authorities. This proposal was not persuasive.
Donziger Mem. 20.
First, Donziger's proposal would exclude Chevron Request 5, which relates to ex parte communications with Ecuadorian judges or judicial officers. These communications are not subject to attorney-client privilege or work product because the communications were not made in confidence between lawyer and client and were not made to others in a privileged relationship either. These communications are highly relevant to extent that they might shed light on any alleged improper communications with that court.
Second, Donziger's proposal would narrow Chevron Request 6/Individual Petitioners Request 6 inappropriately. Donziger suggested limiting the request to communications with Ecuadorian prosecutorial authorities. Such a proposal, however, would exclude any inappropriate communications between those representing the Lago Agrio plaintiffs and other GOE officials, including the office of President Correa, regarding the criminal prosecution.
Third, Donziger's suggested modifications ignore the notion that alleged improper influence is not limited to direct communications with Cabrera and prosecutorial authorities. Chevron Requests 7-19, 23-24, 26/Individual Petitioners Requests 7-19, 21-22, 24, relate to laboratories, environmental consulting firms, and specific consulting experts that might have been involved with the alleged improper influence on the Cabrera report. Donziger's proposal would prevent discovery of such communications, which the Court views as highly relevant. Furthermore, Donziger's proposal would ignore requests related to Cabrera that are relevant, but do not call for direct communications with Cabrera. For example, Donziger may control documents regarding preparation for the "global assessment" that were not communicated directly to Cabrera but nonetheless would fall under Chevron Request 54/Individual Petitioners Request 41. And Donziger may have non-privileged communications regarding the "global assessment," such as communications or documents exchanged with representatives of Amazon Watch or the GOE, as described in the outtakes.
It must be borne in mind that there is evidence that the purpose of the March 3, 2007 meeting was to outline a work plan pursuant to which consultants hired by the Lago Agrio plaintiffs would at least contribute to and at worst write Cabrera's report.
Finally, the Court is not convinced that the subpoena would require "wholesale turnover" of Donziger's files related to the Lago Agrio litigation. The Ecuadorian court appointed and swore Cabrera as the expert responsible for the "global assessment" in 2007. Cabrera submitted his initial report approximately one year after his appointment and a supplemental report several months later. As a result, many of the subpoena requests are effectively limited to a two-year period. The Court is still not prepared to find that the subpoenas require modification or impose an undue burden on Donziger.
Conclusion
For the foregoing reasons, as well as those set forth in the Court's prior ruling, the motions to quash the subpoenas were denied in the exercise of the Court's discretion.
SO ORDERED.
Dated: November 4, 2010
Corrected: November 10, 2010