The Work

November 16, 2010 11:00 AM

Second Circuit Denies Ecuadorian Plaintiffs' Attempt to Stay Donziger Deposition in Chevron Case

Posted by Ed Shanahan

By David Bario, The Am Law Litigation Daily

Given the way the litigation has played out between Ecuadorian plaintiffs and Chevron in recent months, you'd think the case was all about the conduct of the plaintiffs' lawyer, Steven Donziger, and not about the alleged injuries caused by oil contamination in Lago Agrio, Ecuador. Of course, that's just what Chevron's lawyers at Gibson, Dunn & Crutcher want as they lay the groundwork to keep the plaintiffs from enforcing in the U.S. any judgment imposed by Ecuadorian courts. And on Monday, Chevron and Gibson Dunn scored a victory at the U.S. Court of Appeals for the Second Circuit that keeps the focus squarely on the Donziger, at least in the United States.

In a brief order issued just hours after the conclusion of oral arguments, a three-judge Second Circuit panel denied the plaintiffs' motion to stay Manhattan federal district court judge Lewis Kaplan's explosive Oct. 20 ruling allowing Chevron to depose Donziger and to proceed with discovery against him.

As we've reported in depth (see here and here), Chevron moved to depose Donziger and obtain his litigation records after outtakes from the documentary Crude appeared to show him conspiring with an expert appointed by the Ecuadorian court to offer a damages assessment on the Lago Agrio claims. The American Lawyer has posted several of those outtakes here; the Ecuadorian plaintiffs have responded to the video postings here.

In addition to denying the plaintiffs’ motion to stay Judge Kaplan's order pending appeal, the Second Circuit panel (Judges Roger Miner, Chester Straub, and Debra Ann Livingson) also set an expedited schedule for the underlying appeal. "I think the speed with which the Second Circuit addressed the issue speaks volumes about the court's appreciation of the urgency of the matter and the need for us to obtain this critical information as quickly as possible," Gibson Dunn's Randy Mastro told us. "The denying of the stay motion is critical because it means we now obtain his documents [and] his privileged logs so [if there's] any privilege challenges we can resolve [it] as quickly as possible, and take his deposition."

The Lago Agrio plaintiffs are represented in the appeal by Jonathan Abady and Ilaan Maazel of Emery Celli Brinkerhoff & Abady. Plaintiffs spokesperson Karen Hinton sent us this e-mail statement on the Second Circuit's ruling: "The plaintiffs continue to believe their right to privileged information has been violated by this decision....This subpoena, along with dozens of others, is designed only to drain the plaintiffs' ability to defend themselves. Unlike Chevron, the plaintiffs have the evidence on their side and, for that reason, they will prevail at the end of the day."

This article originally appeared on The Am Law Litigation Daily.

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