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First it was the videotapes. Now it’s the e-mails. This week the U.S. Court of Appeals for the Second Circuit refused (again) to call a halt to Chevron’s march through the once-privileged e-mails and records of Steven Donziger, the architect of the 17-year-old toxic tort litigation against Chevron predecessor Texaco for its alleged contamination of the Lago Agrio region of Ecuador. The ruling wasn’t much of a surprise, considering that the appellate court had already denied a plaintiffs’ motion to stay production of the privileged materials. But in a filing with a separate Second Circuit panel, Chevron’s lawyers at Gibson, Dunn & Crutcher attached as exhibits some of the thousands of Donziger documents they’ve obtained. The Dec. 14 filing is nominally a request to supplement the record before the appellate panel, which is considering an appeal by the Republic of Ecuador and the Lago Agrio plaintiffs that seeks to reverse a March 2010 ruling in which Manhattan federal district court judge Leonard Sand refused to stay bilateral investment treaty arbitration initiated by Chevron. The Chevron filing really seems, however, to be an opportunity for the oil company to draw attention to once-privileged documents that Gibson Dunn calls “starling and compelling evidence” of the “corrupt motives and bad faith with which [the Lago Agrio] plaintiffs have pursued Chevron.” For us, it was a very odd experience to read the Donziger documents Chevron has made public (they’re in four parts, here, here, here, and here). Rarely are we, as journalists, privvy to the sort of internal litigation strategizing the e-mails disclose, including discussions of the plaintiffs’ funding concerns; plaintiffs lawyers’ intervention with Ecuadorian officials to get the Republic’s lawyers at Winston & Strawn paid; and Donziger’s thoughts on settlement discussions with Chevron. And rarer still is the opportunity to see, from the inside, the multilayered political and legal manuevering the Donziger documents disclose. Randy Mastro at Gibson Dunn told us the materials Donziger was ordered to turn over to Chevron are “a treasure trove” of evidence to pile on top of the incriminating clips Chevron has drawn from outtakes of the documentary Crude. “I’ve never had a case like this, in which there’s just one smoking gun after another,” he said. In particular, Gibson Dunn has pointed to e-mail exchanges in which Donziger and his team appear to discuss attempts to intimidate Ecuadorian judges and pressure authorities to bring charges against two former Texaco lawyers. In one e-mail, for instance, an Ecuadorian plaintiffs lawyer working with Donziger warns against including some information in a draft press release. “If the guys at [Chevron's then-law firm] Jones Day get a hold of this, it’s gonna hurt us. It’s pretty much irrefutable evidence of us collaborating with the [Ecuadorian prosecutors] to get [Texaco lawyers] Reis Veiga and Perez convicted.” Moreover, as Mastro discloses in a letter to the Second Circuit panel that decided the privilege appeal (appellate judges José Cabranes and Denny Chin and federal district court judge Edward Korman, sitting by designation), Chevron plans to deploy the Donziger materials in the discovery actions it’s pursuing in 19 courts across the country. It has already submitted once-privileged plaintiffs documents to the arbitration panel that’s hearing its bilateral investment treaty case, according to Mastro. In the appellate case in which Chevron disclosed the formerly privileged documents, Winston & Strawn, on behalf of the Republic of Ecuador, sent a letter to the court opposing any addition to the record in the case. (The Second Circuit heard oral arguments in August but has not yet ruled.) The Winston letter calls Chevron’s assertion of new evidence an attempt “to distract this court.” Gene Schaerr of Winston, who signed the letter, declined additional comment on the newly-disclosed evidence. We left messages with Lago Agrio plaintiffs lawyers Ilann Maazel of Emery Celli Brinckerhoff & Abady and James Tyrrell Jr. of Patton Boggs but didn’t hear back.

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