Full opinion text
OPINION LEWIS A. KAPLAN, District Judge. Table of Contents I The Background............................................................597 Texaco’s Former Operations in Ecuador.......................................597 The Beginning — the Aguinda Class Action in this Court..........................597 Texaco Settles All Pollution Claims With Ecuador..........................598 The Aguinda Plaintiffs and Lawyers Make A Deal With Ecuador.............598 Ecuador’s Environmental Management Act of 1999 .........................599 The Lago Agrio Litigation — 2003-2008 ........................................ 600 The Complaint.........................................................600 Donziger’s Role........................................................601 Early Stages...........................................................602 The Initial Criminal Investigation — An Attempt to Defeat the Settlement......................................................602 The Early Expert Inspections.......................................602 Donziger Solicits Berlinger to Make Crude............................603 The Global Assessment — The Cabrera Report.........................603 The Release of Crude Leads to U.S. Discovery Revealing Misconduct..............604 The Release of Crude...................................................604 Dr. Calmbacher Disavows Report the LAPs Filed Over His Name............605 The Cabrera Report Exposed............................................606 Cabrera’s Appointment.............................................606 The LAPs Ghost-Wrote All or Much of Cabrera’s Report...............607 The “Cleansing” Operation..........................................610 The LAPs’ Use of Pressure Tactics and Political Influence in this Case ............611 Intimidation of the Ecuadorian Judges....................................611 The Plan to Pressure the Court With an “Army” ...........................612 Killing the Judge?......................................................613 Political Influence to Use the Criminal Process Against Former TexPet Lawyers to Extort a Settlement........................................614 The Legal and Political Climate in Ecuador — -Fair Trial Becomes Impossible and the ROE, at the LAPs, Urgings, Seeks to Prosecute Chevron Lawyers for Tactical Reasons.......................................................616 The Ecuadorian Judiciary...............................................616 The 2004 Purge of the Supreme Court................................617 President Correa’s Influence Over the Judiciary .......................617 Donziger Admits Corrupt Nature of the Ecuadorian Judiciary...........620 The Lago Agrio Judgment and the LAPs’ Enforcement Plan.....................620 The Judgment.........................................................620 Appellate Remedies in Ecuador..........................................621 The LAPs’ Enforcement Plan............................................622 The UNCITRAL Arbitration.................................................624 This Case..................................................................625 The Complaint.........................................................625 Parties ...........................................................625 Claims............................................................625 Proceedings to Date....................................................626 II Legal Analysis and Additional Facts...........................................626 A. Chevron Is Threatened With Immediate and Irreparable Injury..............626 1. The Threatened Harm Would Be Irreparable..........................627 2. The Threatened Harm Is Imminent..................................629 3. The Availability of Appellate Remedies and a Possible Stay in Ecuador Do Not Preclude a Finding of Threatened Irreparable Injury..........................................................631 B. The Balance of Hardships Tips Decidedly Toward Chevron..................631 C. Likelihood of Success on the Merits — The Substantive Claims................632 1. The Claim for a Declaration that the Judgment is Not Entitled to Recognition or Enforcement.......................................632 a. Standards Governing Recognition and Enforcement................632 b. Chevron Has Shown the Requisite Likelihood of Success on its Claim that Ecuador Does Not Provide Impartial Tribunals and Due Process.............................................633 c. There Are At Least Serious Questions Going to the Merits of the Claim that the Judgment Was Procured By Fraud............636 d. This Is an Appropriate Case for Declaratory Relief.................637 2. The Other Claims..................................................638 D. Likelihood of Success on the Merits — Procedural Issues.....................639 1. Chevron Is Likely to Establish Personal Jurisdiction As to the Two Foreign Defendants Who Have Not Waived the Defense..............639 a. Service of Process..............................................639 b. The Exercise of Jurisdiction over the LAP Representatives..........640 (1) Amenability to Service......................................640 (a) N.Y. CPLR § 301.......................................640 (b) N.Y. CPLR § 302.......................................642 (2) Due Process...............................................643 (a) Minimum Contacts......................................644 (b) Reasonableness.........................................644 e. The Other Defendants..........................................645 2. Comity and Abstention .............................................646 3. Donziger’s Judicial Estoppel Argument Lacks Merit....................648 4. Donziger Was Afforded an Adequate Opportunity to Respond............649 a. The Argument and Scheduling of the Motion ......................649 b. The Denial of the Adjournment and the Briefing Schedule Were Consistent With Rule 65(a) and Due Process................ 650 5. No Evidentiary Hearing Was Required.......................... 654 6. The LAP Representatives Waived Their Unclean Hands Defense for this Motion................................................. 656 E. The Bond .......................................:................ 656 III The Record on this Motion............ 657 A. The Filings..................... 657 B. Analysis........................ 658 IV Conclusion.......................... 660 A provincial court in Ecuador has entered a multibillion dollar judgment against Chevron Corporation (“Chevron”) in an action brought by indigenous peoples in the Amazonian rain forest (the “Lago Agrio Plaintiffs” or “LAPs”). The gravamen of their case is alleged pollution of the rain forest in years ending in 1992 by Texaco, Inc. (“Texaco”), the stock of which Chevron acquired at the end of 2001. This claim originated in the United States. Three American lawyers began the original litigation in this Court many years ago. After the New York suit was dismissed in 2001 on forum non conveniens grounds, they brought a successor lawsuit on a different legal theory (the “Lago Agrio” case) in Ecuador. The judgment at issue here was entered in that case. The LAPs’ attorneys and other representatives have stated that they intend to seek to collect on that judgment in multiple jurisdictions around the world, including by ex parte attachments, asset seizures, and other means, as promptly as possible, starting before completion of the Ecuadorian appellate process. The purpose of such multiplicitous and burdensome proceedings against a company like Chevron, which would be good for the money if the judgment ultimately stands up, is plain. By their own admissions, it is to exert pressure on Chevron by means of this litigation strategy to force a quick and richer settlement. Chevron contends that the judgment is not enforceable outside Ecuador because (1) the Ecuadorian legal system does not provide impartial tribunals or procedures compatible with the requirements of due process of law, and (2) it was obtained by fraud led in major degree by a New York City lawyer, Steven Donziger, substantial parts of which were conducted in the United States. It brought this case for, among other relief, a declaration that the judgment is not entitled to recognition or enforcement. It now seeks a preliminary injunction principally to bar the enforcement of the judgment outside Ecuador pending the resolution of this case on the merits or, at least, the resolution of its prayer for a declaratory judgment. This is an extraordinary case. The amount involved is large. Chevron challenges the fairness and integrity of the judicial system of Ecuador and thus implicates considerations of international comity. There are issues concerning the reach of U.S. law and questions pertaining to the conduct of the New York lawyer and others. There are other concerns. The Court is mindful of the seriousness of each of them and does not act lightly. In the midst of the many “trees” in this vast record, however, sight should not be lost of the forest. Several points must be borne clearly in mind from the outset. First, a great deal of the evidence of possible misconduct by Mr. Donziger and others, as well as important evidence regarding the unfairness and inadequacies of the Ecuadorian system and proceedings, consists of video recordings of the words of Donziger and others made by a New York documentary film maker, Joseph Berlinger, whom Donziger invited to film activities in relation to the Ecuadorian case and who ultimately released a documentary film about it called Crude. Still more comes from e-mails and other documents between and among Donziger and others working with him that were produced in related cases. Yet neither Donziger nor any of the other key actors has denied Chevron’s allegations or attempted here to explain or justify under oath their recorded statements and written admissions. Thus, the record includes uncontradicted and unexplained statements by Donziger and some of his alleged co-conspirators including such highly pertinent comments as this: “They’re all [i.e., the Ecuadorian judges] corrupt! It’s — it’s their birthright to be corrupt.” Nor was this an offhand remark or a new sentiment on Donziger’s part. In a brief filed in this Court in 2000 in an effort to avoid a forum non conveniens dismissal of his earlier case, Donziger stated that Ecuador could not provide an adequate forum and that its judiciary was corrupt. Second, the submissions made by Donziger and the two LAPs who have appeared by counsel (the “LAP Representatives”) — the rest have defaulted — are replete with complaints that there is no hurry here, that the judgment cannot now be enforced under Ecuadorian law, that Donziger should have been given more time to respond to the motion, that the argument of the motion should have been delayed, and the like. As will appear, none of these contentions has merit even considered in isolation. But the details of each of these points should not obscure this overriding fact. When it heard the preliminary injunction motion, this Court noted that any urgency could be eliminated if the defendants agreed to a temporary order that they maintain the status quo — that is, that no effort would be made to enforce the judgment — for a period sufficient to permit submission of additional papers and deliberation by the Court. The LAP Representatives refused. And while Donziger offered an extension of the temporary restraining order (“TRO”) as to himself alone, that offer was essentially illusory because the lack of comparable relief as to the LAPs and some of the other defendants would have left Chevron without the protection that it sought — the LAPs simply could have used lawyers other than Donziger to seek enforcement. Moreover, when Chevron sought a severance and an expedited trial of its claim for a declaration that the judgment is not entitled to recognition or enforcement, the LAP Representatives, after first agreeing, back-pedaled and objected. Third, it must be borne in mind that this is a preliminary injunction motion. As the Supreme Court has said: “The purpose of a preliminary injunction is merely to preserve the relative position of the parties until a trial on the merits can be held. Given this limited purpose, and given the haste that is often necessary if those positions are to be preserved, a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.” Moreover, where, as here, the district court concludes that the risk of harm warrants a TRO to maintain the status quo to permit appropriate consideration of whether to issue a preliminary injunction, “Rule 65,” in the eloquent words of the late Judge Friendly, “demands such but only such thoroughness as a burdened federal judiciary can reasonably be expected to attain within” the limited period during which the TRO may remain in effect. Fourth, there has been a great deal of posturing on both sides. Chevron, for example, complains of the Ecuadorian legal system and judiciary while the LAPs attempt to make much of the fact that Texaco, years ago, successfully obtained a forum non conveniens dismissal of the first of these cases, arguing among other things that the courts of Ecuador would be an adequate forum. Fair enough. But before rising to the bait on either side, however, it is well to bear in mind that the positions of both sides have changed 180 degrees since the predecessor litigation in New York. Chevron then touted the adequacy of the Ecuadorian judiciary, while the plaintiffs — in briefs bearing Donziger’s name as counsel — argued that Ecuador could not provide an adequate forum and that its judiciary was corrupt. Similarly, the LAP Representatives argue that the LAPs are poor, indigenous people of the rain forest who cannot properly be sued in New York. In doing so, however, they utterly ignore the fact that they previously have sued both Texaco and Chevron here, voluntarily participated in still other cases in this Court, are voluntarily litigating in other federal courts around the country, and for years used Donziger and his New York office to mount public relations, political and fund raising efforts in support of their Ecuadorian efforts. So a good deal of the rhetoric and argument in this case on these and other issues must be viewed with a critical eye. The parties here have submitted a large evidentiary record. The facts are essentially undisputed although the same perhaps cannot be said of each of the inferences to be drawn from certain of them. The Court has considered the matter carefully. This is its decision on the motion together with its findings of fact and conclusions of law. I. The Background Texaco’s Former Operations in Ecuador In 1964, Texaco Petroleum Company (“TexPet”), a fourth-tier subsidiary of Texaco, began oil exploration and drilling in the Oriente region of eastern Ecuador. In the following year, TexPet started operating a petroleum concession for a consortium owned in equal shares by TexPet and Gulf Oil Corporation (the “Consortium”). In 1974, the Republic of Ecuador (“ROE”) acquired Gulfs interest through its state-owned oil company, Petroecuador. Petroecuador and the ROE became the majority owner of the Consortium in 1976. TexPet operated a trans-Ecuadorian oil pipeline and the Consortium’s drilling activities until 1990, when Petroecuador assumed those functions. Two years later, TexPet relinquished all of its interests in the Consortium, leaving it owned entirely by Petroecuador. Thus, while the point is only parenthetical, it is interesting that any pollution that may have been released in the past eighteen or more years occurred after Texaco ceased operations in Ecuador. The Beginning — the Aguinda Class Action in this Court Donziger explained the genesis of what ultimately became the Lago Agrio case during the filming for Crude: “I got involved in this lawsuit because I went to law school with a young man back in the early nineteen nineties, whose father is from Ecuador, and found out about this. And his father is a sole practitioner, a lawyer in western Massachusetts, his name is Cristobal Bonifaz, and he started the case, along with his son, myself and the law firm — the Kohn law firm that’s funding the case.” The case they started was Aguinda v. Texaco, Inc., a Southern District of New York purported class action on behalf of inhabitants of the Ecuadorian rain forest— including as plaintiffs, it appears, all or most of the LAPs in the suit — that sought billions in damages for alleged personal injuries and property damage as a result of oil operations that allegedly “polluted the rain forests and rivers in Ecuador.” The plaintiffs asked for billions of dollars also to “redress contamination of the water supplies and environment.” In addition, they sought “equitable relief to remedy the contamination and spoliation [sic ] of [plaintiffs’] properties, water supplies and environment.” In other words, the complaint asked this Court to require Texaco to perform remediation work within Ecuador, another sovereign state. Texaco promptly sought dismissal of the Aguinda action on the grounds, among others, of forum non conveniens and the failure to join the Republic of Ecuador and Petroecuador, which it argued were indispensable because (1) the requested equitable relief within Ecuador could not otherwise be ordered, and (2) Petroecuador’s own actions would be at issue in the case. It argued, among other things, that Ecuador was an adequate and appropriate alternative forum. As will appear, this Court ultimately dismissed the case on forum non conveniens grounds in 2001, and the Second Circuit affirmed. Nevertheless, important events took place while the case was pending. Texaco Settles All Pollution Claims With Ecuador While the Aguinda litigation was pending in New York, TexPet in 1994 entered into a Memorandum of Understanding and, in 1995, signed a settlement agreement with the ROE and Petroecuador (the “Settlement”). TexPet agreed to perform specified remedial environmental work in exchange for a release of claims by the ROE. The release, which covered TexPet, Texaco, and related companies, encompassed “all the Government’s and Petroecuador’s claims against the Releasees for Environmental Impact arising from the Operations of the Consortium, except for those related to the obligations contracted” under the Settlement, which were to be “released as the Environmental Remedial Work is performed to the satisfaction of the Government and Petroecuador.” Moreover, the GOE represented that all of the claims asserted in the Aguinda action “belonged] to the government of the Republic of Ecuador under the Constitution and laws of Ecuador and under international law.” Thus, the release by Ecuador seems to have been intended to put an end to any claims or litigation concerning Texaco’s alleged pollution. Three years later, the ROE entered into an agreement with TexPet (the “Final Release”) in which the ROE agreed that the Settlement had been “fully performed and concluded” and “proceede[ed] to release, absolve, and discharge” TexPet and related companies, including its successors, “from any liability and claims ... for items related to the obligations assumed by Tex-Pet” in the Settlement. The Aguinda Plaintiffs and Lawyers Make A Deal With Ecuador The Aguinda plaintiffs were not idle in Ecuador while their case was pending in New York. For one thing, they evidently were concerned about Texaco’s claim that Ecuador was an indispensable party in view of the prayer for an equitable decree requiring environmental remediation in Ecuadorian territory. They obtained Ecuador’s agreement to advise this Court that it consented to the “execution in its territory of any environmental cleanup measures that the [Southern District] Court may order [Texaco] to perform.” But there was a quid pro quo. As spelled out in the formal agreement, dated November 20, 1996, between the plaintiffs and the Ecuadorian government, the Aguinda plaintiffs and their lawyers waived any rights to (1) make any claims against Ecuador, Petroecuador, and affiliates thereof, and (2) to collect from Texaco any amount arising from an award by this Court to Texaco of contribution against Ecuador, Petroecuador or affiliates. In other words, they effectively agreed to reduce the amount of any judgment they might obtain against Texaco by the amount of any award of contribution Texaco might obtain against Ecuador, Petroecuador or affiliates. Ecuador’s Environmental Management Act of 1999 That was not the end of the collaboration among Ecuador, Donziger and his colleagues, and the Aguinda plaintiffs against Texaco. In 1999, Ecuador enacted the Environmental Management Act of 1999 (the “EMA”), which among other things created a new private right of action for damages for the cost of remediation of environmental harms generally, as distinct from personal injuries or property damages to specific plaintiffs. The EMA became the basis upon which the Lago Agrio case was brought. And it is relevant to focus on the context in which the EMA was adopted. By 1999, the Aguinda plaintiffs were litigating Texaco’s motion to dismiss that case on the ground of forum non conveniens. They evidently understood, moreover, that Ecuador did not permit class actions or pretrial discovery and feared that class-wide tort claims such as those asserted in New York would not be entertained. When the Lago Agrio case was commenced in 2003, Cristobal Bonifaz — one of the lawyers with whom Donziger brought the Aguinda suit and in whose law office he worked at the time — held a press conference in Ecuador. According to the Associated Press, Bonifaz indicated that “his team” had “worked with Ecuadorian lawyers to draft [the EMA] similar to the U.S. superfund law” and that those efforts were in preparation “for a possible move from U.S. courts.” Accordingly, recognizing that this like all findings at this stage is provisional, the Court infers that the EMA was substantially drafted and its enactment procured by Bonifaz, Donziger and other American attorneys for the Aguinda plaintiffs. They did so because they feared losing the forum non conveniens motion in New York and being remitted to Ecuador, which had no class actions and thus no vehicle for the sort of giant toxic tort and other litigations common in the United States. They intended the EMA to provide a basis for suing in Ecuador to recover billions in damages in the absence of any other vehicle for doing so. The Lago Agrio Litigation — 2003-2008 The Complaint As noted, the Court of Appeals affirmed the dismissal of the Aguinda case in 2002. In 2003, a group of Ecuadorians, including many of the Aguinda plaintiffs, sued Chevron and Texaco in Lago Agrio, Ecuador. The complaint, brought on behalf of the LAPs, alleges environmental contamination by TexPet, Texaco’s subsidiary, and Texaco in the years up to 1992. It states that Texaco was responsible for the activities of TexPet because it directed and controlled TexPet’s operations and capitalized it in a manner designed to limit liability for any complaint derived from its activities. The complaint went on to allege in conclusory terms that Texaco and Chevron on October 9, 2001 merged into a “new company ... replacing the previously mentioned [Texaco and Chevron] with regard to all obligations and rights” and maintains that Chevron therefore is subject to Texaco and TexPet liabilities. Consistent with the EMA, the complaint sought remediation of alleged pollution said to remain in the region inhabited by the plaintiffs, demanded judgment requiring that the necessary work be done, and sought health improvement and medical monitoring of the inhabitants be done, at the expense of “the defendant.” The Lago Agrio litigation, though it was brought on behalf of similar and, in many cases, the same individuals, was a fundamentally different lawsuit than Aguinda. Aguinda sought predominantly damages for the plaintiffs and class members for injuries to person or property that each allegedly had suffered. The LAPs, however, sued in something akin to a parens patriae capacity to require the defendants to perform, or to pay the cost of performing, environmental and other remediation methods. Donziger’s Role When the Lago Agrio case commenced in Ecuador, Ecuadorian lawyers naturally became involved. But Donziger too remained very much involved. In fact, his role was enormous. He became the fulcrum of the entire effort to use the Lago Agrio litigation to obtain a very large payment from Chevron. He has described himself as the “link to all of the work in the United States and all of the institutional history of the case.” In a 2006 book proposal, he described his role as follows: “I have been at the epicenter of the legal, political, and media activity surrounding the case both in Ecuador and in the U.S. I have close ties with almost all of the important characters in the story, including Amazon indigenous leaders, high-ranking Ecuadorian government officials, the world’s leading scientists who deal with oil remediation, environmental activists, and many of Chevron’s key players.” He has confirmed that his role in the litigation was not confined to time he spent in Ecuador. His “work doesn’t let up just because [he is] in the U.S., at all.” While he is in the United States, the work continues to be “intense” as he finds “ways to increase the leverage and ... cost to Chevron.” In a telephone conversation about the same book deal, he assured the person with whom he spoke 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.” These descriptions are understatements. As this Court previously found, Donziger: “attempted to (1) intimidate the Ecuadorian judges, (2) obtain political support for the Ecuadorian lawsuit, (3) persuade the [Government of Ecuador] to promote the interests of the Lago Agrio plaintiffs, (4) obtain favorable media coverage, (5) solicit the support of celebrities (including Daryl Hannah and Trudie Styler) and environmental groups, (6) procure and package ‘expert’ testimony for use in Ecuador, (7) pressure Chevron to pay a large settlement, and (8) obtain a book deal.” He was involved intimately in obtaining and formulating expert reports for submission in the Lago Agrio case; seeking political support of the president of Ecuador, among others; procuring favorable media coverage in the United States and elsewhere; and promoting critical attention to Chevron by U.S. and New York State public officials, all for the purpose of pressuring Chevron to pay a settlement. And while some of his activities occurred in Ecuador, many took place right here in Manhattan. To be sure, some Ecuadorians were importantly involved in the Lago Agrio case as well, most notably Pablo Fajardo and Luis Yanza. Fajardo is the lead attorney in the Ecuadorian courts on behalf of the LAPs. Yanza is the co-founder of the Amazon Defense Front (the “ADF”), a supposedly non-profit organization that purports to represent the LAPs and that seeks to be charged with administering any part of the judgment recovered against Chevron that does not go to the ROE or other defendants (i.e., the lawyers). The evidence establishes that Donziger, Fajardo, Yanza and the ADF have worked closely together at all relevant times. Early Stages The Initial Criminal Investigation — An Attempt to Defeat the Settlement In 2003, the same year in which the Lago Agrio litigation was filed, the Comptroller General of the ROE filed a denuncia against TexPet lawyers, Rodrigo Pérez Pallares (“Pérez”) and Ricardo Reis Veiga (“Veiga”), and former ROE and Petroecuador officials. It alleged that they had falsified public documents in connection with the Settlement and Final Release and had violated Ecuador’s environmental laws. At least one purpose of doing so quickly became clear. In 2004, the Ecuadorian Prosecutor General began an investigation of the criminal charges. The Ecuadorian Deputy Attorney General explained in an email to one of the LAPs’ counsel in the Lago Agrio litigation that the criminal prosecutions were potentially a “way to nullify or undermine the value of the” Settlement and Final Release [of Texaco], though “evidence of criminal liability established by the Comptroller [General’s] Office was rejected by the prosecutor.” During this period, Donziger, Bonifaz, and others worked to encourage the ROE to bring criminal fraud charges against Pérez and Veiga. Two years later, however, the District Prosecutor found that “there [was] not sufficient evidence to pursue the case against ... Mr. Ricardo Reis Veiga and Mr. Rodrigo Pérez Pallares, representatives of TEXPET.” As we shall see, the same District Prosecutor in his subsequent capacity as national Prosecutor General and after the political winds in Ecuador had changed, later decided to reopen the criminal investigation and charge Pérez and Veiga with the same allegations that he previously had dismissed for lack of evidence. The Early Expert Inspections In the early stages of the Lago Agrio litigation, the court directed the parties to investigate and report jointly on conditions at a number of former consortium production sites. The LAPs selected Dr. Charles Calmbacher to act as their expert in charge of the inspections and to report on some of the sites. In early 2005, they filed reports in his name for two of those sites, each purporting to show extensive environmental damage. Although it appears to have been unknown either to Chevron or the court at the time, it later became clear, as discussed below, that the reports the LAPs filed over Calmbacher’s name were entirely false and fraudulent. In any case, however, events began to move in additional and important directions. Donziger Solicits Berlinger to Make Crude As this Court wrote previously: “In 2005, Steven Donziger, one of the lead counsel for the plaintiffs in the Lago Agrio Litigation, solicited award-winning producer and filmmaker Joseph Berlinger to create a documentary depicting the Lago Agrio Litigation from the perspective of his clients. Berlinger recounted that: “During the summer of 2005, a charismatic American environmental lawyer named Steven Donziger knocked on my Manhattan office door. He was running a class-action lawsuit on behalf of 30,000 Ecuadorian inhabitants of the Amazon rainforest and was looking for a filmmaker to tell his clients’ story.” Principal photography begin in November 2005. “For the next three years, Berlinger shadowed the plaintiffs’ lawyers and filmed ‘the events and people surrounding the trial,’ compiling six hundred hours of raw footage.” As will appear, Berlinger’s appearance on the scene eventually had a huge impact on the Lago Agrio litigation and related matters. The Global Assessment— The Cabrera Report In 2006, just after Berlinger began filming, the LAPs asked the Lago Agrio court to end the judicial inspection process in which Dr. Calmbacher had participated. They later petitioned for the appointment of an expert for a “global assessment” of the alleged environmental effects, which was intended to complete the “final evidentiary phase” of the litigation. On March 19, 2007, the Ecuadorian court appointed a supposedly neutral and independent Ecuadorian expert, Richard Stalin Cabrera Vega (“Cabrera”), to make the global assessment. Cabrera was sworn on June 13, 2007, with “responsibility] for the entire report, the methodology used, for the work done by his assistants, etc. He understood that he was obliged to “perform his duties faithfully and in accordance with science, technology, and the law, with complete impartiality and independence vis-á-vis the parties.” On March 28, 2008, Cabrera set the amount of damages at $16 billion and filed his report several days later. Chevron questioned his independence. Fajardo and others on the LAP side defended it in public statements. For example, in an April 3, 2008 press release issued by the ADF and Amazon Watch, Fajardo stated, “Chevron’s claim that Professor Cabrera is cooperating with the [Lago Agrio] plaintiffs is completely false” and “Chevron is frightened by Cabrera precisely because he is an independent and credible expert.” Kohn made the same claim regarding Cabrera’s independence in an interview on Fox News during the following month. Chevrontoxico.com, a website sponsored by the LAPs regarding the litigation, described Cabrera as an “independent” expert, along with issuing other press releases and public statements made on behalf of the LAPs. As will appear, these statements were false. At that point, the parties had the opportunity to comment on the Cabrera report. The LAPs hired Stratus Consulting, Inc. (“Stratus”) to prepare comments on the Cabrera report, which were submitted to the Lago Agrio court on December 1, 2008. Amazon Watch and the ADF issued a press release describing Stratus’s endorsement of the Cabrera report. As will appear, Cabrera was anything but independent and Stratus, in purporting to comment on Cabrera’s work, in fact was commenting on its own — it actually had written all or most of the Cabrera report. The Release of Crude Leads to U.S. Discovery Revealing Misconduct The Release of Crude Crude was released in early 2009. According to its press package, it “ ‘captures the evidentiary phase of the Lago Agrio trial, including field inspections and the appointment of independent expert Richard Cabrera to assess the region.’ The film depicts also the environmental damage allegedly caused by TexPet and interviews with Ecuadorians dying of diseases perhaps caused by oil spills.” The Court has described a few key scenes elsewhere and incorporates that description here: “A. Plaintiffs’ Counsel Meets with Easpert Witness “Crude contains footage of a number of meetings that took place in the Dureno community of the indigenous Cofan people. A version of Crude ‘streamed’ over Netflix depicts one such meeting, at which Dr. Beristain, an expert who contributed to Cabrera’s neutral damages assessment, is shown working directly with both the Cofan people and plaintiffs’ counsel. Berlinger, however, altered the scene at the direction of plaintiffs’ counsel to conceal all images of Dr. Beristain before Crude was released on DVD. The interaction between plaintiffs’ counsel and Dr. Beristain therefore does not appear in the final version of Crude sold on DVD in the United States. “B. Plaintiffs Counsel Interferes with Judicial Inspection “In another scene of Crude, Donziger, one of plaintiffs’ lead counsel, persuades an Ecuadorian judge, apparently in the presence of Chevron’s lawyers and news media, to block the judicial inspection of a laboratory allegedly being used by the Lago Agrio plaintiffs to test for environmental contamination. Donziger describes his use of ‘pressure tactics’ to influence the judge and concedes that ‘[tjhis is something you would never do in the United States, but Ecuador, you know, this is how the game is played, it’s dirty.’ “C. Plaintiffs’ Representatives Meet with the Ecuadorian Government “In another scene, a representative of the plaintiffs informs Donziger that he had left the office of President Correa ‘after coordinating everything.’ Donziger declares, ‘Congratulations. We’ve achieved something very important in this case____Now we are friends with the President.’ The film then offers a glimpse of a meeting between President Correa and plaintiffs’ counsel that takes place on a helicopter. Later on, President Correa embraces Donziger and says, ‘Wonderful, keep it up!’ “Donziger explains also that President Correa had called for criminal prosecutions to proceed against those who engineered the Settlement and Final Release. ‘Correa just said that anyone in the Ecuador government who approved the so-called remediation is now going to be subject to litigation in Ecuador. Those guys are shittin’ in their pants right now.’ ” While all of these sequences shed light on events in Ecuador, the revelation that Dr. Beristain, a contributor to Cabrera’s supposedly independent global assessment, had been at a meeting with plaintiffs and plaintiffs’ counsel — a matter raising a question about Cabrera’s independence— was of particular concern. That was especially so in light of the fact that the images of Dr. Beristain at that meeting that were in a Netflix version had been edited out of the version released on DVD. These and perhaps other circumstances caused Chevron during the first quarter of 2010 to begin seeking discovery under 28 U.S.C. § 1782 from American witnesses thought to have knowledge of pertinent facts. In a series of proceedings around the country, Chevron obtained, among other things, the outtakes from Crude — the video segments that did not make it into the film as released — as well as documents and testimony from Donziger, Stratus, and others. The information gained in the Section 1782 proceedings is remarkably informative about the Lago Agrio litigation and related matters bearing heavily on this motion and it provides a significant part of the evidentiary record. Dr. Calmbacher Disavows Report the LAPs Filed Over His Name As previously noted, Dr. Charles Calmbacher had been selected by the LAPs to act as their expert in charge of the inspections and to report on some of the sites. In early 2005, they filed reports in his name for two of those sites, each purporting to show extensive environmental damage. In early 2010, in one of Chevron’s first Section 1782 proceedings, Dr. Calmbacher testified as follows: “Q. .. To the extent that someone took this signature page that is currently attached at the last page of Exhibit 12 and attached it to this report and represented to the Court in Lago Agrio that you had written this report and reached these conclusions, that would be false, correct? A. That’s correct. I did not reach these conclusions and I did not write this report.” “Q. So the conclusions in the expert report for Shushufindi 48, Exhibit 13, to the extent they’re presented to the Court as conclusions you reached, that presentation would be false, correct? A. Correct.” “Q. Did you ever find that any of the sites that you inspected required any further remediation? A. No.” “Q. While you were working as a judicial inspection expert for the plaintiffs, did you ever conclude that TexPet had failed to adequately remediate one of the sites? A. I didn’t no.” Dr. Calmbacher made clear that he had “discussed what [his] findings were on this site and others” with Donziger and believes that Donziger would have known that the reports submitted over Calmbacher’s name had not been authorized by Calmbacher. Donziger even told another member of the legal team via e-mail that Dr. Calmbacher “will still sign the [expert] reports,” but the LAPs team “might have to write [the reports] in Quito.” Dr. Calmbacher testified as well that Donziger told him that “he wanted the answer to be that there was contamination and people were injured ... [b]ecause it makes money. That’s what wins his case.” The LAPs terminated Dr. Calmbacher. There perhaps is bad feeling between them. Nevertheless, his testimony is evidence that persons acting on behalf of the LAPs prepared reports expressing views contrary to Calmbacher’s and submitted those fictitious reports to the Lago Agrio court over his name. Perhaps there is a different explanation. But neither Donziger nor any other knowledgeable person on the LAP side has submitted an affidavit or other sworn proof — timely or not — denying Calmbacher’s assertions or offering any explanation. The Cabrera Report Exposed The outtakes and other Section 1782 discovery yielded a great deal of evidence about Cabrera’s ■ appointment and the preparation of his purported report. Cabrera’s Appointment There is substantial evidence of irregularity relating to the appointment and independence of Cabrera. At about the time of the petitions to terminate the inspections and obtain a global assessment by an “independent” court appointee, the Ecuadorian judge, according to an e-mail from Donziger to Yanza, was “on his heels from ... charges of trading jobs for sex in the court.” Donziger and the LAPs lawyers drafted a complaint against the judge. Before the complaint was filed, Fajardo, in consultation with Donziger, met ex parte with the judge concerning the pending request to terminate the previously ordered inspections in favor of the proposed “global assessment.” Fajardo left the meeting with the belief that the judge wanted “to forestall the filing of a complaint against him by the” LAPs and the view that the LAPs’ prospects with respect to obtaining the global assessment were “looking better.” Fajardo had other ex paHe meetings with the judge concerning the appointment. The Crude outtakes reveal Fajardo talking about the global assessment before Cabrera was appointed and stating that he had a pretty good idea of who would be appointed. Donziger boasted in the outtakes that Cabrera “never would have [been appointed] had we not really pushed him.” The outtakes confirm also that the LAPs knew in advance that Cabrera would be the appointee. Then, not long after Cabrera was appointed and sworn in, Yanza e-mailed Donziger that he had met with Cabrera and that “everything [wa]s under control. We gave him some money in advance.” Further, Donziger testified in a Section 1782 deposition in this Court: “Q. Did you tell Mr. Cabrera that if he served as the global court expert and the plaintiffs won the case that he would have a job the rest of his life being involved in the remediation; did you tell him that? “A. I might have. I don’t remember.” While the evidence is not conclusive and certainly would be open to further examination at trial, the foregoing suggests at least the possibilities that (1) the judge agreed to the global assessment in general and to appoint Cabrera in particular in exchange for the LAPs’ agreement not to file a complaint against the judge, and (2) Cabrera, the supposedly independent court appointee, was paid money up front and promised future consideration by the LAPs in the event they prevailed. In the absence of any affidavit or other evidence from Donziger or Fajardo pointing to a different conclusion on these points, the Court concludes, solely for purposes of this motion, that Chevron has demonstrated at least serious questions as to the accuracy of each of the foregoing propositions. The LAPs GhosCWrote All or Much of Cabrera’s Report On March 3, 2007, Donziger and Fajardo held a meeting with Cabrera and LAP environmental experts, including Stratus, for the purpose of planning the report to which Cabrera eventually would attach his name. The Crude outtakes reveal that Fajardo on that occasion informed the group that the goal of the meeting was to “define the general structure of [the] global expert assessment.” Donziger later clarified that the plaintiffs’ work plan would involve not only evidence and remediation, but also writing the expert’s opinion. At the meeting, Fajardo made a PowerPoint presentation that outlined the Plan Para Examen Perietal Global, or Plan for the Global Expert Assessment. He emphasized to those present that everyone would contribute to the report, explaining: “And here is where we do want the support of our [i.e., the LAPs’] entire technical team ... of experts, scientists, attorneys, political scientists, so that all will contribute to that report — in other words — you see ... the work isn’t going to be the expert’s. All of us bear the burden.” Someone asked whether the final report would be prepared only by the expert. Fajardo responded that the expert would “sign the report and review it. But all of us ... have to contribute to that report.” Defendant Ann Maest of Stratus said, “Together?,” which Fajardo confirmed. Maest then stated, “But not Chevron,” a comment met with widespread laughter. In the afternoon session, the group discussed the “work plan,” the first document that Cabrera would be required to sign and file with the Ecuadorian court. Donziger proposed that he and the U.S.-based consultants form a “work committee” to present a “draft plan” in a few days. Looking at Cabrera, Donziger then said, “and Richard, of course you really have to be comfortable with all that. And we’ll also define the support the expert needs.” The recording of the meeting ended with Donziger commenting, “We could jack this thing up to $30 billion in one day.” Donziger later confirmed at his deposition that the LAPs’ own experts provided Cabrera with a work plan that he later submitted to the court, ostensibly as a product of his own work. Outtakes recorded on the following day reveal that Donziger made clear to one of the Stratus consultants that everything the plaintiffs were doing was to be concealed from Chevron, his “goal [being] that they don’t know shit.” During the same lunch, the Stratus consultants told Donziger that there was no evidence that contamination from the pits had spread into the surrounding groundwater. Donziger responded in quite memorable fashion: “You can say whatever you want and at the end of the day, there’s a thousand people around the courthouse, you’re going to get what you want,” and “[therefore, if we take our existing evidence on groundwater contamination, which admittedly is right below the source ... [a]nd wanted to extrapolate based on nothing other than our ... theory,” then “[w]e can do it. And we can get money for it.” He went on: “[T]his is all for the Court just a bunch of smoke and mirrors and bullshit.” And when one consultant argued that “there [wa]s not enough information on that groundwater” and that “the one hole in the remediation, [wa]s the water,” Donziger broke off the discussion, stating, “There’s another point I got to make to these guys, but I can’t get this on camera.” The recording then ended. This was not the only occasion during that lunch on which Donziger went “off the record.” When one expert commented that it had been “bizarre” to have had Cabrera present at the meeting the day before, Donziger instructed the expert not to talk about that fact and told the camera operator that those comments were off the record. The expert elaborated that he was surprised that there had been a meeting during which “everything” had been laid out while the expert was present. Donziger and his team continued to “lay everything out” for Cabrera. But before they did that, they discussed planning what Cabrera could do “to prove his independence.” In the meantime, Donziger worked with David Chapman of Stratus, among others, to determine how Stratus would do “much of the work, putting the pieces together and writing the report.” Evidence indicates that Doug Beltman, other Stratus consultants, and subcontractors outlined and drafted substantial portions of the Cabrera report and many of its annexes and supervised their translation into Spanish until the document eventually was signed by Cabrera and submitted to the court. In January 2008, Donziger, Yanza, Fajardo, Beltman, and Maest met secretly with Cabrera, likely to discuss the report that was being prepared for him to sign. In March 2008, Ecuadorian counsel for the LAPs “conveyed a substantial amount of information prepared by Stratus to Cabrera and may not have contemporaneously advised Chevron (or the Court) of that submission.” E-mail exchanges among Donziger, Beltman, and other Stratus consultants confirm that Stratus drafted substantial portions of the Cabrera report and its annexes. An outline of the expert report includes a table that assigns each annex to a member of the Stratus team. There is a note below the table which reads: “need to figure out to whom Richard [Cabrera] will attribute each of the annexes,” thus implying that the annexes would be supplied to Cabrera, but not attributed to the people who actually wrote them. A few weeks before the Cabrera report was submitted, Beltman sent Donziger a draft of the report for Donziger’s feedback. And it appears to have been Beltman, copying Maest, who sent a complete draft of the report with Cabrera’s name, in English, to a translation service less than three weeks before the report was filed. If there were any doubt as to the implication of this evidence, it was removed at Donziger’s deposition where he admitted that Cabrera had “adopted pretty much verbatim what'had been provided to him by Stratus. Indeed, he testified: “Q. Was it agreed that Stratus would draft the report in a form that could be submitted directly to the Ecuadorian court by Mr. Cabrera? “A. I don’t have a specific recollection, but I think that was the general idea.” As the facts concerning the ghost writing of the Cabrera report first threatened to come and then came out in the Section 1782 proceedings, at least some on the Lago Agrio side became deeply concerned. One of the LAPs’ Ecuadorian lawyers wrote to Donziger that the “effects” of disclosure could be “potentially devastating in Ecuador (apart from destroying the proceeding, all of us, your attorneys, might go to jail)[.]” Moreover, although time does not permit detailed discussion of the evidence, there is extensive evidence that counsel for the LAPs and Donziger made Herculean and perhaps questionable efforts in the Section 1782 proceedings to prevent or delay the disclosure of material proving the roles of Stratus and other U.S. consultants in the Cabrera report. The “Cleansing” Operation The disclosures concerning Stratus’ ghost writing of all or much of the Cabrera report created a substantial problem for the LAPs and their lawyers. This led Donziger and lawyers from Patton Boggs and Emery Celli, which also represent the LAPs in United States Section 1782 proceedings, to brainstorm about submitting to the Ecuadorian court a new expert report that would appear to be independent but that would be premised on the data and conclusions purportedly reached by Cabrera. This effort to “cleanse” the Cabrera report is detailed in an August 2010 e-mail, approximately one month before the new report was submitted to the Lago Agrio court: “[0]ur new expert will most likely rely on some of the same data as Cabrera (and come to the same conclusions as Cabrera) ... We probably wouldn’t want to draw that much attention to Cabrera, but we should think about whether our expert might address Cabrera’s findings in such a subtle way that someone reading the new expert report (the Court in Lago or an enforcement court elsewhere) might feel comfortable concluding that certain parts of Cabrera are a valid basis for damages.” “With Cabrera as a starting point, identify the data/evidence he used to support his numbers — Have our expert review this analysis and hopefully agree with some of his conclusions. More importantly however, we need to help the expert identify other sources in the record — ultimate conclusion could be higher or lower than Cabrera, and potentially based on a mixture of sources from Cabrera and the other record evidence we identify!)]” Although the e-mail states that the attorneys would attempt to “find support from other evidence not relied upon by Cabrera, ... independent credible evidence,” it identified a plan to involve Beltman of Stratus — the U.S. environmental eonsultant who was instrumental in outlining and ghostwriting the Cabrera report. New reports were obtained and submitted. Nevertheless, the new consultants largely reviewed certain sections of the Cabrera report rather than conduct their own independent fact finding. Nearly all of the new experts completed their reports in less than a month without (1) visiting Ecuador, (2) conducting any new site inspections, (3) taking any new samples, (4) conducting any other form of environmental testing, or (5) taking steps independently to verify the data in the Cabrera report or other findings upon which they relied. While the evidence necessarily is incomplete, the record before the Court indicates the likelihood that (1) the concept of a global assessment by a court appointed expert and the selection in particular of Cabrera was accepted by the Ecuadorian court in order to forestall the filing by the LAPs of a complaint against the judge relating to a “sex for jobs” scandal, (2) Cabrera was not at all independent of the LAPs, as he had been selected, paid some money, and promised future compensation by them if they won, (3) the Cabrera report in fact was planned by Fajardo and other LAP representatives and, at least in substantial part, written by Stratus, (4) at the LAPs’ request, Stratus submitted to the court comments on the purported Cabrera report without disclosing that Cabrera in at least major respects was not the author and that much of the report on which they purported to comment had been written by Stratus itself, (5) Cabrera, Fajardo, and the ADF, and others on the LAP side falsely represented to the Lago Agrio court and to the world at large that Cabrera was completely independent, and (6) when the provenance of the Cabrera report came out in the Section 1782 proceedings, the LAPs procured and submitted as new and independent analyses reports from still other consultants who had not visited Ecuador, conducted any site inspections, nor obtained any samples for this purpose, and had relied upon data in the discredited Cabrera report. For purposes of this motion, the Court so finds. The LAPs’ Use of Pressure Tactics and Political Influence in this Case Given what has been said already, it is not surprising that the LAPs, through their lawyers and others, resorted to pressure tactics directed at the Ecuadorian courts as well as political influence to achieve their objectives. Intimidation of the Ecuadorian Judges We have seen already that the LAPs, through Fajardo, brought pressure to bear on the Lago Agrio judge.to secure adoption of their proposal for a global assessment and the selection of Cabrera as the court-appointed expert. But they did not stop there. Donziger has served as the field general in what he describes in the Crude outtakes as a “political battle ... being played out through a legal case,” a view that dovetails with his assessment of the Ecuadorian court system as corrupt and driven by politics. Donziger’s activities in the United States and Ecuador have gone far beyond the rendition of professional legal services. Donziger, Fajardo, Yanza and the ADF have orchestrated a campaign to intimidate the Ecuadorian judiciary. According to Donziger, it has been 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.” Donziger directed a member of the Ecuadorian legal team to “prepare a detailed plan with the necessary steps to attack the judge through legal, institutional channels and through any other channel [he could] think of.” One example depicted in part in Crude shows Donziger and other LAP representatives traveling to an ex parte meeting with a judge on March 30, 2006. 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 on multiple occasions: “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.” “They’re all [i.e., the Ecuadorian judges] corrupt! It’s — it’s their birthright to be corrupt.” “You can solve anything with politics as long as the judges are intelligent enough to understand the politics.... [T]hey don’t have to be intelligent enough to understand the law, just as long as they understand the politics.” “[I]t’s a problem of institutional weakness in the judiciary, generally, and of this court, in particular ... We believe they make decisions based on who they fear the most, not based on what the law should dictate.” The Plan to Pressure the Court With an “Army” Among the events filmed by the Crude crew was 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 ” The outtakes captured a June 6, 2007 meeting in which Donziger outlined a strategy to pressure the Ecuadorian court. Donziger told those present that the LAPs 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 began to fear them. He 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.” During this exchange, Atossa Soltani of Amazon Watch said, “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 the court then continued, with Yanza waving the camera away as he told Donziger that the “army” could be supplied with weapons. 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. Later that month, Donziger asked Berlinger and his crew to film the LAPs’ “private ‘army,’ ” which he characterized as being “very effective” because “it followed a Texaco lawyer into the judge’s chambers and had a confrontation” “a critical part of [the] strategy ... allowing the case to go forward ...” Killing the Judge? Finally, Donziger participated in a dinner conversation about what might happen to a judge who ruled against the LAPs. 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.” The comment reveals at least Donziger’s desire to benefit from fear engendered in the Ecuadorian judges. Political Influence to Use the Criminal Process Against Former TexPet Lawyers to Extort a Settlement We have referred previously to the cons