Lago Agrio: Who are John Doe 1 and 2?

Judge Kaplan issued a juicy order recently granting Chevron’s motion for a protective order. At issue: two declarations by “John Doe” witnesses that Chevron filed under seal, which are available only to the judge and to counsel of record for both sides. The purpose of the declarations is to corroborate the Guerra Declaration, which I covered back in January. Guerra, recall, was the former Ecuadoran judge whose story of corruption in the Ecuadoran proceeding was major news when it first became public a couple of months ago. As I wrote at the time, given Guerra’s lack of credibility, corroboration of his story will be key to judging whether to believe it or not. According to Judge Kaplan, “One of the [John Doe] declarations contains information that, if credited, would substantially corroborate Guerra.” The declarants apparently reside in Ecuador and “fear reprisals against their families and themselves.”

I for one would like to read those declarations. So the question is: does the right of public access to judicial records under the First Amendment and at common law outweigh the considerations that led the judge to seal the records?

Judge Kaplan said no. He pointed to threats of legal action in Ecuador against Guerra by the LAP team, the Crude outtakes suggesting that Donziger and his colleagues were seeking to intimidate the Ecuadoran courts, and an occasion on which, according to the judge, the evidence suggests that Ecuador’s government brought criminal charges against Petroecuador officials at the LAPs’ urging, which it later withdrew when, according to Judge Kaplan’s view, the prosecutions became inconvenient for the LAPs (because they were providing an additional avenue for § 1782 discovery in the United States). The judge also cited the El Universo case and the findings of the State Department’s 2011 Country Report for Ecuador—the subject of my FOIA case!—to support his view that the John Does’ fears were credible. He found that the concern for their safety outweighs the public’s right of access.

It’s hard to judge the merits of Judge Kaplan’s decision without seeing the sealed declarations, which is part of the trouble with documents under seal generally. It does seem to me, though, that these declarants ultimately will have to testify at trial, and ultimately their credibility will have to be tested in cross-examination. I think Judge Kaplan’s decision, which appears to rest on FRCP 26(c), will be much more difficult to justify at trial. Given the public interest in the case it is difficult to imagine that it will be desirable or even possible to shield the identity of the two John Does from public scrutiny.

Do you have a guess about the identities of the two John Does? If so, I’d love to hear it!

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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