Lago Agrio: Judge Kaplan Denies Patton Boggs’s Motion to Strike the Bogart Declaration

Back in April I reported on a declaration by Christopher Bogart, the CEO of the Lago Agrio plaintiffs’ former litigation funder, Burford Capital. As I wrote in a later post, the declaration “basically threw Patton Boggs under the bus by claiming that the law firm had persuaded Burford to invest in the litigation by defending the supposedly independent Cabrera report.” Patton Boggs moved to strike the declaration. Its first motion was redacted in significant ways; Patton Boggs later filed a juicy and much more lightly redacted version, on which I commented in August.

Chevron opposed Patton Boggs’s motion to strike, arguing that the declaration was relevant to Chevron’s “third-party fraud” claim (this is the strange claim that, according to Judge Kaplan, New York law permits—a plaintiff can sue for fraud even if it was a third party that relied on the fraudulent misstatement) as well as its RICO claim. Chevron also argued that Patton Boggs, a non-party, had no standing to seek to strike the declaration, and that even if Patton Boggs had done nothing wrong, its innocence would not provide Donziger or the LAPs with a defense.

Judge Kaplan has now denied the motion to strike. In a short order, he held that the declaration was “sufficiently relevant” to avoid being stricken, without any explication. He also agreed with Chevron that Patton Boggs lacked standing, though because the LAPs had joined the motion this was not a critical point.

Patton Boggs and the LAPs faced a difficult task here, as motions to strike are disfavored and require a very strong showing before a court will grant them. The LAPs did, though, score some PR points insofar as the less-redacted version of their motion to strike creates a counter-narrative of why Burford defected. Chevron’s opposition to the motion to strike addresses the counter-narrative at length, but from the LAPs’ perspective, at least now there are two narratives out there.

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