Lago Agrio: New Documents Surfacing?

Update (10/9/13): The Republic of Ecuador’s lawyer had chimed in, seeking to protect the Republic’s privileged communications and raising the suspicion that someone may have obtained them illegally. Here are excerpts from the email the email:

Gentlemen,

I was informally served yesterday by Gibson Dunn with a proposed Order to Show Cause and supporting papers filed by Chevron in the RICO action. The papers referred to certain email correspondence apparently forwarded to Chevron or its attorneys by a woman in Washington DC, a Ms. Margaret Petito, who is to our knowledge neither a party to nor otherwise involved in the RICO case.

A brief review of these papers informed me that a substantial portion of this correspondence was either sent to or from Alexis Mera, Legal Advisor to the Office of the President of the Republic of Ecuador. The Gibson Dunn papers also refer to an “index” of this correspondence prepared by an attorney in Austin, Texas, Mr. Lochridge. Gibson Dunn appears to be concerned, and quite properly so, that this correspondence, sent to them by Ms. Petito, who is herself apparently unaware of the identity of the person who gave it to her, might have been unlawfully obtained from Mr. Mera’s computer or other non-public sources. We of course share that concern.

* * *

Until we can reach an accord on these prophylactic measures, or alternatively obtain an order of intervention to seek them from the court, we request that you advise Judge Kaplan of our position and refrain from seeking an order from him authorizing anyone other than the Republic or its counsel, or the present custodian, Mr. Lochridge, to obtain access to either the index or the underlying documents themselves.

C. MacNeil Mitchell
Winston & Strawn LLP
Counsel to the Republic of Ecuador

I expect that as trial approaches, my posts here at Letters Blogatory will start to be “all Lago Agrio, all the time,” at least for a little while. So apologies to readers who are more interested in the case of the day than in the goings-on in Judge Kaplan’s court! I promise to return to our regularly scheduled programming as soon as I can.

Here is an interesting Lago Agrio development: Chevron says it was approached by Margaret L. Petito, a person unaffiliated with Chevron, who claimed to have emails and other documents relevant to the case. Petito says that the documents were sent to her anonymously and that she doesn’t know whether the sender was authorized to send them to her. All very John le Carré. Chevron, concerned about privilege issues, asked another lawyer to review the documents without disclosing their contents to Chevron, and Chevron now asks for leave for the third-party lawyer, Patton G. Lochridge, to file the documents under seal for an in camera review by Judge Kaplan, with an aim of obtaining the documents for possible use in the trial.

Ordinarily I wouldn’t write about a filing like this until Judge Kaplan acted on it. But it was curious to me to see Ms. Petito’s name, since I had written about her before. She is the president of a corporation called Friends of Rule of Law in Ecuador, Inc., which apparently has had its corporate status revoked by the District of Columbia. She previously worked for the Ecuadoran embassy in Washington, prior to President Correa’s government. And she submitted a take-no-prisoners comment to the USTR in connection with the decision whether to renew Ecuador’s ATPA trade preferences.

It will be interesting to see how this plays out, both on a technical level and in terms of the substance of what the documents contain. On a technical level, Ms. Petitio says she does not know who sent her the documents, but unless the sender took appropriate precautions (e.g., an anonymous email account established from a computer using TOR, although who knows whether that sort of method is reasonably secure anymore), it may be possible to determine who the sender was.

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 2d ed. 2016), 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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