otion to uash n re pplication of the r...

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MOTION TO QUASH, IN RE APPLICATION OF THE REPUBLIC OF ECUADOR 10-MC-80225

Cristina C. Arguedas (CSB 87787)Ted W. Cassman (CSB 98932)Michael W. Anderson (CSB 232525) ARGUEDAS, CASSMAN & HEADLEY LLP803 Hearst AvenueBerkeley, CA 94710Telephone: (510) 845-3000Facsimile: (510) 845-3003

Attorneys for Movant Diego Borja

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

In re Application of:

THE REPUBLIC OF ECUADOR,

Applicant,

For the Issuance of a Subpoena for theTaking of a Deposition and theProduction of Documents in a ForeignProceeding Under 28 U.S.C. § 1782.________________________________

)))))))))))

Case No. 10-MC-80225 CRB (EMC)

MEMORANDUM IN SUPPORT

MEMORANDUM IN SUPPORT OF MOTION TO QUASH A SUBPOENA FOR THE TAKING OF A DEPOSITION AND THE

PRODUCTION OF DOCUMENTS

Case3:10-mc-80225-CRB Document19 Filed10/06/10 Page1 of 30

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iMOTION TO QUASH, IN RE APPLICATION OF THE REPUBLIC OF ECUADOR 10-MC-80225

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

BACKGROUND AND PROCEDURAL POSTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. Borja Made Audio And Video Recordings Of A Bribery Scheme InvolvingAlianza PAÍS Party Officials And The Judge Presiding Over The LagoAgrio Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. The May 11 Meeting At An Office Of The Alianza PAÍS . . . . . . . . 5

B. The May 15 Meeting In The Chambers Of Judge Nuñez . . . . . . . 5

C. The June 5 Meeting With Judge Nuñez At A Hotel In Quito . . . . . 6

D. The June 22 Meeting With García At The Alianza PAÍS Office . . 8

II. Borja Provided The Videos To Chevron . . . . . . . . . . . . . . . . . . . . . . . . . 8

III. The ROE Began �“Investigating�” Borja . . . . . . . . . . . . . . . . . . . . . . . . . . 10

IV. The Authenticity and Accuracy Of The Audiovisual Recordings . . . . . . 12

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

I. The Court Lacks Jurisdiction To Grant The Application Because The ROE Is Not A �“Person�” Under § 1782 . . . . . . . . . . . . . . . . . . . . . . 13

A. The Supreme Court Has Created A Longstanding PresumptionThat �“Person�” Does Not Include A Sovereign . . . . . . . . . . . . . . . 14

B. �“Person�” As Defined By The Dictionary Act Does Not Include A Sovereign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

C. A Sovereign Is Not A �“Person�” Within The Meaning Of Section1782 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

II. The Discovery Sought By The ROE Is Irrelevant To The Arbitration Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

A. The ROE Does Not Argue That The Recordings Are Altered, Edited, Or Inaccurate Depictions Of The Events At Issue, So The Recordings Speak For Themselves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19


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iiMOTION TO QUASH, IN RE APPLICATION OF THE REPUBLIC OF ECUADOR 10-MC-80225

B. The ROE Has Failed To Establish The Relevance Of TheTestimony And Documents It Seeks . . . . . . . . . . . . . . . . . . . . . . 19

III. The Discretionary Factors Under Intel Weigh In Favor Of Granting The Motion To Quash . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

A. The ROE Has Failed To Demonstrate The Nature And Receptivity Of The Foreign Tribunal . . . . . . . . . . . . . . . . . . 23

B. Ecuador�’s Application Conceals An Attempt To Obtain Discovery For The Lago Agrio Litigation And TheProsecutor�’s Investigation Of Borja . . . . . . . . . . . . . . . . . . . . . . 23

C. The Subpoena, Seeking Discovery Concerning Borja�’s Wife, Passport, And Other Irrelevant Matters, Is Unduly Intrusive And Over Broad . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25


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iiiMOTION TO QUASH, IN RE APPLICATION OF THE REPUBLIC OF ECUADOR 10-MC-80225

TABLE OF AUTHORITIES

CASES

Al Fayed v. Central Intelligence Agency, 229 F.3d 272 (D.C. Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-17

Beard v. Greene, 523 U.S. 371 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Dep�’t of Revenue of Ore. v. ACF Indus., Inc., 510 U.S. 332 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Firestone v. Howerton, 671 F.2d 317 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Fleischmann v. McDonald's Corp. (In re Case Application for an Order forJudicial Assistance in a Foreign Proceeding in the Labor Court of Braz.),

466 F.Supp.2d 1020 (N.D. Ill. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Gustafson v. Alloyd Co., Inc., 513 U.S. 561 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

In re Al Fayed,91 F.Supp.2d 137 (D.D.C. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

In re Kulzer, No. 3:09-MC-08 CAN, 2009 Westlaw 961229(N.D. Ind. Apr. 8, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

In re Letters Rogatory from Tokyo Dist., Tokyo, Japan, 539 F.2d 1216 (9th Cir. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

In re Microsoft Corp., No. C 06-80038, 2006 WL 825250 (N.D. Cal. March 29 2006) . . . . . 22-23

In re: The Republic of Ecuador, No. C-10-80225 MISC CRB (EMC), 2010 WL 3702427 (N.D. Cal. Sept 15, 2010) . . . . . . . . . . . . . . . . . . . . 23

Int�’l Primate Prot. League v. Adm�’rs of Tulane Educ. Fund, 500 U.S. 72 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Inyo County, Cal. v. Paiute-Shoshone Indians of the Bishop Comty. of theBishop Colony,

538 U.S. 701 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14


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ivMOTION TO QUASH, IN RE APPLICATION OF THE REPUBLIC OF ECUADOR 10-MC-80225

Kang v. Noro-Moseley Partners, 246 Fed.Appx. 662 (11th Cir. Sept. 4, 2007) . . . . . . . . . . . . . . . . . . . . . 18

Marino v. INS, 537 F.2d 686 (2d Cir. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Ratzlaf v. United States, 510 U.S. 135 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

United States v. Aversa, 984 F.2d 493 (1st Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

United States v. Cooper Corp., 312 U.S. 600 (1941) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Sealed 1, Letter of Request, 235 F.3d 1200 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 24

United States v. United Mine Workers of America, 330 U.S. 258 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-15

Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-15

STATUTES AND RULES

1 U.S.C. § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

28 U.S.C. § 1442 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

28 U.S.C. § 1782 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Federal Rule of Civil Procedure 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Federal Rule of Evidence 401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19


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1MOTION TO QUASH, IN RE APPLICATION OF THE REPUBLIC OF ECUADOR 10-MC-80225

INTRODUCTION

On September 15, 2010, this Court granted the Republic of Ecuador�’s (�“ROE�”) ex

parte application for the issuance of a subpoena to Diego Fernando Borja Sanchez

(�“Borja�”) pursuant to 28 U.S.C. § 1782. In its application, the ROE asserted that it

seeks Borja�’s testimony and evidence for use in its defense of a Bilateral Treaty

Arbitration claim (�“the Arbitration�”) filed against it by claimants Chevron Corporation and

Texaco Petroleum Corporation (collectively, �“Chevron�”). Chevron�’s Arbitration claim

alleges, inter alia, that the ROE is colluding with the plaintiffs in a lawsuit (�“the Lago

Agrio litigation�”) brought against Chevron by a group of Ecuadorians in Lago Agrio (�“the

Lago Agrio Plaintiffs�” or �“Plaintiffs�”) in violation of the ROE�’s treaty obligations and

agreements with Chevron.

As anticipated by the Court�’s September 15th order, Borja now moves to quash

the ROE�’s subpoena on several grounds. First, and most critically, § 1782 does not

provide jurisdiction for issuance of the ROE�’s subpoena because the ROE, as a

sovereign, is not a �“person�” within the meaning of that statute and therefore cannot

invoke the statute�’s discovery mechanism. Second, even if § 1782 provided jurisdiction

for the subpoena, the requested discovery is irrelevant to the Arbitration; rather, the

ROE seeks the discovery for the improper purposes of assisting the Lago Agrio

Plaintiffs and furthering the ROE�’s investigations of Borja and his wife. Third, for

essentially these same reasons, the ROE has failed to establish sufficient facts to

support this Court�’s exercise of its statutory discretion to issue the subpoena.

Accordingly, Borja respectfully requests that the Court quash the subpoena.

//

//


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1 Borja�’s fears are corroborated by the ROE�’s initiation of unfounded criminalprosecutions of attorneys representing Chevron in the Lago Agrio litigation. SeeChevron�’s Notice of Arbitration at 13-15, attached as Exhibit 19 to the ROE�’sApplication.


BACKGROUND AND PROCEDURAL POSTURE

Borja is an Ecuadorian citizen who fled to the United States to avoid harassment

and persecution by the ROE after he made audiovisual recordings of a bribery scheme

implicating Ecuadorian political officials and the judge presiding over the Lago Agrio

litigation.1 When Chevron publicly disclosed Borja�’s recordings of the bribery scheme,

the ROE responded by targeting Borja and his wife with investigations by the

Ecuadorian Prosecutor General and Solicitor General. These officials have ordered the

production of Borja�’s tax returns, bank records, phone records, travel records, and other

documents, as well as those pertaining to his wife. The ROE is also seeking the

assistance of the U.S. Department of Justice to obtain discovery from Borja.

Additionally, Borja�’s extended family in Ecuador has been subjected to anonymous

threats and surveillance. The ROE�’s application for the instant subpoena is yet another

attempt to intimidate and harass Borja in retaliation for his disclosure of judicial

corruption in Ecuador.

The litigation for which the ROE purportedly seeks the instant subpoena is not

the Lago Agrio litigation, but the Treaty Arbitration under the rules of the U.N.

Commission on International Trade Law ("UNCITRAL"). Chevron initiated the

arbitration, arguing that the ROE violated its treaty obligations and agreements with

Chevron, in part by colluding with the plaintiffs. Exhibit 19 to the ROE�’s Application. A

relatively minor part of Chevron�’s claim is based on the audiovisual recordings that

Borja made to document the bribery scheme, including recordings of meetings between


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282 We note that the authenticity of Borja�’s recordings has been confirmed by every

expert to examine them. See infra, at 13.


the judge presiding over the Lago Agrio litigation and the political officials who solicited

the bribe, as set forth below. However, Chevron�’s assertions of treaty and contractual

violations by the ROE go far beyond Borja�’s recordings. Indeed, only three of the 76

paragraphs in the Notice of Arbitration concern Borja�’s recordings. Id. at ¶¶ 52-54. The

vast majority of the allegations present other evidence of treaty and contractual

violations by the ROE, including:

�• the government�’s criminal prosecution of two attorneys representingChevron in the Lago Agrio litigation, id. at 13-15;

�• attempts by the Ecuadorian Prosecutor General to nullify the settlementagreements entered into by Texaco, id. at 9;

�• statements by the Constituent Assembly of Ecuador in support of thePlaintiffs, id.;

�• statements by President Correa in support of the Plaintiffs, and otherexamples of cooperation and support by the President, id. at 9-10; and

�• government statements describing how judges should rule on thelitigation, id. at 10.

Nothing in Chevron�’s arbitration pleadings suggests that it will offer Borja as a

witness. To the extent Chevron�’s pleadings refer to Borja, they are limited to the

contents of the recordings he made. Id. at ¶¶ 52-54.2 Chevron�’s pleadings on the

merits make no reference to the declarations Borja submitted for the Lago Agrio

litigation or other statements Borja has made outside of the recordings. Thus, Borja is

not implicated, directly or indirectly, as a witness in the Arbitration claim. It is in this

context that the ROE filed its ex parte application for the subpoena to Borja, purportedly

for the purpose of obtaining testimony and documents relevant to the Arbitration claim.


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3 The ROE makes much of Borja�’s casual statements to the effect that he andhis wife �“worked for Chevron.�” Borja has clarified that his and his wife�’s work �“forChevron�” was done solely in their capacity as employees of independent contractorsengaged by Chevron, or by Borja acting as an independent contractor himself. Ex C,Borja Declaration of 4/29/10, at ¶¶ 4, 8-9. At all times, these entities actedindependently of Chevron regarding the protocols for handling samples. Id. at ¶¶ 5, 7,11-12, 14.

4 García has publicly described himself as the head of La Adelantada, anAlianza PAÍS headquarters office. See Ex I, Interview with Patricio García, La LunaRadio, Sept. 4, 2009. Ecuadorian court filings have also identified García as a publicemployee belonging to Alianza PAÍS. García was accused of selling a position in the


STATEMENT OF FACTS

I. Borja Made Audio And Video Recordings Of A Bribery SchemeInvolving Alianza PAÍS Party Officials And The Judge Presiding OverThe Lago Agrio Litigation

Prior to moving to the United States, Borja was an independent contractor

working for Chevron in Ecuador to pack and ship soil and water samples taken by

others for the Lago Agrio litigation.3 Ex A, Borja Declaration of 10/16/09, at ¶ 1; Ex B,

Borja Declaration of 12/7/09, at ¶¶ 4-12. In the Spring of 2009, Borja and an American

businessman, Wayne Hansen, became interested in developing a water purification

business in Ecuador. Ex A at ¶ 2. Borja and Hansen were introduced to Aulo Gelio

Avila, an attorney in Lago Agrio, as a possible source of business opportunities in the

Oriente region. Id. Avila told Borja that he could obtain contracts to do environmental

remediation after Judge Nuñez, then presiding over the Lago Agrio litigation, ruled

against Chevron. Id. at ¶ 3. To obtain the contracts, Avila asked for $3 million to be

divided as follows: $1 million for Judge Nuñez, $1 million for the Plaintiffs, and $1 million

for Alianza PAÍS, President Correa�’s political party. Id. at ¶ 4. Borja also met Avila�’s

associate, Patricio García, who described himself as a political coordinator for Alianza

PAÍS.4 Id. at ¶ 5; Ex G, Transcript of 6/22/09 meeting, at 8-9. García, who had an


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incoming Correa Administration for $5,000 and collecting part of the bribe at theheadquarters of Alianza PAÍS. See Ex J, Prosecutor General�’s Report Of García BribeAllegation.

5 For two of the meetings, Hansen also used a recording device, resulting in twoseparate recordings of each of those meetings. Videos of the meetings are publiclyavailable on the Internet, and a copy on DVD is attached as Ex K.

6 The meeting also included Pablo Almeida, who claimed he owned his ownremediation company. Ex D, Transcript of May 11 Meeting, at 10.


office at a main Alianza PAÍS party office in Quito, repeated the request for $3 million to

obtain remediation contracts. Ex A at ¶¶ 5, 6.

In response to Avila�’s solicitation of bribes, Borja decided to preserve evidence of

the bribery scheme by video-recording the meetings. Id. at ¶ 8. Borja recorded four

meetings in May and June of 2009. Id. at ¶¶ 8-15. Judge Nuñez actually participated in

two of those meetings, despite the fact that the trial had not yet concluded. Id. at ¶¶ 11,

13. Transcripts of the meetings are attached as Exhibits D through G.5

A. The May 11 Meeting At An Office Of The Alianza PAÍS

On May 11, 2009, Borja met with Avila and García at an office of the Alianza

PAÍS in Quito.6 Ex A at ¶ 8. Avila claimed that the judge had just called him. Ex D,

Transcript of May 11 Meeting, at 1. The participants discussed how the money from the

anticipated court judgment against Chevron would be distributed partly into remediation

contracts. Id. at 3-5. García also stated that Alexis Mera, President Correa�’s legal

advisor, had given instructions to the judge on how to route the judgment money. Id. at

35.

B. The May 15 Meeting In The Chambers Of Judge Nuñez

On May 15, 2009, Borja and Hansen met with Judge Nuñez and Avila at the

judge�’s chambers in Lago Agrio. Ex A at ¶ 10. Borja and Hansen stated their intent to


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do environmental remediation in Ecuador and presented the judge with materials

purporting to document their remediation company. Ex E, Transcript of May 15

Meeting, at 2-3. Judge Nuñez then discussed the status of the case at length and

stated that a ruling was expected by the end of the year. Despite the fact that he had

not yet ruled on Chevron�’s liability, Judge Nuñez stated that a certain portion of the

damages would be set aside for environmental remediation. Ex E at 2-4, 7. In other

words, even before he had ruled on the issue of liability, Judge Nuñez was discussing

the distribution of damages.

C. The June 5 Meeting With Judge Nuñez At A Hotel In Quito

On June 5, 2009, Borja and Hansen held a second meeting with Judge Nuñez,

this time at a Holiday Inn in Quito. Ex A at ¶ 13. An attorney named Juan Pablo Novoa

attended on behalf of García and claimed that he represented the government. Id. at ¶

13; Ex F, Transcript of June 5 Meeting, at 15, 35. Judge Nuñez stated that he had

reviewed the materials provided to him by Borja and Hansen in the prior meeting, and

indicated that he would issue a ruling in the Lago Agrio litigation in October. Id. at 3, 6.

Novoa stated that the outcome was determined: �“Si va a perder el juicio Chevron.

Claro, no hay, no hay, no hay, no hay cómo, o sea, no hay lógica para que Chevron

gane.�” (�“Yes, Chevron is going to lose the trial. Of course, there's no, there's no,

there's no way, in other words, there's no logic for Chevron's win.�”) Id. at 17. The judge

said nothing in response. Initially, Judge Nuñez stated that he could not say whether

Chevron would lose. Id. at 10. However, in response to a question at the end of the

meeting, he answered affirmatively that Chevron was guilty:


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7 The ROE cites an �“independent journalist�” (actually an opinion-editorial fromthe Los Angeles Times advocating for the Lago Agrio Plaintiffs) as stating, �“it�’s unclearto whom the judge is speaking and whether he is responding to the question or justtrying to end the meeting.�” ROE Memo. at 12. But the videos, provided to the Court onDVD, speak for themselves. Tellingly, the ROE does not address the obvious questionof why Judge Nuñez was participating in ex parte meetings with persons having aninterest in the outcome, much less revealing to them the timing and amount of thejudgment.


NUÑEZ: ¿AIguna otra pregunta para mí como juez?[Any other questions for me as a judge?]

HANSEN: Ah, no, yo, yo sabe clara cómo es, usted dice, Chevron es elculpable.[Oh, no, I, I know clearly how it is, you say, Chevron is the guiltyparty.]

NUÑEZ: Sí, señor.[Yes sir.]

HANSEN: Y el, el, el acto es octubre, noviembre de este año?[And the, the, the act is October or November of this year?]

NUÑEZ: Sí, señor.[Yes sir.]

HANSEN: y es de�–[And it�’s�–]

NUÑEZ: Máximo hasta enero.[No later than January.]

HANSEN: Enero del 2010. Y de dinero es de veintisiete�–[January 2010. And the money is twenty-seven�–]

NUÑEZ: Puede ser menos, como puede ser más.[It might be less, and it might be more.]

Id. at 34.7 When Hansen asked Judge Nuñez if he wanted part of the remediation

contract, Judge Nuñez declined, stated that he had nothing to do with remediation

contracting, and instructed Hansen to discuss the contract with Novoa after Nuñez

departed. Id. at 29-30, 33.


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D. The June 22 Meeting With García At The Alianza PAÍS Office

On June 22, 2009, Borja met with García at the Alianza PAÍS office in Quito. Ex

A at ¶ 14. García stated that Judge Nuñez had called him to inquire about the money

since Hansen had not yet paid the bribe. Ex G, Transcript of June 22 Meeting, at 5.

García stated that Pierina Correa, President Correa�’s sister, would receive $500,000 of

the bribe. Id. at 7. García also offered to arrange a meeting with her for Borja and

Hansen. Id. at 6-7. García then asked his assistant Rubén for the number of a bank

account to which Borja should send the bribe, but the video shows that the assistant did

not immediately bring that account number. Id. at 10-11. García explained that Judge

Nuñez was willing to participate in the bribery scheme because the government itself

was involved in the scheme, stating, �“Dice, aquí no han sido solamente dos pela-gatos

que estaban atrás de esto. Es el gobierno quien está tras de esto.�” (�“He says, it�’s not

just two nobodies that were behind this. The government is the one that is behind this.�”)

Id. at 13.

Immediately following the June 22 meeting, Borja received three emails from

Rubén Miranda, García�’s assistant, with wire routing information for a bank account in

Galveston, Texas. Ex H, Emails From Rubén Miranda. Borja also received calls from

García asking when the transfer would take place and inviting Borja to a meeting with

Pierina Correa. Ex A at ¶ 23. Soon after these events, Borja began to fear for his

safety. Id. at ¶ 24. Accordingly, Borja and his family left Ecuador and immigrated to the

United States before the scheme was made public. Id. at ¶ 24.

II. Borja Provided The Videos To Chevron

After the June 5 meeting with Judge Nuñez, but before the June 22 meeting with

García, Borja informed Chevron�’s attorneys of his meetings with the judge and party


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officials, and provided them with the videos. Ex B at ¶ 6. Prior to this, Chevron and its

attorneys were unaware of the meetings. Ex A at ¶ 22; Ex B at ¶ 6. Chevron and its

attorneys played no part in planning or recording the meetings, and did not direct,

request, or encourage Borja to attend and record the meetings. Ex B at ¶ 6. The idea

to record the meetings was Borja�’s alone. Id. at ¶ 6. Although Borja initially met with

Chevron�’s attorneys before the June 22 meeting with García, neither Chevron nor its

attorneys requested or encouraged Borja to attend that meeting. Ex O, Letter from

Thomas Cullen to Solicitor General of Ecuador, at 8. Borja did tell counsel for Chevron

that he might meet again with some of the individuals in the recordings, but neither

Chevron nor its attorneys had advance knowledge that the June 22 meeting with García

would occur, or that Borja would record it. Id. Borja chose to meet with García on June

22 because Borja�’s family was still in Ecuador, and Borja feared that García would

become suspicious if Borja ignored him. Ex B at ¶ 6.

On June 18, 2009, at the offices of Jones Day in San Francisco, Borja gave the

videos of the first three meetings to Dr. Durand Begault, a forensic consultant retained

by Chevron. Ex A at ¶¶ 8, 11, 13; Ex L, Begault Declaration, at ¶ 4. On June 26, 2009,

Borja provided Dr. Begault with the video of the June 22 meeting. Ex A at ¶ 14; Ex L at

¶ 6. Prior to giving the videos to Dr. Begault, Borja kept them in his possession from the

time of creation. Ex A at ¶ 15. He did not edit, alter, or change them in any way. Id.

The videos reflect exactly what he saw and heard from the participants in the meetings.

Id.

On August 31, 2009, Chevron notified the Prosecutor General of the ROE, as

well as the Department of Justice of the United States, of the existence and contents of

the videos. Ex M, Letter from Thomas Cullen to the Prosecutor General of Ecuador.


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Chevron also produced a DVD with complete, unedited copies of all the recordings and

the emails from Miranda providing wire instructions to the bank account in Galveston.

Ex N, Letter from Thomas Cullen to the Deputy Solicitor General of Ecuador. Chevron

did not edit or modify the digital video files in any way, and Chevron did not provide

Borja with any compensation or promise compensation in exchange for the videos. Id.

at 7. However, Chevron disclosed that it had paid for Borja�’s travel and relocation to the

United States, transportation and housing, his attorney�’s fees, a temporary stipend to

replace his loss of income. Id. Chevron also disclosed that it had committed to assist

Borja and his wife in finding employment. Id.

III. The ROE Began �“Investigating�” Borja

On September 2, 2009, immediately following the release of the videos, the

Deputy Solicitor General of the ROE demanded that Borja be made available for

questioning. Ex P, Letter from the Deputy Solicitor General. Two weeks later, the

Solicitor General announced that he had requested the Prosecutor General to initiate:

a thorough, objective, and completely transparent investigation of the criminalallegations, with the aim of establishing the participation of each one of theindividuals appearing on the videos, who they represent, and what is thereason for their participation.

Ex Q, Press Release by the Solicitor General. The statement by the Solicitor General

made clear the true intent of its investigation:

Regarding the request filed by the Prosecutor General for the SolicitorGeneral to request an investigation in the United States of America againstChevron, due to the possible criminal conduct of the company, e.g. makingvideos through third parties or attempting of bribery to public servants . . . .

Id. (Emphasis added.) Thus, the Solicitor General sought to portray the exposed

bribery solicitation scheme as an attempt by Borja to bribe the judge or to commit some


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8 The ROE continues to put forth this claim. See Application of ROE at 3,describing Borja and Hansen as �“allegedly offer[ing] bribes.�”

9 The Prosecutor General�’s memorandum also issued requests with respect tothe other individuals identified in the videos. Counsel for Borja has not been providedwith the responses to or results of any of these requests.


other possible crime at the direction of Chevron.8

Subsequently, the Prosecutor General also demanded that Borja present himself

in Ecuador to answer its questions. Ex R, Letter from the Prosecutor General.

Additionally, the Prosecutor General issued the following requests for information to

various entities in Ecuador:

�• to the Ecuadorian Internal Revenue service, seeking past tax returns filedby Borja and his wife, information on the sources of their income, anyvehicles they owned, any real property they owned, and their status aspartners or shareholders in any companies;

�• to the Superintendent of Banks and Insurance, seeking all informationconcerning bank accounts and credit card accounts held by Borja and hiswife;

�• to various telephone companies, seeking records of all calls and textmessages made by Borja and his wife;

�• to airline companies, seeking information concerning flights taken byBorja;

�• to the National Director of Immigration, seeking details about the�“migratory movements�” of Borja�’s wife;

�• to the Director of the Judicial Police, seeking the background records ofBorja and his wife;

�• to the President of the National Court of Justice, seeking the details of anylawsuits filed against Borja and his wife; and

�• to the Director of the Social Security Commission, seeking details of thework histories of Borja and his wife.

Ex S, Memorandum from the Prosecutor General.9 Additionally, Fernando Acosta

Coloma, an Ecuadorian attorney retained by Borja�’s counsel, has confirmed that the


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28 10 http://chevrontoxico.com/news-and-multimedia/borja-report/house-photos.html


Prosecutor General has initiated an inquiry with the U.S. Department of Justice seeking

Borja�’s testimony. See Declaration of Fernando Acosta Coloma.

Since the videos were made public, Borja�’s extended family remaining in

Ecuador has been the subject of unidentified surveillance and anonymous threatening

phone calls. Ex T, a report compiled by a private security firm retained to protect

Borja�’s family. The Ecuadorian police have refused to investigate these incidents. Id. at

¶ 1c. Additionally, the Lago Agrio Plaintiffs have published on the Internet the general

location of Borja�’s house together with several high-resolution photographs of the

house, including one photo showing a nearby street sign.10

IV. The Authenticity And Accuracy Of The Audiovisual Recordings

The authenticity and accuracy of Borja�’s audiovisual recordings are beyond

reasonable dispute. First, Borja has provided declarations under the penalty of perjury

attesting to the accuracy of the recordings and the chain of custody of the electronic

files from the point of creation to the time when he provided them to Chevron�’s forensic

expert. Ex A at ¶¶ 8, 11, 13, 15. Second, a forensic expert, Dr. Begault, has also

provided a declaration attesting to his custody of the electronic files and the lack of

evidence of any manipulation or editing. Ex L at ¶ 7. Third, an audio engineer

appointed by the Ecuadorian court has conducted an in-depth analysis of the

recordings, including examinations of the disc with an electron microscope and

spectrographic analyses of the audio. Ex U, Expert Report of Hugo Rekalde D. He

concluded that the recordings were continuous and unaltered, and confirmed that the

voices of the participants belong to the individuals identified by Borja. Id. at 7.


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Furthermore, the primary participants identified by Borja have admitted that they

participated in the meetings. Ex I, Transcript of Radio Interview of García; Ex V, Public

Statement by Novoa; Ex W, Associated Press Article Regarding Judge Nuñez.

ARGUMENT

Title 28 United States Code Section 1782 provides, in relevant part:

The district court of the district in which a person resides or is found mayorder him to give his testimony or statement or to produce a document orother thing for use in a proceeding in a foreign or international tribunal . . . .The order may be made pursuant to a letter rogatory issued, or requestmade, by a foreign or international tribunal or upon the application of anyinterested person . . . .

(Emphasis added.) As pertinent here, the statute confers jurisdiction for the Court, in

exercise of its discretion, to issue a subpoena only upon the application of an

�“interested person.�” (Emphasis added.) Here, the ROE�’s application fails to satisfy this

requirement because the ROE is not a �“person�” within the meaning of § 1782.

Moreover, the ROE has also failed to establish that its subpoena seeks evidence that is

relevant to the Arbitration. Finally, even assuming jurisdiction and relevance, the ROE

has failed to establish the necessary facts to justify exercise of this Court�’s discretion to

issue the subpoena.

I. The Court Lacks Jurisdiction To Grant The Application Because TheROE Is Not A �“Person�” Under § 1782

The Court must grant the motion to quash because § 1782 does not confer

jurisdiction to issue the subpoena. Specifically, the ROE cannot apply for a subpoena

because a sovereign is not a �“person�” within the meaning of the statute. Section 1782

only authorizes the Court to order Borja�’s testimony or the production of documents

�“pursuant to a letter rogatory issued, or request made, by a foreign or international

tribunal or upon the application of any interested person . . . .�” Because a sovereign is


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not a �“person�” under § 1782, the statute does not confer jurisdiction to grant the ROE�’s

application to subpoena Borja.

A. The Supreme Court Has Created A Longstanding PresumptionThat �“Person�” Does Not Include A Sovereign

The Supreme Court applies a �“longstanding interpretive presumption that

�‘person�’ does not include the sovereign.�” Vermont Agency of Natural Res. v. United

States ex rel. Stevens, 529 U.S. 1858, 1866 (2000) (citing United States v. Cooper

Corp., 312 U.S. 600, 604 (1941)); United States v. United Mine Workers of America,

330 U.S. 258, 275 (1947) (�“In common usage that term [�“persons�”] does not include the

sovereign, and statutes employing it will ordinarily not be construed to do so.�”); United

States v. Cooper Corp., 312 U.S. 600, 604 (1941) (same). Applying this presumption,

the Court has held in number contexts that the word �“person�” does not include a

�“sovereign.�” See Inyo County, Cal. v. Paiute-Shoshone Indians of the Bishop Comty. of

the Bishop Colony, 538 U.S. 701, 712 (2003) (holding that Native American tribe was

not a �“person�” entitled to sue under 42 U.S.C. § 1983); Vermont Agency of Natural

Res., 529 U.S. at 1866 (holding that a state or state agency is not a �“person�” within the

meaning of the False Claims Act); Beard v. Greene, 523 U.S. 371, 378 (1998) (holding

that Paraguay was not a �“person�” entitled to sue under § 1983); Int�’l Primate Prot.

League v. Adm�’rs of Tulane Educ. Fund, 500 U.S. 72, 83 (1991) (noting that statutes

employing the word �“person�” are typically interpreted to exclude the sovereign and

holding that the federal government is not a �“person�” under statute providing removal

authority, 28 U.S.C. § 1442(a)(1)); Will v. Mich. Dep't of State Police, 491 U.S. 58, 64

(1989) (holding that a state is not a �“person�” under § 1983).

This interpretive presumption �“may be disregarded only upon some affirmative


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showing of statutory intent to the contrary.�” Vermont Agency of Natural Res., 529 U.S.

at 1867; see also Al Fayed v. CIA, 229 F.3d 272, 274 (D.C. Cir. 2000) (�“the Court has

repeatedly held that the word �‘person�’ in a statute does not include a sovereign

government absent affirmative evidence of an inclusory intent.�”). Here, the ROE has

made no showing of contrary intent regarding the scope of �“person�” under § 1872.

Hence, the presumption controls.

B. �“Person�” As Defined By The Dictionary Act Does Not Include ASovereign

The Dictionary Act, which governs the meaning of language in federal statutes,

states:

In determining the meaning of any Act of Congress, unless the contextindicates otherwise-- [...] the words �“person�” and �“whoever�” includecorporations, companies, associations, firms, partnerships, societies, andjoint stock companies, as well as individuals.

1 U.S.C. § 1. In defining �“person,�” § 1 makes no mention of governments or sovereign

entities. The absence of any provision extending the definition of �“person�” to include

sovereigns implies that Congress intended to exclude them. See United States v.

United Mine Workers of America, 330 U.S. 258, 275 (1947) (holding that the absence of

a provision including sovereigns in the definition of �“person�” under § 1 implies that

Congress intended to exclude sovereigns from the term �“persons�” in the

Norris-LaGuardia Act). Note that the Dictionary Act was already law in 1948, the year

that § 1782 was enacted. See 62 Stat. 859 (1948) (enacting § 1782); 62 Stat. 859

(amending the Dictionary Act, including the definition of �“person�”); 61 Stat. 633 (1947)

(enacting the Dictionary Act). In enacting § 1782, Congress did not include any

language suggesting that the definition of �“person�” for the purposes of the statute was

intended to include a sovereign. Accordingly, the only logical inference is that Congress


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intended to exclude sovereigns.

C. A Sovereign Is Not A �“Person�” Within The Meaning Of § 1782

The first sentence of § 1782 states, �“[t]he district court of the district in which a

person resides or is found may order him to give his testimony or statement.�” 28 U.S.C.

§ 1782 (emphasis added). In Al Fayed v. CIA, 229 F.3d 272, the Court of Appeals for

the District of Columbia Circuit applied the Supreme Court�’s presumption against

inclusion of a sovereign to this sentence, and held that the word �“person�” does not

include the United States.

In In re Al Fayed, 91 F.Supp.2d 137 (D.D.C. 2000), the district court granted a

motion to quash a subpoena issued to the CIA under § 1782. The court held that

because �“person�” does not include a sovereign (and by extension, a federal agency),

the court lacked jurisdiction to issue the subpoena. Id. at 141. On appeal, the D.C.

Circuit affirmed the district court�’s grant of the motion to quash. Al Fayed, 229 F.3d at

277. The court noted that �“person�” under the Dictionary Act does not include

sovereigns and applied the Supreme Court�’s �“longstanding interpretive presumption that

�‘person�’ does not include the sovereign.�” Id. After considering the general purpose and

legislative history of § 1782, the D.C. Circuit found no reason to eschew the Supreme

Court�’s interpretive presumption and affirmed the district court�’s order quashing the

subpoena. Id.

Although Al Fayed concerned the first sentence of Section 1782, its holding

applies equally to the entire statute and, most particularly, to the very next sentence. As

noted above, the word �“person�” appears in each:

The district court of the district in which a person resides or is found mayorder him to give his testimony or statement or to produce a document orother thing for use in a proceeding in a foreign or international tribunal . . . .


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The order may be made pursuant to a letter rogatory issued, or requestmade, by a foreign or international tribunal or upon the application of anyinterested person . . . .

18 U.S.C. § 1782. This Court must follow the �“well-known maxim of statutory

construction that, when the same terms are used in different sections of a statute, they

receive the same meaning.�” Firestone v. Howerton, 671 F.2d 317, 320 n.6 (9th Cir.

1982); see also Ratzlaf v. United States, 510 U.S. 135, 142-43 (1994) (term appearing

in several places in a statutory text is generally read the same way each time it

appears); Marino v. INS, 537 F.2d 686 (2d Cir. 1976) (a �“conviction�” in a deportation

case should mean the same as a �“conviction�” in an admission case). As the First

Circuit has noted:

Ascribing various meanings to a single iteration of a single word--reading theword differently for each code section to which it applies�–would openPandora's jar. If courts can render meaning so malleable, the usefulness ofa single penalty provision for a group of related code sections will beeviscerated and, by extension, almost any code section that references agroup of other code sections would become susceptible to individuatedinterpretation.

United States v. Aversa, 984 F.2d 493, 498 (1st Cir. 1993) (en banc) (judgment vacated

on other grounds, Donovan v. United States, 510 U.S. 1069 (1994)). The logic of this

rule is so compelling that it even applies when the same term is used in different parts

of the same Act. The Supreme Court has repeatedly applied the �“normal rule of

statutory construction�” that �“identical words used in different parts of the same act are

intended to have the same meaning.�” Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 570

(1995) (citing Dep�’t of Revenue of Ore. v. ACF Indus., Inc., 510 U.S. 332, 342 (1994)).

Accordingly, the Court must apply the same rules here, and hold that the word �“person�”

must be construed consistently throughout § 1782.

In Al Fayed, the D.C. Circuit recognized that the mandate of the Dictionary Act,


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combined with the Supreme Court�’s longstanding interpretive presumption required that

the word �“person�” in § 1782 does not include a sovereign. Therefore, § 1782 does not

confer jurisdiction to issue the ROE�’s subpoena.

II. The Discovery Sought By The ROE Is Irrelevant To The ArbitrationClaim

Even assuming that the ROE were to establish jurisdiction under § 1782 (which it

has not done), the requested subpoena still must be rejected because the ROE has not

demonstrated the relevance of the testimony and materials it seeks. See, e.g.,

Fleischmann v. McDonald's Corp. (In re Case Application for an Order for Judicial

Assistance in a Foreign Proceeding in the Labor Court of Braz.), 466 F.Supp.2d 1020,

1029 (N.D. Ill. 2006) (finding that § 1782�’s requirement �“for use in a proceeding in a

foreign or international tribunal�” mirrors the requirement of Federal Rule of Civil

Procedure 26(b)(1) that discovery be relevant to the subject matter involved in the

foreign action); Kang v. Noro-Moseley Partners, 246 F.App�’x. 662, 664 (11th Cir. Sept.

4, 2007) (upholding trial court�’s denial of discovery under § 1782 because the material

was irrelevant to the foreign proceeding) (not for publication); In re Kulzer, No.

3:09-MC-08 CAN, 2009 WL 961229 at *6 (N.D. Ind. Apr. 8, 2009) (quashing subpoenas

issued under § 1782 as part of a �“fishing expedition�” for information irrelevant to the

foreign proceeding).

The ROE asserts that the discovery it seeks �“relates directly to issues of

purported judicial misfeasance raised by Chevron in the Treaty Arbitration.�” ROE

Memo. at 17. More precisely, Chevron�’s claim is that the ROE has violated its treaty

and contractual obligations, in part by colluding with the Lago Agrio Plaintiffs; Borja�’s

videos of the judge and party officials are one minor example of this collusion. To show


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the relevance of the requested discovery, the ROE must demonstrate that the evidence

would have some tendency to prove or disprove some element of Chevron�’s claim of

collusion between the ROE and the Plaintiffs. Cf. Fed. R. Evid. 401. For the reasons

set forth below, the ROE has not and cannot establish this connection.

A. The ROE Does Not Argue That The Recordings Are Altered,Edited, Or Inaccurate Depictions Of The Events At Issue, SoThe Recordings Speak For Themselves

As demonstrated above, there is no dispute that the recordings are accurate,

unaltered depictions of the persons and events in question. An expert appointed by the

Ecuadorian court has attested to the unaltered state of the recordings and authenticated

the voices of the persons involved. The primary participants �– Judge Nuñez, Novoa,

and García �– have all admitted to their participation in the meetings. The ROE does not

argue that the videos are falsified or altered, that the persons depicted in them were not

in fact present, or that they did not say the things that appear in the recordings.

Furthermore, Chevron relied solely on the recordings to substantiate its arbitration

claims; Chevron did not rely on Borja�’s declarations or any other statement or document

provided by Borja. Accordingly, the recordings speak for themselves; the motives of

Borja and his history as an independent contractor for Chevron are irrelevant.

B. The ROE Has Failed To Establish The Relevance Of TheTestimony And Documents It Seeks

The record readily belies the ROE�’s claims that it is investigating Chevron�’s

allegations of collusion and judicial corruption in the Arbitration. Rather, the ROE seeks

the instant subpoena to harass and intimidate Borja, to attempt to challenge his

credibility and to further the civil and criminal matters in Ecuador. Thus, while the

discovery that the ROE seeks, and the ROE�’s justifications for it, are arguably relevant


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to the Lago Agrio litigation or the Prosecutor General�’s investigation of Borja, they are

irrelevant to the Arbitration. For example:

�• The ROE claims that �“Mr. Borja and his Chevron �‘boss�’ attempted toinfiltrate a lab used by the Lago Agrio plaintiffs. . . .�” ROE Memo. at 14. While such a claim might arguably be relevant to the Lago Agrio litigation,Ecuador makes no argument as to how this topic bears on the issue ofcollusion between Ecuador and the Plaintiffs.

�• The ROE claims Borja stated �“that he has incriminating evidence that (a)would cause Chevron to lose the Lago Agrio action and (b) cause itproblems in the United States.�” ROE Memo. at 14. Again, while this topicmight be relevant to the Lago Agrio litigation, the ROE does not explainhow it bears on the issue of collusion between the ROE and the Plaintiffs.

Similarly, the ROE has made no showing of relevance for the broad swath of

documentary evidence it seeks. For example, the ROE requests:

All documents referring or relating to site inspections, the taking of soil,water, or other samples, and/or testing of soil, water, or other samples,conducted in connection with the Lago Agrio litigation.

Subpoena at ¶ 19. The ROE does not attempt to explain how documents related to site

inspections or the testing of samples would tend to prove or disprove Chevron�’s claim of

collusion between the Plaintiffs and the ROE. Ironically, the request for documents

pertaining to the Lago Agrio litigation suggests the ROE is seeking these documents for

use solely in that proceeding, thereby underscoring the ROE�’s collusion with the

Plaintiffs.

Similarly, the ROE seeks �“[a]ll documents referring or relating to companies

[Borja], directly or indirectly, incorporated in Ecuador or elsewhere during the last ten

years.�” Subpoena at ¶ 18. Again, the ROE makes no argument showing how such

documents would tend to prove or disprove Chevron�’s claim of collusion between the


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2811 Notably, this request parrots the demand for corporate documents issued by

the Prosecutor General in its investigation of Borja and his wife. Ex S at 2.


Plaintiffs and the ROE.11 Nor does the ROE explain how a copy of Borja�’s passport,

Subpoena at ¶ 12, would be relevant to Chevron�’s claim.

Perhaps the most compelling demonstration of the ROE�’s true motivation lies in

its request for several categories of documents pertaining to Borja�’s wife, who is also

the subject of the Prosecutor General�’s investigation. Subpoena at ¶¶ 4-9, 11. The

ROE offers no facts showing that Borja�’s wife had any involvement with or connection to

the corruption evidenced by Borja�’s recordings. She does not appear in the recordings,

did not attend any of the meetings, and Chevron makes no reference to her in its

arbitration claim. The ROE points to the fact that Borja�’s wife worked at an independent

laboratory involved in testing samples for the Lago Agrio litigation. ROE Memo. at 14.

While her employment at this laboratory might make her relevant to the Lago Agrio

litigation, the ROE does not explain how documents pertaining to Borja�’s wife would

tend to prove or disprove Chevron�’s claim of collusion between the ROE and the

Plaintiffs.

Because the ROE has failed to its burden of demonstrating the relevance of the

discovery it seeks, the Court should quash the subpoena.

III. The Discretionary Factors Under Intel Weigh In Favor Of GrantingThe Motion To Quash

Even if jurisdiction under the statute were established and even if the ROE were

to demonstrate that some of its requests are relevant to the Arbitration, this Court

should still exercise its discretion to quash the requested subpoena. Under the plain

language of § 1782, the district courts are vested with discretion to grant or deny a


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request for assistance. See In re Letters Rogatory from Tokyo Dist., Tokyo, Japan, 539

F.2d 1216, 1219 (9th Cir. 1976). Of particular relevance here, the Ninth Circuit has

recognized that �“the statute provides considerable discretion to district courts to decline

to order U.S. authorities to assist in situations where the foreign government has, for

example, insufficient basis to believe that evidence may be found here, or is simply

seeking to harass political opponents." United States v. Sealed 1, Letter of Request,

235 F.3d 1200, 1205 (9th Cir. 2000).

The party requesting the subpoena �– here, the ROE �– bears the burden of

establishing that the Court in its discretion should grant the requested discovery. See In

re Microsoft Corp., No. C 06-80038, 2006 WL 825250 at *2 n.3 (N.D. Cal. Mar. 29,

2006). The Supreme Court has identified four non-exclusive factors the Court should

consider in exercising its discretion whether to grant an application under § 1782:

(1) whether the material sought is within the foreign tribunal�’s jurisdictionalreach and thus accessible absent § 1782 aid;

(2) the nature of the foreign tribunal, the character of the proceedingsunderway abroad, and the receptivity of the foreign government or thecourt or agency abroad to U.S. federal-court jurisdictional assistance;

(3) whether the § 1782 request conceals an attempt to circumvent foreignproof-gathering restrictions or other policies of a foreign country or theUnited States; and

(4) whether the subpoena contains unduly intrusive or burdensome requests.

Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264-65 (2004). The first

factor favors the ROE because Borja is not a party to the Arbitration, and is beyond the

jurisdictional reach of the Treaty Tribunal. However, the three remaining factors are

either neutral or weigh in favor of the motion to quash. On balance, then, the Intel

factors favor an order to quash the subpoena.


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A. The ROE Has Failed To Demonstrate The Nature AndReceptivity Of The Foreign Tribunal

As the Court noted in its preliminary order granting the application, the ROE has

presented no evidence concerning the nature or receptivity of the foreign tribunal. In re:

The Republic of Ecuador, No. C-10-80225 MISC CRB (EMC), 2010 WL 3702427, at *4

(N.D. Cal. Sept. 15, 2010). Although the Court stated that the lack of evidence renders

the factor �“essentially neutral�”, id., we respectfully suggest that the ROE�’s failure to

meet its burden with respect to this factor should weigh against the ROE. See In re

Microsoft Corp. at *2 n.3 (party seeking the subpoena bears the burden of showing

assistance is warranted). Additionally, the Court noted that Chevron has made no

argument that the foreign tribunal would not be receptive, and made several

applications under § 1782. Id. However, Chevron and Borja are two distinct parties;

Borja is not bound by any concessions or arguments that Chevron has previously made.

B. Ecuador�’s Application Conceals An Attempt To ObtainDiscovery For The Lago Agrio Litigation And The Prosecutor�’sInvestigation Of Borja

As discussed previously, Ecuador�’s requests for documents and its reasons for

seeking Borja�’s testimony appear far more relevant to the Lago Agrio litigation than to

the issues raised in the Arbitration. Tellingly, the current requests also mirror the

Prosecutor General�’s prior requests for information from Borja. Given Ecuador�’s failure

to establish the relevance of its requests to the Arbitration claim, together with the

relevance of the requests to the Lago Agrio litigation and the Prosecutor General�’s

investigation, this Court should conclude that Ecuador�’s application is an attempt to

abuse this Court�’s process for an impermissible purpose under § 1782.

Ecuador does not claim to be an �“interested person�” with respect to the Lago


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2812 Given the breadth of the requested subpoena, the irrelevance of many of the

requested items to the Arbitration claim and the demonstrated pattern of ROE�’s


Agrio litigation. Nor does it claim that the Prosecutor General�’s criminal investigation is

a �“foreign tribunal�” under § 1782. Consequently, it is improper for Ecuador to invoke the

statute�’s discovery mechanism for those matters. The Court should be mindful of the

Ninth Circuit�’s admonition that § 1782 �“provides considerable discretion to district courts

to decline to order U.S. authorities to assist in situations where the foreign government

has, for example, insufficient basis to believe that evidence may be found here, or is

simply seeking to harass political opponents.�” United States v. Sealed 1, Letter of

Request, 235 F.3d at 1202 (emphasis added). Ecuador must not be permitted to invoke

U.S. judicial process to harass a political opponent.

C. The Subpoena, Seeking Discovery Concerning Borja�’s Wife,Passport, And Other Irrelevant Matters, Is Unduly IntrusiveAnd Over Broad

Among its requests, the subpoena seeks documents concerning Borja�’s wife,

Subpoena at ¶¶ 4-9, 11, and Borja�’s passport, Subpoena at ¶ 12. Ecuador makes no

justification for these requests, other than the fact that Borja�’s wife worked with an

independent laboratory that processed samples taken for the Lago Agrio litigation. ROE

Memo. at 14. Nor could there be any logical justification related to the Arbitration.

As noted above, there is no allegation that Borja�’s wife participated in or

witnessed any of the events relating to the bribery solicitation. Borja�’s passport is

similarly irrelevant to those events. Moreover, as previously discussed, the subpoena

calls for the production of a whole raft of documents that are patently irrelevant to the

Arbitration but would disclose a great deal about Borja�’s personal affairs. Accordingly,

the subpoena is intrusive and over broad.12


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harassment of Borja, the Court should not even consider sustaining the subpoenawithout narrowing its scope and issuing a carefully tailored protective order. In theevent the Court denies Borja's Motion to Quash, counsel anticipates additional motionsseeking reciprocal discovery, attorneys' fees, and a protective order limiting the scope ofdiscovery and prohibiting the ROE from providing the discovery to the Plaintiffs or usingit in any criminal investigation of Borja.


CONCLUSION

Section 1782 does not confer jurisdiction for issuance of the subpoena requested

by ROE because the ROE is not a �“person�” within the meaning of the statute.

Moreover, the subpoena does not seek evidence that is relevant to the Arbitration.

Finally, even assuming jurisdiction and relevance, the ROE has failed to establish that

the Court should exercise its discretion to issue the subpoena. Accordingly, and for all

of the reasons stated above, the Court should grant Borja�’s motion to quash.

Dated: October 6, 2010 Respectfully submitted,

ARGUEDAS, CASSMAN & HEADLEY LLP

/s/ Ted W. Cassman, Attorneys for Movant Diego Borja
