hLpb5

that Chevron has obtained, Judge Kaplan of the Southern District of New York found that "the
outtakes contain substantial evidence of misconduct in and relating to the Ecuadorian litigation."
Specifically, Judge Kaplan noted that the outtakes "contain substantial evidence that Donziger
and others (1) were involved in ex parte contacts with the court to obtain appointment of the
expert, (2) met secretly with the supposedly neutral and impartial expert prior to his appointment
and outlined a detailed work plan for the plaintiffs' own consultants, and (3) wrote some or all of
the expert's final report that was submitted to the Lago Agrio court and the Prosecutor General's
Office, supposedly as the neutral and independent product of the expert." The Western District
of North Carolina court also found that "what has blatantly occurred in this matter would in fact
be considered fraud by any court," while the District of New Mexico court concluded, "[t]he
release of many hours of the outtakes has sent shockwaves through the nation's legal
communities, primarily because the footage shows, with unflattering frankness, inappropriate,
unethical and perhaps illegal conduct." The District of New Mexico court also found that the
RICO Defendants have engaged in "corruption of the judicial process, fraud, attorney collusion
with the Special Master, inappropriate ex parte communications with the court, and fabrication
of reports and evidence."
303. Numerous courts have also found that the crime-fraud exception to the attorney-
client privilege applied and thus did not shield the RICO Defendants' and their co-conspirators'
pervasive fraud from discovery. The District Court for the Southern District of California, for
example, reasoned that there "is ample evidence in the record that the Ecuadorian Plaintiffs
secretly provided information to Mr. Cabrera, who was supposedly a neutral court-appointed
expert, and colluded with Mr. Cabrera to make it look like the opinions were his own." That
court subsequently found that the crime-fraud exception applied to discovery of co-conspirator
William Powers, finding that he was "deeply involved [in the fraud] in that his work product was
apparently adopted whole cloth by the allegedly neutral expert Cabrera." Similarly, the District
Court of New Mexico noted that "exchanges" among the RICO Defendants "trigger the crime­
fraud exception, because they relate to corruption ofthe judicial process, the preparation of
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