Ex. 28

Exhibit 28

Case 1:10-mc-00002-LAK Document 194-30 Filed 04/26/11 of 5

1

Berkovits, Yonatan

From: Haggerty, Timothy [[email protected]]Sent: Tuesday, April 05, 2011 6:35 PMTo: Max GITTER; Hendricks, KristenCc: Neuman, Andrea E.; [email protected]; [email protected]; Kaplan, Bruce S.;

[email protected]; [email protected]; Justin L Ormand; Kaplan, Robert D.; Mastro, Randy M.

Subject: RE: update re: e-mail accounts

Follow Up Flag: Follow upFlag Status: Completed

Dear Mr. Gitter: We write with an update on our efforts to obtain the contents and other information related to the [email protected] and [email protected] accounts.

Because of the conflict that we have previously described, which T-Mobile has not waived, our firm cannot take further actions with respect to the T-Mobile account. Mr. Lefcourt's firm will be serving a subpoena on T-Mobile as soon as possible, and hopefully tonight.

We had a nearly 45 minute meet and confer with counsel for Chevron regarding various discovery-related matters. We and counsel for Chevron have items of follow-up from the conference, and we plan to confer again tomorrow regarding those issues. We anticipate that tomorrow's report will include further information about the progress of these discussions, and the discussions may narrow the issues that require rulings from the Special Master.

We have not yet received a written response from Yahoo (which we anticipate will confirm the information Mr. Dolin provided by telephone yesterday). If we have not received it by tomorrow, we will follow up again with Mr. Dolin.

We have asked Messrs. Donziger and Woods whether they remember ever using the e-mail account that Chevron identified as [email protected]. Neither has any recollection of the account or any idea who it belongs to. During today's meet and confer, we asked counsel for Chevron whether they could provide additional information to determine whether Mr. Donziger and/or Mr. Woods were associated with the account. Counsel for Chevron advised us that they would consider this request and respond promptly.

Respectfully, Tim Haggerty

From: Max GITTER [mailto:[email protected]] Sent: Tuesday, April 05, 2011 11:33 AM To: Hendricks, Kristen; Haggerty, Timothy Cc: Neuman, Andrea E.; [email protected]; [email protected]; Kaplan, Bruce S.; [email protected]; [email protected]; Justin L Ormand; Kaplan, Robert D.; Mastro, Randy M. Subject: Re: update re: e-mail accounts

Pls add to your meet and confer agenda working out a mutually satisfactory procedure for dealing with the authentication of documents derived from the hard drive inspection--sufficient so that the BIT panel would accept them as authentic and as coming from Mr. Donziger's files. Sent from my blackberry


2

Max Gitter Cleary Gottlieb Steen & Hamilton LLP One Liberty Plaza New York, NY 10006 212-225-2610 212-225-3999 (fax) 917-287-7669 (mobile) [email protected]

From: "Hendricks, Kristen" [[email protected]] Sent: 04/05/2011 03:22 PM GMT To: Max GITTER; "Haggerty, Timothy" <[email protected]> Cc: "Neuman, Andrea E." <[email protected]>; "[email protected]" <[email protected]>; "[email protected]" <[email protected]>; "Kaplan, Bruce S." <[email protected]>; "[email protected]" <[email protected]>; "[email protected]" <[email protected]>; Justin L Ormand; "Kaplan, Robert D." <[email protected]>; "Mastro, Randy M." <[email protected]>; Justin L Ormand Subject: RE: update re: e-mail accounts

Dear Mr. Gitter, Mr. Kaplan, and Mr. Haggerty: Just yesterday, we identified an additional gmail account ‐‐ [email protected] ‐‐ that appears to be one Mr. Donziger may have used in his communications with third parties regarding the Lago Agrio litigation. We did not pick up on this earlier because the account name in one sense is generic, but Mr. Donziger frequently refers to himself jokingly as a "gringo," and therefore, this may well be an account he used. We request that Mr. Kaplan and Mr. Haggerty confirm whether that is so, and if so, then attempt to access the account using the passwords identified in our prior emails on this subject and, if unsuccessful, immediately issue another subpoena to google requesting immediate production of the contents of this account, with Mr. Donziger's express consent. We await the response of Mr. Kaplan and Mr. Haggerty on this issue. In the meantime, we will endeavor to schedule a time today to "meet and confer" with Messrs. Kaplan and Haggerty regarding the outstanding issues relating Mr. Donziger's document production. Thank you, Kristen Hendricks

GIBSON DUNN Gibson, Dunn & Crutcher LLP 200 Park Avenue, New York, NY 10166-0193 Tel +1 212.351.4051 • Fax +1 212.351.6339 [email protected] • www.gibsondunn.com

From: Max GITTER [mailto:[email protected]] Sent: Monday, April 04, 2011 8:23 PM To: Haggerty, Timothy Cc: Neuman, Andrea E.; [email protected]; [email protected]; Kaplan, Bruce S.; [email protected]; [email protected]; [email protected]; Hendricks, Kristen; Kaplan, Robert D.; Mastro, Randy M.; Justin L Ormand Subject: Re: update re: e-mail accounts


3

Progress, it seems. As I understand it, we are down to one, and only one, email account as to which more research needs to be done. As to the one remaining account, the issue appears to be that your firm has not received a waiver for a subpoena, but you are prepared to execute any consents to have Chevron issue a subpoena to get access. I think you have failed to recognize that it is Donziger's -- and not Chevron's -- obligation that is implicated by the duty to supplement, once you became aware of a new email account. Hence, your firm's disability to issue a subpoena is really of little moment, given that Mr. Donziger has several other counsel that could have served a subpoena on your firm's other client, without any waiver needed. (In light of what we already know about that one last account the likelihood is that it will yield little, if anything, of moment.) Still, I regard my mandate as assuring full document production as fast as possible. So I order that you and Chevron together call the general counsel of your other client (at home, if necessary) , and assure your other client that you will do whatever is necessary to allow Chevron to get access to that email account asap. If that fails, Chevron, and one of Donziger's other counsel shall serve a subpoena on your other client , and then make the joint calls to your other client to ensure the fastest possible response. I expect to rule on all outstanding document and deposition issues by the end of this week or the beginning of next week. If the contents of this last email account are not produced by then, the risk will be entirely on Donziger if the later production of this account yields material documents. You have been on notice for some time that this account once existed. Max Gitter ___________________________________________________________ Max Gitter Cleary Gottlieb Steen & Hamilton LLP Assistant: [email protected] One Liberty Plaza, New York NY 10006 t: +1 212 225 2610 | f: +1 212 225 3999 www.clearygottlieb.com | [email protected] From: "Haggerty, Timothy" <[email protected]> To: "Max GITTER" <[email protected]>, "Kaplan, Bruce S." <[email protected]> Cc: "Neuman, Andrea E." <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]>, "Hendricks, Kristen" <[email protected]>, "Kaplan, Robert D." <[email protected]>, "Mastro, Randy M." <[email protected]> Date: 04/04/2011 06:43 PM Subject: update re: e-mail accounts

Dear Mr. Gitter: On behalf of Bruce Kaplan and myself, I write with an update on our efforts to obtain the contents and other information related to the [email protected] and [email protected] e-mail accounts.


4

We spoke again with Doug Nolin from Yahoo's subpoena compliance group. This afternoon, Mr. Nolin informed us that the account [email protected] is "not currently in [Yahoo's] records," "doesn't exist" and "is not a valid account." Mr. Nolin said that the practical implication of this is that Yahoo does not have any documents or information to produce related to this account. He said that Yahoo does not possess records that would allow it to determine whether the account ever existed. Similarly, Yahoo cannot determine when the account became inactive. Mr. Nolin said that he would put this information into a formal response on behalf of Yahoo as soon as possible.

We are continuing to investigate the tmo.blackberry.net e-mail account. We have not received a conflict waiver from our client, T-Mobile, and we have not received information that allows us to confirm that either T-Mobile or RIM/Blackberry maintain custody of e-mails sent to or from [email protected] addresses. This investigation is ongoing with the assistance of our firm's litigation technology professionals. As Mr. Kaplan noted in today's letter to Ms. Hendricks, Mr. Donziger would execute any necessary authorizations to permit T-Mobile to produce documents in response to a subpoena issued by counsel for Chevron.

Respectfully, Tim Haggerty

Timothy M. Haggerty Friedman Kaplan Seiler & Adelman LLP One Gateway Center, 25th Floor Newark, NJ 07102-5311 Direct tel: 973-877-6451 Direct fax: 973-877-6452

New York Office: 7 Times Square New York, NY 10036-6516 Direct tel: 212-833-1251 Direct fax: 212-833-1250

*********************************************

This transmission may be a confidential attorney-client communication or may otherwise be privileged or confidential. If you are not the intended recipient, please do not read, copy, or re-transmit this communication. If you have received this communication in error, please notify us by replying to the sender of this message, and delete this message (and your reply) and any attachments. Thank you in advance for your cooperation and assistance.

*********************************************

This message is being sent from a law firm and may contain confidential or privileged information. If you are not the intended recipient, please advise the sender immediately by reply e-mail and delete this message and any attachments without retaining a copy.

This message may contain confidential and privileged information. If it has been sent to you in error, please reply to advise the sender of the error and then immediately delete this message.

This message is being sent from a law firm and may contain confidential or privileged information. If you are not the intended recipient, please advise the sender immediately by reply e-mail and delete this message and any attachments without retaining a copy.


Ex. 28

Documents

Transcript of Ex. 28