                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA



CHEVRON CORPORATION,

                Petitioner,

           v.                                                          Misc. No. 11-409 (JMF)

THE WEINBERG GROUP,

                Respondent.


                                              ORDER

       Before me is Respondent Weinberg Group’s Motion for Emergency Stay of Enforcement

of this Court’s September 8, 2011 Memorandum and Order and September 13, 2011 Order

Pending Appeal to the United States Court of Appeals for the District of Columbia Circuit and

for Expedited Briefing and Consideration [#31]. The Weinberg Group’s motion for an

emergency stay will be denied for the following reasons.

       As I stated in my previous Order [#30], in order for a party to succeed on a motion for a

stay of proceedings, it must show a likelihood of success upon review by a superior court and

that it is threatened with irreparable harm if the stay is not granted. Baker v. Socialist People’s

Libyan Arab Jamahirya, ___ F. Supp. 2d ___, 2011 WL 3855855, at *3 (D.D.C. Sept. 1, 2011).

As I previously noted, I find no likelihood that a reviewing court will disagree with my reliance

upon Judge Kaplan’s decision in support of my concluding that there is a prima facie case that

the work of The Weinberg Group advanced the perpetration of a fraud, meaning that the

privileges claimed had to yield.

         Respondent argues that once the Court has determined that the movant does not have
any likelihood of success on the merits, there is somehow still room for the Court to grant the

motion. Memorandum of Points and Authorities in Support of Respondent’s Motion for

Emergency Stay [#31-1] at 2. However, the cases Respondent cites to in its Memorandum,

Population Inst. v. McPherson, 797 F.2d 1062, 1078 (D.C. Cir. 1986) and Peck v. Upshur County

Bd. of Educ., 941 F. Supp. 1478, 1481 (N.D. W.Va. 1996), both do in fact require the Court to

find a likelihood of success on the merits. They definitely do not stand for the proposition that a

stay is appropriate if the moving party presents a legal issue that it wishes to further litigate, if the

Court is certain that it will not succeed, as is the case here.

        Moreover, whatever its view in 1986 in the Population Institute case, the court of appeals,

dealing with the cognate question of the requirements for the granting of a preliminary injunction

earlier this year, specifically indicated that the showing of a likelihood of success on the merits

is “an independent free-standing requirement for a preliminary injunction.” Sherlev. Sebelius,

644 F.3d 388, 393 (D.C. Cir. 2011) (quoting Davis v. Pension Benefit Guaranty Corp., 571 F.3d

1288, 1296 (D.C. Cir. 2009)). Any notion that a party gets a stay merely by raising a debatable

legal issue is simply wrong. See Nken v Holder, ___ U.S. ____, 129 S.Ct. 1749, 1753 (2009)

(“The first factor, a strong showing of a likelihood of success on the merits, requires more than a

mere possibility that relief will be granted.”).

        Judge Kaplan made a number of findings that support my conclusion that the crime-fraud

exception applies in this case and that the claimed privileges are therefore inapplicable to the

documents at issue. Respondent attempts to argue that the stay that Judge Kaplan imposed upon

Magistrate Judge Francis’s similar order, granting a motion to compel in the Southern District of

New York, indicates that Judge Kaplan found the Ecuadorian plaintiffs’ objections to application


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by Judge Francis of the crime-fraud exception to be meritorious. [#31-1] at 3, n.1. However, a

closer review of the record of the Southern District matter shows that the stay was put in place

not because Judge Kaplan had reservations as to Judge Francis’s conclusions, but rather to give

Judge Francis an opportunity to make an in camera inspection of the documents on the privilege

list, as was within his discretion. See Chevron v. Salazar, 11 Civ. 3718, Doc. No. 227 (S.D.N.Y.

filed Aug. 16, 2011). Judge Francis found, as I have, that Judge Kaplan’s findings compel the

conclusion that the evidence of fraud in the proceedings in the Ecuadorian court, including The

Weinberg Group’s work with the “cleansing experts,” required the claimed privileges to yield to

the crime fraud exception. Judge Kaplan did not stay Judge Francis’s order because he had

reservations about Judge Francis’s application of the crime fraud exception. Rather, Judge

Kaplan’s stay was a procedural matter enabling Judge Francis to further review the evidence

before him.

       There is simply no showing whatsoever that The Weinberg Group has a likelihood of

success on the merits of any appeal.




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       It is therefore, hereby,

       ORDERED that Respondent Weinberg Group’s Motion for Emergency Stay of

Enforcement of this Court’s September 8, 2011 Memorandum and Order and September 13,

2011 Order Pending Appeal to the United States Court of Appeals for the District of Columbia

Circuit and for Expedited Briefing and Consideration [#31] is DENIED.

       SO ORDERED.                                                 Digitally signed by John M.
                                                                   Facciola
                                                                   DN: c=US, st=DC, ou=District of
                                                                   Columbia,
                                                                   email=John_M._Facciola@dcd.u
                                                                   scourts.gov, o=U.S. District
                                                                   Court, District of Columbia,
                                                                   cn=John M. Facciola
                                                                   Date: 2011.09.15 09:27:57 -04'00'
                                                  _____________________________
                                                  JOHN M. FACCIOLA
                                                  UNITED STATES MAGISTRATE JUDGE




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