I think it was very good, so i'll focus on what I thought was weakest and most attenuated: the connection between Donziger being unwilling to disclose his electronics on the basis of (a) attorney-client privilege and (2) unnamed constitutional rights. It seems like these two justifications have nothing to do with the fact that Guerra lied. Whereas I think there is a direct causal connection between Guerra's lying and disbarment, that is hardly the case for the criminal contempt charges. By the memo's and court's own logic, Donziger would have been requested to hand over his electronics EVEN IF Guerra had not lied. Thus, I am unsure how amending that finding of fact helps Donziger with respect to the contempt charge (and 6-month sentence). I clearly see how it relates to the disbarment, though.
Until late in the motion, I kept having subconscious concerns that this bribery finding was unquestionably a "mistake," making a 60(b)(6) motion impossible, but you all did an excellent distinguishing Kaplan's finding from the "excusable neglect" types of mistakes covered. Nice work.
I think this is a super strong outline so wouldn't expect very many cites but I definitely think there needs to be a lot of caselaw proving that these circumstances actually ARE extraordinary per case law. Has this been used as a remedy for disbarment before, for example?
I do feel that the "extraordinary" justification, though necessarily a broad term not tied down by the Rule 60 language, needs to be fleshed out more with, e.g., cases demonstrating exactly what makes something extraordinary
1) How do you square the argument that the bribery finding was "mooted for any purposes of appeal" with Professor Nesson's assertion throughout our class that Donziger's appellate lawyer was ineffective for not raising the bribery issue on appeal? 2) The extreme hardship argument feels weak because the the contempt findings, sentencing, etc., were explicitly NOT based on the bribery finding (even if we believe the bribery findings influenced the decision behind the scenes).
I think that this memo does a great job at pointing out the unique circumstances through employing strong language. I really liked the line "This Court first found that Donziger bribed Zambrano and then, in the same decision, announced to the world that that entire inquiry was inconsequential to the actual dispute"
I agree with Moon, but think it's also important to distinguish this from a motion turning on new evidence (Guerra's testimony before the International Arbitration Tribunal) or fraud so you aren't barred by 60(B)(2) & (3)
I agree with @Venus. The argument of how this case qualifies under 60(b) is not fleshed out at all and should be the focal point of the argument. Here, more time is spent saying how it doesn't fall under 60(b)(1) than saying how 60(b)(6) qualifies. This argument is the whole point and needs to be convincingly explained with the law in order to be persuasive.
I agree with @Messier 83 and am curious what the benefit or desired outcome is from this 60(b) motion. As mentioned by @Messier 83, we know that Kaplan rested his ultimate decision on factors other than Donziger's alleged bribery. So I am wondering what good a 60(b) motion would achieve, given that the outline today states that the relief is "retraction of this Court's finding he bribed Zambrano. . ."
I agree with a point above that the tone and evidence throughout the brief would suggest to me that the court has made a "mistake," only to draw a distinction at the very end between a mistake and an unjust opinion. To me, e.g., undermining the integrity of judge guerra's testimony doesn't scream "unjust" to me.
But couldn't you just say the bribery finding re: Donziger is just Preska noting there are two, alternative, sufficient conditions for the finding? I'm not sure that's obviously an advisory opinion (though that may be a term of art in fed coruts I am not familiar with), but if that fnding is an alternative sufficient condition for the outcome, that seems to be an application of fact to the law in the instant matter