Here’s a judge hoping for to a “Hail Mary” pass to resolve a sticky discovery dispute. Don’t expect much. Lawyers for Ecuadoreans won an $18.2 billion judgment against Chevron in Ecuador over alleged pollution of the Amazon rainforest. It was the largest environmental award in world history. Now the Ecuadoreans are fighting Chevron’s subpoenas of 70 email accounts in the oil giant’s effort to thwart collection of the damages.
A magistrate judge told the plaintiffs’ lawyers to see if they could resolve the discovery dispute with Chevron first. Magistrate Nathanael Cousins let the subpoenas stand for now, asking both sides to “meet and confer in the next fourteen days in an attempt to resolve the disputed issues.” Fat chance.
If they can’t, well then, back to Cousins. The Chevron effort to look at 70 email accounts caught the eye of digital civil liberties groups, including Electronic Frontier Foundation, which criticized it as potentially violating privacy rights of Chevron’s critics. EFF filed a brief in support of efforts to quash the subpoenas.
Chevron has been fighting the Ecuadoran judgment from the Lago Agrio provincial court in Ecuador on three continents. The award came after 20 years of litigation by aborigines and farmers who blamed Texaco Inc., which Chevron acquired in 2001, for destroying the environment and allegedly causing heath injuries.
In 2010, Chevron said in a claim before the U.S. Commission on International Trade that the Ecuadorean judgment was “ghostwritten” by the plaintiffs’ lawyers using internal documents that had not been submitted to the public court record and was the result of fabricated evidence.
This stems partly from a stunning revelation that Chevron obtained secret video footage of a private meeting with Judge Juan Nunez, who was presiding over the case, and claims by cameraman Diego Borja, a Chevron contractor, and convicted drug felon Wayne Hansen, alleging Nunez accepted bribes.
Chevron denies having any relationship with the pair, but it did use the allegations to tar the country’s judiciary. Nunez denied the allegations, but stepped down from the case, to avoid the appearance of impropriety.
Chevron filed suit in New York federal court against the Ecuadorian farmers, their lawyers, their experts and anyone connected to their case, alleging racketeering, tort claims and seeking a declaration that the $18.2 billion judgment was unenforceable worldwide.
The appeals court in New York said the Ecuadoreans could not be barred from seeking to collect the judgment anywhere in the world. Earlier this month the U.S. Supreme Court let the order stand. (Chevron v. Naranjo, 11-1428)
Chevron has since come to San Francisco’s Northern District Court with subpoenas seeking user and usage information from Google, Yahoo and Microsoft. They are sweeping. The oil firm wants documents, correspondence and electronic mail messages on records back as far as nine years, to include “rolling production” of future communications with no end date, according to court papers.
Among the accounts sought is the plaintiffs’ lead lawyer, Steven Donziger.
“These subpoenas represent a fishing expedition of global proportions,” according to Donziger’s attorneys John Keker and Tyler Doyle.
We’ll have to wait two weeks to see if the dispute can be resolved or it all goes back to Cousins.
Case: Chevron Corp. v. Donziger, No. 12-mc-80237CRB
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