Chevron is renewing its strategy to deplete the modest financial resources of the Ecuadorian indigenous plaintiffs who won an $18 billion judgment against the company by issuing discovery requests in six federal courts seeking thousands of documents, including those in possession of interns who have worked on the lawsuit, according to a new court filing that seeks a stay of the discovery process.
In the filing Thursday before New York federal district judge Lewis A. Kaplan – who the Ecuadorians have accused of harboring a “deep-seated antagonism” toward their lawsuit – the plaintiffs are seeking to stop Chevron from conducting discovery for a controversial trial in November of this year where Kaplan says he will determine whether Ecuador’s entire judicial system meets international standards.
Chevron had sought the trial under the theory that a declaratory judgment from Kaplan against Ecuador – which is a trading partner of the United States and which has regular democratic elections– would help it block international enforcement of the $18 billion Ecuador judgment. Chevron has stripped its assets from Ecuador and vowed never to pay the judgment, while the Ecuadorian plaintiffs say they have a right to seek enforcement in any of dozens of countries where Chevron operates.
The Ecuadorians maintain that no matter what Judge Kaplan decides, the U.S. trial court has no jurisdiction over them. They also argue that Kaplan’s attempt to exercise worldwide jurisdiction from the United States over a legal case in a foreign country has no legal basis and represents “judicial imperialism” at its worst.
The case against Chevron, brought by indigenous and farmer communities in the Amazon, originally was filed in U.S. federal court in 1993. A U.S. judge shifted it to Ecuador at Chevron’s request after the company submitted 14 affidavits praising the fairness of Ecuador’s judicial system.
Chevron was accused in the lawsuit of discharging billions of gallons of toxic waste into the streams and rivers of the Amazon, decimating indigenous groups and causing an outbreak of cancer and other oil-related health problems affecting thousands of people. Experts have said the company’s substandard practices, which it used from 1964 to 1992, created the worst oil-related disaster on the planet.
Once the scientific evidence in the Ecuador trial began to point to Chevron’s guilt, the company changed its tune and began to attack Ecuador’s courts as “corrupt” and returned to the United States to seek relief from Kaplan in a lawsuit filed Feb. 1 of this year. Two weeks later, the Ecuador court found Chevron liable and imposed damages of up to $18 billion. Both parties are appealing the decision in Ecuador while Kaplan tries to push his case forward.
Separately, the Ecuadorians Thursday filed an extraordinary 44-page Writ of Mandamus with the Second Circuit Court of Appeals seeking Kaplan’s removal from the Ecuador matter because of the open contempt he has expressed for the Ecuadorians and their country’s judicial system. The Writ describes Kaplan as “Chevron’s single greatest ally in its eighteen-year effort to evade liability” and says his actions “threaten the credibility of the United States federal justice system both at home and abroad.”
“The world is closely watching this landmark case,” said Karen Hinton, the spokesperson for the Ecuadorians. “And what the world sees is an American company that fought for nine years to wrest jurisdiction from the American courts in favor of litigating the case in Ecuador, only to come running back to the United States for a preordained, home-cooked bailout when things did not go as well as planned in Ecuador.
“Worse yet, it sees a federal district court that is not just willing, but apparently determined, to overlook the fact that [Chevron] just spent the last eight years committing a series of outrageous abuses against the Ecuadorian court it swore to respect as it begged to move the case there,” she added.
In the filing to stay discovery, the Ecuadorians noted that Chevron lawyer Randy Mastro – to induce Kaplan to schedule a rapid trial – told the judge on several occasions that Chevron would need “little or no discovery.” Yet just last week, Mastro issued subpoenas comprising 293 pages and 292 document requests, 48 pages of interrogatories, and several deposition notices filed in six different federal courts around the country.
Chevron’s subpoenas are directed to the Ecuadorian plaintiffs’ attorneys, consultants, testifying experts, and even litigation team interns, said the law memorandum. Chevron set a common return date on the subpoenas of June 3, just one day after the plaintiffs had been ordered to turn in their voluminous briefs to the Second Circuit for the expedited appeal of Kaplan’s decisions.
The tight time frame for the return of the subpoenas was planned by Chevron to make it virtually impossible to adequately contest them, said Hinton.
The filing seeking to stop discovery said “it is now clear that Chevron’s requests … are not aimed at discovering relevant evidence for use at trial but rather are propounded in an effort to deplete the Ecuadorian plaintiffs’ resources and their ability to prosecute the critical” appeal before the Second Circuit.
Chevron’s discovery requests come after Kaplan’s decision to deny the full intervention in the November trial of Steven Donziger, the longtime U.S. counsel for the Ecuadorians. Kaplan is refusing to let Donziger or any party take discovery of Chevron to document its numerous corrupt acts intended to sabotage the Ecuador trial, said Hinton.
The fact Kaplan won’t consider such evidence is denying the voice of the Ecuadorians and shows his “protectionist judicial bias” in favor of a U.S. corporation fighting a foreign adversary, added Hinton.
“Judge Kaplan is making decisions to ensure that Chevron will have no meaningful opposition in the so-called ‘trial’ of Ecuador’s courts scheduled for later this year, which is a wholly inappropriate exercise of judicial power in any event,” she said.
“Kaplan is clearly trying to engineer a result on behalf of Chevron without considering the relevant evidence,” added Hinton. “If he could gain some perspective, he would probably call it a ‘show trial’ because increasingly that is what the proceeding in his courtroom looks like.”
Chevron’s new discovery requests come after it employed a “carpet-bombing” strategy of pursuing other discovery actions against 30 individuals and ten entities in 16 different federal judicial districts, under the authority granted it by a federal statute that allows for discovery for foreign judicial proceedings, said the brief seeking a stay.
For example, in 2010 Chevron (via an order from Kaplan) obtained Donziger’s entire 18-year case file, tens of thousands of his emails, imaged his hard drives, and forced him to sit for 14 days of sworn depositions attended by 15 or so lawyers from Chevron and its outside counsel. Yet Kaplan still won’t allow Donziger or his clients meaningful reciprocal discovery of Chevron, said Hinton.
Kaplan asked for the parties to file papers on the request for a stay of discovery by June 8. Argument on the Second Circuit appeal likely will take place in late July or early August, said Hinton.
Contact: Karen Hinton at 703-798-3109 or Karen@hintoncommunications.com
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