Court Orders Donziger Communications in Chevron-Ecuador Battle

by Roger Alford

Yesterday a federal district court granted Chevron’s motion under Section 1782 to discover communications and interactions that Steven Donziger and others affiliated with the Lago Agrio plaintiffs had with Ecuadorian courts, the Ecuadorian Special Master, and the Ecuadorian government. The order was in furtherance of Chevron’s efforts to respond to a criminal investigation brought in Ecuador against two Chevron attorneys.

The order left no doubt as to the court’s opinion regarding the damage that had been done to Donziger and the plaintiffs’ case as a result of the Crude outtakes. (For my discussion of those outtakes see here and here). Here’s a flavor of the court’s opinion:

The Court has had … an opportunity to review the Crude outtakes, which are extraordinarily revealing…. The outtakes … depict Donziger, along with others acting for the Lago Agrio plaintiffs, describing their campaign for a renewed criminal investigation … for the purpose of … exerting pressure on Chevron by prosecuting its personnel. The Prosecutor General changed course and reopened criminal investigation in light of new evidence within days of completion of the ostensibly neutral and impartial “global assessment” for civil litigation….

The outtakes … contain substantial evidence that Donziger and others (1) were involved in ex parte contacts with the court to obtain appointment of the expert, (2) met secretly with the supposedly neutral and impartial expert prior to his appointment and outlined a detailed work plan for the plaintiffs’ own consultants, and (3) wrote some or all of the expert’s final report that was submitted to the Lago Agrio court and the Prosecutor General’s Office, supposedly as the neutral and independent product of the expert.

In these circumstances, the outtakes and other evidence demonstrate at least a significant need for the discovery sought by … Chevron–discovery concerning … the role of the Lago Agrio plaintiffs in selecting and procuring the appointment of the expert, in writing the report, and in procuring the reopening of criminal charges.

As for concerns about deposing opposing counsel, the court concluded that Donziger’s “principal functions have included lobbying, media and public relations, and politics…. Donziger’s role at least in major respects is that of a political operative, not a lawyer.”

So now Donziger and the Lago Agrio plaintiffs are under court order to disclose the communications and interactions they have had with the Ecuadorian court, special master, and government.

Whatever happens in Ecuador, enforcement here of any judgment against Chevron looks more and more unlikely. The Lago Agrio plaintiffs will have to satisfy the Hilton v Guyot standard (or the codified version in the UFMJRA) requiring proof of a “full and fair trial abroad” under a “system of jurisprudence likely to secure an impartial administration of justice” that shows no evidence of “either prejudice in the court, or in the system of laws under which it is sitting, or fraud in procuring the judgment.” The Crude outtakes and forthcoming evidence of plaintiffs’ communications with the Ecuadorian government make that standard increasingly hard to satisfy.

Who would have thought that Section 1782 would be a tool in the hands of a corporate defendant to successfully unravel an entire case?

UPDATE: Michael Goldhaber of Corporate Counsel has just posted a few of the damaging video clips from the Crude outtakes. You can view them here.

http://opiniojuris.org/2010/10/22/court-orders-donziger-communications-in-chevron-ecuador-battle/

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