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Chevron’s dirty tactics
by Michelle Harrison
Two weeks ago, I had the exciting opportunity to witness my first court hearing at which briefs I had co-written were argued.
The outcome couldn’t have been better.
A federal Judge rejected Chevron’s efforts to obtain hundreds of thousands of documents and deposition testimony from advocacy organization Amazon Watch. The court quashed both subpoenas issued to the organization, which has been one of Chevron’s most vocal critics in advocating for justice for the indigenous communities in Ecuador affected by the company’s disgraceful legacy of pollution in the region.
In 2011, an Ecuadorian court ordered Chevron to pay over $18 billion to remediate the environmental damage caused by its operations. Rather than take responsibility and pay, Chevron filed a civil RICO (racketeering) lawsuit in New York against the Ecuadorian plaintiffs and their counsel, claiming they had committed fraud in the Ecuadorian litigation to force Chevron to settle the case. An Ecuadorian appellate court rejected similar claims in upholding the judgment against Chevron.
As part of the RICO suit, Chevron has already issued document subpoenas to well over 100 individuals and organizations and conducted more than 320 hours of depositions, including more than 16 days from attorney Steven Donziger, the alleged mastermind of the conspiracy. As one court has described it, Chevron’s extensive discovery thus far has been “unique in the annals of American judicial history.”
Although Chevron falsely accused Amazon Watch of being a “co-conspirator,” Amazon Watch is not a defendant in the RICO suit. Yet counsel for Chevron argued that the First Amendment didn’t protect Amazon Watch’s public advocacy campaign.
The court wasn’t buying it. The judge concluded that Amazon Watch’s speech was First Amendment speech and “[a]ll that Chevron has shown … is that Amazon Watch has been very critical of Chevron’s operations in Ecuador.”
The judge found that Chevron’s requests were “egregiously overbroad” and “seek the heart of Amazon Watch’s expressive activity.” For example, one request sought “[a]ll documents concerning any protests, rallies, marches, demonstrations, petitions or other similar events concerning Chevron” or any of the related litigations. Chevron also sought communications with and petitions to the U.S. government, “[a]ll documents” concerning at least 8 of Amazon Watch’s campaigns, and information about anonymous donors.
Chevron had also asked the Court to make a finding that Amazon Watch had engaged in fraudulent conduct, but the court found that “all evidence before this Court suggests otherwise[.]”
After weeks of working late nights and through the weekends to keep up with Chevron’s army of lawyers, the court’s decision was a welcome and important victory for both Amazon Watch and ERI. But the abusive subpoenas issued to Amazon Watch are only one example of a much larger problem. Chevron and its counsel, Gibson Dunn & Crutcher, have repeatedly engaged in intimidation and delay tactics to avoid paying the judgment against the company.
They have manipulated the discovery process to attack the First Amendment rights of anyone and everyone that has ever dared to speak out against the company, issuing subpoenas to advocacy organizations, activists, lawyers, bloggers, journalists, and even its own shareholders. The company has also petitioned the SEC to allow it to block a number of shareholder resolutions related to the Ecuador litigation, including one that would require the company to explain why it sought to subpoena its shareholders.
A number of U.S. courts have sanctioned, admonished, or questioned the company and/or its counsel for its discovery tactics. A court in Oregon sanctioned Chevron, and found that counsel’s discovery tactics against another environmental organization were at least in part “meant to harass.” A court in Colorado ordered another Gibson Dunn attorney to stop asking harassing questions during depositions of the Ecuadorian Plaintiffs’ consultants that were clearly intended to intimidate the witnesses. The firm has also been ordered to pay fees under California’s anti-SLAPP statute for filing frivolous suits to intimidate a lawyer. A number of lawyers for Chevron have also been sanctioned in Ecuador for filing frivolous and duplicative motions and obstructing the trial.
For a recent law school graduate, witnessing Chevron’s dirty tactics has been eye-opening to say the least. Although our victory is a small one in terms of the decades-long quest for justice and accountability in the Ecuadorian Amazon, it is an important one nonetheless. As we await the Supreme Court’s landmark corporate accountability decision in Kiobel v. Royal Dutch Petroleum, our victory against Chevron is yet another reminder of how much is at stake.