Last week, Judge Lewis Kaplan ordered Microsoft to turn over the identities of 30 email account holders and nearly a decade of their private usage information to Chevron. Judge Kaplan also denied a request by some of the account holders to wait to give their information to Chevron until after the Second Circuit Court of Appeals can hear an appeal in the dispute. The ruling came weeks after Chevron’s RICO trial in New York – also before Judge Kaplan – concluded.
The Microsoft subpoena was issued in connection with the RICO lawsuit, which Chevron filed against the lawyers and their Ecuadorian clients who won a massive environmental judgment against the oil giant in 2011. Chevron claims the original Ecuadorian judgment was obtained by fraud – a claim that was rejected by an Ecuadorian appeals court and, just last month, by Ecuador’s highest court, which affirmed the $9 billion judgment against Chevron. As part of its effort to avoid paying the judgment, Chevron has used the discovery process to go after any organization or individual who has dared speak out about the plight of the Ecuadorians and Chevron’s destructive practices.
On behalf of some of the Microsoft account holders, ERI and the Electronic Frontier Foundation (EFF) had previously moved to quash the subpoena issued by Chevron. Judge Kaplan denied that request. (We’ve argued elsewhere why that decision was deeply flawed.). That decision is currently on appeal before the Second Circuit. Despite the appeal, in October 2013, just before the start of trial, Chevron filed a motion to force Microsoft to turn over the information.
Chevron claimed that it needed this information at trial. Usually, when a trial ends, a subpoena for evidence at trial is rendered void since there is no longer a trial it can aid. Indeed, on the last day of the RICO trial, Judge Kaplan stated that the record was, at that moment, “irrevocably” closed – meaning no new evidence could be submitted in the trial. Despite the fact that Chevron’s motion had been filed eight weeks earlier, Judge Kaplan did not order Microsoft to produce the information until two weeks after the end of the trial.
ERI and EFF immediately filed an emergency motion for a stay with the Second Circuit, asking the court to order Microsoft to wait on turning over the information until the appeal, which had already been fully briefed, could be decided. Without any explanation, the Second Circuit denied the request on Monday, December 16, 2013 – the same day Judge Kaplan had set as the deadline for Microsoft to produce the information.
As a result, Judge Kaplan’s decision may remain in force long enough to cause irreparable damage to the rights of the email account owners. Although the Second Circuit appeal will still go forward, even if it ultimately succeeds, the violation of the First Amendment rights of the targeted account owners cannot be fully undone. If we win the appeal, the Court of Appeals could order Chevron to destroy or return the documents turned over by Microsoft. But there is nothing the court can do to force Chevron to un-learn the identities, addresses, and other private account usage information of these activists, lawyers, journalists and others, who are justifiably alarmed at the thought of their private information in Chevron’s hands. What greater chilling of free speech could there be than to allow a powerful political opponent like Chevron to learn the identity of its critics, where they live, where they work, and where they have gone and who they have associated with for the past decade?
Chevron’s continued efforts to obtain this private information after the end of trial indicates its true intent is to harass its critics and chill future speech about the company. Chevron has pursed this subpoena with a remarkable lack of diligence (which stands in stark contrast with the aggressive manner in which it has pursued other information for the RICO trial). The subpoena was issued to Microsoft in September 2012, yet Chevron waited to try to compel production until more than a year after it served the subpoena, more than four months after the deadline for the completion of discovery in the RICO action, and mere days before trial. And Chevron chose not to expedite the Second Circuit appeal, which has been pending since July 2013. The obvious reason is that this information isn’t, and has never been, relevant to the claims in the RICO case. Further proving this point is the fact that Chevron already had nearly identical discovery from Google and Yahoo, but didn’t bother to even reference it at trial.
ERI and EFF are also briefing a similar appeal before the Ninth Circuit, regarding Chevron’s subpoenas issued to Google and Yahoo. Although the Ninth Circuit allowed limited production to go forward with respect to some of the Google and Yahoo! email account holders, unlike the Second Circuit, it granted a stay for the majority of ERI and EFF’s clients, recognizing that the case presented “a substantial question on the merits under the First Amendment.”