Subpoena Looms for Chevron Opponent

BY BARBARA LEONARD
Courthouse News Service

NEW YORK -- Lawyers for attorney Steven Donziger argued that Chevron cannot subpoena their client in the multibillion-dollar environmental contamination lawsuit against the oil giant, because he is Chevron's "adverse counsel in a heated and ongoing litigation." After hearing nearly three hours of arguments Thursday, U.S. District Judge Lewis Kaplan told Donziger's team, "You'd be well advised to start getting the material together." 

Though not the attorney on record in case against Chevron in Lago Agrio, Ecuador, Bruce Kaplan with Friedman Kaplan said Donziger is the lead American attorney helping a group of Ecuadorian nonprofits sue Chevron for alleged environmental contamination from oil drilling.

Chevron has filed several subpoenas all over the country to obtain evidence proving that the trial it faces in Ecuador is tainted by misconduct.

Judge Kaplan said Donziger's behavior in Ecuador "goes far beyond the role that lawyers customarily play."

Citing footage from the 2009 documentary "Crude" in which Donziger stars, Judge Kaplan said Donziger is fighting a political battle, calls himself a field general and likens himself to Fidel Castro.

Bruce Kaplan, Donziger's attorney, said Donziger's "ill-advised remarks" are just examples of "braggadocio from a passionate attorney."

Judge Kaplan interrupted that "sometimes ill-advised comments have consequences, and sometimes they are true."

The judge cited several scenes that he found distasteful, including one in which Donziger jokes about ordering the assassination of any Ecuadorian judge that does not rule in favor of the Lago Agrio plaintiffs.

Donziger's attorney conceded that the remark was "a terrible joke, but that's what it was: an improper, ill-advised joke at a dinner table." He added that Chevron is simply trying to sideline its adverse counsel in the Ecuadorian litigation.

Andres Rivero, who represents Rodrigo Perez Pallares, a Chevron attorney facing criminal prosecution in Ecuador, says Donziger's "jokes" are no laughing matter.

"I have never seen evidence of this kind in 24 years [of practicing law]," Rivero said. "Their plan is to hold my client hostage to force a settlement and incapacitate my client from working on the case."

Donziger did not appear at the hearing but issued a statement afterward in which he claims that his remarks have been taken out of context.

"I am the fourth lawyer to represent the Amazonian communities in Ecuador who has been the target of what believe is abusive legal action by Chevron; this is all part of the company's strategy to delay the trial and distract attention from the mountain of evidence pointing to its responsibility for massive contamination in Ecuador's Amazon rainforest," Donziger wrote. "Some of my remarks taken out of context from discarded outtakes from the film 'Crude' may be viewed as intemperate or ill-advised. Understood in their full context, they were part of the plaintiffs' response to clear evidence that Chevron was exercising corrupt influence over Ecuador's court system and had done so for decades while it discharged billions of gallons of toxic waste into the Amazon."

Donziger's attorney, Bruce Kaplan, said Chevron is flaunting an "unlimited litigation budget."

Judge Kaplan quipped that Donziger has "given them 23 billion reasons," citing the damages that the Lago Agrio plaintiffs seek in Ecuador. Last week, however, the Lago Agrio plaintiffs issued a new assessment for damages that puts the figure at $113 billion.

Kaplan said Donziger's so-called "ill-advised" remarks amount to "flat-out admissions."

"It makes Albany look great," Kaplan said. "The name of the game is to put a lot of pressure on the courts ... in order to pressure Chevron to come up with some money. Do the words 'Hobbs Act,' 'extortion,' 'RICO' have any bearing here?"

Chevron attorney Randy Mastro with Gibson Dunn said Donziger waives his privileges as a lawyer "by going on at length about every subject."

"He has a law degree and a New York license -- for now -- but to what extent have these privileges been waived?" Mastro asked. "I've never seen a more compelling record for the crime-fraud exception."

To illustrate Donziger's questionable conduct, Mastro played several short "Crude" outtakes, which Chevron obtained in July after a contentious legal battle with director Joseph Berlinger that played out, in part, in Judge Kaplan's court.

"If we were on a fishing expedition, we caught a whopper," Mastro said. "I'm a former organized crime prosecutor. This is a racketeering enterprise that would make even the mob blush."

Donziger's attorney argued that subpoenaing the records would take "months to unravel" and warned that "there are going to be enormous issues of attorney-client privilege." He added that Donziger should be given ample time to comply with the subpoena.

Judge Kaplan said he would be inclined to give Donziger wider latitude if he petitioned the Ecuadorian courts to stay all litigation there against Chevron, including the criminal cases pending against two Chevron attorneys.

Donziger's attorney, Bruce Kaplan, and Ilann Maazel with Emery Celli, who represents the Lago Agrio plaintiffs, both refused to agree to that stipulation.

Alan Vinegrad with Covington & Burling said Perez and his client, Ricardo Reis Veiga, are in a unique position that cannot be solved by Kaplan's maneuvering.

"No one in this courtroom has the authority to bind a criminal proceeding [in Ecuador]," Vinegrad said.

Mastro had no sympathy for any trouble Donizger might have complying with Chevron's far-reaching subpoena.

"As to the notion that what we request is broad, it's because the racketeering conspiracy is so sweeping," Mastro said. "It was a $27.3 billion conspiracy, now it's a $113 billion conspiracy."

Mastro said the only protection Donziger has is under the Fifth Amendment, after he produces the requested documents.

"This is a man who is corrupt to his core," Mastro said. "This is a man who is a criminal."

Maazel argued that for Chevron to prove its burden, it has to find evidence of fraud against the indigenous Ecuadorians whom Donziger represents.

Judge Kaplan interrupted to disagree. "With all due respect, that's absurd," he said.

Maazel acknowledged that Donziger made comments in "Crude" that the Ecuadorian courts are corrupt, but said those remarks do not make it true. He added that Chevron has already submitted to the Ecuadorian court a large amount of new evidence of fraud, and it does not need Donziger's testimony to make its case.

As he summed up, Kaplan said "the imagination of American attorneys is without parallel in the world."
 
"We used to be a leader in medicine," he said. "Now we cure people, and kill 'em in interrogatories."
 
He added that he would probably not be able to issue an opinion on Friday, but that Donziger's attorneys would "be well advised to start getting the material together."

Republished with permission from Courthouse News Service.