A federal judge in Manhattan has taken the extraordinary step of granting Chevron's motion to depose a counsel for its adversaries in the massive toxic tort litigation over oil contamination in Lago Agrio, Ecuador.
If Southern District of New York Judge Lewis A. Kaplan's ruling Wednesday in In re Application of Chevron Corp., 10 MC 00002, stands, Chevron's counsel from Gibson, Dunn & Crutcher and counsel for two former Chevron lawyers facing criminal charges in Ecuador will be able to ask lead plaintiffs attorney Steven Donziger questions, under oath, about his alleged attempts to influence a supposedly neutral expert appointed by the Ecuadorean court to offer a global damages assessment. The judge also has ordered Donziger to produce documents related to his interactions with the expert.
Kaplan based his ruling on evidence Chevron produced from outtakes of the documentary "Crude," which chronicles the Lago Agrio case. He called the outtakes "extraordinarily revealing."
"The outtakes contain substantial evidence that Donziger and others were involved in ex parte contacts with the court to obtain appointment of the expert; 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 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," Kaplan wrote.
Moreover, the judge concluded, the outtakes contained evidence that Donziger lobbied for criminal charges against the former Chevron lawyers in order to pressure Chevron in the Lago Agrio case.
Based on that evidence, the judge found, the need to obtain evidence from Donziger outweighed the general prejudice against deposing adversary counsel in civil litigation, particularly because Donziger was not acting only as a lawyer for the Ecuadorian claimants (whom he cannot actually represent in Ecuador).
"His principal functions have included lobbying, media and press relations, and politics," Kaplan wrote. "He has acknowledged in the outtakes that the purported civil litigation in Ecuador 'is not a legal case. It's a political battle' in which 'we need to get the politics in order in a country that doesn't favor people from the rainforest.'"
Chevron counsel Randy Mastro of Gibson Dunn told Litigation Daily that he is elated with Kaplan's ruling.
"Obviously, it's a huge win," he said. "This will be a unique opportunity to break wide open the screaming scandal that the Ecuadorean litigation has become."
Mastro said he plans to depose Donziger on behalf of Chevron. The two former lawyers facing criminal charges in Ecuador are represented by Alan Vinegrad of Covington & Burling and Jorge Mestre of Rivero Mestre & Castro, who also would be permitted to question Donziger if Kaplan's order stands.
At the Sept. 23 oral argument on motions to quash the Donziger subpoenas, Donziger was represented by Bruce Kaplan of Friedman Kaplan Seiler & Adelman. The Lago Agrio plaintiffs were represented by Ilann Maazel of Emery Celli Brinckerhoff & Abady.
In Donziger's memo supporting his motion to quash, he asserted, "The subpoenas amount to a demand for the wholesale turnover of opposing counsel's files, and, as such, they are dramatically improper."
The Lago Agrio plaintiffs' memo is much fierier, asserting not only that the subpoenas are improper, but that Chevron has misused the "Crude" outtakes and has itself abused the litigation process in Ecuador.
On Thursday, the Amazon Defense Front issued a statement on behalf of the Lago Agrio plaintiffs blasting what it called Chevron's attempt to avoid accountability for its actions by attacking lawyers for the plaintiffs.
"We respectfully disagree with the court's decision on Chevron's discovery motion," it says, in part. "In truth, Chevron's allegation of fraud against U.S. counsel is itself a fraud -- one of many the company has perpetrated on the courts and the public. The oil giant is obviously trying to cover up almost 50 years of misconduct that has devastated indigenous and farmer communities in Ecuador's Amazon."
A version of this article first appeared on The Am Law Litigation Daily blog on AmericanLawyer.com.