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San Francisco-One of the nation’s leading human rights abuse cases was thrown into turmoil last week, just months before the start of trial, because named defendant Chevron Corp. waited four years to declare that the wrong corporate entity had been sued. The startling about-face in the oil giant’s portrayal of the chain of command from its Nigerian subsidiary, Chevron Nigeria Ltd., through layers of corporate structures to the parent company comes after nearly 100 depositions and reams of interrogatories over years of intense litigation. Even the judge relied on the erroneous information in a 2004 opinion that Chevron must face trial over whether the U.S. parent is liable for the actions of its overseas subsidiary. The suit accuses Chevron, through its Nigerian subsidiary, of killing and torturing villagers who protested environmental harm from offshore oil drilling. Bowoto v. Chevron, No. C99-2506SI. A frustrated judge A frustrated U.S. District Judge Susan Illston demanded an explanation in court recently. “It looks to me like someone was playing hide the ball and it looks like it was hidden on purpose,” Illston told Chevron’s attorney, Robert A. Mittelstaedt of Jones Day’s San Francisco office. Chevron disclosed in June while correcting written answers to plaintiffs’ years-old questions that nondefendant Chevron USA Inc., rather than named defendant Chevron Overseas Petroleum Inc., had oversight of the Nigerian subsidiary. Mittelstaedt insisted that the confusing corporate names were not “created for the purpose of the lawsuit” or “to hide the ball.” He said that Chevron gained “no advantage” from it. Plaintiffs’ attorney Theresa Traber expressed amazement at this argument and accused him of “again attempting to mislead the court.” Traber accused the company of fraudulent concealment of this critical detail and asked that Illston bar them-through judicial and equitable estoppel-from claiming a missing link in the critical corporate chain of control. Surviving villagers accuse the company of hiring Nigerian military and police forces to accompany Chevron employees, using company helicopters on attacks against their villages in 1998 and burning two villages to the ground. The suit also alleges that the company worked with the police on the military-style assault to intimidate others who might protest Chevron’s activities. The suit claims that military security forces killed or wounded unarmed protesters who sailed to an offshore platform and that at least one protester was tortured while being held in a cargo container on the platform. The suit seeks damages for alleged violation of U.S. anti-torture law, summary executions, arson and extortion under the racketeering law, and seeks damages under the 200-year-old Alien Tort Claims Act, which allows foreigners to recover for overseas injuries in U.S. courts. The suit is one of several around the nation in which human rights groups are seeking to hold American corporations liable for alleged violations of human rights abroad by their overseas subsidiaries. The Bowoto case is closer to trial and has been more successful in overcoming legal obstacles than others so far. In briefs, Mittelstaedt called the plaintiffs’ cry of foul “overwrought rhetoric.” He maintained that as early as 2002, plaintiffs knew that Chevron USA Inc. was the service company for Chevron Nigeria and not Chevron Overseas Petroleum Inc. He wrote that by asserting fraudulent concealment, the plaintiffs’ lawyers have waived attorney-client privilege and work-product privilege as to their thinking of whether to sue Chevron USA. Illston’s 2004 decision, Bowoto v. Chevron Texaco Corp., 312 F. Supp. 2d 1229, was a turning point in the case. It said that the parent company should face trial over its potential liability, stating, “the revolving door of managers and directors at the highest levels between [Chevron Nigeria] and defendants is dramatic evidence of the close relationship that was shared and can be viewed as further evidence of an agency relationship.” Traber said that throughout the litigation, Chevron has said that the Nigerian company was owned by U.S.-based COPI, and that Chevron USA never had ownership interest-until it made the 11th-hour change. Now with a jury trial looming in October “we are in the dark about the entire issue,” Traber said. It means cross-examining witnesses on the fly at trial, she said. Chevron should not benefit from that, she said.

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