In Federal Appeal, Donziger Seeks Reversal of Chevron's Latest Subpoena "Assault" on Indigenous Peoples
Facing Courtroom Setbacks, Chevron Trying to Seize Computer and Cell Phone of Its Adversary While Targeting Numerous Individuals and Banks
NEW YORK, NY - Human rights advocate Steven Donziger this week asked a federal appellate court to reverse the latest attempt by Chevron to try to attack Ecuadorian villagers who are enforcing their landmark $12 billion pollution judgment by issuing a slew of subpoenas to U.S. supporters of those who held the oil giant accountable for dumping billions of gallons of toxic waste onto their traditional lands.
Chevron’s “subpoena assault” – authorized by controversial New York judge Lewis A. Kaplan -- violates the Constitution and the appellate court’s own prior rulings and also threatens the Free Speech rights of all citizens, said Donziger in his legal brief. “This is a critically important Free Speech issue that affects not only my own rights and those of my clients in Ecuador, but the rights of every advocate in the United States,” said Donziger. “I implore the federal court to give this appeal the serious consideration that it deserves.”
The appellate filing, made before the U.S. Court of Appeals for the Second Circuit in New York, seeks to reverse an order by Kaplan allowing Chevron to seek documents from numerous individuals and banks that Donziger says is little more than an attempt by the company to harass supporters of the successful lawsuit. Chevron’s targets include six funders of the case, Donziger himself, his wife and brother-in-law, two lawyers who represented Donziger defending SLAPP-style actions brought by the company, a shareholder advocate who has openly challenged Chevron management, a private company that posts press releases, a public relations advisor who formerly was the spokesperson for New York City Mayor Bill DeBlasio, and several banks.
Donziger also said that Chevron has used Kaplan’s orders to try to seize his personal computer and cell phone, all of his emails, and evidence of any communication he has he has had about the litigation with any person in the world for the last quarter-century. The company also secured from Kaplan what Donziger says is an illegal $813,000 costs order against him as part of a scheme to force him into personal bankruptcy. Donziger, who works from his kitchen table in a two-bedroom apartment, said he has refused to comply with most of Chevron’s requests pending resolution of his appeal.
Chevron’s goal, Donziger said, is to “exact revenge” for the fact he helped his clients defeat the oil giant in court and also to intimidate other lawyers and funders such that a judgment enforcement action in Canada is dropped. “Chevron is trying to win by might what it knows it is not entitled to by merit,” Donziger wrote in his brief, available here. “This assault on the First Amendment under the guise of document discovery is the latest chapter of Chevron’s long-running demonization and intimidation campaign,” he added.
The subpoenas seek extensive privileged information to drive supporters away from the affected communities, said Patricio Salazar, the lawyer for the Ecuadorians. They come at a time the Ecuadorians have made tremendous progress in Canada – the country’s Supreme Court recently issued a unanimous decision in their favor – as they seek a seizure of Chevron assets, which total an estimated $15 billion in the country. (See here for court decisions that favor the Ecuadorians in Canada.)
Chevron has spent an estimated $2 billion on 60 law firms and 2,000 legal personnel to defend against the Ecuadorians, who live in the rainforest and suffer grievous impacts from cancer and other oil-related diseases stemming from oil pollution. Four layers of courts in Ecuador, including the country’s Constitutional Court in a ruling issued in July, found Chevron had systematically dumped billions of gallons of toxic waste into the Amazon, decimating Indigenous groups and causing an outbreak of cancer that has killed or threatens to kill thousands of people. Several community leaders of the campaign against Chevron from the affected area, including the legendary nurse Rosa Moreno, have died of cancer in recent years.
The fact its massive expenditures on law firms have not ended the case infuriates Chevron and has prompted the latest round of attacks, said Salazar.
“For Chevron, these subpoenas are about creating hassle, expense, and reputational damage to those targeted which are all the traditional hallmarks of an illegal SLAPP lawsuit designed to silence advocacy,” said Salazar. “The Chevron strategy has everything to do with the fact the Ecuadorians continue to gain strength in public opinion throughout the world despite Judge Kaplan’s attempts to shut down the case. The New York appellate court must face the reality that Chevron's lawyers and Judge Kaplan in the eyes of our country look like arrogant and imperialistic people with racist attitudes. That’s certainly how they appear to the affected communities in Ecuador.”
SLAPP – which stands for Strategic Lawsuit Against Public Participation – is a method whereby wealthy corporations use civil lawsuits as a weapon to silence critics rather than for a legitimate purpose. To the company, it usually does not matter whether it wins the SLAPP lawsuit as long as it exhausts its adversaries, many of whom back down rather than spend enormous sums on legal fees. A coalition of prominent civil rights and environmental groups, including the ACLU and Greenpeace, recently organized a campaign to fight the SLAPP trend, which has picked up stream with the Chevron filing in 2011 of a “racketeering” lawsuit against Donziger and 47 of his Ecuadorian clients.
Donziger said those targeted by Chevron in its latest subpoena blitz have maintained their support for the Ecuadorians other than one Boston-area business owner who racked up $170,000 in legal fees and later was forced by Chevron to sign a false affidavit. (See here for that story.) As for Chevron’s RICO case, the company’s evidence has almost completely collapsed with an admission by its star witness that company lawyers at the Gibson Dunn firm paid him $2 million and coached him for 53 days prior to testifying. The witness, Alberto Guerra, later admitted he had lied repeatedly in Kaplan’s court about a supposed bribe of the Ecuador trial judge.
“The big picture is that Chevron faces enormous risk in Canada while the factual basis for its RICO case before Judge Kaplan has collapsed,” Salazar said. “Faced with very limited options, Chevron is now rushing back to Judge Kaplan to push these scattershot subpoenas against just about anybody who has ever talked to Steven Donziger or tried to help the affected communities who have been poisoned by the company’s pollution.”
Karen Hinton, the longtime spokesperson for the Ecuadorians and also a target of a Chevron subpoena, said the company launched its latest attacks as its “environmental crimes” were being exposed in Ecuador. Hinton said she wants to be deposed by Chevron’s lawyers so she can testify under oath about the company’s misconduct and fraud. Once she made her position on the deposition clear, Chevron lawyer Andrea Neumann appeared to lose interest and postponed her deposition.
“There is no doubt Chevron committed extensive crimes in Ecuador as I’ve seen with my own eyes and has been documented by numerous independent journalists,” said Hinton. “The purpose behind the original lawsuit that held Chevron accountable was to help the Ecuadorians clean up the contamination and improve health conditions in the rainforest. Several courts found that both oil companies, Texaco and then Chevron, lied about their actions and responsibilities.
“The evidence against Texaco and Chevron has been obvious from the beginning until one New York federal judge, Lewis Kaplan, decided to try to rescue an American company from a judgment in a foreign court,” Hinton added. “Judge Kaplan refused to review the massive proof of Chevron’s contamination. His ill-advised rulings have empowered Chevron to try to smear the reputation of anyone on our team. This must stop.”
The underlying pollution judgment against Chevron has been confirmed by 17 separate appellate judges in Ecuador, where Chevron insisted the trial be held and where it accepted jurisdiction. Kaplan is the only judge to rule in Chevron’s favor, and he did so after refusing to seat a jury and excluding the voluminous scientific evidence used as a basis to find Chevron liable. For a description of the many problems with Chevron’s RICO trial and the company's fraud, see here.
Question and Answer With Steven Donziger
Steven Donziger answered a series of questions from Karen Hinton on the status of the case and the basis for his appeal.
KH: What is the basis of your appeal?
SRD: The appeal is based on our view that Judge Kaplan and Chevron are trying to silence advocates for the Ecuadorians by issuing burdensome and harassing subpoenas. We believe there is no legitimate legal basis for the subpoenas other than to silence advocacy in violation of the Constitution. This is about a greedy corporation trying to twist the law to gag its critics. That’s wrong, it’s illegal, and it threatens advocacy everywhere if Chevron gets away with it.
KH: What does Judge Kaplan have to do with it?
SRD: Rather than reject Chevron’s abuse of the discovery process, Judge Kaplan authorized Chevron to take virtually unlimited discovery of anybody associated with the case. About 20 people have received subpoenas, including my own family members, several funders, a shareholder advocate, even my wife. It’s outrageous and I’ve asked the federal appellate court to stop it on the grounds that it violates the Constitution as well as Judge Kaplan’s own prior orders.
KH: Is this part of the infamous Chevron RICO case?
SRD: It is. That case is over and Chevron’s narrative has largely fallen apart. Almost 30 appellate judges in Ecuador and Canada have either rejected or ignored Kaplan’s findings. His claim that I bribed a judge has been disproven and clearly was the result of false testimony provided by a Chevron witness paid millions of dollars by the company. Chevron and its law firm are getting increasingly desperate, and issuing subpoenas is one thing they can do to make them feel like they are being effective after spending about $2 billion of Chevron’s funds on legal fees. People should know that Chevron and its lawyers at the Gibson Dunn firm now face a criminal referral to the US Department of Justice over witness bribery used to try to frame me and others in criminal wrongdoing.
KH: What is the overall status of the litigation?
SRD: On the one hand, it is great. The Ecuadorians are making enormous progress in Canada where they are enforcing their judgment. Indigenous groups have never held a large oil company accountable to this extent and that is an accomplishment of historic proportions. I am so proud and honored to be a part of this campaign. I believe the affected communities will soon recover the modest amount of funds awarded so they can begin a clean-up of what is clearly the worst oil-related disaster on the planet.
KH: What’s the problem, if any?
SRD: The problem is that the case is 25 years old with no recovery yet and some judges just seem scared of Chevron and its army of lawyers. Largely because of Chevron’s forum shopping and obstructionism, the affected communities have yet to begin their clean-up. In the meantime, many people are dying of cancer and other oil-related diseases while the pristine ecosystem is poisoned. That’s a tragedy.
KH: When will the enforcement action in Canada be resolved?
SRD: We hope it will be resolved when we get to trial in Canada and Chevron is forced to put up its corrupt witness Alberto Guerra for cross-examination. That’s when the company’s fake narrative will fall apart in public. So we are looking forward to that playing out in the coming months. In the meantime, Chevron CEO Michael Wirth should follow the advice of 36 of his own shareholders and engage our side in search of a reasonable settlement. That would be the ethical thing to do at this point.