Ecuador Allowed to Depose Witness

By Rebecca Beyer, San Francisco Daily Journal
16 September 2010

At the Republic of Ecuador's request, a magistrate judge on Wednesday ordered a man who secretly videotaped an Ecuadorean judge in an alleged bribery scheme involving a massive environmental lawsuit against Chevron Corp. to appear for an Oct. 1 deposition.

Ecuador filed a motion to take the deposition of Diego Borja on Friday using 28 U.S.C. 1782, a statute designed to help parties obtain U.S.-based evidence for use in foreign proceedings. Besides the fact that Ecuador is host to plaintiffs' environmental claims against San Ramon-based Chevron, the company and the country are also embroiled in an international arbitration in The Hague, where the company is trying to win an order that it is not liable for any damages that may result from the environmental case.

San Francisco Magistrate Judge Edward M. Chen noted that Chevron "implicated" Mr. Borja as a witness for its claim that Ecuador's "judicial branch has conducted [the Ecuador case] in total disregard of Ecuadorian law, international standards of fairness, and Chevron's basic due process and natural justice rights." Chen was renominated earlier this week by President Barack Obama to a district judgeship in the Northern District.

In the arbitration, Chevron claims the Borja videos are proof the judge - who denied wrongdoing but recused himself - had made up his mind to rule in the plaintiffs' favor. Chen wrote in his order that according to Ecuador, "there is evidence ... suggesting that Mr. Borja was not an innocent third party who just happened to learn of the alleged bribery scheme but rather was a long-time associate of Chevron whom Chevron would pay for any favorable testimony."

An attorney for Borja, Cristina C. Arguedas, of Arguedas, Cassman & Headley in Berkeley, declined to comment. A Chevron attorney reiterated the company's position that Borja's videos have been authenticated by forensic experts. Ecuador's attorneys from Winston & Strawn declined to comment.

Barring any motion by Borja or Chevron to prevent the deposition from taking place, Chen ordered Borja to appear at Winston & Strawn's San Francisco office for a deposition on Oct. 1.