By Adam Klasfeld, Courthouse News Service
11 August 2011
A discovery order poses new complications for Chevron as it tries to distance itself from a convicted drug felon and to discredit an $18.2 billion judgment for massive oil contamination in the Amazon.
Chevron and its predecessor, Texaco, have denied responsibility for the environmental devastation while fighting the case on two continents for 18 years.
As a trial on the matter wound down in Ecuador two years ago, Chevron obtained secret footage of an ex-parte meeting with Judge Juan Núñez, who was presiding over the case. One of the cameramen was Diego Borja, a Chevron contractor; the other was Wayne Hansen, a convicted drug felon with whom Chevron denies having any relationship.
Borja and Hansen claimed to catch Núñez accepting bribes, and Chevron used those videos to tar the country's judiciary.
Though Núñez denied the allegations and the description of the footage, he stepped down from the case to avoid the appearance of impropriety.
Meanwhile advocates for the Ecuadoreans fired back by attacking the cameramen's credibility, citing an Associated Press investigation asserting that Hansen was busted for conspiring to traffic 275,000 pounds of marijuana in 1986.
For its part, Chevron still points to the videos as an example of corruption in the Ecuadorean judicial system.
Weeks before a replacement Ecuadorean judge ruled against Chevron, the oil giant filed a federal lawsuit in the United States, calling the impending judgment fraudulent, and initiated arbitration with the Ecuadorean government at The Hague soon after.
To defend its judiciary, Ecuador hopes to use documents that it subpoenaed from the Chevron cameraman, Borja, which are currently protected by attorney-client privilege.
A new court order from the Northern District of California details the bizarre developments surrounding Ecuador's efforts to subpoena Borja's associate, Hansen. The government of Ecuador says a process server found Hansen's house abandoned, and that Hansen apparently waltzed off to Peru while he was supposed to be in a Los Angeles hospital run by the Veterans Administration.
Ecuador relied on two cryptic emails obtained during discovery to justify its claims of misconduct.
Hansen sent the first message, bearing the subject line "dooped ?????", to a Chevron investigator weeks before the release of the Núñez videos in July 2009.
"I have been waiting for your call, you said you would call me. ... It seems that the oil co has cut a deal with Diego [Borja] and I have not heard a word from anyone but Diego. What am I to think? ...
"As I can see the window of life coming to a close I will not hold back. I need to hear from a real player with a plan for Wayne [Hansen]. If I do not hear from the oil co. by July 17, 09 I must think I have been left out and I am to do what and think what ... I have been dooped.
"I must go and see Judge Nunez to explain and ask forgiveness as I am sure my life will be in danger a care only to me." [Spelling errors and punctuation in original.]
On Dec. 3, 2010, about two months after Ecuador obtained a subpoena for Hansen, he sent a similarly enigmatic email to the investigative firm that Borja purportedly hired to locate Hansen. Mason Investigative Group boasts "discreet, effective investigations for lawyers and businesses" on its website.
"I am in a nice place where you guys from SF might like to visit or just hang it up and live like a king for 1200 a month. ... The little beach town is Moncora in northern Peru and the waves are the best I have ever seen. ... come on down. [L]ots of fish to cook up. ... Best Regards and GOD Bless you Wayne Hansen." [Ellipses and brackets in original.]
Despite the familiar tone, Eric Mason, who owns the firm, insisted that "this is the one and only contact that exists between Mr. Hansen and the Mason Group."
Skeptical, Ecuador has accused Mason and Chevron of scheming to "shuttle" Hansen out of the country, a charge both parties deny.
Hoping to prove its hunch, Ecuador submitted a motion to waive privilege for Borja's documents. It also applied to depose Mason about the correspondence.
But U.S. District Judge Charles Breyer said Ecuador has not shown enough evidence, "at this time," of a fraud or crime to waive privilege.
"These allegations are mere 'sneaking suspicions' and do not warrant the application of the crime fraud exception," Breyer wrote Friday. "The documents do not show that the Mason Investigative Group 'knew' that Hansen was leaving the country or that they themselves 'shuttled' him out of the country - or even that he in fact left the country."
A footnote explains that all that is known for certain is that the email says he was in Peru.
"For the reasons already discussed, the court finds that the crime-fraud exception does not apply at this time," Breyer wrote.
Ecuador will get a chance to depose executives and subpoena documents from Mason, the judge added.
"Applicants' interest in the circumstances of Hansen's apparent relocation, as well as his relationships, if any, with Chevron, Borja, and the Mason Investigative Group, is legitimate," the 23-page decision states. "Chevron's allegations of judicial bribery in Ecuador are monumental. Hansen is at the very center of those allegations. And the Mason Investigative Group has had some contact with Hansen."
Although Mason has denied ties to Hansen, Breyer will let Ecuador test that assertion in discovery.
"The court does not pretend that it has a perfect understanding of these emails or that it can fill in the gaps in time between them," he wrote. "But applicants have demonstrated that the Mason Investigative Group might be able to shed at least some light on Hansen's story."
Chevron said it did not oppose Mason's deposition and called Ecuador's claim for a crime-fraud waiver "baseless."
"Meanwhile, there have been six crime-fraud findings to date relating to the conduct of the plaintiffs' representatives," Chevron spokesman Kent Robertson said in an email.
A spokeswoman for the Ecuadoreans suing Chevron declined to reply, explaining that the order is now under seal.
Robertson said the order was publicly filed before it was sealed. Chevron batted away similar allegations by the Ecuadoreans of violating a protective court order last year.
The Ecuadoreans do not plan to take the matter lightly.
"Chevron's apparent disclosure of sealed court materials is clearly unlawful and potentially punishable by sanctions," spokeswoman Karen Hinton said in an email. "This is the latest sad chapter in an ongoing campaign by a big oil company to use unethical litigation tactics to cover-up its environmental crimes in Ecuador that are devastating the lives of thousands of people."