Chevron wants to harass and intimidate critics of a massive oil contamination in Ecuador with intrusive subpoenas of more than 70 email accounts, privacy advocates say
By Adam Klasfeld, Courthouse News Service
23 October 2012
Nearly two decades after filing their lawsuit, Ecuadorean aborigines and farmers won a $19 billion judgment against Chevron in the Lago Agrio provincial court for environmental and health damages in a region home to 30,000 people.
Rebuffing collection attempts, Chevron sued those opponents in Manhattan where it is slammed the verdict as an extortionate fraud. Discovery for that case has spiraled into many jurisdictions, including the Northern District of California, home to Silicon Valley-based companies Yahoo and Google.
Chevron hit those Internet companies with subpoenas asking for information on dozens of email accounts, in a maneuver that troubled the digital civil liberties watchdogs at the Electronic Frontier Foundation, or EFF.
Joining up with Earthrights International, the EFF submitted a 34-page amicus, or friend-of-the-court, brief arguing that the subpoenas would intrude on the privacy – and possibly safety – of the John Doe recipients.
"Chevron seeks identities and nine years of information about the Does' use of their email accounts – including IP addresses, which correlate to specific geographic locations, and the date and time of each log-in," the EFF wrote. "This information would allow Chevron to create a comprehensive and detailed map of each person's movements over a nine-year period. This information would also allow Chevron a virtual itinerary of who each individual has met with, what buildings they have worked out of, what organizations they have worked with, and other potentially sensitive information implicating associational freedoms, which are protected by the First Amendment. In the aggregate, such information could be incredibly revealing-resulting in not only a violation of privacy, but for some, a fear for their personal safety."
Chevron's spokesman Justin Higgs says that the subpoenas seek nothing more than the type of information sought by Steven Donziger, one of the lead attorneys for the Ecuadoreans.
But Karen Hinton, a spokeswoman for the Ecuadoreans, says Donziger was simply seeking his own information.
When asked about this discrepancy, Higgs responded: "Donziger asked for the same information we are asking for about eight accounts that he claimed to own, including accounts at both Google and Yahoo. We are asking for updated information about four of those accounts in the subpoenas."
Initially, Donziger's lawyer John Keker claimed in a motion to quash the subpoenas that Chevron was also seeking nine years of emails from each account.
Higgs responded: "We have made it absolutely clear, repeatedly, to the email service providers and to the [Ecuadoreans] that we are not seeking email content, and that we are only seeking user account information and IP logs ."
Apparently conceding this point, the EFF says the distinction does not allay their privacy concerns.
"Even as verbally clarified by Chevron, the data disclosed here would not only constitute an invasion of the Does' personal privacy, but also include a tremendous amount of information wholly irrelevant to Chevron's claims and defenses, which is beyond the scope of reasonable or fair discovery," the EFF wrote.
Chevron's discovery request could also chill press coverage of the case, the brief argues.
Chevron served Kevin Jon Heller, an Australian law professor and legal blogger, with a similar subpoena.
The company withdrew the request after the American Civil Liberties Union took up Heller's case, the brief states.
The EFF says his subpoena remains an example of the "staggering overbreadth of Chevron's demand."
"A number of the Does are bloggers and/or journalists, and have been published in many well-known and respected newspapers and other media sources," the brief states.
Quashing the subpoena is "important because of the reasonable concern that the real purpose of these subpoenas is to harass and intimidate the activists, interns, young lawyers, volunteers and journalists, both in the United States and around the world, who have shown some sympathy for or supported the Ecuadoran plaintiffs who sought judicial recourse against Chevron," the brief concludes. "Regardless of whether those fears are well-founded, the court should not permit Chevron's unnecessary and unwarranted fishing expedition into these individuals' day-to-day activities without a serious and well-documented showing that each of these individuals was in fact part of the conspiracy it alleges."