By Gavin Broady, Law360
4 April 2013
San Francisco, CA – A California federal judge on Wednesday rejected Chevron Corp.'s bid to compel advocacy group Amazon Watch to turn over thousands of documents in connection with the company's New York racketeering suit over a $19.2 billion Ecuadorean pollution judgment.
U.S. Magistrate Judge Nathanael Cousins quashed subpoenas through which Chevron sought to compel documents and member depositions from Amazon Watch, expressing caution over the potential First Amendment implications of granting broad discovery requests against an advocacy organization, according to Amazon Watch operations director Paul Paz y Mino.
Chevron has argued that Amazon Watch is a "nonparty co-conspirator" in its suit against attorney Steven Donziger and other representatives of the indigenous Ecuadorean plaintiffs known as the Lago Agrio plaintiffs, which the company has accused of violating the Racketeer Influenced and Corrupt Organizations Act by leading a global extortion campaign in connection with the judgment.
"Chevron was trying to force us to turn over essentially every document in our decadelong cleanup campaign, which would have been an incredible burden for us as a small NGO with a staff of about a dozen," Paz y Mino told Law360 Thursday. "If corporations are able to force groups like us to turn over our documents when we're not even a party to a lawsuit, it would set a terrible precedent for free speech and advocacy in our country."
The disputed judgment was handed down by an Ecuadorean court over pollution in the Amazon rain forest allegedly caused by Texaco Inc., which merged with Chevron in 2001. The Ecuadoreans have sought to enforce the judgment by seeking asset freezes in Argentina, Brazil and Canada, efforts they say the district court is wrongfully attempting to hinder.
In a February motion to enforce its document subpoena, Chevron argued that the Donziger suit defendants had paid Amazon Watch directly for "propaganda" efforts as part of their scheme to extort the settlement, and that Donziger and his co-conspirators "directed the scope, substance, timing and tone" of numerous Amazon Watch publications.
Because these actions were taken in connection with a purported fraud, Amazon Watch should not have First Amendment protection, Chevron argued.
Amazon Watch shot back that the subpoenas were "overly broad, duplicative and unduly burdensome," saying the fact that it had on occasion coordinated its message with the Donziger defendants did not remove its publications from the realm of protected free speech.
"We respectfully disagree with the ruling from the bench," Chevron spokesperson Kent Robinson told Law360 Thursday. "While Amazon Watch and other organizations have a First Amendment right to participate in environmental advocacy, this does not provide blanket protection for intentional or unwitting participation in conspiracies to defraud."
Paz y Mino estimated that the number of responsive documents sought by Chevron exceeded 100,000 files and compliance with the order would have effectively shut the organization down, which he suggested may have been Chevron's intent.
U.S. District Court Judge Lewis Kaplan has set a May 31 deadline for discovery in the New York RICO suit.
Proceedings in that dispute have grown increasingly heated as the Oct. 15, 2013, trial date for the suit looms, with the Ecuadorean plaintiffs moving earlier this month to boot Judge Kaplan from the case over allegations that he has conducted himself as the "transnational arbiter" of the disputed judgment in defiance of rulings by the Second Circuit.
Amazon Watch is represented by Michelle Harrison, Richard Lawrence Herz, Marissa Vahlsing and Marco Simons of EarthRights International.
Chevron is represented by Ethan D. Dettmer, Aimee Marie Halbert and Enrique Antonio Monagas of Gibson Dunn & Crutcher LLP.
The case is Chevron Corp. v. Donziger, case number 3:13-mc-80038, in the U.S. District Court for the Northern District of California.