By Ginny LaRoe, The Recorder
30 September 2011
The long-running legal battle between Ecuadoreans and Chevron waged in more than a dozen courts in this country and abroad has been full of ugly lawyer fights and allegations of dirty tricks. Now a piece of the multibillion dollar rainforest destruction suit is being fought in Bay Area courts.
And it isn't pretty.
Local lawyers threw down this past week with a New York attorney for the Ecuadorean plaintiffs in a discovery dispute before U.S. Magistrate Judge Nathanael Cousins. At stake is an $18 billion judgment against Chevron rendered in February by an Ecuador court. Chevron has attacked the ruling as tainted by corruption, a charge the plaintiffs hotly contest.
A lawyer for the Ecuadorean plaintiffs is all but accusing Bay Area lawyers of working to cover up Chevron's alleged role in a plot to capture footage of the Ecuadorean judge that, Chevron claims, proves the corruption. Opposing counsel called that a "wacked-out conspiracy theory."
The discovery fight features the stuff of spy novels — a drug smuggler, equipped with a "pen" camera, meeting with a foreign judge to discuss a case and later disappearing from California only to turn up in a South American fishing village — a chain of events the plaintiffs claim may have been orchestrated by Chevron and its lawyers.
"It's a mess," plaintiffs' lawyer James Tyrrell Jr., managing partner of the New York and New Jersey offices of Patton Boggs, told Cousins at the outset of a 45-minute argument.
Tyrrell is demanding records relating to Diego Borja, a former Chevron private contractor alleged to have directed the entrapment plot, and records from Mason Investigative Group, a Bay Area private investigation firm brought in by Borja's lawyers at Arguedas, Cassman & Headley.
The Mason investigators are "into this up to their ever-lovin' eyeballs," Tyrrell told Cousins, asserting that their lawyer, Duane Morris partner George Niespolo, is improperly asserting attorney-client and work-product privileges to withhold some 700 documents.
"I'm passionate," Niespolo told Cousins, but "this is personal for him." With red face and booming voice, Niespolo continued: "He doesn't know me. He's not from here.
"It makes me angry to listen to someone like him to come in here and impugn my integrity."
Borja's lawyer, Theodore Cassman, didn't break from his characteristic jovial demeanor but also didn't mince words. Tyrrell made "ridiculously false" allegations and lacks even a "scintilla of evidence" that Chevron is controlling Borja or other figures. Cassman reframed the argument — saying what's at stake are the principles of work-product privilege, not the issue of an equal playing field, as Tyrrell had asserted.
Watching the drama unfold from the gallery was Steven Donziger, the New York plaintiff lawyer who led the case until finding himself the target of a racketeering suit filed by Chevron's lawyers.
Cousins, who was assigned the discovery matter by U.S. District Judge Charles Breyer, said he would rule "shortly."
Tyrrell needs the Northern District court to move fast since an appeal is under way in Ecuador, and Chevron is attacking the judgment in New York federal court.
"I need these documents," Tyrrell said at the hearing. "I need to prove my case."