U.S. Appeals Court Orders Disclosure of Secrets in Chevron Oil Pollution CasePaul M. Barrett
One might assume that after 21 years of litigation, all the sordid details surrounding the epic Chevron oil pollution case had been made public. Not so. A three-judge federal appeals court panel in Richmond, Va., ruled unanimously on Tuesday that plaintiffs’ lawyers accused of fraud against the oil company must reveal the contents of documents that had been confidential and could hold new information about wrongdoing.
The appellate ruling constitutes the latest victory for Chevron as the company seeks to nullify a $19 billion judgment imposed against the company in 2011 by a trial court in Ecuador. The Andean nation’s supreme court has affirmed Chevron’s liability while halving the damages to a still-substantial $9.5 billion.
The plaintiffs in the case—thousands of impoverished farmers and indigenous tribe members—can’t enforce their verdict in Ecuador because Chevron has no assets there and refuses to pay up. So the plaintiffs’ legal team is seeking to enforce the judgment in Canada, Argentina, and Brazil, where the oil company has assets worth billions of dollars.
As part of its strategy to undermine the Ecuadorian judgment, Chevron points to a March 2014 ruling by a U.S. district court in New York. The federal court determined that the New York-based lead plaintiffs’ attorney, Steven Donziger, turned the legal campaign against Chevron into a racketeering scheme featuring fabricated evidence, forged scientific reports, coercion of judges, and bribery. The U.S. court ruled that Donziger and his clients couldn’t profit from their fraudulent victory.
Donziger denies wrongdoing and is appealing the decision that branded him a racketeer. In the meantime, Chevron contends that the U.S. ruling ought to bar enforcement of the Ecuadorian verdict anywhere and for all time.
Seeking yet more evidence of misconduct by Donziger’s team, Chevron has formally demanded private documents and computer drives from two of his junior lawyers, a husband-and-wife team in Maryland named Aaron and Daria Page. On Tuesday, a panel of the U.S. Court of Appeals for the Fourth Circuit, which includes Maryland, said the Pages could not invoke attorney-client privilege as a way to avoid turning over the information.
The revelation of new evidence could severely harm the plaintiffs’ position. As the appellate court noted, the Pages allegedly developed “extortion strategies meant to pressure Chevron into settling, such as instigating a bogus Securities and Exchange Commission investigation, accusing Chevron of committing genocide, and claiming that Chevron violated the Foreign Corrupt Practices Act.” The Pages also allegedly wrote legal analyses that were never filed with the Ecuadorian trial court yet somehow turned up verbatim in the 2011 multibillion-dollar judgment against Chevron. The federal court in New York concluded in its ruling in March that Donziger’s team ghostwrote substantial portions of the Ecuadorian judgment and promised an Ecuadorian judge a $500,000 bribe to put his name on it.
Asked for comment, Aaron Page said via e-mail:
“Believe it or not, even after the end of the [racketeering] case favorable to it, Chevron is still pursuing its subpoenas for access to my documents before the district court. I am complying with the court’s orders, have raised a number of privilege issues and received some degree of protection from the district court. Right now an independent expert is conducting a document review, and documents will be produced under a special evidentiary rule that prevents against further ‘subject matter’ waiver of privilege. The objections I have raised both on appeal and in the district court have nothing to do with ‘hiding’ or the substance of any particular documents, but come from my professional obligation to protect the privileges and confidences of my clients to the maximum extent possible.”
Page sent the comment via an e-mail conveyed by Chris Gowen, another lawyer on the plaintiffs’ team. Gowen formerly represented Page in the document dispute but said he no longer does so and that Page is representing himself.