Amazon Defense Coalition
7 October 2010 - FOR IMMEDIATE RELEASE
Contact: Karen Hinton at +1.703.798.3109
Federal courts are beginning to raise questions regarding Chevron's efforts to use the U.S. legal system in service of an effort by the oil giant to derail a potential multi-billion dollar environmental lawsuit in Ecuador, according to a review of several U.S. federal court decisions.
In court orders stretching across various federal jurisdictions, federal judges and magistrates have suggested that Chevron's litigation tactics are "spiraling out of control;" that the company is "making a mountain out of molehill;" that the company is trying to "use" federal courts to retry its case in Ecuador; and, that Chevron wanted the case tried in Ecuador when the government was "in the pockets of oil companies" but now wants it back in the U.S. because it no longer can exercise political influence over Ecuador's courts.
Chevron has filed discovery lawsuits against 23 persons in the United States (including two lawyers) associated with the case in Ecuador. Most of the discovery sought by Chevron concerns materials prepared by consulting experts and provided to a court-appointed expert, Richard Cabrera who adopted some of the materials pursuant to various court orders in Ecuador. Chevron chose to boycott working with Cabrera but did provide materials to a variety of other experts.
Prof. Cabrera's report eventually found that the evidence presented at court overwhelmingly indicates that Chevron was responsible for the contamination of a swath of rainforest the size of Rhode Island by illegally dumping oil-related waste from 1964-1990. Cabrera estimated that the company may face as much a potential liability of as much as $27.3 billion to remediate the damage.
The lawsuit against Chevron was originally filed in the U.S. in 1993. In 2002, after Chevron filed 14 sworn affidavits praising Ecuador's judiciary as unbiased and fair, the case was dismissed out of U.S. court and was transferred to Ecuador, where it was refilled in 2003.
Plaintiffs have charged Chevron's discovery efforts are a misrepresentation of the trial record in Ecuador and nothing more than a sideshow designed to distract attention from the voluminous scientific evidence before the Ecuador court that points to its culpability.
A summary of the some of the questions raised by some of the judicial officers overseeing Chevron's U.S. lawsuits:
- Judge Fortunato P. Benevides, a member of the Fifth U.S. Circuit Court of Appeals, said that Chevron used "hyperbole" and was "throw(ing) these words like massive fraud" in its allegations that the plaintiffs "colluded" with a court-appointed expert.
- Judge Benevides said that "in the system that they (Ecuadorians) have, they have an inquisitorial system, and they gather evidence. They – they gather evidence from different folks. I mean, that's just the way they operate, and then they – then they make their report, and the Court either adopts it or doesn't. It's not – it's not the – it's not the system—oral system that we have in the United States. I mean, the fact that things were turned over to [a court expert] doesn't bother me at all. I think the question is was he supposed to report the documents...that he referred to...because he's supposed to be independent, and – and – and you're not entitled – you're not entitled...not to have him talk to people he wants to or gather information that you don't want him to get, but you are en-, it sounds like, you're entitled to know, under the Ecuadorian order, what he referred to. .... That's all you've got. I mean, you can throw these words about massive fraud and, uh, all this hyperbole, but that's – that's what this case is about..... you're making a mountain out of a molehill. This is a very simple case. Either Cabrera's being honest when he doesn't provide (consultant) materials as a source for his report, or he's not being honest about that, and that's just – that's – that's it."
- Judge Benevides emphasized that the company's stated purpose of its discovery lawsuits has been met and is before the Ecuadorian court to determine any misconduct.
- Judge Benevides said: "Well, if you've already shown that – wait a minute, if you've already shown that, why – and – and if what you're saying is true, then you've already got what you want to get to the Ecuadorian Court; that there's a, uh, that there's already been, uh, a fraud perpetrated on the Ecuadorian Court, haven't you, I mean, uh, how can you say that you've already got Cabrera's line? That's what you're trying to – to – to develop by this evidence, right?.....And if you've already proved it, you don't need it, do you?"
- Magistrate Judge Joe B. Brown said that what should be a limited proceeding is quickly "spiraling out of control." Judge Brown ruled that the oil giant cannot "use" the U.S. federal court "to try a dispute that is pending in a foreign proceeding."
- Judge Brown wrote that the discovery proceeding initiated by Chevron "is not an opportunity to put on a full trial" and ruled that "Chevron is not entitled to pierce the work-product protection...because it has not shown the 'exceptional circumstances' required" by the Federal Rules of Civil Procedure.
- Judge Brown noted "The case against Chevron is being heard in Ecuador at the request of the company after 30,000 Ecuadorians originally filed suit in U.S. federal court in 1993."Chevron had the opportunity to litigate this matter in the United States and strongly opposed jurisdiction in favor of litigating in the Ecuadorian courts. While fraud on any court is a serious accusation that must be investigated, it is not within the power of this court to do so, any more than a court in Ecuador should be used to investigate fraud on this court."
- In an appeal to the U.S. Court of Appeals for the Second Circuit, Judge Gerard E. Lynch referenced Chevron's allegations that Ecuador's judiciary is unfair or biased, saying "Well yes, you you...like the Ecuadorian Court when they were in the pockets of the oil companies and you don't like them now that they're in the pocket of a populist regime that doesn't like your oil companies."
- U.S. District Judge Marcia Crone asked a Chevron lawyer about the company's effort to have the case transferred to Ecuador: "Weren't you trying to circumvent the procedures of the Ecuadorian Court?....You're not getting what you want there, so now you come to the United States and – where there's more liberal discovery allowed perhaps than in Ecuador, and I – and I think that you, in the first place got a forum non conveniens dismissal from – in the United States in favor of having procedures in Ecuador, and now maybe this is kind of what you bargained for."