Lawyer Faces New Steps for Chevron's Subpoena
(CN) - A lawyer who may be withholding documents subpoenaed by Chevron, which is challenging a $113 billion environmental lawsuit in Ecuador, must turn over mirror images of his hard drive, a federal judge ordered.
Over the last few months, New York courts have repeatedly ordered Steven Donziger to comply with Chevron's subpoenas. Donziger is an American lawyer who organized the multibillion dollar litigation that Chevron claims has been tainted by judicial misconduct.
"There is reason to believe that Donziger has not complied full and promptly with the subpoenas served upon him and with this court's orders that he do so," U.S. District Judge Lewis Kaplan wrote on Jan. 21.
A spokeswoman for the Ecuadorians suing Chevron denied the allegation, stating that Donziger has fully complied by producing thousands of documents and sitting for aggressive deposition.
"There comes a time when efforts to get information crosses the line to harassment and abuse of the litigation process," spokeswoman Karen Hinton said in an e-mail.
Donziger had challenged the subpoena by claiming his files are protected by attorney-client privilege, but the courts have found that the lawyer in large part waived that privilege and must turn over a substantial amount of material responsive to the subpoeana.
A spokesman for Chevron praised Kaplan's steps to ensure that Donziger complies with the subpoena.
"The notion that Mr. Donziger has been cooperative is defied by the factual record," Chevron spokesman Kent Robertson said in an e-mail.
Kaplan noted that Donziger first turned over just 20,000 files followed by another 87,080 documents, though the lawyer had told the court that enforcing the subpoena would require him to turn over 200,000 documents.
"Despite the belated additional production, there is evidence that at least suggests that Donziger may have erased or is withholding still other responsive documents," Kaplan wrote.
The Ecuadorians' spokeswoman noted that this too was inaccurate.
"Mr. Donziger has turned over the entire case file from this 17-year litigation, including thousands of documents and emails that normally is considered privileged," Hinton said. "He also sat for 11 days of depositions and testimony during which time he has been subject to tag team questioning by four different lawyers."
Kaplan found that Donziger has not produced documents that he had sent himself or had received, as evidenced by discovery Chevron collected in separate proceedings.
Robertson, the Chevron spokesman, agreed with Kaplan, pointing out that Donziger originally left out an e-mail he received in which a member of his co-counsel admits "to their scheme to collude with a court appointee and the potential criminal implications if they got caught."
The judge wrote that Donziger has also not complied with an order to turn over the password to a Yahoo e-mail account because he claims to have either forgotten the password or possibly deleted the account's contents.
A forensic examination of the hard drive could determine whether Donziger purged the missing documents, the order states, adding that Donziger's attorneys have conceded to the court that they already have taken mirror images of their client's hard drive.
"The urgency of the application could not be greater," Kaplan wrote, noting that two lawyers representing Chevron face criminal charges in Ecuador over alleged misconduct committed while defending their client.
The hearing that will determine whether the Chevron lawyers must stand trial has been delayed twice but could be rescheduled at any point. The Ecuadorian court may also hand down a judgment on the ongoing $113 billion civil suit against the oil giant at any point, Kaplan wrote.
The environmental lawsuit in Lago Agrio, Ecuador, seeks damages for alleged contamination caused by Texaco, which Chevron later acquired, during 30 years of oil drilling in the country.
In Lago Agrio this week, lawyers for the Ecuadorians suing Chevron submitted the first part of their final written argument to the court, the plaintiffs' spokeswoman said, adding that release of the second and third parts will soon follow.
"This evidence proves overwhelmingly that Chevron is responsible for what is widely regarded as the world's worst oil-related disaster," Hinton said in a statement. "The document concludes that Chevron is responsible for ongoing contamination that is harming the environment and human health to this day, even though the company fled Ecuador in the early 1990s and stripped its assets out of the country."
Chevron had submitted its initial closing brief, asking for dismissal of the case, to the Ecuador court on Jan. 6.
Robertson said in an e-mail that Chevron's 300-page brief "highlights, among other things, the pervasive fraud that the plaintiffs' representatives have perpetrated upon Chevron and the court from the inception of this case; the lack of due process throughout this proceeding, in violation of Chevron's fundamental rights; the host of legal defects that riddle the plaintiffs' claims, rendering them not legally viable; and, ultimately, the plaintiffs' utter failure to prove their claims with sound evidence."