Chevron Shield Blocks Adversaries in Ecuador

     (CN) – Chevron did not waive privilege by distributing a discovery order connected to protracted litigation over multibillion environmental claims in Ecuador, a federal judge ruled.
     On Aug. 11, Courthouse News published a story about the Ecuadorean government’s efforts to subpoena and depose two men who secretly taped Judge Juan Núñez years earlier while the jurist presided over the environmental lawsuit against Chevron in the provincial court of Lago Agrio, Ecuador.
     One of the cameramen was Diego Borja, a Chevron contractor; the other was Wayne Hansen, a convicted drug felon with whom Chevron denies having any relationship.
     Borja and Hansen claimed to catch Núñez accepting bribes.
     Chevron used those videos to tar the country’s courts, which eventually found the oil giant guilty to the tune of $18.2 billion.
     Though The New York Times reported that the tapes showed no bribes, Núñez stepped down from the case to avoid the appearance of impropriety.
     Ecuador sought information about the cameramen to vindicate its judiciary, and has obtained some provocative emails that are reproduced in a now-controversial Aug. 5 order from San Francisco.
     Chevron sent out the public document in a press release to draw attention to the fact that a judge said Ecuador failed to meet its burden under the crime-fraud exception.
     Sometime after, however, the court sealed the ruling to protect Chevron and Borja.
     Despite Chevron’s statement that the ruling was public before it was sealed, Ecuador cried foul and filed motions to sanction Chevron for the disclosure. It asked the court to waive privilege for all of the documents that have remained confidential because of this shield.
     “The facts surrounding Chevron’s back-room orchestration of a judicial entrapment scheme are monumentally important,” attorney James Tyrrell, Jr. wrote in a 15-page brief. “But under this court’s protective order, while Chevron picks and chooses at will the sealed documents it shares with the media, highly relevant discovery materials cannot be shared with anyone other than co-counsel and experts, while other documents (such as Borja’s résumé) are completely shrouded under a protective order cloak and must be filed under seal.”     
     A spokeswoman for the Ecuadoreans did not accept Chevron’s explanation that the document was originally available to the public. She maintained that order was under seal.
     Meanwhile a lawyer for one of the cameramen balked at disclosure of what should have been a sealed order.
     Chevron stuck to its story, telling the judge in two letters that it released the order when it was public.
     “Neither Chevron nor its counsel intended to disseminate non-public materials, nor would Chevron or its counsel do so knowingly or intentionally,” Chevron attorney Theodore J. Boutrous wrote. “And, of course, neither Chevron nor its counsel intended to waive the work product protection that they had just vigorously argued to preserve.”
     On Thursday, U.S. District Judge Charles Breyer told the parties that Chevron should not be punished for the court’s filing error.
     “The court erred by initially filing the August 5, 2011 order on the public docket,” Breyer wrote. “The disclosure of the order, and the emails discussed within it, is therefore neither party’s fault, and does not constitute a waiver of any privilege.”

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