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Monday, May 27, 2024 | Back issues
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Ecuador Beats Privilege Claims to Access Chevron Docs

(CN) - A San Francisco federal judge has given Chevron a little less than a month to produce documents from the experts it tapped to undermine oil-contamination claims in Ecuador.

In February 2011, after an 18-year legal battle, an Ecuadorean provincial court said Chevron owed $18.2 billion to remediate damage caused by its predecessor Texaco, which drilled in the Amazon from 1964 to 1992.

While court-appointed expert Richard Cabrera testified that the drilling caused extensive health problems in the region, Chevron tried to rebut these claims with reports from its own expert, epidemiologist Michael Kelsh.

Each report faces objections, with Chevron claiming that the Ecuadoreans ghostwrote Cabrera's report, and the Ecuadoreans claiming that Chevron manipulated its soil samples.

Chevron hopes its will be more successful in international arbitration at The Hague, buoyed by recent reports of corruption by the presiding judge of the Ecuador trial, Nicolas Zambrano. Chevron has called its prosecution in Ecuador an abuse of the criminal justice system, in violation of the Bilateral Investment Treaty between the United States and Ecuador.

In June 2011, the Ecuadorean government and civil attorney general asked the Northern District of California to let them to subpoena records from Kelsh and his employer, Exponent Inc., an engineering and scientific consulting firm.

Ecuador says Kelsh's testimony and documents will help it validate its court system in arbitration.

A federal judge granted discovery in September, but Ecuador claimed that Chevron improperly withheld nearly 2,000 documents as privileged.

After reviewing approximately 1,900 documents in camera, U.S. Magistrate Judge Nathanael Cousins ruled that certain documents do not meet the criteria for work-product protection under federal law.

These documents inc lude communications between non-attorney Chevron employees and Kelsh, as well as "notes, task lists, outlines, memoranda, presentations and draft letters authorized by Kelsh and/or Exponent, non-attorney Chevron employees, and other testifying experts from the Lago Agrio litigation."

Cousins' order extends to communications between Kelsh and third-party consultants, as well as other "retained and non-retained experts, including those incorrectly labeled as 'draft reports.'"

Chevron, Kelsh and Exponent must produce the documents by April 4.

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