(CN) – A federal judge said Chevron can subpoena a Pennsylvania lawyer and his firm over his role in a $113 billion environmental lawsuit against the oil company in Ecuador. Meanwhile in Ecuador, one day after a judge closed the window to submit new evidence, Chevron tried to invalidate the complaint because it allegedly contains forged signatures.
Joseph Kohn of Kohn, Swift & Graf forfeited his right to attorney-client privilege by letting a documentary crew film strategy sessions, U.S. District Judge Jan DuBois found.
Kohn and another attorney, Steven Donziger, helped Ecuadorians sue Chevron over damage to their community from 30 years of drilling in the country conducted by Texaco, which became a Chevron subsidiary in 2001.
In a bid to draw international attention to the case, and mount pressure on Chevron, they also invited filmmaker Joseph Berlinger to document the rainforest devastation. Berlinger’s access gave him an intimate look at the legal strategy adopted by the plaintiffs suing Chevron in Lago Agrio, Ecuador.
New York courts granted Chevron discovery of Berlinger and Donziger as well as hundreds of hours of outtakes from the film “Crude.” Judges found that the outtakes lend credibility to Chevron’s claims that the ongoing trial in Lago Agrio is tainted by judicial misconduct.
Chevron has been seeking discovery in courts throughout the United States as two of its attorneys face criminal charges in Ecuador for their role in representing the company. They also hope the evidence will be helpful to prove their case in international arbitration proceedings against Ecuador.
“By inviting a documentary film crew to attend and record attorney meetings and other events where confidential matters were discussed, the Lago Agrio plaintiffs waived any otherwise applicable privilege or work-product protection for documents related to the Lago Agrio litigation,” DuBois wrote.
“To allow the Lago Agrio plaintiffs to waive privilege expansively for favorable documents and information as part of a calculated public relations campaign and then shield related documents behind the screen of privilege would be to permit the use of privilege and the work-product doctrine as both sword and shield, an abuse that courts have discouraged,” DuBois added.
Because Kohn waived privilege through participation in the documentary, the judge found no need to consider whether to apply the crime-fraud exception.
A spokeswoman for the Lago Agrio plaintiffs dismissed DuBois’ order as a distraction from the evidence against Chevron in Ecuador.
In Ecuador on Monday, Chevron submitted testimony from a forensic expert, purporting that complaint filed by the Ecuadorian plaintiffs contains forged signatures.
“Internationally renowned forensic document examiner Gus R. Lesnevich has determined that at least 20 of the 48 signatures on the document that purported to ratify the 2003 complaint and appoint Ecuadorian lawyer Alberto Wray as plaintiffs’ counsel were faked,” Chevron said in a statement.
The company asked the Sucumbios provincial court to grant a motion nullifying the lawsuit and launch a criminal investigation.
“The Ecuadorian authorities cannot continue to ignore the mounting evidence of fraud in the Lago Agrio litigation without violating their duties under the Ecuadorian constitution and international law,” R. Hewitt Pate, Chevron vice president and general counsel, said in a statement.
Pablo Fajardo, lead Ecuadorian lawyer for the Lago Agrio plaintiffs, rejected Chevron’s latest maneuver in a statement as “false and desperate.”
The lawyer added that the mostly illiterate indigenous plaintiffs used fingerprint signatures. Since they have seldom had the chance to practice signing their own names, Fajardo said it is no wonder that their signatures do not necessarily match.
“Chevron’s allegation is an absolute insult to indigenous culture.”
Judge Nicolas Zambrano, who has presided over the case in Ecuador, announced Friday the evidence presentation period had ended.
Chevron spokesman Kent Robertson said the company views “the forged signatures as outside of the judge’s order” because Chevron has the constitutional right to present new evidence in defense of charges it faces.
“This is a foundational flaw in the overall lawsuit that takes the entire issue back to the inception of the lawsuit,” Robertson said in an e-mail. “It also illustrates the lengths the plaintiffs’ lawyers have gone to in order to advance a meritless case.”