Judge Faces Wave of Ecuadorean Discontent

     MANHATTAN (CN) – Indigenous Ecuadoreans defending an $18 billion foreign judgment against Chevron have renewed their protests against the federal judge tasked with sorting out the dispute.

     A volley of documents filed in the 2nd Circuit on Wednesday and Thursday seek to boot U.S. District Judge Lewis Kaplan from the case and overturn several of his rulings that favored Chevron.
     Since Chevron filed its first discovery motion in the Southern District of New York in spring 2010, Kaplan has been rather consistent in his castigation of the Ecuadoreans’ case.
     More recently, Chevron has asked Kaplan to force the Ecuadoreans to turn over hundreds of documents from six federal districts, a maneuver the Ecuadoreans describe as a “carpet-bombing” discovery request intended to frustrate their appeal efforts.
     “They’re attempting to burn up the limited resources that we have on the case,” the Ecuadoreans’ attorney James Tyrrell Jr. of Patton Boggs told Courthouse News in a phone interview.
     Chevron spokesman Kent Robertson countered in an interview that “someone’s spin machine is in overdrive,” explaining that Chevron has served about 45 requests, a number he says is dwarfed by the roughly 90 discovery requests demanded by attorney Steven Donziger, a man Chevron has accused of orchestrating an extortionate scheme and fraud on the Ecuadorean courts.
     “Our discovery requests are very targeted to proving the judgment the plaintiffs obtained was procured by fraud,” Robertson said in an email.
     The Ecuadoreans say Kaplan will likely grant Chevron’s these “vexatious” discovery requests, just as he claimed jurisdiction over an environmental case fought for nearly a decade in a court in Lago Agrio, Ecuador, where dozens of plaintiffs say Chevron’s predecessor Texaco devastated rainforest lands home to 30,000 indigenous people.
     Or, the Ecuadoreans say, just as Kaplan ordered Donziger to turn over his entire case file to Chevron so the oil giant could file a lawsuit alleging violations of federal anti-racketeering law. On the basis of this lawsuit, Kaplan blocked the looming award with a temporary restraining order, preliminary injunction and an early trial to declare it unenforceable.
     The Ecuadoreans asked the 2nd Circuit on Wednesday to overturn each of the aforementioned rulings and asked to stay the “carpet bombing” discovery strategy.
     “Chevron propounded, initially, 10 non-party subpoenas comprising 293 pages and 292 document requests under the issuing authority of 6 Federal judicial districts; 48 pages of Interrogatories with 32 requests; 8 Requests for Admission; and 7 Deposition Notices,” according to one memo authored by attorney Julio Gomez.
     Such requests contradict promises that Chevron would need “little or no discovery” to prepare for trial, Gomez noted, purportedly quoting Chevron attorney Randy Mastro from late March.
     Tyrrell, the Patton Boggs lawyer who also represents the Ecuadoreans, blasted Chevron’s “harassment” in an interview with Courthouse News, adding that the oil company has gone so far as to request documents that a different appeals court refused to grant last week.
     On May 25, the 3rd Circuit reversed an order granting Chevron discovery against Philadelphia-based lawyer Joseph Kohn, yet another lawyer for the Ecuadoreans.
     Though unsuccessful in Philadelphia, Tyrrell said Chevron served the same subpoena in New York, hoping for a more favorable outcome.
     “I’ve never seen such a bold move in all my years of practice,” said Tyrrell, who has defended New York City in World Trade Center litigation and Monsanto in Agent Orange claims. “They issue a subpoena out of Judge Kaplan’s court because Judge Kaplan doesn’t deny anything, and they basically act like the 3rd Circuit doesn’t exist.”
     After receiving Chevron’s request, Kaplan gave the attorneys for Chevron and the Ecuadoreans two hours’ notice for a hearing on Chevron’s proposed discovery, but neither party could make it, Tyrrell said.
     Though Carlos Zelaya, an attorney for the Ecuadoreans based in New Orleans, proposed a telephone conference, Kaplan refused and said he would rule without oral arguments, Tyrrell added.
     The Ecuadoreans and Donziger have both asked Kaplan to step down because of alleged bias, but Kaplan denied both petitions.
     In one recusal motion, the Ecuadoreans accused Kaplan of delaying decisions to shield his rulings from appellate review.
     Tyrrell said he fears Kaplan will not rule on Chevron’s discovery demands until after the next 2nd Circuit hearing.
     “He can put his decision on the slow boat to China, while we die in the minefields of discovery,” Tyrrell said.
     In an attempt to stave off that fate, Washington-based Patton Boggs launched a two-pronged attack against Kaplan in the 2nd Circuit. One, a petition for a writ of mandamus directing his recusal, pulls no punches.
     “What is transpiring in Judge Kaplan’s court threatens the credibility of the United States federal justice system both at home and abroad; it vindicates the cynical view that the American courts guarantee due process only for those with the requisite power and influence to make them ‘matter,'” the petition states.
     The other, a request to reassign the case to another judge, is more diplomatic and couched in other appeals. Tyrrell explained this gives the circuit court the option to reassign the case without impugning an esteemed judge.
     Robertson, the Chevron spokesman, countered that the 2nd Circuit has upheld several of Kaplan’s rulings and previously praised his stewardship.
     Last time it met, however, a three-judge panel struck down some of the language from Kaplan’s injunction and allowed the Ecuadoreans to challenge his rulings in front of a merits panel.
     The Ecuadoreans will brief that panel on July 5.

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