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Doc Film Helped Chevron Subpoena Plaintiffs’ US Legal Files in $113B Ecuador Enviro Case

Posted Dec 23, 2010 4:09 PM CDT
By Martha Neil

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A documentary film encouraged by the lead plaintiff's lawyer in a $113 billion case concerning alleged damage to a South American rain forest apparently didn't achieve the result attorney Steve Donziger anticipated.

Lawyers for Chevron Corp. used the documentary, Crude, to persuade a federal judge in New York both to let the oil company see the outtakes that weren't included in the film and to subpoena Donziger for a deposition, despite his claim of attorney-client privilege, because he'd acted as a "political operative."

Meanwhile, a venerable Philadelphia firm that had helped Donziger fund the case can have its files discovered and a name partner can be subpoenaed, a federal judge in the Eastern District of Pennsylvania held this week. That's because Joseph Kohn of Kohn Swift & Graf allowed the documentary crew to film legal strategy sessions, reports Courthouse News Service.

And these are only two of the federal jurisdictions in which the defendant oil company is reportedly seeking discovery, concerning alleged ethical improprieties and even fraud, in more than a dozen motions throughout the country.

However, as shown by the documentary, the plaintiffs also contend that Chevron has acted improperly in the case. The oil company became a defendant by merging with Texaco, which originally oversaw the complained-of rain forest operations.

A lengthy article on the front page of the Philadelphia Inquirer today, as well as a Wall Street Journal (sub. req.) feature last week detail the convoluted, decades-old Ecuador litigation.

Both serve as a cautionary tale for other complex-case litigators, detailing a snowballing situation that could readily serve as the fact pattern for a law school exam question.

In an Aug. 9, 2009 letter to the plaintiffs' team, for instance, Kohn says the case is probably lost due to its "outrageous" conduct. "And, of course," he adds, "we find out about it in part as a result of the utter stupidity, arrogance, and conceit of inviting a film to be made documenting this improper conduct," the Inquirer reports.

In one outtake not included in Crude, a dinner companion tells Donziger that any judge who decided the Ecuador case in favor of the defendant might be killed, the newspaper recounts. In response, Donziger says the judge "might not be killed, but he'll think, he thinks he will be, which is just as good."

Kohn had a falling-out with Donziger over what his counsel describes as questionable conduct by Donziger and withdrew from the litigation in 2009, according to the newspapers.

A spokeswoman for the plaintiffs, Karen Hinton, says Donziger's criticized filmed remarks, albeit injudicious, were merely jokes and says Chevron has taken them out of context. And all of this, she says, has taken attention away from the real issue--the environmental damage to once-pristine Amazon areas.

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