Wednesday, April 30, 2014

In Long-Fought Victory for Anonymous Email Users, Chevron Agrees to Withdraw Google and Yahoo! Subpoenas

Chevron Intelligence Agency?

Reposted from EarthRights International

After more than a year and a half of litigation, Chevron has withdrawn subpoenas issued to Google and Yahoo! and agreed to end its efforts to obtain private usage and identity information associated with email accounts belonging to activists, attorneys, journalists and others who have spoken out against the company.

In September 2012, Chevron issued sweeping subpoenas to Google, Yahoo! and Microsoft in connection with its RICO lawsuit in New York against the Ecuadorian villagers and their lawyers who won a $9 billion judgment against the company in Ecuador for massive pollution in the Amazon. The subpoenas sought identity information and nearly a decade of IP login and usage information about the holders of more than 100 email accounts.

ERI, along with the Electronic Frontier Foundation (EFF), represented the owners of 37 email accounts, arguing that the subpoenas infringed their First Amendment rights to speak anonymously and associate freely and appeared to be an effort to intimidate Chevron's critics and chill future speech about the company. None of the individuals represented by ERI and EFF were defendants in the underlying RICO lawsuit.

Magistrate Judge Cousins in the Northern District of California ultimately quashed the Google and Yahoo! subpoenas for all but seven of our clients' email accounts. ERI and EFF appealed the decision on behalf of the remaining seven accounts. Recognizing the First Amendment interests at stake, the Ninth Circuit Court of Appeals ordered Yahoo! and Google not to turn over any information to Chevron about six of the seven remaining accounts until it had time to decide the appeal, but allowed Chevron to obtain limited information about the one remaining account.

In the Northern District of New York, however, Judge Kaplan—the same judge who presided over the RICO trial in the Southern District of New York, sitting by designation—refused to quash the subpoena issued to Microsoft. ERI and EFF appealed the decision, but Judge Kaplan ordered Microsoft to turn over the Hotmail account information immediately, including four accounts owned by clients of ERI and EFF, before the Second Circuit could weigh in on whether the information should have been protected from discovery.

With oral argument approaching in both appeals, Chevron agreed earlier this month to withdraw the Google and Yahoo! subpoenas and drop its pursuit of information about email accounts owned by clients of ERI and EFF. While Chevron's lawyers had already obtained account information for five of our clients' accounts, Chevron agreed that all the information it has obtained so far will be remain confidential and not made public or used in unrelated cases. Chevron did not and will not obtain any information about the owners of the other 32 email accounts represented by ERI and EFF.

The settlement and Chevron's withdrawal of the subpoenas is a victory for the individuals who have fought for more than a year and half to defend their First Amendment rights and protect their private information against Chevron's abusive discovery requests. We are proud to have been able to assist in that fight and to have ultimately succeeded in protecting the rights of more than 30 activists, lawyers, journalists and other brave individuals who stand up to corporate power and speak out against injustice around the world.

Wednesday, April 23, 2014

The Bush Doctrine Comes to Oakland Courtesy of Chevron

Reposted from Eye on the Amazon

The Bush Doctrine Comes to Oakland Courtesy of Chevron

Chevron continued its unprecedented campaign of attacking its critics last week when I was forcibly removed from a half-day conference I paid $75 to attend simply because I was affiliated with Amazon Watch. The strangest part was the excuse given for the outrageous step was that it was a preemptive act for something they feared I might do.

In a flagrant violation of my right of association, last Wednesday, the Oakland Metropolitan Chamber of Commerce (OMCC) held an "Economic Development Summit for Energy and Sustainability" sponsored by Chevron. As an Oakland-based environmental organization it would seem to follow that Amazon Watch would be a welcome participant at just such an event. However, the moment my affiliation was made known I was told "Amazon Watch is not welcome here." And security was called to remove me. Why exactly?

The Bush Doctrine Comes to Oakland Courtesy of Chevron
Of course, Amazon Watch has repeatedly spoken out against Chevron attempts to greenwash itself of its Ecuador disaster. And so apparently, when Amazon Watch tweeted that we planned to attend a "sustainability summit" to ask why Chevron was the primary sponsor (given their record) that was deemed justification to have me forcibly removed. While at the conference I spoke to only one person in attendance and when asked if I was planning to "hand out information" I answered politely: "No. I am simply here to attend the conference and listen to the presentations." So despite my assurances that I was doing nothing more than attending, somehow the conference organizers deduced that I was going to be "disruptive" and took "preemptive action".

I wonder if the OMCC thinks the national news coverage and angry calls, emails and tweets  they've received since their outrageous acts were more "disturbing" than allowing me to stand and listen at their conference.

Once ejected, I immediately called the office of Oakland's mayor Jean Quan. The mayor had been a speaker at the conference less than an hour before the incident. Her office did reach out to the OMCC on my behalf, but they were "too busy" to answer the repeated calls. Perhaps they were on the other line with Chevron at the time. Later that day the OMCC issued what the mayor's office referred to as an apology(?). It states:

"We're sorry to have asked a paying attendee to leave, and have reimbursed the cost of his ticket. Previous actions by Amazon Watch in other venues and their social-media messaging in advance of our conference raised our concern that this attendee (an employee of Amazon Watch) intended to be disruptive. We regret any misunderstanding on our part."

Of course, that was a lie. Chevron and the OMCC were determined to make sure Amazon Watch was not permitted to attend. The excuse that they feared we were going to be disruptive is unacceptable. Nor was this an isolated incident, but rather part of a growing threat to environmental advocacy for corporate accountability

Chevron is so scared of the truth that even having someone in the room who might talk about their acts is a threat. Is it any wonder they've spent hundreds of millions of dollars on greenwashing ads, fake news websites, bribes and retaliatory legal attacks?

Tuesday, April 15, 2014

The Unnecessary Truth: Reflections on What Wasn't Told in the Chevron Ecuador RICO Case

Reposted from EarthRights International

Last November, Marissa took a leave of absence from ERI to volunteer on the Chevron v. Donziger trial in support of the Ecuadorian defendants. These are her thoughts from the case.

Donald had never left Ecuador before; but he decided to come to New York to speak truth to power. When he arrived, he learned that his truth had had little place.

Lago Agrio, Ecuador: It is a Sunday afternoon in the SucumbĂ­os province in Northeastern Ecuador. Donald Moncayo navigates his way across a series of floating logs at the Aguarico 4 pit. He stops and dips his hand into a thick black pool and holds it up for us to see: black crude left by Texaco's operations.

Each year, several dozen delegations of people come down to the Oriente region of Ecuador to participate in one of Donald's "toxic tours." Learning about the history of contamination from Donald is how they bear witness to one of the greatest environmental justice battles of the past century.

I first met Donald under very different circumstances – when he traveled to New York last November to serve as a witness in the now infamous trial for the retaliatory lawsuit that Chevron brought against dozens of Ecuadorian "afectados" (affected peoples), their lawyers, and supporting scientists in an effort to collaterally attack a judgment issued against it by an Ecuadorian court for decades of deliberate contamination in the Oriente.

At the time, I had taken a leave of absence from ERI to serve as a volunteer on the trial team in support of the Ecuadorian defendants – the Lago Agrio plaintiffs (the LAPs). ERI has supported justice for the LAPs at various stages, but ERI was not directly involved in the trial, and my work there was independent of my work for ERI. For several months, I worked alongside an amazing team of young volunteer human rights lawyers, a handful of plaintiff-side trial lawyers, their family members and children who volunteered as paralegals, and law student externs. But the most meaningful work I did was alongside witnesses like Donald, who had traveled from Ecuador to tell their story.

Donald had never left Ecuador before; but he decided to come to New York and testify – to tell a courtroom full of Chevron lawyers and a federal judge about the legacy of contamination that he saw, smelled, and lived every day in the Ecuadorian Amazon. Donald came to New York thinking that he might speak truth to power. But when he arrived in New York, he learned that his truth had had little place.

In Kafka's, The Trial, there is a line that reads:

"No," said the priest, "you don't need to accept everything as true, you only have to accept it as necessary." "Depressing view," said K. "The lie made into the rule of the world."

What is necessary then - necessary for the powerful to retain power, necessary for those who run the global economy to remain in control – becomes the rule of world. Other truths, like Donald's, become unnecessary.

At issue in the trial in New York was the validity of a judgment decided by Ecuadorian courts about facts in Ecuador under Ecuadorian law. Chevron had spent the better part of a decade arguing that the facts of the case should be heard in Ecuador, and that the courts there were competent to consider the case. That is, until Chevron lost. Badly. And then Chevron came back to New York, seeking to avoid paying the hefty judgment issued against it in Ecuador. And insisted that, when considering whether or not the Ecuadorian judgment was valid, the judge should not consider any evidence whatsoever of the existence of contamination. The judge agreed.

During the trial, witnesses like Donald were told that they could not speak about the contamination of their lands and water that Chevron's predecessor, Texaco, had deliberately caused. The attorneys were not allowed to use the word "contamination" without approaching the bench, even in a case involving one of the largest environmental justice disputes in recent history.

As lawyers, we learn about basic rules of legal procedure designed specifically to prohibit the type of behavior that Chevron exhibited in this case. Concepts such as "comity," "judicial and equitable estoppel," "forum non conveniens," "freedom of speech," and "prohibitions upon paying fact-witnesses." These concepts operate to prevent a party from adopting completely opposite positions on an issue for purely strategic reasons. They operate to ensure that courts in the United States respect the sovereign decisions of foreign judiciaries. They protect the right of individuals and activists to demand justice when they are wronged. They prevent parties from purchasing fact witness testimony in order to ensure that testimony is not influenced by money.

Each of these fundamental principles was flipped on its head in deference to Chevron. The company was allowed to first argue that the case should be heard in Ecuador and then change its tune when it turns out it played its hand wrong. Rather than respecting the foreign judgment, the court subjected the Ecuadorian judge to a cross-examination "pop-quiz" about his 188-page, single-spaced ruling – all done through translation where much was lost and little more was understood.

Rather than protecting freedom of expression, we watched as Chevron was allowed to turn good-faith advocacy campaigns and litigation into "conspiracy" or "extortion" under a law that was intended to be used by the government to prosecute mobsters. The court condoned the expense of millions of dollars to issue wide-reaching third-party subpoenas against activists, lawyers, journalists and artists who did nothing more than speak out against what Chevron's predecessor did in Ecuador. The court was even willing to tolerate Chevron's practice of hiring private corporate espionage firms to spy on us and on activists and affected peoples.

And rather than considering whether testimony was improperly purchased from a fact-witness, the court credited Chevron's star witness, a man who has admitted to both giving and receiving bribes in legal cases and who Chevron will pay upwards of $300,000 by 2015 in exchange for his testimony in the case.

As a young attorney who has decided to dedicate my career to advocating on behalf of communities like those harmed by Chevron, this new upside-down world – where the necessary becomes true, where power decides truth – is a terrifying prospect.

There is much that I could say about what it was like to be a part of that trial – from the small things: the everyday discrepancies between the size of Chevron's army of lawyers versus our small team of attorneys and volunteers; or how Chevron waited until the eve of trial to drop its claims for monetary damages and thus deprived us of our right to insist upon a jury trial, after we had spent months preparing for a jury trial; or how, without a jury present, the court gave the large, comfortable jury room to the Chevron lawyers while we were left with two small rooms only large enough for three people to stand at once; to the overwhelmingly large things like the weak legal basis upon which Chevron has proceeded – without (in my opinion) any showing of such basic legal requirements as causation, injury, standing, or the ability to seek injunctive relief under a statute that many courts agree only provides for damages in civil actions.

But when Judge Kaplan's March 4, 2014 decision in the case came down, I could think only of Donald.

When Donald arrived in New York, he was told that he could not speak his truth about the massive contamination in the Ecuadorian Amazon – that is was not necessary. Instead, with the Court's approval, Chevron counsel served Donald with a subpoena while he was on the witness stand in open court requesting a mirror image copy of his hard drive and then told he would go to jail if he didn't hand over what Chevron was seeking. This was so even though the discovery period had ended months before; even though the deadline for serving subpoenas had ended nearly one year before; and even though Donald Moncayo had no lawyer and spoke no English. Donald's courage to speak the truth became just one more casualty in this upside-down world.

That night our team stayed awake well into the morning hours – trying to find Donald a lawyer. The next day, I watched as Donald got into a black car with his new lawyer, a Chevron lawyer, and a digital forensic technician hired by Chevron. Donald was gone for nearly ten hours, and when he came back, he was in tears. We sat down to write a declaration together to be read in open court the next day – to express the humiliation, invasion of privacy and loss of dignity that Donald had felt. When we tried to read the declaration in open court, we were told that Chevron would seek a bench warrant which could put Donald in jail.

Some weeks ago I was down in Lago Agrio with Donald, walking out upon the pits and wells left by Texaco (now Chevron) after their nearly 30 years of operations in the Oriente region. I watched as Donald showed me how pits that were supposedly "remediated" still contain thick dried black crude within a few feet of the soil. "It's a lie," he says as he runs the dirt through water and the water takes on the thick black sheen of crude. But a necessary lie.

During the trial, Chevron could never really deny the truth: that the contamination in the Oriente is real. This was so regardless of whether there was any merit to their RICO allegations.

One night I stayed up until 3am helping to put together a pile of evidence – Chevron's own experts' samples of the illegal presence of heavy metals that were submitted to the court in Lago Agrio. But when we went to introduce those samples at trial the following day during the cross-examination of Chevron's lead scientist, Sara McMillen, the judge stopped us. The evidence never made its way in. Donald's truth was never told.

In our own way, we each bear witness even when we act as attorneys. We watch the law decide histories, decide futures. We watch the power that the law wields and the manifold ways in which power wields the law. And a trial, an American trial – at bottom – is about story telling. But there were stories that were never told during that trial. As I sit down now to read through Judge Kaplan's 497-page decision, it is as though our side wasn't even in the room – or that we didn't need to be. The story that Donald tells to any traveler willing to go out to the Oriente region of Ecuador never had its day in that New York courtroom.


The "War Room" (Steven Donziger is third from the left)

During the closing arguments of the trial, the lawyer for the LAPs, Julio Gomez, began his comments by saying: "La sabiduria nos llega cuando ya no sirve para nada." Julio then went on to say "Perhaps not a lot of people in this Court understood what I just said. And perhaps those who didn't understand what I have just said now have, for one brief moment, a sense of what my clients felt like to participate in this. Translated into English, what I have just said means, wisdom comes to us when it is no longer useful. Those are the words of Gabriel Garcia Marquez, not mine. And he means to say, I think, wisdom often comes too late."

In this case, wisdom might have come too late for many of us – for those activists and lawyers who never envisioned a day when fundamental First Amendment activity becomes the basis for invasive subpoenas or worse – a RICO case; for Chevron who thought it could win in Ecuador, and then came running home when it didn't.

Because, as Rick Friedman, trial attorney for Steven Donziger – the New York lawyer who assisted the Ecuadorians in their legal struggle and has since been named a defendant by Chevron - told the Court in his closing arguments:

This case is bigger than just Mr. Donziger or even the 30,000 people in Ecuador who may be affected by the Court's ruling.…The legal compass that the Court has, the principles that it has to guide itself through these facts are important beyond this case. Your decision will be read by people around the world, and they will be looking for something more than whether somebody ghostwrote an expert report, or even whether somebody bribed a judge in Ecuador. They will also be looking to see if American courts will follow their own rules of law. They will also be looking to see whether there is going to be special exceptions, special rules for large American corporations.

Thousands of miles away, courts on several continents are being asked to decide what happened in the Oriente and who is to blame. They are being asked to draw lines between advocacy and extortion, between asserting rights and participating in a conspiracy. As Judge Kaplan's opinion faces scrutiny in a court of appeals and other courts consider Chevron's tactics and responsibility, I hope that wisdom will not come too late.