Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger

What does a large Oil Company do when it is ordered to pay a $19 Billion dollar judgment to a country and its indigenous communities that were ravaged by the drilling and leaks caused by the Oil Company?  If that Oil Company is Chevron,  it cries foul and does everything possible to avoid having to pay for its corporate sins.

“Advocates for the plaintiffs in the Chevron case say that subpoenaing the email records is the company’s latest nuclear tactic to win a lawsuit it keeps losing. Chevron was ordered to pay $9 billion in damages in 2011 and to issue a public apology. After the company refused, a judge ordered the damages to double. The Supreme Court has declined to hear Chevron’s appeal.” Mother Jones

So what does a huge corporation do when it is ordered to pay a large settlement and even the Supreme Court has refused their appeal?    They file a 207 page law suit attacking the very plaintiffs that successfully sued them.  Chevron filed a suit claiming that the plaintiffs in the aforementioned $19 Billion dollar judgment were involved in an extortion conspiracy against poor, law-abiding Chevron.  As part of that suit, Chevron has subpoenaed the email records of countless possible defendants and non-defendants.

When the parties who were served with the subpoenas motioned the Federal Court in New York to quash the broad request, Judge Lewis A. Kaplan agreed with Chevron and ordered that 9 years of metadata must be turned over to Chevron.  “When Lewis Kaplan, a federal judge in New York, granted the Microsoft subpoena last month, he ruled it didn’t violate the First Amendment because Americans weren’t among the people targeted.” Mother Jones

The Mother Jones article goes on to claim that despite Judge Kaplan’s view that Americans were not among the people targeted by the subpoena served upon Microsoft, Google and Yahoo, it seems that the facts might not support Judge Kaplan’s opinion.  “The Electronic Frontier Foundation (EFF) represents 40 of the targeted users—some of whom are members of the legal teams who represented the plaintiffs—and Nate Cardozo, an attorney for EFF, says that of the three targeted Hotmail users, at least one is American. Cardozo says that of the Yahoo and Gmail users, “many” are American.” Mother Jones

Another defendant in the alleged fraud case is a watchdog group named Amazon Watch.  Amazon Watch was able to successfully defend against a broad subpoena served upon them by Chevron.

“Chevron then sued the Ecuadoreans and their long-time legal adviser, Steven Donziger, in Manhattan federal court. Chevron accuses them of illegally pressuring the Ecuadorean court to render a judgment in their favor, making fraud and racketeering conspiracy claims under the U.S. Racketeer Influenced and Corrupt Organizations Act. Donziger and the Ecuadoreans deny they acted improperly.

On Wednesday, Dettmer argued for Chevron that Amazon Watch became part of the fraud by publicizing the Ecuadorean plaintiffs’ arguments in an effort to put enough public pressure on Chevron to force the company to settle the case.” Tribune 

Magistrate Judge Nathanael Cousins of the Northern District of California quashed the Chevron subpoena and claimed that he had to protect the defendants First Amendment rights against an over broad document request.  “Cousins said he had to weigh the free speech rights of Amazon Watch under the U.S. Constitution’s First Amendment against the possibility of Chevron uncovering evidence for its case.  “I must err on the side of protecting the First Amendment activity,” he said in his ruling in San Francisco federal court, although he left open the possibility that Chevron could seek documents under a narrower scope.”  Tribune

Notwithstanding the claims that many of the targeted users are Americans, is Judge Kaplan’s claim that the First Amendment does not protect non-citizens correct?  According to Loyola University of Los Angeles Law Professor, Karl Manheim, the First Amendment may still apply to many of the non-citizen targets.  “Manheim says the judge’s invocation of citizenship is “wrong” in this case and the users should appeal. “The US Constitution applies to all persons (even foreign nationals) within US borders and to US persons abroad. While the targets of the subpoenas are outside of US jurisdiction, the subpoena itself is operative within the US. So the Constitution should apply.” ‘ Mother Jones

I would be very interested in the opinions of the litigators that frequent Professor Turley’s blog as to their opinion on the subpoena that was upheld.  Is Prof. Mahheim correct that the First Amendment may apply to many of the targets of the subpoena?  Does anyone think that Chevron will ever pay the judgment even though the Supreme Court has already refused to hear their appeal?

Is this suit a very visible attempt to put a chill on the First Amendment rights of all the defendants named in Chevron’s fraud claim?  Do you think that the subpoena by Chevron is over broad?  The claim by Chevron is that these defendants engaged in a conspiracy to manipulate the Ecuadorian court that handed down the $19 Billion dollar judgment.  A judgment that the corporation friendly United States Supreme Court refused to review.

Therefore, would it be correct to argue that Chevron, by filing this lawsuit and serving broad metadata retrieving subpoenas upon the defendants is engaging in the very tactics that they allege the defendants in this fraud law suit engaged in?  What do you think?

I want to thank fellow Guest Bloggers Elaine Magliaro and Gene Howington for encouraging me to write about this important case.

Additional sources:  Think Progress