An Oil Company Just Spilled the First Amendment


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

23 thoughts on “An Oil Company Just Spilled the First Amendment”

  1. No argument with the post as far as the subpeonas. However, I think it is somewhat misleading as to the significant allegations made as to how the underlying judgment was procured. I won’t lay out information or links here as there is so much information which is subject to dispute or interpretation. A search for Chevron and Ecuador brings up a wealth of articles concerning the history of the litigation from a wide variety of sources.

  2. davidbluefish,
    evidently a lot of money is needed from reading the 200 plus page complaint.

  3. ‘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”

    “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.”

    How much money does one need to be paid, to work in the sewage of the sausage factories. ?

  4. The purpose of the Bill of Rights was to recognize that there were rights “given by God” that the government had to recognize. The declaration notes that “all men are created equal”. We should not accept that our government is willing to discriminate against foreigners.

  5. Thanks AY and Dredd.
    Ay, I do think this tactic will come back to bite Chevron. It will keep hundreds of attorneys employed, but that is the only good aspect of it.

  6. This is interesting…. Why was some estoppel raised? Res Judicta or collateral estoppel…. Chevon is oing what should get its attorneys and them sanctioned…..

    I think the subpoenas are overly broad and should be quashed….

    Excellent post…

  7. They have been “too big to jail” and above the law for so long it is probably inconceivable to them that anyone would dare challenge them.

  8. RWL,
    I would guess that Chevron’s attorneys could be making more than $400 per hour, but it is just a guess.

  9. How I wish to know more about the lead counsel\law firm for Chevron! How many hours do you think his staff is working? How many hours are the interns puttin in? How much do you think she/he is being paid? There is a top law firm in Chicago, one of best in the country, and it has been reported that they charge $400 per hour!?!?!?

    I don’t know if anyone remeber the ExonMobil spill off the coast of Alaska and parts of Russia? Alaska still hasn’t fully recovered, and ExonMobil dragged the case in courts for more than a decade. Finally, the Appeals court overturned and/or reduced the billion $$$ judgement against them.

  10. Has the stench of Treason……..

  11. I would agree Mike that with its deep pockets, Chevron can hold out indefinitely.

  12. It is beyond obvious that Chevron’s tactic is a holding action to delay paying the money and hopefully find some way to overcome the finding against them. With unlimited funds the have the ability to drag this case on for many, many years. Judge Kaplan’s ruling in the context of the whole case makes little sense and he has authorized Chevron to go on a hunting expedition. To say that the First Amendment doesn’t apply because U.S. citizens are not involved is specious, since we can be sure that somewhere in those subpoenaed transmissions there was contact with American citizens.

  13. I agree Gene that this decision needs to be appealed. The scary part about this is that Chevron can spend millions and maybe a billion or two in legal fees to try to save $19 Billion.

  14. Great job, Larry. This story was a rarity, one that not only made me angry, but angry to the point of feeling “unwell”. So I’m going to cross-post from my initial response to the Chevron story on another thread:

    “That story is so disturbing, I’m still wrestling with the full implications.

    Lead Director or Non-Employee Directors
    c/o Office of the Corporate Secretary
    Chevron Corporation
    6001 Bollinger Canyon Road
    San Ramon, CA 94583

    Every American who cares about the integrity of the Constitution should write their Board at the above address and let them know they have have crossed the line. They need to do the same with Judge Lewis A. Kaplan.

    Judge Lewis A. Kaplan
    Daniel Patrick Moynihan
    United States Courthouse
    500 Pearl St.
    New York, NY 10007-1312

    Courtroom: 21B
    Chambers Phone: (212) 805-0216

    This not only needs to be appealed, Chevron and their pet judge needs to suffer consequences. I urge everyone to express their dissatisfaction directly and including contacting their Representatives and Senators demanding Judge Kaplan’s removal from the bench, impeachment by the House and a trial by the Senate for violating citizens civil rights. I also suggest contacting the New York State Bar Disciplinary Committee and filing a complaint.

    Supreme Court, Appellate Division
    First Judicial Department
    Departmental Disciplinary Committee
    61 Broadway
    New York, NY 10006
    (212) 401-0800
    (212) 287-1045 FAX

    The complaint form can be found here (.pdf.):

    Normally, I’d follow this information up with a rant – probably wearing the mask of anger to illustrate the true level of my dissatisfaction through hyperbole. However, I find this so distressing that it makes me actually angry. Very angry. Too angry to rant or make jokes.

    Shame on you ‘Judge’ Kaplan.

    And I mean that in not the nicest way possible.”

  15. An oil company did not “spill the first amendment”

    Don’t know enough about the case to make an informed opinion about the lawsuit itself , but if anyone “spilled the first amendment” it was Federal Judge Lewis A Kaplan

  16. It is time to nationalize these companies and run them for OUR benefit. If it is that big, it needs to be owned by the people of the US.

  17. Sling,
    That may well be one of the results of the spying and in this case, a judicially authorized metadata grab.

  18. “he ruled it didn’t violate the First Amendment because Americans weren’t among the people targeted.”
    Off topic , but short: The US seems determined to convince the rest of the world to avoid using any Net services controlled by US companies.

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