Lago Agrio: The Heller Subpoena

As I reported on Wednesday, Chevron issued a subpoena to blogger Kevin Jon Heller of Opinio Juris, 1 who has been highly critical of Chevron in the Lago Agrio litigation. Heller had some back-and-forth with Chevron advocate (and Letters Blogatory contributor) Doug Cassel and his fellow bloggers Roger Alford and Kenneth Anderson in the comments to one of Cassel’s posts back in March, and he wrote his own post on the issue, which led to a sharp response from Cassel, and some additional skirmishing at OJ. Heller has now posted a summary of the recent goings-on involving the subpoena.

Now it’s fair to say that I’ve been more sympathetic to Chevron’s legal arguments than has Heller, though I, too, have critiqued Chevron’s position in various respects. Still, I think Chevron is having one of its periodic bouts of big-company, big-law-firm insanity. Surely someone among the lawyers on Chevron’s team stopped to question whether it was a good idea to subpoena the prominent blogger who is also a law professor? It’s tough to bully a law professor, particularly one who can get the ACLU to take his case.

Because I have written at length about the Belfast Project case, which also involves an arguably unwise subpoena with First Amendment implications, I’d like to put my thoughts on the Heller subpoena in context. I’ve suggested in the Belfast Project case that there is no First Amendment bar to the government’s subpoena. That may be true in this case, too, though because the case is civil rather than criminal the question is closer—but on the other hand, it’s unclear that any communications Heller might have had raise the same kind of First Amendment concerns as the confidential oral histories at stake in the Belfast Project case. But a subpoena doesn’t have to be unconstitutional to be worthy of mockery.

Chevron apparently has thought better of its subpoena. Sanity prevails, until next time!

Notes:

  1. The subpoena was actually to Google, as explained in Kevin’s post.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012.

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