Lago Agrio: Magistrate Judge Allows High-Level Chevron Depositions To Proceed

Update (5/10/13): Right on cue, Chevron has filed the objections to the magistrate judge’s decision that I predicted.

Update (5/15/13): Judge Kaplan has overruled Chevron’s objection to the magistrate judge’s decision.

A big development in the Lago Agrio case yesterday … Magistrate Judge James C. Francis IV has approved the Lago Agrio plaintiffs’ bid to take the depositions of Chevron’s chairman and CEO, John S. Watson, of Chevron’s VP and General Counsel of the Global Upstream and Gas Group, Edward B. Scott II, and of Kroll, Inc., a firm that Chevron hired in connection with the litigation and that the LAPs claim led a dirty tricks campaign of bribery and surveillance in Ecuador. The Watson and Scott depositions are so-called “apex depositions” of very high-ranking Chevron officials. Apex depositions are relatively rare, and they usually require a fairly detailed showing of necessity. Here, the magistrate judge applied a relatively relaxed standard in light of the short time remaining in discovery:

Under other circumstances, it might be prudent to defer Mr. Watson’s deposition until it could be determined whether his testimony would likely be redundant to that of other witnesses. Here, however, we do not have that luxury, as discovery is to be completed by the end of this month. Finally, this is far from a trivial case. Enough is at stake to justify the deposition of an apex witness like Mr. Watson.

The deposition of Kroll is particularly interesting. The main issue seems to be privilege and work product, and the judge refused to find a blanket privilege that would justify blocking the deposition altogether. It will be interesting what hay the LAPs can make with Kroll. The LAPs believe that Kroll was involved in an effort to bribe former Ecuadorian Judge Alberto Guerra, who gave a devastating declaration claiming that the Ecuadoran judgment was the product of fraud and corruption. I noted in my earlier post that in light of the serious reasons to doubt Guerra’s credibility, his declaration should not be accepted without corroboration. The flip side of corroboration is impeachment, and we will have to see whether Kroll’s testimony leads to effective impeachment of Guerra’s testimony.

Under FRCP 72(a), Chevron has a right to object to the magistrate judge’s order and seek a decision from Judge Kaplan. Will anyone be surprised if Chevron raises objections? And one more question: in light of the proposed withdrawal of counsel for Donziger and the LAPs, who will take these depositions, if they go forward?

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 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is 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, 2014, and 2015.

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