Lots of Lago Agrio Action

As trial approaches, there were several developments in the Chevron case in New York yesterday:

  1. Sanctions. The judge, on Chevron’s motion, has sanctioned Donziger and the LAPs for failure to comply with his discovery orders with respect to documents in Ecuador. This is a very strong and very long opinion, and I am not going to try to summarize it. A few key points, though, about the sanctions imposed: (1) the LAPs now must produce responsive documents located in Ecuador on pain of waiving their personal jurisdiction defense, which is an important issue for them; and (2) Judge Kaplan found it appropriate to draw an adverse inference about the content of the documents Donziger and the LAPs have failed to produce. This is a significant loss for Donziger and a significant win for Chevron, though Judge Kaplan did not impose more stringent sanctions, as Chevron had asked.
  2. Motion for a View. Full marks to Steven Donziger for creativity; he filed a motion asking Judge Kaplan to take a view of the pollution in Ecuador that he says Texaco caused. But it was not to be—Judge Kaplan denied the motion almost immediately.
  3. Ecuador Intervenes. The Republic of Ecuador has sought leave to intervene in order to protect its interest in the confidentiality of possibly privileged documents that have recently come to light. I expect this motion will be granted.
  4. Gomez Cries Uncle. The LAPs’ lawyer, Julio Gomez, has asked the courts to modify the trial schedule in light of the burdens trial is placing on his small practice. His motion is sobering reading. I certainly would not want to be going to trial with his limited resources against such a well-funded opponent.
  5. RICO. Donziger moved for an order dismissing the remainder of the RICO claim for want of subject-matter jurisdiction, on the grounds that a private litigant lacks standing to seek injunctive relief under the RICO statute. Judge Kaplan denied the motion without prejudice to a motion for judgment as a matter of law at the appropriate moment in the trial.
  6. Bifurcation. Judge Kaplan has now denied Chevron’s continued to bifurcate the trial, which I noted a few days ago.

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 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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