Lago Agrio: The LAPs Approach The Special Rapporteur on the Situation of Human Rights Defenders

The Europe / Third World Center and LAP advocate (and Letters Blogatory contributor) Aaron Marr Page have submitted a letter to the Special Rapporteur on the Situation of Human Rights Defenders, Michael Forst. It seems highly unlikely to me that the letter will result in anything changing in the case, but I thought it was a pretty interesting letter worth commenting on, even if it lacks practical importance.

The letter claims that Chevron’s § 1782 applications in the United States were part of a wrongful “retaliatory litigation campaign.” They were expensive to defend and they led to the production of “hundreds of thousands if not millions of confidential and often attorney-client privileged documents and communications, as well as 600 hours of outtakes from a renowned documentary filmmaker who had been allowed to film the communities and their representatives for an award-winning 2008 film on the case.” Similarly, the letter complains that the RICO litigation itself was part of an illegitimate campaign—a “true travesty of justice.”

The main substantive problem with the LAPs’ position, in my view, is that while the US litigation has been expensive and burdensome for the LAPs and others, Chevron did succeed in proving a significant fraud in the Ecuadoran proceedings, namely, the ghostwritten Cabrera report. Longtime readers know that I don’t think Chevron proved what it thinks it proved about the corruption of the Ecuadoran judiciary, but Chevron’s case even on that point was hardly frivolous. The basic charge that the LAPs were pummeled into submission. It’s true that the LAPs and Donziger were overmatched in court, but as I’ve noted before, they had third-party litigation funding and were able to put up more of a fair fight until Donziger’s allies were spooked by the evidence of fraud and the prospect of having to duke it out with Chevron. But in light of the Cabrera issue, it’s difficult to point a finger too strongly at Chevron. I do think Chevron overreached in, for example, its settlement with Patton Boggs. But the reason Chevron’s threats were so potent was because there was some underlying wrongdoing that made Patton Boggs and the others perceive a serious risk of liability, above and beyond the simple cost of defending against Chevron’s claims.

In short, I suspect, for the reasons I gave in a post on Donziger’s talk at a human rights forum at HLS, that the human rights community might look a little askance at this letter. Is Donziger helping or hurting them in a global sense?

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. Folkman also serves as an arbitrator and is a member of the Commercial and Consumer Panels of the American Arbitration Association. 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 treatise on International Aspects of US Litigation (J. Berger, ed. 2017), 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 and 2014 - 2016.

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