Trial in Chevron’s RICO claim against Steven Donziger and the Lago Agrio plaintiffs is fast approaching. Chevron, for the third time, has sought a pre-trial decision from Judge Kaplan on the merits of its claim that there is no dispute but that the Cabrera report was part of a scheme by the defendants to commit a fraud in the Ecuadoran litigation. In its first two attempts, Chevron sought summary judgment on the LAPs’ affirmative defense of collateral estoppel. I commented on the first decision in April 2012.¹I think I wrote about the second decision, too, but I can’t find it at the moment. This time, the issue was whether Judge Kaplan should makes findings of fact under FRCP 56(g), which provides:

If the court does not grant all the relief requested by the motion, it may enter an order stating any material fact—including an item of damages or other relief—that is not genuinely in dispute and treating the fact as established in the case.

The judge refused to engage in the exercise. Entering findings of fact wouldn’t end the case or really even reduce the scope of the trial. “There is a great deal to be said for getting on with it rather than becoming involved in litigation and consideration of another summary judgment motion.” Judge Kaplan cited Judge Weinfeld:

The Court does not reach the classical summary judgment question of whether there is a genuine issue as to any material fact. Upon further close study of the record, briefs and argument of counsel and considering the size of the industry, the vast amount of factual material to be analyzed and reviewed in reaching a decision, the multitude of problems in the case, the likely impact of a decision upon the iron and steel industry in particular, and upon the economy of the country in general, and the admitted significance of a ruling under the amended Section 7 in view of differing contentions as to its construction, I am persuaded that a decision after trial will be the more desirable procedure in the matter. It will serve to bring into sharper focus certain issues of importance which have been obscured by the voluminous affidavits with their statements, counterstatements and alternative positions, and the conflicting conclusions which the parties contend are to be drawn from the multitude of facts and statistics presented.“Under all the circumstances the application of the summary judgment rule is questionable and the Court deems it sound judicial administration to permit a trial for such additional evidence and clarification as may be relevant. In doing so, it is guided by the judgment of the Supreme Court in a somewhat parallel matter, Kennedy v. Silas Mason Co., 334 U.S. 249, 256–257, where it said:

We do not hold that in the form the controversy took in the District Court that tribunal lacked power or justification for applying the summary judgment procedure. But summary procedures, however salutary where issues are clear-cut and simple, present a treacherous record for deciding issues of far-flung import, on which this Court should draw inferences with caution from complicated courses of legislation, contracting and practice.

We consider it the part of good judicial administration to withhold decision of the ultimate questions involved in this case until this or another record shall present a more solid basis of findings based on litigation or on a comprehensive statement of agreed facts. While we might be able, on the present record, to reach a conclusion that would decide the case, it might well be found later to be lacking in the thoroughness that should precede judgment of this importance and which it is the purpose of the judicial process to provide.

While I think that in general it’s a good idea, whether through summary judgment proceedings or through other pre-trial mechanisms, to narrow the issues that are to be tried, I think there’s also a lot to be said for exercising the court’s discretion to deny summary judgment when the complexity of the case or other factors make it desirable just to let the case go to trial.

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  I think I wrote about the second decision, too, but I can’t find it at the moment.