Defending Our First Amendment Rights From Chevron

In an unprecedented legal move, 17 U.S.-based civil society organizations – among them Amnesty International, Amazon Watch, Rainforest Action Network, and Friends of the Earth – have just filed an amicus brief in federal appeals court defending their First Amendment rights from attack by Chevron.

Let me back this story up by about 18 months.

In November 2012, Chevron subpoenaed me.

The subpoena server knocked on the front door of my home. He handed me the 40-page subpoena from Chevron’s law firm, Gibson Dunn. I learned subsequently that my subpoena was one of several that Gibson Dunn served on not just non-profit advocacy organizations but also Chevron’s own shareholders, including Trillium Asset Management.

This subpoena was in connection with the anti-racketeering – or RICO – lawsuit brought by Chevron against the Ecuadoran villagers and their lawyers who successfully won a $9.5 billion judgment against Chevron for its oil pollution in the Ecuadoran Amazon. Chevron contends that the judgment was fraudulently obtained. Chevron has also implied – falsely – that my advocacy work and that of Amazon Watch, Rainforest Action Network, and Trillium Asset Management – on this issue is part of this supposed fraud.

In my subpoena, Gibson Dunn demanded all of my documents and all of my emails concerning my shareholder advocacy work at Chevron.  What was demanded of me was every detail of my communication with not only Chevron shareholders but also the press and government agencies, including the Securities and Exchange Commission (SEC).

In essence, Chevron demanded extensive and intimate information on my First Amendment-protected rights to speak out regarding oil pollution in Ecuadoran communities. In its subpoena, Chevron also demanded extensive information regarding my efforts to organize Chevron shareholders and petition US government agencies.

Clearly Chevron did this to me, Amazon Watch, and Rainforest Action Network to harass and intimidate us for advocating for the people of Ecuadoran Amazon affected by the company’s oil pollution.

Once I secured the services of EarthRights International as my pro-bono lawyer, I spoke out against Chevron’s retaliatory legal tactics to the press and my fellow shareholders.  I went public deliberately to demonstrate to Chevron that I refused to be intimidated by them.  That quickly led to articles in the New York Times and also Grist, which even published my entire subpoena.

I was determined to make Chevron’s attempt to intimidate me backfire on the company.  I reckon that I succeeded.  The press articles exposed Chevron’s bullying tactics. Moreover, one month after serving the subpoenas, shareholders of Chevron filed resolutions at the company on its liability in Ecuador in greater numbers than ever before.

Chevron gained little to no information of value from its subpoenas. Amazon Watch and Rainforest Action Network had their subpoenas quashed. Thanks to the dogged work of my fine lawyers at EarthRights International, I have not to date been compelled to hand over any information to Chevron.

Nevertheless, the U.S. federal court judge Lewis Kaplan ruled in Chevron’s favor. Both the Ecuadoran villagers and their lawyers have filed in U.S. federal appeals court to have Judge Kaplan’s ruling overturned.

With their amicus brief, the 17 NGOs outline the case in stark terms.  In the amicus brief, the NGO’s state:

Amici Curiae (“Amici”) are organizations dedicated to advancing environmental protection, human rights, corporate accountability, and economic justice. Amici regularly engage in First Amendment-protected activities similar to those that the district court found to be predicate acts under RICO. Amici bring, participate in, and support strategic litigation intended to help achieve important societal goals In conjunction with such litigation they seek to educate the public and to influence public opinion and government and corporate behavior through public relations campaigns, websites and blogs, press releases about ongoing litigation, corporate shareholder resolutions, public demonstrations, and letter-writing campaigns to government or corporate officials. If the district court’s finding of a RICO violation based on just such activities is upheld, Amici’s exercise of their First Amendment rights of free speech, association, and petitioning government will be severely chilled by the very real possibility that they will have to mount costly defenses to retaliatory litigation brought by deep-pocketed corporate defendants.

Under the regime augured by this case, other Amici may expect similar consequences as they pursue their organizational missions through constitutionally protected activities. Amici are also threatened by overreaching issuance of subpoenas that seek to compel those organizations to turn over internal planning and strategy documents and the identities of their supporters, thus exposing their supporters to further risks.

This is a critical case for advocates of all kinds. If corporations, such as Chevron, succeed in branding First Amendment activities of advocacy organizations as a conspiracy, then corporations will have secured another powerful cudgel with which to threaten and intimidate those who organize to seek redress for corporate abuses of human rights.

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10 thoughts on “Defending Our First Amendment Rights From Chevron

  1. Dear Simon,

    Your post raises several important issues, all under the general heading that First Amendment activities by environmental, human rights and social action groups require and deserve vigorous protection by the courts. As a long-time advocate of environmental, human rights and social causes, I strongly agree with this general point.

    You also remind readers of what I have always regarded as the misguided effort by Chevron’s lawyers to subpoena you and other advocates and advocacy organizations. Except where there is an adequate threshold showing of fraud or other misconduct by the person or group subpoenaed, I view such subpoenae as both ill-advised and threatening to First Amendment rights of freedom of association and expression. I am not aware of any credible evidence of such fraud or misconduct by you or by the vast majority of persons or organizations subpoenaed. Indeed, I find even the suggestion of such fraud by respected and reputable organizations and advocates, such as yourself, to be offensive. I have always opposed Chevron’s efforts directed at third party advocates and advocacy organizations exercising their First Amendment rights and as to whom there was no threshold showing of fraud or misconduct.

    For at least one organization, however, it appears to me that such a showing of fraud and misconduct is evident in the record before Judge Kaplan. Judge Kaplan found, and the amicus brief of Amazon Watch et al. mentioned in your post nowhere disputes, that Steven Donziger committed fraud and other serious misconduct, including by deliberate, public misrepresentations.

    According to Judge Kaplan’s opinion (slip op., p. 29), the lead organization on the new amicus brief — Amazon Watch — was formed by Donziger and Luis Yanza. The evidence indicates that Donziger covertly controlled much of what Amazon Watch had to say about the lawsuit. Judge Kaplan found (slip op., pp. 40-41, footnotes and citations to record omitted):

    “Although Amazon Watch’s public materials did not bear Donziger’s name, Donziger himself drafted many Amazon Watch materials related to the Lago Agrio litigation. Donziger not only controlled the content of Amazon Watch press releases related to the litigation, he drafted also complaints that Amazon Watch submitted to the SEC and memoranda to be sent to elected officials regarding Chevron. Despite Donziger’s authorship, the materials bore no outward indication of his involvement — documents drafted in whole or substantial part by Donziger were sent on Amazon Watch letterhead and signed by Amazon Watch personnel.”

    In a case where there was sufficient evidence to persuade at least seven federal judges of probable cause that Donziger committed fraud — and Judge Kaplan eventually found Donziger civilly liable for fraud and other misconduct — this close connection between Amazon Watch statements and their covert author — Donziger — strikes me as the kind of relationship which justifies Chevron’s efforts to gain information from Amazon Watch.

    And there is more. According to Judge Kaplan, and as far as I know correctly, Luis Yanza has functioned as Amazon Watch’s “executive director and representative with respect to the Lago Agrio case.” (Slip op., p. 29.) Emails between Yanza and Donziger show persuasively that Yanza — executive director of Amazon Watch, in collaboration with Donziger — paid covert bribes from a secret bank account to the Lago Agrio court’s supposedly impartial damages expert (Cabrera).

    For example, when the secret account was set up, Yanza emailed Donziger, “To open the account, we need at least 2 thousand dollars. Due to the urgency, I suggest that amount (or more, 5 or 10 thousand) be sent to my personal account and I will transfer it to the new secret account.” (Slip op., pp. 90-91, footnotes and citations to record omitted.)

    Yanza was later involved in funneling payments through that account to the court’s supposedly independent expert — for example, $33,000 and another $49,998 in September 2007 alone. (Id. at 92.)

    Although Donziger tried to claim that payments to the court’s expert were lawful — which they might have been if done on the record — even Donziger’s Ecuadorian law expert conceded the obvious (in Judge Kaplan’s words): “that secret payments to Cabrera [the court’s expert] without the knowledge of the court to alter the result of the expert’s report would have been crimes under Ecuadorian law.” (Id. at 93, citations to record and Ecuadorian Criminal Code omitted).

    In my view this direct involvement in bribery by the organization’s executive director, in collusion with Donziger, further justifies Chevron’s subpoenae to Amazon Watch.

    Beyond the issue of the subpoenae, the amicus brief submitted by Amazon Watch et al. argues that even those commit fraud are not liable under RICO, and are shielded by the First Amendment, if their fraud is committed in the context of litigation and advocacy activities, unless the fraud goes to the core of the litigation. They cite a great many US cases which I have not yet read. But, even assuming for the sake of argument that they interpret those cases correctly, in my view the pervasive fraud and misconduct in the Lago Agrio litigation in Ecuador went to the core of the litigation. Both Donziger’s deliberately skewed evidence of continuing environmental harm attributable to Texaco (as opposed to Petroecuador, the State oil company), and his wildly inflated damages assumptions, were the products of the fraud, extortion, bribery, money laundering, witness tampering and obstruction of justice found and documented by Judge Kaplan. They were, in other words, at the core of the litigation.

    Finally, there is an issue of Chevron’s motive. Your post contends that Chevron subpoenaed you in order to “harass” and “intimidate” you. The Amazon Watch amicus brief characterizes Chevron fraud suit against Donziger et al. as “retaliatory” litigation.

    Who knows what may be in the hearts of lawyers who file suits and issue subpoenae? Your post claims to know. I am not so certain. Another possible motive was simply an excess of misguided zeal — to leave no stone unturned in an aggressive search for evidence of fraud — coupled with insensitivity to legitimate First Amendment concerns.

    From my contacts with the human beings at Chevron and their law firms, I am more inclined to the latter explanation (although in any large organization, different individuals may have differing or mixed motives).

    The bottom line is that all we know for certain is what they did, and not necessarily their motives. For First Amendment purposes, in all events, what should count is the objective impact of their activities. I understand your anger — I’d be hopping mad, too, and for good cause, if Chevron had subpoenaed me — but not all violations of rights arise from evil motives.

    In this case I hope that we can all agree that environmental, human rights and social cause advocacy should be protected both from subpoenae and from lawsuits by the First Amendment — except where there is significant threshold evidence that such advocacy is a cover for unlawful and criminal activity.

    There is no such evidence against you (I apologize for even dignifying the suggestion by denying it) or against many others. On the other hand, there is compelling evidence against Steven Donziger and Luis Yanza, whose emisconduct was committed in his capacity as xecutive director of Amazon Watch. They well deserved both to be subpoenaed and to be sued.

    I in no way demean or diminish either the good intentions or the good work of many other people involved in Amazon Watch, who did not participate in and were not aware of the fraud and bribery. Nor do I have anything but praise for the people in other organizations, and others who, as individuals, support the work of Amazon Watch in good faith. But no one — even in the exercise of First Amendment rights — deserves a free pass for what Donziger and Yanza did.

    • When Chevron has the decency to apologize to me for serving me a subpoena, I will stop assuming that the subpoena was anything other than an attempt to harass and intimidate me.

      • Dear Simon,

        If I were Chevron, I would apologize to you. That, however, is a separate issue from your assumption that their outside law firm lawyers acted from malice rather than from an excess of misguided zeal.

    • Hey Doug, you can write a lot for someone who has no idea what they’re talking about.

      I have no time nor interest in pointing out every glaring falsehood in your post but I trust that since you like to quote federal judges you may remember going forward that Judge Nathaniel Cousins noted “the absence of a finding by Judge Kaplan that Chevron has established probable cause to believe that Amazon Watch’s conduct falls outside the scope of the First Amendment because it is inciting unlawful activity or is fraudulent speech, and … all evidence before this Court suggests otherwise.”

      So you can file your baseless attacks of Amazon Watch under “quashed”.

      Oh, and Atossa Soltani is the founder and E.D. at Amazon Watch. Always has been. No one else. Your “facts” are a mish-mash, but then again it’s hard to keep all the lies straight.

      The truth of the matter is there was no fraud anyway and only a disgraced and corrupt former judge in Ecuador and Chevron say there was.

      So either you’re just paid by Chevron to regurgitate these lies or you’re gullible enough to allow yourself to be completely duped by Chevron’s obvious attempts to shift any focus or blame away from their guilt in Ecuador. Either way, its pathetic.

      • Dear Simon,

        Your points are well taken. These issues are controversial enough without being further complicated by needless factual errors. I’d give myself a “C” as well (at best) for conflating Amazon Watch and the Amazon Defense Front.

        Mr. Paz y Mino’s comments cite us all to the excellent opinion of Judge Cousins, rejecting Chevron’s effort to subpoena Amazon Watch. In April of 2013, Judge Cousins, a federal judge in California, ruled that there was no evidence in the record before him that Amazon Watch engaged in anything other than activities protected by the First Amendment, and that Chevron had given no sufficient justification to override Amazon Watch’s presumptive First Amendment privilege against discovery. Earthrights International, which litigated the case for Amazon Watch, deserves credit for this important decision. Mr. Paz y Mino, as a long-time official of Amazon Watch, gave critical testimony on the harm Chevron’s overbroad subpoena could cause to the activities of Amazon Watch.

        On principle, Judge Cousins’ decision, while accurately reflecting US domestic law, is in fact less protective of advocacy organizations than the standard suggested in my earlier comment. I suggested that an organization like Amazon Watch should not be subject to a subpoena, unless there is substantial threshold evidence that the group has engaged in unlawful conduct.

        US law, however, allows broader and more permissive “discovery” in litigation than any other jurisdiction I know of in the world. Under US law, as applied in the 9th Circuit where California is located, and as Judge Cousins explained, a subpoena can be allowed against a group engaged in First Amendment activities — even if there is no showing that the group is itself implicated in wrongful activities. If the party seeking discovery can show that the litigation is important; that the information sought is central to the case and highly relevant to the claims or defenses; that the information is otherwise unavailable; and that the discovery request is carefully tailored to avoid unnecessary interference with activities protected by the First Amendment, a US court, in applying a “balancing test,” may (but need not, depending on the importance of the affected First Amendment activities) override the group’s First Amendment privilege. Perry v. Schwarzenegger, 591 F.3d 1126, 1140-41 (9th Cir. 2009) (the case relied on by Judge Cousins).

        Because Chevron made no such showing before Judge Cousins, he quashed the subpoena. His order was well-reasoned and convincing.

        However, there is a caveat. Judge Cousins ruled eleven months before Judge Kaplan’s ruling in the RICO trial. In his ruling Judge Cousins stated that he was in a “poor position” to rule on Chevron’s claim that Amazon Watch had engaged in fraudulent or conspiratorial conduct, because he was not involved in the underlying litigation. Chevron v. Donziger, N.D. Cal. April 5, 2013, Order Quashing Subpoenaes, slip op. at 6-7. Judge Cousins added, “In the absence of a finding by Judge Kaplan that Chevron has established probable cause to believe that Amazon Watch’s conduct falls outside the scope of the First Amendment because it is inciting unlawful activity or is fraudulent speech,” and because the evidence before him “suggests otherwise,” Amazon Watch had made a prima facie showing that its activities are protected by the First Amendment.

        That was a year ago. Now, however, Judge Kaplan has made the finding, quoted in my earlier comment, to the effect that Donziger ghost wrote many Amazon Watch documents, which were then issued on Amazon Watch stationary and signed by Amazon Watch officials. Judge Kaplan has also made extensive findings that Donziger committed fraud and other misconduct. Would those findings change the result of Judge Cousins’ balancing test?

        Not by themselves. The Chevron subpoena to Amazon Watch was broad and sweeping. It was not narrowly tailored. For example, if Chevron had asked only for Amazon Watch communications with Donziger regarding statements Amazon Watch would issue, or even more narrowly, only for Amazon Watch documents authored in whole or part by Donziger, Chevron’s request might have been deemed to meet the “narrowly tailored” test.

        Even then, Chevron would have to show that the information was not otherwise available. In fact, however, the information was available from other sources, at least to some extent, because evidence in the record before Judge Kaplan enabled him to make the finding that Donziger ghost wrote a number of Amazon Watch documents.

        Would further discovery by Chevron against Amazon Watch produce more such evidence? If so, would the additional evidence be merely cumulative to a point already proved? These are the kinds of questions that might be considered by a court, were the issue to arise again today (which seems unlikely).

        Bottom line: while my earlier comment hypothesized that one might justify a Chevron subpoena against Amazon Watch in light of Judge Kaplan’s findings, Chevron’s actual subpoena was far too broad and was not justified at the time. Even a hypothetically far narrower subpoena, sought now or in future in light of Judge Kaplan’s recent findings, would require more specific justification than appears in the public record.

        • Thank you, Doug, for taking my pointed criticism of you so graciously.

          If you keep posting comments of the quality of the one above, I’ll keep approving them. From this comment, I learned a lot about the case and how it interacts with the First Amendment. I’ve no objection if you can teach me – an MBA – and my readers about the law.

    • Doug Cassel incorrectly recounts Kaplan’s opinion. Kaplan describes Luis Yanza as founder and executive director of the Frente de la Defensa de la Amazonia (the “ADF”) and not Amazon Watch. As a result, Cassel’s claim that Luis Yanza had control over Amazon Watch has no basis even in Kaplan’s judgment.

      • Dear Simon,

        Thank you for catching correcting my error. I owe, and hereby express, an apology to Amazon Watch for connecting Yanza’s bribery to them and not, as you correctly note, to the Amazon Defense Front.

        Note, however, that the secret authorship by Donziger of the Amazon Watch documents was and remains correct. As I stated in my commentary, the covert authorship of Amazon Watch documents by a perpetrator of fraud and other misconduct, by itself, should suffice to justify subpoenae to Amazon Watch in a lawsuit against the perpetrator (Donziger).

        Likewise, the bribery by Yanza should also justify subpoenae to the Amazon Defense Front, of which he was a co-founder and executive director. Mr. Paz y Mino is quite correct that Yanza was not the founder of Amazon Watch. He was instead a co-founder of the Amazon Defense Front.

        I do not recall whether either organization — Amazon Watch or the Amazon Defense Front — was in fact served with a subpoena. But the real point here is one of principle: persons or organizations implicated by substantial evidence in fraud or misconduct should be subject to subpoena; those not so implicated must be free to engage in First Amendment activities without having to defend themselves against subpoenae.

        • If you are going to comment on a blog post then you should properly read it first and possibly do a modicum of research, such as reading the linked articles.

          I mention in my piece that Chevron subpoenaed me, Trillium Asset Management, Rainforest Action Network, and Amazon Watch. A click on the opening link to the press release and amicus brief by the NGOs would have cleared up your point above: “I do not recall whether either organization — Amazon Watch or the Amazon Defense Front — was in fact served with a subpoena.”

          That – combined with your earlier mistake on misreading Judge Kaplan’s judgment and falsely claiming that Luis Yanza was Executive Director of Amazon Watch – demonstrates to me how sloppy is your research and writing before writing your voluminous comments. (Tell me: when you consulted for Chevron, did they pay you by the word?)

          So, professor, if you had ever submitted your comments to me in a class as your professor, I’d grade you a C if you were lucky.

          I will leave the comments above. But please demonstrate at least the rudiments of research in your comments in the future.

  2. Hello Simon
    Great blog post. I was aware of some of the details, but not all. Brilliant that you were able to turn the tables when you were served a subpoena that no responsible corporation would have ever considered appropriate. And having just finished reading the RICO appeals, I reckon the tide will soon be turning on that one too.