Legal tussle over alleged rain forest pollution turns to document disclosure

The epic battle over accusations that Chevron Corp. polluted a large expanse of the Amazon rain forest played out before the U.S. Court of Appeals for the Third Circuit on Tuesday as the energy giant sought the release of thousands of pages of confidential documents it said could shed light on improper tactics of plaintiffs' attorneys.

Lawyers representing Chevron asked the Third Circuit to uphold a lower-court opinion that records be released. They are being held by Philadelphia trial lawyer Joseph Kohn, who for years financed the litigation before withdrawing from the case in November 2009.

Kohn is prepared to release the documents. But the request is opposed by the government of Ecuador and lawyers representing the plaintiffs, residents of the Amazon rain forest region of eastern Ecuador, who allege that decades of oil drilling by Texaco, which later merged with Chevron, polluted ground and surface water, leading to widespread health problems and damage to their surroundings.

Ecuador and the plaintiffs' attorneys assert that to make the documents public would be an unwarranted intrusion on their rights to attorney-client confidentiality.

It was unclear when the three-judge panel hearing the case - Thomas Ambro, D. Michael Fisher, and Morton Greenberg - will issue a decision.

But to a degree rarely seen in civil litigation, the internal deliberations of plaintiffs' attorneys already have been widely disclosed.

Chevron, citing outtakes from a documentary film made about the case and other information, has sought to open to inspection confidential files of the plaintiffs' attorneys and their experts in at least 15 federal court jurisdictions around the country.

That has unleashed a flood of documents and testimony.

Chevron has obtained internal communications in which the leader at the time of the plaintiffs' team in Ecuador, Steven Donziger, a Harvard law graduate who has spent much of his career on the case, discusses tactics for intimidating Ecuadoran judges and opines on what he sees as the corruption of the Ecuadoran judiciary.

Kohn's firm, Kohn, Swift & Graf, a prominent plaintiffs' class-action firm based in Center City, directly represented the plaintiffs through much of the 1990s.

But when the case was closed in the United States and refiled in Ecuador, direct representation was taken over by Donziger and other lawyers who were not members of the Kohn firm. Kohn continued to finance the case, spending about $7 million on fees for lawyers and experts in Ecuador and helping with settlement talks.

Kohn withdrew from the case after a falling-out with Donziger. In a letter to the plaintiffs' team Aug. 9, 2010, Kohn wrote that he was "shocked by recent disclosures concerning potentially improper and unethical, if not illegal, contacts with the court-appointed expert . . . which are coming out in the U.S. discovery proceedings being initiated by Chevron."

Much of the two-hour hearing focused on the relevance of a documentary made about the case called Crude. One of the outtakes, subpoenaed by Chevron, portrays the plaintiffs' attorneys concocting strategies to intimidate judges in Ecuador.

One question before the court Tuesday was whether the plaintiffs' team had sought to gain an unfair advantage in the case by backing a documentary filmmaker, thus waiving attorney-client confidentiality.

But Greenberg questioned whether a film made in the United States would have an effect on the judicial process in Ecuador.

On Feb. 14, a judge in Ecuador ruled that Chevron must pay $8.6 billion for polluting the rain forest, a sum that would double unless Chevron apologizes.

The case has been bitterly fought. Chevron filed suit against Donziger, other members of the plaintiffs' team in Ecuador, and the plaintiffs themselves, charging that they had engaged in a scheme to extort billions of dollars from the company.

The law firm of Patton Boggs fired back a short time later, suing Chevron and its law firm, Gibson, Dunn & Crutcher L.L.P., accusing them of using threats and bogus litigation strategies to derail the plaintiffs' case.