The Mystery of the Ghostwritten Report in Chevron/Ecuador Case

U.S. court discovery has become one of Chevron Corp.’s favorite tools to try to undermine the gargantuan environmental damages suit filed against the oil company by tribespeople in Ecuador for alleged pollution of the Amazon jungle. Last summer, Recorder affiliate The American Lawyer suggested that Chevron’s then-inchoate discovery might be more significant than the failed effort to block discovery with the First Amendment, which the rest of the press was obsessing over. Since that time, the federal courts have indulged in a veritable orgy of rulings under 28 U.S.C. §1782 — the once-obscure law that provides for U.S. discovery in aid of foreign proceedings. As this unprecedented discovery campaign reaches its later phases, it is time to take stock.

By year’s end, Chevron had prevailed in all 19 of the discovery motions that it filed against individuals associated with the Ecuadorean plaintiffs. Likewise, the Republic of Ecuador, which is supportive of plaintiffs but denies Chevron’s charge of collusion, won all three discovery motions that it filed against individuals whom it associates with Chevron. This is a staggering amount of successful 1782 activity. For comparison, in its review of the literature, The American Lawyer found only nine other cases of discovery in aid of arbitration since the Supreme Court opened the door in 2004, and three of those efforts failed. (This count excludes discovery in aid of nonarbitration proceedings).