SAN FRANCISCO (Reuters) - Plaintiffs in the Ecuador pollution case against Chevron Corp will get to question the man they call the “ringleader” of a sting operation that is key to Chevron’s efforts to avoid paying a massive judgment.
The deposition of Diego Borja will be the first chance for the plaintiffs to use the same kind of U.S. legal device extensively used by the oil company in building its extortion case against them.
The Borja ruling comes just days after an Ecuadorean court awarded plaintiffs $8.6 billion in damages — which is set for appeal — and offers the Republic of Ecuador a chance to gather evidence for a case before an international tribunal that was brought by Chevron under a U.S.-Ecuador treaty.
A U.S. magistrate judge in San Francisco ruled late on Wednesday that Borja, one of two men who secretly taped Ecuadorean Judge Juan Nunez discussing the pollution case, must surrender hundreds of documents this week and travel from Texas to submit to three days of questioning at some point before March 21.
The decision means the Republic of Ecuador, the plaintiffs and Chevron can question Borja under a procedure known as a 1782 action, which was used by Chevron to force plaintiffs’ lawyer Steven Donziger to turn over a trove of evidence.
Ecuador originally filed the action alone, but the potential for appeals in the Ecuadorean case brought in the plaintiffs, who are indigenous people backed by U.S. lawyers.
Plaintiffs’ lawyer James Tyrrell, from Washington D.C. law firm Patton Boggs, flew in to appear before Judge Edward Chen in the federal court for the Northern District of California.
“We think we have the ringleader of the dirty tricks,” said Tyrrell, whose firm took a lead role in the plaintiffs’ case after Donziger came under fire.
Borja, along with American Wayne Hansen, secretly taped videos of Nunez in 2009 before turning them over to Chevron. The company then released them online in August 2009, and moved Borja and his wife to a home near its headquarters in San Ramon, California, 30 miles east of San Francisco.
Three weeks later, Chevron claimed Ecuador had violated a bilateral U.S.-Ecuador investment treaty because its judicial system was not independent. Nunez recused himself, and his successor was replaced late last year by Nicolas Zambrano, who delivered the damages ruling on Monday.
The plaintiffs managed to locate a Borja acquaintance who had records of conversations in which Borja said he had incriminating evidence against Chevron that he could use as leverage if the company “betrayed” him.
Plaintiffs also say Borja and his wife were representatives of a firm involved in independent tests of soil samples related to the pollution case — originally brought against Texaco in 1993 and inherited by Chevron when it bought Texaco in 2001.
Responding to Chen’s decision, Chevron said in an emailed statement: “The government of Ecuador has done nothing to address the misconduct of one of its judges and it seems the government remains more interested in persecuting Mr. Borja than addressing corruption in its courts.”
Earlier on Thursday, Chevron lawyers in Ecuador requested clarification of the $8.6 billion ruling, which found it liable for contaminating the jungle and damaging local people’s health in the two decades before Texaco left in 1992.
The cases in the U.S. District Court for the Northern District of California are In re: application of the Republic of Ecuador, case no. 10-mc-80225, and In re: application of Daniel Carlos Lusitand Yaiguaje, et al., case no. 10-mc-80324.
Editing by Gerald E. McCormick and Steve Orlofsky