No Stone Unturned

When a plaintiff is spending up to $10 million a month on attorneys from 60 different law firms, it can afford to push the boundaries of practice. That's what Chevron Corp. is doing in its pursuit of metadata attached to nonparty email, subpoenaed during discovery in a lawsuit accusing defendants of fraudulently securing a $19.2 billion judgment against it in Ecuador. (Aguinda v. Chevron Corp., No. 002-2003 (Prov. Ct. of Sucumbios judgment issued Feb. 14, 2011).)

Chevron's suit, brought in the Southern District of New York against attorney Steven A. Donziger and others under provisions of the Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C. §§ 1961-1968), seeks to show that the massive judgment for dumping toxic waste in the rainforest was won by illegally pressuring the Ecuadoran court and therefore is unenforceable. (Chevron Corp. v. Donziger, No. 11-CV-0691 (S.D.N.Y).)

The dispute over metadata subpoenas came late in pretrial proceedings. The lawsuit - still scheduled for trial next month - has metastasized beyond all recognition. John Keker of San Francisco's Keker & Van Nest, for instance, in seeking to withdraw from representing Donziger earlier this year, told the court the case had "degenerated into a Dickensian farce."

Keker described Chevron's "endless drumbeat of motions - for summary judgment, for attachment, to reinstate long-dismissed claims, for penetration of the attorney-client privilege, for contempt and case-ending sanctions, to compel discovery already denied or deemed moot, etc., etc. - to have the case resolved in its favor without a trial." Owed more than $1 million in fees, Keker wrote that "Donziger does not have the resources to defend against Chevron's motion strategy, and his counsel should not be made to work for free to resist it."

Relying on pretrial rulings by U.S. District Judge Lewis A. Kaplan that Chevron has established probable cause that the defendants engaged in fraud, the company directed hundreds of document requests to Donziger, to named co-conspirator Patton Boggs of Washington, D.C., and to foreign lawyers in Ecuador. Judge Kaplan has repeatedly denied defense motions based on attorney-client privilege, litigation privilege, and attorney work product.

Last September, Chevron issued subpoenas to nonparty Amazon Watch, a nonprofit environmental group, for documents and depositions seeking to expose an advocacy campaign linked to the judgment. But after ten briefs and a hearing in the matter, a federal court in California granted a motion to quash the subpoenas. Describing Chevron's requests as "egregiously overbroad," U.S. Magistrate Judge Nathanael M. Cousins of San Francisco stated, "I must err on the side of protecting the First Amendment activity." (Chevron Corp. v. Donziger, No. 13-MC-80038 (N.D. Cal. order issued Apr. 5, 2013).)

Chevron, however, also issued subpoenas to Internet service providers (ISPs) Microsoft, Google, and Yahoo for metadata on files owned by more than 100 anonymous account users allegedly involved with the Aguinda litigation - and this time the result was different.

The subpoenas did not request email content, which is protected from discovery through ISPs under provisions of the Stored Communications Act (18 U.S.C. § 2701). Rather, Chevron sought "the usage of the following email addresses, including but not limited to documents that provide IP logs, IP address information at the time of registration and subsequent usage, computer usage logs, or other means of recording information concerning the email or Internet usage of the email address" from 2003 to 2012.

The email metadata, Chevron asserted in court filings, would support its claims by "showing whether certain account holders had access to Defendants' internal documents and data," by proving that substantial portions of RICO predicate acts originated in the United States, by providing evidence about the structure and management of the alleged illegal enterprise, and by identifying the conspirators.

For Chevron, the location of those predicate acts is critical. Three years ago the U.S. Supreme Court held that section 10(b) of the Securities Exchange Act applies only to transactions that occur on domestic exchanges. (Morrison v. National Bank of Australia, Ltd., 130 S.Ct. 2869 (2010).) Since then, many federal courts considering application of civil RICO - which lacks an explicit extraterritoriality provision - have considered the locus of the alleged conspiracy to assert jurisdiction. In this case, Chevron alleges that even though the defendants won a judgment in Ecuador, the conspiracy to secure it was conceived, substantially executed, and largely funded in the United States.

Chevron issued subpoenas under Federal Rule of Civil Procedure 45, which governs discovery from nonparties. But the John Does - represented by San Francisco's Electronic Frontier Foundation (EFF) and EarthRights International in Washington, D.C. - moved to quash, asserting their First Amendment right to anonymous speech and association.

"This information would allow Chevron to create a comprehensive and detailed map of each person's movements over a nine-year period," stated lead counsel Cindy Cohn of EFF. "[It] would also allow Chevron a virtual itinerary of who each individual has met with, what buildings they have worked out of, what organizations they have worked with, and other potentially sensitive information implicating associational freedoms, which are protected by the First Amendment."

But in June, Judge Kaplan denied EFF's motion to quash the Microsoft subpoena, which sought metadata from 30 of the individual Does. Kaplan ruled that because the account holders were anonymous, he could not assume they had U.S. citizenship or extend to them any constitutional protections. In a subsequent order denying reconsideration, he asserted, "The right to private association is inapplicable ... because the First Amendment does not shield fraud."

Defense attorneys filed a notice of appeal while they await rulings on the Google and Yahoo subpoenas. "The First Amendment isn't trumped by the requirements of civil RICO," argues EFF's Cohn. "You don't lose your constitutional rights because someone alleges a conspiracy."

So what does Chevron's search for nonparty metadata amount to? "It doesn't make much sense," says defense counsel Marco Simons of EarthRights International. "What Chevron is asking for is intrusive and harassing, but not particularly useful. ISP metadata could be routed through servers in other locations, producing unreliable results. It's a 'no stone unturned' litigation strategy."

But David K. Isom, a commercial litigator and electronic discovery consultant in Salt Lake City, isn't so sure. The where and the when, he contends, often tells who and what and why. And because location-based metadata can be triangulated and corroborated from multiple sources, Isom predicts that successful challenges to admissibility in discovery will be rare.

The technology permitting metadata retrieval, he adds, is widespread and becoming commercially available. "Now, the software is user-friendly and cheap," Isom says. "You can even buy an app for your own cell phone to track where you've been."

The ISPs, Isom says, are wary of involvement in civil litigation. "The ISPs are in a quandry," he says. "Tracking location-based metadata is incredibly important to advertisers, but responding to subpoenas could be expensive if the ISPs are drawn into routine discovery disputes."

Isom believes that only findings of low proportionality and importance will limit subpoenas for metadata. "Chevron's RICO suit," he says, "is the perfect case to test what I'm talking about."

But privacy lawyers have a different vision. "The level of digital tracking is very different than it was just 20 years ago," Cohn says. "Civil discovery doesn't take that into account. We intend to bring constitutional rights into the discussion."

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