Pamela A. MacLean’s recent article, entitled “Chevron Lawyers Rebuked in Nigeria Case,” in the National Law Journal recounts U.S. District Judge Susan Illston’s rebuke of Jones Day lawyers for their unwillingness to come forward in the confusion over the controlling party of Chevron’s Nigerian subsidiary.  Illston is quoted as having written that “[e]ven setting aside the question of whether defendants had a duty to promptly correct the discovery responses they provided to plaintiffs’ counsel, defendants had an obligation to clarify the misunderstanding of this court. Allowing this litigation to proceed, while the opposing party and the court suffered from an obvious misunderstanding, was not acceptable.”

The article goes on to explain that although Illston eliminated several plaintiff theories of liability, including violations of the Torture Victim Protection Act and Alien Tort Claims Act, she maintained other potential liabilities for Chevron’s alleged crimes against humanity, California state law liability for assault and battery, wrongful death and negligence, allowing for potential punitive damages.

While Robert Mittelstaedt, lead attorney for Jones Day, declined to comment on the judge’s criticism, Chevron spokesman Kent Robertson is quoted as saying that Chevron “will be filing new motions against the state law claims. The judge got rid of the Alien Tort Claims statute, which leaves only the crimes against humanity claim, which we don’t believe the plaintiffs will be able to establish.”

In response, ERI’s Legal Programs Director, Marco Simons said that Illston has “allowed us to proceed to challenge all the wrongful conduct. No claim was dismissed,” only some legal theories of liability. In addition, Illston opened the way for the deposing of two recently discovered key witnesses, employees of a contractor who were aboard the boat that took the soldiers to the villages where residents were killed and buildings burned. Simons said that he does not find her elimination of some theories significant to the overall case.”