Bowoto v. Chevron Corp.

N.D. Cal. Jun. 12, 20062006 WL 1627004

Presented by Joe Siclari

Background

• Locals in Nigeria protest Chevron-Nigeria’s regional business activity

• Litigation spawns from 2 incidents• May 25-28, 1998 – Nigerian locals board the parabe, a

Chevron platform in protest• Chevron allegedly helps security forces• January 4, 1999 – Nigerian Government security forces

assault the villages of Opia and Ikenyan• Chevron is accused of helping government forces in

possible retaliation for the earlier protest

Legal Issues

• Constitutional rights• Human rights• RICO• Chevron USA brought in as a Defendant• Parent company liable for subsidiary?• Piercing the corporate veil• International law• Venue established in California

Issues of June 12,2006

• Chevron retains experts – Freed & Ebert• Digital model of barge – “Seaway Orion”• Ebert – obtained data of ship firsthand, obtained 3

mechanical drawings• Freed – used Ebert’s data to create model in LightWave 3D

software. • Model designed to give a first-person type of view• Plaintiff seeks to exclude as inaccurate

Evidentiary Issues

• Federal Rules of Evidence• Rule 702 – Expert Testimony• Rule 403 – Exclusion as to undue

prejudice • Rule 901 – Authentication

Rule 702

• If scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

• Applied liberally• Combat with “vigorous cross-examination”

Rule 403

• Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Issues with accuracy of the barge model

• Not accurate on May 28, 1998• Permanent vs. Temporary fixtures• Scaffolding/strong boxes/drums/containers• Line of sight obstructions• Witness testimony• “fair and accurate” depiction of the original

Issues with Freed’s ability to testify

• Freed has difficulty with LightWave software

• Plaintiff’s argue he is parroting opinion by assistants

• Court disagrees

Issues with Authentication

• Federal Rules 901(a) and 901(b)• Model based on 3 drawings• Drawings specify “Seaway Orion”• Drawings obtained from ship captain• Corroborated by photos and measurements• Shows general design• 901(b)(4) standard is met• Not being offered to prove a disputed fact

Holding

• Plaintiff’s motion granted in part• Model of the barge is excluded on

Rule 403 grounds

Questions

• Is this an E-Discovery issue?• Does this establish a higher

standard?