Published in Law360
The battle over liability for the pollution of the Lago Agrio oil fields in Ecuador has spanned more than 20 years, cost millions of dollars, employed hundreds of attorneys, spawned related litigation in five countries – most recently in the United States – and in addition to the legal community has captivated activists, scholars, journalists, politicians, scientists and celebrities alike.
On Monday, April 20, a panel of the U.S. Court of Appeals for the Second Circuit is scheduled to hear arguments in the appeal of a March 2014 ruling by the U.S. District Court for the Southern District of New York, which found an unprecedented $9.5 billion pollution judgment against Chevron Corp. to be the product of an “egregious fraud.”
According to attorney Steven Donziger – who represented the plaintiffs in Ecuador and who is now a defendant along with two of his clients from Ecuador in the RICO case brought by Chevron in New York – the following op ed is the first time he has put forth his own views of the case in a detailed account. Here is Donziger’s case against Chevron, in his own words.
Chevron’s model of perpetual litigation to evade paying its $9.5 billion environmental liability in Ecuador not only is harming thousands of vulnerable people in the rainforest, but suggests profound flaws in our legal system when it comes to the high purpose of protecting the rights of human rights victims and other vulnerable peoples harmed by tortious conduct. Chevron’s strategy, which seeks to win by might what cannot be won on merit, is designed to evade an order from the highest court in its chosen forum of Ecuador that it remediate an ecological and humanitarian disaster that threatens the well-being of tens of thousands of people. As one of the U.S. lawyers who worked with a talented group of Ecuadorian advocates to help win the judgment and who now finds himself the main target of Chevron’s retaliation campaign, I want to present my perspective on the history of this two-decade dispute and explain why I and others working for those affected believe the company’s strategy distorts basic facts, undermines the rule of law and ultimately will backfire.
For decades Chevron (operating as Texaco) engaged in drilling practices that ravaged the rainforest environment and decimated five indigenous groups. A top Chevron executive, Rodrigo Perez Pallares, admitted during trial that the company systematically and deliberately discharged nearly 16 billion gallons of toxic formation waters into rivers and streams relied on by indigenous communities for their drinking water, bathing and fishing.1 To find Chevron liable, the Ecuador court relied on Chevron’s own environmental audits and 105 technical evidentiary reports that confirmed extensive contamination at all of the company’s 400 former well sites and production facilities. Chevron also abandoned roughly 1,000 unlined toxic waste pits that continue to contaminate soils and groundwater. Several peer-reviewed studies confirm extraordinarily high rates of childhood leukemia and other cancers in the region.2 In recent days, yet more damning evidence has emerged from internal Chevron videos that show company technicians mocking the pollution and engaging in what appears to be an elaborate ruse to hide contamination from the court during the Ecuador trial.3 The damages award in Ecuador is also a modest fraction of BP’s liability for its much smaller and accidental Gulf of Mexico spill.
Given the overwhelming evidence accumulated over an eight-year trial, it was not surprising that two separate appellate courts in Ecuador (including the nation’s Supreme Court) unanimously affirmed the trial court judgment after de novo reviews of the facts and law as required by the country’s civil law system. In all, eight separate appellate judges rejected Chevron’s complaints that its due process rights were violated. Essentially, one of the world’s wealthiest corporations – one with annual revenues often well over $200 billion – externalized the costs of its pollution to some of the world’s most vulnerable and impoverished citizens. Much like some large banks did during the financial crisis in this country, Chevron was able to privatize its profits in Ecuador while socializing most of its costs. The discharges violated multiple environmental laws on the books in Ecuador at the time as well as the company’s operating agreement with the host government. Evidence during the trial also demonstrated that a subsequent half-hearted “remediation” attempt by Texaco in the mid-1990s – negotiated directly with Ecuador’s government after the private civil lawsuit was filed by the villagers – was wholly inadequate if not an outright fraud.4
Chevron’s allegation that a “bribe” explains why it lost the case in Ecuador is not credible. The so-called proof comes from the testimony of a disgraced former Ecuadorian judge (Alberto Guerra) who had been removed from the bench for corruption and who faces criminal prosecution in his own country. Chevron agreed to pay Mr. Guerra roughly $2 million (including payments of $38,000 in cash from a suitcase) in exchange for his testimony. The company also relocated Mr. Guerra and several family members to the U.S. and gave them cars, health insurance, a housing allowance and immigration lawyers.5 Lured by Chevron’s promise of more payouts, Mr. Guerra changed his story at least three times as new facts emerged that rendered his previous claims implausible. Key evidence that could have corroborated Mr. Guerra’s claims (such as a personal diary where he testified he kept notes of his appointments) mysteriously disappeared. Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York also found that “Chevron unsuccessfully sought a favorable statement from Zambrano” – a nice way of saying that Chevron expressly tried to use Guerra as a “bridge” to open similar “negotiations” with Zambrano on how much he would need to testify favorably to Chevron.6 Zambrano testified that the opening bid was $1 million and he understood it to mean “whatever he wanted.”7
I believe that Mr. Guerra fabricated the story about a fake bribe that could be used to try to undermine the judgment. And he did so in exchange for the aforementioned payouts from Chevron. Recently, a new report by a forensic expert who examined the office computers of the Ecuador trial judge concluded Mr. Guerra was falsifying evidence: the report states unequivocally that the judgment was written painstakingly on the computer over a period of months and not written elsewhere and given to the judge via a flash drive at the last minute.8 What happened with Chevron’s purchase of Mr. Guerra’s testimony is not only unethical; it appears to violate the federal anti-gratuity statute and creates potential exposure for those who worked with him to bring his story into open court where he was sworn to tell the truth. Given the various renditions of Mr. Guerra’s story, it is no wonder that Chevron’s lawyers prepped their star witness for an average of five hours per day for 53 consecutive days (excluding weekends) before allowing him to be subject to cross-examination.9
Chevron also disregards important historical context to hide its bad faith. The indigenous communities initially filed their claims against Texaco in 1993 in U.S. federal court. Texaco and then Chevron fought for almost 10 years to move the matter to Ecuador. (Chevron bought Texaco in 2001 and became ChevronTexaco. It later changed its name to Chevron.) In the 1990s, Texaco filed 14 affidavits before U.S. Judge Jed S. Rakoff praising the fairness of Ecuador’s courts and promising to accept jurisdiction there. Only when the scientific evidence mounted at the ensuing trial in Ecuador did Chevron start to attack the very courts it had previously praised.
According to internal Chevron memos and emails, company management also launched a strategy to “demonize” its adversary counsel and to portray Ecuador as a “banana republic” that is the next “Cuban missile crisis in the making.”10 It later authorized dozens of discovery lawsuits in at least 25 federal courts against consultants for the communities, their financial supporters, environmental groups that tried to publicize their plight, and even shareholders who challenged company management over the scorched earth tactics. Chevron also sued Ecuador’s government before a private investor arbitration panel that meets in secret and bars representatives of the villagers from appearing. Chevron is seeking an order from this tribunal – which the villagers consider to be acting ultra vires in violation of international law – to shift the entirety of its Ecuador liability to the country’s government. In other words, Chevron is seeking a taxpayer-funded bailout of its liability to be paid by some of the same Ecuadorian citizens (via their taxes) who were victimized by the company’s shoddy operational practices. One might imagine the uproar here if BP tried to seek a taxpayer-funded bailout from American citizens of the cleanup costs related to its 2010 spill in the Gulf of Mexico on the grounds that it had been treated unfairly by our courts.
Given Chevron’s subterfuge in Ecuador – among many other tactics, the company threatened a judge with jail time and tried to paralyze the court with frivolous motions11 – the trial took eight years to complete on top of the nine long years it took to resolve the original jurisdictional question in the United States. But Chevron was just getting started. Even though it had wanted to adjudicate the matter in Ecuador, after seeing its preferred courts actually receive competent scientific evidence the company announced in the middle of trial that it would not pay up even if it lost. Chevron also stripped its remaining assets from Ecuador, largely by selling a series of Texaco service stations. It also threatened indigenous leaders with a “lifetime” of litigation if they persisted in pursuing their claims.12
We also learned from State Department diplomatic cables that during the trial Chevron officials were communicating regularly with U.S. embassy officials in Quito.13 In my opinion, the company was trying to engineer an end-run around the legal case. Chevron lawyers worked with the U.S. ambassador to craft a package of debt relief and social programs to be presented to Ecuador’s president in return for a hoped-for agreement that would make the case go away. Chevron also dispatched lobbyists to try to cancel U.S. bilateral trade preferences for Ecuador to retaliate for the Ecuadorian government’s refusal to dismiss the claims of its citizens – even though, as stated, the company had agreed to a trial in Ecuador on those very claims. That Chevron maneuver led to a backlash: 26 U.S. congresspersons and four senators signed letters to the United States Trade Representative insisting that our government stay out of the dispute.14 If Chevron had succeeded in canceling trade preferences, it was estimated that upwards of 300,000 jobs in Ecuador would have been lost.
This type of improper and unethical pressure campaign by Chevron was a constant during the proceedings. During the trial, a Chevron contractor deeply involved in the case was recorded on tape telling a friend that he would be paid and protected by Chevron for life because he had saved “correspondence that talks about things you can’t even imagine, dude … things that can make the Ecuadorian villagers win this just like that.”15He also confessed to swapping out dirty soil samples for clean ones and setting up dummy labs for Chevron that appeared independent but were actually controlled by the company. As mentioned above, Vice News recently published an article featuring stunning video footage (turned over to Amazon Watch by an apparent Chevron whistleblower) that shows company technicians during inspections of Texaco’s former well sites. The inspections were designed to identify places where the company could safely lift “clean” soil samples when the judge showed up. On one occasion, I witnessed Chevron’s legal team arrive at a critical judicial inspection with dozens of uniformed army soldiers who rode in on an armored vehicle carrying weapons. The purpose seemed clear: to intimidate members of the Cofan indigenous group who had waited years to testify about how their culture had been wrecked by contamination.
Chevron lawyers at one point “worked with” Ecuador’s ambassador to submit a letter to a U.S. federal judge urging dismissal of the case.16 On another occasion, the company hired a recently retired U.S. ambassador to Ecuador to lobby the country’s executive branch to block the litigation. In Argentina, where an enforcement action had been filed by the villagers, Chevron CEO John Watson traveled to Buenos Aries to meet with President Cristina de Kirchner. I believe that Mr. Watson conditioned a new $1.5 billion investment in a gas field on the dismissal of the collection claim of the Ecuadorians because within days, Argentina’s attorney general had interfered in the enforcement action by demanding that the country’s Supreme Court dismiss our claim, which it promptly did.17 (Although our enforcement action against Chevron in Argentina was rejected on narrow technical grounds, we thus far have not re-filed it because of Chevron’s obvious capacity to successfully exercise its political muscle in the country.)
My view is that the findings issued in 2014 by U.S. Federal Judge Lewis Kaplan in what has become the central feature of the company’s demonization campaign – a civil racketeering lawsuit against me personally – are deeply flawed and in any event are under appeal. It gives me no pleasure to publicly criticize a federal judge except when called for by the extraordinary circumstances which I believe are present here. Given my long involvement in helping the affected indigenous communities hold Chevron accountable, I consider the company’s RICO action a retaliatory SLAPP lawsuit writ large. Judge Kaplan invited Chevron to bring the case, assigned it to himself, and then repeatedly disparaged the villagers and their counsel.18 He called the case a “giant game” and referred to the villagers as the “so-called plaintiffs” who are “said to reside” in the rainforest. He characterized me (a member of the bar for 23 years) as a “field general” intent on using the matter to help “fix the balance of payments deficit” of the United States.19 Given such charged rhetoric by a sitting judge, the Second Circuit Court of Appeals scheduled two extraordinary arguments to decide whether the matter should be reassigned. The appellate court even invited Judge Kaplan to submit his own brief to defend his handling of the case. Ultimately, the appellate court reversed the district court on a preliminary injunction ruling but declined to reassign the matter prior to trial.
As the trial date for Chevron’s racketeering case before Judge Kaplan approached, it looked to me like Chevron panicked at the thought of putting its evidence before a jury. The company apparently had so little faith in its evidence that it dropped its massive damages claim to ensure a bench trial from a judge whose proclivities in favor of the company had become obvious to everybody on our team – including to my then counsel, the venerable trial attorney John Keker. Under a provision of RICO allowing for treble damages and fees, Chevron had sued me personally for roughly $58 billion, or three times the amount of the original judgment in Ecuador, plus costs. Our research indicated this was the largest potential personal liability in our nation’s history. Prior to trial, and with the jury out of the way, Judge Kaplan excluded all of the scientific evidence of Chevron’s contamination that provided the basis for the finding of liability in Ecuador. In what I would suggest is nothing short of a profound act of arrogance, Judge Kaplan also refused to admit the trial and appellate judgments from the courts in Chevron’s chosen forum of Ecuador. Chevron had alleged the entire case in Ecuador was a sham, but then persuaded Judge Kaplan to block us from using all of the critical evidence necessary to prove otherwise. Chevron also refused to show any of the 600 hours of its much-vaunted video outtakes (from the documentary film Crude) after it had been caught manipulating them in the editing room.20 (A Chevron lawyer blamed a “transcription error”.) Finally, given that Chevron was at best on very shaky legal ground for using RICO to seek a private party injunction against adversary counsel, Judge Kaplan amended the company’s complaint in chambers after trial to add a new cause of action. He then granted this judge-generated claim in favor of Chevron before we could contest it.21
Although I contest all of Judge Kaplan’s findings – the specifics are in the appellate briefs available on my website at www.stevendonziger.com or at www.guptabeck.com – I want to mention two as illustrative of what I believe is the dishonesty at the very core of Chevron’s allegations. The first concerns the video outtakes from the film Crude mentioned above. Chevron has gone so far as to finance the construction of stand-alone websites to promote its truncated version of the outtakes to tarnish my reputation. But the outtakes presented by Chevron publicly and cited by Judge Kaplan in his decision are almost always grossly misleading or lacking in context. For example, Chevron likes to claim my “personal motto” is this excerpt from a longer comment I made on tape: “Facts do not exist. Facts are created.” What I actually said is, “Facts did not exist. Facts are created. And you talk to Texaco, because they create facts. They create standards … That’s what I am saying. They create fiction.” In another of Chevron’s outtakes, I assert that “we are going to confront the judge and let him know what time it is.” But this was spliced and then stitched together in Chevron’s editing room. What I actually said: “We are going to confront the judge who we believe is paid by Texaco. We believe he is corrupt, and we’re going to confront him, ah, with – with our suspicions about his corruption and let him know what time it is.”22 There are literally dozens of similar examples of Chevron manipulating my words in the editing room so as to change the meaning of my comments. In any event, the overall body of the outtakes prove nothing other than that I worked hard for my clients, believed in the validity of the evidence, was often frustrated with what I believed were Chevron’s attempts to sabotage the trial process. They also show that I sometimes spoke in hyperbole – a characteristic not uncommon among lawyers talking privately during a hard-fought litigation. As I look back, I certainly wish I had been more disciplined with some of my comments. But the outtakes are irrelevant to the underlying findings related to Chevron’s pollution. They are highly relevant to illustrate how Chevron distorts evidence.23
The other issue is Chevron’s constant harping on the fact that our U.S.-based technical consultants drafted a damages report for an Ecuadorian expert (Richard Cabrera) that we asked to the court to appoint without disclosing the details of the process to Chevron or to the court. We reject Chevron’s allegation that the Cabrera report was prepared improperly. Chevron’s lawyers planned and drafted reports for its court-appointed experts in exactly the same way. All experts who signed these reports were signaling to the court that the contents reflected their best independent judgment based on their expertise. The process is similar to how many expert reports are prepared for litigation in this country. Our position on the Cabrera issue has been supported by sworn affidavits from numerous legal scholars in Ecuador. Two separate appellate courts in Ecuador rejected Chevron’s demand that the entire eight-year proceeding be nullified because of how this one report – one of 105 technical evidentiary reports submitted by the parties – was prepared. More to the point, because of the controversy generated by Chevron’s constant criticism of the Cabrera report, the trial court actually granted Chevron’s motion to exclude it and instead relied almost completely on Chevron’s own evidentiary reports to find liability.
The Cabrera report and video outtakes aside, there is a bigger jurisprudential problem with Judge Kaplan’s decision that has far-reaching implications for our legal system. For the first time, a trial court imposed a private party injunction based on the RICO statute without a parallel claim for money damages – a step long opposed by the United States government, various business groups including the U.S. Chamber of Commerce, and even by Chevron’s own appellate counsel (Theodore B. Olson) when he served as Solicitor General during the Bush administration. The Second Circuit Court of Appeals had unanimously reversed Judge Kaplan in 2011 when he tried – without even holding an evidentiary hearing – to issue an unprecedented preliminary injunction purporting to bar the citizens of Ecuador from enforcing their judgment anywhere in the world. The appellate court found that decision by Judge Kaplan violated international law and lacked any valid basis in U.S. law.24 Mr. Keker, who represented me during this period, said he felt “like a goat tethered to a stake” in Judge Kaplan’s courtroom. He also said the case had degenerated into a “Dickensian farce.”25
At one point, given that I could not keep up with the fees involved in defending against Chevron’s massive discovery demands – the company presented 1,228 requests for admissions – I proceeded pro se for several months against at least 114 lawyers from Gibson Dunn & Crutcher. After the nonjury trial ended in late 2013, Chevron had the temerity to ask Judge Kaplan to order that I pay for what it described as a “small portion” of its legal fees. The amount of the invoice attached to the motion was $32 million based on hourly rates that exceeded $1,200 for some lawyers. (Chevron’s fee motion, which Judge Kaplan deferred, remains a Sword of Damocles hanging over my family. I am sure that is how Chevron intended it.)
Consider the wider implications for international law of Judge Kaplan’s ruling. For the first time in history, as far as our extensive research shows, a U.S. trial court in effect tried to overturn a final de novo decision by a foreign nation’s Supreme Court on questions of that foreign nation’s law. It seemed not to matter that Ecuador is a U.S. ally and commercial trading partner – or that Chevron recently won two civil lawsuits against the state oil company in the very judicial system there that it now condemns. One might imagine the reaction in this country if a trial judge in Ecuador (or in England or any other country for that matter) tried to reverse our nation’s Supreme Court on a question of U.S. law. It bears mention that 35 international law scholars from nine countries and 17 U.S. civil society organizations have signed amicus briefs urging reversal of Judge Kaplan’s ruling.26
Also disturbing is how Chevron has played different jurisdictions against each other in a litigation version of three-card monte. After insisting the dispute be resolved in Ecuador, Chevron sold its assets there so it would be judgment-proof. Realizing it was likely to lose in Ecuador, Chevron returned to the same U.S. court where it had blocked the original trial to seek a bailout of its decision to agree to jurisdiction in Ecuador. Because Judge Kaplan has blocked enforcement of the Ecuador judgment in the United States, the indigenous groups have gone to Canada and Brazil to seize company assets. But Chevron now maintains that its assets in those jurisdictions should be immunized because they are held by wholly owned subsidiaries. But Chevron operates outside the U.S. only through its wholly owned subsidiaries. Thus, according to Chevron’s convoluted theory, the villagers never will be able to collect the first dollar of their judgment anywhere in the world. This is a mockery of the rule of law.
It also bears mention that Chevron tied up two key financial supporters of the affected communities in a lawsuit in Gibraltar where the company is asking a local judge to re-litigate the very factual issues that already were heard and disposed of in Ecuador during the 11 years of trial and appellate proceedings.27 When the Gibraltar judge indicated he wanted to travel to Ecuador to inspect the damage, Chevron opposed the trip and suggested he should be recused. Chevron also has dispatched at least 150 individuals from Kroll and other private investigations firms in what can only be described as a massive espionage operation that has included, on occasion, surveillance of private conversations and the trailing of me and my family in Manhattan and elsewhere.28 Kroll’s CEO admitted under oath that Chevron had paid the company at least $15 million for services that included the preparation of “20 to 30” investigative reports about me personally.29 It also came out that Kroll had tried to pay an American journalist, Mary Cudahee, to spy on our team in Ecuador.30 Chevron’s espionage against adversary counsel – conduct that obviously raises the most serious of ethical concerns – has been a constant feature of the company’s litigation model.
Chevron likes to defend itself by pointing out that lawyers and consultants on our team who were sued by the company have left the case – as if that proves anything other than the company’s own strong capacity and fervent desire to weaken its adversary by abusing the civil justice system and avoid litigating on the merits. For example, in 2011 Chevron sued our scientists at Stratus Consulting in Boulder, Colorado, as part of the RICO case after two individuals from the company had testified under oath and provided interviews with various news outlets about the extent of Chevron’s contamination in Ecuador. Chevron then pushed Stratus, which had approximately 75 employees, to the edge of bankruptcy. Chevron filed an extraordinary amicus brief on behalf of Stratus’ insurance company to help it evade reimbursement of legal fees to Stratus based on Chevron’s theory that a “fraud” occurred in Ecuador. When Stratus could no longer receive reimbursement of its legal fees, it could not properly defend against Chevron’s attacks and also remain solvent.31 Chevron also wrote letters directly to several Stratus clients urging them to cut ties with the company based on various pretrial decisions of Judge Kaplan regarding the so-called fraud.32 Chevron even attacked the company on one of its own websites.33 To avoid further litigation costs and harassment – and to forestall a total collapse of the company – Stratus simply dropped out of the case. The price paid by Stratus to get Chevron to cease its attacks was detailed affidavits clearly drafted by Chevron’s lawyers and signed by the two aforementioned scientists (neither of whom had their own counsel) claiming that I had misled them about the evidence and the Ecuadorian court process – allegations that I categorically deny and ones that contradict rulings from three layers of courts in Ecuador. In contrast to the departure of Stratus and also the law firm Patton Boggs (which faced its own backbreaking retaliatory lawsuit from Chevron before none other than Judge Kaplan), multiple prominent law firms around the world have stood up to Chevron’s tactics and continue to work closely with the communities and their counsel. They include Gupta Beck in Washington, Lenzcner Slaght in Toronto, the Law Firm of Sergio Bermudes in Rio de Janiero, Bruchou, Fernandez Madero & Lombardi in Argentina, and Professor Burt Neuborne from New York University Law School.
Many years after it designed oil wells to discharge untreated waste directly into Ecuador’s rainforest, Chevron has yet to pay one dollar directly to those it harmed. In contrast, BP quickly set aside $20 billion to compensate its victims after its Gulf of Mexico spill in 2010. BP’s total liability is now five times greater than Chevron’s liability in Ecuador even though its impacts have been felt for only five years, as opposed to five decades. Chevron’s model of perpetual litigation – the company has used at least 60 law firms and 2,000 lawyers on this one matter – unfairly delays a remedy for the long-suffering communities, undermines the claims of human rights victims everywhere, and casts a leading American company in the role of ogre on a global scale.
If Chevron CEO John Watson thinks this strategy serves the interests of company shareholders, he might reconsider. Dozens of environmental groups around the world are in the process of organizing a targeted global boycott of Chevron to be imposed by oil-producing governments on the grounds that the company regularly shirks compliance with local laws. Already, multilateral diplomatic organizations in Latin America (such as CELAC, the Community of Latin American and Caribbean States) have condemned Chevron’s environmental practices in Ecuador. Ecuador President Rafael Correa, a U.S.-educated economist who polls indicate is one of the most popular leaders in Latin America, has launched a full-scale defense of his country against the oil giant’s attempt to use bilateral trade as a political weapon in the litigation. Last year, 43 U.S. civil advocacy organizations (including the Sierra Club, Greenpeace and Friends of the Earth) signed a letter to Mr. Watson characterizing his use of lawsuits to try to silence the company’s critics as a violation of the First Amendment.34 Just last month, dozens of environmental and human rights groups signed another letter condemning Watson for receiving a global citizenship award in San Francisco while the Ecuador contamination problem festers for the fifth decade.35
There must be a reasonable alternative to Mr. Watson’s unending cycle of litigation which we believe is fast becoming a nightmare for the company and for the affected villagers who continue to suffer the impacts of the contamination. In the interests of both justice and shareholder value, Chevron should stop trying to short-cut rulings on the merits by suing the lawyers and plaintiffs who are helping to hold it accountable. Chevron has sued not only the lawyers who have fought for the victims in Ecuador, but also the lawyers who have dared to help the lawyers who fought for the victims.36 I personally have been told by lawyers working for the Ecuadorians in enforcement jurisdictions outside the United States that they have been threatened by Chevron’s representatives with yet more racketeering-style actions that would be brought under the laws of their countries. This is a litigation model based in part on intimidation. It uses the stretching out of the litigation itself – including the contrivance of every distracting issue conceivable to keep the process from ending – as its core defense strategy. In my opinion, the improper aspects of the Chevron model in the Ecuador pollution matter – which are unlike anything I have ever seen or heard of in my lifetime – should be scrutinized carefully by the profession and sanctioned as appropriate.
It is long past time for taxpayer-funded public courts around the world to ensure they are not used by deep-pocketed litigants to improperly turn the tables on human rights victims and their lawyers. After more than two decades of court battles across countries and continents, the rainforest communities affected by Chevron’s man-made ecological calamity in Ecuador deserve a final resolution of their underlying claims without delay.
1 See Letter from Rodrigo Perez Pallares, Legal Representative of Texaco in Ecuador, to Xavier Alvarado Roca, President, Vistazo Magazine, published in El Comercio newspaper, March 16, 2007, Dkt. No. 528-2, Chevron Corp. v. Donziger, No. 11-cv-0691 (S.D.N.Y. Jul 20, 2013).
2 See Summary of Independent Health Evaluations of Area of Ecuador’s Rainforest Where Chevron Operated from 1964 to 1990, athttp://chevrontoxico.com/assets/docs/cancer-summary.pdf (citing articles in the International Journal of Epidemiology, the International Journal of Occupational and Environmental Health, and others).
3 See Robert Eshelman, The Chevron Tapes: Video Shows Oil Giant Allegedly Covering Up Amazon Contamination, VICE, Apr. 8, 2015, athttp://goo.gl/yqGRrn.
4 The evidence of this fraud has been summarized (with links to source documents) on the Ecuadorians’ advocacy website. See Texaco’s Sham Remediation of Contamination at Well Sites (Mar. 2011), at http://goo.gl/NYJcW4, and was recently addressed in a column by our former spokeswoman, see Karen Hinton, Chevron’s Sham Remediation in Ecuador: Toxic Oil Pits Continue to Contaminate, The Huffington Post, Nov. 14, 2014, at http://goo.gl/HXZIGc. Numerous field tests since the time of the remediation show that supposedly “remediated” pits are still oozing with oil. Id. Moreover, regardless of the validity of the remediation and the “release” of claims based on that remediation, that release is by its own terms limited to particular claims held by the government and Petroecuador, not the separate claims of the affected villagers. Chevron’s contrary view that the release should be read more broadly to encompass the villagers’ claims has been rejected by multiple courts in Ecuador and most recently by a panel of three arbitrators in a private investor proceeding brought by Chevron itself against Ecuador’s government under the U.S.-Ecuador Bilateral Investment Treaty. See Ted Folkman, Ecuador Wins A Round In The Investment Treaty Arbitration, Letters Blogatory, Mar. 13, 2015, at http://goo.gl/068dNQ.
5 The quantification of value given to Guerra has not been disputed by Chevron. It was arrived at by adding up all the benefits Guerra received, at least as set forth in the public record. A summary of the numbers is available in the motion to strike Guerra’s testimony at Dkt. No. 1640,Chevron Corp. v. Donziger, No. 11-cv-0691 (S.D.N.Y. Oct. 30, 2013), available at http://goo.gl/NKzJuz, and at pages 53-55 of my opening appellate brief, Dkt. No. 150, Chevron v. Donziger, No. 14-826 (2d Cir. Jul. 16, 2014), available at http://goo.gl/6kZoU0 (“Donziger Brief”).
6 See Chevron v. Donziger, 974 F. Supp. 2d 362, 571 n.1072 (S.D.N.Y. 2014), available at http://assets.law360news.com/0515000/515133/show_temp%20%2823%29.pdf; also Track 2 Supplemental Rejoinder on the Merits of the Republic of Ecuador, Chevron Corp. v. Republic of Ecuador, PCA Case No. AA277, Mar. 17, 2015, at pp. 128-129, available at http://goo.gl/RgmBhl (“ROE Supp. Rejoinder”).
7 974 F. Supp. 2d 362, 571 n.1072.
8 See ROE Supp. Rejoinder at pp. 122-124 (Citing Expert Report of J. Christopher Racich, dated Nov. 7, 2014).
9 ROE Supp. Rejoinder at 131.
10 Internal Chevron documents discussing these strategies are available at http://goo.gl/OTYP1H and http://goo.gl/prQR99.
11 For a more (but still not fully) comprehensive review of Chevron’s misconduct, see Declaration of Juan Pablo Sáenz M, Chevron Corp. v. Donziger, No. 11-cv-0691, Dkt. No. 145 at 28-32 (S.D.N.Y. Feb. 17, 2011), and exhibits thereto, available at http://goo.gl/qaT1I3 (“Sáenz Decl.”).
12 See Chevron Calls for Dismissal of Ecuador Lawsuit, Chevron Press Release, Oct. 8, 2007, at http://www.chevron.com/news/press/release/?id=2007-10-08.
13 The cables are available at: https://wikileaks.org/cable/2008/04/08QUITO323.html; https://wikileaks.org/cable/2009/09/09QUITO795.html;https://wikileaks.org/cable/2006/03/06QUITO705.html; and https://wikileaks.org/cable/2009/09/09QUITO860.html.
14 See Letter from Rep. Linda Sanchez et al. to Ron Kirk, U.S. Trade Representative, dated Dec. 14, 2009, available at http://goo.gl/zAGJyu; Letter from Sen. Ron Wyden et al. to Ron Kirk, U.S. Trade Representative, dated Jun. 25, 2009, available at http://goo.gl/Ty2Ja4.
15 See, e.g., Sáenz Decl. at 23-28.
16 See Track 2 Supplemental Counter-Memorial on the Merits of the Republic of Ecuador, Chevron Corp. v. Republic of Ecuador, PCA Case No. AA277, Nov. 7, 2014, at 4 n.3, available at http://goo.gl/xmsZtk, citing, inter alia, Fax to R. Veiga (Texaco) from M. Kostiw (Texaco), dated Dec. 6, 1993 (containing draft text of “Diplomatic Note” from the Embassy of Ecuador to the U.S. Department of State), available athttp://goo.gl/5nVsvh.
17 See, e.g., Augustino Fontevecchia, Chevron’s Argentine Shale Dream: Supreme Court Decision Paves Way For YPF Deal To Develop Vaca Muerta, Forbes, Jun. 5, 2013, at http://goo.gl/kN5ilA.
18 See, e.g., Petition for Writ of Certiorari, In Re Hugo Gerardo Camacho Naranjo And Javier Piaguaje Payaguaje, No. 11-2259, Dkt. No. 1 at 25, 13-14, 21 (2d Cir. Jun. 2, 2011), available at http://goo.gl/lQpsV8 (“First Mandamus Pet.”).
19 First Mandamus Pet. at 13.
20 A few of the many manipulations are more fully explained at Pages 30-31 of the Donziger Brief.
21 See Reply Brief of Steven Donziger et al., Chevron v. Donziger, No. 14-826, Dkt. No. 317 at 30 (2d Cir. Jan. 6, 2015), available athttp://goo.gl/eX6jU1 (“Donziger Reply Brief”).
22 See, e.g., Donziger Brief at 30-31.
23 For those who criticize our legal team for cooperating with an independent documentary filmmaker during the litigation, our goal was to try to draw attention to the plight of our clients whose lives were (and are) in grave danger. Making movies about a litigation while it is happening is not unusual in the human rights world. Chevron’s appellate counsel in this very case, Theodore B. Olson, made just such a movie with David Boies documenting their joint effort to overturn California’s anti-gay marriage law. That film, “The Case Against 8”, ran on HBO in 2014.
24 See, e.g., Roxanne Palmer, 2nd Circ. Axes Injunction In Chevron’s $18B Ecuador Row, Law360, Sept. 19, 2011, at http://goo.gl/oVUgKh.
25 See Memorandum Of Law In Support Of Keker & Van Nest LLP’s Motion By Order To Show Cause For An Order Permitting It To Withdraw As Counsel, Chevron v. Donziger, No. 11-cv-0691, Dkt. No. 1100 at 1 (S.D.N.Y. May 3, 2013), available at http://goo.gl/0NcKrd.
26 See Brief of Amici Curiae International Law Professors in Support of Reversal, Dkt. No. 114, Chevron v. Donziger, No. 14-826 (2d Cir. Jul. 8, 2014), available at http://goo.gl/Lj2Vz0; Brief For Amici Curiae Amnesty International et al., Dkt. No. 110, Chevron v. Donziger, No. 14-826 (2d Cir. Jul. 8, 2014), available at http://goo.gl/z84hr1.
27 See, e.g., Memorandum Of Law In Support Of Petition And Application For An Order Pursuant To 28 U.S.C. § 1782 To Conduct Discovery From MCSquared PR, Inc., In re Application of Chevron Corp., No. 14-mc-0392, Dkt. No. 3 at 17-19 (S.D.N.Y. Nov. 24, 2014), available athttp://goo.gl/8Q4PC8.
28 See Declaration of Denis Collins in Support of Motion for Stay and Procedural Safeguards, Chevron v. Donziger, No. 11-cv-0691, Dkt. No. 1197-2 (S.D.N.Y. Jun. 1, 2013), available at http://goo.gl/X8Unec.
29 See, e.g., Donziger Brief at 33.
30 See Mary Cuddehe, A Spy in the Jungle, The Atlantic, Aug. 2, 2010, at http://goo.gl/EajJ96.
31 See, e.g., Ted Folkman, Lago Agrio: Insurance Coverage Decision Goes Against Stratus Consulting, Letters Blogatory, Nov. 13, 2012, athttp://goo.gl/JZ9XHF.
32 See, e.g., Letter from Chevron Corp. to Ms. Erin Madden, Chair, Portland Harbor Trustee Council, dated Oct. 23, 2012, available athttp://goo.gl/QGNzLE.
33 See Memorandum Of Law On Behalf Of Defendant Stratus Consulting, Inc. In Support Of Its Motion To Amend Its Answer To Assert Counterclaims, Chevron v. Donziger, No. 11-cv-0691, Dkt. No. 695 (S.D.N.Y. Dec. 21., 2012), available at http://goo.gl/wsHH7k.
34 See Open Letter From Institutions, Organizations and Individuals Advocating for Corporate Accountability, at http://goo.gl/o8CqDz.
35 See Letter from Amazon Watch et al. to Gloria C. Duffy, President, The Commonwealth Club, dated Mar. 24, 2015, at http://goo.gl/6w3Pmn.
36 See, e.g., supra note 18; Joint Response Of Defendants In Opposition To Chevron’s Motion To Compel Constantine Cannon LLP andBrownstein Hyatt Farber Schreck, LLP To Produce Documents, Chevron v. Donziger, No. 11-cv-0691, Dkt. No. 874 (S.D.N.Y. Mar. 1, 2013).