After advising Chevron to file civil criminal charges against the Ecuadorians suing the oil giant for contamination AND to drop one of the Ecuadorians’ lawyers from a charge effectively blocking the lawyer from defending himself.... After concluding that the $18 billion Ecuadorian judgment is likely fraudulent and not enforceable (even before arguments are heard) AND that a U.S. court has jurisdiction not only over Ecuadorians, living 3,000 miles away in the rainforest, but also over the entire Ecuadorian judiciary system, the Ecuadorians have asked that U.S. Judge Lewis Kaplan be recused from presiding over Chevron’s lawsuit filed in Kaplan’s court to try and escape justice in the South American country.
In a scorching motion recently filed in the Southern District Court of New York Kaplan is accused of engaging in “gratuitous disparagement” of the 47 named plaintiffs from Ecuador based on his adoption of “Chevron’s world view” that their lawsuit is an elaborate ruse. Without holding an evidentiary hearing and without considering the voluminous 220,000-page record in the Ecuador trial, Kaplan has issued dozens of rulings to prejudice the Ecuadorians, according to the motion.
“With [Kaplan’s] jaded view obscuring the Ecuadorian’s legitimate claims, the Court developed and displayed a deep-seated antagonism toward the Ecuadorian plaintiffs and their counsel,” the motion asserts. “The court’s prior determinations have infected this proceeding.”
The motion also says Kaplan has cleverly tried to insulate his “Draconian and one-sided” rulings from appellate review by creating the appearance that his decisions are not actually final. “These efforts to frustrate the appeal, which have become increasingly tortured, indicate a level of personal investment in the outcome of the case that belies objectivity to any reasonable observer,” asserts the motion.
Examples of Kaplan’s bias, or appearance of bias, that are cited in the motion include:
- Kaplan has called the entire Ecuador lawsuit a “game” that sprung from “the imagination of American lawyers” even though there are 64,000 chemical sampling results in evidence as part of a 220,000-page trial record.
- Kaplan has questioned the very existence of the Ecuadorian plaintiffs, repeatedly using the adjective “so-called” to describe them. The plaintiffs actually are thousands of rainforest residents and members of indigenous groups whose existence has been verified by numerous courts and major media outlets.
- Kaplan has displayed “profound disrespect” for Ecuador’s judicial system, failing to even read the judge’s decision before issuing his preliminary injunction order and then inviting Chevron to bring the racketeering case over which he now presides.
- Kaplan has made numerous intemperate remarks from the bench about the lawyers representing the Ecuadorians and come to conclusions about disputed factual issues that have yet to be tried. For example, Kaplan apparently believes that Ecuador’s government is at fault for the pollution rather than Chevron – a key disputed issue that already has been decided in favor of the plaintiffs by the Ecuador court that had access to the full trial record.
- Kaplan imposed what the motion calls “Draconian” measures on American lawyer Steven Donziger during an earlier Chevron discovery action, claiming he waived privilege on a minor technicality and forcing him to turn over his entire 18-year case file to Chevron as well as all of his personal files and hard drives. Kaplan also forced Donziger to sit for 14 days of depositions conducted by a tag team of Chevron lawyers and a court-appointed Special Master who clearly favored Chevron.
- Kaplan has created rigid motions schedules designed to prejudice the Ecuadorians and Donziger, systematically denying multiple requests for modest extensions of time to supplement the record after Chevron took months to prepare its lengthy lawsuit. Kaplan also denied Donziger sufficient time to obtain a lawyer to respond to Chevron’s lawsuit, and then ruled that his lawyer (John Keker) waived the right to oppose Chevron’s request for an injunction.
- The Special Master appointed by Kaplan, Max Gitter, is a former law partner of Kaplan’s at a law firm (Clearly Gottlieb) that does underwriting work for Chevron – posing a clear conflict of interest that neither that has not been disclosed. According to the motion, Gitter “rapidly became a full-fledged Chevron advocate, actively participating in the examination of Donziger on Chevron’s behalf” and Gitter also “manipulated the answers in Chevron’s favor” by repeatedly refusing to allow Donziger to elaborate in response to Chevron’s barrage of questions.
- Kaplan has shown “flagrant disregard” for the attorney-client privilege, allowing Chevron to question Donziger during depositions about communications with his clients and co-counsel.
“No reasonable person could conclude that a judge who invited, suggested, or encouraged plaintiffs to file a particular action could impartially preside over such an action,” the motion asserted.
U.S. federal law cautions that a judge should recuse himself from “any proceeding in which is partiality might reasonably be questioned.”
The trial record in Ecuador, created over an eight-year time frame, clearly proves Chevron is guilty of creating one of the worst oil-related disasters in history, say the plaintiffs.
On February 14, in a 188-page opinion, Ecuador Judge Nicolas Zambrano found the oil giant liable for dumping billions of gallons of toxic “formation water” into the Amazon and then trying to fraudulently cover it up with a sham remediation. Zambrano imposed $8.6 billion in actual damages on Chevron and an equal amount in punitive damages after finding that the company and its lawyers had engaged in misconduct in the litigation.
Chevron operated a large concession in Ecuador from 1964 to 1990, building hundreds of wells and production sites and leaving behind roughly 1,000 unlined waste pits which leach their contents into soils and groundwater, according to the evidence. Use of the sub-standard practices have decimated indigenous groups and led to widespread health problems.