In a move that has raised eyebrows around the New York bar, the state’s highest federal appellate court recently gave Judge Kaplan 30 days to file papers defending his unprecedented rulings in a “fraud” case Chevron has brought in New York.
The case is the baby of Randy Mastro, former deputy mayor to Rudolph Guliani and now a law partner at Gibson Dunn & Crutcher. (True to form, Mastro helped execute Guliani's racially divisive political strategy in the mid-1990s.) The lawsuit is designed to help Chevron evade the judgment in Ecuador and retaliate against the indigenous communities and lawyers who have held the company accountable for what is thought to be the largest environmental catastrophe in history.
The Second Circuit invited Kaplan to defend himself in light of a petition filed by the Ecuadorians and one of their lawyers, New York attorney Steven Donziger, seeking his reassignment. While most such requests are quickly dismissed, there clearly is something about Judge Kaplan’s behavior that is catching the Second Circuit’s attention.
Kaplan’s hostility toward Donziger and the Ecuadorians is puzzling because the judge is highly regarded in some quarters. But in the mandamus petition the facts speak for themselves. For whatever reason, Judge Kaplan seems to be putting his formidable intellect at the service of Chevron rather than using it to administer the case fairly. For more background, read this supplemental filing and an earlier mandamus petition that documents some of Kaplan’s biased comments toward the Ecuadorians from the bench.
And it what can only be described as an act of chutzpah, Judge Kaplan petitioned the appellate court for more time to file his defense. The Second Circuit order inviting Kaplan to respond can be read here.
The irony of Judge Kaplan’s request for an extension should not be lost. In 2011, the judge denied a similar request from Donziger, leaving the solo practitioner only three days to respond to Chevron’s 150-page “fraud” complaint before Kaplan imposed an illegal injunction blocking worldwide enforcement of the Ecuador judgment. That move was later reversed by the Second Circuit in a unanimous order, but only after severe damage had been done to efforts by the Ecuadorians to clean up Chevron’s toxic mess.
Kaplan also found Donziger “waived” attorney-client privilege because he did not turn in a privilege log quickly enough. In a penalty that only be described as draconian, Kaplan then forced Donziger to turn over to Chevron his entire 19-year case file.
In the meantime, Judge Kaplan continues to do all he can to protect Chevron from having to disclose information about its own corruption, witness tampering, and bribes in Ecuador. He also has ruled that the Ecuadorians and Donziger cannot defend themselves by showing the overwhelming scientific evidence that formed the basis of the Ecuador court judgment against Chevron.
(For background on how Chevron lies about and distorts basic facts in the case, read this response to allegations from a law professor paid by Chevron.)
Kaplan is also trying to block key evidence that Chevron and its outside lawyers have mounted an espionage ring to spy on adversary counsel. That’s a flagrant violation of the ethical rules governing the legal profession, and is likely illegal. But to Kaplan, apparently that’s just what big oil companies do to protect their asset base.
Chevron has admitted it has used at least 180 investigators on the case, mostly from Kroll. Kroll is a large investigations firm that functions in numerous countries like a private KGB for its corporate clients.
Kroll employee San Anson was caught trying to pay $20,000 to an American journalist to spy on consultants to the Ecuadorians. Another former Kroll spook, Yohi Ackerman, was caught in Ecuador offering $20,000 cash from a suitcase to an Ecuadorian judge in exchange for favorable testimony on behalf of Chevron.
Many of Kroll’s investigators like Anson and Ackerman are bad boys who thrive in the underworld. But Judge Kaplan and his Special Masters on the case, including his former law partner Max Gitter, have essentially shut down the ability to question these individuals about their misconduct.
Kroll’s CEO, Daniel Karsen, was deposed in early June. Because of Kaplan’s rulings, Karsen didn’t have to answer most of the questions posed. Chevron’s harassment of opposing counsel was considered off-limits under Kaplan’s rules.
For a small window into Chevron's spy operation, read this affidavit about how a team of unknown individuals followed Donziger around Manhattan. For evidence of how Chevron tries to intimidate and “flip” witnesses, read this affidavit from a consultant to the Ecuadorians.
Kaplan also is letting Chevron maintain as “confidential” a series of damning internal videos that prove the company committed a massive fraud in Ecuador by hiding evidence of contamination from the court. Chevron itself shot the videos of its own technicians laughing at the pollution the company left behind and discussing how they would hide it from the court. Under Kaplan’s rules, this type of criminal activity cannot be used at trial and must remain hidden from the public.
And in a clearly abusive practice, Judge Kaplan has allowed Chevron to hide numerous internal company emails that clearly show corruption and bribe attempts in Ecuador .........
THE REST OF THIS SENTENCE HAS BEEN CENSORED AT CHEVRON'S REQUEST. HERE IS CHEVRON LETTER demanding information be removed.
Judge Kaplan also has allowed Chevron to hide embarrassing internal emails demonstrating that ... CENSORED BY CHEVRON. That email – CENSORED BY CHEVRON – is “confidential” under Kaplan’s rules.
It is now part of the public record that Chevron has used roughly 2,000 legal personnel and 60 different law firms to try to win by might what it cannot win on the merits. Read this blistering critique of Kaplan’s biased rulings by famed San Francisco lawyer John Keker, who used to represent Donziger but left the case because of Kaplan’s mismanagement of the litigation. Keker once famously said he felt “like a goat tethered to a stake” when litigating before the judge.
Despite Chevron’s overwhelming advantage in resources, Keker pointed out that Judge Kaplan consistently bends over backwards to help the oil giant as if it was an orphan or a widow. Chevron grossed about $250 billion last year and paid its CEO John Watson close to $30 million, while the average annual income of the residents who suffer at the hands of the company’s pollution is about $1,000.
We are looking forward to reading how Judge Kaplan tries to explain his rulings that are both helping Chevron evade a valid judgment and are raising questions worldwide about the fairness of the American judiciary.
(For a summary of the Ecuador court decision see here; for a video about the case see here or this 60 Minutes segment about Chevron’s deliberate contamination of the Amazon rainforest.)
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