Monday, November 25, 2013

Human Rights Lawyer's Testimony Censored by US Court

Today, representatives of lawyer Steven Donziger and the Ecuadorean communities ravaged by Chevron contamination issued a press release highlighting the significant passages of Donziger's testimony struck from the record by Judge Lewis Kaplan. From the release:
Judge Lewis A. Kaplan, overseeing Chevron’s RICO trial against Ecuadorian villagers and their lawyers, is suppressing critical witness testimony about Chevron’s extensive contamination of Ecuador’s rainforest that clearly demonstrates a  $9.5 billion environmental judgment against the company is valid, a spokesman for the villagers said Monday.

“Judge Kaplan is again demonstrating his deep-seated animus toward the Ecuadorian communities victimized by Chevron’s pollution,” said Han Shan, the U.S.-based spokesman for thousands of Ecuadorian villagers who in 2011 won a judgment against Chevron after an Ecuador court found the company dumped billions of gallons of toxic waste onto the lands and waterways of the Amazon.

Kaplan’s latest move in the RICO case, which is expected to end tomorrow, was to strike substantial portions of the written witness testimony of Steven Donziger, the New York lawyer who has represented the Ecuadorian villagers since 1993.  Donziger, the main defendant in the case, has disputed all of Chevron’s allegations and has characterized the RICO lawsuit as a form of retaliation against those who held the company accountable for toxic dumping.  Ecuador’s Supreme Court unanimously affirmed the judgment against Chevron earlier this month.
Forbidden by Judge Lewis Kaplan from providing direct testimony on the stand about his two-decade-long involvement in efforts to hold Chevron accountable for its human rights and environmental abuses in Ecuador, Steven instead was ordered to submit a written declaration as his direct testimony.  After submitting his statement, last Monday—November 18th—Steven Donziger finally took the stand.

The lead lawyer for Chevron in the trial, Gibson Dunn's Randy Mastro, announced  that he expected to spend more than a full day cross-examining Steven.   Instead, after halting, confused questioning of Donziger during which the perfectly poised witness answered questions in an easygoing, explanatory fashion, Mastro huddled with furrow-browed Chevron company lawyers at a brief break. After the recess, Mastro, looking rattled, announced in open court that he had only a few more questions.  He soon beat a hasty retreat before the lunch break, lest he offer Donziger further opportunity to deconstruct Chevron's cynical and deceptive narrative. All in all, the day was a huge victory for Donziger. 

Donziger's witness statement was submitted to the court but Chevron predictably filed a motion to strike most of it, in an effort to suppress evidence of the company's environmental crimes and fraudulent cover-up in Ecuador.

Judge Kaplan granted many of Chevron's motions and struck numerous significant passages in the testimony. Judge Kaplan didn't grant all of Chevron's requests, which would have reduced the powerful testimony to a handful of disconnected floating paragraphs.

Click here to read Donziger's complete witness testimony, noting that all of the greyed-out passages are those that Chevron requested be struck, and all of the yellow highlighted passages are those that Kaplan actually struck from the record based on Chevron's motions.

Here are some highlights from Donziger's written testimony:
  • The Ecuador judgment is “valid” based on overwhelming scientific evidence that Chevron “deliberately discharged billions of gallons of toxic waste into Ecuador’s rainforest” resulting in “grave harm and even death to thousands of innocent people.”  (Paragraph # 7)
  • As late as April of 2012, a high-level Chevron executive approached representatives of the rainforest communities to initiate settlement discussions. The contacts did not continue after the villagers filed legal enforcement actions to seize billions of dollars of Chevron assets in Canada and Brazil.  (Paragraph #19)
  • An environmental consultancy in the U.S., the Louis Berger Group (LBG), has independently reviewed the evidence before the Ecuador court and concluded there is ample support for the findings of liability and damages against Chevron.  It also concluded Chevron’s own evidence before the Ecuador court supports a finding of liability against the company.  LBG’s report, commissioned by the government of Ecuador, has been turned over to an arbitration panel hearing a related dispute over the pollution.  Donziger is submitting it as evidence in the RICO trial to help prove the judgment was not obtained by fraud. (Paragraphs #48, 59)
  • Donziger said the preparation of the expert report of Dr. Richard Cabera was “fundamentally consistent with Ecuador law, custom, and practice as it was occurring” in the case against Chevron.  While Chevron tries to focus attention on the report, Donziger said it is irrelevant given that the Ecuador court excluded it.  He also said there was some confusion surrounding the preparation of the report but that the science underlying it remains valid and that excluding it as evidence amounted to a “draconian” sanction against the rainforest communities.  It is Donziger’s most detailed comment yet on that issue. (Paragraphs #91 through 106)
  • Donziger also described how Chevron’s own lawyers publicly called many of the oil company’s own court-appointed experts “independent” even though they paid 100% of their fees and worked closely with them, just as lawyers for the plaintiffs did when referring to Dr. Cabrera.  Chevron has claimed Donziger was trying to mislead the public when he called Cabrera “independent” but Donziger says the term, based on what he knows today, is accurate and was widely used by both parties in the case to describe their own experts. (Paragraphs #79 through 90)
  • Donziger suggested that lawyers on the plaintiff’s team made some minor errors typical in a contentious and long-running litigation, but that those errors paled in comparison to the deeply corrupt acts engaged in by Chevron to sabotage the trial.  Whatever errors were committed did not come close to amounting to fraud, as has been confirmed by Ecuador’s courts.  Although Judge Kaplan has tried to exclude evidence of Chevron’s corruption, Donziger is trying to bring it in as evidence of his state of mind.
  • Donziger again made it clear – as he did in a sworn declaration submitted to Kaplan’s court last March – that he did not bribe a judge in Ecuador and that Chevron’s star witness who so alleges, Alberto Guerra, is corrupt and a liar.  Donziger said Guerra’s testimony is a “massive lie” at the core of Chevron’s case.  A motion to strike Guerra’s testimony is pending before the court.
Donziger's declaration is a profoundly important summary of the two-decade effort of the rainforest communities to hold Chevron accountable. After reading the powerful testimony, and comparing the grey parts—sections Chevron asked to be stricken—and yellow highlighted passages—sections Judge Kaplan struck from the record—one can be forgiven for thinking that censorship is alive and well in America.

It is, and it's being carried out under the guise of a judicial process that Chevron is using to conceal its crimes in Ecuador and retaliate against those that have helped bring them to light.