Editor of the Earth Island Journal Jason Mark wrote a story that first appeared in the magazine, and has now been syndicated by Salon. In the article, Mark goes beyond the basic reporting on the back-and-forth of the Chevron v. Donziger trial to explore the broader implications of the oil giant's retaliatory efforts.
First he quotes Donziger's former counsel:
John Keker, a defense attorney who represented Donziger until the besieged lawyer could no longer pay his bills, describes Chevron’s efforts as “scorched-earth litigation.” Here’s how Keker explained Chevron’s legal tactics when he filed a motion to be dismissed from the case:
Mark then turns to some legal scholars for their view on this unprecedented and extraordinary case:“Chevron is using its limitless resources to crush defendants and win this case through might rather than merit. There is no sign that Chevron wants a trial on the merits. Instead, it will continue its endless drumbeat of motions — for summary judgment, for attachment, to re-instate long-dismissed claims, for penetration of attorney client privilege, for contempt and case-ending sanctions, to compel discover already denied or deemed moot, etc., etc. — to have the case resolved in its favor without a trial. … Encouraged by this Court’s implacable hostility to Donziger, Chevron will file any motion, however meritless, in the hope the Court will use it to hurt Donziger. Dongizer does not have the resources to defend against Chevron’s motion strategy.”
Susan Bozorgi, a Miami-based criminal defense lawyer, told Newsweek that she worries about what it will mean if Chevron wins: “[RICO] was meant to be used against the mob. The danger about a case like this is that it could send a message to a lawyer who wants to take up a cause for an underdog that Big Brother, the big corporate entity, is going to start coming after you for criminal conduct.”Mark quotes a spokesperson from Chevron who says that Donziger and the Ecuadorean villagers whose rainforest lands have been ravaged by the company's pollution are merely "scapegoating" the oil giant. The article concludes:
UC-Hastings law professor Roht-Arriaza said to me: “I’m not a RICO expert, but I don’t know of any case that involves the behavior of companies abroad, where the company has turned around and sued under RICO. Chevron has been sued before, but they haven’t done this, even when it looked like things weren’t going well for them.” She continued: “It’s interesting the number of levels on which Chevron is fighting back. They are not only doing this, they are also bringing all of these arbitration cases, basically trying to say that the Ecuadorian court shouldn’t have brought any judgment.”
Of course, scapegoating is in the eye of the beholder. For his part, Donziger feels he’s the one being hounded. “They are trying to destroy my life,” he told me. “It’s improper, it’s illegal, and it’s unethical. They have hired people to follow me. They sued me for $60 billion, and then they dropped that down to $100 million, and then they dropped that because they are scared of having a jury trial. And now they are using a US federal judge, who I think is biased in their favor, and who is denying my due process rights.”Read the entire article here.
Then Donziger said, “There is an intimidation factor. The entire idea behind the entire RICO case is not to fight wrongdoers. It’s a weapon to intimidate their critics.”
If he’s right — and Chevron has spent all of this money just to intimidate people and prevent future litigation — then it leads us to a sobering conclusion: Even if the judge rules in Donziger’s favor, Chevron still wins.