Judge Lewis A. Kaplan Allowing Chevron to Use Secret Witnesses Against Ecuadorians and Donziger

Decision Compared to “Spanish Inquisition” and “Star Chamber”

We already have reported how New York federal Judge Lewis A. Kaplan has been under furious criticism of late from prominent lawyers, including famed San Francisco-based attorney John Keker, for trying to mount a “show trial” in New York to help Chevron evade its $19 billion liability in Ecuador for dumping billions of gallons of toxic waste into the Amazon rainforest.

Never one to mince words, Keker publicly accused Chevron of trying to drown Judge Kaplan’s court in “chicken shit” discovery motions and said, “I’ve never seen a judge treat an oil company… like a widow or orphan.  Everything they [Chevron] want, they get.”  Read the extraordinary article from the San Francisco legal newspaper, where Keker recounts what he calls Kaplan’s “implacable hostility” toward his client Steven Donziger, a longtime lawyer for the rainforest communities in Ecuador and the main target of a vicious Chevron retaliation campaign.

Lately, there is evidence that Judge Kaplan is going even more off the rails in what appears to be an increasingly  personal crusade to destroy the case of the Ecuadorians.

Judge Kaplan is now routinely entertaining Chevron motions to deny the Ecuadorians and Donziger the right to know the identities of witnesses the oil giant plans to use against them.  See this motion Chevron filed today.   Kaplan already has granted Chevron’s request with respect to two “secret” witnesses; Chevron’s latest motion seeks the same status for a third.
 
A well-known Texas law firm is now joining Keker in calling out Judge Kaplan for acts that indigenous leaders in Ecuador have characterized as xenophobic, arrogant, and racist.  See this article for a summary of how Judge Kaplan has insulted the Ecuadorians from the bench.

Craig Smyser, of Smyser Kaplan & Veselka in Houston filed a powerful motion (available here) in response to Chevron’s extraordinary request to hide its witnesses from the accused.  (Smyser represents two Ecuadorians who are part of the class that won the judgment, Hugo Camacho and Javier Piaguaje.)

Smyser writes:

“Chevron files motions to conceal identities of accusers that would be right at home in the Spanish Inquisition or the Star Chamber, confident that the Court will grant the motions every time…  The motion is offensive to basic principles of U.S. law … that permit an accused to confront his accuser.  Only totalitarian and repressive regimes permit, especially in a civil context such as this, an accuser to hide his or her name from the accused.”

Chevron is trying to claim the secret affiant might be subject to reprisals in Ecuador, but Smyser pointed out correctly that Chevron has presented not a shred of evidence to support its claim.  In fact, nobody from Chevron involved in the 19-year case – including hundreds of people from Chevron’s 2,000-person legal team and 60 law firms – has ever reported being harmed by anybody in Ecuador, a nation that enjoys warm diplomatic relations with the U.S. and is a mecca for U.S. tourists visiting Quito (a UNESCO world heritage site) and the Galapagos.

Most of Quito is far safer than parts of New York City, where Judge Kaplan lives.  That’s especially true when you work for Chevron and get to travel abroad with beefy security dudes at your side.  Just last week Chevron officials, some from the U.S., held a large press event in Quito to discuss the company’s view of the case.  All apparently got out alive.

In fact, Chevron conducted a hotly-contested eight-year trial in its preferred forum of Ecuador -- and continues to do battle on appeal there -- without being able to cite a single incident of harm needed to justify such an extraordinary request.  Dozens of Chevron lawyers and advisors, many from the U.S., participated in the trial.

The irony is telling. Those who really have been, and continue to be, under threat are the Ecuadorians and Donziger. They have been subject to death threats, espionage, and defamatory attacks by the oil giant and its “investigators” at Kroll and generally labor under a cloud of hostility created by Chevron’s goon squad. Donziger himself was a victim of a Chevron espionage campaign in Manhattan.

Chevron’s sudden use of “secret” witnesses is an old trick used by lawyers at Gibson Dunn & Crutcher to create the optical illusion that the human rights abuser in this case (Chevron) is actually under “threat” from its victims, the indigenous communities who have seen their cultures decimated by the company’s pollution. (See here for a summary of the evidence used to find Chevron liable, and here for a video about the case.)

The lawyers on Gibson Dunn’s dream team, led by the ethically-challenged Randy Mastro and Andrea Neumann (both have been sanctioned for their work on behalf of Chevron – see here and here), pulled the same “secret witness” stunt in another case in Florida.  That was before the firm quickly withdrew its motion for the court to hear secret testimony when it was clear the maneuver was going to backfire.  (Read this rather shocking and extensive legal brief for details of how Gibson Dunn paid secret witnesses to present false testimony in court on behalf of the Dole company.)

Smyser’s criticism of Judge Kaplan should not be taken lightly.  He and two partners founded their boutique litigation firm as refugees from the prominent Houston corporate firms of Vinson & Elkins and Baker Botts.  Smyser has been recognized repeatedly as one of the top litigators in Texas and has a roster of prominent clients.

Two weeks ago, Keker – a decorated former Marine who knows a thing or two about courage -- asserted in a brief that Judge Kaplan has let the New York case “degenerate into a Dickensian farce” where “Chevron is using its limitless resources to crush defendants and win this case through might rather than merit.”

Keker has moved to withdraw from the case because Donziger cannot pay his fees.  Donziger recently filed a notice of appearance and is prepared to defend himself alone against Chevron’s army (114 lawyers at Gibson Dunn work on the case), although he has very little trial experience.

Chevron is suing Donziger for roughly $60 billion; Donziger lives in a two-bedroom apartment with his family.

It is also obvious that Judge Kaplan does not want the truth about Chevron to come out in his courtroom.  He already has ruled that Donziger cannot use as evidence the extensive scientific evidence of Chevron’s contamination in Ecuador that the court there relied when finding the company liable.  This essentially neuters Donziger’s ability to defend himself from Chevron’s preposterous claim that he was pursuing “sham litigation” in Ecuador.

Judge Kaplan also has signaled he will deny Donziger the right to pursue counterclaims against Chevron that provide a chilling picture of the company’s crimes, fraud, espionage, and bribery in Ecuador. Donziger’s counterclaims against Chevron are not what Judge Kaplan wants in his hoped-for script.

Chevron’s public relations flaks have been pretty open about the company’s strategy to evade justice by “demonizing” Donziger, as shown in a 2009 email from Chris Gidez, the company’s longtime press representative from Hill & Knowlton.  (We will have more on that soon.)  Copied on the Gidez email are two employees of CRC public relations, the right-wing extremist entity in Northern Virginia responsible for the Swift Boat campaign against John Kerry when he was running for President.

Donziger recently released this statement and this press release explaining why he believes he cannot get a fair trial in Judge Kaplan’s courtroom.

The Second Circuit Court of Appeals this week set May 28 as the date it will consider a petition by the Ecuadorians and Donziger that Judge Kaplan be taken off the case. The appellate court already unanimously reversed Judge Kaplan in 2012 when he tried to impose an illegal and unprecedented injunction purporting to block the Ecuadorians from enforcing their winning judgment in other countries – an injunction that brought scorn on the U.S. federal judiciary from academics and lawyers worldwide.

 We will keep you posted. 

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Note to Chevron: Your Trial Lawyers At Gibson Dunn Need Some Serious Help

It is becoming increasingly clear that Chevron’s high-priced legal team in the $19 billion Ecuador case lacks basic trial skills.
 
One of the most intriguing sights in the three-day hearing last week in New York on a discovery dispute related to the case was not the fact Chevron trucked in about 35 lawyers for the event.
 
It was that with 35 lawyers backing them up, the lead lawyers for Chevron --  Randy Mastro and Andrea Neumann – seemed so disorganized and out of sorts.
  
They looked like what they are: corporate lawyers representing a big oil company trying to crush its indigenous victims and their lawyers.
   
That can't be good for Chevron.
 
Judge Lewis A. Kaplan will no doubt use the hearing to further script the RICO trial in Chevron’s favor by prohibiting the use of almost all evidence that makes Chevron look bad. Judge Kaplan, who was unanimously reversed once in the case, already ruled that the extensive evidence of Chevron’s contamination in Ecuador – evidence that proves the case was decidedly not a fraud -- cannot be discussed in court.
 
Judge Kaplan is now well on the way to throwing out counterclaims from Steven Donziger (a longtime lawyer for the Ecuadorians) that outline a chilling tale of Chevron’s environmental crimes in Ecuador, fraud, lies, espionage, and cover-up. Again, Judge Kaplan apparently does not have the guts to let the truth come out.
  
But even show trials don’t always go according to plan.
   
Both Mastro and Neumann seemed to fall over themselves in court, at times infuriating Judge Kaplan.
  
Mastro repeatedly made speeches before he asked his questions, prompting Kaplan to repeatedly sustain objections. Mastro would then try to reframe his questions, but had trouble figuring out how.
 
After one of his speeches, Judge Kaplan asked Mastro: “Sir, is there a part of that treatise from which you want to ask a question?”
 
Neumann appeared as charming as the class nerd who takes notes and regurgitates them back on the next multiple choice test. She read her questions from a thick binder, imposing a form of slow torture on the court by going page by page without adjusting depending on what the witness said or how the court reacted.
 
Kaplan repeatedly asked her to stop wasting the court’s time.
 
Neumann began her examination of one witness by reading from a sworn declaration signed by the witness. But she forgot to have a copy of the document available for the witness.
 
When Neumann had to interrupt her examination to ask her 35-person legal team to find another copy, it took a mind-numbing five minutes of frantic searching until one was discovered. In the meantime, Judge Kaplan fumed.
 
When Neumann gave another document to the witness, he mentioned that it had some writing in the margins from Chevron’s own lawyers. The Chevron team then scrambled for a clean copy while about two dozen associates did nothing.
 
Judge Kaplan said: “Please Ms. Neumann, now really…  I really don’t expect to see this from lawyers of your caliber.”
 
While the Gibson Dunn army (at least 114 lawyers from the firm are on the case) tries to drown the plaintiffs in motions, only one lawyer can talk at a time in open court. That neutralizes Chevron’s huge resource advantage when Mastro and Neumann are at the helm.
  
John Keker, the lawyer for Donziger, is a former Marine known for prosecuting and convicting Oliver North in the Iran contra scandal. Nobody on Chevron’s team can come close to him in terms of intelligence, presence, and persuasiveness.
 
Judge Kaplan, not surprisingly, often tried to shut down Keker by calling him up for “sidebar” conversations that take place in whispers in front of the bench – a bizarre move indeed given that there was no jury around. It underscores just how much Kaplan plays to the gallery.
 
Judge Kaplan’s challenge is to figure out how to keep Keker from getting his client a fair trial before a jury. That would be very risky bet for Chevron under any circumstances, but particularly with this duo running the show.
 
Mastro’s bigger problem is that he has better political connections than trial skills. He served as Deputy Mayor to Rudy Guliani when the Mayor carried out a racially divisive political strategy, which Mastro helped him implement with evident gusto. His friends suggest he sees the Ecuador case as the pinnacle of his career.
 
Also of note is that Mastro’s new star hire, former New York federal prosecutor Reed Brodsky, seems to be working as a junior law clerk on the Chevron trial team. In 2011, Brodsky used his formidable trial skills to win a conviction against hedge fund titan Raj Rajaratnam and parlayed that into a lucrative job under Mastro.
 
During the hearing, Brodsky was sitting next to Mastro and Neumann so he could pass notes and whisper in their ear. He never stood up to ask a question.

Ouch.

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Lawyer for Ecuadorians Turns the Tables On Chevron and Sues Oil Giant

Chevron: can you handle the truth about your crimes in Ecuador?

New York lawyer Steven Donziger is going after Chevron, its CEO John Watson, and its General Counsel R. Hewitt Pate for orchestrating a campaign by the oil giant to evade paying a $19 billion judgment in Ecuador by targeting and defaming Donziger and other members of the legal team. Donziger, a litigator who has dedicated most of his professional work to the field of human rights advocacy, battled for almost two decades to help indigenous and farmer groups in Ecuador’s rainforest hold Chevron accountable for the deliberate dumping of billions of gallons of toxic waste onto their ancestral lands, leading to the decimation of traditional cultures and an outbreak of cancer that has killed or threatens to kill thousands of people.  See this article in Courthousenews.com.

(For background on Chevron's human rights violations in Ecuador and fraudulent cover-up, see this devastating video. For a written summary of the overwhelming evidence against Chevron relied on by the Ecuador court in finding the company guilty, see here.)

Donziger, represented by John Keker of San Francisco’s Keker & Van Nest, quietly filed a 158-page compendium of claims against the oil giant last week in New York federal court.  The lawsuit can be read here starting on p. 92.  Donziger, who lives in a small apartment in New York City with his wife and son, had previously been sued (along with his clients) for $57 billion by Chevron as part of an outrageous and trumped-up civil racketeering claim.  Chevron claimed that the entire Ecuador case – which includes 64,000 chemical sampling results proving toxic contamination at the company’s hundreds of well sites in the Amazon -- was an attempt by Donziger and his clients to extort money from the company.

Donziger said that the racketeering case was a thinly-veiled attempt by Chevron and its high-billing law firm, Gibson Dunn & Crutcher, to cover up evidence of Chevron’s crimes and to intimidate the plaintiffs into abandoning the 19-year-old environmental case, which was filed in New York in 1993 but was shifted to Ecuador at Chevron's request after the oil giant filed numerous affidavits praising the country’s court system.  In February 2011, Donziger and his clients won the judgment after an eight-year trial in Ecuador marred by Chevron’s attempts to intimidate judges, offer bribes to Ecuador's government, fabricate scientific evidence, and sabotage the proceedings by filing dozens of frivolous motions and drowning the court in paper.  See here.

Chevron's legal team at Gibson Dunn openly markets a “template” to corporate defendants like Chevron facing large liabilities for environmental and human rights abuses.  The template, which the firm calls a “rescue operation” for clients in trouble, assumes that the wholesale intimidation of lawyers will allow clients to win via subterfuge what they can’t win on the merits. The Gibson Dunn “rescue” team – led by New York attorney Randy Mastro, Ted Boutrous, Andrea Neumann, Scott Edelman, and William Thomson – has used over 60 lawyers and billed Chevron hundreds of millions of dollars.  All their hard work has brought a fair amount of disrepute to their law firm as Chevron has suffered multiple courtroom setbacks around the world, dramatically increasing its liability and creating a shareholder rebellion against CEO Watson.  See here.

Mark our words – it is just a matter of time before Gibson Dunn itself gets sued for creating evidence and engaging in intimidation tactics to justify its high-priced fraud “template” that it sells to clients.

In 2009, the same Gibson Dunn “rescue” team leveled fabricated fraud charges in California against another American attorney who once worked with Donziger on the Ecuador case, and it blew up in their collective faces.  That attorney, Cristobal Bonifaz, won a judgment against Chevron after a court found the company tried to use the fraud lawsuit to suppress his First Amendment rights and harass him, violating California’s anti-SLAPP statute. Chevron was ordered to pay a large fine in that case and separately has been sanctioned by federal courts and accused of multiple ethical violations for doing Chevron’s dirty work.  See here and here.

Any lawyer who cares about fairness should read the chilling facts documented in Donziger’s lawsuit.  It is indisputable that he has been the target of an unrelenting campaign of defamation, harassment, and intimidation because he dared to stand up to the goons at Chevron who are trying to hide the company’s outrageous misconduct in Ecuador. For this, he probably has suffered a level of harassment unprecedented in the annals of American jurisprudence.

The harassment included 15 days of sworn deposition testimony where he faced off against up to 20 Chevron lawyers and staffers, overseen by a federal judge (the normally well-regarded Lewis A. Kaplan) who bought into Chevron’s hysteria and rushed to judgment and in the process sparked a worldwide reaction in the legal community to his excesses. See here and here. See petition asking for Kaplan’s dismissal here.

Donziger also faced 24/7 surveillance in Manhattan and Ecuador and a campaign of defamation by Chevron’s press flaks and lawyers that is outlined in the legal document he filed in court.

Donziger’s lawsuit lays out the gory facts of Chevron's criminality and corruption in Ecuador, dating back to the mid-1990s when it engaged in a sham remediation to try to weasel out of the original lawsuit.

The Donziger suit explains that once Chevron realized it would lose the Ecuador trial based on the scientific evidence, the company turned to Gibson Dunn to try to render the Amazonian communities defenseless.

New York judge Kaplan -- who from the bench has made insulting comments about the indigenous groups victimized by Chevron -- will now have to decide whether to let Donziger's claims go forward as part of the existing Chevron racketeering case. Chevron steered its original case to Kaplan knowing full well his feelings toward Donziger, a fellow Harvard Law School graduate who he seems to treat as some sort of wayward son. At one early hearing, Kaplan – who has a corporate law background -- sneered that "Mr. Donziger is trying to become the next big thing in fixing the balance of payments deficit" between the U.S. and the rest of the world by going after U.S. companies, which he lamented as "a sad pass" and "a giant game." See here.  Kaplan on numerous occasions described the Ecuadorian indigenous groups as “the so-called” plaintiffs, as if he was trying to deny their very existence.

Kaplan, who once tried to impose an illegal worldwide injunction blocking enforcement of the Ecuador judgment, already has been reversed by the federal court of appeals on the case; whether he lets Donziger's counterclaims move forward so the full truth about Chevron’s misconduct can come out in his courtroom will be interesting to watch given his obvious biases, to say the least.

Here is a quick summary of Donziger's counterclaims against Chevron:

• Chevron has made numerous false statements by claiming Donziger committed misconduct by pressing forward with the pollution lawsuit after the company “remediated” the Ecuador oil fields, when it knows the remediation was a sham;
• Chevron has lied about the overwhelming scientific evidence against it – evidence that includes thousands of chemical sampling results that show the presence of harmful toxins and carcinogens at the company’s well sites -- to try to make it appear Donziger had to fabricate evidence to secure a favorable verdict;
• Chevron used deceptive and manipulative editing tactics to misrepresent video outtakes from the documentary film Crude to take Donziger’s statements out of context, and to portray him in a negative light;
• Chevron used its own longtime contractor, Diego Borja, to plan and execute an illegal video entrapment scheme against a sitting judge in Ecuador in an attempt to derail the trial, and then lied about hush money it paid to Borja so he would keep silent about it; and
• In a final act of desperation, Chevron falsely claimed the “all-powerful” Donziger secretly wrote the 188-page trial judgment from his apartment in New York without providing a shred of such evidence.

Let's see if Chevron and its high-flying CEO Watson and General Counsel Pate -- who recently received a 75% pay raise for his work on the Ecuador case after losing the largest environmental judgment in history -- have the guts to let a jury hear all the evidence of the company’s corrupt activities in Ecuador coordinated from company headquarters in San Ramon, California.

We predict that like most bullies, Watson and Pate will cower in fear and order their “rescue team” at Gibson Dunn to do all they can to convince Judge Kaplan to keep the truth contained in Donziger’s counterclaims from coming to light.

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Chevron’s Gibson Dunn Nailed for Unethical Litigation Tactics In Oregon

Yesterday we reported that a U.S. federal judge in Oregon sanctioned Chevron's law firm Gibson Dunn & Crutcher for harassment of a witness in its campaign to help Chevron evade an $18 billion judgment in Ecuador for massive oil contamination. See here, here and here.

The affidavit, submitted by Oregon lawyer Charles M. Tebbutt outlining these abusive and harassing tactics by a team of Gibson Dunn lawyers, is vivid and disturbing. The level of arrogance of the oil giant's lawyers is just astounding.

Gibson Dunn of course is famous for marketing itself as a master of the dark art of conducting "rescue operations" for clients in trouble. Their lawyers openly state that if the law is in the way, they will try to change it or work around it. In the Chevron case and others, that can mean crossing the ethical line.

Buyer beware: Gibson Dunn's litigation tactics often create more problems for its clients than they solve. Gibson Dunn came into the Ecuador case in 2009; since then, Chevron has been hit with an $18 billion judgment for environmental contamination, been sanctioned by various courts, and now faces even more problems in the coming months as the Ecuadorian plaintiffs position themselves to lawfully seize company assets around the world. On Gibson Dunn's advice, Chevron has gone rogue in Ecuador.

What government is going to want to do business with an oil company that creates open conflict with the governments of oil-producing nations?

A recent argument before the Second Circuit Court of Appeals in New York by Gibson Dunn lawyer Randy Mastro is a case in point in how the Gibson Dunn tactics are backfiring. Mastro took a beating from the panel of judges as they chuckled about his theory that a New York court has jurisdiction to block enforcement of an Ecuadorian judgment in other countries.

Mastro argued the case on a Friday; the next Monday, Chevron's attempt to seek a worldwide injunction blocking enforcement was stayed. It probably didn't help that Mastro interrupted the presiding judge repeatedly, forcing another member of the panel to suggest he sit down.

In 2010, a federal court in Colorado found that Gibson Dunn lawyer Andrew Neumann asked several harassing questions of a technical expert for the plaintiffs in the Ecuador case.

In 2009, Chevron was again fined by a California judge for filing a frivolous lawsuit against Cristobal Bonifaz, a former lawyer for the Ecuadorian plaintiffs. That lawsuit was dismissed with prejudice.

The same Gibson Dunn practice group used by Chevron in the Ecuador case also was hit recently with sanctions from a California judge for filing a frivolous lawsuit to suppress the free speech rights of a filmmaker who made a documentary about how pesticides used by Dole in Central America have poisoned banana workers. Dole is a Gibson Dunn client.

In 2003, the firm was fined a shocking $20 million in Montana for harassing an art expert for failing to raise the appraisal value of a forged painting owned by a firm client. The Montana Supreme Court said Gibson Dunn used "legal thuggery" and acted with "actual malice" in the case.

In legal trouble and partial to thuggery and malice? Do like Chevron and call Gibson Dunn.

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Chevron’s Human Rights Hitmen

Chevron has created the world’s worst environmental disaster. The irreparable damage to the Amazon is heartbreaking. Even worse, Chevron’s irresponsibility has caused poisoning and death of indigenous and rural Ecuadorians. Chevron dumped over 18 billion gallons of toxic waste, but instead of taking responsibility and doing the right thing the oil giant is pouring money into getting itself off the hook.

The Rainforest Action Network makes an accurate assessment with their new Chevron’s Human Rights Hitmen.The site states:

But rather than take responsibility for cleaning up its oily mess in Ecuador, Chevron has enlisted a team of legal vultures, PR hacks, and other people more greedy than principled to distract attention from the overwhelming evidence of its guilt and deny justice to the victims of Chevron’s contamination. Help us expose Chevron’s Human Rights Hitmen by using the buttons to the right to share with your friends, family, and other networks.

It’s shocking to see the phrase hitmen, but that’s essentially what these people are. This is a major human rights issue and every step of the way these people do more to pile on to the pain and suffering that the Ecuadorians are experiencing.

Mitch Anderson at City Brights hits the nail on the head when discussing Chevron’s actions:

What first struck me, which shouldn't have been a surprise, is how Chevron's spokesperson Kent Robertson is able to consistently, and in a very disciplined way, manipulate the truth. Not an admirable job, but given that Chevron has spent hundreds of millions of dollars over the years on high powered law firms and public relations outfits, it's no wonder that the company has developed a sophisticated (but disingenuous) narrative in order to distract the media, financial analysts and shareholders from the central issue: Chevron has been proven guilty of massive environmental crimes in the Amazon, thousands of indigenous peoples and farmers continue to suffer a widespread public health crisis, and Chevron is facing a very real multi-billion liability, with serious financial, operational and reputational consequences to the company.

Just who are these ‘hitmen?’ They include lawyers, dirty tricksters and spies. Diego Borja helped skew evidence. He is even quoted as saying: “Crime does pay.” Sam Anson tried to convince a journalist to spy on plaintiffs in the law suit. Andrea Neuman has a history of defending reckless corporations. R. Hewitt Pate, Chevron’s Vice President and General Counsel, even admits that the company has no intention of ever paying the victims of this disaster.

When you think about the millions upon millions of dollars Chevron is spending on these dirty tricks and hired guns it’s hard not to feel a sense of outrage. Especially considering that all of that money is going to getting out of paying for their disaster.

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Chevron Lawyers Sanctioned Four Times in Eco-Disaster Case

For the fourth time, Chevron has been sanctioned for improper conduct in both U.S. and Ecuadorian courts. The sanctioned behavior ranges from attempting to overwhelm the Ecuadorian court by filing in a short time frame over a hundred motions -- some of which had been filed and ruled upon already -- to asking abusive questions of one of the plaintiffs' experts in an effort to intimidate him.

Andrea E. Neuman

Questioning by Gibson Dunn Attorney Andrea Neuman Found to Violate Colorado Bar Rule

Denver, Colorado (November 19, 2010) – A U.S. federal court has sanctioned Chevron and its lawyers at Gibson Dunn & Crutcher for abusive questioning during a deposition related to the oil giant’s multi-billion dollar liability in Ecuador for environmental contamination, according to court papers made available today.

The questioning that led to the sanctions was conducted by Andrea Neuman, one of Chevron’s lead lawyers on the Ecuador matter and a partner at Gibson Dunn’s office in Irvine, CA. Neuman is the fourth Chevron lawyer to be sanctioned recently in the Ecuador matter.

Separately, two Chevron employees are under criminal indictment in the South American nation for lying about the results of a purported environmental remediation that Chevron is using as a defense to the civil lawsuit over the contamination, which affects an area the size of Rhode Island.

Dozens of indigenous and farmer communities in Ecuador are suing the oil giant for deliberately dumping billions of gallons of toxic waste into Ecuador’s Amazon region when it operated a large oil concession from 1964 to 1990.

The contamination – which includes more than 900 abandoned toxic waste pits -- has plunged the region into a public health crisis that threatens thousands of people with cancer and other oil-related diseases, according to evidence before the court.

In the brief seeking the sanctions, the Amazon communities accused Neuman of using “blatant intimidation tactics” that “fall below the standards of professional conduct” required by Colorado and Federal rules in Colorado. The questioning occurred when Neuman deposed an American technical expert for the plaintiffs on Oct. 6 in Denver.

In a decision dated November 15, Magistrate Judge Michael E. Hegarty ordered Neuman and her colleagues at Gibson Dunn to refrain from asking questions in depositions involving the witnesses’ knowledge of criminal law statutes. Gibson Dunn is trying to characterize the expert work in Ecuador as fraudulent, a charge the Amazonian communities reject.

“This court in Colorado was willing to stand up to Gibson Dunn’s bullying and abusive tactics,” said Pablo Fajardo, the lead attorney for the plaintiffs in the Ecuador trial. “Chevron is using these tactics as part of its campaign to cover up its own fraud and wrongdoing in Ecuador.”

Just days ago a trial judge in Ecuador increased the fine for two Chevron lawyers found to be obstructing the trial. Alberto Racines and Diego Larrea, both of whom have worked on Chevron's legal team in Ecuador since the trial against Chevron began in 2003, were fined approximately $1,600 by Judge Nicolas Zambrano for repeatedly filing the same motions to delay the seven-year case.

In 2009, a third Chevron lawyer in Ecuador – Patricio Campuzano -- was sanctioned for the same reason. On August 5 – one day after the Ecuador court ordered both parties to submit their own damages assessments – Chevron filed 19 motions to nullify the order or the trial itself in a 30-minute period. Racines and Larrea then cited the failure of the trial judge to quickly rule on each of the motions as a basis to recuse him.

Just last week, Chevron’s Ecuador lawyers filed a long affidavit in court from a U.S. technical expert that was signed in 2004, one year after the trial began in Ecuador. Chevron then asked the judge to appoint a translator though Chevron generally provides its own translations of documents. Chevron, which operated several oil fields in Ecuador from 1964 to 1990, faces damages and clean-up costs of up to $113 billion.

The amount includes compensation for an estimated 10,000 potential deaths from cancer in the coming decades, according to reports submitted to the court by a team of prominent American technical experts. Chevron bought Texaco (which owned the Ecuador operation) in 2001 for $31 billion, apparently without adequately vetting the company for the Ecuador environmental liability, said Fajardo.

The lawsuit against Chevron, originally filed in U.S. federal court in 1993 but moved to Ecuador in 2002 at Chevron's request, accuses the oil giant of poisoning an area of rainforest that is home to five indigenous groups and thousands of farmers. The two Chevron employees under indictment in Ecuador, Rodrigo Perez Pallares and Ricardo Reis Veiga, have a preliminary hearing on their case scheduled for January 5, 2011 in Quito. Both are accused of defrauding Ecuador’s government by signing false documents certifying a sham cleanup in the mid-1990s.

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Chevron Hit Hard In Sworn Testimony Over Massive Ecuador Liability

Gibson Dunn Lawyer Flies Into Panic As American Expert Provides Devastating Evidence

Amazon Defense Coalition
6 October 2010 – FOR IMMEDIATE RELEASE
Contact: Karen Hinton at 703-798-3109 or Karen@hintoncommunications.com

Denver, CO – One of Chevron’s lawyers at the law firm of Gibson Dunn & Crutcher flew into a panic during a recent deposition when an American consulting expert began to testify about the massive quantities of toxins dumped by the oil giant in Ecuador, where Chevron faces a multi-billion dollar legal liability, according to court papers filed recently.

Chevron is being sued by more than 30,000 residents for illegally dumping billions of gallons of toxic contaminants, poisoning an area of the Ecuadorian rainforest the size of Rhode Island and creating what is believed to be the world’s largest oil-related disaster. The lawsuit, originally filed in U.S. federal court in 1993, was moved to Ecuador at Chevron’s request in 2002. The plaintiffs recently submitted a damages assessment against Chevron of up to $113 billion in part to cover the costs of cleanup at 916 sites and compensation for an estimated 10,000 cancer deaths.

Faced with overwhelming scientific evidence of the contamination in Ecuador, Chevron recently returned to U.S. courts to seek discovery of 23 Americans associated with the case. This led to the deposition in San Diego on Sept. 10 of the American consulting expert, William Powers. `

In a legal brief filed on Sept. 28, lawyers for the Ecuadorian communities recount how Chevron lawyer Andrea Neuman – charged with trying to “rescue” Chevron from its massive Ecuador liability -- clearly panicked when Powers tried to testify about the oil giant’s responsibility for the contamination.

After Powers had been deposed for several hours by Chevron, a lawyer for the Amazonian communities suing Chevron indicated that he had some additional questions. Powers is considered a leading authority on oil field contamination and had visited the sites of Chevron’s operations in Ecuador on various occasions.

The mere suggestion that Powers might be cross-examined “set off a panic among Chevron’s counsel,” according to the brief of the Amazonian communities. No wonder – when Powers finally was able to speak, he testified that Chevron’s practices in Ecuador caused an environmental disaster that was at least 30 times larger than the crude discharged in the Exxon Valdez spill in Alaska.

To avoid this damaging testimony, Neuman went to great lengths to shut down the questioning.

“First, Ms. Neuman claimed that the “office is closing” and therefore Mr. Wilson could not cross-examine Mr. Powers,” according to the brief filed by the plaintiffs.

Neuman then stated the questioning could not go forward because Chevron was not “notified” that it would happen – a remarkable assertion given that it is standard for depositions to conclude with a cross-examination.

Neuman then claimed the cameraman taking video of the deposition “has to pack up”. When that didn’t work, a Gibson Dunn colleague claimed they only had “five minutes” to listen to questions.

Finally, Neuman claimed that Mr. Wilson – who is from New York and is a partner in the firm of Emery, Celli, Brinckerhoff & Abady -- could not ask questions because he was not admitted to the bar in California despite the fact the Gibson Dunn lawyers had agreed to his participation earlier in the day.

“Notwithstanding this obstreperous conduct, and Chevron’s blatant attempt to hide the truth, Mr. Wilson insisted on fifteen minutes of cross-examination, during which the building did not shut down, the office did not close, the cameraman did not have to pack up, and no one had to leave the building,” the lawyers wrote in the brief.

Not surprisingly, the testimony from Powers was devastating for Chevron. Here are some highlights, with the questions being asked by Mr. Wilson:

Q: Now, when Chevron-Texaco designed its pits in the Ecuadorian Amazon, what design did it use?
Powers: Dug a hole in the dirt and deposited the drilling muds in the unlined hole.

Q: And if Chevron-Texaco was designing those pits in the United States, would it have been able to dig a pit in the -- and put in the drilling muds as you described?
Powers: No.

Q: What’s the consequence of Chevron’s design of its pits in the Lago Agrio concession?
Powers: Two consequences: the leeching of the chemicals into the ground, and ultimately into the ground water; and the overflow of the pits due to lack of maintenance and rain water and overflowing directly into the drainage channels surrounding that pit.

Q: And what’s the basis for your conclusions concerning the Chevron-Texaco’s pits?
Powers: Having viewed the pits and reviewed the nature of how those pits were designed, utilized, and the fact that -- it is uncontested that the pits were left with drilling mud in them.

Q: And when Chevron developed the oil field in Ecuador, did it do so in conformity with standards for treatment of production water that were in place in the United States at the time that it was building its infrastructure in Ecuador?
Powers: No.

Q: Can you describe the ways in which Chevron’s Ecuadorian concession fell below standards it would have been required to meet if that field were in the United States?:
Powers: Based on the salinity and the produced water from the field, the company would have been required to reinject that water into a subsurface formation. Could not have operated that oil field or produced a single barrel of oil without having that produced water injection system operational.

Q: By failing to reinject production water in the Lago Agrio concession, what impact did that have on the environment in Lago Agrio?
Powers: It contaminated the surface water at the points where it was injected, not only with the high salinity of the produced water in an environment that has almost no natural salinity, but the trace contaminants of heavy metals and oil also contributed to the generalized contamination of that surface water.

Q: If you include the produced water in your comparison between the discharge into the environment from Chevron’s Lago Agrio concession, when you compare that to the Exxon-Valdez oil discharge from that catastrophe, how would you compare them?
Powers: Both the produced water and the crude oil are toxic. The -- you can argue about the relative toxicity of them both. But the amount of toxic liquids that should not have been in the environment in Ecuador was at least 30 times the quantity or the volume of crude that was spilled in the Exxon-Valdez disaster.

Gibson Dunn boasts on its website that its litigators in the Ecuador case – led by Neuman and Scott Edelman – are "Game Changers"; the firm cites a legal publication that "clients in deep trouble turn to Gibson Dunn for fresh, aggressive thinking and innovative rescues."

“Given Andrea Neuman’s conduct, Gibson Dunn’s ‘rescue’ operation for Chevron apparently doesn’t include acknowledging the truth about the reckless conduct of its client in Ecuador,” said Karen Hinton, a spokesperson for the Amazonian communities.

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Chevron Critical of Cabrera’s Damages But Won’t Submit Its Own Estimate

Over 100 Expert Reports Show Contamination That Oil Giant Hides From US Judges

Chevron, you are getting what you asked for! Now what’s the problem? Chevron lawyer Andrea Neuman has said the oil giant simply wants to “get to the truth” about the oil contamination in the Amazon rainforest, yet Neuman and other Gibson Dunn lawyers are refusing to adhere to a court order requiring them to submit their own damage assessments reports about the extent of the contamination and the cost to remediate it.

New damages assessments from both Chevron and the Amazonian communities are due in Ecuador’s court Thursday, but Chevron has indicated it likely will refuse to participate despite complaining previously it never had the opportunity to submit its own damages report. For more than two years, Chevron has protested a previous $27 billion report submitted by court-appointed expert Richard Cabrera.

“We predict that Chevron’s bad faith will be on full display yet again,” said Pablo Fajardo, the lead lawyer for the Amazonian communities. “Chevron complained that it did not have an opportunity to produce its own damages assessment. But when given the opportunity, company lawyers accuse the judge of bias against Chevron and launch attacks on the justice system.”

Fajardo said the Amazonian communities will submit their own damages assessment to the court on Thursday and that it was prepared by a team of scientific and medical experts. Chevron, on the other hand, recently filed a motion in Ecuador to remove the judge and cited the order asking for the new damages assessments as a basis.

Chevron has filed 104 separate motions before the Ecuador court in the last several weeks as part of a strategy to delay the trial, which has been litigated now for seven years, said Fajardo. Most of the recent motions concern efforts to nullify the report of Cabrera, who in a 4,000-page summary of the evidence found Chevron could be liable for up to $27.3 billion in damages.

The $27.3 billion would only partially clean up the damage given that a significant portion of the harm caused by Chevron to the delicate rainforest ecosystem can never be fully remediated, said Fajardo.

As an example of Chevron’s abuse of the judicial process, in just one 30-minute period on August 5 – just three days after the court ordered the parties to submit their own damages assessments – Chevron bombarded the court with 19 separate and largely repetitive petitions, said Fajardo.

“It’s extraordinary how Chevron tries to abuse the judicial process while thousands of people, many sick from cancer, cannot afford to pay for the most basic medical treatment,” he said. “Tragically, many suffering people will not live long enough to see justice done.”

He added: “Chevron’s actions demonstrate the company’s blatant disregard of the people of Ecuador and prove its double standard in asking that the case be tried here. No litigant, including Chevron, would ever get away with this in the United States.”

Chevron is accused in the lawsuit of deliberately dumping billions of gallons of toxic waste into Amazon waterways when it operated a large oil concession from 1964 to 1990. Independent studies demonstrate cancer rates in the area are higher than in other parts of Ecuador, and several indigenous groups have seen their traditional lifestyles decimated.
After the communities submit their new damages assessment to the court on Thursday, the judge will have in evidence 105 expert reports and more than 64,000 chemical sampling results from dozens of former Chevron well sites, all of which show extensive contamination, said Karen Hinton, a spokesperson for the communities.

Most of the evidence comes from Chevron’s own sampling, which alone prove the claims in the lawsuit, said Hinton. In all, the court has voluminous scientific evidence to impose liability and damages on Chevron independent of the Cabrera report, she added.

In the meantime, Chevron’s outside counsel at Gibson Dunn & Crutcher have filed a series of discovery actions in U.S. federal courts where they claim there is no evidence of contamination left by Chevron in Ecuador – a blatant misrepresentation, said Hinton.

“The company’s own test results in Ecuador show that Chevron’s lawyers are mischaracterizing the entire case before U.S. courts,” said Hinton. “What’s worse is that these misrepresentations have grave human consequences.”

The case against Chevron was originally filed by 30,000 rainforest residents in 1993 in U.S. federal court, but was shifted to Ecuador at Chevron’s request in 2002. Once the trial evidence in Ecuador pointed to a possible multi-billion dollar judgment against Chevron, the company launched a public relations and lobbying campaign to discredit Ecuador’s justice system as well as the lawyers who represent the communities.

As a condition of the removal of the case from U.S. federal court to Ecuador, Chevron promised to subject itself to jurisdiction in Ecuador and to satisfy any judgment imposed by Ecuador’s courts.

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