Judge Kaplan Denies Jury Trial for Donziger and Ecuadoreans

Today, the New York Law Journal ran an article on its front page about the upcoming trial in Chevron's retaliatory RICO lawsuit against the victims of Chevron's abuses in the Ecuadorean Amazon, and their long-time U.S. attorney, Steven Donziger. The piece begins:

The pitched battle between Chevron Corporation and a lawyer and Ecuadorians who won a multi-billion-dollar environmental judgment against the oil company in Ecuador is set for trial on Oct. 15, before Southern District Judge Lewis Kaplan.

Reporter Mark Hamblett opens with the competing narratives—Chevron on one side, human rights attorney Donziger and the Ecuadoreans on the other—in this case:

Kaplan Monday denied the request of attorney Steven Donziger and two of his Ecuadorian clients for a jury trial in the case, where Chevron is alleging Donziger ran a racketeering conspiracy to win the so-called Lago Agrio litigation in Ecuador by fraud, and Donziger is accusing Chevron of scorched-earth tactics to avoid taking financial responsibility for environmental damage left behind by a predecessor oil company.

As the trial evidence mounted in Ecuador over Chevron's devastation of a sprawling swath of inhabited Amazon rainforest, it became increasingly clear that Chevron would likely be found liable. On that, the company was right, and in February 2011, the oil giant was ordered to pay nearly $19 billion in compensatory and punitive damages.

But by then Chevron had launched its retaliatory campaign against Donziger and the Ecuadoreans. In 2009, with an adverse judgment from the Ecuadorian court looming, Chevron press operative Chris Gidez wrote in an internal company memo that “our L-T [long-term] strategy is to demonize Donziger.”

Today's NY Law Journal article continues:

After Chevron filed its lawsuit, Donziger said, "It then used 'the explosive' 'thermonuclear' impact of the allegations—the 'terrorizing' effect of civil RICO 'as another court has described it'—to launch a global smear campaign designed to destroy my reputation, chill my free speech rights, and drive me away from representing the Ecuadorian communities who are my clients. This campaign was promoted, encouraged and amplified by the very court that Chevron now seeks to preside over a bench trial."

In addition to "fundamental fairness" requiring a jury trial, Donziger said, "Chevron has accused me of being a 'criminal' in open court," and "it would amount to a travesty of justice to deny me and my clients a jury trial in what is essentially a private prosecution funded by corporate largesse."

Legal Newsline covered the development today as well, quoting Donziger spokesman Chris Gowen, who called Kaplan's decision “a clear abuse of power” and said that it shows Chevron doesn’t believe in its own case:

“This critical decision made only days before trial virtually guarantees Chevron its desired outcome from a judge who already has decided all key issues in the case before evidence has been presented,” Gowen said in a statement.

While Judge Kaplan—who famed trial attorney John Keker charges with allowing Chevron’s RICO case to degenerate into a “Dickensian farce”—remains intent on being the sole decider, Donziger and the Ecuadoreans are preparing for trial.

As we file this post, there is one brief comment on the Legal News Line article from a reader named Peter. We don't know who Peter is but we think he nails it:

The fact that Donziger is prepared to risk a huge financial judgement in order to be tried by jury clearly illustrates which side is more confident of its merits.

Read More

Chevron Continues Abusive Efforts to Rig Trial in Retaliatatory RICO Case vs. Donziger and Ecuadorian Villagers

Last week, after bringing in heavy-hitting trial lawyer Ted Olson to argue its case, Chevron prevailed in its effort to keep its favorite judge overseeing the upcoming trial over the oil giant's retaliatory lawsuit against lawyer Steven Donziger and his clients from the Ecuadorian Amazon. Days later, on the eve of the trial, Chevron dropped its damages claims against Donziger.

Why would they do that?

Well, once Chevron secured Judge Lewis Kaplan—who has displayed outright bias against the Ecuadorians and their legal team who sued Chevron over its rainforest Chernobyl—the company wanted to make sure it was Kaplan, and Kaplan alone, deciding the case.

As The Wall Street Journal—a pro-Big Business organ if there ever was one—put it:

"Trying the case before a jury would be riskier for the company, experts said, in part because jurors might not be sympathetic to its argument that it has been victimized by the lawyers for Ecuadorian villagers."

In other words, a jury would likely see right through Chevron's cynical efforts to play the victim after being found guilty of massive oil contamination—causing a horrific epidemic of oil-related sickness and death amongst thousands of poor rural Ecuadorians—in one of the most-litigated environmental cases in history.

And so, the company argued, without damages claims, Donziger loses his right to a jury trial.

But, according to a press release today, Donziger and the other RICO defendants disagree, and will pressing their view before the court tomorrow:

Donziger and his clients are due to file a motion tomorrow explaining why the law still requires a jury rather than allowing a bench trial before Judge Lewis A. Kaplan, who has a documented history of bias in favor of Chevron.

But, in addition to making sure the oil giant's dear friend in the federal court is the sole "decider," the company is going to alarming lengths to rig the trial:

Chevron is now trying to bar any and all evidence of environmental contamination in Ecuador from its RICO case as part of a strategy to deny rainforest villagers and their New York attorney Steven Donziger a fair trial, according to recent court filings.

The press release continues:

Chevron has asked Judge Kaplan to bar Donziger and the Ecuadorians from using any of the overwhelming scientific evidence that proved the company’s guilt when it was found liable by the Ecuador court for $19 billion in damages.
…
Chevron also has asked Judge Kaplan to bar Donziger and the Ecuadorians from presenting evidence related to “environmental and human conditions” in the affected area of Ecuador’s rainforest and to exclude the use of any scientific studies related to the contamination.  The Ecuador court relied on such studies as well as tens of thousands of chemical sampling results to find Chevron liable in the case.

Christopher Gowen, a law professor and spokesman for Donziger and the Ecuadorians called Chevron’s attempts to restrict evidence “stunning in breadth and scope,” saying:

"Chevron obviously is so afraid of its own wrongdoing that it wants to have an environmental trial without talking about the environment. That’s what corporate polluters do when they get caught with their pants down.”

Chevron's shocking requests to Judge Kaplan are laid out in its Summary Notice of Motions in limine. Here is an excerpt:

    Chevron requests that this Court enter an order: 

• precluding Defendants from offering at trial evidence, arguments, or questioning in support of the proposition that the findings of the Cabrera report, the Ecuadorian judgment, or Defendants’ allegations in the Ecuadorian proceeding were accurate or supported by evidence and sound scientific analysis, including but not limited to a prohibition on the submission of evidence, arguments, or questioning regarding the following topics, except insofar as the evidence is otherwise relevant:
  
• alleged environmental and human conditions in the Oriente region of Ecuador, including scientific or other studies, testing or sampling results, video or still images, or personal testimonies; and
• the procedures employed in the TexPet Remediation, the efficacy of those procedures, or their compliance with agreements and with Ecuadorian law.

Today's press release outlines more:

In various court filings, Chevron also has asked Judge Kaplan to bar Donziger and the Ecuadorians from presenting evidence of:

**Chevron’s repeated contacts with high-level government officials in Ecuador to try to illegally quash the case;

**Chevron’s many private contacts with Ecuadorian judges and independent court experts;

**Chevron internal videos showing company technical experts in Ecuador laughing at the pollution while discussing ways to hide it from the court;

**Personal testimony from individuals about pollution and health impacts that was relied on by the Ecuador court;

**Chevron’s sting operation against an Ecuador judge where the company tried to orchestrate a fake bribery scandal to derail the trial;

**Chevron’s creation of dummy companies to hide its control of a supposedly independent laboratory that processed soil samples for the court;

**Evidence that the legal team for the rainforest communities received death threats and were harassed during the trial;

**Evidence of Chevron’s surveillance of Donziger, Ecuadorian lawyer Pablo Fajardo, and others;

**Evidence of Chevron’s lobbying contacts in the U.S. designed to pressure Ecuador’s government to quash the case.

Pablo Fajardo, lead lawyer for the rainforest communities in Ecuador, commented:

“We thoroughly reject Chevron’s blatant attempt to rig the trial before Judge Kaplan by barring the decades of accumulated evidence of its environmental crimes, fraud, and misconduct in Ecuador."

As always, for an overview of Chevron's crimes in Ecuador, watch this video overview or this 60 Minutes segment, or review this summary of the overwhelming evidence against the company.  Chevron is now fighting a $19 billion judgment against the company.

Become a follower of  The Chevron Pit.
Follow us on Twitter at @ChevronPit and like us on Facebook.
Visit and watch a video on ChevronToxico.com to find out more.
Support Amazon Watch and Rainforest Action Network.

Read More

Ahead of Trial, Chevron Drops $60 Billion Damages Claim Against Ecuadorians in RICO Suit; Maneuvering to Avoid Airing of its Crimes in Ecuador

In a clear 11th-hour retreat that suggests it does not believe its own allegations, Chevron has taken the extraordinary step of pleading with a U.S. judge to block a jury from deciding its retaliatory “fraud” and RICO claims against Ecuadorian villagers and their U.S. lawyer. The company also said it was even prepared to drop a $60 billion damages claim if the judge agrees to deny the defendants a jury trial. Chevron's $60 billion figure is based on three times the $19 billion Ecuadorian judgement, plus costs.

Thus reads the introduction of a press release today—the headline: 'Bombshell Retreat: Chevron Seeks to Drop $60 Billion in Damages In Ecuador Case'—from the Gowen Group, whose founding partner Chris Gowen is serving as an adviser to the Ecuadorians and their longtime New York-based lawyer, Steven Donziger.

Chevron filed a series of motions over the weekend in the retaliatory lawsuit the oil giant filed against Donziger as well as the Ecuadorians whose names appear as representative plaintiffs in the original lawsuit against Chevron for massive contamination of their rainforest communities. Here is the motion dropping its damages claims against the Ecuadorians.

Adviser Chris Gowen said, “Chevron has shown over and over that its only legal strategy is to outspend everyone and continue to run from the law for another twenty years. When a litigant tries to avoid a jury, you can be certain that litigant knows it has no case. This is an extraordinarily telling moment that suggests a collapse of confidence in the Chevron camp.”

The press release continues:

Donziger and his clients have long contended that Chevron’s RICO case was a function of distorted and manufactured evidence helped along by Judge Kaplan, who has consistently made disparaging remarks about Ecuador’s judicial system. Donziger filed detailed counterclaims accusing Chevron of using the RICO case as a smokescreen to hide its environmental crimes, fraud and bribery attempts in Ecuador. (Kaplan has refused to let those claims go forward in the context of the RICO trial.)

And then it quotes Donziger:

“For three years, Chevron has used its RICO suit largely for public relations purposes to falsely taint the Ecuador case and tarnish my personal reputation. When it comes time to put their allegations to the test, Chevron chickens out and runs into the arms of its favorite judge for protection. The entire situation is an affront to American values.”

Advocates for the indigenous and farmer communities in the areas polluted by Chevron have for several years kept a spotlight on exactly why Judge Lewis Kaplan is what Donziger calls “its favorite judge.” He has shown shocking pro-Chevron bias; he calls the environmental lawsuit "a giant game" and the Ecuadorians the “so-called plaintiffs” and refers to them enforcing the judgment they won against the company by saying, "I don't think there is anybody in this courtroom who wants to pull his car into a gas station to fill up and finds that there isn't any gas there because these folks have attached [the company's assets] in Singapore or wherever else."

Donziger and the Ecuadorians have filed a writ of mandamus petition asking the 2nd Circuit Court of Appeals to remove Judge Kaplan for his impartiality in the case. On Sept. 26th, a 3-judge panel from the appellate court will hear arguments on the motion for Judge Kaplan's reassignment from the trial—that is, only a few weeks before the RICO trial is scheduled to begin on Oct. 15th. As the release states, “The scheduling of such an argument just before trial is a rare occurrence and suggests the higher court is watching Kaplan with great scrutiny.”

With these latest court filings, according to Donziger and his team, Chevron's goal is:

to have Kaplan conduct a rapid "show trial" that would bar Donziger and his clients from mounting a meaningful defense. Once Kaplan makes his expected “findings” against Donziger and the Ecuadorians, Chevron would then ask him to re-issue the same controversial global injunction purporting to bar worldwide enforcement of the Ecuador judgment that the Second Circuit Court of Appeals already ruled was illegal in 2011.

The most shocking stuff in Chevron's latest legal machinations is laid out plainly in their summary Notice of Motions in limine, which is an astonishing request to Judge Kaplan that he issues orders that would basically prevent Donziger and the Ecuadorians from mounting any sort of defense, or bring up any evidence of Chevron's contamination of the Ecuadorian Amazon, or its bad faith conduct during the trial in Ecuador.

Here is an excerpt:

Chevron requests that this Court enter an order:

• precluding Defendants from offering at trial evidence, arguments, or questioning in support of the proposition that the findings of the Cabrera report, the Ecuadorian judgment, or Defendants’ allegations in the Ecuadorian proceeding were accurate or supported by evidence and sound scientific analysis, including but not limited to a prohibition on the submission of evidence, arguments, or questioning regarding the following topics, except insofar as the evidence is otherwise relevant: 

• alleged environmental and human conditions in the Oriente region of Ecuador, including scientific or other studies, testing or sampling results, video or still images, or personal testimonies; and 

• the procedures employed in the TexPet Remediation, the efficacy of those procedures, or their compliance with agreements and with Ecuadorian law.

In the motion, Chevron shows real hubris going even further, asking Judge Kaplan to preclude the defendants from raising at trial:

• Chevron’s purported conduct in the Lago Agrio Litigation, including contacts with Ecuadorian government officials, arguments made by Chevron to the Lago Agrio Court, the cancellation and subsequent rescheduling of the Guanta inspection, Chevron’s purported “sting” operation against an Ecuadorian judge, Chevron’s use of a purported “sham laboratory”, Chevron’s purported “procedural misconduct” in filing motions in the Lago Agrio Litigation, Chevron’s purported ex parte contacts with Ecuadorian judges and court experts, any “harassment” supposedly suffered by Defendants or their co-conspirators, and any argument that their actions were justified by virtue of Chevron’s alleged misconduct; 

• Chevron’s conduct in this and other litigation in the United States, including Chevron’s purported misuse of Section 1782 to obtain discovery for use in the Lago Agrio Litigation, Chevron’s subpoenas to email providers seeking information about Defendants and their co-conspirators, and Chevron’s surveillance of Defendants and their co-conspirators; and 

• alleged promises and representations made by Texaco and/or TexPet in the Aguinda litigation.

You can read the entire motion here, and see how Chevron is hoping to abuse the judicial process in this RICO show trial, in a similar way that the company abused the judicial process in Ecuador, in an attempt to evade accountability for its disaster in the Amazon.

But the 2nd Circuit is watching. As are global supporters of the Ecuadorian communities. As are the communities themselves, who continue fighting for justice, despite the abuse they continue to deal with, from the oil-polluted environment they live in to courtrooms thousands of miles away.


For background on how Chevron decimated indigenous and farmer communities by dumping billions of gallons of toxic waste in Ecuador’s Amazon, watch this video overview or this 60 Minutes segment, or review this summary of the overwhelming evidence against the company.  Chevron is now fighting a $19 billion judgment against the company.

Become a follower of  The Chevron Pit.
Follow us on Twitter at @ChevronPit and like us on Facebook.
Visit and watch a video on ChevronToxico.com to find out more.

Support Amazon Watch and Rainforest Action Network.

Read More

Appeals Court to Consider Removing Key U.S. Judge in Chevron-Ecuador Case

A New York appellate court has said it will consider a petition to reassign federal judge Lewis A. Kaplan from an Ecuador environmental case that resulted in a $19 billion judgment against Chevron.

A press release issued today by the DC-based Gowen Group law firm outlines this potentially game-changing legal update in the case. Founding partner Chris Gowen has taken up duties as an adviser to and spokesperson for Steven Donziger, the New York human rights lawyer who has earned the ire of Chevron for his dogged two-decade effort to bring the oil giant to justice for massive pollution and human rights abuses in the Ecuadorian Amazon.

The press release continues:

The Second Circuit Court of Appeals has set Sept. 26 for oral argument on the petition to reassign the judge, who has been criticized for unfairly promoting a retaliatory Chevron “fraud” case against Ecuadorians villagers and their U.S. counsel. The reassignment petition, which is based primarily on Judge Kaplan’s refusal to follow prior appellate court orders in the case, can be read here and here.

Judge Lewis A. Kaplan is presiding over a lawsuit brought by Chevron against Donziger, Ecuadorian community leaders and Goldman prize winners Pablo Fajardo and Luis Yanza, as well as dozens of the "named plaintiffs" in the original suit against the oil company. Most of the named plaintiffs are from indigenous communities living in an area of the Ecuadorian Amazon devastated by Chevron's oil pollution. These communities have seen their livelihoods destroyed by pollution, their culture decimated by rainforest destruction, and lost loved ones to cancer and other diseases related to the toxins Chevron has admitted dumping into their environment. But that hasn't stopped Chevron from retaliating, and Judge Kaplan has wondered aloud whether these people even exist.

From the press release:

Judge Kaplan has been accused of bias for calling the Ecuador case a "giant game" invented by lawyers to “fix the balance of payments deficit” of the United States. He also referred to thousands of indigenous Ecuadorians as the "so-called" plaintiffs before imposing an illegal injunction purporting to block the Ecuador judgment from being enforced anywhere in the world. For background, see here and here.

Judge Kaplan’s injunction was reversed unanimously in 2011 by a three-judge appellate panel, dealing a stunning rebuke to Chevron’s primary defense in the case. The current petition for reassignment explains how Kaplan has continued to defy that appellate order by issuing a series of decisions disparaging Ecuador’s judicial system.

Donziger and the other defendants in the Chevron's retaliatory RICO case filed what is called a petition for a writ of mandamus, asking the Appeals Court to remove Kaplan form the case due to the bias he has repeatedly shown towards Chevron.

Amazon Watch's Eye on the Amazon blog writes that Kaplan insinuates that an "important company like Chevron should be guarded from judgment collection efforts that apparently might be acceptable if the company were deemed less vital" and quotes Judge Kaplan from an early court proceeding:

"[W]e are dealing here with a company of considerable otherwise importance to our economy that employs thousands all over the world, that supplies a group of commodities, gasoline, heating oil, other fuels and lubricants on which every one of us depends every single day. I don't think there is anybody in this courtroom who wants to pull his car into a gas station to fill up and finds that there isn't any gas there because these folks have attached it in Singapore or wherever else."

Back to today's press release for comment from Chris Gowen, an adjunct professor at the Washington College of Law who is advising the Ecuadorians and Donziger: “Chevron is desperately suing everybody it can to evade a valid judgment won by the rainforest communities the company has contaminated with toxic waste,” he said. “Chevron’s approach is clearly one of the greatest abuses of the legal system ever.”

Judge Kaplan has made numerous rulings and comments that will likely come under additional scrutiny when oral arguments on the mandamus petition take place in front of the Second Circuit Court of Appeals on Sept. 26th.

Already, Chevron has displayed some jitters as the the company's retaliatory lawsuit approaches a trial date. As reported here last week:

In an otherwise routine scheduling conference recently before Judge Lewis A. Kaplan, Gibson Dunn lawyer Randy Mastro suggested the oil giant was prepared to drop all damages claims against the Ecuadorians and their counsel, Steven Donziger, just to avoid a jury trial.

Chevron was hoping that it could get a fraud finding from Judge Kaplan without having a new round of evidence of the company's abuses put under a spotlight before a jury and the public. But with Judge Kaplan under scrutiny himself, he doesn't look inclined to go that route.

It would seem that Judge Kaplan has been one of Chevron's best assets in the company's cynical efforts to evade responsibilty for its disaster in Ecuador.  Should the Appeals Court re-assign him, it would be a huge blow to those efforts.

Stay tuned.

And as always: for background on how Chevron decimated indigenous and farmer communities by dumping billions of gallons of toxic waste in Ecuador’s Amazon, watch this video overview or this 60 Minutes segment, or review this summary of the overwhelming evidence against the company.  Chevron is now fighting a $19 billion judgment against the company.

Become a follower of  The Chevron Pit.
Follow us on Twitter at @ChevronPit and like us on Facebook.

Visit and watch a video on ChevronToxico.com to find out more.

Support Amazon Watch and Rainforest Action Network.

Read More