Chevron: Release The Secret Evidence That Proves Your Guilt In Ecuador

Reposted from Karen Hinton on the The Huffington Post

In the wake of a controversial U.S. court ruling that a $9.5 billion Ecuador judgment against Chevron is fraudulent, the oil giant has been touting loudly its innocence of any environmental crimes in the South American country.

Chevron's lawyers even successfully pressured some CBS News corporate suits to yank a damning 60 Minutes piece from the network's website about the deliberate contamination of the Ecuador rainforest from 1964 to 1992 by Texaco, which Chevron later bought.

(See the dead link here. You can see the segment on my company's web site. So sue me, CBS.)

Instead of succumbing to Chevron's pressure tactics, CBS' lawyers should grow a backbone and demand to see contamination "playbook" documents that Chevron has been forced to produce in an international arbitration proceeding.

They are explosive and prove 60 Minutes got it right, and the U.S. judge got it wrong.

The playbook details how the company hid evidence of contamination during an eight-year Ecuador trial resulting in a $9.5 billion damage award that the Ecuadorians are waiting for Chevron to pay.

Meanwhile, Chevron is claiming in arbitration that the Republic of Ecuador should pay the judgment, and the two parties are duking it out before a panel of corporate trade lawyers who rent office space at The Hague and act as "judges" – more about them later.

The playbook took center stage in a recent arbitration filing by Ecuador. It appears the country's lawyers have gotten their hands on much, if not the entire, playbook, but the corporate trade lawyers are requiring Ecuador to redact or cover up the really damning evidence.

Even so, a recent rejoinder filed by Ecuador reveals enough to demonstrate what a morally bankrupt company Chevron is. (See the redacted rejoinder here.)

Here's what we know about the playbook, pieced together from the filings of both the Ecuadorians in U.S. court and the Republic of Ecuador in arbitration.

In 2011, the Ecuadorians obtained a few pages from the playbook and tried to enter them into evidence during Chevron's "fraud" trial, but Federal Judge Lewis Kaplan refused to allow any evidence of contamination into the record, including the small excerpt from Chevron's playbook.

(See my recent blog about this legal travesty, and this earlier 2011 press release about the playbook.)

During the Ecuador trial Chevron's paid experts wrote the playbook to document how to handle the contamination they found at the well sites in soil and water tests.

Without the knowledge of the Ecuador court, Chevron's experts conducted unofficial and secret pre-inspections of the sites so they could avoid the badly contaminated areas during the official judicial inspections. (See page 63 in the rejoinder.)

Their pre-inspection findings would have been devastating to their case had they been turned over to the court. So they never were. (See page 63.)

Instead, they used the results to avoid the contaminated areas and test at clean spots, usually from soil and water at elevations higher than the huge, unlined and open pits Texaco built to store permanently pure crude and toxic water.

[Quick backgrounder: Texaco explored for oil in Ecuador from 1964 to 1992 and was the sole operator of the well sites during that time. The Ecuadorians filed their original lawsuit in the U.S. against Texaco in 1993, one year after Texaco left Ecuador. A U.S. judge dismissed their lawsuit ruling in 2001 at Texaco's urging the litigation should be heard in Ecuador. That year, Chevron bought Texaco. In 2003, the Ecuadorians re-filed their case in Ecuador but not before the U.S. 2nd Circuit Court of Appeals instructed Chevron that it must accept Ecuador's jurisdiction, which it did.]

Chevron routinely used deceptive methods, such as mixing clean soil with dirty and undercounting hydrocarbons, to hide or reduce toxic chemicals in samplings. (See pages 66-72.)

This table below, taken from the arbitration filing, reflects just a few of the thousands of pages of playbook notes Chevron's experts and field personnel took, describing the contamination and advising the company about ways to avoid it during the official judicial inspection.

It's heavily redacted. If it's true – as Chevron says it is – that the oil giant is innocent, and the truth is what it seeks, then why won't Chevron release the un-redacted, unedited playbook for all to see?

Maybe it has something to do with the 1995 remediation agreement that Chevron argues is its get-out-of-jail-free card.

The agreement, between Texaco and the Republic of Ecuador, released Texaco from government liability in exchange for a cleanup of a relatively small number of pits. It did not, however, release Texaco from third-party claims.

During the Ecuador trial, tests found contamination levels at the so-called remediated Texaco pits as high or higher than the ones not cleaned. The Ecuadorians accused Texaco of simply throwing dirt on top of the contamination to hide it.

Chevron's playbook backs that up.

At pits Texaco said it cleaned, Chevron – according to its own playbook – found contamination during its secret PIs or pre-inspections. To avoid or reduce the contamination Chevron, during the official judicial inspection, took soil only from the top layer.

Ecuador's rejoinder references the playbook notes of Shushufindi 24, Sacha 21 and Lago Agrio 6, all three well sites that Texaco said it cleaned.

In its secret, pre-inspections Chevron discovered otherwise. (See pages 68-69.)

The rejoinder reads: "During the JIs (judicial inspections) Chevron's experts sought to avoid finding pollution by sampling only to depths that it knew to be clean. For example, at Shushufindi 24, the soil boring log at pit 2 shows that during its PI, (pre-inspection) REDACTED "Then at the JI, Chevron strategically chose to take surface soil samples only – avoiding the known contamination below."

Chevron: What did you find at Shushufini 24, Sacha 21 and Lago Agrio 6?

If you found little or no contamination, then all is well.

If you found contamination and withheld it from the court, then your remediation agreement comes unraveled as does your entire legal case.

Chevron will say today that pre-inspections were allowed, but that's not what its attorneys said during the trial. Chevron wrongfully accused the Ecuadorians of pre-inspections, telling the court that pre-inspections were a "violation of legal security and due process of law," and "no technical team from ChevronTexaco Corporation has performed any secret tests here."

The rejoinder reads:"Yet by that time, Chevron's experts had conducted PIs at least REDACTED (number of) sites and taken over REDACTED (number of) samples." (See page 65.)

Chevron wants its shareholders to believe the Ecuadorians are history, even though enforcement lawsuits are underway in three countries and an appeal of the U.S. ruling is pending before the Second Circuit Court of Appeals, which reversed an earlier Kaplan attempt to stop enforcement of the Ecuador judgment.

And, while the Republic of Ecuador is fighting aggressively Chevron's arbitration claim, it is doubtful the arbitration panel will rule against the oil giant.

Brought in 2009, Chevron's arbitration action is based on alleged violations of Ecuador's Bilateral Trade Agreement with the United States.

For some time now, multi-national corporations have been abusing these trade agreements. Allowing it to happen are the corporate trade lawyers who sit on arbitration panels as judges and then rotate off as lawyers representing corporations before panels composed of their trade lawyer buddies.

Best example is the successful claim by Phillip Morris against Australia because the country placed warning signs on cigarette packs about the dangers of smoking after Phillip Morris began selling cigarettes there. See here.

International arbitration is fraught with serious conflicts of interest, and some countries are considering ending bi-lateral trade agreements due to numerous upside down arbitration rulings that have put the interest of corporations above a country's residents.

The Ecuadorians' best bet is in Canada, Brazil and Argentina where they have filed enforcement lawsuits to seize Chevron's assets in those countries as payment for the judgment.

Who knows? The entire Chevron playbook may see the light of day in one of those courtrooms soon. Or, 60 Minutes could stand by its work and demand to see it.

Ironically, during Chevron's "fraud" trial, Kaplan quoted former Supreme Court Justice Louis D. Brandeis' famous maxim that "sunlight is said to be the best of disinfectants" but when it comes to the allegations leveled by the Ecuadorians and their lawyer, Steven Donziger, Kaplan and the corporate trade lawyers hanging out at the Hague prefer the dark side of the moon.

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Chevron Getting the Jitters Over Its RICO Case

Shaky Evidence and Appellate Court Scrutiny Starting to Disrupt Company’s Master Plan

Chevron’s vaunted 114-lawyer “rescue team” at Gibson Dunn seems to be getting the jitters over its upcoming RICO trial in federal court in New York.   

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.   The company’s “Plan B” appears to be to seek a fraud finding from Judge Kaplan alone -- something the judge does not seem inclined to do, and something that would have little chance of working even if he did.

The fact Chevron is even thinking of this possibility is a huge retreat.  It’s also a strong indication that Chevron believes its billion-dollar investment in the RICO case has suddenly become a high-stakes gamble with far greater risk than CEO John Watson is letting on to shareholders and the financial markets.   A loss in the case via a jury verdict would be disastrous for the company both in the U.S. and in defending enforcement actions targeting its assets in countries around the world. 

If it were to drop the damages claims, Chevron might avoid a civil jury trial which in most cases is only guaranteed to a defendant when money is at stake.  But if Chevron chooses to go down this path, it will be left with virtually nothing to litigate.  It might get a “finding” from the discredited Judge Kaplan, but that will be of little or no use in foreign courts who already see the judge as a vassal of U.S. judicial arrogance.

To be clear: Chevron never thought the RICO case would get this far.  Juries are inherently unpredictable.  For a large corporation like Chevron with a $19 billion liability and the reputations of its senior management team at stake, that’s also terrifying.  Chevron simply cannot afford to lose this case.

Chevron assumed that the small legal team for the Ecuadorians would be ground to a pulp by now.  Or that Judge Kaplan would have found a way to rule in Chevron’s favor on pre-trial motions.  Both strategies have failed.

After being unanimously reversed in 2012 when he tried to block the Ecuador judgment from being enforced anywhere in the world, Judge Kaplan appears anxious to push Chevron’s allegations into the hands of a jury.  (That will come after the judge continues to make evidentiary decisions to rig the trial in Chevron’s favor.  See here and here for a taste of Kaplan’s bias.)  In the end of the day, Judge Kaplan knows any finding he makes alone has little chance of surviving appeal and his own instincts at this point are to protect himself, even if it means Chevron cannot get everything it wants.

Chevron also knows juries tend to follow their gut.  That does not bode well for Chevron’s absurd notion that it is the victim of a global  “racketeering scheme” foisted on it by the very indigenous groups who have had their ancestral lands poisoned by the company’s toxic dumping. This “blame the victim” approach is classic historical revisionism practiced the world over by oppressors and Chevron is no different.  

(For an understanding of the overwhelming evidence against Chevron in Ecuador, see this video, this 60 Minutes segment, and this summary of the evidence relied on by the Ecuador court to find the company liable for both polluting the delicate rainforest ecosystem and for trying to corrupt the trial that held it accountable.)

In 2011, the Second Circuit Court of Appeals reversed Judge Kaplan’s illegal injunction purporting to block worldwide enforcement of the Ecuador judgment. Judge Kaplan’s ham-fisted attempt to rescue Chevron from its misdeeds in Ecuador remains a sad example of ugly Americanism at its worst.  See here, and here to get a feel for the international scorn provoked by this short-lived attempt by a U.S. trial judge to control the Ecuador judgment on a global basis.  

Despite this personal setback – no Judge likes to get reversed -- Kaplan does not appear to be the least bit chastened from the experience.  And that’s bad for Chevron because Judge Kaplan’s hubris has put him in serious trouble yet again.

Just last week, the appellate court set oral argument in late September to determine whether Judge Kaplan should be removed from the RICO case altogether given his continued defiance of the Second Circuit’s order that he not opine on the validity of the Ecuador judgment.   See here for the latest facts underlying the petition for his removal.  Let’s just say it is serious business whenever a trial court thumbs its nose at an appellate court.  To do it on multiple occasions and blatantly is even more perilous. 

Judge Kaplan encouraged Chevron to bring the RICO action in the first place.  Without his efforts, it likely never would have gotten past first base.  The judge has jerry-rigged the evidence by repeatedly violating the due process rights of the Ecuadorians and Donziger.  He even has ruled they will not be allowed to present testimony about Chevron’s massive pollution in Ecuador, thus making it virtually impossible to mount a meaningful defense.  Should the case be reassigned to a fair judge, look for Chevron’s claims to lose all traction. 

As for the lawyers, Mr. Donziger and others are still confident.  It was Donziger who recently forced Chevron CEO Watson to testify about Ecuador during a deposition – a shocking risk given that he now could be charged with perjury if it is found that he lied under oath. This industry royal was forced to endure the humiliation of answering live questions posed by a solo practitioner (Donziger) he previously called a “criminal” on earnings calls with investors.  (Chevron has gone to great lengths to keep Watson’s testimony confidential.  When the lies and memory lapses get exposed, Watson will be further embarrassed and the global shareholder campaign against him will pick up even more steam.)

Given these problems, it is understandable why Mastro is nervous about a jury trial.  But there are other reasons.

First, Mastro is known far more as a political fixer than a trial lawyer.  He will fight like a pit bull to avoid ceding the high-profile trial stage to the many more talented lawyers at Gibson Dunn, including his colleagues Theodore Boutrous and former star federal prosecutor Reed Brodsky. Any defendant would want Mastro to lead the Chevron show before a jury.  Let’s hope he hangs in there.

We have seen from previous hearings before Judge Kaplan how Mastro and his sidekick, Andrea Neumann, lack basic courtroom agility and have an off-putting personal style.    Mastro already lost three key appellate arguments in the case and literally was laughed out of court in 2011 when he couldn’t answer the most basic questions when trying to defend Judge Kaplan’s illegal injunction before a three-judge appellate panel.  

Second, Chevron’s witness list reads like a Who’s Who of small-time thugs, criminals, and cartoon characters.  Almost all have agreed to testify because of some combination of bribes or intimidation coming from Chevron headquarters.  While the oil goliath has packaged this testimony for maximum effect in affidavits clearly ghostwritten by its own lawyers (leading to a lot of slanted reporting in its favor), under the klieg lights of trial it is doubtful that any of these people will retain even the slightest veneer of credibility.

Exhibit A is former Ecuador Judge Alberto Guerra Bastides, an admitted con artist who received a suitcase full of cash from Chevron lawyer Andres Rivero in Quito in exchange for favorable testimony.   In a deal negotiated directly by Mastro, Chevron has committed to paying Guerra at least $326,000 or roughly ten times his annual salary.  These payments are a clear violation of the ethical rules.  Given his many credibility problems, it is unclear if Guerra will even take the stand.  If he does, he will help the Ecuadorians more than Chevron.

Exhibit B is Christopher Bogart, the disgraced CEO of the litigation hedge fund Burford Capital.  Bogart helped to fund the legal battle of the Ecuadorian communities until Chevron threatened to add Burford as a RICO defendant.  In a panicked response, Bogart betrayed his clients and engaged in some cowardly double-dealing with Chevron – privately negotiating an exit from the case with Chevron’s lawyers while supporting the Ecuadorian communities publicly.   Bogart even emailed Mastro after the Chevron RICO filing and just weeks after he funded the Ecuadorians:  “Randy – congratulations on a superbly executed campaign!” 

Bogart eventually signed an affidavit to help Chevron where he clearly lied to the court about being “misled” by the Patton Boggs law firm and Donziger (Bogart’s own emails, which are nauseating to read, showed he actually believed the opposite).  See this devastating take-down of Bogart in a court brief filed by Patton Boggs as it seeks to strike his affidavit and impose sanctions against Chevron. It is unclear to us after reading this brief how Bogart will ever again work in the funding business.

(If any investor out there is thinking about Burford as an opportunity, they should read about the lack of ethics displayed by Bogart and another Burford director, Ernest J. Getto.  Since Bogart cannot be trusted to disclose this document – it is nowhere to be found on Burford’s website -- we have decided to post it here.)

Chevron’s other main witnesses have been similarly discredited.  It is now clear that Chevron threatened Douglas Beltman and Ann Maest – former scientific consultants to the Ecuadorians -- with personal bankruptcy and career destruction before they signed affidavits that contradicted prior sworn statements under oath attesting to the company’s responsibility for massive pollution in Ecuador.  [http://thechevronpit.blogspot.ca/2013/04/the-truth-behind-stratus-affidavits.html]   Beltman and Maest, who since have been fired from their jobs, will have little credibility if they take the stand and try to help Chevron. Expect lawyers for the rainforest communities to call these Chevron witnesses as their own if Mastro gets cold feet.

Chevron’s internal documents suggest the company is hanging itself by its own petard.  When faced with overwhelming scientific evidence of its guilt in Ecuador, Chevron decided to launch a strategy to “demonize” Donziger to distract attention from its own environmental crimes and fraudulent remediation.  This included using six Kroll operatives to spy on Donziger and his family in Manhattan.  How will a jury view a big oil company that tries to cover up its atrocities by demonizing a human rights lawyer who helped hold it accountable?

Chevron also launched a campaign to attack the government of Ecuador and to declare war on its courts even though Chevron fought for years to venue the case there.  A memo by Chevron consultant Sam Singer suggests the company adopt “message themes” that would portray Ecuador as “the next major threat to America” and “as the next Cuban missile crisis in the making.”    This type of overreach actually reflects Chevron’s level of desperation.  The company’s incessant attacks against Ecuador’s popular President, Rafael Correa, have started to alienate almost every oil-producing nation in South America and put the company’s business operations at further risk.

The Singer memo will not sit well with a New York jury either.  Nor will other internal documents that show Chevron tried to bribe judges, pay off Ecuador’s government to illegally quash the case, or ask its employees to engage in obstruction of justice by destroying damning documents about its many oil spills in the Amazon. 

Chevron’s entire strategy with the RICO case has been to obtain a huge judgment that it can then use to offset the enforcement actions (currently pending in Canada, Brazil, and Argentina) where the rainforest communities are targeting company assets.  Chevron has sued Donziger and his clients for upwards of $60 billion, thought to be the largest potential personal liability in U.S. history.  Giving up on that cannot be an easy decision.

Chevron is now caught in a maze of its own creation.   Here is Chevron’s dilemma.  If it takes the case to trial before a jury, the entire house of cards is at risk of falling down.  If it drops the damages claims to avoid a jury, any decision by Judge Kaplan will have little or no impact.   And the court of appeals is watching so closely that Chevron simply cannot expect Kaplan to run roughshod over the Ecuadorians and Donziger as before, even if he is allowed to stay on.

After billing Chevron outrageous sums and making grandiose promises to the world, the pressure is now all on Gibson Dunn.  The firm’s lawyers know a jury is risky business for a major client like Chevron with a proven record of human rights abuses and other corrupt activities in Ecuador. See this gripping photo essay from journalist Lou Dematteis for a sense of the profound human devastation Chevron has caused and that Gibson Dunn with Judge Kaplan’s help is trying to bury.

It would be a personal and professional disaster for Mastro and Chevron General Counsel R. Hewitt Pate to fail to deliver a verdict in the company’s favor.  Watch for more furious maneuvering by Chevron as the October trial date nears.  

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Judge Lewis A. Kaplan Socks Ecuador Indigenous Groups With Huge Bills for His “Special Master” Friends

The Disturbing Story of the Secret Invoices of Max Gitter and Theodore Katz

Just when you thought Judge Lewis A. Kaplan’s maneuverings in favor of Chevron in the Ecuador case could not get any worse, they just did.  

The controversial judge, who was unanimously reversed by an appellate court in an earlier phase of the case when he tried to impose an illegal injunction blocking the Ecuador judgment, now appears to be openly running a “pay-to-play” courtroom right in the heart of Manhattan.

The latest evidence: Judge Kaplan has socked impoverished indigenous groups in Ecuador with the exorbitant and secret bills of two “Special Masters” he appointed to oversee depositions in the case.  The Special Masters, Max Gitter and Theodore Katz, are longtime friends and professional colleagues of Kaplan.  Gitter was his former law partner and Katz served for many years as the chief magistrate judge on the court where Kaplan sits before opening a lucrative private mediation practice.

Hang on to your seats for this one.

When Judge Kaplan floated the idea several months ago of appointing Gitter and Katz at Chevron’s request, the Ecuadorians and their longtime U.S. lawyer, Steven Donziger, objected strenuously.  See this letter from famed trial lawyer John Keker for details.  Not only did Gitter have a track record of blatant bias against Donziger, the fees were way beyond what the Ecuadorians – two rainforest residents named Hugo Camacho and Javier Piaguaje -- could afford.  Further, there was obviously no need for the Special Masters other than to assist Chevron in gaming the depositions and further sapping the limited resources of the defendants.

True to form, Judge Kaplan appointed Gitter and Katz anyway.  He then ordered Donziger and the Ecuadorians to split the fees of these high-end lawyers with Chevron.  Chevron grossed $247 billion last year; company CEO John Watson received about $30 million in compensation.  Mr. Donziger is a human rights lawyer who works out of his small apartment in Manhattan; the Ecuadorians live in the rainforest and in a good year might make $1,000 in income.

That should give you a good feel for Judge Kaplan’s personal notion of fairness:  a canoe operator in the Amazon rainforest (one of the Ecuadorian defendants) and the nation’s third largest corporation should split the fees of high-priced U.S. Special Masters evenly.

Things then went from the bizarre to the surreal.  Gitter informed the parties that he would bring along his young associate from Cleary Gottlieb to all of the depositions and bill him out at a “discounted” rate of  $630 per hour.  The associate, Justin Ormand, recently was spotted sipping drinks with Katz in the first class cabin on a flight from Newark to Peru after Judge Kaplan ordered Ecuadorian witnesses to be deposed in the U.S. embassy in Lima.

(Judge Kaplan’s decision to force Ecuadorians to travel to Peru to be deposed because of fake “security” concerns is yet another illustration of his xenophobia and disdain for the country of Ecuador.  See here for details.)

Later, something very curious happened.  Both Gitter and Katz refused to send the bills for their time and expenses to the Ecuadorians and Donziger.  Instead, without disclosing the amount of their bills, they asked Judge Kaplan for “guidance” about what they should do in light of the defendants stated refusal to not be able to pay.  See this letter.

Julio Gomez, a solo practitioner from New Jersey who now represents Messrs. Camacho and Piaguaje after their previous counsel withdrew in May, asked the Special Masters for a copy of their invoices so he could respond to the letter to the court.  Ormand, no doubt billing at his “discounted” rate of $630 per hour, wrote back a cryptic email asserting that the Special Masters were refusing to turn over the bills to Donziger and the Ecuadorians.  See that email exchange here.

Gomez and Donziger then filed a complaint with Judge Kaplan about how the entire situation seemed at least a tad bit improper.  No, make that dreadfully improper if not downright unethical.  This is where it really gets interesting.

Rather than order Gitter and Katz to disclose their secret bills to the defendants, Judge Kaplan concocted a plan to get them paid in full while at the same time allowing Chevron to exert added leverage over the Ecuadorians and Donziger in the underlying case.  This plan is so dazzling that only a judge as smart as Kaplan could possibly come up with it.

Judge Kaplan’s extraordinary order, which can be read here, requires Chevron to pay 100% of the fees of the Special Masters.  It refuses to order Gitter and Katz to disclose their secret bills.  And, amazingly, it invites Chevron to sue the Ecuadorians and Donziger so he can enter a judgment for the oil giant for 50% of the amount of the bills that are supposedly their responsibility.

In other words, Judge Kaplan’s scheme guarantees his friends will get paid what are surely exorbitant bills.  And it cleverly leaves Chevron the option of not suing Donziger and the Ecuadorians if it concludes it would be too embarrassing for Judge Kaplan, the Special Masters, or the oil company for the amounts of the bills to be disclosed.  This is one way that pay-to-play justice goes down in Judge Kaplan’s courtroom.

There is precedent for how fancy Manhattan lawyers can exploit the plight of the Ecuadorian rainforest villagers to generate enormous billings for their law firms. It has been reported that Gibson Dunn & Crutcher is using at least 114 lawyers and billing Chevron an estimated $400 million annually to help the company evade the $19 billion judgment in Ecuador.  This has caused all sorts of problems for Chevron shareholders, who have asked the SEC to investigate company management for failing to properly disclose the risk related to the Ecuador liability.  It also has put intense pressure on CEO Watson, who recently was forced to testify under oath about the litigation and answer questions from Donziger.

As for Gitter and his secret bills, we have seen the same script before.


In 2011, Judge Kaplan appointed Gitter as Special Master to oversee depositions in several discovery actions initiated by Chevron related to the Ecuador case, including that of Donziger.   Gitter mistreated Donziger to such an extent that he forced him to testify for 16 days – a likely record for an active lawyer on a case – and often tag-teamed with Chevron’s lawyers when posing hostile questions.  Donziger said at times it felt like being a defendant in the Salem witch trials.

During the marathon 16-day deposition spanning 2011 and 2012, Judge Kaplan ordered Donziger to pay one-third of the fees of Gitter and Ormand.   (Given Gitter’s hostile behavior, that’s like ordering someone to pay for the bullet of his executioner.) Yet Gitter never sent Donziger a bill for his “services”.  Why wouldn’t a high-end corporate lawyer like Gitter try his best to get paid?

We suspect it’s the same reason Gitter won’t disclose his bills to the defendants now.  He likely was embarrassed for the world to know how much he was making from Chevron to help crush impoverished rainforest residents under the guise of being a neutral “Special Master”.   We suppose Gitter did send out his earlier bill to Chevron and the company paid it.  It is indisputable he never copied Donziger nor asked that he pay his portion as ordered by Judge Kaplan.

A few weeks ago Donziger’s counsel asked Gitter for a copy of that old bill.  The idea was to use it as possible evidence to argue Gitter should not be appointed because of his liberal billing habits, lack of transparency, and obvious sympathies for Chevron.  Gitter never provided the bill to Donziger, which remains secret to this day.

The sordid story of the billings of Gitter and Katz and the behind-the-scenes puppeteer role of Judge Kaplan is part of a larger and disturbing pattern.  Judge Kaplan is trying to rig Chevron’s retaliatory “fraud” case such that the truth cannot come out and Chevron will cruise to victory in a show trial.  Chevron hopes to use any judgment to try to block lawsuits targeting its assets that are pending in countries around the world.

We have reported for weeks how Judge Kaplan is encouraging Chevron to use its overwhelming resources to win by might what it cannot win through merit.   See this powerful letter exposing Judge Kaplan’s efforts sent by Craig Smyser, a prominent Houston lawyer who formerly represented the Ecuadorians.  The oil giant has used at least 60 law firms, 2,000 legal personnel, and 180 investigators to help it evade the Ecuador judgment.


We now understand better why over the course of weeks of depositions in May and June Gitter and Katz often delighted in making rulings limiting questioning of Chevron witnesses so as to hide the company’s attempts to corrupt the Ecuador trial and spy on adversary counsel.  See these complaints filed by Donziger for details.

It is well-documented that Kaplan has made what appear to be xenophobic comments while presiding over the case. He has called the Ecuadorians the “so-called plaintiffs” who are “said to reside” in the rainforest.  He also famously said the Ecuador case was not “bona fide” litigation and was part of a “giant game” designed to by U.S. lawyers to rectify the balance of payments deficit.  All in all, these comments do not reflect the kind of temperament that Americans expect from their judges.

We also reported how Judge Kaplan has jumped through hoops to block the Ecuadorians from being able to mount a meaningful defense.  He ruled that they cannot mention the overwhelming scientific evidence used to find Chevron liable for massive contamination.  He also ruled that Chevron’s illegal spying operation that has targeted Donziger and his family is off limits, as are company videos that show Chevron scientists laughing at the pollution left in the rainforest and discussing ways to hide it from the court.  Kaplan also has allowed Chevron to bury embarrassing documents by designating them “confidential” -- including emails outlining a long-term strategy to “demonize” Donziger and to bribe Ecuador’s government to illegally quash the environmental case.

Donziger has protested repeatedly and asked Judge Kaplan for all sorts of procedural protections, but to no avail.  

Donziger also accused Chevron of  interfering with his right to counsel by suing numerous lawyers for the Ecuadorians and one of their funders for “fraud” so as to discourage lawyers from entering the case.  Judge Kaplan did nothing to allow Donziger the necessary time to secure new counsel after Keker’s withdrawal in May.  Judge Kaplan also has refused to allow Donziger to proceed with counterclaims against Chevron that outline a chilling picture of the oil giant’s illicit dumping in Ecuador, obstruction of justice, attempts to bribe the government, commit fraud on the court, and lie about the context of video outtakes.  See here for a copy of the counterclaims.

“Judge Kaplan has made it abundantly clear that he will not allow me nor my Ecuadorian colleagues a fair trial in his courtroom,” Donziger said in a statement in early May.


Well said and abundantly true.  The way Judge Kaplan has been using the Special Masters is just one more damning piece of evidence to support Donziger’s view.


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