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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Attorney John Keker’s Blistering Critique of Judge Lewis A. Kaplan

In case you missed it, prominent California Attorney John Keker has unleashed a fusillade of criticism at New York Judge Lewis A. Kaplan for trying to help Chevron conduct a “show trial” as part of its campaign to evade payment of a $19 billion judgment for polluting the rainforest in the South American nation.

An Ecuador court found Chevron guilty in 2011 of deliberately dumping billions of gallons of toxic waste into the rainforest from 1964 to 1992, when it operated under the Texaco brand.  Evidence demonstrates Chevron’s dumping decimated indigenous groups and caused an outbreak of cancer and other oil-related diseases which persist to this day. A summary of the evidence can be viewed here; a video about the case can be viewed here.

Keker, who represents a New York attorney who is the main target of Chevron’s retaliation campaign, already told a federal appellate court that he felt “like a goat tethered to a stake” in Kaplan’s courtroom.  After hearing that comment, the appellate court unanimously overturned Kaplan’s illegal 2011 injunction that purported to block the affected rainforest communities from enforcing their winning judgment against Chevron assets in other countries.

To retaliate against the indigenous communities who won the Ecuador judgment – handed down in the Ecuador court where Chevron fought to have the trial held – the oil giant in 2011 sued New York attorney Steven Donziger and some of his Ecuadorians colleagues before Judge Kaplan.

Keker represents Donziger in the case, but is now seeking to withdraw due to Kaplan’s “implacable hostility” toward Donziger and the Ecuadorians. Donziger also has been unable to keep up with Keker’s fees.

Some highlights from Keker’s motion:

• Kaker asserted that Judge Kaplan has let Chevron’s 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.”
• Another excerpt:  “Encouraged by this Court’s implacable hostility toward Donziger, Chevron will file any motion, however meritless, in the hope that the Court will use it to hurt Donziger.”
• Judge Kaplan forced Donziger to sit for an unheard-of 16 days of deposition testimony and allowed Chevron to serve him 1,228 requests for admissions prior to trial.  He recently ordered Donziger to sit for a further three days of depositions, when the federal rules normally allow only one day.
• Judge Kaplan forced Keker to spend “hundreds of thousands of dollars” of attorney time to respond to Chevron’s Motion for Summary Judgment which was filed before discovery in the case was taken -- a highly unusual step designed to exhaust the resources of the Ecuadorians.  Kaplan then denied the motion, but said Chevron could renew it after the close of discovery, which is what Keker had “begged” the court to do at the outset.

For further evidence of Kaplan’s bias, read these extraordinary petitions to get Kaplan off the case filed by the Patton Boggs law firm. They can be seen here and here. The latter petition is now pending before the Second Circuit Court of Appeals, so stay tuned.

For more information about the Keker motion and a similar one filed by the Smyser Kaplan & Veselka law firm in Houston, see this press release from the Ecuadorian communities and this release put out by Donziger’s law firm.

It is well-known that Judge Kaplan takes a dim view of the intelligence of the Ecuadorian people.  The good judge also has mocked Ecuador’s judiciary from the bench, causing a firestorm of international criticism.

The Ecuadorian citizen Pablo Fajardo, the lead lawyer on the case on behalf of the rainforest communities and the winner of the Goldman Environmental Award, has called Judge Kaplan “arrogant, racist, and xenophobic”. See this press release for more detail about Kaplan’s insulting comments directed to Ecuador from the bench.


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U.S. Appeals Court To Hear Request To Remove Biased Judge In Ecuador Case

The Second Circuit Court of Appeals -- the same court that stopped cold Chevron's effort to block enforcement of the $19 billion Ecuador judgment in 2012 -- has agreed to hear arguments by the Ecuadorians on why U.S. trial court judge Lewis A. Kaplan is continuing to engage in acts of insubordination from the bench.

The decision by the appellate court to hear the arguments is bad news for Kaplan, who already has been overturned once by the Second Circuit for imposing an unprecedented “global injunction” that purported to prohibit indigenous and farmer communities in Ecuador from enforcing a judgment from their own courts anywhere in the world. Kaplan had become the target of worldwide derision for trying to dictate rulings to the courts of other countries. (See press release here.)

The Ecuadorians say Kaplan’s efforts to orchestrate a show trial warrant the reassignment of the case, as documented by this previous posting on The Chevron Pit.

Chevron is using the remaining fraud counts it filed against the Ecuadorians and their counsel to try to chill fundamental human rights advocacy that attempts to hold the oil giant accountable for its discharge of billions of gallons of toxic waste into the Amazon, as found by an Ecuadorian court based on overwhelming scientific evidence. Steven Donziger, a longtime American lawyer for the communities, has countersued Chevron for lying and engaging in fraud to cover up its misconduct. (See Donziger’s counterclaims here.)

Chevron suffered a major setback recently when a California judge ruled that the environmental group Amazon Watch – known as Chevron’s “sharpest critic” – was engaged in First Amendment-protected activity when it criticized the company for its refusal to clean up its contamination in Ecuador. Chevron had tried to subpoena the group’s documents, claiming its advocacy was part of an improper pressure campaign. (See an article explaining the decision here.)

The Ecuadorians, meanwhile, have denied Chevron’s outrageous charges. The company is desperate to distract attention from advancing seizure lawsuits targeting billions of dollars of assets in Canada, Brazil, and Argentina – with more such actions to come, according to lawyers for the communities.

Kaplan had shocked legal observers with his rants and prejudicial statements from the bench about Ecuador, a longtime U.S. ally where Chevron itself has won multiple lawsuits against the country’s state-owned oil company. He derided Ecuador’s government and judiciary. He refused to recognize the fundamental humanity of the impoverished indigenous victims, referring to them as the "so-called plaintiffs" and urging Chevron to file a racketeering and extortion case.  See this previous Chevron Pit.

To top it all off, Chevron lawyer Randy Mastro literally was laughed out of court when he couldn’t answer fundamental questions before the appellate panel. See here. Mastro’s effort to protect Kaplan was an utter failure.

Kaplan’s tendency to engage in judicial imperialism has once again reared its ugly head. He is now setting up Chevron’s so-called “RICO” case as nothing more than a show trial, stripping the ability of the plaintiffs to put on evidence of Chevron’s toxic dumping and fraudulent cover-up while purporting to rule (in defiance of the earlier Second Circuit order) on the legitimacy of Ecuador’s judiciary.

That’s the same judiciary that Chevron praised when it fought for ten years to venue the trial there after the Ecuadorians originally filed the case in New York.

A trial by jury has been set by Kaplan for October 15th. But we say that neither Chevron nor Kaplan really have the guts to risk a full-blown trial before a jury where the truth can come out. Kaplan and Chevron will try to figure out a way to prevent jurors from hearing the case – possibly by dropping monetary claims for damages, thereby allowing a bench trial.  If jurors do hear the case, Kaplan won’t let the Ecuadorians put on evidence of Chevron’s crimes and fraudulent cover-up.
 
But wait – isn’t a bench trial by Kaplan what the Second Circuit vacated the first time?

Kaplan and Chevron are now operating from a smaller and smaller box, with their options to impede a final recovery constricting almost weekly. Meanwhile, Mastro and his team of 114 lawyers at Gibson Dunn & Crutcher are on a roller coaster ride of unprecedented billing excess, subsidized by Chevron shareholders who themselves are being duped by Chevron management, as this devastating report by securities lawyer Graham Erion points out.
 
Gibson Dunn lawyers are laughing all the way to the bank while piling up a string of setbacks for their client, whose management is either too obtuse or personally conflicted to understand the peril they are facing.

In their petition, the Ecuadorians argue that in the earlier reversal the appellate court found that Kaplan did not have jurisdiction to rule on the Ecuador judgment unless the Ecuadorians sought to enforce the judgment in a New York court -- a legal move that the Ecuadorians have not taken and have said they will not take. Yet Kaplan continues to claim in various rulings he can still so dictate, in defiance of the appellate court.

We remind Judge Kaplan of the words written by the Second Circuit in 2011:

“The (Ecuadorians) hold a judgment from an Ecuadorian court. They may seek to enforce that judgment in any country in the world where Chevron has assets. There is no indication that they will select New York as one of the jurisdictions in which they will undertake enforcement efforts . . . . It is unclear what is to be gained by provoking a decision about the effect in New York of a foreign judgment that may never be presented in New York. If such an advisory opinion were available, any losing party in litigation anywhere in the world with assets in New York could seek to litigate the validity of the foreign judgment in this jurisdiction. . . . Chevron can present its defense to the recognition and enforcement of the Ecuadorian judgment in New York if, as and when the (Ecuadorians) seek to enforce their judgment in New York.”"

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