Eye on the Amazon: Retaliation Trial Opens Against Victims of Chevron Contamination in Ecuador

Reposted from Eye on the Amazon



Today in New York Ecuadorian villagers from the Amazon rainforest region ravaged by Chevron's oil contamination were joined by supporters for a rally in Foley Square across from the courthouse where a trial opened in the California-based oil giant's retaliatory RICO lawsuit against the Ecuadorians and their U.S.-based legal advocates.

The Ecuadorians are representing 30,000 plaintiffs who won a landmark judgment against Chevron in an Ecuadorian court in 2011 in which the company was ordered to pay more than $18 billion for cleanup of widespread contamination, as well as compensatory and punitive damages. The case holding Chevron accountable for toxic dumping by its predecessor company, Texaco, has been upheld by appellate courts in Ecuador.

After nearly 20 years since the case was filed in 1993, Chevron still refuses to pay for a cleanup and is waging a scorched earth legal, PR, and lobbying campaign to crush its victims and their advocates and supporters. The oil giant stripped its assets from the country, forcing the Ecuadorians to pursue enforcement of the judgment in countries where the company maintains assets.

While Secoya indigenous community leader Javier Piaguaje continues to contest that the New York court can assert Personal Jurisdiction over him, he has traveled to New York to represent the tens of thousands of Ecuadorian plaintiffs who couldn't be there and defend them against Chevron's insulting allegations. He had this to say outside the courthouse in Foley Square today:

Ladies and gentlemen,


30,000 people were affected by Chevron's contamination and each day this number increases. Almost 30 years of criminal operation by the Chevron-Texaco oil company in Ecuador; more than 1,500 square miles of contaminated Amazonian rainforest; rising cases of cancer that almost always end in death; the suffering of our women for the great number of miscarriages; the devastation of the ecosystems and the destruction of thousands of species of plants and animals.


When Texaco arrived, we were expelled from our ancestral lands and two indigenous peoples went extinct. What the oil company brought to the Ecuadorian Amazonian was violence, death and destruction; meanwhile, the company got all the riches that the land offers at the cost of our lives, our health, and our home.


For this reason we continue our efforts to hold Chevron accountable, so that the company pays for all of the harm that it caused. We are here in New York now, where Chevron persecutes us and accuses us of being criminals and is supported by a judge who doesn't know our reality and suffering and hopes. Who are the real villains in this story?


We are outside this courthouse to tell the history that Judge Lewis Kaplan has refused to hear. Our misery is real and it will not cease to exist by a judicial process in New York, where Chevron hopes to avoid its responsibility with the collaboration of a judge that isn't even willing to validate the harm that we've had to endure. We come to denounce the abuse that is being committed in affected communities but also to tell them that we have already fought for 20 years and this RICO lawsuit will not stop us in our quest for justice.


The oil company has declared that it will fight us "until hell freezes over." Obviously our economic conditions are not the same; they can buy justice, we cannot. Because of this we must unite to fight against a giant that understands money, but not values like solidarity, truth, fellowship, and above all, justice.


Our fight is to keep the Amazon, the lungs of the planet, alive.


Our fight should interest the whole world.


We unite to make the world a place that is worth living in. The Amazon was one of those places. With your help, it can be again.


Thank you.

Forty-seven "named plaintiffs" – all of them indigenous rainforest residents and rural villagers – have been named in Chevron's lawsuit, which alleges that the entire case is a conspiracy to extort the company. Two of the Ecuadorian villagers, while rejecting the New York court's jurisdiction over them, have nonetheless appeared in the case in order to fight the allegations. Fearing a public backlash for suing victims of its pollution, Chevron has focused its smear campaign on New York-based human rights attorney Steven Donziger, who has advised the Ecuadorians in their efforts since first visiting the contaminated region in 1993.

The Ecuadorians and their supporters have called for an end to Chevron's retaliatory lawsuit, and are calling this latest effort a "rigged show trial" before a federal judge, Lewis A. Kaplan, who has displayed outright hostility to the Ecuadorians' legal efforts to demand a cleanup. Judge Kaplan has also made repeated disparaging on-the-record comments about Ecuador's judicial system.

Texaco operated in Ecuador until 1992, and Chevron absorbed the company in 2001, assuming all of its predecessor's assets and liabilities. Chevron has admitted to dumping nearly 16 billion gallons of toxic wastewater – the byproduct of oil drilling and pumping – into rivers and streams relied upon by thousands of people for drinking, bathing, and fishing. The company also abandoned hundreds of unlined, open waste pits filled with crude, sludge, and oil drilling chemicals throughout the inhabited rainforest region. In other countries at the same time as it was operating with no environmental controls in Ecuador, the company re-injected wastewater and used other easily-deployed technologies to deal with the toxic byproducts of its activities.

Multiple independent health studies have shown an epidemic of oil-related birth defects, cancers, and other illness. It is estimated that the contamination has directly led to at least 1,400 deaths.

More Information:

For more on the campaign to hold Chevron accountable for its abuses in Ecuador: ChevronToxico.com

For more on the impending trial in Chevron's retaliatory lawsuit: StevenDonziger.com

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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.

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

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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.

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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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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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