Chevron’s Explosive Filing on Collusion Between Plaintiffs and the Ecuadorian Court-Appointed Expert

by Roger Alford

The ongoing saga regarding Chevron’s legal travails in Ecuador took an interesting twist this week. As I reported earlier, Chevron has secured key outtakes of the movie Crude that appeared to show alarming collusion between the plaintiff lawyers and the Court-appointed expert. According to pleadings filed yesterday pursuant to 28 U.S.C. 1782, the outtakes include some amazing communications caught on tape. The purpose of the filing was to secure the court’s assistance with additional discovery of Crude outtakes to facilitate the arbitration and secure preservation of all relevant evidence “related to the fraudulent ‘Global Expert’ scheme as documented in the Crude documentary and the outtakes produced to date.” (p. 21).

The film outtakes include some choice excerpts of a March 3, 2007 meeting that included plaintiffs’ counsel (Steve Donziger and Pablo Fajardo), plaintiffs’ experts (Charlie Champ, Ann Maest, Dick Kamp) and the soon-to-be court-appointed expert, Richard Cabrera. The apparent purpose of the meeting between the plaintiffs and Cabrera was to develop a plan for the drafting of the independent expert’s report that Cabrera would write as Special Master for submission to the Ecuadorian court. According to Chevron’s filing, the tapes include some pretty damning evidence.

For example, Plaintiff lawyer Fajardo tells the assembled group—which includes the soon-to-be court-appointed expert Richard Cabrera–that the court-appointed expert is going to “sign the report and review it. But all of us [the plaintiff lawyers and experts] … have to contribute to the report.” Toward the end of the meeting Donziger brags: “We could jack this thing up to $30 billion … in one day.” (p. 2). Fajardo says that the team must “[m]ake certain that the expert constantly coordinates with the plaintiffs’ technical and legal team” and the plaintiffs’ team must “support the [court-appointed] expert in writing the report.” (p. 8). “Our entire technical team … of experts, scientists attorneys, political scientists, … will contribute to that report—in other words—you see … the work isn’t going to be the expert’s.” (p. 9).

In clarifying what role the plaintiffs and defense counsel will have in drafting the court-appointed expert report, Fajardo confirms that it will be written “together” with the plaintiffs. The idea of Chevron having a role in drafting the court-appointed report was met with collective laughter. (p. 9). Donziger proposes the plaintiffs establish a “work committee” to present a “draft plan” for the report and then says to the soon-to-be court-appointed expert, Richard Cabrera, “and Richard, of course you really have to be comfortable with all that.” (p. 11).

The next day, in a lunch meeting with just the plaintiffs’ lawyers and plaintiffs’ experts, one expert, Charlie Kamp, said “Having the perito [Cabrera] there yesterday in retrospect … that was bizarre.” Donziger replies, “Don’t talk about it” and tells the camera crew “And that’s off the record.” (p. 12). In responding to concerns from their own experts that there was not evidence of groundwater contamination, Donziger replies, “This is all for the Court just a bunch of smoke and mirrors and bullshit.” (p. 12). That’s right, Donziger is caught on tape saying that the evidence he is gathering for inclusion in the court-appointed expert report about groundwater contamination is just smoke and mirrors and bullshit.

I would rarely advise our readers to read a court filing they don’t have to, especially during the summer recess. But this one is explosive.

http://opiniojuris.org/2010/08/04/chevron%e2%80%99s-explosive-filing-on-collusion-between-plaintiffs-and-ecuadorian-court-appointed-expert/

17 Responses

  1. I think the saddest thing about these excerpts (if true in context) is how the plaintiffs will be disenfranchised by their own lawyers.  They are the people who are truly suffering.  After this, the plaintiffs will never be able to find out the truth of Texaco’s true culpability in the matter, and thus Chevron’s liability.  After all, who would believe the evidence?

  2. Given video experience with Shirley Sherrodd this past week, I would be curious to have some technical whiz deconstruct the Chevron filings to see what Chevron’s lawyers did to create this impression.  Video and outtakes are very easy to manipulate.  Somewhere in here is the truth.  This is a sideshow from the main event – what Chevron did.
    Best,
    Ben

  3. The first mainstream media outlet to pick up on the story is the San Francisco Sentinel.  Here’s their take, and they don’t mince words:

    “The outtakes from the movie prove what Chevron believed all along: the entire case is fraudulent and corrupt. …  Who would have guessed that Donziger and his allies would have been so arrogant, and stupid, as to make the admissions discovered in the outtakes of this film? It is equally disturbing that Berlinger, who purported to make a documentary, actually left the real story out of his film….  The outright falsehoods against Chevron become painfully clear in the legal filing by Chevron: the company is clearly the victim of a dishonest lawyer and an equally dishonest filmmaker.”

  4. So… this sounds like it has the potential for some criminal charges as well.

  5. I think the implications of these quotations cannot be evaluated without understanding the nature of the expert’s appointment.  If he were appointed in a capacity akin to a discovery magistrate in the US, which does not seem like an unreasonable assumption given the highly technical and data-intensive nature of the inquiry, he would probably be expected to receive information such as that described in the quotation.  It does seem troubling that he was, before being appointed, at this meeting and that his presence there was not disclosed or basis for disqualification.  Again, however, without additional details, it is difficult to know just how troubling that really is. Finally, I close by pointing out one additional irony.  Chevron is in court in Ecuador because it was successful in having this case dismissed from US courts under Forum Non Conveniens grounds.  In seeking the dismissal, Chevron argued vehemently that the Ecuadorian courts were an adequate alternative venue.  Presumably, one thing it wanted to avoid in a US litigation was US-style discovery.

  6. Catherine,

    I think you raise a good point.  It is plausible that a Special Master or perito might have ex parte meetings with both sides and get their input before drafting the report.

    Problem is, I was able to confirm today with counsel for Gibson Dunn that the Special Master Richard Cabrera never held a similar meeting with defendants or otherwise gave the defense side the opportunity to make suggestions or provide input about the contents of the court-appointed expert report.  They also say their is much more evidence that the Cabrera report was actually drafted with the plaintiffs. They also said that they are hoping that the film outtakes will be made available to the public, but it will require someone (like an enterprising law professor or student!) to go to the New York courthouse and get a copy of the DVD. The Second Circuit order precludes the defense counsel from handing the DVD film outtakes directly to the press.

    I also have made inquiries to plaintiff counsel to get their take on the allegations in the Chevron motion, but they have not called me back or emailed me yet.  They have said elsewhere that the quotes are taken out of context, but do not elaborate.  We will know their side of the story soon enough I’m sure.

    Roger Alford

  7. @Benjamin Davis: The main event is what Chevron did? How dare Chevron take responsibility for Texaco’s wrongdoing?!

  8. Interesting follow up, Roger, though the more I re-read the quotations and the original report, the more questions I have.  Where are all the enterprising NY-based law professors and law students when you need them?

  9. Roger,

    Since it sounds like you might be doing additional follow up, I thought I would offer a few more thoughts about some of the questions that remain for me having read your post.  I note that I have not read additional reporting on this subject, but I am aware that there are some other bases for potentially challenging Mr. Cabrera’s independence as a neutral expert.
     
    With regard to the specific quotes in your initial report and your follow up, however, the defense attorneys say they were not invited to an ex parte communication.  I am not certain that ex parte communications are exactly what the quotations are necessarily referring to.  The quotations seem, at least plausibly, to describe submission of evidence to an expert.  Yes, they refer to “coordination” and “contributions” to the report, but that could conceivably be a way of explaining to a lay audience (by a non-native speaker?) the process of submitting evidence that an advocate hopes is adopted and incorporated into the report.  The poor choice of words might be related to the attorney’s language skills, or simply a bit of hyperbole invoked to rouse the crowd.  Even the reference to a “draft plan” could be euphemistic or, if more literal, a reasonable corrollary to US procedures in which parties submit proposed orders to judges (though obviously it would be troubling if only one party were permitted such opportunity, as defense counsel seems to suggest).
     
    Again, I continue to think that it is troubling that the expert was at the meeting, but hard to know what to make of that fact without knowing how big the meeting was, what its overall purpose was, in what capacity he was attending, whether his attendance was disclosed to the judge who appointed him, etc.  More importantly, Ecuadorian standards for the impartiality of court-appointed experts may treat such attendance as acceptable, and perhaps not even necessary to disclose.  Even if Ecuadorian procedures makes certain allowances, there are of course limits under international standards regarding procedural fairness through which the judgment will ultimately be evaluated.

    Finally, as the world seems to be evaluating the quality of Ecuadorian justice, it is worth keeping in mind, particularly as more information comes out, that there are many challenges to ensuring fair adjudication–which might similarly be confronted by US courts–when a highly politicized case involves allegations that a foreign oil company’s alleged wrongdoing caused tremendous suffering and damage to a sympathetic local population. 

  10. I am the spokesperson for the plaintiffs in the lawsuit against Chevron. A couple of thoughts: The CDs filed with the court do not include the entire tape from which the scene was taken. It is Chevron’s edited version of the original tape. So reviewing it does not give you the complete picture. Chevron and the filmmaker Joe Berlinger have refused to provide the plaintiffs a copy of the tapes, as had the court. As a result, we do not have a way to review the original tape.
    Randy Mastro’s comment that Cabrera never offered Chevron the opportunity to meet is absolutely incorrect. Chevron chose not to cooperate with Cabrera. Chevron did not submit any information to Cabrera for inclusion into his report. Why? Because the vast majority of the samples taken prior to Cabrera’s appointment showed overwhelming evidence of extensive contamination. Even Chevron’s samples showed illegal levels of contamination, though their levels were lower than the plaintiffs’ tests. We discovered that Chevron (as well as Texaco earlier) falsified their testing levels.
    This is not the first time Chevron has taken comments out of context in order to derail the lawsuit.
    Below is the plaintiffs’ statement:
    Amazon Defense Coalition
    4 August 2010 — FOR IMMEDIATE RELEASE
    Contact: Karen Hinton at 703–798-3109 or Karen [at] hintoncommunications [dot] com
    Chevron Violates Court Order On Crude Outtakes; As Predicted, Chevron Manipulates Video to Discredit Efforts to Hold Company Accountable for Largest Oil Disaster in History
    Karen Hinton, spokesperson for the plaintiffs, and Ilann Maazel, attorney for the plaintiffs, issued the following statements in response to Chevron’s direct violation of a Second Circuit Court of Appeal order prohibiting the oil company from using the Crude outtakes to publicize its arguments in the lawsuit.
    Statement from Ilann Maazel, attorney for the plaintiffs:
    “Chevron’s latest filing is a blatant attempt to use a legal motion to launch a press campaign in direct violation of a court order. What comes across in Steven Donziger’s statements is a lawyer who feels very deeply about his clients and who is locked in a mortal struggle with a giant oil company.  For Chevron, this is another sideshow fabricated by the Gibson Dunn law firm and the company’s in-house counsel to cover up environmental contamination and human rights violations that have wrecked the Amazon and devastated the lives of thousands of people.”
    Statement from Karen Hinton, spokesperson for the plaintiffs:
    “Chevron’s order to preserve evidence is clearly a ruse to release selected and misleading information to reporters and bloggers that otherwise would have been barred under the Second Circuit Court of Appeal order. Chevron has flagrantly violated that order. (See the email below sent to writers by a Chevron press officer.)
    “As we predicted, Chevron has manipulated the outtakes to create video of its own liking. The nation recently witnessed mainstream media accept as fact a conservative blogger’s post of a selectively edited video of a former USDA official discussing race relations. Taking remarks out of context, the news coverage almost destroyed the woman’s reputation. It is important to remember Chevron has total control of the outtakes; they have not been shared with the plaintiffs.
    “Chevron has shown its true colors before in disinformation campaigns to discredit lawyers and others working to hold the company accountable for its human rights and environmental crimes in Ecuador’s Amazon. Almost a year ago, Chevron issued videotapes later completely discredited about false allegations of bribery in the Ecuador lawsuit. Before that Chevron paid a former CNN anchor to produce a video that appeared to be a legitimate newscast. And, earlier this week a prestigious magazine published a report about Chevron’s efforts to pay a journalist to lie about spying on a court-appointed expert. This company cannot and should not be trusted. Chevron’s executives and lawyers have proven they will stop at nothing to derail a trial where voluminous scientific evidence points to the company’s own culpability for creating an oil disaster far worse than the BP spill.
    “The facts debunk Chevron’s new round of charges.
    One — Before Cabrera became the court-appointed expert for the global assessment, he worked as one of several judicial experts and was paid by both Chevron and the plaintiffs for his work for the court. This was his position at the time of the March 2007 meeting.
    Two — Even before Cabrera is appointed the global assessment expert, overwhelming evidence of contamination had been discovered. Chevron’s own tests showed illegal contamination levels, though lower than the plaintiffs. During the trial, plaintiffs uncovered fraudulent testing by Chevron and Texaco that prove the two companies intentionally manipulated testing samples to ensure lower levels of contamination. Chevron chose not to cooperate with Cabrera and, as a result, never submitted any information to him for consideration in his expert report. Now Chevron tries to fault the plaintiffs for following the court’s instructions.
    Three — The $27 billion damage estimate that Chevron says Cabrera fraudulently reached by colluding with the plaintiffs is significantly less than damages for the BP spill, estimated at between $40 to $100 billion. Current estimates place the BP spill at 210 million gallons of oil, compared to 332 million gallons of oil intentionally dumped into the rainforest. In comparison with the Gulf, $27 billion sounds like a bargain, not fraud.
    Four — Courts around the world, including US courts, routinely adopt expert reports as their own and include the reports in their opinions.
    Five — Cabrera’s report is one of 106 expert reports that have found extensive contamination in the rainforest.
    Six — Texaco’s own internal audit conducted in 1993 found extensive groundwater contamination.
    Chevron Email To Bloggers
    Below is an email sent by Chevron press officer Justin Higgs to reporters, in direct violation of the court order. The first online publication to report Chevron’s allegations was Shopfloor, the official blog for the National Association of Manufacturers, a trade association of which Chevron is a member and funds NAM lobbying campaigns to promote pro-oil industry legislation and regulation. Shopfloor regularly posts blogs favorable to Chevron about the Ecuadorian lawsuit. This email was made available to the plaintiffs from another blogger. Chevron’s email to bloggers is another way of writing press releases for reporters.
    From: Higgs, Justin L
    Sent: Tuesday, August 03, 2010 8:03 PM
    To: Higgs, Justin L
    Subject: Chevron/Ecuador Court Filing– Fraud Exposed in Crude Outtakes
    In a filing made late today with a U.S. federal court, Chevron has submitted outtakes from the movie Crude, documenting pervasive corruption and fraud on the part of the Lago Agrio plaintiffs’ lawyers. In the filing, Chevron is asking the court to order the preservation of all records so that the full extent of the fraud can be investigated. We are also seeking to expand the scope of the information sought based on the revelations in the outtakes. It is obvious that the plaintiffs’ lawyers and their associates have engaged in an illegal scheme to corrupt the proceedings in Ecuador. The evidence submitted today shows beyond any doubt that there is no basis for an award of damages against Chevron, much less the fraudulent $27 billion assessment pending before the court in Ecuador.
    The filing can be found here: http://shopfloor.org/wp-content/uploads/2010/08/Chevron-filing-8–3-2010.pdf
    Best,
    –Justin
    Justin Higgs
    Media Advisor
    Policy, Government and Public Affairs
    Chevron Corporation
    6001 Bollinger Canyon Rd., Room A2257
    San Ramon, CA 94583
    Follow Chevron on Twitter , Facebook and Youtube Response…

  11. Given the language used in the outtakes, including the “turn the camera off” parts, I think it’s going to be a definite uphill battle toward a benign reading of their actions.

  12. Catherine,

    Again great questions.  I have spoken with Karen Hinton, spokesman for the plaintiffs, and she states that the Ecuadorian system of court-appointed experts allows for ex parte communications and meetings of the type that occurred on March 3, 2007.  She also says that counsel for Gibson Dunn is telling “outright lies” when he says the defense side did not have the opportunity to meet with Cabrera or provide input into the report.  She says they were invited to do so, but chose not to participate. 

    When I asked her why Cabrera was there at the meeting to discuss a global expert report prior to his appointment as the global expert, she did not have an answer.  Of course, he had been appointed as one of several dozen court-appointed technical experts prior to the meeting.

    Most intriguing, Hinton said that she does have copies of the DVD submitted to the court as well as a transcript of the DVD.  She said she would provide me, at a minimum, with a copy of the transcript later today.  Hinson insists, for example, that Donziger’s comments about smoke and mirrors and bullshit was a reference to Chevron’s evidence, not their own.  Hopefully the transcript and tapes will clear that up. 

    She emphasized, however, that the DVD filed with the court is only a tiny fraction of the 500-plus hours that Chevron has in its possession.  Remarkably, she said that the filmmaker, Joe Berlinger, and Chevron have all of those tapes, but the court did not authorize those tapes to be provided to the plaintiffs team.

    More details of the plaintiffs’ response to the Chevron Motion can be found here and here

    I’ll post more when I learn more.

    Roger Alford

  13. Roger:  Karen Hinton posted a response in the comments to my Volokh post citing back to your post here at OJ – it includes the text of the plaintiffs’ response, in case readers are interested.  http://volokh.com/2010/08/06/new-twists-in-chevron-ecuador-case-and-charges-of-collusion/#comments

  14. I have now received the transcripts of the DVD and they are discussed in my most recent post here.

    Roger Alford

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