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

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

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.

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Lenore Horton
Lenore Horton

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?

Benjamin Davis
Benjamin Davis

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

Vlad Perju

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.”

M. Gross
M. Gross

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

Catherine Rogers
Catherine Rogers

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.

Vlad Perju

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… Read more »

David Schwartz
David Schwartz

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

Catherine Rogers
Catherine Rogers

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?

Catherine Rogers
Catherine Rogers

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… Read more »

Karen Hinton
Karen Hinton

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… Read more »

M. Gross
M. Gross

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.

Vlad Perju

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… Read more »

Kenneth Anderson

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

Vlad Perju

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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[…] or explain away the clear meaning of the words of Steven Donziger, the head U.S. trial lawyer. As Alford writes: In responding to concerns from their own experts that there was not evidence of groundwater […]

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