Donziger: “Just a Bunch of Smoke and Mirrors and Bullshit”

by Roger Alford

As discussed here, one of the key arguments that the Ecuador plaintiffs are making in response to Chevron’s Motion is that the damaging quotes are being taken out of context. Without question one of the most damning excerpts is when lead plaintiffs’ lawyer Steve Donziger is quoted as saying that “Because at the end of the day, this is all for the Court just a bunch of smoke and mirrors and bullshit. It really is.”

Plaintiffs’ spokesman Karen Hinton told me this morning that Donziger’s comment about “smoke and mirrors and bullshit” was a reference to Chevron’s evidence, not their own. She is quoted in an American Lawyer article today saying the same thing, that “’He was talking about Chevron using smoke and mirrors.’ Chevron is ‘twisting it and manipulating it.’”

I have now received the transcripts of the DVD from Karen Hinton and I have posted them here and here. Read in context, I find it almost impossible to interpret Donziger’s quote about “smoke and mirrors” as a reference to Chevron’s evidence.

Here is Steve Donziger’s “smoke and mirrors and bullshit” quote included in the context of a conversation between Donziger and plaintiffs’ technical experts Dave Kamp, Ann Maest, and Charlie Champ (pages 8-11 of Transcript 2):

KAMP: Yeah. But you know. And these are all possibilities, and I think that, but what we know we don’t have is the extent of the contamination, the, the ground water auditors that Anne was talking about, maybe when you were asleep.

MAEST: Uh-huh.

KAMP: and, you know, being able to characterize as well as we possibly can before we enter into, you know, a remediation strategy per se, what we know about non-water contamination the extent of the contamination. We don’t have that.

MAEST: And right now all the reports are saying it’s just at the pits and the stations and nothing has spread anywhere at all.

DONZIGER: That’s not true.

KAMP: That’s not exactly true.

DONZIGER: That’s not true. The reports are saying the ground water is contaminated because we’ve taken samples from ground water.

MAEST: That’s just right under the pits.

DONZIGER: Yeah, but, that is evidence.

MAEST: Uh-huh.

KAMP: Well you need more.

CHAMP: Well one thing I visually see.

DONZIGER: I agree.

KAMP: Right.

DONZIGER: Hold on a second, you know, this is Ecuador, okay,

MAEST: Okay.

DONZIGER: You can say whatever you want and at the end of the day, there’s a thousand people around the courthouse, you’re going to get what you want. Sorry, but it’s true.

KAMP: Uh-huh.

DONZIGER: Okay. Therefore, if we take our existing evidence on groundwater contamination which admittedly is right below the source.

MAEST: Uh-huh.

DONZIGER: And wanted to extrapolate based on nothing other than our, um, theory that it is, they all, we average out to going 300 meters in a radius, depending on the—the, uh…

MAEST: Uh-huh.

DONZIGER: The what do you call it when the land goes down? The incline. You know what I mean,

MAEST: Uh-huh. The gradient.

DONZIGER: The gradient. We can do it.

KAMP: The gradient.

DONZIGER: We can do it. And we can get money for it.

MAEST: Uh-huh.

DONZIGER: And if we had no more money to do more work, we would do that. You know what I’m saying?

MAEST: Yeah.

DONZIGER: And it wouldn’t really matter that much.

MAEST: Uh-huh.

DONZIGER: Because at the end of the day, this is all for the Court just a bunch of smoke and mirrors and bullshit. It really is. We have enough, to get money, to win. How we define what the win is—is—is—we can do it, anything we want. Now granted, I’d rather have it stronger.

MAEST: Uh-huh.

DONZIGER: I want to have it stronger.

MAEST: Good.

DONZIGER: But.

MAEST: Because.

DONZIGER: We need to keep that in mind as we design this.

KAMP: We do.

CHAMP: Steven, the main thing to reminder is,

DONZIGER: Yeah.

CHAMP: This is where I agree with Anne a thousand percent, there is not enough information on that ground water.

DONZIGER: Yeah.

CHAMP: There’s not. I mean.

DONZIGER: Yeah.

MAEST: No.

CHAMP: To even approach this—

DONZIGER: You guys conspiring against me?

MAEST: No.


Chevron’s Motion Transcript 2

So there you have it. Anyone else besides Karen Hinton want to make the argument that this is a reference to Chevron’s evidence?

http://opiniojuris.org/2010/08/06/donziger-just-a-bunch-of-smoke-and-mirrors-and-bullshit/

5 Responses

  1. Roger, As we discussed, this conversation is one of many that Steven Donziger had with Maest, Champ and the rest of the team. We have said to anyone who will listen during the past two years that Chevron’s test samples are “smoke and mirrors” because they do not reflect the total amount of contamination in the soil. We suspected it in 2007, confirmed it in 2008 and submitted our concerns to the court.  See this link for more details: http://chevrontoxico.com/news-and-multimedia/2010/0429-chevron-lawyers-commit-fraud-to-undercount-oil-contamination.html

    It is impossible for you and your readers to deduce what this conversation means without seeing and hearing the entire conversation and, even then, only the people in the conversation know the context in which the statements were made, including previous conversations not on tape.

    As you can see from the transcript, Chevron has submitted its edited version of the original tape to the court, not the entire, original tape.  The court refused to require Chevron and the filmmaker to give the plaintiffs copies of the tapes, and both parties have refused to give us copies.

    As a result, this is a silly exercise and, given your position, experiences and accomplishments, I suspect you know this.

  2. Well, I am not a party to any of this, I am just a guy reading this stuff.  Having worked for years in international commercial arbitration in English and French, I want to see the original spanish and not the translation.  And, further, my suspicion as to who is manipulating who in this particular set of facts remains.  To me all of this stuff is out of context – trying to have us go in favor of one set of views over the other.  One can try this kind of case inside opiniojuris as an effort to influence all of us – but I personally find this a bit unseemly.  Chevron and Ecuador protesting about the unseemliness of the behavior of each other kind of leaves me cold – the heart of it is what is the situation of the ordinary Ecuadorean citizen.  Whatever the arguments, can an expert go down there now and test the groundwater, gradient, whatever it is to find out if the pollution is there?  And ordinary Ecuadoreans being exposed to this pollution in ways that harms there health? That is the essence of it.  If so, then Chevron and Ecuador should pay for the health care and clean up – I am indifferent about who cuts the check.  Hell, the World Bank might kick in some money for remediation.  Having seen the stuff on Toxic Towns in the US like Mossville, Louisiana and the callousness of both government and big chemical companies to the plight of the locals, this all feels like a sideshow.

    Best,
    Ben

  3. Karen,

    Good points. I agree with you that the entire tapes should be made available to the public.  It’s my understanding that Chevron is not allowed to provide all of those tapes to the public-per a court order, the plaintiffs’ side doesn’t have copies of all the tapes, and the film maker Joe Berlinger will not provide them.  So I’m not sure how it is going to happen.  (BTW, it certainly seem strange that the plaintiffs don’t have all these tapes). 

    Perhaps if Chevron deposited the entire set of tapes with  the court and then the plaintiffs (or some disinterested party) could access them and make them available to the public, that would be the simplest way.  That would put these and similar conversations in their macro-context.

    I also agree with you that plaintiffs have used references to “smoke and mirrors” in the past and clearly those references were about Chevron’s evidence.  This excerpt, however, shows Donziger describing his own evidence about one aspect of his own claim–ground water contamination–as just smoke and mirrors.

    Roger Alford

  4. Perhaps the larger lesson of the various contortions in this case is that these types of disputes are not particularly well-suited for transnational litigation.  A claims tribunal might be an alternative that could, on the one hand, ensure more direct and immediate compensation to victims and funding for cleanup and, on the other hand, give some relief for Chevron from the bad publicity, the finanical uncertainty of having these claims unresolved, and of course the exorbitant fees from lawyers, security firms, communications consultants and the like in battling on multiple fronts.  While tempers seem too publicly heated for such an agreement, who knows what might be possible in designing a reasonable and effective dispute resolution mechanism if cooler heads get involved behind the scenes.

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