Chevron v. Donziger: The Scientists

, The Litigation Daily

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(Editor's Note: The American Lawyer's Michael Goldhaber is filing regular dispatches from the Manhattan federal district court bench trial in Chevron Corp. v. Donziger et al. For background on the case, the parties, and what it's all about, see the Litigation Daily's preview here.)

Day three of the Chevron v. Donziger trial featured lead scientists for both Chevron and Donziger. But this was not a case of "he said, she said." As is typical of this trial, each of the scientists was testifying for Chevron.

David Russell served from 2003 to 2005 as the environmental consultant to New York lawyer Steven Donziger and his Ecuadorian clients, who would go on to win a $19 billion judgment against Chevron Corporation for allegedly polluting the Amazon rain forest. Russell testified that Donziger asked him to come up with a "really big" cleanup number to scare Chevron into a settlement. He said his initial number was based only on the assumptions that Donziger gave him (for instance, that the groundwater was contaminated), and a four-day inspection of 45 oil production pits, sometimes driving by at 40 or 50 miles per hour, sometimes stopping to toss in a stone or feel the surface with his foot.

On this basis, the plain-spoken Russell testified that he produced a "scientific wild ass guess" of $6 billion. He said he backed off the $6 billion number within months, because he came to believe that it was "wildly exaggerated" — but the plaintiffs kept using it for years. Even after Russell sent "cease and desist" letters in 2006, Donziger's allies touted the number 23 times, including once in a letter to the Securities and Exchange Commission. On cross-examination of Russell, Donziger's attorney Zoe Littlepage of Littlepage Booth introduced an email showing that Donziger forwarded the cease-and-desist letter to his team.

Ominously for Donziger and the Ecuadorians fighting Chevron's fraud and racketeering claims, U.S. District Judge Lewis Kaplan was mainly interested in questioning Russell about the logistics of overnighting to the U.S. a report by one of his researchers, Dr. Charles Calmbacher, which Donziger allegedly falsified. One could almost see the gears moving in Kaplan's brain: Jurisdiction, check. RICO predicate act, check.

Chevron lead scientist Sara McMillen presented herself in her direct testimony as a determined detective who stumbled upon fraud after fraud with her powers of observation. McMillen began by explaining how she became suspicious of inconsistencies in Dr. Calmacher's signatures. On cross-examination, Donziger's counsel Littlepage tried to argue that McMillen was not a handwriting expert, but Judge Kaplan shut her down by noting that the inconsistencies were obvious to the naked eye.

McMillen went on to explain how she became suspicious of the Ecuadorians' global damages expert, Richard Cabrera, whose recommendation of $18 billion to $27 billion finally made Russell's "wild-ass guess" of $6 billion superfluous. Most dramatically, McMillen noticed that the Netflix version of the documentary "Crude" contained an extra scene in which Cabrera's team mixed with Donziger's team. That helped to justify discovery of the film outtakes—which famously showed the plaintiffs giving Cabrera marching orders—and of the plaintiffs' scientists from Stratus Consulting. Among the Stratus discoveries were charts that showed U.S. consultants coordinating the Cabrera report, with oversight from Donziger.

"As a scientist," said McMillen, "I found it particularly objectionable that the lawyers dictated the technical details."

On cross, Donziger's counsel suggested that Chevron's science was also advocacy-driven, with "pre-samples" taken from each pit's perimeter, in order to locate "clean" areas of the soil for official sampling. McMillen's responses were too terse to allow that claim to be fully evaluated.

For her grand finale, McMillen did her best to poke holes in the $19 billion Lago Agrio judgment that Donziger and the Ecuadorians finally won in 2011. She testified that she at once recognized in the purportedly independent judgment a passage from a plaintiffs' report, a labeling protocol that she says could only come from plaintiffs' database of soil samples, and a count of oil waste pits that she says could only come from the Cabrera report.

A few final observations from the first week of trial:

Donziger's new lawyers are unerringly pleasant, and sometimes err pleasantly. The opening contention that the Cabrera report was only 5 percent ghostwritten is risible to anyone who has followed this case for long. It might be true in a narrow sense if one counts the reams of appended data. But the judge found last year that "there is no genuine dispute as to exactly what happened. As Donziger has admitted, 'Stratus wrote the bulk of the report adopted by Cabrera and submitted by the court.'"

• For now, the format of the trial—with direct testimony presented in written form and publicly docketed at the last moment—is obscuring Chevron's story. Journalists spend a full day focused on cross-examination, and sometimes only get a glance of the direct testimony at deadline. (Of course, this may be to Chevron's advantage when Donziger takes the stand.) This all matters because both sides are playing a PR game.

• Still, Chevron is hitting its marks legally. Whatever minor embarrassment he may have suffered on the stand for (gasp) acting commercially, the CEO of third-party litigation funder Burford Capital made a forceful case in his written testimony that he relied on fraudulent misrepresentations by Donziger to the detriment of Chevron. A jury might not have noticed, but Judge Kaplan surely did. Whether the judge's legal conclusions will hold up on appeal is another question.

• The trial needs to speed up. After a frolic and detour on radium and chromium by Littlepage and Russell, the judge remarked, "I was getting nervous that we were going to move through the periodic table of the elements." Journalists like to gauge Kaplan's annoyance with the questioning by watching for his long right hand to cover the right side of his long face. If Donziger can agree on anything with Chevron and its lawyers at Gibson, Dunn & Crutcher, both sides are rooting for more witnesses—and less of that hand — in Week Two.

Of related interest:

Chevron v. Donziger: The Money Man

Chevron v. Donziger: Day One

Chevron in Ecuador: The Tapes the Plaintiffs Don't Want You to See

Chevron v. Donziger: A Dickensian Cheat Sheet

Chevron Wins Arbitration Ruling in Endless Ecuador Fight

The Global Lawyer: Closing in on Truth and Justice in the Chevron Ecuador Case

The Global Lawyer: Kindergarten Lessons from Chevron in Ecuador

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