Chevron v. Donziger: 'No Apologies' for Ecuador Case

, The Litigation Daily

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(Editor's Note: The American Lawyer's Michael D. Goldhaber is filing regular dispatches from the Manhattan federal court bench trial in Chevron Corp. v. Donziger. Please click here for background on the case—and scroll down for an expanded collection of American Lawyer coverage.)

Having positioned himself in the role of martyr for the human rights plaintiffs bar, attorney Steven Donziger spent all day Tuesday finishing his testimony in what he has called Chevron Corporation's "retaliation suit" against the multibillion-dollar environmental case he brought against Chevron in Ecuador. Donziger, who first took the stand to face Chevron's fraud and racketeering claims on Monday, spoke of his achievements with pride. But some of his testimony was marred by spotty recollection.

"I have no apologies," Donziger said, arguing that everything he did was in zealous advocacy of a righteous cause. "It doesn't mean I haven't committed inconsequential errors along the way."

Donziger admitted that he was prone to hyperbole, both because of his personality and because he sought to motivate his team to believe that the historically powerless could prevail against a powerful oil company. In response to Chevron's allegations of a cover-up, Donziger said: "I'm comfortable with our level of disclosure." Donziger emphasized that as the underlying Amazon pollution case wound on, his role diminished and that of local counsel Pablo Fajardo increased. To the allegation that he participated in a $500,000 bribe to the judge to fix the case, Donziger gave his most animated answer of the day: "I would never do that. Let me be very clear."

Donziger was less clear in response to specific questions from Chevron counsel Randy Mastro of Gibson, Dunn & Crutcher—especially on the allegation that Donziger's team bribed ex-judge Alberto Guerra to ghostwrite orders unfavorable to Chevron for another Ecuadorian judge, Nicolas Zambrano.

Mastro introduced documents showing that in October 2009, Fajardo emailed Donziger, "The puppeteer won't move his puppet until the audience [pays] him something." Within days $1,000 was withdrawn from the plaintiffs' Ecuadorian account. As a general matter, Donziger said that Fajardo was not using codewords, but jokey nicknames.

Isn't it true, Mastro asked, "the puppeteer was Guerra?"

"That's not my recollection," said Donziger.

Isn't it true, Mastro asked, "the puppet was Judge Zambrano?"

"I have no recollection," said Donziger.

Donziger had testified that while he paid no $500,000 bribe, Guerra did solicit one. Mastro asked whether he was aware that the bribe was envisioned for Judge Zambrano, who would go on to write the multibillion-dollar judgment against Chevron weeks later in 2011. Donziger paused for a few beats, and then said, "I don't remember." Why didn't he report this solicitation? Donziger said he thought the offer wasn't credible, and he didn't want to play into Chevron's strategy of delay in the case.

How about Chevron's most damning claim—that Donziger or his allies on the plaintiffs team ghostwrote the final judgment? Mastro said that Donziger could not explain the overlap between the judgment and the Ecuadorian parties' documents not in the record. Donziger denied the assertion and said he had a variety of explanations, but he elaborated them nowhere in his testimony. Donziger only stated: "I did not write the judgment … in Ecuador. I have no knowledge that anybody on the legal team of the plaintiffs wrote the judgment in this case, or wrote any part of the judgment."

How about ghostwriting the damages report of Richard Cabrera, a supposedly independent expert in the Amazon case? Donziger conceded that his lead scientific consultant drafted Cabrera's work plan, executive summary and many of his annexes; and that Donziger personally edited the damages section within days of filing. He also conceded that his team paid Cabrera outside the court process and supplied him with an office, and said he vaguely recalled that his team installed the girlfriend of one of their lawyers as an assistant. Donziger said the extrajudicial payments were proper because Chevron's aggressive tactics had paralyzed the court.

Was it true that Cabrera's executive summary was drafted by Donziger's team "pretty much verbatim"? Donziger replied defiantly: "I would hope so, because I think it was accurate."

Mastro spent the largest part of the morning attacking Donziger's broader Cabrera defense. Donziger stated on direct: "I now believe the process used to create the executive summary of the Cabrera report was fundamentally consistent with Ecuador law."

For people acting legitimately, Mastro suggested, Donziger and his team sure acted like they had something to hide. They ended their instructions to the consultants who did Cabrera's work with the admonition: "Everyone silent." They paid Cabrera from a secret bank account, Mastro said, and exchanged messages about him on a secret email account with passwords like Lagarto (Lizard), and codewords like "the cook" for the judge and "the waiter" for Cabrera. Again, Donziger said these were not codewords, but jokey nicknames.

Mastro also brought up the 2007 PowerPoint meeting where Cabrera was caught taking instructions from the Ecuadorian plaintiffs on a film outtake. "The cameras were rolling," Donziger said. "It was not a secret." Mastro responded that Cabrera showed up on film for less than five seconds in the course of a seven-hour meeting, because Donziger had instructed the camera crew not to film Cabrera. Donziger said he didn't recall that. Moreover, Mastro noted, when a scientist said on camera the next morning that it was weird for Cabrera to have been there, Donziger told him not to talk about it, and told the cameraman it was off the record.

When a scene in the movie's first release showed Cabrera's team mixing with the plaintiffs team, Fajardo emailed the filmmaker frantically that they could "lose everything" if that scene was not edited out. The filmmaker complied, but Donziger said he certainly didn't share Fajardo's view. Similarly, Donziger's lead scientist emailed urgently to say that a supporting report should not be released to the press, because Cabrera used it as an annex without credit.

Rather than to engage with Donziger's statement that "independent" is an Ecuadorian term of art for any court-appointed expert, Chevron pointed out several statements that Donziger could not deny were inaccurate. Cabrera told the Ecuadorian court, "I do not have any relations or agreement with the plaintiffs" and promised to name all of his contributors, yet he did not even mention the lead scientist who was his principal ghostwriter. In a draft press release from April 2008, Donziger wrote without hedging: "Chevron's claim that Cabrera cooperated with plaintiffs is completely false."

When the Cabrera affair began coming to light in U.S. discovery proceedings in 2010, a junior lawyer in Ecuador voiced the fear that "all of us, your attorneys, might go to jail." Donziger said this was only one view. During the same period, Donziger wrote a memo stating that from a traditional Ecuadorian law perspective the Cabrera process was improper and violated court rules. He testified that he was at times confused about Ecuadorian law.

"Isn't it a fact that the only person who now says the Cabrera Report didn't violate Ecuadorian law is you?" Mastro asked. Donziger replied that this was not true.

Apparently Donziger's occasional memory lapses have not stopped him from securing new funding. When pushed by U.S. District Judge Lewis Kaplan, Donziger revealed that London-based Woodsford Litigation Funding, led by ex-Lovells partner Charles Manduca, invested $2.5 million in the dispute early this spring, even after Guerra came forward with his testimony and evidence of bribery. Donziger said he is in ongoing talks for more funding with Woodsford, among others.

 

Correction: An earlier version of this story incorrectly dated a bank slip purporting to show a deposit from the Ecuadorian plaintiffs to Alberto Guerra. The story has been edited to remove discussion of the bank slip.

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