Trial Exposed 'Worst' of the U.S. Bar, Mastro Says as Chevron v. Donziger Winds Down
(Editor's Note: The American Lawyer's Michael 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.)
"Steven Donziger has shamed our profession," Randy Mastro said twice on Tuesday in federal court in Manhattan, capping six weeks of trial in Chevron Corporation's fraud case against Donziger and his Ecuadorian clients. In closing arguments before U.S. District Judge Lewis Kaplan, Mastro reiterated claims that Donziger engineered a shakedown in the Ecuadorian courts and manufactured a 2011 environmental judgment against Chevron now valued at $9.5 billion.
"We have seen exposed at this trial the worst of the American bar," said Mastro, Chevron's lead trial counsel from Gibson, Dunn & Crutcher. "In the guise of practicing law," Mastro said, Donziger engaged in bribery, forgery and extortion. "Lawyers don't do these things. Criminals do."
Mastro took issue with Donziger counsel Richard Friedman of Friedman Rubin, who compared Donziger with Thurgood Marshall in the trial's opening, and said in his closing that he was proud to participate in a case that highlighted corporate responsibility for human rights or environmental abuses in the developing world.
"Steven Donziger is no Thurgood Marshall," countered Mastro, citing Marshall's refusal to accept any excuse for "lawlessness." Far from serving his client's interests, he said, Donziger had "'irretrievably wounded'" them by committing crimes to win the case and aggrandize himself. The words "irretrievably wounded" were a quotation from Constantine Cannon's Jeffrey Shinder, whom Mastro praised as a lawyer who upheld the profession's highest ethical ideals by walking away from the Ecuador pollution case and refusing to countenance Donziger's misdeeds.
In their closings for Donziger, Friedman and his cocounsel Zoe Littlepage of Littlepage Booth argued that Donziger's alleged involvement in ghostwriting a report by Ecuadorian environmental expert Richard Cabrera was harmless because it was not relied on by the Ecuadorian courts. As for Chevron's claims that the plaintiffs in Ecuador arranged a $500,000 bribe to allow them to write the final judgment themselves, Littlepage argued that the connection between Donziger and the alleged bribe was based on "triple hearsay" and the inconsistent testimony of Judge Alberto Guerra. (See here and here for more on Guerra's role in the case.)
Mastro tried to topple both pillars of the defense argument. First, he argued that the judgment in Ecuador relied both directly and indirectly on the tainted Cabrera report, including its categorization of damages and its count of contaminated oil waste pits in the Amazon jungle.
Second, Mastro argued that Guerra's testimony about alleged bribery was established by a wealth of other evidence. For instance, Mastro pointed to forensic evidence of material appearing in the final judgment that first appeared in Chevron's opponents' documents, replete with out-of-order number sequences and notations of missing citations. He also pointed to the formatting from his opponents' scientific database appearing over 70 times in the judgment.
To compare this evidence to "fingerprints" on the judgment wasn't enough, Mastro argued. This was "all ten fingers with both palms," he said, and no plausible explanation other than outright fraud was ever given at trial.
Mastro also showed emails, diary entries, and bank and shipping records that supported Guerra's bribery claims and impeached the alternative story of Judge Nicolas Zambrano, who signed the final judgment and testified that he was its sole author. (See here and here for more on Zambrano.)
Mastro called Zambrano's testimony "ludicrous in the annals of courtroom history." Zambrano said he dictated the whole judgment to an 18-year-old typist and "Internet researcher extraordinaire" in an impossible period of time, Mastro argued. He claimed that the whole judgment was typed on his new computer, whereas—in evidence that emerged Monday—an investigator for Ecuador found a file similar to the judgment on Zambrano's old computer. And, Mastro reminded Judge Kaplan, Zambrano couldn't answer the most basic questions about his own judgment.
"There's more of a chance my teenage daughter wrote this 188-page judgment than Zambrano did," Mastro said.
Mastro praised Friedman and Littlepage for being honest adversaries. But both defense counsel had some difficult moments.
Friedman conceded that Judge Kaplan knew the case better than he did, because Friedman and Littlepage had entered the case shortly before trial. Unfortunately, Kaplan proceeded to bat down much of the rest of what Friedman said. The judge challenged Friedman on two principles of RICO law, the contention that damages could be an adequate remedy in this case, and the assertion that Mastro took a quote out of context.
Littlepage made a seemingly powerful argument that an alleged meeting between Donziger and Guerra could not have taken place when Guerra claims, because Donziger was not in the country. Kaplan was skeptical of Littlepage's timeline, however, and Mastro maintained that, on a closer reading of the dates in the testimony and in Donziger's travel records, there was no discrepancy.
Littlepage also argued that some of the mysterious foreign citations in the final judgment are explained simply by its lengthy quotation of an Ecuadorian supreme court opinion containing those citations. In response, Mastro pulled out a series of emails that he interpreted to show that Donziger's Ecuadorian legal team had long envisioned using the citation in a ghostwritten judgment.