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REBUTTAL: Donziger’s Lies Cannot Excuse His Fraud – Law360

Date: Apr 21, 2015

On Monday, April 20, a panel of the U.S. Court of Appeals for the Second Circuit is scheduled to hear arguments in Chevron Corp. v. Donziger, a RICO case against the plaintiffs attorney who won a record $9.5 billion pollution judgment against the oil company in Ecuador. In March 2014, Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York found the judgment had been secured through bribery, deceit and fraud, and prohibited enforcement of the award in the United States.

Last week, Law360 published an opinion piece by Steven Donziger in which the plaintiffs attorney laid out in detail his view of the decades-long dispute with Chevron Corp. over the Lago Agrio oil fields case.

According to Stephen Green, Chevron’s vice president for policy, government and public affairs, Donziger’s recent article was not the never-before-detailed account the author has claimed, but rather more of the same “discredited misrepresentations and outright falsehoods” he has been arguing for years. Below, in its entirety, is Green’s response on behalf of Chevron.

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“If you repeat a lie a thousand times it becomes the truth.” That is the motto that Steven Donziger, the U.S. lawyer who orchestrated a fraud and extortion scheme to target Chevron through sham litigation in Ecuador, confided to a member of his Ecuadorian legal team. Since then, one of this country’s most respected trial court judges has found that Donziger violated federal racketeering laws by committing multiple acts of mail and wire fraud, attempted extortion, bribery of foreign officials, money laundering, witness tampering and obstruction of justice. After a two-month trial, U.S. District Court Judge Lewis Kaplan of the Southern District of New York issued a 485-page decision detailing how Donziger has “deceived when deception served his interests” and repeatedly used “manifestly wrongful means” in his campaign against Chevron.Donziger’s recent “op-ed” in this publication is his latest “deception,” repeating, on the eve of appeal, the lies he has told a thousand times before. Far from a long-awaited, never-before-detailed account, his “op-ed” is nothing more than a recycling of the same discredited misrepresentations and outright falsehoods he has been peddling for years. Judge Kaplan’s decision lays out in detail the evidence of Donziger’s frauds, most of which went uncontroverted at trial [SPA* 128, 196]. Here are some of the key facts, which rebut Donziger’s recent commentary.

1. Donziger’s claims against Chevron are not supported by scientific evidence.

Donziger’s own experts have admitted under oath that there was no scientific evidence to support his claims against Chevron. One expert testified that when he reported no significant environmental contamination to Donziger and his team, they rewrote his report to say the opposite and then submitted the forged document to the Ecuadorian court under the expert’s signature. Another admitted that Donziger demanded he come up with a hugely overstated damages estimate — he called it a “SWAG” or “scientific wild ass guess” — so that Donziger could use it in public to pressure Chevron into an inflated settlement. And his team of consultants at Stratus Consulting admitted they ghostwrote [Beltman, Maest] the court expert’s damages report based on exaggerated assumptions Donziger fed them that were simply unsustainable. Hence, Donziger cannot now claim that anyone’s experts “confirmed extensive contamination” attributable to Chevron in Ecuador, let alone “Chevron’s own environmental audit.” As Donziger himself admitted on video, he didn’t care what the evidence showed, because “for the court, this is all smoke and mirrors and bullsh*t. We have enough to get money, to win.”

For years, Donziger and his associates have routinely taken celebrities, journalists, politicians and activists into Ecuador’s Amazon to show them oil on the ground and falsely accuse Chevron of being responsible. As usual, the facts tell a different story. Texaco Petroleum Company fully remediated its share of impacts during the time of its operations. Its cleanup was inspected and approved by Ecuador, which then released the company from all further liability. [SPA 18-19] But, its former majority consortium partner, state-owned Petroecuador, for more than two decades has failed to remediate its share — in part, it appears, because Donziger and his team sought to stop the remediation so that it did not interfere with their lawsuit. [Exhibit 112] Meanwhile, Petroecuador, the sole operator in the region for a quarter century, has nearly tripled the size of operations, racking up a dismal environmental record in the process, including more than 1,400 oil spills in just the period 2000-2008.

2. The Ecuadorian judgment is the product of fraud and bribery.

Because there was no genuine scientific evidence to support his claims, Donziger and his team resorted to fraud and bribery. Judge Kaplan’s factual findings in this regard are comprehensive and corroborated by overwhelming evidence. They reveal how Donziger engaged in a wide-ranging plan to corrupt the litigation in Ecuador for years, and how he lied to U.S. courts in an attempt to conceal that corruption.

In his op-ed, Donziger claims that he “contest[s] all of Judge Kaplan’s findings” and his appellate briefs provide the “specifics.” But that is also a lie. In fact, Donziger has not asked the Second Circuit to review any of the factual findings regarding his conduct. They stand unrebutted.

To the extent Donziger attempts to address these factual findings in his “op-ed,” he focuses almost entirely on former Ecuadorian judge Alberto Guerra, who testified [SPA 253–258] at the trial in front of Judge Kaplan that Donziger and his Ecuadorian allies bribed the presiding judge in Ecuador by promising him a $500,000 share of the multibillion-dollar judgment’s proceeds in exchange for issuing as his own a judgment they wrote. Donziger, himself, admitted under oath [SPA 270–271] that he met with Guerra at the Honey & Honey restaurant to discuss the bribe; he just claims the deal was never finalized. Guerra’s testimony was corroborated by extensive documentary evidence at trial. Even if Guerra had never taken the stand, the proof that Donziger’s team ghostwrote the Ecuadorian judgment would have remained incontrovertible.

In truth, the trial court’s finding that Donziger and his associates “wrote the judgment” rested on “the overwhelming and unrefuted evidence” that the judgment contains dozens of examples of verbatim copying from Donziger’s team’s own files, and on the testimony of Nicholas Zambrano, the disgraced former Ecuadorian judge who issued it under his signature, and whom the trial court found to be “a remarkably unpersuasive witness … unable to answer basic questions about the Judgment that he ostensibly wrote.” [SPA 196–197] Neither Donziger nor anyone else has ever offered any explanation of how the judgment came to include extensive material that was never made part of the court record and that matches word-for-word Donziger’s team’s internal files — except for the obvious conclusion that they wrote it.

3. Donziger’s corruption of the Ecuadorian proceedings went far beyond the judgment itself.

Donziger largely ignores the record of his corruption in both Ecuador and the United States, because he has no answer to the overwhelming evidence against him. In his latest attack on Chevron, he mentions only one of his many other frauds — his team’s ghostwriting of the report of court-appointed expert Richard Stalin Cabrera. Donziger now tries to cast Cabrera as the equivalent of an expert witness as in a U.S. lawsuit, when, in reality, Donziger knew Cabrera was supposed to be an arm of the Ecuadorian court, sworn to be neutral, transparent and independent of the parties. Donziger even described Cabrera at the time as being like a Special Master in a U.S. proceeding. During the Ecuador litigation, both Cabrera and Donziger’s Ecuadorian co-counsel repeatedly denied that they were working together, and Donziger told U.S. courts the same thing when Chevron sought discovery into the nature of the relationship.

It was only after Chevron obtained irrefutable evidence of Donziger’s collusion with Cabrera — including drafts of Cabrera’s report in Donziger’s possession written word-for-word by Donziger’s expert team [SPA 117–120], records documenting bribe payments to Cabrera funneled through what Donziger’s team called “our secret account” [SPA 94–95, 102–107], and video of Donziger’s team meeting with Cabrera in advance of his court appointment and explaining that they would write his report for him, which is exactly what they did — that Donziger changed his tune and started arguing there was nothing wrong under Ecuadorian law with this arrangement he had spent years trying to conceal.

That claim also proved to be a lie. Donziger’s own Ecuadorian co-counsel wrote him privately when the truth was about to be revealed in U.S. discovery that “all” of them “might go to jail” as a result. It is because Donziger and his co-conspirators knew that what they were doing was wrong that they resorted to the use of code names in internal emails with associates — “the puppet” and “the puppeteer;” “the waiter,” “the cook” and “the public;” the “wao” — to mask their illegal dealings with court officials. And it is also false for Donziger to say that the Ecuadorian court did not rely on the bogus Cabrera report in rendering judgment against Chevron. As Judge Kaplan found, “the Cabrera Report in fact was relied upon by the author or authors of the Judgment.” [SPA 337]

Donziger has virtually nothing else to say about the rest of his appalling record of fraud and corruption. But the truth was on display in the racketeering trial in New York, where one former Donziger ally after another testified about Donziger’s corrupt and venal acts. David Russell, once Donziger’s lead scientist in Ecuador, testified how Donziger initially fed him unsupported assumptions and bogus data, in order to extract a $6 billion damages estimate that Donziger immediately trumpeted in the press and elsewhere to try to pressure Chevron into an inflated settlement. After a few months of actual, on-the-ground analysis, however, Russell realized that this estimate was “wildly inaccurate” and ultimately sent Donziger a “cease and desist” letter demanding that he stop citing it — a demand Donziger ignored, telling his associates to continue to use the disavowed estimate publicly, because “I don’t care what the f**k that guy says.”

4. Donziger and his associates are part of a well-funded, global enterprise, closely allied with the Government of Ecuador.

Donziger paints himself as an “international human rights” lawyer struggling against an array of powerful interests, but the truth is quite different. In the first place, Donziger is in it for the money: he stood to make more than $600 million dollars personally [SPA 271] off the original Ecuadorian judgment, were it ever to have been collected. He put it best on video. As a “plaintiffs’ law[yer],” he’s in the “business” of “mak[ing] f**king money.” Indeed, when asked under oath, Donziger admitted that he did not even know the names of his clients in Ecuador. Moreover, he and his associates have obtained tens of millions of dollars already by selling interests in the corrupt Ecuadorian judgment. [SPA 181-82]

Donziger’s allies include Ecuador’s President Rafael Correa, who routinely appears in the Ecuadorian media to rail against Chevron and has encouraged retaliation against those who support Chevron in any way, including Chevron’s lawyers, two of whom faced bogus Ecuadorian criminal charges for a time at Donziger’s team’s behest [SPA 131]. Donziger describes Correa as a “U.S.-educated economist who polls indicate is one of the most popular leaders in Latin America,” but Correa’s iron-fisted control over the Ecuadorian courts, suppression of speech and other civil rights, and avowed opposition to the United States has been well documented by the U.S. trial court and the media. The Washington Post, for example, described Correa as engaging in “the most comprehensive and ruthless assault on free media underway in the Western Hemisphere.”

With ample financing and powerful allies in the Ecuadorian government, Donziger has long sought to create the illusion of “grassroots” support for his campaign, but the truth is much seedier. Businessweek has revealed, for example, that the “protesters” at a recent Chevron event were actually paid actors recruited by a casting agency. It has also been revealed that the Ecuadorian government has paid public relations firms more than $6 million to create a media campaign against Chevron, and anti-Chevron individuals created a fake Twitter campaign to target the company. One of Donziger’s favorite tactics is to deploy celebrities in support of his campaign — celebrities he or the Ecuadorian government have secretly paid tens or even hundreds of thousands of dollars in exchange for their appearances.

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Donziger concludes his latest anti-Chevron broadside by claiming that the “rainforest communities … deserve a final resolution of their underlying claims without delay.” But this is gross hypocrisy coming from Donziger. The only thing that Donziger has achieved, by all his years of misconduct in Ecuador and the United States, is to delay any attempt to hold accountable those truly responsible for the environmental contamination in this region — the Republic of Ecuador and its state-owned oil company, Petroecuador, which is the only party that has been drilling and spilling in the region for the past 25 years.In the documentary film Crude, Donziger boasted on camera that the litigation tactics in which he has engaged in Ecuador are “something you would never do in the United States,” but “this is how the game is played” in Ecuador. “It’s dirty.” And that’s how Donziger has played the game in Ecuador and the United States —“dirty.” As Judge Kaplan found, Donziger’s attempt to justify his conduct — now that his efforts to conceal it have failed — “misses the point.” [SPA 16]

American lawyers do not leave their ethical obligations at the border when they pursue foreign litigation. And they cannot engage in fraud and bribery and extortion, among other crimes, as a respected federal judge found Donziger did after a two-month trial. Through all the lies he has told and continues to tell, including, most recently, in this publication, Donziger was right about one thing: What he did was something “you would never do in the United States” — and that is why he is now being held accountable for his misconduct here.

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