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Caught on Tape: Organizing an “Army” to Pressure the Court – Part 3

Date: Jan 28, 2011

In outtakes from the movie Crude, plaintiffs’ lawyers and representatives are caught planning to organize an “army” intended to pressure the court in Lago Agrio. Plaintiffs’ representatives also assert that “[judges] make decisions based on who they fear the most, not based on what laws should dictate.” In a separate conversation, a plaintiffs’ representative states that “the only language that I believe, this judge is gonna understand is one of pressure, intimidation and humiliation. And that’s what we’re doin’ today. We’re gonna let him know what time it is . . . . We’re going to scare the judge.”

The following excerpt is taken from a November 10, 2010 opinion issued by Judge Lewis Kaplan of the Southern District of New York. The excerpt discusses the plaintiffs’ lawyers plot to intimidate the Ecuadorian judiciary:

“The outtakes depict Donziger and other plaintiff’s representatives traveling to an ex parte meeting with a judge on March 30, 2006. At least parts of the meeting appear in Crude.

“Prior to the meeting, Donziger described his plan to ‘intimidate,’ ‘pressure,’ and ‘humiliate’ the judge.”

 

“‘The only language that I believe this judge is going to understand is one of pressure, intimidation and humiliation. And that’s what we’re doing today. We’re going to let him know what time it is. . . . As a lawyer, I never do this. You don’t have to do this in the United States. It’s dirty. . . . It’s necessary. I’m not letting them get away with this stuff. ’

 

“Donziger repeatedly referred to the Ecuadorian judicial system as ‘weak,’ ‘corrupt,’ and lacking integrity. He further explained to the camera:

‘The judicial system is so utterly weak. The only way that you can secure a fair trial is if you do things like that. Like go in and confront the judge with media around and fight and yell and scream and make a scene. That would never happen in the United States or in any judicial system that had integrity.’”

“The Plan to Pressure the Court With an ‘Army’

“Over a year later, the Crude crew filmed a conversation between Donziger and Fajardo in which Donziger and Fajardo discussed the need to ‘be more and more aggressive’ and to ‘organize pressure demonstrations at the court.’ In the same clip, Donziger referred to the litigation as a ‘matter of combat’ that requires ‘actually . . . put[ting] an army together’.”

 

“The outtakes captured a June 6, 2007 meeting in which Donziger outlined a strategy to pressure an Ecuadorian court. Donziger told those present that the Lago Agrio plaintiffs needed to ‘do more politically, to control the court, to pressure the court’ because Ecuadorian courts ‘make decisions based on who they fear most, not based on what the laws should dictate.’ Donziger expressed concern that no one feared the plaintiffs, and he stated that the plaintiffs would not win unless the courts begin to fear them. Donziger described also his desire to take over the court with a massive protest as a way to send a message to the court of ‘don’t *uck with us anymore – not now, and not – not later, and never.’

He then proposed raising ‘our own army’ to which Yanza interjected ‘a specialized group . . . for immediate action.’ At that point, Atossa Soltani of Amazon Watch interrupted and asked whether ‘you guys know if anybody can, uh, subpoena these videos.’ Donziger responded, ‘We don’t have the power of subpoena in Ecuador.’ Soltani then asked ‘What about U.S.?,’ but Donziger interrupted her and ignored the question. She persisted, saying ‘I just want you to know that it’s . . . illegal to conspire to break the law’ to which Donziger said, ‘No law’s been conspired to be broken.’ The conversation about raising an army to pressure the court then continued, with Yanza waving the camera away as he told Donziger that the ‘army’ could be supplied with weapons.”

“Two days later, speaking directly to the camera, Donziger continued to emphasize the importance of pressuring the judge in the Lago Agrio litigation. According to Donziger, the plaintiffs’ ‘biggest problem’ had been their inability to pressure the judge. He explained that suing Chevron for moral damages or pressuring the Prosecutor General to open criminal investigations was not sufficient to make the judge feel pressure. Donziger asserted that the plaintiffs needed to do things that the judge would ‘really feel’ such as being ‘called out’ by the president of the country or the supreme court, implying that Donziger and others could develop strategies that would result in such actions.”

“Finally, Donziger participated in a dinner conversation about what might happen to a judge who ruled against the Lago Agrio plaintiffs. One or more other participants in the conversation suggested that a judge would be ‘killed’ for such a ruling. Donziger replied that the judge ‘might not be [killed], but he’ll think – he thinks he will be . . . which is just as good’.”

This is the third in a series of posts this week that will highlight the degree to which the trial in Ecuador has been compromised by the misconduct of the plaintiffs’ lawyers.  These concerns are conveyed in the words of a U.S. Magistrate Judge in New Mexico who found:

“The release of many hours of the outtakes has sent shockwaves through the nation’s legal communities, primarily because the footage shows, with unflattering frankness, inappropriate, unethical and perhaps illegal conduct.”