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Week Five Highlights: Chevron vs. Donziger

Date: Nov 15, 2013

The following are the Chevron v Donziger week five highlights:

Alejandro Ponce Villacris – Ecuadorian lawyer who worked with Donziger

Sex and Blackmail Now on the Docket in Chevron Pollution Case

“Lawyers representing Donziger have tried to turn the tables one more time, putting on witnesses to explain how and why the plaintiffs’ attorney pressed his long-running suit against Chevron in Ecuador. Alejandro Ponce Villacris, an Ecuadorian lawyer who worked with Donziger from mid-2005 through late 2008, took the stand to testify that Donziger did not violate Ecuadorian legal regulations. On cross-examination by Chevron’s attorneys, however, Ponce conceded that members of the plaintiffs’ legal team in Ecuador discussed a “sex scandal” concerning one of the six judges who, at various times from 2003 through 2011, presided over the Ecuadorian trial. When asked whether the plaintiffs, as a way of gaining courtroom leverage, threatened the Ecuadorian judge in 2006 with the filing of a public complaint about the sex scandal, Ponce said, “I don’t recall that.” Pressed on the point, he said repeatedly: “Not that I can recall.”

Eventually, U.S. District Judge Lewis Kaplan, who is hearing the racketeering case without a jury, intervened. As for the plaintiffs threatening the Ecuadorian judge with disclosure of alleged sexual improprieties as a way of getting him to rule in their favor, Kaplan declared: “I think, actually, it’s undisputed that occurred.” Kaplan’s definitive statement that Donziger’s team had engaged in what amounted to a form of blackmail appeared to startle a number of people in the packed Manhattan courtroom.

Kaplan did not explain himself, and the testimony continued with Ponce professing a hazy memory on many critical issues. To what, then, was Kaplan referring? Here’s the likely answer:

By means of its civil-racketeering suit, Chevron has obtained from Donziger voluminous notes that the New York-based plaintiffs’ attorney kept about his adventures in Ecuador. This quasi-diary, in which Donziger muses about his methods and his ambitions—often in brutally frank terms—has become part of the court record. So have numerous e-mails Donziger exchanged with his colleagues. Kaplan has demonstrated in his pretrial rulings and comments from the bench that he’s intimately familiar with the record. The Donziger diary and e-mails contain references to the plaintiffs’ legal team drafting a formal complaint in 2006 accusing the Ecuadorian judge at that time of sexually harassing women at the courthouse in Lago Agrio, an oil town in the rain forest. According to these once-private communications, Donziger’s team quietly informed the judge that if he did not make a crucial procedural ruling the plaintiffs were seeking, the harassment complaint would be filed.

“Pablo met with the judge today,” Donziger wrote in an e-mail he sent on July 26, 2006, to another attorney in the U.S. “The judge, who is on his heels from the charges of trading jobs for sex in the court, said he is going to accept our request to withdraw the rest of the inspections.” The Ecuadorian judge “wants to forestall the filing of a complaint against him by us, which we have prepared but not yet filed,” Donziger added.

(Bloomberg Businessweek)

Chevron’s Ecuadorean Foes Hit With Double-Whammy

A March 26, 2007, email from Pablo Fajardo to the Ecuadorean legal team – bearing the subject line “Orange Alert” – began: “Today the cook met with the waiter to coordinate the menu.”

Chevron believes that the “cook” refers to Yanez, who allegedly met with Cabrera – “the waiter” – to hatch a plan for the global assessment “menu.”

Ponce again insisted that he did not know what these terms meant, and he added that was not included on that email.

Brodsky undermined that denial by confronting Ponce with another Oct. 8, 2007, email from Fajardo listing the witness as the first of six recipients.

In screaming caps, the email states, “LET’S ALSO COOPERATE WITH THE COOK SO THAT HE CAN RESPOND BEFORE THE JUDICIAL COUNCIL.”

Chevron believes this refers to the Ecuadorean Judicial Council’s handling of a complaint against Yanez.

U.S. District Judge Lewis Kaplan, who is hearing the case without a jury, quipped, “I don’t imagine they have jurisdiction over restaurants.” (Courthouse News Service)

Ecuadorean Court Experts Free To Show Bias, Atty Says

When pressed by Chevron’s counsel, Ponce conceded that he had referred to Cabrera as “independent” in prior communications, and admitted that under instructions from the Ecuadorean court Cabrera was “expected” — but not required — to act independently.

Ponce’s testimony prompted Chevron to delve into several of the seedier allegations it has made regarding the underlying proceedings, including claims that Donziger and his cohorts leveraged a presiding judge’s sex scandal in order to engineer Cabrera’s appointment and that the Ecuadorean plaintiffs’ team used a system of secret code names — including “The Cook” and “The Boss” — in internal communications to refer to judges and others they sought to influence. (Law360)

Chevron Rests Its Case

Chevron makes its case in trial over $19 bln Ecuadorean judgment

Chevron, which rested its case on Tuesday, has brought a series of expert witnesses from the fields of linguistics, psychology and computer science to testify in the case over the past four weeks.

The star witness was Alberto Guerra, a former Ecuadorean judge who said he was paid by lawyers for the villagers to ghostwrite rulings for the judge in the case.

Donziger was aware of the arrangement, he said.

“Mr. Donziger thanked me for the work that I was going to do,” Guerra said.

(Reuters)

Donald Moncayo – Member of Donziger team

Moncayo, a member Selva Viva, the organization that supported the Lago Agrio plaintiffs in the underlying litigation, took the stand Tuesday to detail how he had glimpsed Zambrano and Calva working together in the Ecuadorean courthouse on at least three occasions when he passed by Zambrano’s office while on other business.

During cross-examination, Chevron attorneys painstakingly dissected Moncayo’s claims and prompted him to concede that he did not know what the two were actually working on because he could not see Zambrano’s computer screen through his office window. Moncayo also admitted that he did not know for certain that the documents piled on Zambrano’s desk were related to the underlying litigation.

“I figured they were ours because there were a lot of them,” Moncayo said through an interpreter. “It was just my imagination that those were [documents] from our case.”

http://www.law360.com/articles/488138/secretary-backs-judge-s-authorship-of-19b-chevron-verdict

Ecuadorian Court Cuts Chevron’s Pollution Bill in Half

While Chevron (CVX) fights in federal court in New York to prove that a huge oil-pollution verdict it incurred in Ecuador was a fraud, the top court in Ecuador now says maybe the liability tab isn’t as immense as the company thought. Never a dull moment in the two-decade-old environmental brawl.

In February 2011, a trial court in the provincial oil town of Lago Agrio, Ecuador, imposed an $18 billion judgment against Chevron related to contamination of the rainforest in the 1970s and 1980s. With various add-ons, the bill grew to $19 billion. On Tuesday, the Ecuadorian Supreme Court upheld the liability finding, even as it cut Chevron’s bill in half, to $9.5 billion. The appellate court said that the trial judge had improperly doubled the compensation the American oil company must pay as a form of punitive damages.

“The court has issued a sentence that confirms all the evidence gathered, the damage, and the payment Chevron must make,” Juan Pablo Saenz, one of the lawyers for the thousands of Amazon residents seeking a cleanup and other remedies, told the French news agency AFP. Chevron, however, reiterated its vow never to pay a dime. “The Lago Agrio judgment is as illegitimate and unenforceable today as it was when it was issued three years ago,” Chevron said in a written statement late last night. The San Ramon (Calif.)-based company has virtually no assets in Ecuador. The pollution case concerns the activities of Texaco, which ceased operations in Ecuador in 1990; Chevron acquired Texaco in 2001. (Bloomberg BusinessWeek)

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