Week Four Highlights, Chevron v Donziger
The following are the Chevron v Donziger week four highlights:
Judge Nicolas Zambrano (Ecuadorean Judge) –
Disastrous day for the Lago Agrio plaintiffs in Chevron trial –
In remarkable testimony Tuesday in federal court in Manhattan, the former Ecuadorian judge who signed a $19 billion environmental judgment against Chevron in 2011 seemed startlingly unfamiliar with the contents of the opinion he claims to have authored. He was unable to account for key data, reasoning, case citations, and terms he used in it.
The strikingly poor performance of the judge, Nicolás Zambrano Lozada, appeared to bolster Chevron’s contention that the $19 billion judgment in the environmental case, commenced in LagoAgrio, Ecuador in 2003, was not written by Zambrano at all, but rather by the plaintiffs lawyers themselves, who, Chevron maintains, won that opportunity by agreeing to pay Zambrano $500,000 from out of any eventual recovery.
Early in his examination Mastro sprang upon Zambrano a pop quiz on the ruling he claims to have written — a daring gambit that seemed to pay off. Mastro asked Zambrano, for instance, to name what the author of the ruling had described as “the most powerful carcinogenic agent considered in this decision.” “I don’t recall exactly,” Zambrano responded. “But if you give me the names, perhaps I can remember.”
Mastro then asked Zambrano to identify what the author of the opinion had called “the statistical data of the highest importance to delivering this ruling.” Zambrano hazarded a guess, but was mistaken.” What theory of causation,” Mastro asked next, “does the author of the ruling say he agrees with?” “I don’t recall,” Zambrano said.
Mastro may have been emboldened to subject Zambrano to this test by the fact that — as he revealed next — Zambrano had been, during his deposition last Friday and Saturday, unable even to identify exactly what the initials “TPH” stood for in the ruling. “It pertains to hydrocarbons,” Zambrano had answered, “but I don’t remember exactly.” As, it seemed, almost everyone in the courtroom except Zambrano knew, the initials stood for “total petroleum hydrocarbons,” the main measure of contamination referred to throughout the 188-page, single-spaced ruling.
Zambrano seemed puzzlingly unprepared for the most foreseeable questions he was being called upon to field. Within weeks after Zambrano ostensibly issued the $19 billion judgment on February 14, 2011, for instance, Chevron began publicly highlighting alleged “irregularities” contained within it, of which the most problematic were its seemingly plagiaristic incorporation of long passages from certain internal memos known to have been authored by the Lago Agrio lawyers themselves, but never introduced into the official record — the only place Zambrano could have legitimately gained access to them. (CNN Money)
The Chevron Judge Who Knows Little About His Judgment
Yesterday, Chevron had an opportunity in federal court in Manhattan to interrogate the former Ecuadorian judge who issued the ruling. Turns out he doesn’t know much about it. Nicolas Zambrano, whose name appeared on the 188-page, single-spaced decision from a provincial court in LagoAgrio, Ecuador, could not recall the name of the chemical substance the ruling described as “the most powerful carcinogenic agent” allegedly associated with oil contamination in the rainforest. He could not identify the study that the decision described as providing “statistical data of the highest importance to delivering this ruling.” He likewise did not recall what legal theory of “causation” the decision relied upon to link oil pollution to ecological and human harm.
Conceding that he does not speak or read French or English, he could not plausibly explain how the ruling he claimed as his own could include legal citations in those languages drawn from French, Australian, and U.S. doctrines. Zambrano said that his secretary, an 18-year-old woman who also, so far as he knew, did not speak or read French or English, found the far-flung legal materials on various websites. “The young woman who would help me type the judgment, she was the one going on the Internet,” Zambrano testified. She “chose the Spanish option” on legal websites. “That is how I would become aware or informed of the subject I was interested in. She would print them, so I could read them later.” (Bloomberg Businessweek)
Chevron v. Donziger: The Zambrano Pop Quiz
Mastro surprised Zambrano with a pop quiz about the Ecuadorian judgment, which Zambrano avers that he wrote unassisted. Zambrano was unable to answer a single question correctly….What theory of causation did the judgment’s author adopt? “Do not look at the judgment sir!” Mastro yelled. Zambrano replied, “I don’t recall.”
Zambrano offered no documentary evidence outside the judgment to prove his authorship, saying that he had destroyed his notes. He said that he did not know how the judgment included a string of more than 100 words from a plaintiffs’ draft memo that did not appear in the court record.
Zambrano offered no explanation for how nine of his Chevron orders and more than 100 of his other orders in other cases appeared in draft form on the computer of Judge Alberto Guerra, who claims to have worked as Zambrano’s paid ghostwriter. He offered no explanation for a bank deposit slip showing a payment from Zambrano, or for notations in Guerra’s diaries of several payments consistent with Guerra’s avowed salary as Zambrano’s ghostwriter.
Over the course of the day, there were too many apparent inconsistencies between Zambrano’s trial and deposition testimony to immediately count. Perhaps most damaging was his trial testimony that he did not read the full court record in the Ecuador case. At deposition four days earlier he had sworn: “In order to rule on it I had to read it, and that’s what I did.” (American Lawyer, Litigation Daily)
Ex-Judge In $19B Chevron Trial Flounders Under Questioning
Mastro — who promised during opening statements that he would be giving Zambrano a “New York welcome” — pressed the former judge on how drafts of nine orders in the Lago Agrio litigation wound up on Guerra’s personal computer, a claim for which Zambrano had no explanation. Mastro also produced a bank deposit noting a $300 deposit into Guerra’s bank account, which Zambrano confirmed bore his Ecuadorean personal identification number and signature. (Law360)
Joe Kohn (Partner, Kohn, Swift & Graf PC)
$19B Chevron Suit’s Top Funder Says Donziger Duped Him
A former funder of the Ecuadorean pollution lawsuit at the heart of Chevron Corp.’s $19 billion New York racketeering case against attorney Steven Donziger took the stand Monday to accuse Donziger of telling “blatant lies” about the integrity of the proceedings in order to keep the cash flowing.
Joseph Kohn’s firm Kohn Swift & Graf PC pumped more than $6 million into the underlying litigation as its primary funder until November 2009, when Kohn broke off the firm’s relationship with Donziger — who secured the unprecedented $19 billion pollution verdict in Ecuadorean court — amid concerns that the case had become tainted by interference and fraud, according to his testimony.
Kohn, however, says Donziger repeatedly lied to him about Cabrera’s purported independence, blocked Kohn’s efforts to appoint an outside investigator to look into accusations of fraud, and confessed during a private meeting that it would be “embarrassing” to the Ecuadorean plaintiffs’ team if the extent of their contact with Cabrera were to come to light.
“He obtained millions of dollars in litigation funding from KSG on the basis of material misrepresentations and material omissions about the Ecuadorean litigation,” Kohn testified. (Law360)
Lawyer Describes Fraud, Lies, and Acrimony in $19 Billion Chevron Case
After investing roughly $7 million in the case, including $1.1 million paid directly to Donziger, Kohn and his firm backed out of the Ecuador litigation in 2009. He testified that he withdrew because Donziger repeatedly lied to him about the improper ghostwriting of a supposedly “independent” damages report submitted by Donziger’s legal team to the court in Ecuador.
Faced with overwhelming evidence that the expert’s report was ghostwritten, the Kohn Swift firm withdrew from the case, Kohn testified. In 2010, he said that he demanded that Donziger “come clean” about the whole matter. “Mr. Donziger did not respond directly to that,” Kohn said in his declaration. “Instead he looked down at his shoes and said someone on the Ecuadorian team ‘may’ have provided ‘some’ documentation” to the expert “and if it came out, it could be embarrassing for the Ecuadorian plaintiffs’ team.”
At another point in his declaration, Kohn said: “Mr. Donziger lied to me about a number of aspects of the Ecuadorian litigation. … He obtained millions of dollars in litigation funding from Kohn, Swift & Graf on the basis of material misrepresentations and material omissions about the Ecuador litigation.” (Bloomberg Businessweek)
Ecuador Lawsuit Backer Tells Chevron Judge He Advised Settling
In testimony filed with the court, Kohn said that his firm’s relationship with Donziger began to deteriorate in 2008 when the case began to take longer than expected and Chevron raised questions about possible unethical conduct.
Kohn said in court today that he responded with a letter stating that he could “no longer function as counsel.” In a follow-up meeting in 2010 in Philadelphia, Kohn told other members of the Ecuadorean plaintiffs team that they should consider transitioning to other lead legal counsel.
“I gave them my best advice that the case appeared to be running off of a cliff,” he said today in court under Donziger’s questioning. (Bloomberg)
Chevron v. Donziger: Joe Kohn’s Warnings
In his written testimony and on re-direct, Kohn said that Donziger induced him in August 2007 to wire funds into a segregated bank account that, unbeknownst to Kohn, was used to pay the purportedly-independent court-appointed expert Richard Cabrera.
After learning more from Constantine Cannon about Cabrera’s allegedly fraudulent ties to the plaintiffs in April 2010, Kohn told the Ecuadorian team leaders that they were driving the case “over a cliff.” Kohn recalled telling Donziger to “come clean” and resign, while Donziger equivocated and “looked down at his shoes.”
“I have come to realize that my firm and I were deceived,” he wrote, and that the “dangerous combination” of “Donziger’s conceit and naivete… is leading the case rapidly toward disaster.” (American Lawyer, Litigation Daily)
Jeffrey Shinder (Managing Partner, Constantine Cannon)
Chevron v. Donziger: The Lawyer Who Walked Away
On Day 9 of the Chevron v. Donziger trial, a lawyer who had auditioned for the role ultimately taken by Patton Boggs testified that he withdrew from the case for ethical reasons after discovering what had really happened in the Ecuadorian tort suit brought against Chevron by residents of the Amazon. “I wanted no part of it,” said Jeffrey Shinder, who is the New York managing partner of Constantine Cannon.
Shinder said at Thursday’s hearing that Donziger “brandished” the expected judgment as “an asset,” and that the “primary underpinning” for his expectation was the so-called Cabrera Report, which called for $27 billion in damages against Chevron.
On the Sunday morning after Chevron fleshed out its ghostwriting allegations in a January 2010 discovery filing, Shinder said that Donziger appeared “borderline panicked.” Over breakfast at Gracie’s Cafe on the Upper East Side of Manhattan, he continued to deny the ghostwriting, but began to fall back on the mantra: “You have to understand they do things differently in Ecuador.”
A week later Shinder flew to Colorado to speak with the scientists. At the end of a full day of interviews, plaintiffs’ chief scientist Douglas Beltman admitted to Shinder that he had, on his client’s instructions, substantially ghostwritten the first iteration of the Cabrera Report, recommending $16 billion in damages. Beltman recalled watching the report being printed and boxed up in the plaintiffs’ Ecuador law office a day before filing. Then, in a sort of shadow play, Beltman confessed that he had criticized his own report and substantially ghostwritten Cabrera’s revision, calling for $27 billion in damages.
Shinder tried to “keep [a] poker face,” but inside, he found the story “profoundly troubl[ing]” and “shocking.” In his deposition he said he was “sickened.
Later that day, Shinder told Donziger that the Ecuadorian case was “irretrievably wounded.”
Shinder felt “physically ill,” according to McDermott’s notes, and alluded to a “fraud on [the] foreign court.” (When pressed at deposition, Shinder said: “I mean, what was done was dishonest. I will leave it to others to make the legal conclusion as to whether it was fraudulent.”) (American Lawyer, Litigation Daily)
Constantine Cannon Lawyer Testifies for Chevron about Corruption
A New York commercial litigator said on the stand that he bowed out of the Ecuadorean pollution case against Chevron Corp. in 2010 when he discovered “shocking” levels of corruption on the plaintiffs’ side, Bloomberg Businessweek’s Paul M. Barrett reports.
Jeffrey Shinder, the managing partner of the New York office of the Constantine Cannon LLP law firm, said that Steven Donziger, the lead plaintiffs’ lawyer fighting Chevron in Ecuador, had lied to him to cover up the ghostwriting of a critical scientific report supposedly written by a court-appointed independent expert in Ecuador. Shinder said that he withdrew from the suit against Chevron on ethical grounds after he learned that, in fact, Donziger had overseen the ghostwriting of the report by American consultants working for Donziger.
“It was a shocking event, and I remember it very clearly,” Shinder testified. (Bloomberg Businessweek)
Injustice In Ecuador For Chevron?
In what might be an unprecedented action, Chevron is countersuing attorney Steven Donziger and Patton Boggs, a Washington D.C. law firm, who are some of the lawyers representing the Ecuadorean oil giant, PetroEcuador. The charge? According to Chevron, Donziger and Patton Boggs are guilty of fraud and malicious prosecution. Pretty strong language leveled at a high-brow lawyer and a well-heeled international law firm.
Patton Boggs continues to seek enforcement under Ecuadorian court, as they would certainly lose the case if tried by U.S. jurisdiction. In fact, eight US federal courts have already found the Ecuador trial tainted by fraud. During the last several months, a former Ecuadorian judge has admitted his role in orchestrating the fraudulent judgment against Chevron and a half-million-dollar bribery scheme. The plaintiff’s troubles continue with environmental consulting firms declaring the lack of scientific merit to the plaintiff’s claims, as well as the CEO of Burford Capitol claiming they were misled by Patton Boggs to provide financing for the lawsuit against Chevron.(Forbes)
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