Submitted by: The Law Offices of Steven Donziger
Posted: Feb 09, 2015 – 02:10 PM EST
NEW YORK, N.Y., Feb. 09 /CSRwire/ - Rainforest villagers from Ecuador are demanding that Chevron’s lead appellate counsel Theodore B. Olson and their own government immediately make public the contents of a new forensic report that appears to prove that the oil giant’s key allegation in its retaliatory RICO case is false
The contents of the report could prove devastating to Chevron’s sprawling global litigation campaign to evade paying for a clean-up of its contamination in the South American nation. The company has admitted using at least 60 law firms and 2,000 legal personnel to defend itself from a $9.5 billion judgment issued by an Ecuador court in 2011 for dumping billions of gallons of toxic oil waste into the rainforest.
The affected indigenous and farmer communities in Ecuador are demanding the release of a forensic computer analysis that suggests Chevron’s star witness in the RICO matter – crooked former Ecuadorian Judge Alberto Guerra -- lied in U.S. federal court when he testified that the Ecuador trial judge did not write the decision against Chevron.
Based largely on Guerra’s testimony, U.S. Judge Lewis A. Kaplan imposed a controversial and unprecedented injunction purporting to bar the villagers and their lawyers from collecting the Ecuador judgment anywhere in the world. (For background on why the Kaplan decision is the result of one-sided proceedings in favor of Chevron, is likely to be vacated on appeal, and is otherwise largely unenforceable, see this document and this appellate brief.)
Argument on the appeal of Kaplan’s RICO decision is scheduled for March 30 before the U.S. Court of Appeals for the Second Circuit. The same appellate court already reversed Judge Kaplan unanimously in 2011 when he also tried to block the villagers from enforcing their judgment anywhere in the world.
In the meantime, the villagers are pressing forward with separate lawsuits to seize Chevron’s assets in Canada, Brazil, and Argentina to force the company to comply with the Ecuador judgment and pay for a clean-up of the contaminated ancestral lands. Chevron is trying to use the disputed Guerra testimony to help defeat the enforcement actions.
A letter sent today to Olson and his Chevron colleagues demanding the public release of the forensic report can be read here. A similar request to Dr. Diego Garcia Carrion, Ecuador’s Attorney General, can be read here.
The report, authored by prominent American computer expert J. Christopher Racich, appeared recently under seal in a private investor arbitration between Chevron and the government of Ecuador. Donziger and his Ecuadorian clients assert the report has “extraordinary relevance” to the pending appeal and the enforcement actions and therefore must be released.
“According to court filings in the BIT proceeding recently made public, the Racich Report directly contradicts Chevron’s allegations of impropriety regarding authorship of the trial court judgment in that case,” the letter by the villagers to Chevron’s counsel asserted.
“The affected Ecuadorian communities and those of us targeted by Chevron’s retaliatory litigations have long asserted that your client’s claim in this regard is the product of untruthful and flagrantly corrupt witness testimony,” the letter continued. “It is our position that any probative or exculpatory evidence related to the Chevron bribe allegation must be made public under your continuing duty of candor to courts where these issues have been raised, and in the interests of justice for all involved in this long-running dispute.”
The letter also said that the “prompt release of the report” was necessary “to provide full candor to the Second Circuit in its consideration of this appeal” and also for Olson and Chevron’s other lawyers to ensure they comply with their personal ethical obligations to courts where the issue of Guerra’s testimony is being litigated.
If indeed the Racich Report is a forensic analysis of Ecuadorian trial judge Nicolas Zambrano’s actual computer, as it appears to be from a description in a cover brief in the arbitration proceeding, then it would be able to conclusively prove whether the 188-page judgment was written on that computer slowly over the course of many months, as the trial judge has testified.
After striking his deal with Chevron, Guerra testified that the judgment actually was written by someone else and then copied onto the trial judge’s computer at the last minute, just before it was issued.
Guerra has emerged as the most crucial witness to Chevron’s strategy to obstruct payment of the Ecuador judgment. In the civil RICO case, Guerra had tried – without corroborating evidence -- to help Chevron undermine the Ecuador judgment by claiming the court’s opinion was ghostwritten. The plaintiffs have repeatedly and categorically denied the allegation.
To most objective observers, Guerra’s testimony seemed patently suspect on its face.
Chevron admitted it had paid Guerra $2 million – including $38,000 in cash out of suitcase – to testify for the company in violation of rules barring payments to fact witnesses. Guerra had previously admitted he had accepted numerous bribes when he was on the bench in Ecuador. A personal diary and emails that Guerra said would corroborate his story mysteriously went missing on the eve of trial.
In additional to plying Guerra with exorbitant cash payments, Chevron also relocated him along with his extended family to the U.S. and provided them with a housing allowance, car, medical care, monthly stipends, and an immigration lawyer. Prior to receiving money from Chevron, Guerra had been making approximately $500 per month in Ecuador. He now lives in a secret location in the United States and is completely dependent on Chevron for his maintenance, according to his testimony.
Even with an admitted 53 days of intensive witness coaching by Chevron lawyers, Guerra conceded on cross-examination during the RICO trial that he had changed his story several times as facts emerged to render prior versions implausible. He also testified that he was paid more money by Chevron each time he changed his story. (For more background on the many flaws with Guerra’s testimony, see here and here.)
During discovery in the RICO case, Chevron also was forced to release evidence indicating that one of its lawyers, Andres Rivero, persuaded Guerra to offer a $1 million bribe from the company to Zambrano to sign on to the company’s false narrative. Guerra said his goal was to convince Zambrano to recant his findings that Chevron is liable for the pollution in exchange for a life of leisure in the United States.
Chevron’s payments to fact witnesses has been strongly criticized by prominent ethics experts such as Erwin Chemerinsky, dean of the law school at the University of California, Irvine.
“What actually happened is that Chevron made illegal payments to a crooked former judge to fabricate a fake story of bribery to try to taint the Ecuador judgment and retaliate against those who held it accountable for wrecking Ecuador’s rainforest,” said Karen Hinton, a spokesperson for Donziger. “It is despicable conduct that we believe should lead to sanctions against the lawyers who did it.”
Eight separate appellate judges in Ecuador – including the five justices on Ecuador’s Supreme Court who heard the case – have unanimously affirmed the finding of liability against Chevron and rejected the company’s complaints that its due process rights were violated. Chevron had insisted the trial take place in Ecuador and agreed to accept jurisdiction there.
The unanimous Supreme Court decision in Ecuador affirming the trial court judgment can be read here.
An Ecuador trial court in 2011 found Chevron guilty of deliberately dumping billions of gallons of toxic waste into the rainforest, contaminating rivers and streams relied on by indigenous groups for drinking water, bathing, and fishing. Evidence before the Ecuador court – which included 105 technical evidentiary reports and 220,000 pages of material -- also demonstrated that Chevron’s dumping caused an outbreak of childhood leukemia and other oil-related cancers. (For background on the cancer and its human cost, see this summary and this photo essay by journalist Lou Dematteis.)
Hiding damaging information from courts and the public has long been part of Chevron’s litigation strategy in the Ecuador matter.
For the last several years, Chevron repeatedly has asked courts to designate as “confidential” memos outlining its demonization campaign against Donziger, its manipulation of scientific evidence in Ecuador, videos showing its technicians laughing about the pollution, and its efforts to offer funding for social projects to coax Ecuador’s President to violate the country’s Constitution and block the litigation filed by private citizens.
In the meantime, Chevron’s efforts to evade paying the Ecuador judgment are hitting headwinds.
An effort by the villagers to seize Chevron’s assets in Canada to force the company to comply with the judgment is before that country’s Supreme Court. An enforcement action against the company also is moving forward in Brazil before that nation’s highest civil court.
Olson also faces an uphill battle to protect Chevron in the appeal of the civil racketeering decision. Judge Kaplan repeatedly disparaged the Ecuadorians during the trial – calling them the “so-called” plaintiffs – and refused to admit any of the scientific evidence against Chevron that had been he basis for the finding of liability against the company in Ecuador.
A diagram from a Donziger legal filing illustrating the many hurdles Chevron must surmount to win the RICO appeal is on pp. 3-4 of this brief. Donziger’s 130-page opening appellate brief – which includes a comprehensive summary of the facts of the case -- can be read here.
(A summary of the overwhelming evidence against Chevron relied on by the Ecuador court can be found here. A video explaining Chevron’s human rights violations in Ecuador can be seen here. A recent article in Rolling Stone explaining Chevron’s unethical litigation tactics can be read here. A profile in Vanity Fair of lead lawyer and Ecuadorian resident Pablo Fajardo, the winner of a CNN Hero award, can be read here.)
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