Judicial Pressure and Intimidation
In May 2010, the Southern District of New York (SDNY) ordered the release of outtakes from the movie Crude after Chevron demonstrated that the raw footage compiled by the filmmaker would be “unimpeachably objective” evidence of any misconduct on the part of plaintiffs’ lawyers, expert witnesses, or the government of Ecuador.
In the more than 500 hours of outtakes from the movie Crude produced, the plaintiffs’ lawyers and representatives were caught, amongst other things, planning to organize an “army” to pressure, intimidate, and humiliate Judges in Ecuador. Plaintiffs’ representatives even go as far as to discuss the possibility of a judge being killed if he ruled in favor of Texaco.
On November 10, 2010, after reviewing the Crude outtakes, the SDNY issued an opinion granting discovery and deposition of Steven Donziger, the lead American trial lawyer behind the Ecuador lawsuit. In the opinion, the presiding judge stated, “The [Crude] outtakes are even more disturbing. They contain statements by Donziger that the Ecuadorian court system is corrupt, that the Lago Agrio plaintiffs can prevail only by pressuring and intimidating the courts and that the facts have to be twisted to support the plaintiffs’ theories. Donziger’s own words raise substantial questions as to his possible criminal liability and amenability to professional discipline. Among his other statements in the outtakes are these:”
“They’re all [i.e., the Ecuadorian judges] corrupt! It’s – it’s their birthright to be corrupt.”
“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.”
“At the end of the day, this is all for the Court, just a bunch of smoke and mirrors and bull*hit.”
Plaintiffs’ Representatives Orchestrate $27 Billion Fraud
Chevron has submitted to courts in the U.S. and Ecuador video outtakes and transcripts from the movie Crude that show the Lago Agrio plaintiffs’ lawyers, consultants, and associates meeting with the Ecuadorian court’s supposedly neutral “Global Expert,” Richard Stalin Cabrera Vega, to plan and ghostwrite the $27.3 billion damages report that Cabrera would later present to the court as his own. The video evidence proves that plaintiffs’ lawyers and consultants colluded with Cabrera to present a fraudulent report and proves that the plaintiffs’ and Cabrera’s denials of their collusion have been false. Documents produced during discovery also show that plaintiffs’ consultants wrote objections to the report they had ghostwritten, wrote “Cabrera’s” responses to their own objections, then published a fraudulent “peer review” of “Cabrera’s” report in which they claimed to find the work, of which they were the true authors, to be scientifically accurate and in line with remediation projects elsewhere in the world.
The following excerpt is taken from a November 5, 2010 opinion issued by Judge Lewis Kaplan of the Southern District of New York:
“The outtakes reveal Pablo Fajardo, one of the Lago Agrio plaintiffs’ Ecuadorian lawyers, describing several apparently ex parte meetings he had with an Ecuadorian judge – before Cabrera was appointed – regarding the global assessment and the appointment of a neutral and impartial expert to conduct it. In the course of doing so, he stated that he had a pretty good idea of who would be appointed. This appears to have been an understatement.
“Donziger boasted in the Crude outtakes that Cabrera ‘never would have [been appointed] had we not really pushed him.’ And the outtakes confirm that the Lago Agrio plaintiffs indeed did know in advance that Cabrera would be the appointee.”
“On March 3, 2007, more than two weeks before the appointment, they held an all-day meeting – attended by Cabrera, Donziger, plaintiffs’ Ecuadorian counsel, and partisan experts retained by the plaintiffs – to plan the report that Cabrera would issue. During that meeting, Fajardo informed the group that the goal of the meeting was to ‘define the overall structure of [the] comprehensive expert examination.’ Donziger later clarified that the plaintiffs’ work plan would involve not only evidence and remediation, but also writing the expert’s opinion.”
“The Crude outtakes reveal that Fajardo presented a PowerPoint presentation during the morning session that outlined the Plan Para Examen Pericial Global, or Plan for the Global Expert Assessment. He emphasized that everyone would contribute to the report, explaining: ‘And here is where we do want the support of our [i.e., the Lago Agrio plaintiffs’] entire technical team . . . of experts, scientists, attorneys, political scientists, so that all will contribute to that report– in other words – you see . . . the work isn’t going to be the expert’s. All of us bear the burden.’ Someone asked whether the final report would be prepared only by the expert. Fajardo responded that the expert would ‘sign the report and review it. But all of us . . . have to contribute to that report.’ Plaintiffs’ consultant Ann Maest said, ‘Together?,’ which Fajardo confirmed. Maest then stated, ‘But not Chevron,’ a comment met with widespread laughter.”
“In the afternoon session, the group discussed the ‘work plan,’ the first document that Cabrera would be required to sign and file with the Ecuadorian court Donziger proposed that he and the U.S.-based consultants form a ‘work committee’ to present a ‘draft plan’ in a few days. Looking at Cabrera, Donziger then said, ‘and Richard, of course you really have to be comfortable with all that. And we’ll also define the support the expert needs.’ The recording of the meeting ended with Donziger commenting, ‘We could jack this thing up to $30 billion in one day’.”
“Outtakes recorded on the following day reveal that Donziger made clear to one of plaintiffs’ U.S. environmental consultants that everything the plaintiffs were doing was to be concealed from Chevron, his ‘goal [being] that they don’t know *hit.’ During the same lunch, the consultants told Donziger that there was no evidence that contamination from the pits had spread into the surrounding groundwater. Donziger responded, saying ‘You can say whatever you want and at the end of the day, there’s a thousand people around the courthouse, you’re going to get what you want,’ and ‘[t]herefore, if we take our existing evidence on groundwater contamination, which admittedly is right below the source . . . [a]nd wanted to extrapolate based on nothing other than our. . . theory,’ then ‘[w]e can do it. And we can get money for it.’ He went on saying, ‘[T]his is all for the Court just a bunch of smoke and mirrors and bull*hit.’ When one consultant argued that ‘there is not enough information on that groundwater’ and that ‘the one hole in the remediation is the water,’ Donziger broke off the discussion, stating, ‘There’s another point I got to make to these guys, but I can’t get this on camera,’ and the footage ended.”
“Nor was that the only occasion during lunch in which Donziger asked to go off the record. When one expert commented that it had been ‘bizarre’ to have Cabrera present at the meeting the day before, Donziger instructed the expert not to talk about that fact and told the camera operator that those comments were off the record. The expert elaborated that he was surprised that there had been a meeting during which ‘everything’ had been laid out while the expert was present.
Organizing an “Army” to Pressure the Court
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’.”
Plaintiffs’ Representatives Collude with the Government of Ecuador to Advance Fraudulent Indictments against Chevron’s Lawyers
In 2008, Ecuador’s Prosecutor General opened an investigation of two Chevron attorneys associated with the lawsuit filed against the company in Ecuador. The politically motivated charges marked a renewal of the Ecuadorian government’s attempts to disavow contractual obligations owed to Chevron from contracts signed in 1995 and 1998. The actions also ignored the findings of prior Ecuadorian prosecutors who repeatedly investigated the same fraud allegations and found them to be meritless.
The following is an excerpt from a November 10, 2010 opinion issued by Judge Lewis Kaplan of the Southern District of New York. The excerpt discusses the role played by the plaintiffs’ representatives in advancing sham criminal charges against Chevron’s lawyers:
“In 2003, the same year in which the Lago Agrio litigation was filed, the government of Ecuador (GOE) filed a criminal complaint against the Individual Petitioners and former GOE and Petroecuador officials, alleging that they had falsified public documents in connection with the Settlement and Final Release and had violated Ecuador’s environmental laws.
“In 2004, the Ecuadorian Prosecutor General began an investigation of the criminal charges. The Ecuadorian Deputy Attorney General explained in an email to plaintiffs’ counsel in the Lago Agrio litigation that the criminal prosecutions were potentially a ‘way to nullify or undermine the value of the’ Settlement and Final Release, though ‘evidence of criminal liability established by the Comptroller [General’s] Office was rejected by the prosecutor’.
“Two years later, however, the District Prosecutor found that ‘there [was] not sufficient evidence to pursue the case against . . . Mr. Ricardo Reis Veiga and Mr. Rodrigo Pérez Pallares, representatives of TEXPET.’ As we shall see, the same District Prosecutor in his subsequent capacity as national Prosecutor General later decided to reopen the criminal investigation and charge the Individual Petitioners based on the same allegations that he had previously dismissed for lack of evidence.
“In 2006, while the Lago Agrio litigation was still pending, Rafael Vincente Correa Delgato was elected president of Ecuador on a platform of economic and social reform. President Correa, who describes himself as a ‘humanist,’ a ‘Christian of the left,’ and a proponent of twenty-first century socialism, condemned Ecuador’s oil contracts as ‘true entrapment for the country.’ The election appears to have marked a turning point for the prospects of a criminal prosecution of the Individual Petitioners.
“Crude outtakes include a brief interview with [Steven] Donziger on his way to President Correa’s January 2007 inauguration. Donziger boasted that President Correa’s inauguration was a potentially ‘critical event’ for the outcome of the Lago Agrio litigation.”
“Soon thereafter, Donziger explained that the Lago Agrio plaintiffs and the GOE had ‘been really helping each other.’ The outtakes depict Donziger discussing the importance of working his contacts in the new government. And work them he did.”
“On January 31, 2007, Donziger met with Joseph C. Kohn of Kohn Swift & Graf, P.C., a U.S. law firm providing financial support for the Lago Agrio litigation. The outtakes depict Donziger explaining that the plaintiffs had been working with the Prosecutor General’s office and that, although the criminal proceedings were closed, there is ‘no finality’ in Ecuador.”
“Approximately a week later in a radio segment, plaintiffs asked President Correa to bring criminal charges against Chevron’s attorneys. Donziger specifically suggested filing criminal charges against Pérez.”
“This campaign continued. The outtakes show Donziger and others planning a press conference to pressure the Prosecutor General to bring criminal charges.”
“On the following day, Donziger asked that posters be made of ‘Texaco’s four accomplices,’ including the Individual Petitioners – posters that later were displayed at a press conference and a demonstration.”
“In March 2007, President Correa pledged his full support for the Lago Agrio plaintiffs. He followed that pledge with a meeting with Luis Yanza, co-founder of the Amazon Defense Front and a close ally of Donziger. In a telephone conversation on or about April 23, 2007, Yanza reported to Donziger and Fajardo on a conversation he had had with President Correa. To the extent that his report may be gleaned from the outtakes, Yanza told Donziger that President Correa had an interest in learning more about the alleged environmental harm and ‘fraud in the field.’ Yanza added to Donziger that President Correa ‘insist[ed]’ that he continued to ‘[think] about doing something in the Prosecutor’s Office.’ A day or two later, Yanza again reported to Donziger and Fajardo, asserting on that occasion that Yanza had ‘coordinat[ed] everything’ with President Correa.”
“Within a day or two, President Correa, Yanza, Fajardo, and others boarded a government helicopter together to tour the Oriente region. In a voiceover in Crude, Donziger bragged: ‘We have achieved something very important in the case. We are now friends with the President.’ That ‘friendship’ immediately became apparent. On the same day as his visit to the Oriente region, President Correa issued a press release ‘urg[ing] the Office of the Prosecutor to permit the Prosecution of the Petroecuador officials who accepted the remediation carried out by Texaco.’
“The fact that there was no mention of the Texaco lawyers apparently bothered Donziger. In a telephone conversation the next day that was captured by Berlinger’s cameras, Donziger said that ‘perhaps it is time to ask for the head of Pérez Pallares – given what the President said’.”
The unfounded and corruptly filed charges are still pending against Chevron’s lawyers in Ecuador. In his November 2010 order, Judge Kaplan wrote:
“The Lago Agrio plaintiffs are attempting to procure the criminal prosecution of the Individual Petitioners. The reason they do so relates to the fact Texaco long ago entered into a settlement with the GOE, signed on its behalf by the Individual Petitioners, which may well have released the claims upon which the Lago Agrio plaintiffs sue. A criminal prosecution of the Individual Petitioners, especially a successful one, would overcome or at least help to overcome that obstacle – especially in a country in which, at least according to Donziger: ‘You can solve anything with politics as long as the judges are intelligent enough to understand the politics . . . . [T]hey don‘t have to be intelligent enough to understand the law, just as long as they understand the politics’.”
As the New York federal court recognized in its November order, finding that “The criminal charges at least in part are a result of an alliance between the Lago Agrio plaintiffs and the Ecuadorian government, which has both financial and political interests in the success of the lawsuit.”
These videos 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.”