Judge: U.S. Trial Lawyer Must Answer for Scheming in Ecuador

By October 21, 2010Briefly Legal, Energy, General

Thanks to a federal judge’s ruling, a New York attorney is going to have to answer questions about his scheming to manipulate the courts in Ecuador for advantate in the lawsuit claiming Chevron polluted the Amazon. The order by U.S. District Court Judge Lewis Kaplan delivers another hard blow against the multi-billion-dollar litigation targeting the company.

Thankfully, the U.S. judicial system is revealing the truth that the trial lawyers and wealth-redistributing activists sought to obscure and that the media failed to report. Aggressive lawyering by Chevron is proving more effective than the aggressive propagandizing by those trying to shake down the company.

In his Oct. 20 order, Judge Kaplan of the Southern District of New York ruled that Steven Donziger’s activities in Ecuador are not protected by attorney-client privilege. Donziger must respond to request for discovery from Chevron in the civil lawsuit (from the group known as the “Lago Agrio plaintiffs) and two Ecuadorian lawyers for Chevron who are being criminally prosecuted, Richard Reis and Rodrigo Perez.

Steven Donziger, Joe Berlinger, AFI Silver Docs,

Steven Donziger (left) and Joe Berlinger in happier, more PR propitious times -- the AFI Silver Docs festival.

Kaplan writes that the outtakes from the documentary-style movie “Crude” provide ample evidence of the Donziger’s efforts to manipulate the supposedly independent court-appointed expert’s report on environmental damages. The fact Donziger is a counsel in some proceedings is also not relevant here. From the order:

As an initial matter, Donziger is not representing the Lago Agrio plaintiffs before the Ecuadorian courts. He is not admitted to practice there. While he is a member of the New York Bar and presumably benefits from his legal training, there is abundant evidence in the outtakes that Donziger’s role in connection with events in Ecuador has been at least primarily in capacities other than that of an attorney. His principal functions have included lobbying, media and press relations, and politics. He has acknowledged in the outtakes that the purported civil litigation in Ecuador “is not a legal case. It’s a political battle” in which “[w]e need to get the politics in order in a country that doesn’t favor people from the rainforest.” On another occasion he said:

“Hold on a second, you know, this is Ecuador, okay. You can say whatever you want. In the end of the day, there’s a thousand people around the courthouse. You’re going to get what you want. * * * At the end of the day, this is all for the Court, just a bunch of smoke and mirrors . . .”

Donziger’s role at least in major respects is that of a political operative, not a lawyer. Moreover, Donziger admitted in March 2007 that he had not done legal work in two years. While this comment perhaps was offered in a somewhat jocular vein, there is substantial truth to it.

A prompt response is also warranted. The judge expresses serious concern about the fate of the two Chevron attorneys in Ecuador, who now face a preliminary criminal hearing on Nov. 10. In addition, the Lago Agrio plaintiffs are pushing to have a civil judgment entered against Chevron as soon as possible.

Several observations…

In recruiting well-known documentarian Joe Berlinger to make a film about the lawsuit, Donziger was hoping for a sympathetic portrayal he could use in his PR-based strategy to pressure Chevron into a settlement. Berlinger obliged by keeping damaging footage — outtakes that showed the legal team’s scheming and contempt for the judicial process — out of the film, but Chevron gained access through the courts. That’s a warning for future activist/trial lawyer teams and documentarians, both. Your collaboration will out.

The trial lawyers and activists made a horrible moral and strategic error in pushing to revive a criminal prosecution against two Chevron attorneys in Ecuador. In pursuit of a $27 billion judgment, these supposed humanists were more than happy to have Richard Reis and Rodrigo Perez  thrown into prison. When someone’s liberty is at stake, judges show little patience for legal sophistry and gameplaying.

Finally, the American court system demonstrates its merits. The lawyers, activists and PR operatives appear to think there’s value in sending out near-daily news releases calumniating Chevron, misrepresenting a hearing, or hyping this or that report. In the end, it’s the judicial system that’s revealing the truth the debunks the claims and proves the litigation to be a shakedown.

Coverage and commentary …

Bob McCarty, who blogs at Bob McCarty writes, broke the news in his post, “Judge: Chevron Can Question, Obtain Evidence From Plaintiff Attorney in $113B Ecuador Lawsuit

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