Answers, Accountability for ‘Field General’ of Anti-Chevron Suit

By November 8, 2010Briefly Legal, Energy, Trade

U.S. District Judge Lewis Kaplan has issued his full opinion explaining his earlier order that Steven Donziger, the U.S. trial lawyer, answer the questions of Chevron’s attorneys about his orchestration of the $113 billion lawsuit against the company in Ecuador.

Released Friday in the Southern District of New York, Kaplan’s order denies Donziger’s claims that, among other arguments, being forced to submit to depositions would violate attorney-client privilege. But Donziger isn’t admitted to practice law in Ecuador where the litigation is taking place, and he does not play a counsel’s role. Judge Kaplan refers to Donziger as the “field general” of the anti-Chevron campaign.

Donziger is at the center of this controversy. While he is a member of the New York Bar and years ago worked on a predecessor to the Lago Agrio lawsuit that was brought in this Court, he is not qualified to practice law in Ecuador. He does not serve as litigation counsel there. He nevertheless has been extremely active in support of the Lago Agrio plaintiffs.

The evidence before this Court shows that Donziger has attempted to (1) intimidate the Ecuadorian judges, (2) obtain political support for the Ecuadorian lawsuit, (3) persuade the GOE to promote the interests of the Lago Agrio plaintiffs, (4) obtain favorable media coverage, (5) solicit the support of celebrities (including Daryl Hannah and Trudie Styler) and environmental groups, (6) procure and package “expert” testimony for use in Ecuador, (7) pressure Chevron to pay a large settlement, and (8) obtain a book deal. Among his efforts was his persuasion of Joseph Berlinger, a documentary film maker, to make a documentary about the Lago Agrio litigation from the plaintiffs’ point of view. That film, entitled Crude, purports to tell the story of the Lago Agrio litigation. It is no exaggeration to say that Donziger is the star of the film, much of which focuses on his words and activities.

And it’s the outtakes of “Crude” that document so much of the wrongdoing, in the process destroying any vestige of legal or moral standing the plaintiffs could claim in their suit against Chevron.

The American Lawyer reported on Judge Kaplan’s order on Friday, “Judge Kaplan Lays Into Plaintiffs in Ecuador Suit Against Chevron,” again providing video of the most damning outtakes from “Crude.” Daniel Fisher at Forbes continued his blog coverage, as well, “Judge, In Deposition Order, Lambasts Lawyer Suing Chevron.”

Our observations:

  • 1782 motions: Chevron’s legal strategy of using Section 1782 of the U.S. Judicial Code to compel depositions of people with knowledge of the litigation in Ecuador has proved extremely successful. (For a summary of judges granting the requests, see Footnote 8 on page 7 of Kaplan’s opinion).
  • Political prosecutions: Judge Kaplan devotes a great amount of attention to the criminal prosecutions of two attorneys in Ecuador who worked for Chevron’s predecessor, TexPet. Prosecutors originally declined to bring charges against the men for falsifying documents related to the environmental mitigation that released Texaco from liability. Then the Lago Agrio plaintiffs’ team — Donziger included — joined with President Rafael Correa in pressuring prosecutors that eventually led to the charges.
  • Fraud, Donziger and accountability: Given the references to criminal liability and the “crime-fraud” exception to attorney-client privilege, Donziger must be sweating.
  • Crude quieted: Once so very chatty about his supposed truth-telling documentary, “Crude” director Joseph Berlinger has fallen silent.
  • BIT: The complicity of the Correa’s leftist government in Ecuador in the Chevron shakedown is being well documented, strengthening Chevron’s legal in its arbitration claim against Ecuador for violating the Bilateral Investment Treaty with the United States.
  • Fraud and funding: The lawsuit against Chevron is a contingency lawsuit, that is, funded by outside parties in the expectation of a big payout.  The movie, “Crude,” depicted Donziger and several Ecuadorians appealing for more cash to Joe Kohn of the Philadelphia law firm, Kohn Swift & Graf. But if the lawsuit is an organized fraud…Well, as Chevron’s Kent Robertson told The American Lawyer: “Anyone jumping into bed with plaintiffs at this point needs to understand what they’re signing on to. They will be funding a fraudulent lawsuit.”

Other blog coverage:

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