Ever since Shopfloor began blogging about the Ecuador-based litigation against Chevron in May 2007, we’ve argued that the lawsuit was a blatant shakedown by U.S. trial lawyers. In claiming Chevron owed $27 billlion — and then $113 billion — for environmental damage from Texaco’s oil drilling in the Amazon, the U.S. attorneys and Lago Agrio plaintiffs in Ecuador were really trying to pressure Chevron (which had bought Texaco in 2001) into a huge settlement. The bigger the settlement, the bigger the check for the U.S. lawyers being paid on a contingency basis.

Their preposterous claims relied not on facts or the law, but rather a multifaceted and ugly public relations and political campaign. At work was a combine of U.S. trial lawyers, environmental activists and anti-corporate bloggers, magnifying their accusations through a sympathetic mainstream media. The shakedown campaign recorded several PR victories, including a  “60 Minutes” hit piece against Chevron and most notably a full-length, overwhelmingly pro-plaintiffs’ film, “Crude,” by well-known documentarian Joe Berlinger.

In Ecuador the plaintiffs’ team manipulated the court system and made common cause with the leftist, anti-American regime of President Rafael Correa. (More on that in a later post.)

The response to our arguments? Chevron lies, America exploits the Third World, Ecuadorians are dying and you’re an inhumane corporate shill.

Now, thanks to outtakes from “Crude” that Chevron successfully obtained through the U.S. courts,  the trial lawyer/activist/media combine can no longer pretend any sort of moral high ground. Footage reveals Steven Donziger, the lead U.S. attorney who has directed the anti-Chevron campaign in Ecuador and the United States,  to be a cynical, arrogant and foul-mouthed commentator. And, unfortunately for the plaintiffs’ case, Donziger is remarkably frank.

Take for example, this video below. At a June 6, 2007, meeting Donziger outlined the plaintiffs’ strategy to intimidate the Ecuadorian courts through the show of brute force. [Warning: Language]

Excerpts:

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Mark Hemingway, Washington Examiner, “Trial lawyer at the center of fake autism study,” covers the bogus study linking autism and vaccines, now refuted by the British Medical Journal as “deliberate fraud.”

In 1998, the respected medical journal Lancet published a study by Andrew Wakefield that suggested a link between autism and childhood vaccination. The study got a great deal of mainstream attention, and touched off a popular backlash against vaccination. Celebrities Jim Carrey and Jenny McCarthy even secured a good deal of money and attention for the cause.

The problem is that the study was bunk. No other study has ever reproduced Wakefield’s findings, and many more contradicted it. But once the idea that vaccines caused autism took hold in the popular culture, it couldn’t be eradicated.

The U.S. Department of Health and Human Services now reports a resurgence of whooping cough, measles, mumps and other deadly childhood afflictions.

Last week the British Medical Journal detailed the fraud committed in Lancet, which originated in a British trial lawyer’s search for a test case he could exploit for profit. A BMJ editorial concludes, “Wakefield’s article linking MMR vaccine and autism was fraudulent.”

That this sort of fraud takes place in the fever swamps of trial lawyerdom should come as no surprise. We reported extensively on the litigation against Chevron for environmental damage in Ecuador, a lawsuit built around fraudulent “expert” analyses and reports.

That said, it’s probably true that exaggeration, fear-mongering and disregard for the facts are more common than pure fraud of the Wakefield type. As Hemingway notes:

Julia Roberts won an Oscar for her portrayal of Erin Brockovich, the tale of how a brassy attitude and some legal petitions saved a small town poisoned by a faceless corporation.

But the truth is more inconvenient than fiction. The California Cancer Registry has completed three studies showing that cancer rates in Hinckley, Calif., were completely normal, irrespective of Brockovich’s multimillion-dollar lawsuit.

Unfortunately, these obvious fictions are rarely corrected by the media, and the public continue to believe the hype. Consider the latest alarmist report from the alarmist Environmental Working Group, hyping the minutest of amounts of chromium-6 found in some California water systems.

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Since we last wrote about the $113 billion shakedown lawsuit against Chevron for environmental damage in Ecuador’s Amazon, momentous developments have occurred. Via court filings and media reports we have learned:

• Kohn, Swift and Graf, the Philadelphia law firm that bankrolled the lawsuit has pulled the plug on its financial support, largely because of the hubris and unethical behavior of the lead lawyer orchestrating the anti-Chevron campaign, Steven Donziger.
• Donziger has declared he is lowering his profile in the case, and Patton Boggs has signed on to represent the Ecuadorian plaintiffs, apparently believing it can patch up a sinking ship. (Wall Street Journal, “Chevron Forces Legal Change.”)
• Some of the Ecuadorian plaintiffs may be fictional. No, not just their claims, their actual existence may be an invention.

From Chevron.com, “Forensic Expert Discovers Elaborate Forgery of Plaintiffs’ Signatures Authorizing 2003 Complaint Against Chevron in Ecuador“:

SAN RAMON, Calif., Dec 20, 2010 (BUSINESS WIRE) — Chevron Corporation (NYSE: CVX) today submitted expert analysis from a leading forensic specialist demonstrating that many of the signatures on the document purporting to authorize the lawsuit against Chevron in Lago Agrio, Ecuador, were forged. According to Chevron’s filing, this newly uncovered evidence of forgery and fraud makes clear that the lawsuit has been tainted with corruption from the very beginning and must be terminated….

“The Ecuadorian authorities cannot continue to ignore the mounting evidence of fraud in the Lago Agrio litigation without violating their duties under the Ecuadorian constitution and international law,” stated R. Hewitt Pate, Chevron vice president and general counsel. “We intend to seek full redress against the harm that has been done in the name of the Ecuadorian plaintiffs and to hold accountable all of those who have knowingly participated in this unlawful scheme.”

The forensic expert’s analysis and Chevron’s motion to nullify the Ecuadorian lawsuit are available at: http://scr.bi/faTsoS.

In 'Crude' movie, Joe Kohn (left) looks askance at Steven Donziger

Daniel Fisher at Forbes.com has done the best job of reporting on recent developments gleaned from court documents, including the Philadelphia law firm’s renunciation of Donziger. Joe Kohn, the partner most associated with the suit, wrote the plaintiffs in August about the manipulation of a supposedly independent court expert’s report claiming $27 billion in damages. As Fisher reports in his column, “Chevron Ecuador Case A Shambles, Former Backer Says,” Kohn fumed:

We now find out that there may have been extensive, systematic contacts, orchestrated by Donziger, and with your participation and agreement, which have threatened the entire case. And, of course, we find out about it in part as a result of the utter stupidity, arrogance and conceit of inviting a film to be made documenting this improper conduct.

Hubris, in other words.
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U.S. District Court Judge Lewis Kaplan of the Southern District of New York has just ruled that U.S. trial lawyer Steven Donziger had to respond fully by supplying documents sought by Chevron so it can defend itself from the $113 billion lawsuit/shakedown over environmental damage in Ecuador. In his memorandum order, available here, Judge Kaplan describes the documents Donziger has so far resisted producing:

At this point, Donziger has produced some of the documents demanded by the subpoena. Instead of producing the balance, however, he submitted, on November 15, 2010, a purported privilege log – which is over 2,000 pages long and claims privilege as to 8,652 documents – and contends that he now should be permitted to litigate those privilege claims. The log includes claims of privilege as to approximately 2,500 or more documents sent or disclosed to a public relations person, the founder of the Amazon Defense Front or La Frente, Amazon Watch, the Wall Street Journal, Bloomberg News, Conde Nast, The New York Times, and the Los Angeles Times. Moreover, the 8,652-item privilege log lists not even one document that was written by or addressed to any of the Lago Agrio plaintiffs – the clients whose privilege supposedly is being asserted.

That’s big, but probably to be expected. Where Kaplan breaks new ground is his forceful rebuke to the Government of Ecuador for (GOE) trying to intervene so late in the process:

The eleventh-hour attempt by the GOE to intervene – after the Court ruled that Donziger and his clients were obliged to produce the documents and the Court of Appeals had denied a stay pending appeal to assert a supposed common interest in the Lago Agrio plaintiffs’ privilege – supports that view. The GOE has been working closely with Donziger for years and stands to gain billions for Ecuador if the Lago Agrio plaintiffs prevail against Chevron. Its belated attempt to get into this case has all the hallmarks of an attempt to pull Donziger’s chestnuts out of the fire.

Our emphasis. So the leftist government of Rafael Correa is in bed with U.S. trial lawyers attacking a U.S. company. This strong statement, background and arguments by a federal judge should destroy Ecuador’s attempt to maintain its advantages under the Andean Trade Preferences Act.

Steven Donziger, the U.S. trial lawyer who has directed the infamous $113 billion litigation shakedown against Chevron, is scheduled to appear in court in the Southern District of New York.  Donziger, who could make millions in a successful lawsuit against Chevron, is being held accountable by the U.S. judicial system.

Last week Judge Lewis Kaplan ordered Donziger to appear today with all the documents sought by Chevron so the company can defend itself from the accusations that its predecessor company, Texaco, left environmental damage behind after operations in Ecuador. (Updated and revised: The court hearing is at 2 p.m.)

Do we detect a level of judicial frustration in Kaplan’s order? Consider the judge’s hand-written note, which reads:

“ORDERED that this order shall not be construed* to imply that Donziger is not already in violation of a previous order that required the production forthwith of all documents responsive to the subpoena.”

Revelations from outtakes from the documentary-style film about the litigation, “Crude,” have already revealed Donziger and his team of activists to be manipulating the Ecuadorian judicial system, orchestrating bogus expert reports, and mounting a cynical, arrogant and dishonest public relations campaign to bludgeon Chevron into a settlement.

Kaplan has rebuffed Donziger’s claims that the New York trial lawyer’s actions in Ecuador are protected by attorney-client privilege  — he’s really running a political/PR operation   — and so must answer Chevron’s questions and provide documents sought by the company.

Chevron’s memorandum of law in support of its motion to require Donziger to produce documents does an excellent job of summarizing the games the U.S. trial attorney has played to avoid accountability, including appeals to the Second Circuit. After numerous delays, Donziger submitted a “privilege log” more than 2,000 pages long to claim he did not have to produce 8,562 documents.

Everything’s off limits! As Chevron’s attorneys from Gibson Dunn note: “Donziger even claims that communications with rock musician Sting’s wife, Trudie Styler, who appears with Donziger in the movie, Crude, as a celebrity touring the Rainforest, are somehow privileged.” (continue reading…)

Flipped through the pages of The Washington Post this morning looking for the story: Millions of Americans last week purchased canned food products without risk of food-borne illnesses thanks to the use of bisphenol A (BPA) in packaging.

Didn’t find it. Didn’t expect to. It’s not news, really. Still, for all the headlines that anti-BPA studies and campaigns are able to generate, it would be nice balance for an article to appear every so often, “Modern technology, chemical applications in food packaging help feed Americans safely and affordably.”

John Stossel notes the phenemonon in a recent column on BPA and a movie attacking its use, “Tapped.” From his latest in The Washington Examiner, “Plastic water bottles won’t hurt you”

[A] documentary called “Tapped” …quotes experts claiming “BPA may be one of the most potent toxic chemicals known to man.”

Nonsense. Not only is there no good evidence that BPA locked into plastic can hurt people, it actually saves lives by stopping botulism.

“Since BPA became commonplace in the lining of canned goods, food-borne illness from canned foods — including botulism — has virtually disappeared,” says the American Council of Science and Health.

You never hear the good news about BPA in the mainstream media. Fear-mongering gets better ratings.

Interesting about “Tapped,” another documentary-style film being made to promote a highly politicized and litigated campaign against an industry, in this case, the bottled water industry. “Crude” has proved a disaster for the activists/trial lawyers who thought the film could be a powerful tool in their PR campaign against Chevron. Wonder how “Tapped” will come back to bite this particular bunch of anti-commerce, anti-science, anti-safety alarmists.

Of all the outtakes from the documentary-style movie, “Crude,” now posted online by The Corporate Counsel (see below), we like Video 5.

Entitled “Smoke and mirrors and bulls—,”  the video shows New York trial lawyer Steven Donziger at his most arrogant, commenting: “This is Ecuador. You can say whatever you want. At the end of the day there’s a thousand people around the courthouse, you’re going to get what you want. Sorry, but it’s true.”

What an imperious Norte Americano, contemptuously dismissing Ecuador’s judiciary as just something to be manipulated. You would think Ecuador’s leaders would be offended at this trial lawyer imperialism, but the leftist government of President Rafael Correa has been cheering it on.

There are least some judicial authorities who are not amused, however: “Ecuador disbars judge who heard Chevron case.”

Congratulations to Corporate Counsel for being the first media outlet to post the videos of the outtakes from the documentary-style movie “Crude” that have revealed the trial lawyer/activist lawsuit against Chevron for environmental damage in Ecuador to at its core a multi-billion-dollar shakedown against the U.S. company.

The magazine’s sister publication, The American Lawyer, obtained copies of the outtakes from the U.S. District Court, Southern District of New York, after Judge Lewis Kaplan ordered their release to the public.  Corporate Counsel has now posted the key videos with short summaries from Michael Goldhaber, the reporter who has provided the most thorough coverage of the court proceedings in New York.

From “EXCLUSIVE: Chevron In Ecuador — the Tapes the Plaintiffs Don’t Want You to See“:

In the final version of Crude — the 2009 Joel [sic] Berlinger documentary on the epic environmental suit brought by Amazon tribespeople against Chevron Corporation in Ecuador — lead U.S. plaintiffs’ attorney Steven Donziger remarks: “This is something you would never do in the United States, but Ecuador, you know, this is how the game is played, it’s dirty.”

If Donziger would say something so provocative for the final cut, reasoned Chevron’s lawyers at Gibson, Dunn & Crutcher, then just imagine how outrageous he must look in the extra footage.

Well, the public no longer needs to use its imagination.

As Goldhaber explains, Chevron views the first two outtakes (there are six total) as the most legally damning, showing the team of lawyers/activists orchestrating the supposedly independent court-appointed expert’s damage assessment.

• Video 1: “Plaintiffs’ lead Ecuadorian lawyer, Pablo Fajardo, gives a PowerPoint presentation to his team that envisions extensive coordination with the independent damages expert.” You mean the same Pablo Fajardo who won the ostensibly prestigious Goldman Environmental Prize in 2008?
• Video 2: “The day after the PowerPoint presentation where the Ecuadorian plaintiffs laid out their plan to coordinate with the court-appointed expert, one of plaintiffs’ consultants suggests that it was ‘bizarre’ that the meeting included ‘perito,’ which means ‘[the] expert.’” That expert is Richard Cabrera, who recommended the $27 billion damage figure.

The PR front group in the lawsuit, the Amazon Defense Coalition, claims that ex parte contacts are common in Ecuador. Sure, and no one worries that one side in the lawsuit gets to write the expert’s report and pick the damage figures.

Corporate Counsel is, of course, a special-interest publication, reaching an audience of mostly business attorneys. Now it’s up to all the major media outlets that have covered the litigation against Chevron — The New York Times and “60 Minutes” come mind — to follow-up and give these outtakes the attention they deserve.  Thomson/Reuters also requested copies of the videos from the U.S. District Court, so there’s a powerful media distribution system available.

Until then, good job, Corporate Counsel!

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 (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… (continue reading…)

With U.S. District Court Judge Lewis Kaplan ordering the public release of outtakes from the anti-Chevron film “Crude,” blogger Bob McCarty wonders where the national news coverage is.

After all, if employees of a huge oil company had been in league with a right-wing director to produce a “documentary” to help fend off a multi-billion dollar lawsuit in a third-world court, that would be huge news. But when “Crude” director Joe Berlinger and the U.S.-Ecuador legal team led by U.S. trial lawyer Steven Donziger try but fail to suppress damning outtakes, footage that blows up their litigation shakedown, nothing.

McCarty concludes in his Big Government post, “Biased Media Outlets Ignore ‘CRUDE’ Outtakes,” with two messages:

To the mainstream media, I say, “Your bias is showing!”

To Mr. Berlinger, I say, “I hope you remember how much emphasis you placed on your First Amendment freedom of expression when you were vehemently opposing the release of outtakes from your film [To refresh your memory, click here or here]. When people start to air the outtakes from your film in YouTube videos, remember that those outtakes are now part of the public record and, therefore, protected by federal law.”

The principle of fair use can be invoked, as well.

As a former slothful journalist ourself, we tend to think laziness and passivity are just as common explanations as bias for the media failing to report the news. But in this case, no excuses. It’s a big story!

Earlier Shopfloor.org post on the subject, “‘Crude’ Outtakes Made Public; What an Opportunity for ’60 Minutes’.”