In New Letter, Company Refuses to Turn Over Forensic Analysis of Videos; Confirms Ongoing Payments to Ecuadorian Contractor Who Made Tapes
Amazon Defense Coalition
28 October 2009 - FOR IMMEDIATE RELEASE
Contact: Karen Hinton at +1.703.798.3109
Washington, DC - In a stunning admission, Chevron's top outside counsel on the Ecuador environmental case has publicly conceded that the company's own lawyers met with a Chevron contractor regarding his secret video recordings just days before he taped a critical meeting in Ecuador about a purported bribe that the company is trying to use to taint a trial where it faces a $27.3 billion environmental liability.
The Chevron lawyer, Tim Cullen of Jones Day in Washington, D.C., writing to Ecuador's Solicitor General Diego Garcia Carrion in a letter dated Oct. 26, made it clear that the company is not fully cooperating with Ecuador's official investigation into the matter and is refusing to turn over its own expert forensic analysis of the secret videos. Several people in the taped meetings, including the judge then presiding over the trial, claim the videos released by Chevron were doctored in the editing process.
The admission in Cullen's letter that Chevron's lawyers were at the meeting with the Chevron contractor, Diego Borja, contradicts the company's earlier statements that it knew nothing about the secret taping until it was contacted after all four meetings were completed. It also provides additional proof that Chevron's U.S.-based officials, in addition to its Ecuadorian counsel, likely played a role in planning or facilitating the scandal as a sting operation to derail a trial they expected to lose, possibly in violation of U.S. criminal laws prohibiting bribery of foreign officials, said Steven Donziger, an American who advises the 30,000 plaintiffs suing the company.
The underlying lawsuit accuses Chevron of dumping more than 18 billion gallons of toxic waters into the Amazon when Texaco (now Chevron) operated an oil concession in the country from 1964 to 1990. The plaintiffs have presented evidence of soil and water contamination over an area the size of Rhode Island, leading to hundreds of cancer deaths and the decimation of indigenous groups. The trial, in Ecuador at Chevron's request after the company argued it should be moved from U.S. federal court, started in 2003 and is expected to end within months.
Cullen's letter also explicitly confirmed for the first time that Chevron is helping Borja find employment in the U.S.; that it is paying the legal fees of a prominent San Francisco-area criminal defense attorney, Cris Arguedas, to represent Borja; and, that it is making ongoing payments to Borja, including a salary or stipend, and expenses for transportation and housing.
"Benefits Chevron admits it is providing to Borja and his family are truly life-altering," said Donziger. "Chevron would not have done this unless it felt it needed to control Borja, or that it owed him something for a service he provided."
The Cullen letter also makes it clear that ties between Chevron and Borja are significantly tighter than previously disclosed by Chevron. When Chevron disclosed the secret tapes on August 31 by posting them on YouTube, it said its only relationship to Borja was that he was a former Chevron contractor.
Chevron did not initially disclose that Borja has an office in the same small building in Ecuador as Chevron's local counsel and that his "contracting" work for the company was handled by the same Chevron lawyers litigating the environmental case in Ecuador where the company faces the $27 billion liability, facts which have been reported by various journalists.
"Each additional communication by Chevron casts further doubt on the company's own credibility and suggests Chevron's own lawyers in both Quito and the U.S. played a role in orchestrating possible criminal misconduct to evade a judgment at trial," said Donziger.
Both the Ecuador government and the plaintiffs have called on the U.S. Department of Justice to investigate the matter to determine if any U.S. laws were violated.
"All of Chevron's lawyers and outside counsel at the June 18th meeting with Borja need to be questioned under oath to determine if an act of corruption was planned so an American company could evade a legal obligation to clean up pollution it caused in the rainforest – pollution that is killing people and destroying indigenous groups," said Donziger.
Donziger added: "It is clear that Chevron is not fully cooperating with the Ecuadorian government's investigation and is withholding critical information and witnesses that are under its control in U.S. territory. This makes it even more imperative for U.S. authorities to devote the necessary resources to determine what happened."
The Cullen letter, a response to a request for information by Ecuador's Solicitor General, was posted on Chevron's website on Tuesday. It contains a number of additional revelations that suggest Chevron's hand in creating and publicizing the videos:
- Chevron refused in the letter to answer the critical question of how Borja ended up meeting with Chevron's U.S. lawyers in San Francisco on June 18 and 19th; who arranged the meeting; when the meeting was arranged; who arranged to pay Borja's travel expenses; what Borja was promised by Chevron in return for flying to the U.S. and providing the tapes; whether Chevron promised him employment; and how much money Chevron has provided him as support and for how long he will receive that support.
- The letter contradicts Cullen's initial statement on August 31, in a letter to Ecuador's Attorney General, that the videos innocently fell into Chevron's hands. Chevron now says Borja was in the San Francisco offices of Cullen's law firm on June 18th and June 19th of this year in the presence of Chevron in-house counsel, just before Borja flew back to Ecuador to tape the critical fourth meeting on June 22 (the only taped meeting where a bribe was explicitly discussed). In the letter of August 31, Cullen had said: "The recordings were made in May and June of this year without Chevron's knowledge." Chevron repeated the same claim in a corporate press release the same day.
- Chevron has refused to disclose the names of the Chevron lawyers at the meeting with Borja, and whether they included Charles James. James, Chevron's Executive Vice President who reports directly to CEO David O'Reilly, has been supervising the legal case and has led the public relations charge to discredit Ecuador's judiciary.
- Cullen confirmed in his letter that Chevron is paying the legal fees of Borja and Hansen to be represented by criminal defense attorneys, another fact it did not initially disclose. Thus far, these criminal attorneys are refusing to allow Borja and Hansen to explain their role in the scandal. It now appears the attorneys were retained by Chevron before August 31 so they could not be questioned by journalists or be easily available to investigators.
- Cullen said Chevron refuses to turn over the forensic analysis of the secret tapes it had commissioned from an expert, Dr. Durand Begault. Cullen admitted the tapes contain "fragments" of video and were edited by Chevron for purposes of posting them on YouTube. Clearly, if Chevron were cooperating with the investigation as it claims, it would have no reason to hide its own expert's report and would provide the names of the Chevron employees or contractors who edited the tapes and make them available for questioning, said Donziger.
Chevron's allegation that a bribe was to take place hinges almost completely on the video of the fourth meeting, which took place just after Borja met with the Chevron lawyers in San Francisco, said Donziger. In the first three taped meetings, there was no explicit connection between any possible bribe and the judge presiding over the environmental trial. Only in the fourth meeting were a series of leading questions posed by Borja to third parties that tried to implicate the judge, who was not present.
On the basis of the fourth meeting, Chevron attempted via a major public relations campaign to tie the judge to the scandal but provided no supporting evidence other than questions by its own contractor and answers from a man who claimed to be an official of Ecuador's ruling party, but in reality is a car salesman, according to news accounts.
Judge Nunez, who claimed he was set up by Chevron, later withdrew from the case to avoid any appearance of impropriety. The plaintiffs have asked that the investigation by Ecuadorian authorities determine whether Judge Nunez and Chevron did anything improper.
A final judgment in the trial, now presided over by another judge, is expected in early 2010.