To Avoid a Jury Trial, Chevron Now Wants to Remove Donziger and Lawyer John Keker from RICO Case
Oil Giant Clearly Scared of Jury Trial That Could Create Additional Liability, Plaintiffs Say
Amazon Defense Coalition
21 April 2011 - FOR IMMEDIATE RELEASE
Contact: Karen Hinton at +1.703.798.3109
New York, NY – To avoid a jury trial, Chevron has filed papers before a U.S. federal court seeking to remove American lawyer Steven Donziger and his highly-respected counsel John Keker out of the first phase of a racketeering case in New York that the oil giant filed in February to try to escape paying an $18 billion judgment in Ecuador for causing massive pollution to the Amazon rainforest.
Chevron is clearly "petrified" of a jury trial against Keker, who is based in San Francisco near the oil giant's headquarters and is widely considered one of America's leading trial lawyers, said Karen Hinton, the spokesperson for the Ecuadorian plaintiffs suing the oil giant. On behalf of Donziger, Keker has locked horns with New York judge Lewis Kaplan, who is presiding over Chevron's racketeering case in federal court, accusing him of trampling Donziger's due process rights and asking that he reassign the case to another judge.
"With its latest court filing, Chevron is admitting that it does not think its lawyers can win a trial before a jury of impartial American citizens who would likely review evidence of the company's reckless and potentially criminal misconduct in Ecuador," said Hinton.
"This is an extraordinary capitulation prompted by Chevron's desire to avoid having to prove its spurious allegations before an impartial jury," she added.
Donziger has repeatedly demanded to the New York court that he wants to exercise his constitutional right to a jury trial to respond to Chevron's "outrageous" allegations in the racketeering case that the environmental lawsuit in Ecuador on which he has worked for the better part of two decades is based on sham evidence. In response, Chevron filed papers late Wednesday seeking to drop Donziger from the first phase of the RICO trial that Kaplan scheduled for November of this year.
"Chevron's lawyers make all sorts of defamatory charges against Steven Donziger, and then they run for the hills when it comes time to put up or shut up," said Juan Pablo Saenz, an Ecuadorian lawyer who represents the plaintiffs. In February, after an eight-year trial that generated more than 200,000 pages of evidence, an Ecuador trial court found Chevron liable for dumping billions of gallons of toxic waste into the Amazon, causing an outbreak of cancer and decimating indigenous groups. Damages were found to be up to $18 billion.
To try to escape paying for the judgment in Ecuador, the plaintiffs claim that Chevron stripped all assets from the South American nation and earlier this year filed the racketeering case in New York federal court against Donziger and the 47 Ecuadorian plaintiffs, among others. Several prominent U.S. law firms working on for the Ecuadorian plaintiffs were named as co-conspirators.
Donziger and the Ecuadorians say Chevron's racketeering case is designed to create a sideshow to distract shareholder attention from the company's enormous liability in Ecuador, which stems from what experts believe is an oil-related disaster far worse than the BP spill in the Gulf of Mexico.
Hinton particularly cited the comments of Randy Mastro, Chevron's lead outside counsel on the case and a partner at the American law firm Gibson Dunn & Crutcher. Mastro, who was a deputy mayor of New York under Rudolph Guliani, has repeatedly likened himself to a "mob prosecutor" in his relentless pursuit of Donziger, who has been forced by Judge Kaplan to be deposed by a battery of Chevron attorneys for 14 days – an apparent record for a lawyer during an active litigation.
Kaplan also forced Donziger to turn over to Chevron more than 200,000 documents from his Ecuador case file, while leaving open the question of requiring Chevron to turn over internal company documents relating to various acts of misconduct allegedly committed by the oil giant to sabotage the Ecuador trial. Thus far, Chevron has not turned over a single document to Donziger despite employing an estimated 100 lawyers from four large American law firms to fight the Ecuador lawsuit.
Should Donziger be removed from any part of the RICO lawsuit, he will have no right to take discovery from Chevron. Two Ecuadorian plaintiffs who are in the case might be granted that right, but it is doubtful they would be nearly as aggressive against Chevron as Keker would be during the discovery process on behalf of Donziger.
Hinton chided Mastro, the self-proclaimed mob prosecutor who often brings family members to watch him in court, for the move to drop Donziger from the lawsuit.
"Now that Mastro has a chance to fulfill his dream to try to the case before a jury with Donziger's entire case file, he suddenly gets cold feet and wants to boot his main adversary from the litigation," said Hinton. "My guess is Mastro believes he would probably never win a jury trial on the facts against these adversaries."
If Judge Kaplan grants Chevron's motion to drop Donziger from the case, Chevron essentially will have no adversary in a bifurcated trial that Kaplan has scheduled for November of this year. That trial would be based on one count of the racketeering complaint that seeks a judgment from a U.S. court that Ecuador's entire judicial system is broken and therefore no judgment out of the country can be enforced in the United States.
Since Donziger's litigation strategy in Ecuador during the environmental trial likely will be at issue, removing him from the case essentially will mean Chevron is attempting to try him en absentia, said Hinton.
If Donziger were in the trial, he and the Ecuadorian plaintiffs could potentially file counterclaims against Chevron and seek billions of dollars of damages from a U.S. jury for the company's attempt to violate the law in Ecuador and engage in a conspiracy to undermine the legal claims of the indigenous groups in the Amazon. That is a risk Chevron would prefer to avoid, said Hinton.
Chevron's agenda in the latest maneuver is to deny the Ecuadorians and their lawyers their day in court on the issue of the enforceability of the Ecuador judgment in the United States, allowing Judge Kaplan to rule alone without a jury. Without holding an evidentiary hearing, Kaplan already has shown contempt for Ecuador's judicial system and has vilified Donziger from the bench, saying the entire case in Ecuador is nothing more than a "game" for American lawyers to make money.
Donziger, who graduated from Harvard Law School, is a human rights lawyer who works out of his small Manhattan apartment where he lives with his wife and son. The Ecuador case is the only environmental case he has worked on in his career.
“To prevent Donziger from defending himself, Chevron is engaging in un-American behavior to deny due process to a litigant just like the company has tried to deny due process to thousands of its victims in Ecuador," said Hinton.
"It also does not speak well for the American judiciary that a trial judge thinks he can rule from the bench on whether another democratic nation's entire judicial system is adequate."
Kaplan already has issued a preliminary injunction claiming he has jurisdiction to block the Ecuadorian citizens from taking action anywhere in the world to enforce the Ecuador judgment. The Ecuadorian plaintiffs and their Ecuadorian lawyers have said they refuse to recognize Kaplan's jurisdiction over them.
"Judge Kaplan has no more authority over a judgment in Ecuador being enforced in another country than an Ecuadorian judge would have over Judge Kaplan," said Saenz. "It is mind-boggling to think that a trial judge in the United States thinks he can order Ecuadorian citizens not to go to another country to enforce a judgment out of their own courts."
Keker's law firm, Keker Van Nest, is known as one of the leading boutique trial firms in the United States and recently won a sex discrimination case against Chevron in California that was tried before a jury. Keker himself is a Vietnam veteran who clerked for Supreme Court Justice Earl Warren.