Donziger, Ecuadorians File Motion to Strike Former Judge's Testimony
By Jessica M. Karmasek, Legal Newsline
30 October 2013
New York, NY – The legal team for New York attorney Steven Donziger and the Ecuadorian defendants in Chevron Corp.'s fraud suit have filed a motion to strike the testimony of the company's key witness, former Ecuadorian judge Alberto Guerra.
Lawyers for Donziger and the Ecuadorians said in a news release Wednesday morning that they are filing the motion on grounds that Chevron's compensation for Guerra's testimony is "tantamount to a bribe."
The 14-page motion, filed in the U.S. District Court for the Southern District of New York, details Chevron's monetary and non-monetary compensation package and how it "clearly runs afoul" of the federal Anti-Gratuity statute, as well as the Rules of Professional Conduct of New York.
Donziger and the Ecuadorians argue that the package has provided an "overwhelming incentive" to lie and exaggerate in order to gain a better bargaining position with Chevron – as Guerra testified last week he did repeatedly, the motion notes.
"For two days last week, the federal courthouse was blighted as Chevron used it as a stage for this man's objectively corrupt testimony, in which he admitted to offering and accepting between 20 and 40 bribes throughout his career as a lawyer and judge – once accepting as little as $200 to ‘fix' a case," the motion states. "Now, Guerra wants this Court to believe that the hundreds of thousands of dollars Chevron has paid or promised to pay him are something other than yet another bribe.
"The Court should not allow this farcical witness to further taint these proceedings."
The motion notes the view of legal scholar Erwin Chemerinsky – also dean of the University of California Irvine's law school – in a sworn declaration for the defendants:
"If a party or its counsel were permitted to pay a testifying witness for physical evidence, beyond the reasonable value of that evidence, and to pay the witness a salary in exchange for an agreement to testify, there would be little left of the rule against compensating fact witnesses."
Guerra, who presided over the environmental case against Chevron Corp. when it was first filed in 2003, admitted Friday to taking bribes from the plaintiffs' lawyers who won a $19 billion judgment against the oil giant.
He testified he was paid thousands of dollars by the plaintiffs' lawyers – including Donziger – and a subsequent judge, Nicholas Zambrano, for illegally ghostwriting judicial orders issued by Zambrano and steering the case in the plaintiffs' favor.
Guerra claims that the plaintiffs' lawyers were permitted to draft the $19 billion judgment in their own favor after they promised to pay Zambrano a $500,000 bribe out of the judgment's enforcement proceeds, and that Guerra then reviewed the plaintiffs' lawyers' draft for Zambrano before the judge issued it as his own.
Donziger has admitted to meeting with Guerra privately, but denies the former judge's other allegations.
Guerra also admitted to Zoe Littlepage, of Littlepage Booth in Houston and one of Donziger's attorneys, that he initially told Chevron representatives that the plaintiffs promised him $300,000.
"It was an exaggeration on my part to secure a better position for myself," Guerra testified through a translator, according to reports. "It was not true."
Because of the risks to Guerra and his family in coming forward, Chevron has taken "reasonable measures" to protect his safety and security, and that of his family.
This includes relocating them from Ecuador and providing other assistance, such as living expenses, monthly housing allowance, health insurance coverage, a leased car, payment for attorneys and moving expenses, according to an agreement filed with the federal court.
"The Chevron payments to Guerra constitute outright bribes that violate both criminal laws and the ethical rules governing the legal profession," said Chris Gowen, of Washington, D.C.-based The Gowen Group Law Office PLLC and a spokesman for Donziger.
"As a practicing trial attorney, I know that if I ever put a witness like Mr. Guerra on the stand, the state bar would have every right to revoke my license to practice law."
Han Shan, a spokesman for the Ecuadorian defendants, agreed.
"Guerra and his obsequious storytelling seem to Chevron a magic bullet to evade accountability for the destruction and suffering it has caused in Ecuador," he said. "But it won't work; the district court in New York cannot act as an appellate court to the Ecuadorian judiciary, and deny the communities of the Amazon the court victory they fought for and won."
In February 2011, an Ecuadorian court found the company liable for dumping billions of gallons of toxic waste into the Amazon, causing an outbreak of disease and decimating indigenous groups.
The oil company has vowed never to pay the hefty judgment.
Instead, Chevron filed a racketeering lawsuit in the Southern District of New York, alleging that the Ecuador suit has been used to threaten the oil company, mislead U.S. government officials, and harass and intimidate its employees – all to extort a financial settlement from the company.
The fraud trial, which began Oct. 15, is expected to last through much of November.