Gowen Group Law Office
25 November 2013 - FOR IMMEDIATE RELEASE
Contact: Karen Hinton at +1.703.798.3109
New York, NY – Judge Lewis A. Kaplan, overseeing Chevron's RICO trial against Ecuadorian villagers and their lawyers, is suppressing critical witness testimony about Chevron's extensive contamination of Ecuador's rainforest that clearly demonstrates a $9.5 billion environmental judgment against the company is valid, a spokesman for the villagers said Monday.
"Judge Kaplan is again demonstrating his deep-seated animus toward the Ecuadorian communities victimized by Chevron's pollution," said Han Shan, the U.S.-based spokesman for thousands of Ecuadorian villagers who in 2011 won a judgment against Chevron after an Ecuador court found the company dumped billions of gallons of toxic waste onto the lands and waterways of the Amazon.
Kaplan's latest move in the RICO case, which is expected to end tomorrow, was to strike substantial portions of the written witness testimony of Steven Donziger, the New York lawyer who has represented the Ecuadorian villagers since 1993. Donziger, the main defendant in the case, has disputed all of Chevron's allegations and has characterized the RICO lawsuit as a form of retaliation against those who held the company accountable for toxic dumping. Ecuador's Supreme Court unanimously affirmed the judgment against Chevron earlier this month.
Donziger's witness statement (with Chevron's proposed objections highlighted in grey and Kaplan's stricken passages in yellow) took aim at Chevron for refusing to obey Ecuador court orders affirming the judgment against the company. It also outlined the extensive scientific evidence that the Ecuador court relied on to find Chevron liable. (Under Kaplan's rules, most witnesses are required to submit their testimony in writing and then be subjected to live cross-examination.)
The parts of Donziger's testimony that were stricken by Kaplan include the first full paragraph where Donziger challenges "at the most fundamental level the legitimacy" of the RICO proceeding given that Ecuador's highest court unanimously affirmed the trial court judgment and disposed of almost all of the issues Kaplan is considering in New York. It is not appropriate for a U.S. judge to decide Ecuadorian law issues already decided in Ecuador, just as it would not be appropriate for U.S. law issues resolved by Kaplan to be decided by an Ecuadorian judge, Donziger said.
"Judge Kaplan is not the jurist to the world and he should stop acting as such because it only invites international derision toward our entire judiciary," said Christopher Gowen, a professor of ethics at the Washington College of Law at American University and a member of Donziger's legal team.
Kaplan also struck a statement by Donziger as follows: "It always has been my belief, based on valid scientific evidence, that Chevron deliberately discharged billions of gallons of toxic waste into Ecuador's rainforest as a cost-saving measure; that the dumping violated laws in place at the time in Ecuador as well as Texaco's operating agreement with Ecuador's government; that it violated oil industry norms extant at the time; and, that the dumping resulted grave harm and even death to thousands of innocent people, poisoned sections of the rainforest ecosystem, and contributed greatly to the devastation of the cultures of indigenous groups."
Kaplan also struck sections related to surveillance of Donziger and his family in Manhattan; Donziger's personal observation that Chevron lawyers engaged in numerous private, ex parte contacts with judges and court personnel in Ecuador; and testimony related to a video entrapment scheme executed by Chevron operative Diego Borja against a sitting Ecuadorian judge in an effort to sabotage the trial because the evidence clearly pointed to the company's guilt.
Shan, the spokesman for the Ecuadorians, criticized Kaplan for trying to limit Donziger's testimony and for excluding all evidence of Chevron's contamination in Ecuador. "Judge Kaplan is creating a make believe trial for Chevron about a real environmental crisis where all evidence of environmental contamination is excluded," he said.
Judge Kaplan earlier prevented Donziger's attorneys from questioning several Chevron witnesses – including the company's chief scientist, Sara McMillan – about the extensive evidence of contamination before the court in Ecuador.
Shan pointed out that Chevron is asking Judge Kaplan to issue rulings on Ecuador law that have already been decided by Ecuador's courts, where the trial was held at Chevron's request after it was initially filed in U.S. federal court in 1993.
The Ecuador law issues that Judge Kaplan says he will decide include whether it was permissible to have ex parte meetings with judges (both parties admitted in engaging in such meetings, which were not prohibited until 2009); whether experts could work closely with the parties that requested their reports, as they do in the U.S. and many other countries; and whether it was appropriate for the plaintiffs to draft a damages assessment that was reviewed and signed by a court-appointed expert, Richard Cabrera. (Judge Kaplan struck part of Donziger's testimony related to the Cabrera issue.)
The Cabrera report was thrown out by the Ecuador trial judge at Chevron's request, said Gowen. To find Chevron liable, the Ecuador court instead relied on more than 100 other technical reports in evidence – including several submitted by Chevron's own technical experts – that demonstrated levels of toxic contamination at the company's former well sites that were many times higher than permissible norms, he added.
In his witness statement and later in his live testimony, Donziger systematically debunked each of Chevron's allegations.
Other key points in Donziger's witness statement include:
- That two internal Chevron environmental audits from the early 1990s prove the company had left oil spills on the ground, implemented no environmental controls, dumped toxic waste into streams and rivers, and was in violation of various provisions of Ecuador law;
- That numerous independent studies from peer-reviewed academic journals show high rates of cancer in the area where Chevron operated in Ecuador;
- That oil industry guidelines from the early 1960s, some authored by former Texaco employees, prohibited the dumping of toxic waste water into the environment, as Chevron admitted to doing in Ecuador;
- That a memo from a Texaco employee ordered the destruction of documents related to oil spills in Ecuador, thus preventing the Ecuador court from knowing the true extent of the company's contamination and fraud;
- That Chevron lawyer Rodrigo Perez Pallares proudly admitted the company dumped more than 15 billion gallons of toxic "formation water" into Amazon waterways during 1964 to 1990, the time the company operated in Ecuador under the Texaco brand;
- That technical reports from Chevron experts Gino Bianchi and Ernesto Baca submitted to the Ecuador trial court prove the company was in violation of Ecuadorian law;
- That there is evidence that Chevron engaged in "legal trickery" by trying to use a Louisiana clean-up standard for waste pits that was 50 times more lax than Ecuadorian norms;
- That Chevron technicians would deliberately lift soil samples far away from contaminated sites and then present them to the court as if they were "random" samples as a way to deceive the court.
The Ecuadorian villagers believe Judge Kaplan has treated them with disrespect over the course of the proceedings, which began in the summer of 2010 with a related discovery action against documentary filmmaker Joe Berlinger. Kaplan repeatedly has expressed negative feelings toward the Ecuadorians, calling them the "so-called plaintiffs" and saying their lawsuit is "not bona fide litigation." He also invited Chevron to bring the RICO case.
New York's federal appellate court twice has granted oral argument on whether to remove Judge Kaplan from the case for bias and for defying appellate court orders. On one occasion, the appeals court unanimously vacated an injunction Kaplan tried to impose blocking enforcement of the Ecuador judgment.
Before the RICO trial began on Oct. 15, Chevron dropped all money damages claims against Donziger and the Ecuadorians to avoid a jury so that Kaplan could decide the case alone. (In the U.S., juries in civil cases are only allowed when money is at issue.) Chevron had sued Donziger for an estimated $60 billion, or three times the size of the original Ecuador trial judgment. At the time, Donziger faced what was thought to be the largest personal liability in U.S. history. Chevron quickly retreated when it became clear Donziger was prepared to argue his own case before a jury.
Rather than money, Chevron is only seeking what is known as "equitable relief" in the form of an injunction where Judge Kaplan would try to bar the Ecuadorians from enforcing their judgment in other countries. An attempt by Judge Kaplan in 2011 to impose a similar injunction against the Ecuadorians and their lawyers was was unanimously overturned by a federal appeals court. Currently, the Ecuadorians are trying to enforce their judgment in Brazil, Argentina, and Canada.
By dropping money damages, Chevron created a fatally flawed case, as U.S. law does not allow private parties to obtain an injunction under the RICO statute, said Gowen. "This is essentially a show trial where Kaplan and Chevron are beating up on Donziger, but it really leads to nowhere," Gowen said, who predicted any result in favor of Chevron will not survive appeal or command respect in foreign enforcement courts.
"Judge Kaplan's grandiose notion of his own power not only is an embarrassment to our country's judiciary, it actually interferes with U.S. foreign relations," he said. "Judges are not supposed to second guess judicial decisions from other countries."