By Adam Klasfeld, Courthouse News Service
16 April 2015
A forensic report that the republic of Ecuador commissioned to defend a more than $9 billion judgment against Chevron was once so confidential that a tribunal in the Netherlands had previously forbidden lawyers from even describing it.
Submitted to the Permanent Court of Arbitration in The Hague, the document describes the data found inside the computers of Ecuadorean Judge Nicolas Zambrano, whose name appears on the judgment finding Chevron liable for oil devastation to the rainforest city of Lago Agrio in the Amazon.
Believing Zambrano merely signed his name to a ghostwritten verdict, Chevron asked a three-member tribunal to have Ecuador turn over the judge's hard drives for forensic analysis. Ecuador urged the tribunal to keep the information under wraps to protect the sovereignty of its judiciary and an ongoing criminal investigation.
Ironically, Ecuador's lawyers now contend that the forensic analysis of the drives contain the key to their vindication. A source said to work for Ecuador's attorney general seemed eager to have a third party leak the findings of Christopher Racich, a forensic analyst who founded the U.S.-based firm Vestigant.
The identity of the original source has never been verified, and tensions remain high regarding the shroud over proceedings.
On Feb. 27, Courthouse News exclusively reported that Racich said he found a running draft of the judgment in Zambrano's computers. The Permanent Court of Arbitration allowed Chevron to disseminate the findings of its expert, Spencer Lynch from the firm Stroz Friedberg, in response to the unauthorized disclosure, but it yielded to Ecuador's request that the underlying reports themselves remain sealed.
This development revealed that Chevron and Ecuador's experts disputed only the interpretation – but not any of the "forensic information" – of the data found in Zambrano's computers.
Now a source requesting anonymity has provided the first public glimpse of one of the forensic expert's unmediated findings, a still-confidential report by Racich from Nov. 7, 2014.
Early in the summary of his report, Racich aims for the crux of Chevron's ghostwriting allegations.
"There is ... no evidence – either presented by Mr. Lynch or uncovered during Vestigant's independent analysis – that any document was copied from a USB device to either the new computer or the old computer and used to create any part of the Lago Agrio judgment between October 2010 and February 2011," Racich wrote, referring to the dates of Zambrano's tenure. "Nor has Mr. Lynch presented any evidence (and I have found none) suggesting that any part of the Lago Agrio judgment was received by email or by any other means."
The Nov. 7 forensic report provides new details about the file that Racich believes became the Lago Agrio judgment.
"The forensic evidence demonstrates that a document on Judge Zambrano's computer that eventually became the Lago Agrio judgment (named Providencias.docx) was created on October 11, 2010, and was saved on Mr. Zambrano's computers at least 439 times between then and March 4, 2011 (i.e., an average of multiple saves per day)," the report states (parentheses in original). "Over that time period, the Providencias document contained increasing amounts of judgment text. And there is no evidence to suggest any version of that document was provided to Mr. Zambrano by a third party."
Both forensic experts agree that seven files apparently contain judgment text, according to the report.
"The text and metadata of these seven documents on the new computer and old computer are consistent with the users of these computers writing the Lago Agrio judgment," Racich wrote. "Specifically, the forensic activity shows that these computers were used to create a document, add text to it, edit text within it, and save the document repeatedly over a four-month period of time."
While Chevron alleges that Ecuadorean attorney Pablo Fajardo ghostwrote the judgment with help from former judge Alberto Guerra, Racich explained why he believes "no evidence" in the metadata supports that accusation.
Guerra's computer stamped documents with one of two author names: "Estación" or the period punctuation mark, according to the report.
"If Mr. Guerra had provided a new document to Mr. Zambrano, that new document would have retained Mr. Guerra's computer's author name, because the author name is not overwritten by subsequent editing," Racich wrote.
Similarly, Racich found that none of the documents with judgment text could be traced to the author name "PABLO," even though other legal documents on Fajardo's computer have that metadata.
In an unredacted legal brief, Chevron's lawyers at the firm King & Spalding in Texas speculate that files contained on USB drives attached to Zambrano's computers "may have contained judgment text."
But Racich said a close look at the files found in the USB drives sidelines this theory.
"Of the 56 documents opened from the USB devices, there are two documents – two copies of the same document – that appear to be related to the Lago Agrio litigation," his report states.
Racich traced this document to a court order from before Zambrano's tenure on the case on June 15, 2010.
Chevron also contends that the forensic evidence showed that Zambrano lied about having his secretary type the judgment on his "new computer," rather than his old one.
Racich found that this conclusion "stretches the available evidence far beyond what it actually demonstrates" because Zambrano's two computers had been "mapped" over the Internet.
"I found four entries in the Internet history between December 2010 and February 2011 showing that a document named Providencias.docx had been opened," he wrote. "Those four entries demonstrate that the Providencias.docx document was opened hundreds of times on both the new computer and the old computer."
While both parties agree that users of Zambrano's computer visited several legal-research and translation websites, Chevron contends that the Internet history does not account for all of his citations. Racich calls this unsurprising because Internet history gets "deleted over time through normal use" and "sometimes deleted Internet history is unrecoverable."
Chevron spokesman Morgan Crinklaw had no comment on the document except to refer to the company's now-public legal briefs describing its expert's opinions.
Courthouse News has asked the Permanent Court of Arbitration to disclose all of the forensic reports to more fully report the views of the competing experts. It also petitioned last week for press access to secret tribunal hearings expected to convene for roughly three weeks starting on April 20.
The Reporters Committee for Freedom of the Press has added its voice to the chorus, urging the hearings to be made public "in the interest of justice."