New Twists in Chevron Ecuador Case and Charges of Collusion

In the midst of so much other legal news in the past few days, you might have missed the latest twist in the on-going saga of the legal case regarding Chevron’s Ecuador operations. My co-blogger at Opinio Juris Roger Alford explains.  It is fascinating reading, reaching far beyond international or transnational law issues, going as it does to the ethical relationships between a party and an expert appointed by a court.  It is, as Roger says, an explosive allegation by Chevron, based upon outtakes from the documentary film Crude, of collusion between the plaintiffs’ attorneys and the soon-to-be-appointed court expert.  (If you want background on the case(s), trace back Roger’s Opinio Juris links.)

As I reported earlier, Chevron has secured key outtakes of the movie Crude that appeared to show alarming collusion between the plaintiff lawyers and the Court-appointed expert. According to pleadings filed yesterday pursuant to 28 U.S.C. 1782, the outtakes include some amazing communications caught on tape. The purpose of the filing was to secure the court’s assistance with additional discovery of Crude outtakes to facilitate the arbitration and secure preservation of all relevant evidence “related to the fraudulent ‘Global Expert’ scheme as documented in the Crude documentary and the outtakes produced to date.” (p. 21).

The film outtakes include some choice excerpts of a March 3, 2007 meeting that included plaintiffs’ counsel (Steve Donziger and Pablo Fajardo), plaintiffs’ experts (Charlie Champ, Ann Maest, Dick Kamp) and the soon-to-be court-appointed expert, Richard Cabrera. The apparent purpose of the meeting between the plaintiffs and Cabrera was to develop a plan for the drafting of the independent expert’s report that Cabrera would write as Special Master for submission to the Ecuadorian court. According to Chevron’s filing, the tapes include some pretty damning evidence.

Note to enterprising academic or law student.  Roger adds the following in response to a comment suggesting that the master might have held ex parte meetings with each side prior to drafting a report.  He adds that the defense cannot release the DVD itself containing the full outtakes – it has been suggested that Chevron took quotes out of context – but that a student or academic could go to the courthouse in New York and get the full content:

It is plausible that a Special Master or perito might have ex parte meetings with both sides and get their input before drafting the report.

Problem is, I was able to confirm today with counsel for Gibson Dunn that the Special Master Richard Cabrera never held a similar meeting with defendants or otherwise gave the defense side the opportunity to make suggestions or provide input about the contents of the court-appointed expert report.  They also say their is much more evidence that the Cabrera report was actually drafted with the plaintiffs. They also said that they are hoping that the film outtakes will be made available to the public, but it will require someone (like an enterprising law professor or student!) to go to the New York courthouse and get a copy of the DVD. The Second Circuit order precludes the defense counsel from handing the DVD film outtakes directly to the press.

Update:  Karen Hinton, spokesperson for the plaintiffs, has a response in the comments below. Pulling up a little bit of it; the full official press release from the plaintiffs is in her comment:

I am the spokesperson for the plaintiffs in the lawsuit against Chevron. A couple of thoughts: The CDs filed with the court do not include the entire tape from which the scene was taken. It is Chevron’s edited version of the original tape. So reviewing it does not give you the complete picture. Chevron and the filmmaker Joe Berlinger have refused to provide the plaintiffs a copy of the tapes, as had the court. As a result, we do not have a way to review the original tape.

Randy Mastro’s comment that Cabrera never offered Chevron the opportunity to meet is absolutely incorrect. Chevron chose not to cooperate with Cabrera. Chevron did not submit any information to Cabrera for inclusion into his report. Why? Because the vast majority of the samples taken prior to Cabrera’s appointment showed overwhelming evidence of extensive contamination. Even Chevron’s samples showed illegal levels of contamination, though their levels were lower than the plaintiffs’ tests. We discovered that Chevron (as well as Texaco earlier) falsified their testing levels.

This is not the first time Chevron has taken comments out of context in order to derail the lawsuit.

Update 2:  Roger Alford (an international and comparative law professor at Pepperdine) adds a further post at OJ responding to Karen Hinton’s response as well as a phone call with her in which she told him that plaintiff lawyer Steven Donziger’s remarks that “Because at the end of the day, this is all for the Court just a bunch of smoke and mirrors and bullshit” are not a reference to what the plaintiffs’ lawyers and the expert are discussing doing, but a reference to Chevron’s manipulation of the evidence.  Roger gives the full transcript and says:

As discussed here, one of the key arguments that the Ecuador plaintiffs are making in response to Chevron’s Motion is that the damaging quotes are being taken out of context. Without question one of the most damning excerpt is when lead plaintiffs’ lawyer, Steve Donziger is quoted as saying that “Because at the end of the day, this is all for the Court just a bunch of smoke and mirrors and bullshit. It really is.”

Plaintiffs’ spokesman Karen Hinton told me this morning that Donziger’s comment about “smoke and mirrors and bullshit” was a reference to Chevron’s evidence, not their own. She is quoted in an American Lawyer article today saying the same thing, that “’He was talking about Chevron using smoke and mirrors.’ Chevron is ‘twisting it and manipulating it.’”

I have now received the transcripts of the DVD from Karen Hinton and I have posted them here and here . Read in context, I find it almost impossible to interpret Donziger’s quote about “smoke and mirrors” as a reference to Chevron’s evidence.

I agree with Roger on what the transcript says, in its full context.  I too find it almost impossible to believe that this could be understood as a reference to Chevron’s evidence.  I would be astonished if a US federal judge, reading the full transcript, thought there was any question about what this comment referred to.