On Eve of Trial, Kaplan Further Restricts Rights of Donziger and Ecuadorians

Gowen Group Law Office
Contact: Paul Paz y Miño: +1 510.281.9020 x302,

New York, NY – Judge Lewis A. Kaplan has finalized ground rules for Chevron’s RICO case that will allow him to limit the most important witnesses from testifying in open court and would bar New York attorney Steven Donziger from presenting the extensive evidence of Chevron’s pollution and corrupt activities in Ecuador.

The judge also said he likely would exclude Donziger and the public from the courtroom for certain Chevron witnesses who claim that they face security threats in Ecuador, a claim that Donziger’s legal team says is baseless and designed to smear his reputation. Donziger is a member in good standing of the bars of New York, the District of Columbia, the Southern District of New York, and the Second Circuit. The trial is scheduled to start Oct. 15 and last approximately four weeks.

“With these recent rulings, there now should be no doubt left whatsoever that Chevron is denying Steven Donziger and the Ecuadorian defendants a fair trial,” said Chris Gowen, an attorney and spokesman for Donziger.

“We cannot survive a lawsuit that does not respect the rule of law and is simply a rubber stamp for one party,” added Gowen. “We strongly believe we would prevail with a real trial adhering to proper rules of evidence before an impartial fact finder.”

New rules imposed by Kaplan to deny the due process rights of the defendants, which have become clearer in recent days, are as follows:

  • Now that he denied Donziger a jury trial, Judge Kaplan is requiring all witnesses to submit their testimony in writing. This effectively prevents Donziger – who has worked on the Ecuador case for almost 20 years – from testifying on direct examination in open court. If Chevron chooses not to cross-examine him, he will not be allowed to testify at his own trial.
  • Judge Kaplan also ruled that he can exclude at his sole discretion any evidence Donziger wishes to introduce as a “sanction” for the fact he did not convince Ecuador lawyer Pablo Fajardo to recognize Kaplan’s jurisdiction and turn over his case file to Chevron. In the meantime, Judge Kaplan refuses to recognize that an Ecuador court already ruled that under the country’s confidentiality rules, Fajardo is barred from turning over his case files to a U.S. court. Fajardo is the lead lawyer on the case.

“This ruling in particular flies in the face of the entire history of American jurisprudence and makes preparing for trial nearly impossible,” said Gowen.

Additional rules imposed by Kaplan on the trial:

  • As part of his sanction against Donziger over the Fajardo documents, Judge Kaplan also ruled he has the discretion to exclude Donziger’s entire testimony or just those parts that contradict Chevron’s (or Kaplan’s) preferred version of events.
  • Judge Kaplan also denied Donziger and his clients the right to talk in their opening statements about scientific evidence of Chevron’s contamination that the Ecuador court relied in imposing the judgment against the company. Even Chevron’s scientific evidence that the Ecuador court relied on to find the company liable cannot be mentioned.
  • Judge Kaplan also ruled that the two Ecuadorian defendants from the Amazon rainforest who have appeared in the New York case – Hugo Camacho and Javier Piaguaje — violated his discovery rules by not producing Fajardo’s documents and could be sanctioned as well.
  • The judge also ruled that identities of two Chevron witnesses from Ecuador (known as “Doe 3” and “Doe 4”) cannot be disclosed to Donziger and that he might boot the New York lawyer from the court if they testify.

Kaplan did grant a motion that admitted two attorneys to represent Donziger at trial, Richard Friedman of Seattle, and Zoe Littlepage of Houston.

Less than three weeks before trial, Chevron dropped more than $100 million in money damages claims against Donziger and the Ecuadorians to avoid having a jury of citizens decide the case, clearly signaling they do not have confidence in their own allegations, said Gowen. The only remedy now left for the oil company is an injunction barring Donziger and his clients form enforcing the Ecuador judgment, but there is a question whether injunctive relief is allowed under the civil RICO law. In any event, a federal court of appeals already reversed a similar injunction issued by Kaplan in 2011.

“Without money damages, this is now a case without a clear legal remedy,” said Gowen. “It is a trial to nowhere, a show trial.”

Judge Kaplan already has been heavily criticized for making incendiary comments about Donziger and the Ecuadorians. He has called the Ecuador case “not bona fide” litigation, referred to the affected communities as the “so-called plaintiffs”, and has made several on-the-record comments disparaging Ecuador’s judicial system.

Ecuadorian villagers have called the judge’s comments “xenophobic” and said they do not recognize Kaplan’s jurisdiction over the case, which took place in Ecuador at Chevron’s request after it filed numerous sworn affidavits in U.S. court praising the fairness of the country’s judicial system.

After an eight-year trial in the Amazon town of Lago Agrio that produced more than 220,000 pages of record evidence, an Ecuador court in February 2011 found Chevron liable for deliberately dumping billions of gallons of toxic waste water into the Amazon. The dumping decimated indigenous groups and caused an outbreak of oil-related diseases, including cancer, that have killed or threatened to kill thousands of people, according to the evidence.

Ecuador’s appellate court unanimously affirmed the trial court judgment in January 2012. The Ecuadorians have since filed judgment enforcement actions against Chevron in three countries (Brazil, Canada, and Argentina) seeking to auction the company’s assets to obtain revenue to clean their ancestral lands. Chevron hopes to use any order it can get from Judge Kaplan to block foreign enforcement actions, but any such order will lack legitimacy because of the biased way the judge is managing the trial, said Gowen.

The legal team for the villagers who won the judgment against Chevron was targeted with death threats and robberies, according to documented evidence presented to the Inter-American Court of Justice.

A summary of the evidence relied on by the Ecuador court can be found here; a video overview of the case can be seen here; and a 60 Minutes segment on the contamination can be seen here.

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