ChevronToxico

Donziger: Chevron's $9.5 Billion Ecuador Liability a "Profound" Accomplishment for Indigenous Groups

Gowen Group Law Office
15 November 2013 - FOR IMMEDIATE RELEASE
Contact: Paul Paz y MiƱo: +1 510.281.9020 x302, paz@amazonwatch.org


New York, NY – The $9.51 billion environmental judgment against Chevron in Ecuador represents a "profound" historical accomplishment by indigenous groups and is based on valid scientific evidence that the oil company deliberately dumped billions of gallons of toxic waste into the rainforest, American lawyer Steven Donziger asserted in his proposed sworn written testimony turned over to Chevron this week.

The testimony comes on the heels of a major victory this week for the rainforest villagers, who had their judgment affirmed unanimously by Ecuador's highest court on Wednesday 20 years to the month that the lawsuit against Chevron was originally filed. The original trial judgment in Ecuador came down in February 2011; an intermediate appellate court affirmed it in January 2012.

While Ecuador's Supreme Court affirmed the liability portion of the judgment, it halved Chevron's damages by knocking out a punitive penalty imposed after a trial court finding that the oil giant's lawyers had threatened judges and were litigating in bad faith.

Donziger's witness testimony is required by local rules set by federal judge Lewis A. Kaplan. Kaplan, who is presiding over Chevron's retaliatory RICO case against Donziger and his clients in Ecuador, can still strike portions of the written testimony depending on whether Chevron lodges any objections. Donziger is expected to testify live based on the written testimony sometime Monday.

Donziger turned over the document to Chevron Thursday evening to allow the oil giant's team of lawyers to prepare for what is expected to be a major cross-examination showdown in week six of the trial, which is in the process of winding down. Kaplan already has told the parties to prepare post-trial briefs.

"This written testimony explains how Chevron's RICO case is factually and legally flawed and amounts to nothing more than a show trial. Chevron has offered no evidence that would justify finding the lawsuit or the judgment is fraudulent and certainly nothing that would justify denying justice to the Ecuadorians who continue to suffer from contamination," said Christopher Gowen, a lawyer and spokesman for Donziger.

"Steven Donziger is a human rights lawyer who for three years has put up with one of the most vicious and well-funded corporate retaliation campaigns ever," said Gowen. "His written testimony discredits almost all of Chevron's RICO case and shows what a courageous man he is to take on one of the world's worst corporate polluters and help hold it accountable."

Highlights of Donziger's written testimony:

  • The Ecuador judgment is "valid" based on overwhelming scientific evidence that Chevron "deliberately discharged billions of gallons of toxic waste into Ecuador's rainforest" resulting in "grave harm and even death to thousands of innocent people." (# 7)
  • As late as April of 2012, a high-level Chevron executive approached representatives of the rainforest communities to initiate settlement discussions. The contacts did not continue after the villagers filed legal enforcement actions to seize billions of dollars of Chevron assets in Canada and Brazil. (#19)
  • An environmental consultancy in the U.S., the Louis Berger Group (LBG), has independently reviewed the evidence before the Ecuador court and concluded there is ample support for the findings of liability and damages against Chevron. It also concluded Chevron's own evidence before the Ecuador court supports a finding of liability against the company. LBG's report, commissioned by the government of Ecuador, has been turned over to an arbitration panel hearing a related dispute over the pollution. Donziger is submitting it as evidence in the RICO trial to help prove the judgment was not obtained by fraud. (#48, 59)
  • Donziger said the preparation of the expert report of Dr. Richard Cabera was "fundamentally consistent with Ecuador law, custom, and practice as it was occurring" in the case against Chevron. While Chevron tries to focus attention on the report, Donziger said it is irrelevant given that the Ecuador court excluded it. He also said there was some confusion surrounding the preparation of the report but that the science underlying it remains valid and that excluding it as evidence amounted to a "draconian" sanction against the rainforest communities. It is Donziger's most detailed comment yet on that issue. (#91 thru 106)
  • Donziger also described how Chevron's own lawyers publicly called many of the oil company's own court-appointed experts "independent" even though they paid 100% of their fees and worked closely with them, just as lawyers for the plaintiffs did when referring to Dr. Cabrera. Chevron has claimed Donziger was trying to mislead the public when he called Cabrera "independent" but Donziger says the term, based on what he knows today, is accurate. (#79 thru 90)
  • Donziger suggested that lawyers on the plaintiff's team made some minor errors typical in a contentious and long-running litigation, but that those errors paled in comparison to the deeply corrupt acts engaged in by Chevron to sabotage the trial. Whatever errors were committed did not come close to amounting to fraud, as found by Ecuador's courts, Gowen said. Although Judge Kaplan has tried to exclude evidence of Chevron's corruption, Donziger is trying to bring it in as evidence of his state of mind.
  • Donziger again made it clear – as he did in a sworn declaration submitted to Kaplan's court last March – that he did not bribe a judge in Ecuador and that Chevron's star witness who so alleges, Alberto Guerra, is corrupt and a liar. Donziger said Guerra's testimony is a "massive lie" at the core of Chevron's case. A motion to strike Guerra's testimony is pending before the court.

"The entire RICO case was constructed so Chevron could have a fall guy to distract attention from its own wrongdoing," said Gowen. Chevron's efforts are "abusive in the extreme" and would not be happening but for the promotion of the RICO case by Judge Kaplan, who has been accused of bias by the defendants and already was reversed once by an appellate court in an earlier phase of the matter.

Chevron dropped all damages claims against Donziger just before the RICO trial was set to begin, ensuring Kaplan would decide the case without a jury. Donziger attacked the move as a last-minute "jiu-jitsu" by the oil giant to avoid losing the case.

Chevron had initially sued Donziger for treble damages on the underlying $19 billion judgment plus costs, but is now only seeking an injunction barring Donziger and his clients from enforcing the judgment. However, an injunction similar to the one sought by Chevron already was deemed illegal by a U.S. appellate court in 2011, so it is unclear to observers whether Kaplan can fashion a legal remedy even if he finds in favor of Chevron, which he expected to do given his obvious bias, said Gowen.

Donziger, who has repeatedly said he cannot get a fair trial before Judge Kaplan, has sent two letters to the judge asking for better treatment. Donziger's previous counsel, John Keker, wrote in a motion last May that Kaplan demonstrated "implacable hostility" toward Donziger and that the case had degenerated into a "Dickensian farce."

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