By Adam Klasfeld, Courthouse News Service
31 March 2015
Though it's not trending on Twitter, the digital image presented by an Ecuadorean judge's hard drives has become the Amazon's answer to last month's viral phenomenon "the dress."
Unlike that Internet meme, however, only one perspective of the uncontested data can be right.
The forensic picture dividing analysts in this case comes from two computers Judge Nicholas Zambrano used before signing his name to a $9.2 billion verdict for Ecuadoreans living in the oil-ravaged rainforests.
Having convinced a New York court that the judgment was ghostwritten, Chevron hopes Zambrano's hard drives will persuade an arbitration tribunal in The Hague that the Ecuadorean government supported a fraud against it.
Ecuador told the panel in a confidential brief exclusively obtained last month by Courthouse News that its forensic expert, Christopher Racich, debunked Chevron's ghostwriting claims by examining an apparent draft of the judgment on Zambrano's computer.
Vestigant founder Racich said the judgment against Chevron appears in a Microsoft Word file "Providencias.docx." This file was saved and edited "hundreds of times" on Zambrano's computer from the date that he returned to the case through the issuance of the judgment, the expert added.
Reacting to the unauthorized leak of this information, the tribunal has since allowed both parties to reveal their description of the expert's findings, but not the reports themselves.
This development brought new revelations on the Racich report and gave voice to the analysis of Spencer Lynch, Chevron's London-based expert from Stroz Friedberg.
"While Ecuador's and [Chevron's] forensics experts agree as to the forensic information contained on Zambrano's computer hard drives, they disagree about the conclusions to be drawn from that information," Chevron's reply brief, by attorney Doak Bishop of King & Spalding in Houston, states.
Some hard numbers from Ecuador's latest brief include the finding that the Providencias file on Zambrano's computer went through at least 286 revisions between Oct. 11 and Dec. 21, 2010; another 29 revisions between Dec. 21 and Dec. 28, 2010; and at least 124 more revisions from that time until March 4, 2011.
Though Chevron pointed out that the judgment against it was filed on Feb. 14, 2011, Ecuador says this position would "either miss or ignore" the fact that the clarification order to the judgment also was written on the Providencias document and issued on the end date of the edits.
The text of the final judgment increased in the Providencias file throughout the editing period.
Ecuador's lawyers seized upon the failure by either expert to show that the plaintiffs transferred the judgment, or any portion of it, through a USB drive or email.
"Turning on the lights in [Chevrons'] haunted house revealed that ghostwriters were simply a figment of their imagination," a new brief by Ecuador's attorney general says.
But Chevron's most recent brief casts this conclusion as a "blinkered view."
For one, the experts never found a document with "only" the judgment "as-issued," the oil giant says.
Ecuador considers this hair-splitting because saving the clarification order in Providencias overwrote the file containing the final judgment.
Another file created on Zambrano's computer, "Caso Texaco," also contains portions of the verdict against Chevron with his other court rulings from the case.
Much of Chevron's position relies upon the New York testimony of another Ecuadorean judge, Alberto Guerra, who alleged that New York-based attorney Steven Donziger offered him $500,000 to ghostwrite the final judgment.
Guerra also claimed that Donziger's colleague Pablo Fajardo, who headed the Ecuadorean legal team's trial arguments, authored most of it.
Chevron has acknowledged paying Guerra at least $326,000 and providing him an immigration attorney, a car and other perks of its self-styled witness-relocation program.
Of the 31 flash drives ever connected to Zambrano's computers "before, during and after" his tenure in the Chevron case, nine drives were also once connected Guerra's computer, according to Chevron's brief.
The brief does not specify how many, if any, of these nine connections occurred during Zambrano's second tenure in the Chevron case specifically.
Chevron conceded that the contents of the Word files in the flash drives "are not known," but said generic file names like "KKKK.doc" and "Documento 1.doc" "may have contained judgment text," which were "likely" cut-and-pasted onto the judgment.
Ecuador's lawyers derided this theory as layering guesswork upon supposition.
"[Chevron's] arguments are not reinforcing; they are instead circular - with each argument relying on some other, unsupported assertion to give it meaning," their brief states.
Ecuador also said that the forensic evidence discredits a key element of Guerra's testimony.
Guerra's witness statement from the New York trial states that Zambrano gave him a draft judgment to edit "approximately two weeks before the trial court in the Chevron case issued the judgment," sometime in early 2011.
Fajardo and his colleagues supposedly tweaked the judgment "up to the very last minute," Guerra claimed.
Yet Ecuador's expert found: "No flash drives were connected to Judge Zambrano's computer in the two weeks leading up to the judgment's issuance."
Zambrano's computers also do not show communications with the plaintiffs, Ecuador said.
As for Guerra's computer, forensic analysis never uncovered a draft or part of the judgment there, nor any communications between him and Zambrano or the plaintiffs, according to Ecuador's brief.
Chevron said the forensics undermine Zambrano's New York testimony that his assistant typed the judgment on his "new computer," rather than on his old one.
Since Zambrano gave this testimony two years after the judgment, however, "he either misremembered, or was confused, or both," Ecuador's lawyers countered.
While Chevron wants the forensic data viewed in light of the "wider evidentiary record," Ecuador said having experts base their conclusions through "non-forensic" evidence "for which they have no special expertise" turns forensic analysis on its head.
Borrowing from Benjamin Franklin's famous quip about death and taxes, Ecuador said that the Chevron case adds a "third certainty: [Chevron's lawyers] will begin their analysis, at every turn, with a predetermined conclusion and then consider every piece of evidence through that prism. Only by doing so can they label conjecture 'fact' while sweeping away inconvenient evidence."
This star-spangled humor in Ecuador's brief may reflect the influence of the country's Washington-based lawyers at Winston & Strawn LLP.
On April 20, the Hague-based arbitration tribunal will travel to Washington for a hearing, where the parties will argue their views on the forensic evidence in secret.
The arbitration's hearings take place without any press or public access, and the panel's final decision cannot be appealed.
To its critics, the tribunal's structure makes it largely opaque and unaccountable, and Ecuador has contested its jurisdiction by arguing that the tribunal cannot act as the "supra-national appellate court" of its judiciary.
That same day it convenes, counsel for Donziger and his Ecuadorean clients appearing before the 2nd Circuit will likely argue that a New York trial judge had no authority to second-guess an Amazon court's decision. Donziger's lawyer has asked for judicial notice to the newly public information about Zambrano's hard drives.