11 May 2015 - FOR IMMEDIATE RELEASE
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New York, NY – Chevron's claim that an Ecuador trial court judgment against it was "ghostwritten" is unraveling, according to a confidential forensic report and a separate article documenting the bombshell new evidence published by the Huffington Post. The confidential report, by well-known computer forensics expert J. Christopher Racich, is available here.
The new Racich report undermines Chevron's defense to enforcement actions targeting billions of dollars of Chevron assets in foreign jurisdictions to force compliance with the $9.5 billion Ecuador judgment handed down in favor of indigenous and farming communities, according to lawyers for the Ecuadorians. It also undermines the main factual underpinning of a civil judgment by U.S. federal judge Lewis A. Kaplan finding that the 188-page Ecuador judgment was "ghostwritten" based on the highly suspect testimony of former Ecuadorian judge Alberto Guerra, an admitted crook who is under criminal investigation in Ecuador. Chevron also paid Guerra $2 million in cash and benefits for his testimony. (For background on Chevron's exorbitant payments to Guerra and another key witness, see here.)
The emergence of the Racich report also raises serious ethical questions for Chevron's lawyers at the company's main outside law firm of Gibson Dunn & Crutcher, as it suggests that they presented false testimony in U.S. federal court, said Karen Hinton, the U.S.-based spokesperson for the villagers and their counsel. Chevron already has been accused of trying to cyberbully a reporter who has written extensively about the Racich report.
"The forensic evidence clearly trumps the paid-for and fabricated witness testimony of Chevron's main witness, Alberto Guerra," said Hinton. "That might explain why Chevron's lawyers at Gibson Dunn prepped Guerra for 53 days before putting him on the stand." See this report by Hinton in the Huffington Post explaining how Guerra's story changed three times as new evidence made his prior claims implausible.
Mr. Racich examined the hard drives and Internet history of office computers of the trial judge in the Ecuador case to determine whether he indeed wrote the 188-page judgment. Racich found that the judgment was written painstakingly on those computers over a period of four months, directly contradicting the testimony of Chevron witness Guerra that the judgment was given to the trial judge on a flash drive just before it was issued.
The new report was commissioned by Ecuador's government for use in a private arbitration proceeding where the oil giant is seeking a controversial taxpayer-funded bailout (by Ecuadorian citizens) of its pollution liability based on the U.S.-Ecuador Bilateral Investment Treaty. The affected villagers who won the judgment are not a party to that proceeding, which over the last five years has been conducted in secret with most of the documents confidential. The villagers and Ecuador's government say the arbitration panel has no real enforcement power and no legal basis to weigh in on a dispute purely between private parties. (For background, see this press release about a letter criticizing the arbitration by international jurist Jose Daniel Amado.)
Ironically, Chevron had insisted that the arbitration panel order that the forensic studies of the trial judge's two computers be conducted, thinking it would prove the ghostwriting claim. Instead, it destroyed the little that was left of Guerra's credibility, said Hinton. Chevron has refused to make public its forensic analysis of the trial judge's computers.
A copy of the Racich report was provided to the indigenous communities by an anonymous source and is available here in full. Ecuador's government is refusing to release the report publicly, claiming it is confidential under the rules of the arbitration proceeding. (See here for a letter to Ecuador's Attorney General by Steven Donziger, the longtime U.S. legal advisor to the affected villagers, requesting the official release of the Racich report.)
The Racich Report makes findings that appear to cripple Chevron's primary defense that the judgment was "ghostwritten" by lawyers for the plaintiffs. Among them:
- Increasing amounts of the trial court judgment were added to documents on the computers of the Ecuador trial judge between October 2010 and February 2011 and those documents were edited and saved hundreds of times. This corroborates the sworn testimony of the trial judge, Nicolas Zambrano, that he wrote the judgment in his office over a period of months.
- There is no evidence from the computers that any document was copied from a flash drive to create any part of the trial court judgment. This finding directly contradicts Guerra's testimony and the highly disputed findings of Judge Kaplan in Chevron's retaliatory racketeering case targeting Donziger, Ecuadorian lawyer Pablo Fajardo, and the named 47 named plaintiffs in the case.
- Chevron's expert from the firm Stroz Friedburg, Spencer Lynch, examined the same computers and presented no evidence suggesting that any part of the trial court judgment was received by Zambrano via email.
- There is no document on Guerra's computer that became the trial court judgment, directly undermining Guerra's sworn testimony that he edited the judgment on his computer at the behest of the plaintiffs just before it was issued by the judge.
According to the Racich analysis, the text and metadata of the documents on the judge's computers that contain the trial court judgment 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."
"Furthermore, there is no evidence in the metadata that the versions of the [judgement documents] were provided in any way by Mr. Guerra, Pablo Fajardo [the lead lawyer for the villagers], or anybody else," Racich concluded.
Ecuador's Supreme Court in 2013 unanimously affirmed the trial court judgment against Chevron, which was handed down after eight years of proceedings that created a 220,000-page record and included 105 technical evidentiary reports. (For a summary of the evidence relied on by the Ecuadorian courts, see here. For the Supreme Court decision, see here.) Lawyers for the affected communities, who now are pursuing Chevron assets in Canada and Brazil, claim the company fabricated the ghostwriting allegations to evade complying with the Ecuador court judgment.
Chevron had accepted jurisdiction in Ecuador in 2001 as a condition of moving the case out of U.S. federal court, where it was filed in 1993. At the time, Chevron filed 14 sworn affidavits praising the fairness of Ecuador's courts.
The Racich report also corroborates the sworn testimony of Donziger, the New York attorney who for years has been the main target of Chevron's avowed demonization campaign. Judge Kaplan had found after a non-jury trial that Donziger orchestrated the "ghostwriting" scheme, a charge the lawyer has repeatedly denied under oath. Donziger also has criticized Kaplan for having a pro-Chevron bias and for refusing to consider any of the extensive scientific evidence relied on by Ecuador's courts to find Chevron liable.
Donziger said he was highly disturbed by the implications of the Racich report and that he was contemplating taking legal action against Chevron for trying to frame him and his clients with false witness testimony.
"This is highly disturbing evidence to anybody who believes in the rule of law," he said. "The Racich investigation indicates there is a high likelihood that Chevron's lawyers falsified evidence to help their client evade paying for a court-ordered clean-up of extensive contamination of Ecuador's rainforest that has put the lives of thousands of vulnerable people at grave risk."
"Rather than comply with the rule of law, Chevron tried to attack the lawyers who held it accountable, including me and my family, as a way to wash its hands of its pollution problem in Ecuador," Donziger added. "And it did so by accusing me of orchestrating the ghostwriting of the trial court judgment, which is a total fabrication."
In another significant conclusion, Racich found that Chevron's own expert – the 32-year-old Lynch, considered a relative neophyte in the world of computer forensics -- shockingly left out the serial numbers of various flash drives that were connected to both Guerra's and Zambrano's computers that appeared to contain unrelated text or photos from other documents. Only two of the 56 documents on the flash drives were even related to the Lago Agrio case, and both concerned a court order of minor significance unrelated to the judgment.
Leaving out serial numbers from flash drives is highly unusual for a forensic expert and suggests that Lynch engaged in subterfuge to leave the door open just enough to allow Chevron to argue that Guerra's testimony might have been accurate, said Hinton. But there is no evidence that any version of the Ecuador trial court judgment was ever connected to Guerra's computer, contrary to Guerra's sworn testimony, according to Racich.
This is not the first time that Chevron's main outside law firm in the case, Gibson Dunn & Crutcher, has been accused of falsifying evidence. The High Court of England recently found the law firm falsified evidence in a separate where it tried to help its client (the government of the small African country of Djibouti) imprison a political opponent of the country's president.
(For background on the litigation, see this recent article from Rolling Stone, this article in Vanity Fair on Ecuadorian lawyer Pablo Fajardo, and this article by Donziger published by Law360 explaining the case against Chevron.)