By Adam Klasfeld, Courthouse News
1 December 2015
Under fire for its witness's backpedaling, Chevron has waved off an Ecuadorean judge's admissions of false testimony as minor slips of the tongue.
Ecuadorean judge Alberto Guerra has testified in two separate courts to help Chevron discredit a $9.5 billion environment judgment that the oil giant faces for its predecessor Texaco's drilling in the Amazon rainforest.
Roughly two years ago, Guerra took to the witness stand in a Manhattan federal courtroom and accused attorney Steven Donziger of bribing him with the promise of a $100,000 kickback to ghostwrite the multibillion-dollar judgment.
U.S. District Judge Lewis Kaplan later relied on this testimony among other evidence to rule that the Ecuadoreans obtained their award "by corrupt means," but questions about Guerra's credibility continue to dog Chevron on appeal.
Guerra concedes that he changed his story to improve his bargaining position with Chevron, which signed him onto its self-styled witness-protection program worth at least $360,000, immigration assistance and a car.
More detail about Guerra's deal with Chevron came to light when the judge testified for the company again earlier this year at an arbitration tribunal in Washington.
That testimony shows Chevron recently extended Guerra's contract for monthly payments of $12,000, plus benefits, until March 2016, with an option to renew the deal again at the end of the term. Chevron contends that it has been transparent about its relationship with Guerra, but it did not release the supplemental agreement by press time.
Guerra had in the meantime told the arbitration tribunal in closed-door proceedings about several errors he made in his New York testimony.
Once the tribunal released transcripts of its hearings, multiple news outlets picked apart the discrepancies, and Donziger's attorneys asked the Second Circuit to take note.
The federal appeals court has been deliberating for the last six months on whether to uphold Kaplan's decision, but Donziger says Guerra's admissions "exonerate" him and casts "grave doubt" on Kaplan's verdict.
Though Chevron has cast the motion as a "public relations stunt," its opposition brief concedes that Guerra changed details of his oral and written testimony.
Ted Olson, an attorney for Chevron with the firm Gibson, Dunn & Crutcher, wrote in a Nov. 18 brief that Guerra "misspoke" on at least two separate occasions, both on the witness stand and in a sworn document.
The first inconsistency involved what Guerra stood to make from the alleged bribery scheme.
When he testified in New York two years ago, Guerra said his colleague, Judge Nicolas Zambrano, promised to share a 20 percent cut of a $500,000 bribe with him. He told the arbitration tribunal, however, that this statement "wasn't true."
"I think that, as a gentleman, I should say the truth, and we did not discuss - I did not discuss 20 percent with Mr. Zambrano - but we did discuss that he would share with me from what he received," Guerra said, according to the transcripts.
The next day, under friendly questioning by a Chevron attorney, Guerra walked back that concession, insisting that he always had a tacit agreement to share that percentage with Zambrano.
Olson insists that "this minor clarification is inconsequential."
Guerra also signed written testimony that he helped secretly write the judgment against Chevron during his travel to the rainforest city of Lago Agrio in August 2010.
At the arbitration tribunal, Guerra acknowledged the chronology did not make sense here because Zambrano was not presiding over the Chevron case during this period.
"If I traveled during those dates, it wasn't for me to provide assistance to the Chevron case," he said.
Chevron insisted that Guerra "misspoke" here too - in writing.
"This immaterial clarification does not change the admitted fact that Guerra worked as Zambrano's secret ghostwriter and that, at some point, Guerra began traveling to Lago Agrio to work on orders for the Chevron case," Olson wrote in the brief.
Donziger's attorney Deepak Gupta scoffed at this language in a reply brief filed late Monday, which emphasizes that Guerra met with Chevron's lawyers 53 days before taking the witness stand.
"Although Chevron now euphemistically acknowledges that Guerra 'misspoke' during that testimony - about key details, such as how much money he was promised, and when he traveled to work on the case - Chevron's primary response appears to be that his lengthy history of admitted lies is not a new development because Guerra is a known liar," Gupta's reply brief states.
With Chevron arguing that it would be "procedurally improper" for the Second Circuit to consider evidence that has not been before a New York court, it remains unclear whether the changes in Guerra's testimony will affect the appeal of Kaplan's verdict.
The court of public opinion is in full swing, however, and Chevron used its brief to take a veiled swipe at the independent press reporting on Guerra's inconsistencies.
In his Nov. 5 brief , Donziger's attorney Gupta cited four articles by Courthouse News and Vice News reporting on arbitration tribunal transcripts.
Though the reports were attributed directly to the source documents, Chevron's opposition brief falsely describes them as "media articles [Donziger] himself generated."
Other news outlets including the Wall Street Journal and Democracy Now have since reported on Guerra's evolving testimony.
Donziger noted in an email that Chevron's characterization of this reporting fits "its demonization campaign against those who held it accountable for its toxic dumping in Ecuador."
"Rather than accept the undisputed fact that its star witness in the Ecuador case was paid huge sums of money by Chevron and then lied on the stand, company lawyers now attack reporters who expose this scandal," Donziger said. "We believe courts are far too intelligent to be taken in by a deceptive strategy designed to attack and intimidate lawyers and members of the media who challenge Chevron's fake narrative."
Gupta meanwhile said the Second Circuit could find this issue relevant to the thrust of Donziger's appeal: that enforcement courts are more suitable to weigh the evidence that Chevron pre-emptively brought to New York.
So far, the Ecuadoreans have sought to collect the judgment in Canada, Brazil and Argentina, but not the United States."If Chevron were equally confident in its version of the facts, then it too should welcome the opportunity to make its case in Canada, or any other country asked to enforce the judgment-without having a U.S. court attempting to put its thumb on the scale," Gupta's brief states.