Thursday, July 31, 2014

Conflict of Interest: Businessweek's Paul Barrett Now an Advocate for Chevron in Ecuador Dispute

Reposted from The Chevron Pit

With his track record of bias in favor of Chevron already part of the historical record, Businessweek's Paul Barrett appears to have become a full-blown public advocate for the oil giant in its legal dispute with Ecuadorian villagers over the massive contamination of their ancestral lands.

Just this week, Barrett testified about his take on the litigation before the House of Representatives in a hearing that was arranged in part by Chevron lobbyists. He appeared at the side of a lawyer from the oil giant's controversial outside law firm, Gibson Dunn & Crutcher. And he repeated the usual Chevron talking points about the Ecuador case that have been rejected by three layers of courts in Ecuador, including that nation's highest court in a unanimous opinion last November.

Barrett's testimony in favor of Chevron – completely improper for any independent journalist – follows multiple reports that Chevron is quietly helping to promote his forthcoming book about the case, Law of the Jungle. We can't say we are surprised after reviewing an advance copy from a source who indicated Barrett is trying to flog it in Hollywood.

The effort by Barrett to cash in on the misery of Ecuadorian villagers by promoting Chevron's campaign to evade accountability is hardly surprising. His book falls far short of fact-based responsible journalism. Barrett adopts wholesale most of Chevron's fraudulent plot points and ignores the overwhelming scientific evidence – most provided by the oil company itself during an eight-year trial in the court of its choosing in Ecuador – that was relied on to determine liability for the dumping of billions of gallons of toxic waste into the rainforest.

(For background on the overwhelming evidence against Chevron relied on by the Ecuador courts, see this document; for an explanation of Chevron's human rights abuses in Ecuador, see this video; for how Chevron deliberately discharged toxic waste, see this 60 Minutes segment; for a letter signed by 43 civil advocacy groups criticizing Chevron over Ecuador, see here.)

Barrett's obsession with (and personal animus toward) Steven Donziger, the main U.S. legal advisor to the villagers and the principal target of Chevron's demonization campaign, drips off the cover jacket and permeates almost every chapter.

Law of the Jungle suffers from some of the same egregious flaws often found in Barrett's reporting on the Ecuador litigation: sloppy or non-existent research resulting in numerous factual errors; cribbing material from other journalists and court filings; creating fictional scenes that never happened; and demonstrating a shocking disregard of the extensive scientific evidence that contradicts Chevron's self-serving narrative.

The book reads like a novelist's re-purposing of Judge Lewis A. Kaplan's deeply flawed 487-page RICO decision, which is currently hanging on life support during the appellate process. Barrett's book is as much an affront to serious journalism as Kaplan's decision is to serious legal reasoning.

A more comprehensive critique of Barrett's book is forthcoming. Here is a preview of some of its flagrant flaws:

  • Barrett did almost no independent reporting. He let Chevron's lawyers do almost all of his work for him, effectively letting the oil giant subsidize his so-called "independent" research. Most of the book re-writes Chevron's court filings and adopts almost wholesale the oil giant's narrative that it was "victimized" by the very indigenous groups that held it accountable.
  • Barrett spent almost no time reporting on conditions in Ecuador. He never interviewed a single member of the legal team for the villagers. He does not quote any current Ecuadorian government officials. He never attended even a day of the eight-year trial that resulted in a judgment against Chevron. According to his source notes, Barrett never read the 220,000-page Ecuador trial record. Barrett also spent no more than a few days reporting from Ecuador, the epicenter of the two-decade legal dispute and the place Chevron's predecessor company Texaco operated for decades. The book epitomizes secondhand armchair journalism.

  • Barrett's book reads as though the Ecuadorian people do not exist. Consistent with Chevron's imperialist and arrogant behavior in Ecuador, there is virtually no mention by Barrett of a single Ecuadorian other than Cofan indigenous leader Ermegildo Criollo, with whom he spent a few hours. In Barrett's eyes, the people who matter most are Americans like Donziger, Judge Kaplan, and the activists at Amazon Watch. He scarcely mentions lead Ecuadorian attorney Pablo Fajardo (who won the CNN Hero Award for his work on the case) and he ignores Luis Yanza (winner of the prestigious Goldman Environmental Prize). Yanza has been the lead community advocate on the case for over two decades. Almost none of the thousands of affected villagers were even interviewed.
  • Barrett misleads the reader about his sources. In a shocking display of poor journalistic ethics, Barrett repeatedly misleads the reader by cribbing material without citation from journalists who did firsthand reporting. One example: Barrett frequently describes scenes from the award-winning documentary film Crude without mentioning in the text that his source is the film. By so doing, Barrett leaves the reader with the false impression he was reporting firsthand from events that happened years ago and where he was not present. (Some of these suspect narrative techniques seem oddly similar to what got James Frey in trouble in his supposedly non-fiction memoir, A Million Little Pieces.)
  • Barrett fictionalizes events and leaves the false impression he interviewed Donziger. Barrett asked Donziger repeatedly for interviews for the book but Donziger refused to cooperate, acting on advice of counsel and for other reasons related to Barrett's lack of scruples. So Barrett now pretends that Donziger cooperated with him anyway. Barrett quotes Donziger from private notes turned over in discovery and relays what he thinks is on Donziger's mind, leaving the reader with the false impression that he interviewed Donziger for the book or had some special access to his private thoughts. Barrett also creates fictional scenes involving Donziger – including one where the lawyer supposedly was trailed by Chevron undercover operatives while riding his bike in Manhattan, which did not happen.
  • To create his fictionalized story, Barrett ignores key evidence. Consistent with Chevron's self-serving version of events, Barrett completely ignores or distorts key scientific evidence to try to claim that the Ecuadorians could not prove their case. This narrative is contradicted by Chevron's own evidence submitted to the Ecuador court; by three layers of court decisions in Ecuador; and by the recent analysis but a prominent group of U.S. scientific consultants, the Louis Berger Group. He also ignores persuasive evidence that Chevron tried to cheat during the trial to hide evidence of its own contamination. He ignores the fact that more than 35 scientists – including those hired by both litigants and third parties – have confirmed the oil giant's pollution.
  • The book is skewed by Barrett's obvious personal animus toward Donziger. Consistent with Chevron's strategy to "demonize" Donziger, Barrett subjects the main U.S. legal advisor for the villagers to a host of juvenile epithets. Barrett calls Donziger a "loudmouthed gatecrasher," "master showman," and describes him as a lawyer "who'd stop at nothing" to win. He then ignores Donziger's own narrative about what took place in Ecuador by failing to even mention (much less cite) the attorney's comprehensive 130-page appellate brief that exposes a good number of Chevron's lies, misdeeds, and unethical litigation practices. Barrett also ignores Donziger's own lawsuit against Chevron, which comprehensively documents the company's deceit in U.S. courts and its plethora of criminal and unethical acts in Ecuador.

Perhaps more disturbingly, we have numerous emails from the last two years or so that show Barrett becoming unhinged over Donziger's refusal to cooperate with his book. Many people also witnessed a bizarre incident in open court recently where Barrett lost his cool and blew up at Donziger's lawyers. At times, Barrett made explicit threats to those working for the Ecuadorians that he planned to use his book to "take down" Donziger. He warned other lawyers they should stop working with the New York attorney or they would risk damaging their careers.

We have long suggested that Businessweek editor Josh Tyrangiel has let Barrett get away with this unprofessional behavior for far too long. While Barrett was writing a book that is little more than a continuation of Chevron's hit job on Donziger, he also was reporting "independently" for Businessweek on Donziger's role in the litigation. That's a blatant conflict of interest. Businessweek continues to let Barrett use its web platform to promote the themes of his flawed book and to make snarky attacks against Donziger.

All of this might explain why Chevron's public relations flaks are pushing Barrett's book and arranging for his congressional testimony. Granted, it's only a small part of the company's gargantuan public relations campaign to distract attention from its ecological calamity in the Amazon. But we have seen how Chevron has convinced other formerly reputable advocates, such as human rights academic Douglas Cassel, to take up arms for a corporate polluter in exchange for money. Cassel has so damaged his reputation that his faculty colleagues at Notre Dame ordered his diatribes about the Ecuador case removed from the law school's official website.

Barrett is the latest bit player to try to boost his profile and make a buck off of Chevron's billion-dollar retaliation campaign against the Ecuadorian villagers. The company's strategy to "demonize" Donziger – outlined explicitly in internal Chevron emails dating back five years – is now a cottage industry that includes no fewer than 60 outside law firms, 2,000 legal personnel, ten investigations firms, at least six public relations firms, and now Barrett. It has to be the most robustly financed corporate retaliation campaign in history.

While Barrett hustles his book, the indigenous people of Ecuador continue to suffer. This is partly because a compromised American "journalist" has now made it a little bit easier for Chevron's management team to evade its court-mandated responsibilities to the people it harmed.

Businessweek's readers and the public deserve better.

So do the affected communities in Ecuador.

Thursday, July 24, 2014

False Testimony Forced Chevron to "Prep" Its Million-Dollar Witness for 50 Days in Ecuador Case

By Karen Hinton | Reposted from the The Huffington Post

Just when you thought the long-running and bitter Chevron/Ecuador legal battle could not get any more bizarre, it does.

Legal briefs recently filed in a U.S. court revealed that for 50 days Chevron lawyers prepped their million-dollar star witness about a bribe alleged in the oil giant's retaliatory RICO lawsuit against a group of Ecuadorian indigenous peoples and their U.S. lawyer. (See page 61 of this legal brief.)

It took Chevron that long to try and get Alberto Guerra's story straight.

Turns out even that attempt failed, as appellate briefs filed by the Ecuadorians and their attorney, Steven Donziger, make clear.

Guerra is a former Ecuador judge who got kicked off his country's legal bench in 2009.

Under oath, Guerra admitted to taking up to 40 bribes (See page 2.) in other, unrelated cases.

Guerra also admitted, under oath, that his original testimony to Chevron was "not true" about the alleged bribe of the Ecuador trial judge, Nicolas Zambrano, who ruled against Chevron in 2011, awarding the Ecuadorians $9.5 billion for oil contamination damages in the Amazon rainforest.

By the time Chevron had finished with him, he had changed his testimony three times, and the changes were not minor. (See pages 55-57.)

Story No. 1: Guerra alleged the Ecuadorians' attorneys "ghostwrote" the Zambrano judgment and hired Guerra to edit it, which he said he did on his home computer. But when Chevron couldn't find the judgment on his computer, Guerra recanted.

Story No. 2: Actually, Guerra said, the verdict was on a flash drive that Zambrano gave him at the Quito airport. But when Chevron couldn't find the judgment on any flash drives, Guerra changed his story yet again.

Story No. 3: Actually, Guerra said, he traveled to the jungle on a bus and edited the judgment there on a laptop owned by one of the Ecuadorian attorneys.

As each story unraveled and evolved, Chevron agreed to pay Guerra more money for testimony the company desperately needed for its RICO trial to "prove" Guerra's claim that lawyers for the villagers sought to bribe Zambrano with a $500,000 payment for their $9.5 billion judgment.

Last count, Chevron had committed to paying Guerra at least $1 million (See page 160.) for his testimony, with another million likely to come if one counts the cash and benefits going forward.

Under oath, Guerra admitted he "exaggerated" the evidence to jack up the money or, in his words, "for the purpose of bettering or improving my (financial) position" with Chevron. (See pages 55-57.)

Based largely on this tainted testimony – fraught with hearsay problems described below – U.S. Federal Judge Lewis Kaplan ruled that the Ecuador judgment was fraudulent; that Ecuador's entire court system is corrupt through and through, and the Ecuadorians and their attorneys are prohibited from collecting the damage award ever in any country in the world.

Why Kaplan thinks he can block collection of an Ecuador judgment as well as sit in judgment of another country's judiciary is too complex a story for this post. (You can read more here and here about Kaplan's bias and his flawed findings.)

Let's just say no U.S. judge that we know of other than Kaplan ever has tried to do such a thing. And the last time Kaplan did it – in this very case, without as much as an evidentiary hearing --- the 2nd Circuit Court of Appeals in New York unanimously reversed him one day after oral argument. The Ecuadorians and Donziger have appealed once again.

But Kaplan's decision to allow these payments – what Kaplan himself called a "private witness protection program" – was central to proving Chevron's case.

The huge sums Chevron is paying Guerra go way beyond "reasonable" compensation, as allowed by New York law, according to this affidavit written and filed pro-bono by a leading legal ethics expert at the University of California/Irvine School of Law.

Prior to the RICO trial, the Ecuadorians and Donziger filed a motion to have Guerra's testimony struck.

The motion, which Kaplan denied, began to lay out how Guerra's testimony evolved as Chevron paid him ever-increasing sums to change his story as his previous versions became discredited. The appellate brief nailed it.

  • Guerra swore he had emails proving the Ecuadorians' lawyers wrote the judgment and agreed to pay Zambrano $500,000. Guerra gave Chevron's world-class computer forensics team full access to all his computers, flash drives, and online accounts - yet they could never find the promised emails. Indeed, while Chevron obtained virtually every email and document ever written and received by Donziger in the litigation, Chevron never produced any correspondence between Guerra and Donziger or anyone else on the Ecuadorian legal team, regarding the writing of a judgment or a bribe.
  • Guerra claimed the Ecuadorians' attorney Pablo Fajardo gave him a so-called "memory aid" document allegedly to help him write the judgment. Guerra first said Fajardo emailed this document to him. Chevron asked for the email, but Guerra suddenly had email problems and couldn't produce it. Later, he changed his story: Fajardo, he said, had given it to him in person. Guerra never found the document, later claiming it had been "stuck" to another document, but Chevron paid him $10,000 for it just the same.

  • Guerra claimed that the Ecuadorians' lawyers offered him $300,000 to keep the bribe a secret. Later he admitted under oath that this story was "not true" and "exaggerated" to convince Chevron to pay him more money.
  • Guerra also claimed he met with Donziger in Quito in late 2009 to finalize their deal. Immigration records actually produced by Chevron for other reasons showed that Donziger was not in Ecuador during this time. Donziger was with a family member suffering from a terminal illness.
  • And, if that wasn't enough to discredit his testimony, Guerra failed to identify Donziger in the courtroom when he was on the stand, mistakenly pointing to one of Donziger's attorneys.

The only evidence Guerra produced was largely third-party, hearsay evidence. For example, a deposit slip that purported to prove the Ecuadorians' lawyers deposited money into Guerra's bank account was not an original, only a supposed copy that Guerra said he obtained from the bank. Chevron and its legions of lawyers and investigators never attempted to obtain the original or a copy or confirm the authenticity of the deposit slip from the bank, even though they have looked under every rock possible in this case.

Guerra also kept a daily planner – he had for years, if not decades. Yet when it came time to produce the planners to Chevron, he claimed he "lost" the volumes for 2009 and 2010, the two critical years, which would have corroborated his testimony. But he was more than happy to provide later years, after the judgment was issued and during the time when he would have been plotting on how to sell his testimony to Chevron for the highest dollar.

It would be easy to write that Guerra played Chevron for money, but Chevron knew better.

Company lawyers in Quito already had experienced firsthand Guerra's willingness to sell his services. In 2009, after being kicked off the Ecuador court, Guerra told Chevron lawyers he could, for $1 million, arrange for Zambrano to write a favorable judgment. Curiously, the lawyers met and spoke with Guerra several times but took no action, other than to prepare affidavits detailing the conversations.

More curious is the fact that Chevron never exposed the Guerra bribery offer to the oil giant until a few months before the RICO trial four years later, even though the company was lobbying the U.S. Congress furiously in 2009, accusing the Ecuador judiciary of corruption. And in 2011, when Zambrano was preparing the judgment, Chevron said nothing about Guerra's claim that he could turn Zambrano.

During the RICO trial, Guerra testified that Miami-based Chevron lawyer Andres Rivero offered Zambrano $1 million if he would back up Guerra's bribery allegations against the Ecuadorians' lawyers, but Zambrano refused and later took the stand in Kaplan's court, denying all of Guerra's bribery charges, even though he was under no legal obligation to do so.

When Guerra handed over a few of his documents to Rivero and an investigator from Kroll, Rivero recorded their conversation, later obtained through discovery. What follows is only some of what was said: (See page 54.)

GUERRA: "[A]ctually, actually ... I have some attachment to that (the documents), right? All the information I have there.

CHEVRON LAWYER ANDRÉS RIVERO: That can be fixed.

[CHEVRON] KROLL INVESTIGATOR 5: You will become more attached to what you can buy with the money we pay you. [LAUGHS]

RIVERO: Yes, sure, true, true.

GUERRA: It helps, but, but it's so little.

KROLL INVESTIGATOR 5: "[W]e'll make a deal on the way to your house. This is what we have in cash. Between now and afternoon's end we'll have managed to have a little more. How much is it?

RIVERO: How much? Not when. I said how much. [LAUGHS]

GUERRA: Make it fifty thousand.

At one point, Guerra said his story was "worth a million dollars." (Guerra clearly likes the sound of a million dollars.)

And, presto, that is what he has been paid in cash, monthly payments, services and benefits as described in a two-year contract with Chevron that leaves open the option of renewing it for a longer period of time. In fact, the total could easily top $2 million as the legal battle plays out: (See page 33.)

In addition to payments, Chevron also granted Guerra and his extended family the golden pot at the end of the rainbow: a free pass to America. Chevron obtained U.S. visas for Guerra, his family and his son's family in Ecuador and is paying for all of his family's immigration legal bills.

Chevron also reunited Guerra with a second son, who was living in the U.S. illegally with his family. Chevron is now paying for this son and his family's immigration attorney, a benefit not disclosed initially.

In its contract with Guerra, Chevron said "[n]o payment is contingent on the content of Guerra's statements or testimony" but this thinly-veiled inducement of favorable testimony makes a mockery of our justice system.

It should be noted that the U.S. judge who declared Ecuador's courts corrupt – Lewis Kaplan – allowed Chevron to pay Guerra $1 million plus for the testimony it needed to win in his courtroom in a "trial," where Kaplan denied the Ecuadorians and Donziger a jury at the last minute so he could rule alone.

Today Chevron argues Guerra is no longer safe in Ecuador, but the only thing Guerra has to fear in his home country is being arrested for admitting on the stand in a U.S. court he took up to 40 bribes when he was an Ecuadorian judge.

Instead, he and his family will enjoy a new life, financed by Chevron in the latest tortured and unjust attempt by the company to evade accountability for its environmental disaster in the Amazon rainforest as confirmed by three layers of courts in Ecuador.

Wednesday, July 16, 2014

EarthRights International and Amazon Watch File Amicus Briefs in Chevron Appeal

Reposted from EarthRights International

The latest chapter in the seemingly endless Chevron/Ecuador litigation began last week with attorney Steven Donziger and his Ecuadorian clients submitting separate appellate briefs to the Second Circuit arguing that the district court's decision in favor of Chevron – ruling that Donziger and the Ecuadorians had obtained an Ecuadorian court judgment against Chevron by fraud – should be reversed. A number of interesting amicus curiae ("friend of the court") briefs on specific legal issues were also filed this week in support of Donziger and the Ecuadorians, including briefs from EarthRights International (ERI), the Republic of Ecuador, and Amazon Watch with a number of other prominent NGOs.

The Chevron/Ecuador legal saga dates back more than 20 years to when the Ecuadorians first filed suit against Chevron (then Texaco) in federal court in New York for the environmental devastation caused by the company's operations in the Ecuadorian Amazon. But Chevron argued that the case should be heard in Ecuador due to the doctrine of forum non conveniens ("inconvenient forum"), which allows U.S. courts to dismiss a case when there is another country that provides an adequate alternative forum that is more convenient to hear the case. The court in New York accepted Chevron's arguments that Ecuador's courts were more than capable of resolving the litigation fairly and adequately and dismissed the case on the condition that Chevron abide by any subsequent judgment of the Ecuadorian courts. The Ecuadorian plaintiffs eventually mustered the resources to refile the case in Ecuador and in 2011 won a historic $9.5 billion judgment against the oil company that has since been confirmed by two higher courts.

Rather than pay up, however, Chevron retaliated by filing suit against the Ecuadorian plaintiffs and their counsel in New York, arguing that the judgment had been obtained by fraud and racketeering. In a 180-degree reversal from its prior position, Chevron argued that the Ecuadorian judicial system – the same judicial system it had praised in getting the case dismissed – was so corrupt and subject to outside influence that no judgment rendered by its courts could be recognized as valid and enforceable by the United States. After a lengthy trial, in March 2014, Judge Kaplan issued a nearly 500-page decision in which he concluded, among other things, that he did not need to respect any rulings of Ecuador's courts, because he found the entire Ecuadorian judiciary was not impartial. Donziger and the Ecuadorians appealed.

ERI's amicus brief focuses on this particular aspect of the district court's decision, demonstrating why it was incorrect and must be overturned. Since Chevron had originally argued that the case should be tried in Ecuador, over the objections of the Ecuadorian plaintiffs, and had defended the adequacy of the Ecuadorian judicial system, it should not now be able to turn around and attack the adequacy of that same system in order to invalidate an unfavorable judgment. A litigant who chooses to give up the protections of the U.S. judicial system in order to litigate in another country must bear the risk that the other country's courts may not possess the same due process or impartiality, particularly when that party chose to litigate there over the warnings and objections of the plaintiffs who originally filed in U.S. court. ERI's brief shows that the district court's decision, if allowed to stand, would result in never-ending litigation and wasted resources, and destroy judicial efficiency.

Amazon Watch, joined by a number of other nonprofit advocacy organizations, also filed an amicus brief in support of the defendants emphasizing the broader implications of the decision on the rights of activists and advocacy organizations and the chilling effect on future speech and advocacy. By incorrectly classifying constitutionally protected speech and advocacy in support of the Ecuadorians as wrongful conduct, Judge Kaplan's decision poses a severe threat to the rights to expression, association, political participation, and access to courts guaranteed by the First Amendment.

An amicus brief was also filed by the Republic of Ecuador, which condemned the court's disrespect for the foreign sovereign and strongly defended the country's judicial system.

Together, defendants and amici show just how much is at stake in this case and present a number of convincing grounds for overturning the district court's decision. Chevron's appellate brief will be filed in the next few weeks and likely followed by other amicus briefs in support Chevron. Meanwhile, the Ecuadorians continue to suffer from the effects of the pollution and the end to their suffering and the conclusion of this saga appears little closer than it was 20 years ago.

Tuesday, July 15, 2014

Defending Our First Amendment Rights from Chevron

By Simon Billenness | Reposted from CSR Strategy Group

In an unprecedented legal move, 17 U.S.-based civil society organizations – among them Amnesty International, Amazon Watch, Rainforest Action Network, and Friends of the Earth – have just filed an amicus brief in federal appeals court defending their First Amendment rights from attack by Chevron.

Let me back this story up by about 18 months.

In November 2012, Chevron subpoenaed me.

The subpoena server knocked on the front door of my home. He handed me the 60-page subpoena from Chevron's pitbull law firm, Gibson Dunn. I learned subsequently that my subpoena was one of several that Gibson Dunn served on not just non-profit advocacy organizations but also Chevron's own shareholders, including Trillium Asset Management.

This subpoena was in connection with the anti-racketeering – or RICO – lawsuit brought by Chevron against the Ecuadoran villagers and their lawyers who successfully won a $9.5 billion judgment against Chevron for its oil pollution in the Ecuadoran Amazon. Chevron contends that the judgment was fraudulently obtained. Chevron has also implied – falsely – that my advocacy work and that of Amazon Watch, Rainforest Action Network, and Trillium Asset Management – on this issue is part of this supposed fraud.

In my subpoena, Gibson Dunn demanded all of my documents and all of my emails concerning my shareholder advocacy work at Chevron. What was demanded of me was every detail of my communication with not only Chevron shareholders but also the press and government agencies, including the Securities and Exchange Commission (SEC).

In essence, Chevron demanded extensive and intimate information on my First Amendment-protected rights to speak out regarding oil pollution in Ecuadoran communities as well as my efforts to organize Chevron shareholders and petition US government agencies.

Clearly Chevron did this to me, Amazon Watch, and Rainforest Action Network to harass and intimidate us for advocating for the people of Ecuadoran Amazon affected by the company's oil pollution.

Once I secured the services of EarthRights International as my pro-bono lawyer, I spoke out against Chevron's retaliatory legal tactics to the press and my fellow shareholders. I went public deliberately to demonstrate to Chevron that I refused to be intimidated by them. That quickly led to articles in the New York Times and also Grist, who even published my entire subpoena.

I was determined to make Chevron's attempt to intimidate me backfire on the company. I reckon that I succeeded. The press articles exposed Chevron's bullying tactics. Moreover, one month after serving the subpoenas, shareholders of Chevron filed resolutions at the company on its liability in Ecuador in greater numbers than ever before.

Chevron gained little to no information of value from its subpoenas. Amazon Watch and Rainforest Action Network had their subpoenas quashed. Thanks to the dogged work of my fine lawyers at EarthRights International, I have not to date been compelled to hand over any information to Chevron.

Nevertheless, the U.S. federal court judge Lewis Kaplan ruled in Chevron's favor. Both the Ecuadoran villagers and their lawyers have filed in U.S. federal appeals court to have Judge Kaplan's ruling overturned.

With their amicus brief, the 17 NGOs outline the case in stark terms. In the amicus brief, the NGO's state:

Amici Curiae ("Amici") are organizations dedicated to advancing environmental protection, human rights, corporate accountability, and economic justice. Amici regularly engage in First Amendment-protected activities similar to those that the district court found to be predicate acts under RICO. Amici bring, participate in, and support strategic litigation intended to help achieve important societal goals In conjunction with such litigation they seek to educate the public and to influence public opinion and government and corporate behavior through public relations campaigns, websites and blogs, press releases about ongoing litigation, corporate shareholder resolutions, public demonstrations, and letter-writing campaigns to government or corporate officials. If the district court’s finding of a RICO violation based on just such activities is upheld, Amici’s exercise of their First Amendment rights of free speech, association, and petitioning government will be severely chilled by the very real possibility that they will have to mount costly defenses to retaliatory litigation brought by deep-pocketed corporate defendants.

...

Under the regime augured by this case, other Amici may expect similar consequences as they pursue their organizational missions through constitutionally protected activities. Amici are also threatened by overreaching issuance of subpoenas that seek to compel those organizations to turn over internal planning and strategy documents and the identities of their supporters, thus exposing their supporters to further risks.

This is a critical case for advocates of all kinds. If corporations, such as Chevron, succeed in branding First Amendment activities of advocacy organizations as a conspiracy, then corporations will have secured another powerful cudgel with which to threaten and intimidate those who organize to seek redress for corporate abuses of human rights.

Tuesday, July 1, 2014

How Chevron Cheated Ecuador's Courts from Hearing Evidence of Its Contamination

Reposted from The Chevron Pit

Remember the names Sarah McMillan, John Conner, and Bjorn Borkman.

They are Chevron scientific consultants who tried to defraud Ecuador's courts with trickery and flat-out lies. Their dishonest work likely will be viewed with great interest in foreign courts that are looking to seize Chevron assets to pay for the company's liability in Ecuador.

We practically fell off our chair when we read the details of this group's subterfuge in a recent court filing (see pp. 33-85 of this legal brief). Chevron is certainly creative when it comes to cheating.

None of this should come as a surprise.

We recently reported that a new study by a prominent U.S. scientific consultancy (the Louis Berger Group) yet again confirms that Chevron is responsible for discharging billions of gallons of toxic "water of formation" into the streams and rivers of the rainforest in order to artificially inflate its profits. The consultancy also confirmed the gritty details of how Chevron tried to trick judges during the Ecuador trial, which concluded in 2011 with a stunning judgment against the company.

We note that Chevron's trickery is on top of the company's intimidatin campaign – including efforts to threaten Ecuador's judges with jail time and to paralyze the court by drowning it with frivolous motions.

The deceptions deployed by McMillan (who is Chevron's chief scientist) and tainted consultant John Conner have come to light in a legal brief filed by Ecuador's government in its arbitration dispute with Chevron. The American law firm Winston & Strawn (which represents Ecuador) quietly has been forcing Chevron to disclose documents that prove the company tried to corrupt the Ecuador trial.

Examples of Chevron's tricks as described by Winston & Strawn include:

  • Conner wrote a playbook directing the company's field technicians to find only "clean" soil during the judicial inspections by sampling in areas up-gradient from visibly contaminated waste pits. Chevron's technicians then tried to act like they were engaging in "random" sampling in front of the judge.
  • As confirmed by Bjorkman, Chevron conducted secret pre-inspections of several of the company's former well sites where it found numerous dirty soil samples that far exceeded Ecuadorian regulatory norms. Rather than report these samples to the court, the company hid the results.
    (This critical data as well as the evidence of Chevron's corruption was not reviewed by U.S. Judge Lewis A. Kaplan is his tainted and farcical RICO trial against the Ecuadorians and their counsel. This evidence will be reviewed by enforcement courts that are being asked to seize Chevron's assets to force the company to comply with the Ecuador judgment.)
  • Chevron's Ecuadorian lawyers – led by the notorious Adolfo Callejas – lied to the Ecuador court by claiming the company never performed the tests during its secret pre-inspections. (See p. 65 of the aforementioned legal brief.)
  • During the official judicial inspections (when the judge was present), Chevron tried to take soil samples from the shallow surface layer of dirt that it used to cover its oil waste pits during a sham remediation in the mid-1990s. Yet data showed that several feet below where Chevron was sampling, the waste pits were saturated with oil that was contaminating soils and groundwater.
  • A Chevron operative, Diego Borja, confessed on tape that he would often switch dirty samples for clean ones before submitting them to laboratories for analysis. He also confessed that the company set up dummy "independent" labs that actually were controlled by Chevron. For more on Borja and his corrupt activities, see here.
  • McMillan's team also mixed dirty soil with clean soil from the same site so as to artificially lower the average of the contamination found.
  • Chevron never tested for key markers of oil contamination, such as Total Petroleum Hydrocarbons. Instead, it tested for more narrow constituent elements that made the contamination appear less extensive than it really was.
  • Chevron used two inappropriate laboratory tests (TCLP and Method 8015) that made it virtually impossible to detect illegal levels of contamination, even from oil-saturated soil. Method 8015 counts only 50% of the hydrocarbons in petroleum, while the TCLP test often captures less than 1% of the actual contamination.
    (The TCLP test runs water over soils contaminated with hydrocarbons, and measures the amount of hydrocarbons in the runoff. Because water and oil don't mix, the runoff contains almost none of the oil in the soil.)
  • Chevron's team also refused to test for an extremely toxic class of Polycyclic Aromatic Hydrocarbons that are harmful to human health – apparently knowing that such tests would point to its guilt.
  • Chevron blamed high cancer rates and other health problems on the presence of fecal matter even though there is no scientific evidence connecting fecal matter with cancer. The high rates of cancer and risks to human health have been confirmed in several peer-reviewed studies by independent doctors.

The legal brief captured the company's subterfuge:

Chevron has expended tremendous sums on expensive experts, laboratories, and technology. Armed with its deep resources, Chevron systematically and deliberately devoted time and money to detect where contamination exists and where it does not. Chevron then systematically did everything in its power to avoid sampling at the most contaminated locations, thereby seeking to minimize its findings of contamination, all the while contending that its anything-but-random samples [during the official judicial inspections] were "representative" of the whole. They were not.

We admire the restraint of the writer. It's not often one can clinically describe an outright fraud by an American oil company designed to hide one of the world's worst ecological catastrophes.

Despite the trickery, Chevron still submitted enough soil samples to the Ecuador court from the official inspections to prove the claims against it. This underscores just how saturated with oil waste Chevron's facilities are years after it fled the country.

Incredibly, additional proof of Chevron's deceit was captured by the oil company itself on videos it made of its secret pre-inspections.

Chevron's video outtakes – which the company has asked courts to seal – show field technicians laughing at the contamination and mocking the Ecuador court process. A Chevron whistleblower turned them over to a U.S.-based environmental organization. It is highly doubtful the company can keep them under wraps forever.

As we have reported, the LBG report validates the decisions of three layers of courts in Ecuador that found the company liable and imposed the damages award. The amount ($9.5 billion) surely must sting in the Chevron boardroom. But it is actually a modest penalty taking into account the venality of the company's misconduct and the magnitude of the damage. BP's liability is three times higher (and rising) for the far smaller Deepwater Horizon spill.

Chevron of course admitted to deliberately dumping at least 16 billion gallons of oil-laced produced water when it operated in Ecuador from 1964 to 1992. The company also abandoned more than 900 unlined waste pits gouged out of the jungle floor. Cancer rates in the region, where an estimated 200,000 people live, have skyrocketed.

We note that McMillan, Conner, and Bjorkman are not the only "academics" willing to sell their integrity to Chevron for money and make themselves complict in human rights abuses. The company also has submitted to courts reports from Douglas Southgate, who is associated with a think tank that denies conventional theories about global warming; and the infamous Ralph Marquez, formerly the lead lobbyist for the chemical industry in the state of Texas and a Chevron consultant.

When Chevron management decides to do business with dogs like this, everybody associated with the company gets fleas. No reputable academic would even think of working under McMillan, whose entire purpose is to obfuscate the truth and to cast doubt on the overwhelming scientific evidence of the company's crimes.