Tuesday, June 24, 2014

"Legal Tender"

Donny Rico on how Chevron's legal thuggery really works

Reposted from the Eye on the Amazon

At long last we bring you Episode #3 in The Adventures of Donny Rico, a clever deep dive into the methods used by Chevron in its desperate and unethical campaign to turn the tables on the very victims it poisoned in Ecuador's rainforest. [Watch Episodes #1 and #2 here and here.]

Take it from Donny: it's no secret that Chevron has spent millions upon millions of dollars in an abusive "scorched earth" legal strategy to attack not only the villagers and their representatives who have held the company accountable in Ecuador, but virtually anyone who supports them. This is part of a decades-long legal strategy to delay paying for a clean-up, to deny the facts and simply to try to crush the opposition which has been gaining the upper hand yet again.

As a recent Huffington Post article stated in relation to Chevron's abuse of our civil justice system to evade its obligations in Ecuador: "Chevron has put an unprecedented amount of resources into its campaign against the Ecuadorian villagers, hiring more than 60 law firms and 2,000 legal professionals to wage a war of attrition, wearing the plaintiffs down through countersuits and flooding them with a constant barrage of paperwork."

In this case, Chevron hired a law firm willing to throw ethics to the wind and take extraordinary steps to concoct a story of Chevron as the actual VICTIM of a conspiracy. Just imagine what it would take to try to turn the tables after Chevron had ADMITTED to dumping toxic waste into the Amazon rainforest.

Well, it turns out the best way to do it is to go the ol' Nixon route and try a bunch of dirty tricks – and then accuse the other side of doing just those things. Who better to lead the campaign than the "guns for hire" known as Gibson Dunn & Crutcher? The same firm the Montana Supreme Court blasted for using "legal thuggery" and "blatant and malicious intimidation" tactics while another U.S. federal judge said that the firm maintained "a culture [of] obstruction and gamesmanship."

Just like their sister spin-doctor and PR flack Sam Singer, Gibson Dunn is quite open about using a template to defend its high-profile corporate clients who are losing legal cases or are trapped in scandal. It does this by targeting the lawyers or witnesses who held their clients accountable with character assassination and defamation campaigns.

Gibson Dunn masterminded a strategy where a single U.S. judge with more arrogance than Dick Cheney re-litigated the eight-year Ecuador trial in his courtroom in what can only be described as a Kafkaesque proceeding. The judge refused to consider the Ecuador trial record, the 64,000 chemical samplings results that proved Chevron committed a massive environmental crime, or the Supreme Court decision that already considered Chevron's complaints and rejected them.

How did Chevron and Gibson Dunn get it done? First they spent years trying to create dirt and get it to stick. They mounted racist attacks on Ecuador, hired PR firms and bloggers to attack the Ecuadorian communities, Ecuador's legal system, and of course the lawyers, activists, human rights defenders or allies supporting them. They launched "sting" operations, attempted to entrap judges, hid information about contamination from the court and turned a straightforward case into what is probably the most abusively litigated nightmare in the history of world jurisprudence. The trial in Ecuador took over a decade to complete.

While Chevron – under the "leadership" of CEO John Watson – was stitching together its Frankenstein monster in Ecuador, it laid the groundwork in the U.S. to fabricate a massive "conspiracy" to be used to try torpedo and delay the verdict they knew would be against them around the world.

Chevron and Gibson Dunn filed dozens of discovery lawsuits across the county and racked up over $36 million in legal fees. They tried to find any court that would hear their trumped up allegations. Many rejected them and one federal appellate court in Philadelphia reversed a discovery order stating "[t]he circumstances supporting [Chevron's] claim of fraud largely are allegations and allegations are not factual findings." The appeals court further chastised Chevron's attacks on the Ecuador courts as "disparaging." Some judges dismissed the firm's legal attacks under laws designed to fight "SLAPPs" (Strategic Lawsuits Against Public Participation, i.e. intimidation suits), while others ordered Gibson Dunn to pay fees to its adversary and other sanctions.

But when you have a self-deluded management team with unlimited shareholder funds and an army of lawyers, when confronted with resistance you simply dust ‘em off and try again. So the Chevron and Gibson Dunn fishing expedition eventually nailed a real whale with U.S.Judge Lewis A. Kaplan. With Kaplan essentially taking on the role of Chevron's prosecutor-in-chief in a courtroom where he officially presided as judge, the oil company and Gibson Dunn had never had it so good. The fact that Kaplan's show trial proceeding fell below minimal standards of due process is completely ignored by the company, even though the deep flaws in the proceeding will likely prove fatal to any effort by Chevron to use Kaplan's opinion to block enforcement actions in other jurisdictions.

Kaplan himself encouraged Chevron to file the RICO suit and assigned the case to his own court. He also called the villagers the "so-called" plaintiffs and said their case did not constitute "bona fide litigation" but instead was akin to "mud wrestling." He said the main legal advisor to the Ecuadorians, Steven Donziger, was using the case to become the "next big thing in fixing the balance of payments deficit" of the United States. Really?!

The story of the sham trial has been told many times on Eye on the Amazon. And Donny Rico will have more to say about the particulars of Chevron's (with Kaplan's encouragement) bribing of witnesses and creating fake conspiracies. But it still took massive resources to keep the truth from prevailing in court, and Chevron and Gibson Dunn had many ways to ensure this. Intimidation, pressure and legal might simply made it impossible for opponents to defend themselves.

If they came up against a consulting business that supported the Ecuadorians, they would pressure their other clients to drop them with fake allegations. Stratus Consulting, which had provided scientific reports backing the claims of toxic contamination, is a perfect for example. Chevron tried to block their access to government contracts essential to keeping their business afloat. They hounded Stratus to the brink of bankruptcy by filing misleading complaints with government agencies and creating defamatory websites. Stratus quickly buckled under the legal thuggery and signed a statement written by Gibson Dunn in favor of Chevron and in obvious contradiction to the facts in Ecuador and to the previous sworn statements of the group's consultants.

When facing opposition from journalists, Gibson Dunn either used Kaplan's court or legal threats to intimidate and force them to kill their stories, or to turn over all their sources and footage. Chevron fought CBS's 60 Minutes tooth and nail to prevent production of what turned out to be an extremely damning report (which, by the way, won the 2010 Edward R. Murrow Award). After winning Kaplan's verdict they scared CBS enough to remove the story from the company's website (still found here).

When they faced another big law firm (Patton Boggs) on the side of the Ecuadorian villagers, bullying Gibson Dunn simply found their weak spot and pressed as hard as they could until the firm backed down. Patton Boggs was counting on a merger with a larger law firm to rescue it from its economic problems. With a Kaplan-backed lawsuit filed by Chevron hanging over their heads, Patton Boggs paid Chevron $15 million to back off in violation of their own ethical obligations to their clients.

And what to do when facing growing grassroots pressure and shareholder dissent organized by environmental or human rights groups? Chevron and Gibson Dunn used multiple nasty strategies of attack. They went after our funding, tried to damage our reputation and used more legal thuggery to try to bog us down with massive subpoenas seeking hundreds of thousands of documents detailing campaign strategies and donor information.

But that's just where Gibson Dunn hit a snag. Backed by the pro bono support of excellent human rights and environmental lawyers from EarthRights International, Amazon Watch was ready to defend itself and did. The attacks from Chevron only demonstrated our own effectiveness to our donor base and actually strengthened our organization's resolve to press on.

When Amazon Watch was defending itself in federal court from Chevron subpoenas, Gibson Dunn repeatedly tried to move the case – improperly - into the hands of Judge Kaplan in New York. They failed. And in their attempts they were almost sanctioned by Federal Judge Nathaniel Cousins in San Francisco for serving such overly broad and abusive subpoenas. I guess they started to get a little drunk with power from Kaplan's unending support and got sloppy. But when this real judge looked impartially at their request, he stated that despite over 70 Gibson Dunn filings claiming that Amazon Watch was a conspirator "all that Chevron has shown this Court is that Amazon Watch has been very critical of Chevron's operations in Ecuador." He then warned Chevron that if it tried the same tactics again they had better take great care to "avoid infringing upon the organization's First Amendment rights. Otherwise, the Court (would) impose sanctions."

Gibson Dunn had to let that one go, and I am guessing they're still stewing over it.

One could write hundreds of pages detailing Gibson Dunn's dirty tactics, but we'll leave it to Donny on this note. As he mentions, Gibson Dunn's lead lawyer Randy Mastro personally met in Chicago with Chevron's key witness – disgraced ex-judge Guerra – to negotiate the exchange of huge sums of money and other benefits in exchange for his "factual" testimony. They also doctored video evidence and possibly engaged in fraud on the Ecuador court by failing to disclose that its technicians were ordered to hide dirty soil samples. The list of unprecedented attack on justice waged by Chevron and Gibson Dunn goes on and on. Increasingly disturbing to many is that their "pioneering" work could make it easier for other corporations to do the same without having to spend nearly as much. Kaplan's verdict, though likely to be overturned, could set a dangerous precedent by criminalizing First Amendment protected activities by environmental, human rights and corporate accountability groups.

Which leaves one wondering what's worse: committing the crime and then refusing to clean up, or wasting over a billion dollars to pay rich lawyers to fight while Ecuadorian communities continue to suffer? Actually, they are simply two different sides to the same Chevron coin.

More Chevron Hypocrisy: Super-Lawyer Ted Olson Allows HBO To Film Confidential Meetings

Reposted from The Chevron Pit

The appetite for hypocrisy among Chevron's "rescue team" at the law firm Gibson Dunn & Crutcher (GDC) knows few bounds. Our latest example, courtesy of GDC appellate partner and former Solicitor General Ted Olson, is truly astounding.

After the GDC trial team led by Randy Mastro bribed a key witness to win its farcical RICO case in New York, and after Chevron scientists orchestrated a massive scientific hoax on the courts of Ecuador, we now have Chevron's most prominent outside lawyer and a leading beacon of the Republican establishment working with two directors to make a documentary film about his own case.

Sound familiar? Olson and his minions at GDC have directed furious criticism at New York Attorney Steven Donziger for doing the same thing with the Ecuador litigation. In reference to Ecuador, they even have argued that making such a film results in the wholesale waiver of attorney-client privilege and is part of an "extortion" campaign against Chevron.

Olson's new film, The Case Against 8, aired earlier this week on HBO. The film documents the travails of Olson and his team as they fight to the Supreme Court to overturn a California law (called Proposition 8) barring gay marriage.

In the film, Olson and his allies openly use the media and tools of political organizing – including raucous protests in front of courthouses – to advance their legal case and pressure courts via the mobilization of public opinion. These are the same time-worn tactics used by civil rights litigators the world over, including Donziger and the indigenous leaders in Ecuador. Yet the GDC team claimed the use of the exact same tactics in Ecuador was improper.

That's the gist of the Chevron hypocrisy. It's the same double standard that says Ecuadorians should put up with massive levels of toxic soil contamination because they live in Ecuador rather than in America. Chevron proposed a clean-up standard for toxic oil waste to the Ecuador court that literally was 100 times more lax than the average American standard. When the court rejected the preposterous proposal, Chevron hilariously claimed the judges were biased against the company.

More interesting for our purposes is that in the Prop 8 case Olson gave the HBO filmmakers an all-access pass to confidential meetings where lawyers were discussing internal strategy and highly sensitive issues with witnesses and clients.

In the Chevron case, GDC pilloried Donziger and Ecuadorian lawyer Pablo Fajardo for offering similar access to director Joe Berlinger, who produced the award-winning film Crude on the Ecuador case. (Crude, based on our completely unbiased perspective, makes for a far more interesting film than the HBO flick. It is available from Netflix.)

Chevron's criticism led to a vast "waiver" of attorney-client privilege that allowed GDC access to all 600 hours of Berlinger's outtakes. The GDC team then sliced and diced the outtakes into fodder for its trumped-up RICO case, eliminating key phrases to falsely portray Donziger as a thug when he was really battling heroically to neutralize Chevron's attempted corruption of the Ecuadorian court system, as documented in part in this stunning affidavit and related legal briefs.

Olsen authorized the HBO film team to "embed" itself for over four years with his legal team. Going along with the decision was none other than David Boies, one of the top litigators in the country who also worked on the Prop 8 case and who is featured prominently in the HBO film.

In an interview posted on the HBO website, the filmmakers brag about the "incredible access" they had to the internal deliberations of the GDC-led team. Director Ben Cotner described how Olson allowed him to effectively "blend into the background": "We'd slip in and out of rooms, sometimes in the middle of meetings. People got so used to us being there that eventually we were just allowed to be part of that process."

His co-director Ryan White added that it was his policy to "keep the cameras on" at all times: "We shot 600 hours of footage, and many of those hours are probably really boring stretches when we're just rolling a camera in a conference room, since we didn't know when an important phone call was going to come in or when a ruling might come down."

The filmmakers assert that this opportunity to "embed" was specifically with the legal team, not with the plaintiffs in the case. As it turns out, the plaintiffs were far more circumspect and only gradually allowed the filmmakers to follow them for a limited set of activities.

Chevron's hypocrisy is legendary: The company spent a decade in the 1990s telling a New York court it wanted the environmental case heard in Ecuador. When the evidence against it mounted, Chevron came running back to New York saying Ecuador's courts were incapable of providing a fair trial. The company's desperate campaign of forum shopping has now taken the matter to more than 30 courts around the world. In the meantime, villagers wait for Chevron to comply with a court-mandated clean up of the billions of gallons of toxic waste it has admitted to dumping.

We certainly look forward to seeing HBO's video outtakes from Olson and the other GDC lawyers. They might be of interest to foreign courts that are being asked by the rainforest villagers to seize Chevron's assets to force the company to comply with the rule of law and pay the Ecuador judgment.

No doubt most of these courts will be paying more than a passing glance at GDC's history of using unethical tactics to advance the interests of its many scandal-plagued clients.

Monday, June 23, 2014

Back to Basics in Ecuador (Part 1): What’s the Damage?

Reposted from the CSR Strategy Group

When a legal case becomes complicated, it's important to stick to the basic issues. In the case of the Ecuadoran Amazon communities versus Chevron, the questions boil down to the following.

  1. What is the extent of the oil pollution?
  2. What damage has the oil pollution had on the health and livelihoods of the people?
  3. To what extent is Chevron responsible and liable for that oil pollution?

These are the key questions that shareholders have continually posed to the management of Chevron. For part one of this piece, let's focus on the first two basic questions.

Despite two decades of litigation, there are still no clear answers. In his ruling in the RICO against the Ecuadoran plaintiffs and their lawyers, U.S. District Court Judge Lewis Kaplan did not dispute the existence of the oil pollution. According to Kaplan's judgment:

The Court assumes that there is pollution in the Orienté. On that assumption, Texaco and perhaps even Chevron – though it never drilled for oil in Ecuador – might bear some responsibility. In any case, improvement of conditions for the residents of the Orienté appears to be both desirable and overdue.

A recent research report backs up the contention that the oil pollution in Ecuador remains extensive and damaging to the health and livelihood of the Amazon rainforest communities. According to a recent press release by Hinton Communications, a PR firm for the Ecuadoran communities:

A new report prepared by a team of prominent American scientists after the end of the Lago Agrio trial found that Chevron caused “widespread” toxic contamination to indigenous ancestral lands in Ecuador’s rainforest that persists to this day, directly contradicting the company’s defense in the Ecuador environmental litigation and providing a new boost to efforts by villagers to seize Chevron’s assets abroad.

The report – published by the Louis Berger Group (LBG), a consultancy that has worked for several U.S. government agencies – also found that Chevron engaged in an elaborate cover-up to hide the information from the Ecuador court during the Lago Agrio trial, which lasted from 2003 to 2011. The report has the potential to shake up the long-running case in favor of the rainforest villagers as they pursue Chevron’s assets in Canada, Brazil and Argentina to pay for a clean-up.

The LBG scientists who wrote the report spent several weeks in Ecuador in 2013 to inspect 18 of Chevron’s former well sites, which are spread out over a 1,500 sq. mile area of rainforest just south of the Columbia border. The report was prepared at the request of the American law firm Winston & Strawn for a private international arbitration where Chevron is seeking – thus far without success – to shift the clean-up liability to Ecuador’s government.

It is reports of this kind that reinforce the fact that Chevron's lingering liability in Ecuador is still far from being resolved. As such, it underscores risks to shareholders that Chevron's management has downplayed but has still not effectively disclosed or managed.

– by Simon Billenness

Monday, June 16, 2014

When Might = Right: How Chevron Got Out of a $19 Billion Lawsuit*

* An excellent analysis of Chevron's tactics, although the company is still liable for $9.5 billion, despite its unethical actions.

Reposted from the Huffington Post

Florinda Yela, 75, outside her house which sits above the contaminated Aguarico 4 pit outside Lago Agrio, Ecuador.

Four years on from the disastrous Deepwater Horizon oil spill in the Gulf Coast, in which approximately 210 million barrels of oil leaked into the ocean just off the coast of Louisiana, BP has been forced into spending over $26 billion on compensation and cleanup. Texaco (now under the banner of Chevron) was found guilty of dumping 18 billion gallons of toxic waste in the previously pristine Amazon rainforest (the event is colloquially called "Rainforest Chernobyl"), but has yet to pay anything to its many victims.

Why the massive difference in outcome between these two cases of gross corporate malfeasance? For one, BP's oil spill directly affected the most powerful country in the world, and the oil company thus had little choice but to comply with the United States' demands. Chevron's dumping, although deliberate and thus even more egregious than BP's negligence, took place in the small country of Ecuador, which has clashed repeatedly with the United States on issues from Snowden to free trade.

The second, subtler, reason that Chevron has so far been able to weasel out of paying any compensation, though, stems from the fact that the company is revolutionizing the way corporations wage war against activists. Chevron has put an unprecedented amount of resources into its campaign against the Ecuadorian villagers, hiring more than 60 law firms and 2,000 legal professionals to wage a war of attrition, wearing the plaintiffs down through countersuits and flooding them with a constant barrage of paperwork. Indeed, even the lead attorney for the villagers, Steven Donziger, has admitted that Chevron has mounted "the most well-funded corporate retaliation campaign in history."

First, though, some history. The mostly indigenous villagers' search for compensation is rooted in the actions of Texaco in Ecuador between 1964 and 1990. Alongside the state-owned Petroecuador oil company, Texaco dumped millions of gallons of crude oil and billions of toxic wastewater into open pits around Lago Agrio, in Ecuador's Sucumbíos province. Some tests of this waste found extremely high levels of polycyclic aromatic hydrocarbons (up to 3 times what would be legally permitted in the US), which are thought to cause cancer. Indeed, abnormal cancer rates and birth defects are prevalent among Sucumbíos residents, with some health researchers suggesting a clear link to the oil fields of the past. Chevron, for its part, claims that the high rate of illness is simply due to insufficient sanitation.

The villagers' first shot at obtaining some form of compensation came in 1993, when Donziger and several other lawyers sued Texaco in New York. After eight years of legal wrangling, Chevron (having bought Texaco in 2001) finally succeeded in having the case dismissed on grounds that the proper venue was Ecuador and not the United States. The plaintiffs accordingly launched a lawsuit through the Ecuadorian legal system, which they eventually won when Judge Nicolàs Zambrano Lozada awarded the villagers $19 billion in damages (reduced to $9.5 billion on appeal).

Faced with the Judge's decision, Chevron changed tactics. Having once claimed that the trial needed to take place in Ecuador, the oil company now claims that the Ecuadorian legal system is too corrupt to hand down a legitimate decision. Not only did Chevron refuse to pay the damages it owes to the Ecuadorians, but also it launched a countersuit against the villagers themselves in the United States. Claiming that the Ecuador judgment is "a product of fraud" the company accused the plaintiffs of unfairly targeting the oil company for its deep pockets. On March 4th, New York District Court Judge Lewis Kaplan ruled that Donziger and his associates were guilty of violating the Racketeer Influenced and Corrupt Organizations Act (RICO), a piece of legislation traditionally aimed at mafia bosses.

The ruling largely hinged on the testimony of Chevron's star witness, former Ecuadorian Judge Alberto Guerra, who claims to have taken bribes from Donziger's team to tilt the ruling in their favour. Donziger's side of the story is that he met with Guerra but immediately left when the Judge summarily asked for money. Since Guerra has admitted that he viewed his judicial career as an "opportunity to harvest illegal payments to fix cases", Donziger's version of the story does seem to hold water. The disgraced Ecuadorian Judge has also confessed to receiving $48,000 in cash from Chevron as payment for his cooperation and testimony. Chevron is also paying for Guerra's resettlement with his family in the United States to the tune of $12,000 per month, as well as paying for his car, house, legal fees and health insurance.

The legal battle between Chevron and Ecuador now spans more than two decades and, while allegations of unethical behaviour abound, Chevron has yet to pay anything close to due compensation to the victims of Texaco's pollution. In this sense, they have won so far. What is perhaps most worrying in this affair, though, is what the legal techniques the corporation has employed mean for the future of activists everywhere.

In successfully suing the victims of its own pollution under the RICO act, Chevron may be setting a dangerous legal precedent, sending a powerful message to any lawyer or villager foolish enough to go up against the oil giant. Ironically, Chevron's use of legislation meant to combat organized crime makes the company look increasingly like the mob itself. 'Dare to challenge us, and we will bury you under a mountain of legal fees', Chevron seems to be saying. Indeed, in Nigeria as well, the company is suing villagers who "don't even have access to clean drinking water" for $500,000.

Any battle between activists and corporations is asymmetrical from the start. With companies like Chevron countersuing under RICO, however, cases become a real David and Goliath affair, where the system itself is perversely stacked against those that have fewer means to make their voice heard. One can only hope that Chevron's abuses can illuminate the need for change so that justice can truly be served, for the villagers in Ecuador and the underprivileged everywhere.

– Jo Simmons

Thursday, June 12, 2014

Chevron: Release the Secret Evidence that Proves Your Guilt in Ecuador

Reposted from the The Huffington Post

In the wake of a controversial U.S. court ruling that a $9.5 billion Ecuador judgment against Chevron is fraudulent, the oil giant has been touting loudly its innocence of any environmental crimes in the South American country.

Chevron's lawyers even successfully pressured some CBS News corporate suits to yank a damning 60 Minutes piece from the network's website about the deliberate contamination of the Ecuador rainforest from 1964 to 1992 by Texaco, which Chevron later bought.

(See the dead link here. You can see the segment on my company's web site. So sue me, CBS.)

Instead of succumbing to Chevron's pressure tactics, CBS' lawyers should grow a backbone and demand to see contamination "playbook" documents that Chevron has been forced to produce in an international arbitration proceeding.

They are explosive and prove 60 Minutes got it right, and the U.S. judge got it wrong.

The playbook details how the company hid evidence of contamination during an eight-year Ecuador trial resulting in a $9.5 billion damage award that the Ecuadorians are waiting for Chevron to pay.

Meanwhile, Chevron is claiming in arbitration that the Republic of Ecuador should pay the judgment, and the two parties are duking it out before a panel of corporate trade lawyers who rent office space at The Hague and act as "judges" – more about them later.

The playbook took center stage in a recent arbitration filing by Ecuador. It appears the country's lawyers have gotten their hands on much, if not the entire, playbook, but the corporate trade lawyers are requiring Ecuador to redact or cover up the really damning evidence.

Even so, a recent rejoinder filed by Ecuador reveals enough to demonstrate what a morally bankrupt company Chevron is. (See the redacted rejoinder here.)

Here's what we know about the playbook, pieced together from the filings of both the Ecuadorians in U.S. court and the Republic of Ecuador in arbitration.

In 2011, the Ecuadorians obtained a few pages from the playbook and tried to enter them into evidence during Chevron's "fraud" trial, but Federal Judge Lewis Kaplan refused to allow any evidence of contamination into the record, including the small excerpt from Chevron's playbook.

(See my recent blog about this legal travesty, and this earlier 2011 press release about the playbook.)

During the Ecuador trial Chevron's paid experts wrote the playbook to document how to handle the contamination they found at the well sites in soil and water tests.

Without the knowledge of the Ecuador court, Chevron's experts conducted unofficial and secret pre-inspections of the sites so they could avoid the badly contaminated areas during the official judicial inspections. (See page 63 in the rejoinder.)

Their pre-inspection findings would have been devastating to their case had they been turned over to the court. So they never were. (See page 63.)

Instead, they used the results to avoid the contaminated areas and test at clean spots, usually from soil and water at elevations higher than the huge, unlined and open pits Texaco built to store permanently pure crude and toxic water.

[Quick backgrounder: Texaco explored for oil in Ecuador from 1964 to 1992 and was the sole operator of the well sites during that time. The Ecuadorians filed their original lawsuit in the U.S. against Texaco in 1993, one year after Texaco left Ecuador. A U.S. judge dismissed their lawsuit ruling in 2001 at Texaco's urging the litigation should be heard in Ecuador. That year, Chevron bought Texaco. In 2003, the Ecuadorians re-filed their case in Ecuador but not before the U.S. 2nd Circuit Court of Appeals instructed Chevron that it must accept Ecuador's jurisdiction, which it did.]

Chevron routinely used deceptive methods, such as mixing clean soil with dirty and undercounting hydrocarbons, to hide or reduce toxic chemicals in samplings. (See pages 66-72.)

This table below, taken from the arbitration filing, reflects just a few of the thousands of pages of playbook notes Chevron's experts and field personnel took, describing the contamination and advising the company about ways to avoid it during the official judicial inspection.


It's heavily redacted. If it's true – as Chevron says it is – that the oil giant is innocent, and the truth is what it seeks, then why won't Chevron release the un-redacted, unedited playbook for all to see?

Maybe it has something to do with the 1995 remediation agreement that Chevron argues is its get-out-of-jail-free card.

The agreement, between Texaco and the Republic of Ecuador, released Texaco from government liability in exchange for a cleanup of a relatively small number of pits. It did not, however, release Texaco from third-party claims.

During the Ecuador trial, tests found contamination levels at the so-called remediated Texaco pits as high or higher than the ones not cleaned. The Ecuadorians accused Texaco of simply throwing dirt on top of the contamination to hide it.

Chevron's playbook backs that up.

At pits Texaco said it cleaned, Chevron – according to its own playbook – found contamination during its secret PIs or pre-inspections. To avoid or reduce the contamination Chevron, during the official judicial inspection, took soil only from the top layer.

Ecuador's rejoinder references the playbook notes of Shushufindi 24, Sacha 21 and Lago Agrio 6, all three well sites that Texaco said it cleaned.

In its secret, pre-inspections Chevron discovered otherwise. (See pages 68-69.)

The rejoinder reads: "During the JIs (judicial inspections) Chevron's experts sought to avoid finding pollution by sampling only to depths that it knew to be clean. For example, at Shushufindi 24, the soil boring log at pit 2 shows that during its PI, (pre-inspection) REDACTED "Then at the JI, Chevron strategically chose to take surface soil samples only – avoiding the known contamination below."

Chevron: What did you find at Shushufini 24, Sacha 21 and Lago Agrio 6?

If you found little or no contamination, then all is well.

If you found contamination and withheld it from the court, then your remediation agreement comes unraveled as does your entire legal case.

Chevron will say today that pre-inspections were allowed, but that's not what its attorneys said during the trial. Chevron wrongfully accused the Ecuadorians of pre-inspections, telling the court that pre-inspections were a "violation of legal security and due process of law," and "no technical team from ChevronTexaco Corporation has performed any secret tests here."

The rejoinder reads:"Yet by that time, Chevron's experts had conducted PIs at least REDACTED (number of) sites and taken over REDACTED (number of) samples." (See page 65.)

Chevron wants its shareholders to believe the Ecuadorians are history, even though enforcement lawsuits are underway in three countries and an appeal of the U.S. ruling is pending before the Second Circuit Court of Appeals, which reversed an earlier Kaplan attempt to stop enforcement of the Ecuador judgment.

And, while the Republic of Ecuador is fighting aggressively Chevron's arbitration claim, it is doubtful the arbitration panel will rule against the oil giant.

Brought in 2009, Chevron's arbitration action is based on alleged violations of Ecuador's Bilateral Trade Agreement with the United States.

For some time now, multi-national corporations have been abusing these trade agreements. Allowing it to happen are the corporate trade lawyers who sit on arbitration panels as judges and then rotate off as lawyers representing corporations before panels composed of their trade lawyer buddies.

Best example is the successful claim by Phillip Morris against Australia because the country placed warning signs on cigarette packs about the dangers of smoking after Phillip Morris began selling cigarettes there. See here.

International arbitration is fraught with serious conflicts of interest, and some countries are considering ending bi-lateral trade agreements due to numerous upside down arbitration rulings that have put the interest of corporations above a country's residents.

The Ecuadorians' best bet is in Canada, Brazil and Argentina where they have filed enforcement lawsuits to seize Chevron's assets in those countries as payment for the judgment.

Who knows? The entire Chevron playbook may see the light of day in one of those courtrooms soon. Or, 60 Minutes could stand by its work and demand to see it.

Ironically, during Chevron's "fraud" trial, Kaplan quoted former Supreme Court Justice Louis D. Brandeis' famous maxim that "sunlight is said to be the best of disinfectants" but when it comes to the allegations leveled by the Ecuadorians and their lawyer, Steven Donziger, Kaplan and the corporate trade lawyers hanging out at the Hague prefer the dark side of the moon.

– Karen Hinton