- The Washington Times - Saturday, November 20, 2010

ANALYSIS/OPINION:

Courts continue to expose the skulduggery of an Ecuadorean lawsuit against American oil giant Chevron Corp. On Tuesday, the 2nd U.S. Circuit Court of Appeals smacked down the plaintiffs and backed District Judge Lewis A. Kaplan’s order allowing Chevron to continue discovery efforts to prove the lawsuit is fraudulent. Judge Kaplan’s Nov. 4 decision in the case uses particularly scathing terms to describe the conduct of the plaintiffs’ American lawyer, Steven R. Donziger.

Damning new evidence was found in “Crude,” a purported documentary commissioned by Mr. Donziger. After detailing a raft of ethically suspect activity caught on the final version of the film, Judge Kaplan writes that unused footage contains: “statements by Donziger that the Ecuadorian court system is corrupt, that the Lago Agrio plaintiffs can prevail only by pressuring and intimidating the courts, and that the facts have to be twisted to support the plaintiffs’ theories. Donziger’s own words raise substantial questions as to his possible criminal liability and amenability to professional discipline.”

Even more frightening are the lawyer’s references to using assassination threats to get what the plaintiffs want. As Judge Kaplan details, “Donziger participated in a dinner conversation about what might happen to a judge who ruled against the Lago Agrio plaintiffs. One or more other participants in the conversation suggested that a judge would be ‘killed’ for such a ruling. Donziger replied that the judge ‘might not be [killed], but he’ll think - he thinks he will be … which is just as good.’ “

This opens a dark new chapter in the $113 billion lawsuit claiming Texaco - since bought by Chevron - left behind ecological damage in 1992 when a 20-year drilling partnership with state-owned Petro-Ecuador ended. The suit, which ignores that a previous Ecuadorean government absolved Texaco of all responsibility in 1998, has been rife with corruption. One Ecuadorean judge assigned to the case was filmed discussing what sounded like a bribery scheme; supposedly independent expert Richard Cabrera was found to be the main shareholder of an environmental remediation company that could profit from the suit; and a U.S.-based expert for the plaintiffs swore under oath that plaintiffs’ lawyers had submitted fraudulent reports under his name.

What makes recent court developments interesting is that Judge Kaplan - appointed by President Clinton and confirmed by a Democrat-majority Senate - is neither overtly pro-business nor conservative. He oversaw - and issued the key ruling that weakened the U.S. government’s case in - the trial that ended Wednesday in acquittal of former Guantanamo detainee Ahmed Ghailani on 284 of 285 counts. In the Chevron case, however, he’s all no-nonsense. “The evidence of irregularities is powerful,” he wrote. This man has presided over Mafia trials and knows shady tactics when he sees them.

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