Mr. Donziger has contributed to his own legal woes in an unusual way.
In outtakes to the “Crude” documentary in which he discussed the Ecuadorean case, the lawyer seemingly confirmed the company’s charges over legal irregularities in the original damages trial.
“This is Ecuador. You can say whatever you want and at the end of the day you’re going to get what you want,” he said at one point as the cameras rolled. “Sorry, but it’s true. Because at the end of the day, this is all for the court just a bunch of smoke and mirrors.”
Mr. Donziger later opined before the camera that all Ecuadorean judges are corrupt and can be bought off because they are paid so little. Then he talked about how it’s necessary sometimes to engineer the facts in a case so that they are convincing to the judge and jury.
“The facts that we need don’t always exist,” he said before the cameras. “You have to get the right facts. If they don’t exist in an obvious way, you have to go make them. Otherwise, you’re going to lose.”
Mr. Donziger, the Amazon villagers and farmers, and environmental groups involved in the Amazon case have responded in kind, charging that Chevron has paid off some witnesses and threatened reprisals on others to build its case while manipulating scientific sampling and evidence to exonerate itself of the pollution charges. Chevron denies the charges and maintains that much of the illegal dumping documented by environmentalists was conducted by its drilling partner at the time, the Ecuadorean oil company Petroecuador, which continues to operate in the rain forest.
Ecuadorean and environmental groups say Chevron perpetrated its own “kickback and bribe” schemes in the case, including paying $326,000 to the Ecuadorean judge, Alberto Guerra Bastides, for his affidavit attesting that he was bribed and allowed the verdict to be ghost-written by Mr. Donziger’s associates. Chevron later helped him migrate to Miami, where he receives a $12,000 monthly salary from the company plus health insurance and legal costs.
“It always was obvious that Guerra wished to sell himself to the highest bidder, a fact which undermined his credibility and made him a profoundly unreliable witness,” said Pablo Fajardo, the lead attorney for the 80 indigenous and farmer communities in Ecuador who won the judgment against Chevron. He noted that Mr. Guerra was removed from the bench in Ecuador after being denounced for acts of corruption or irregular behavior in more than 30 cases.
But Morgan J. Crinklaw, a communications manager at Chevron, said the company relocated the judge out of fear for his safety and that of his family.
“Because of the risks associated with someone coming forward like that, Chevron took reasonable measures to protect him and his family,” he said. “It’s not every day a former Ecuadorean judge comes forward with this sort of evidence.”
Beyond the tit for tat over nefarious doings in Ecuador, the environmental and Ecuadorean groups say the New York judge in the case, Judge Kaplan, has shown extreme bias in favor of Chevron. Last month, the U.S. Court of Appeals for the 2nd Circuit agreed to hear their petition to take the judge off the case.
The groups also charge Chevron with mounting a “show trial,” using an unprecedented battalion of legal power to try to “bulldoze its way” to a verdict that lets it off the hook for damaging the ecologically fragile Amazon. Among other tactics in the billion-dollar lawsuit, they say Chevron has dumped more than 6 million pages of discovery documents among hundreds of legal filings before the New York court. About 10 percent of the staff of the Gibson Dunn & Crutcher LLP law firm, one of the world’s biggest, have been assigned to the Chevron case to provide the company with overwhelming firepower, they say.
“The total legal cost for Chevron shareholders is likely approaching $2 billion and it is rising fast,” said Aaron Page, a U.S. attorney for the Ecuadoreans. “This is probably the most money any company in history has spent defending itself on environmental claims.”
Extortion or show trial?