Lago Agrio: The Cabrera Report—Mystery Solved

Oil barrels in EcuadorToday Letters Blogatory wades further into the Lago Agrio mire than usual. The question is one I raised back in April, when Doug Cassel’s open letter was still the hot topic: who wrote the Cabrera report?

Who wrote the Cabrera report? The Cassel memorandum points to emails in which one of the plaintiffs’ lawyers seemingly admits that they wrote the report, unbeknownst to Chevron, and in which one seemingly admits that the report could constitute a fraud on the court because it was ghostwritten.

Joseph Stalin
If your middle name is “Stalin”, expect your opponents to use your full name at every opportunity.
Cabrera, recall, was the independent (or not-so-independent) court-appointed global damages expert. One of Chevron’s main arguments has been that Cabrera (Chevron likes to call him Richard Stalin Cabrera Vega) was not independent, but was bought and paid for by Donziger and his team. While the Lago Agrio plaintiffs have been hedging their bets on the authorship of the Cabrera report for a while, it does seem that they had in the past asserted that Cabrera himself actually wrote it:

In a brief filed on Sept. 28 by representatives of the Amazonian communities in federal courts in New York and elsewhere, the plaintiffs blast Chevron for its erroneous translation of comments made by [plaintiffs’ lawyer Pablo] Fajardo. According to Chevron’s translation of a 2007 meeting, Fajardo told a group of scientists in Quito that Cabrera would simply “sign the report and review it.”

According to an accurate translation of the exchange, Fajardo actually said that what Cabrera WILL WRITE “ALL” OF THE REPORT AND “will … give his criteria … right [sic; should read “write”?] … his opinion, and sign the report, and review as well.”

Back in August, the Lago Agrio plaintiffs had a near summary judgment experience and narrowly avoided a bad outcome when they failed to respond to the substance of the facts concerning the Cabrera report that Chevron claimed were not in dispute. Chevron has again sought summary judgment, and this time the Lago Agrio plaintiffs did respond. So it is time to take another look. And now we have not only the summary judgment papers to consider, but also a blockbuster declaration from Ramiro Fernando Reyes Cisneros that Chevron has filed in connection with a discovery dispute with the LAPs’ counsel, Patton Boggs. More on Reyes later.

It now is beyond dispute 1 that Cabrera did not write the Cabrera report. Here are the key paragraphs from Chevron’s statement of undisputed material facts and Donziger’s response:

Chevron ¶ 54. The Cabrera Report consists of a summary report titled “Summary Report of Expert Examination” and supporting Annexes A through V. Dkt. 33-13 (Cabrera Report).

Donziger ¶ 54. Not disputed.

Chevron ¶ 55. The LAPs’ counsel and others working at their direction wrote the April 1, 2008 “Summary Report of Expert Examination” and annexes A through V. Dkt. 400-4.

Donziger ¶ 54. Disputed. The evidence to which Chevron cites establishes that Stratus and the Ecuadorian Plaintiffs’ team drafted documents that Cabrera adopted as the report and Annexes A through V. …

Chevron ¶ 65. On November 17, 2008, Richard Cabrera filed “Answers by the Expert Richard Cabrera, with the Support of his Technical Team, to the Questions and Comments Made by the Plaintiffs,” as a supplement to the Cabrera Report. Dkt. 400-4.

Donziger ¶ 65. Not disputed.

Chevron ¶ 66. The LAPs’ representatives and those working at their direction—not Richard Cabrera—wrote the November 17, 2008 supplement to the Cabrera Report increasing the damage assessment from $16.3 billion to $27.3 billion. Dkt. 9-4 at 2.

Donziger ¶ 66. Not disputed.

It’s important to note that Donziger has arguments that seek to show that all of this was perfectly legitimate, as were the payments of money by the LAPs to Cabrera before he was sworn in (Donziger answer ¶ 34), and their payment of $263,000 to Cabrera after he was sworn in (Donziger answer ¶ 36). Readers can judge the merits of these arguments for themselves. 2 But it’s fair to say that my question from April has now been answered: Cabrera did not write the Cabrera report.

Marcus Junius Brutus
Et tu, Reyes?
Now let’s turn to Reyes, Donziger’s Brutus. According to his declaration, Reyes was Donziger’s choice for global damages expert, but when his appointment proved impossible for reasons of Ecuadoran law, he suggested Cabrera. (¶¶ 29-30). The three had a meeting at the Hotel Quito. Cabrera and Reyes drank whiskey, Donziger didn’t drink. All very John le Carré. Donziger’s plan was that Reyes would continue “working ‘in the shadows,’ with the idea of reviwing Mr. Cabrera’s reports.” (¶ 31). Veering from le Carré to Grisham, the three next met at Mister Bagel (¶ 33), and then again with a larger group, including several American technical experts, on March 3, 2007. (¶ 34). The March 3 meeting, which featured in the Crude outtakes, was key for Reyes: it was then that he says (¶ 35) he “truly recognized the full extent of the plaintiffs’ counsel’s intentions regarding the global assessment.

At the meeting, Mr. Fajardo, Mr. Yanza and Mr. Donziger dropped any pretense that Mr. Cabrera would act independently in writing an expert report that would be technically sound and executed according to professional standards. On the contrary, it was obvious that the plaintiffs had already predetermined the findings of the global assessment, that they themselves would write a report that would support their claim for billions of dollars against Chevron and would simply put Mr. Cabrera’s name on it. The purpose of the meeting was to establish all the conditions for controlling and managing the expert’s work, in secret, in accordance [with] the plaintiffs’ interests. Based on what they said in the meeting, I have no doubt that everyone there understood this.

Yikes!

Again, it is important to note that Donziger and the Lago Agrio plaintiffs have something to say about Reyes’s change of heart. Pablo Fajardo has claimed [ed: at a dead link; sorry] that Reyes was motivated by money and was working for Chevron all along:


El abogado de los demandantes afirmó que Reyes siempre mostró interés por inmiscuirse en el caso, incluso llegando a decir que “quería ganar mucho dinero” y extrañamente siempre estaba sin ser invitado en las reuniones del equipo de trabajo de los demandantes, quienes siempre actuaron con transparencia y de manera pública, por lo que nunca impidieron su presencia. Por supuesto, dijo el abogado, “nunca sospechamos que él siempre estuvo trabajando para Chevron”, lo que se hace evidente con estas declaraciones que han sido entregadas por la propia compañía.

Maybe Fajardo is right about Reyes. But I think it is worth viewing the plaintiffs’ troubles with Reyes in light of their troubles with another former ally, Charles W. Calmbacher, Ph.D., who testified that he had not reached the conclusions contained in a report the Lago Agrio plaintiffs had submitted to the Ecuadoran court over his signature. Again, perhaps Donziger could show that both Reyes and Calmbacher are liars, but even so, it’s clear that the Lago Agrio plaintiffs have a problem with former allies making statements under oath that put Donziger and his team in an unfavorable light.

Photo credits: Julien Gomba (license); Wikipedia; Marie-Lan Nguyen

Notes:

  1. At least, it seems to me, in the US court if the issue is raised against Donziger or the plaintiffs he represents. As a formal matter I do not think the Huaorani, who are separately represented and who have a beef with Donziger, would necessarily be barred from litigating the issue, but I am not sure that there is any room for a factual dispute anymore.
  2. I would just point out that there are really two issues: was the LAPs’ conduct okay under Ecuadoran law, and whether or not it was okay under Ecuadoran law, does it have a bearing on whether a court in the US or elsewhere should recognize or enforce the Ecuadoran judgment.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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