The Burford letter alludes to a letter from Kohn to the Ecuadorians, as follows:

“Also revealed in discovery was a letter from Joseph Kohn, dated August 9, 2010—while we were actively engaged in discussions with you, and which you never mentioned to us—in which he criticized Mr. Donziger for having misled him in virtually the same way we have been misled. Kohn was co–counsel on the case and had provided most of the funding up to that point. Yet he, like us, had been misled about the plaintiffs’ role in drafting the Cabrera report. He wrote: ‘I am shocked by recent disclosures concerning potentially improper and unethical, if not illegal, contacts with the court-appointed expert, Mr. Cabrera, which are coming out in the U.S. discover proceedings initiated by Chevron. Not only did we not know of any of this conduct, it is contrary to assurances that Donziger and you made to us on numerous occasions.'”

In a portion of the letter not quoted by Burford, Kohn added, “Indeed, it appears to me that the outright refusal to provide us with any information about Cabrera’s report were [sic] intended to hide from us what may have been outrageously improper conduct.”

In an earlier letter dated November 19, 2009, Kohn represented that, in addition to attorney time, his firm had already spent $7 million on the case.

I share Ted’s agnosticism on the factual disputes between Donziger and his former funders. Did Donziger in fact mislead his co-counsel Kohn? Or was Kohn trying to distance himself and his firm from revelations of improper conduct? Either way, as Ted rightly concludes, “The cumulative weight of the defections has to be troubling for the plaintiffs.”