Lago Agrio: Did The Plaintiffs Buy the Judgment?

In responding to the Declaration of former Ecuadorian Judge Alberto Guerra—who claims to have taken thousands of dollars from the plaintiffs to fix the outcome in the Lago Agrio litigation against Chevron—Ted Folkman is judicious. While reporting Guerra’s allegations and crediting Chevron’s lawyers for ferreting them out, Ted’s first reaction is that “I don’t trust anything Guerra says. He’s seriously corrupt.”

Ted wonders whether “documentary evidence (e.g., bank records, some of which are attached to the declaration) or computer forensic evidence might ultimately back up key points of his story.”

They do.

Like Ted, I would not take anything Guerra says—absent corroboration—at face value. By Guerra’s own testimony, once he was no longer a judge, he approached both parties in the Lago Agrio litigation for bribes to fix the case; he ghost wrote numerous orders in the Lago Agrio (and other) litigation for a new judge on the case (Nicolás Zambrano); he took thousands of dollars from Judge Zambrano to do the ghost writing; he also took thousands of dollars from the plaintiffs to conspire with Zambrano to fix the case; and, at Zambrano’s request, he ghost edited the draft final judgment in the case, a draft of which had been ghost written by the plaintiffs.

All of this, Guerra admits knowing, was illegal under Ecuadorian law. But did any of it happen?

Significant documentary and computer forensic evidence substantially corroborates key Guerra contentions. It evidences, first, that Guerra was indeed Judge Zambrano’s ghost writer and, second, that the plaintiffs in fact paid Guerra thousands of dollars to fix the case in their favor. (Most of this evidence is posted on Chevron’s web page; the rest, cited below, came from the plaintiffs in court-ordered discovery.)

Guerra the Ghost Writer and Editor

Guerra’s claim that he was Zambrano’s ghost writer is corroborated by his computer hard drive, shipping records from Tame Airlines, and Guerra’s bank records. Guerra’s hard drive contains at least eight prior drafts of orders entered by Zambrano in the Lago Agrio case. His computer register shows that each draft predated the actual orders later signed by Judge Zambrano.

Further, Tame Airlines shipping records show that, from July 2010 to February 2012, Guerra sent eleven shipments of “package with documents” (or similar descriptions) to Zambrano. The records show that Zambrano personally signed for most of the deliveries. The records also show at least five shipments from Zambrano to Guerra, who personally signed for each delivery.

In addition, although Guerra says Zambrano usually paid him in cash for his ghost writing services, on at least one occasion Zambrano deposited funds directly into Guerra’s bank account at Banco Pichincha. A copy of the deposit slip, certified by the bank, bears Zambrano’s signature and national identification number.

Guerra does not claim to have ghost written the final judgment against Chevron. Instead he explains that Zambrano asked him to edit a draft judgment received from plaintiffs, and to do so in Zambrano’s home, using a computer belonging to plaintiffs’ attorney, Pablo Fajardo. Although Guerra’s alleged role as ghost editor is not yet corroborated, US District Judge Charles Day recently found that Chevron—even before Guerra’s Declaration—had already made out a prima facie case that the plaintiffs ghost wrote the Judgment: “Chevron points to six documents internal to Ecuadorian Plaintiffs’ counsel … as being incorporated into that judgment. … Chevron has shown to anyone with common sense that this is a blatant cut and paste exercise.” 1

The Plaintiffs’ Payments to Guerra

Guerra claims that the plaintiffs paid him $1,000 per month “for writing the court rulings Mr. Zambrano was supposed to write.” Some payments, he claims, were given to him in cash by the plaintiffs’ attorney, Fajardo. The claim of cash payments is of course difficult to corroborate.

But Guerra claims that plaintiffs made at least two payments by deposits directly into his bank account. He asserts that amounts of $1,000 each were deposited into his account at Banco Pichincha on December 23, 2009 and February 5, 2010, “by Ms. Ximena Centeno, whom I know to be a worker at the Plaintiffs’ office.”

Bank records corroborate his claim. Attached to his Declaration are purported copies of the bank deposit slips, certified by the bank. Both are signed with identical signatures by Ms. Ximena Centeno. One also shows the depositor’s Ecuadorian national identification number as 1716841547. Ecuadorian Institute of Social Security records confirm that this number belongs to one “Ximena Maribel Centeno Viteri.”

Who is Ms. Centeno? The same Ecuadorian social security records show that she was paid a salary during 2009 and 2010 by “Selva Viva” (Living Jungle)—plaintiffs’ de facto office in Ecuador, then headed by Luis Yanza, a self-described “leader” of the plaintiffs’ litigation. A June 15, 2010 email, obtained by Chevron in discovery from plaintiffs’ attorney Steven Donziger, asked Yanza for a “list of all the people who work and who have worked at the offices in Quito and Lago Agrio.” Yanza responded by listing “Ximena Centeno” as “receptionist-librarian.” A July 8, 2010 email from plaintiffs’ attorney Eric Daleo, also produced in discovery, identifies “Ximena Centeno” not only as receptionist-librarian, but also as “Payment Administrator.”

Bank records thus corroborate Guerra’s claim that plaintiffs deposited at least two payments of $1,000 each directly into his bank account.

Plaintiffs’ internal emails (produced in discovery) appear to add circumstantial corroboration. On September 13, 2009, plaintiffs’ attorney Fajardo noted that Judge Zambrano might be taking over the Lago Agrio case. (Zambrano in fact did so). Two days later, speaking in code, Fajardo emailed plaintiffs’ legal team, stating: “The puppeteer is pulling the string and the puppet is returning the package… By now it’s pretty safe that there won’t be anything to worry about … The puppet will finish off the entire matter tomorrow …”

Who was the puppeteer and who was the puppet? The timing and circumstances suggest that they were Zambrano, the new judge on the case, and Guerra, his ghost writer.

The puppetry soon became expensive. On October 27, 2009, Fajardo emailed Yanza and Donziger, lamenting, “The puppeteer won’t move his puppet until the audience pays him something …” 2 Plaintiffs responded by paying their puppeteer. In a November 27, 2009 email on plaintiffs’ finances, Yanza explained to Donziger that “the budget is higher in relation to the previous months, since we are paying the puppeteer, …” Only one month later, as noted earlier, bank records show that Centeno made a $1,000 deposit into Guerra’s bank account, and only three months later (February 2010), she deposited a second $1,000 payment into his account.

Admittedly, the email corroboration is only circumstantial. Conceivably the plaintiffs’ puppeteer and puppet were persons other than Zambrano and Guerra. If so, I invite plaintiffs to explain.

Guerra’s Credibility Revisited

If it were uncorroborated, the declaration of the admittedly corrupt Guerra would carry little weight. But his key allegations are substantially corroborated by his computer hard drive and by records certified by Tame Airlines and Banco Pichincha. Suggestive, circumstantial corroboration appears in plaintiffs’ internal emails. If plaintiffs maintain that Guerra lied when he claimed that they paid him to ghostwrite favorable orders in their case, the burden is on them to explain away the draft orders in his hard drive, as well as the shipping and banking records.

Finally, any assessment of plaintiffs’ denials of Guerra’s allegations must be seen in context. As Ted has previously reported, an ever longer list of former supporters now accuses the plaintiffs of dishonesty: their former experts Reyes and Calmbacher, the Huaorani people, and their former funder Burford Capital, not to mention former plaintiffs’ attorney and bankroller Joseph C. Kohn. Are Guerra’s allegations—substantially corroborated—less credible than plaintiffs’ protestations?

Notes:

  1. Chevron v. Page, Civil No. RWT-11-0395, D. Md., Jan. 25, 2013, Transcript at 56-57.
  2. The original Spanish used a characteristic double negative: “El titiretero no moverá hasta que el publico no le pague algo …”

About Douglass Cassel

Douglass Cassel is Notre Dame Presidential Fellow and Professor of Law at the University of Notre Dame Law School. He was also an advocate for Chevron in proceedings before the Inter-American Commission on Human Rights.

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