Welcome to the liveblog of today’s symposium, “Lessons from Chevron”! The symposium is sponsored by the Stanford Journal of Complex Litigation. The liveblog is jointly sponsored by the Journal and by Letters Blogatory. Thank you to editors-in-chief Nick Landsman-Roos and Matt Woleske for agreeing on such short notice to participate in the liveblog.
You’ll find the updated schedule here. As you can see, the morning will focus on one-on-one conversations with key participants in the case. Following a break at 11:30 (all times are UTC -8), there will be a panel discussion on third-party litigation funding, followed by lunch. The symposium will resume at 1:30 with discussions of legal ethics and forum non conveniens, and following another break at 4 pm, discovery practice.
The plan is for Nick and Matt to liveblog as they are able. Readers, if you have comments or questions, please submit a comment to this post. I may chime in from time to time via the liveblog as well, though I’m not attending the symposium and so will only be in a position to ask questions or to comment on the livebloggers’ comments, not to report on what’s being said.
Those of you who are following the case closely may be interested in a new interim award issued yesterday by the BIT tribunal hearing the dispute between Ecuador and Chevron. I’m not going to comment on it in this post, but I will have more coverage sometime next week.
Enjoy the liveblog!
Hello Ted and other readers –
First of all I want to thank you and the readers for the opportunity to write on this tremendously interesting case. Proceedings are currently underway and my co-Editor-in-Chief, Nick Landsman-Roos is currently speaking on the background of the case before Deborah Hensler and Graham Erion, the representative of the plaintiffs bar present here.
As you noticed Mr. Donziger was originally on our schedule and as of about two days ago was still planning to attend. Unfortunately as the result of some last minute scheduling conflicts, he was unable to attend. We were told that he had to be out of the country working on the case. In his stead, Graham Erion, who has been working on the case with Mr. Donziger is able to attend.
And we’re live! I just gave a brief introduction thanking our contributors and giving an overview of the case. Professor Deborah Hensler, the Judge John W. Ford Professor of Dispute Resolution here at Stanford Law School is now introducing the practitioners litigating the case. First up is Graham Erion, representing the Rainforest Communities.
Graham Erion is a Canadian lawyer. He is currently working on the enforcement effort. He first became involved in this litigation in 2008.
Erion: Texaco made deliberate decisions that their lives had no value. This is not a case about an accident. This is a case about a corporate decision that said it is a lot cheaper to pollute than protect and we think we can get away with it.
Erion: “We are winning this case.”
Erion is describing the hard-fought nature of the lawsuit.
Erion: this is a model of a new type of litigation. When we first filed this it was an ATS case. Hard to say post-Kiobel what the lay of the land looks like. This is the future of human rights litigation.
Erion: Forum Shoppers Regret is the modern version of Buyer’s Remorse in Transnational Litigation
Erion: this is about the dangers of forum shopping. This is “forum shopping regret.” Two types of forum shopping: (1) original forum shopping; (2) subsequent judgment enforcement is too many bites at the apple.
Erion: interesting enforcement dynamic – it is forcing both sides to litigate different (sometimes conflicting) positions in different courts.
Erion: we have made an effort to be in jurisdictions that are immune from pressure from Chevron.
Erion on arbitration: we’re not a party to these proceedings and therefore they have no bearing on our right to have the judgment recognized. Not only do we see this as illegitimate, but also we think the Ecuadorian government is right. The U.S. government has a policy that the ICC or arbitration panel can’t tell the executive to interfere with the judiciary. But that’s exactly what’s happening here. This is a separation of powers issue.
(My own editorial comment): Erion is decrying forum shopping. I find this interesting because while he’s correct that Chevron shopped for the Ecuadorian court (in dismissing on forum non conveniens ground), it seems like the plaintiffs are shopping now for a judgment enforcement order.
Erion: the “kill step” is pre-baked by defense counsel. They market themselves as “an affirmative strategy” to end litigation. The Dole and Dow Chemical cases set the template for “prosecuting fraud” rather than defending mass torts.
Erion: differences in civil procedure system in Ecuador isn’t a basis to find fraud. Differences in the model isn’t a reason to find due process violations or fraud.
Howard Erichson (Fordham): to what extent do you adjust when you are thrown into a different system? But if another system isn’t as clean/legal, to what extent do you adjust to the norms and to what extent do you hold fast to the ethical norms we have here.
Erion: from the start we had concerns that this is a judiciary that could be corrupted by Chevron. The adjustment was really trying to keep an eye on the proceedings. In an outtake from Crude, Donziger said we are going to confront a judge and tell him we know he’s corrupt. And that example indicates how it is different. In the U.S., you don’t need to go to a judge and say “this ruling is illegitimate, you’ve been paid.” This isn’t something you’d do in the U.S., but the defense tactics wouldn’t fly in the U.S. also. So you need to adjust and I think that’s something we did.
Deborah Hensler: Is this really a strategy we should be recommending in terms of mediating damage, deterring damage?
Erion: This may not be the ideal model. But if you can’t hear cases in the U.S. because of jurisdictional issues, then there’s not much you can do. But I think this model has worked in Ecuador, and there has to be some form of environmental recourse. But no matter what happens, this is probably not the place where it ends.
Rick Marcus (Hastings): is American discovery urgently needed for plaintiffs to have a chance? To what extent does the absence of discovery in the civil law system in Ecuador impede your ability to get evidence? Is there any benefit to filing in the U.S. even if it is dismissed?
Erion: We did have some limited discovery in America and that did produce documents. That discovery helped us get the “intent evidence.” We won our case on judicial inspections; but the absence of discovery is a drawback. Even the limited documents we got were helpful in showing motive.
Ted Boutrous is up.
Lesson 1: one of the most disturbing patterns in transnational litigation is that they act like the traditional rules of legal ethics are abandoned.
Donziger said “if you repeat a lie a thousand times it becomes the truth.”
The sad lesson is that if you can repeat a lie it can give a short term advantage. To be clear–not every foreign suit is a product of fraud. This is a pattern (as in Dole)–they start going to foreign countries and engage in corrupt acts.
Boutrous: there are billions of dollars at stake. This isn’t do-good litigation; they are in it to make money.
Erion didn’t say anything about the securities issue. We should have another chance for questions after Boutrous and Judith Kimerling.
Boutrous: Lesson 2 is the role of the press. Donziger and his team solicited the making of Crude. We saw things in the movie and subpoenaed the outtakes. We came across a tape that said “we’re going to write the expert report, Cabrera is just going to sign it.” At the time this report was key; we found evidence from computer data, etc., that said they had written the expert report.
Boutrous is playing a clip from Donziger. Here’s the clip: http://www.youtube.com/watch?v=1N6SyeRUiw0
A few more clips, all available here: http://www.theamazonpost.com/category/caught-on-tape
Boutrous: This shows a trend of doing away with U.S. rules of law. They think it is a free-for-all. The plaintiffs’ lawyers in the Dole case also did a documentary and that failed.
Lesson is don’t engage in wrong doing and don’t tape it.
Boutrous: Lesson 3: when you try to enforce a plainly fraudulent judgment, that is a fraud too.
Last week we filed a summary judgment motion with an affidavit. That affidavit, from an Ecuadorian judge, said he was hired and paid by the plaintiffs. That order was blogged about extensively on this site earlier this week.
(Editor’s aside): we’ve got a good turnout here at Stanford Law School. Notables in the audience include a number of attorneys from Gibson Dunn’s team, Silvia Garrigo (Chevron), and reporters from the American Lawyer, Reuters and San Fran Daily Journal.
Boutrous: Lesson 4: Litigation is not the same as a media campaign.
As a lesson for plaintiffs lawyers; litigation is different; we have ethical rules, political rules.
It was a bad move to make this political. It took away the focus about science, witnesses, evidence. That’s how plaintiffs lost their way.
We have begun tweeting as well: https://twitter.com/StanJComplexLit
Boutrous: Lesson 6 (5 sort of blurred with 4): American discovery is an effective tool even if foreign proceedings.
Boutrous Lesson 7: multinational companies need to be more effective in advocating for the rule of law in countries where they invest.
Lesson 8: plaintiff lawyers are exploiting citizens in foreign countries. Internet gambling and hedge funds can’t be the driving force behind these things.
Lesson 9: lawsuits brought by U.S. plaintiffs lawyers and hedge funds don’t benefit the people they claim.
Boutrous offers an interesting pie chart showing how the money in this case is being split. We’ll try to get that chart up here.
Lesson 10: if you don’t have the facts, you can’t create the facts. [Plays two more clips from Donziger]. I don’t think this business model will be a popular model in the future.
The last sentence is Boutrous’s view.
Howard Erichson (Fordham): how is this an ethical violation if the lawyer believes in the justice that’s been done.
Boutrous: if you’re in the U.S. and you know the evidence is false, but you know he’s been injured. If you used fake evidence to solve a real injury in the U.S., you’d be sanctioned. To take something you know as a product of fraud, isn’t responsible no matter where you are.
Re Ted’s comment on Point #8 (my own editorial comment on the third party funding issue): We will have a panel following the practitioners on third party funding and I believe that will be their conclusion as well. Mr. Boutrous seems to consider the existence of a profit motivation in litigation as a bad thing ipso facto. That can’t be accurate given the widespread existence of profit motives in the contingency fee, and can’t be accurate given the fact that in the absence of the funding (as you noted) the suit would not be brought in the first place.
Deborah Hensler: if you’re representing a client in a similar type case in the future, given your experience, would you still file to dismiss on forum non conveniens grounds?
Burt Neuborne: when you put these cases in foreign jurisdictions, what do you think will happen? Both sides resort to inappropriate decisions to get the judgment.
Boutrous: You’re right that there’s got to be a better way. The big picture issue is how do we avoid this going forward. “We the U.S. lawyers need to be the ones who solve the problems” just isn’t the solution.
Judith Kimerling is now speaking. Apologies, we’re a little behind trying to catch up post while the site was down.
Prof. Kimerling is giving a little more history on the environmental problems in the country.
Just one more flashback to Burt Neuborne’s question. I think his conclusion was similar to the Plaintiffs’ point on buyer’s remorse. Prof. Neuborne’s comments suggested that part of the reason the FNC was brought in the first place was the existence of a right wing dictatorship in Ecuador at the time. Now that Correa is in power, they no longer like the forum. He questioned Boutrous on whether or not this is a “plague on both houses.” Mr. Boutrous disagreed saying there is no evidence of misconduct by Texaco/Chevron lawyers.
two points by Kimerling:
What happens to the Guarani and others with clean hands if Chevron’s collateral attacks on the judgments?
She believes FNC is being used as a litigation tactic. The standard in FNC isn’t exacting and there is no inquiry into the real adequacy of the alternative forum in transnational litigation.
Kimerling is now discussing the absence of relief for the Huaorani under the complaint and the failure to add them to the list of afectados. She is also noting the long term impacts of colonialism and the implications of the doctrine of terra nulius in enabling the oil exploration and continued exploitation of the Huaorani.
Even if the judgment is upheld on the appeal and the plaintiffs lawyers collect or they settle, the impact of aguinda on the affectados and the Huaorani is uncertain. This is shifting the focus from texacos misconduct to the misconduct of the plaintiffs. Chevron is trying to taint the credibility of the plaintiffs claims and jeopardize their rights to a remedy
Everything Matt just posted is coming from Prof. Kimerling, just to clarify.
Kimerling: our motion to intervene was denied in NY federal court. While the court acknowledged that Donziger won’t be adequate representative. But the court said Chevron could be an adequate rep. I think that’s just not the case.
Kimerling: a lesson we need to learn is allowing the members of the group to choose their own representatives.
Kimerling is concerned with the ways in which NGOs often interact negatively with native peoples. They are often excluded because when the indigenous people try to speak for themselves, the NGOs perceive a threat to their own role in the case.
Inclusion and participation also do not come because an outsider chooses members of a group to represent them. Allow the groups to choose their own representatives and choose to be engaged if they want.
The lesson we need to learn is what to do when the Huaorani try to engage with our legal system. This is important not just for the Huaorani, but also for us because the lack of meaningful participation impact the esteem of the rule of law.
“law should be about justice and the administration of justice even in the most complex of litigation.”
The most obvious and important question: “What are the true victims left with by way of remedies since this judgment is in question through no fault of their own?”
Michael Goldhaber is asking a question now. Calls Prof. Kimerling perhaps one of the only people here with clean hands. He looked at the evidence and concludes there is only one side in this case. He is appalled by those who are unwilling to accept that this can be so in the case and encourages them to look at the evidence.
Rick Marcus – asks a question about the role of US courts in fixing the problems faced by the Huaorani.
Kimerling – The Huaorani are under no illusions about the role of US courts here. The Huaorani are trying to engage with the Ecuadorian government on some separate issues. But the fact remains that Kimerling believes the Huaorani have suffered tremendous injuries as a result of Texacos actions, and two wrongs don’t make a right here. She could substantiate here allegations as to the Huaorani’s injuries here. Their former lands are uninhabitable and there are social impacts of consequence here also. The missionary activities and governmental activities to enable texaco/chevron’s activities.
If the judgment survives or some remedies survive there is a lot that could be done to ameliorate some of the injuries the Huaorani have suffered, but in order for that to happen they need to be part of the process.
Hensler: Notes her criticism on the FNC. Do you think the Huaorani would have fared any better had the case remained in SDNY? Is this issue (voice, participation) by the victims a problem that US courts address well?
Kimerling: It’s hard to speculate, but US courts have more experience managing complex litigation and understand class actions. THere are mechanisms that can help address the rights of absent class members. She recognizes it would have been hard to certify a class in the US because colonists and indigenous people have important conflicts of interest that would pose issues for commonality and predominance. But the presence of mechanisms for protecting absent class members is important, and the actual results of those procedures would have maybe had different results, but at least avenues exist for addressing those questions.
SLS Student Joel Minor – Notes the recent upswing of oil and gas production on domestic Native American lands. What can those groups learn from this experience?
Kimerling: The experience of the Huaorani and the NGOs is not uncommon. The key is engaging with indigenous peoples at a grassroots community level. Information must be shared with them and they must be respected and supported. You cannot look for a mascot to take to a press conference. This is not easy, but the native communities in Canada and the US see environmental NGOs as allies here. It’s important to engage in an open dialogue with indigenous groups to ensure that the NGOs are not the only ones running the show. Know your intermediary and know if they are legitimate in the view of then actual actors.
Hensler making her own comments here: This litigation is perhaps the largest, but not only example, of a complicated high stakes multiparty litigation that implicates important cultural issues, involves governments and key political leaders, and frequently the only resolution of these kinds of cases are the kinds that take place in court, but also involves important political figures, elected officials, and leaders of important communities.
Now we are on break until the Third Party panel.