Lago Agrio: The Response to Guerra

Do you remember the blockbuster Guerra declaration? This was the extraordinary statement by one of the Ecuadoran judges involved in the Lago Agrio case detailing Chevron’s story of corruption. I covered it in detail in my Maestro Mastro post and in a few follow-ups.

While the Lago Agrio plaintiffs’ and Donziger’s response didn’t generate as much of a splash, they did respond, and I want to consider a couple of aspects of the response. First, Steven Donziger himself submitted a declaration on a few points. Second, Donziger addressed the weight to be given the Guerra declaration on summary judgment.

The Donziger Declaration

The Donziger declaration is important, but, I have to say, it seems a bit unambitious given the breadth of Guerra’s averments.

Pastel De Manzana
Honey & Honey’s Pastel De Manzana
First, Donziger takes issues with one detail in Guerra’s description of a meeting at the “Honey & Honey” restaurant involving Guerra, Donziger, Pablo Fajardo, and Luis Yanza. Guerra had written: “During this meeting, Mr. Donziger thanked me for my work as ghostwriter in this case and for helping steer the case in favor of the Plaintiffs’.” But according to Donziger: “I deny that this occurred. I am unaware that Guerra had ever ghostwritten decisions in the Lago Agrio litigation; I am unaware of any ‘help’ by Guerra to ‘steer’ the decision in favor of plaintiffs in the Lago Agrio litigation; and I never thanked Guerra for these things.” The reason this is strange to me is that Donziger doesn’t explain what the meeting was about, if it wasn’t what Guerra claimed it was about.

Second, Guerra wrote that he had once “dared write Mr. Donziger an e-mail asking him to help me with the immigration situation of one of my children, who lives in Chicago. Mr. Donziger did not answer my e-mail directly, but he sent word through Mr. Fajardo confirming that he had received the e-mail and that he would look into the issue.” Donziger acknowledged receiving the email but denied sending word through Fajardo that he would “look into the issue” and asserted that he “simply ignored Guerra’s email.”

Third and most importantly, Donziger denies Guerra’s allegations about the second meeting at the Honey & Honey. According to Guerra:

Later on I was called by Mr. Fajardo to a meeting that took place at the Honey & Honey restaurant. Messrs. Fajardo, Yanza and Donziger were present. I summarized the proposal in detail and Mr. Donziger replied that at the moment they did not have that sum of money to pay us. Subsequently, Mr. Zambrano told me he was in direct contact with Mr. Fajardo and that the Plaintiffs’ representatives had agreed to pay him USD $500,000 from whatever money they were to collect from the judgment, in exchange for allowing them to write the judgment in the Plaintiffs’ favor. Mr. Zambrano told me he would share with me part of that money once it was paid to him.

Donziger admits he was at the restaurant with Guerra but claims that “Guerra asked for a bribe of $500,000.” Donziger says he refused and told Guerra “that neither I nor anyone on the Lago Agrio Plaintiffs’ team would do such a thing.” And the key quote:

I have never sought to pay any money in exchange for a favorable verdict in the Lago Agrio litigation, nor have I encouraged or solicited anyone else to discuss or pursue paying money for a favorable verdict.

The Response to the Statement of Facts

Donziger has submitted a response to Chevron’s statement of undisputed material facts. It’s a very long document, and I am not going to even try to review it here. I did want to comment on its treatment of the Guerra declaration, however. First, I basically agree with Donziger’s assertion (in ¶ 182) that the Guerra declaration should not be credited for summary judgment purposes because the declaration itself gives ample reason for concluding that Guerra is not credible. Second, I disagree with Donziger’s assertion that many of Guerra’s assertions are inadmissible hearsay. For example, Chevron points (¶ 184) to Guerra’s assertions that Guerra’s lawyers solicited a bribe from Chevron’s lawyers but the lawyers refused to discuss the matter and asked Guerra to stop contacting them. Donziger claims that what Chevron’s lawyer said is hearsay, but that seems pretty clearly wrong: the lawyers were not making assertions of fact; “I refuse your bribe” is not an assertion of fact, nor is “please don’t try to bribe me again.” Similarly, Guerra’s offer of a favorable judgment to Chevron on behalf of Zambrano. Donziger claims that whatever offer Zambrano told Guerra to pass along to Chevron was hearsay, but of course an offer to do something cannot be hearsay becuase it is not an assertion of fact. Or Zambrano’s request to Guerra to revise the judgment. I could go on.

The Upshot

I continue to think that while juicy and (if true) devastating, the Guerra declaration is not compelling evidence on summary judgment motions, because given the obvious credibility issues I do not think the judge can simply credit what Guerra has to say.

Photo credit: Vivi (used by permission from Foodspotting)

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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