Lago Agrio: Leonard, Lynch, and McMillen—and the John Does

We have three more Chevron witnesses to report from the ongoing RICO trial: Chevron scientist Sara McMillen, linguistics professor Robert A. Leonard, Ph.D., and digital forensics guy Spencer Lynch.

Leonard & Lynch

We can deal with Leonard and Lynch very shortly. Leonard’s opinion, based on his linguistic analysis, is that the Ecuadoran judgment was cut and pasted from documents that the LAPs wrote but never filed in the Ecuadoran proceedings. It’s difficult for me, as a layman, to evaluate his opinion. Lynch gave opinions about the contents of Donziger’s hard drive (which he says contained a copy of the Cabrera report saved before Cabrera filed it with the Ecuadoran court) and Judge Guerra’s hard drive (which he says contains files that show that orders issued by Judge Zambrano were actually written by Judge Guerra). Lynch also opines that the Ecuadoran judgment contains items that were “copied, cut-and-pasted, or otherwise taken directly from the Ecuadorian Plaintiffs’ Lawyers’ Unfiled Data Compilation.” Again, there’s not much I can say about the substance of the opinion given its technical nature.

McMillen

The most interesting of the three is McMillen. Here are a few highlights.

  • She attended many of the judicial inspections of sites in Ecuador during the Lago Agrio litigation. The LAPs’ Ecuadoran lawyers, namely Pablo Fajardo and Luis Yanza attended many of the inspections, and Donziger attended a few. When Donziger was absent, “the judicial inspections were relatively calm, routine legal proceedings.” When he was present, the inspection “devolved into a media circus. There would be significant media coverage, a much more combative atmosphere that seemed to be directed more at the media than at the Ecuadorian Court, and a bus of protesters would arrive, sometimes including indigenous people in native dress.” Beginnin in2006, Donziger began bringing the Crude film crew to judicial inspections.
  • McMillen was suspicious of the LAPs’ testing laboratory, known as HAVOC, which to me sounds like KAOS from Get Smart. Her suspicions arose because HAVOC had reported results “below detection limits that could be achieved using state of the art equipment and methods in U.S. laboratories.” Chevron obtained an Ecuadorian court order to inspect HAVOC, which “was in a house or residential building, which had an exhaust duct sticking out of the upstairs window,” but HAVOC “would not permit the court-appointed expert or Chevron’s legal team access to its facility.” She points to something Donziger wrote: an inspection of HAVOC “WOULD BE A DISASTER FOR THE LAGO AGRIO CASE.”
  • McMillen gives some more details about Cabrera and his report. Like all Chevron witnesses, she calls him “Richard Stalin Cabrerar Veiga,” which I like.
    Joseph Stalin
    If your middle name is “Stalin”, expect your opponents to use your full name at every opportunity.
    My favorite bit is an example McMillen gives of suspicious behavior that, she says, led her to suspect Cabrera of dishonest work. “[T]hroughout the course of Mr. Cabrera’s inspections, Luis Villacreces, who had worked on the Ecuadorian Plaintiffs’ technical team and had been their designated expert at about a dozen of the judicial inspections, appeared to be directing specific locations for Mr. Cabrera to sample by tapping his foot in a specific spot and then nonchalantly walking away. Mr. Cabrera would then go to that exact spot and take a sample.” This is, of course, improper if true, though I think it’s curious that McMillen’s account seems to take for granted that some spots in the testing areas were indeed contaminated. The declaration goes into much more detail, much of it damning if true, about the provenance of the Cabrera report, which I will not detail here.
  • After Russell had his falling out with Donziger, he apparently approached Chevron and offered to “develop a new, more accurate estimate as a consultant for Chevron.” The two continued to communicate. If I were the LAPs’ lawyer, I would be very interested in Russell’s apparent attempts to go to work for Chevron, since they call his credibility further into question.

Cross-examinations

Unfortunately, I still have not been able to get transcripts of the cross-examinations. I asked the LAPs, who tell me that they do not have transcripts because they lack the funds. Chevron does not lack the funds, so I will ask its people next. In the meanwhile, readers may want to check out the LAPsown account of some of the cross-examination.

The John Does

I recommend Roger Parloff’s article about Chevron’s intended use of witnesses whose identities and testimony cannot be disclosed to Donziger under a protective order Judge Kaplan issued. Some of these witnesses’ testimony is being offered to corroborate the expected testimony of Judge Guerra, who needs all the corroboration he can get given the inherent lack of credibility in the testimony. (By that I mean: why should one believe anything an admittedly corrupt witness says?) Now, I am not going to try to decide whether Judge Kaplan’s protective order was well-founded or even whether it was constitutional. I do think, though, that the trial procedures raise real questions of fairness, and that I might have weighed things differently than did Judge Kaplan. Guerra is, in a sense, Chevron’s star witness, because his testimony, if believed, will establish not just that the LAPs hoodwinked the Ecuadoran court but that the Ecuadoran court itself was corrupt. Even though the case is being tried to the court rather than to a jury, I think this kind of testimony really needs to be heard in open court so that the finder of fact can really weigh the competing witnesses’ credibility, and I think there are very weighty reasons why the Does should be heard in open court, too. If this were a criminal trial, there would be no getting around the need to bring the Does face-to-face with Donziger, I think, despite what Chevron says about the risks to their safety. I would have to be very strongly convinced of the need for a protective order before taking the course that Judge Kaplan took.

By the way, I also highly recommend another of Roger’s posts, which outlines several perspectives from which one can try to understand the goings-on. Under the heading of “esoteric legal perspective,” I wish Roger had mentioned estoppel, but no one except me seems to take seriously the idea that Chevron assumed the risk of unfair courts when it asked to have the case heard in Ecuador and made representations about the high quality of the Ecuadoran judiciary. Oh well.

Photo credit: Wikipedia

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.

2 thoughts on “Lago Agrio: Leonard, Lynch, and McMillen—and the John Does

  1. I can assure you that you’re not the only person who “take[s] seriously the idea that Chevron assumed the risk of unfair courts when it asked to have the case heard in Ecuador and made representations about the high quality of the Ecuadoran judiciary.”

    1. Well, that makes two of us! Of course, any discussion of this issue has to take into account the reservation Texaco made of its right to challenge an eventual Ecuadoran judgment on the grounds permitted by New York law, so it may be, depending on what importance you ascribe to the stipulation, that this notion of estoppel is really for future cases, not for this case.

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