Lago Agrio: What About The Ghostwriting?

It’s important to distinguish between three kinds of wrongdoing Chevron alleges in the Lago Agrio case. First is the ghostwriting of the Cabrera report and the concealment of the communications and ties between the supposedly independent Cabrera and Donziger and his team. Second is the supposed bribe of the judge in the first instance court. Third is the supposed corruption of the Ecuadoran judiciary as a whole.

I list these in ascending order of seriousness. Why do I make a claim about the relative seriousness of the kinds of fraud? Well, if the only wrongdoing was the Cabrera affair, then the Ecuadoran courts, both in the first instance and on appeal, could correct whatever error resulted. Even if the plaintiffs bribed the judge, as long as the judiciary as a whole is adequately fair and impartial, the courts could still correct the error. Only if the system is rotten through and through can Chevron make its case against recognition and enforcement (or its case for denial of justice) in its strongest form. I’m not making any doctrinal argument here about what the UFCMJRA provides or what denial of justice (one of the grounds for the BIT arbitration) means: I’m just observing that the worse the corruption in the Lago Agrio proceedings, the stronger Chevron’s case. Long-time readers will know that I’m basically in favor of letting foreign courts sort out claims of corruption and the like, as long as they are systematically adequate, and that I think that Chevron’s forum non conveniens motion at the beginning of the case makes this point more persuasive than it otherwise would be.

With these observations in mind, I want to consider where things stand with regard to Chevron’s claim of the second kind of wrongdoing—the claim that the plaintiffs bribed Judge Zambrano and Judge Guerra. Why focus on this issue? Well, I think there’s little or no question about Donziger’s dealings with Cabrera. This is the strongest part of Chevron’s case. On the other hand, there’s little or no direct evidence of wholesale judicial corruption in the case, as far as I can tell. The greatest point in real dispute, it seems to me, is whether the plaintiffs bribed the judges, as Judge Guerra claims, or whether Judge Zambrano was honest, as he himself claims.

On Chevron’s side of the ledger: Judge Guerra’s testimony concerning the bribes he said he received and the ghostwriting. Forensic and other evidence supposedly showing that the judgment was copied from the plaintiffs’ materials not in the record and that Judge Guerra, not Judge Zambrano, wrote it. Evidence corroborating Judge Guerra’s account. And evidence of a modus operandi: because the plaintiffs ghostwrote the Cabrera and Calmbacher reports, it is, supposedly, more likely that they ghostwrote the judgment.

I have previously noted the inherent incredibility of Judge Guerra’s testimony, and for reasons outlined in a prior post, I do not think Chevron has managed to corroborate the testimony by pointing to other evidence that does not itself rely on Judge Guerra’s credibility for its probative value. Nor do I give much weight to the modus operandi evidence. Is it relevant? Sure. But for good reasons, the general rule in US evidence law is: “Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” That is, we shouldn’t let our conclusion that Donziger acted wrongly with regard to Cabrera lead us too easily to the conclusion that he acted wrongly with regard to Zambrano and Guerra.

So in order to reach a view on the strength of Chevron’s evidence, I am mostly interested in the evidence meant to show that the judgment must have come from documents in the plaintiffs’ sole possession and must have come from Judge Guerra, not Judge Zambrano. Then I want to weigh the evidence against the two pieces of direct evidence that support the plaintiffs’ view: Judge Zambrano’s testimony; and evidence that the plaintiffs themselves did not know in advance what the judge’s decision would be.

The computer forensic evidence linking Judge Guerra to the judgment is not very strong, as far as I can tell. On the one hand, Chevron’s experts showed that several documents on Judge Guerra’s hard disk were similar or identical to orders that Judge Zambrano issued. On the other hand, Ecuador’s forensic expert showed that the metadata associated with some of those documents suggested that the documents were created on Judge Guerra’s computer in July 2010, which I was after Judge Zambrano had issued the relevant orders. As for the other documents in question, Ecuador’s expert opinied on the basis of the “last accessed” dates, the “author” metadata, and the absence of proof of a chain of custody, that there is no forensic evidence linking Judge Guerra to the documents.

That said, while the evidence of Judge Guerra’s involvement doesn’t seem really strong, Chevron’s response to the Tarco report, which I covered previously, casts doubt on Judge Zambrano’s claims regarding the details of when he wrote the judgment, and on what computer. I don’t know the response of any of the defendants to this. Still, suppose Judge Zambrano lied about which computer he used, when he wrote the judgment, and how long it took. It’s Chevron’s burden to prove the fraud, and perhaps Judge Zambrano’s misstatements don’t do anything more than discredit his own testimony. We still need to consider the strength of the affirmative evidence of ghostwriting.

The evidence about the judgment’s reliance on material not in the record but in the plaintiffs’ files is also equivocal. The issue boils down in some sense to whether we can be confident that all of the material submitted to the court in Lago Agrio is actually contained in the official record. I come at this from a practical perspective, since I practice in one court system that uses electronic filing and docketing (the US federal courts) and one court system that does not (the Massachusetts courts). Have I ever been involved in a Massachusetts case where the docket omitted documents that I know were filed? Yes, though very rarely. So on the one hand, the official record should be prima facie evidence of what it contains and what it doesn’t contain, but on the other hand, it’s hardly definitive, and I have particular, though maybe unjustified, concerns about the ability of the Lago Agrio court to maintain an enormous and complex record with a high degree of accuracy, particularly in light of descriptions I’ve read of the courthouse. I should say that I’ve never been to Lago Agrio, so I don’t have any first-hand knowledge of conditions at the courthouse.

Against this evidence—equivocal, in my mind—let’s consider Judge Zambrano’s testimony and some documentary evidence. On the one hand, Judge Zambrano’s testimony is inherently more credible than Judge Guerra’s, insofar as there is no liar’s paradox involved. On the other hand, Judge Zambrano, too, had real credibility problems, which I’ve noted above and in a prior post.

So we come to an interesting and, as far as I know, new piece of evidence from the BIT arbitration between Chevron and Ecuador: internal LAP emails that suggest that the LAPs’ lawyers were in the dark about the content of Judge Zambrano’s ruling. For example, at the end of 2010, Pablo Fajardo, one of the LAP’s lead lawyers, wrote to his team in order to push them to finish a memorandum of law to submit to the court: “no one knows when the judge may issue his judgment … if the judge issues his judgment soon, the document will remain in our hands and will be useless. We will not run this risk …. I’m sorry my friend, but we are behind schedule with this memorandum of law, which could have serious consequences for the case.” At around the same time, he expressed doubt about how the judge would respond to some of Chevron’s new arguments. And in January 2011, after Chevron beat the LAPs to the punch and filed its alegato first, Fajardo wrote to his team: “The one who strikes first has greater success or causes greater impact … They want to influence the judge with their theory. It is a mistake on our part to have fallen asleep for so long on the alegato.”

Now, it may be that these emails are inauthentic. Or I suppose the LAPs may have had a dastardly master plan to create exculpatory documents in case Chevron managed to pierce the attorney-client privilege. But assuming neither of those things is true, these emails seem to me to be pretty good evidence that the LAPs were in the dark about what the judgment would say, and that’s hard to credit if they ghostwrote it, or if they knew in advance what it would say. If the LAPs didn’t introduce these emails as evidence in the RICO trial—which is the case, as far as I know, though it may be wrong—then I’d like to know why. This is some of their best stuff, I think.

So what conclusion do I draw? It would be easy to throw up my hands and say that the issue is a tangle and no firm conclusion can be drawn. And maybe that’s the right answer. But on balance, and given the burden of proof in both the RICO case and the BIT case, it seems to me that the better view is that Chevron hasn’t really proved the judgment ghostwriting piece of its case. I have to say I am impressed by the strength of the emails Ecuador has brought to light, which, unlike all paid expert reports or the competing testimony of Judge Guerra and Judge Zambrano, is contemporaneous with the events in question. But as I say, there is evidence on both sides, and so my conclusion is tentative.

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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