Let’s Focus on the Real Issues

Letters Blogatory welcomes Nathalie Cely Suárez, Ecuador’s ambassador in Washington, who gives the Ecuadoran government’s perspective on Judge Kaplan’s decision. This is the second in today’s series of reactions to the Chevron decision from the protagonists. I invited Steven Donziger and his team to participate, but I did not receive their submission by my deadline. A note for Letters Blogatory e-mail subscribers: this post has lots of footnotes, and you should read it in your browsers rather than via email.

Last week a district court judge in New York issued a decision addressing the alleged misconduct of the Lago Agrio Plaintiffs’ lawyers. There has been much confusion as to the effect of that decision on the Republic of Ecuador and what it means for the State’s ongoing arbitration against Chevron. We write to offer five points to clarify some of that confusion.

  1. The Republic was not a party to the New York action. The Republic has no interest in passing judgment on Chevron’s claims against the Lago Agrio Plaintiffs’ (the LAPs’) lawyers or on Judge Kaplan’s findings regarding such claims. If after all the appeals it is found that the LAPs’ counsel engaged in misconduct, they will be called to account under the laws of the United States. Chevron deliberately chose not to challenge their conduct in an Ecuadorian court with jurisdiction over these types of allegations. As a result, the LAPs’ counsels’ conduct is not an issue for the Republic. And to be clear, the Republic was not a party to and did not participate in the RICO action. For that matter, the Republic also is not and has never been a party to the Lago Agrio action in Ecuador or its predecessor action in New York. The Republic is instead engaged in a separate international arbitration, and it fully intends to defend its interests there.
  2. The real story should be the plight of the indigenous plaintiffs. Ecuador has a duty and is committed to protecting the rights of its citizens and environment, just as it has been appropriate and expected for the United States and its officials to understand and take a stand to protect the rights of its citizens and environment in the aftermath of the BP Gulf oil spill. Regardless of the many battles to date and those still yet to come, this is not a game. The news story here must be more than whose team is winning or losing, or who has the bigger team or more resources. The real story should be the plight of the indigenous plaintiffs—the people of the rain forest who live near Chevron’s former operations. Judge Kaplan himself recognized that there is contamination in the Oriente.The indigenous plaintiffs came to the United States to have their day in court. It was Chevron that persuaded the courts in this country that the dispute should be decided instead in Ecuador. When unhappy there, Chevron returned to its own courts. The net result: after twenty years of litigation—ten in this country and ten in Ecuador—these plaintiffs still have no relief.

    From 1965 to 1990, Chevron’s predecessor, Texaco (acquired by Chevron in 2001) controlled all aspects of oil operations in the rain forest of Ecuador. They decided where to drill, how to drill, how to dispose of wastes, and how to build all of the related infrastructure. When Texaco contracted with the Republic to extract oil, the Republic had no expertise in the area and depended entirely on the American company with decades of experience.

    Chevron argues that its predecessor did not contaminate the region; and if it did, it remediated; and if any contamination is left, then it is the fault of PetroEcuador, the State-owned company; but if there is any contamination traceable to its predecessor, then crude waste poses no risk. If Chevron devoted even a fraction of its litigation budget to real remediation, the parties together could do so much to help the people of the rain forest.

    As a preliminary matter, we have no intention of running away from our own responsibility. While PetroEcuador has taken clear and dramatic steps to improve upon the infrastructure and systems that Chevron’s predecessor left behind, PetroEcuador also must do more to remedy any contamination for which it is responsible. The Republic does not excuse bad behavior by any company, whether it is owned by the Republic or is headquartered outside its borders. But whatever responsibilities lie at the feet of PetroEcuador, the scientific evidence is overwhelming that Texaco deliberately engaged in practices that it knew would contaminate the region, that it directed its people to destroy documents and evidence of spills and accidents, 1 and that even today Texaco’s waste product may be found in abundance in the soil, sediment, and groundwater.

    Chevron’s culpability is actually worse than found. Most troubling is the discovery that Chevron (in the very litigation in which they accuse the LAPs of fraud) has itself committed a fraud on the Ecuadorian courts. It is now clear that Chevron conducted extensive secret testing at sites prior to court-observed judicial inspections so that it would know where there was—and was not—contamination. Chevron then gamed the system by sampling at known clean locations, or upstream, upgradient or at different depths from known contamination so as to avoid negative findings. Chevron then paid its experts to conclude that these tests were representative of the whole when Chevron knew in fact they were not.

    Chevron’s own experts have candidly explained that they:

    • often could not delineate where the waste pits were because the contamination (that Chevron has publicly denied) in fact migrated far afield from where they expected it to be; 2
    • shifted sampling locations away from known dirty locations “to account for this material” so that samples presented to the court would be clean; 3
    • found hidden pits and old contaminated drainage using satellite imagery and resident interviews; 4
    • took clean samples from the surface because they found contamination at depth; 5
    • found contamination more than four football fields (approximately 480 meters) away from contamination sources, 6 and “fairly ubiquitous impact” at other locations, 7 notwithstanding Chevron’s contention that the pollution had not migrated; and
    • were impressed with current operations by Petroecuador. 8

    At Chevron’s request, the only courts to have considered the evidence are those in Ecuador. And they—strictly following Ecuadorian civil law and procedural rules—unanimously found Chevron liable. This liability was upheld by Ecuador’s appellate courts, including its National Court, Ecuador’s equivalent to the U.S. Supreme Court in its civil law system.

    Chevron will continue to contest its liability. It argues, for example, that the Government released all claims against it in a 1995 settlement agreement, and that the indigenous plaintiffs are bound by a settlement agreement to which they are not a party. Suffice it to say that the Republic did not, and had no authority or power to, settle claims on behalf of any third party.

    But the point here is a narrow one. Chevron’s predecessor dumped thousands of gallons of crude waste, for more than two decades, into unlined pits in the rain forest and local streams and wetlands, and this contamination continues to this day to haunt the inhabitants of the region.

  3. The Republic has taken emergency measures to help its citizens. For its part, the Republic is taking certain emergency remedial action. In the last eight years alone, the Ecuadorian Ministry of the Environment has completed twenty-nine projects to assist the victims of the contamination, including building potable water systems and relocating those individuals directly affected. According to the Responsibility, Stabilization and Fiscal Transparency Act, five percent of the national budget has been placed in a special account and will be used to repair the impact of the environmental and social effect generated by hydrocarbons or mining activities. Additionally, Petroecuador has invested large sums of money and time to dramatically improve the infrastructure left by Chevron’s predecessor. For example, immediately after Texaco left Ecuador, Petroecuador began lining waste pits to prevent seepage of the contaminants and likewise began the process of reinjecting all production water back deep into the ground, a practice commonplace in the United States decades ago.
  4. The Ecuadorian Judiciary. Like judicial systems around the globe, including in the United States, the judicial system in Ecuador is not perfect. But it is independent, and it has received international acclaim over the last number of years for its successful implementation of judicial reforms. It is also deserving of respect in the courts of the United States.Notwithstanding Judge Kaplan’s regrettable decision to pass judgment on the Ecuadorian judiciary, the fact is that it was Chevron who persuaded U.S. courts—the same ones that are hearing the RICO action—to dismiss the environmental case from U.S. courts in favor of Ecuador’s courts. And Chevron persuaded the U.S. courts on the basis of overwhelming evidence, including some fourteen affidavits, that Chevron itself presented showing that the Ecuadorian courts are competent and fair. Judge Kaplan has ignored (or perhaps did not know) that Chevron and its predecessor have repeatedly prevailed in Ecuadorian courts, even at times when the Government was its adversary. It is troubling to us that a court of a foreign nation should pass judgment at all on the courts of another sovereign; more particularly, we fail to understand how any court could predicate much of its criticism based on the opinions of a single Ecuadorian “expert witness” when that witness is an avowed political adversary of the current Administration and was a key member of prior governments. This would be equivalent to an Ecuadorian court impugning President Obama based on comments made by a Republic party leader, like Sarah Palin, or impugning his predecessor, President Bush, on the basis of comments by a Democratic party leader.

    What else did Chevron offer the court? Chevron pointed to the fact that the President appointed a “college roommate” as the General Prosecutor. In fact, the two attended the same university but they surely were never roommates. As the Court of Appeals for the Third Circuit observed when rejecting the same argument by Chevron: “we do not view [these circumstances] as probative. After all, presidential transitions in the United States also typically include the replacement of high-level officials, oftentimes with persons who are friends, or have an even closer relationship to the incoming president, and it is not uncommon to see a shift in priorities along with a change in the presidential administration.” 9 Through its expert, Chevron also submitted newspaper articles (in this case from the Ecuadorian media) but reliance on newspaper articles is, to the say the least, inherently unreliable given the robust commentaries that exist on all sides of an issue. Even former U.S. Ambassador to Ecuador, Heather Hodges, noted that “[t]here is more than a grain of truth to [President] Correa’s observation that the Ecuadorian media play a political role, in this case the role of the opposition.” 10

    Judge Kaplan previously adopted Chevron’s views regarding the Ecuadorian justice system, and he in fact granted a worldwide injunction against enforcement of the Ecuadorian Judgment. 11 The Court of Appeals for the Second Circuit quickly and unanimously reversed him. 12 He has since chosen to accept the testimony of a Chevron witness who has admitted to being paid hundreds of thousands of dollars in cash and literally millions of dollars in financial benefits by Chevron, yet Judge Kaplan simultaneously chose not to consider evidence relating to Chevron’s own misconduct, including Chevron’s manipulation of the judicial process in the same underlying proceeding that is the very subject of the New York case. I have long admired the U.S. justice system but I join others in my Government who are troubled by the circumstances presented here.

  5. Ecuador and the United States. Chevron’s insistence on waging legal, political and public relation scampaigns in lieu of doing what is right has earned it criticism and scorn in some quarters in Ecuador. Many of us have openly sympathized with our indigenous brethren because they deserve to be heard and afforded relief after twenty years of litigation. Our expressions of support are no different than U.S. politicians offering support to the affected citizens of the Gulf Coast after the BP oil spill. 13 To be clear, however, the criticism is neither anti-American nor even anti-“big oil.” More American retirees have chosen Ecuador as their country of choice than any other non-U.S. country. The climate, beauty, safety, and cost of living in Ecuador act as a magnet for people across the globe. And just like Americans have embraced Ecuador, so too have Ecuadorians embraced America. As the U.S. Ambassador to Quito has observed, Ecuadorians are bonded to the United States, where so many Ecuadorians have been educated and have family. The two countries have common interests, including the global fight against human trafficking and drug trafficking. This relationship has also led to an increase in trade between our countries to record levels and the number of American companies doing business in Ecuador, including of note Coco-Cola’s recent commitment to expand its operation in Ecuador by upward of $1 billion over the next five years. We invite American citizens and businesses to come visit Quito, the Galapagos, Cuenca, or Guayaquil, and see why U.S. citizens and businesses have decided to call Ecuador home too.

Notes:

  1. Texaco internal letter CGE-398/72 (July 17, 1972).
  2. See, e.g., Sacha Norte 1 JI Summary at BJORKMAN00061692.
  3. See ,e.g., Sacha Norte 2 JI Summary at BJORKMAN00061703.
  4. See, e.g., Sacha Norte 2 JI Summary at BJORKMAN00061703-04.
  5. See, e.g., Sacha Sur JI Summary at BJORKMAN00061689.
  6. See, e.g., Sacha Sur JI Summary at BJORKMAN00061689-90.
  7. See, e.g., Sacha Norte 1 JI Summary at BJORKMAN00061692; Sacha Sur JI Summary at BJORKMAN00061688.
  8. Bjorkman Sacha Norte 2 JI Summary at BJORKMAN00061704.
  9. In re Application of Chevron Corp., 650 F.3d 276, 293 (3d Cir. 2011).
  10. Cable 09QUITO225 (Mar. 31, 2009). The ambassador continues: “Many media outlet owners come from the elite business class that feels threatened by Correa’s reform agenda, and defend their own economic interests via their outlets.”
  11. Chevron Corp. v. Donziger, 768 F. Supp. 2d 581 (S.D.N.Y. 2011).
  12. Chevron Corp. v. Naranjo, 667 F.3d 232 (2d Cir. 2012).
  13. In re Application of Chevron Corp., 650 F.3d 276, 294 (3d Cir. 2011) (“it is not uncommon for an American president to comment on ongoing criminal prosecutions and even urge that alleged wrongdoers be prosecuted in accord with the president’s priorities.”)

9 thoughts on “Let’s Focus on the Real Issues

  1. I heartily agree with Ambassador Cely on the overriding issue: “The real story should be the plight of the indigenous plaintiffs.” That is true, regardless of whether any ongoing environmental damage was caused by Texaco, as Donziger pretends, or by the State oil company, as Chevron argues. That is why my post proposes that the parties settle the various litigations by agreeing on a credible, impartial mechanism to assess whether there is ongoing environmental damage and, if so, who is responsible. I would hope that Ambassador Cely’s government (as well as Chevron and plaintiffs’ counsel) would give serious consideration to suspending the courtroom combat and starting to work together toward a solution. (Yes, I realize that is a tall order.)

    In responding to each of her five points, I will try to keep my comments brief:

    1. Although Ecuador was not formally a party to the RICO, Lago Agrio or Aguinda proceedings, its agents actively supported Donziger in all three. The following are merely illustrative:

    • In the RICO case, a company owned mainly by the Ecuadorian State oil company hired Donziger’s star witness, Nicolás Zambrano, a disgraced and dismissed former judge, as its legal counsel — shortly after Zambrano gave a statement supporting Donziger.
    • Also in the RICO trial, an Ecuadorian State computer technician (assuredly not acting on his own) attempted to corroborate Zambrano’s testimony, but got so tripped up in his own fictions that Donziger, after initially putting him on the witness list, decided not to call him.
    • During the Lago Agrio trial, President Correa of Ecuador met with the plaintiffs’ representatives, offered them his support, and according to their internal emails even offered to “call the judge” on their behalf. When the trial court judgment was issued, President Correa publicly hailed it as the most important in the nation’s history (thereby sending a message to appellate courts).
    • In the Aguinda litigation, in return for a written pledge from plaintiffs not to sue the State oil company, Ecuador agreed to support their opposition to the forum non conveniens dismissal. Having thus immunized the State from liability, Donziger then attempted to blame Chevron for any and all environmental damage – even though the plaintiffs’ own experts found evidence of damage caused by the State oil company.

    2. Of course the litigation should not be assessed as a game of winners and losers, but rather on whether it promotes justice. To suggest, however, that Chevron originally asked for a trial in Ecuador, and then changed its mind only when it did not like the result, is rhetorical gamesmanship. The truth is that Texaco (and arguably Chevron thereafter) agreed to comply with an Ecuadorian judgment – provided it was not procured by fraud. Yet if ever a judgment was procured by fraud, as Judge Kaplan convincingly demonstrates, it was the Lago Agrio judgment.

    (Ambassador Cely accuses Chevron, too, of fraud in environmental testing. I will look into that. But even assuming arguendo that her accusations are accurate, they further demonstrate the need for the parties to agree to a credible, impartial mechanism to resolve the environmental disputes.)

    3. I commend the Republic for helping its citizens. Will it now release the plaintiffs from their pledge not to sue the State oil company for polluting Lago Agrio?

    4. If Ecuador’s recent judicial reforms ensure independence and impartiality, then why are both the National Court and the Constitutional Court packed with President Correa’s partisans? And why were subjective elements in the selection scoring process used to enable Correa supporters to vault past otherwise more highly rated candidates? (These are not merely my concerns, but those of the international panel Correa himself appointed to review the process.)

    As for Judge Kaplan’s having to decide which of two corrupt Ecuadorian judges was lying about who wrote the Lago Agrio judgment (a judge or plaintiffs’ counsel), Judge Kaplan painstakingly reviewed, not only their testimonies, but also their cross examination (which he observed), as well as documents (such as bank, shipping and computer records) corroborating or contradicting their conflicting testimonies. Judge Kaplan weighed both their testimony and their veracity judiciously.

    5. All of us should sympathize with indigenous peoples victimized by environmental degradation. But no one’s rights can properly be vindicated by a corrupt judgment. If, instead of fabricating environmental claims in order to drum up an artificially “big number” to pressure Chevron to pay, Donziger had honestly sought and presented credible evidence of environmental damage and reasonable clean-up costs, the Lago Agrio case could have been settled years ago. If the indigenous peoples are to see justice finally done, what is needed now is an agreed process, based on integrity, rather than on the cynical litigation tactics of a lawyer (Donziger) who admits that he personally stands to rake in $600 million if his corrupt judgment is ever enforced.

    1. The five statements made by the Ecuadorian Ambassador do reflect, by her high position itself and who is representing Ecuador in the US, the position taken by her government were biased and unsolicited opinions that herself stated as if Ecuador had no standing in the proceeding that should have not interacted in this process to be impartial. We have seen and heard daily the influence of the president of Ecuador had made or interacted in this case including his ministers and judges and to say that the Ecuadorian government has no standing is inaccurate and misrepresenting.

      To ignore the realities of judicial corruption in criminal and civil case in Ecuador and its provinces is supporting the status quo that had existed from its inception of Ecuador and is part of the culture that we know well is the tradition in Ecuador.

      The lawyers that represented Ecuador were in partnership with Texaco are the real winners in this debacle because they had no accountability and were protected of any wrong doing who protected themselves and by the government of Ecuador.

      They represented Ecuador in all aspects of the partnership, they approved the methods of the clean up and had collected funds for the clean up. Then the obvious question is where are these lawyers and why are not part of the liability proceedings?

      Why the clean up and contamination reports were fabricated?

      Thanks to the proceeding in New York, we learned that Judges were bought (nothing new) and why did Correa allow this? He should have prevented this circus from becoming an international event that allowed Ecuador from being trashed around the world. The ambassador knows well that in Ecuador when someone wants justice his or her way, they can buy witnesses, police, judges at every level, lawyers, buy false witness, etc. Did I leave anyone else out?

      The Chevron vs Ecuador trial is not about cleaning the portion of the Lago Agrio that was contaminated is about sustaining, maintaining and protecting corruption in Ecuador.

      1. Thanks, Bolivar, for the comment. I take it that you are an Ecuadoran. I wonder if you would outline your political affiliations—it’s clear you have no love for the current government, and so I’m curious about your politics. Of course, you’re free not to share if you prefer not to.

  2. The most interesting piece of Ambassador Cely’s post, to my mind, is the discussion of the judicial inspections, and in particular the new documents Ecuador has obtained from Bjorn Bjorkman, one of Chevron’s experts, in a § 1782 proceeding in Colorado. (I have covered both the District Court decision and the recent decision of the Tenth Circuit).

    It’s difficult for a non-expert to judge the importance of some of the documents, and of course I don’t know what Chevron would have to say about them. One of the documents (Bates number 61703) does, however, seem damning, at least to a layman. The document seems to suggest that Chevron did a “pre-test” that uncovered some waste, which allowed Chevron’s experts to adjust the location of the judicial inspections to try to insure that no waste was found:

    The JI team repeated the borings on the day prior to the JI, discovering waste below 3m which had been missed during the PI (we drove all borings to 3.6m corresponding to the depth of the third Geoprobe segment). This discovery allowed us to shift the locations prior to the JI to account for this material.

    Why is this important? Remember that Donziger and the LAPs had raised an equitable defense of unclean hands. The defense ultimately didn’t go anywhere. For one thing, Judge Kaplan found Donziger and the LAPs had abandoned it by failing to brief it in the post-trial submissions. For another thing, the defense seems to have been based principally on the testimony of Diego Borja, presented through another witness, which as I noted previously and as Judge Kaplan found, was impermissible hearsay. But suppose Donziger had had access to the new Bjorkman documents in time for trial. Would the unclean hands defense have been any stronger?

    Maybe not. Judge Kaplan wrote that “it is well established that unclean hands is not a defense to fraud on the court.” But there are a few things to say about this. First, he doesn’t cite any authority with a holding on point. In fact, the treatise he cites, Moore’s Federal Practice, cites only a single case that makes the point in a dictum.

    Second, I’m not sure that the case cited, Marina Theatre Corp. v. Schine Chain Theatres, Inc., 278 F.2d 798 (2d Cir. 1960), is persuasive here anyway. There, the owner of a chain of movie theaters entered into a consent decree with the government requiring it to sell two of its theaters. After the sale, the buyer of the two theaters sued the seller, claiming that the seller had conspired to prevent the buyer from getting first-run movies. The buyer and seller settled the case and filed a stipulation that requested dismissal with prejudice. Unbeknownst to the court, the settlement contained a secret provision: the buyer leased the two theaters back to the seller (using a dummy corporation) in violation of the original antitrust consent decree. Later, the buyer sought to set aside the judgment so that it could prosecute its claim. The grounds for its motion was that the seller had defrauded it and that the seller wasn’t paying the rent. The judge denied the motion on the grounds that the buyer was in on the fraud and thus had unclean hands. On appeal, the Second Circuit affirmed, noting among other things that there had been no fraud on the court because the parties had stipulated to the dismissal and the court, given the stipulation, was not required to ascertain whether the settlement was legal. But the court opined that if there had been a fraud on the court, the court would have had the power to expunge the judgment even if the buyer had had unclean hands.

    I question the applicability of this reasoning to the RICO case because no one in the RICO case is asking the court to reopen, expunge, or otherwise do anything to affect the validity of the Ecuadoran judgment. Chevron is not seeking to undo a judgment, but is instead seeking affirmative relief from Donziger and the LAPs.

    I do wonder whether Donziger tried to obtain these documents, either from Bjorkman by way of subpoena or from Chevron itself by way of a request for production. If he did and if he didn’t receive them before trial, I would like to know why.

    1. Dear Ted,

      I have now looked into Ambassador Cely’s charges that Chevron committed “fraud” in the inspections. It appears that she either inadvertently mischaracterizes or unintentionally misinterprets the documents on which she relies (inspection reports by Chevron expert Bjorn Bjorkman).

      Two contextual points must be borne in mind in evaluating her charges. First, since Texaco had been only a minority participant in the joint venture with the State oil company, Texaco agreed to clean only its proportional share when it left Lago Agrio. The State oil company, in turn, agreed to clean its share. Even on the plaintiffs’ theory, then, Chevron cannot be held liable for what the State oil company failed to do. Yet the Ambassador cites pollution from wells which the State oil company, not Texaco, was supposed to clean, but did not.

      Second, after Texaco ceased operating in Lago Agrio in 1990, the State oil company greatly expanded oil production there, drilling more than 700 new wells. It also greatly expanded oil spills. The State company’s own reports admit that it was responsible for over 500 spills from 1990 to 2009, thereby releasing some 125,000 barrels of oil into the environment in Lago Agrio. (The newspaper El Universo reports a much higher number – over 1400 spills during 2000-2008 alone.) Again, even on the plaintiffs’ theory, Chevron cannot be held liable for the State oil company’s spills. Yet many well-meaning people who visit Lago Agrio are shown the residue of these spills, and are left to believe that they were caused by Chevron.

      In regard to the Ambassador’s specific charges:

      Pollution migration: Claiming that “contamination (that Chevron has publicly denied) in fact migrated far afield from where they expected it to be,” she cites Bjorkman’s report on the Sacha Norte 1 oil production station. Yet the State oil company, not Texaco, was responsible for pit remediation at Sacha Norte 1. Bjorkman confirmed only that the State in fact failed to clean up this location.

      Secret Pre-testing: She asserts that Chevron conducted “extensive secret testing” before the court’s judicial inspections. Yet the pre-tests were openly performed by both sides – on occasion simultaneously. For example, Bjorkman’s report on Sacha Sur reports that the plaintiffs’ team, “including Pablo Fajardo himself, was there both days” during Chevron’s pre-inspection. Chevron explains that its purpose was to obtain an understanding of the sites in order to respond adequately to the judge’s instructions during the limited time available for the judge’s inspection.

      Surveillance: She objects that Chevron found hidden pits and contaminated drainage using satellite imagery and resident interviews. Yet this is entirely consistent with the experts’ trying to find where to inspect — in a zone where Chevron itself never operated, and from which Texaco had exited many years before.

      Abuse of Pre-testing: She claims that Chevron “shifted sampling locations away from dirty locations ‘to account for this material’ so that samples presented to the court would be clean.” She cites a Bjorkman report which Ted, too, finds “damning, at least to a layman,” because it “seems to suggest” that Chevron found waste in a “pre-test” and then moved the location of the judicial inspections to try to avoid finding the waste.

      But there is a less sinister explanation. As Chevron explains, it is standard practice to use sampling to establish a “clean perimeter” around sources of petroleum impacts, in order to determine the extent of their impact. Finding a dirty location simply means that you have not gone far enough out from the site to establish a “clean perimeter.” In order to “account” for the waste it found in the pre-test, then, Chevron had to move its sampling farther out to find a clean perimeter.

      As Ecuador’s own environmental expert testified in his deposition, he saw no evidence that Chevron used pre-inspections to selectively sample “known clean locations.” Likewise Judge Kaplan noted during the trial that “suggesting something nefarious about perimeter sampling” was “a bit of a stretch.”

      Avoiding depths: Ambassador Cely alleges that Chevron “took clean samples from the surface because they found contamination at depth.” That is inaccurate. Bjorkman’s notes on Sacha Sur, for example, confirm that he took samples at depth, explaining, “Because the presence of degraded petroleum was so evident, I considered it essential that this deep material be collected and analyzed for degradation, so we can demonstrate it poses no current risk.”

      Distant contamination: Ambassador Cely claims that Chevron’s experts found contamination “more than four football fields (approximately 480 meters) away from contamination sources.” Yet in finding that pollution (at Sacha Sur), Bjorkman wrote in his notes, “It is unlikely the station could be the cause of this [contamination], and the likely culprits are the spills from the pipeline racks [operated by the State oil company] along the road.”

      State oil company: Ambassador Cely claims that Chevron’s experts were “impressed with current operations” by the State oil company (Petroecuador). In fact, Bjorkman was recording his surprise that the station in question (Sacha Norte 2) was well run, because that contrasted with the “all too common problems” he found at other Petroecuador sites, including “condensate spills,” discharge of dirty water into creeks “(especially at night”), and oil spills into waterways.

      In short, while I share Ted’s cautionary note that it’s “difficult for a non-expert to judge the importance of some of the documents,” it seems to me that there is less here than meets the eye. I realize that Ecuador would prefer to neutralize the extensive evidence of Donziger’s fraud by claiming in effect that “Chevron did it too.” However, Ambassador Cely will need to come up with far more persuasive evidence than this, if she hopes to make out a case of fraud by Chevron.

  3. Ted, again weighing in late, but I would like to draw your attention to this December 2011 press release I wrote on the topic you raise about Chevron’s testing protocols, which directed its employees to pre-test for clean areas.

    This information resulted from the Republic of Ecuador’s discovery of Bjorkman documents. Judge Kaplan would not allow into evidence testimony about this protocol during the trial.

    He “credited” the corrupt former judge who Chevron paid at least $360,000 for his testimony, but refused to credit my testimony about this testing protocol that I wrote about, based on documents from Bjorkman discovery in a Colorado court.

    Chevron and Judge Kaplan accused me of lying in public statements and in press releases about Chevron’s manufacturing of evidence submitted during the Ecuador trial, yet I was not allowed to show that I did not misrepresent or lie about Chevron’s conduct in Ecuador.

    The Republic of Ecuador won an appeal of additional discovery before the 9th Circuit in January of this year. Some of the documents in Ambassador Cely’s post are the result of this effort, I believe. Read this for more details.

    Other Bjorkman-related documents can be found here.

    1. The pre-testing documents discussed in Ms. Hinton’s December 2011 press release had their day in court. They were admitted into evidence in the RICO trial and were the subject of questioning and testimony, but failed to impress Judge Kaplan. Even Ecuador’s own environmental expert testified in deposition that he saw no evidence that Chevron used pre-testing to selectively sample “known clean locations.”

      Hinton complains that she was accused of lying but was not allowed to defend her interpretation of the pre-testing documents. In fact, the evidence in the RICO trial that she disseminated false information via public statements and press releases had nothing to do with pre-testing. Her disinformation at issue involved false claims that judicial expert Cabrera was independent from the plaintiffs, which he was not; that 30 times more oil was spilled in Lago Agrio than from the Exxon Valdez, which plaintiffs’ lawyers knew was untrue; and that the Lago Agrio clean-up would cost $6 billion — even after the consultant who invented that figure disavowed it and demanded that it not be repeated.

      Judge Kaplan found that Donziger’s insistence on repeating these lies in press releases, in order to pressure Chevron to settle, was one factor leading to his conclusion that Donziger committed “multiple extortionate acts.”

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