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.

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.

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.”

Thanks, Karen. I believe these Bjorkman docs resulted from the Tenth Circuit proceeding, not the Ninth Circuit proceeding.

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.

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.

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.

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.