Fair enough, Doug, though the point doesn’t really go to the point of the post. The issue isn’t really whether Judge Guerra wrote the judgment; it’s whether Judge Zambrano wrote the judgment.

While we wait to hear whether the order keeping the expert computer analyses confidential — an order requested by Ecuador, not by Chevron — will be lifted, I should point out an imprecision in your post on the Courthouse News story. You attribute to Chevron the claim that “Judge Guerra, not Judge Zambrano, actually wrote the decision.”

That’s not quite right. Judge Guerra, called by Chevron as a witness, does not claim to have written the judgment. Rather, he testified that Judge Zambrano asked him to edit a draft of the judgment on (plaintiffs’ counsel) Pablo Fajardo’s computer, merely to “fine-tune and polish it so it would have a more legal framework.” (Guerra Declaration, Nov. 17, 2012, par. 25.) Guerra says he “worked on that document in Mr. Zambrano’s residence in Lago Agrio using Mr. Fajardo’s computer. … Mr. Zambrano explicitly asked me not to make copies nor leave traces of this document nor the changes I was making, outside of the file on which I worked.” (Id.)

Guerra testified that, while polishing the draft, he “called Mr. Fajardo on his cell phone to ask him about some sections of the document that confused me. Mr. Fajardo told me not to worry and that he would e-mail me a memory aid to clarify my questions. Mr. Fajardo e-mailed me a document of around 10 to 12 pages titled ‘Memory Aid,’ with some information about the case.” (Id. par. 26.)

“Overall,” Guerra adds, “I made very few changes to this document—mostly word changes due to personal preference—and the document I returned to Mr. Zambrano was not too different from the one the Plaintiffs had given him.” (Id. par. 27.)

The upshot is that, if Guerra’s testimony is credible (as Judge Kaplan found it is), the misconduct in regard to the ghostwriting was not solely committed by the two former Ecuadorian judges. Guerra implicates at least one of plaintiffs’ counsel (Fajardo) in the misconduct. And given the extensive evidence that Donziger called the shots for plaintiffs’ legal team, it would be hard to believe that he was not also party to the ghostwriting.

In this posture of the testimony, then, the forensic analyses of Zambrano’s computers may well shed some light. To date we have heard only Ecuador’s characterization of the forensic evidence. Perhaps we shall soon hear the other side.

Dear Ted,

If the information Ecuador leaked did not lead you (and others) to draw that inference, they would not have leaked it. If it were all that compelling, why didn’t they also leak Chevron’s response? In any event, a balanced assessment can be made once we have the full forensic picture — Doug

Thanks Doug. Of course we need to wait and see what the other side says. I will say, though, that the new report apparently makes some factual assertions that seem helpful to Ecuador and that I think it is fair to assume are true (because they are black-and-white kind of statements that a good expert wouldn’t make unless true). E.g., the fact (?) that someone saved versions of the judgment with ever-increasing amounts of text on Judge Zambrano’s computer is pretty helpful to the Ecuadorans’ case. It’s difficult for me to see Zambrano as someone sophisticated enough to create that kind of forensic evidence to throw investigators off his trail.

Your “wait and see” conclusion about Chevron’s evidence on this point is well-advised. As you note, this leak was done in violation of a confidentiality order. Not surprisingly, the leak—from a party in litigation (Ecuador)—as entirely one-sided. That may give Chevron cause to seek a lifting of the confidentiality order. If the order is indeed lifted, we shall see what lies under the tent — Doug