Letters Blogatory

The Blog of International Judicial Assistance
By Ted Folkman

Ghostwriting the Lago Agrio Judgment: The New Forensic Evidence

The indefatigable Doug Cassel is back with a pro-Chevron look at Ecuador’s forensic evidence regarding the judgment ghostwriting allegation in the Lago Agrio case. It’s fair to say the evidence is equivocal—both sides have a case to make. Here is Ecuador’s new brief addressing Chevron’s arguments: I hope to have an Ecuador advocate give Letters Blogatory readers a post about Ecuador’s position soon. My basic perspective is this: perhaps the evidence that seems to suggest that Judge Zambrano actually wrote the judgment can be challenged; but the fact that there is such evidence gives me reason to think that he did write the judgment. Otherwise, we have to think that Judge Zambrano created false evidence at the time of the judgment to make it appear that he wrote the judgment. How can that be if, as Chevron suggests, Judge Zambrano is a chucklehead? I don’t believe he could have been that devious. I am also influenced by the presumption of regularity, which I do not think we can discard in this case without making the argument profoundly circular. And as long-time readers know, I found Judge Guerra’s testimony deeply unconvincing.

Update: Adam Klasfeld has responded to Doug Cassel’s criticism.

A Courthouse News reporter recently penned a purported bombshell: according to a leaked brief written by Ecuador’s lawyers in its international arbitration with Chevron, Ecuador’s computer expert found no evidence in Judge Nicolas Zambrano’s computers that the Lago Agrio judgment was ghostwritten. Instead, the expert claimed, a file containing the judgment was created in a Zambrano computer and then saved and edited hundreds of times. Contrary to the findings of US federal Judge Lewis Kaplan in Chevron’s suit against Lago Agrio lawyer Steven Donziger, Ecuador’s expert supposedly confirmed that the computer evidence was “consistent” with Zambrano having written the judgment.

The story was shaky from the start. The Courthouse News reporter had not seen the actual report by Ecuador’s expert, J. Christopher Racich. The story quoted only from an unredacted copy of a brief written by Ecuador’s lawyers, to which the story linked. Even though a computer amateur can easily ascertain from the metadata that the “author” of the linked copy is “Karen Hinton”—Donziger’s PR person—the reporter did not let on that his source was an interested party (although he did disclose the admission by his source that the leaked document came from the office of Ecuador’s Attorney General).

The reporter clearly had not seen either Chevron’s briefs or the expert reports filed in the arbitration on its behalf by Spencer Lynch, Director of Digital Forensics in the London office of the forensics firm Stroz Friedberg. The reporter did not even know that Lynch had filed a rebuttal to Ecuador’s expert.

The reporter also evidently saw nothing amiss in the oddity of Ecuador’s leaking its lawyers’ characterization of a report which Ecuador itself—over Chevron’s objections—had asked the arbitral tribunal to keep confidential. Because of the confidentiality order, when the reporter asked for comment, Chevron could not disclose what the expert reports actually say.

Following the leak, Chevron asked the arbitral tribunal to lift the confidentiality order. The tribunal only partly agreed. It allowed Chevron to make public its own briefs. But the underlying forensic analyses of Zambrano’s hard drives, by Chevron’s expert Lynch and by Ecuador’s expert Racich, remain confidential—at Ecuador’s request and over Chevron’s objection—except to the extent they are quoted in the lawyers’ briefs.

Even this limited disclosure, however, demonstrates that the Courthouse News reporter was suckered by Hinton. The new information shows that the reporter got the story backwards: Instead of confirming Zambrano’s claim that he wrote the Lago Agrio judgment, the forensic evidence from his computer hard drives contradicts his claim.

Testifying in Donziger’s trial, Zambrano repeatedly insisted that he spent long hours daily, from October or November 2010, until the nearly 200-page Lago Agrio judgment was issued on February 14, 2011, singlehandedly drafting the judgment. He claimed he did so entirely on his “new” computer. He testified that he dictated most of the draft to his 18-year-old typist, and typed the rest himself. No documents or text, he claimed, were ever inserted into the draft from any other source.

Chevron’s expert Lynch examined the hard drives on Zambrano’s two computers (both his “new” and his “old” computer) to see whether they were consistent with Zambrano’s testimony. They were not. As quoted in Chevron’s newly disclosed brief, Lynch concluded, “In summary, the totality of available forensic evidence is inconsistent in all material respects with Mr. Zambrano’s testimony describing how the drafting of the Ecuadorian Judgment occurred on the New Computer.”

Lynch also found that even the fallback story hypothesized by Ecuador’s computer expert – that Zambrano, contrary to his testimony, in fact saved successive drafts of the judgment on his “old” computer—is shot through with holes.

In contrast, the forensic evidence in Zambrano’s hard drives is consistent with Judge Guerra’s testimony for Chevron, namely that the Lago Agrio judgment was drafted on plaintiffs’ lawyer Pablo Fajardo’s computer, and that Guerra, at Zambrano’s request, “fine-tune” and “polish” the draft—on Fajardo’s computer—making “very few changes”.

Zambrano’s “New” Computer

Zambrano testified that he drafted the entire judgment on his “new” computer. This was no casual recollection. He pressed his claim repeatedly and insistently. He used his “new” computer instead of the “old” one “because it was the more modern computer.”

Forensic analysis belies Zambrano’s claim. The only copy of the full judgment text on his new computer was added in July 2011—five months after the judgment was issued. During the six weeks preceding the issuance of the judgment, from December 28, 2010 to February 14, 2011, when Zambrano was supposedly working overtime on the judgment, the Microsoft Word program he would have used to draft the judgment on his “new” computer was open for a grand total of only four hours. He could not possibly have dictated or typed the judgment on his new computer as he claimed.

Ecuador’s Fallback Story

Ecuador’s expert tries to explain away the absence of any judgment on Zambrano’s new computer during the drafting period. He raises the possibility that the judgment was repeatedly saved on Zambrano’s “old” computer—even if Zambrano did not realize it.

The basis for this surmise is a document in Zambrano’s old computer called “Providencias” (which means, in legal Spanish, court orders in matters of little importance). Providencias was repeatedly opened and saved on the old computer during the period when Zambrano claims to have written the judgment. It contained progressively increasing amounts of the Lago Agrio judgment text. Ecuador’s expert assumed that Providencias was the document that became the judgment.

There are multiple problems with this theory. First, how could Zambrano have believed he was drafting the judgment on his new computer, when in fact he was saving it on his old computer?

Ecuador’s expert explains that Zambrano’s old computer could be accessed via the new computer. He conjectures that, even though Zambrano thought he was editing and saving Providencias on his new computer, he was inadvertently saving it on the old computer.

Unfortunately for Zambrano, this theory is contradicted by the hard drives. Chevron’s brief quotes the finding by its expert Lynch: all versions of judgment text found in Providencias during the relevant period “were saved by the Old Computer, and not through … the New Computer.”

How does Lynch know that? As quoted in Chevron’s brief, he explains, “Had any of those versions been saved using the New Computer the metadata for those versions would reflect that they had been saved using the New Computer.”

In short, Zambrano neither saved Providencias on his new computer, nor mistakenly thought he was doing so while in fact saving it on the old computer.

Ecuador’s expert also assumes a drafting schedule that renders his theory a physical impossibility. He posits that Zambrano began drafting on October 11, 2010 (the date Providencias was opened). But on that date the new computer had not even been shipped by its manufacturer. The new computer was not purchased by Ecuador’s judiciary until November 26. It was not used for the first time until December 7. So for the first two months of the expert’s assumed drafting schedule, Zambrano could not possibly have used a computer he did not yet have. He could not have been drafting Providencias on his new computer, while unknowingly saving it on his old computer.

Did Zambrano Forget?

So Zambrano did not draft the judgment on his new computer. But maybe his memory was mistaken. Might he have drafted it on his old computer?

Even aside from contradicting his emphatic testimony, this second fallback theory, like the first, suffers from multiple credibility problems. To begin with, would we not expect a judge drafting a judgment (let alone a multi-billion dollar judgment) to save it as a separate document? Yet the Providencias document on the old computer contains the texts of various documents. The Lago Agrio judgment is only one among them.

There are also unexplained discrepancies between the judgment on Providencias and the judgment as issued. The latest judgment text in Providencias on Zambrano’s old computer was saved after the real judgment was issued. But the headers in Providencias do not match those of the real judgment. Ecuador’s lawyers try to explain this away. They argue that when judgments are issued, Ecuador’s computerized judicial records system automatically inserts a header. That could explain a discrepancy if Providencias had no header. But in fact Providencias had a header—only the wrong one.

Ecuador’s computerized judicial records database casts further doubt on Ecuador’s supposition that Providencias was the document that became the judgment. Chevron’s brief notes the finding by Lynch, based on records from Ecuador’s database, that the judgment does not appear to have been uploaded into the database from either Zambrano computer.

Finally, Excel program data confirms that Providencias could not have been the document that became the final judgment. As quoted in Chevron’s brief, Lynch found that the real judgment “contains data from two different Excel spreadsheets, including statistics calculated across thousands of rows of data.” Yet during the period the judgment was drafted, Excel was opened for only four minutes on Zambrano’s computers—far too little time to input that volume of data and calculate the statistics.

Lynch concludes that “based on the recorded activity of the Excel program, it would not have been possible, in the amount of time Excel was recorded as having been used, to use either of the Zambrano computers” to derive the statistics appearing in the judgment, or even to copy the Microsoft Excel data into Providencias.

Who Really Drafted The Judgment?

Zambrano’s hard drives do not, by themselves, reveal who drafted the judgment or on what computer. What they evidence is that Zambrano’s claim—that he drafted the judgment on his new computer—is inaccurate.

In contrast, the evidence from Zambrano’s hard drives is consistent with Guerra’s testimony. If, as Guerra testified, plaintiffs drafted the judgment on Fajardo’s computer, and Guerra then fine-tuned it on Fajardo’s computer, that would explain why the judgment cannot be found on either Zambrano computer, and why Ecuador’s judicial database appears to show no uploading of the judgment from Zambrano’s computers.

But does the forensic evidence admit the possibility that plaintiffs drafted the judgment on Fajardo’s computer, as Guerra says, and then periodically inserted portions of the text into Providencias?

Even though Ecuador’s expert unavailingly tries to discount this possibility, the answer is yes. Ecuador’s expert argues that no document listing plaintiffs’ counsel as author can be found on Zambrano’s computers. But that proves nothing: if plaintiffs merely inserted excerpts of other documents into Providencias, no author listing would appear for the inserts.

Could plaintiffs have done so? Again, the answer is yes. Both experts agree that the computer evidence suggests that external texts—not found on either Zambrano computer—were inserted into Providencias. In addition, the forensic evidence shows that multiple USB devices (typically called “thumb drives” or “flash drives”) were inserted into both Zambrano computers during the judgment drafting period.

Ecuador’s expert argues that no Lago Agrio documents were inserted via the USB devices. He notes that none of the USB document names refer to the Lago Agrio case. But several USB documents have generic names such as “KKKK.doc” and “Documento 1.doc”. Neither expert knows their contents. And if plaintiffs—who used code names even in their internal emails—were secretly passing ghostwritten texts, they would hardly label their documents with incriminating names.

In addition, the citations to foreign cases in Providencias—from the US, England, France and Australia — almost certainly came from an external source. Zambrano knows neither English nor French. In Donziger’s trial he explained that his 18-year-old assistant found these foreign language cases through internet searches and then translated them through internet translation services.

In an effort to support this whopper, Ecuador’s expert reported that Zambrano’s computers show internet searches on Google, Bing, Lexis Ecuador and other search engines. But in fact no search of a legal research site—with one exception—was done during the period the judgment was supposedly drafted. That one exception was a search on the Spanish language search engine “fielweb.com.” Yet as a Spanish-speaking expert reported for Chevron, the foreign language cases cited in the judgment cannot be found on fielweb.

The foreign citations, then, came from an external source. Again, the most plausible explanation—and one consistent with Guerra’s testimony—is that the citations came from plaintiffs’ multi-national, multi-lingual legal team. But wherever they came from, they apparently did not come from Zambrano or his young assistant.

Conclusion

The foregoing highlights do not exhaustively summarize the briefs on the lengthy forensic reports. Readers are welcome to review the full briefs here and here. Given the passage of time and possible destruction of documents, the forensic evidence in Zambrano’s hard drives, by itself, might not be conclusive on all points. But in the words of forensic expert Lynch, the “totality of available forensic evidence is inconsistent in all material respects” with Zambrano’s tale of how he drafted the judgment. The new evidence also shreds Ecuador’s fallback story.

In contrast, Zambrano’s hard drives are consistent with Guerra’s testimony, which was found to be credible by US Judge Lewis Kaplan after hearing and observing both Zambrano and Guerra on the stand. Far from supporting Zambrano, or validating the leak to Courthouse News by Donziger’s PR person, the forensic analyses of Zambrano’s computers provide strong corroboration of the other extensive evidence—forensic, physical, testimonial and circumstantial—that the Lago Agrio judgment was ghostwritten.

Ted Folkman

25 responses to “Ghostwriting the Lago Agrio Judgment: The New Forensic Evidence”

  1. Kevin Jon Heller

    I find it distressing that Cassel has once again aggressively defended Chevron without making clear that he has been paid by the company in the case that is the subject of the post. At least this time there is a reference to Chevron in Cassel’s biography at the bottom of the page; when he aggressively defended Chevron at my blog, a reader could only discover that Cassel had been a paid advocate for the company in the Lago Agrio litigation by reading a four-page letter reachable only by clicking on a hyperlink in the middle of his post.

    That said, the reference in the bio is plainly inadequate from a conflict-of-interest standpoint. A reader will only know from reading Cassel’s bio that at one point he worked for Chevron in IACHR proceedings; he or she will not know (and will have no obvious way to find out) that the IACHR proceedings in question involved the Lago Agrio case. That’s a significant difference — not least because Cassel has the temerity in the post to fault the Courthouse News reporter for not disclosing that Karen Hinton is Donziger’s official PR spokesperson! (A fact far more easily discovered than Cassel’s financial ties to Chevron in this case.)

    Reply
    1. Ted Folkman

      Well, please don’t blame Doug for the bio, which I think I wrote. But it’s fair to note that Cassel has worked for Chevron on matters relating to the Lago Agrio case, and I’ve done so a few times before. As to the adequacy of disclosure, I think the question has to be: adequate for what? I think your objection is that the lack of a discussion is contrary to scholarly norms, which may well be. I will leave the two of you to hash that out.

      I will only add that the word “indefatigable” in my introduction to Doug’s post was meant, first, to acknowledge Doug’s many valuable contributions to this blog, but also I suppose to suggest to readers the question why a specialist in international human rights law has taken such a deep dive into the minutiae of computer forensic evidence.

      By the way, it’s not clear to me that either Cassel or Hinton is currently being paid for their advocacy, but I’m not sure.

      Reply
      1. Karen Hinton

        I don’t know how many times I have to repeat that I am not being paid by anybody and haven’t been since March 2013. I even said it under oath. I do what I do because I believe Chevron is responsible for cleaning up the mess it bought in Ecuador; that company executives and their lawyers manufactured and bought evidence in the RICO case and manipulated evidence in the Ecuador trial; that it has known from the beginning that the Texaco “cleanup” was a joke; that by not admitting that Texaco faked the cleanup and, as a result, encouraged people to build homes on and near the pits, Chevron executives put even more people’s lives and health in jeopardy.

        Chevron’s case is unraveling bit by bit, and my bet is Professor Cassel will have some explaining to do one day soon enough.

        The only way to know what the Racich and Lynch reports say is to unseal them and make them public. We have asked the Government of Ecuador and Chevron to release them. They both have ignored us. (And, if the Racich report helped Chevron’s case, you can believe its herd of lawyers and PR types would figure out a way to make its findings public.)

        The private arbitration lawyers serving as yet another appellate court on the Ecuador judgment (Judge Kaplan is the other) won’t release the report either.

        If this were in a real court and if it were a criminal case, Chevron would be required to release the Racich report. Instead the report is being held hostage by a kangaroo court, and Chevron characterizes the RICO charges as criminal while officially they are civil charges.

        So, lock me up in kangaroo jail for trying to shed some light on the matter. Clearly, I am not a very good sleuth because I didn’t even know to erase the metadata when I saved the PDF document linked to in the Courthouse News story.

        And, by the way, Professor Cassel, I didn’t “author” anything. I saved the document written by the Government of Ecuador’s lawyers, which nobody is or was trying to hide. If this is how Professor Cassel defines “author” then that’s another good reason to doubt his views on who “authored” the Ecuador judgment.

        And, hello, reporters routinely write about one side’s arguments in legal briefs. Courthouse News gave Chevron its chance to respond.

        Setting aside what all the lawyers on all sides of this case have or have not done, the oil executives at Texaco treated Ecuador like a trash dump. Maybe the government was so immoral and corrupt, it allowed it to happen. Maybe the government didn’t care about the indigenous. Or maybe the government didn’t know better. It doesn’t matter. Texaco destroyed the rainforest and put people’s lives at risk to save money and Chevron has done nothing but try to cover it up.

        (BTW, the US government could have done a helluva lot more to protect Gulf Coast residents from BP’s sloppy practices, but it didn’t. That fact didn’t exonerate BP.)

        Professor Cassel, a human rights advocate, can beat up on Steven Donziger, Pablo Fajardo and other supporters of the case all he wants — we are capable of defending ourselves. But to go to the lengths to which he has to defend the actions of Chevron and, as a result, impede efforts to help the indigenous and villagers, who are innocents in all of this, is beyond belief and shocking and will, one day, require that he dance permanently with the people who brought him to this party.

        Reply
        1. Ted Folkman

          Well, for a “kangaroo court,” the tribunal just gave Ecuador a pretty favorable ruling! I don’t see that anyone who has read the excellent briefs on both sides and the tribunal’s various decisions can doubt the high quality of the proceedings, regardless of his views on whether the tribunal’s decisions have been right or of the merits of bilateral investment treaties generally.

          Reply
          1. Karen Hinton

            Yes, they did, but I’m not going to kiss the ring of someone who has no right to be wearing it.

            These arbitration panels are rife with conflicts. This one has been underway since 2009. Each panelist is paid by the hour. How many hours have they billed the people of Ecuador and Chevron shareholders since 2009? What’s the hourly rate? Do you know, Ted?

            You don’t because the whole thing is secret.

            It took the panel five years to tell us what we all already knew. The individual claims were never released by the Government of Ecuador primarily because the Government did not have the ability to release them.

            Reply
            1. Aaron Page

              And generally, just imagine you were accused of a crime, a proceeding established to hear the charge, but instead of being allowed to appear and defend yourself with counsel of your choice, you are told a lawyer for the State will be appearing in opposition to your accuser. Okay, you say, let me have a talk with this lawyer, explain the situation, even direct him or her how to defend the case. No, that would be “collusion” you are told. Just let the State handle it, it will “defend” you, sorta, at least to the extent that would serve its own interests. Let me at least sit in the courtroom and see what’s going on, you ask. Nope, not gonna happen. Let me at least see the docket. Nope. Well, okay, maybe a brief or two every now and then, if we are forced to, and only after we castigate you for having the temerity to ask. Who do you think you are? Just sit and wait for judgment why don’t you?

              Without disrespect to the Republic’s advocacy, this is where it all starts to feel more than a little kangarooey…

              Reply
            2. Ted Folkman

              Well, I guess the answer is that if you don’t like arbitration and don’t like, for example, the fact that arbitrators are paid for their time, then don’t agree to arbitrate, as Ecuador has done.

              Reply
              1. Aaron Page

                Ecuador didn’t so agree. What it did was sign a BIT at a time when the notion that arbitrators would assume jurisdiction over a dispute of this nature was inconceivable. Arbitrators’ aggressive expansion of their own jurisdiction in the time since Ecuador signed the BIT has been criticized widely in contexts entirely apart from this case.

                I would note that of the two “claimants” in the arbitration, TexPet is not a U.S. investor and Chevron claims to have “never done business in Ecuador.” As arbitrators do, the arbitrators here neatly navigated these facts find jurisdiction under the BIT and keep hold of the case. Whatever one thinks of the merits of the jurisdictional question, the idea that “Ecuador signed up for this” or whatever is silly.

                Reply
                1. Ted Folkman

                  Well, I’ll be more precise. If you don’t like the idea of arbitrators empowered to decide the scope of their own jurisdiction, then make a more narrowly drawn agreement.

                  Reply
                  1. Aaron Page

                    Come on. When this was signed in the early 1990s, the neoliberal consensus was at its height of power, Ecuador was basically acting as a vassal state at the time, and the US position was that it would not really negotiate the model BIT text at all, certainly not the dispute resolution provisions. It was take it or leave it, and leave it meant exclusion from the US market when all your neighbors were signing on the dotted line. It was strong-arm diplomacy.

                    As it happens, Ecuador has in fact gone ahead and withdrawn its consent to arbitrate to disputes like this, and has proposed a different system. Other countries have withdrawn from ICSID entirely. Proponents of the system know perfectly well that it fundamentally lacks buy-in. The legitimacy crisis is pretty much all that is talked about at conferences, and while most of the rank and file (I used to be one) would seriously be interested in reform, the power-brokers, including people like Doak Bishop and Jan Paulsson and others currently on Chevron’s payroll, will not let it happen. The system could develop legitimacy and credibility slowly over time, by acting responsibly within the understood rules and settled expectations. Instead you see tribunals contorting themselves to expand their jurisdiction, and leaping into ugly corporate power plays like this case, corps going after countries for regulating tobacco, going after Argentina for dealing with its crushing economic crisis, going after countries for implementing health care reforms, for enforcing environmental regulations, and so many others. Some of this is because of arbitrators’ pro-corporate sympathies, but a lot of it is because each individual arbitrator doesn’t have any secure tenure, doesn’t know when his next appointment is coming, and is thus deeply incentivized to milk his or her matter for everything its worth.

                    As someone who actually harbors some neoliberal sympathies (a dangerous admission in my line work) and understands the importance of international trade, I think it’s actually kind of sad that this latest round of massive trade deals is likely to go down in flames because the power-brokers will not adjust the playbook and will come back from their secret negotiations with the same dispute mechanisms to fuel the same problems. It is faction warfare and circling the wagons at this point, a fairly negotiated trade deal is nowhere in sight.

                    So the “Ecuador signed up for this” line is not true, not fair, and self-defeating. International arbitration has not done well with this kind of thinking. Gotcha is not the right game for sovereigns, and it’s certainly not a long-term strategy. You can bring them to heel, and Ecuador has certainly been brought to heel in the past, and that’s why John Watson himself does the rounds lobbying for cancellation of trade preferences every year. But he’s not getting anywhere, and hopefully won’t anytime soon, because US constituencies aren’t going to tolerate the same kind of approach as they did in the 1990s.

                    Alright, it looks like I’ve wandered far afield enough for the night. Going to bed.

                    Reply
                    1. Ted Folkman

                      Fair enough. They made a bad deal that they’ve since thought better of.

    2. Aaron Page

      To follow up a bit, I would add that the IACHR thing is a fig leaf. It was a precautionary measures petition that lasted a matter of days. It’s main significance was that it landed Cassel a “consulting” gig with Chevron. Even that, well — not pretty but so it goes. Except that’s not how Cassel plays it. In the years since the IACHR “representation,” he will occasionally put out letters and advocacy claiming his only association with Chevron was in the past. Then apparently he re-ups his contract, and admits to being a paid consultant. Then back again. I guess Ted wrote the bio, so I’m not sure whether the “WAS an advocate” line is Cassel’s current position or if he is currently in the mode of copping to an engagement. I guess who cares if everybody knows — but it is aggravating.

      As for the rest of us, as I think I’ve always been identified in my posts on this blog, I’ve worked with and represented the Ecuadorian communities and Donziger on and off for nearly a decade. I am definitely their advocate — whether I am a paid one depends on whether there is money for paying. After enduring five years of a massive collateral litigation campaign (including discovery litigation against me personally), the Ecuadorians are hardly in a position. While I hope to go back to being their “paid” advocate one day (would certainly help w the childcare bills) I am in it for justice more than money and stick with it as much as I can. I have never pretended during the times that I am out-of-pocket that my advocacy is more or less independent.

      Reply
  2. Aaron Page

    Ugh. Cassel’s intellectual dishonesty continues to astound. For example, throwing in the nonsense point about French language citations. The one French law portion of the judgment was part of a large chunk of analysis taken in toto from an Ecuadorian Supreme Court decision. No French language skills were required. The fact that Chevron/Cassel still so desperately cling to stuff like this shows just how hard their world is crumbling.

    I will address the facts of the new hard drive data elsewhere as soon as I can. Even without access to the underlying reports, the hard drive data is devastating to Chevron. Devastating.

    The data shows the judgment being written, day by day, on Zambrano’s computers, in Zambrano’s office. A formative draft of the judgment is on Zambrano’s computer in Zambrano’s office in October 2010.

    Guerra’s story at trial (after multiple changes as evidence disproved story after story) was that the Plaintiffs wrote the judgment and gave it to Guerra/Zambrano in late January 2011. Oops.

    Ok, says Chevron, let’s start over. Ok, so maybe Guerra, um, even he claimed an intimate relationship with Zambrano, didn’t know that the Plaintiffs had been feeding Zambrano the judgment piece by piece, in disguised files, so that he could insert them into the running draft of the judgment on his computers in his office and save it hundreds of times so that it looked like he wrote it? Sure Zambrano and the Plaintiffs trusted Guerra enough to supposedly hand him a computer with a draft of the judgment on it weeks before it was issued, they just didn’t trust him enough to let him in on the whole months-long draft-feeding campaign. Sure Guerra claimed he was in and out of Zambrano’s office during the time period when these drafts were supposedly being fed and saved hundreds of times, but that doesn’t mean Guerra would know about it. So, now we Chevron have got our new conspiracy theory — now you, Plaintiffs, who we have bankrupted with collateral litigation, disprove it! Or you’re fraudsters, ah ha!

    Or, maybe, Guerra is just lying his ass off. Big surprise.

    Seriously people, why are we still even entertaining Chevron’s increasingly elaborate conspiracy theories – out with the old, in with the new, month after month, each tailored to fit the evidence as it comes up?

    For me the real question is, is Guerra a brilliant schemer, who duped Chevron and is now sitting in the US with his Chevron-paid house, car, monthly stipend, and pile of cash, laughing his ass off? Though he admittedly had to change his story a bunch of times in the run-up to the RICO trial, did he otherwise craft a story that was not rebuttable by the scrutiny that Chevron and Stroz Friedberg conducted of his files, his digital media, his online accounts, his 50+ days of rehearsal for his RICO testimony? Or were there in fact plenty of flags as to the falsity of Guerra’s story, that were just buried and buried deep by Chevron’s lawyers and experts. For me the real question is will we ever get to know — or will our justice system see an oil company’s hands all over false testimony in federal court and just roll over and go to sleep.

    And if it becomes clear that Chevron knew perfectly well that Guerra’s testimony was false and propagated it in federal court anyway, will Cassel bring a fraction of his righteous ethical indignation to bear on his corporate benefactor, who he occasionally (but not always) claims to be independent of?

    I know a lot of folks decided this case in their heads for Chevron a long time ago, but come on: Chevron doesn’t own your brain. Use it now.

    To be continued.

    Reply
  3. Ted Folkman

    Adam Klasfeld, the reporter for Courthouse News, sent Doug and me an open letter criticizing Doug’s post. At his request, I’ve reprinted the email below.

    Dear Mr. Folkman and Professor Cassel:

    I am writing to correct the record about my Feb. 27 story on Courthouse News, “Amazon Judge’s Data Secretly Scanned in $9.8B Chevron Fight.”

    Had either of you sought my comment about it, Letters Blogatory might have avoided some of the misrepresentations about that story in Professor Cassel’s post today, titled “Ghostwriting the Lago Agrio Judgment: The New Forensic Evidence.”

    As you both know, anonymous sourcing is a common practice, especially in reports based on the disclosure of confidential documents. Most readers understand that leaks typically do not come from impartial observers, and our story clearly signals that this one came from an interested party by reporting that it originated from Ecuador’s attorney general’s office.

    If reporters made it a practice not to disseminate leaked information because it represents just one side of the story, important disclosures on matters of public interest would never come to pass, hamstringing debate on everything from the environment to mass surveillance to political corruption. Any implication that I failed to identify my confidential source is an laughable affront to standard journalistic practice.

    Despite the assertion that Courthouse News got “suckered,” any reader can see that the article remained neutral on the significance of Ecuador’s brief, reported Chevron’s response, and emphasized that the company did not disclose its competing forensic report by press time.

    As Mr. Folkman’s introduction makes clear, the new forensic evidence remains disputed by Chevron and Ecuador, and we will continue to report on this issue impartially.

    All the best,

    Adam Klasfeld
    Reporter, Courthouse News
    aklasfeld@courthousenews.com

    To the criticism that I did not seek Adam’s comment, my answer is that I didn’t really regard Doug’s piece as an attack on Adam, but rather as an attack on Karen Hinton, to which she has responded in the comments. I have offered Adam space to respond here, and he, for what I am sure are sound journalistic reasons, says that his open letter will be his only public response.

    Reply
  4. Doug Cassel

    Predictably—because it is their stock reply—Donziger’s partisans aim to shoot the messenger. Most readers, I suspect, are more interested in the merits than in the mud-slinging. So I will respond to the personal attacks in a separate comment. This comment focuses on the evidence and arguments.

    Why Zero In On the Computer Evidence:

    Ted Folkman wonders “why a specialist in international human rights law has taken such a deep dive into the minutiae of computer forensic evidence.”

    The reason is to find out whether it corroborates the testimony of Zambrano or Guerra. Judge Zambrano claims that he singlehandedly wrote the entire judgment on his new computer. Judge Guerra alleges that the judgment was in fact written on plaintiffs’ lawyer Pablo Fajardo’s computer, and then polished by Guerra, also on Fajardo’s computer, at Zambrano’s request.

    Which one is telling the truth? Absent corroboration, I would not believe either of these unsavory characters. Both were removed from the bench for apparent corruption. Both were paid handsomely for their testimony (Guerra by being set up with his family in the US by Chevron; Zambrano by being given a phony job by a refinery controlled by the Ecuadorian state oil company).

    Corroboration is therefore essential. Prior to the new evidence, Guerra’s story was corroborated by airline shipping records, bank records, forensic analysis of his computer, and forensic analysis of the judgment text. In contrast, as far as I can recall, Zambrano’s story was corroborated by, well, nothing. (Someone please correct me if I misremember.)

    Judge Kaplan observed the demeanor of both witnesses on the stand. He found Guerra more credible. Ted and others were not convinced. That divergence is what led me to take a close look at the forensic analyses of Zambrano’s computers. Do they corroborate Zambrano, Guerra, or neither?

    Fortunately, one need not be a techie to get a grip on the expert evidence; able counsel for both sides in the arbitration (King & Spalding for Chevron, Winston & Strawn for Ecuador) are skilled in explaining technical reports in accessible language.

    Impeaching Zambrano:

    As explained in my post, Zambrano is impeached by his own computers. Forensic expert Lynch found that the computer evidence is “inconsistent in all material respects” with Zambrano’s emphatic claim that he wrote the judgment on his new computer.

    Ignoring that finding, Mr. Page is impressed by the “running draft of the judgment” found on Zambrano’s old computer. Never mind that Zambrano testified that he wrote the judgment on his new computer, not his old computer. Page simply leaps to embrace the fallback theory, ignoring the flaws identified in my post.

    Page also erroneously assumes a make-believe timeline. “A formative draft of the judgment,” he asserts, “is on Zambrano’s computer in Zambrano’s office in October 2010.” Wrong. A document with the same name—Providencias—was opened on Zambrano’s (old) computer in October. But it contained no text of what became the judgment. The first judgment text on Zambrano’s old computer did not appear until the version of Providencias dated December 21. And the first judgment text on Zambrano’s new computer did not appear until months after the real judgment was issued.

    To claim that the forensic evidence supports Zambrano, then, requires a major rewriting of his testimony, a drastic reconstruction of his alleged timeline, and even then an overriding of remaining inconsistencies. Zambrano’s testimony cannot credibly be reconciled with his own computers.

    Still, Ted has doubts. If Zambrano is indeed a “chucklehead,” asks Ted, how could he organize a sophisticated ghostwriting fraud? The answer is that he did not have to. The orchestrators of this scheme, according to Guerra, were Fajardo and Donziger. All Zambrano had to do was to play along.

    Corroborating Guerra:

    Ted does not believe Guerra; nor does Page.

    As noted in my post, the new forensic evidence is consistent with Guerra’s version. If, as Guerra says, the judgment was drafted on Fajardo’s computer, that would explain why the judgment cannot be found on Zambrano’s new computer, cannot be found without discrepancies on his old computer, and was apparently not uploaded to Ecuador’s judicial records system from either Zambrano computer.

    But since my post focused more on how the new evidence impeaches Zambrano, let’s take a closer look at how it corroborates Guerra. Page scoffs at Guerra’s claim of an “intimate relationship with Zambrano,” i.e., that Guerra served as Zambrano’s ghostwriter. In fact, the Zambrano computer evidence removes any reasonable doubt that Guerra ghostwrote for Zambrano. The expert Lynch found 82 orders and rulings on Zambrano’s computer with the same names and substantially similar content to documents saved earlier on Guerra’s computer. At least nine USB flash drives used on Guerra’s computer were also used on Zambrano’s computer. At least 48 orders and rulings in Zambrano cases were also found on USB drives shared between Guerra’s and Zambrano’s computers.

    No Lago Agrio case documents were found on both Guerra’s and Zambrano’s computers. But Guerra’s computer contained at least nine orders that were later entered by Zambrano in the Lago Agrio case.

    No draft Lago Agrio judgment was found on Guerra’s computer. But this, too, is consistent with his testimony. He never claimed to have ghostwritten the judgment. It was ghostwritten, he testified, by someone else—someone using Fajardo’s computer. All Guerra did was polish it—also on Fajardo’s computer.

    In short, Zambrano’s computers supply additional, strong corroboration of Guerra’s credibility on the ghostwriting issues. Whatever speculative doubts Ted might have had about Guerra possibly faking his bank records, there is no reason to suppose that Guerra faked Zambrano’s computers.

    The Secret Reports:

    To date we have only the lawyers’ briefs discussing the expert analyses of Zambrano’s computers; we do not have the expert reports themselves. Ms. Hinton objects that the “only way” to know what is in the reports “is to unseal them and make them public.” I agree. But Chevron, she objects, has “ignored” her requests to release them. If the arbitration were a real court, she complains, Chevron “would be required to release the Racich report.”

    In fact, Chevron has tried to get the reports released. As explained in my post, the only reason the expert reports remain sealed is because Ecuador insists they not be made public, and has persuaded the arbiters, over Chevron’s objections, to keep them under wraps. In response to Hinton’s one-sided leak to Courthouse News, Chevron asked the arbitral tribunal to make the expert reports—all of them—public. Ecuador refused. Acceding to Ecuador’s demand, the tribunal reasoned that Ecuador had agreed to allow examination of Zambrano’s computers only on condition that any resulting analyses be kept confidential.

    If, as Hinton evidently assumes, the expert reports support her position, why would Chevron want to make them public? And why would Ecuador—which she now admits leaked its sealed brief to her—demand that the underlying reports be kept secret?

    In short, Hinton has a legitimate complaint, but it is against Ecuador, not Chevron.

    The Arbitral Tribunal:

    Page objects to secret arbitral proceedings between Chevron and Ecuador, from which real parties in interest—the Lago Agrio residents—are excluded. So do I. When I originally agreed to represent Chevron before the Inter-American Commission, I did so on condition that the company inform the arbitral tribunal that it no longer objected to amicus briefs from the Lago Agrio plaintiffs or other appropriate amici. The company so informed the tribunal.

    More broadly, I agree with Page that the whole system of investor-state arbitrations is structurally unfair. It pretends that complex human rights and environmental disputes have only two parties in interest (an investing company and a state), when in fact a third party — the people affected – are frozen out of the arbitration. As Page argues, the Lago Agrio plaintiffs should not have to depend on Ecuador’s lawyers to carry their water. Aggrieved parties are entitled to their own counsel and their own arguments. And as Page notes, a worldwide movement is now underway to challenge the entire investor-state arbitration system.

    That said, two caveats. First, one reason investor-state arbitrations have expanded is that local courts in developing countries are too often corrupt. The Lago Agrio case is a textbook example. Those of us who find arbitral proceedings unfair as currently structured must develop an acceptable alternative – and corrupt local courts are not acceptable.

    Second, the arbitration panel in this case is not, as Hinton hyperbolizes, a “kangaroo court.” Like all investor-state arbitrations, it is structurally flawed because it excludes the people affected by its ruling and operates largely in secret. (Recent revisions to UNCITRAL rules provide for far greater transparency). But subject to that limitation, which is not of its own making, its rulings have been fair and reasoned, and certainly far more so than what passes for judicial proceedings in the Lago Agrio trial in Ecuador. All of the arbitral tribunal’s published rulings against Ecuador have been unanimous. They were all joined by Ecuador’s designee on the tribunal, Professor Vaughan Lowe, a distinguished international lawyer with a demonstrated track record of defense of human rights. And the tribunal has also ruled against Chevron—most recently, by denying Chevron’s request to make public the expert reports on Zambrano’s computers.

    Hinton’s Leak:

    Both the leaker (Hinton) and the leakee (journalist Adam Klasfeld of Courthouse News) object to my account of the leak.

    Let’s take the leaker first. Hinton lectures me, “Professor Cassel, I didn’t ‘author’ anything, I saved the document written by the Government of Ecuador’s lawyers, which nobody is or was trying to hide.”

    Come again? Nobody was trying to hide the fact that the leak came from Hinton? Then why did she leak it anonymously? Or does she mean, instead, that nobody was trying to hide the leaked document? If so, Hinton overlooks that Ecuador not only wanted the document hid, but persuaded the tribunal to order it sealed.

    As far as the “author” of the pdf is concerned, no one suggests that Hinton wrote the lawyers’ brief. What “author” means in metadata, as Hinton well knows, is not who wrote the document, but whose computer it came from.

    Now let’s turn to the leakee. Journalist Klasfeld makes the obvious point that “anonymous sourcing is a common practice.” Of course it is. But he evidently did not understand the special significance, in this case, of the fact that Hinton was the anonymous leaker. Both Ecuador and the Lago Agrio plaintiffs have pretended for years that they do not collaborate against Chevron. Now we have an admission by Hinton that, in this instance at least, they do.

    Although Klasfeld evidently missed the point, Ted Folkman did not. As Ted observes in responding to Klasfeld, “the fact that someone in the government is apparently leaking to Karen Hinton is, as far as these things go, newsworthy.”

    Klasfeld also maintains that his article was “neutral,” noting that it “emphasized that the company did not disclose its competing forensic report by press time.” But even his defense of his alleged neutrality is not neutral. The problem is not that the company “did not” disclose its competing report by press time. It could not do so—precisely because Ecuador secured an order to keep the expert reports secret, while simultaneously leaking its own lawyers’ brief to the hapless Mr. Klasfeld.

    Justice for Lago Agrio:

    My efforts to get at the truth, Hinton remonstrates, “impede efforts to help the indigenous and villagers, who are innocents in all of this.” They are indeed innocent. But what denies them justice is not anyone’s effort to pursue the truth. What has left them stranded before the bar of justice is the fraud and misconduct committed by their own lawyers, as found last year by a federal judge (whose motives are, naturally, impugned by Hinton and Donziger). Judge Kaplan’s findings are now confirmed by the forensic analyses of Zambrano’s computers.

    The tragedy is that, if Donziger and Fajardo had presented an honest case, and won an honest judgment in Ecuador, that judgment could long ago have been enforced in US courts under the New York Convention. It is the fraud by some members of plaintiffs’ legal team, not my comments on it, that impedes justice for their clients, and continues to do so to this day.

    Reply
    1. Ted Folkman

      The cross-currents here are interesting! Doug and Aaron share a criticism of investor-state arbitration. I pushed back against Aaron’s view of this, but Aaron and I share a skepticism of Guerra’s testimony. Et cetera.

      Doug, I think you make one basic mistake: Ecuadoran judgments would not, of course, be enforceable in the United States under the New York Convention, which applies to arbitral awards. Instead, they are enforceable in the United States under the law of the state where enforcement is sought, which generally means the UFCMJRA or the UFMJRA.

      Reply
      1. Doug Cassel

        Quite right—I was still thinking arbitral tribunals when I wrote that sentence — doug

        Reply
    2. Ted Folkman

      Also, Doug did correctly quote me on the newsworthiness of the identity of the leaker. I modified my comment after some discussions with Adam, since I think I came down unnecessarily hard on him.

      Reply
  5. Doug Cassel

    I am by now accustomed to personal attacks by Donziger’s hit squad whenever I express views with which they disagree. But the current barrage is over the top. Ms. Hinton finds “beyond belief and shocking” my effort to assess the forensic reports on Zambrano’s computers. One day, she warns, I will have to “dance permanently” with the villains at Big Oil. Mr. Page is “astound[ed]” by my “intellectual dishonesty.”

    Even as Hinton and Page—neither of whom knows me or has ever so much as spoken with me—impugn my motives, they assure us of their own admirable motives. Hinton professes, “I do what I do because I believe Chevron is responsible for cleaning up the mess …” Page affirms, “I am in it for justice more than money …”

    Fine. I have no reason to dispute their good faith. I accept it.

    I only wish they were equally open to accepting that those of us who disagree with them may also act in good faith. Like Page, I choose my cases for justice, not money. In the past decade alone, to name only a few of my cases, I have filed amicus briefs in the Supreme Court on behalf of the rights of prisoners at Guantanamo, and in support of accountability for human rights violations under the Alien Tort Statute; represented Peruvian prisoners and their families victimized by a massacre directed by former President Alberto Fujimori; represented poor Colombian villagers who were bombed by their own air force; examined environmental threats to the health and livelihoods of indigenous communities in Guatemala; and defended political dissidents in several countries in Latin America.

    In none of these cases did I take a fee. I chose them for justice.

    I chose to represent Chevron for the same reason. After examining the files in the case, I became convinced that plaintiffs’ Lago Agrio litigation was fraudulent. I did not want the credibility of the human rights movement to be put at risk by chicanery.

    Hinton and Page believe that I am wrong in this assessment. They are entitled to their views. I claim no monopoly on wisdom; to err is human. But if I am mistaken, I am mistaken in the cause of justice.

    I have never denied that Chevron has paid me. But that is not why I took their case. If I were motivated by wealth, I would not be teaching at a law school and filling up my docket with pro bono cases. Readers who believe that I would sell out for money may read what I write with skepticism. I merely invite them to consider the evidence and the arguments on their merits.

    The comment by Professor Heller—a respected blogger on Opinio Juris—is in a different category from Hinton and Page. There is nothing out of bounds in his criticism. He finds it “distressing” that I again defend Chevron without making it clear that I represented the company before the Inter-American Commission in this case and was paid to do so. I have never hidden that fact. My very first post on this case, the one to which he refers, linked directly to my Open Letter to the human rights community on the case, which stated, “I co-signed an amicus brief before the Inter-American Commission on Human Rights on behalf of Chevron in the Lago Agrio case. I billed Chevron for my time on the brief…”

    That fact has now been repeated so often, including on Letters Blogatory, that I do not repeat it every time I write about the case. But I acknowledge it, here, once again.

    Reply
    1. Kevin Jon Heller

      Doug,

      I have made it clear that I do not believe your opinion should be ignored because you have been paid for Chevron; I simply think it is relevant. But I do believe — and this is our policy on Opinio Juris, even for pure pro bono advocacy — that it needs to be mentioned every time you contribute a post to a blog. There is no guarantee that readers will have read all of your posts; someone coming to the discussion late will have no idea of your previous work. Indeed, I think you should disclose simply out of self-interest — as you are more than able to defend your position on the Lago Agrio case intelligently, however much I disagree with it, the last thing you want is someone to stop engaging in debate because they they think you are hiding something.

      Reply
      1. Doug Cassel

        Dear Kevin,

        Your point is well-taken, and appreciated. I shall follow it in future posts — doug

        Reply
    2. Aaron Page

      My outrage, Professor Cassel, comes from the fact that I am intimately familiar with Chevron’s allegations and the degrees and flavors of rhetoric it applies to bring them to life; I know which points are arguable, and which ones are distortions and games of misinformation. Your posts invariably embrace the latter with a relish that, I have to say, is unmatched even by Chevron’s counsel at Gibson Dunn, which is an impressive feat. They contain none of the nuance that you see, for example, in Ted’s assessments, which even though I often disagree with them clearly reflect independent thinking and analysis. Where the virulence of your hostility to Donziger, Fajardo, and the Aguinda case comes from is indeed a source of mystery to me; in the absence of any other plausible reason, I have ascribed it to an effort to impress your client, or protect your reputation from the consequences of your choices. I believe that everyone deserves vigorous legal representation, but Chevron has that, and it has little to do with your work, which is essentially to act as a third-party validator for its victim narrative and corresponding attack on the communities and their representatives . Your ever-present reference to your human rights career in your various open letters, and charming bits like your attempt here to cast Chevron as a victim on par with Guantanamo detainees, Colombian villagers, Guatemalan indigenous communities, etc, is really your value-added to Chevron’s standing army of lawyers and lobbyists in this fight. I admit that I find it hard to stomach. But I recognize that I would do well to get over it. Among other things, it gives you a victim narrative yourself which you are quick to exploit, and gets us farther from the facts.

      I will note however that my particular criticism was your habit of hinting that your representation of Chevron was in the past, so as to support your claim that you act now out of conscience, not paid advocacy (which, for the record, I recognize can co-exist). I note that you continue this charade in your post. “I have never denied that Chevron has paid me.” Are you referring to the IACHR representation in the past? Or the ongoing consulting gig you have admitted to, occasionally but not always, in other communications? Why not just identify yourself as a “consultant for Chevron” and be done with the controversy?

      Anyway. I will get to the facts of the new forensic data and the myriad reasons why your post is misleading in a more comprehensive series of posts elsewhere that I will link to here when they are available. For now I will just quickly respond to two issues.

      October draft. You claim unequivocally that I am Wrong that the judgment was on Zambrano’s computer dating to October; rather you insist “[a] document with the same name—Providencias—was opened on Zambrano’s (old) computer in October. But it contained no text of what became the judgment.” Where in the publicly-available memorials do you find this? You may well have access to underlying reports that I haven’t seen, but from what I have read you either have this wrong or are spinning the facts like mad. The Providencias file was the running draft: you add something on Day 2 and save it and it becomes dated Day 2. Various “frozen in time” versions of the document were recovered (probably autosave versions) and dated in December; as Chevron writes in its Jan 2015 memorial, “as of December 21, 2010, Providencias.docx contained 42% of the final Judgment text; as of December 28, 2010, Providencias.docx contained 66% of the final Judgment text.” Those documents apparently contain consistent metadata reflecting extensive revision history. As the Republic writes in its latest memorial, “both experts agree that the Judgment went through at least 286 revisions between October 11 and December 21, 2010, another 29 revisions between December 21 and December 28, 2010, and at least 124 further revisions (although the actual number is undoubtedly higher) between December 28, 2010 and March 4, 2011.” Unless I am missing something, the assertion that October versions of the document “contained no text of what became the judgment” appears to be a layer of speculation/conspiracy that even Chevron’s own lawyers are unwilling to make.

      New/old computer. As you (barely) allude to in your post, the computers were “mapped.” You could open the file by double-clicking on it on the new computer, even though it resided on the old computer. However, you fail to mention the rather key fact that metadata shows that the document was opened at least 50 (and probably a lot more) times from the “new” computer. Your big gotcha is that “all versions of judgment text found in Providencias during the relevant period “were saved by the Old Computer, and not through … the New Computer.” But this just indicates the LAST save. Again, the file was opened and saved at least 50 times from new computer. The old computer was attached to the printer, so might have been opened last from there for that purpose. Zambrano’s testimony at the RICO trial that the judgment was typed only on the new computer was clearly not exactly right, especially since the new computer was only delivered to his office in December 2010. The discrepancy is hardly shocking given Zambrano’s clear lack of understanding of computers, and seems more realistic given that both he and his typist typed the judgment. He probably typed it from the new computer, she may have typed it from the new or old computer. The new/old computer issue is simply not probative. It is, however, about the only thing you and Chevron have left.

      Finally, you state that I “scoff at Guerra’s claim of an ‘intimate relationship with Zambrano,’ i.e., that Guerra served as Zambrano’s ghostwriter.” You are misreading. I don’t disagree that Guerra had a relationship with Zambrano; Zambrano testified as much. I scoff at the notion that the new evidence can be squared with Guerra’s testimony that Fajardo delivered the judgment to him and Zambrano in late January 2011via a claim (which I am not sure Chevron has made yet, though I am sure it will) that Guerra didn’t know that Fajardo had already delivered it to Zambrano in October (or even December) and somehow Zambrano didn’t see fit to tell Guerra that. As far as I can tell, this hasn’t come up yet because Chevron is just burying its head in the sand on the inconsistency of the new evidence with Guerra’s testimony. When it is pushed at trial, I suspect this is where they will go, but it’s just not credible.

      Reply
      1. Doug Cassel

        Dear Mr. Page,

        My call for civility, it seems, leaves you unmoved. Venting your “outrage,” you excoriate my views (or, more precisely, your caricatures of my views), and impugn my motives. You cannot fathom the “mystery” of why I might criticize your co-counsel, Messers. Donziger and Fajardo.

        The mystery is easily solved: I disapprove of their conduct of the Lago Agrio litigation. The evidence of their fraud – in multiple ways over a period of years, not merely in ghost writing the final judgment — is overwhelming. Fraud in litigation is wrong in principle. It also disserves their clients, who by now should have been able to enforce any legitimate judgment, but instead are derailed by litigating over the fraud. Moreover, the fraud stains the broader cause of the human rights movement, whose effectiveness depends on its moral credibility. That is why I speak out.

        My views are not unique. At least eight US federal judges – not counting Judge Kaplan — have found the conduct of the Lago Agrio litigation by some (not all) of plaintiffs’ counsel prima facie fraudulent — sufficient to pierce the attorney-client privilege. One judge opined, “… [W]hat has blatantly occurred in this matter would in fact be considered fraud by any court.” Another explained, “Chevron has shown to anyone with common sense that this [judgment] is a blatant cut and paste exercise. . . . [T]here is substantial extrinsic evidence of wrongdoing . . .”

        One more federal judge – Judge Kaplan – has written a lengthy opinion on the merits, finding and detailing the fraud. Capable journalists like Michael Goldhaber and Paul Barrett also denounce the fraud. So do several of Donziger’s (and your) former co-counsel. At least three of Donziger’s principal funders now repudiate Donziger’s fraud, saying that he deceived them, too. And at least five of his former environmental consultants likewise denounce Donziger for deceiving them or, worse, they confess to having been parties to his fraudulent scheme.

        You suppose nonetheless that my views cannot be honest exercises of professional judgment, but must instead be intended either to protect my reputation or to impress Chevron. As shown by the foregoing, however, my reputation is in good company.

        As for impressing Chevron, you seem not to notice that the views I expressed in this very exchange on investor-State arbitration – in substantial agreement with yours – are not likely to impress Chevron. In fact, Chevron has never attempted to influence my views. My views are my own, pure and simple.

        You also have a strange way of reading my views. I referred to Guantanamo prisoners and others whose rights I defend pro bono in order to show, as I stated, that I choose cases based on criteria of justice, not fees. Yet you read that to complain that I depict Chevron as a victim “on a par” with Guantanamo detainees. If I had made that statement, I, too, would be “outraged” by the “views” you attribute to me.

        When you turn at last to the new computer evidence, you now seem to admit that Judge Zambrano was wrong in testifying that he drafted the judgment on his new computer. But no matter, you say; this was an understandable mistake by a computer illiterate. The reality, you now surmise, was that beginning in early October 2010, Zambrano “probably” drafted the judgment on his new computer, while inadvertently saving it on his old computer.

        But that was physically impossible. Zambrano did not have his new computer in early October 2010. In fact, he did not have it and use it for the first time until two months later. He could not possibly have mistakenly saved the new computer draft on his old computer.

        Your final fallback is to guess that his secretary “may” have been typing on the old computer. Aside from the fact that this contradicts Zambrano’s adamant testimony, it would also require a miracle of backdating. As noted in Chevron’s brief, Zambrano testified that he did not begin drafting the judgment until weeks after the Providencias document – which you assume is the document which became the judgment – was opened on his old computer in early October.

        Is it possible to navigate one’s way through this jumble of contradictions and construct a plausible scenario in which Zambrano, as you assume, began drafting the judgment in early October? I doubt it. But even if one could somehow find a way, this is hardly the sort of proof on which one can confidently rely to show that Zambrano, in fact, drafted the judgment, let alone told the truth in his testimony.

        Reply
        1. Aaron Page

          You call for civility, then immediately practice demonization, perhaps not on me directly but on my colleagues. Forgive me if I stand up for them — and up to Chevron, which indicated in 2009 that its long-term strategy was to “demonize Donziger.” That is the project you are now engaged in, as a paid interlocutor for Chevron, so I will stand up to you as well. Donziger and others (and myself) are far from perfect, but we are not the demons Chevron has constructed to serve its larger designs. It is not very convincing to see you ride such a high horse when it comes to Donziger, but have nothing to say when Chevron pays obscene amounts of cash and benefits to a “fact” witness, takes advantage of the corrupt testimony despite obvious signs of falsity, and, now that the witness has been exposed, tries to silently set him aside and move on to new conspiracy theories as if the whole thing never happened.

          Now that Guerra’s version of events is out, I’m not sure I even understand what Chevron’s new conspiracy theory is – do you?

          The “unfiled work product” issue is fully explained in the Republic’s memorials, which surely you have read. It gets nowhere near proof of “ghostwriting” – which is why Chevron was apparently desperate enough to go dancing with Alberto Guerra. You/Chevron are now left with one straw: that Judge Zambrano testified during RICO that he wrote the judgment on the so-called “new computer,” when it now appears from the forensic analysis that the drafting began on his old computer before the new computer was delivered, and that the draft continued to reside on the old computer for some time even as it was opened and edited through the network. This inconsistency or inaccuracy in Zambrano’s testimony is laughably far from “proof” that the judgment was ghostwritten, even without considering all the other forensic evidence that shows the judgment was written largely as Zambrano described.

          There is still a lot to be learned here – hopefully we get access to the underlying reports themselves at some point. I suggest to you that some of it will raise (has already raised) serious questions as to the ethics of Chevron and Gibson Dunn in prosecuting the RICO case and the demonization campaign generally. Will you bring the same uncompromising ethical assessment to bear on these facts as they emerge?

          Reply
          1. Doug Cassel

            On facts, yes. On spin, no.

            Your memory of what I write is selective. As I stated earlier in this series, I would not trust either Guerra or Zambrano, absent corroboration. They are both corrupt, and they were both paid handsomely for their testimony. The issue is who is corroborated. Guerra is extensively corroborated; Zambrano is not at all, unless you take comfort in the kaleidoscope of rewritings of his testimony required to bring it into some conceivable relation with his own computers.

            Reply

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