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.

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?

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.

Dear Kevin,

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

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.

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.

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

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.

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.

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.