Lago Agrio: The Racich Report

Readers, as you know, I am in the middle of a very busy spell and so have not been updating the blog as often as I would like. But I know you will want to have the Racich Report to mull over right away. This, recall, is Ecuador’s expert report aiming to undercut Chevron’s claims, based on the testimony of Judge Guerra, that the Lago Agrio judgment was ghostwritten. I wrote about the issue back in March, and I published Doug Cassel’s views a few weeks later. I hope to have something to say about the full Racich report, but unfortunately it is going to have to wait until my current arbitration is done and my upcoming depositions are complete.

In the meanwhile, I have some posts lined up for you in the next couple of days on other topics, and feel free to have at it in the comment section until I’m back in the swing of things.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

2 thoughts on “Lago Agrio: The Racich Report

  1. Donziger and Karen Hinton, his former PR person, are now claiming that a “new forensic report” (the Racich report, linked above by Ted) “unravels” Judge Kaplan’s finding that Judge Zambrano did not writer the Lago Agrio judgment. Their claim is multiply misleading.

    First, the “new” report is in fact a report by Racich (Ecuador’s expert) dated last November. While the actual report was only recently released from a protective order—an order requested by Ecuador, not Chevron—the points in it most favorable to Donziger and Hinton were already summarized in Ecuador’s brief, which Ms. Hinton leaked to the press three months ago.

    Second, unlike Ted, who has also posted the reports by Chevron’s independent expert (Spencer Lynch), Donziger and Hinton do not even inform their readers that Lynch long ago responded to Ecuador’s expert.

    Third, the Lynch rebuttal shreds the arguments by Ecuador’s expert. The pro’s and con’s of this battle of experts were set forth in the legal briefs by Chevron and Ecuador, which I summarized in my earlier post on the subject, linked by Ted above.

    The main additional point that emerges from the actual forensic reports is the strength and clarity of the conclusion by Lynch. After examining Judge Zambrano’s hard drive, Lynch found, “to a reasonable degree of scientific certainty”—contrary to the version presented by Ecuador’s expert—that “[n]o document containing Ecuadorian Judgment text was created on the [Zambrano’s] New Computer in November 2010, worked on for multiple hours daily, and then finalized in February 2011.” In other words, far from undermining Judge Kaplan’s finding that the judgment was ghostwritten, the forensic evidence from Zambrano’s own computer contradicts his already incredible story that he wrote the judgment.

    Further evidence has emerged, not only since the November 2014 report trumpeted by Donziger and Hinton, but also in connection with the recently concluded arbitration hearings. The new evidence further demonstrates that the claims by Racich are untenable. I will address the new evidence in a subsequent post.

    Finally, as readers of this page are aware, I filed an amicus brief for Chevron before the Inter-American Commission on Human Rights in 2012 and have been an independent consultant to the company. All views expressed here are my own.

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