Lago Agrio: David Russell Speaks

One of my favorite characters from the Lago Agrio story is David Russell, the purveyor of the SWAG, the “scientific wild-assed guess” about the cost of remediation that launched a thousand lawyers. I’ve written a couple of times about him. First, I reviewed his testimony on direct examination in the RICO trial, and second, I noted references to his offer to his consult for Chevron after he and Donziger fell out. Russell has collected his thoughts about his involvement in the saga in an essay he’s titled Jungle Fumble: A Brief History of and Inside Look at the Ecuador Lawsuit against Texaco/Chevron. Others have seen versions of this, but I believe I am linking to it here for the first time. It has historical interest, I think, as a first-person account of a key witness. The writing is much more engaging, though less lawyerly, than the witness statement Russell and Chevron’s lawyers prepared in advance of the trial.

I asked Russell to make another SWAG about the cost to remediate. “Knowing what I know now,” he said, the cost would likely be somewhere between $100 and $200 million. At one point, when he “was talking back-door to Chevron,” and in particular to Sarah McMillen, he said, “You can make this go away for a lot less than you think.” Russell says that McMillen, at least, understood this, but that she was “out of the legal bubble,” by which he means, I think, that scientific types within Chevron may have had a more realistic view about what it would actually take to settle the case than the lawyers. Of course, this assumes that there was someone on the other side willing to settle for something like the actual cost of remediation or to allow the pits to be remediated. Will they ever be remediated? I asked him. “Not with the current government,” he said, though I’m not sure how he would know.

I also asked Russell about Donziger. There was no love lost between the two, maybe mainly because Russell sued Donziger for his unpaid fees. In any event, Russell agreed with me that Donziger is, in some sense, a tragic figure. “It was my fault” that Donziger became corrupted, he said. I asked why. “Because I gave him the number,” the SWAG, that put visions of ten-digit recoveries in his mind.

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.

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