We live in a “post-truth” age, and it’s not just a problem on the right. I was struck by an Amnesty International article by Elizabeth Haight that calls on President Biden to pardon Steven Donziger, who as longtime readers know is the American lawyer who led a lawsuit in Ecuador seeking and obtaining a judgment for damages against Chevron for environmental torts. Courts later found that the judgment had been obtained by fraud, and Donziger was found guilty of contempt of court for disobeying court orders issued after that judgment.

The Amnesty article makes some claims about right and wrong (the Donziger criminal case was “a clear-cut case of abuse of the justice system,” he faced “multiple violations of his right to a fair trial,” and the case is a “chilling precedent”). Fair enough. But it gets some key points about what actually happened in the case wrong, and I think that if you know what really happened, you are unlikely to draw the same conclusions about right and wrong that Amnesty has drawn. And that’s not okay. I don’t know that anyone cares anymore, but I thought I would correct the record. Here is what Amnesty has to say, and what really happened, with my comments on boldface text in footnotes. Click on the footnotes to see my commentary.

Steven Donziger was a young environmental lawyer when he was invited to the Ecuadorian Amazon rainforest to investigate a case of pollution by Chevron-then Texaco- in 1993.¹In 2001, Chevron acquired Texaco in a “reverse triangular merger.” See, e.g., ¶ 37 of the First Partial Award on Track I in PCA Case No. 2009-23, Chevron Corp. v. Republic of Ecuador. Following a reverse triangular merger, the acquired company is a subsidiary of the acquiring company, with its own corporate existence. The acquirer is not automatically liable for the debts and obligations of the acquired company, and in fact, in a US case, the court refused to hold Chevron liable for Texaco’s obligations in Short Stop Shell, LLC v. Chevron Corp. (E.D. Wash. 2019). On the other hand, the arbitrators in the arbitration just referenced held that when Ecuador released Texaco from liability for the oil contamination that Donziger’s clients later sued over, the scope of the release, which included Texaco’s “principales y subsidiarias,” was sufficiently broad to release Chevron, the parent. See Award ¶¶ 84-86. Whatever you think about reverse triangular mergers generally, it is wrong to say that Chevron and Texaco were the same company. What he witnessed was beyond any expectation: a grotesque system of pollution dumping that deliberately harmed the environment and local communities – all, in his view, in an attempt to save money by the company, an allegation which Chevron denies. Representing Indigenous and rural communities harmed by the pollution, Steven won the case in Ecuador.²While Donziger was a driving force behind the litigation, he is not an Ecuadoran lawyer and did not represent the plaintiffs in court in Ecuador. The plaintiffs’ lead Ecuadoran lawyer was Pablo Fajardo. See Fajardo Decl. ¶ 1 in Chevron Corp. v. Stratus Consulting (D. Colo.) As a result, Chevron, which subsequently purchased Texaco, was ordered to pay 9.5 billion dollars in damages. The company refused to comply with the ruling and instead launched a myriad of legal complaints at Steven and others involved in the case, entangling him in a long legal battle. 

Now, over 30 years since he first visited the Amazon, Steven is still dealing with the retaliation from taking an oil giant to court.  

During this extensive legal battle with Chevron, Steven has faced multiple violations of his right to a fair trial. In the process, he was charged with contempt of court for refusing to hand his computer and other devices containing his privileged attorney-client material from the lawsuit against Chevron to the court.³Donziger was charged with six counts of disobeying court orders. See Order to Show Cause in United States v. Donziger. Counts 1 and 2 do relate to the order requiring Donziger to provide a list of all his devices and email and messaging accounts and to provide the devices themselves to a forensic expert for the purposes of making a forensic copy. Count 3 related to the order requiring Donziger to surrender his passport. Count 4 related to the part of the judgment finding the Ecuadoran judgment to be fraudulent that required Donziger to transfer to Chevron property that was traceable to the Ecuadoran judgment. Count 5 related to Donziger’s refusal to transfer his contingent interest in the Ecuadoran judgment to Chevron. Count 6 related to Donziger’s transfer of an interest in the Ecuadoran judgment, contrary to the US court’s judgment, in return for personal services.

Focusing just on the claims about not turning over the devices (Donziger does not like to focus on his contempt of the portions of the court’s orders forbidding him from profiting from the judgment that the court had found to be fraudulent), the decision finding Donziger in criminal contempt of court (beginning on p. 60) explains what happened: after Chevron won a judgment against Donziger in New York that included a monetary remedy, Chevron served requests for the production of documents, as any prevailing party may do after winning a civil case under FRCP 69. Under the Local Rules of the court, if Donziger wanted to withhold any of hte documents requested on the grounds of attorney-client privilege or some other privilege, he had to provide a “privilege log” with information that justified the claim of privilege. But Donziger did not produce any documents by the deadline, nor did he produce a privilege log. Instead, he made generalized objections, including a generalized privilege objection that did not meet the requirement of a log. Chevron moved to compel his compliance, and Donziger argued that the court should deny the motion because he would be posting an appeal bond that would fully protect Chevron’s interests. But Donziger never did file a bond, and the judge rejected his arguments. Eventually, Donziger produced 18 pages of documents, raising for the first time a First Amendment objection to providing discovery. He still did not provide a privilege log, even though he had written that he would. The judge rejected Donziger’s First Amendment arguments on substantive and procedural grounds. But even after the judge rejected his arguments, Donziger still refused to produced the documents he was required to produce. He asked the judge to stay the order requiring him to produce the documents pending an appeal, but the judge refused. Chevron asked the court, in light of Donziger’s refusal to do what he was required to do, to allow his devices to be imaged so that they could be searched for responsive documents. Steven said that he “refused to do so as a matter of protecting my clients’ legal rights and their lives, because doing so would put their lives in jeopardy”. The US Attorney declined to prosecute him on this contempt charge.  Ordinarily, this would have ended the legal proceedings for this charge. Instead, the presiding judge in New York requested the case be continued and appointed a private law firm to prosecute Steven in place of the government.⁴Rule 42(a)(2) of the Federal Rules of Criminal Procedure provides that after the court requests that a contempt be prosecuted by an attorney for the government, “If the government declines the request, the court must appoint another attorney to prosecute the contempt.”

The maximum sentence for the contempt charge was 180 days. Yet, Steven Donziger spent over four times this length deprived of his liberty⁵Donziger was under home confinement before the trial because the judge found, in light of his history of disobeying court orders and his frequent travel to Ecuador and contact with high government officials there, that he was a flight risk (see pp. 12-13 of this transcript). Donziger also asked to have the trial delayed, due to COVID, and he then asked the judge to reconsider after she refused to delay. (under house arrest in New York City, then in a prison in the state of Connecticut, and later in a halfway house in New York) for refusing to hand over his computer while he challenged the order and fought his contempt charge. He was ultimately convicted of the contempt charge and was sentenced to 6 months in prison, of which he served 45 days, and also spent time in a halfway house. But despite having served this sentence, his case still continues year after year. 

International human rights mechanisms, including the UN Working Group on Arbitrary Detention,⁶In a prior post, I explained: “The Working Group on Arbitrary Detention, a group established by the Human Rights Commission in the early 1990s made up of five legal scholars, received a statement of the case from Amnesty that no one bothered to contest, perhaps because the opinions of the Working Group have no legal force. Based on Amnesty’s statement of the case, the Working Group opined that Donziger’s home confinement was contrary to the Universal Declaration of Human Rights and the ICCPR. I am not going to go through the lengthy submission Amnesty made and provide counterpoints, but I will suggest that anyone who has knowledge of the case and who reads the record the Working Group relied on in reaching its opinion will conclude that it is, overall, hardly a fair statement of what happened in the litigation.” concluded that Steven’s deprivation of liberty was arbitrary after identifying that this situation constituted legal harassment in the form of a SLAPP suit: Strategic Litigation Against Public Participation. What this means is that the lawsuit by Chevron following Steven’s discovery, and subsequent victory, in Ecuador is meant to force him into silence. This creates a chilling precedent for human rights defenders in the US and around the world, and Chevron denies this claim. Despite the intimidation, Steven continues with his work, determined to get the reparations that the people he has defended all these years deserve.  

People can make their own judgments about Steven Donziger and the lawsuit against Chevron. If you’re interested, you can read my thoughts about the case, covering years, at my Lago Agrio archive, which includes an account of my visit to Ecuador, my attendance at a few key hearings, etc. But we should get the facts and the law right. My biggest concern about misstatements from groups like Amnesty is this: if they are this wrong about things that I know a fair deal about, how can I trust them to get it right when I’m reading about things I don’t know much about?

• 1
  In 2001, Chevron acquired Texaco in a “reverse triangular merger.” See, e.g., ¶ 37 of the First Partial Award on Track I in PCA Case No. 2009-23, Chevron Corp. v. Republic of Ecuador. Following a reverse triangular merger, the acquired company is a subsidiary of the acquiring company, with its own corporate existence. The acquirer is not automatically liable for the debts and obligations of the acquired company, and in fact, in a US case, the court refused to hold Chevron liable for Texaco’s obligations in Short Stop Shell, LLC v. Chevron Corp. (E.D. Wash. 2019). On the other hand, the arbitrators in the arbitration just referenced held that when Ecuador released Texaco from liability for the oil contamination that Donziger’s clients later sued over, the scope of the release, which included Texaco’s “principales y subsidiarias,” was sufficiently broad to release Chevron, the parent. See Award ¶¶ 84-86. Whatever you think about reverse triangular mergers generally, it is wrong to say that Chevron and Texaco were the same company.
• 2
  While Donziger was a driving force behind the litigation, he is not an Ecuadoran lawyer and did not represent the plaintiffs in court in Ecuador. The plaintiffs’ lead Ecuadoran lawyer was Pablo Fajardo. See Fajardo Decl. ¶ 1 in Chevron Corp. v. Stratus Consulting (D. Colo.)
• 3
  Donziger was charged with six counts of disobeying court orders. See Order to Show Cause in United States v. Donziger. Counts 1 and 2 do relate to the order requiring Donziger to provide a list of all his devices and email and messaging accounts and to provide the devices themselves to a forensic expert for the purposes of making a forensic copy. Count 3 related to the order requiring Donziger to surrender his passport. Count 4 related to the part of the judgment finding the Ecuadoran judgment to be fraudulent that required Donziger to transfer to Chevron property that was traceable to the Ecuadoran judgment. Count 5 related to Donziger’s refusal to transfer his contingent interest in the Ecuadoran judgment to Chevron. Count 6 related to Donziger’s transfer of an interest in the Ecuadoran judgment, contrary to the US court’s judgment, in return for personal services.
  
  Focusing just on the claims about not turning over the devices (Donziger does not like to focus on his contempt of the portions of the court’s orders forbidding him from profiting from the judgment that the court had found to be fraudulent), the decision finding Donziger in criminal contempt of court (beginning on p. 60) explains what happened: after Chevron won a judgment against Donziger in New York that included a monetary remedy, Chevron served requests for the production of documents, as any prevailing party may do after winning a civil case under FRCP 69. Under the Local Rules of the court, if Donziger wanted to withhold any of hte documents requested on the grounds of attorney-client privilege or some other privilege, he had to provide a “privilege log” with information that justified the claim of privilege. But Donziger did not produce any documents by the deadline, nor did he produce a privilege log. Instead, he made generalized objections, including a generalized privilege objection that did not meet the requirement of a log. Chevron moved to compel his compliance, and Donziger argued that the court should deny the motion because he would be posting an appeal bond that would fully protect Chevron’s interests. But Donziger never did file a bond, and the judge rejected his arguments. Eventually, Donziger produced 18 pages of documents, raising for the first time a First Amendment objection to providing discovery. He still did not provide a privilege log, even though he had written that he would. The judge rejected Donziger’s First Amendment arguments on substantive and procedural grounds. But even after the judge rejected his arguments, Donziger still refused to produced the documents he was required to produce. He asked the judge to stay the order requiring him to produce the documents pending an appeal, but the judge refused. Chevron asked the court, in light of Donziger’s refusal to do what he was required to do, to allow his devices to be imaged so that they could be searched for responsive documents.
• 4
  Rule 42(a)(2) of the Federal Rules of Criminal Procedure provides that after the court requests that a contempt be prosecuted by an attorney for the government, “If the government declines the request, the court must appoint another attorney to prosecute the contempt.”
• 5
  Donziger was under home confinement before the trial because the judge found, in light of his history of disobeying court orders and his frequent travel to Ecuador and contact with high government officials there, that he was a flight risk (see pp. 12-13 of this transcript). Donziger also asked to have the trial delayed, due to COVID, and he then asked the judge to reconsider after she refused to delay.
• 6
  In a prior post, I explained: “The Working Group on Arbitrary Detention, a group established by the Human Rights Commission in the early 1990s made up of five legal scholars, received a statement of the case from Amnesty that no one bothered to contest, perhaps because the opinions of the Working Group have no legal force. Based on Amnesty’s statement of the case, the Working Group opined that Donziger’s home confinement was contrary to the Universal Declaration of Human Rights and the ICCPR. I am not going to go through the lengthy submission Amnesty made and provide counterpoints, but I will suggest that anyone who has knowledge of the case and who reads the record the Working Group relied on in reaching its opinion will conclude that it is, overall, hardly a fair statement of what happened in the litigation.”