Chevron Corp.'s attorneys at Gibson, Dunn & Crutcher, who successfully fought for hundreds of hours of outtakes from the documentary "Crude," about the 17-year-old Ecuadorean environmental suit against their client, have asserted that in the footage they have viewed, they have found evidence of plaintiffs lawyer Steven Donziger and other plaintiffs experts conspiring with Richard Cabrera, the purportedly independent Ecuadorean special master appointed by the court to determine Chevron's damages, to influence Cabrera's report even before he was officially named to his position.
According to Chevron's 39-page motion filed Tuesday in In re Application of Chevron, 10 MC 00001, for a preservation order, Cabrera attended a March 2007 planning meeting headed by Donziger and Ecuadorean plaintiffs lawyers. The "Crude" outtakes, according to Chevron, show one of the Ecuadorean lawyers telling the assembled group that [Cabrera] would "sign the report [on damages] and review it. But all of us ... have to contribute to the report." Later in the meeting, Chevron alleges, the tapes show Donziger saying, "We could jack this thing up to $30 billion ... in one day."
Last month, a unanimous panel of the 2nd U.S. Circuit Court of Appeals ordered Joseph A. Berlinger, the maker of the documentary about the $27 billion environmental damage suit against Chevron, to turn over outtakes from his film. The circuit's order narrowed the scope of a subpoena issued by Southern District Judge Lewis A. Kaplan, and limited the outtakes to those depicting Donziger, private or court-appointed experts in the suit or former or present Ecuadorean government officials. Chevron Corp. v. Joseph Berlinger, 10-1918-cv, and 10-1966-cv.
Chevron in its Aug. 3 motion to preserve evidence and compel production, also points to a quotation by Donziger: "You know, this is Ecuador," he allegedly says in an outtake. "You can say whatever you want and at the end of the day, there's a thousand people around the courthouse, you're going to get what you want. Sorry, but it's true ... because at the end of the day, this is all for the court, just a bunch of smoke and mirrors and bullshit. It really is. We have enough, to get money, to win."
According to Chevron, Donziger made these comments when his own experts expressed concern about their lack of evidence of groundwater contamination.
"Chevron has thus far been able to review only a small fraction of the outtakes produced," the filing said, "but already it is clear that they contain conclusive evidence that plaintiffs' counsel, consultants, and associates have knowingly participated in a fraudulent enterprise to corrupt the legal proceedings pending in Ecuador against Chevron."
The long-running suit is commonly referred to as the Lago Agrio litigation after a small town in the Amazon rain forest that suffered environmental damage.
'SMOKE AND MIRRORS'
The Lago Agrio plaintiffs have a different interpretation of both the March 2007 meeting with Cabrera and Donziger's purported comments. Karen Hinton, a spokeswoman for the plaintiffs, told the Litigation Daily that Chevron's motion was "a ruse to get you to write what you're writing right now."
Plaintiffs lawyer Ilann Maazel of Emery Celli Brinckerhoff & Abady, said, "This is just another desperate, last-ditch effort by Chevron to distract the courts from its extraordinary wrongdoing."
"The case against Chevron in Ecuador is overwhelming. It's devastating. This is an old defense trick: When you don't have the evidence, attack the lawyers."
Maazel accused Chevron and its lawyers of violating the court order against publicizing evidence obtained from the "Crude" footage.
Moreover, Hinton said, there was nothing improper about Cabrera's March 7, 2007, meeting with the plaintiffs team. At the time of the meeting, he was one of several court-approved experts who, in that capacity, had been employed by both Chevron and the plaintiffs. He was not yet the court-appointed special master for damages.
"There was no reason not to meet with him in March 2007," Hinton said. "He was a court expert. We had every right to talk to him."
Addressing Donziger's comment Chevron cites in its brief, Hinton said, "He was talking about Chevron using smoke and mirrors." Chevron is "twisting it and manipulating it."
Maazel said in an e-mail: "What comes across in Steven Donziger's statements is a lawyer who feels very deeply about his clients and who is locked in a mortal struggle with a giant oil company."
Maazel said Chevron's efforts to discredit Cabrera will not affect the case in Ecuador.
"[Mr.] Cabrera's report is one of 106 expert reports," he said. "On Aug. 2, the Ecuadorean court invited both sides to submit other reports [on proposed damages]."
This article first appeared on The Am Law Litigation Daily blog on AmericanLawyer.com.
