Chevron v. Donziger: Day One
(Editor's Note: The American Lawyer's Michael Goldhaber will be filing regular dispatches from the Manhattan federal district court bench trial in Chevron Corp. v. Donziger et al. For background on the case, the parties, and what it's all about, see his preview here.)
When the first day of his trial finally arrived, New York lawyer Steven Donziger did not argue his own case. But he essentially argued the case for Chevron Corporation, which accuses him of orchestrating a scheme to extort $19 billion from the oil company by secretly rigging an Ecuadorian environmental lawsuit.
"So much evidence in this case comes out of Steven Donziger's own mouth," Randy Mastro of Gibson, Dunn & Crutcher declared Tuesday in Chevron's opening statement.
Repeatedly pointing at Donziger, who sat impassively with two children's rainbow loom bracelets around his wrist, Mastro quoted from scenes and outtakes of the documentary film Crude, which Chevron obtained after a bitter First Amendment battle in 2010. (For The American Lawyer's exclusive clips, please see Chevron
In the movie, as Donziger prepared to ambush an Ecuadorian judge in his chambers with a local TV news crew, he told the documentary maker: "This is something you would never do in the United States. But Ecuador, you know, this is how the game is played, it's dirty." Mastro quoted the clip in his opening and intoned: "That's how Donziger played the game. Dirty."
Mastro quoted Donziger's compromising observations that a plaintiffs lawyer's role is "to make fucking money," and that for the Ecuadorian court evidence was "just a bunch of smoke and mirrors and bullshit"—as well as his boast that his case had created a "new paradigm."
In fact, Mastro argued, it's a "familiar story of racketeers targeting a deep pocket for a big score." Chevron alleges that Donziger masterminded a RICO conspiracy, with the predicate acts of mail and wire fraud, extortion, bribery, obstruction of justice, witness tampering, and money laundering. Mastro aims to tell that story through the old prosecutor's technique of "flipping" alleged coconspirators; No fewer than 17 Donziger's former colleagues are listed as witnesses.
Mastro said Chevron aims to prove that the alleged conspirators in the Ecuadorian litigation ghostwrote a global damages report, some of their own expert reports, one of their environmental expert's affidavits, nine court orders, and large portions of the final judgment itself. The "fingerprints" on the judgment, he argued, were the numerous typos, miscounts, misquotations, and misstatements of the law that were drawn from documents on Donziger's hard drive, but not in the court record.
Chevron also aims to establish that Donziger and his clients lied to U.S. courts, regulators, and Congress by covering up the ghostwriting of the damages report signed by Richard Cabrera. Again Mastro quoted Donziger: "If you repeat a lie a thousand times it becomes the truth."
Richard Friedman of Friedman Rubin Law Offices, who signed on to represent Donziger just weeks ago, introduced a low-key tone with his opening declaration: "The time for name-calling is over."
Dismissing Donziger's occasionally outrageous statements as out-of-context "atmospherics," Friedman organized Chevron's allegations into three buckets, which he promptly made disappear. He argued that the Cabrera fraud and miscellaneous other allegations had no bearing on the Ecuadorian verdict. As for the allegation of bribery, Friedman said it was entirely dependent on the testimony of a single dishonest witness who is being paid a king's ransom by Chevron. (In his opening Mastro also cited extensive forensic evidence, shipping records, and bank records).
Arguing for the two Ecuadorian litigants who are also battling Chevron's fraud claims, attorney Julio Gomez expressed wonderment that one of the world's biggest companies could be the victim of "a farmer, a canoe operator, and a couple of attorneys working out of an apartment." He suggested that Chevron was desperate to return the case to the United States because American judges lacked the courage to give a $19 billion verdict for pollution in the Amazon. "When was the last time a U.S. court had the guts to do something like that?" he asked.
Gomez's client Javier Piaguaje Payaguaje, who operates a canoe on the Rio Aguarico, was present in court, wearing a white cotton smock with toucan and macaw patches, a Secoya tribal crown with toucan and macaw feathers, and light-framed glasses hanging from a beaded shell necklace. "We are the real victims," Piaguaje told the Litigation Daily through an interpreter.
The rest of Day One was consumed by the cross-examination of Chevron in-house counsel Ricardo Reis Veiga and—especially—by sniping among the attorneys and U.S. District Judge Lewis Kaplan as to the admissibility of the evidence Friedman wished to introduce on Chevron's assorted efforts to halt the Ecuadorian litigation through lobbying, public relations, and private investigation.
Judge Kaplan deferred ruling on evidence relating to Chevron's alleged entrapment of Judge Juan Nunez. (See Forum Shopper's Remorse.) But he excluded most of the disputed evidence, rejecting the suggestion of an equivalence between apparently lawful behavior by Chevron and allegedly unlawful behavior by Donziger with the remark: "This is an attempt to compare a cartload of apples with a truckload of oranges."
Friedman argued that evidence of Chevron's conduct, in court and out, was relevant because in equity a party with unclean hands cannot accuse another of unclean hands. But Judge Kaplan replied that some dirt was irrelevant. "They're not suing you for running ads," he told Friedman. "They're not suing you for having a PR strategy in and of itself. They're not suing you for litigating a lawsuit in and of itself. They're not."
Of related interest:
Chevron in Ecuador: The Tapes the Plaintiffs Don't Want You to See
Chevron v. Donziger: A Dickensian Cheat Sheet
Chevron Wins Arbitration Ruling in Endless Ecuador Fight
The Global Lawyer: Closing in on Truth and Justice in the Chevron Ecuador Case
The Global Lawyer: Kindergarten Lessons from Chevron in Ecuador
Forum Shopper's Remorse