Chevron v. Donziger: The Miracle Maker

, The Litigation Daily

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(Editor's Note: The American Lawyer's Michael Goldhaber is filing regular dispatches from the Manhattan federal district court bench trial in Chevron Corp. v. Donziger. For background on the case, the parties and what it's all about, see the Litigation Daily's preview here.)

On Tuesday in Chevron v. Donziger, Chevron Corporation attested to a series of "miraculous offers" to fix the Amazonian oil pollution suit that eventually led to a $19 billion judgment against the oil company in Ecuador. On Wednesday, in the New York fraud trial brought by Chevron against its adversaries, the avowed miracle maker himself took the stand.

Alberto Guerra Bastidas served as the initial judge in the underlying environmental litigation in Ecuador before he was removed from the bench in 2008. In a written statement and in live testimony on Wednesday, he recounted a sordid tale of bribes solicited and won. Chevron's opponents, who will have a chance to cross-examine Guerra at the conclusion of his testimony on Thursday, released a memo attacking his credibility shortly after he took the stand.

Guerra said that after he left the bench he became a regular "ghostwriter" of judicial decisions for his successor on the Sucumbios provincial court, Nicolas Zambrano, in return for payments from Zambrano of $1,000 per month.

Around the time that Zambrano first took over as presiding judge in the Chevron litigation in October 2009, Guerra said that Zambrano asked him to approach Chevron with an offer to fix the case. He said they agreed to approach Chevron first because the oil company was obviously in "quite a better financial situation than the plaintiffs" and would be able to pay any bribe immediately. When he was finally rebuffed after a series of approaches, he said that both he and Zambrano were surprised, and that Zambrano was "disappointed" and "discouraged."

Guerra testified that he then approached the Lago Agrio plaintiffs' Ecuadorian counsel, Pablo Fajardo, who he says responded to the overtures enthusiastically. Meeting at the corner of Rio Coca and 6 de Deciembre avenues in Quito, Guerra says he agreed to expedite some motions and rule procedurally in the plaintiffs' favor in return for monthly payments from the plaintiffs, also in the amount of $1000. Guerra said that soon afterward he met with Fajardo and his colleagues Luis Yanza and Steven Donziger at the Honey & Honey restaurant in Quito to confirm the same deal. He added that at either this or their next meeting, when he asked for immigration law help for his daughter in the United States, Donziger mentioned that he was a law school friend of President Barack Obama.

According to Guerra, both he and the Lago Agrio plaintiffs upheld their ends of the deal. Guerra ghostwrote a couple of dozen orders for Zambrano in the Chevron case, he said, and the plaintiffs paid him $1,000 monthly until Zambrano was initially removed from the case in May 2010. The payments were usually made in cash on the same corner of Rio Coca, but sometimes by a check deposited to his bank account, Guerra said.

"Did you understand you were violating Ecuadorian law?" Chevron counsel Randy Mastro of Gibson, Dunn & Crutcher repeatedly asked. "It hurts me to say so, but yes," replied Guerra.

On Thursday, Zambrano is expected to testify about arrangements to pay a much larger bribe to ghostwrite the judgment itself.

Donziger's counsel, Zoe Littlepage of Littlepage Booth, spent the better part of an hour on Wednesday fighting to keep out of evidence a bank slip that appears to show $1,000 deposited into Guerra's account by an ex-employee of the Ecuadorian plaintiffs group, Selva Viva.

The defense initially argued that they could not verify that an ID number on the check belonged to the former employee in question. An irked Judge Kaplan noted that this was not "Cambodia 40 years ago," and they could easily pick up the phone that evening and ask. After more equivocation, Kaplan raised his voice and asked abruptly, "Is it her number?" Littlepage answered yes.

But Littlepage had raised a hearsay objection, and she stuck to it. Mastro offered a series of responses that seemed not to impress the judge, until his colleague Reed Brodsky handed him a note and Mastro pointed out that the depositor worked for a coconspirator. "That's interesting," Kaplan muttered under his breath.

The judge asked the parties to brief whether the signature of the depositor on a deposit slip may be admissible under either the residual hearsay exceptions or Federal Rule of Evidence 801(d)(2)(E). The latter creates an exception to the hearsay rule for statements offered against an opposing party and made by the party's coconspirator during and in furtherance of the conspiracy. Kaplan said he didn't know which way he'd rule—but he'd certainly recommend it as an exam question for a friend who teaches evidentiary law.

Of related interest:

Chevron v. Donziger: A Dickensian Cheat Sheet

Chevron v. Donziger: Day One

Chevron v. Donziger: The Money Man

Chevron v. Donziger: Looking for Miracles in Ecuador

Chevron v. Donziger: The Scientists

Chevron in Ecuador: The Tapes the Plaintiffs Don't Want You to See

The Global Lawyer: Closing in on Truth and Justice in the Chevron Ecuador Case

The Global Lawyer: Kindergarten Lessons from Chevron in Ecuador

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