Chevron Attempts to Stop Ecuadorians from Raising Money to Force Oil Giant to Pay For Oil Contamination Cleanup
US Judge Selects A So-Called “Neutral” Expert, With Chevron Ties, to Oversee Effort to End Canadian Lawsuit
The never-ending Chevron plot to harm Indigenous Ecuadorians by refusing to pay a $12 billion judgment thickens with a phony promise of a so-called “neutral” expert by a US federal judge, guiding yet another attack on behalf of the oil giant.
In the legal battle between Chevron and Ecuadorian villagers and farmers, US District Judge Lewis Kaplan has evolved into the mastermind behind the maneuvers by the California-based oil company to kill the Ecuadorians’ lawsuit, underway for 26 long years.
First filed in 1993, their lawsuit exposed chemical samples that proved thousands of Ecuadorians have been killed or injured from diseases resulting from the company’s contamination in the Amazon rainforest. In 2011, the Ecuadorians won a $9.5 billion damage award (now totaling $12 billion with interest) against Chevron in an Ecuador court. In the same year, Chevron countered in Kaplan’s court, the US Southern District Court of New York. Three years later, Kaplan found 47 Ecuadorians and their attorneys “guilty” of bribery and fraud in a non-jury trial where he prevented them from presenting any of the voluminous evidence of Chevron’s contamination, including 64,000 chemical sampling results. Prominent lawyer John Keker called the trial a “Dickensian farce”.
But Kaplan’s absurd ruling has not shut down the Ecuadorians. They have sued Chevron in Canada to obtain the judgment to fund the court-mandated cleanup and health care. Chevron — consistent with its dirty tricks strategy — sold off all its assets from the South American country to prevent paying up after four layers of the Ecuador court system found the company guilty.
Since Kaplan’s outlier ruling in 2014, the federal judge essentially has joined Chevron’s side. He is trying to use the power and credibility of the US judiciary to protect US corporations from lawsuits by advocates of Indigenous peoples and other marginalized communities and their lawyers in countries lacking adequate corporate regulation and oversight. Ecuador, Nigeria, and Nicaragua are a few examples. (See one of my recent columns about these details and more.)
This latest Kaplan move to hire a prejudiced expert begs for attention. It also takes us back to Chevron’s bribery and fraud charges against the Ecuadorians and their lawyers, including the allegation that the Ecuador judgment was “ghostwritten”.
After Kaplan ruled in favor of Chevron, they both surely thought the case would die. Chevron certainly never thought the Ecuadorians would carry their case as far as Canada and win in its Supreme Court their right to litigate. But they did, and now Chevron’s law firm Gibson Dunn has returned to Kaplan seeking a decision that it hopes will end the Canadian lawsuit by obtaining “digital evidence” — of some unknown and yet to be stated act — to stop ongoing fundraising for some of the most impoverished Indigenous peoples in the world.
To avoid the appearance of playing favorites, Kaplan is requiring a so-called “neutral” expert to oversee scrutiny of emails, a laptop, cell phone and documents in possession of one of the Ecuadorians’ US attorneys, Steven Donziger. Donziger has been fundraising openly and legally to pay fees for Canadian lawyers and for other advocacy expenses relating to holding Chevron accountable for its environmental crimes and fraud in Ecuador.
Chevron and Kaplan take the position that Donziger should never receive any fees or other contingency-fee payment from the $12 billion judgment. He has not received any judgment payments simply because Chevron has never paid the Ecuadorians a penny. In Kaplan’s 2014 ruling, he expressly allowed Donziger to continue working for his Ecuadorian clients and to be paid by them.
So what’s the problem? Canada. Fundraising keeps the case moving there. Chevron and its favored judge want it stopped.
Chevron asked Kaplan to appoint a security and investigations firm in New York, Stroz Friedberg, to review materials demanded from Donziger. Donziger has refused to turn over emails, documents and other materials, arguing that to do so would violate his First Amendment rights.
Kaplan pretended to play fair by requiring Chevron to select a “neutral” expert to lend a digital hand to Stroz Friedberg, one of the many investigations firms working for the company. On behalf of Chevron, Gibson Dunn chose Ondrej Krehel, the CEO/Founder of LiARS, known for its digital expertise. Krehel previously led a security and investigation unit for … drumroll … you guessed it — Stroz Friedberg, the company that worked for Chevron in the Kaplan/RICO racketeering case and participated in a huge lie about Chevron’s only witness Alberto Guerra, to whom Chevron paid $2 million for false testimony.
The so-called “neutral” expert describes himself as a Certified Ethical Hacker Instructor and worked for Stroz Friedberg when its main man, Spencer Lynch, helped Chevron in a separate international arbitration claim filed by Chevron against the Government of Ecuador.
(By the way, more and more US corporations are suing countries in arbitration to recover costs when they lose litigations in the courts where they operate. Chevron is one of them. Arbitration panels are composed of lawyers who often serve as both a corporation’s lawyer in one case and a judge in the next. Also, by the way, Chevron’s Gibson Dunn lawyer Randy Mastro hired Stroz Friedberg to protect someone else — longtime Trump buddy Chris Christie in the Bridgegate scandal.)
Under Kaplan’s theory, Krehel and Lynch will now join hands to review Donziger’s documents. For what exactly is unknown. Disturbingly, Lynch’s arbitration findings against the Government of Ecuador were at best, simply wrong, and at worse, nothing but drivel about computer drives. I’ll explain.
In the arbitration claim, Lynch reviewed USB or flash drives used on the computers of the presiding judge on the Ecuadorians’ case, Nicolas Zambrano. He also reviewed materials related to Chevron’s only witness in the Kaplan case, an admittedly corrupt former Ecuador judge named Alberto Guerra. Guerra had been kicked off the Ecuador court for taking bribes but Kaplan allowed him to testify that the Ecuadorians and their attorneys bribed Zambrano and himself and “ghostwrote” Zambrano’s judgment. Guerra made these fantastical claims after being coached for 53 consecutive days by Chevron lawyers, who paid him a total of $2 million in cash and numerous benefits, including his and his family’s move from Ecuador to the US. (See this 2015 column I wrote about Lynch and Guerra and the unraveling of Chevron’s case against the Ecuadorians.)
In the arbitration, Chevron argued Guerra and the computer drives proved that the Ecuador judgment was obtained via bribery and fraud. Later, while before the arbitration panel, Guerra finally admitted he lied in his testimony in the Kaplan trial.
Lynch also suspiciously failed to produce serial numbers from five USB drives which he claimed had been connected between Guerra and Zambrano’s computers in a lame attempt to “prove” ghostwriting that actually never happened. Not producing serial numbers is a big no-no in the digital world. That would be like a police officer forgetting to write down the tag number of a speeding car he’s stopped.
In response to Lynch, the Government of Ecuador hired another expert — noted US computer forensics authority J. Christopher Racich — to figure out what was up with Lynch. Racich examined the judge’s computers and produced a game-changing forensic report that blew apart Chevron’s fake bribery and fraud narrative.
After examining the trial judge’s computers in Ecuador, Lynch actually agreed with Racich’s finding that no evidence exists of judgment documents being transferred to Zambrano’s computers during the period of time that he was writing the judgment between October 2010 and February 2011, directly contradicting Guerra’s testimony. Here’s Racich’s report. Read it, and you will see Chevron’s arguments and Kaplan’s ruling have unraveled. Kaplan’s latest neutrality play is simply a fig leaf to sideline multiple lies. With or without the ability to fundraise, the Ecuadorians will continue their lawsuit in Canada.
It’s not over yet.
Karen Hinton is a communications consultant and the US spokeswoman for the Ecuadorians since 2008. She has worked pro bono for the Ecuadorians since 2013. Recently she received around $4,100 for several years of travel expenses to Ecuador and Canada and for calling a list of reporters about a Canada hearing. Chevron also has subpoenaed her for emails related to payments and fundraising.