Bias of Federal Judge and Chevron’s Abusive Tactics Prompt Law Firm to Withdraw from Ecuador Case

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Citing the bias of New York federal judge Lewis A. Kaplan against Ecuadorian rainforest residents who won a judgment against Chevron, a prominent law firm is seeking to withdraw from its representation of New York attorney Steven Donziger in a related New York case that it says “has degenerated into a Dickensian farce” due to the oil giant’s abusive litigation tactics.

Keker & Van Nest, which represents Donziger, who is the main target of a Chevron retaliation campaign, filed the motion Friday before Judge Kaplan.  Lead attorney John Keker has called the New York proceedings orchestrated by Judge Kaplan a “show trial” and previously said that Kaplan was treating him “like a goat tethered to a stake.”

Separately, and for similar reasons, the Houston-based law firm Smyser Kaplan & Veselka also announced it would seek to withdraw from the case on behalf of the two Ecuadorian rainforest residents who have appeared, Javier Piaguaje and Hugo Camacho. 

Keker’s motion to withdraw from the case can be found here.  A statement from Donziger, which emphasized the New York litigation will have no impact on the international enforcement efforts that target Chevron assets, can be found here.

“Through scorched earth litigation, executed by its army of hundreds of lawyers, Chevron is using its limitless resources to crush defendants and win this case through might rather than merit,” said Keker in his motion.  “Encouraged by this court’s implacable hostility to Donziger, Chevron will file any motion, however meritless, in the hope that the Court will use it to hurt Donziger.”

Donziger praised Keker for fighting “valiantly” against Chevron, but said: “Judge Kaplan has made it abundantly clear he will not allow me or my Ecuadorian colleagues a fair trial in his courtroom.  It makes no sense to expend further resources that we don’t have for lawyers in a proceeding where the outcome is so clearly preordained by the judge.”

Donziger noted that the Second Circuit Court of Appeals had unanimously overturned Judge Kaplan in an earlier phase of the case after he had many numerous comments insulting to the Ecuadorians.   

“I have held back public comment for two years while Judge Kaplan has continually violated the due process rights of me and my Ecuadorian colleagues, and insulted the people of Ecuador with xenophobic comments, hoping all the time that the situation would improve with time,” he said.  “Instead, Judge Kaplan’s conduct has gotten steadily worse in recent months.”

Chevron has filed papers indicating it has roughly 2,000 legal personnel and 60 law firms working to evade compliance with the Ecuador court judgment -- including 114 lawyers at Gibson Dunn & Crutcher, the primary Chevron law firm handling the New York case. 

In contrast, Donziger works out of his two-bedroom apartment in Manhattan with a non-legal assistant.  He said he will try to find the resources to re-hire his counsel or to find substitute counsel, but that he was not hopeful.

“Regrettably, Chevron’s goal of denying our due process rights in the United States by sapping our financial resources is working,” said Donziger.

In his motion, Keker said there is “no reasonable prospect” that Donziger will be able to pay the estimated $5 million in legal fees necessary to prepare for and litigate the trial, currently scheduled for October of this year.  He also pointed out that Judge Kaplan had appointed two colleagues – including his former law partner Max Gitter – to serve as “special masters” during 42 depositions scheduled for a one-month period in Peru, San Francisco, Denver, New York, Houston, and Washington, D.C.  

Judge Kaplan had ordered that the costs for the special masters – who are charging roughly $800 per hour, or about $20,000 per deposition -- be split between Chevron, Donziger, and the two Ecuadorian rainforest residents.  Given his limited resources, Donziger had ordered his counsel not to attend any depositions and to notify the special masters not to send him their invoices.

“Simply put, Donziger cannot afford to pay what is required to litigate effectively against a hostile wealthy corporation in a hostile court,” said Keker, who asked that his firm “not be made a slave to this impossible situation.”

The motion by Keker & Van Nest follows numerous examples of Judge Kaplan’s bias from the bench. 

In 2010 and 2011, Judge Kaplan forced Donziger to testify for 16 days in depositions and has ordered him to appear for an additional three days in late May, when the federal rules normally only allow one day; he allowed Chevron to serve Donziger with an almost unheard-of 1,228 requests for admissions; forced him to turn over his entire 18-year case file based on a technical waiver of the attorney-client privilege; and barred him from introducing the overwhelming scientific evidence of Chevron’s toxic dumping in Ecuador as proof the judicial decision in Ecuador was not a fraud, as the oil giant alleges.

Judge Kaplan also has refused to allow Donziger to pursue his own counterclaims against Chevron, which detail the oil giant’s crimes, fraud, espionage and bribes in Ecuador.  For a copy of the counterclaims, see here.   Kaplan also is allowing Chevron to put forth “secret” witnesses that neither Donziger nor the Ecuadorians can effectively cross-examine.

Donziger, a Harvard-educated lawyer who has been a member of the bar for 22 years, has since the early 1990s been a legal advisor to the indigenous and farmer communities in Ecuador’s Amazon region who won the judgment. Evidence shows that Chevron operated in Ecuador under the Texaco brand from 1964 to 1992, dumping billons of gallons of toxic waste into rivers and streams and decimating indigenous groups. 

In 2011, after an eight-year trial led by the Ecuadorian lawyer Pablo Fajardo, an Ecuador court found Chevron liable for $19 billion in damages.  A summary of the evidence can be found here and a video about the case can be seen here.

Even though it had promised a U.S. court to pay any adverse judgment, Chevron retaliated against the Ecuadorian communities and their lawyers by filing the racketeering and fraud case before Judge Kaplan.  Donziger and the Ecuadorians (one of whom is a canoe operator) are being sued for triple damages on the underlying judgment or roughly $57 billion, thought to be the largest potential personal liability in U.S. history. 

In the meantime, enforcement actions targeting billions of dollars of Chevron assets are proceeding in Argentina, Brazil, and Canada. Various analysts have confirmed that Chevron faces enormous risk from the Ecuador case; just this week information surfaced that a Chevron lawyer bribed a former judge in the country with a suitcase full of cash.

 “Chevron’s lawsuit in New York against me and my clients was, and remains, a sideshow that will not detain enforcement actions around the world,” Donziger said.

In his statement, Donziger called on Judge Kaplan to step aside given his one-sided rulings and his strident comments about the supposed defects in Ecuador’s judiciary.

 “While litigating an eight-year environmental trial to conclusion in the face of Chevron’s constant efforts to sabotage the proceedings was not easy, the process in Ecuador was fundamentally fair and the Ecuadorian judgment is firmly grounded in multiple corroborating layers of scientific evidence pointing to Chevron's liability,” added Donziger in his statement. 

“I believe these fundamental facts will drive the enforcement process to conclusion until the entire amount of the judgment is collected and Chevron is held fully accountable under the law for its gross misconduct, environmental crimes, and fraudulent cover-up in Ecuador.”

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