Kaplan s Facts in His March 7 Order Are Effectively Ghostwritten by Chevron

Transcription

1 Kaplan s Facts in His March 7 Order Are Effectively Ghostwritten by Chevron Judge Kaplan s March 7 order ( the Order ), which grants Chevron a preliminary injunction of unprecedented breadth and brims with distain for Ecuador and its institutions, is built on a recitation of facts that is drawn so exclusively from Chevron s own presentations to the Court that it can be said that Chevron effectively ghost-wrote the order. Chevron s presentation of facts in support of its briefs consists of hundreds of carefullyclipped video snippets from the 600 hours of Crude outtakes and cherry-picked documents from the hundreds of thousands of documents (including privileged attorneyclient documents) Chevron received in discovery, all presented as attachments to a series of declarations signed by Gibson Dunn associate Kristen Hendricks. Kaplan cites evidence from the Hendricks declarations 162 times. The Lago Agrio Plaintiffs and Donziger s facts were presented to the Court in their briefing and as attachments to declarations signed by Sheldon Elsen and Keker & Van Nest partner Elliot Peters, as well as a detailed affidavit by Ecuadorian lawyer Juan Pablo Saenz describing some of the rampant misconduct Chevron has committed at various points throughout the Lago Agrio litigation. Kaplan cites evidence from the the Peters Declaration once, and does not cite at all the Elsen Declaration or Saenz Affidavit. (Indeed, Kaplan refused to consider all the evidence in the Peters and Saenz declarations, on account of the fact that, because Donziger had difficulties finding counsel willing to represent him in light of Kaplan s open hostility to him, the declarations could not be filed within the ten-day deadline Kaplan allowed for them.) Kaplan also cited a declaration by Paul Dans, a lawyer for Rodrigo Perez Pallares who is not even participating in the proceeding and whose declaration was filed in a different case, 15 times. Chevron submitted what purport to be expert statements along with its complaint, and Kaplan required both sides to submit expert statements on the Ecuadorian appellate process. Kaplan cites Plaintiffs experts Farith Simon and Alejandro Garro four and five times, respectively. He cited Chevron s experts Cesar Coronel Jones and Vladimir Alvarez Grau 12 and 45 times respectively. In fact, in the eight pages and 45 footnotes that Kaplan dedicated to trashing the Ecuadorian judiciary, and Ecuador in general, as unstable, backwards, and corrupt, all but five citations are to Alvarez Grau, and of those five, four are to the Hendricks Declarations. The only non-alvarez, non-hendricks source Kaplan references in his all-out assault on Ecuador s reputation is a citation to web article on the Cuban progandist website El Guerrillero, and he used it to support his aggressive

2 characterization of Ecuadorian President Rafael Correa as an out-of-control socialist bordering on fascist. As an assemblage of material from Chevron s facts, Chevron itself could not have done better than the Order. Indeed, Kaplan has pushed the boundaries of Chevron s already aggressive litigation strategy, encouraging it to push harder. It was Kaplan, speaking sua sponte from the bench, who first brought up the idea that Chevron should try to tailor its claims to make out a RICO complaint. Kaplan has also, in this case and earlier ones, made clear his opinion that Chevron and Texaco are legitimately separate companies such that Chevron should not be held liable for Texaco s heinous acts. In the Order, even though it is hardly a relevant issue and even though Chevron didn t emphasize the argument in its own briefing, Kaplan again takes up the issue and expounds at length. Order at 1, 14 n40. He leaves open the possibility that [t]here are circumstances in which an acquiring company in a transaction structured like [the Chevron-Texaco] one could be held liable for obligations of a subsidiary... [but for] present purposes, the Court expresses no view as to whether any of those circumstances is present here completely ignoring the fact that the court with proper jurisdiction over the issue, the Lago Agrio court, did find such circumstances. The Lago court heard argument over the course of several years on the question, and reviewed dozens of record documents about the merger and the companies post-merger behavior evidence not before Kaplan as he pronounces on the question as he wishes. Another key issue in the case is whether plaintiffs, by suing under certain procedural devices established by the 1999 Environmental Management Act, are somehow applying the law retroactively. The EMA is procedural because it governs who can get in the courthouse door and how; specifically, it allows individuals to sue as representatives of a larger class, and allows the case to proceed directly to a higher-level court. The substantive law applied to Chevron is the same law in effect when the company operated in Ecuador -- in fact, it dates to the 1800s and derives from Civil Code provisions that allow individuals to sue to prevent contingent harm and that require a wrong-doer to compensate those injured by the wrongdoing. Chevron s acts were judged to be wrong because they contravened terms of law and contract in place at the time that required Chevron to take certain precautions to protect the environment. Kaplan also adopts and vigorously advocates Chevron s theory that the Lago Agrio litigation is meaningfully distinct from the earlier Aguinda litigation in New York, even though the case involve the same parties and the same facts. As Kaplan argues it, the Lago case is a fundamentally different lawsuit than Aguinda [because] Aguinda sought predominantly damages for the plaintiffs and class members for injuries to person or property... [whereas in the Lago case the plaintiffs] sued in something akin to a parens patriae capacity to require the defendants to perform, or to pay the cost of performing,

3 environmental and other remediation methods. Order at 14. But just pages earlier in the Order, in first describing the Aguinda case, Kaplan recognizes that in Aguinda, Plaintiffs sought equitable relief to remedy the contamination, viz. they asked [the New York] Court to require Texaco to perform remediation work within Ecuador. Order at 8. In other words, the equitable relief sought in both cases is as identical as the parties and facts. The rest of Kaplan s facts are similarly ghost-written by Chevron. For example: Kaplan adopts Chevron s view that the purpose of any future attempt by plaintiffs to enforce the Lago Agrio judgment is only to pressure Chevron into a richer settlement, Order at 1-2, ignoring the fact that plaintiffs might be quickly seeking to enforce and recover on the judgment because people affected by Chevron s contamination are starting to die off, uncompensated for their suffering. Kaplan states that the GOE represented that all of the claims asserted in the Aguinda action belong[ed] to the government of the Republic of Ecuador under the Constitution and laws of Ecuador and under international law. Order at 9. [Not only is this erroneous, but the exhibit Kaplan cites does not contain the quote he attributes to it, nor does it support the quote in any respect.] Kaplan adopts Chevron s absurd theory that the 1999 Environmental Management Act was the product of a conspiracy by Ecuador and the plaintiffs to make Chevron liable despite the terms of its fraudulently-obtained release. Order at Chevron raised this argument in the anti-arbitration litigation before Judge Sand, and in response the Ecuadorian government produced substantial proof showing that the law was the product of a decade-long, transparent and inclusive policy-making process looking for ways to spur enforcement of the environmental laws generally. Kaplan endorses Chevron's concocted "conspiracy" theory based on one piece of evidence: comments of Cristobal Bonifaz (former plaintiff's attorney) saying that he had worked with Ecuadorian lawyers to draft [the EMA] similar to the U.S. Unless one is searching for a way to blame plaintiffs, the plain understanding of this is that the lawyer participated in the larger policy-making process as did hundreds of other stakeholders. Lobbying for stronger environmental enforcement laws is not something unusual for an environmental lawyer, nor objectionable, and certainly not illegal. Kaplan adopts Chevron s view that the release by Ecuador seems to have been intended to put an end to any claims or litigation concerning Texaco s

4 alleged pollution. Order at 9. In fact, the evidence (again, not considered by the court) suggests the opposite is true. The Memorandum of Understanding upon which the remediation and release project is based expressly states that it does not apply to claims other than those held by the government or Petroecuador, explicitly carving out the third-party claims of the Lago plaintiffs. In any event, this issue also was decided by the Ecuador trial judge in favor of the plaintiffs after years of briefing and argument. Kaplan adopts another of Chevron s conspiracy theories, -- that the Prosecutor General s decision to prosecute Reis Veiga and Perez Pallares after first declining to do so was because the political winds in Ecuador had changed. In fact, as plaintiffs have argued, a better interpretation of the existing law supported prosecution, and when the PG reviewed this interpretation he saw its merits and changed course accordingly. The prosecution is based on scientific evidence outlined in a 130-page indictment that Kaplan does not cite. Kaplan adopts Chevron s view that the reports submitted by Calmbacher were entirely false and fraudulent. Order at 17, In fact, the deposition questioning Kaplan relies on and reprints in the Order does not ask about the substance of the report, but only the extent of Calmbacher s involvement. For example: Q. So the conclusions in the expert report for Shushufindi 48, Exhibit 13, to the extent they re presented to the Court as conclusions you reached, that presentation would be false, correct? A. Correct. The actual scientific merits of the report have not been challenged. Moreover, Kaplan does not qualify his discussion of Calmbacher at all despite the numerous s in the record showing that Calmbacher was on a years-long vendetta to hurt the case and was prone to hysteria appearing close to the point of mental illness. Kaplan adopts Chevron s view that Pablo Fajardo s ex parte meeting with judges of the Lago court were improper and legally significant, even though Chevron and Kaplan know full well that Chevron s lawyers met ex parte with the judge on countless occasions. Kaplan even notes this in a fotnote, but completely disregards it in his analysis. Order at 25 n.77. Kaplan adopts Chevron s inference of wrongdoing from the fact that plaintiffs paid Cabrera, ignoring the fact that plaintiffs were legally required to pay him and did so openly. Order at 26, 34.

5 Kaplan adopts Chevron s suggestion that the supplemental experts who submitted reports in September 2010 were a whitewash of the Cabrera report and/or indistinguishable from it, in particular based on the fact that they prepared their report without visiting Ecuador, conducting any new site inspections, taking any new samples, and the like. Order at 34. But as plaintiffs have argued, the scientific validity of the data underlying the Cabrera report (and the Feb. 14 decision) is not seriously under challenge. Thus the job of the Sept. 16 experts was more quality control; to look at the same data (only a fraction of which was even produced by Cabrera, the majority produced by Chevron s own scientists) and draw from it their own conclusions, that could be used by the court in case the court were to disregard Cabrera (as it did). Kaplan adopts Chevron s spin that magistrate judges in the 1782 proceedings have allowed discovery on the basis of the crime-fraud exception, when in fact no court grounded its decision exclusively in the exception. Rather, the courts all discussed the crime-fraud exception at most as an allegation raised by Chevron that was unnecessary to reach under the circumstances. Order at 58. Perhaps most disturbingly, Kaplan adopts whole-heartedly certain quotes that Chevron has twisted or taken out of context, even though Kaplan must know from plaintiffs extensive argument just how duplicitous and distorted most of the quotes are. For example, Kaplan continues to quote, for dramatic effect, Donziger saying, We could jack this thing up to $30 billion in one day but leaving out the immediately following words, I mean, I m exaggerating... Order at 29. Plaintiffs have pointed this out to Kaplan on numerous occasions; the fact that continues to use the quote in a misleadingly truncated fashion only illustrates the degree to which Kaplan is on a mission to build a record against Donziger and the plaintiffs. Kaplan similarly adopts all of Chevron s other misleading quotes. Like Chevron, Kaplan tries to turn scenes where individuals are clearly joking or bantering into suggestions of malevolence and conspiracy. For example, Kaplan does his best to present as deadly serious a scene from the outtakes where plaintiffs representatives are joking about a possible idea of an army of court monitors to prevent Chevron from being able to corrupt the court, and start riffing on the silliness of the army analogy, joking that they can get weapons for the army from Iran (a tease directed at one of the colleagues present who was born in Iran). Kaplan takes this seriously when it was clearly a joke. Incredibly, Kaplan states in the Order that plaintiffs have not denied Chevron s allegations. This raises the worrisome possibility that Kaplan has not even bothered to read plaintiffs and Donziger s briefs, all of which counter Chevron s erroneous and disingenuous facts to the extent possible in limited time and space. The plaintiffs

6 opposition to Chevron s motion for a preliminary injunction starts with 25 pages of facts, beginning in 1964 when Texaco began operations in Ecuador, and continuing through to Chevron s dirty tricks in the Lago litigation today. Other briefs in the case and briefs in the earlier 1782 cases offer even more rebuttal. How Kaplan can still think that plaintiffs have not denied Chevron s facts is simply inconceivable. #