Among the most critical and illuminating background facts is that internal Chevron documents have revealed that as early as 2009, Chevron recognized that it was likely to face a significant adverse environmental judgment and appears to have decided to respond with what its own operatives referred to as a “L-T [long-term] strategy to demonize” the lawyers and community leaders behind the environmental case as a way of tainting the expected judgment and rendering it unenforceable.[1. See http://j.mp/1N9qlXS.]
Over the last five years, Chevron has relentlessly pursued this “demonization” strategy in the media (in particular on social media, where it maintains numerous active Twitter feeds, anonymous blogs, YouTube channels, and other outlets that constantly recycle its various attacks on its Ecuadorian opponents), in government lobbying at the highest level, and, as examined here, through an aggressive campaign of lawsuits personally attacking its opponents.
Chevron began its retaliatory litigation campaign with a series of lawsuits under a U.S. law that allows a party to make “discovery” requests to a U.S.-based person in order to “aid” a foreign litigation. Chevron initiated “an extraordinary series of at least 25 [such] requests to obtain discovery from at least 30 different parties” in more than a dozen federal courts across the United States,[2. In re Chevron, 633 F.3d 153, 159 (3d Cir. 2011).] an effort one appellate court called “unique in the annals of American judicial history.”[3. In re Chevron, 650 F.3d 276, 282 n.7 (3d Cir. 2011).] The lawsuits were aimed at lawyers, organizers, scientists, and others who had assisted the Ecuadorian communities in their environmental lawsuit over the years. The filings initiating the lawsuits were loaded with inflammatory rhetoric about alleged “fraud” and “extortion.” They demanded almost unlimited access to the respondents’ computers, files, and email accounts, as well as demands that individuals subject themselves to videotaped depositions.
Using these lawsuits, Chevron obtained hundreds of thousands if not millions of confidential and often attorney-client privileged documents and communications, as well as 600 hours of outtakes from a renowned documentary filmmaker who had been allowed to film the communities and their representatives for an award-winning 2008 film on the case, Crude: The Real Price of Oil. Although these materials reflected nothing incriminating or improper when reviewed fairly in their actual context, Chevron lawyers and PR strategists took snippets of the material out-of-context to weave a fabricated narrative suggesting that parts of the environmental trial process were problematic. Chevron went so far as to snip words out of the middle of video clips, professionally editing the result so that it would appear “seamless”—but mean something completely different.
Indeed, evidence has come to light that Chevron used public relations and private investigations firms for far more, and even more disturbing, intrusive, and intimidating conduct. Chevron hired firms including Kroll and Investigative Research Inc. to prepare dozens reports on individuals assisting the Ecuadorians (including reports on their family members), to offer money to individuals for obviously false testimony (see below), and to implement a vast corporate espionage scheme against the Ecuadorians and their lawyers. One of Chevron’s main targets, Steven Donziger[4. U.S. legal advisor to the plaintiffs], at one point hired his own private investigator and discovered that individuals were surreptitiously following him everywhere he went.[5. See Declaration of Denis Collins, dated May 31, 2013, at http://j.mp/1Mmnk2T.] Overall, Chevron admitted in court filings that it deployed over 2,000 lawyers, PR consultants, and investigators in assembling its case against the Ecuadorian plaintiffs.
With all its manufactured material in hand, Chevron then took its retaliatory litigation to an even more extreme level. In February 2011, Chevron launched a “civil racketeering” lawsuit against under the U.S. “RICO” statute accusing the individual Ecuadorians who had sued it for contamination, along with some of their attorneys and scientific advisers, for alleged “fraud” and “extortion” in bringing the environmental case in Ecuador, which Chevron claimed was “sham litigation.”[6. As set forth in the original CETIM submission, the bona fides of the Ecuador litigation could not be more obvious. Countless news organizations have documented the massive toxic waste pits at the center of the lawsuit, see, e.g., Simon Romero and Clifford Krauss, In Ecuador, Resentment of an Oil Company Oozes, New York Times, May 14, 2009, at http://j.mp/1OdRPbH, as well as the individuals who have suffered the consequences, see, e.g., Lou Dematteis, Chevron Says These People Don’t Matter, Huffington Post, Apr. 12, 2012, at http://j.mp/1OdRV32. Recently, videos have come to light showing Chevron’s own technical field staff darkly laughing over their inability to find clean soil to present to the Ecuador court as a pretense that the environment was clean and safe. See, e.g., Robert S. Eshelman, The Chevron Tapes: Video Shows Oil Giant Allegedly Covering Up Amazon Contamination, Vice News, Apr. 8, 2015, at http://j.mp/1OdRTZ6.] What followed was a true travesty of justice. The facts are far too voluminous to address comprehensively here, but the following points illustrate some of the disturbing aspects of the process (and subsequently, the result):
Chevron used a mechanism to maneuver the RICO case to a judge who had previously expressed both open contempt for the Ecuadorian cause, which he maligned as a product of “the imagination of American lawyers” who wanted so much money they would “fix the balance of payments deficit” between the U.S. and Ecuador, as well as outright favoritism toward Chevron, who he thought should be protected so that the American consumer wouldn’t “pull his car into a gas station to fill up and find that there isn’t any gas there because these folks [the Ecuadorian plaintiffs] have attached it in Singapore or wherever else.” This judge even publicly suggested that Chevron bring the RICO case before Chevron actually brought it.
The U.S. court[7. Southern District of New York] subjected the Ecuadorians and their attorneys to massive discovery and pre-trial briefing obligations, burning through their limited funds to the point that all the lawyers (except one solo practitioner) were forced to withdraw six months before trial. Just before trial, three lawyers agreed to represent the Ecuadorian side without compensation, but they had no familiarity with the facts of the case.
The court refused to allow the defense (the Ecuadorian side) to conduct any discovery or make any arguments referencing Chevron’s massive contamination in Ecuador, i.e. the fundamental basis of the Ecuador lawsuit and the motivations of the defendants. Just before trial, the judge indicated that he would impose sanctions on any defense lawyer who even mentioned the word “contamination.”
Just before trial, the U.S. court allowed Chevron to drop all its damages claims yet still proceed with the case. The tactic allowed the court to deny the defense their right to have the case be heard by an impartial jury. In the U.S., all criminal cases and all civil cases demanding more than $20 must be heard by a jury. With this tactic, Chevron was allowed to thread the needle and have the notoriously biased judge described above decide the case by himself. (After trial, the judge allowed Chevron to reinstate a damages claim for $32 million in attorneys fees against the defendants.)
At trial, the U.S. court allowed Chevron to continue with tactics designed to crush the defense with brute force alone. For example, Chevron was allowed to submit over 2,000 exhibits in one day, and when the defense didn’t object to each exhibit individually in four days time, all objections were waived.
The U.S. court allowed Chevron to submit testimony from secret “John Doe” witnesses; from witnesses who were deposed ex parte (i.e. without the other side’s lawyers being present); and, most problematically, from a disgraced former Ecuadorian judge named Alberto Guerra, who admitted to taking and paying bribes his entire career, admitted to approaching Chevron offering to sell his testimony, and to whom Chevron indeed paid millions of dollars in cash and benefits, all in flagrant violation of ethical principles against paying “fact” witnesses. Mr. Guerra was Chevron’s “star” witness—he was the only witness who testified (falsely) to alleged bribery in the environmental case.
Given the unbalanced nature of the proceeding, it is no surprise that the U.S. court rendered a RICO judgment in Chevron’s favor in March 2014. That judgment is on appeal and hopefully will be reversed. Additionally, important new evidence has come to light, including the fact that Alberto Guerra, the star “bribery” witness who was already manifestly lacking in credibility, has openly admitted that he lied under oath during the RICO case.[8. See, e.g., Adam Klasfeld, Ecuadorean Judge Backflips on Explosive Testimony for Chevron, Courthosue News Service, at http://j.mp/1OdS32J.]
But regardless of the outcome of the appeal or other future development, the RICO case stands by itself as an act of severe, brutal intimidation inflicted by a powerful private actor on its human rights defender opponents, using the U.S. civil justice system as the primary weapon.
Other U.S. courts and legal authorities have recognized the danger of abuse inherent in the civil RICO procedure. The RICO statute has been used by litigants in other cases for its “stigmatizing” and even “terrorizing” effects, by parties “seeking to score a tactical edge or to deal the heaviest possible vengeful blow to the defendant’s personal reputation.”[9. Gross v. Waywell, 2009 U.S. Dist. LEXIS 52599 (S.D.N.Y. June 16, 2009).] One U.S. court called it “the litigation equivalent of a thermonuclear device.”[10. Katzman v. Victoria’s Secret Catalogue, 167 F.R.D. 649, 655 (S.D.N.Y. 1996).] But, to our knowledge, no company has ever used the statute against human rights defenders.[11. In one other case—also a troubling one in many respects—the circus conglomerate Ringling Brothers Barnum & Bailey brought a lawsuit against animal rights groups such as the Humane Society based on their advocacy on behalf of circus animals. The animal rights groups ultimately agreed to settle the case and even make a payment to Ringling Bros. to avoid the enormous cost of going to trial. See, e.g., Thomas Heath, Ringling Circus prevails in 14-year legal case, Washington Post, May 16, 2014, at http://j.mp/1OdRZQm.]