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November 3, 2010 2:00 PM

Did Gibson Dunn Botch the Kill Step for Chevron in Ecuador?

Posted by Michael D. Goldhaber

Whichever genius at Gibson, Dunn & Crutcher thought to subpoena the outtakes of the documentary film "Crude" deserves a place in the litigation hall of fame. Some of those remarkable video clips --now viewable online--show conduct that is quite possibly fraudulent by the lawyers for the Amazon tribespeople suing Chevron Corporation for despoiling the Amazon basin.

But the latest Global Lawyer column from The Am Law Litigation Daily asks whether Gibson Dunn delivered its best punch too soon to score a knockout.

Had the outtakes discredited the Ecuadorian damages report after a final judgment issued on its basis, then the plaintiffs would have had no way to parry the blow. In the event, plaintiffs were able on Sept. 16 to file a new damages recommendation, increasing the maximum from $27 billion to $113 billion. Chevron (which recommended damages of zero) regards this as a bigger lie built on a discredited big lie.

Gibson Dunn insists that the Ecuadorian case cannot be whitewashed. It says the six American experts who labored on the new damages numbers relied on the controversial first report, and four did so expressly. Plaintiffs respond that the new experts drew upon the voluminous evidence submitted at trial.

Long before the outtakes were discovered, Chevron believed that it had uncovered fraud, corruption, and collusion so deep and multifarious as to make any judgment unenforceable in a legitimate court. It increasingly looks like Chevron will get the opportunity to test that belief.

Chevron's team at Gibson Dunn made its name carrying out the "kill step" for The Dole Food Company, in a dispute with many notable parallels. In that case, moving to unveil a plaintiffs' fraud proved decisive in blocking enforcement of judgments rendered against the company in a Latin American court. Chevron may yet repeat the feat, but perhaps in this case Gibson Dunn was too smart too soon.

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