May 23, 2011 6:00 AM
Posted by Michael D. Goldhaber
From Litigation-Spring 2011
Scenes from Steven Donziger's life, captured on film:
Waiting in a hotel room with some of his clients, residents of the Amazon who are suing Chevron Corporation over damage to their land and health, lawyer Steven Donziger gives a passionate lecture about Chevron's moral duties to the imperiled Cofán people.
Here is Donziger in his shirtsleeves, slipping in and out of Spanish, kibitzing as an equal with a self-taught lawyer who grew up in the gritty oil slums of Shushufindi, Ecuador.
Sharing a meal with his field consultants, Donziger responds to a question about their sampling data by saying: "This is Ecuador, okay?...[If] there's a thousand people around the courthouse, you're going to get what you want."
At a dinner party, when another guest jokes that the judge will be killed if he rules for Chevron, Donziger says, also joking, that the judge "might not be, but...he thinks he will be...which is just as good."
Steven Donziger invited documentary film cameras to track him as he stalked Chevron in the Ecuadorian jungle, seeking billions of dollars in damages for polluting the Amazon environment. Donziger eventually won his jackpot: On February 14, 2011, an Ecuadorian court held Chevron liable for about $18 billion, including a $9 billion penalty unless Chevron apologized within two weeks. (It didn't.)
Unfortunately for Donziger, the litigation also resulted in a movie, entitled Crude, that premiered at the 2009 Sundance Film Festival before a limited theatrical release. In 2010 Chevron won the right to see outtakes from Crude through a motion for U.S. court discovery in aid of foreign proceedings. Questions raised by those outtakes prompted the U.S. judge to order Donziger to produce Donziger's own diaries, his e-mails, and eventually his hard drive.
At the heart of Chevron's argument is the contention that Donziger committed a fraud on the court by secretly ghostwriting the global damages report submitted by a supposedly independent court-appointed expert. While the plaintiffs deny this allegation, in a November ruling, Judge Lewis Kaplan of the U.S. district court for the Southern District of New York found "substantial evidence that Donziger and others working with him have improperly (1) pressured, intimidated, and influenced Ecuadorian courts, (2) colluded with Donziger and with Cabrera to substitute their own biased work product for the neutral and impartial assessment that Cabrera was appointed to produce, [and] (3) concealed that role..." Donziger has conceded at deposition that plaintiffs' consultants substantially wrote the report, but plaintiffs argue that the Ecuadorian court should be the one to judge whether there was a fraud, and if so, how it should affect the Ecuadorian trial. Plaintiffs point out that the Ecuadorian judgment rested not on the impugned report, but on later reports that they argue were untainted. Meanwhile, Judge Kaplan has preliminarily enjoined enforcement of the Ecuadorian judgment, plaintiffs have appealed the injunction, and Kaplan has ordered a trial, set for November 2011, on the enforceability of the Ecuadorian judgment.
This profile is based on a complete review of Donziger's diary and of the initial two CDs of outtakes submitted by Chevron to the U.S. court. Plaintiffs argue generally that the outtakes highlighted by Chevron have been taken out of context, but they did not respond to an invitation to identify other outtakes that would shed light on his personal odyssey.
Whether they show fraud or not, the materials retrieved from Donziger's hard drive and the cutting room floor offer a remarkable window into the mind of a gifted, driven, but perhaps overzealous litigator operating in a legal gray zone. To buttoned-up lawyers who edit every tepid thought, and studiously avoid jungles both metaphorical and real, Donziger is a source of fascination. What drove him, after graduating from Harvard Law School, to devote nearly 18 years to a quixotic war against America's third-largest corporation in a Third World oil town? What compelled him to speak so unguardedly on camera as his case turned into grist for a legal ethics exam? Did he come to believe that publicity and politics were more important to his cause than proving his case in court?
What, in short, was he thinking? Donziger declined to comment on the record for this story. Still, it's an answerable question, because he seemingly never had a thought he didn't blurt out. Many of those thoughts are now public record, thanks to discovery by Chevron's lawyers.
CLICK HERE to continue reading "Overexposed."
- RESPONSES TO THIS ARTICLE
Click here for the Plaintiffs' and Chevron's responses to this story.
Contact Michael Goldhaber at firstname.lastname@example.org
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