Chevron Seeks Partial “Gag Order” to Silence Prominent U.S. Attorney Donziger Over Ecuador Pollution Judgment
Pro-Chevron U.S. Judge Kaplan Helping Oil Giant Block Main Critic From Filing Protest Letter About Coercive Tactics
NEW YORK, NY - Chevron has stepped up its attacks on prominent corporate accountability attorney Steven Donziger by seeking a partial gag order designed to silence criticism of the company’s retaliation campaign after it was found to have dumped billions of gallons of toxic oil waste into Ecuador’s Amazon rainforest.
While Chevron has used at least 60 law firms to attack Donziger, this is the first time company lawyers at the law firm Gibson Dunn – who have been accused by courts of “legal thuggery” and falsifying evidence -- have sought any sort of gag order in apparent violation of the First Amendment. Donziger said he believes the gag order is “patently illegal” and reflects increasing desperation by the Gibson Dunn firm and Chevron CEO Michael Wirth after several institutional shareholders strongly rebuked company management at the annual shareholder's meeting in May and courts in Canada continue to proceed with a lawsuit to seize company assets.
Chevron’s toxic dumping in Ecuador in the 1970s and 1980s, which decimated the cultures of five Indigenous groups and has led to an outbreak of childhood leukemia and other cancers, has yet to be cleaned up, according to court findings that ordered the company to pay $9.5 billion to the affected communities so they could remediate their ancestral lands. Chevron has threatened the Indigenous groups and Donziger with a “lifetime of litigation” if they continue with the case. (Here is a summary of the evidence against Chevron.)
Donziger said he would not comply with any gag order to the extent it runs afoul of his legally-protected Free Speech rights under U.S. and international law. (See here for a Donziger legal filing regarding Chevron’s attacks on the First Amendment.) Chevron is seeking the gag order to prevent Donziger from making a written submission challenging its effort to force him to abandon his interest or legal fee in the pollution judgment as part of a highly flawed U.S. “racketeering” decision from 2014. That decision, issued by U.S. federal judge Lewis A. Kaplan, was based largely on false testimony from an admittedly corrupt Ecuadorian witness paid at least $2 million by Chevron.
Seventeen appellate judges in Ecuador, including the country’s entire Constitutional Court, have issued findings rejecting the decision of Kaplan, who held undisclosed investments in Chevron at the time of the “racketeering” trial. Kaplan also refused to consider any of the environmental evidence against the company.
“Chevron and its lawyers need to realize this is the United States of America where Free Speech is a right held by all, not just by powerful corporations,” said Donziger, who has criticized the company’s targeting of human rights defenders. “Our Constitution allows me to criticize Chevron’s coercive and unethical litigation tactics and in fact my clients demand that I do so. To be clear, I will not temper my criticism of Chevron for committing environmental atrocities nor for its attacks against me and other human rights defenders.”
Chevron is seeking the partial gag order against Donziger as the company has come under increasing pressure. The Gibson Dunn firm was caught bribing the company’s star witness, Alberto Guerra, with $38,000 in cash out of suitcase and a myriad of other benefits, including a salary 20 times higher than what he had been earning in Ecuador and immigration to the U.S. for his entire family. After being coached for 53 days by Chevron lawyers, Guerra took the stand in Kaplan's court and by his own admission lied as part of a scheme to taint Donziger and his clients with civil fraud charges designed to block enforcement of the Ecuador judgment in other jurisdictions. Chevron has spent an estimated $2 billion on its defense, but Kaplan’s judgment largely has fallen apart after Guerra recanted much of his testimony. Separately, Canada’s Supreme Court green-lighted a lawsuit brought by the Ecuadorians to seize Chevron assets to force compliance with their judgment. (See here.)
(Here is detailed documentation of Chevron’s witness fraud and bribery regarding Guerra. Here is a criminal referral letter to the U.S. Department of Justice of Chevron over the Guerra witness bribery. Here is background on Gibson Dunn’s pattern of engaging in unethical conduct. Here is a summary of Chevron’s intimidation campaign written by Greenpeace co-founder Rex Weyler.)
Chevron wants to block Donziger from submitting a qualifying statement explaining that a recent court order that he turn over his interest in the Ecuador judgment was based on the false witness testimony from Guerra, was being done under the coercive threat of contempt of court, violates his ethical duties to his clients who have barred him from transferring his interest in the case, and would be legally null and void in any event. Donziger recently tried to submit a qualifying statement on the issue, but Chevron is trying to squelch it -- a clear effort, Donziger said, to hide an unpleasant feature of the company’s SLAPP-style demonization campaign.
Donziger, who has beaten back seven Chevron attempts to hold him in contempt of court, said he was unbowed by the latest effort by the company to impose a partial gag order. "It appears that both Chevron and Judge Kaplan are united in trying to do everything possible to shore up the extremely problematic, and I believe fatally flawed, racketeering judgment against me and my clients that was based on the false Guerra witness testimony," he said.
“The bottom line is that Chevron lost the environmental case on the merits in the venue where it sought to have the trial,” added Donziger, who has an appeal pending of various Kaplan decisions based on the First Amendment and other grounds. “Rather than pay what it owes based on the harm it caused, the company is now back in the U.S. attacking and distracting because it has calculated it is cheaper to litigate than to comply with court judgments.”
As Chevron’s attacks in the U.S. have intensified, Donziger has received wide support from around the world. Those backing him include musician and Pink Floyd original Roger Waters; Producer and Director Trudie Styler; Actor Alec Baldwin; and prominent lawyers such as Rick Friedman (best-selling author and former President of the Inner Circle of Advocates), First Amendment specialist Marty Garbus, and Professor Charles Nesson of Harvard Law. Also speaking out for Donziger are former National Chief of Canada Phil Fontaine, Rafael Pandam (President of the Amazon Indigenous Parliament), human rights academic and Professor Kathleen Mahoney, Rex Weyler, the co-founder of Greenpeace; Simon Taylor, the co-founder of Global Witness; and Paul Paz, a top-level campaigner with Amazon Watch. (Here are testimonials for Donziger.)
Those on the Chevron team seeking the gag order against Donziger include General Counsel R. Hewitt Pate and several Gibson Dunn lawyers who are the subject of a criminal referral letter to the U.S. Department of Justice. Donziger said the team at Gibson Dunn involved in the witness bribery and other misconduct is led by Trump supporter Randy Mastro and includes, among others, Andrea Neumann, Anne Champion, Avi Weitzman, Ted Boutrous, Reed Brodsky and Alejandro Herrera.
Background On Legal Case and Gibson Dunn’s Ethical Violations
Donziger, who has worked in public interest law since graduating from Harvard Law in the same class as President Obama, started representing the Ecuadorian Indigenous peoples and farmer communities in 1993 to seek solutions for what is widely considered the worst oil-related contamination on earth. Four separate courts in Ecuador found that Chevron deliberately dumped 16 billion gallons of cancer-causing oil waste onto ancestral lands in Ecuador’s Amazon from 1964 to 1992, decimating the Indigenous peoples and causing a wave of cancers and other diseases. The company also abandoned roughly 1,000 open-air toxic waste pits that still contaminate groundwater and streams that locals rely on for their drinking water. (Here is a photo essay of some of Chevron’s victims.)
Just last month, Ecuador’s Constitutional Court affirmed the judgment against Chevron in an 8-0 decision based in part on 64,000 chemical sampling results, 105 technical evidentiary reports, Chevron’s own environmental audits, and live testimony from dozens of witnesses. Chevron had insisted the trial take place in Ecuador and had accepted jurisdiction there. It later began to attack Ecuador’s courts as the evidence against it mounted.
Chevron (operating as Texaco) drilled hundreds of oil wells in the 1970s and 1980s in a 1,500 sq. mile area of Ecuador's Amazon. The company’s own audits conducted in the early 1990s found extensive pollution and a total absence of environmental controls. Chevron even used Agent Orange to clear out jungle on Indigenous ancestral lands to install drilling platforms. One Chevron executive, R.W. Shields, sent a memo to company employees ordering the destruction of all documents related to oil spills. Chevron did not conduct even one environmental impact study before drilling in what is considered the world’s most sensitive ecosystem, according to court evidence.
In Chevron retaliatory “racketeering” case, Judge Kaplan also allowed the company to present secret witnesses whose identities were never revealed to Donziger. He also refused to allow Donziger to tell his story in court. The judge denied several recusal motions over his evident bias without disclosing his financial ties to the oil major. (For more on the many problems with the Kaplan trial, see this report.)
Chevron’s management become even more infuriated in recent months after a coalition of 36 institutional shareholders representing $109 billion in assets urged a settlement of the case just prior to the company’s annual meeting in May. At that meeting, two shareholder resolutions critical of management over the Ecuador liability won overwhelming support. Further, Chevron’s previous attempts to subpoena more than 100 journalists, bloggers, shareholders and environmental activists who support the Ecuadorians came under harsh public criticism.
Greenpeace co-founder Rex Weyler, calling the Chevron attacks against Donziger SLAPP-style intimidation, accused Chevron of committing “ecological crimes” in Ecuador after he visited the affected region last year. Weyler called Donziger a “hero” for standing up to the company.
“This is always the way the status quo power structure protects its own,” he said, in reference to the attacks on Donziger. “The more frightened they are by the truth, the greater their lies. They did this to anti-slavery activists centuries ago, to the suffragettes, to Gandhi and Martin Luther King, to indigenous leaders throughout the world.”
Despite the stepped-up attacks, Chevron and Gibson Dunn still face major risk. Chevron has an estimated $25 billion of assets in Canada, or more than enough to pay the entirety of the Ecuador judgment should the enforcement action conclude. Chevron’s main strategy in Canada is to tie up the case in procedural issues rather than litigate the facts to conclusion, said Donziger.
The Gibson Dunn litigation group headed by Mastro has not helped its own cause. The firm has been sanctioned by judges from England to Montana for engaging in a pattern of unethical practices including the targeting of opposing counsel and falsification of evidence. (Read about Gibson Dunn’s history of falsifying evidence in cases from Ecuador to Nicaragua to Djibouti.) In the meantime, Gibson Dunn markets to the corporate world what it calls the “kill step” which involve coordinated legal and public relations attacks on opposing counsel designed to drive them off cases and leave the victims of polluters without legal representation.
That tactic has failed in the Ecuador case as several prominent Canadian attorneys have come in recent years to represent the Indigenous groups. They include prominent commercial litigator Alan Lenczner and Indigenous rights lawyer Peter Grant.
Separately, six colleagues of Judge Kaplan convinced the New York bar to suspend Donziger’s law license without a hearing on the grounds that he is an “immediate threat to the public order” based on the disputed “racketeering” findings. Donziger, who maintains a law license in another jurisdiction, is fighting that move with the help of Harvard Law Professor Nesson and First Amendment specialist Garbus, both of whom submitted an amicus brief on his behalf. (See here for Donziger’s growing support.)
Chevron witness Guerra continues to receive hush money from the oil giant while living in a house outside Chicago, where the company pays his income taxes. Separately, a forensic report from one of the world’s leading computer authorities (J. Christopher Racich) also proved Guerra lied in the “racketeering” case after being given $38,000 in cash out of a suitcase from Chevron investigators.