Donziger: Judge Kaplan’s Contempt Finding Part of Chevron "Intimidation Play" Designed to Block Ecuador Pollution Judgment
Advocate Says He Will Seek Stay During Appeal as Record-breaking Fines Loom
New York – New York human rights advocate Steven Donziger today criticized a contempt finding against him by federal judge Lewis A. Kaplan, saying the ruling is part of an “intimidation play” by Chevron designed to block enforcement of a landmark pollution judgment owed to Indigenous peoples in Ecuador threatened by cancer-causing toxins from the company’s dumping of oil waste.
The decision by Judge Kaplan “is the latest chapter in a 10-year SLAPP-style demonization campaign by Chevron to retaliate against me and other lawyers for helping Indigenous peoples and farmer communities in Ecuador win a landmark $12 billion pollution judgment,” said Donziger, who is seeking a stay of the order to allow for an appeal.
“Judge Kaplan’s contempt decision is part of a Chevron intimidation play: it threatens me with financial ruin by holding the prospect of billions of dollars of fines over the head of a human rights advocate unless he voluntarily agrees to strip himself of his Constitutional rights and turn over his computer, phone, and passwords to Chevron,” added Donziger. “In effect, Judge Kaplan has ruled that Chevron has a right to a permanent spying mechanism over the activities of adversary counsel as this case proceeds in enforcement courts.“
Donziger’s full statement, which explains the factual basis of his appeal of Judge Kaplan’s contempt finding, is here. The contempt finding also comes at time that Donziger and the human rights group Global Witness filed criminal referral letters (see here) against Chevron and its outside law firm Gibson Dunn based on credible evidence the company engaged in witness bribery and fraud in Kaplan’s courtroom.
Kaplan ruled Donziger in contempt last week for obtaining outside investment money to help his impoverished clients pay case expenses even though the judge himself had expressly authorized such fundraising in a decision issued in April 2014. Kaplan also ordered Donziger to redirect to Chevron the roughly $600,000 received into his accounts from the fundraising and threatened him with potential billion-dollar fines if he doesn’t comply with various orders.
The fines threatened against Donziger, who works out of his apartment, dwarf by hundreds of times the second-highest fine ever imposed in New York by a federal judge and that was against a large bank, according to evidence. The potential fines also come after Chevron attempted in 2011 to sue Donziger in a civil racketeering case for a whopping $60 billion – thought to be the largest personal liability faced by an individual in U.S. history -- prior to dropping all damages claims on the eve of trial to avoid a jury.
In that non-jury civil case, which took place in 2013, Kaplan found Donziger committed fraud based almost entirely on the testimony of a witness paid $2 million by Chevron who later recanted much of his testimony. Kaplan’s finding has been rejected by four layers of courts in Ecuador that reviewed the entirety of the evidence. (Kaplan refused to consider the environmental evidence, which includes 64,000 chemical sampling results confirming extensive pollution of soils and water sources at Chevron’s abandoned oil fields.) Here is a summary of some of the flaws in Judge Kaplan’s racketeering proceeding, which was called a “Dickensian farce” by prominent trial lawyer John Keker.
Donziger reiterated that he is on the verge of “financial ruin” due to Chevron’s attacks and the burden of defending against them rather than helping his clients. “This is clearly an attempt to make me choose between continued advocacy for people suffering great harm, and my obligation to take care of my family including my young son,” said Donziger. “I believe forcing this Hobson’s choice violates the norms of the legal profession and our democracy and I intend to press that point on appeal.”
Kaplan seems increasingly isolated with his rulings. Last July, Ecuador’s Constitutional Court unanimously affirmed the judgment against Chevron which is being enforced in Canada after a unanimous decision in 2015 in favor of the Ecuadorians by that country’s Supreme Court. (See here for a summary of the numerous court victories by the villagers.)
Donziger said, “As long as practicable, I will continue to focus on helping my clients enforce their judgment and I will continue fighting to provide truthful evidence related to Chevron’s criminal toxic dumping in Ecuador and its fraud in securing the RICO judgment.”
Donziger's detailed legal brief explaining why he believes there is no proper basis to hold him in contempt is here.
Background – Chevron’s “Amazon Chernobyl” Disaster
After an eight-year trial, courts in Ecuador found in 2011 that Texaco (now Chevron) abandoned 1,000 unlined waste pits in the Amazon and deliberately dumped billions of gallons of cancer-causing toxic “production waters” into rivers and streams from 1964 to 1992, creating what is believed to be the world’s worst oil-related disaster known by experts as the “Amazon Chernobyl”. Chevron’s dumping has led to the cancer-related deaths of numerous people and decimated the ancestral lands and cultures of five Indigenous peoples, according to the evidence.
Chevron’s claims in its retaliatory racketeering case against Donziger and his clients all but collapsed after the company’s star witness, Alberto Guerra, confessed he had been paid $2 million by the company and coached for 53 days prior to perjuring himself on the stand. (See this legal brief for a detailed summary.) Guerra later admitted under oath that he lied repeatedly in the RICO proceeding.
Apparently angry at its setbacks, Chevron in the last year obtained authorization from Judge Kaplan to issue wide-ranging subpoenas and deposition orders to 25 people on the theory that Donziger should be held in contempt because he helped his clients raise funds from outside investors to pay case expenses – something clearly permitted under Judge Kaplan’s orders, including the one issued in April 2014 that expressly authorized payments be made to Donziger for his work. All supporters of the Ecuadorians were forced to endure time-consuming and harassing depositions at the hands of Chevron lawyers as part of its intimidation strategy, said Patricio Salazar, the lead Ecuadorian lawyer on the case.
Chevron’s “demonization” campaign targeting Donziger was acknowledged openly in 2009 by company strategist Chris Gidez in an internal email following the airing of an embarrassing segment on the company’s pollution on 60 Minutes. In the meantime, Donziger has been lauded as a “hero” of the environmental movement by Greenpeace co-founder Rex Weyler. He also has won the support of prominent lawyers around the world, including First Amendment scholar Martin Garbus and Harvard Law Professor Charles Nesson.
Donziger’s bio and testimonials from his colleagues can be found on his website.