Judge Ordered the Seizure of His Passport and Computer. Donziger Resisted. Here Is His Explanation.
Kaplan allows Chevron to create Orwellian “spying mechanism” targeting adversary
Statement from Steven R. Donziger
(Editor’s note from Karen Hinton, spokesperson for the Ecuadorian communities: Last week, U.S. trial judge Lewis A. Kaplan ordered the seizure of Steven Donziger’s passport, computer, and cell phone in retaliation for his advocacy which led to a $12 billion environmental judgment against Chevron over the company’s “Amazon Chernobyl” disaster in Ecuador. Judge Kaplan is endorsing Chevron’s attempt to create what Donziger says is an unprecedented Orwellian-style “permanent spying mechanism” for a corporate polluter to monitor the advocacy of its adversaries. Kaplan’s orders threaten the Constitution and are intended to undermine an enforcement action against Chevron in Canada targeting the company’s assets that has been backed by Canada’s Supreme Court. Sixteen appellate judges in Ecuador and 13 appellate judges in Canada have affirmed all or parts of the judgment against Chevron. Judge Kaplan is the only judge in the world to have ruled it was obtained by “fraud” and he did so based on false testimony from an admittedly corrupt Chevron witness paid $2 million by the company and after refusing to consider the voluminous environmental evidence used to impose liability. Mr. Donziger’s response to Judge Kaplan’s attacks – and background on the judge’s long history of questionable conduct in the Ecuador case -- follows.)
In a series of unlawful attacks on the Constitution and the rule of law, U.S. trial judge Lewis A. Kaplan in recent weeks has continued his unrestrained attempt to help Chevron evade paying a $12 billion pollution judgment to Ecuadorian Indigenous peoples by targeting me and my family with a vicious intimidation campaign designed to force me to abandon my advocacy. Several of Kaplan’s recent orders in my view directly violate appellate court decisions in three countries – the United States, Canada and Ecuador – that authorize me to help my clients who have lost lives, land, water, and entire communities to Chevron’s systematic dumping of cancer-causing oil waste into the Amazon rainforest.1 Those targeted by Chevron and Judge Kaplan include my wife; 12-year-old son; brother-in-law; several friends who have supported my efforts; and numerous financial supporters of the case. Chevron’s goal is to use Judge Kaplan to help it dry up funding for collection of a valid judgment from a country (Ecuador) where it had voluntarily accepted jurisdiction. Chevron’s behavior is reprehensible, a direct attack on the rule of law, and designed to chill environmental advocacy worldwide. The world needs to know the extent of the company’s depravity and the extreme gravity of the harm it is trying to impose on my family.
As the main lawyer on the case for over two decades, this is just some of what I and others been forced to endure in recent months due to Chevron’s and Judge Kaplan’s relentless attacks:
Financial pressure: At Chevron’s request, Judge Kaplan unilaterally has imposed “judgments” on me without a jury that total as much as $5 billion – even though I work out of a small apartment and Chevron is one of the largest oil companies on the planet. I will never be able to pay these judgments but they allow Chevron to legally target and try to seize any money I do earn for the rest of my life on any project whatsoever.
Exorbitant fines: Judge Kaplan is fining me at least $200,000 per day and has tried to confiscate my passport for not turning over my confidential case file to Chevron.
Seize apartment: Judge Kaplan is considering a Chevron request to potentially seize my apartment and jail me to try to force me to turn over my confidential case file.
Prevent payment for work: In dishonest fashion, Judge Kaplan ruled on May 23 that my clients cannot pay me my modest fees -- essentially preventing me from working. This contradicts a Kaplan ruling from 2014 where he expressly authorized such payments for my fees. After this “bait and switch”, Judge Kaplan ordered me to reimburse Chevron my entire salary from the last four years.
Freeze bank accounts: Using Kaplan’s judgments as a cudgel, Chevron froze all of my bank accounts. This deprived me of access to the banking system and essentially amounted to a theft of $150,000 of case funds.
Threatening $32m judgment: Even though there is no legal basis, Judge Kaplan is considering another request by Chevron that he impose on me a $32 million judgment to reimburse the company for a portion of its legal fees involved in attacking me.
Threaten my wife: When my wife cashed a check for me because I had no bank account, Chevron threatened to seize her assets unless she paid all funds she had cashed to Chevron.
No privileges: To justify his massive intrusion into my case file, Judge Kaplan ruled that I have no attorney-client or other privileges – something without precedent in the history of the United States in an ongoing civil case and a direct assault on my political rights as protected by domestic and international law.
Targeting my son: Kaplan also authorized Chevron to subpoena a bank account we keep to pay school expenses for our 12-year-old son.
Deny right to earn a livelihood: Kaplan lobbied the bar grievance committee (which handles attorney discipline) to impose an interim suspension of my law license without a hearing based entirely on his extremely problematic “RICO” findings which have been rejected by several courts in Ecuador, including by the country’s Constitutional Court.
What really irritates Judge Kaplan and Chevron is that our team of independent lawyers, advocates, and financial supporters has been effective and successful in holding a large American oil company accountable for its human rights abuses abroad. Due to our efforts, Chevron faces a judgment enforcement action in Canada where it has an estimated $15 billion in assets. Any collection by the Ecuadorian communities not only would be extremely painful for Chevron’s bottom line, but likely would threaten the entire paradigm of the fossil fuel industry which for decades has engaged in unfettered exploitation of natural resources on Indigenous lands with virtually no penalty for toxic dumping or contamination. Chevron’s flagrant misconduct in Ecuador – the company has not paid any judgments despite 50 years of open and notorious toxic dumping -- is a prime example. For current Chevron CEO Michael Wirth, the Ecuador court judgment must be evaded at virtually any cost because his company faces potentially hundreds of billions of liability for causing environmental damage around the globe. Wirth has spent at least $2 billion to hire 60 law firms to target me and the Ecuadorian Indigenous peoples and farmers who won the case. That Chevron is on edge about the idea of Indigenous groups winning a large environmental judgment is perhaps the understatement of the century.
What is surprising is the extent to which Judge Kaplan appears to have joined forces with Chevron -- a wholly inappropriate role for a jurist that appears to violate the Code of Judicial Conduct for U.S. judges which requires impartiality and fairness. Judge Kaplan has abused his position by ruling in favor of Chevron’s hundreds of motions almost 100% of the time over the eight-year history of his involvement in the Ecuador matter. Judge Kaplan also appears to maintain financial ties to Chevron. He kept personal funds in a mutual fund that invested in Chevron during the company’s retaliatory RICO (or “racketeering”) case filed in his court – funds that he failed to disclose to the parties, even though they were pressing for his recusal at the time over evidence of his bias. Further, Judge Kaplan has yet to release any financial disclosure forms since 2010. Known widely in the legal bar as a pro-business judge with an aggressive and even bullying style, Judge Kaplan has adopted a simple strategy to help Chevron: create a series of escalating (and crushing) “punishments” to try to pressure me to give up my advocacy. As one “punishment” is imposed, another is always threatened if I carry on. I quote an observation from the journalist Greg Palast, author of The Best Democracy Money Can Buy. Palast recently tweeted the following:
The oil industry won’t rest until they lay @SDonziger’s body out on the tarmac. The fact that #Chevron has come after the man who proved they poisoned the children of the Amazon just proves how extraordinary he is – and powerful. They fear him.
All of Chevron’s retaliatory “punishments” as imposed by Judge Kaplan are couched in hyper-technical language, but make no mistake: as a whole, they are designed to threaten me with financial and professional ruin. Worse, his orders are based on an underlying ‘RICO’ decision rejected by multiple courts after it became clear that Judge Kaplan relied on the false testimony from Chevron’s paid witness, among other grave problems. Chevron’s false testimony is now the subject of three criminal referral letters to the U.S. Department of Justice and will be put front and center before Canada’s courts during an enforcement trial. That false testimony also has motivated 36 institutional Chevron shareholders to pressure company management to explore a settlement of the case after accusing CEO Michael Wirth of “mishandling” the litigation. It is clear Kaplan is desperately trying to crush me before I and others are able to present evidence of Chevron’s witness bribery and fraud that took place in the RICO case.
Judge Kaplan’s latest orders requiring me to surrender my passport and turn over my computer and phone to Chevron have no precedent in a civil case. The implications are deeply disturbing. Judge Kaplan has suggested that the only way for me to avoid jail and his crushing fines is if I cooperate and allow Chevron to create what amounts to an Orwellian-style permanent spying mechanism over virtually all of my electronic and other activities related to the case. Given that I have contact with all lawyers working on the case, by monitoring me Chevron will be able to monitor everybody around the world helping the Ecuadorians enforce their judgment. Coupled with Judge Kaplan’s order that Chevron be allowed to subpoena and depose virtually anyone in the United States who has had any contact with me, Chevron’s power over me has no real check and is similar to what autocratic government like Saudi Arabia or Turkey might enjoy over outspoken citizens. Under Judge Kaplan’s plan, I no longer will be able to maintain confidential communications with my clients or with attorneys in Canada regarding case strategy. I will no longer be able to talk with potential funders of the case without Chevron learning of their identities and threatening to sue or subpoena them. Normally sacrosanct private communications with my family members likely will be subject to Chevron’s scrutiny.
We should not allow ourselves to be lied to about the stakes involved. Judge Kaplan is trying to see what he can get away with in terms of radically expanding judicial power to protect an American company from a major liability issued by a foreign court where Chevron accepted jurisdiction. The goal of Judge Kaplan and Chevron not only is to thoroughly disable me and others as advocates, but to use attacks on me as a way to threaten all corporate accountability advocates who might to have the audacity and wherewithal to bring successful large-scale environmental cases. Judge Kaplan’s blessing of Chevron’s Orwellian “permanent spying mechanism” poses a serious threat to all who challenge corporate and judicial abuse. In the meantime, I will continue to work to hold Judge Kaplan and Chevron accountable and I will do everything in my power to help my clients enforce their judgment so that a clean-up of the catastrophe can take place forthwith.
Further Background On Judge Kaplan’s Questionable Ethical Behavior
The writer Rex Weyler and others have started to document (see here) how Judge Kaplan and the Chevron law firm Gibson Dunn have targeted human rights defender Steven Donziger and others to silence advocacy in the Ecuador case. Among Judge Kaplan’s questionable activities:
In the underlying RICO case being used as the basis for the latest orders targeting Mr. Donziger, Judge Kaplan relied for his findings on an admittedly corrupt Chevron witness paid at least $2 million by the company who admitted that he lied repeatedly under oath. See here for Vice article and here for detailed legal brief.
Judge Kaplan’s RICO findings that are the basis for his attacks on Mr. Donziger have been rejected by 16 appellate judges in Ecuador from three separate courts, including last July by the nation’s Constitutional Court. Ecuador is the venue where Chevron insisted the trial be held and where it accepted jurisdiction. See here.
Due to credible evidence it used witness bribery and fraud in Judge Kaplan’s RICO case, Chevron has been the subject of three criminal referral letters to the U.S. Department of Justice. See here and here.
During the RICO case, Judge Kaplan enriched his personal friend Max Gitter by authorizing Chevron to make millions of dollars of off-the-books payments to him for serving as a “special master” in the case. The full amount – as much as $1,330 per hour – still has not been disclosed to the public. See here.
Judge Kaplan ordered Mr. Donziger – a human rights lawyer with limited means who works out of his small apartment – to pay Chevron $813,000 to reimburse it for part of its payments to Max Gitter. When Donziger appealed the order, Judge Kaplan permitted Chevron to freeze his bank accounts.
During the RICO case, Judge Kaplan maintained significant and undisclosed investments in Chevron via mutual funds. He never disclosed the extent of his financial ties to Chevron despite pending motions seeking his recusal for bias and conflicts of interest. See here.
Based entirely on his disputed RICO findings, Judge Kaplan orchestrated the interim suspension of Mr. Donziger’s law license without a hearing. The bar grievance committee (which handles attorney discipline in Manhattan), designated Mr. Donziger an “immediate threat to the public order” and denied him the opportunity to present evidence of Chevron’s witness bribery or fraud or to otherwise challenge Kaplan’s findings. (Donziger has a bar hearing where he plans to argue for the lifting of the suspension scheduled for September 17, 2019.
Judge Kaplan authorized Chevron to harass Mr. Donziger’s wife and young son as well as all funders of the case with subpoenas and depositions. See here.
Judge Kaplan also has threatened Mr. Donziger with record-breaking fines that could total billions of dollars for refusing to turn his private and confidential case file to Chevron. See here.
As part of his effort to silence Mr. Donziger, Judge Kaplan on May 23 engaged in a bait and switch: he ruled that Mr. Donziger’s clients in Ecuador cannot pay him despite expressly authorizing such payments in a decision that issued on April 25, 2014. (See p. 9 of this legal brief.)
Judge Kaplan’s behavior prompted prominent trial lawyer John Keker (who represented Mr. Donziger) to accuse the judge of letting his RICO case “degenerate into a Dickensian farce” infected by the judge’s “implacable hostility” toward Mr. Donziger and his Ecuadorian clients. See here.
1 Evidence during the Ecuador trial demonstrated the affected Ecuadorian communities live in the middle of what is likelythe world’s worst ongoing humanitarian catastrophe with dramatically inflated cancer rates and poisoned fresh water sources covering a 1,500 sq. mile area of delicate ecosystem. Tens of thousands of people in the affected area have died or face an imminent risk of death due to Chevron’s failure to abide by multiple court orders that it clean up its contamination. Chevron (under the Texaco brand) is estimated to have reaped profits of at least $25 billion from its operations in Ecuador, which began in 1964 and ended in 1992.