Legal Commentary

New Twists in Chevron Ecuador Case and Charges of Collusion

By Kenneth Anderson

In the midst of so much other legal news in the past few days, you might have missed the latest twist in the on-going saga of the legal case regarding Chevron?s Ecuador operations. My co-blogger at Opinio Juris Roger Alford explains.  It is fascinating reading, reaching far beyond international or transnational law issues, going as it does to the ethical relationships between a party and an expert appointed by a court.  It is, as Roger says, an explosive allegation by Chevron, based upon outtakes from the documentary film Crude, of collusion between the plaintiffs? attorneys and the soon-to-be-appointed court expert.  (If you want background on the case(s), trace back Roger?s Opinio Juris links.)

As I reported earlier, Chevron has secured key outtakes of the movie Crude that appeared to show alarming collusion between the plaintiff lawyers and the Court-appointed expert. According to pleadings filed yesterday pursuant to 28 U.S.C. 1782, the outtakes include some amazing communications caught on tape. The purpose of the filing was to secure the court?s assistance with additional discovery of Crude outtakes to facilitate the arbitration and secure preservation of all relevant evidence ?related to the fraudulent ?Global Expert? scheme as documented in the Crude documentary and the outtakes produced to date.? (p. 21).

The film outtakes include some choice excerpts of a March 3, 2007 meeting that included plaintiffs? counsel (Steve Donziger and Pablo Fajardo), plaintiffs? experts (Charlie Champ, Ann Maest, Dick Kamp) and the soon-to-be court-appointed expert, Richard Cabrera. The apparent purpose of the meeting between the plaintiffs and Cabrera was to develop a plan for the drafting of the independent expert?s report that Cabrera would write as Special Master for submission to the Ecuadorian court. According to Chevron?s filing, the tapes include some pretty damning evidence.

Note to enterprising academic or law student.  Roger adds the following in response to a comment suggesting that the master might have held ex parte meetings with each side prior to drafting a report.  He adds that the defense cannot release the DVD itself containing the full outtakes ? it has been suggested that Chevron took quotes out of context ? but that a student or academic could go to the courthouse in New York and get the full content:

It is plausible that a Special Master or perito might have ex parte meetings with both sides and get their input before drafting the report.

Problem is, I was able to confirm today with counsel for Gibson Dunn that the Special Master Richard Cabrera never held a similar meeting with defendants or otherwise gave the defense side the opportunity to make suggestions or provide input about the contents of the court-appointed expert report.  They also say their is much more evidence that the Cabrera report was actually drafted with the plaintiffs. They also said that they are hoping that the film outtakes will be made available to the public, but it will require someone (like an enterprising law professor or student!) to go to the New York courthouse and get a copy of the DVD. The Second Circuit order precludes the defense counsel from handing the DVD film outtakes directly to the press.

Full post as published by The Volokh Conspiracy on August 06, 2010 (boomark / email).