How Did a Lawyer Who Took on Big Oil and Won End up Under House Arrest?

Steven Donziger is celebrated by Nobel laureates and international lawyers, but now he’s being demonized.

Rex Weyler, Mother Jones, August 10th 2020,

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This piece was orig­i­nal­ly pub­lished in Canada’s National Observer and appears here as part of our Climate Desk Partnership.

Last September, I trav­elled from Western Canada to New York City to see the human rights lawyer Steven Donziger. Donziger can­not trav­el. He can­not even stroll the hall­way of his Upper West Side apart­ment build­ing on 104th Street with­out spe­cial court per­mis­sion. He remains under house arrest, wear­ing an ankle bracelet.

Eight years ago, Donziger and a team of Ecuadorian lawyers, on behalf of Indigenous and farmer plain­tiffs, won the largest human rights and envi­ron­men­tal court judg­ment in his­to­ry, a $9.5‑billion US ver­dict against the Chevron Corporation for mas­sive oil pol­lu­tion in Ecuador’s Amazon basin.

Following the tri­al, Chevron removed its assets from Ecuador, left the coun­try, and has refused to pay. The com­pa­ny now claims the Ecuador ver­dict was achieved fraud­u­lent­ly, and pro­duced a wit­ness, who told a US court that he pos­sessed knowl­edge of a bribe. Judge Lewis Kaplan ruled in Chevron’s favour, halt­ing col­lec­tion of the pol­lu­tion fine in the US and plac­ing Donziger in elec­tron­ic chains in his home.

Donziger’s wife Laura let me in. Their son Matthew shook my hand. In spite of the dire cir­cum­stances, the house­hold bus­tled with prepa­ra­tions for a din­ner par­ty that evening. I found Donziger in his mod­est liv­ing room, on the phone, tak­ing notes on a legal pad.

Is this man the renowned human rights attor­ney, cel­e­brat­ed by Nobel lau­re­ates and inter­na­tion­al lawyers, or is he a fraud artist?

Crime and punishment

Donziger, born in Jacksonville, Florida, in 1961, grad­u­at­ed from Harvard Law in 1991, and found­ed Project Due Process, offer­ing legal ser­vices to Cuban refugees. In 1993, Ecuador’s Frente de Defensa de la Amazonía (FDA), rep­re­sent­ing 30,000 vic­tims of Chevron’s pol­lu­tion, heard about Donziger and asked him to help win com­pen­sa­tion for their lost land, pol­lut­ed water, and epi­demics of can­cer and birth defects in a region now known as the “Amazon Chernobyl.”

Donziger orig­i­nal­ly filed the claim in New York, but Chevron insist­ed the case be heard in Ecuador, where the tri­al began in 1993.

Evidence showed that between 1964 and 1992, Texaco (now Chevron) dumped 16 bil­lion gal­lons of tox­ic waste­water into rivers and pits. Fifty-four judi­cial site inspec­tions con­firmed that the aver­age Chevron waste pit in Ecuador con­tained 200 times the con­t­a­m­i­na­tion allowed by US and world stan­dards, includ­ing ille­gal lev­els of bar­i­um, cad­mi­um, cop­per, mer­cury, lead, and oth­er met­als that can dam­age the immune and repro­duc­tive sys­tems and cause can­cer. According to Amazon Watch, by ignor­ing reg­u­la­tions, the com­pa­ny saved about $3 per bar­rel of oil, earn­ing an extra $5 bil­lion over 20 years.

In 2007, dur­ing the tri­al, Chevron stat­ed that if the vic­tims pur­sued the case, they faced a “life­time of … lit­i­ga­tion.” The plain­tiffs per­se­vered. Since the vic­tims were dirt poor, Donziger and his team, with FDA sup­port, devised an inno­v­a­tive solu­tion to fund the case, offer­ing investors a tiny por­tion of any even­tu­al settlement.“I believe the injus­tice to him is intend­ed to intim­i­date the rest of us, to chill the work of oth­er envi­ron­men­tal and cor­po­rate account­abil­i­ty advocates.”

In 2011, after an eight-year tri­al, the court ruled in favor of the plain­tiffs. Two appeals courts and the nation’s Supreme Court, the Court of Cassation, con­firmed the deci­sion. Seventeen appel­late judges ruled unan­i­mous­ly that Chevron was respon­si­ble for the con­t­a­m­i­na­tion and owed Donziger’s clients $9.5 billion.

The lone witness

According to court doc­u­ments, Chevron “refus(ed) to com­ply” with the judg­ment and began to make good on its threat for a “life­time of lit­i­ga­tion.” According to inter­nal com­pa­ny mem­os, Chevron launched a retal­ia­to­ry cam­paign to attack the vic­tims, dis­cred­it Ecuador’s courts, and “demo­nize” Donziger.

Chevron hired one of the world’s most noto­ri­ous law firms, Gibson, Dunn & Crutcher—previously cen­sured by England’s High Court of Justice for fab­ri­cat­ing evi­dence. Judges in California, Montana, and New York have cen­sured and fined Gibson Dunn for such mis­be­hav­ior as wit­ness tam­per­ing, obstruc­tion, intim­i­da­tion, and what one judge called “legal thuggery.”

Using US RICO statutes designed to pros­e­cute orga­nized crime syn­di­cates, the firm filed a “rack­e­teer­ing” case against Donziger. Judge Kaplan at the US Court of Appeals for the Second Circuit in New York—a for­mer tobac­co com­pa­ny lawyer wide­ly viewed as being friend­ly to large corporations—agreed to hear the pecu­liar case. Kaplan claimed the Ecuador tri­al “was not a bona fide lit­i­ga­tion” and insult­ed the vic­tims, call­ing them “so-called plain­tiffs.” Gibson Dunn lawyer Randy Mastro called the Ecuador courts “a sham.”

Prominent tri­al lawyer John Keker, rep­re­sent­ing Donziger, claimed the Kaplan tri­al was pure intim­i­da­tion and called the pro­ceed­ings a “Dickensian farce” dri­ven by Kaplan’s “implaca­ble hos­til­i­ty” toward Donziger.

On the eve of the tri­al, Chevron dropped its finan­cial claims, allow­ing Kaplan to dis­miss the jury and decide the out­come him­self. Then Chevron unveiled their star witness—Alberto Guerra, a dis­graced for­mer Ecuadorian judge removed from the bench for accept­ing bribes. In a Chicago hotel room, Chevron and Gibson Dunn lawyers rehearsed Guerra for 53 days.

In Kaplan’s court, Guerra claimed that Donziger had approved a “bribe” to an Ecuadorian judge and had writ­ten the final court rul­ing for the judge, alleged­ly trans­ferred on a com­put­er thumb dri­ve. No cor­rob­o­rat­ing evi­dence was ever offered. Guerra lat­er admit­ted lying about these facts, and a foren­sic inves­ti­ga­tion of the Ecuadorian judge’s com­put­er proved that Guerra had lied.

The entire sto­ry now appears fab­ri­cat­ed. Donziger’s lawyers have attempt­ed to locate Guerra and depose him, but the star wit­ness has not yet been found.

Chevron’s case,” said Donziger’s lawyer Andrew Frisch, “rest­ed on the tes­ti­mo­ny of a wit­ness who was paid over $1 mil­lion.” Frisch stat­ed that Kaplan’s rul­ings “have been con­tra­dict­ed in whole or in part by 17 appel­late judges in Ecuador and 10 in Canada, includ­ing unan­i­mous deci­sions of the high­est courts in both countries.”

Nevertheless, with­out a jury, Kaplan accept­ed Guerra’s tes­ti­mo­ny and found that Donziger had com­mit­ted fraud. Finally, Kaplan ordered Donziger to turn over his com­put­er and cell­phone to Chevron. Since this order vio­lat­ed attor­ney-client con­fi­den­tial­i­ty, Donziger refused until the court of appeals could decide the issue.

Kaplan charged Donziger with “crim­i­nal con­tempt” for refus­ing his order. However, the order and the con­tempt charge were so out­ra­geous that the N.Y. prosecutor’s office refused to accept the case. Kaplan defied the state author­i­ties and appoint­ed a pri­vate law firm, Seward & Kissel—with com­mer­cial ties to Chevron—to act as pros­e­cu­tor, which, in turn, ordered Donziger be placed under “pre­tri­al home detention.”

Legal thuggery

An unnamed New York Second Circuit judge—presumed by Donziger and his lawyers to be Kaplan—filed a com­plaint against Donziger with the bar griev­ance com­mit­tee in New York, which then sus­pend­ed Donziger’s law license with­out a hear­ing. However, bar ref­er­ee and for­mer fed­er­al pros­e­cu­tor John Horan called for a hear­ing and rec­om­mend­ed the return of Donziger’s law license. “The extent of his pur­suit by Chevron is so extrav­a­gant, and at this point so unnec­es­sary and puni­tive,” Horan wrote, “he should be allowed to resume the prac­tice of law.” Donziger respond­ed that, “Any neu­tral judi­cial offi­cer who looks objec­tive­ly at the record almost always finds against Chevron and Kaplan. The tide is turn­ing and the hard evi­dence about the extreme injus­tice in Kaplan’s court will be exposed.”

This case appears to be about bul­ly­ing. Chevron is one of the wealth­i­est cor­po­ra­tions in the world. The plain­tiffs are poor, Indigenous, and campesino peo­ple with scarce access to mon­ey or lawyers. “Donziger came to our res­cue,” says FDA pres­i­dent Luis Yanza. How big can high-stakes cor­po­rate bul­ly­ing get? Donziger’s lawyers esti­mate the oil giant has spent over $2 bil­lion on 2,000 lawyers, pub­lic rela­tions teams, and pri­vate investigators.

At the din­ner par­ty at Donziger’s, I met sup­port­ers from around the world, from Amazon Watch and Global Witness, jour­nal­ists, lawyers, and human rights advo­cates. “This case is not just about Steven’s fate,” said Simon Taylor, direc­tor of Global Witness in London. “I believe the injus­tice to him is intend­ed to intim­i­date the rest of us, to chill the work of oth­er envi­ron­men­tal and cor­po­rate account­abil­i­ty advocates.”

American human rights attor­neys Martin Garbus and Charles Nesson formed a sup­port com­mit­tee for Donziger with dozens of civ­il soci­ety lead­ers, includ­ing: Clive Stafford-Smith, founder of the pris­on­er-rights group Reprieve in London; Atossa Soltani and Leila Salazar, the founder and exec­u­tive direc­tor of Amazon Watch; Lynne Twist, co-founder of the Pachamama Alliance work­ing in the Amazon; renowned author John Perkins; and famed musi­cian Roger Waters.

The tide may be turn­ing for Donziger and the vic­tims in Ecuador. In June 2019, Amnesty International asked the US Department of Justice to con­duct a crim­i­nal inves­ti­ga­tion into Chevron’s and Gibson Dunn’s con­duct, wit­ness bribery, and fraud in the Ecuador pol­lu­tion litigation

This past February, Prof. Ellen Yaroshefsky, direc­tor of the Monroe H. Freedman Institute for the Study of Legal Ethics at Hofstra University in New York, wrote that the Kaplan and Seward & Kissel pros­e­cu­tion of Donziger is flawed with con­flicts of inter­est, finan­cial ties to Chevron Corporation, and judi­cial bias.

In April, 29 Nobel lau­re­ates signed a let­ter stat­ing, “(We) sup­port Steven Donziger and the Indigenous peo­ples and local com­mu­ni­ties in Ecuador in their decades-long work to achieve envi­ron­men­tal jus­tice over pol­lu­tion caused by Chevron…. Chevron and a pro-cor­po­rate judi­cial ally, US District Judge Lewis A. Kaplan, man­u­fac­tured ‘con­tempt’ charges against Donziger. (Chevron’s) goal is to intim­i­date and dis­em­pow­er the vic­tims of its pol­lu­tion and a lawyer who has worked for decades on their behalf.”

A month lat­er, more than 475 inter­na­tion­al lawyers, bar asso­ci­a­tions, and human rights advo­cates crit­i­cized Kaplan’s rul­ing for per­se­cut­ing Donziger “based on false wit­ness tes­ti­mo­ny pro­vid­ed by Chevron, per­son­al ani­mus, and… to pro­tect Chevron from a valid for­eign court judg­ment.” The let­ter, from the US National Lawyers Guild and the International Association of Democratic Lawyers, urges an end to the pre­tri­al house arrest of Donziger, not­ing “such arbi­trary deten­tion sets a dan­ger­ous prece­dent for human rights attor­neys in the United States and around the world.”

On May 27, 2020, the Newground invest­ment firm in Seattle, Wash., placed two pro­pos­als on Chevron’s 2020 proxy call, ask­ing for gov­er­nance reforms to bring its Ecuador issues to res­o­lu­tion, and pre­vent future human rights and pol­lu­tion lia­bil­i­ties. The pro­pos­als were sup­port­ed by actor Alec Baldwin, musi­cian Roger Waters, and Nobel lau­re­ate Jody Williams.

On July 16, the European Parliament wrote to the US Congress ask­ing the Congressional Subcommittee on the Constitution, Civil Rights, and Civil Liberties to inves­ti­gate Chevron’s treat­ment of Donziger, which the EU Parliament found “not con­sis­tent with what has tra­di­tion­al­ly been the strong sup­port in the United States for the rule of law gen­er­al­ly and for pro­tec­tion for human rights defend­ers in particular.”

Late at night, in the Donziger home, after the sup­port­ers had left, Donziger and his wife Laura sipped wine. “We’re not giv­ing up,” Donziger said. “The only fraud in this case has been con­duct­ed by Chevron. Modern nations have comi­ty rela­tion­ships, for­mal­ly respect­ing each other’s court deci­sions. We’re review­ing enforce­ment actions in Canada, Australia, and oth­er juris­dic­tions. Chevron owes the mon­ey, and they can’t just run, hide, and fab­ri­cate sto­ries to avoid pay­ing. They’re per­se­cut­ing me to try to change the pub­lic nar­ra­tive, but they’re guilty. They com­mit­ted the crime, they hurt peo­ple, they were proven respon­si­ble in a court of law that they chose, and they owe the money.”

Laura looked exhaust­ed by the relent­less harass­ment, but man­aged a smile. “The truth is the truth,” she said, and offered me more wine. As I write this, in mid-July, Donziger has been in home deten­tion for 345 days, almost a year, longer than any lawyer in US his­to­ry has ever served for a con­tempt charge.

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