Steven Donziger

Starting in the 1970's, Texaco conducted oil drilling operations in the Amazon in partnership with Ecuador's national oil company, Petroecuador. Texaco came to a $40 million agreement with Ecuador to clean up some of the resultant pollution.[2][3]

In 1993, after his visit to Ecuador, Donziger and other attorneys brought a class-action lawsuit in New York against Texaco on behalf of over 30,000 farmers and Indigenous people from the Amazon region. The lawyers chose to file in New York because, in 1993, Texaco's headquarters were in New York. The lawsuit charged that Texaco's oil drilling in the Amazon had resulted in massive contamination. Chevron bought Texaco in 2001 and argued that Texaco had cleaned up its area of operations and that its partner, Petroecuador, was responsible for any remaining pollution.[2][3][1]

Chevron requested that the case be tried in Ecuador and in 2002, US courts ruled that Ecuador had jurisdiction. The US court exacted a promise from Chevron that it would accept the decision of the Ecuadorian courts.[4]

When the case moved to Ecuador, Donziger conducted a public education campaign to inform Ecuadoreans about the pollution of the Amazon. He said that "the indigenous people would never get a fair trial in Ecuador if they did not illuminate what had happened to them and get public support". Donziger appeared in the 2009 documentary film Crude which explored a two year period in the case.[1][5] A provincial Ecuadorean court found Chevron guilty in 2011 and awarded the plaintiffs $18 billion in damages. The decision was affirmed by three appellate courts including Ecuador’s highest court, the National Court of Justice, although the damages were reduced to $9.5 billion.[4][3][1]

In order to avoid paying the damages awarded by the court in Ecuador, Chevron moved its assets out of the country,[3] leading the plaintiffs to seek enforcement actions in Canada, Brazil and Argentina for confiscation of Chevron's assets.[5] A Wall Street Journal editorial stated that appeals courts in Argentina and Brazil’s Superior Court of Justice rejected Donziger's petitions to have the Ecuadorean judgement enforced.[6] In 2017, a Canadian court held that the Ecuadorean plaintiffs could not be awarded assets of Chevron's Canadian subsidiary as the subsidiary was legally distinct from its US parent. In 2019, the Ecuadorean plaintiffs ended their Canadian lawsuit against Chevron.[7]

In 2011, Chevron filed a civil RICO suit against Donziger in New York City, accusing him of bribing an Ecuadorean judge, ghostwriting the damages judgment against it and fixing scientific studies.[8][3][6] Chevron's civil suit initially sought $60 billion in damages which would have required a trial by jury. Chevron removed the request for damages two weeks prior to trial, allowing the case to be tried by judge alone. Chevron stated that it wanted to focus "the RICO case on obtaining injunctive relief against the furtherance of Donziger’s extortionate scheme against the company". U.S. District Judge Lewis A. Kaplan was assigned as the judge.[3]

In 2014, Donziger estimated that the legal fees Chevron was paying to appeal had already exceeded $2 billion.[9]

In 2014, Kaplan ruled that the judgement in Ecuador was invalid because Donziger had achieved it through offenses against legal ethics, including racketeering, extortion, wire fraud, money laundering, obstruction of justice, judicial bribery, coercion, witness tampering and arranging for expert’s reports to be ghostwritten.[3][6] Kaplan said the process in Ecuador was "not fair or impartial and did not comport with the requirements of due process" and was "not entitled to recognition".[4] In subsequent defences of the ruling, Kaplan referred to the Ecuadorians involved in the class action suit as "so-called plaintiffs".[10]

The case relied in large part on the testimony of Alberto Guerra, a former Ecuadorean judge whom Chevron had moved to the United States from Ecuador in 2013 for safety reasons. Chevron paid for immigration lawyers for Guerra and his family and provided him with a monthly salary of $12,000 for housing and living expenses.[11] In the RICO trial, Guerra alleged that Donziger had arranged for him to ghostwrite the verdict that was delivered against Chevron in Ecuador. Guerra stated that the judge who heard the case signed the verdict which Guerra had prepared and the two shared a payment of $500,000 from the plaintiffs, led by Donziger. In Kaplan's conclusion to the RICO case, he highlighted this as primary evidence for the racketeering charge. In his judgment, Kaplan wrote that "Guerra on many occasions has acted deceitfully and broken the law […] but that does not necessarily mean that it should be disregarded wholesale". He found that the "evidence leads to one conclusion: Guerra told the truth regarding the bribe and the essential fact as to who wrote the Judgment."[11] In 2015, Guerra testified to an international tribunal that he had lied and changed his story multiple times in the RICO trial. Guerra admitted that there was no evidence supporting the allegation that Donziger bribed him or paid him for a ghostwritten judgment, and that large parts Guerra's testimony in the RICO case were either exaggerated or untrue.[11]

In 2016, the Second Circuit Court of Appeals declined to consider Guerra's admissions and unanimously upheld Kaplan’s ruling.[3][6]

Kaplan described Donziger’s conduct as "criminal" in his 2014 ruling, but the U.S. Attorney’s office for the Southern District of New York declined to prosecute him.[8]

Donziger was suspended from practicing law in New York in July 2018 based on rulings by U.S. District Judge Lewis A. Kaplan in the Chevron case. An independent legal referee recommended his reinstatement in February 2020. An appeals court ruled in August 2020 that the referee had been too lenient, disbarring Donziger in New York. Martin Garbus, Donziger’s lawyer, said the decision deprives Ecuadorians represented by Donzinger of their main advocate and singles Donziger out “because he so threatens Chevron and the fossil fuel industry”.[12]

As part of the appeal process after the initial ruling, Kaplan ordered Donziger to submit his computer, phones and other electronic devices to Chevron to allow it to search for his assets. Donziger refused, arguing that doing so would violate the attorney-client privilege of his clients, and appealed the order on constitutional grounds.[4] While Donziger's appeal against the order was pending, Kaplan charged him with six counts of criminal contempt of court. The contempt charges allege that Donziger failed to comply with Kaplan's orders to submit his electronic devices and passport and to drop attempts to collect on the award against Chevron.[1][8] In a move described as "virtually unprecedented" by The Intercept, Kaplan appointed a private law firm, Seward & Kissel, to prosecute Donziger after the Southern District Court of New York declined to do so. Jacobin magazine noted that Seward & Kissel is a private firm that has represented Chevron directly as recently as 2018.[13] Chris Hedges wrote that neither Kaplan nor Seward & Kissel disclosed that Chevron had been a client.[1]

Rather than using the standard random assignment process for choosing a judge to preside over Donziger's trial for criminal contempt, Kaplan chose senior District Judge Loretta Preska. In August 2019, Preska sentenced Donziger to home detention while awaiting trial and ordered the seizure of his passport. He was required to wear a GPS-equipped ankle bracelet. Preska ordered Donziger to post a bail bond of $800,000, which is a record for a misdemeanour case in the US. In May 2020, Preska ruled that Donziger's case would not be heard by a jury, which Donziger had requested.[3][14][15][8] The U.S. District court disqualified two of Donziger's attorneys from appearing for him in the contempt trial. In August 2020, after two other attorney's were unable to appear in the trial, Preska ordered Donziger's former lead defence attorney, Andrew Frisch, to represent him. Martin Garbus, who also represents Donziger but was unable to attend the trial said a trial with Frisch would not be "a constitutionally protected case" and that "Donziger is being forced to go to trial with a lawyer who doesn't want to be in the case, who doesn't get along with Donziger, and claims that before Donziger goes ahead with the trial he should pay him additional moneys".[16]

The contempt case was scheduled to begin in September 2020.[3][14] Citing concerns about coronavirus, Donziger's fourth lawyer, Attorney Lauren Regan, requested in late October that the civil trial be rescheduled for a third time. The trial was rescheduled to begin on November 9,[17] then delayed until January 2021 for Donziger to have legal representation.[18]

In 2018, a Wall Street Journal editorial stated that "Donziger’s attempted looting of Chevron for spurious environmental crimes in Ecuador ranks among the biggest legal scams in history". The editorial said Donziger's disbarment was "a step toward reining in Mr. Donziger’s marauding".[6]

Donziger's contempt charge and house arrest have been harshly condemned by legal advocates. Lawyer's Rights Watch Canada points out that Donziger has been under house arrest for longer than the six month maximum sentence that contempt of court carries.[15] Harvard Law School professor Charles Nesson criticized Chevron and Kaplan, stating that the corruption and bribery charges were a "means to protect the oil company from having to answer for its degradation of the Amazon".[19] In 2020, a group of twenty-nine Nobel laureates condemned "judicial harassment" by Chevron and urged the release of Donziger.[20] Human rights campaigners described the treatment of Donziger as an example of a strategic lawsuit against public participation (SLAPP), which are used to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.[10]

The European Parliament, one of the three branches of the European Union, requested that the Congressional Subcommittee on the Constitution, Civil Rights, and Civil Liberties investigate Chevron's treatment of Donziger as "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".[21][22]

In an August 2020 article, Chris Hedges detailed the measures taken by Chevron to pressure mainstream media outlets, including Fox News, GQ magazine and The New York Times, to drop stories about the Chevron and Donziger litigation.[1]