Despite Donziger’s current predicament, the case against Chevron in Ecuador was a spectacular victory. The twisted legal saga began in 1993, when Donziger and other attorneys filed a class-action suit in New York against Texaco on behalf of more than 30,000 farmers and Indigenous people in the Amazon over massive contamination from the company’s oil drilling there. Chevron, which bought Texaco in 2001, has insisted that Texaco cleaned up the area where it operated and that its former partner, the national oil company of Ecuador, was responsible for any remaining pollution.
At Chevron’s request, the legal proceedings over the “Amazon Chernobyl” were moved to Ecuador, where the courts were “impartial and fair,” as the oil company’s attorneys wrote in a filing at the time. The move to Ecuador, where the legal system does not involve juries, may have also appealed because it spared Chevron a jury trial. In any case, an Ecuadorian court ruled against Chevron in 2011 and ordered the company to pay $18 billion in compensation, an amount that was later reduced to $9.5 billion. After years of struggling with the health and environmental consequences of oil extraction, the impoverished Amazonian plaintiffs had won a historic judgment from one of the biggest corporations in the world.
But Donziger and his clients never had a moment to savor their David-over-Goliath victory. Even though the ruling was subsequently upheld by the Ecuadorian Supreme Court, Chevron immediately made clear that it would not be paying the judgment. Instead, Chevron moved its assets out of the country, making it impossible for the Ecuadorians to collect.
That year, Chevron filed a Racketeer Influenced and Corrupt Organizations, or RICO, suit against Donziger in New York City. Although the suit originally sought roughly $60 billion in damages, and civil trials involving monetary claims of more than $20 entitle a defendant to a jury, Chevron dropped the monetary claims two weeks before the trial.
In its statement, Chevron wrote that the company “focused the RICO case on obtaining injunctive relief against the furtherance of Donziger’s extortionate scheme against the company.”
Instead, that case was decided solely by Kaplan, who ruled in 2014 that the Ecuadorian judgment against Chevron was invalid because it was obtained through “egregious fraud” and that Donziger was guilty of racketeering, extortion, wire fraud, money laundering, obstruction of justice, and witness tampering. The decision hinged on the testimony of an Ecuadorian judge named Alberto Guerra, who claimed that Donziger had bribed him during the original trial and that the decision against Chevron had been ghostwritten.
Guerra was a controversial witness. Chevron had prepped him on more than 50 occasions before his testimony, paid him hundreds of thousands of dollars, and arranged for the judge and his family members to move to the United States with a generous monthly stipend that was 20 times the salary he received in Ecuador. In 2015, when Guerra testified in an international arbitration proceeding, he admitted that he had lied and changed his story multiple times. According to Chevron, Guerra’s inaccuracies didn’t change the thrust of his testimony. For his part, Judge Kaplan wrote that his court “would have reached precisely the same result in this case even without the testimony of Alberto Guerra.” In its statement, Chevron said that Guerra was relocated to the U.S. for his safety and noted that the court found that the company’s contacts with the Ecuadorian judge were “proper and transparent.”
Lawyers for Donziger said the changes in Guerra’s testimony completely undermined his original bribery allegations, which Donziger has consistently denied. In any case, that evidence emerged after the trial, and an appeals court declined to consider the new information and ruled against Donziger in 2016.
Had Donziger been criminally charged with bribery, a jury would have assessed Guerra’s credibility. Instead, in the RICO case, which was civil, the decision about a key witness came down to one person — Kaplan — who chose to believe him. That choice has set the stage for the legal losses Donziger has suffered since, according to some close watchers of the Chevron case.
“On the basis of Kaplan saying, ‘I believe this witness; I find Donziger guilty of the crime of bribery of the judge’ — on the basis of that, he’s been destroyed. That is the pinnacle element of all of the other claims against him. And if you take that one out, the rest of them — they’re just not there,” said Charles Nesson, an attorney and Harvard Law School professor. “He has effectively been convicted of bribery by the finding of a single judge in a case in which bribery wasn’t even the charge,” Nesson said of Donziger. “I teach evidence, that you have to prove what you assert. But the proof in this case is the thinnest.”
Nesson, who represented Daniel Ellsberg in the Pentagon Papers case and the plaintiffs in the suit of W. R. Grace featured in the book and film “A Civil Action,” teaches Donziger’s case in his “Fair Trial” course, using it as an example of a decidedly unfair trial. “Donziger epitomizes a person in asymmetric civil litigation who can now be denied a fair trial,” he explains to his students.
Nesson is one of several legal scholars who have opined that Kaplan has a soft spot for Chevron, which the judge once described as “a company of considerable importance to our economy that employs thousands all over the world, that supplies a group of commodities, gasoline, heating oil, other fuels, and lubricants on which every one of us depends every single day.”
In contrast, the judge has exhibited antipathy for Donziger, according to his former lawyer, John Keker, who saw the case as a “Dickensian farce,” in which “Chevron is using its limitless resources to crush defendants and win this case through might rather than merit.” Keker withdrew from the case in 2013 after noting that “Chevron will file any motion, however meritless, in the hope that the court will use it to hurt Donziger.”