After more than two decades of litigation, Chevron continues to protect a series of shady characters who have been instrumental in trying to sabotage a legal case brought by indigenous groups over environmental damage in Ecuador's rainforest.
No wonder. In the case, Chevron admitted that its predecessor Texaco dumped billions of gallons of toxic oil waste into rivers and streams relied on by local indigenous groups for their drinking water, bathing, and fishing. Several peer-reviewed studies have documented dramatically higher rates of cancer in the region ravaged by the oil company.
Chevron wants the case to disappear and has paid big bucks to those willing to try to make it happen.
- Chevron has paid an Ecuadorian judge, who admitted to taking 14 bribes while on the bench, $2 million so far to testify against the Ecuadorians and their lawyers, falsely accusing them of bribery; (See my earlier blog about him.)
- Chevron is paying an unknown fortune to a group of corporate arbitration lawyers who are suppressing a forensic report that appears to prove wrong Chevron's charge that the Ecuadorians' lawyers wrote the Ecuador judgment.
- Chevron re-located to Peru a convicted American drug dealer who tried to entrap an Ecuadorian judge in a video scandal to help the oil giant kill off the case; (See this investigative report about Wayne Hansen, the drug dealer.)
- Chevron also has paid at least $2 million to a husband-wife team who tried to deceive the Ecuador court by secretly switching out dirty soil samples for clean ones.
Pressing questions about these individuals and the issues associated with them remain unanswered largely because U.S. courts and a corporate arbitration panel haven't pushed Chevron to address them. That's too bad given that the answers obviously could be critical to the various ongoing legal proceedings that are part of Chevron's avowed "lifetime of litigation" strategy.
Among those proceedings:
Enforcement actions where the villagers are trying to collect Chevron assets in Canada and Brazil to force compliance with their winning a $9.5 billion judgment that the oil company - in an illustration of its arrogance - now simply refuses to pay, even though it insisted the trial take place in Ecuador.
An extraordinarily important appeal by the villagers and their counsel before a New York federal appellate court. The villagers are seeking to reverse a non-jury decision by a controversial U.S. trial judge that condemned Ecuador's entire judicial system as unworthy of respect based largely on Chevron's corrupt evidence.
Here are just a few of the questions that, if answered, would tell us a great deal more about the lengths to which Chevron has gone to evade accountability for its toxic dumping in Ecuador:
- Is Chevron renegotiating its two-year, $2 million contract with the self-admitted corrupt Ecuador judge (Alberto Guerra) whose testimony that a "bribe" occurred has unraveled completely?
- Is Chevron still employing or paying Borja's wife, Sara Portilla? At one point, Chevron paid her 5,000 per month even though Borja admitted in a deposition he didn't know what his own wife did for the oil giant. (See pages 119-121.)
- Where is Wayne Hansen, the American drug felon caught lying to and secretly videotaping an Ecuador judge for Chevron? Hansen fled the country with Chevron's apparent assistance to avoid a subpoena. He was last seen living in a beach town in Peru. See this Courthouse News article.
Let's take a closer look at each of these individuals for an explanation of why they are important to the company's campaign to sabotage the legal claims of the indigenous communities that held it accountable.
Guerra is Chevron's star witness. He is also undeniably corrupt. Even Guerra admits it, as this legal brief explains.
Chevron needs to disclose all the details of the package of cash and benefits it has paid to Guerra and his family in exchange for the corrupt testimony. Chevron moved his family and his son's family to the U.S., paying for all of their daily expenses. Chevron should disclose whether it's renegotiating the two-year, $2 million contract (signed in 2013) with Guerra. Company executives may be forced eventually to reveal how much they have paid Guerra in any asset seizure trial, but that is not likely to occur until late 2015 or 2016.
Before testifying for Chevron in U.S. court in October 2014, Guerra admitted to having taken bribes in 14 unrelated court cases in Ecuador. He also changed his "bribery" story about the Ecuador judgment at least three times during monetary negotiations with Chevron as new forensic evidence emerged to disprove his prior claims. Each time Guerra changed his story, he negotiated more money from Chevron. His personal diary and emails - which he said corroborated his testimony - mysteriously went missing.
U.S. Judge Lewis Kaplan allowed Guerra's testimony to blight New York's federal courthouse. But Judge Kaplan did not require Chevron to answer any questions about the tainted relationship, including details of a recording between Guerra and a Chevron attorney who paid him $20,000 out of a suitcase to begin the negotiations for his testimony. It is a violation of the ethical rules to allow a fact witness to be paid in this manner.
Corporate Arbitration Lawyers
J. Christopher Racich is a forensic expert hired by the Government of Ecuador to review the evidence regarding the oil giant's erroneous allegation that someone other than the Ecuador judge wrote the judgment. It appears from legal filings in a related international arbitration claim that this expert's findings disprove Chevron's allegations. See pages 1 & 32-40.
However, Chevron and the corporate arbitration lawyers hearing the case have blocked the release of the actual report.
In 2009, Chevron filed an arbitration claim against the Government of Ecuador to try to shift its clean-up liability to Ecuadorian taxpayers. The arbitration panel's proceedings are completely private, a fact that is most disturbing to the Ecuadorians, as well as to Public Citizen in the U.S., a good government advocacy group that has been urging for reform of corporate arbitration because arbitration generally favors corporations versus the governments sued.
The villagers whose claims are supposedly being "re-litigated" by the panel (which consists of three private lawyers who have been paid millions in fees by the parties) have no ability to pry information or legal documents from the panel. However, Chevron and/or the corporate arbitration lawyers could easily agree to the report's release. But both have a hard time exhibiting such candor.
The attorneys for Ecuador's government have claimed publicly that Chevron's charge "has now been shown to be false" by the contents of this critical expert report that is still being hidden from the public and from other courts.
Chevron also should address questions about its exorbitant payments to Diego Borja and his wife Sara Portilla. Both worked for Chevron in Ecuador in various capacities during the eight-year trial there.
A 2010 discovery motion submitted by the villagers seeking the sordid details about Chevron's relationship with Borja and Portilla is pending before a California federal court. Curiously, more than three years after oral argument on the motion,the court has yet to rule. There is no conceivable explanation for such a long delay.
Borja has admitted on tape to having evidence of Chevron's corruption, its creation of dummy laboratories in Ecuador to dupe the court, and other malfeasance that he said would result in Chevron losing the case if released publicly. To deceive the court, he also admitted that on behalf of Chevron he switched out toxic soil samples from the company's former well sites and exchanged them for clean ones during the trial.
Portilla submitted the fake samples to the Ecuador court as an "employee" of what should have been an independent lab but was in fact an entity created and controlled by Chevron.
In mid-2009, Chevron negotiated with Borja a similar payout as the one it later negotiated with the crooked judge Guerra. Earlier that year, Chevron met with Borja and Hansen (the American drug dealer who was working with Borja in Ecuador) about secretly filming the presiding Ecuador judge. The two surreptitiously taped the trial judge with a spy watch and pen during a meeting arranged under false pretenses. Chevron later released the videos to the news media, claiming they showed the judge agreeing to take bribes.
In return for the videotapes, Chevron paid to relocate the Borja family to Houston. The company paid their income taxes, fees for the lawyer who obtained them political asylum under false pretenses, and covering their housing and living costs. By September 2010, Borja and his wife had been paid $2 million. Chevron should disclose how much more they have been paid as it absolutely bears on their credibility and that of the company.
Part of the $2 million income to the Borja family was a $5,000 monthly "retainer" for Portilla. In a deposition, Borja could not describe what his wife Portilla was doing for Chevron to justify her $5,000 retainer. See here and here.
What we do know is that Portilla, along with her husband Borja, were key to Chevron's efforts to falsify evidence. This press release reveals more about how Chevron manipulated evidence.
This "chain of custody" record submitted to the Ecuador court dated March 15, 2006, clearly shows that Borja turned over contamination samples to Portilla, a representative of Severn Trent Labs, the U.S. laboratory Chevron used to test contamination samples. Portilla's title is listed as Project Manager and her contact information is listed as a Severn Trent Labs company email address.
This handoff to Portilla, who also worked for Chevron in Ecuador at the same time, compromises the "chain of custody" of the soil and water samples, providing one piece of evidence that Chevron's labs were not independent.
Other evidence also points to the lack of independence of Chevron's labs. See here.
No one knows the whereabouts of the mysterious Wayne Hansen, the convicted American felon and drug dealer who pretended to be a "businessman" interested in cleaning up the contamination. He partnered with Borja to secretly videotape the Ecuador judge under false pretenses.
Last we heard he had fled to Peru months after the New York Times blew up the scheme by reporting that Hansen was a convicted felon and con artist. Also, after closer examination of the videotapes, several news outlets wrote that the videos did not show any bribe, despite Chevron's incendiary charges to the contrary. See here.
The little we do know is from a few emails obtained during court discovery. Chevron's investigators tracked down Hansen in a Los Angeles hospital after he had sent them an email complaining that Borja, his partner, had been paid handsomely for his espionage efforts but he, Hansen, had not. See this Courthouse News story.
The emails link Hansen to a private investigative firm hired by Chevron. Hansen sent the first message, bearing the subject line "dooped ?????", weeks before Chevron released the videos in late August 2009.
"I have been waiting for your call, you said you would call me .... It seems that the oil co has cut a deal with Diego [Borja] and I have not heard a word from anyone but Diego. What am I to think? ...
"As I can see the window of life coming to a close I will not hold back. I need to hear from a real player with a plan for Wayne [Hansen]. If I do not hear from the oil co. by July 17, 09 I must think I have been left out and I am to do what and think what ... I have been duped."
In late 2010, about two months after the Government of Ecuador obtained a subpoena for Hansen, he sent a similarly enigmatic email to the Mason Group, a private investigative firm based in the San Francisco area.
"I am in a nice place where you guys from SF might like to visit or just hang it up and live like a king for 1,200 a month. ... The little beach town is Moncora in northern Peru and the waves are the best I have ever seen. ... come on down. [L]ots of fish to cook up. ... Best Regards and GOD Bless you Wayne Hansen." [Ellipses and brackets in original.]
None of the questions about Borja, Portilla and Hansen's relationship to Chevron have been answered in part because California Federal Magistrate Judge Nathanial Cousins has yet to rule on a 2010 discovery motion. We are not sure what Judge Cousins is up to, but he did take the time to attend a party with Chevron's and Borja's attorneys the night before the motion hearing. We know this because he joked with them about the party as the hearing began.
Judge Cousins: "I regret to inform that there are no Mai Tais or ice cream left over from Judge Chen's party last night, but we'll do our best to accommodate you."
Chevron-paid attorney: "You made it here, your Honor."
Judge Cousins: "Yes. Yes, despite long odds. We've got two motions pending, as well as some follow-up on the protocol that we discussed last week, by telephone .... I suggest we start with that. So if we could, start there. And everyone speak slowly, because we are still recovering from yesterday."
Partying aside, all of our questions could be answered if U.S. courts and the corporate arbitration panel would force Chevron to turn over documents, as Judge Kaplan forced the Ecuadorians and their lawyers to do four years ago in the company's retaliatory racketeering case. Judge Kaplan even ordered an Ecuadorian to immediately turn over his laptop when he admitted to having one in his possession during the U.S. trial. The laptop produced no evidence, only photographs of the man's children.
It did, however, show the power of a single corporation to get what it wants from the federal judiciary.
Apparently, helping impoverished villagers who have been decimated by an American oil company in faraway lands is not a priority for the federal judiciary in the world's greatest democracy.
Disclosure: I work pro-bono for a group of indigenous Ecuadorians and their U.S. legal adviser, Steven Donziger, to help hold Chevron accountable for one of the world's largest environmental disasters in the Amazon rainforest. From May 2008 to March 2013, I was paid by Donziger to represent the Ecuadorians as their U.S. media spokesperson.
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