Chevron v. Donziger: A framework for analysisOctober 21, 2013: 11:50 AM ET
Will the trial get to the bottom of the environmental damage?
By Roger Parloff, senior editor
FORTUNE -- After the first week, Chevron's (CVX) civil racketeering suit against Steven Donziger, the environmental lawyer who won a $19 billion judgment against the oil giant in Ecuador in 2011, appears to be making progress on its own terms, accumulating evidence that Donziger's victory was built on mendacity topped off by intimidation of judges and -- as the company hopes to begin proving later this week -- bribery of the trial judge and ghostwriting of his entire, 188-page final judgment.
At the same time, the case is exceedingly frustrating to spectators, almost all of whom also want to know precisely what U.S. District Judge Kaplan decided to exclude from the case many months ago: whether, regardless of Donziger's shenanigans, Texaco really did, as Donziger has claimed, unconscionably befoul the Ecuadorian environment when it drilled there from 1964 to 1990, and whether Texaco's previous settlement of its environmental issues there in 1998 was inadequate or even fraudulent. (Chevron acquired Texaco in 2001.)
Despairing of ever getting the sprawling case to trial -- especially in the face of what he has at various times described in court orders as "persistent" and "very possibly contemptuous" obstruction by defendant Donziger and his associates with the Quito-based Amazon Defense Front -- Judge Kaplan urged Chevron to pare its case down to its bare and more manageable essence, focusing only on the alleged corruption, witness tampering, evidence tampering, and fundamental procedural inequities that allegedly marred the Ecuadorian trial process.
Accordingly, each witness's testimony is of interest on at least three different planes. The first level might be called the Original Sin level: Did the testimony inform the public -- despite the court's attempts to narrow the trial's scope -- about those underlying questions concerning the extent of actual environmental contamination that still exists in Ecuador and whether what contamination can fairly be laid at the feet of Texaco (and, therefore, Chevron)? Excluding the underlying contamination issue from the rest of the case is easier said than done, and information bearing on that question is not only continually leaking into view at the margins -- at the behest of both sides -- but is continually threatening to burst through the rickety dikes holding it back, washing the case away into unmanageability and indefinite postponement.
The second-level view is what I'll call the Heart-of-the-Case-Proper perspective: Is Chevron proving its factual case, which was brought under the Racketeer Influenced and Corrupt Organizations Act (RICO), and which alleges that the $19 billion judgment won in Lago Agrio, Ecuador, was obtained through violations of U.S. criminal laws against extortion, bribery, mail and wire fraud, witness tampering, obstruction of justice, and money laundering? As a back-up claim, Chevron is also accusing Donziger of common-law fraud under New York's tort law. (Chevron also brought RICO and fraud charges against the Amazon Defense Front and the Front's top leaders, including Pablo Fajardo and Luis Yanza -- Donziger's chief lieutenants in leading the Lago Agrio charge -- but they all defaulted by failing to appear, and they have also refused to cooperate with discovery.)
Finally, the third level is the Esoteric-Legal perspective. Even if Chevron presents a mountain of evidence supporting its factual claims, there are arcane legal questions that may conceivably derail and even nullify its case, either at the district court level or on appeal, assuming a pro-Chevron verdict. To begin with, there are jurisdictional questions surrounding the issue known as "extraterritoriality" -- whether Congress intended the U.S. RICO statute to apply in a case where so much of the conduct occurs in Ecuador.
A second serious legal issue looming over the case arises from the fact that Chevron has dropped its damages claims against Donziger and now only seeks injunctive relief -- that is, court orders barring him or his confederates from benefitting in any way from the Lago Agrio judgment. The significant potential problem here is that courts are split on whether injunctive relief is available in civil RICO cases.
In the event that RICO injunctive relief is eventually found to be unavailable, Chevron still has an ace-in-the-hole to fall back on: its common-law fraud count. Nevertheless, on analysis that "ace" is really more of a "jack," or maybe even just a "nine," because New York's fraud law is beset with its own esoteric traps. Though Chevron has already presented proof in its pretrial submissions that might well justify a finding that Donziger defrauded many victims, of which leading candidates might include the Ecuadorian courts, U.S. courts, enforcement courts in other countries, the U.S. Congress, countless media organizations, and Donziger's own funders and investors, the one person he does not appear to have ever defrauded was Chevron -- which never bought into his claims and never relied upon them to its detriment (crucial elements of fraud). Accordingly, Chevron is proceeding on the theory that it was victimized by the frauds Donziger allegedly committed on third parties -- a controversial genre of claim that New York law might well not allow.
With that background, we can beginning looking at the individual witnesses' testimony.