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Order of the United States District Court for the Southern District of New York


Steven Donziger, a New York City lawyer, led a group of American and Ecuadorian lawyers who brought an action in Ecuador (the "Lago Agrio" case) in the names of 47 plaintiffs (the "Lago Agrio Plaintiffs" or "LAPs"), on behalf of thousands of indigenous peoples of the Orienté region of Ecuador, against Chevron Corporation ("Chevron"). They claimed that Chevron was responsible for extensive environmental damage caused by oil activities of Texaco, Inc. ("Texaco"), that ended more than twenty years ago and long before Chevron acquired Texaco's stock.
After years of pressuring Chevron to settle by a variety of both legitimate and illegitimate means, Donziger and his clients obtained a multibillion dollar judgment (the "Judgment") in the Ecuadorian courts and now seek to enforce it around the world. Chevron then brought this action, contending among other things that the Judgment was procured by fraud. Following a full trial, it now seeks equitable relief against Donziger and the two of his Ecuadorian clients who defended this case in order to prevent any of them from profiting from the alleged fraud or from seeking to enforce the Judgment in the United States.
This case is extraordinary. The facts are many and sometimes complex. They include things that normally come only out of Hollywood – coded emails among Donziger and his colleagues describing their private interactions with and machinations directed at judges and a court appointed expert, their payments to a supposedly neutral expert out of a secret account, a lawyer who invited a film crew to innumerable private strategy meetings and even to ex parte meetings with judges, an Ecuadorian judge who claims to have written the multibillion dollar decision but who was so inexperienced and uncomfortable with civil cases that he had someone else (a former judge who had been removed from the bench) draft some civil decisions for him, an 18-year old typist who supposedly did Internet research in American, English, and French law for the same judge, who knew only Spanish, and much more. The evidence is voluminous. The transnational elements of the case make it sensitive and challenging. Nevertheless, the Court has had the benefit of a lengthy trial. It has heard 31 witnesses in person and considered deposition and/or other sworn or, in one instance, stipulated testimony of 37 others. It has considered thousands of exhibits. It has made its findings, which of necessity are lengthy and detailed.
Upon consideration of all of the evidence, including the credibility of the witnesses – though several of the most important declined to testify – the Court finds that Donziger began his involvement in this controversy with a desire to improve conditions in the area in which his Ecuadorian clients live. To be sure, he sought also to do well for himself while doing good for others, but there was nothing wrong with that. In the end, however, he and the Ecuadorian lawyers he led corrupted the Lago Agrio case. They submitted fraudulent evidence. They coerced one judge, first to use a court-appointed, supposedly impartial, "global expert" to make an overall damages assessment and, then, to appoint to that important role a man whom Donziger hand-picked and paid to "totally play ball" with the LAPs. They then paid a Colorado consulting firm secretly to write all or most of the global expert's report, falsely presented the report as the work of the court-appointed and supposedly impartial expert, and told half-truths or worse to U.S. courts in attempts to prevent exposure of that and other wrongdoing. Ultimately, the LAP team wrote the Lago Agrio court's Judgment themselves and promised $500,000 to the Ecuadorian judge to rule in their favor and sign their judgment. If ever there were a case warranting equitable relief with respect to a judgment procured by fraud, this is it.
The defendants seek to avoid responsibility for their actions by emphasizing that the Lago Agrio case took place in Ecuador and by invoking the principle of comity. But that warrants no different conclusion.
Comity and respect for other nations are important. But comity does not command blind acquiescence in injustice, least of all acquiescence within the bounds of our own nation. Courts of equity long have granted relief against fraudulent judgments entered in other states and, though less frequently, other countries. Moreover, the United States has important interests here. The misconduct at issue was planned, supervised, financed and executed in important (but not all) respects by Americans in the United States in order to extract money from a U.S. victim.
That said, considerations of comity and the avoidance of any misunderstanding have shaped the relief sought here. Chevron no longer seeks, and this Court does not grant, an injunction barring enforcement of the Lago Agrio Judgment anywhere in the world. What this Court does do is to prevent Donziger and the two LAP Representatives, who are subject to this Court's personal jurisdiction, from profiting in any way from the egregious fraud that occurred here. That is quite a different matter. Indeed, the LAP Representatives' lawyer recently conceded before the Second Circuit that the defendants "would not have a problem" with "the alternative relief that [Chevron] would be seeking, such as enjoining the person who paid the bribe from benefitting from it," assuming that the judge was bribed.1 Defendants thus have acknowledged the propriety of equitable relief to prevent individuals subject to the Court's jurisdiction from benefitting from misdeeds for which they are responsible. And while the Court does enjoin enforcement of the Judgment by these defendants in the United States, that limited injunction raises no issues of comity or international relations. It is the prerogative of American courts to determine whether foreign judgments may be enforced in this country.
Donziger is intelligent, resourceful, and a master of public and media relations. An extensive public relations and media campaign has been part of his strategy from early days, and it continues. Among its objectives has been to shift the focus from the fraud on Chevron and the Lago Agrio court to the environmental harm that Donziger and the LAPs claim was done in the Orienté. Indeed, that was a principal focus of defendants' case at trial and of their post-trial briefing. But one should not be distracted from the issues actually presented in this case.
The Court assumes that there is pollution in the Orienté. On that assumption, Texaco and perhaps even Chevron – though it never drilled for oil in Ecuador – might bear some responsibility. In any case, improvement of conditions for the residents of the Orienté appears to be both desirable and overdue. But the defendants' effort to change the subject to the Orienté, understandable as it is as a tactic, misses the point of this case.
The issue here is not what happened in the Orienté more than twenty years ago and who, if anyone, now is responsible for any wrongs then done. It instead is whether a court decision was procured by corrupt means, regardless of whether the cause was just. An innocent defendant is no more entitled to submit false evidence, to coopt and pay off a court-appointed expert, or to coerce or bribe a judge or jury than a guilty one. So even if Donziger and his clients had a just cause – and the Court expresses no opinion on that – they were not entitled to corrupt the process to achieve their goal.
Justice is not served by inflicting injustice. The ends do not justify the means. There is no "Robin Hood" defense to illegal and wrongful conduct. And the defendants' "this-is-the-way-it-is-done-in-Ecuador" excuses – actually a remarkable insult to the people of Ecuador – do not help them. The wrongful actions of Donziger and his Ecuadorian legal team would be offensive to the laws of any nation that aspires to the rule of law, including Ecuador – and they knew it. Indeed, one Ecuadorian legal team member, in a moment of panicky candor, admitted that if documents exposing just part of what they had done were to come to light, "apart from destroying the proceeding, all of us, your attorneys, might go to jail."2 It is time to face the facts.


I. The Background

The events at issue in this case took place in law offices in New York, Philadelphia, and elsewhere in the United States, a consulting firm in Colorado, a public relations firm in Washington, the Orienté, courthouses in Ecuador and all over the United States, the offices of a New York documentary film maker, news media throughout the world, and government offices in Ecuador and the United States, and other places. They involved an array of lawyers, financial backers, scientists, judges, celebrities, media consultants, non-governmental organizations, politicians, and law school interns. But despite the case's complex history, reach and its large cast of players, the events ultimately center on one man – Steven Donziger – and his team of Ecuadorian lawyers and U.S. and European backers.
We begin with the backdrop against which these events took place.

A. Texaco's Operations in Ecuador

In 1964, the Republic of Ecuador ("ROE") granted to a Gulf Oil subsidiary and to TexPet, an indirect subsidiary of Texaco, a concession to explore for and produce oil in the Orienté.3 The Gulf-TexPet joint venture, of which TexPet was the sole operator, became known as the Consortium.4 In 1973, however, Ecuador's state-owned oil company, now known as PetroEcuador, acquired a 25 percent interest in the Consortium, 12.5 percent from each of TexPet and Gulf.5 Shortly thereafter, PetroEcuador acquired Gulf's remaining equity and thus became the majority owner of the Consortium. TexPet continued to hold a 37.5 percent interest.6
TexPet operated for the Consortium until June 1992, when the Concession expired. TexPet's 37.5 percent interest reverted to PetroEcuador, and TexPet began the process of winding down its operations.7 In connection with the termination of TexPet's Ecuadorian operations, TexPet and Texaco in 1993 entered into a Memorandum of Understanding with the ROE that provided that TexPet would be released from any potential claim for environmental harm once TexPet performed an agreed-upon remediation in the area in which it had operated.8 In the Spring of 1995, the parties executed a Settlement Agreement and Scope of Work agreement9 (the "Settlement Agreement") that laid out specific tasks TexPet was required to complete before its remediation and wind down were complete, whereupon it would be entitled to a release.10 From 1995 through 1998, ROE inspectors issued 52 actas in which they confirmed TexPet's completion of each task.11 The final acta – the 52nd Certificate – was issued in September 1998 and stated that TexPet had complied with its obligations under the Settlement Agreement. The final release was signed on September 30, 1998.12 It stated that TexPet had fully performed its obligations under the MOU and Settlement Agreement and that TexPet was released from all potential claims by the ROE and PetroEcuador.13

B. Aguinda

While TexPet was winding down its operations in Ecuador, a group of Ecuadorian plaintiffs brought a class action against Texaco in the Southern District of New York ("Aguinda")14 seeking billions of dollars of damages for alleged injury to the environment and health of the plaintiffs as well as certain equitable relief within Ecuador.15 The principal lawyers for the plaintiffs were Cristobal Bonifaz, Joseph Kohn, and Steven Donziger.16 As all three figured in the story that is at the heart of this case, we pause to identify them.

1. The Principal Plaintiffs' Lawyers in Aguinda

a. Cristobal Bonifaz

Cristobal Bonifaz, grandson of a former Ecuadorian president, practiced law in Amherst, Massachusetts in the early 1990s. His son attended law school with Steven Donziger.
In 1993, Bonifaz accepted an invitation to travel to Ecuador to meet with residents of the Orienté concerning complaints about pollution in the region and the possibility of a lawsuit.17 He took a small group of lawyers, including Donziger, and others with him.18 In June of that year, Bonifaz entered into a retention agreement with various individuals who soon became plaintiffs in Aguinda.19

b. Steven Donziger

Donziger's interest in Latin America began when he worked as a journalist for the United Press International in Nicaragua from 1984 to 198720 during which he covered events in several Latin American countries.21 He also became fluent in Spanish.22
After his return from Nicaragua, Donziger23 graduated from Harvard Law School in 1991.24 He then worked as a public defender25 for two years before he accompanied Bonifaz on his trip to Ecuador.26 While on that trip, Donziger traveled widely in the Napo Concession area and met Maria Aguinda, who later became the first-named plaintiff in Aguinda.27
Although Donziger's name appears on the Aguinda complaint, he was not a lead lawyer when it began. Nevertheless, he did much of the groundwork in Ecuador, took a "handful of trips" to the area from 1993 to 2002 "to meet with clients in the Amazon rainforest, to attend meetings of local community groups ... , and to take care of lawsuit-related issues."28 During those trips and through case-related discovery from Texaco, Donziger made "significant headway on the factual development of the case."29

c. Joseph Kohn

Bonifaz knew that he needed an experienced trial lawyer to assist him. He needed money as well. He therefore got in touch with Joseph Kohn, a Philadelphia attorney and partner at Kohn, Swift & Graf, P.C. (the "Kohn firm" or "Kohn").30 Kohn too was retained by the Aguinda plaintiffs.31 Kohn and Bonifaz were co-lead counsel in Aguinda at its outset,32 and Kohn provided much of the funding.33

2. Key Events During Aguinda

The details of Aguinda are largely unimportant at this stage but several points are significant.

a. Forum Non Conveniens – The Aguinda Plaintiffs Attack Ecuadorian Courts as Corrupt While Texaco Defends Them

Texaco sought dismissal of Aguinda on the grounds inter alia of forum non conveniens and the failure to join the ROE and PetroEcuador, which it argued were indispensable because (1) the requested equitable relief within Ecuador could not otherwise be ordered, and (2) PetroEcuador's own actions would be at issue in the case.34 The Aguinda plaintiffs argued that New York was the appropriate forum because Texaco was headquartered here. They contended also that the case could not be brought in Ecuador because Ecuador did not permit class actions or pretrial discovery.35
On November 12, 1996, Judge Rakoff – to whom that case was assigned – dismissed the complaint on the grounds of forum non conveniens and international comity and because PetroEcuador and the ROE had not been joined as plaintiffs.36 The plaintiffs appealed the ruling and persuaded the ROE to move to intervene in the case, a motion that Judge Rakoff denied.37
In 1998, the Court of Appeals reversed the dismissal of Aguinda on the ground that the district court had failed to obtain a commitment by Texaco to submit to the jurisdiction of the Ecuadorian courts.38 It remanded with instructions to require "Texaco's consent to Ecuadoran jurisdiction ... [and to] independently reweigh the factors relevant to a forum non conveniens dismissal."39
Following remand, Texaco provided the missing commitment and then renewed its motion to dismiss on forum non conveniens grounds. As part of its argument that the case belonged in Ecuador and not the United States – and, as will be seen, a great irony – Texaco argued that Ecuador would be an adequate alternative forum because it had an independent judiciary that provided fair trials.40 With equal irony, the plaintiffs contended that Ecuador would not be an adequate forum because the Ecuadorian judiciary was weak and corrupt and did not provide impartial tribunals.41
Judge Rakoff granted the motion and was affirmed on appeal.42

b. The Start of the LAPs' Alliance With the ROE – The LAPs Agree Not to Sue PetroEcuador or the ROE

A second point to be made about Aguinda is that it provided the impetus for an arrangement whereby the LAPs in substance granted PetroEcuador and the ROE immunity from suit in exchange for assistance in Aguinda, an alliance that has strengthened over time.
The Aguinda plaintiffs were concerned by Texaco's argument that the ROE was an indispensable party in view of the complaint's prayer for an equitable decree requiring environmental remediation in Ecuadorian territory. They obtained the ROE's agreement to seek to intervene in the case and to advise this Court that it consented to the "execution in its territory of any environmental cleanup measures that the [Southern District] Court may order [Texaco] to perform."43 But there was a quid pro quo. The Aguinda plaintiffs gave the ROE and PetroEcuador a judgment reduction agreement to protect them against any award of contribution that Texaco might obtain against them.44

c. The Aguinda Plaintiffs Seek to Recuse, and Attack, Judge Rakoff

Aguinda was marked also by a challenge to Judge Rakoff's impartiality and an attack on his integrity.
After the reversal of Judge Rakoff's initial forum non conveniens dismissal, the plaintiffs moved to recuse him, claiming that his attendance at a seminar on environmental issues created an appearance of partiality because Texaco had contributed general funding to the organization that sponsored the seminar.45 Judge Rakoff denied the motion. The Second Circuit then denied the Aquinda plaintiffs' mandamus petition, holding that no reasonable person knowledgeable of the facts would doubt Judge Rakoff's impartiality.46 Some time later, Donziger – in a video recorded for possible use in a documentary film – attacked Judge Rakoff. He stated that Judge Rakoff "was corrupt too, brother. He was – totally biased against us."47
As will appear, these events foreshadowed what became a pattern by the LAP team of seeking to intimidate and threaten judges by pressure tactics including ad hominem attacks.48

d. The Environmental Management Act is Passed in Ecuador

The pendency of Texaco's dismissal motion and then the risk that the Court of Appeals would affirm Judge Rakoff's initial forum non conveniens dismissal prompted other actions by the Aguinda plaintiffs' lawyers. As Bonifaz later suggested, "his team" had "worked with Ecuadorian legislators to draft a law similar to U.S. superfund law," in preparation "for a possible move from U.S. courts."49 The legislation in question became Ecuador's Environmental Management Act of 1999 (the "EMA"),50 which among other things created a private right of action for damages for the cost of remediation of environmental harms generally, as distinct from personal injuries or property damages to specific plaintiffs.51

e. Texaco Merges with a Chevron Subsidiary and Survives the Merger

The final event of note that occurred during Aguinda was the merger of a wholly owned subsidiary of Chevron with and into Texaco, with Texaco emerging as the surviving entity. Chevron thereby became the indirect owner of all of Texaco's common stock. Chevron, however, did not acquire any of Texaco's assets or assume any of its liabilities by operation of the merger.52

II. The Lago Agrio Litigation Begins

In May 2003, about one year after the Second Circuit affirmed the dismissal of Aguinda, the LAPs sued Chevron (but not Texaco) for damages and for remediation of environmental harm said to have been caused by Texaco.53 The case was brought for the benefit of some 30,000 indigenous residents of the Concession area. Significantly, however, the complaint asked that any funds awarded to perform the requested remediation, plus an additional ten percent, be delivered to the Frente de la Defensa de la Amazonia (the "ADF") for use in performing any remediation ordered by the court.54 Thus, the LAPs sought to have the ADF placed in complete control of any and all sums recovered. As will appear, this is significant because Donziger and some of his Ecuadorian associates controlled and still control the ADF.
The case initially was assigned to Judge Alberto Guerra Bastidas ("Guerra"), who then was the president of the Lago Agrio court55 and who became an important witness at trial. Before turning to the events of the Lago Agrio proceedings, however, three subjects are important to an understanding of what transpired later: (1) Donziger's attitudes and beliefs concerning the Ecuadorian courts, (2) the many Ecuadorian judges who were assigned to the case for varying periods during the years of its existence, and (3) a brief description of the plaintiffs, their lawyers, and the structure of the LAPs' team. As someone once said, "you can't tell the players without a scorecard."

A. Donziger's Attitudes and Beliefs About the Ecuadorian Courts and the Conduct of Lawyers in Ecuador

Donziger's attitudes and beliefs about the capability, fairness, and integrity of the Ecuadorian legal system are no secret. During Aguinda, he argued strenuously that Ecuador was not an adequate forum because the Ecuadorian judiciary was weak and corrupt and did not provide impartial tribunals.56 After the Lago Agrio case began, he made repeated statements – many on camera57 – in which he amplified this view. For example:

• "They're all [i.e., the Ecuadorian judges] corrupt! It's—it's their birthright to be corrupt."58

• "These judges are really not very bright – it is like a vocational job to them, they deal with resolving disputes at a very basic level[;] there is little or no intellectual component to the law."59

• "Uh, in a year from now, we're not comin' down here anymore. The case is over. All we're doin' is writing reports and preparing for final submissions of papers. And, really mobilizing the country, politically, so that no judge can rule against us and feel like he can get away with it in terms of his career."60

• "[T]his is not a legal case, this is a political battle that's being played out through a legal case and all the evidence is in. * * * So, what we need to do is get the politics in order in a country that doesn't favor people from the rainforest."61

• "It's incredible that a judge can – you can just walk in his office, with all the media, and it's obvious what we're doing, and he doesn't have the power to say, 'get the fuck out of my office,' like at least to the press. I mean, I've never seen such utter weakness. It's the same kind of weakness that leads to corruption. * * * These people [i.e., the judges] have no power. * * * They don't think they can do anything."62

• "You know, what ... just happened with this judge, um, is sort of sad to me because it represents the fact that the judicial system here is so utterly weak – like the only way you can secure a fair trial is if you do things like that, like go in and confront the judge with media around, and fight and yell and scream and make a scene, and, you know, that would never happen in the United States. That would never happen in any judicial system that had integrity. And it's that very weakness that, you know, let people do that. That is also– lets people corrupt the process."63

• [To a colleague]: "Please prepare a detailed plan with the necessary steps to attack the judge through legal, institutional channels and through any other channel you can think of. Send it to me today."64

• "[I]t's a problem of institutional weakness in the judiciary, generally, and of this court, in particular. We have concluded that we need to do more, politically, to control the court, to pressure the court. We believe they make decisions based on who they fear the most, not based on what the laws should dictate. * * * [I]t's a critically important moment, because we want to send a message to the court that, 'don't fuck with us anymore – not now, and not – not later, and never.'"65

• "You can solve anything with politics as long as the judges are intelligent enough to understand the politics. [T]hey don't have to be intelligent enough to understand the law, just as long as they understand the politics."66

Though Donziger's statements are remarkably disrespectful to the judicial system he now so vehemently defends, it will be seen that they are not unlike President Correa's views of the Ecuadorian judiciary. The Crude outtakes depicted also Donziger's beliefs on the role of lawyers and evidence in litigation:

• "I once worked for a lawyer who said something I've never forgotten. He said, 'Facts do not exist. Facts are created.' And ever since that day, I realized how the law works."67

• "Science has to serve the law practice; the law practice doesn't serve science."68

• "[A]ll this bullshit about the law and facts but in the end of the day it is about brute force ..."69

• "[A]t the end of the day, this [i.e., the lack of evidence on a key point] is all for the Court just a bunch of smoke and mirrors and bullshit. It really is."70

In considering these and other statements, not to mention Donziger's conduct, it is relevant to note that Donziger is a member of the New York Bar. His conduct, whether in the United States or in Ecuador, was subject in every respect to the New York rules governing the conduct of lawyers.71
Finally, it is relevant to note that Donziger and his Ecuadorian associates assumed that it would be impossible to obtain evidence of their actions. This 2007 exchange with Atossa Soltani, the head of Amazon Watch, a non-governmental organization ("NGO") supporter of Donziger and the LAPs, during a videotaped conversation about arguably questionable planned activities in Ecuador, is revealing:

"SOLTANI: Do you guys know if anybody can, uh, subpoena these videos? That is a – how do you [unintelligible]

"DONZIGER: We don't have the power of subpoena in Ecuador."72

B. The Ecuadorian Judges

A total of six judges presided over the Lago Agrio Chevron case from the time it was filed in 2003 until the Judgment was issued in February 2011.73 In general, the president of the Provincial Court of Nueva Loja – an election for which, it appears, was held every two years – was to preside over the case. When a new president was selected, the case would be transferred either to the newly-elected president, who would keep the case for two years or to another judge in the court, who would keep it for four months.74 But the fact that six judges – two of whom presided over the case more than once – presided over the Lago Agrio case in the eight years it was pending reveals that the assignment system did not always work exactly as expected.
When the Lago Agrio case was filed in May 2003, Alberto Guerra was the president of the court and so the case was assigned to him.75 Guerra's term as president ended in January 2004, and the case was reassigned to the newly-elected president, Judge Efraín Novillo.76 Judge Novillo presided over the case for two years. When his term was up in January 2006, the case was transferred to Judge Germán Yánez.77 Judge Yánez's term on the case lasted until October 2007, when Judge Novillo took over again.78
In August 2008, Judge Juan Nuñez became president and the Lago Agrio case was transferred to him.79 Nuñez's term was cut short in September 2009, however, when he recused himself.80 The case then fell to Nicolás Zambrano,81 who first had joined the Lago Agrio court on July 30, 2008 directly from a career as a prosecutor82 and whose term was four months because he was not the president of the court. The case then went to Judge Leonardo Ordóñez, who had just been elected president, in February 2010.83 Although, as president, Judge Ordóñez was to have presided over the case for two years,84 he was removed from the case when Chevron successfully moved to recuse him in 2010.85
Judge Zambrano took over again in October 201086 and issued the Judgment four months later.

C. The LAPs' Team

1. The American Lawyers

The lawyers for the Aguinda plaintiffs had laid groundwork for suing in Ecuador if the New York case were dismissed by working toward the enactment in Ecuador of the EMA. At the outset of the Ecuadorian case, the same three American lawyers – Bonifaz, Kohn, and Donziger – played the key roles, using Ecuadorian counsel, the first of whom was Dr. Alberto Wray, to appear of record. By the time the Lago Agrio case began, however, the respective roles of the American lawyers had changed.
Kohn, who had a lead role in the United States in Aguinda, had no ties to Ecuador and did not speak Spanish.87 While he provided most of the funding for the Lago Agrio case and related public relations activities from its inception until 2009,88 he had little direct role in the litigation. He mainly stayed abreast of some developments through Bonifaz and Donziger,89 although, as discussed below, he sought unsuccessfully to become more involved when the case began to run into difficulty in 2009.
Bonifaz's role also changed. While he was involved in selecting and briefing the lead Ecuadorian counsel,90 tensions subsequently arose between Bonifaz and Donziger. Bonifaz's role quickly faded, and he left the case in 2005 for reasons that are neither clear nor material.91
Although Bonifaz still was involved when the Ecuadorian lawsuit began, he no longer was in charge. Donziger had taken over. In 2006, Donziger wrote that he had been the "lead counsel on the [Lago Agrio] lawsuit for the last three years"92i.e., since it began. He explained further that he was and had been:

"at the epicenter of the legal, political, and media activity surrounding the case both in Ecuador and in the U.S. I have close ties with almost all of the important characters in the story, including Amazon indigenous leaders, high-ranking Ecuadorian government officials, the world's leading scientists who deal with oil remediation, environmental activists, and many of Chevron's key players."93

He stated that he was the individual who had put together and supervised the team that was pursing the case and related activities94 and that his role was "to be the lawyer and manage the Ecuadorian legal team, while Kohn provide[d] overall guidance and money."95 He described himself as the "lead lawyer in the class-action trial."96

There is no substantial doubt that Donziger was in charge of the important aspects of the Ecuadorian case. He referred to the Ecuadorian lawyers as his "local counsel."97 They often referred to him as the "cabeza," or head, of the team.98 From the time the case was filed in Lago Agrio until at least quite recently, and perhaps even until today, Donziger has supervised the Ecuadorian legal team, set deadlines, was involved in setting the lawyers' salaries,99 reviewed their court filings, directed the legal strategy, and coordinated the work between the lawyers in Ecuador and the scientists, experts, lawyers, litigation funders, politicians, and media consultants throughout the world.100 In addition, he communicates extensively with the press, and he has made tactical and strategic decisions.101 He largely has controlled the money.102 Hence, the Court finds that it has been Donziger who, from the very beginning of the Lago Agrio case, has called the important shots.103 The main exception to this general conclusion for the period 2003-09, during which Kohn was the principal financial backer, was that Donziger on occasion sought Kohn's acquiescence with respect to activities that required additional funds.104 As will appear, however, Donziger did not always tell Kohn the whole truth about what he was doing.

2. The ADF, Selva Viva, and Luis Yanza

Luis Yanza is Donziger's closest friend in Ecuador.105 Although he is not a lawyer, he has been and remains a central figure in the LAP team. He has long served as "the coordinator of the case for the affected communities."106 He has been paid throughout from funds raised to finance the case. Donziger even purchased a residence for him out of personal funds, though this expense ultimately was reimbursed to Donziger by the Kohn firm.107
Yanza has been involved in some of the legal team's biggest strategic decisions, including, according to Donziger, the decision to replace the first Ecuadorian lead lawyer, Alberto Wray.108 He was copied on nearly every important email sent among the Ecuadorian lawyers and Donziger, and has been the liaison between the lawyers and their clients. He serves also as a major point of contact between the LAP team and various Ecuadorian government officials including President Correa.109
Donziger and Yanza formed two entities that figure in the events that followed.
The first was the ADF, which was formed in 1993, shortly after the Aguinda complaint was filed, to support the case.110 Yanza functions as its executive director and representative with respect to the Lago Agrio case.111
The second was Selva Viva CIA, Ltda. ("Selva Viva"), "an entity created under ... the corporate law of Ecuador that served as a funding vehicle [in the Lago Agrio] case ... to pay people in Ecuador who worked on the case."112 It was founded in 2004, also by Yanza and at the direction of Donziger, who was and still may be its president. Yanza controls the Selva Viva bank accounts,113 which have been used primarily as a "pass thr[ough] mechanism to administer the case funds... ."114 For many years, when the Ecuadorian team needed money, Yanza contacted Donziger and Donziger in turn requested the funds from Kohn. The Kohn firm then wired the money either directly to Selva Viva or to Donziger, who then passed it on to Selva Viva. It is undisputed that the ADF, which is controlled by Yanza and Donziger, controls Selva Viva.
The ADF, Yanza, and Selva Viva all are defaulted defendants in this case.115

3. The Ecuadorian Lawyers

When the Lago Agrio litigation commenced, the American lawyers – who were not licensed to practice law in Ecuador – hired Ecuadorian attorneys to represent the LAPs in court. The composition and leadership of the Ecuadorian legal team changed through the years – although, as will become evident, it always has been managed and overseen by Donziger.
Pablo Estenio Fajardo Mendoza ("Fajardo") graduated from law school in 2000 and, for a time, worked for the ADF helping residents of the Orienté bring claims against oil companies.116 After the Lago Agrio complaint was filed in 2003, he became one of the junior lawyers on the Ecuadorian team. His role was relatively minor until Donziger recommended that he replace Dr. Wray,117 which occurred in 2005.118
From then on, Fajardo has been the procurador común – lead counsel before the courts in Ecuador – for the LAPs.119 And, as will be seen, Fajardo has represented the plaintiffs in court, filed briefs on their behalf, signed retention agreements with investment firms, and given interviews with the international press as their representative.120 He has traveled to the United States a number of times in connection with the Lago Agrio case.121
Fajardo is a defendant in this case and, as is discussed below, appeared pro se in its early days.122 He never answered the complaint, and a certificate of default has been entered against him.123
A number of other Ecuadorian lawyers has been involved in the Lago Agrio case on behalf of the LAPs. The most significant have been Alejandro Ponce Villacis ("Ponce"), Juan Pablo Sáenz, and Julio Prieto.
Yanza recruited Ponce, a lawyer based in Quito, shortly after the Lago Agrio case was filed to "provide advice on the strategy as well as draft pleadings" and consult on matters of Ecuadorian law.124 Although Ponce was involved in "design[ing] the strategy of the case,"125 he left the team in 2008 when he became a partner in his firm.126
Juan Pablo Sáenz and Julio Prieto report to Donziger and Fajardo, who often have called upon them to research and answer questions of Ecuadorian law,127 translate documents (Sáenz is fluent in English),128 write briefs,129 and handle daily litigation tasks.

4. The Assembly

In 2001, a grass roots organization called the Asamblea was formed in the Orienté.130 Humberto Piaguaje, the current leader, explained that associations were formed in each oil field. Each association designated delegates to participate in a larger council, and leaders of each indigenous group and one representative of settlers in each province formed an executive committee.131 The executive committee has met approximately once a month, often with members of the Ecuadorian plaintiffs' legal team.132 Minutes of these meetings have been taken and kept since 2001.133
Although the Asamblea "existed informally as a de-facto organization" since 2001, it changed its name in 2012 to the Union of the Assembly of those Affected by Texaco ("UDAPT" or the "Assembly").134 In each of its incarnations, it has worked closely with the ADF135 in connection with the Lago Agrio case.

III. The Beginnings of Donziger's Pressure Campaign

A. Donziger's Strategy

Donziger's assumption of control over the litigation resulted in a fundamental change in approach. The new approach is a lens through which virtually everything that happened after the Lago Agrio case began in 2003 must be viewed.
Donziger believed that the court of public opinion was as important as any other.136 Once he took control of the case, the effort became "a campaign with various fronts active simultaneously," including the media and the U.S. and Ecuadorian political spheres.137 He adopted an aggressive media strategy.
The importance of Donziger's media and public relations strategy is evident from the manner in which Donziger spent the millions of dollars that were obtained from investors.138 He outlined the campaign in a memorandum he wrote to his team in late 2003. He explained that the team would initiate and/or utilize celebrities; non-governmental organization "pressure;" the "Ecuador government – executive, and Congress;" national, international, and Ecuadorian press; a "divestment campaign" in which the team would seek to convince institutional investors to sell Chevron stock, and even a criminal case in Ecuador in its effort to obtain money from Chevron.139
Just as important as the pressure campaign directed at Chevron was an analogous campaign directed at the Ecuadorian courts. As we have seen already, Donziger viewed the Ecuadorian courts as corrupt, weak and responsive to pressure – as institutions that, at best, "make decisions based on who they fear the most, not based on what the laws should dictate."140 In a particularly revealing comment, made in his personal notebook, he wrote that "the only way the court will respect us is if they fear us – and that the only way they will fear us is if they think we have ... control over their careers, their jobs, their reputations – that is to say, their ability to earn a livelihood."141 "[I]n the end of the day," he said, "it is about brute force" rather than "all this bullshit about the law and facts."142 As we shall see, he and his associates directly coerced at least one judge and mobilized demonstrations to intimidate others. And the object always included ratcheting the pressure up on Chevron in order to extract money from it.
This focus on the media had at least one unintended effect. Hoping to promote the LAPs' cause in the court of public opinion, Donziger in 2005 recruited a film maker to follow him and his team around in Ecuador and the United States, filming scenes for use in documentary. That film eventually become the documentary Crude, which prompted extensive U.S. discovery efforts by Chevron that led to the disclosure of outtakes from the film. Many of Donziger's statements on camera made to the Crude film makers, some of which are quite revealing, are in evidence in this case.

B. Donziger's Public Relations Team and NGO Allies

1. The Public Relations and Lobbying Team

As Donziger viewed (and views) his efforts to force Chevron into settlement as "a political-style campaign driven by a legal case,"143 it is not surprising that he spent a significant part of the resources he raised for the Lago Agrio case on these efforts, and hired several public relations professionals and lobbyists with extensive political experience to work on the LAPs' behalf. He involved also, and at times financially contributed to, NGOs to support his efforts. These individuals and organizations often were mere mouthpieces, however. Donziger at all times controlled the content and timing of the LAPs' public relations.
Until quite recently, Karen Hinton was the public face of the litigation's public relations efforts. She was the "United States press coordinator" and handled media relations efforts from May 2008 to March 2013.144 During that period, Hinton issued press releases and blog posts to generate media interest in the case, selected materials to submit to public officials, responded to media inquiries,145 and, eventually, handled media requests related to the discovery proceedings Chevron launched in the United States.146 As Hinton understood it at the time of her retention, the objective of her communications efforts was to "facilitate the stated goal of pushing ChevronTexaco to settle the lawsuit in the near future."147 Hinton did not have ultimate control over the content of her work, however. The substance of her press releases always was subject to Donziger's approval.148
Chris Lehane likewise worked to develop the LAPs' media and public relations strategy as an "advisor" to Donziger149 using "strategies and tactics ... employed in political campaigns ... ."150 After first discussing Donziger's objectives with him, Lehane proposed to Donziger a strategy to target shareholders, Congress, and "high level media" in order to "inflict[] real economic pain on the company" and "bring[] Chevron Texaco to the negotiation table."151 The plan was to "fully leverage" events in Ecuador, with a view to "apply[ing] shareholder pressure on Chevron."152 Donziger hired him, and, in exchange for his work on the case, arranged for Lehane to be given a percentage of any eventual monetary recovery.153

2. Amazon Watch

Another central player in Donziger's publicity campaign was Amazon Watch, an NGO that declares a dedication to protecting the rainforest and the indigenous groups that inhabit it.154 Amazon Watch and various of its staff – including Atossa Soltani, its founder and executive director, and Mitchell Anderson, a "field consultant" – worked with Donziger and others on the LAP team to support and publicize the lawsuit and to pressure Chevron. To that end, the organization collaborated with the LAPs to lobby regulatory agencies and elected officials,155 sought support among Chevron shareholders for a settlement,156 and sought media attention through press releases.157
Although Amazon Watch's public materials did not bear Donziger's name, Donziger himself drafted many Amazon Watch materials related to the Lago Agrio litigation.158 Donziger not only controlled the content of Amazon Watch press releases pertaining to the litigation,159 he drafted also complaints that Amazon Watch submitted to the SEC160 and memoranda to be sent to elected officials regarding Chevron.161 Despite Donziger's authorship, the materials bore no outward indication of his involvement – documents drafted in whole or in substantial part by Donziger were sent on Amazon Watch letterhead and signed by Amazon Watch personnel.
In addition, in April 2005 Amazon Watch used funding from the LAPs162 to launch a website that was a key conduit for Donziger's campaign.163 Dubbed "ChevronToxico," the website posted information about the litigation as well as materials written by Donziger, Hinton, and others, some of which included deliberately misleading statements.
Hinton, Lehane, Soltani, and others at Amazon Watch became important figures in Donziger's pressure campaign against Chevron, and their names appear throughout this case. Among the campaign's first real tasks, however, was the use of a flawed $6 billion figure to attempt to convince Chevron that it was facing multibillion dollar exposure in Ecuador and that the time had come to settle.

C. The Pressure Begins – The LAPs' First Scientist and the $6 Billion "Drive By" Damages Estimate

Soon after the complaint was filed in Lago Agrio in 2003, Donziger hired David Russell, an environmental engineer,164 to generate an initial cost estimate for remediation of the Concession area.165 Among the purposes of the estimate was to subject Chevron to the threat of a very large recovery.166
In the fall of 2003, at Donziger's direction, Russell went to the Orienté to work on his damages estimate.167 There are three notable points about this estimate.
First, Russell visited only about 45 of the hundreds of oil pits in the region, and based his calculations on an extrapolation of what he observed at those sites.168 But he did not analyze any soil or water samples at any of the sites he visited.169 And his visits to some of those sites, he acknowledged at trial, were no more searching than driving past them at 40 or 50 miles per hour.170
Second, Russell testified, and the Court finds, that Donziger instructed him to make certain assumptions in calculating costs.171 Among them was the assumption that Texaco was fully liable for all of the contamination in the region, even that caused by PetroEcuador172 after it took over operation of the Consortium properties when TexPet left in 1992.
Third, as the report itself made clear, Russell's "cost projections [w]ere very rough."173 He testified that this was due to "the amount of unknowns and the lack of information [he] had with regard to not only levels of contamination but the extent of those levels of contamination."174 And he informed Donziger and other members of the LAP team as early as December 2004 that his estimates were "best guesses based upon a week of looking at the sites, without any scientific data," and encouraged the team not to "rush to judgment" based on a "guesstimate."175 He was entirely candid at trial on the consequences of this lack of data – the quantities he used in generating the $6 billion figure were, he said, were "SWAG," an acronym for a "scientific wild ass guess."176

D. Donziger Touts Russell's "SWAG" and Other Misleading Descriptions of Conditions in the Orienté to Put Pressure on Chevron

Russell's $6 billion SWAG figure quickly became a key weapon in Donziger's effort to exert pressure on Chevron and convince the company – and the world – that the damages in the Orienté were substantial and the threat of an enormous judgment against it was real. As we shall see, Donziger and his public relations operation avidly used Russell's $6 billion figure in the media to generate leverage despite the fact that they knew that it could not withstand serious analysis.
David Russell left the LAP team in early 2005 because, among other reasons, the LAP team owed him money and refused to pay it.177 By that time he had made explicit to Donziger that his cost estimate had been "wildly inaccurate and that it should not be used."178 But that did not stop Donziger and his public relations team from using the number, over Russell's protests, to pressure Chevron through the media.179

E. False and Misleading Representations to Incite Governmental Action Against Chevron

The press was not the only intended audience for Russell's disavowed $6 billion figure and other false and misleading comparisons. Donziger and his public relations team employed both in efforts to instigate action and put pressure on Chevron from federal and state officials and agencies. One aim was to create the perception that the litigation threatened serious harm to the company, was material to Chevron's bottom line, and would result in a lower share price and lower profits for Chevron shareholders. In Lehane's words, "the Ecuadorian Amazon ChevronTexaco project can be reduced, in the end, to a single strategic imperative: 'Bringing ChevronTexaco to the negotiation table by inflicting real economic pain on the company.'"180
To that end, Donziger in late 2005 drafted a letter181 that ultimately was sent by Amazon Watch to the Securities and Exchange Commission ("SEC"). The letter "request[ed] that [it] open an investigation into the Chevron Corporation (CVX) for violating SEC regulations governing disclosure obligations... ."182 The letter promoted Russell's SWAG remediation estimate, stating that "[o]ne environmental remediation expert estimated that a basic clean-up would cost at least $6 billion"183 despite the fact that Donziger knew when he wrote it that Russell had told him that it was wildly inaccurate.184 The letter asserted also that Chevron had "creat[ed] toxic contamination over 30 times larger than the Exxon Valdez"185 and decried Chevron's alleged failure to disclose its "potential liability" to its shareholders.186 He used the same figure, despite subsequent confirmation that it was exaggerated, in later testimony before a Congressional commission on human rights, and in press releases.187
The day after the SEC letter was sent, Donziger wrote to Soltani of Amazon Watch: "[n]ow that the SEC ltr is filed, it is key we come up with a coherent strategy to build pressure for the April shareholder's [sic] meeting."188 Donziger called on Amazon Watch and others – including Chevron shareholders (whom Amazon Watch was to address at an upcoming shareholder meeting) – to send letters to the SEC calling for investigation into Chevron's conduct in Ecuador.189 Donziger suggested that Amazon Watch "seek a meeting with [SEC chairman Christopher] Cox or one of his deputies" in order "to press for them to open a real investigation."190 He insisted that Amazon Watch could "get a lot of legs out of this if it is exploited with a little follow-up" and emphasized that the "key ... to [the] strategy ... is to keep this alive and active so it is hanging over their heads as long as possible, and so it can be used to get other shareholders to write their own letters."191
By the end of February 2006, Russell had sent his first cease and desist emails to Donziger and Amazon Watch.192 Donziger emailed Soltani to suggest that they send "the SEC letter in ASAP, making [the] slight change that another report will be coming with a multi-billion damage figure, without disavowing or mentioning Russell's report."193
Donziger's efforts to incite an SEC investigation did not amount to much. After meeting with an SEC investigator, he wrote to his team that the investigator thought that "the probability of a negative judgment [in the Lago Agrio litigation] was so attenuated that they [SEC staff] did not think it [i.e., the possible $6 billion exposure] was material yet."194 But while Donziger admitted that he "sort of fe[lt] [that the investigation he sought was] bogus," he insisted that he would "keep feeding them [the SEC] stuff" as long as the SEC was willing to continue talking with them.195 This was not the only time Donziger and his public relations team would reach out to the SEC in an effort to gain leverage over Chevron.196

F. Donziger's Attempt to Justify His Continued Use of Russell's Disavowed Estimate is Unpersuasive

Donziger attempted at trial to justify his continued use of Russell's disavowed estimate by explaining that he believed in its validity and, indeed, thought at the time that the actual remediation figure was much higher than $6 billion. He testified that he had a "more detailed cost assessment from [the] Ecuadorian technical team" that had calculated the remediation cost to be over $15 billion as well as estimates by a "junior lawyer" that the "remediation proposal [would] come in at about $20 billion."197 That these estimates were so much higher than $6 billion, Donziger claimed, satisfied him that it was acceptable to continue using Russell's cost estimate notwithstanding the fact that Russell demanded repeatedly that he stop doing so. But Donziger's claim is far fetched and the Court finds that Donziger in fact never believed it. The only estimates of which there was any evidence were prepared under Donziger's direction by junior lawyers who worked for him.198 As Donziger acknowledged, their purpose was to "make media/court/CVX [Chevron] itself start thinking in terms of billions"199 and potentially to use the figure to pique the SEC's interest in the litigation.200 There is no evidence of any competent study during this time period by any qualified person that supports Donziger's claim.

* * *

We have touched here only on part of Donziger's earliest efforts beyond the litigation itself, which have continued unabated for years since. We shall touch on other examples later. But we turn now to the Lago Agrio case itself, which already had begun.

IV. The First Phase of the Lago Agrio Case – The Judicial Inspections

A. The Process

Judge Guerra opened the evidentiary phase of the Lago Agrio litigation on October 21, 2003.201 It began with the parties submitting requests for the types and scope of evidence that the Lago Agrio judge should consider. Adolfo Callejas – Chevron's local counsel in Ecuador – explained that:

"Under Ecuadorian civil procedure, the parties must submit all of their evidentiary requests in a defined period; in the case of summary verbal proceedings, that period is six days. While all of the evidence does not have to be provided within that time frame, all requests for then-existent documents, witness testimony, expert assessments, judicial inspections of a place or thing, and other proof must be requested by both parties by the statutory deadline... . My legal team and I submitted a number of evidentiary requests on Chevron's behalf during the initial six-day evidentiary period, as did the lawyers for the Lago Agrio Plaintiffs. Although there were numerous requests for documents and for witness testimony from both sides, the bulk of the requests were for judicial inspections of a total of 122 sites, including well sites and production stations, in the former Concession area and nearby oilfields."202

Guerra granted both sides' evidentiary requests.203

Each side identified a technical expert to negotiate the procedures that would govern the judicial inspection process. Sara McMillen, Chevron's lead scientist on the Lago Agrio case,204 assumed this role for Chevron, while David Russell, who then still was working for Donziger, took the lead on behalf of the LAPs.205 The parties ultimately agreed upon and submitted to the court a sampling and analysis plan.206

"For most of the judicial inspections, experts were nominated by each side. At each judicial inspection site, these nominated experts took samples under the supervision of the judge at that site, sent their samples to a laboratory for testing and analysis, and then each submitted a written report of his or her findings and conclusions to the Ecuadorian Court. The Ecuadorian court also appointed a third set of experts, known as the Settling Experts, who were to resolve any disputes between each sides' experts reports and findings. The Settling Experts attended the judicial inspections."207

It is relevant to note that the Lago Agrio court formally appointed the party-nominated experts, but each nominating party paid or provided the funds to pay the experts it nominated. The parties were to share any compensation and expenses of settling experts, each side to submit its half to the court, which then would pay it to the settling expert.208

At each judicial inspection, the party that requested the inspection was to present any arguments it had concerning the site. The opposing party would rebut.209 Each side was to have the right also to request that the court include relevant documentation or other evidence in the record. Following each side's oral presentation, the court itself inspected the site, "registering comments and observations and allowing the parties and the experts to identify the areas where they intended to take samples."210 The court's secretary was to transcribe the proceedings at the inspection sites, and the transcript of the proceedings – including a list of all the documents presented at the inspection – was to be finalized and signed by the parties.211 The finalized document was called an acta, and was to be made part of the official court record. The documents within the record, which of course included many papers in addition to the actas, were grouped into cuerpos, or books, each of which contained about 100 pages of material.212
Following the inspections, each party's experts were to submit their reports, to which the opposing party's expert would have an opportunity to respond.213 If the settling experts had been called upon to resolve conflicting reports produced by the party-nominated experts, the settling experts' results would be included as well.214 The parties' nominated experts' reports, rebuttal reports, and any reports by settling experts were to be submitted to the court and made part of the record.
The first judicial inspection took place on August 18, 2004.215 As will appear, the process of inspecting 122 sites moved very slowly and never ultimately was completed.

B. The LAPs' Judicial Inspection Experts

Russell was in charge of choosing the plaintiffs' experts.216 He "created budgets for the scientific investigation, purchased equipment, hired, trained, managed, and paid members of the Ecuadorian plaintiffs' field team, and hired and interfaced with the plaintiffs' outside laboratories."217

C. The Calmbacher Episode

The first judicial inspection expert that Russell and Donziger hired, in the summer of 2004, was Dr. Charles Calmbacher, an industrial hygienist who previously had worked with Russell on other projects.218 Calmbacher was instructed to inspect and write the reports for the LAPs with respect to the first four judicial inspection sites.219 He traveled to Ecuador four times to meet with the plaintiffs' team and participate in those inspections.220
Calmbacher became ill on his last trip and returned to the United States before he completed his reports.221 Before he left, he gave the plaintiffs' team his unfinished drafts, but continued working on them from the United States.222 When Calmbacher was unable to finish the drafts within the deadlines Donziger set, Donziger fired him.223 Even after he was fired, however, Calmbacher insisted to Donziger that he would still be the one to "write the Perito [expert] reports" because he needed to "comply with [his] obligation to the court and to maintain [his] professional integrity with the Ecuadorian court."224 He wrote to Donziger and Russell:

"It also has been stressed to me that it is highly unusual for a perito [expert] to allow others to contribute to the writing of a report. Comments or review is acceptable, but the perito's opinion and findings are final. I therefore have and feel no obligation to allow your team of textile engineers and associated cron[i]es to review or edit my reports. I am assured, as perito of the court, that I am completely within my rights to write and submit my report independent of whose who have nominated me for appointment as perito. My sole obligation is to tell the truth, as I see it, to the court, no matter the consequences for either party."225

Calmbacher finished two of the reports and sent them to the LAP lawyers in Ecuador.226 The reports were edited and reformatted by them and sent back to Calmbacher for his signature.227 Calmbacher agreed with the conclusions reached by the reformatted and edited reports and told the plaintiffs' team that he "had no problem signing [them] because that's what [he] felt."228 But those reports were not the reports that the LAP team eventually filed.
Calmbacher testified that:

"[w]hat happened after that ... was they asked me to initial some [blank] papers on the corner so [the report] could be printed on that because it had to be initialed. I said, no, I don't think so. David [Russell] implored ... me to do that, that it was honest, it was fair, it was okay. So I did it. I think it was about 30 pages. And I FedEx'd it down ... I overnighted it. That was the last I've heard on the project. I have not been contacted or anything else."229

On February 14 and March 8, 2005, respectively, the LAP team submitted to the Lago Agrio court what purported to be the reports of their nominated expert for the judicial inspections of the Shushufindi 48 and Sacha 94 sites.230 They bore the signatures and initials of, and purported to have been written by, Dr. Calmbacher.231 The reports found that "highly toxic chemicals" contaminated the area and that TexPet's remediation was "inadequate or insufficient."232 When shown these reports at a deposition several years later, however, Dr. Calmbacher testified: "I did not reach these conclusions and I did not write this report."233 He never concluded that TexPet had failed to remediate any site234 or that any site posed a health or environmental risk.235 Thus, someone on the LAP team used the blank pages Calmbacher had initialed and his signature pages to submit over his name two reports that contained conclusions he did not reach.
There clearly have been tensions between Calmbacher and Donziger. The reasons for those tensions, and for the ultimate split between the two, are not clear, and their accounts differ. Donziger contends that he fired Calmbacher because he missed deadlines for his two reports and displayed "other [unspecified] unprofessional conduct."236 Calmbacher admits that Donziger was frustrated that his reports were late, but contends also that he at times disagreed with members of the LAPs' team on the format of the reports and that he voiced his concerns to the LAP team and "probably ruffled feathers."237 Nevertheless, the Court sees no sufficient basis to conclude that any ill feeling that Calmbacher may have harbored colored his testimony with respect to reports filed in his name on the Shushufindi 48 and Sacha 94 sites. It credits Dr. Calmbacher's testimony that those reports were not the reports he wrote and did not reflect his views. This means that someone on the LAP Ecuadorian legal team revised his draft reports, printed them on the blank pages that Dr. Calmbacher initialed, and filed them with knowledge of the falsity.
The judicial inspections continued despite Dr. Calmbacher's departure, and the LAP team hired other experts to take his place. But their troubles in this sphere did not end.

D. The LAP Lawyers Halt Testing for BTEX and GRO Because it Is Yielding Unhelpful Results

As noted previously, among the problems that faced the LAP team in the Lago Agrio case is that PetroEcuador had operated in the Concession area from 1992, when TexPet left Ecuador, forward and, in addition, had been a member of the Consortium earlier. The LAPs already had entered into an agreement with the ROE and PetroEcuador pursuant to which they were obliged to reduce the amount of any judgment they might obtain against Texaco by the amount of any contribution judgment that Texaco might obtain against the ROE and PetroEcuador. Moreover, the prospect of proof that PetroEcuador, an ROE owned entity, was responsible for substantial pollution in the Orienté would not have been viewed favorably by the ROE. The LAPs therefore had an interest in obtaining a judgment that Chevron was entirely responsible for any and all pollution liability and remediation responsibility.
In late 2004, Russell met in New York with Donziger, Bonifaz, Wray, and perhaps others to discuss the LAPs' strategy for the remaining judicial inspections.238 Russell reported that "the fact that [they were] finding BTEX, which is benzene, toluene, ethylbenzene, and xylene; and GRO, which is gasoline range organics," in the samples they were testing from the Concession area was "much more indicative of contamination from PetroEcuador rather than Texaco because these compounds are volatile and degrade quickly in hot, wet, warm environment such as in the jungle."239 As Texaco had not operated in the Concession area since 1992, it was highly unlikely that any BTEX and GRO that ever had been attributable to Texaco's operations still would have been present.240 PetroEcuador's continuing operations probably were the cause.
According to Russell, whom the Court found to be a credible witness, the "senior lawyers" – Donziger, Bonifaz and Wray – requested that the LAP team stop testing for BTEX and GRO because testing for these compounds "would be counterproductive to the case because it argues for more recent contamination and that implies PetroEcuador rather than Texaco."241 Accordingly, Russell and his team "stopped analyzing for those compounds [and] started instead substituting a less reliable measure which was total petroleum hydrocarbons," or TPH.242 The methods the team used to test for TPH, however, were unable to distinguish between TPH attributable to recent activity and activity that occurred a considerable period earlier.243 Moreover, they were subject to a further problem, namely that "TPH methods currently in use can show up naturally occurring compounds as an indication of petroleum, so give you a false positive."244

E. Sacha-53 and the "Independent" Monitors – Donziger, in His Words, Goes Over to the "Dark Side" and Makes a "Bargain With the Devil"

As mentioned, the court appointed several "settling experts" at the beginning of the judicial inspection process, whose job it was to resolve any conflicts between the parties' nominated inspection experts' reports. "The decision to request a settling report was solely in the Court's discretion," and it ordered only one such report before the LAPs' judicial inspections were terminated – that of the Sacha-53 well site.245
The Sacha-53 site was important for the LAPs because, as Donziger explained to his colleagues in a contemporaneous email, it was a "Texaco 'remediated site'" – i.e., a site that Texaco had remediated pursuant to its agreement with the ROE as a prerequisite to obtaining the release discussed previously – "so[, in Donziger's words, it would provide] the first definitive scientific proof in the case to put the lie to their claim they remediated."246 But Donziger soon learned that the settling experts' conclusions with respect to Sacha-53 would not be favorable to the LAPs. So Donziger sought to provide an outwardly credible criticism of the anticipated settling expert report in order to undermine its conclusions.
In late 2005, Donziger met Ramiro Fernando Reyes Cisneros ("Reyes"), a petroleum and environmental engineer in Ecuador,247 at a cocktail party for the launch of a book Reyes had published on oil in the Amazon.248 Also present was Gustavo Pinto, the president of the Association of Geological, Mining, Petroleum and Environmental Engineers ("CIGMYP") of Ecuador.249 At Donziger's request, Reyes and Pinto met with Donziger and Fausto Peñafiel – then a consultant for the LAP team – on the following day to discuss the Lago Agrio case.250
Donziger and Peñafiel outlined the judicial inspection and settling expert process for Reyes and Pinto and told them that "[t]he settling experts were going to issue a report on the judicial inspection of Sacha 53."251 "Donziger proposed the idea of bringing in an 'independent institution' to monitor the work of the settling experts."252 He wanted the independent monitors to make "recommendations" concerning the inspections to the judge presiding over the Lago Agrio case.253 He inquired whether CIGMYP would perform that function.254 He informed Pinto and Reyes that the LAP team would pay them for that work. His "initial wish was ... to have the association's monitorship be oriented to show that the results that were being obtained were favorable ... to the plaintiffs."255
On November 18, 2006, Donziger reached a secret understanding with Pinto and Reyes pursuant to which he would pay them to "monitor" the settling expert report on Sacha-53. Donziger wrote about the meeting in his notebook:

"Deal with Gustavo Pinto – feel like I have gone over to the dark side. First meeting like that I was not eaten alive. Made modest offer, plus bonus. Agreed to keep it between us, no written agreement. Independent monitoring."256

Lest there be any doubt, Donziger admitted at a deposition that the "modest offer" he made was of money257 and that the reference to an agreement "to keep it between us" meant that the fact that Pinto and Reyes would be working for the LAPs was to be kept confidential,258 including from the judge.259 He conceded also that it was "possible" that the "modest offer" agreed upon was $50,000, although he professed not to recall the amount.260

A week later, the same four men met again and finalized the deal. They agreed that Pinto and Reyes would lead the "independent monitorship" and would be paid a fee plus a potential bonus if the plaintiffs won the case.261 "There never existed a formal contract between CIGMYP, Pinto, [Reyes], Donziger, or Peñafiel, and all the participants in the meeting agreed that payment by plaintiffs to CIGMYP, to Pinto and to [Reyes] for this monitorship would remain secret."262 Secrecy was essential because Donziger and the LAP team knew that an appearance of independence and neutrality was essential in order for the expected efforts of Pinto and Reyes to be taken seriously by Chevron and the court.263
In fact, the agreement was for Reyes and Pinto to work covertly for the LAP team and to keep their relationship with the LAPs secret from the judge.264 And Donziger well understood that the arrangement was improper. He wrote in his notebook on February 6:

"Talked to Gustavo this morning about the [settling expert] report. I keep thinking we pay them so little, and they know the court's peritos [experts] make so much, why will they want to keep doing this for us? This was my one bargain with the devil, but we can't win with the devil b/c they can always pay more. Really frustrating, feel really boxed in."265

Nonetheless, the deal and, as Donziger recorded, the secret payment were made. He wrote in his notebook: "50 k came today – meet on roof to plan payment [to] [Pinto]. Luis [Yanza] has his doubts; I explained we are not paying for time, but for value. Juan came later to collect the [money]."266 Juan was a member of the LAP team (likely Juan Pablo Sáenz) and was used to deliver the money to Pinto because Pinto "didn't want to be paid directly."267
Pinto and Reyes met with the settling experts a week after they made the deal with Donziger.268 They "discussed the expert report on the inspection of Sacha 53, which the [settling experts] had been working on, and ... asked when the[] [settling experts] could provide the monitors a draft of the report. They never did, at least not to [Reyes]. The meeting ... was basically to review the technical aspects of the report the settling experts were preparing on Sacha 53."269 Although Reyes and Pinto never received an advance draft of the report, they knew from these discussions what the report would conclude. And they conveyed that information to Donziger and the LAP team.
In order for their "monitorship" to have the desired effect, Reyes and Pinto had to be appointed by the court. They therefore wrote a letter to Judge Germán Yánez, then the judge presiding over the Chevron case, detailing their credentials and their proposed role.270 They did not, however, disclose that they were being paid by the LAPs' team.271
Judge Yánez did not respond to the letter, so Pinto and Reyes went to meet with him in his office.272 Before doing so, they showed Donziger an advance copy of the comments on the settling experts' work that they intended to make to the judge.273 When they met with the judge, they explained the need for the monitorship and expressed their desire to become involved in the case. But the judge "did not express any interest in what [they] were telling him about the case."274
To jump slightly ahead for a moment, the settling experts' report was published in February 2006.275 It concluded – consistent with the fears that led Donziger to the "independent monitorship" scheme – that Texaco had fully remediated the Sacha-53 site. Donziger characterized the report as "disastrous" for the LAPs' team.276 He instructed Reyes and Pinto to prepare a report that "established that the findings of the settling experts' report on Sacha 53 were wrong, that they lacked objectivity and were biased toward Chevron, and therefore the report should be discounted."277 The report that Pinto and Reyes drafted, however, did not reach those conclusions. Instead, they concluded that, while the settling experts had "failed to strictly follow their judicial mandate" and that some of the data submitted by both parties had deficiencies, "the report contained enough information for the Court to make its own ruling."278 Donziger was extremely disappointed in what he called Reyes' and Pinto's "tepid" response and instructed them not to file it with the court.279
The Reyes–Pinto arrangement suggests that Donziger and his team were worried that the evidence would not support their claim, at least to the extent they had hoped. The one settling expert report that was in the process of completion concerned a site they expected would expose what Donziger characterized as Texaco's "lie," but he learned it would reach the opposite conclusion. When the likelihood that the report would reach that opposite conclusion became known, Donziger – in his own words – went over "to the dark side"280 by recruiting and paying new experts to pose as "independent monitors" and to criticize the settling experts' conclusions to the court without disclosing that the LAPs were paying them. Moreover, it must be noted that Donziger did not address – much less offer any innocent explanation of – these events, either in his written direct testimony or on the witness stand.
In the end, Donziger's arrangement with Reyes and Pinto – his first "bargain with the devil"281 – ultimately did not work out for him. The judge was not interested and the report Reyes and Pinto wrote did not meet Donziger's expectations. But it was not his last such bargain. By this time the LAPs were up to something new, which, if it succeeded, would reduce the risk of unwanted results from the many uncompleted judicial inspections.

F. The Termination of the LAPs' Remaining Judicial Inspections and the Genesis of the Global Assessment

Extensive evidence demonstrates that Donziger and the rest of his team concluded that Dr. Wray had made a terrible mistake in committing to judicial inspections of so many sites.282 They were costly and took a great deal of time.283 Moreover, as the unfolding Sacha-53 crisis demonstrated, they were risky – the party-nominated experts could disagree, and the settling experts might agree with Chevron. For these reasons, the LAPs on January 27, 2006 – shortly before the publication of the Sacha-53 settling expert report – moved to eliminate 26 of the remaining judicial inspections that the LAPs had requested, ostensibly because they were unnecessary.284 The judge then presiding swiftly denied the motion.285
The LAPs responded by filing several motions challenging the court's decision, initiated a press campaign that questioned the judge's handling of the case and accusing him of bias in favor of Chevron, and began to organize several demonstrations outside the courthouse to protest his rulings.286 The point of all of this, as Donziger wrote in his journal, was that the LAPs:

"need a massive protest on the court, and only after that should we talk to the judge about what he needs to do. The judge needs to fear us for this to move how it needs to move, and right now there is no fear, no price to pay for not making these key decisions."287

So the issue of reducing the LAPs' judicial inspections continued to percolate through the spring of 2006. Moreover, a new ingredient entered the LAPs' internal discussions of the issue – the idea not only of dropping all of the remaining LAP judicial inspections, but of substituting a single, supposedly impartial, global expert.

The idea of a global expert did not immediately persuade Donziger. On May 31, 2006, he wrote in his notebook:

"Yesterday we had a 5-hour [meeting] and it was extremely intense and frustrating. Went through options on Global [Expert] – had Plans A through E, and I realized how difficult this aspect of the case is going to be. Bottom line problem is we will have no control over the [expert], who will be appointed by the judge. Pablo and our legal team keep insisting that the solution is for the judge to appoint someone who is favorable to us, but I don't trust this approach so far."288

In other words, he was concerned that he perhaps could not control a single global expert. He worried that such an expert would not be "willing to do work that holds oil companies accountable. ... Which gets back to my point that we need a foreigner as the expert for the global. No Ec[uadorian] is going to come through and hold them accountable for billions – it is just not going to happen... . Without that insurance, I just don't see how we can go forward with the global [expert]."289

1. The LAPs Coerce the Judge to Cancel the LAPs' Remaining Judicial Inspections

The LAP team, in Donziger's words, often "talk[ed] to the judge about what he needs to do" in private.290
In July 2006, the LAPs filed another motion, this time seeking to relinquish all of their remaining inspections, not just the 26 they in January had sought to eliminate.291 Donziger wrote in his notebook that:

"Our issues first and foremost are whether the judge will accept the renuncia of the inspections. If this happens – and Pablo thinks it will, but I and Aaron [Marr Page] think he is overoptimistic – then we have to face the prospect of more of the wasteful, time-consuming, and expensive inspections. [sic] If it doesn't happen, then we are in all-out war with the judge to get him removed."292

But the "all-out war" to remove the judge proved unnecessary.

Donziger and the LAP team knew that Judge Yánez was in a weakened state. He recently had been accused of "trading jobs for sex in the court"293 and was worried about his reputation and perhaps career. They were determined to use that to their advantage. As Donziger wrote in his notebook at the time, Fajardo informed Donziger that

"there is the feeling in the court that we are behind the [sexual harassment] complaint[] against Yánez ... , which we are not, even though we have much to complain about, which is sort of ironic. I [i.e., Donziger] asked if this theory in the court hurt or helped us, and both Pablo and Luis said it helped us. At which pt I launched into my familiar lecture about how the only way the court will respect us is if they fear us – and that the only way they will fear us is if they think we have ... control over their careers, their jobs, their reputations – that is to say, their ability to earn a livelihood."294

So the LAP team "wrote up a complaint against Yánez, but never filed it, while letting him know we might file it if he does not adhere to the law and what we need."295 Donziger explained in an email to Kohn that Fajardo then met with the judge, who "said he is going to accept our request to withdraw the rest of the inspections save the four we still want to do... . The judge also ... wants to forestall the filing of a complaint against him by us, which we have prepared but not yet filed."296

Faced with this coercion,297 Judge Yánez granted the request to cancel the LAPs' remaining judicial inspections. Donziger and Fajardo succeeded also in convincing the judge that he should "fear" the LAP team.298 After Judge Yánez issued the order, Donziger on September 13, 2006, wrote that the judge "told Luis [Yanza] that we needed to back him now as he fights for survival on the court. So instead of a strong judge who sees the validity of the case, we now might have a weak judge who wants to rule correctly [i.e., for the LAPs] for all the wrong, personal reasons. Need to get going on the inspections (looking for [expert]) and [global expert]."299
This last statement – that Donziger recognized his "[n]eed to get going on the inspections (looking for [expert]) and [global expert]" – demonstrates that his earlier misgivings about a global expert had been overcome and that Donziger was looking for an expert to appoint to that pivotal role. The explanation for this change of heart is plain. Donziger's "[b]ottom line problem [about pursuing a global expert idea had been that] we will have no control over the [expert], who will be appointed by the judge."300 But the coercion of Judge Yánez eliminated that "bottom line problem." Donziger had found himself with "a weak judge who wants to rule correctly for all the wrong, personal reasons,"301 among them the fear that the LAPs would file their judicial misconduct complaint against him at a time when he least could withstand it. Donziger therefore expected to be able to select and to control the global expert. That is exactly what then took place.

2. Donziger Chooses Cabrera to be the Global Expert

With these pieces in place, Donziger and the LAP team moved on to finding a compliant global expert. The idea was that the global expert – just like the "monitoring" experts, Reyes and Pinto, who ultimately had not been appointed – in fact would work for the LAPs but would appear to be independent and neutral. This required Donziger to find someone who, in Donziger's own words, would "totally play ball with" him.302
Donziger began quietly vetting candidates to fill the post.303 Initially, the lead candidate for the job was Reyes,304 with whom Donziger already was acquainted from the Sacha-53 episode.

"[] Donziger, [] Fajardo, and [] Yanza together ... explained to [Reyes] that having a single expert to carry out a global assessment was important to the plaintiffs because they acknowledged that the judicial inspection process had not yielded data to support their claims of contamination. They also said they believed it would be easier to manage a single expert than many."305

Donziger met with Reyes in December 2006 "to do a hard vet."306 Before settling on Reyes as the global expert, Donziger was determined to ensure that Reyes would "totally play ball with us and let us take the lead while projecting the image that he is working for the court."307 He needed also to persuade Reyes to take the assignment. So Donziger told Reyes "that if he did this he likely would never work in the oil industry again in Ecuador, at least for an American company, but that he could be a national hero and have a job the rest of his life being involved in the clean-up."308 And he reminded Reyes that, as the global expert, he would "need ... to state that Chevron was the only party responsible for environmental damages and the harm to the local community."309
Donziger's statement to Reyes that he would "have a job the rest of his life being involved in the clean-up" warrants emphasis. The Lago Agrio complaint identified the ADF, which is controlled by Donziger and Yanza, as the entity to which the LAPs wanted any recovery money paid.310 Thus, in promising Reyes that he would "have a job the rest of his life being involved in the clean-up" if he took the assignment and gave the LAPs what they wanted, Donziger promised something that he expected to be able to deliver – long-term, remunerative employment paid for by the ADF.
While Donziger was vetting Reyes, Fajardo and Yanza met with Judge Yánez to get him to appoint Reyes as the global expert. But Judge Yánez was troubled because he felt "bound by an agreement Wray made with Callejas [Chevron's local counsel] in the first inspection to use [experts] already appointed by the court."311 This would have excluded Reyes. In consequence, the LAP team believed that the choice would be between José Echeverria and Richard Cabrera Stalin Vega ("Cabrera"), both of whom previously had been designated as settling experts.312 Of the two, Donziger's choice was Cabrera. Donziger wrote:

"Richard [Cabrera] served in the last inspection, and he was found by Fernando Reyes, who has turned out to be a good friend of the case. Richard showed some surprising independence, telling the judge quietly that Texaco's sampling was bullshit. The question is, do we push for Reyes himself or Richard? At first, I thought the idea Reyes would not be the [expert] was a case killer. I simply am loathe to spend much more money on the case not knowing if we can get a damage claim before the court, which essentially would prevent us from winning the case before a decision can even be made. I trust Reyes; I don't know Richard even though he looks promising. So I met Richard with Reyes on Sat afternoon in the Hotel Quito, one of my endless series of meetings. He is a humble man, not very sophisticated, but he seemed smart and under-stated – maybe the perfect foil for Chevron, but there is no way to know for sure so there is risk. Reyes thin[k]s we should go with Richard, and we can help him."313

Accordingly, Donziger, Cabrera, Reyes, and other LAP lawyers met to discuss the possibility of Cabrera being appointed global expert.314

On February 27, 2007, Donziger, Yanza, and Fajardo met with Cabrera and Reyes to do another "hard vet" of Cabrera and to give him the "hard sell." Just as he had done with Reyes, Donziger, again in his own words, "did the build up about the importance of the case, what it means for history, how we can do something that we will always be remembered for, what it would mean for the country and world, etc."315 This sort of encouragement, Donziger noted "always works at the opportune moment."316 But that, the Court finds, is not all he said. The quoted entry from his notebook summarized "the build up" he gave Cabrera in terms almost identical to the summary he wrote of his "build up" to Reyes. It is logical to infer, and the Court finds, that Donziger made the same implicit promise of lifetime work on the remediation to Cabrera that he had made previously to Reyes. In any case, Cabrera agreed to the plan.
Meanwhile, the LAP team continued to meet ex parte with Judge Yánez317 to have him appoint their new choice, Cabrera, as the global expert. By February, the LAPs were "100% sure the judge would app[oin]t Richard [Cabrera] and not Echeverria."318 On March 19, 2007, the judge announced the appointment.319 But Donziger and the LAP team were so sure of Cabrera's appointment that they proceeded on the basis that Cabrera would be appointed even before the appointment was announced and Cabrera sworn in.

V. The Second Phase of the Lago Agrio Case – The Cabrera "Global Expert" Report

A. The LAPs Secretly Plan the Cabrera Report – The March 3 and 4, 2007 Meetings

Donziger, Fajardo, and Yanza called the entire LAP team together for a meeting on March 3, 2007.320 This included several American technical experts with whom Donziger had been consulting – Charlie Champ, Dick Kamp, and Ann Maest,321 a scientist at E-Tech, an organization that was working with the LAPs322 and who worked also for the Boulder, Colorado-based environmental consulting firm, Stratus Consulting ("Stratus").323 The purpose of the meeting, as will appear in more detail, was to plan the global expert report. So sure were Donziger and Fajardo of Cabrera's appointment that the supposedly independent and impartial Cabrera, as well as Fernando Reyes, were present.
Donziger explained the importance of the meeting to the Crude camera even before the meeting began:

"Today is ... a very important day 'cause we're meeting with ... our team of Ecuadorian technical people and our American consultants ... to figure out how to ... pull all that information together for the final report we're gonna submit to the court, that is gonna ask for damages that'll very likely be in the multiple billions of dollars."324

Thus, Donziger in an unguarded moment,325 acknowledged that the report ultimately submitted would be the product of the LAPs and their "team of Ecuadorian technical people and ... American consultants."

Parts of the meeting were recorded by the film makers. Yanza began by introducing the participants and setting out the general agenda.326 He introduced Cabrera to the full team for the first time.327 Fajardo set forth the plan for the final phase of the evidentiary period, explaining that, while Cabrera was likely to be appointed the global expert, "the work isn't going to be the expert[']s. All of us bear the burden."328 Maest then asked whether "the final report [was] going to be prepared only by the expert?"329 Fajardo responded, "what the expert is going to do is state his criteria, alright? And sign the report and review it. But all of us, all together, have to contribute to the report."330 Maest commented, "But . . not Chevron," which provoked laughter.331 The video clips of the meeting ended with Donziger commenting, they could "jack this thing up to $30 billion in one day."332
Reyes – who had been Mr. Donziger's first choice for appointment as global expert – testified that:

"At the meeting, Mr. Fajardo, Mr. Yanza and Mr. Donziger dropped any pretense that Mr. Cabrera would act independently in writing an expert report that would be technically sound and executed according to professional standards. On the contrary, it was obvious that the plaintiffs had already predetermined the findings of the global assessment, that they themselves would write a report that would support their claim for billions of dollars against Chevron and would simply put Mr. Cabrera's name on it. The purpose of the meeting was to establish all the conditions for controlling and managing the expert's work, in secret, in accordance to the plaintiffs' interests."333

The next day, Donziger met over lunch with some of his American experts to discuss the work plan.334 The meeting, parts of which also were taped, confirmed that Donziger and the LAPs would go far to control the process and conceal their involvement from Chevron and the court. At one point, one of the experts commented, "I know we have to be totally transparent with Chevron, and show them what we're doing," to which Donziger responded "[n]o, no... . they will find out ... [but] not in the moment... ."335 Maest replied, "Yeah, we don't have to give them our plan ... . I don't think, do we?" and Donziger answered "[w]ell, it's a little unclear... . No one's ever done this before ... . This is so crazy ... . Our goal is that [Chevron] do[es]n't know shit ... and that's why they're so panicked by this."336 Another expert commented that "having [Cabrera] there yesterday, in retrospect, was totally bizarre."337 Donziger quickly told him not to talk about that and told the film crew "that was off the record... ."338 Thus, right from the start, Donziger evidenced his intent that the intimate relationship he had forged with Cabrera would not be allowed to see the light of day.
The group discussed also the existing data. When Maest noted that "right now all the reports are saying it's just at the pits and the stations and nothing has spread anywhere at all," Donziger replied, "That's not true. The reports are saying the ground water is contaminated because we've taken samples from ground water."339 Maest responded, "[t]hat's just right under the pits," to which Donziger responded:

"Yeah, but, that is evidence... . Hold on a second, you know, this is Ecuador, okay ... You can say whatever you want and at the end of the day, there's a thousand people around the courthouse, you're going to get what you want. Sorry, but it's true... . Okay. Therefore, if we take our existing evidence on groundwater contamination which admittedly is right below the source ... . And wanted to extrapolate based on nothing other than, our, um, theory that it is, they all, we average out to going 300 meters in a radius, depending on the ... gradient. We can do it. We can do it. And we can get money for it... . And if we had no more money to do more work, we would do that. You know what I'm saying? ... And it wouldn't really matter that much... . Because at the end of the day, this is all for the Court just a bunch of smoke and mirrors and bullshit. It really is. We have enough, to get money, to win."340

Following the March 3-4 meetings, the LAPs wrote the work plan that supposedly was to be done by Cabrera. On March 21, 2007, Fajardo sent the initial draft to Donziger for his approval.341 It laid out all of the required tasks including such things as the selection of sites to be studied, field work, drafting of the report, and its submission to the court. It assigned responsibility for each item, in most cases to members of the LAP team or their hired consultants. Cabrera was allotted responsibility for relatively little. The drafting of the report was assigned to "[t]he Expert with the support team," the latter being a reference to the LAP personnel. Review of the initial draft of the report was to be done by the "Legal team," meaning the LAP lawyers. And following the final item on the list, submission to the court, the LAPs wrote, "Everyone silent," the point of course being that no one was to disclose the control over and overwhelming participation in the process by the LAP team. Indeed, Donziger admitted on cross-examination that he instructed all those associated with the preparation of the Cabrera Report to keep their work highly confidential.342
Before Cabrera officially was sworn in, however, the LAP team faced another possible hitch in its plan. Fajardo learned that Judge Yánez was considering appointing two global experts – one for Chevron and one for the LAPs. The LAP team was very concerned – they had worked hard to have the judge appoint the expert they had vetted and chosen and who would "totally play ball" with them. Fajardo reported Judge Yánez's plan to Donziger and others in an email titled "Code Orange." He wrote: "What is new is that in view of the other restaurant's challenge, the cook has the idea of putting in another waiter, to be on the other side. This is troublesome. I suggest we activate alarms, contacts, strategies, pressures in order to avoid this happening. It is necessary to do it urgently."343 Fajardo wrote that the "Lago Agrio messenger is waiting until this afternoon to meet with the cook, to hear his position."344 Donziger testified in a deposition that the LAP team used code names "to prevent any reader of those documents from knowing exactly who it was [he] w[as] talking about... ."345 He admitted at trial that the "cook" referred to the judge; the waiter referred to Cabrera; and the "other restaurant" referred to Chevron.346
Not surprisingly in light of the position in which Donziger, Fajardo, and others had put Judge Yánez, the "messenger" – most likely Fajardo – caused Judge Yánez to drop the idea of appointing two experts. And they took additional steps to control his activities.
On April 17, 2007, Luis Yanza wrote to Donziger: "We have met with Richard [Cabrera] and everything is under control. We gave him some money in advance."347
Shortly thereafter, the LAP team set up a new, "secret" bank account through which they surreptitiously could pay the supposedly independent expert.348 As Yanza once explained to Donziger, the purpose of the secret account was for Donziger and Kohn to "send ... money to the secret account to give it to the Wuao."349 The "wuao" or "wao" was another code name the LAP team created to refer to Cabrera.350 As we shall see, Donziger and Yanza later put that secret account to considerable use.
Having secured Cabrera's selection and his agreement to cooperate with them, the LAP lawyers likely believed that they had paved their path to victory. But their problems were not over.

B. Donziger, Fajardo, and Yanza Put Together an "Army," Cabrera is Sworn in, and the LAP Team Prepares His Work Plan

Cabrera was selected in April 2007, but he had not been sworn in by June. The field work had not yet begun. Donziger and his colleagues feared their plan was in danger.
Donziger and Fajardo visited Judge Yánez on June 4, 2007, to inquire why the swearing in was taking so long and to encourage him to allow the expert to get to work in the field. Remarkably, the audio of this ex parte meeting with the judge was recorded by the Crude camera 351 crew.351
Very early in the meeting, Donziger said to the judge: "Let's speak frankly. What do we do to start" the process with Cabrera?352 The judge replied that it "is already about to start," but that Chevron had filed "two books" of "suggestions" and issues regarding the process by which Cabrera's field work was to be carried out, and the judge needed to rule on them.353 One such "suggestion" was that Chevron lawyers be permitted to attend Cabrera's inspections. Donziger replied that "we are fine with that."354 Judge Yánez responded: "Yes, but the only thing that must be made clear is ... the expert is appointed by the court."355 There must be "parameters so that he can – this is going to be done right, isn't it? And the situation can't be made too creative. Yes, because, I know that tomorrow you'll leave but I'll still be here, right?"356 Donziger assured Judge Yánez that he, Donziger, would not "desert" the judge, and stressed that the judge could not let Chevron's complaints about the expert or threats to appeal Judge Yánez's ruling delay the swearing in any further.357
Donziger and Fajardo left the meeting frustrated with the delay and worried that Judge Yánez was slipping away from their control. They discussed the need to pressure the judge to swear in Cabrera and get the process going. Donziger said: "To me, this is already a matter of combat ... I think we actually have to put an army together ... ."358 Fajardo agreed: "We have to have demonstrations, have protests. I think that has to be done right now... ."359 He continued: "the idea is to teach a lesson to this judge and to the next one. I mean, teach the court a lesson. A message to the court."360
The next day, Donziger met with Yanza and Atossa Soltani of Amazon Watch and explained the situation:

"I think that, analyzing the outlook of this case, we are losing strength with the court. Uhm, this case has pretty much been asleep for five months. It's weird. I mean, we got – we were getting, like, everything, for a while, that we wanted. You know, we got the cancellation of the inspections. You know, we we're getting the peritaje global, the final phase. But then, like, suddenly everything was in place and he won't swear in the perito, which is needed to start the hundred and-twenty day period. It's been, like, weeks and weeks and weeks of delays. You know, after sort of analyzing the situation, we believe that the judge is trying to stall the case until the end of the year, until the new guy comes in ... So, you know – but it goes way beyond the problem of any individual judge, 'cause it's possible the next person could come in and ... and not want to deal with it and do the same. You know, it's a problem of institutional weakness in the judiciary, generally, and of this court, in particular. We have concluded that we need to do more, politically, to control the court, to pressure the court. We believe they make decisions based on who they fear the most, not based on what the laws should dictate. So, what we want to do is take over the court with a massive protest that we haven't done since the first day of the trial, back in October of 2003."361

He added that the protest would occur during the last week in June and emphasized that "it's a critically important moment, because we want to send a message to the court that, 'don't fuck with us anymore – not now, and not – not later, and never... . [N]o one fears us right now. And, until they fear us, we're not gonna win this case. I'm convinced."362 Indeed, on June 13, 2007, he suggested that Fajardo and Yanza "inform the judge now that we're going to have the big march and maybe ask for his recusal during that march so that he'll get scared now."363

As it turned out, the June 4 visit to Judge Yánez by Donziger and Fajardo quickly had its desired effect, and Donziger's fears as to whether Cabrera would be sworn in and thus authorized to begin his work as global expert proved short-lived. Cabrera was sworn in on June 13, 2007.364 At his swearing-in, Cabrera promised to execute his duties "faithfully and in accordance with science, technology and the law and with complete impartiality and independence vis-a-vis the parties."365
Roughly two weeks later, Cabrera submitted what purported to be his work plan to the court.366 While this was more abbreviated than the detailed March 21 plan initially prepared by the LAP team, it too in fact had been written by the LAP team.367 It listed categories of experts who would assist in collecting samples in the field and analyzing data368 – all of whom secretly would be named by the LAP team.369

C. The Field Work

Shortly before Cabrera was sworn in, Donziger and Fajardo had discussed the need to "scale up" the "battle" once that occurred by "organiz[ing] pressure demonstrations at the court and [providing] vigilance" to "protect" the expert.370 They proceeded with the plan once Cabrera was sworn in. They decided that a "pressure demonstration" would take place the day Cabrera was set to begin "his" work in the field.
On June 26, 2007, Donziger emailed the producer and cameraman of the Crude documentary to fill them in on the plan. He wrote that "Richard [Cabrera] the new expert [would be] tak[ing] sampling [during the following week] for the first time in Lago, and a ton of people will be there to protect him from the Chevron lawyers... ."371 He suggested that the crew "film us getting ready for the big march. The march will be the biggest in the history of the [ADF] ... [yo]u can capture the main characters (me, Pablo, Luis) early in the morning Tuesday greeting the communities as they travel to lago from the hinterlands... ."372 And he noted that "[t]he other thing that would be good to capture is our private 'army' which has been very effective. Yesterday they followed a Texaco lawyer into the judge's chambers and had a confrontation. This is a critical part of our strategy that is allowing the case to go forward ..."373
The demonstration occurred on July 3, 2007, and culminated with a speech by Yanza.374 Cabrera began his site inspections the following day, surrounded by Donziger's "army."375 Over the next three months, Cabrera visited sites and collected samples.376
Chevron was skeptical of Cabrera from the day he was named. It thought him unqualified and that he lacked relevant experience, and it voiced its concerns to the court.377 Chevron's lawyers became even more suspicious when Cabrera took samples at various sites because they observed what seemed to them to be collaboration and familiarity between Cabrera – the supposedly independent global expert – and the LAP team.378 In addition, "unlike the Lago Agrio Plaintiffs' representatives, Chevron lawyers and ... technical team members were often blocked from observing up close Cabrera's inspections."379 Thus, "[t]hroughout Mr. Cabrera's proposed appointment, swearing in, field work and the ultimate submission of his reports, Chevron repeatedly petitioned the Court to address its concerns over Cabrera's lack of impartiality and independence and his suspected collusion with the Lago Agrio Plaintiffs' representatives."380 The Lago Agrio court never intervened.381 It merely reminded Cabrera "that he is an auxiliary to the Court for purposes of providing to the process and to the Court scientific elements for determining the truth" and asserted that "[t]he transparency of the expert's work will be ensured."382
Chevron had reason to be suspicious of Cabrera's field work, which was anything but transparent. Among other things, Donziger later admitted that the LAP team "had [also] been involved in Mr. Cabrera's site selection" and his "sampling protocols."383 Indeed, he conceded that he could not recall a single site Cabrera sampled that the LAPs had not "recommended" to him.384 Nor was that all.

1. The LAP Team Pays Cabrera to Ensure that He Would "Totally Play Ball"

The LAP team paid Cabrera. Some of the payments they made to him were official, court-approved payments made through the court process, which worked like this: on several occasions, Cabrera filed a letter with the court, requesting payment for work he performed or was about to perform.385 The court approved the amount, and ordered the LAPs, who had requested the global expert, to pay it. The LAP team then wrote Cabrera a check for that amount, which was filed with the court and then given to Cabrera.386
But the court-approved payments were not the only ones the LAPs made to Cabrera. They paid him also outside the court process. And they began paying him even before he had begun to perform his duties.
After Cabrera was named as the global expert but before he was officially sworn in, the LAPs agreed to set up a new, "secret" bank account through which they surreptitiously would pay Cabrera.387 Yanza and Donziger began the process of opening the secret account in June 2007. Yanza informed Donziger that "[t]o open the account we need at least 2 thousand dollars. Due to the urgency, I suggest that amount (or more, 5 or 10 thousand) be sent to my personal account and I will transfer it to the new secret account."388 Donziger responded "I'm not sure it should be your account. [A]re you sure?"389 Yanza assured Donziger that "the first transfer is just to open the other account. Once we have the other account I'll immediately transfer all the money to that account and we start operating with that account."390 He later made clear that he would open the secret account in someone else's name.391
The LAP team ultimately decided to repurpose a preexisting account the ADF held at Banco Pichincha to serve as the secret account.392 Between August 2007 and February 2009, Donziger had Kohn make three separate payments totaling $120,000 via wire transfer to the secret account.393 A large portion of this money was paid to Cabrera via direct account-to-account transfers at Banco Pichincha.394 For example, on August 9, 2007, Yanza sent Donziger an email in which he included the account information for the secret account and wrote that "[Kohn] ha[s] to deposit 50k [into the secret account] so we can pay the advances to the consultants so they will start their work as soon as possible. I hope it is deposited by Wednesday at the latest. I'll be in touch that day to arrange all of this with Huao."395 Six days later, Kohn transferred $50,000 into the secret account.396 Two days after that, $33,000 was transferred to Cabrera from the secret account.397 And on September 12, 2007, Yanza emailed Donziger stating that he "need[ed] 50,000 more by Monday at the latest."398 He followed up on that request five days later, telling Donziger: "I hope you make that deposit right away because I offered to give the Wao another advance tomorrow and I don't want to look bad."399 That same day, Kohn transferred $49,998 into the secret account.400 And on February 8, 2008, Yanza emailed Donziger and asked for a transfer to the secret account, stating "[h]opefully, [Kohn] transfers 25."401 Later that day, Donziger emailed Kohn, asking him to deposit $20,000 into the Frente's secret account.402 Kohn transferred the money to the secret account four days later.403
Defendants have contended that the secret payments they made to Cabrera were "advanced funds to cover expenses incurred for work performed so that his work would not stop."404 And Donziger testified at trial that the secret account was "to pay [Cabrera] for work performed outside of the court process due to the paralysis that existed in the court... ."405 He maintained also that such payments were "appropriate" under Ecuadorian law.406
In fact, experts are prohibited under Ecuadorian law from "requir[ing] or receiv[ing] anything of value, whether directly or indirectly, from the parties in the case ... since their fees must be established in advance by the competent judge."407 The attempt to justify their payments to Cabrera outside the court process – that is, without an application by Cabrera to the court followed by court approval followed by payment – as necessary "to keep the process going" is not persuasive. While such advances might have been both understandable, if irregular, had they been made openly and in response to proven delays by the court in acting on payment requests, there is no persuasive evidence of either. Defendants' expert, moreover, testified that secret payments to Cabrera without the knowledge of the court to alter the result of the expert's report would have been crimes under Ecuadorian law.408 Indeed, the Ecuadorian Criminal Code provides that "[a]nyone who bribes a[n] ... expert ... or who knowingly uses false ... experts in a court proceeding ... will be punished as guilty of false testimony or perjury."409
All of the circumstances – including the fact that a court-approved payment process existed but that the LAP team secretly paid Cabrera outside of that process, used a secret account to do so, worried in emails about whether any of the money should go through Yanza's personal account even temporarily, and used code names as they did it – indicate that the secret payments were illegal or at least improper,410 that the LAP team knew that, and that they attempted to conceal their payments. Whatever else these payments may have included, if anything, at least part of them were made as part of even more extensive efforts to ensure that Cabrera "would totally play ball with" the LAPs and with other U.S. consultants whom the LAPs had hired to draft the report Cabrera would file under his name.

2. The LAP Team Provides Cabrera with Administrative "Support" and Controls his Field Work

The LAPs provided Cabrera more than payments from the secret account. Three days before Cabrera began his field work, Fajardo sent an email to Donziger and Yanza, informing them that Cabrera that morning had called him "about a little mistake in the contract, [and] he seemed a bit upset... ."411 Fajardo suggested that Donziger get in touch with Cabrera "to offer some Support, which ... should be the following:

1. That we help him get an office, if he hasn't yet, we shouldn't let him go through that hassle, it is our obligation to help him. Leaving him alone would be irresponsible of us, we could give him someone to help him, he'll feel better.

2. I recommend that Julio [Prieto]'s girlfriend be his assistant, I think she's a really bright girl, and since she's Julio's girlfriend, there would be no problems, she knows something about law and could help him in many aspects, plus we'd have this situation more or less controlled... .

3. Even though it's not our obligation, but I think it's our duty to help him get insurance. We must understand that he has no structure and we do. I think that he now needs to get to the heart of his work... ."412

Donziger replied that he was "on it."413

Donziger and Fajardo believed that supporting Cabrera in every way was necessary to maintaining the "control" over him upon which Donziger insisted. So they entered into a contract with Cabrera, provided him with a secretary (Prieto's girlfriend), obtained life insurance for him,414 and provided other support. To ensure that Cabrera continued to cooperate with them, they needed to make clear that they supported him. And their "support" was not limited only to administrative matters. They also supported and controlled his work in the field.
Shortly after Cabrera began his inspections, he filed a letter with the Lago Agrio court in which he complained that Chevron's representatives had interfered with his first inspection at the sampling site and were "insulting [Cabrera], trying to affect [his] reputation, dignity, and impartiality."415 He wrote that, in the future, "[i]f upon arriving at a site or well that [he] need[ed] to sample [he] f[ou]nd alterations ... [he] reserve[d] the right to replace that and all tampered sites with other sites that have not been altered, without the new sites having to be on the list that was provided in the work plan."416
Read in concert with the LAP team's internal correspondence, Cabrera's letter to the court – in which he "reserve[d] the right" to visit new sites and collect new data – was meant to lay the groundwork for the LAP team's maintenance of control over Cabrera's field work. Indeed, on July 17, 2007, Donziger sent an email to Yanza and Fajardo, the subject of which was "Ideas for meeting with Richard [Cabrera]."417 He wrote:
"These are the [l]atest ideas:

1) That we think that Richard should suspend his work in the field and we should not pay the team until after the recess. We just need to tell the team and Texaco that he's going to start all over after the recess so there is nothing strange, everything appears normal.

2) When I get there, we'll re analyze the work and budget with Richard. And we'll adjust with a much smaller team. My tendency is to stop Richard from working much more in the field... or, if he continues doing it, he should continue under the most strict control with an extremely limited number of samples ... And we'll change the focus of the data at our offices.

3) It is key to have deadlines to receive drafts from all the consultants, such as the biologists, the water man, and so on. Personally, I don't want to wait for the 'final' product to determine if the work is useful or not, or we will be screwed because they will ask for even more money to make the changes if we are not properly informed of everything during the process."418

Donziger's email underscores the fact that the LAP team had chosen the sites which Cabrera was to visit and, when the team's funds began to run low, sought to limit the number of sites even further. All the while, the LAPs knew that – for the samples he did collect – they could simply "change the focus of the data at [their] offices."
The "team" to which Donziger referred included Stratus and other consultants and scientists who were hired to perform technical work supposedly to have been done by Cabrera.419 One of those consultants was Uhl, Baron, Rana & Associates, Inc. ("UBR"), an environmental consulting firm Kohn and Donziger had hired and paid to develop a potable water report.420 As will be seen, the report UBR prepared ultimately became an appendix to the Cabrera Report.421 It was attributed to Juan Villao Yepez, an employee of UBR, who was identified as a supposedly independent expert on Cabrera's supposedly independent technical team.422 The fact that the LAP team had hired and was paying UBR was not disclosed to the Lago Agrio court.
The authorship of the Cabrera Report and its appendices will be discussed more fully below. The importance of Donziger's July 17, 2007 email for present purposes is that it shows that the LAP team worried about how they could continue to pay the team of U.S. environmental consultants they had assembled and hired to perform Cabrera's work for him. And the team worried also about maintaining control over the sites Cabrera inspected, the samples he took, and the data the samples produced. So five days after Cabrera sent the letter to the court stating that he reserved the right to visit new sites and collect new data,423 Donziger informed Fajardo that Cabrera should collect an extremely limited number of samples and that (1) the focus of the data could be "change[d] ... at [the LAPs'] offices" and (2) the data ultimately would be analyzed and summarized by the consultants the LAPs were paying to prepare Cabrera's report.424 This two-pronged attack enabled the LAP team to get what it wanted – fewer testing sites, lower costs, and control over the samples and results they elicited – while allowing Cabrera to blame the need for changes to his work plan on Chevron.
Donziger noted also in his July 17, 2007 email to Fajardo that the LAPs' hired consultants needed to be required to submit their drafts to the LAP team early on. Donziger wanted control over the consultants' reports from their inception. He did not want to risk waiting until their work was "final" and ready to be included in the report to discover that it ultimately was not "useful" to the LAPs.

D. Donziger Attempts to Deceive Judge Sand About Cabrera's Independence

During this period, a case entitled Republic of Ecuador v. ChevronTexaco Corp.425 was pending in this Court before Honorable Leonard B. Sand. The details of that case are not particularly germane here. One, however, is significant because it provides further evidence of Donziger's (1) awareness that the LAPs' control over Cabrera and their extensive participation in the activities with which he was charged, as a supposedly independent expert, were wrongful, and (2) determination to maintain the false appearance that Cabrera was independent when he most certainly was not.
In mid-September 2007, the ROE and PetroEcuador were due to submit supplemental papers in support of a motion to dismiss Chevron's counterclaims and to renew their own motion for summary judgment. Donziger had been given by the ROE's lawyers a draft of a declaration proposed for signature by Mark Quarles and submission to Judge Sand. Quarles was one of the outside consultants hired by the LAPs to, among other things, work on the global expert report supposedly done by Cabrera. Paragraph 5 subpart 3 of the draft read as follows:

"3. In the event Chevron or the Plaintiffs had been allowed to participate in developing Cabrera's sampling strategy and selection of sites/methods, a degree of biasness [sic] would have been introduced into the sampling plan. Given that Chevron and the Plaintiff were not involved in the workplan preparation, Cabrera's plan should represent no bias."426

On the evening of September 16, 2007, Donziger emailed the draft declaration to Quarles with Donziger's comments and requested Quarles to revise the declaration accordingly.427 Donziger's proposal with respect to paragraph 5, subpart 3, was as follows (with the original draft in normal type and Donziger's comments and requested changes in boldface):

"3. [I would delete para in favor of the following language, if true: Mr. Cabrera has at all times acted independently from both the plaintiffs and the defendant. At no time has Mr. Cabrera entertained suggestions or even met with plaintiffs or their representatives regarding his current work plan.

[In the event Chevron or the Plaintiffs had been allowed to participate in developing Cabrera's sampling strategy and selection of sites/methods, a degree of biasness would have been introduced into the sampling plan. Given that Chevron and the Plaintiff were not involved in the workplan preparation, Cabrera's plan should represent no bias. –would delete para]"428

The foregoing demonstrates that Donziger did not want Quarles to say that participation by either side in Cabrera's sampling strategy or site or method selection would have introduced bias into the process. So he suggested to Quarles that he assert, "if true," that Cabrera neither had entertained suggestions from nor even met with the LAPs regarding his work plan. But Donziger by this time knew that the statements he proposed that Quarles make in his declaration would have been false. Among other things, Donziger had been at the March 3, 2007 meeting with Cabrera and others at which the LAPs laid out the plan they had prepared. Donziger knew also that the LAPs controlled Cabrera's site selections and that Cabrera in all other respects was "totally playing ball" with the LAPs. His inclusion of the words "if true" were nothing more than a misguided attempt to cover himself, should the blatant inaccuracy of the declaration itself ever be discovered, by permitting him to assert that he had relied on Quarles and that the falsity of the declaration had not been Donziger's fault.
The subparagraph that Donziger wanted changed was altered before the Quarles declaration was filed on the following day, September 17, 2007. The final version (which, with renumbering of certain paragraphs, appeared as subparagraph 1 of paragraph 7) was this:

"1. Mr. Cabrera and his team have acted independently from both the plaintiffs and the defendant at the three (3) Phase II inspections that were witnessed on September 6 - 7, 2007. In fact, armed guards were present to accompany Cabrera and his team and to prevent plaintiff and defendant personnel from interfering with the execution of the sampling plan."429

Thus, Quarles was not prepared to go as far as Donziger wished, either because he knew that Donziger's assertions were false or because he knew that he lacked personal knowledge sufficient to justify him in saying what Donziger proposed.

In any case, the Quarles declaration as filed was intended by Donziger to convey the idea that Cabrera was working independently of the plaintiffs. It did so to some extent, though not to the degree Donziger wished. Even its limited message was inaccurate, and Donziger knew it. In fact, Quarles testified that if he had known that the LAPs had drafted Cabrera's work plan and that Cabrera had worked directly with the plaintiffs, he would not have signed even the modified declaration.430

E. Stratus Secretly Writes Most of the Report

Ann Maest was a significant figure in the ensuing events. She first met Donziger and the LAP team in 2006, and eventually suggested that Donziger speak to Stratus' leadership to discuss retaining the firm in connection with the Cabrera Report.431 Donziger then met with Stratus' president, Josh Lipton, Maest, Stratus' executive vice president and chief financial officer Douglas Beltman, and other Stratus personnel in Boulder, Colorado in April 2007.432 Donziger explained the history of the Lago Agrio litigation and the status of the evidentiary phase of the case.433 He explained also what he envisioned Stratus' role would be.434 He said that he needed Stratus' help preparing the damages claim and explained that, while the LAP team had already done some testing in the field and had produced a tentative remediation plan, it was "spotty" and needed "to be significantly beefed up."435
Stratus entered into a retention agreement with Kohn on August 20, 2007.436 The agreement specified that Stratus would "provide regular updates on the progress of our work with Mr. Steven Donziger via phone or email."437 Doug Beltman was identified as the Stratus project manager and officer-in-charge of the firm's "Ecuador Project."438
Throughout the rest of 2007 and early 2008, Beltman, Maest, and others at Stratus consulted with Donziger and worked on preparing the damages assessment.439 Donziger and Stratus personnel exchanged hundreds of emails regarding draft outlines of the Cabrera Report as well as schedules for the drafting, review, analysis, translation, and completion of the annexes.440 But it is clear that Donziger had the final word on every annex and every piece of the report441 – even in arriving at the actual damages figures.442
Based on data given to them by Donziger and the LAP team, their visits to Ecuador, and their own analyses, Beltman, Maest and their team at Stratus wrote the bulk of the Cabrera Report. As Donziger later admitted, much later, after Stratus had come clean about its involvement, it was "the general idea" "that Stratus would draft the report in a form that it could be submitted directly to the Ecuadorian court by Mr. Cabrera."443 In January 2008, Beltman sent a first draft of an outline of the Cabrera Report to Donziger and Maest for their comments.444 In February 2008 – six weeks before Cabrera's report was to be filed – Maest and Beltman traveled to Ecuador to meet with Cabrera, Donziger, and other members of the LAPs' team.445 Beltman wrote to the Stratus team in Boulder that

"The project is at a key point right now. We have to write, over the next 2 to 3 weeks, probably the single most important technical document for the case. The document will pull together all of the work over the last 15 or so years on the case and make recommendations for the court to consider in making its judgment. We (the case attorneys, the case team in Quito, and Stratus) have put together a very ambitious outline for this report. The people in the Quito office are working on some parts, and we're working on others."446

The report to which he referred, of course, was the one that Cabrera would submit to the Lago Agrio court. At Donziger's direction, Stratus wrote its portions in the first person as though they were written by Cabrera.447 Beltman emailed that draft to Donziger on February 27, 2008,448 and continued to work on it through March.449 Other members of the Stratus team worked at Beltman's direction and drafted portions of the annexes that would accompany Cabrera's report,450 often collaborating with members of the LAPs' Ecuadorian team in doing so.451 All of the portions of the report that Stratus prepared were in English, were written in Cabrera's voice, and later were translated into Spanish for submission to the court.452
Beltman, Maest, and others at Stratus continued to provide comments on and material for the Summary Report and the annexes to Donziger and the LAP team up to March 30, 2008, two days before it was to be filed.453 On that day, Beltman provided comments to Donziger on a draft damages table to be used in the Summary Report.454 The table set the total estimated damages at $16.3 billion.455
The last draft of the Cabrera Report was saved on the morning of March 30, 2008.456 Beltman, who was in Ecuador at the time, later recalled seeing the Report and annexes "boxed and packed up in the offices of the plaintiffs' lawyers in Ecuador ... the day before the report was filed."457 On April 1, 2008, Donziger downloaded the final version of the report from a secret email account Fajardo had created for him.458
Later that day, Cabrera – accompanied by the LAPs, their supporters, and members of the press459 – walked into the Lago Agrio court and filed the report he claimed to have written.460 It consisted of an executive summary and 21 annexes and set the amount of damages at $16.3 billion.461 It stated that "[t]his report was prepared by the Expert Richard Stalin Cabrera Vega for purposes of providing professional technical assistance to the Nueva Loja Superior Court of Justice ... ."462
We now know, and Donziger eventually admitted,463 that the Cabrera Report was not written by Cabrera. It was written almost entirely by Stratus and others working at the direction of Stratus and Donziger. Indeed, all of the damage amounts in the Cabrera Report came verbatim from Stratus' drafts.464 And the annexes drafted by Stratus or its subcontractors were falsely attributed to experts on Cabrera's purportedly independent team, who had been selected by Donziger and the LAP team.465 But, while Donziger reviewed and commented on every aspect of the Cabrera Report and its annexes before they were filed, there is no evidence that Cabrera himself ever did.
Immediately after the Cabrera Report was filed, Donziger, Fajardo, and their team began trumpeting it to the press as the work of an independent, court-appointed expert who had conducted his work with the assistance of an independent team of scientists. The ADF issued a press release on April 2 – which Donziger had prepared before the Cabrera Report was filed – titled "Court Expert Smacks Chevron with Up To $16 billion in Damages for Polluting Indigenous Lands in Amazon."466 Another release stated that "an independent expert has proposed that Chevron pay a minimum of $7 billion and up to $16 billion ... . Cabrera, the court appointee who is a respected geologist and environmental consultant, was assisted by a team of technical specialists."467 And another stated that the "expert report [] was prepared with the help of 15 scientists under the supervision of [an] Ecuadorian environmental consultant."468
Two weeks after the report was filed, Fajardo gave a press conference, with Donziger at his side, in which he stated that "what scares Chevron the most, is that this independent, court-appointed expert, who doesn't ... respond to either side of the case has determined that to repair this damage it will be between seven billion and sixteen billion dollars."469 Donziger and the plaintiffs' team falsely stressed Cabrera's "independen[ce]"470 to maximize the leverage on Chevron, although they well knew that the claim of independence was a lie.

F. Stratus Criticizes its Own Report to Enhance the False Image of Cabrera's Independence

Stratus' work was not complete the day the Cabrera Report was filed. Donziger and his team knew that Chevron would respond to the Report and that they would need to defend it. So the day after it was filed, Beltman emailed Donziger with a list of items that Stratus would be working on moving forward. Among the items he listed was to "lin[e] up some experts to review and defend the report," to "prepare [the plaintiffs'] comments on Cabrera report to submit to the court," and to "write report on Cabrera's report as response to Chevron's anticipated report on Cabrera's report."471 Thus, having written the bulk of the Cabrera Report, Stratus began preparing to (1) respond to it on behalf of the LAPs as if the Cabrera Report actually had been written by Cabrera,472 and (2) write a response for Cabrera to issue to anticipated Chevron criticisms of the report that Stratus secretly had written. The plan was to maximize the deception.
The goal for the LAP team's response was to create the impression that it was dissatisfied with the Report and that Cabrera had not gone far enough in assessing damages – notwithstanding the fact that the LAP team, including Stratus, itself had written it. Fajardo wrote to the team the day after the Report was filed:

"Several international agencies have called me. I have told them the following, among other things:

a. According to my cursory reading of the report: I think it is a good report, but it is incomplete. For example, the cost of groundwater clean up is not economically quantified. It does not determine what Texaco should pay for the [e]ffect on the culture of the indigenous peoples, it includes an item for recovery, but there is no item for sanctions. It does not include an estimate of the financial damage caused to the economy of rural residents, and it does not say what should be done so rural residents can recover a decent life.

b. For these reasons, the plaintiffs are waiting for the judge to give us the report, we will analyze it in depth, and we will ask the Expert to complete this report, which does not meet our expectations…

c. The report is a step toward justice, but we are not happy because of what's missing.

... . I think it is good to maintain a uniform line, PLEASE, WE ARE NOT HAPPY…"473

On September 15, 2008, Chevron responded to the Cabrera Report. It challenged its findings, asked that the court strike the Report in its entirety and sought a hearing on errors the Report allegedly contained.474 It questioned also Cabrera's independence and accused Cabrera of working improperly with the LAP team.
The LAPs filed their comments – which had been written by Stratus and other members of the LAP team – on September 16, 2008, the day after Chevron's response was filed.475 Although the comments largely endorsed Cabrera, they noted that he "did not consider more documentary information in his report"476 and claimed that his "omissions" "broadly favor[ed] the interest of [Chevron]."477
This appearance of dissatisfaction with the Cabrera Report was important because it supported the false pretense that Cabrera had acted independently. It also provided a basis upon which Cabrera later could admit errors in his initial report and increase his damages assessment. Indeed, the LAP team already was preparing Cabrera's supplemental filings.
On October 7, 2008, Cabrera wrote to the Court:

"President, I am an honest man with nothing to hide, and my conduct as an expert in this case has been as professional, impartial and objective as possible, as can be seen from my expert report. The fact that neither of the two parties is fully satisfied with my report is clear evidence of my impartiality. I am therefore perfectly willing to appear before the Superior Court of Justice and answer questions or provide whatever is necessary to remove any doubts on the work carried out with a multi-disciplinary and honest team... . I was appointed as expert by the President of the Superior Court of Justice of Nueva Loja; I do not take orders from either of the parties to the lawsuit... . This means, President, that I am not, nor will I be, subject to the views or whims of either of the parties; I act in accordance with rulings by the judge, with the law and with my principles."478

This of course was blatantly false and misleading. Moreover, the assertion that "neither of the two parties is fully satisfied with" the Report corroborates the conclusion that the response to the report that Stratus wrote on the LAPs' behalf – that is, Stratus' criticism of its own work product that had been submitted over Cabrera's name – was intended to feed the false impression that Cabrera had been independent. That was a key part of Donziger's strategy.

In November 2008, Cabrera submitted a supplemental report, in which he purportedly responded to the comments and questions submitted by the LAPs. The supplemental report acknowledged certain omissions and added another $11 billion to the initial damages assessment in the Cabrera Report.479 This report, just like the one it was supplementing, had been written by Stratus and the LAP team.480
Cabrera in February 2009 issued also a response to Chevron's petition. He wrote:

"Your Honor, I don't know how long I will have to keep responding to the same requests from the parties... . [M]y opinion and my clarifications are clear; they are based on field and bibliographic research, statistical analyses, laboratory analyses, and scientific commentaries which are serious, objective, and deeply impartial... . The entire expert investigation procedure was completed by me personally."481

Again, Cabrera did not disclose Stratus' and the LAP team's role in drafting the Cabrera Report and its supplement.482

In the last analysis, the facts concerning the Cabrera Report are crystal clear. The remaining LAP judicial inspections were cancelled, the global expert proposal adopted, and Cabrera appointed in consequence of the coercion of and pressure placed upon Judge Yánez. As Donziger admitted in a Crude outtake, Judge Yánez "never would have done [that] had we not really pushed him."483
Cabrera was not even remotely independent. He was recruited by Donziger. He was paid under the table out of a secret account above and beyond the legitimate court-approved payments. He was promised work on the remediation for life if the LAPs won. The LAPs gave him an office and life insurance, as well as a secretary who was a girlfriend of one of the LAP team members. Stratus and, to some extent others, wrote the overwhelming bulk of his report and his responses to Chevron's objections, as well as to the deceitful comments Stratus had written on its own report. And, in accordance with Donziger's plan to ratchet up the pressure on Chevron with a supposedly independent recommendation that Chevron be hit with a multibillion dollar judgment, he repeatedly lied to the court concerning his independence and his supposed authorship of the report.

G. Donziger's Explanation

The foregoing facts were not seriously disputed at trial. None of Fajardo, Yanza, nor Cabrera – all of whom were centrally involved – submitted to a deposition or testified at trial. Donziger, however, over time has attempted to avoid responsibility in a variety of ways including denial followed by various explanations, justifications and evasions in efforts to portray these events in a benign light. None has merit.
As will be seen, Donziger initially attempted to keep his and his confederates' role in the Cabrera episode and Report secret – even from some of his co-counsel – and vehemently denied any accusation that the LAPs had been involved in drafting the Cabrera Report. By late 2010, however, the truth of the Report's authorship had been revealed to such a degree that Donziger no longer could deny it. So he began to offer a new explanation: Stratus wrote the bulk of the report, he acknowledged, but that was acceptable under Ecuadorian law. He testified at trial: "Although I often have been confused about the issues involved,484 I now believe the process used to create the executive summary of the Cabrera report was fundamentally consistent with Ecuador law, custom and practice as it was occurring in the Aguinda case. Certainly, I never understood that any actions I took or of which I was aware at the time were impermissible in Ecuador."485
Donziger's belated admission and explanation is incomplete and unpersuasive. It does not square with the facts. He does not explain why, for example, he went to such great lengths to keep the firm's involvement secret if he believed Stratus' drafting of the Cabrera Report was permissible. Nor does he (nor can he) square his statement that the "process used to create" the report was consistent with Ecuadorian law, custom and practice with the fact that the Lago Agrio court on multiple occasions instructed Cabrera to conduct his work impartially and independently of the parties.486
Nor is Donziger's explanation consistent with the fact that Cabrera himself – most likely at the direction of the LAP team – wrote to the court several times to deny any coordination with the LAPs. On July 23, 2007, in response to objections by Chevron, Cabrera wrote to the court: "I should clarify that I do not have any relation or agreements with the plaintiff, and it seems to me to be an insult against me that I should be linked with the attorneys of the plaintiffs."487 In October of that year, he wrote again: "I have performed my work with absolute impartiality, honesty, transparency and professionalism. I reject the descriptions or attacks that have been leveled against me alleging that I am biased toward one of the parties, and I also reject the unfounded accusations that I am performing my work surreptitiously. That is completely untrue."488 Later that month, he wrote again: "I can only confirm my commitment to continue my work with absolute impartiality, honesty and transparency."489
Indeed, the LAPs' lawyers themselves, in responding to Chevron's objections in Ecuador concerning Cabrera's independence, wrote that the objections were "based completely on the baseless concept of a 'conspiracy' of which there is no evidence, for this reason the [objection] is completely unfounded and must be rejected as well as sanctioned given that it was lodged for the sole purpose of damaging the Lago Agrio Plaintiffs' case and tarnishing the good name of the distinguished Superior Court of Nueva Loja."490 Donziger does not explain why his legal team dissembled to the court about their arrangement with Cabrera if there was nothing wrong with it.491
The Court rejects Donziger's excuses entirely. He knew at all times that his actions were wrongful and illegal.

VI. The Pressure Campaign Continues – The LAP Team Turns Up the Heat By Pressing for Indictment of Former Texaco Lawyers.

While all this was going on, political events in Ecuador took place that came to have major implications for the Lago Agrio case. The background begins with the fact that the LAPs had been concerned from the very outset of the Lago Agrio case with the possibility that the release signed by the ROE in its final agreement with Texaco would wipe out or prejudice the LAPs' claim. So in 2003, the LAPs began pressing for a criminal prosecution of Texaco lawyers based on alleged fraud in connection with the release and the conclusion of the Texaco-ROE relationship. Their purpose was plain – to force Chevron to settle the lawsuit. As Donziger wrote in his personal notebook on October 4, 2005:

"Idea to pressure the company, get major press in U.S... . and compel the Ec govt to act against the company legally to nullify the remediation contract."492

He emphasized two days later that:

"[t]he key issue is criminal case. Can we get that going? What does it mean? I really want to consolidate control with contract before going down a road that I think could force them to the table for a possible settlement."493

The LAPs initially did not have much success. The Prosecutor General in 2006 issued a report requesting the dismissal of the charges of falsification of documents, stating that he had found no evidence to support them.494 Around the same time, the prosecutor issued a report finding no improper conduct on the part of Pallares and Reis Veiga, the Texaco lawyers, and requested dismissal of the investigation.495 Despite the prosecutors' requests, however, Ecuador's highest court did not terminate the investigations.496
The court's action coincided with a political development in Ecuador – the 2006 election of Rafael Correa as president. President Correa's influence over the judiciary is described elsewhere. For present purposes, however, Donziger explained the fundamental change that the election had worked. The LAPs had "gone basically from a situation where we couldn't get in the door to meet many of these people in these positions [in the government] to one where they're actually asking us to come and asking what they can do... ."497 The LAPs "ha[d] connections" with the new administration, Donziger said. "[T]hey love us and they want to help us ... ."498
In March 2007, President Correa met with Yanza, Ponce, and others and offered "all the endorsement of the National Government to the Assembly of Affected by the oil company Texaco."499 The following day, the media agent for the LAP team who was present for the meeting reported to Donziger that:


In a further note, the LAPs' media agent wrote that President Correa "GAVE US FABULOUS SUPPORT. HE EVEN SAID THAT HE WOULD CALL THE JUDGE."501 Fajardo and Prieto met with ROE officials the following week and asked for assistance in providing President Correa with a basis for reopening the "investigation for ... the responsible parties."502

A month later, President Correa boarded a helicopter with Yanza, Fajardo, and others and toured the Lago Agrio oil fields.503 He issued a press release that same day calling upon the "District Attorney of Ecuador to allow a criminal case to be heard against the Petroecuador officers who approved the" Final Release.504 Donziger, who was in Colorado meeting with Stratus, noticed that President Correa had not mentioned the Texaco lawyers in his statement and reflected that it might be the right moment "to ask for the head of Pérez-Pallares [a Texaco lawyer who had been involved in Texaco's agreements with the ROE] – given what the President said."505 He explained that the President was "basically calling for the heads of government officials that signed off on the remediation, and he's totally with us."506
President Correa took to the radio on April 28, 2007, denouncing the "homeland-selling" lawyers defending Chevron-Texaco, "who for a few dollars are capable of selling souls, homeland, family, etc," and calling for criminal prosecution of anyone who had signed the "shameless" Final Release.507
Fajardo met with President Correa again in June 2007. He reported that the president had informed him that "the current ... Prosecutor General ... is ... a little nervous. Because, since the political forces of the National Congress have changed ... he is afraid of being removed... . So, the President thinks that if we put in a little effort at the Public Prosecutors' office, the Attorney General will yield, and will re-open that investigation into the fraud of ... the contract between Texaco and the Ecuadorian Government."508
Notwithstanding the pressure from the LAPs and President Correa, the Prosecutor General refused to re-open the case. But his refusal cost him dearly. He immediately was removed from office and replaced by Dr. Washington Pesántez – President Correa's college roommate and the district prosecutor who previously had recommended the dismissal of the criminal charges twice before.509 Several months later, however, and following a meeting with Fajardo, Pesántez agreed to reopen the criminal case.510 Fajardo reported to Donziger on March 11, 2008: "I have an appointment with the Prosecutor tomorrow morning, we are insisting that he reopen the criminal investigation against Texaco for the remediation."511 And a few weeks after that, Fajardo wrote to Donziger and members the Ecuadorian LAP team: "We received an email from Esperanza [M]artinez, Alberto Acosta's advisor ... . [i]t says 'on March 25, 2008, the investigation was reopened, with the objective of gathering new and sufficient information, if applicable, filing a criminal action.' ... . This is urgent ... let's get in all possible evidence ... . If things work out, our buddy Ricardo could go to jail ... ."512
While the LAPs were the driving force behind the criminal case, Donziger instructed his team to deny any involvement in it – and to tell the ROE officials to do the same. He wrote to the LAP team in August 2008: "We [must] explain to all the ministers and to Correa that they shouldn't say ANYTHING publicly about the case except that the government has nothing to do with it. That is key."513 And a month later he instructed Fajardo that:

"The party line when the media or anyone else asks about the Prosecutor's case should be: 'The criminal case against Chevron's lawyers and against public officials is not our battle. We are totally focused on winning the civil case, which has nothing to do with what the Prosecutor does... .' DON'T GET IN THE BATTLE – THIS IS VERY IMPORTANT IF WE SAY THAT WE AGREE WITH THE PROSECUTOR'S OFFICE, IT COULD BE USED TO UNDERMINE THE INTERESTS OF OUR CLIENTS IN THE US."514

Donziger perhaps sought to keep the team's involvement secret for an additional reason as well – he realized it could harm him personally. He later wrote to his team in a different context that "[i]n the US, threatening to file a criminal case to get an advantage in a civil case is considered a violation of ethical rules of the profession."515
Over the ensuing years, President Correa's support for the LAP team grew more vocal. And while we jump ahead of developments in the lawsuit itself, it is useful to complete the tale of the attempted criminal prosecution of Texaco lawyers before returning to the civil litigation.
On July 4, 2009, President Correa stated in his weekly presidential radio address that he "really loathe[d] the multinationals ... . Chevron-Texaco would never dare do in the United States what it did in Ecuador."516 A few months later he stated in a radio broadcast: "Of course I want our indigenous friends to win."517
On April 29, 2010, the Prosecutor General's office issued an opinion formally accusing Reis Veiga and Pérez-Pallares of the crime of falsedad ideologica.518 The opinion cited, among other things, the Cabrera Report as evidence of Texaco's contamination.519 Nevertheless, on June 1, 2011, the First Criminal Division of the National Court of Justice in Ecuador formally dismissed the charges.520
President Correa's alliance with the LAPs and animosity toward Chevron did not go away with the dismissal of the criminal charges. He since has publicly attacked Chevron in multiple press releases, television and radio broadcasts, speeches, and presentations throughout the world.521 He has referred to Chevron's attorneys as "homeland-selling lawyers."522 He has labeled Chevron an "enemy of the court."523 After the Judgment was issued, he praised it has an "historic" ruling524 And, as will be seen, President Correa's support for the LAP team has been used to benefit defendants in this case as well.

VII. The Third Phase of the Lago Agrio Case – 2009-2010: Evidence of the Cabrera Fraud Begins to Come Out, Kohn Leaves the Case, New Financing Is Found, and the Case Proceeds in Lago Agrio

Up to this point, this opinion has proceeded more or less chronologically. In 2009, however, important sequences of events, each with its own relevant chronology, began taking place. In order better to explain the facts, this section addresses the important sequences, each in its own chronological order. But it is important to bear in mind that everything that went on during this period – in Ecuador, the United States, and elsewhere – was interrelated.

A. Donziger's Assumption that What Happens in Ecuador, Stays in Ecuador

Relatively early in the Lago Agrio case, Donziger made a critical assumption. He assumed that Chevron never would be able to obtain evidence of what transpired in Ecuador. Evidence that he thought so appears in a June 2006 exchange he had with Atossa Soltani, head of Amazon Watch, that was recorded by the Crude film makers.
On that occasion, Donziger and Yanza – with the cameras recording every word – related to Soltani their plans for creating what they called a private army, ostensibly to protect the court against corruption, a euphemism for surrounding the court with LAP supporters to pressure it to do what they wished. For present purposes, however the important part of the conversation was this exchange between Soltani and Donziger:

"SOLTANI: Do you guys know if anybody can, uh, subpoena these videos? That is a – how do you [unintelligible]

DONZIGER: We don't have the power of subpoena in Ecuador.

SOLTANI: What about U.S.? These guys ... [referring to the film makers]

DONZIGER: An army – it's not an armed army– it's a group of people to watch over the court ...

SOLTANI: I just want you to know – I just want you to know that it's – it's illegal to conspire to break the law."

Following a round of laughter, Donziger responded that "[n]o law's been conspired to be broken."525

Donziger's belief that Chevron would not be able to obtain discovery from Ecuador has proved true to a large extent. Indeed, defendants repeatedly have refused to produce documents from Ecuador, claiming that Ecuadorian law prevents them from doing so. And this in serious respects has impeded Chevron's efforts to litigate its case. But the assumption that what happens in Ecuador, stays in Ecuador fails to the extent that one hires an American film crew to capture many of his litigation-related moves over the course of three years in Ecuador and the United States. And it did not account for the fact that certain of the important players in this case – most notably the Crude film makers, Stratus, and Donziger himself – were U.S. residents and therefore subject to U.S. rules of discovery.
Beginning in 2009, Chevron began obtaining subpoenas under 28 U.S.C. § 1782 to require production of documents and testimony from persons in the United States who had relevant evidence. Thus, while defendants did not produce meaningful discovery from Ecuador, Chevron obtained some evidence of what transpired there.

B. The Release of Crude

The documentary film called Crude was made because Donziger in 2005 recruited film maker Joe Berlinger to portray the LAPs' case against Chevron.526 The film featured Donziger quite prominently. Donziger provided Berlinger, cameraman Mike Bonfiglio, and other crew members expansive access to himself, his team and some of its activities for nearly the next three years.527 The ultimate product, Crude, first was released in January 2009.528
The Crude team's independence from Donziger and the LAPs' lawyers – to the extent there was any at all – was limited.529 For one thing, Donziger recruited the film's main source of funding: his former classmate Russell DeLeon.530 As Donziger wrote: "R[u]ss is funding the case. Russ is funding the movie. And Russ wants to fund more cases and more movies."531 Through his creation and sole ownership of a production company called Crude Investment, Inc., DeLeon contributed approximately 60 percent of the film's total funding.532
Nonetheless, just as they had done with Cabrera, Donziger and his team attempted to create the appearance that the film was independent, while they controlled or influenced its content from behind the scenes. Ironically, this ultimately contributed to the "outing" of their true role with respect to Cabrera.
In December 2008 –one month before Crude first was exhibited – Donziger received a director's cut of the film.533 One scene showed Dr. Carlos Beristain – a member of Cabrera's supposedly neutral staff – working directly with the LAPs and their lawyers, including Donziger. Donziger requested that Berlinger delete the Beristain images and other material.534 Fajardo made the same request to Bonfiglio, emphasizing that if the scene with Beristain were left in the film, "the entire case will simply fall apart on us... . Those two guys [Beristain and Adolfo Maldonado, another supposed neutral] must not appear in the documentary at all! Please, remove them from it. It really isn't much, but it can complicate the entire case for us."535
Berlinger and Bonfiglio initially did not comply, and the film – with the Beristain scene – was shown at a film festival.536 But Fajardo persisted, again imploring Berlinger and Bonfiglio to "remove the images" of Beristain "before the film is shown more widely, and before it is sold to a distribution company."537 He explained that the images were "so serious that we could lose everything ... ."538 Berlinger ultimately removed the Beristain images from the scene, and they were not included in the version released on DVD.539 They were left, however, in the version of the film that streamed over Netflix. Someone at Chevron noticed.
The deleted images seemed to Chevron to confirm its suspicion that Cabrera had been neither neutral nor independent. Parenthetically, the attempt to have them removed evidenced the Donziger and Fajardo's awareness that their relationship with Cabrera and his staff had been improper and, indeed, could prove fatal to the Lago Agrio case. As Fajardo wrote, "we could lose everything."

C. The Section 1782 Proceedings

1. The Section 1782 Action Against Stratus – Denver Counsel Withdraw and Donziger and Fajardo Seek to Obstruct Justice Before the Federal Court

In December 2009, Chevron brought a Section 1782 proceeding against Stratus and related individuals in the District of Colorado.540 It argued that discovery was appropriate because similarities between the Cabrera Report and documents published by people working with Stratus, as well as documents produced by Stratus in a mediation proceeding, suggested that Stratus had written all or at least part of the Cabrera Report.541 It contended that it was entitled to discovery to determine the degree to which that in fact was so as well as the LAPs' involvement in the process.542
Realizing that disclosure of Stratus' documents would reveal the LAP team's relationship with Cabrera, the LAPs' lawyers immediately sought to (1) prevent Chevron from obtaining discovery from Stratus, and (2) minimize the effects of any discovery that it might obtain.

a. Donziger Retains U.S. Counsel to Represent the LAPs in Denver

Shortly after Chevron filed the Colorado Section 1782 action against Stratus, Donziger retained attorneys John McDermott of Denver firm Brownstein Hyatt Faber Schreck, LLP, and Jeffrey Shinder of the New York City-based Constantine Cannon firm as counsel for the LAPs to oppose the Section 1782 petition.543 Donziger assured them that Cabrera had been an "independent" "court-appointed Special Master."544 And Shinder, whom Donziger sought to interest also in the much larger engagement of seeking to enforce the Ecuadorian judgment that the LAPs already expected, testified that:

"the purported independence of the expert [Cabrera] was important in our [i.e., his and Donziger's] conversations. It was of obvious significance. It was of significance to me in evaluating the possibility of being enforcement counsel that the process had integrity and it was the kind of process that would withstand scrutiny should we take that judgment and try to enforce it in an American court, and that the expert was supposedly independent and had done a review of the evidence that had procedural integrity was consequential and something we discussed."545

So, before agreeing to represent the LAPs, Shinder wanted to know if anything Chevron had alleged in its Section 1782 application was true. He met with Donziger in New York City in January 2010 to discuss the proceeding and his potential retention.

Shinder observed that Donziger was "worried, borderline sort of panicked over" the 1782 proceeding.546 Shinder asked him:

"[']Steven, what am I going to find?['] I need access to the facts. [Donziger] denied [Chevron's] allegations. And the facts as he portrayed them to me were that Chevron was trumping up this allegation that Stratus had essentially ghostwritten the Cabrera report by sort of drawing improper inferences from materials that had been properly submitted to Mr. Cabrera through the process in Ecuador, that Cabrera had independently taken in those materials, and independently chose to incorporate them into his report... . I had been told that there was no, quote unquote, relationship between Stratus and Mr. Cabrera. That to the extent there were any similarities between the Cabrera report and work that Stratus had done, that that was the result of Mr. Cabrera's independent judgment ... ."547

A few weeks after their New York meeting, Donziger sent Shinder a list of "responses to allegations that Chevron was making against the Lago Agrio plaintiffs and in, particular, Cabrera and his report."548 The list contained several purported responses to what Donziger called Chevron's "misrepresentations" about the Cabrera Report:549

"Fact: The Amazon Defense Coalition (ADC) [i.e., the ADF] has never made any payments to Dr. Cabrera, or any other court official, beyond what has been required by court under Ecuadorian procedural rules to satisfy the costs of the trial... .

Fact: The Cabrera report is an independent review and assessment of the voluminous evidence in the case. Some small analyses provided by the parties through regular court procedures were adopted by Cabrera after his own independent assessment determined they were technically sound and consistent with the evidence. This process is entirely proper, routine, and consistent with the practice of judges and experts in the United States and other countries... .

Fact: Representatives of the ADC never conducted Dr. Cabrera's field work or prepared samples for him. During the course of Dr. Cabrera's site assessments both sides were allowed to observe his work and suggest places for his team to sample for evidence of contamination... ."550

These assertions were false or misleading. The LAPs did pay Cabrera outside the court process via the ADF secret account.551 Cabrera was not independent. And the LAP team, through Stratus, performed all or much of "his" work. But Shinder did not know any of that at the time. He relied on Donziger's representations that Cabrera had been independent and neutral. He did, however, ask Donziger about the "small analyses" that apparently had been provided to Cabrera by the parties.552 Donziger told him that the LAPs had provided to Cabrera "approximately 3,000-plus pages of documents ... [c]onsistent with the process that had been set up, that the court had approved, both parties had an opportunity to submit materials to Cabrera, and the plaintiffs had properly availed themselves of that opportunity and sent 3,000-plus pages to Cabrera."553 Shinder requested that Donziger provide those materials to him. He never did.554

b. Beltman Discloses the Truth to Shinder – Denver Counsel Withdraw

Nonetheless, relying on Donziger's representations about Cabrera's independence and the propriety of the Report, Shinder entered into a retention agreement with Donziger and the LAPs and set to work.555 He soon set up a day of meetings in Colorado with individual Stratus personnel, the last of which was with Doug Beltman.556 Shinder testified that the interview with Beltman was scheduled to last two hours, and he

"need[ed] every minute of the two hours to interview him. I had sort of accumulated some sense during the day, although it was incomplete, and certainly paled in comparison with what I heard from Mr. Beltman, that Stratus's involvement in the Cabrera report was much deeper and much more problematic than had been characterized to me. I approached the interview in a way, I wanted to maintain a kind of collegial, conversational tone so Mr. Beltman and I could develop a good rapport, which I think was achieved. I asked him a lot of detailed follow-ups, contextual follow-ups on things, a lot of questions about his time in Ecuador, how he met Mr. Cabrera, Stratus's work in terms of what they were doing on the case. And over time and the climax, if you will, it was about an hour and 45 minutes in, it became a very forthcoming interview, and about an hour and 45 minutes in he essentially, quite explicitly ... admitted to having written significant portions of the Cabrera report."557

And once "the truth came out ... there were additional ... lurid details that [Beltman] admitted to, such as Stratus had essentially ... ghostwritten the Cabrera report, then Stratus acting as experts for the plaintiffs wrote comments to their own work, and then wrote the Cabrera report's responses to their own comments."558 Beltman told Shinder that "everything he did was sort of under the instruction and supervision of Mr. Donziger and the lawyers who were handling the case."559

The following day, Shinder spoke with his firm's ethics counsel and one of the managing partners. They "agreed that the firm could not continue to represent Mr. Donziger and the Lago Agrio plaintiffs."560 Shinder immediately called Donziger and informed him that the firm had decided to withdraw.561 He told Donziger that he "thought that to the extent there was an underlying case to be made regarding the environmental damage in Ecuador, that the conduct that I learned had irretrievably wounded it, that it could not rely on the Cabrera report since it was not independent, and I was not his lawyer anymore, so I wasn't going to counsel him on what, if anything, to do to try to fix the situation, but it bothered me, and it still bothers me, that we'll never know whether or not there was a case to be made against Chevron."562
Donziger fully understood the significance of Beltman's revelations given the falsehoods Donziger and his LAP team repeatedly had told about Cabrera and his report. The very next day he wrote a second of his infrequent memos to "file" that purported to describe the recent withdrawals of counsel.563 Indeed, a few weeks later, Donziger drafted a letter to "fellow counsel," which he apparently never sent, in which he acknowledged that:

"The traditional Ecuadorian law perspective (which will be asserted by Chevron) would hold that the level of collaboration between one party and the expert is problematic and improper in that all court-appointed experts in Ecuador should be independent. By working so closely with our local counsel and Stratus, Cabrera violated his duties to the court. Under this perspective, treating Cabrera like a U.S.- style expert as we did [and even that is questionable] will be seen as a violation of local court rules. Whether the court will see these facts as no big deal, improper, some sort of procedural defect that can be corrected, or (as the [Chevron] lawyers will surely assert) a fraud is uncertain. Our side believes we can weather the storm with good advocacy in both the court and the media, in Ecuador and in the U.S. However, it was not lost on us that our local counsel seemed concerned about how the information would land in Ecuador and what impact it would have on the case, and to them personally. They fully expect that Chevron would refer the information to the national prosecutor for action."564

But he once again tried to justify his actions by referring to another perspective that allegedly had been offered by unidentified "local counsel," viz.:

"that given the customs and practices of the Aguinda case, nothing improper happened. The information in the Cabrera report is sound, and is consistent with the high quality of work that Stratus has done as a world class environmental consultancy. As you know, all of the court appointed experts in the judicial inspections have been working closely with the parties in one form or another for several years with full knowledge of the court, and Cabrera was no different. Chevron's experts, including U.S. citizens appointed by the judge at Chevron's request were working with Chevron's counsel. Even though Cabrera was not an expert put forth by the parties, given that the plaintiffs unilaterally sought the global expert report and are paying him, that Chevron boycotted the process, and that the court ordered the parties to turn over materials to Cabrera and otherwise assist him then the role of local counsel and Stratus was well within our rights and custom under the rules and practices of the Aguinda case as they had evolved since its inception almost seven years ago."565

And this indeed was essentially the position that Donziger took at trial, where he argued that his belief in the second "perspective" justified the LAP team's actions with respect to Cabrera. He contended also that, while he was unsure at the time, he now believes "the process used to create the executive summary of the Cabrera report was fundamentally consistent with Ecuador law... ."566

Donziger's attempt to cover himself in his memo by reference to "another perspective," and his comparable position at this trial, are fabrications and unpersuasive even in their own terms. They are fabrications because he received no alternative perspective from local counsel, identified or otherwise.567 They are fabrications because no "customs and practices of the Aguinda case," even if there had been any comparable practices, could have justified what was done with Cabrera. If similar things were done with comparable experts, they all were wrongful; their acceptability did not improve with the volume of misconduct. They are fabrications because there were no comparable practices. Yes, lawyers work with their own experts, both here and probably in Ecuador. That is accepted because everyone knows that party-nominated experts are selected and paid by their clients. That built-in bias is above board and considered in evaluating the testimony of party-paid experts.568 But Cabrera was a court-appointed expert, sworn to be independent and impartial. And Donziger fully understood that Cabrera was neither independent nor impartial - Donziger was personally responsible for making sure that he was neither and for having him paid under the table, above and beyond the open, court-approved payments. Moreover, it was Donziger who decided to ghostwrite the Cabrera Report using his own paid consultants and to hide and misrepresent the facts concerning the Cabrera-Stratus-LAP relationship.
In sum, Donziger knew at every step that what he and the LAP team did with Cabrera was wrong, deceptive, and illegal.

c. Fajardo Submits a Misleading Affidavit in Denver and Elsewhere

The District of Colorado granted Chevron's Section 1782 application for the issuance of a subpoena on March 4, 2010.569 The LAP team, realizing that production by Stratus was extremely likely in view of that ruling, was anxious to "minimize the effects" of the court-ordered production of Stratus' documents.570 In one of those blinding rays of candor that can occur even in clouds of lies, Prieto, one of the LAPs' lawyers in Ecuador, wrote to Donziger, Fajardo, and others on March 30, 2010 as follows:

"Today Pablo [Fajardo] and Luis [Yanza] were kind enough to tell us what was going on in Denver, and the fact that certainly ALL will be made public, including correspondence ... . Apparently this is normal in the U.S. and there is no risk there, but the problem, my friend, is that the effects are potentially devastating in Ecuador (apart from destroying the proceeding, all of us, your attorneys, might go to jail), and we are not willing to minimize our concern and to sit to wait for whatever happens. For us it is NOT acceptable for the correspondence, the e-mails, between Stratus and Juanpa [Sáenz] and myself to be divulged."571

Thus, Prieto recognized that the disclosure of Stratus' documents would reveal what actually had gone on between Cabrera and the LAPs, that this disclosure would "destroy[] the [Lago Agrio] proceeding," and that "all of us, your attorneys, might go to jail." Nor was he alone in this view – Brian Parker, then an intern at the Selva Viva office, was told by other lawyers working on the case that the Cabrera Report "would be worth zilch" and that Donziger "might get in trouble or lose his license."572 So Prieto implored Donziger and Fajardo to prevent the disclosure of the emails between Stratus, Sáenz and himself.573

Prieto had reason to worry. Less than a month after the District of Colorado granted Chevron's Section 1782 application against Stratus, Chevron filed a 1782 application against Berlinger (the "Crude 1782"), seeking the issuance of subpoenas for the outtakes from the Crude film.574 More will be said on the Crude 1782 below. For present purposes it is important to note only that, even with production from Stratus imminent, this filing created the added possibility that Chevron would obtain footage of Cabrera and members of his team working directly with members of the LAP team.
The LAP team quickly developed a plan to "cleanse" the Cabrera Report in Ecuador – that is, to provide an alternative evidentiary basis for the Lago Agrio case against the possibility that the Cabrera Report would be stricken or discredited or be relied upon as evidence of fraud in a foreign court where the LAPs would seek enforcement of any favorable judgment. The idea was to have a new expert or experts repackage, or cleanse, the Cabrera Report. But the LAPs needed to delay the Section 1782 proceeding in Denver as long as possible in order to do that. So, a month after the District of Colorado granted Chevron's Section 1782 petition, the LAPs filed a motion for a protective order with respect to the subpoena. They claimed that the subpoenaed documents and testimony were protected from disclosure by the attorney-client privilege and work product protection.575 The motion later was supported by a declaration of Pablo Fajardo (the "Fajardo Declaration").576
The Fajardo Declaration purported to explain to the Denver court what had happened with the Cabrera Report and that it was acceptable under Ecuadorian law. The LAPs' American lawyers debated what the affidavit should reveal and whether Fajardo should be the one to sign it. When a lawyer from Patton Boggs – a firm that had been brought on by the LAPs in early 2010 and the involvement of which will be discussed more fully below – circulated a draft of the affidavit to Donziger and other lawyers on May 3, 2010, one lawyer from Emery Celli Brinckerhoff & Abady, LLC, which also represented the LAPs, responded:

"I don't quite get the purpose of this affidavit. Pablo mentions one document submission [to Cabrera] but not the other. If he's submitting an affidavit about what happened, why omit the most important part? It seems misleading at best. I just don't see how he can sign an aff. that documents his submissions to Cabrera without mentioning that he sent documents that originated from Stratus which is the one thing the judge is going to want to know ... . [And] I wouldn't emphasize too much that Cabrera was independent and court-appointed. Once [Fajardo] says that in an American court, we'll never be able to back off from it."577

Another LAP American lawyer expressed his concern that Fajardo might "be subject to deposition[…] This is why we struggled with who would sign the declaration. If Steve [Donziger] signs, he will most certainly be deposed. Same for any other counsel in the US. We figured that with [Fajardo], they likely would not slow down the process by deposing him."578
The Fajardo Declaration that ultimately was filed gave an anodyne description of the process by which the judicial inspections had been terminated, the global expert proposal adopted, and Cabrera in particular selected. It stated that "[i]n addition to the information collected from the vast amount of field inspections he performed, Mr. Cabrera was also free to consider materials submitted to him by the parties. Both plaintiffs and Chevron were asked to supply Mr. Cabrera with documents."579 It stated also that "to the extent that Mr. Cabrera put into his report any of the information that [Fajardo] supplied to him, it would be viewable by Chevron or any other member of the public that reviewed Mr. Cabrera's Report."580
The Fajardo Declaration was highly misleading. It failed to mention that Fajardo, with Donziger's approval, had threatened the judge with a misconduct complaint unless the judge agreed to their demands to cancel the LAPs' remaining judicial inspections. And while it acknowledged that the LAPs had "delivered materials to Mr. Cabrera,"581 it did not mention the March 3, 2007 meeting at which the LAPs laid out the plan for Cabrera's Report and indicated, in Cabrera's presence, that the work would be done by them. Nor did it reveal that Stratus and the LAPs' counsel in fact had written most of the Cabrera Report. In other words, it omitted what the Emery Celli lawyer said was "the most important part"—that Fajardo "sent documents that originated from Stratus."582 The declaration similarly neglected to report that the LAPS "chang[ed] the focus of [Cabrera's] data at [their] offices."583 And it, of course, failed to disclose that the LAPs had made secret payments to Cabrera outside the court process.
Notwithstanding the Fajardo Declaration, the District of Colorado denied the LAPs' motion for a protective order and ordered Stratus to turn over its documents.584 Following the ruling, however, the LAP team – including Donziger – brainstormed ways to delay further the production of Stratus' documents and, realizing that production was inevitable, to mitigate its effects. One of the LAPs' American lawyers sent an email to the LAP team emphasizing that "Stratus will be under a court order to produce all materials it gave Cabrera. Stratus will not risk a contempt motion, it will comply. Unless we want the Stratus/Cabrera revelation to come out in CO, which seems like the worst possible place, we need to make our submission in Ecuador and fast."585 Another lawyer responded, "[w]hat about the following? Appeal; move for stay; if we win with [the District of Colorado] great; if we lose, we produce whatever we want (narrow read); [Gibson Dunn] complains and then we move for clarification. If we lose again, we think about another appeal."586 In other words, delay.
The "submission in Ecuador" to which the lawyer referred was a petition the American legal team had been drafting and planned to file –in Fajardo's name –in the Lago Agrio court (the "Fajardo Petition").587 The Fajardo Petition, which Donziger characterized as a "very general and admittedly less than adequate statement,"588 was filed with the Lago Agrio court on June 21, 2010.589 It informed the court that the LAPs had made submissions to Cabrera but did not "confess to having authored specific portions of the report."590 It conceded, however, that the LAPs had given Cabrera "proposed factual findings and economic valuations of the environmental and other damages Texpet's practices and contamination caused."591
It thus went farther than the Fajardo Declaration filed in Denver. But that too was deceptive. There was no disclosure of the fact that Cabrera was handpicked by Donziger because he would cooperate with the LAPs, that the report was planned and written by the LAPs and Stratus, and that Cabrera "play[ed] ball" by simply affixing his name to it, acting all the while under the false pretense – fostered by the LAPs – that the report was Cabrera's independent work.