Oil litigation has greasy turns

By Joe Nocera

Saturday, Sept. 27, 2014 | 2:02 a.m.

“I am the target of what is probably the most well-funded corporate retaliation campaign in U.S. history,” Steven Donziger emailed me early Monday afternoon.

Donziger, 53, is the sort of attorney they make movies about. Tall, handsome and charismatic, he has spent the bulk of his legal career on one case: trying to get Chevron to clean up an environmental mess he says its predecessor left behind in Ecuador’s rain forest. His clients are poor Ecuadorians who have allegedly been living with the land’s degradation ever since Texaco pulled out of the country in the early 1990s. Chevron bought Texaco — and acquired its legal liabilities — in 2001.

He has worked tirelessly on the case for more than two decades, finally gaining a $19 billion judgment against the company in 2011 in an Ecuadorian court. Though a higher court later cut the damages in half, it would still seem to be a fantastic victory by David over Goliath.

But there is another, darker narrative about Donziger, told most recently by Paul Barrett, a Bloomberg Businessweek writer whose book about the Chevron-Ecuador case, “Law of the Jungle,” was published this week. According to Barrett, Donziger may have begun his quest with the best of intentions, but somewhere along the way, he lost his bearings.

To get the judgment he wanted from the Ecuadorian courts, Donziger allegedly committed multiple acts of fraud, including having members of his team ghostwrite a crucial report for the court that was supposed to be authored by an independent expert. Donziger has responded by accusing Barrett of working hand-in-glove with Chevron, in effect being part of the “retaliation campaign.”

I know Donziger slightly. I’ve always liked him. But I have to say I find Barrett’s account far more persuasive than Donziger’s. Without question, Chevron has gone after him. But Donziger is the one who supplied the ammunition.

One reason Barrett’s account is credible is he began his reporting with a Bloomberg Businessweek cover story in 2011 that was decidedly pro-Donziger. But once he got the book contract and began digging deeper into the case, he started to have his doubts about Donziger and the plaintiffs’ team.

How could the plaintiffs know for sure Chevron was at fault when the Ecuadorian government’s oil company had continued to extract oil from the rain forest for years after Texaco left? Where was the epidemiology that connected the oil waste to disease? What about the ghostwritten expert’s report? And the ex parte communications with judges? And even an alleged attempt to bribe the judge to rule in the plaintiffs’ favor?

Barrett isn’t the only one to come to view Donziger as a rogue lawyer willing to do virtually anything to win. So has Roger Parloff, Fortune magazine’s legal writer, who has covered the case for years. And so has the highly respected human rights lawyer — and Notre Dame law professor — Doug Cassel.

With every critic, Donziger and his allies have replied the same way: The critics have been corrupted by the evil Chevron. But there is one critic who is not so easy to brush aside: federal judge Lewis Kaplan of the Southern District of New York. Chevron brought a civil RICO case against Donziger, claiming his actions had so tainted any Ecuadorian verdict that it should be unenforceable in the United States.

Because Chevron has no assets in Ecuador, the judgment would have to be enforced in countries such as the United States, where it did have assets.

After a six-week trial, Kaplan essentially agreed, writing an astonishing 485-page decision in which he concluded Donziger and his team had “corrupted” the trial. Donziger described Kaplan’s decision as “deeply flawed.”

Donziger had once thought his case against Chevron would show public-interest lawyers how to bring big, complex foreign cases against multinational corporations. Instead, it is more likely to show corporations there is more merit in fighting back than settling.

What’s worse is that the Ecuadorians who live in the affected areas have still not seen any help, 20 years later.

A lawyer with a more realistic view of the case might have been able to get a reasonable settlement early on. A lawyer who had played by the rules might have even won a judgment that would now be enforceable in a U.S. court.

“Donziger disserved his clients and his cause” by the way he conducted himself during the trial, Cassel now says.

When I spoke to Donziger on Monday, he conceded he may have made some mistakes, but nothing as egregious as Chevron’s “horrendous actions in Ecuador.” He told me he was proud of the way he had acted and that he still stands by the ghostwritten expert’s report.

“I am a big boy,” Donziger said. “I can take responsibility for what I did or did not do.”

But that’s just the problem. He can’t. And he hasn’t.

Joe Nocera is a columnist for The New York Times.