How a US lawyer’s attempt to make Chevron pay for pollution landed him a jail sentence
The case is seen as an example of using litigation means to undermine rights advocacy and civil society action.
Steven Donziger, a United States-based lawyer known for a landmark lawsuit against corporate pollution in Ecuador, was sentenced to six months in prison on Friday, October 1, after being held guilty of contempt charges. Donziger was already under a court-imposed detention for 787 days, on the day of his sentencing, as he fought a skewed legal battle.
The sentencing handed by senior district judge Loretta Preska of US Southern District Court of New York was on a 2018 contempt of court case raised by another district judge, Lewis A. Kaplan from the same court. On June 26, this year, he was held guilty of the six charges of contempt raised by judge Kaplan.
The guilty verdict was arrived at after multiple delays and a trial without jury. For much of the litigation process, Donziger was also not allowed a legal representation of his choice. Other irregularities galore, the prosecution was led by a private firm and not a public prosecutor, which is the norm for most such cases.
The sentence of six months in prison, in addition to the nearly two years of enforced confinement and surveillance by the court, would also stand to be among the harshest punishments for the misdemeanor charges that Donziger faced.
Donziger’s detention and now sentencing of a lawyer has attracted condemnation from not only his lawyers, but also rights groups and even an expert panel from the United Nations, that recently found his detention to be in violation of international law.
Disregarding the widespread criticisms over the conduct of the case, Judge Preska went ahead with the maximum punishment applicable stating that “only the proverbial two-by-four between the eyes will instill in him any respect for the law.”
Last week’s sentencing is the culmination of an unprecedented legal attack on Donziger since 2011, in response to his international attempts to get Chevron Corporation to pay the USD 9.5 billion in damages imposed on it by an Ecuadorian court earlier that year, for pollution.
Responding to the sentencing, Donziger stood his ground. “I have always said this is a retaliation case designed to punish me for my successful advocacy on behalf of indigenous groups in Ecuador, against Chevron,” he said over a video posted on social media platforms.
So how did a case of pollution in Ecuador end up in a contempt charge against Donziger?
Chevron and Lago Agrio
In 1993, thousands of inhabitants of the Ecuadorian oil-town of Lago Agrio filed a class action lawsuit in a New York court against Texaco Petroleum Company (TexPet), which was later taken over by Chevron in 2001, for its drilling operations near them since the 1960s and its impact on the local community. The residents, numbering over 30,000 indigenous Amazonians, alleged large-scale pollution of the lands and rivers.
The case was dismissed in the US in 2001 based on Chevron’s argument that the case was filed in an improper venue, and later the litigants were blocked from suing Chevron in the US.
In 2003, the litigants later moved a local court in Ecuador, which led to a court-appointed investigation that revealed apart from major polluting activities, like dumping brackish saline produced water into open pits and primary water sources of the inhabitants, but also causing massive deforestation, loss of livelihoods and cultural destruction to the tribes.
In a 2006 report, Judith Kimerling, a professor of environmental law at the City University of New York, cited local narratives and government findings of how mining activities and deforestation by Texaco led to displacement of several vulnerable tribes, which eventually led to the extinction of groups like Teteté in the 1960s and the loss of political sovereignty of the Huaorani people.
Finally in 2011, the court delivered a landmark verdict holding Chevron guilty and ordering USD 18 billion in damages, based on estimates given by the court investigators. Chevron appealed against the verdict, and in 2013 the Ecuadorian supreme court upheld it, but reduced the damages to USD 9.5 billion.
Chevron’s legal assault
Ever since the 2011 verdict in Ecuador, Chevron refused to pay the damages, rejected the verdict and even questioned the legitimacy of the judicial process, claimed treaty violations and alleged misconduct by Donziger who represented the Lago Agrio residents.
Shortly after the verdict, Chevron filed a lawsuit against Donziger under the Racketeer Influenced and Corrupt Organizations Act (RICO) in 2011, with Judge Kaplan presiding over it. At the same time it also filed lawsuits against Ecuador for its attempts to collect the verdict against Chevron’s assets in other countries like Argentina, Brazil, Canada and the US.
The oil giant also filed a successful lawsuit at the Permanent Court of Arbitration in The Hague, Netherlands, arguing the damages imposed on it violated a 1997 bilateral investment treaty between Ecuador and the US, protecting it from liabilities and damages.
In the lawsuit against Donziger, Chevron constructed an entire lawsuit based on questionable testimony by a former Ecuadorian judge Alberto Guerra. Guerra was brought into the US by Chevron in 2013, who also paid for his legal expenses for the immigration of him and his family, and paid USD 12,000 every month, supposedly for housing and living expenses.
Guerra’s testimony claimed that Donziger had arranged for him to ghostwrite the Ecuadorian verdict against Chevron, and bribed him with a share of USD 500,000 that he collected from litigants.
Based solely on Guerra’s testimony, in 2014, Judge Kaplan ruled that Ecuador’s judgement was flawed and held Donziger guilty of bribery, racketeering, coercion, and money laundering, among others. Donziger was also ordered to pay Chevron USD 800,000 on RICO claims, while also preventing him from selling his shares in the Ecuadorian judgement to investors (which was later ruled to be enforceable by a federal appeals court).
An irregular contempt lawsuit
In 2015, the Ecuadorian government revealed Guerra admitted to lying under oath in the RICO case before an international tribunal and of having no evidence of bribery against Donziger. But despite these facts, Donziger was debarred from practicing, shortly after the 2014 judgement, and lost an appeal in 2016.
Later, as part of the appeals process, Judge Kaplan had ordered him to hand over his electronic devices, including his phones and computers, to Chevron, which Donziger appealed against on the grounds of lawyer-client privileges. Even as the appeals request was pending, Kaplan went ahead to push for a prosecution on contempt against Donziger.
As the district attorney for the court, ruled out prosecuting Donziger of contempt charges, Kaplan took an unprecedented move by appointing a private law firm Seward & Kissel in 2019 to prosecute him. Kaplan also went ahead of choosing Judge Preska, instead of allowing for the case to be assigned randomly as per the rules of the court.
Later, The Intercept reported that the law firm prosecuting Donziger worked closely with Chevron until 2018, which was not disclosed by either Kaplan or the firm. Despite raising the charge of a conflict of interest, Judge Preska proved useful to the prosecution by allowing them to continue.
Preska also proceeded the case with significant harshness, posting a bail bond of USD 800,000 for misdemeanor charges, the highest ever in US history, and indefinitely detaining him under house arrest under electronic tracking. The court had also disqualified two lawyers from Donziger’s legal team, and at one point even imposed a lawyer who has an acrimonious past with him over payment disputes.
With the onset of the coronavirus pandemic, the trial was delayed several times, before being held in-person and with almost no outside observers in May 2021. Preska denied Donziger’s request for a livestreamed or televised trial and also for a jury.
“Judicial Harassment” manifested
The case received widespread condemnation and criticisms by rights groups in the US and around the world. A group of 29 Nobel laureates signed an open letter in 2020, deeming the case against Donziger to be one “of the most egregious cases of judicial harassment and defamation.”
The case is seen as an example of using litigation means to undermine rights advocacy and civil society action. Donziger himself had alleged that over the course of the Chevron litigation against him that the company spent more than USD 2 billion between 1993, when the first case was raised against it, and 2014 when Kaplan disqualified the Ecuadorian ruling. The company, itself reportedly estimated close to USD 1 billion spent on the litigation
On September 30, the eve of his sentencing, a team of international jurists from the United Nations’ Working Group on Arbitrary Detention released their report on Donziger’s prosecution and detention, finding clear violations of binding international laws that the US is signatory to, and also expressing that the group was “appalled by uncontested allegations in this case”.
“The charges against and detention of Mr. Donziger appears to be (in) retaliation for his work as a legal representative of indigenous communities, as he refused to disclose confidential correspondence with his clients in a very high profile case against multi-national business enterprise,” the UN group’s declaration stated.
Calling for his release the group also called for the US government to launch an independent investigation in the case against Donziger and that both Kaplan and Preska displayed a “staggering lack of objectivity and impartiality.” Even though both Donziger and his lawyers insisted that judge Preska take the report into account, it was eventually disregarded.
Despite overwhelming support from civil society groups and public figures, Donziger’s future remains precarious. Even though he will be appealing against the ruling in the higher courts, judge Preska denied him a bail pending the appeal. He will continue to remain in house arrest, until the appeals court ruled for his release.
In the meanwhile his lawyers had already stated that they shall approach the US Department of Justice appealing for his release. On Friday, a massive rally was also organized outside the courthouse in Manhattan, New York, by supporters of Donziger.
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