Judge not good enough for lawyers from Ecuadorian class action

Jessica M. Karmasek Aug. 12, 2011, 10:16am


NEW YORK (Legal Newsline) - Lawyers for the Ecuadorian plaintiffs suing Chevron Corp., including lawyer Steven Donziger, filed motions Wednesday alleging that U.S. District Judge Lewis Kaplan is failing to provide a fair trial.

Both motions were filed in the U.S. District Court for the Southern District of New York in Chevron's declaratory judgment trial, which is currently scheduled for Nov. 14.

The first motion, filed by the Ecuadorian plaintiffs, attempts to show how Kaplan's expedited schedule for the trial is not only "unfair to the Ecuadorian plaintiffs but would also not be consistent with procedures compatible with due process," their lawyers wrote.

The court, they argue, has set an unrealistic discovery and trial schedule "which will allow Chevron to put on its pre-packaged set-piece featuring the alleged shenanigans of counsel and a retrial of certain aspects of the underlying case."

The time allowed makes it impossible for the Ecuadorian plaintiffs, "who are not the well-organized 'entity' Chevron has portrayed to the press and the court," to adequately gather their witnesses and evidence.

"The truncated schedule plays right into Chevron's hands as it does not allow the Ecuadorian plaintiffs to develop the evidence they need for trial, not the least of which is evidence of Chevron's own misdeeds in Ecuador, to their great prejudice and against the interests of justice," the plaintiffs' lawyers wrote in the 11-page motion.

The court filing asks that Kaplan continue the trial so the plaintiffs have a "reasonable" amount of time to prepare a proper defense to Chevron's allegations.

The second motion, filed by lawyers for Donziger, who represented the Ecuadorian plaintiffs for the 18-year history of the case, again asks that Kaplan let Donziger fully participate in the November trial.

His lawyers argue in the 11-page filing that Chevron is seeking, with the judge's approval, a "do over" of the trial it lost in Ecuador.

"Chevron's recent fraud-focused expert submissions are of a piece with its strategy from the outset of this litigation. Since day one, Chevron has used isolated snippets from Donziger to create claims that the Ecuadorian judgment is the product of fraud or corruption and to divert attention from the undeniable evidence of environmental catastrophe underlying the Lago Agrio Court's decision," Donziger's lawyers wrote.

"Unless the Court rethinks some of its decisions about who can defend, and how and when that defense should happen, the 'do over' will be a one-sided show trial without any semblance of fairness or due process or concern for the merits."

They also argue that the oil giant is seeking to make Donziger the principal focus of their trial where he has no right to defend himself.

"The exclusion of Donziger from full intervention in this 'do-over' trial has reached the point of absurdity. The trial will be about him, and he won't be there to defend himself against Chevron calumny," his lawyers wrote.

In February, after an eight-year trial, an Ecuadorian court found Chevron liable for dumping billions of gallons of toxic waste into the Amazon, causing an outbreak of disease and decimating indigenous groups. Damages were found to be up to $18 billion.

Chevron, which has vowed never to pay the judgment, filed a racketeering lawsuit, alleging that the Ecuador suit has been used to threaten the oil company, mislead U.S. government officials, and harass and intimidate its employees -- all to extort a financial settlement from the company.

In March, Kaplan issued an injunction blocking worldwide enforcement of the judgment. That ruling is under an expedited appeal before the Second Circuit Court of Appeals in New York, with arguments set for September.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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