We’re less than three months away from Manhattan federal judge Lewis Kaplan’s trial to determine whether an Ecuadorean court’s $18 billion judgment against Chevron for contaminating the Lago Agrio region of the rainforest is enforceable in the U.S. In the declaratory judgment proceeding, Chevron’s lawyers at Gibson, Dunn & Crutcher will argue, as they have for the last 18 months, that the Ecuadorean judgment was the result of political and public relations chicanery, much of it committed by the plaintiffs lawyer who spearheaded the Ecuadoreans’ case, Steven Donziger. But according to Donziger’s lawyers at Keker & Van Nest, Judge Kaplan won’t give them or their client a chance to be heard as the declaratory judgment case races to trial.
On Thursday, Keker filed its third motion asking Judge Kaplan to reconsider a May 31 ruling limiting Donziger’s participation in the case. “The exclusion of Donziger from full intervention in this ‘do-over’ trial has reached the point of absurdity,” Keker partner Elliot Peters wrote in the 11-page Donziger filing. “The trial will be about him, and he won’t be there to defend himself against Chevron calumny.”
“This is ironic, in the bitter sense,” Peters told me in an interview Friday. “The U.S. court is denying due process to a litigant in a case in which the U.S. gets to decide whether the court of a different sovereign nation denied due process.”
The controversy over Donziger’s participation arose in May, after Judge Kaplan split Chevron’s 2010 suit against Donziger and several other witnesses into two pieces — a declaratory judgment action to determine the enforceability of the Ecuadorean judgment and racketeering claims against Donziger and the other defendants for their allegedly fraudulent prosecution of the Ecuadorean case. Gibson Dunn then re-filed the declaratory judgment piece of the original case against Donziger as a separate suit, without naming Donziger as a defendant. Judge Kaplan subsequently concluded that Donziger couldn’t intervene in the declaratory judgment action because he wasn’t a party, didn’t have a financial interest in the outcome, and couldn’t repair any damage to his reputation in the separate racketeering case.
The judge granted Donziger’s lawyers the right to cross-examine deposition witnesses testifying directly about his conduct, but said that was all Keker & Van Nest could do. Though Kaplan said he might revisit the ruling, he denied two July reconsideration motions by Keker & Van Nest. The transcript of an August 2 phone conference shows that those two motions hadn’t swayed the judge at all. At the end of the conference, John Keker said, “Your honor, can I say something?” Kaplan replied: “No, Mr. Keker. You’re not in the case for this purpose.You’re being given the courtesy of being conferenced in but the scope of your intervention has been fixed.”