In 1993 Oil giant Texaco, now Chevron, mined the jungles of Ecuador for oil. Then, after depleting the rain forest, the story goes, it left behind tons of refuse, that poisoned water supplies and sickened the residents. Fighting on behalf of the Ecuadorians was lawyer Steven Donziger. But the story wasn’t as simple as it seemed. Bob speaks to Paul M. Barrett, who covers how Donziger may have strayed from the path of good intentions to his current pass in his new book, "Law of the Jungle."
BOB: News stories seldom have clear cut heroes and villains. So when a convincing good guy, bad guy story does come along, it's hard not to indulge in its dramatic simplicity. One such emerged from the Ecuadorian jungle in 1993. Oil giant Texaco, now Chevron, mined the native land for oil, generating oceans of profit. Then, after depleting the rain forest, the story goes, it left behind tons of refuse, and pits of flowing by-products that poisoned water supplies and sickened the residents. The media went wild for this tale of corporate greed and negligence.. Here’s a 60 Minutes report from 2009.
The Sequoias took us to their community hut where we saw the driving force behind the suit. Steven Donziger -- a New York Lawyer far from home...Donziger: "These are people who never believed they had a right to sue an American company in their own court system."
BOB: Steven Donziger, a charismatic, Harvard-educated lawyer led the charge against Chevron, first by bringing suit against Texaco in 1993, and finally by winning a 19 billion dollar judgement against Chevron in an Ecuadorian Court. However, that happy ending quickly unraveled. This March, a U.S. district court in New York found that Donziger had forged documents, coerced judges, and fabricated evidence. Last week, a federal appeals court in Virginia ruled that Donziger’s lawyers must reveal more confidential documents which could hold new information about wrongdoing. How Donziger may have strayed from the path of good intentions to his current predicament is the subject of Paul M. Barrett’s new book, "Law of the Jungle." Barrett says Donziger’s most effective strategy was to offer the media a morality play.
BARRETT: Donziger at the outset would use imagery and classic themes, the little guy versus the big guy, David vs. Goliath. That became very appealing to the media.
BOB: Yeah, from a PR point of view it was like shooting fish in a toxic sludge pit. Big bad oil company. Benighted indigenous people and...
BARRETT: The knight on the white horse who is going to use the rule of law to speak truth to power to hold the big company accountable on behalf of the little people.
BOB: Tell who all got involved in this case and tell me to what degree they were kind of suckered.
BARRETT: Well he certainly was extremely deft at bringing world class celebrities into the pictures. He began with Bianca Jagger. The ex-wife of Mick Jagger of The Rolling Stones - who's a very well known human rights advocate. He was successful in charming very prominent journalists like William Langeweische for Vanity Fair in 2007 that echoed all of themes that Donziger wanted echoed in terms of evil corporate power. That Vanity Fair piece in turn very much impressed Trudie Styler the movie producer and wife of Sting. Trudie Styler then in turn became basically the star of a documentary film done by Joe Berlinger a very prominent documentary film maker. The film was called "Crude." It was released in 2009, shown at Sundance. New York Times gave it rave reviews. There's a scene early on in the movie that's vintage Donziger where Donziger is ranting and raving at one of the oil company lawyers shouting at him over and over again calling him an 'autocorrupto.' (?) Chevron, meanwhile, was investigating him personally. Trying to turn the case into his conduct and a question of his ethics and Chevron went to the courts in the United States and said 'toward that end, we'd like to see basically the field tapes from this documentary.' And they got a sympathetic Federal Court in New York to rule that they could have hundreds of hours of raw tape. And you could hear everything they said and did while working in Ecuador about how the facts don't really matter all that matters is power and scaring the judges...
CLIP: The only language that I believe this judge is going to understand is one of pressure, intimidation and humiliation and that's what we're doing today. We're going to let him know what time it is.
BARRETT: Donziger had made the fatal mistake for a lawyer of forgetting that he was not the subject of a movie and he had allowed the documentarians to follow him around and what they recorded was very damning.
BOB: He asserted a journalistic privilege that the outtakes were nobody else's business. But the court said, 'Oh no. No no. They are our business because this was not in the end, journalism. It was propaganda. You had too much influence on the production of this film for you to claim that journalism has taken place.
BARRETT: That's exactly right.
BOB: With his self indicting statements, Chevron lawyers did what?
BARRETT: They were able to establish that Donziger had relationships with supposed neutral court officials. Chevron used that evidence on film as leverage to persuade the judge to give them further access to all of Donziger's personal files. His email. The files on his computer hard drive. And in there was really the huge motherlode of evidence that he had behaved not so much as a litigator, as something closer to a extortionist.
BOB: That the plaintiffs had essentially ghost written the ostensibly independent environmental report outlining the scope of the damages to the Ecudorian jungle.
BARRETT: THat's right.
BOB: And the suggestion that 18 billion dollars would be a satisfactory award was crafted entirely by the plaintiffs.
BARRETT: This was done by a US-based consulting firm PHDs that's all fine. But if they are going to provide the court with information, they're supposed to do it in public filings. That the other side can respond to . But here they did it secretly and more than that - once they were caught the experts who Donziger was relying on disavowed their scientific work. They said 'We're ashamed of what we did." Chevron had sued them too. And they walked away from it. On top of all of that Chevron was able to put together evidence that persuaded the judge in New York that Donziger's team had ghost written not just this report on damages, but had ghost written portions of the final judgement itself. The point is not that this shows that wasn't pollution. There was pollution. The point was that the processes of the law that were supposed to hold Chevron accountable had been corrupted and therefore it made it very difficult to take the pollution case seriously.
BOB: There are, however, judgements in this case. One was from the Ecudorian court in spite of all of these legal machinations, against Chevron. And the other was in New York against Donziger himself. Tell me where these judgements stand.
BARRETT: As far as Ecuador is concerned, Donziger on behalf of his clients has a legit verdict. The actual damage amount has been reduced in subsequent months. It's now worth only about $9.5 billion. That still ain't chump change. The problem is that Chevron said, 'This is a fraudulent verdict we're not going to pay a dime and Chevron has no assets in Ecudor. So Ecudor is not able in and of itself to force Chevron to pay anything. Meanwhile, up in New York, Chevron succeeded this past March in winning a verdict under the American Racketeering Law finding that Donziger's lawsuit may once have been legitimate but it evolved over time into a corporate shakedown. And the judge said that as punishment for that neither Donziger nor his clients can profit from this fraudulent judgement.
BOB: Meantime, decades later these sludge pools remain in the Ecudorian jungle. Did the ruling that permitted discovery into the outtakes of the documentary 'Crude' - does that affect journalists in other cases from this point forward.
BARRETT: Absolutely. That's a precedent that will potentially haunt especially future documentary filmmakers. It's simply not that unusual for an activist to have conversations with the filmmaker and basically try to woo the filmmakers into doing a film. And now that environment, the courts have said, is suspect.
BOB: How would you characterize the press's role? Was there misfeasance? Was there malfeasance? Carelessness, what?
BARRETT: I think the problem here is not that people set out to tell the wrong story. They set out to tell the story that they thought they already knew. This case has created all kinds of precedents, not just in the journalists realm but also in the legal realm that are actually going to hurt the causes that Donzinger and his colleagues purport to fight for. This is going to make it more difficult to bring in these kinds of ambitious trans-national human rights cases in the fugure.
BOB: Paul, thank you.
BARRETT: My great pleasure. Thanks for having me.
BOB: Paul M Barrett is an assistant managing editor and senior writer at Bloomberg Businessweek. His new book is titled “Law of the Jungle.”