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Secret Witnesses in Chevron Case Raise Concerns

October 23, 2013

Chevron’s suit against Steven Donziger has prompted Chevron to seek out two Ecuadorian witnesses who will testify in a private courtroom (closed to both the public and Steven Donziger); a measure to protect the witnesses. According to the proposal by Chevron’s attorneys at Gibson, Dunn & Crutcher, Dozinger’s attorney can participate in the hearing but is not allowed to reveal the witnesses’ identities to Donziger. Nothing has been set in stone, considering U.S. District Judge Lewis Kaplan has not yet ruled on the proposal, which could in fact change.

At least one of the witnesses would offer testimony that, if believed, would corroborate Chevron’s claim that Donziger bribed an Ecuadorian judge to allow Donziger’s colleagues to ghostwrite the entire 188-page, $19 billion environmental judgment against the oil company that was handed down in Lago Agrio, Ecuador, in February 2011, according to a memorandum filed last May by Chevron’s lead lawyer, Randy Mastro.

Although Judge Kaplan has previously ruled that he believes these witnesses have reason to be fearful (of both economic and physical retribution since they still live in Ecuador and President Correa has been an outspoken proponent of Donziger’s case), the idea of a closed courtroom “would raise sensitive constitutional questions under the Due Process Clause”. Donziger’s attorney has not agreed to this proposal stating that Donziger knows most about this case and therefore excluding him would seriously affect their ability to do their job. In addition, Donziger’s attorney is trying to argue that although the case brought against their client is civil,” it is in practice quasi-criminal” and is therefore subject to the Sixth Amendment “which guarantees defendants the right “to be confronted with the witnesses against him.”

On the other hand, Chevron is arguing that Donziger only won the judgment “by means of extortion, bribery, mail and wire fraud, witness tampering, obstruction of justice, and money laundering.” This case was brought on by Donziger in 2003 that asked for damages for contamination that he claims was left behind by Texaco’s drilling from 1964 to 1990 (Chevron acquired Texaco in 2001).

The risk to these witnesses seems to be increasing as President Correa has “waged an aggressive campaign of denouncing Ecuadorian attorneys and witnesses who cooperate with Chevron’s case against Donziger, branding them ‘traitors,’ ‘criminals,’ ‘collaborators,’ and ‘enem[ies] of the country,’ and warning that ‘We will not let this go unpunished.’” There is even a website that is dedicated to finding and exposing anyone who has helped Chevron in any way, including experts, attorneys, judges, witnesses, law and public officials, and journalists.

Source: CNN, Fortune and Money

We want to hear from you…

How will Judge Kaplan rule? What is your opinion, should these witnesses be protected? Updates will be provided as they become known.

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