Chevron Corporation v. Donziger et al

Filing 1874

OPINION: Following trial, the Court finds that foreign judgment was procured by fraud and that defendants Steven Donziger, The Law Offices of Steven Donziger and Steven R. Donziger & Associates (collectively "Donziger") conducted and conspi red to conduct the affairs of an enterprise through a pattern of racketeering activity in violation of 18 U.S.C. §§ 1962(c) and 1962(d). Judgment will enter (1) imposing constructive trust for the benefit of plaintiff on assets of Donziger and defendants Camacho and Piaguaje that are traceable to the foreign Judgment, and (2) enjoining these defendants from seeking to enforce the foreign judgment in the United States or from undertaking any acts to monetize or profit from the Judgment. Defendants' motions to dismiss the complaint for lack of standing [DI 1860 and DI 1862] are denied. (Signed by Judge Lewis A. Kaplan on 3/4/2014) (Attachments: # 1 Appendix)(tro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------x
CHEVRON CORPORATION,
Plaintiff,
-against-

11 Civ. 0691 (LAK)

STEVEN DONZIGER, et al.,
Defendants.
------------------------------------------x

APPENDICES TO OPINION

Appearances:
Randy M. Mastro
Andrea E. Neuman
Reed M. Brodsky
William E. Thompson
Anne Champion
GIBSON, DUNN & CRUTCHER, LLP
Attorneys for Plaintiff

Richard H. Friedman
FRIEDMAN | RUBIN
Zoe Littlepage
Rainey C. Booth
LITTLEPAGE BOOTH
Steven Donziger

G. Robert Blakey
William J. and Dorothy K. O’Neill
Professor Emeritus
Notre Dame Law School
Amicus Curiae

Attorneys for Defendant Steven Donziger and
Steven R. Donziger & Associates LLP
Julio C. Gomez
JULIO C. GOMEZ, ATTORNEY AT LAW LLC
Attorney for Defendants Hugo Gerardo
Camacho Naranjo and Javier Piaguaje
Payaguaje

Table of Contents
Appendix I – The LAP Internal Work Product
Found in the Judgment Was Not in the Court Record . . . . . . . . . . . . . . . . . . . . . . App. 1
I.
The Record in the Lago Agrio Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 1
A.
The Official Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 1
B.
The Lago Agrio Court Was Obliged to Decide Based Solely on Materials
In the Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 2
C.
This Court’s Conclusions and Findings . . . . . . . . . . . . . . . . . . . . . . App. 5
II.
Chevron’s Experts’ Examination of the Record and the LAP Internal Work
Product to Identify Commonalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 5
Appendix II – Portions of Fusion Memo, Draft Alegato, Index
Summaries, Clapp Report, and Fajardo Trust Email in Judgment (PX 2164) . . . App. 11
Appendix III – The Cabrera Report Was Material to the Judgment . . . . . . . . . . . . . . . . .
I.
The Pit Count . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
II.
Potable Water Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
III.
The Cleansing Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
IV.
Eight Categories of Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

App. 42
App. 43
App. 48
App. 50
App. 51

Appendix IV – Aerial Photograph Example (PX 4021) . . . . . . . . . . . . . . . . . . . . . . . . . . App. 55
Appendix V – Evidentiary Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I.
Admissibility of the Bank Records and Identity Cards . . . . . . . . . . . . . . .
A.
The Bank Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B.
The Identity Cards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C.
The Deposit Slips and Centeno’s Signatures . . . . . . . . . . . . . . . . .
1.
The Deposit Slips . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.
Centeno’s Signatures and Cedula . . . . . . . . . . . . . . . . . . .
II.
The Hearsay Objections to Certain Guerra-Zambrano Conversations Are
Overruled . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
III.
Beltman and Maest Witness Statements . . . . . . . . . . . . . . . . . . . . . . . . . .
A.
Rule 106 – The Rule of Completeness . . . . . . . . . . . . . . . . . . . . .
B.
Credibility – Rule 806 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C.
Residual Hearsay – Rule 807 . . . . . . . . . . . . . . . . . . . . . . . . . . . .
IV.
Missing Witness Inferences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A.
The Legal Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B.
Defendants’ Absentees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C.
Plaintiff’s Absentees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

App. 56
App. 56
App. 57
App. 60
App. 61
App. 61
App. 64
App. 65
App. 70
App. 71
App. 73
App. 73
App. 75
App. 75
App. 77
App. 79

Appendix VI – The Trial Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 81
i

Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Direct Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Deposition Designations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Donziger’s Improperly Amended Exhibit List . . . . . . . . . . . . . . . . . . . . . . . . . . .

ii

App. 81
App. 81
App. 82
App. 84

Appendix I – The LAP Internal Work Product
Found in the Judgment Was Not in the Court Record
In order to determine whether LAP internal work product was contained in the Lago
Agrio case record, we must begin by defining the record, which involves consideration both of
Ecuadorian law and of evidence.

I.

The Record in the Lago Agrio Case
A.

The Official Record
Chevron and the defendants provided expert submissions under Federal Rule of Civil

Procedure 44.1 on what constitutes the official record of a case under Ecuadorian law. Both parties’
experts agreed that Ecuadorian law clearly defines what makes up the record, but they differed on
whether and when a judge may consider anything outside of it.
Chevron’s expert, Dr. Santiago Efraín Velázquez Coello explained that parties in
Ecuador may submit materials to the court only by presenting them for filing in the official record.
He cited two provisions of Ecuadorian law to support his conclusion:
“in Ecuador, any documents must be added to the record according to the law;
otherwise, the judge cannot consider them at the time of his decision. So states
Article 117 of the Code of Civil Procedure, which indicates, ‘[o]nly evidence that
has been properly taken i.e., that has been requested, presented and obtained in
accordance with the law will be valid in court.’ Article 2 of the Regulation on the
Arrangement of the Process and Judicial Proceedings states: ‘Chronology of the
record.- Submissions and documents that the parties file will be added to the record
chronologically. [Nonparty] case documents will be added the same way. Each page
must be numbered with digits and longhand, and the clerk shall validate this with his
initials.’ Only by proceeding as indicated is it legally possible to introduce
documents and materials into a case in Ecuador and, therefore, the documents that
are presented to the judge in violation of these rules have no legal value and the

App. 1

judge cannot consider them in his judgment.”1
Defendants’ expert, Juan Pablo Albán Alencastro, acknowledged that “[u]nder
Ecuadorian law if a document has not been formally incorporated into the case in accordance with
the provisions of Regulation on the Settlement Process and Judicial Proceedings of June 19, 1981
. . . [it] is not part of the record.”2
Thus, the record in the Lago Agrio case consists of the submissions and documents
that the parties filed, the pages of which were numbered, initialed by the clerk, and added
chronologically to the cuerpos – booklets or files of about 100 pages.3

B.

The Lago Agrio Court Was Obliged to Decide Based Solely on Materials In the
Record
The parties made submissions also on whether an Ecuadorian trial judge properly

may consider documents and evidence that is not part of the record.
Dr. Velázquez stated that the court may consider only materials that are included in
the formal record and facts that are “public and well-known” – a concept akin to facts that would
be subject to judicial notice in the United States.4 In addition, judges research case law and legal
scholarship, but “[w]hat is not permitted to the judge is to consider information or evidence that does

1

DI 1751-1 (Velázquez Decl.), Ex. A at 2.
2

DI 1702-1 (Albán Decl.) ¶ 31.
3

Tr. (Zambrano) 1720:3-5.
4

DI 1751-1 (Velázquez Decl.), Ex. A at 1-2.

App. 2

not appear in the record and to use that as a basis for his judgment, erroneously claiming their public
and well known nature.”5
Dr. Albán took a slightly different position. He said that “[i]t is not unusual . . . that
in high-profile cases, the parties and even third parties not directly involved in the dispute, try to
emphasize their positions and views on the trial in various ways, the media exposure of the details
of the case is the most common form, but the anonymous sending of documents also occurs in an
attempt to convince the authority responsible for the processing and decision of the case on the
legitimacy or importance of a given argument.”6 He stated that “Article 335 of the Organic Code
of the Judiciary . . . which establishes prohibitions for lawyers in the representation of cases, says
nothing about these informal remissions of documentation.”7 He did not say, however, that
consideration of such documents would be appropriate.
Dr. Velázquez responded that the alleged practice adverted to by Dr. Albán “has
never been a normal practice” in Ecuador8 and that it would “be contrary to express provisions of
Ecuadorian law. . . . [I]f this were a common practice in Ecuador it would have no relevance
whatsoever to the present analysis, as a custom is not law unless statute expressly says so.”9

5

Id. at 2.
6

DI 1702-1 (Albán Decl.) ¶ 32.
7

Id. ¶ 33.
8

DI 1751-1 (Velázquez Decl.), at 2.
9

Id.

App. 3

Dr. Velázquez’s view found support in the testimony of Zambrano, who said that “the
official record of the case is that which is contained in the cuerpos.”10 Moreover, Zambrano stated
that he decided the Lago Agrio case11 “[a]ccording to the evidence that is part of the record. . . .”12
Finally, he testified that, while documents related to the case that were not incorporated into the
court record occasionally were left at the door of his office in the court,13 he “always matched [those
documents] up with what already existed in the [record of the] case.”14 If the documents were
different from what was in the record, he discarded them because they were not “useful” to him.15
Thus, according to Zambrano, he considered only documents that were contained within the formal
court record – that is, officially filed by the parties and added by the clerk to the cuerpos – in writing
the Judgment.

10

Tr. (Zambrano) 1693:18-23.
11

That of course is a hotly contested issue, but Zambrano’s testimony as to what materials
properly could have been considered in deciding the case nonetheless has value, particularly
as the thrust of his testimony was that everything was done with utter propriety.
12

Id. 1608:21-22.
13

Id. 1691:10-14.
14

Id. 1692:25-1693:3.
15

Id. 1694:13-25.

App. 4

C.

This Court’s Conclusions and Findings
The Court concludes and finds that the record in the Lago Agrio case consists of the

documents duly filed with the clerk and added to the cuerpos. Consideration of any other materials,
including any materials provided to a judge or court official informally or ex parte, would have been
improper under Ecuadorian law.16

II.

Chevron’s Experts’ Examination of the Record and the LAP Internal Work Product to
Identify Commonalities
Dr. Robert Leonard – a professor of forensic linguistics – compared the Lago Agrio

Judgment17 to documents Chevron received from the defendants in discovery (the “LAPs’ internal
work product”) to determine whether the “[]Ecuadorian Judgment[] and the Ecuadorian Plaintiffs’
unfiled work product contain[ed] matching or similar word strings and strings of symbols whose
presence [was] not explainable either as set phrases or by chance. . . .”18 In other words, Dr. Leonard
was retained to determine whether the LAPs’ internal work product had appeared in the Judgment.
Dr. Leonard analyzed the Ecuadorian Judgment “to determine whether it was
‘plagiarized’ in whole or in part from the Ecuadorian Plaintiffs’ unfiled work product”19 – that is,
whether it contains material taken from LAPs’ work product that was not part of the record in the
16

To the extent the Court has made a determination of Ecuadorian law, its conclusion is one
of law. FED. R. CIV. P. 44.1.
17

PX 399 (Lago Agrio Judgment (Spanish)).
18

PX 3700 (Leonard Direct) ¶ 3.
19

Id. ¶ 34.

App. 5

Lago Agrio case. Three computational experts, working under his direction, “perform[ed] searches
. . . comparing the Ecuadorian Judgment to documents which [Dr. Leonard understood] were
produced by the Ecuadorian Plaintiffs’ consultants, lawyers, or affiliates.”20 Using results from
those searches, Dr. Leonard identified a number of documents obtained in discovery “as having
potential plagiaristic overlap to the Ecuadorian court record so as to evaluate whether or not the
overlap was attributable to a filed [i.e., record] document.”21 He concluded:
“that portions of the Ecuadorian Judgment and the Ecuadorian Plaintiffs’ unfiled
work product contain matching or similar word strings and strings of symbols whose
presence is not explainable either as set phrases or by chance, and that those portions
of the Ecuadorian Judgment [were] therefore plagiarized from Plaintiffs’ unfiled
work product.”22
Specifically, he found at least 32 matches between the Judgment and six of the LAPs’ unfiled,
internal work product documents and concluded that the parts of the Judgment containing these
matches likely “had their origin in the Ecuadorian Plaintiffs’ unfiled work product.”23 The six
documents, parts of which appear in the Judgment, are the Fusion Memo,24 the January and June

20

Id. ¶ 35.
21

Id. ¶ 36.
22

Id. ¶ 37.
23

Id. ¶ 38.
24

PX 435 (Fusion Memo).

App. 6

Index Summaries,25 the Fajardo Trust Email,26 the Draft Alegato,27 and the Clapp Report.28
Dr. Patrick Juola, who worked in conjunction with Dr. Leonard, then compared each
of these six documents as well as the Selva Viva Database, a group of spreadsheets,29 to the entire
Lago Agrio record to determine whether each document’s text appeared anywhere within the
record.30 Dr. Juola converted each of the 236,000 pages of the Lago Agrio record to OCR,31 textsearchable documents.32 He then broke the entire record into groups of five consecutive words and
did the same with each of the LAPs’ unfiled internal work product documents.33 Dr. Juola was
25

PX 433 (January 2007 Index Summary); PX 865 (June 2007 Index Summary).
26

PX 437 (Fajardo Trust Email).
27

PX 438 (Draft Alegato).
28

PX 928 (Clapp Report).
29

PX 439-441 (Selva Viva Database).
30

PX 3800 (Juola Direct) ¶ 27.
31

Id. ¶ 29. OCR “is a process by which hard copies are scanned and processed to create
electronic files that can be viewed on the computer.” Dr. Juola explained that “OCR stands
for optical character recognition. It’s the process of taking an image which is – if you think
about how a newspaper photo is constructed it’s essentially a collection of black dots or
white dots, and from that black or white dots, extracting the text, the characters that would
actually comprise the language inside that document.” Tr. (Juola) 1544:17-22. Dr. Juola
concluded that the overall scanning quality of the Lago Agrio record was high, and that no
more than 1-1.5% of the documents in the court record were unsearchable. PX 3800 (Juola
Direct) ¶ 32. His team analyzed each of the unsearchable documents by hand. Id. ¶ 33.
32

PX 3800 (Juola Direct) ¶ 17.
33

Id. ¶¶ 18-21.

App. 7

provided also with every specific linguistic overlap Dr. Leonard found between the LAPs’ internal
work product and the Judgment (the “overlap examples”).34 He broke the overlap examples into five
word groups as well. Dr. Juola then used computer software to identify any five word group in the
overlap examples that matched any five word group in the Lago Agrio court record.35 He ran the
same analyses for overlaps between the LAPs’ internal work product documents and the Judgment.36
“Based on [those] comparisons, [Dr. Juola was] able to find any documents in the court record that
contained an exact match . . . of at least five words with one of the [overlap e]xamples.”37
For each match the computer identified, Juola “first verified the match by visually
comparing the matching phrase and the corresponding part of the court record. [H]e then checked
whether the match was a direct quotation. Finally, [h]e analyzed the match to determine whether
it was a common or stereotyped phrase, judging partially on the phrase’s frequency and distribution
across documents and partially on [his] understanding of the phrase’s meaning.”38 He excluded
from his results common five-word phrases, such as “en el Ecuador como una.”39 He concluded that
“the Fusion Memo, the Clapp Report, the Index Summaries, the Fajardo Trust email, the Draft

34

Id. ¶ 21.
35

Id. ¶ 22.
36

Id. ¶ 27.
37

Id. ¶ 23.
38

Id. ¶ 24.
39

Id. ¶ 25.

App. 8

Alegato, and the Selva Viva Data Compilation [we]re not in the trial court record.”40
Dr. Juola and his team used computers to compare the Lago Agrio record to the
LAPs’ internal work product. The next Chevron expert, Samuel Hernandez, the director of
Morningside Translations, did so by hand.41
Hernandez and his team of bilingual reviewers were given the Fusion Memo,
excerpted portions of the January and June Index Summaries, the Fajardo Trust email, the Moodie
Memo,42 and the LAPs’ Draft Alegato,43 as well as excerpts from each document.44 They compared
each document to every document in the Lago Agrio record that had been filed by the LAPs or a
third party, as well as every document in the Lago Agrio record that had been filed by Chevron after
the date on which Chevron first received documents from the LAPs in discovery proceedings in the
United States.45 Hernandez’s team reviewed the documents in three stages – any overlap identified

40

Id. ¶¶ 3, 27, 37.
41

PX 3900 (Hernandez Direct) ¶¶ 23-27.
42

PX 1101 (Moodie Memo).
43

PX 2167 (LAPs’ Draft Alegato).
44

The excerpts contained the word strings or phrases that overlapped with the Judgment.
45

PX 3900 (Hernandez Direct) ¶¶ 12-22. For the Moodie Memo and draft alegato,
Hernandez and his team compared the documents and excerpts of them to (1) all documents
in the Lago Agrio record filed by the LAPs or any third party after the date upon which the
Moodie Memo and draft alegato was created, and (2) all documents in the Lago Agrio
record filed by Chevron after the date on which Chevron first received documents from the
LAPs in U.S. discovery proceedings. Id. ¶¶ 16-22.

App. 9

in the first stage then was reviewed again in the second, and again in the third.46 At the second stage,
reviewers were informed that “the name of a person, the name of a place, and one word or two
unconnected words were not, by themselves, enough for a document to be considered potentially
responsive.”47 At the third stage of review, any documents that “contained only general topical
similarities, without any close relationship between the actual text of the document in the . . . Record
and the actual text of” the LAPs’ internal work product were excluded.48
The Court finds that the methodologies used by the Chevron experts were reliable
and admissible, credits their testimony, and adopts their findings.

46

Id. ¶¶ 23-24.
47

Id. ¶ 25.
48

Id. ¶ 26.

App. 10

Appendix II – Portions of Fusion Memo, Draft Alegato, Index
Summaries, Clapp Report, and Fajardo Trust Email in Judgment (PX 2164)

App. 11

App. 12

App. 13

App. 14

App. 15

App. 16

App. 17

App. 18

App. 19

App. 20

App. 21

App. 22

App. 23

App. 24

App. 25

App. 26

App. 27

App. 28

App. 29

App. 30

App. 31

App. 32

App. 33

App. 34

App. 35

App. 36

App. 37

App. 38

App. 39

App. 40

App. 41

Appendix III – The Cabrera Report Was Material to the Judgment
Donziger contended at trial that the Cabrera events – the coercion of Judge Yánez,
the inducement of Cabrera to work for the LAPs, the ghostwriting of the Cabrera Report, and the
misrepresentation to the Lago Agrio court and others of Cabrera’s relationship with the LAPs and
his purported independence – were not material to the Judgment49 because the Judgment said that
it did not consider the Cabrera Report in reaching the decision.50 This argument fails. The
Judgment itself establishes that its professed disclaimer was not accurate.
To be sure, the Judgment states that it did not take the Cabrera Report “into account
to issue [the] verdict.”51 The Court has concluded elsewhere that this disclaimer statement,
including its repetition by the appellate courts, is inadmissible hearsay.52 Even if it were admissible,
however, it would be no more than some evidence on that point.
Chevron has pointed to evidence suggesting that the Judgment in fact relied upon the
Cabrera Report – either directly or indirectly – in four distinct ways: (1) to determine the number
of waste pits, which was an essential input on which more than half of the $8.646 billion damage
award rests; (2) to calculate potable water damages; (3) by relying on reports of the cleansing
experts, which in turn relied upon the Cabrera Report (hence the defendants’ use of the term
“cleansing experts”); and (4) to determine the eight categories of damages for which Cabrera
49

Tr. (summation) 2880:7-13.
50

Id.
51

PX 400 (Lago Agrio Judgment), at 51.
52

See supra Facts § VII.A.

App. 42

recommended monetary awards against Chevron.
Having considered the evidence, the Court finds that Chevron proved the most
important, but not all, of these contentions.

I.

The Pit Count
The largest single component of the $8.646 billion award against Chevron was the

$5.4 billion award for remediation of soil at waste pits. The Judgment purported to explain that
figure by (a) finding that there were 880 waste pits in the Concession area, then (b) multiplying 880
by an assumed amount of soil per pit requiring remediation, and (c) multiplying the product of those
figures by a cost per unit of soil to be remediated.53 Thus, the $5.4 billion figure is a linear function
of the pit count as well as assumptions as to pit size and depth. To put it in the clearest terms, an
overstatement of the pit count by 10 percent would have increased the amount of the judgment by
about $540 million. Chevron contends that the critical count of 880 pits comes only from the
Cabrera Report.54
53

The Judgment stated:
“The contamination in the area of the concession extends to 7,392,000 cubic meters (m3),
a figure that is arrived at considering that we have 880 pits (proven through aerial
photographs certified by the Geographic Military Institute which appear throughout the
record, analyzed together with the official documents of Petroecuador submitted by the
parties and especially by the expert Gerardo Barros, and aggravated by the fact that the
defendant has not submitted the historical archives that record the number of pits, the criteria
for their construction, use or abandonment) of an area of 60 x 40 meters, and because of the
possibility of leaks and spills, it should be remediated in an area of at least 5 meters around
the pits, and the pits have a depth of 2.40 meters (which is a reasonable estimate, considering
that the pits have different dimensions, and as we noted above, the defendant has not
presented an archive or historical record that details the number or the dimensions specified
for the construction of the pits).” PX 400 (Lago Agrio Judgment), at 125.
54

DI 1847 (Chevron Corp. Post-trial Mem. of Law), at 77.

App. 43

Before addressing Chevron’s argument, it is important to understand what that
argument is and what it is not. Some might characterize the discussion that follows as an effort by
this Court to review the merits of the Ecuadorian Judgment. But any such characterization would
be wrong. The point here is not whether the Judgment was right or wrong on this point. It instead
is whether the Judgment, right or wrong, took the 880 pit count – the importance of which cannot
be overstated – from the Cabrera Report, notwithstanding the Judgment’s disclaimer of reliance on
that document.
We begin with the Judgment’s explanation for its 880 pit finding. It initially claimed
to have derived the 880 figure from “[1] aerial photographs [of the Concession] certified by the
Geographic Military Institute which appear throughout the record, analyzed together with [2] the
official documents of Petroecuador submitted by the parties and [3] especially by the expert Gerardo
Barros,”55 which are in the Lago Agrio record. But neither the Judgment nor the defendants have
identified any such “official documents of Petroecuador,” whether in the record or otherwise, that
support the pit count of 880.
Following the entry of the Judgment, Chevron moved for expansion and clarification,
inter alia, of the basis for the conclusion that there were 880 pits:
“What is the basis for concluding that there are 880 pits, as is indicated on page 125
of the Judgment: ‘considering that we have 880 pits’? * * * In that regard, I
hereby request that you expand your judgment, mentioning the page numbers from
which all this information was obtained.”56
In the Lago Agrio court’s subsequent clarification order, the court dropped its former references to
55

PX 400 (Lago Agrio Judgment), at 125.
56

PX 2502 (Chevron motion for expansion and clarification, filed Feb. 17, 2011), twentyseventh request for expansion of the judgment, at 17 (emphasis in original).

App. 44

unspecified PetroEcuador documents and to the Barros report. It stated only that “the Court
analyzed the various aerial photographs that form a part of the record and that were certified by the
military Geographic Institute.”57 Thus, the 880 pit count figure purportedly rests exclusively on
analysis of aerial photographs in the record that were obtained from the Military Geographic
Institute.
Against this background, Chevron called two witnesses whose testimony, the Court
finds, collectively established that the count of 880 pits could not have come from the aerial
photographs and must have been drawn from the Cabrera Report and nothing else.
The first was Spencer Lynch, who addressed the fact that the Judgment used a figure
of 880 pits whereas the figure in Cabrera Report Anexo H-1 was 916.58 The difference, he pointed
out, was that the 916 pit figure in the Cabrera Report included a total of 36 pits that either had been
operated by PetroEcuador or at which there had been “no impact” and for which, therefore, no
remediation was necessary.59 With those pits excluded, the net pit count in the Cabrera Report was
880.60
The second witness was Dr. James Ebert, an expert in “scientific methods and
techniques of photogrammetry, photo analysis, digital imaging and image processing, and digital

57

PX 429 (Lago Agrio Judgment Clarification Order), at 15.
58

The same 916 pit figure appeared also in a spreadsheet produced by Stratus, upon which
Anexo H-1 likely was based. PX 4100 (Lynch Direct) ¶ 98 & Figure 34.
59

Id.
60

Id.

App. 45

mapping technologies.”61 Dr. Ebert examined the photographs and the “various documents that
contained aerial photographs in the” Lago Agrio record, including the Cabrera Report and anexos,
the “Hidden Pits Report,” the “Judicial Inspection Reports’ aerial photographs, and other various
expert reports.”62 For a variety of reasons, he concluded that it would have been impossible for
Zambrano accurately to have interpreted the aerial photographs in the record.63 He explained that
Anexo E to the Cabrera Report was the primary source in the Lago Agrio record that used aerial
photographs to map pit locations and count specific pits. But these aerial photo scans – all of which
were in black and white – were of such low resolution that it would have been “difficult for even
an experienced photogrammetrist to identify and map pits,”64 much less someone with no special
training or equipment. Even more important, he concluded that “it is impossible that the authors of
the Ecuadorian judgment and the Cabrera report independently reached the same 880 pit count by
use of aerial photography.”65

61

PX 4000 (Ebert Direct) ¶ 4.
62

Id. ¶ 13.
63

Id. ¶ 15.
64

Id.
65

Id. ¶ 3; see also id. ¶ 18.
Dr. Ebert then went on to illustrate “why it [wa]s not possible that the author of the
Ecuadorian judgment and the author of the Cabrera report reached the same result by
interpreting the photos independently.” Id. ¶ 19. He provided two examples of aerial
photographs from the Military Geographic Institute that appeared in annexes to the Cabrera
Report and that were interpreted by its author as identifying pits. Higher quality scans of the
same photographs revealed that some of these pits actually were trees, above-ground tanks,
and other objects. Id. ¶¶ 21, 22 & Figures 1, 2. For example, Appendix IV compares an
aerial photograph of the Sacha Sur Station well site from Anexo E of the Cabrera Report

App. 46

In sum, Lynch and Ebert collectively testified that (1) the 916 pit count in the Cabrera
Report, once adjusted in a very common sense way to eliminate the 36 “pits” that either were those
of PetroEcuador or required no remediation, was 880, (2) the pit count in the Judgment was 880, and
(3) neither the pit count in the Judgment nor that in the Cabrera Report could have been determined
accurately from the aerial photographs upon which each purported to rely. They further concluded
that, as a practical matter, it is impossible that these two documents could have reached the net count
of 880 pits independently on the basis of examination of the aerial photographs, which was the sole
stated foundation of each.
Although the defendants never made the point, there is one potential weakness in
Chevron’s argument and the experts’ conclusions on this score. Chevron has not provided
conclusive evidence that the 880 pit count is nowhere in the Lago Agrio record. In contrast to its
analysis with respect to the identity of language in and other characteristics of the Judgment and the
LAPs’ internal work product, Chevron did not offer a witness who testified that the witness had
reviewed the entire record and found no reference to 880 pits except in or simply derived from the
Cabrera Report.
On the other hand, defendants have not identified any possible source in the Lago
Agrio record for the Judgment’s 880 pit count, other than the Cabrera Report, save for the claim that
Zambrano reached that figure independently by counting what appeared to him to be waste pits on
low resolution aerial photographs. The Court finds that hypothesis to be incredible given both the
quality of the photographs and Zambrano’s lack of credibility.

(top), to a higher quality image taken from the same source at the same site (bottom). It
reveals that a portion of the image characterized by the Cabrera Report as a waste pit actually
is a man made structure.

App. 47

Nor did the LAPs’ submissions to the Lago Agrio court, its alegatos, point to any
record support for the pit count that wound up in the Judgment, although it referred extensively to
the Cabrera Report. In fact, their December 17, 2011 alegato claimed that there were 916 pits – the
same figure as the Cabrera Report – and cited only the Cabrera Report as support for that
proposition.66
This failure to cite any other record support for this or any other pit count is telling.
The LAPs were worried that their relationship with Cabrera would impugn the credibility of any
judgment that relied on it. Indeed, they successfully had petitioned the court to allow them to submit
the cleansing reports to provide alternative bases upon which the ultimate decision could claim
reliance. If there were a source in the record other than the Cabrera Report that supported the pit
count figure – which was the basis for the largest component of damages – the LAPs would have
cited it. But they did not. And that logically suggests that there was nothing in the Lago Agrio
record to support the pit count except the Cabrera Report, adjusted to eliminate the PetroEcuador
and the “no impact” pits.
The Court finds that the 880 pit count in the Judgment came directly out of the
Cabrera Report, adjusted only for the PetroEcuador and “no impact” pits. It further finds that the
circumstances discussed by Ebert and Lynch, whom the Court credits, make it impossible that the
pit count in the Judgment came from anything but the Cabrera Report.

II.

Potable Water Damages
Chevron next contends that the Judgment’s $150 million award for potable water
66

DX 1482 (LAPs’ Dec. 17, 2011 Alegato), at 60 & n.252.

App. 48

damages is based on the Cabrera Report.67
The Cabrera Report recommended the award of $428 million in damages for potable
water.68 A report filed by Chevron expert Gerardo Barros, which is cited in the Judgment,69 stated
that the Cabrera Report had awarded $430 million for potable water, and that this figure was
“[g]rossly [e]xaggerated and [f]raudulent.”70 The Judgment, citing Barros, agreed that the “430
million is too high,” and therefore reduced it.71 It found that 35 percent of the relevant population
lacked access to potable water and awarded $150 million to remedy that problem.72 The $150
million figure is 35 percent of the $430 million, rounded down by $500,000 to an even million,
recommended in the Cabrera Report. Moreover, the Judgment cited no evidentiary basis for the
$150 million figure.73
Once again, the point here is not whether the Judgment was correct in awarding
damages in respect of potable water or, if so, whether the figure it selected was well founded. Those
questions are not before this Court. Rather, the point is that the figure awarded was derived directly
67

PX 400 (Lago Agrio Judgment), at 182-83.
68

PX 310A (Cabrera Report), at 6.
69

PX 400 (Lago Agrio Judgment), at 182.
70

PX 3306 (Barros Report Excerpt), at 3. The full Barros Report was not offered. Thus, the
only evidence of what Barros said on this subject was his repetition and rounding off of
what Cabrera said.
71

PX 400 (Lago Agrio Judgment), at 182-83.
72

Id. at 182-83.
73

See id.

App. 49

from the $428 million recommendation contained in the Cabrera Report, as this Court finds.

III.

The Cleansing Experts
As noted, the LAPs successfully petitioned the Lago Agrio court to permit them to

submit additional expert reports that were intended to “cleanse” the Cabrera Report. The Judgment
cited several of them. Chevron contends, however, that the Judgment relied on the Cabrera Report
by virtue of its reliance on the cleansing experts. For example, the Judgment cites only one source
to support its $200 million award to restore flora and fauna in the Concession area: the report
prepared by Dr. Lawrence Barnthouse.74 This is so despite the fact that the Judgment recognized
that “Dr. Barnthouse testified that he reviewed expert Cabrera’s report, but did not prepare a damage
report himself” and concluded that “the plaintiff committed fraud by using work of Dr.
Barnthouse.”75 Moreover, the Judgment cited the report of Douglas Allen as a basis for its awards
of $5.4 billion for soil remediation and $600 million for groundwater restoration.76 But Allen
admitted in a deposition that he “relied on parts of the Cabrera Report” and that he did not attempt
independently to verify Cabrera’s data.77
Chevron’s argument with respect to the cleansing experts falters at least with respect
to Allen. As a preliminary matter, it is not clear that the Judgment actually purported to rely on the

74

Id. at 182.
75

Id. at 57.
76

Id. at 179, 181.
77

Allen Dep. Tr. at 171:18-172:3.

App. 50

Allen report for the groundwater restoration figure. In awarding $600 million for groundwater
restoration, the Judgment noted that the figure is “lower than the average according to economic
criterion estimated by Douglas C. Allen, expert contracted by the plaintiffs . . . which is not in any
way obligatory or binding for this Court, but rather a simple reference that is not accepted. . . .”78
Thus, although the Judgment used Allen as a reference point, it is not clear that it purported to rely
on his report – and only his report – to come up with the $600 million figure. Moreover, although
Allen testified in his deposition that his report relied on parts of the Cabrera Report, he did not say
that he relied on it in his damages assessments for soil remediation and groundwater restoration –
the two areas for which he is cited in the Judgment.
With respect to the cleansing experts, then, we are left only with the Judgment’s
reliance on Barnthouse, who in turn relied on the Cabrera Report, for its $200 million award for
restoration to flora and fauna. This alone would be insufficient to deem the Judgment invalid for
its reliance on a fraudulent report, particularly in this case, where such a figure is a tiny drop in a
very large bucket. Combined with the pit count and the potable water damages, however, it supports
the conclusion that the Judgment relied on the Cabrera Report notwithstanding its purported
disclaimer of such reliance.

IV.

Eight Categories of Damages
Finally, Chevron argues that the Judgment “awards damages for the same eight

categories that were developed by Defendants and ghostwritten into the Cabrera Report.”79 These
78

PX 400 (Lago Agrio Judgment), at 179.
79

DI 1847 (Chevron Corp. Post-trial Mem. of Law), at 78.

App. 51

categories are: soil restoration,80 restoration of groundwater,81 damages to the ecosystem,82 loss of
indigenous culture,83 punitive damages,84 healthcare system,85 potable water,86 and excess cancer
deaths.87 These damage categories, Chevron contends, “are supported by nothing else in the record
except the LAPs’ final alegato, which itself cites throughout to the Cabrera Report.”88 Chevron
posits also that the Judgment’s punitive damages award “matched the Cabrera Report’s ‘unjust
enrichment’ award in rationale and effect . . . and had no other record source.”89 There are several
problems with Chevron’s arguments on this point.
First. The Cabrera Report identified seven categories of damages, not eight like the
Judgment. It did not recommend an award of damages for soil restoration. Chevron effectively
admits this fact, as it cites without explanation a November 2007 filing by Cabrera as support for

80

PX 400 (Lago Agrio Judgment), at 125, 181.
81

Id. at 147.
82

Id. at 152.
83

Id. at 173-74.
84

Id. at 185-86.
85

Id. at 183.
86

Id.
87

Id. at 184.
88

DI 1847 (Chevron Corp. Post-trial Mem. of Law), at 78-79.
89

Id. at 79.

App. 52

the fact that Cabrera awarded damages for soil restoration. But (1) the filing is in Spanish and an
English language version was not provided, and (2) the filing – whatever it may be – is not part of
the Cabrera Report.
Second. Although the LAPs did identify soil restoration as the eighth damages
category in their alegato, Chevron has failed to prove that it did so in reliance only on Cabrera. In
fact, Chevron did not even offer the alegato in evidence. Moreover, the fact that the alegato
identified eight categories of damages makes it just as likely that the Judgment relied on the LAPs’
final brief.
Third. Chevron is incorrect in its assertion that the Judgment’s punitive damages
award is the same “in rationale and effect” as Cabrera’s recommended unjust enrichment award.
The Cabrera Report recommended an award of $8.31 billion for “unjust enrichment.” It stated that
“in other countries, unjust enrichment is used to determine the amount of punitive damages.
Although the Court can decide to use the calculation of unjust enrichment in that way,” the Cabrera
Report instead calculated it by comparing the “‘savings’ gained by Texpet by not using adequate
environmental controls; and . . . the current value of those savings based on the defendant’s profits
from capital investments.”90 By contrast, the Judgment imposed a “punitive penalty equivalent to
additional 100% of the aggregate values of the reparation measures.”91 In effect, it simply doubled
the damages figure.

90

PX 310A (Cabrera Report), at 51. The Cabrera Report stated that “Annex T provides
details on the calculation of unjust enrichment.” Id. However, Chevron did not offer an
English translation of Annex T into evidence and therefore the Court declines to consider
the Spanish.
91

PX 400 (Lago Agrio Judgment), at 185.

App. 53

*

*

*

In sum, the Court finds that the Judgment purported to rely on the Cabrera Report at
least (1) for the pit count – which drove its largest damages award, (2) for the potable water damages
award, and (3) by virtue of its reliance on the Barnthouse report. The Court thus finds that the
Cabrera Report was material to the Judgment at least in those respects, which collectively were very
important indeed.

App. 54

Appendix IV – Aerial Photograph Example (PX 4021)

App. 55

Appendix V – Evidentiary Issues
I.

Admissibility of the Bank Records and Identity Cards
Guerra testified that in the fall of 2009 he entered into an agreement with Donziger,

Fajardo, and Yanza to draft orders favorable to the defendants under Zambrano’s name in exchange
for $1,000 per month, to be paid by Fajardo and the LAPs.92 Chevron offered documentary evidence
to corroborate Guerra’s story. It included bank statements93 and deposit slips purporting to show
a series of $1,000 deposits into Guerra’s account including two allegedly made by a Selva Viva
employee named Ximena Centeno on December 23, 2009 and February 5, 2010.94 It includes also
additional deposit slips dated October 24, 2009,95 November 27, 2009,96 and January 6, 201197 each
showing a $1,000 deposit into Guerra’s bank account,98 although none of these three bears Centeno’s
signature. Finally, Chevron offered copies of two of Centeno’s national identity cards,99 both of

92

Tr. (Guerra) 914:10-931:13; see supra Facts § X.C.
93

PX 1689, 1704, 1705, 1708, 1710 (Guerra Bank Statements).
94

Several copies of the deposit slips for those two dates appear in the record. PX 1713 (Guerra
Deposit Slips), at 1, 7, 8; PX 1719 (Dec. 23, 2009 Guerra deposit slip obtained by Chevron
investigator from the bank); PX 1718 (Feb. 5, 2009 Guerra deposit slip obtained by Chevron
investigator from the bank).
95

PX 1713 (Guerra Deposit Slips), at 10.
96

Id. at 5, 11.
97

Id. at 15.
98

Id. at 5, 10, 11, 15.
99

PX 1740, 1741 (Centeno Nat’l Identity Cards).

App. 56

which bear her signature and cedula (or identification number).100 These were provided as means
of authenticating the purported Cedeno signatures that appear on the December 23, 2009 and
February 5, 2010 deposit slips and to prove that the cedula on one of these belonged to Centeno.

A.

The Bank Statements
Defendants objected to the admissibility of the bank statements,101 citing principally

hearsay.102 Those exhibits are admissible under either the business records exception103 or the
100

A cedula number is an identification number that in Ecuador is assigned “to each individual,
specifically, of Ecuadorian nationality, and which is used to identify the person throughout
his or her life.” Tr. (Guerra) 958:6-9.
The parties stipulated that the cedula number that appears on the two deposit slips belongs
to Ximena Centeno. Tr. (Guerra) 953:1-4 (“MS. LITTLEPAGE: Yes. There is a woman
who worked for Selva Viva, whose name is Ximena Centeno, whose number this is. We
believe this is hearsay because we do not believe there is any evidence that that woman
deposited this money at this bank.”).
101

PX 1689, 1704, 1705, 1708, 1710 (Guerra Bank Statements).
102

Defendants’ other objections merit only brief attention.
Defendants’ relevance objection clearly is baseless. The bank statements Chevron offered
show that money was deposited into Guerra’s bank account (a) two days after Fajardo sent
an email to Donziger and Yanza stating “[t]he puppeteer won’t move his puppet unless the
audience pays him something,” PX 1751 (Oct. 27, 2009 Email from P. Fajardo to S.
Donziger and L. Yanza re: “NEWS”), and (b) in amounts that corresponded to
near-simultaneous withdrawals from the Selva Viva account, PX 583 (Banco Pichincha
Account Summary for Selva Viva), at 52-53. All of this is highly relevant to Chevron’s
claim that Donziger and the LAPs paid Guerra as Guerra claimed. See supra Facts § X.C.
Defendants object to the admission of the redacted copy of Guerra’s bank statement for
February 2010, PX 1689, under the rule of completeness. The exhibit includes an
unredacted Spanish-language version of the bank statement. Even if it did not, defendants
have not shown that the redacted portions of this bank statement, which contain personal
information and transactions unrelated to this case, must be admitted under Rule 106.
Finally, defendants raised what became a common litany of objections, including
authenticity and best evidence. Substantially for the reasons discussed below in relation to

App. 57

residual hearsay exception.104
The business records exception provides that a record of a “regularly conducted
activity” is admissible for the truth of the matter where the record was made contemporaneously by
someone with knowledge, the record was kept in the regular course of business and as a regular
practice, a qualified witness testifies to those facts, and the records are trustworthy.105 Courts have
recognized, however, that neither a qualified witness nor a certification is necessary to provide the
foundation in all instances. Instead, “the requirements for qualification as a business record can be
met by documentary evidence, affidavits, or admissions of the parties, i.e., by circumstantial
evidence, or by a combination of direct and circumstantial evidence.”106 Courts have acknowledged
also that “[a] foundation for admissibility may at times be predicated on judicial notice of the nature
of the business and the nature of the records as observed by the court, particularly in the case of bank
and similar statements.”107
The Court takes judicial notice that banks routinely produce periodic statements for
their customers and that those periodic statements reflect any and all deposits, withdrawals, debits
and credits during stated periods of time. This is done in the regular course of business by bank

the deposit slips, these objections have no merit and do not warrant further discussion.
103

FED. R. EVID. 803(6).
104

Id. 807.
105

Id. 803(6).
106

United States v. Pelullo, 964 F.2d 193, 201 (3d Cir. 1992) (quotations omitted).
107

Fed. Deposit Ins. Corp. v. Staudinger, 797 F.2d 908, 910 (10th Cir. 1986) (quotations
omitted); see also 5-803 WEINSTEIN’S EVIDENCE § 803.08 (2d ed. 1997-present).

App. 58

employees with knowledge of the computer systems used to track customers’ account activity.
Having taken judicial notice of these facts, and having considered also Guerra’s testimony regarding
the source of the bank statements,108 the Court finds that the bank statements are admissible under
Rule 803(6). There is no reason to believe those records untrustworthy.
Even if the technical requirements of Rule 803(6) were not satisfied, the Court would
receive the bank statements under the residual hearsay exception. In Karme v. C.I.R.,109 the Ninth
Circuit held that a bank statement was admissible under the residual hearsay exception due to its
“circumstantial guarantees of trustworthiness,” the fact that it was more probative of a material fact
than other obtainable evidence, and that “admitting it will best serve the purposes of these rules and
the interests of justice.”110 This Court agrees.
As discussed above, the bank statements are probative of whether defendants paid
Guerra as he claimed. Coupled with the “puppeteer” emails and the deposit slips, infra, the bank
statements are more probative of that fact than any other evidence that Chevron has or reasonably
could have obtained. There is no reason to doubt their trustworthiness. They appear in the exact
manner that one would expect, and Guerra testified as to how he obtained them directly from the

108

Tr. (Guerra) 1040:3-16 (“Q. Mr. Guerra, I want to refer you to your what’s been marked as
Plaintiff’s Exhibit 1689, 1704, 1705, and 1708. If you could please look at each of those. Mr.
Guerra, are each of those documents a monthly bank statement that you received from your
bank, Banco Pichincha, concerning your bank account? A. Yes, sir, they are. Q. Do you
recognize them to be true and correct copies of your bank statements that you received
directly from your bank, your monthly statements? A. Yes. Q. Are these documents that you
turned over to Chevron in connection with this litigation? A. Yes.”).
109

673 F.2d 1062 (9th Cir. 1982).
110

Id. at 1064-65; FED. R. EVID. 807.

App. 59

bank, testimony that the Court credits.111

Thus, “[g]iven the circumstantial guarantees of

trustworthiness which were present here, the distant location of the bank, and the lack of any
evidence in the record to suggest that the bank records are anything other than what they purport to
be,” the bank statements are admissible under the residual hearsay exception as an alternative to the
business records exception.112 Moreover, Rule 807(b)’s notice requirement is satisfied because
Chevron produced Guerra’s bank statements for December 2009, February 2010, and June 2011 in
January 2013 – months before trial began,113 and Chevron disclosed all of its trial exhibits to
defendants approximately six weeks before trial began, on August 30, 2013.114

B.

The Identity Cards
Chevron offered two of Centeno’s national identity cards, which purport to bear her

signature and her cedula number. They were offered as signature exemplars to authenticate the
signature that appears on two of the deposit slips. Defendants objected to the admission of the
identification cards on the bases of relevance and best evidence.
The cards are relevant to the question of whether Centeno made the deposits to

111

Tr. (Guerra) 1040:3-16.
112

Karme, 673 F.2d at 1065.
113

DI 746 (Guerra Decl.), Ex. C, Att. K, G, M.
114

DI 1492 (Chevron proposed pretrial order) (filed August 30, 2013; docketed October 4,
2013); see, e.g., Robinson v. Shapiro, 646 F.2d 734, 741-42 (2d Cir. 1981) (notice served
six weeks before trial was conceded to be sufficient); United States v. Lino, No. 00 CR. 632
(WHP), 2001 WL 8356, at *22 n.7 (S.D.N.Y. Jan. 2, 2001) (requiring that the government
give defendant 30-days notice if it intended to avail itself of Rule 807).

App. 60

Guerra’s bank account, as the signatures on the identity cards permit a determination as to whether
the signatures on the deposit slips were affixed by Centeno.
Defendants’ best evidence argument likewise is without merit. There is no genuine
question about the authenticity of the original identity cards. Nor is there anything about the
circumstances that makes it unfair to admit the copies. Indeed, Centeno was an employee of Selva
Viva, which must have had ready access either to copies of her cards or other information permitting
defendants to verify the authenticity of the signatures on the copies of the identity cards offered at
trial.115
Accordingly, the identity cards116 were received properly. Centeno’s signatures on
them are exemplars against which to compare the signatures found on the deposit slips dated
December 23, 2009 and February 5, 2010.

C.

The Deposit Slips and Centeno’s Signatures
1.

The Deposit Slips

The defendants initially objected to the deposit slips on hearsay, authenticity, best
evidence and relevancy grounds. They then explicitly waived any hearsay objection to the deposit
slips save for their hearsay objection to the purported Centeno signatures and the cedula number of
the person who allegedly made the December 23, 2009 and February 5, 2010 deposits.117 What

115

FED. R. EVID. 1003.
116

PX 1740, 1741 (Centeno Nat’l Identity Cards).
117

Tr. 942:14-943:5.

App. 61

remains, therefore, are the authenticity, best evidence, and relevancy arguments and the hearsay
objection with respect to the signatures and cedula number on the December 23, 2009 and February
5, 2010 deposit slips.
The authenticity, best evidence, and relevancy objections are speedily dispatched.
Authenticity of the deposit slips, putting to one side the authenticity of the Centeno signatures on
the December 23, 2009 and February 5, 2010 slips, was proved by multiple means, including
without limitation the distinctive characteristics of bank deposit slips,118 the corroboration of the
information on the deposit slips by the bank statements, the testimony of Guerra, and, with respect
to the December 23, 2009 and February 5, 2010 deposit slips, a Chevron investigator’s affidavit
stating that he obtained copies of each of them directly from the bank.119 The best evidence
objection is baseless because there was no genuine question as to the identity of the copies offered
to the originals from which they were copied and there was no unfairness in admitting the copies.120
The relevance of the deposit slips is obvious – they were offered to prove that the LAPs paid Guerra
for ghostwriting at least some of Zambrano’s Chevron orders. The existence of deposit slips
corresponding in timing and amount to the alleged payments makes it more likely that such
payments were made than in the absence of such evidence.121 This is especially true of the
118

FED. R. EVID. 901(b)(4).
119

E.g., Jian Rong Xiao v. Bd. of Immigration Appeals, 213 F. App’x 38, 41-42 (2d Cir. 2007)
(party’s testimony as to “issuance and chain of custody with respect to” personal documents
can be sufficient to show authenticity); 5-901 WEINSTEIN’S FEDERAL EVIDENCE § 901.03 (2d
ed. 1997-present).
120

FED. R. EVID. 1003.
121

See id. 401.

App. 62

December 23, 2009 and February 5, 2010 deposit slips, provided that they bear Centeno’s signatures
as they purport to do.122
Finally, even if the technical requirements of Rule 803(6) were not satisfied, the
deposit slips, putting to one side the purported signatures of Centeno and the cedula number, are
admissible under the residual hearsay exception for the same reasons discussed in relation to the
bank statements’ admissibility under the same rule.123

122

The deposit slips – at least to the extent of the dates, amounts, and identity of the account
to which the deposits were made – would have been admissible over hearsay objection
under the business records exception even if that objection had not been waived and even
assuming that the deposit slips were offered to prove the truth of those data.
There is adequate documentary evidence to provide a foundation for the deposit slips’
admissibility under Rule 803(6) by virtue of United States v. Pelullo, 964 F.2d 193, 201 (3d
Cir. 1992) (“[T]he testimony of the custodian or other qualified witness is not a sine qua non
of admissibility in the occasional case where the requirements for qualification as a business
record can be met by documentary evidence, affidavits, or admissions of the parties, i.e., by
circumstantial evidence, or by a combination of direct and circumstantial evidence.” (citation
and quotations omitted)). Guerra’s bank statements are circumstantial evidence of the
deposit slips’ reliability as to those points, and that is as true of the two bearing the purported
signature of Centeno as it is of the others. The statements corroborate the dates, amounts,
and account numbers listed on the deposit slips. In addition, Guerra testified that he
retrieved the entire group of deposit slips (PX 1713) directly from Banco Pichincha. Tr.
(Guerra) 934:2-7. The Chevron investigator independently obtained directly from the bank
copies of the two deposit slips purportedly signed by Cenento and that bore her cedula
number, PX 1718 and PX 1719. The testimony of Guerra and the investigator, in addition
to establishing authenticity through the chains of custody, support an inference that the bank
maintained those records in the normal course of its business and that it was its regular
course of business to do so.
123

There is an additional basis for admitting the two deposit slips that purport to contain
Centeno’s signature, assuming that those slips in fact do bear her signature. By signing,
Centeno verified the accuracy of the date, time, amount, account, and recipient contained on
the deposit slip. Her signature thus was an adoptive admission of all of the other statements
contained on each slip under Rule 801(d)(2). Rule 801(d)(2) and Centeno’s conceded role
as defendants’ agent or employee are discussed in greater detail below.

App. 63

2.

Centeno’s Signatures and Cedula

Defendants object on authenticity and hearsay grounds to the admission of the
purported Centeno signatures and cedula number on the bottom of the December 23, 2009 and
February 5, 2010 deposit slips. The Court begins with the authenticity issue.
Defendants argue that there is no evidence that Centeno, as opposed to the bank teller
or some other person, actually signed the deposit slips and wrote Centeno’s cedula number on them,
and that the admissibility of the statements hinges on the author’s identity. The argument is not
persuasive.
The Court has before it two Centeno national identity cards, each of which bears her
signature. It has compared these exemplars with the signatures on the two deposit slips in question,
as it of course may do for this purpose.124 The signatures are extremely similar and share obvious
common characteristics. Each contains loops around each the first and last names and all are
consistent in size, style, and lettering. In all the circumstances, the Court finds that Centeno signed
the deposit slips for the December 23 2009 and February 5, 2010 deposits and in fact made those
deposits to Guerra’s account. As she did so as an employee of Selva Viva,125 which is controlled

124

See United States v. Kalymon, 541 F.3d 624, 632 (6th Cir. 2008) (“Rule 901(b)(3) in turn
provides that the trier of fact can authenticate a signature by identifying and comparing it
with a signature already authenticated.” (citation omitted)); United States v. Spano, 421 F.3d
599, 605 (7th Cir. 2005) (“no rule of evidence makes a [factfinder] incompetent to determine
the genuineness of a signature by comparing it to a signature known to be genuine”).
125

Tr. (Donziger) 2596:1-4 (“Q. Ximena Centeno is an employee of Selva Viva [in December
2009], correct, sir? A. My understanding was that she worked for Selva Viva at that time,
yes.”); PX 1739 (public record showing Ximena Centeno’s employment at Selva Viva from
September 2009 to May 2010).

App. 64

by the defendants,126 the information on those two deposit slips, to the extent if any that it might be
characterized as one or more statements offered to prove the truth of the matters asserted, are
admissible against the defendants as non-hearsay pursuant to Rule 801(d)(2).127

II.

The Hearsay Objections to Certain Guerra-Zambrano Conversations Are Overruled
Donziger – but not the LAP Representatives – objected to Guerra’s in-court direct

testimony, although not his written direct testimony, with respect to (a) Guerra’s conversation with
Zambrano in which Zambrano allegedly instructed Guerra to propose to the LAPs that he would
allow them to draft the judgment and would sign and issue it as his own in exchange for at least
$500,000, and (b) Guerra’s conversation with Zambrano following the ensuing meeting at which
Guerra allegedly repeated the proposal to Fajardo, Yanza, and Donziger. The latter was the
conversation in which Zambrano allegedly told Guerra that he had been in touch with Fajardo, that
the LAPs had agreed to pay Zambrano $500,000 from the proceeds of the judgment, and that
Zambrano would share that money with Guerra once it was received.128
The Court overruled Donziger’s hearsay objection as to Zambrano’s alleged
statement in conversation (a) on the ground that the statements were admissible at least for
nonhearsay purposes, viz. “to explain the sequence of events regardless of whether it was true” and

126

See supra Facts § II.C.2.
127

See Pappas v. Middle Earth Condo. Ass’n, 963 F.2d 534, 537 (2d Cir. 1992).
128

The written direct is at PX 4800 (Guerra Direct) ¶¶ 41-44. The testimony and objections are
included in the passage at Tr. (Guerra) 990:9-1002:1.

App. 65

promised a later ruling as to the full scope of admissibility.129 It overruled also their hearsay
objections as to the alleged statements by Fajardo and Zambrano in conversation (b).130 The Court
has reviewed these rulings and adheres to them.
Zambrano’s statement in conversation (a) clearly was admissible, regardless of its
truth, “to explain the [ensuing] sequence of events” and, in addition, to demonstrate the relationship
between Zambrano and Guerra.
The Zambrano statements to Guerra in the post-meeting conversation, conversation
(b), require analysis at two levels because they include statements as to what Fajardo allegedly told
Zambrano. For the reasons that follow, everything said in conversation (b) also was admissible
against Donziger (and would have been admissible against the LAP Representatives had they
objected to it).
The Fajardo statement to Zambrano – i.e., Fajardo’s statement that the LAPs had
agreed to pay Zambrano $500,000 from the proceeds of the judgment was not hearsay because it was
offered to prove that Fajardo made the statement, which was relevant to show why Zambrano
thereafter did what he did. The same is true of part of Zambrano’s subsequent statement to Guerra
– i.e., that Zambrano would share with Guerra part of any money he received from the LAPs – as
it explains why Guerra assisted in the preparation of the judgment. Thus, the only hearsay in either
conversation was Zambrano’s relation to Guerra of what Fajardo allegedly had said to Zambrano,
which was offered to prove the truth of Zambrano’s account of what Fajardo had said. But this was

129

Tr. (Guerra) 991:1-5.
130

Tr. (Guerra) 999:14-16, 999:24-1001:24.

App. 66

an admissible co-conspirator declaration.131 Indeed, the same would be true of the entirety of the
conversation even if every statement were offered for the truth of the matters asserted.
The guiding principles are these:
“To admit a statement under the coconspirator exception to the hearsay definition,
a district court must find two factors by a preponderance of the evidence: first, that
a conspiracy existed that included the defendant and the declarant; and second, that
the statement was made during the course of and in furtherance of that conspiracy.
* * * The conspiracy between the declarant and the defendant need not be
identical to any conspiracy that is specifically charged in the indictment. [citation
omitted] In addition, while the hearsay statement itself may be considered in
establishing the existence of the conspiracy, ‘there must be some independent
corroborating evidence of the defendant’s participation in the conspiracy.’ United
States v. Tellier, 83 F.3d 578, 580 (2d Cir.1996).”132
As the Federal Rules of Evidence apply both to criminal and civil cases133 and do not differentiate
as to the standards governing admissibility of co-conspirator declarations, these principles apply
here.134
131

FED. R. EVID. 801(d)(2)(E).
132

United States v. Gigante, 166 F.3d 75, 82 (2d Cir. 1999).
Although not expressly required, there is abundant independent evidence of the existence of
the conspiracy.
133

FED. R. EVID. 1101(b).
134

United States v. Stanchich, 550 F.2d 1294, 1299 n.4 (2d Cir. 1977).
The Court notes that there can be no conspiracy to bribe because the crime of bribery is one
which necessarily requires the concerted action of the briber and the bribee. United States
v. Sager, 49 F.2d 725, 727-28 (2d Cir. 1931) (“[w]here concert is necessary to an offense,
conspiracy does not lie”). Defendants therefore conceivably might have argued that
Donziger and Fajardo could not have been co-conspirators, and the statements in
conversations (a) and (b) therefore are inadmissible hearsay, because Donziger and Fajardo
could not have been convicted of conspiring with Zambrano to commit bribery. But that
argument would be of no avail for three reasons.

App. 67

In this case, the Court finds, as is explained in the text, that there was a conspiracy
among Zambrano, Guerra, Fajardo, and Donziger for Zambrano to decide the case in the LAPs’
favor and to sign a judgment prepared by their lawyers and pass that judgment off as his own in
exchange for $500,000. There is ample evidence, independent of the alleged hearsay statements,
both of the existence of that conspiracy and of the participation of Donziger and Fajardo in it. In
addition to the circumstantial evidence described in the text, this includes (1) Guerra’s changing his
“modus operandi regarding [his] role as ghostwriter in the Chevron case,”135 (2) the “brief meeting”
First, defendants did not make the argument. It therefore was waived. Even if they had
made the argument, however, it would have failed for each of two independent reasons.
Second, admission of a statement under Rule 801(d)(2)(E) does not require that the technical
elements necessary to obtain a conspiracy conviction all have been satisfied – only that the
statements were made “in furtherance of some joint purpose.” United States v. Trowery, 542
F.2d 623, 626 (3d Cir. 1976) (“The absence of a conspiracy count . . . is without legal
significance in determining whether [one’s] statements were admissible against [another].
The Government need only prove a conspiracy in fact between [the two] to make the words
of one, spoken in furtherance of some joint purpose, the words of the other as well.”); United
States v. El-Mezain, 664 F.3d 467, 502 (5th Cir. 2011). Rule 801(d)(2)(E), if otherwise
satisfied, therefore would have warranted receipt of the statements even if the participants
in the two conversations could not have been convicted of conspiracy to commit bribery in
addition to bribery.
Third, all of the participants in the conversations would have been subject to conviction for
conspiracy notwithstanding the rule noted in the Sager case. The Court of Appeals has
limited the rule set forth in Sager – that there can be no criminal conviction of the payer and
taker of a bribe for the crime of conspiracy to bribe – to apply only to situations in which the
conspiracy “involved [no] more participants than were necessary for the commission of the”
crime of bribery. United States v. Benter, 457 F.2d 1174, 1178 (2d Cir. 1972). A conspiracy
may be charged where the bribe payer and bribe recipient use a “go between” – a person
whose participation is not necessary to the offense of bribery, which requires only offer and
acceptance in exchange for (usually) official conduct – to facilitate the bribe. See id. That
is exactly the situation here. The bribe givers (Fajardo, Donziger, and perhaps Yanza) and
the bribe taker (Zambrano) used Guerra as their go between. Although he facilitated the
bribe, Guerra’s participation was not essential to the crime of bribery, which required
Fajardo and/or Donziger on one side and Zambrano on the other. All of the participants in
the bribe scheme therefore could have been convicted of conspiracy. Cf. United States v.
Wong, No. 99 CR. 842 (RPP), 2000 WL 297163, at *3 (S.D.N.Y. Mar. 22, 2000).
135

PX 4800 (Guerra Direct) ¶ 44.

App. 68

in Zambrano’s apartment among Guerra, Fajardo and Zambrano during which the latter two handed
over Fajardo’s laptop, containing a draft of the judgment, for Guerra “to fine tune and polish” it,136
(3) Guerra’s call to Fajardo for clarification during the “fine tuning” of the judgment,137 (4)
Fajardo’s provision to Guerra of the “memory aid” to assist him in revising the draft,138 (5) Guerra’s
assistance to Zambrano in preparing the supplemental and clarification order,139 (6) Donziger’s
responses to Guerra at the meeting at which the bribe was proposed, including particularly his
inquiry as to how he could be sure that Zambrano would “not deviate from the agreement and . . .
keep it secret” and his statement that the LAPs “did not have that sum of money [i.e., $500,000] .
. . at [that time],”140 which were attempts to negotiate the terms of the proposal by delaying payment
(the LAPs then were short of cash) and by seeking to ensure that Zambrano would have to deliver
the promised quid pro quo before any money changed hands, and (7) the enormous amount of
independent evidence, including Donziger’s own statements, that Donziger was in overall charge
of the entire LAP effort, and Fajardo’s statements.
Finally, the Court finds that Zambrano’s relation to Guerra of what Fajardo told
Zambrano was in furtherance of the conspiracy. Zambrano thereby induced Guerra to contribute
his efforts to the joint project – the preparation of a judgment prepared principally by the LAPs in

136

Id. ¶ 47
137

Id. ¶ 49
138

Id.
139

Id. ¶ 52.
140

Id. ¶ 42.

App. 69

exchange for a future payment. Making clear to him that Fajardo had conveyed the LAPs’
agreement to pay the money, out of which Guerra would receive his cut, furthered the overall plan.
The “in furtherance” requirement, moreover, is satisfied as to every statement made by Zambrano
in his conversation with Guerra and every statement made by Fajardo in his conversation with
Zambrano.

III.

Beltman and Maest Witness Statements
Douglas Beltman and Ann Maest were employed by Stratus. Beltman was in charge

of the Lago Agrio engagement for the firm. Both were principal authors of the Cabrera Report and
other materials. Prior to the commencement of this action, and thus at a time when their interests
were aligned with those of the defendants, Beltman and Maest were deposed in Chevron’s Section
1782 proceeding. They and Stratus originally were defendants in this action, but they and Stratus
settled with Chevron. In connection with the settlement, each signed and provided to Chevron a
declaration that is at odds with that given in their depositions.141 Neither side, it appears, sought to
take their depositions in this case.
During the trial, Chevron and the defendants stipulated that the Beltman and Maest
declarations would be received in evidence, but not for the truth of the matters asserted, and that the
defendants would waive cross-examination of Stratus’ president, Joshua Lipton. Subsequently,
defendants designated testimony of Beltman and Maest given in the Section 1782 depositions.142
141

PX 5208 (Beltman Decl.); PX 5210 (Maest Decl.).
142

The Court previously had ruled that “all defendants were ‘present or represented’ at the 1782
Depositions, thus satisfying Rule 32(a)(1)(A) and (a)(8) and making them usable ‘to the
same extent as if taken in [this] action.’” DI 939 (Mar. 26, 2013 Order).

App. 70

Chevron responded by offering their declarations. Defendants objected to receipt of those
declarations to the extent they were offered for the truth of the matters asserted. Chevron argues that
these declarations are admissible for their truth under FED. R. EVID. 106, 806 and 807.

A.

Rule 106 – The Rule of Completeness
The rule of completeness states that “[i]f a party introduces all or part of a writing

or recorded statement, an adverse party may require the introduction, at that time, of any other part
– or any other writing or recorded statement – that in fairness ought to be considered at the same
time.”143
Only evidence that is “necessary to explain the admitted portion, to place the
admitted portion in context, to avoid misleading the jury, or to ensure fair and impartial
understanding of the admitted portion” is admissible under the rule.144 Thus, portions of the
declarations that are necessary in fairness or to explain the admitted depositions would be admissible
under Rule 106.
The purpose for which the admitted portions of the declarations may be used is less
clear. The Second Circuit in United States v. Pierre145 noted that “Rule 106 is silent as to the
permissible uses of the document offered for completeness.”146 It acknowledged that “if the original

143

FED. R. EVID. 106.
144

United States v. Johnson, 507 F.3d 793, 796 (2d Cir. 2007) (citation omitted).
145

781 F.2d 329 (2d Cir. 1986).
146

Id. at 332 n.2.

App. 71

evidence was admitted only for a limited purpose, then the additional material should be similarly
limited.”147 Thus, “[w]here the first document is introduced not as substantive evidence but only to
impeach credibility, the document offered for completeness would seem to be appropriately
introduced also not as substantive evidence but only to rehabilitate credibility.”148 Logically it may
well follow that where the original evidence was admitted for the truth, as is the case here, the Rule
106 evidence similarly would be admitted for the truth. Indeed, the Second Circuit in Johnson stated
that “even though a statement may be hearsay,” an omitted portion may be put in evidence where
necessary.149
Phoenix Assocs. III v. Stone,150 and United States Football League v. National
Football League,151 however, suggest a different conclusion. They hold that “Rule 106 ‘does not
compel admission of otherwise inadmissible hearsay evidence. . . .’”152 Accordingly, Rule 106 does
not support Chevron’s contention that the Beltman and Maest declarations are admissible for their
truth.

147

Id.
148

Id.
149

Johnson, 507 F.3d at 796.
150

60 F.3d 95 (2d Cir. 1995).
151

842 F.2d 1335 (2d Cir. 1988).
152

Phoenix Assocs., 60 F.3d at 103 (quoting United States Football League, 842 F.2d at
1375-76).

App. 72

B.

Credibility – Rule 806
Chevron relies also on Rule 806 as an alternative basis for admissibility. The rule

provides:
“When a hearsay statement . . . has been admitted in evidence, the declarant’s
credibility may be attacked, and then supported, by any evidence that would be
admissible for those purposes if the declarant had testified as a witness. The court
may admit evidence of the declarant’s inconsistent statement or conduct, regardless
of when it occurred or whether the declarant had an opportunity to explain or deny
it.”153
A deposition is a hearsay statement.154 The declarations therefore are admissible for
the purpose of impeaching Beltman and Maest’s credibility to the extent they are inconsistent with
their deposition testimony to the same extent it would be admissible “if the declarant had testified
as a witness.”155 “To be inconsistent, statements ‘need not be diametrically opposed.’ The
inconsistency requirement is satisfied ‘if there is any variance between the statement and the
testimony that has a reasonable bearing on credibility.’”156

C.

Residual Hearsay – Rule 807
Chevron contends also that the Beltman and Maest declarations should be received

for the truth of the matters asserted under the residual hearsay exception. The rule does not provide

153

FED. R. EVID. 806.
154

See D’Cunha v. Genovese/Eckerd Corp., 415 F. App’x 275, 278 (2d Cir. 2011); Vaughn
v. Willis, 853 F.2d 1372, 1379 (7th Cir. 1988).
155

FED. R. EVID. 806.
156

United States v. Preldakaj, 456 F. App’x 56, 58 (2d Cir. 2012) (citation omitted).

App. 73

a sound basis for admitting the declarations.
Some of the Rule 807 criteria are satisfied here. In the last analysis, however, it
declines to receive them under the residual exception. Given the divergence between what these
witnesses said under oath at their depositions and what they said under oath in the declarations, one
is hard pressed to say that either is trustworthy. Even more to the point, Chevron knowingly agreed
to the receipt of the declarations for non-hearsay purposes only in exchange for defendants’
agreement not to cross-examine Dr. Lipton. While the Court recognizes that Chevron may have
regarded defendants’ subsequent designation of the Beltman and Maest deposition testimony as a
breach of the spirit of the agreement, a view upon which it expresses no opinion, it is questionable
whether Chevron thus was free to offer the declarations for their truth. Moreover, Beltman and
Maest were obliged by their settlement agreements to testify at trial at Chevron’s request, so
Chevron could have called them live in any case. In all the circumstances, the right course is to
leave the parties where their mid-trial stipulation put them – the defendants had the deposition
testimony in evidence for what it was worth given the impeachment provided by the declarations.
*

*

*

Accordingly, PX 5208 and PX 5210 are in evidence for impeachment purposes to the
extent inconsistent with these witnesses’ deposition testimony. In all the circumstances, the Court
has disregarded as untrustworthy and unreliable all of the deposition testimony of Beltman and
Maest, except to whatever extent it is relied upon specifically in this opinion. The Court has
considered and rejected Chevron’s other contentions on this point.

App. 74

IV.

Missing Witness Inferences
Each side contends that the Court should draw inferences unfavorable to its adversary

or adversaries from the latter’s failure to call certain witnesses. Defendants argue that such
inferences are appropriate with respect to Chevron’s failure to call Beltman, Maest, and Calmbacher.
Chevron argues that such inferences are appropriate with respect to defendants’ failure to call
Fajardo, Yanza, Sáenz, and Prieto.157

A.

The Legal Standard
“A missing witness charge permitting the jury to infer that the testimony of an

unproduced witness would have favored one party is appropriate if production of the witness is
‘peculiarly within [the] power’ of the other party.”158 Such an inference is equally permissible in
bench trials.159 Hence, where one party alone could produce a material witness but fails to do so,
an inference that the testimony would favor the opposing party may be appropriate. Such an
inference is warranted also where a party to the action is, in effect, a missing witness.160 By parity

157

It so argues also with respect to the failure to call Centeno, Tarco and Calva. While much
ink could be spilled concerning whether such inferences would be appropriate, the Court
in the exercise of discretion declines to draw them. Accordingly, these absentees need not
be discussed further.
158

United States v. Rabbani, 382 F. App’x 39, 41 (2d Cir. 2010).
159

See Adelson v. Hananel, 652 F.3d 75, 87 (1st Cir. 2011).
160

Gray v. Great Am. Recreation Ass’n, Inc., 970 F.2d 1081, 1082 (2d Cir. 1992) (“The nonappearance of a litigant at the trial or his failure to testify as to facts material to his case and
as to which he has especially full knowledge creates an inference that he refrained from
appearing or testifying because the truth, if made to appear, would not aid his contention.”
(quoting United States v. Fields, 102 F.2d 535, 537-38 (8th Cir. 1939)).

App. 75

of reasoning, an adverse inference may be appropriate based on the failure to testify of someone
closely allied with or related to a party, such as an employee.161 In the event that a witness is
available equally to both sides, “the failure to produce is open to an inference against both parties”162
or neither party.163 Where the missing witness’s testimony would be cumulative, however, the
inference is not available.164
In determining whether a witness is uniquely available to an adverse party, courts in
this circuit consider whether that witness is available to the party seeking the adverse inference,165
as the availability of the witness to an opposing party makes an adverse inference against the party
with the closer relationship to the witness less appropriate. An adverse inference is not warranted,
for example, where the controlling or related party makes the missing witness available to its
opponent, the party seeking the adverse inference equally could obtain the missing witness’s
testimony, or the party seeking the adverse inference made no attempt to obtain the witness’s

161

Although the prototypical missing witness case involves government informants or
employer/employee relationships, Deler v. Commodore Cruise Line, 92 CIV. 4473 (SHS),
1995 WL 733655, at *5 (S.D.N.Y. Dec. 12, 1995) (citing United States v. Mittelstaedt, 31
F.3d 1208, 1215-16 (2d Cir. 1994)); see also United States v. Carter, 07-5756-CR, 2009 WL
765004, at *3 (2d Cir. Mar. 25, 2009), other types of close relationships also afford a basis
for determining that a witness is peculiarly within one party’s power. E.g., Fey v. Walston
& Co., Inc., 493 F.2d 1036, 1053 (7th Cir. 1974) (failure to call party’s son); Gaw v. C.I.R.,
70 T.C.M. (CCH) 1196 (T.C. 1995), aff’d, 111 F.3d 962 (D.C. Cir. 1997) (failure to call
mother-in-law).
162

United States v. Nichols, 912 F.2d 598, 601 (2d Cir. 1990) (citations and emphasis omitted).
163

E.g., Deler,1995 WL 733655, at *5.
164

See United States v. Torres, 845 F.2d 1165, 1169 (2d Cir. 1988).
165

See Nichols, 912 F.2d at 602.

App. 76

testimony.166 Such a rule prevents a party from manipulating the system by choosing not to call a
witness while claiming that the witness’s testimony would be favorable.

The availability

determination rests on “all the facts and circumstances bearing upon the witness’s relation to the
parties.”167

B.

Defendants’ Absentees
Fajardo, Yanza, Sáenz, and Prieto all are Ecuadorian “local counsel” who work under

Donziger’s supervision and whose compensation often has come through and been influenced or
determined by Donziger.168 Donziger has close personal relationships at least with Fajardo and
Yanza. Fajardo holds a power of attorney from all of the LAPs, is their counsel of record in the
Ecuadorian courts, and was instrumental in arranging for the testimony or, in some cases, anticipated
testimony of other Ecuadorian witnesses on the LAPs’ behalf.169 Yanza is the case “coordinator”

166

See id.
167

Id. (citation omitted).
168

See PX 4900R (Dahlberg Direct) ¶ 75; see supra Facts § II.C.1; PX 2396R (Donziger RFA
Responses), at 21-28.
169

See, e.g., Tr. (H. Piaguaje) 2704:6-8 (“Q. Did Mr. Fajardo tell you that you had to come
to New York to testify? A. Yes.”), 2685:11-14 (“Q. Did Mr. Fajardo assist you in
selecting which of the asamblea minutes to produce? A. The most important ones which
we believed that we had to produce, yes.”); Tr. (Moncayo) 2075:22-23 (“Q. And Mr.
Fajardo helped you draft [your witness statement], correct? A. To write it, yes.”), 2081:1322 (testifying that Fajardo contacted Calva’s father to discuss her testifying in New York),
2099:11-13 (“Q. Did Pablo Fajardo ask you to speak to or send you to speak to any other
people who were coming up to New York to testify? A. Just with Ms. Calva.”); Tr. (J.
Piaguaje) 2404:2-10 (testifying that he discussed with Fajardo his coming to New York to
testify).

App. 77

for them. Sáenz submitted a declaration on the LAPs’ behalf earlier in this case.170 Fajardo, Yanza,
and Sáenz all traveled to the United States in connection with the Lago Agrio case when they
thought it expedient.171 Fajardo has a large contingent fee interest in the Judgment.
Given the relationships between each of the defendants and these four individuals172
and their obvious possession of material, non-cumulative information going to the heart of the case,
the defendants’ failure to produce them warrants, and the Court draws, an inference that the
testimony of each of Fajardo, Yanza, Sáenz, and Prieto would have been adverse to defendants had
they testified. The Court emphasizes, however, that it would have made the same findings in the
absence of those inferences.

170

DI 152-155 (Sáenz Decls.).
171

See PX 5600 (Kohn Direct) ¶¶ 18, 51, 66; PX 1406 (Aug. 9, 2010 Ltr. from J. Kohn to P.
Fajardo and others), at 3.
172

“[W]here an employee who could give important testimony relative to issues in litigation is
not present and his absence is unaccounted for by his employer, who is a party to the action,
the presumption arises that the testimony of such employee would be unfavorable to his
employer.” Chicago Coll. of Osteopathic Med. v. George A. Fuller Co., 719 F.2d 1335,
1353 (7th Cir. 1983) (citation omitted). Other types of close relationships render a witness
“peculiarly within one party’s power” also. For example, the Tax Court in Gaw v. C.I.R.,
70 T.C.M. (CCH) 1196 (T.C. 1995), aff’d, 111 F.3d 962 (D.C. Cir. 1997), drew an adverse
inference against defendant for his failure to offer the testimony of his mother-in-law, who
possessed material information and was beyond the court’s subpoena power because the
defendant and the mother-in-law shared “close and amicable business and family
relationships prior to and during the years at issue.” Id. at *24 & n.45. The Seventh Circuit
similarly held that an adverse inference instruction was appropriate where the defendant
“testified in effect that her son [who possessed material information] was available to her as
a witness; yet he was beyond the subpoena power of the defendants.” Fey v. Walston & Co.,
Inc., 493 F.2d 1036, 1053 (7th Cir. 1974).

App. 78

C.

Plaintiff’s Absentees
Defendants seek to have the Court draw adverse inferences from Chevron’s failure

to call Beltman, Maest, and Calmbacher.
Chevron’s settlement agreement with Stratus, Beltman, and Maest required Beltman
and Maest to testify at trial if so requested by Chevron. Chevron included them on its witness list
but ultimately did not call them either on its direct case or, once it stipulated with the defendants that
their witness statements would be received for non-hearsay purposes in exchange for a waiver of
cross-examination by defendants of Stratus’ Dr. Lipton, on its rebuttal case.
There is no question that Beltman and Maest were available to Chevron by reason
of the settlement agreements. Nor is there any question that both were beyond the geographical
bounds of the Court’s subpoena power. Nevertheless, the Court declines to draw an adverse
inference from their absence for several reasons.
Beltman and Maest settled with Chevron in March 2013.173 Their declarations were
filed in April 2013,174 long before the close of the discovery period. Defendants thus were well
aware of Beltman’s and Maest’s quite revised accounts and could have deposed them. But
defendants elected not to do so. That alone is sufficient to preclude or, in the exercise of discretion,
to decline to draw any adverse inference. A witness is not unavailable to a party that fails to make
any effort to seek his or her testimony.175 Moreover, defendants agreed at trial to the receipt of the
Beltman and Maest declarations for non-hearsay purposes. Only afterward did they offer their 2010
173

See, e.g., DI 934-1 (Settlement and Mutual Release).
174

DI 1007-1 (Stavers Decl. Apr. 12, 2013), at Exs. 3652-3653.
175

See Mittelstaedt, 31 F.3d at 1215-16.

App. 79

Section 1782 depositions for the truth of the statements they then had made, this despite the fact that
Beltman and Maest subsequently had recanted much of what they had said in 2010. An adverse
inference against Chevron in these circumstances would be neither logical nor just and would risk
rewarding gamesmanship.176
Although Calmbacher is not Chevron’s agent or employee and was not contractually
bound to testify, Chevron included his name on its witness list and by all appearances intended to
have him testify, which implies that it could have produced him as a witness. However, as was the
case with Beltman and Maest, defendants elected not to take Calmbacher’s deposition. They made
that election notwithstanding that they were quite aware of the nature of his deposition testimony
that Chevron offered at trial. Thus, for the reasons discussed above, defendants cannot now claim
a benefit from Calmbacher’s failure to testify.

176

See United States v. Carter, No. 07-5756-CR, 2009 WL 765004, at *3 (2d Cir. Mar. 25,
2009).

App. 80

Appendix VI – The Trial Record
Exhibits
A complete list of plaintiff’s exhibits was marked as Court Exhibit F.177 A complete
list of defendants’ exhibits was marked as Court Exhibit D, modified by the Court’s February 25,
2014 order.178 Except to the extent specific exhibits were received or objections sustained during
trial or by other orders, all of the exhibits were received subject to the adversary’s objections.179
Some of those objections are ruled upon in this opinion and appendices, many specifically and some
by category. Nevertheless, given the volume of exhibits that were provisionally received subject
to objections, the Court has not ruled specifically on every objection.
To the extent the Court has relied in this opinion or appendices on exhibits that were
objected to, it has overruled the objections. To the extent the Court has not so relied, it should be
understood either as having sustained or not ruled on the remaining objections in view of the
apparent lack of materiality of the exhibits.
A number of other matters concerning the record warrant explanation.

Direct Testimony
Each party submitted the direct testimony of its witnesses – with the exception of
Nicolás Zambrano, Jeffrey Shinder, and to some extent Alberto Guerra – in the form of written
declarations (“Witness Statements”). Portions of every Witness Statement were objected to.
177

DI 1871 (Feb. 20, 2014 Order), Ex. 1.
178

DI 1872 (Feb. 24, 2014 Order); DI 1873 (Feb 25, 2014 Order).
179

DI 1872 (Feb. 24, 2014 Order), Ex. 2.

App. 81

The Court ruled from the bench on some of these objections.

It issued

comprehensive orders ruling on the objections to the Witness Statements of Steven Donziger and
Karen Hinton.180 It received other Witness Statements subject to objection. To the extent the Court
has relied in the opinion or appendices on portions of those Witness Statements that were objected
to, it has overruled the objections. To the extent it has not so relied, it either has sustained or not
ruled on the objections in view of the apparent immateriality of the evidence in question.

Deposition Designations
Each party designated portions of depositions taken in this action and certain related
Section 1782 proceedings. Many of these designations were the subject of objections. To the extent
the Court has relied in the opinion or appendices on deposition testimony to which objections were
made, it has overruled the objections. To the extent it has not so relied, it either has sustained the
objections or not otherwise ruled on them.

Spanish Language Documents
Many of defendants’ trial exhibits are in Spanish, in whole or in part, and were placed
in the record en masse, without English translations, and received, along with many other exhibits,
subject to objections. Chevron objected to a great many on the ground, among others, that
defendants provided translations of none or only parts of the documents.
On December 2, 2013, the Court directed (1) Chevron to provide a list of defendants’
exhibits to which the aforementioned objection was made, and (2) defendants to show cause why

180

DI 1742 (Nov. 18, 2013 Order), DI 1713 (Nov. 12, 2013 Order).

App. 82

the Spanish language exhibits (including any exhibits that are partly in Spanish) submitted without
complete English translations should not be excluded.181
In response to the Court’s order, defendants “ask[ed] that [the Court] exercise its
discretion and not strike the Spanish language exhibits [defendants] have offered, and give
defendants the opportunity to submit translations of these exhibits if future briefing . . . make[s]
them relevant and material.”182 The Court on December 13, 2013 struck all exhibits that are entirely
or partly in Spanish “except to the extent that defendants, no later than the date on which their reply
to Chevron’s post-trial brief is due, identif[y] each such document on which [they] rel[y] and
provide[] Chevron and the Court with complete, certified English translations of the Spanish
language content of each.”183 Defendants filed their reply briefs on January 21, 2014. They neither
identified any Spanish language documents upon which they relied nor provided the required
translations.
Chevron and Donziger then filed a stipulation agreeing to a list of defendants’
exhibits that “are entirely or partly in Spanish [for which] the Defendants have not provided
Chevron or the Court with complete, certified English translations of the Spanish language content
. . . .”184 The LAP Representatives “d[id] not dispute that the exhibits listed in the Stipulation . . .
are entirely or partly in Spanish,” but asked that the Court require Chevron to submit any
translations it had of such documents “prior to ordering any remaining exhibits stricken from the
181

DI 1771 (Dec. 2, 2013 Order).
182

DI 1828 (Defs. Br.), at 2.
183

DI 1830 (Dec. 13, 2013 Order), at 3.
184

DI 1864 (Stipulation), at 2.

App. 83

record of these proceedings.”185
The Court declines to shift to Chevron the burden of submitting English language
translation of defendants’ exhibits, particularly in light of the defendants’ failure to identify specific
Spanish language documents upon which they relied. Defendants filed their proposed pretrial order
on August 31, 2013, which included most if not all of the Spanish language documents now in
question.186 They had five months after the filing of their proposed pretrial order in which to provide
translations for those documents and one month after the Court ordered them to do so. They have
declined. The exhibits identified at pages 2-3 of DI 1864, Exhibit 1 were, and remain, stricken
pursuant to the Court’s December 13, 2013 order.

Donziger’s Improperly Amended Exhibit List
Donziger moved on September 13, 2013 to amend his trial exhibit list.187 He sought
to add 27 exhibits to the list identified on his proposed pretrial order, fifteen of which (DX 10941108) were described as entire websites. The Court denied the motion with respect to those
exhibits.188 In contravention of that order, Donziger included certain of these exhibits in the mass
offer of exhibits, subject to objection.189

185

DI 1865 (Notice re: Defs. Exhibits).
186

See DI 1377 (Defs. Proposed Pretrial Order), Exs. 1 & 2.
187

DI 1431 (Donziger Defs. Mot.).
188

DI 1539 (Oct. 11, 2013 Order).
189

See DI 1872 (Court Exhibit D), Ex. 2 at 171-172, 181.

App. 84

Two of those exhibits appear to be pages from a Chevron web site, which the Court
will allow to remain in the record in view of their apparent authenticity.190 The remainder all appear
to be press releases or other materials prepared by the defendants which, to the extent offered for
the truth of the matters asserted, are hearsay. They all are stricken.191

The exhibits in question are DX 1094, DX 1096, DX 1099-1101, DX 1102A through DX
1102-T and DX 1106.
190

DX 1094; DX 1096.
191

DX 1099-1101; DX 1102A through DX 1102-T and DX 1106.

App. 85