Cracks in Chevron-Ecuador Case’s Secrecy Shell Multiply

     MANHATTAN (CN) – As Courthouse News prepares to publish the second confidential document from Chevron’s arbitration against the Ecuadorean government, the fight to bring these proceedings into the light has made bedfellows of strange partners.
     As with the document Courthouse News published in late February, the latest leak concerns the computers of Ecuadorean Judge Nicolas Zambrano, whose name appears on a more than $9 billion judgment against Chevron for oil devastation to the Amazon rainforest city of Lago Agrio.
     Heads are still spinning over the February disclosure, which works toward undermining Chevron’s allegations that Zambrano took a bribe in exchange for affixing his name to a ghostwritten decision.
     “The hard drives prove what [Ecuador] has insisted all along: Judge Zambrano wrote the Lago Agrio judgment, and nothing [self-proclaimed ghostwriter Alberto] Guerra says can be believed,” the once-confidential legal brief says.
     Chevron’s lawyer Doak Bishop from the King & Spalding firm complained about the unauthorized disclosure in a March 5 letter to the tribunal, but in an unexpected twist argued that the documents should have been public from the get-go.
     Referring to Chevron and its subsidiary TexPet, Bishop wrote: “Claimants have, from the start, advocated that these proceedings, and the Zambrano hard drives forensic analyses in particular, be public.”
     The anonymous source who provided Courthouse News with the document it published in February said the brief came from Ecuador’s attorney general’s office, but lawyers for Ecuador have distanced themselves from the disclosure, telling the Permanent Court of Arbitration in the Netherlands to keep an eye on Chevron.
     “The republic continues to believe that it is inappropriate for this material to be in the public domain, most especially because the hard drives themselves are part of an ongoing criminal investigation by the Prosecutor General,” Ecuador’s attorneys wrote in a letter on April 1.
     They added, fully italicized, “The republic’s position remains unchanged.”
     Bishop’s letter scoffs at this notion, saying the leaked brief’s metadata ties it to an associate of New York-based attorney Steven Donziger, the prime target of Chevron’s allegations that it was defrauded in Ecuador.
     Chevron’s letter describes Donziger as Ecuador’s “ally,” but recent events have exposed fissures between the Latin American government and the New York lawyer.
     As the parties spar over who whispered what, the tribunal has since amended the confidentiality order, permitting the disclosure of legal briefs describing the forensic evidence but keeping the underlying reports under seal.
     “As all parties accept, there has been a highly inappropriate leak into the public domain of confidential technical materials that should have remained strictly confidential within this arbitration, expressly subject to the confidentiality clause,” the tribunal wrote. “It would serve no purpose in the tribunal here seeking to allocate factual or legal responsibility for such leak, whether to [Chevron and TexPet], to [Ecuador] or to any third person. However, it is necessary to record, contrary to certain submissions from the parties, that the tribunal could not, on the materials currently placed before it, find that the claimants were responsible for such leak or that the leak was made by any authorised person within the office of the respondent’s attorney general.”
     This amended tribunal order gave voice to Chevron’s competing legal briefs, which acknowledged that both parties’ experts are in agreement on the “forensic information” in Zambrano’s hard drives.
     Chevron contended that its expert found more evidence of fraud against the company, and Ecuador countered that the new evidence turns up the lights on the “haunted house” where the company found its alleged ghostwriters.
     Meanwhile, Donziger and his advocates have fought vigorously for the full disclosure of all of the forensic reports that he says will vindicate him from a federal judge’s ruling that his legal team obtained the Ecuadorean judgment against Chevron by “corrupt means.”
     With an appeal of the ruling imminent, Donziger’s lawyer Deepak Gupta asked the 2nd Circuit to take judicial notice of the newly public forensic evidence before this month’s oral arguments, a motion that Chevron opposed.
     Both Chevron and Ecuador’s attorney general have stonewalled Donziger’s letters demanding the production of information he believes will contain exculpatory evidence.
     Courthouse News will on Thursday publish another leak from the arbitration tribunal’s highest-stakes litigation in memory, this time giving the public its first glimpse of unmediated findings from one of the forensic experts.
     The latest unveiling comes in apparent violation of the tribunal’s confidentiality order, which Ecuador adamantly fought to protect and appears to have little motive to violate. Ecuadorean President Rafael Correa commented that his government could face “bankruptcy” if the tribunal rules in Chevron’s favor.
     Nor would the disclosure of a secret report attacking the crux of Chevron’s allegations seem to benefit the oil giant.
     The same day that the appeal hits the 2nd Circuit, the arbitration tribunal will convene in Washington for the beginning of a roughly three-week hearing to decide the case on April 20.
     Courthouse News has sought to have those hearings opened to the press and public, and the Reporters Committee for Freedom of the Press seconded that petition, “in the interests of justice.”
     The Permanent Court of Arbitration has not responded to or acknowledged receipt of that request for more than a week, and it did not provide the remaining forensic reports currently under seal.

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