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funds from Petroecuador and the Ministry of the Environment to obtain evidence that “would be used in [the Lago Agrio] court case.” 583 • Shortly before Mr. Cabrera began his work, the Ministry of Environment gave the Frente US$160,000 purportedly in exchange for, among other things, information and laboratory samples. 585 • In August 2008, the Ministry of Environment awarded a five year, US$30 million contract to the Frente, pursuant to President Correa’s relocation plan for inhabitants of the former concession area. 586 That is a substantial 583 Official Transcript of Deposition of Richard A. Kamp, at 283:5-286:8, Oct. 8, 2010, attached as Annex 11 to Chevron’s Second Supplemental Motion for Terminating Sanctions, filed Dec. 8, 2010 at 4:21 p.m.; Notes by Richard Kamp dated Nov. 29, 2005, presented as Exhibit No. 72 in the Deposition of Richard Kamp, dated Oct. 7-8, 2010, attached as Annex 18 to Chevron’s Second Supplemental Motion for Terminating Sanctions, filed Dec. 8, 2010 at 4:21 p.m. 584 See Annex 1 of Chevron’s Fourth Supplemental Motion for Terminating Sanctions, filed Dec. 22, 2010 at 5:45 p.m. (DONZ00027285); see also E-mail from Steven Donziger to Joseph Kohn, dated Jan. 24, 2005 at 2:50 p.m., attached as Annex 1 to Chevron’s Third Supplemental Motion for Terminating Sanctions, filed Dec. 20, 2010 at 4:30 p.m. (DONZ0027538) (noting that Manuel Pallares “is confident he can extract 250,000 from PetroEcuador to carry out the work” for the “Global inspection”); E-mail from Manuel Pallares to Steven Donziger, dated May 29, 2005 at 10:17 a.m., at 2, attached as Annex 1 to Chevron’s Third Supplemental Motion for Terminating Sanctions, filed Dec. 20, 2010 at 4:30 p.m. (DONZ0026841) (“Esperanza talked with the Ministro de Finanzas and he is willing to help with this. It could be via Petroecuador, ECORAE or some other or various government institutions. I really see this happening”). E-mail from Steven Donziger to Joseph Kohn, dated Oct. 26, 2006 at 2:40 p.m., attached as Annex 1 to Chevron’s Third Supplemental Motion for Terminating Sanctions, filed Dec. 20, 2010 at 4:30 p.m. (DONZ0023743) (reporting “good news” that “we have succeeded in setting up a working technical committee with Petroecuador—this will help us on a number of fronts”). 585 Ministry Agreement No. 164, published in Official Gazette 26, Feb. 22, 2007. 586 See SANDOVAL, María A., Environmental Remediation Plan in Motion, El Telegrafo, Aug. 12, 2008, attached as Annex 19 to Chevron’s Second Supplemental Motion for Terminating Sanctions, filed Dec. 8, 2010 at 4:21 p.m.; see also The Remediation Took a First Step, El Comercio (Dec. 24, 2008), CERT. INTERMARK VER: JD - 131 -
amount of money, and there are no assurances that the Frente has not used it to pursue this case. Relatedly, an outtake from the movie Crude shows a meeting between the plaintiffs’ representatives and Ms. Anita Alban, then Ecuador’s Minister of the Environment. She is seen explaining that the Government was “helping” the plaintiffs by, among other things, setting up a corporation with them to manage all of the remediation work flowing from a future (and assumed) Lago Agrio judgment and providing “the support that we can.” 587 Third, and even more significantly, the Government is attempting to promote the plaintiffs’ cause through bogus criminal charges. As discussed below, the plaintiffs’ demand for remediation is barred by the Settlement Agreement signed with the Government of Ecuador and the respective local Governments (the municipalities in the concession area and the Provincial Council), which released TexPet from any responsibility for environmental conditions in the former concession area. See infra § 5.2. The plaintiffs and the Government of Ecuador thus attempted from the early stages of the lawsuit to nullify such Settlement Agreement, claiming that they were “fraudulent.” In one email to the Attorney General’s Office, an attorney for the plaintiffs wrote: “If at some point we want the Government and the Attorney General to play for our side, we must give them some ability to maneuver.” 588 During the same exchange, Deputy Attorney General Martha Escobar stated: [T]he Attorney General’s Office and all of us working on the State’s defense were searching for a way to nullify or undermine the value of the remediation contract and the final acta and . . . our greatest difficulty [lies] in the time that has passed . . . . The Attorney General remains resolved . . . to criminally try those who executed the contract (that also seems unlikely to me, since the evidence of criminal liability established by the Comptroller’s Office was rejected by the prosecutor). 589 (continued…) attached as Annex 20 to Chevron’s Second Supplemental Motion for Terminating Sanctions, filed Dec. 8, 2010 at 4:21 p.m.; President Correa’s Radio Address, Radio Caravana (Apr. 28, 2007). 587 Transcript of Crude Outtakes, attached as Annex 2 to Chevron’s Motion filed Sept. 16, 2010 at 4:35 p.m. (CRS 421-00-03). 588 E-mail from A. Wray dated Aug. 5, 2005 at 4:33 p.m., attached to Chevron’s Objections to Expert Cabrera’s Global Report, filed Sept. 15, 2008 at 2:14 p.m., Record at 141204-07, 141207. 589 E-mail from M. Escobar dated Aug. 10, 2005 10:58 a.m., attached to Chevron’s Objections to Expert Cabrera’s Global Report, filed Sept. 15, 2008 at 2:14 p.m., Record at 141204-07, 141206-07. Attempting to conceal the Government’s coordination with and assistance to the Lago Agrio plaintiffs, Deputy Attorney General Escobar falsely testified under oath that she, in her official capacity, had not had any contact with the plaintiffs’ representatives. Before being confronted with the e-mails discussed in the CERT. INTERMARK VER: JD - 132 -
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TO THE SUBROGATE PRESIDENT OF THE P
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3.4.3 Mr. Cabrera’s Fieldwork Was
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7.3.1 Plaintiffs Have Failed to Pro
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the arguments in the Cabrera Report
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negligence where TexPet was directl
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they not only secretly conspired us
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has repeatedly shown to be corrupte
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plaintiffs’ egregious and fraudul
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to annul the rulings of Judge Núñ
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filed on September 16, 2010 at 5:15
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after the conclusion of the evident
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conditions in the Amazon region rel
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during Consortium operations, Chevr
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alleged liability and obligations w
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the basis of Article 2260 of the Ci
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1.1 Chevron Never Operated in Ecuad
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Plaintiffs allege that this corpora
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in the complaints in the[] U.S. act
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If the plaintiffs had timely sued T
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2.1 The Plaintiffs Submitted Fabric
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As Dr. Calmbacher’s testimony ind
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were “choreographed”; just “a
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in working clandestinely and in col
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Rather, he worked alongside, and on
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During this meeting of March 3, 200
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course you really have to be comfor
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David Mills, another of plaintiffs
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consultants—it can no longer be c
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ecome the Cabrera Report, a note ob
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assembled a team of experts” beca
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And even Mr. Donziger himself predi
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from the supplemental report’s an
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Mr. Cabrera repeatedly promised to
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• Mr. Cabrera breached his obliga
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Second, to exaggerate his volume fi
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headquarters in Quito. The recordin
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(viii) The award will be made in pa
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Chevron which are unreasoned, viola
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complete investigation, particularl
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was submitted, Mr. Donziger told th
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this case by completely dismissing
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mechanism—a second, ad hoc eviden
Page 85 and 86: attempted to confirm, it recognized
Page 87 and 88: equested that Judge Ordóñez be re
Page 89 and 90: protocols for analyzing samples tak
Page 91 and 92: The plaintiffs first tried, in Janu
Page 93 and 94: Accordingly, Chevron opposed the re
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Page 97 and 98: seen conceding in the Crude outtake
Page 99 and 100: eport could be analyzed by the cour
Page 101 and 102: lacked those qualifications. Indeed
Page 103 and 104: and the installation of geomembrane
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Page 107 and 108: samples of doubtful origin and inad
Page 109 and 110: Indeed, although Mr. Cabrera stated
Page 111 and 112: degree of scientific certainty that
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Page 115 and 116: ecommended an economic value of bil
Page 117 and 118: Chevron also invoked its constituti
Page 119 and 120: postponed a decision. 497 For insta
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Page 127 and 128: Mr. Berlinger recently corroborated
Page 129 and 130: with him.” 536 The plaintiffs eve
Page 131 and 132: has “the most ridiculous legal cu
Page 133 and 134: Government “already [knew] about
Page 135: gathering evidence” against Chevr
Page 139 and 140: ecommended dismissal of the 2003 cr
Page 141 and 142: to settle the civil case. 608 Docum
Page 143 and 144: that the Government was managing Ju
Page 145 and 146: essential formalities with nullity
Page 147 and 148: 4.2 Nullity Due to This Court’s L
Page 149 and 150: oth on the provisions of the Civil
Page 151 and 152: 4.4 Nullity Due to the Lack of Lega
Page 153 and 154: The common legal representative’s
Page 155 and 156: continue to hear [the case] until t
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Page 159 and 160: Each municipal suit was settled in
Page 161 and 162: Like the local governments, the Gov
Page 163 and 164: These services were to be administe
Page 165 and 166: 5.2.4 The Settlement Agreements Sig
Page 167 and 168: elease collective claims based on t
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Page 171 and 172: i.e., to the inability to anticipat
Page 173 and 174: This was expressly acknowledged by
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Page 181 and 182: Article 43 created a new course [si
Page 183 and 184: plaintiff shall not amend it, nor s
Page 185 and 186: Because the complaint sought compen
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category of damages we possibly can
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ecovery for such a claim must go di
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v. “Recovery of the land and cult
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Plaintiffs’ argument is wrong on
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damages, based on conduct preceding
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7.2 Plaintiffs Have Failed to Prove
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tripled the requested damages from
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damages. Moreover, the new reports
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conditions and liabilities within t
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ing them below 1,000 mg TCLP-TPH pe
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The areas remediated by TexPet requ
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cleanup of the very sites in questi
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water resource, under any hypotheti
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None of this could have been a surp
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with TexPet. 927 In September 2007,
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excess of what any similar remediat
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plaintiffs’ proposed plans to ins
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extra petita. In all events, any su
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epresentative of the Frente—the n
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establish a causal connection betwe
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Stratus, the paid consultants hired
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eached by disregarding the data pro
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As the Government had intended, col
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equests for damages. 1021 For examp
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of a particular hazardous substance
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Agreement, Scope of Work, and RAP,
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detected. However, none of these co
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contamination. 1050 This Court shou
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enrichment for the victim.” 1062
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accord, and acknowledge that a clai
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In any event, even if an unjust enr
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Second, since TexPet already undert
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• With regard to pit remediation,
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away from the figures” in the pla
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maintained, and corroded pipelines.
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the claimed health effects they all
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Article 7(20) of the Civil Code pro
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3. As Your Honor is aware since it
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g) Total lack of effective and time
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