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Then, in Chapter VI.2, the plaintiffs seek: [T]he reparation of environmental damages according to article 43 of the Ley de Gestión Ambiental [Environmental Management Act]. Consequently, the sentence shall order: a. Execution of necessary works in the pits opened by TEXACO, in order to recover the natural characteristics and conditions of the soil and the surroundings . . . b. Contract on charge of the defendant, specialized persons or institutions in order to design and carry out a recuperation plan for the native fauna and flora . . . c. Contract on charge of the defendant, specialized persons or institutions in order to design and carry out a plan for the regeneration of aquatic life; d. Contract on charge of the defendant, specialized persons or institutions in order to design and carry out a plan for the health improvement and medical monitoring . . . The resources necessary to cover the cost of activities whose execution is demanded, in the amount that shall be determined by an expert, as according to the penultimate clause of article 43 of the Ley de Gestión Ambiental [Environmental Management Act], shall be delivered to the Amazon Defense Front (Frente de Defensa de la Amazonia), with the purpose of using them exclusively for the ends determined in the sentence, with the concourse and assessment of specialized international institutions. 805 Under the doctrine of extra petita, no award of damages in this case could go beyond the scope of those claims, a fact recognized by the plaintiffs’ lawyers themselves. As noted, in outtakes from the film Crude, the plaintiffs' lawyers admit that “in the beginning we always felt like the case was only for, to get money to do a proper cleanup.” 806 At that time, even Mr. Donziger stated that there were “no damages other than cleanup.” 807 They only belatedly decided to expand the case to include “every 805 Plaintiffs’ Complaint, filed May 7, 2003 at 11:30 a.m., Record at 73-80v, 79v-80v. 806 Transcript of Crude Outtakes, attached as Exhibit 2 to Chevron’s Motion for Terminating Sanctions, filed Aug. 6, 2010 at 2:50 p.m. (CRS-269-00-01). 807 Transcript of Crude Outtakes, attached as Annex 8 to Chevron’s Fourth Supplemental Motion for Terminating Sanctions, filed Dec. 22, 2010 at 5:45 p.m. (CRS 076-05-1A). CERT. INTERMARK VER: JD - 181 -
category of damages we possibly can.” 808 The Crude outtakes make clear that this was part of a concerted strategy to so inflate the monetary amount of asserted damages that a necessarily reduced judgment would appear reasonable by comparison. As Mr. Donziger put it, “[w]e ask for much more than we expect”—mentioning as much as “eighteen billion”—so that the judge can award “three billion” and say “‘I can give Texaco about 80 percent of what they want.’” 809 6.3 Improper Attempts to Amend and Expand the Complaint in Violation of the Code of Civil Procedure The plaintiffs, both through their conduit, Mr. Cabrera, and through their own brief dated September 16, 2010 at 5:15 p.m., willfully ignore that their complaint fixed the parameters of this lawsuit. In a cynical attempt to grossly inflate the requested damages so that any reduced award by this Court appears to be a “victory” for Chevron, 810 the plaintiffs have attempted to add myriad claims, which they never pled in their complaint, for huge damage amounts, which run contrary to logic. These claims, aside from being unproven and based on fraudulent evidence, should therefore be rejected out of hand as extra petita. The plaintiffs first attempted to introduce extra petita claims by conspiring with the supposedly “neutral” court-appointed expert, Mr. Cabrera. This Court ordered Mr. Cabrera to perform a broad but nonetheless circumscribed investigation: • To assess “the environmental damage, if any, sustained by primary resources; the soil, water resources, plant cover, fauna and other elements of the environment, and to describe the characteristics thereof” (letter a); • To specify “if possible, the source of such damage, both causally and chronologically” (letter b); • To determine “the possible current existence of substances affecting the environment and which constitute or may constitute a hazard for living beings or a threat to their survival and way of life” (letter c); • To specify “the works, activities and technical measures that should be put into practice first, to remediate the environment, and to restore it, to the 808 Transcript of Crude Outtakes, attached as Exhibit 2 to Chevron’s Motion for Terminating Sanctions, filed Aug. 6, 2010 at 2:50 p.m. (CRS-269-00-01). 809 Transcript of Crude Outtakes, attached as Exhibit 5 to Chevron’s Supplemental Motion for Terminating Sanctions filed Sept. 14, 2010 at 11:10 a.m., (CRS-159-00-06). 810 Transcript of Crude Outtakes, attached as Exhibit 5 to Chevron’s Supplemental Motion for Terminating Sanctions filed Sept. 14, 2010 at 11:10 a.m., (CRS-196-01-01); see also Transcript of Crude Outtakes, attached as Annex 1 to Chevron’s Motion filed Sept. 16, 2010 at 4:35 p.m., (CRS-159-00-06a). CERT. INTERMARK VER: JD - 182 -
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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
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attempted to confirm, it recognized
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equested that Judge Ordóñez be re
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protocols for analyzing samples tak
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The plaintiffs first tried, in Janu
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Accordingly, Chevron opposed the re
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possibility to defend itself, refut
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seen conceding in the Crude outtake
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eport could be analyzed by the cour
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lacked those qualifications. Indeed
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and the installation of geomembrane
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guessing . . . always confused.”
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samples of doubtful origin and inad
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Indeed, although Mr. Cabrera stated
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degree of scientific certainty that
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pathways”-to “recommend that th
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ecommended an economic value of bil
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Chevron also invoked its constituti
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postponed a decision. 497 For insta
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“was not engaging in any exercise
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jurisdiction over Chevron. Then, as
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hasten a large judgment against Che
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Mr. Berlinger recently corroborated
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with him.” 536 The plaintiffs eve
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has “the most ridiculous legal cu
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Government “already [knew] about
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Page 137 and 138: amount of money, and there are no a
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
Page 157 and 158: the right to bring all indivisible
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
Page 169 and 170: effect of administrative acts “is
Page 171 and 172: i.e., to the inability to anticipat
Page 173 and 174: This was expressly acknowledged by
Page 175 and 176: plaintiffs’ alleged claims, it co
Page 177 and 178: the complaint.” 768 Accordingly,
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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: Because the complaint sought compen
Page 189 and 190: ecovery for such a claim must go di
Page 191 and 192: v. “Recovery of the land and cult
Page 193 and 194: Plaintiffs’ argument is wrong on
Page 195 and 196: damages, based on conduct preceding
Page 197 and 198: 7.2 Plaintiffs Have Failed to Prove
Page 199 and 200: tripled the requested damages from
Page 201 and 202: damages. Moreover, the new reports
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Page 205 and 206: ing them below 1,000 mg TCLP-TPH pe
Page 207 and 208: The areas remediated by TexPet requ
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Page 213 and 214: None of this could have been a surp
Page 215 and 216: with TexPet. 927 In September 2007,
Page 217 and 218: excess of what any similar remediat
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Page 221 and 222: extra petita. In all events, any su
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Page 231 and 232: As the Government had intended, col
Page 233 and 234: equests for damages. 1021 For examp
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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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