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incompetence, legal doctrine and scholars say.” 63 Chevron was thus the victim of a procedural abuse and fraud since plaintiffs should have never sued Chevron and since this Court should have declared its lack of jurisdiction immediately, as confirmed in Article 129(9) of the Organic Code of the Judiciary. By failing to take timely action, this Court has shown its bias against my client and has become complicit in denying Chevron due process. This Court must now dismiss for lack of jurisdiction over Chevron. CHAPTER II. THESE PROCEEDINGS SHOULD BE TERMINATED BECAUSE THEY HAVE BEEN PERMEATED BY FRAUD Over the course of this trial, my client has presented unimpeachable evidence revealing that plaintiffs’ counsel have brazenly corrupted these proceedings from their inception. The plaintiffs' attorneys filed the complaint along with a document supposedly ratifying it with at least 20 forged signatures, thus failing to comply with the specific solemnity contemplated in Article 1010 of the Code of Civil Procedure with respect to the plaintiffs who could not or did not know how to write, and the plaintiffs also intentionally submitted forged evidence to prove their false allegations and demands; colluded using intimidation and extortion to obtain the appointment of a supposedly "independent expert," Mr. Cabrera, with whom they conspired, and actually wrote his global expert report; and then tried to hide their wrongdoing. Subsequently, after their fraud was made public, they obtained from the former Judge, Dr. Ordóñez, an illegal order on August 2, 2010, at 9:00 a.m., allowing them to submit a contrived ad hoc "legal brief" with their criteria for the damages evaluation, which they filed on September 16, 2010, at 5:15 p.m., in a last-minute attempt to rehabilitate this case and whitewash their own fraud, by submitting an ad hoc filing addressing the global costs of remediation, cannot begin to—and does not even try to—remove the taint from these corrupt proceedings. The plaintiffs’ filing of September 16, 2010 at 5:15 p.m. simply assumes, without any basis, the liability of Chevron and uses the same corrupted data provided through Mr. Cabrera’s expert report to reach an even more outlandish damages figure. In addition, one of the presiding judges in this case has been implicated in an attempted bribery scheme, and another conspired with the plaintiffs’ attorneys in appointing Mr. Cabrera, in both cases destroying the integrity of the proceedings as a whole. The only appropriate course of action for this Court is to declare this case a nullity, as the entirety of the proceedings has been corrupted in violation of due process as a result of the plaintiffs’ pattern of wrongdoing and abuse of rights, which must not remain unsanctioned. See infra Chapter IV. 64 63 PEÑAHERRERA, Victor Manuel, Lesson In Practical Civil and Criminal Law, EDINO, Guayaquil, 1992, p. 125. 64 As my client continues to receive and review further evidence of the plaintiffs’ fraud, it expressly reserves the right to file this evidence with this Court, and reiterates its request that this Court refrain from entering judgment until it has received and considered all such evidence. CERT. INTERMARK VER: JD - 33 -
2.1 The Plaintiffs Submitted Fabricated Evidence to This Court In March 2010, sworn testimony in the United States from one of the plaintiffs’ nominated experts, Dr. Charles W. Calmbacher, revealed that the two reports submitted to this Court in his name—regarding the judicial inspection of the Sacha-94 and Shushufindi-48 sites—were falsified documents that he had never seen, never authorized, and never signed. 65 Those fabricated reports claimed that there was a high level of contamination at those wellsites, that TexPet’s environmental remediation was inadequate, and that it would cost tens of millions of dollars to clean the soil at these sites once again. 66 Dr. Calmbacher, who testified under oath pursuant to a subpoena obtained by Chevron in proceedings in the United States, explained that the fabricated reports directly contradicted the conclusions he had actually reached. 67 In fact, Dr. Calmbacher affirmed in his testimony that he never “f[oun]d that any of the sites that [he] inspected had contamination of such an extent that it would endanger human health”; never “f[oun]d that any of the sites that [he] inspected required any further remediation”; never “conclude[d] that TexPet had failed to adequately remediate one of the sites”; and never “conclude[d] that any particular site posed a risk to human health or the environment.” 68 Nor had Dr. Calmbacher ever “determine[d] the volume of soil that needed to be remediated” or “determine[d] what the cost of remediating soil at any of the sites would be.” 69 The plaintiffs’ agents, including Mr. Donziger, knew that the submitted expert reports were falsified because Dr. Calmbacher personally relayed to them his actual 65 Official Transcript of Deposition of Dr. Charles W. Calmbacher at 112:1-8, 116:3-18, dated Mar. 29, 2010, attached as Annex 5 to Chevron’s Motion to Strike Dr. Calmbacher’s Judicial Inspection Reports, filed Apr. 14, 2010 at 3:42 p.m., Record at 168970-169158v, 169028, 169030 (the Spanish translation is included at Record 169072-157, 169127b, 169129v). 66 Expert Report of Dr. Charles W. Calmbacher regarding Sacha-94, filed Feb. 14, 2005 at 9:00 a.m., Record at 46239-79, 46272-73; Expert Report of Dr. Charles W. Calmbacher regarding Shushufindi-48, filed Mar. 8, 2005 at 12:00 p.m., Record at 52205-71, 52260-62. 67 Official Transcript of Deposition of Dr. Charles W. Calmbacher at 113:2-25, 117:6-20, dated Mar. 29, 2010, attached as Annex 5 to Chevron’s Motion to Strike Dr. Calmbacher’s Judicial Inspection Reports, filed Apr. 14, 2010 at 3:42 p.m., Record at 168970-169158v, 169028v, 169030v (the Spanish translation is included at Record at 169072-157, 169128, 169130) (Sacha-94 conclusions “are not conclusions I made” and Shushufindi conclusions “are not conclusions I would have written” because they are “false”). 68 Official Transcript of Deposition of Dr. Charles W. Calmbacher at 113:19-25, 115:19-24, dated Mar. 29, 2010, attached as Annex 5 to Chevron’s Motion to Strike Dr. Calmbacher’s Judicial Inspection Reports, filed Apr. 14, 2010 at 3:42 p.m., Record at 168970-169158v, 169028v, 169029v (the Spanish translation is included at Record at 169072-157, 169128, 169129). 69 Official Transcript of Deposition of Dr. Charles W. Calmbacher at 113:11-18, dated Mar. 29, 2010, attached as Annex 5 to Chevron’s Motion to Strike Dr. Calmbacher’s Judicial Inspection Reports, filed Apr. 14, 2010 at 3:42 p.m., Record at 168970-169158v, 169028v (the Spanish translation is included at Record at 169072-157, 169128). CERT. INTERMARK VER: JD - 34 -
Page 1 and 2: TO THE SUBROGATE PRESIDENT OF THE P
Page 3 and 4: 3.4.3 Mr. Cabrera’s Fieldwork Was
Page 5 and 6: 7.3.1 Plaintiffs Have Failed to Pro
Page 7 and 8: the arguments in the Cabrera Report
Page 9 and 10: negligence where TexPet was directl
Page 11 and 12: they not only secretly conspired us
Page 13 and 14: has repeatedly shown to be corrupte
Page 15 and 16: plaintiffs’ egregious and fraudul
Page 17 and 18: to annul the rulings of Judge Núñ
Page 19 and 20: filed on September 16, 2010 at 5:15
Page 21 and 22: after the conclusion of the evident
Page 23 and 24: conditions in the Amazon region rel
Page 25 and 26: during Consortium operations, Chevr
Page 27 and 28: alleged liability and obligations w
Page 29 and 30: the basis of Article 2260 of the Ci
Page 31 and 32: 1.1 Chevron Never Operated in Ecuad
Page 33 and 34: Plaintiffs allege that this corpora
Page 35 and 36: in the complaints in the[] U.S. act
Page 37: If the plaintiffs had timely sued T
Page 41 and 42: As Dr. Calmbacher’s testimony ind
Page 43 and 44: were “choreographed”; just “a
Page 45 and 46: in working clandestinely and in col
Page 47 and 48: Rather, he worked alongside, and on
Page 49 and 50: During this meeting of March 3, 200
Page 51 and 52: course you really have to be comfor
Page 53 and 54: David Mills, another of plaintiffs
Page 55 and 56: consultants—it can no longer be c
Page 57 and 58: ecome the Cabrera Report, a note ob
Page 59 and 60: assembled a team of experts” beca
Page 61 and 62: And even Mr. Donziger himself predi
Page 63 and 64: from the supplemental report’s an
Page 65 and 66: Mr. Cabrera repeatedly promised to
Page 67 and 68: • Mr. Cabrera breached his obliga
Page 69 and 70: Second, to exaggerate his volume fi
Page 71 and 72: headquarters in Quito. The recordin
Page 73 and 74: (viii) The award will be made in pa
Page 75 and 76: Chevron which are unreasoned, viola
Page 77 and 78: complete investigation, particularl
Page 79 and 80: was submitted, Mr. Donziger told th
Page 81 and 82: this case by completely dismissing
Page 83 and 84: 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
Page 95 and 96:
possibility to defend itself, refut
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
Page 105 and 106:
guessing . . . always confused.”
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samples of doubtful origin and inad
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Indeed, although Mr. Cabrera stated
Page 111 and 112:
degree of scientific certainty that
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pathways”-to “recommend that th
Page 115 and 116:
ecommended an economic value of bil
Page 117 and 118:
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
Page 125 and 126:
hasten a large judgment against Che
Page 127 and 128:
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
Page 135 and 136:
gathering evidence” against Chevr
Page 137 and 138:
amount of money, and there are no a
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ecommended dismissal of the 2003 cr
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to settle the civil case. 608 Docum
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that the Government was managing Ju
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essential formalities with nullity
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4.2 Nullity Due to This Court’s L
Page 149 and 150:
oth on the provisions of the Civil
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4.4 Nullity Due to the Lack of Lega
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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
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5.2.4 The Settlement Agreements Sig
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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
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This was expressly acknowledged by
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plaintiffs’ alleged claims, it co
Page 177 and 178:
the complaint.” 768 Accordingly,
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management of natural resources, an
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
Page 187 and 188:
category of damages we possibly can
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
Page 203 and 204:
conditions and liabilities within t
Page 205 and 206:
ing them below 1,000 mg TCLP-TPH pe
Page 207 and 208:
The areas remediated by TexPet requ
Page 209 and 210:
cleanup of the very sites in questi
Page 211 and 212:
water resource, under any hypotheti
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
Page 219 and 220:
plaintiffs’ proposed plans to ins
Page 221 and 222:
extra petita. In all events, any su
Page 223 and 224:
epresentative of the Frente—the n
Page 225 and 226:
establish a causal connection betwe
Page 227 and 228:
Stratus, the paid consultants hired
Page 229 and 230:
eached by disregarding the data pro
Page 231 and 232:
As the Government had intended, col
Page 233 and 234:
equests for damages. 1021 For examp
Page 235 and 236:
of a particular hazardous substance
Page 237 and 238:
Agreement, Scope of Work, and RAP,
Page 239 and 240:
detected. However, none of these co
Page 241 and 242:
contamination. 1050 This Court shou
Page 243 and 244:
enrichment for the victim.” 1062
Page 245 and 246:
accord, and acknowledge that a clai
Page 247 and 248:
In any event, even if an unjust enr
Page 249 and 250:
Second, since TexPet already undert
Page 251 and 252:
• With regard to pit remediation,
Page 253 and 254:
away from the figures” in the pla
Page 255 and 256:
maintained, and corroded pipelines.
Page 257 and 258:
the claimed health effects they all
Page 259 and 260:
Article 7(20) of the Civil Code pro
Page 261 and 262:
3. As Your Honor is aware since it
Page 263:
g) Total lack of effective and time
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