The Persecution of Steven Donziger: A SLAPP in the face

By Rojina Parchizadeh

Few people know about the historic judgment issued in a small Ecuadorian court in 2011, where Judge Zambrano held Chevron liable for dumping toxic waste in the Ecuadorian rainforest.

Counsel for the plaintiffs, Steven Donziger, described the proceedings as ‘the first time that a small developing country has had power over a multinational American company.’ 

Since the judgment, Chevron has attempted to undermine the ruling by: arguing against the legitimacy of Ecuadorian courts in the US; lobbying the US Government to remove special trade preferences with Ecuador if the Ecuadorian government fails to force the plaintiffs to drop the lawsuit; removing all assets from Ecuador before the ruling could be enforced; and pursuing litigation against Steven Donziger, the plaintiff’s lawyer.

Lawsuits such as these are called ‘strategic lawsuits against public participation’ (SLAPP). As Erin Brokovich puts it, ‘a massive multinational corporation such as Chevron can afford to pay millions of dollars in legal fees, indefinitely - and doing so will almost always be cheaper than paying a fine or settling.’

The Ecuadorian case

To understand the lawsuit against Donziger, it is important to note the key facts in the plaintiff’s case. In 1972, Texaco (now Chevron), began drilling operations in the Ecuadorian Amazon, leaving behind toxic sludge which is ordinarily reinjected into the ground. Allegedly, the waste caused noticeable increases in cancer, miscarriages and birth defects in the Indigenous villagers, who later became the plaintiffs in the case. 

Initially, Donziger’s team attempted to file the lawsuit in New York but the federal court stated that the case had “everything to do with Ecuador and very little to do with the United States.” Donziger’s team then reluctantly pursued litigation in Ecuador, where the judicial system has been widely criticised for corruption. 

Chevron accepted that it had created pits full of toxic sludge, but argued that they did not contravene any regulations existing at the time. Richard Cabrera, a geological engineer who had been appointed to serve as an independent environmental-damages expert, recommended that Chevron be ordered to pay $27bn in damages. Chevron objected to the evidence but the plaintiffs had commissioned a meta-analysis from Stratus, which stated that the independent analysis was ‘sound and reasonable.’ Judge Zambrano then ordered Chevron to pay $18bn in damages to the plaintiffs. After multiple appeals, the National Court of Justice upheld the ruling of Judge Zambrano but reduced the damages to $9.5bn.

Chevron v Donziger

In February 2011, Chevron filed a RICO lawsuit against Donziger in New York, alleging that the lawyer had bribed a judge and fabricated evidence. The presiding judge was Lewis Kaplan, who had invested money in Chevron and once described the company as ‘of considerable importance to our economy.’ 

Alberto Guerra, the key witness in the RICO case, was a former Ecuadorian judge who Chevron had relocated to the United States and paid a $12,000 monthly salary. Guerra falsely swore that he had organised a bribe between the presiding judge and the plaintiffs and wrote Judge Zambrano’s judgment. Despite Guerra’s later admission that his testimony was largely falsified, Judge Kaplan ruled that Donziger was a ‘co-conspirator’ in extorting money from Chevron and granted an injunction preventing plaintiffs from receiving their compensation. 

However, the litigation did not end there. Chevron brought another suit, requesting full access to Donziger’s confidential work material, which Judge Kaplan granted. When Donziger objected, Judge Kaplan asked a private law firm with ties to Chevron to prosecute Donziger, a widely criticised and unprecedented move. In the subsequent proceedings, Donziger was sentenced to six months in prison at a judge-only trial. 

Why is this case important?

Chevron v Donziger demonstrates how:

• Public interest advocates can become the subject of legal proceedings as opposed to the subject matter of their case. 

• Domestic courts have made decisions about the legitimacy of courts beyond their jurisdiction. Originally, the US court refused to hear the matter because it was an Ecuadorian matter, but had no issues ruling on the legitimacy of the Ecuadorian ruling afterwards.

• Multinational corporations can drain their opponents financially and emotionally. Chevron’s PR team planned to ‘demonise’ Donziger by launching a website called ‘The Amazon Post’ with headlines such as ‘Confessions of a Fraud.’ Additionally, Chevron expended considerable resources on hiring private investigators to follow the plaintiff’s legal team. 

This article was composed with the intention of examining SLAPPS. As such, detailed discussion of the evidence in both cases has been omitted. However, readers are encouraged to read more about the facts of the case here.