Donziger adopted Dave Russell’s evocative comparison of the Oriente oil fields to Ukraine’s nuclear wasteland. He entitled an article he wrote in 2004 for an academic journal “Rainforest Chernobyl: Litigating Indigenous Rights and the Environment in Latin America.” He began to use the term frequently in press releases and interviews and made sure others did, too. Donziger wasn’t shy about instructing Amazon Watch how to frame the case. “I was shocked by what I saw in Ecuador,” the group’s honorary director, Bianca Jagger, told reporters gathered for Chevron’s annual shareholders meeting in April 2004. “It was second only to Chernobyl.”
Donziger had hired Russell a year earlier by means of a consulting service that put lawyers in touch with paid courtroom experts. Donziger told Russell to calculate “a big number” for the cost of cleaning up the Oriente. With only a month before preliminary court papers were due in Lago Agrio, the Atlanta-based consultant hurriedly toured the rain forest and did back-of-the-envelope calculations in his Lago hotel room to come up with the $6.14 billion estimate. A rotund man with a healthy sense of humor, Russell referred to this kind of analysis as SWAG, or scientifically wild-assed guessing. Unconcerned by this lack of precision, Donziger asked Russell to continue to provide analysis to the plaintiffs’ team.
Much about the assignment struck Russell and his sidekick, industrial hygienist Charles Calmbacher, as surprising. On one flight through Miami to Quito, Russell noticed Bianca Jagger sitting a few rows away. She, too, was on her way to help promote the suit. When they met later in Quito, Russell remarked to Jagger that he would not have expected to see her in economy class. Jagger laughed. It had been many years, she said, since she had enjoyed the Rolling Stones lifestyle and traveled by private jet.
A more substantive revelation to Calmbacher was that the judge in Lago Agrio held the courtroom portion of the trial before the litigants headed out to the field to gather the bulk of the evidence. “In the United States, it would have been the other way around,” Calmbacher said years later: “discovery first, then the trial.” The judicial inspections that began in the summer of 2004 were like nothing either expert-for-hire had ever seen. Calmbacher compared the inspections to “a circus.”
At each well site or separation station, judicial employees constructed a makeshift courtroom from plastic chairs, folding tables, and nylon collapsible tents. The Amazon sun pushed temperatures close to one hundred degrees, with humidity to match. Soldiers with automatic rifles provided security. Swatting away insects, opposing lawyers delivered loud, repetitive disquisitions. If television cameras were present, the speeches could last for hours. Technicians hired by Chevron and the plaintiffs dispersed to extract soil and water samples. Calmbacher and the other plaintiffs’ experts at first wore white-hooded hazmat suits and gas masks, a flourish Donziger encouraged. Chevron’s experts never bothered with the suffocating outfits, and the plaintiffs’ team swiftly abandoned them, too.
At many of the inspections, area residents volunteered their woeful histories to the mobile court. As a result of contaminated water, “all the family suffers from headaches and stomach aches,” a man named Miguel Zumba testified at a well site called Sacha 13. Instructed to travel to a clinic in Quito, he recounted, the family arrived in the capital only to be told doctors weren’t available, so they returned without treatment. At the inspection of the Sacha Sur separation station, José Segundo Córdova Encalada described his understanding of the effects of waste oil spread on roads: “Why did my family get sick? Because we used to walk, since we are not rich. Around noontime, local nature and climate made smoke go up in the highway, which caused many men in these communities to suffer from the lower half of their body, and it gave women cancer in their genitals.” Córdova said he knew enough not to drink the oil-stained water from streams and wells. But his uncle “wouldn’t stop drinking it, and after more or less one year, he became sick with heartburn. He was taken to Quito, then came back home [for] several months, and finally died. He was diagnosed with cancer.” What the personal testimony lacked in terms of medical records or other hard evidence of causation, it made up in heartfelt emotion.
The plaintiffs contended that, rather than releasing tainted produced water, Texaco should have spent millions of additional dollars to “reinject” the fluid into the underground reservoirs from which it had drained crude oil. As early as 1962, two years before Texaco began drilling in the Oriente, the American Petroleum Institute, an industry-funded trade group, had published a monograph entitled Principles of Oil and Gas Production, which warned: “The management and disposal of produced water requires extreme caution, not only due to the possible damage to agriculture, but also to the possibility of polluting lakes and rivers that provide water for human consumption as well as for irrigation.” By the 1970s, Texaco and its competitors used reinjection widely, if not uniformly, in such places as Louisiana, Texas, and California. In June 1974, Texaco obtained a U.S. patent for an improved reinjection method designed to avoid the “considerable contamination problems” associated with surface disposal of production water.
Chevron’s lawyers countered that in the 1970s and 1980s, reinjection was not an iron-clad standard in the United States, especially in thinly populated regions. With certain restrictions, American environmental authorities allowed surface discharge of production water, once residual crude had been removed and the water had been treated to neutralize heavy metals and salts. Chevron, based in San Ramon, east of San Francisco, was allowed by the state of California to discharge produced water at drilling sites in the San Joaquin Valley, not far from large agricultural operations. During the period when Texaco was active in the Oriente, Ecuador did not ban the practice, although by the time of the judicial inspections, Petroecuador was reinjecting produced water at most of its well sites. Other oil-producing nations that permitted surface discharge, depending on local conditions, included Angola, Brazil, Colombia, Indonesia, Kuwait, Mexico, and Nigeria. These places were not famous for environmental rigor, of course, but the point is that Ecuador’s lax standards were hardly unique. In a similar vein, Chevron pointed out that while Ecuadorian officials occasionally expressed displeasure over Texaco’s management of its unlined waste-oil pits, the Quito government never outright prohibited them.
By 2004, the judge hearing these conflicting entreaties had changed. Judge Guerra had presided over the case for less than a year before it rotated to Judge Efraín Novillo. The customary shuffling of cases heightened the extemporaneous atmosphere of the oil site inspections. Novillo, fifty-six, hurriedly had to get up to speed on the legal arguments and past filings. He admitted that he felt inundated by the attorney diatribes and thousands of pages of esoteric documents cluttering the court in Lago Agrio. “This is the first time,” he said, “that I’ve worked on such a transcendental case.”
As the peripatetic inspections unfolded, Donziger was gaining greater influence over the plaintiffs’ team. Bonifaz lacked the stomach for tramping around the damp jungle; he mostly remained in western Massachusetts. The patrician Alberto Wray stayed in his comfortable office in Quito. “This was not a case for gentleman lawyers or academics,” Donziger boasted in his private notes. “In a highly charged macho culture, this has become a flat-out street brawl.”
Chevron often singled out Donziger by name. The company’s Ricardo Reis Veiga publicly called him “despicable” and prone to “blatant lies and distortions” when discussing scientific evidence with journalists. Donziger wore the accusations as a badge of honor. At the same time, he did not want a gringo to be the public face of the plaintiffs’ team in Ecuador. For that job, he groomed Pablo Fajardo.
An activist with the Lago-based Frente de Defensa de la Amazonia (Front for the Defense of the Amazon), Fajardo had a lowly extension-school law degree. He did not own a suit or tie, and he spoke little English. Donziger saw the wiry Fajardo as the perfect front man for the jungle lawsuit. “Pablo never seemed daunted by the obstacles that stymied the Quito lawyers, who often complained about the heat and whether we had enough Gatorade in the cooler,” Donziger noted. Fajardo “not only relished the hot weather, he seemed to come even more alive as the temperature rose.” By mid-2005, Donziger had persuaded Wray to make him the plaintiffs’ lead local lawyer. Wray seemed relieved to distance himself from the rancorous, exhausting case.
At the Sacha Sur inspection, Fajardo wore a Panama hat over his bushy black hair when he faced off against Adolfo Callejas, an upper-class Quito attorney who spoke for Chevron. “Here we will see something that is common in every oil operation, yet has been demonized by the plaintiffs,” Callejas told the judge. Rail-thin, the patrician lawyer had a haughty, condescending tone. Nearby, a network of black-painted tanks and pipes still separated petroleum from salt-laden formation water. “The production stations,” Callejas continued, “are necessary, and are the technology that has been used, and is still used, in all crude oil production activities around the world.”
Fajardo answered with typical fervor: “They try to deceive public opinion, the court and everyone at this inspection by making us believe that such practices were the way people operated in the entire world,” he said. “That’s a complete lie, Your Honor.” Donziger listened intently from the edge of a crowd of about seventy-five people. “More than a billion gallons of poisonous toxic water were dumped into marshes and rivers in this area,” Fajardo added. “What the people demand is the complete remediation of the area Texaco contaminated.”
“What these people seek, Your Honor, is not environmental remediation,” Callejas responded. “It is not cleanup. It is not a better quality of life. It is two checks.” He held up two fingers. “One for the Frente de Defensa de la Amazonia, and the other for the trial expenses, which means for the lawyers.”
This accusation, especially from a member of the Quito elite, outraged Fajardo. When it came to the Oriente, he told an interviewer, “I know the problems as they really are, because I live here.” He had hesitated about accepting the assignment as the plaintiffs’ lead Ecuadorian attorney, worried whether he possessed sufficient professional credentials. He agreed only when it occurred to him that if he took the case, all he would have to think about “is how to tell the truth.”
* * *
Fajardo was one of thirteen children in a poor family that moved to Shushufindi in 1989 when he was fourteen years old. A drought had driven his parents to the oil-field town fifty miles southeast of Lago Agrio. Though foul and violent, Shushufindi had jobs for desperate people. Fajardo’s family was crammed into a tiny shack next to a ruined stream. They had no electricity. Texaco employees in the town lived inside a gated compound with air-conditioning, catered food, and a lighted tennis court. As a teenager, Fajardo worked on a palm oil farm for $50 a month. Because of his serious mien, others asked him to bring complaints to the managers about the lack of drinking water for laborers and the pesticides that made them sick. His activism eventually got him fired. He found a new job cleaning oil-storage tanks, all the while studying for his high-school degree in the evening. In 1993, he joined the Frente de Defensa de la Amazonia, which was formed in connection with the original Aguinda case in New York. The Frente, as everyone called it, connected Oriente residents to their American lawyers. Gradually, the group, which was led by mestizo transplants to the region, expanded to become a force in regional politics. The Kohn Swift law firm in Philadelphia provided the Frente with much of its meager budget. It was not lost on the Frente’s leaders that if the plaintiffs defeated Chevron in court, the threadbare organization stood to become a far richer and more powerful entity.
In 1997, several left-leaning Spanish-born Catholic missionaries offered Fajardo a scholarship to get a law degree and advance his career. He signed up for a six-year program that allowed him to do most of his course work remotely from Shushufindi. Even before graduating, in 2004, Fajardo began working part-time for the Frente as a paralegal. It was in this capacity that he caught Donziger’s eye, and the two became friends. The pollution suit was Fajardo’s first significant case, as it had been Donziger’s. Even after Fajardo became the nominal lead lawyer in Ecuador, he called Donziger el Comandante, “the Commander.”
“Things feel like they are falling into place,” Donziger wrote in his private notes in the fall of 2005. He was traveling to Ecuador for a week or two each month. The rest of the time, he worked on the case from his apartment in New York. In addition to Fajardo, his team on the ground included Luís Yanza, a taciturn urbano organizer who served as executive director of the Frente, and several young leftist Ecuadorian lawyers based in Quito who played supporting roles. From San Francisco, Amazon Watch maintained an active website that promoted Aguinda II as part of its “Clean Up! Pay Up!” campaign against Chevron, an initiative Donziger helped to fund with money from Kohn Swift.
As a mechanism for raising money and ecological consciousness, Aguinda II steadily gained momentum. As a formal legal proceeding in Lago Agrio, it produced an ever-expanding stream of irreconcilable results.
The plaintiffs claimed to discover contamination everywhere. The San Carlos cancer study, they alleged, demonstrated the damage to human health. Chevron, in contrast, found little pollution that could be traced clearly to Texaco and dismissed the health risks as unproven. The San Carlos study, the company argued, was fatally flawed because it underestimated the population of the town; with the accurate overall head count, the apparent cancer cluster disappeared. In cold scientific terms, Chevron maintained, the study proved nothing at all. The rotating roster of judges from the Lago court made no obvious attempt to evaluate the competing claims.
But beyond the blur of soil and water samples, Donziger was shaping a story about poor peasants confronting a colossal corporate villain. And now he had placed the well-cast Pablo Fajardo at center stage. While Chevron’s lawyers harangued the judge about the inevitable environmental costs that came with industry and advancement, Fajardo gave authentic voice to suffering visited from afar. The oil company protested that the plaintiffs couldn’t prove a causal connection between Texaco and individual bad fortune. But did that really matter? Donziger sought to demonstrate the essential nature of an uncaring multinational. The legal skirmishing revealed corporate indifference, entirely apart from how many parts per million of total petroleum hydrocarbons remained on the rain forest floor and who had left them there. With Fajardo as front man, he wrote, the plaintiffs were “clearly adopting a more aggressive strategy, with a delicious tray of options to nail” their opponents.
The inclination “to nail” the opposition grew on both sides of the conflict, a tendency favoring Donziger, the more nimble combatant. Ricardo Reis Veiga’s boss at Chevron headquarters in San Ramon, Charles James, possessed ample competitive spirit, but James’s disdain for the plaintiffs and zealousness on behalf of the company led him to underestimate his competition. This created opportunities for Donziger to counterpunch.
Named Chevron’s vice president and general counsel in December 2002, James came to the job from the Bush Justice Department, where he served as assistant attorney general in charge of the Antitrust Division. His main legacy in Washington was settling a monopoly case against Microsoft initially filed by the Clinton administration. James agreed to let the software giant escape any severe penalties, including a possible breakup. A “bedrock conservative,” in his own words, James came under heavy criticism from Microsoft rivals, consumer advocates, and state attorneys general for dropping the antitrust case on terms favorable to Bill Gates and his company.
James had spent his career shuttling between government jobs during Republican administrations and a lucrative perch in the Washington office of the corporate law firm Jones, Day, Reavis & Pogue. He had proven his acumen as a defender of corporate interests, noting during his Senate confirmation hearing for the Justice Department antitrust post that on seven occasions he represented targets of criminal grand jury investigations, “none of which resulted in indictment of my client.” He brought the same fervor to defending Chevron, but in Ecuador, he did not enjoy the same kind of success.
In October 2005, the Ecuadorian trial schedule called for the inspection of a processing station called Guanta. The facility was situated near Lago Agrio, on ancestral Cofán land. It had processed huge volumes of crude and discharged oceans of produced water, the drilling by-product that contains naturally occurring salts and other chemicals. Donziger arranged to deliver a busload of traditionally dressed Cofán tribe members to witness the proceedings, and he invited journalists from Quito and abroad.
The evening before the inspection, an unusual document materialized at the Lago courthouse: a report from a nearby military base, saying that an officer had received intelligence that the Cofán were planning an ambush or kidnapping at Guanta. This should have seemed strange because, of all the tribes in the region, the Cofán were generally known for avoiding violence. Nevertheless, Chevron lawyers immediately filed a formal request that the judge stop the inspection, which he did. The next morning, El Universo and El Comercio, the two largest-circulation Ecuadorian newspapers, as well as several of their leading rivals, carried full-page Chevron advertisements attacking Aguinda II as fraudulent. (The timing of the ads was a coincidence, the company later claimed.)
Chevron’s foray caught Donziger and Fajardo by surprise. The American watched as Fajardo hurriedly tracked down the judge by cell phone and pleaded for the inspection to proceed. In his notes, Donziger described “seeing [Fajardo’s] thin body collapse as he told me, ‘No way.’ ” The company, Donziger wrote, is “more evil and corrupt than we could admit to ourselves.” He speculated about “an unholy alliance between the army, Texaco, and PE [Petroecuador] to make sure we do not win the case.”
Years earlier in New York, Texaco had promised Judge Rakoff that if he sent the suit to Ecuador, the courts would provide “impartial and independent justice, without corruption or interference from the military.” Now, though, Donziger believed Chevron had somehow arranged for a bogus security alert as a pretext for the army’s intervention. Rather than concede that he had been outfoxed, however, he began plotting how he could turn the situation to his clients’ advantage.
In defiance of the court, Donziger herded the journalists and costumed Indians onto the reserved buses and transported them to the Guanta station. The entire troupe marched through a muddy field and stepped over barbed-wire barriers to reach an oily marsh grown over with grass, where security guards confronted the visitors. At Donziger’s direction, Fajardo made a furious speech about military-corporate conspiracies against justice. TV cameras rolled.
Next, Donziger put the crowd back on the buses and took them to the Rayo IV military base, where a Lieutenant Colonel Francisco Narvaez met them at the gate. The commander professed ignorance about any intelligence alert. He knew of no Cofán threat. The report could not have come from Rayo IV. Only he, the colonel, had authority to declare such an emergency. Then the officer made some startling concessions. He admitted that he was a friend of one of Chevron’s top lawyers. And, he acknowledged, members of the company’s legal team were living at the Rayo IV base, under the protection of his troops.
The television cameras caught it all. Donziger triumphantly claimed that his theory about Chevron’s ties to the military had been proven correct. The Guanta episode set off intense controversy in Ecuador. Chevron representatives vehemently denied any impropriety, but Colonel Narvaez promised an investigation. In November, the Ministry of Defense released a contract between Chevron and the Fourth Army Division. The agreement confirmed that the oil company had built a large residence at Rayo IV for Chevron’s legal defense team, with the understanding that, after the trial, the lodging would be donated for the use of army officers. The ministry further admitted that the supposed intelligence about a Cofán threat had been traced back to two sources: an unnamed Chevron employee and a former Ecuadorian army captain who now did security work for the oil company.
The Ecuadorian media had a field day. For good measure, Donziger filed a petition with the Inter-American Commission on Human Rights, seeking protection for the plaintiffs’ team in case of military reprisals. In his notes, Donziger celebrated an Associated Press article about the episode that led to other coverage. “We sent a boletín to Ecuadorian press, and the response was good—four newspapers covering.… Bianca mad [she] could not sign petition … AW [Amazon Watch] put it on PR wire and posted on their website. Tomorrow, write another boletín to advance story, put pressure on Chevron over its ties to the military.”
The oil company continued to deny that it collaborated with current or former soldiers to thwart the Guanta inspection, which, Chevron pointed out, it had requested in the first place. It called Donziger’s allegations “completely false and irresponsible.” Pointing to U.S. State Department records showing that, since 1998, at least ten Americans had been kidnapped in the area, Chevron said it cooperated with the army only to keep its employees safe. The company’s dedication to staff security notwithstanding, the incident fit neatly into Donziger’s script about an overbearing company going to extraordinary lengths to prevail, including hiring the Ecuadorian military as its protector and hotelier. He, too, could play rough. Now he felt all the more justified in doing so.
* * *
Still, revealing what he portrayed as Chevron’s illegitimate modus operandi did not solve Donziger’s main legal challenge: The judicial inspections that did occur were producing a morass of incompatible science. Confronted with the opposing parties’ contradictory technical information, the latest judge on the case, Germán Yáñez Ricardo Ruíz, decided in 2005 to initiate a new stage of the convoluted proceeding, even as the inspections continued. Yáñez ordered a panel of five neutral experts to review all of the evidence at one disputed well site and deliver an impartial assessment. The expert panel, made up of Ecuadorian engineers, would be paid jointly by the parties and responsible only to the court. Bringing in neutral experts had been an element of the trial plan from the beginning, but it had not been clear when the neutrals would surface. In February 2006, the first panel delivered its verdict on a well site called Sacha 53.
Beginning in 1973, Sacha 53 had produced some three million barrels of oil over eighteen years. Two homes remained in the vicinity of the well head, one owned by Anibal Baños, a farmer whose house was 900 meters away, close to the main road, and the other by a woman named Rosa Ramos, who lived 250 meters to the west. During the initial adversarial inspection of the site in September 2004, the plaintiffs’ expert had interviewed Baños about his small farm. “In order to plant the hearts-of-palm plant,” the farmer said, “I had to break a piece of land, remove the crude oil, and bring soil from somewhere else and put it around the plant, which is planted only with a bag of soil, and in this way is producing.”
In 1996, Texaco sent in workers to clean up two waste pits at Sacha 53. According to the company, the laborers trucked away degraded petroleum, treated the empty pits with industrial detergent, filled the holes with dirt taken from elsewhere, and planted new vegetation. Texaco’s mandate under the remediation plan–approved by the Ecuadorian government—was to reduce total petroleum hydrocarbon (TPH) levels to lower than 5,000 parts per million. Eight years after the cleanup, soil samples from the pits showed a maximum TPH level of 520, five times the most stringent standards applied in cleanups in the United States but well within the accepted goal in Ecuador. “These pits are not causing any environmental impacts,” Chevron’s expert concluded.
The plaintiffs’ expert countered that Texaco should never have used unlined pits in the first place, because in the years before the remediation, hydrocarbons probably spread via surface runoff water into the nearby Jivino Negro River. What’s more, the plaintiffs said, the detergent, or surfactant, used in the cleanup may have left behind dangerous residue.
In their February 2006 report, the neutral experts more or less sided with the company. They described Texaco’s “soil washing” method as standard in the industry. The pits were dug in heavy, impermeable clay-like soil, making it less likely that contaminants escaped in the years before the remediation, the experts added. “In the case of runoff water flowing into the Jivino Negro River and used by people,” they said, “the absence of physical-chemical analyses of the water and sediments does not allow for certainty of the existence or non-existence of contamination.”
West of the Sacha 53 pits, there was an area where everyone agreed there had been an oil spill that was never addressed. It was in this area that Baños had planted his palm grove. He also grazed cattle there. Soil samples from the spill zone showed TPH levels as high as 20,000—four times the relevant limit. Chevron’s expert cavalierly concluded that this was nothing to worry about: “Cows used for meat production,” he said, “can ingest over 44,000 [TPH] of crude oil before possibly being affected.”
The neutral experts acknowledged that the spill area remained contaminated by chromium VI, copper, and benzopyrene. Any informed outsider would avoid food raised on this poisoned land. But as to who was to blame for the spill and the lack of a cleanup, the experts were unsure. For undetermined reasons, the spill area had not been covered by Texaco’s remediation plan with the Ecuadorian government. “The origin of the contaminants in this zone has not been accurately defined,” the experts said. They could not tell whether Texaco caused the spill. Perhaps Petroecuador, which took over Sacha 53 in 1990, was responsible. They threw up their hands. Making matters even more ambiguous, neither Baños nor the plaintiffs’ legal team had shown that any of his cattle or hearts-of-palm trees had actually suffered. No human ailment had been conclusively connected to the pollution. “Thus,” the experts concluded, “it is impossible at this time to define the [spill’s] impact to the surrounding areas with the evidence that has been submitted.”
In a final twist, tests of the only drinking water well in the area, owned by Baños, revealed no hydrocarbon contamination. The well did have dangerous levels of fecal and total coliform bacteria, the experts reported, indicating the presence of untreated sewage. But the bacteria could not be blamed on oil activity.
After the PR coup at Guanta, Donziger interpreted the Sacha 53 neutral experts’ report as ominous: What if it foreshadowed more unhelpful assessments by court-appointed neutrals? And what if the experts weren’t really neutral? Although he lacked any hard proof, Donziger later said that he feared the experts “were very biased in favor of Chevron.”
Back when Alberto Wray was nominally in charge of the case in 2003 and 2004, he had requested a long list of judicial inspections on the theory that the plaintiffs needed as much evidence of contamination as possible. Now Donziger saw this as a “disastrous decision,” both because the inspections were taking so long and because Judge Yáñez had indicated that, sooner rather than later, he wanted to bring in additional batteries of neutral experts. It had been thirteen years since Aguinda I began in New York and three years since the sequel started in Lago Agrio. Donziger figured that to finish the remaining adversarial inspections, as well as potential neutral-expert reviews, might take another six years. Even if other expert panels issued findings more sympathetic to the plaintiffs, he didn’t think his team could hold together that long. Joe Kohn’s law firm in Philadelphia was laying out hundreds of thousands of dollars a year. Donziger’s personal stipend had grown to between $10,000 and $20,000 a month, plus expenses, and there were other salaries, public relations bills, and international travel and laboratory fees. As time had passed, Kohn had begun complaining about Donziger’s loose record-keeping and preference for fine restaurants. At some point, Donziger feared, Kohn would shut the spigot.
Then there was Bonifaz, who had evolved from a boss on the case to a rival. In late 2005, Donziger learned from Callejas, the Chevron attorney, Bonifaz had secretly extended a bizarre olive branch to the oil company. Callejas, according to Donziger’s contemporaneous notes, told the plaintiffs’ team that Bonifaz had sent a letter “to Chevron asking for settlement, and it had been rejected, and that [Bonifaz] threatened ‘violent’ reprisals.” Donziger didn’t know what “violent reprisals” meant—that was the truly bizarre part—but, regardless, the overture had undermined the plaintiffs in Ecuador. “Callejas mocked us,” Donziger wrote. “If we were saying we were winning the case, why were we seeking a settlement?” Donziger called Bonifaz’s move “the ultimate betrayal of the clients and fellow lawyers. I am convinced this man is truly nutso, totally ego-driven, and desperate.” Donziger also fretted about his own image. “Callejas appears to think I am his [Bonifaz’s] little tool down here, carrying out his wishes, when the opposite is the truth.”
In May 2006, Donziger, Fajardo, and several colleagues held a five-hour strategy session, debating whether to take the emergency step of petitioning the judge to truncate the inspection process and appoint a sole “global expert,” who would compile a conclusive assessment of the evidence. Donziger worried about putting their fate in the hands of one person, even a court-appointed neutral.
Fajardo, who had a better grasp of the subtleties of Ecuadorian justice, was more sanguine. “Pablo and our legal team keep insisting that the solution is for the judge to appoint someone who is favorable to us,” Donziger wrote. “I don’t trust this approach, given our experience so far.” How could they arrange for the selection of an independent arbiter who would be “favorable” to the plaintiffs? Fajardo insisted that in Lago Agrio, what sounded like a contradiction made perfect sense.