12/22/10- Chevron’s Motion to Revoke Autos para Sentencia (English/Spanish)

HON. ACTING PRESIDENT OF THE HON. PROVINCIAL COURT OF LAW OF SUCUMBIOS: Adolfo Callejas Ribadeneira, Legal Counsel for Chevron Corporation in Proceeding No. 002-2003 brought by María Aguinda et al., against my client, being within the period prescribed, before you appear and state:

I. INTRODUCTION

I refer to your order dated December 17, 2010 at 9:57 am, in which, pursuant to Article 8371 of the Code of Civil Procedure, you order that the case record be transferred in order to issue a ruling.

A trial is closed and the judge requests the case file to issue a judgment when the trial has reached its end; when there are no pending court proceedings that are important for the parties’ defense or to complete the information in the case that is essential for the sitting judge to render a fair and impartial judgment based on the truth.

If the judge closes the trial before then, the procedural debate lacks efficacy and it is impossible for the judge to issue the grounded judgment that the legal system intends and demands. The judge is no longer acting impartially and fairly, but rather to the benefit of the party that has gained an undue procedural advantage precisely because of the failure to conduct the proceedings provided for in the law, which are formally and legally demandable at trial. The situation of the party affected by the judge’s failure to meet his obligation to ensure that the case is handled properly is further harmed in those cases where procedural law prevents repetition in other courts of the proceedings that the judge’s inaction generated in the type of trial in question, such as the summary oral proceeding.

This case will suffer from this defect in the administration of Justice should Your Honor fail to revoke your ruling and order the proceedings which cannot be considered at the time of the judgment precisely because they must precede it. That is to say, your ruling of December 17, 2010 at 9:57 a.m. must be deemed inconsistent with reality, and with the procedural timing, since there are a number of matters which still remain to be processed and addressed, and which require resolution prior to declaring the evidentiary phase to be concluded.

Specifically; and in the first place, in recent days, my client has filed several briefs with this Court which reveal the procedural violations and

1 CPC “Art. 837.- The discovery period being concluded, the judge shall issue a ruling within five days. For the purpose of awarding costs, the pertinent provisions regarding an ordinary proceeding shall be applicable. During the period between the completion of the discovery period until the issuance of the judgment, the parties may file legal briefs in defense of their interests”.

1 [CERT.GEOTEXT VER: JD]

alleged offenses committed by the plaintiffs, including: (i) new evidence showing that some of the plaintiffs’ signatures found on the complaint and the appointment of the common representative are forged; ii) the brief stressing the failure to comply with the mandate of Article 1010 of the Code of Civil Procedure, implementing Article 8 of the Regulations on the Arrangement of Judicial Processes and Proceedings - i.e., that fingerprints must be placed on the complaint in the presence of the clerk of courts; (iii) report that one of the plaintiffs has died; (iv) brief with new evidence unquestionably proving the illicit collusion between Judge Germán Yánez and the plaintiffs’ representatives; and (v) new evidence regarding the actions of the plaintiffs’ United States consulting attorney, Mr. Steven Donziger, which demonstrate the planning and perpetration of fraudulent acts committed in this trial.

Also, the listing contained in Annex 1 to this brief contains a long list of decisions issued by the Court postponing the resolution of the petitions made by Chevron, having resorted for this purpose to formulas such as ‘it will be resolved at the opportune procedural time” and/or “the decision will be rendered at the time of the ruling” and/or “it will be resolved in due course” and/or the like. The majority of the petitions in this summary of petitions pending resolution is related to evidence which was being processed at the time the requests pending decision were made, evidence that the successive judges have avoided hearing.

In addition to the substantial evidence that Chevron has filed based on the documents which have already been submitted and the statements taken over the last few weeks as a result of continuing discovery in the United States, the evidence that Chevron has yet to obtain (evidence which cannot be obtained in any other way) and present is crucial for further showing the conduct of the plaintiffs in this lawsuit and to provide Chevron with an adequate defense. No procedure which purposely ignores evidence such as that which has come to light, and that which has yet to be discovered for revealing the truth of fraudulent and collusive facts in this lawsuit, can be in line with the principles of due process and my client’s constitutional right to defend itself.

For facts submitted for your decision to be analyzed in a context of procedural truth and to safeguard the public interests that concern the proper processing of this trial and to guarantee the right to due process, it is essential that you revoke your ruling. Otherwise, it would threaten the integrity of the litigation, an eventual ruling would be issued based on a “diminished case record,”2 and will constitute a flagrant denial of justice, which would harm my client’s defense, causing it an irreparable burden.

2 diminuto, ta (From Latin diminutus). 1. Adj. Defective, lacking in what is required for completion or fulfillment. 2. Adj. Excessively small. Spanish Royal Academy © All rights reserved.


For your more complete and immediate information, hereinbelow I provide specific details regarding those procedural facts and actions which, given their nature and greater importance, must be resolved prior to Your Honor proceeding to close the evidentiary period.

The foregoing request is made without prejudice to the filing which will be filed separately by Chevron with respect to the list of incidents which, pursuant to the provisions of Article 8443 of the Code of Civil Procedure, consistent with Article 2734 of the same Code, must be resolved at the time of judgment.

II. SPECIFIC EXAMPLES OF MATTERS TO BE RESOLVED PRIOR TO CLOSING THE EVIDENTIARY PERIOD

A. Fabricated signatures of the plaintiffs

In a separate brief, my client informed you of evidence which reveals that the submission ratifying the complaint filed by the plaintiffs in this case, as well as the submission designating Dr. Alberto Wray as common representative, each contain at least twenty forged signatures. As a result of these irregularities, the entire case is based on an illicit act, for which reason the case is lacking in authorization by the alleged plaintiffs themselves and also in procedural validity.

This matter and the petitions filed by my client in the aforementioned brief, should be addressed and resolved prior to closing the evidentiary period in the event that Your Honor should decide not to immediately declare this case to be null and void and, on the contrary, resolve that it is necessary to obtain more evidence, in order to ratify or rectify the report which I have submitted, prior to making such decision. In the event that these petitions are not addressed prior to closing the evidentiary period, Your Honor would be in violation of paragraph 1 of Article 76 of the Constitution which guarantees compliance with the regulations and the rights of the parties.

Consequently, and pursuant to the provisions set forth in Articles 435 and 3596 of the Code of Civil Procedure, it is necessary that Your Honor revoke your

3 “Art. 844.- No incident that arises in this trial, of any nature whatsoever, may suspend the proceeding. Any incident shall be resolved at the time of issuing a judgment.” 4 “Art. 273. - The judgment shall only decide the points on which the litigation was initiated and the incidents which, arising during the trial, could have been reserved, without causing severe prejudice to the parties, to resolve them at judgment.” 5 “Art. 43.- In any trial, the parties shall appear in person or through their legal representative or attorney in fact, and the latter shall prove his right of representation, once he begins appearing in a trial, except if the judge, on substantial grounds, grants a period to submit the power of attorney, which term shall not exceed fifteen days, if the client that is being represented is in Ecuador, or sixty days if


order of December 17, 2010 at 9:57 am, in which you have requested the case record in order to issue a judgment.

B. Substitution of Dr. Alberto Wray as alleged7 common representative of the plaintiffs with attorney Pablo Fajardo

Likewise, and pursuant to the provisions set forth in Articles 438 and 3599 of the Code of Civil Procedure, Your Honor must revoke your order dated December 17, 2010 at 9:57 am, by means of which you have requested the case file in order to issue a ruling, and instead order that attorney Pablo Fajardo Mendoza demonstrate his legal standing as common representative of Mr. Esteban Lucitante Yaiguaje who, as set forth hereinafter, has neither granted him any power of attorney for legal representation nor has he designated him as common representative.

The original and alleged “common representative” for the plaintiffs, Dr. Alberto Wray, by means of submission dated February 07, 2007 at 10:10 am (Record at 92,873), invoking the following

abroad. This term shall not be granted, for any reason whatsoever invoked, in the event that an unknown or unauthorized person appears. In the event that the attorney fails to submit the power of attorney within the term referred to in the preceding sub-paragraph, he or she shall pay the costs and damages caused, and, furthermore, a fine of one to ten United States Dollars for each day of delay arising from the false representation, the total of which shall not exceed an amount equal to three hundred and sixty days. In order to impose the fine, of which one half is payable to the national treasury and the other half to the injured party, the judge shall take into account the nature of the cause and its amount. Those declared to be fraudulent representatives shall pay the costs and damages incurred in the incident, even where they demonstrate their right to representation subsequently to the declaration”. 6 Art. 359.- In the event that the legal standing is demonstrated in any of the proceedings, the proceeding shall be valid, regardless of whether the parties do so for their own account or due to an order that the judge or the court shall mandatorily issue. 7 As I have detailed in a separate brief and repeated in summary manner in this revocation brief, evidence exists which reveals that the submission ratifying the complaint filed by the plaintiffs in this proceeding, as well as the submission by means of which Dr. Alberto Wray is designated common representative, each contain at least twenty signatures, all of which are forged. 8 “Art. 43.- In any trial, the parties shall appear in person or through their legal representative or attorney in fact, and the latter shall prove his right of representation, once he begins appearing in a trial, except if the judge, on substantial grounds, grants a period to submit the power of attorney, which term shall not exceed fifteen days, if the client that is being represented is in Ecuador, or sixty days if abroad. This term shall not be granted, for any reason whatsoever, invoked in the event that an unknown or unauthorized person appears. In the event that the attorney fails to submit the power of attorney within the term referred to in the preceding sub-paragraph, he or she shall pay costs and damages caused, and, furthermore, a fine of one to ten United States Dollars for each day of delay arising from the false representation, the total of which shall not exceed an amount equal to three hundred and sixty days. In order to impose the fine, of which one half is payable to the national treasury and the other half to the injured party, the judge shall take into account the nature of the cause and its amount. Those declared to be fraudulent representatives shall pay the costs and damages incurred in the incident, even where they demonstrate their right to representation subsequently to the declaration”. 9 Art. 359.- In the event that the legal standing is demonstrated in any of the proceedings, the proceeding shall be valid, regardless of whether the parties do so for their own account or due to an order that the judge or the court shall mandatorily issue.


facts: (i) the allegedly mutually agreed upon revocation of the legal representation power of attorney granted in his favor by his client, Mr. Ángel Justino Piaguaje; (ii) the substitution of the aforesaid alleged power of attorney in favor of Attorney Pablo Fajardo M.; and (iii) the petition attached to his brief (Record at 92,874 through 92,879) by virtue of which the plaintiffs allegedly designated Attorney Pablo Fajardo as new “common representative,” requested “… that hereinafter Attorney Pablo Fajardo Mendoza be the new Common Representative in this case.”

The request by Dr. Wray was addressed by means of a ruling dated February 10, 2006 at 8:30 am, which, among other matters, ordered: “… that Attorney Pablo Fajardo Mendoza appear as the new Common Representative for the plaintiffs and Legal Representative of Angel Justino Piaguaje Lucitante, and who shall hereinafter be considered as such.”

The fact is that the petition attached to the aforementioned submission by Dr. Wray, alleged prior common representative of the plaintiffs, seeking to have Attorney Pablo Fajardo be designated as alleged Common Representative of all the plaintiffs, does not contain the name or the signature or the identity card number of Mr. Esteban Lucitante Yaiguaje. Said plaintiff was also not taken into account for the alleged ratification of the waiver of judicial inspections filed subsequently by Attorney Fajardo, nor did Mr. Esteban Lucitante Yaiguaje grant any power of attorney for legal representation, nor any ratification whatsoever of the actions of the aforementioned Attorney Fajardo,

10 as 41 of

the 48 plaintiffs had “supposedly” done.

In the face of this omission, and as set forth in Article 5211 of the Code of Civil Procedure, neither the revocation of the designation of the alleged common representative granted in favor of Dr. Wray nor the execution of the new and alleged designation in favor of Attorney Fajardo were ever executed nor did they ever take effect, for which reason, by virtue of the provisions set forth in the final part of that regulation (“The revocation shall not take

10 Attorney Fajardo, by means of brief dated 07/21/2006 at 9:10 am (Record at 116,431 through 116,435), in violation of Art. 53 of the CCP, arbitrarily and personally declared: “I express my desire to waive the right to perform or carry out the … [64] judicial inspections”, further violating Article 39 of the CCP, which obligates the clients to appear when they are required to carry out any action “in person”, as is the case of “waivers” and/or their “ratifications”. By means of an order dated 10/02/2006 at 3:30 p.m., and ratified in an order dated 10/20/2006 at 10:00 am, addressing the Chevron brief dated 09/13/2006, it was ordered that the plaintiffs ratify the waiver sought. Attorney Fajardo, by means of brief dated 12/15/2006 at 6:00 pm (Record at 124,908) attached 4 public ratification documents and a special power of attorney granted before the 1st Notary of the canton of Lago Agrio, on December 8, 11 and 12, 2006, with which he sought to comply with the provisions set forth in your orders indicated in the preceding paragraph. After undertaking the necessary review of the public documents in question, Chevron DENOUNCED that Esteban Lucitante Yaiguaje, together with another 7 of the 49 HAVE NOT RATIFIED the “waiver” which Attorney Fajardo had also given in their name and behalf. This fraudulent common representative, by means of brief dated 03/09/2007 at 5:20 pm, sought to justify his action, alleging that an alleged “absolute majority” had ratified [the waiver]. 11 Art. 52.- Provided their rights and exceptions are not different or opposed, should there be two or more plaintiffs in the same case or two or more defendants, the judge shall order that they appoint a single representative within the term granted to them.


effect until such time as the new representative appears”), for which reason this case should have continued with the prior and alleged common representative, Dr. Alberto Wray, which did not occur, for which reason, and in accordance with the provisions set forth in Articles 43,

12 53,

13 355

14 and 359

15 of the Code of Civil Procedure, you,

Your Honor, are obligated to order that Attorney Fajardo demonstrate legal standing for his actions as Common Representative of the plaintiffs which, in the event this requirement is not satisfied within the term ordered by you to such effect, would cause procedural nullity (Paragraph 2 of Article 299,

16 Paragraph 3 of Article. 346,

17 Code of

Civil Procedure, consistent with the final paragraph of Article 52 and Article 349 of that Code); and you, Your Honor, will be obligated to expressly declare [procedural nullity] prior to closing the evidentiary period.

Attorney Fajardo’s lack of authority to represent [the plaintiffs], as well as the forgery of approximately twenty signatures on the submission ratifying Dr. Wray’s involvement, means that there is no action or complaint on which you can render judgment. You cannot issue a judgment on a complaint that requires formal ratification by those who claim to be the plaintiffs in the same.

You will understand that the lack of procedural validity resulting from the existence of false attorneys cannot be circumvented by the judge hearing the case, except if he makes himself an unexpected

12 Art. 43.- In any trial, the parties shall appear in person or through their legal representative or attorney in fact, and the latter shall prove his right to representation, once he or she begins appearing in a trial, except if the judge, on substantial grounds, grants a period to submit the power of attorney, which term shall not exceed fifteen days, if the client that is being represented is in Ecuador, or sixty days if abroad. This term shall not be granted, for any reason whatsoever, invoked in the event that an unknown or unauthorized person appears. In the event that the attorney fails to submit the power of attorney within the term referred to in the preceding sub-paragraph, he or she shall pay the costs and damages caused, and furthermore a fine of one to ten United States Dollars for each day of delay arising from the false representation, the total of which shall not exceed an amount equal to three hundred and sixty days. In order to impose the fine, of which one half is payable to the national treasury and the other half to the injured party, the judge shall take into account the nature of the cause and its amount. Those declared to be fraudulent representatives shall pay the costs and damages incurred in the incident, even where they demonstrate their right to representation subsequently to the declaration. 13 Art. 53.- Legal representatives are required to accredit the representation they invoke on the orders of the judge, pursuant to law or at the request of the opposing party. 14 Art. 355.- Lower court judges who, at the time of issuing an order or rendering a judgment, find that a declaration of nullity is warranted, shall order the proceeding to be returned to the state in which it found itself in at the time the requirement motivating the declaration was omitted, and shall order payment of costs by the party which caused the annulled actions. 15 Art. 359.- In the event that the legal standing is demonstrated in any of the proceedings, the proceeding shall be valid, regardless of whether the parties do so for their own account or by order that the judge or the court shall mandatorily issue. 16 “Art. 299.- Final judgment is null: … 2.- due to the unlawful standing of any of the parties involved in the proceeding …” 17 “Art. 346.- The following are essential formalities common to all trials and proceedings: … 3. Demonstration of legal standing....”


accomplice of the heap of legal infractions, several of which are potentially criminal.

C. Proceedings Tainted by Fraud and Collusion

Pursuant to the constitutional right to a defense provided for under Article 76 of the Ecuadorian Constitution,18 I have submitted evidence to this Court on numerous occasions during the course of this case that shows that the plaintiffs, through their attorneys, have committed a fraud that has rendered the totality of these proceedings null and void in an attempt to obtain a guilty verdict against my client for an exorbitant amount.19 In fact, this week, I have submitted new evidence of the planning and perpetration of fraudulent acts committed in this trial by Mr. Steven Donziger, the consulting U.S. attorney for the plaintiffs.

In view of this immense fraud, I have previously asked the Court, pursuant to applicable law: (i) to order that copies of all evidence submitted to this Court in connection with the fraud committed be sent to the Prosecutor’s Office and to the Judiciary Council; (ii) to order that an investigation to determine the scope of the fraud committed be undertaken; and (iii) to not request the file for the purpose of issuing a ruling, given that my client is still gathering evidence related to the fraud perpetrated in this case from legal proceedings in the United States for this Court to review.

With regard to this last point, I would add that Chevron has initiated 19 lawsuits in the United States pursuant to 28 U.S.C. § 1782, a provision of the United States Code that allows parties to foreign proceedings to seek evidence located in the United States for use in

18 Article 76(7)(h) guarantees the accused the right to:”[p]resent orally or in written form the reasons or arguments it believes support its case and to respond to arguments made by the other parties; to submit evidence and refute any evidence submitted against it.” 19 See for example, the brief filed by my client on August 6, 2010 at 2:50 p.m. requesting that the proceedings be declared null and void and that sanctions be brought against the plaintiffs’ attorneys, described through unused footage from the documentary “Crude” which show the clandestine secret conspiracy between the plaintiffs and Engineer Richard Stalin Cabrera Vega to prepare a supposedly “independent” and “neutral” expert report on all of the fields operated by Texpet as operator of the former Petroecuador – Texaco Consortium. See also, brief filed by my client on September 14, 2010 at 11:10 a.m. wherein I presented further evidence of the illicit actions taken by the plaintiffs in collaboration with Engineer Cabrera and described the immense political pressure that the plaintiffs and the Ecuadorian Government are exerting on this Court. As additional evidence of fraudulent acts committed by the plaintiffs was obtained through the legal actions brought in the United States of America, pursuant to Section 1782 of the United States Code, I submitted such evidence on December 8, 2010 at 4:21 p.m.


the foreign proceedings. The Section 1782 discovery targets that Chevron has pursued include the plaintiffs’ technical consultants, damages experts, the makers of the movie Crude, which documents the Lago Agrio litigation from the perspective of the plaintiffs, and the plaintiffs’ current and former lawyers, including U.S. attorneys Steven Donziger, Cristóbal Bonifaz and Joseph Kohn, and Ecuadorian attorney Alberto Wray.

In fact, 18 out of 19 of these applications have been granted (the application seeking discovery from Cristóbal Bonifaz remains undecided), and discovery is currently proceeding in 12 of those cases. Notably, neither Mr. Kohn nor Mr. Bonifaz opposed Chevron’s applications pursuant to Section 1782.

In recent weeks, the respondents in these Section 1782 proceedings have produced upwards of 13,000 documents to Chevron. And many more documents are due to be produced in the coming days and weeks. For example, on Monday, the U.S. District Court for the Eastern District of Pennsylvania granted Chevron’s application seeking discovery from Joseph Kohn, one of the plaintiffs’ attorneys who previously financed the Lago Agrio litigation. The court found that all privileges had been waived or had not been established, and ordered Mr. Kohn to turn over all documents in his possession relevant to the Lago Agrio litigation. Mr. Kohn had previously produced a log consisting of approximately 15,000 “privileged” documents. Thus, any day now, Chevron will receive all of those documents, as well as Mr. Kohn’s non-privileged documents. Similarly, Mr. Bonifaz produced a log consisting of approximately 250 documents, and if the U.S. District Court for the District of Massachusetts follows the Pennsylvania federal court’s example, all of those documents will be provided to Chevron in short order as well. In addition to the document production, the depositions of the respondents under the provisions of Section 1782 are in progress. Chevron has taken approximately 10 depositions pursuant to Section 1782 this month alone, with a number of those long depositions proceeding for multiple days, and additional depositions will be scheduled in the coming days and weeks. For example, Steven Donziger’s deposition has now been in progress for approximately four days, and will continue for at least six more days.

While significant evidence has been gathered by Chevron from the documents produced and from the depositions taken in recent weeks, the discovery that Chevron has yet to obtain will shed even more light on the plaintiffs’ conduct in this litigation, and will provide Chevron with evidence that is crucial to its defense that cannot be obtained any other way. If Your Honor decides not to declare these proceedings null and void immediately, it is necessary to refrain from requesting the case file to render a decision until Chevron has had the opportunity to complete all Section 1782 discovery in the United States. No proceeding that ignores evidence such as the evidence that is coming to light as


a result of judicial actions in the United States can be consistent with the principles of due process and my client’s constitutional right to defend itself.

Under Ecuadorian (and universal) law, petitions such as this one may not be ignored because:

First, based on the foregoing and pursuant to Article 292 of the Penal Code, Your Honor was and continues to be required to report to the Prosecutor’s Office “new information” made available to you with respect to the possible commission of the offenses defined in Articles 339 and 341 of the Penal Code. If you fail to do so “immediately,” Your Honor would be committing the criminal offense defined in Article 292 of the Penal Code, which stipulates that “Any government official or law enforcement officer who, having learned of the commission of a crime, fails to immediately notify an investigating judge of the same, shall be punished with fifteen days to six months of imprisonment.” Pursuant to the above transcribed Article 292 of the Penal Code, Your Honor is a “government official” and therefore you have the obligation to immediately notify an investigating judge of the “new information” you have concerning the commission of a crime.

Second, Article 118 of the Code of Civil Procedure authorizes the judge in the case “…to order sua sponte any evidence deemed necessary for the purpose of determining the truth at any stage of the proceedings prior to judgment.” Similarly, Article 130 of the Organic Code of the Judiciary establishes that “It is the essential duty of judges to exercise jurisdictional authority in accordance with the Constitution, international human rights instruments and the law; therefore, judges must: … 10) Order sua sponte, with the exceptions provided for by law, the production of any evidence deemed necessary for the purpose of determining the truth.” Article 76 of the current Constitution requires that “In any proceedings that determine rights and obligations of any nature, the right to due process shall be guaranteed and shall include the following basic guarantees: . . . 7. A person’s right to a defense shall include the following guarantees: a) No person may be deprived of the right to defense at any stage or level of the proceeding; . . . h) to submit evidence and refute any evidence presented against it.” Article 169 of the current Constitution adds that “The court system is a means of carrying out justice. The rules of procedure shall establish the principles of simplification, uniformity, efficiency, immediacy, speediness and procedural economy and they shall enforce the guarantees of due process. Justice shall not be sacrificed due to a mere omission of formalities.” As a whole, the overriding purpose of these provisions is to determine THE TRUTH in legal proceedings through the submission of evidence and the rebuttal of evidence submitted by the opposing party, which is provided for in Article 76, paragraph 7, subsection h) of the current Constitution.

Third, if you conclude the trial, this will allow those responsible for the fraud to consummate their wrongdoing by preventing the trial from having all the elements that form the procedural truth. Thus, you could unexpectedly take part in the generation and consummation of several illegal acts, some of


which include fabricated documents produced at trial; the alteration of illegally prepared evidence submitted at trial; the manipulation of the facts before they are incorporated into the case file as evidence; and attempted procedural fraud. You must avoid this and remit the records that constitute the “new information” of the eventually verified offenses to the Prosecutor’s Office and avoid your participation in the process for the reason given in Article 12 of the Penal Code: “Failing to prevent an event from occurring, when one has the legal obligation to prevent it, amounts to causing it.” In view of the weight and amount of the “new information” on the existence of several offenses, questionable actions on your part would make a judgment on the merits unviable.

Your Honor must prevent the consummation of the fraud and distance yourself from those who organized it.

Your Honor, if you fail to immediately declare these proceedings null and void despite the grave attack against the administration of justice launched by the plaintiffs’ representatives, you must at the very least respond to my client’s requests and, prior to closing the evidentiary period: (i) send copies of all evidence submitted to this Court in connection with the fraud committed to the Prosecutor’s Office and to the Judiciary Council; (ii) order that an investigation to determine the scope of the fraud committed be undertaken, including verifying the information that I have provided to the Court on the plaintiffs’ fabricated signatures, in accordance with the power conferred upon you by Article 118 of the Code of Civil Procedure; and (iii) revoke your ruling of December 17, 2010 and not request the file for the purpose of issuing a ruling until my client has finished submitting documents that evidence the immense fraud for your review.20

In order to minimize the effort and time that may be required for Your Honor to examine the large amount of evidence referred to above, below I will summarize several examples of the evidence of the immense crime committed by the plaintiffs’ attorneys and which warrants that Your Honor revoke your ruling issued on December 17, 2010 at 9:57 a.m. and order an investigation of the fraud committed, in the event that you do not immediately dismiss the plaintiffs’ complaint.

1. Expert Calmbacher’s report

In the pleading filed on April 14, 2010 at 3:42 p.m., Chevron made a serious accusation with regard to the validity as evidence of the expert reports whose preparation the plaintiffs attributed to the expert nominated by plaintiff and appointed by the Office of the President of the Court, Dr. Charles Calmbacher, dealing with the judicial inspections on sites Sacha 94 and Shushufindi 48, because expert Calmbacher himself has declared, and this is on record in the case file, that not only is he not the author of those reports, but also

20 My client reserves the right to continue bringing such evidence to Your Honor’s attention as it is discovered. See Article 118 of the Code of Civil Procedure.


that what is stated in those purported reports contradicts his conclusions on his findings at the inspected sites.

Your Honor cannot ignore the legal consequences of the reported facts that affect this lawsuit, which not only rob such reports of probative validity, but also obligate you, Your Honor, to act in accordance with Article 26 of the Organic Code of the Judiciary and sanction those guilty of such fraudulent conduct, the unmistakable intent of which was to mislead the Administration of Justice and affect the outcome of the lawsuit.

Specifically, Chevron asked the Court to: (i) strike the expert reports on sites Sacha 94 and Shushufindi 48 attributed by the plaintiffs to Dr. Calmbacher because they are flawed with fraud; (ii) dismiss the probative value of the expert report of Engineer Cabrera and its annexes because it was based on, among other things, the expert reports attributed to Dr. Calmbacher; (iii) ask the plaintiffs for the necessary explanations regarding, among other things, the use of Dr. Calmbacher’s “signature;” and (iv) immediately remit a copy of the case files to the Prosecutor’s Office for an investigation to determine the scope of the fraud committed by the plaintiffs in connection with submitting the aforementioned reports.

Despite the seriousness of the reported facts, contrary to what an impartial judge should do, neither you nor your predecessor have issued a ruling on Chevron’s petitions which, due to their nature, must be resolved before closing the evidentiary period. Otherwise, the validity of the entire process would be affected because the Court would be attempting to issue its decision based on flawed evidence.

2. Campet

Another request that has yet to be resolved and requires that Your Honor revoke his ruling of December 17, 2010 at 9:57 a.m. ordering that the case file be sent to your chambers in order to prematurely issue a ruling, is the request made by Chevron in the pleading filed on February 9, 2010 at 9:07 a.m. submitting evidence of the undeniable conflict of interest incurred by Engineer Richard Cabrera Vega, the expert appointed by the Court for the expert examination of all fields operated by Texpet as operator of the former Petroecuador - Texaco Consortium, when he failed to declare his ties and interests with companies through which he personally, and/or individuals linked to him, could benefit from the outcome of your decision.

Due to this omission, which casts doubt not only on his probity but also on the credibility and probative value of his expert examination, Chevron invoked Article 118 of the Code of Civil Procedure, which allows the judge hearing the case to “…order sua sponte the evidence deemed necessary to clear up the truth, in


any stage of the…” litigation, asking the Office of the President of the Court to timely order an investigation into the charges.

It should be stressed that, as a requirement prior to issuing a ruling on Chevron’s request,21 you, acting as the judge hearing the case, ordered that the pleading be forwarded to both expert Cabrera and to the plaintiffs, and the fact that they answered22 the forwarded pleading. Moreover, my client has already responded to their answers. 23 Dr. Leonardo Ordóñez, in his capacity as President of the Provincial Court, avoided24 issuing any ruling whatsoever on this point, and a decision must be made on this thorny issue, which was reported by Chevron in due time, before closing the evidentiary period.

3. Expert Cabrera

Another request yet to be resolved, which requires that Your Honor revoke his ruling of December 17, 2010 at 9:57 a.m. requesting the case file in order to issue a ruling, is the request made by Chevron in the pleading filed on May 21, 2010 at 4:35 p.m. in which my client asked [the Court] to: (i) completely dismiss the probative value of the expert report of Engineer Cabrera, its annexes, as well as its clarifications and supplements; (ii) declare the appointment of Engineer Cabrera null and void; (iii) initiate a complete investigation to determine the scope of the existing collusion between Expert Cabrera and the plaintiffs; and (iv) not request the case file in order to issue a ruling until receiving and reviewing all evidence related to Engineer Cabrera’s fraudulent report.

In addition to the reasons outlined in the sections of this pleading entitled “Campet” and “Calmbacher,” that request is based on the following grounds:

21 Numeral 20) of the ruling of February 18, 2010 at 5:40 p.m., that “…prior to deciding with respect to the power mentioned in Article 118 of the Code of Civil Procedure, the Court orders that the submission and its annexes be forwarded both to expert Richard Cabrera and to the plaintiffs, for the purpose of answering within the period of three days.” 22 Engineer Richard Cabrera Vega answered the forwarded pleading one month late, on March 22, 2010 at 11:06 a.m., while Attorney Pablo Fajardo Mendoza, common representative for the plaintiffs, did so on February 22, 2010 at 5:20 p.m. 23 Filings of: (i) March 26, 2010, at 5:47 p.m.; (ii) March 26, 2010 at 5:45 p.m.; and (iii) March 26, 2010 at 3:28 p.m., not only did [Chevron] respond regarding the content of the answers given by attorney Fajardo and expert Cabrera, it also demanded that the Judge issue his ruling. 24 Also failing to indicate the day and time on which expert Cabrera’s pleading was filed, he limited himself to ruling that “ .... its content will be accepted to the extent warranted by law,” and with regard to the answer from Attorney Fajardo, he limited himself to ruling: “… its content will be taken into account when the ruling is issued.”


1) At the time when the Court appointed Engineer Cabrera as sole “independent expert,” he had already been hired to act as an expert in another lawsuit. It is vitally significant to note that for this task Engineer Cabrera was employed by the same attorney who initially pursued the lawsuit in the United States and also by another attorney who represented the Republic of Ecuador in another legal case against Chevron in the United States. In fact, Engineer Cabrera’s participation in Arias v. DynCorp (DynCorp) must be thoroughly analyzed because, in his report in the DynCorp case, he directly contradicts the key points of his reports in this lawsuit. Just as he stated, in the DynCorp case, the chemical product on which the case is based is a herbicide, and Engineer Cabrera’s report for DynCorp concludes that the herbicide is the main cause of the same human health problems alleged in the same province of Sucumbíos as those disputed in this case, where Engineer Cabrera obviously asserted in his report that the same effects should be attributed to the damage supposedly caused by oil, which creates an inconsistency from the moral, ethical and scientific standpoint.

2) In a scene from the film “CRUDE” that only appears in a version available solely on the internet, Steven Donziger and Pablo Fajardo, attorneys for the plaintiffs, and Emergildo Criollo, the plaintiffs’ representative, are working with Dr. Carlos Martín Beristain (one of the supposedly “neutral” experts on Cabrera’s team) at a meeting with the region’s inhabitants in connection with a supposed “independent” health survey. At the plaintiffs’ request, this scene was edited out of the final version of “CRUDE” on the DVD released in the United States, an action which the United States Federal Court recently recognized as a “fact that suggests knowledge of the existence of questionable activities.” (Exhibit 103, In re Request of Chevron Corp., No. M-19-111, page 24 (S.D.N.Y. May 10, 2010).)

3) New evidence demonstrates and makes it clear that the entire “independent” report from Engineer Cabrera was not really written by Engineer Cabrera; rather, it was the product of the work of representatives, consultants and sponsors allied with the plaintiffs, including at least Stratus Consulting, Adolfo Maldonado and Carolina Valladares from Acción Ecológica and the Amazon Defense Front [Frente de Defensa de la Amazonía] (potential beneficiary of any judgment).

The actions to defraud the Court and the collusion between the plaintiffs and Engineer Cabrera, in clear violation of his legal obligation to act as impartial, independent and neutral expert, have deprived my client of its right to due process and to defend itselfagainst the plaintiffs’ claims; and it is for this reason that you must issue a ruling on my client’s requests set forth in the


pleading of May 21, 2010 at 4:35 p.m. before requesting the case file to issue a ruling.

4. Judge Germán Yánez

The collusion between the former judge hearing the case, Dr. Germán Yánez, and plaintiffs’ attorneys and sponsors in order to obtain the illegal appointment of Engineer Richard Cabrera as expert for the global expert examination of all fields operated by the former Petroecuador - Texaco Consortium was repeatedly denounced over the last few months by Chevron (and even today, a separate pleading has been filed separately with new evidence), who has submitted sufficient evidence unquestionably proving the illicit collusion between Engineer Cabrera and the former Judge Yánez, and other experts nominated by the plaintiff, with the plaintiffs and their representative. In view of this, Chevron has not only requested that this evidence be taken into account as grounds for its requests, but also that the judge consider the evidence it continues to obtain day after day through the discovery proceedings initiated in the United States. It also asks that the Court request the intervention of the appropriate authorities to investigate the denounced facts, given that this is an issue that will undoubtedly have an influence on the resolution of the case. The Court must request the start of an investigation to analyze the evidence submitted by my client and decide in this case, making the transcendental decision to set aside both the appointment and all actions of expert Cabrera because they were the result of fraudulent acts and collusion that have been duly documented and reported.

D. Not Forwarding Experts’ Responses to the Expert Reports to the Parties

In conducting expert assessments numbered as 35, 36 and 37, of the evidence requested within the respective time period by Chevron, the Court did not forward the experts’ responses with respect to the expert reports to the parties. By failing to do so, it is preventing my client from stating its position on those reports, based on a misunderstood concept of judicial economy that in this case results in an extremely clear violation of due process and failure of protection by the court, which obligates you, on the one hand, to guarantee observance of the rules and the parties’ rights; and on the other, to prevent Chevron from being unjustifiably denied of the right to a defense to which it is entitled, especially when each and every one of those expert assessments were requested by Chevron. The assessments have been limited by the obstruction of the courts themselves when, among other things, they prevent Chevron from stating its positions on the experts’ responses to its comments, as required by law, with the sole aim of ensuring that the expert assessments and their corresponding reports and/or clarifications and supplemental reports meet the purpose for which they were requested within the evidentiary period, and not become instruments of the plaintiffs’ perverse intentions, fostered and backed by the very judges on duty.


E. Refusal to Facilitate the Delivery of Information to the Experts

The right and the obligation of the experts involved in expert assessments 34, 35, 36 and 37 to obtain all information they consider to be important in order to issue a report that encompasses the assessment and allows it to be duly supported, both legally and technically, has been restricted and violated.

Your predecessor, consistent with the plaintiffs’ requests, issued various rulings denying such requests, without giving any grounds for the refusal, as provided in both the Ecuadorian Constitution and the Organic Code of the Judiciary.

F. Lack of Documentation and Certifications Requested in the Respective Evidentiary Period from the National Hydrocarbons Bureau (Dirección Nacional De Hidrocarburos - DNH), Which Have Not Been Remitted to the Court.

On multiple occasions, my client asked the judges who preceded you to insist on gathering the documentation, certifications and sworn affidavits it requested in the respective evidentiary period, as I demonstrate below:

• Chevron’s requests contained in numerals 30, 31, 38, 62, 63, 73 of the evidence pleading filed on October 27, 2003 at 5:00 p.m., evidence that was requested from the National Hydrocarbons Bureau in official letters numbers 141-P-CSJNL-2004 (Record at 6,327 to 6,328); 142-P-CSNL-2004 (Record at 6,329 to 6,330); 143-P-CSJNL-2004 (Record at 6,331 to 6,332); 146-RCSJN-2004 (Record at 6,335); 147-P-CSJNL-2004 (Record at 6,336); 151-CSJNL-2004 (Record at 6,340), dated February 18, 2004.

• Similarly, in numerals 61 and 83 of the evidence pleading filed on October 27, 2003 at 5:00 p.m. my client asked the Minister of Energy and Mines to inform the court under oath regarding different issues related to the operation conducted by the Petroecuador - Texaco Consortium.

• These requests were made in official letters 133-P-CSJNL-204 [sic] (Record at 6,316 to 6,317); and 175-P-CSJNL-2004 (Record at 6,319 to 6,320), dated February 18, 2004.

• In its pleading of October 16, 2009 at 3:15 p.m., my client insisted that the Court issue another official letter to the National Hydrocarbons Bureau, asking it to answer each and every one of the official letters listed above (Record at 151,390).

• In the ruling issued on October 23, 2008 at 9:00 a.m., which appears on pages 151,454 to 151,456 of the case file, the Court ordered that another official letter be sent out as requested (Record at 151,456).


• The judge’s order was carried out by means of official letter No. 140-P-CPJS-2009, dated March 27, 2009 (Record at 156,009).

• In official letter No. 1890-DNH-EE C90692, submitted on May 18, 2009 at 10:49 a.m., appearing at 156,548 Engineer Hernán Sánchez, in his capacity as National Hydrocarbons Director, asked the Court to appoint two individuals to review the “extensive” documentation on file at that bureau.

• The Court never ruled on this request by the National Hydrocarbons Bureau; therefore, it has yet to be handled, which is causing serious harm to my client because the evidence it timely requested, which was ordered in due time, has not been remitted to be incorporated into the case file so that it might have the effect for which it was requested, by fault of the Court, which has ignored this request.

G. Report of the Death of One of the Plaintiffs

My client, once again attempting to ensure that this trial abides by the Constitution and the laws, filed a brief on December 16, 2010 at 5:45 p.m. informing Your Honor that, according to a statement made by Mr. Steven Donziger, as of today’s date there are no longer 48 supposed plaintiffs, but 47, because one of them has died.25

Consequently, when there is a supposed death according to affirmation of the individual who publicly represents the plaintiffs, it is your duty, Your Honor, to establish whether such affirmation is or is not true prior to closing the evidentiary period.

If this request is not handled prior to closing the evidentiary period, Your Honor would be violating Article 76, numeral 1 of the Constitution, which guarantees observance of the rules and the parties’ rights.

H. Allegations of Essential Error Awaiting a Ruling

Similarly, Your Honor is being asked to revoke your ruling of December 17, 2010 at 9:57 a.m. requesting the case file in order to issue a ruling, because not doing so would affect the integrity of the process in view of the fact that the Court has not yet ruled on several allegations of essential error raised in due time by Chevron in relation to the expert reports submitted by several of the experts nominated by the plaintiffs dealing with different judicial inspections performed as part of the evidence requested by the parties.

25 I once again state for the record that in a separate pleading, my client informed you of evidence which reveals that the submission ratifying the complaint filed by the plaintiffs in this case, as well as the submission designating Dr. Alberto Wray as representative in common, contain at least twenty false signatures each.


There are a total of 26 allegations of essential error awaiting processing which must be resolved before the case file is requested to issue a ruling, since this is an eminently technical suit. The need to deal with those allegations and the consequences of failing to do so have been explained in the pleading of May 12, 2010 at 8:50 a.m. filed by Chevron detailing the alleged essential errors, specifying those that had been admitted for processing and those that were never handled and are therefore awaiting processing. The pleading also pointed out those cases in which the allegations of essential error had been admitted and the respective experts had to be notified of those allegations of essential error formulated at Chevron’s request. The cases in which the appropriate evidentiary period should be opened were also clearly identified. A list containing a summary of the pending 26 cases of essential error is found at the end of this section.

I would also like to stress that the above cases are in addition to the allegations of essential error committed in both the expert report prepared by Engineer Oscar Dávila on the judicial inspection of the Shushufindi Suroeste production station and the expert report, clarifications and/or supplements issued by Engineer Richard Cabrera Vega in connection with the expert examination supposedly conducted on all fields operated by Texpet as operator of the former Petroecuador – Texaco Consortium, for which the court illegally and illegitimately denied the request to open the summary proceeding;26 and this fact also constitutes grounds for nullity.

The refusal to duly open the summary proceedings for essential error, granting the experts involved the period of time needed to exercise their right to a defense and to submit evidence as ordered by law, occurred when Dr. Leonardo Ordóñez, with no legal basis whatsoever, cancelled the gathering of evidence for the 13 summary proceedings for cases of essential error in which he had already ordered Chevron to submit evidence, which was illegally limited to simply submitting documentary evidence, hence also restricting Chevron’s right to a defense, since Chevron had requested different proceedings to demonstrate the essential errors committed by the experts in question and the judge ordered that the evidence briefs simply be added to the case file, without ordering, as required by law, that the requests made in the different evidence pleadings be met.

26 Ref. ruling issued on July 09, 2009 at 2:00 p.m., in which you ordered, among other things: “Add to proceeding No. 002-2003-PCSJNL: … 14) The pleading filed by the defendant, received at the Office of the Clerk of the President of the Court on June 23, 2009 at 5:22 p.m. and, based on the text thereof, the Court rules: the petition is denied; your request is already found in numeral 11 of this ruling, which has also been denied. Since there are two expert reports, the Court already has sufficient basis on which it can compare them in order to decide.” (my emphasis) for the case of the expert Dávila; and numeral 9) of the ruling of May 28, 2009 at 11:00 a.m.: “The pleading filed by the defendant, received at the Office of the Clerk of the President of the Court on May 14, 2009 at 4:14 p.m., and based on its text, the Court rules...., hence, in the case of this expert Richard Cabrera Vega, opening a summary proceeding is not in order; therefore, your request is denied” in the case of expert Cabrera.


As background, the ruling issued by Dr. Leonardo Ordóñez Piña on July 27, 2010 at 10:00 a.m. is worth mentioning. Numerals 1 to 13 of this ruling grant Chevron a term of three days to submit evidence with regard to the allegations of essential error in summary proceedings previously opened in connection with the following sites:

• Well Lago Agrio 2; • Well Shushufindi 7; • Well Aguarico 02; • Well Shushufindi 13; • Well Auca 01; • Well Yuca 2B; • Well Cononaco 06; • Sacha Sur production station; • Sacha Central production station; • Sacha Norte 1 production station; • Well Shushufindi 18; • Well Shushufindi 25 (in which expert Mora has not been notified of the

opening of the summary proceeding); • Aguarico production station, for which a summary proceeding was not

ordered in any ruling and was nevertheless included in the evidentiary period.

In general terms and with no specification whatsoever, Dr. Ordóñez ordered “open for a term of 3 days, so that the petitioner may summarily prove its arguments, because it is up to the one who requests to present the supporting evidence documenting it;” and with this, we arrive at the fact that: Just as my client has alleged during the process, my client was arbitrarily and illegally not allowed to have the experts in question submit evidence in response to Chevron’s allegations, despite the fact that the requests were submitted within the appropriate period and that the subsequent evidence announcements were made. In fact, in its pleading of July 29, 2010 at 3:23 p.m., Chevron requested a clarification of the ruling of July 27, 2010 at 10:00 a.m., asking whether numerals 1 to 13 referred to the respective evidence announcements in the summary proceedings that were previously opened. Chevron asked that the ruling be amended and expanded to grant the different experts an equal evidentiary period so that they could negate the allegations of essential error made against them. With that objective, it


asked the Court to revoke that part of the ruling that ordered “…open for a term of 3 days on the day following the notification....” The Court was also asked to revoke the part of the ruling which ordered that my client must “…submit its documentary supporting evidence in each of the summary proceedings that have been opened ....” and alternatively ordered that both my client and the experts whose reports have been questioned submit their requests for evidence in accordance with Article 121 of the Code of Civil Procedure. On this point, the Judge limited himself to ruling: “Add to the case file the pleading submitted by Dr. Adolfo Callejas Rivadeneira (sic), attorney for Chevron Texaco (sic) on July 29, 2010 at 3:23 p.m., and abide by the provisions of the ruling dated July 27, 2010 at 10:00 a.m.”

Moreover, with no legal basis or valid grounds whatsoever, the Office of the President of the Court left in limbo and did not accept Chevron’s legitimate request to open summary proceedings for essential error in 12 cases in which Chevron had alleged its existence with respect to the reports of several experts nominated by the plaintiffs. With a decision that contradicts what the Judge himself had done on previous occasions, he expressly refused to open summary proceedings for the alleged essential error in the expert reports submitted for the following sites:

• Well Auca 17, • Well Auca 19; • Auca Central station; • Auca Sur station; • Culebra mini station; • Yulebra mini station; • Yuca Central station; • Guanta Central station; • Well Sacha 57; • Well Shushufindi 04; • Well Lago Agrio 06,; and, • Well Shushufindi 21

For this refusal, Dr. Ordóñez claimed as erroneous justification the case of Dr. Marcelo Muñoz, who was an expert in the first 8 judicial inspections mentioned above, because he had responded to repeated questions posed by the defendant and, as Dr. Ordóñez understood it, Chevron had been unable to prove the existence of any essential error; and that, in addition, “dilatory motions will not be accepted; consequently, deny the request to open the summary proceedings for


essential error found in Section VII of the pleading of May 12, 2010 at 08:50 a.m.” These assertions of the judge do not reflect the reality of the facts and contradict the law and the actions of the presiding judge himself, as seen in the case file. III. CONCLUSIONS

In addition to the fact that there are pending court proceedings that are important for the defense of my client and to complete the information in the case that is essential so that Your Honor might render a fair and impartial judgment, it is necessary to refrain from requesting the case file in order to issue a ruling because Chevron has not had the opportunity to complete all of the Section 1782 discovery in the United States. No proceeding that ignores evidence like the evidence that is coming to light as a result of the judicial actions in the United States can be consistent with the principles of due process and my client’s constitutional right to defend itself. It cannot be expected, Your Honor, for the plaintiffs’ attorneys to enjoy impunity for their overt acts, already public knowledge, of recklessness, bad faith, malice and fraud whereby they threaten the administration of justice as a whole, and the validity of this judgment, annulling it. Their conduct does not affect specific court proceedings, but instead the case as a whole, since the claim and the lawsuit submitted have no other purpose than that of implementing extortion against my client, in which unfortunately, also through extortion and pressuring practices, not only judges who heard this action participated, but also, for having been the target of certain other misunderstood interests, other officers who represent the Ecuadorian government have intervened. It must be understood, therefore, that this is not the case of any single Ecuadorian nor of the people of Ecuador, but rather the case of traffickers in lawsuits, whose greed has led them into madness and perversion.

IV. PETITION

With this background, having proved and demonstrated that the plaintiffs have committed violations and illegal acts on which you must rule; that all of the evidence requested by my client and ordered by the Court has not been obtained; and, specially, that the Court has yet to rule on legal, duly grounded petitions which reveal the fraud orchestrated by plaintiff’s sponsors, the collusion between the plaintiffs, their financial backers, attorneys, expert Cabrera and even the participation of the former President of the Court, Dr. Germán Yánez; the fact that reports prepared by third parties were submitted in the name of expert Charles Calmbacher, all of which must be cleared up in benefit of the process, based on the foregoing, I appear in due time, since the record is incomplete, to request on behalf of my client, as I expressly do in this pleading, revocation of the part of your ruling of December 17, 2010 at 9:57 a.m., which literally reads: “Insofar as concerns principal issue, as ordered in Article 837 of the Code of Civil Procedure, the Court declares the evidence period concluded and requests the case file to issue a ruling.- The



parties to the proceedings may submit their closing briefs, in defense of their interests-”; and, alternatively, that you order that all procedures be carried out which would tend to prove and show violations of law, falsifications and undue use of signatures, acts of fraud, collusion, etc., committed by the plaintiffs, their sponsoring attorneys and backers, as well as order each and every one of the pending proceedings, without limiting them to those I have listed herein, to be carried out.

For the petitioner, duly authorized as its defense attorney.

[Illegible signature] DR. ENRIQUE CARVAJAL S.

ATTORNEY LICENSE No. 2055 – C.A.P.

[Stamp: Provincial Court of Law of Sucumbios - Office of the President - Received in Nueva Loja on December 22, 2010, at 5:48 p.m. in 3 copies and attaching 36 Annexes - [illegible signature] - Clerk.]

12/22/10- Chevron’s Motion to Revoke Autos para Sentencia (English/Spanish)

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