NEW YORK Nov 15 Steven Donziger, the lawyer accused by Chevron Corp of using bribery to secure a $19 billion judgment over pollution in Ecuador, has never been shy about his opinion of U.S. District Judge Lewis Kaplan.
"What he's doing is not judging," Donziger said of Kaplan, who is presiding over a non-jury trial on Chevron's claims in a federal court in New York. "He's prosecuting."
Donziger, who spoke to reporters on Friday, is expected to take the stand on Monday to testify in his own defense. The trial is entering its sixth week.
His appearance will be a dramatic moment in the years-long legal battle that has pitted the vast resources of a global oil company against Donziger and the group of villagers in northeastern Ecuador that he advised.
In a draft of his testimony provided to the press, Donziger accused Kaplan of bias while criticizing Chevron for "the most well-funded corporate retaliation campaign in history."
"I challenge at the most fundamental level the legitimacy of this proceeding," he wrote.
A court spokeswoman said Kaplan would have no comment. In 2011, Kaplan rejected Donziger's request that the judge recuse himself for partiality. The 2nd U.S. Circuit Court of Appeals later upheld his decision on appeal.
The case centers on contamination between 1964 and 1992 from an oil field operated by Texaco, which was later acquired by Chevron. In 2011 an Ecuadorean judge, Nicolas Zambrano, issued an $18 billion judgment - later increased to $19 billion - against Chevron in favor of a group of villagers who lived nearby.
Ecuador's highest court upheld the decision this week but slashed the amount to $9.5 billion. Chevron claims that Texaco cleaned up the site after ceasing Ecuadorean operations in 1992 and handing the field over to state-controlled Petroecuador.
The villagers have sought to enforce the judgment in courts in Canada, Brazil and Argentina, since Chevron no longer has assets in Ecuador. If Chevron wins at trial, it would likely use the ruling to bolster its case against enforcing the judgment in foreign courts.
During the trial, a former Ecuadorean judge, Alberto Guerra, testified that he was paid to ghostwrite Zambrano's opinion and that Donziger was aware of the scheme.
"Chevron has no evidence that I had any involvement in bribing any judge apart from Guerra's thoroughly false and corrupt testimony," Donziger said in his written testimony. He said Guerra openly asked for a bribe at one point, which Donziger refused.
Zambrano said on the witness stand that he wrote the opinion on his own and did not accept any payments.
In a statement, a Chevron spokesman called Donziger's draft testimony "nothing more than 60 pages of distraction, distortion, fabrication and irrelevance." He also said it did nothing to refute the evidence Chevron has presented at trial, including experts who said Zambrano could not have written the opinion alone and in the time frame he claimed.
Donziger also claimed Chevron acted improperly during the Ecuadorean case, meeting with judges without opposing counsel present and using "back channels" to pressure government officials.
As both sides have done with previous witness statements, Chevron is expected to ask Kaplan to strike portions of Donziger's submission as inadmissible.
Donziger said in his testimony that he held secret meetings with an expert who prepared a report on Chevron's liability in Ecuador and that his team paid the expert, but he said he believed that those actions were in keeping with Ecuadorean law.
On Friday afternoon, Donziger spoke with reporters for 90 minutes in a crowded loft apartment where 14 lawyers, activists and volunteers on his team have been sleeping during the trial.
He and one of his lawyers, Zoe Littlepage, said they fully expect Kaplan to rule against them and are already contemplating the basis for an appeal.
Besides their claim that Kaplan is biased, they said they would argue that Chevron's lawsuit improperly seeks to use the federal racketeering statute to stay enforcement of a foreign judgment.
The case is Chevron Corp v. Steven Donziger et al, U.S. District Court for the Southern District of New York, No. 11-0691.