The appetite for hypocrisy among Chevron’s “rescue team” at the law firm Gibson Dunn & Crutcher (GDC) knows few bounds. Our latest example, courtesy of GDC appellate partner and former Solicitor General Ted Olson, is truly astounding.
After the GDC trial team led by Randy Mastro bribed a key witness to win its farcical RICO case in New York, and after Chevron scientists orchestrated a massive scientific hoax on the courts of Ecuador, we now have Chevron’s most prominent outside lawyer and a leading beacon of the Republican establishment working with two directors to make a documentary film about his own case.
Sound familiar? Olson and his minions at GDC have directed furious criticism at New York Attorney Steven Donziger for doing the same thing with the Ecuador litigation. In reference to Ecuador, they even have argued that making such a film results in the wholesale waiver of attorney-client privilege and is part of an “extortion” campaign against Chevron.
Olson’s new film, The Case Against 8, aired earlier this week on HBO. The film documents the travails of Olson and his team as they fight to the Supreme Court to overturn a California law (called Proposition 8) barring gay marriage.
In the film, Olson and his allies openly use the media and tools of political organizing – including raucous protests in front of courthouses – to advance their legal case and pressure courts via the mobilization of public opinion. These are the same time-worn tactics used by civil rights litigators the world over, including Donziger and the indigenous leaders in Ecuador. Yet the GDC team claimed the use of the exact same tactics in Ecuador was improper.
That’s the gist of the Chevron hypocrisy. It’s the same double standard that says Ecuadorians should put up with massive levels of toxic soil contamination because they live in Ecuador rather than in America. Chevron proposed a clean-up standard for toxic oil waste to the Ecuador court that literally was 100 times more lax than the average American standard. When the court rejected the preposterous proposal, Chevron hilariously claimed the judges were biased against the company.
More interesting for our purposes is that in the Prop 8 case Olson gave the HBO filmmakers an all-access pass to confidential meetings where lawyers were discussing internal strategy and highly sensitive issues with witnesses and clients.
In the Chevron case, GDC pilloried Donziger and Ecuadorian lawyer Pablo Fajardo for offering similar access to director Joe Berlinger, who produced the award-winning film Crude on the Ecuador case. (Crude, based on our completely unbiased perspective, makes for a far more interesting film than the HBO flick. It is available from Netflix.)
Chevron’s criticism led to a vast “waiver” of attorney-client privilege that allowed GDC access to all 600 hours of Berlinger’s outtakes. The GDC team then sliced and diced the outtakes into fodder for its trumped-up RICO case, eliminating key phrases to falsely portray Donziger as a thug when he was really battling heroically to neutralize Chevron’s attempted corruption of the Ecuadorian court system, as documented in part in this stunning affidavit and related legal briefs.
Olsen authorized the HBO film team to “embed” itself for over four years with his legal team. Going along with the decision was none other than David Boies, one of the top litigators in the country who also worked on the Prop 8 case and who is featured prominently in the HBO film.
In an interview posted on the HBO website, the filmmakers brag about the “incredible access” they had to the internal deliberations of the GDC-led team. Director Ben Cotner described how Olson allowed him to effectively “blend into the background”: “We'd slip in and out of rooms, sometimes in the middle of meetings. People got so used to us being there that eventually we were just allowed to be part of that process.”
His co-director Ryan White added that it was his policy to “keep the cameras on” at all times: “We shot 600 hours of footage, and many of those hours are probably really boring stretches when we're just rolling a camera in a conference room, since we didn't know when an important phone call was going to come in or when a ruling might come down.”
The filmmakers assert that this opportunity to “embed” was specifically with the legal team, not with the plaintiffs in the case. As it turns out, the plaintiffs were far more circumspect and only gradually allowed the filmmakers to follow them for a limited set of activities.
Chevron’s hypocrisy is legendary: The company spent a decade in the 1990s telling a New York court it wanted the environmental case heard in Ecuador. When the evidence against it mounted, Chevron came running back to New York saying Ecuador’s courts were incapable of providing a fair trial. The company’s desperate campaign of forum shopping has now taken the matter to more than 30 courts around the world. In the meantime, villagers wait for Chevron to comply with a court-mandated clean up of the billions of gallons of toxic waste it has admitted to dumping.
We certainly look forward to seeing HBO's video outtakes from Olson and the other GDC lawyers. They might be of interest to foreign courts that are being asked by the rainforest villagers to seize Chevron’s assets to force the company to comply with the rule of law and pay the Ecuador judgment.
No doubt most of these courts will be paying more than a passing glance at GDC’s history of using unethical tactics to advance the interests of its many scandal-plagued clients.