CERT. MERRILL VER: JD

TO THE ACTING JUDGE OF THE PROVINCIAL COURT OF JUSTICE OF SUCUMBÍOS:

I, Adolfo Callejas Ribadeneira, Counsel of Record for Chevron Corporation, in oral summary for suit No. 002-2003, brought against my client by María Aguinda et al., respectfully state to you:

Over the course of these proceedings, I have repeatedly brought to this Court’s attention evidence demonstrating that the plaintiffs, through their attorneys, have perpetrated a fraud that nullifies the whole process, as part of their effort to obtain a judgment against my client, through which they seek to obtain an exorbitant sum of money.1 On August 6, 2010, at 2:50 p.m. I filed a motion requesting that the plaintiffs and their attorneys be sanctioned and that the lawsuit be dismissed, which is based in effect on the outtakes from the Crude documentary showing that such party to the case not only conspired and obtained that Mr. Richard Stalin Cabrera Vega was appointed as expert for the global expert examination, held meetings with him and the judge on the case even before his appointment, but also they were the ones who prepared the supposedly “independent” and “neutral” expert report. Through a motion on September 14, 2010, at 11:10 a.m., I provided to you, Your Honor, further evidence of the illicit dealings the plaintiffs and Mr. Cabrera and recounting the immense political pressure the plaintiffs and the Ecuadorian government have placed on this court. Through a motion on December 8, 2010 at 4:21 p.m., as well as through other recent motions submitted separately, I filed yet additional evidence concerning plaintiffs’ fraud as it has become available through proceedings to obtain evidence offered by Chevron brought in the United States of America under Section 1782 of the United States Code, and today I do the same.

This filing recounts newly obtained evidence procured through U.S. discovery from Dr. Lawrence Barnthouse, author of one of the reports the plaintiffs submitted along with their filing of September 16, 2010 at 5:15 p.m. (report requested by former Judge Ordoñez about criteria on the damage assessment). This evidence supplements my client’s response to the filing of October 29, 2010 at 5:20 p.m. and it further demonstrates that plaintiffs have attacked the administration of justice, intimidating and repeatedly misleading this court, in this case, through the fraudulent performance of a global expert exam and the formulation of the corresponding expert report prepared by them and presented through the expert, Mr. Cabrera. As the growing mountain of evidence that I have been presenting demonstrates,

1 My client’s right to bring this evidence to Your Honor’s attention is guaranteed by the

constitutional right to present a defense. Article 76(7)(h) guarantees a defendant the right “[t]o present orally or in writing the reasons or arguments that he believes support his case and to reply to the arguments of the other parties; to present evidence and contradict evidence presented against him.” My client reserves the right to continue to bring such evidence to Your Honor’s attention as it is discovered.

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this illegitimate and fraudulent case, brought by plaintiffs, in an abusive and baseless manner, has already caused my client substantial damages, and this situation must not be allowed to continue.

1.1 Plaintiffs falsely claimed that a report submitted together with their filing of September 16, 2010 at 5.15 p.m. contained new evidence when in fact it was based on the fraudulent Cabrera Report

In support of their filing of September 16, 2010 at 5.15 p.m., plaintiffs submitted a report written by Dr. Lawrence Barnthouse. The plaintiffs claim that Dr. Barnthouse’s report provides “estimated costs” for recovery of damages to the natural resources in the former Concession area.2 The plaintiffs concede that “it is not possible to precisely determine the amount of environmental service losses in the forest,” but claim that Dr. Barnthouse opines that “it is not clear whether additional future studies will provide reliable figures that differ from the range identified by Cabrera.”3 Their characterization of Dr. Barnthouse’s report, Your Honor, is misleading and distorted. They imply that he provides information in addition to the information already contained in the Cabrera Report and that he gives some assessment of natural resource damages. Newly uncovered evidence from a December 10, 2010 deposition of Dr. Barnthouse shows that his report has no evidentiary value because he did not perform his investigation, or his own work but instead gave only a superficial review of the natural-resources damages estimated in the Cabrera report (which he mistakenly assumed was neutral) and concluded that the estimate could not be validated given the presence of errors, untested assumptions, and other uncertainties.

Dr. Barnthouse testified that he did not conduct a natural resource damage assessment, which would produce a calculation of damages.4 Rather, he confirms that he was asked only “to make an independent evaluation of the quality of the study and the validity of the conclusions [of Mr. Cabrera].”5 Dr. Barnthouse conceded, however, that because he had to rely on Mr. Cabrera’s report, his evaluation “couldn’t be completely independent” because most of the sources of his information “were only available from the Cabrera Report.”6

Furthermore, Dr. Barnthouse’s evaluation was limited to examining the methodology behind the analysis contained in the Cabrera report. But Dr. Barnthouse

2 Plaintiffs’ Filing of September 16, 2010, at 5:15 p.m., p. 9. 3 Id. 4 Official Transcript of Deposition of Dr. Lawrence Barnthouse taken on Dec. 10, 2010

(hereinafter, “Barnthouse”), attached as Annex to this filing at 123:3-124:17. 5 Barnthouse at Id. 41:13-42:15 6 Barnthouse at 52:2-10.

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cannot [sic] verify whether Mr. Cabrera’s application of those methodologies to any of the raw data collected from the former Concession area was correct.7 In fact, he did not even review the original raw data used in formulating the Cabrera report.8

Additionally, Dr. Barnthouse explicitly testified that his methodological review did not extend to Mr. Cabrera’s damages analysis, but was limited to the analysis of losses alleged to have caused said damages.9 Dr. Barnthouse’s only conclusion regarding Mr. Cabrera’s estimate of damages was that “they were not conclusive”—Dr. Barnthouse “did not conclude anything about the validity of those [damages] numbers.”10 Contrary to plaintiffs’ assertion that Dr. Barnthouse provided an “estimated cost,” Dr. Barnthouse testified that he did not do the work, analyses and calculations necessary to provide such an estimate.11

Dr. Barnthouse also made the following additional admissions regarding the limitations of Mr. Cabrera’s methods, all of which undermine the reliability and usefulness to you, Your Honor, of both the Cabrera Report and Dr. Barnthouse’s report:

Dr. Barnthouse concluded that “there are a lot of uncertainties in the methods that were used in the Cabrera Report.” The only endorsement he gave of Mr. Cabrera’s general methods is that “they are accepted methods,” 12 but Mr. Cabrera’s application of those methods would not be accepted in the United States, 13 and Dr. Barnthouse had no “understanding at all” about whether Mr. Cabrera’s methods are consistent with Ecuadorian regulations or international standards.14 He does not claim that they are the best methods, that they were scientific methods, or that they were applied correctly to the underlying data, the validity of which he neither tested nor reviewed.15

Dr. Barnthouse conceded that the methodology that he and Mr. Cabrera used, assuming natural resource impairment from sample results that exceed regulatory standards, is “an unreliable indicator” of impairment of natural resource services16 and are

7 Barnthouse at 248:11-17. 8 Barnthouse at 123:7-13. 9 Barnthouse at 50:2-6; 77:4-20. 10 Barnthouse at 78:21-79:8; 234:23-235:1; 218:24-219:5. 11 Barnthouse at 123:14-124:17. 12 Barnthouse at 75:8-18. 13 Barnthouse at 147:17-21; 148:2-10. 14 Barnthouse at 147:22-148:17. 15 Barnthouse at Id.; 171:20-172:9. 16 Barnthouse at 203:22-204:4.

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“[s]uboptimal [and] inadequate.”17 Dr. Barnthouse conceded that any impairment of natural resources in the area “could have been zero or close to zero.”18 Regardless, just as Mr. Cabrera failed to do, Dr. Barnthouse did not “take the next step” and determine whether any natural resource service was actually impaired and, if so, to what degree it was impaired.19 In sum, Dr. Barnthouse agreed that “there is not any scientific basis to presume that elevated levels of a particular hazardous substance above a threshold or criteria limit equate to injuries or service losses.”20

Dr. Barnthouse did not determine whether Mr. Cabrera was correct in treating well pads and roads as injuries. 21 By Dr. Barnthouse’s own admission, infrastructure and facility footprint are not included in assessing natural resource damages under U.S. regulations.22 Dr. Barnthouse has never seen these items included in any other project in which he has been involved.23 He conceded that 95 percent of the area Mr. Cabrera claims was impacted is unrelated to spills or actual contamination.24 (In fact, it is related to infrastructure.) He also conceded that Mr. Cabrera’s addition of these areas to the natural resource damages calculation, clearly gave him a much larger number in terms of service losses and damages than if he had looked only at contamination.25

Dr. Barnthouse testified that “taking into account the remediation by Texaco Petroleum would affect the figure for damages reached” by Mr. Cabrera—that is, any damages would have to be reduced by the portion that had been remediated after 1990. 26 The same is true of any remediation by PetroEcuador. 27 Dr. Barnthouse, like Mr. Cabrera, failed to take any remediation into account in his report.28

17 Barnthouse at 205:2-3. 18 Barnthouse at 114:15-115:9. 19 Barnthouse at Id.; 113:4-9; 119:25-120:8. 20 Barnthouse at 203:7-12. 21 Barnthouse at 145:21-23; 149:1-2. 22 Barnthouse at 147:17-21; 148:2-10. 23 Barnthouse at 190:14-20. 24 Barnthouse at 192:13-19. 25 Barnthouse at 149:3-21. 26 Barnthouse at 185:19-186:14; 187:11-15. 27 Barnthouse at 188:11-15. 28 Barnthouse at 172:18-173:5; 188:4-10; 220:15-25.

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Dr. Barnthouse did not independently estimate the area of spills. Rather, he relied on the area provided by Mr. Cabrera, which he concedes was an approximation based on an assumption that “would have errors and uncertainties associated with it.” 29 Dr. Barnthouse has no understanding whether Mr. Cabrera’s assumption was valid or not, 30 but conceded that these assumptions would have a significant impact on the calculation of natural resource damages.31

Dr. Barnthouse made the following admissions regarding the limited nature of his evaluation and the limitations on the information he reviewed or to which he had access, which weakens the reliability and usefulness to you, Your Honor, of that report:

When he wrote his report, Dr. Barnthouse was unaware of the proof my client has submitted regarding the collusion between plaintiffs and Mr. Cabrera, and as a result, was under the impression that Mr. Cabrera “would be neutral” as a court-appointed expert.32 He testified that if he had known that the Cabrera report was written by the hired consultants paid by the plaintiffs, he might “not have wanted to get involved.”33

Dr. Barnthouse did not review any of the rebuttals to the Cabrera Report submitted by Chevron, which included Dr. Theodore Tomasi’s analysis of Mr. Cabrera’s estimation of damage to natural resources.34 Dr. Barnthouse did not review any of the technical appendices addressing the data in the Cabrera Report, even though he relied on the Cabrera Report’s data.35 Dr. Barnthouse also failed to review any of the data on sediment quality submitted to Your Honor by Dr. Dominic Di Toro, despite conceding that sediment quality data would have been valuable to him in conducting his work.36 Dr. Barnthouse did not review any of the work conducted by the biologists Gallo and Cerón on flora and fauna in the former Concession area, despite the fact that the work would be relevant to his opinion, and despite the fact that Gallo and Cerón concluded that the damage to natural resources in the former Concession area amounted

29 Barnthouse at 143:24-145:6. 30 Barnthouse at Id. 31 Barnthouse at Id.; 149:3-21; 251:11-252:2. 32 Barnthouse at 35:5-12, 35:21-37:6; 41:1-10; 60:16-61:2. 33 Barnthouse at 61:11-23. 34 Barnthouse at 74:5-14. 35 Barnthouse at 81:7-20. 36 Barnthouse at 82:2-83:2.

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to less than US$18 million (as opposed to Mr. Cabrera’s estimate of US$1.7 billion).37

Dr. Barnthouse did not determine what the correct TPH standards were in Ecuador, but rather relied solely on Mr. Cabrera and “assume[d] that he was not correctly characterizing what they are.” 38 Similarly, Dr. Barnthouse did not investigate the Ecuadorian procedure for setting standards.39 Dr. Barnthouse was not aware that Ecuador’s Forestry Law specifically addresses the cost of tropical rainforest restoration, did not review the Forestry Law, and had no opinion about why the per hectare restoration amounts in the Cabrera Report were 13-1/2 times higher than the per hectare restoration value in the Forestry Law.40

Dr. Barnthouse conducted no studies to evaluate what the degree of impairment to ecosystem resources is for an open well pit.41 Dr. Barnthouse was not aware of the source of any of the assumptions Mr. Cabrera made regarding the degree of natural resource impairment of pits or roadside corridors, had no basis to assess the validity of these assumptions, and called them “approximations” that were “not rigorous science.”42

Dr. Barnthouse does not speak or read Spanish and did not request that any documents that were available only in Spanish be translated into English.43 He testified that if he had been given more time, he would have liked to have had all the available materials translated into English for his review.44

Dr. Barnthouse has never visited Ecuador or the former Concession area,45 never conducted any sampling in the former Concession area to evaluate environmental conditions,46 and has no basis to conclude that the analytical results of samples contained in the Cabrera Report are from an accredited laboratory or used correct analytical procedures.47

37 Barnthouse at 84:11-88:14. 38 Barnthouse at 115:10-15; 130:3-15. 39 Barnthouse at 120:18-22. 40 Barnthouse at 223:19-226:3. 41 Barnthouse at 214:6-9. 42 Barnthouse at 215:10-24; 218:13-20. 43 Barnthouse at 110:6-10. 44 Barnthouse at 111:6-14. 45 Barnthouse at 164:25-165:4. 46 Barnthouse at 165:5-9. 47 Barnthouse at 169:23-171:3.

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Dr. Barnthouse has no understanding of the obligations of expert witnesses under Ecuadorian Law, and no understanding of the standards for scientific testimony in Ecuador.48 He has no understanding of whether his report meets the standards for scientifically valid testimony in Ecuadorian courts.49

1.2 Dr. Barnthouse’s report is improper and inadmissible under numerous provisions of the Code of Civil Procedure

In light of this new evidence, as well as my prior objections to the ruling of August 2, 2010, at 9 a.m., and the reasons set forth in my filing of October 29, 2010, at 5:20 p.m., it is clear that Dr. Barnthouse’s report is both improper and inadmissible under Ecuadorian law. Indeed, Dr. Barnthouse’s report was not authorized under any provision of Ecuadorian law and, thus, Dr. Barnthouse cannot be considered as a witness, much less as an expert, by this Court. Even if one were to consider his report under the rules governing the testimony of witnesses or experts, Dr. Barnthouse’s report still would fall far short of the requirements for admissibility. That report should be disregarded in its entirety by this Court.

The Code of Civil Procedure expressly provides that “honesty, knowledge and impartiality are required” for any person to be a suitable witness50 and authorizes courts to disregard the testimony of any witness who fails to meet these requirements.51 In addition to the requirement of honesty,52 all testifying witnesses are required to be free of both conflicts of interest and undue influence by any party.53 They must also have a sufficient basis or foundation to support their testimony, demonstrating that they are in a position to know the facts about which they are testifying.54 The true facts set forth above, recently revealed in Dr. Barnthouse’s sworn deposition of December 10, 2010 in the United States, establish that Dr. Barnthouse’s report, even if considered as the testimony of a witness, lacks honesty, knowledge and impartiality and should be disregarded.

Ecuadorian law requires even higher standards for expert witnesses, who must be appointed by the court. For example, an expert must be knowledgeable in the specific field of science, art, or the profession about which they are testifying.55 They also must be knowledgeable of the facts of the specific case

48 Barnthouse at 131:2-132:3. 49 Barnthouse at 132:4-7. 50 Art. 208 of the Code of Civil Procedure. 51 Art. 218 of the Code of Civil Procedure. 52 Arts. 213, 231 of the Code of Civil Procedure. 53 Art. 216 of the Code of Civil Procedure. 54 Arts. 208, 233 of the Code of Civil Procedure. 55 Art. 250 of the Code of Civil Procedure.

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in which they are testifying,56 and an expert's report must be written with clarity and must contain a statement of their foundation.57 Otherwise, the court may request further explanations from the expert for clarification.58 If an expert’s report lacks clarity,59 or contains essential errors,60 the court may even appoint another expert to conduct a new survey. The court may disregard the conclusions of the expert whose testimony or report does not meet these rigorous standards.61

The new evidence obtained by Chevron, which I have detailed, proves that Dr. Barnthouse’s report meets none of these strict requirements, even if he was considered as a witness or a supposed expert, which he is not. His report is therefore inadmissible, and Your Honor should give it no weight.

1.3 Petitions

Because plaintiffs’ conduct directly affects the merits of the case, my client’s right to due process, and the integrity of this proceeding, I hereby respectfully submit new evidence in support of the previous motion of August 6, 2010 at 2:50 p.m., as well as in support of what was set forth in my filings of September 14, 2010 at 11:10 a.m., and December 8, 2010 at 4:21 p.m. This evidence also supplements my filing of October 29, 2010 at 5:20 p.m., which responded to the plaintiffs’ filing of September 16, 2010 at 5:15 p.m. This new evidence mandates that Your Honor give no procedural weight to Dr. Barnthouse's report, which was included in plaintiffs' filing of September 16, 2010, at 5:15 p.m.

Moreover, based upon this new evidence, I specifically request that Your Honor take into account the procedural conduct of the plaintiffs who, in light of the facts that have been presented, have acted recklessly and in bad faith, presenting distorted evidence, committing misrepresentation, which pursuant to Article 26 of the Organic Code of Judicial Procedure, obligates you to take immediate actions to sanction this type of conduct, which is nothing more than a small part of the illegalities and immoralities committed by the plaintiffs and their counsel.

Article 292 of the Penal Code indicates that “Any official or agent of police who, having been informed of the perpetration of a crime does not immediately bring it to the attention of an examining magistrate, shall be subject to fifteen days to six months imprisonment.”

56 Art. 251 of the Code of Civil Procedure. 57 Art. 257 of the Code of Civil Procedure. 58 Id. 59 Art. 262 of the Code of Civil Procedure. 60 Art. 258 of the Code of Civil Procedure. 61 Art. 262 of the Code of Civil Procedure.

CERT. MERRILL VER: JD

You are an “official” in terms of the scope of Article 292 of the Penal Code transcribed above, for which reason the obligation applies to you to bring to the immediate attention of an examining magistrate any “news” you may have regarding the perpetration of a crime. If you do not do it, you would be committing a criminal offense punishable by imprisonment, imposing nullity, moreover, on anything resolved during the trial after the perpetration of the crime.

I most respectfully request that Your Honor comply strictly with Articles 292 of the Penal Code and 129 of the Organic Code of Judicial Procedure, and that you ask the examining magistrate to instigate the corresponding criminal proceedings, for which purpose he is to be sent certified copies of any filings of this proceeding that would prove the existence of a criminal offense.

It cannot be permitted that the plaintiff should continue to act as it has thus far, attacking the administration of justice. Facts such as those exposed above must be investigated, both because they affect the validity of the trial itself and your conduct as judge in these proceedings, as well as the rights of my client to due process and its right to defense. These illicit activities of the plaintiff can neither be allowed nor tolerated, and must come to an end.

I request that copies of all evidence presented to this Court related to the fraud that was committed be sent to the Office of the Prosecutor General and to the Plenary of the Judiciary Council

Additionally, because, as Your Honor is aware, my client continues to receive new evidence of plaintiffs’ fraud that affects the integrity of this proceeding, I request that no judgment be entered until all such evidence has been received, investigated, and addressed by the Judge, as should be done legally.

On behalf of the petitioner, duly authorized as his Counsel of Record.

[signature] DR. IVAN ALBERTO RACINES E.

ATTORNEY REGISTRY No. 6459 – C.A.P.

PROVINCIAL COURT OF JUSTICE OF SUCUMBÍOS

PRESIDENT RECEIVED in Nueva Loja, on

December 21, 2010 at 11:00 a.m. in 3 copies and 539 Attachments

[signature] SECRETARY