12/16/10 Deposition Transcript- Allen

e2c14fff-96fb-4712-8920-ff9dc101e9a8Electronically signed by Johanna Masse, RMR, CRR (501-339-280-4048)

Douglas C. Allen - 12/16/2010 Application of Chevron Corporation v. Douglas C. Allen, P.A.

802-862-4593 - [email protected] Reporters Associates

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT

----------------------------APPLICATION OF CHEVRON )CORPORATION, ) Petitioner, ) ) CIVIL ACTIONTo Issue Subpoenas for the ) No. 2:10-mc-00091-WKSTaking of a Deposition and )the Production of Documents)from ) )DOUGLAS C. ALLEN, P.A., ) Respondent. )----------------------------

VIDEOTAPED DEPOSITION - of - DOUGLAS C. ALLEN

taken on behalf of the Petitioner on Thursday, December 16, 2010, at the offices of Paul Frank + Collins P.C., One Church Street, Burlington, Vermont, commencing at 9:25 AM.

COURT REPORTER: JOHANNA MASSÉ, RMR, CRR




1 APPEARANCES:

2 ON BEHALF OF THE PETITIONER: ROBERT C. BLUME, P.C., ESQUIRE

3 Gibson, Dunn & Crutcher LLP 1801 California Street

4 Denver, Colorado 80202-2642 (303) 298-5700

5 [email protected]

6 REBECCA GRAY, ESQUIRE Gibson, Dunn & Crutcher LLP

7 1050 Connecticut Avenue, N.W. Washington, D.C. 20036-5306

8 (202) 955-8500 [email protected]

9 ROBERT S. DiPALMA, ESQUIRE

10 Paul Frank + Collins P.C. One Church Street, P. O. Box 1307

11 Burlington, Vermont 05402-1307 (802) 658-2311

12 [email protected]

13 ON BEHALF OF THE RESPONDENT: ADLAI J.J. SMALL, ESQUIRE

14 ERIC R. DALEO, ESQUIRE Patton Boggs LLP

15 The Legal Center One Riverfront Plaza, Suite 600

16 Newark, New Jersey 07102 (973) 848-5600

17 [email protected] [email protected]

18

19 ALSO PRESENT: ERIC FERNALD, VIDEO TECHNICIAN ROBERT HINCHEE

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1 I N D E X

2 DOUGLAS C. ALLEN PAGE

3 EXAMINATION BY MR. BLUME 7

4 EXAMINATION BY MR. SMALL 376

5 EXAMINATION BY MR. BLUME 379

6

7 E X H I B I T S

8 CHEVRON

9 EXHIBITS DESCRIPTION PAGE

10 No. 1100 Subpoena 19

11 No. 1101 E-mail with Attached CV, 22 Allen-Native 5113-5118

12 No. 1102 Curriculum Vitae 35

13 No. 1103 Article - "Environmental 39

14 Liabilities Present High Risks and Management Challenges in

15 Business Operations & Transactions"

16 No. 1104 Article - "Environmental Due 39 Diligence in Mergers &

17 Acquisitions: Ten Common Mistakes to Avoid"

18 No. 1105 Article - "Cost Allocations - 40

19 Apportioning Environmental Response Costs Among Multiple Parties

20 for the Cleanup of Contaminated Property"

21 No. 1106 Subcontractor Agreement between 71

22 The Weinberg Group and Douglas C. Allen, P.A., Allen-Native 5070-5075

23 No. 1107 E-mail and Invoice, Allen-Native 74

24 6585-6589

25




1 E X H I B I T S

(Continued)2

DEPOSITION3 EXHIBITS DESCRIPTION PAGE

4 No. 1108 E-mail String re Supplemental 80 Information Request No. 1, Allen-

5 Native 8523-8524

6 No. 1109 E-mail and Cabrera Report, 120 Allen-Native 4861-4961

7 No. 1110 Allen Environmental Damages 122

8 Valuation (English Version)

9 No. 1111 Allen Environmental Damages 124 Valuation (Spanish Version)

10 No. 1112 E-mail and Draft of Report Outline, 135

11 Allen-Native 8059-8061

12 No. 1113 Cabrera Report (Allen-Native 750- 239 800); Appendix H: History and

13 Inventory of Waste Pits Opened for TEXPET Operations in Ecuadorian

14 Amazonia (Allen-Native 330-454); Annex N: Soil Remediation Costs

15 (Allen-Native 596-604); Appendix R: Cost Assessment of the Water

16 Provision for Ecuador's Provinces of Orellana and Sucumbios (Allen-

17 Native 5513-5534)

18 No. 1114 Aerial Map of Shushufindi Area 243

19 No. 1115 Rebuttal of the Methodology Used 244 by Mr. Cabrera to Determine the

20 Number and Size of Pits in the Petroecuador-Texaco Concession

21 No. 1116 Standard Guide for Estimating 261

22 Monetary Costs and Liabilities for Environmental Matters, Allen-

23 Native 4839-4849

24 No. 1117 E-mail String re Ecuador Decreto 272 1215, Stratus-Native 66073-66074

25




1 E X H I B I T S

(Continued)2

DEPOSITION3 EXHIBITS DESCRIPTION PAGE

4 No. 1118 Annex N: Soil Remediation Costs 321 (English and Spanish Versions)

5 No. 1119 Naval Facilities Engineering 340

6 Service Center Application Guide for Thermal Desorption Systems

7 No. 1120 Photograph 357



10

11 (The original exhibits were included with the original transcript.)

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1 THURSDAY, DECEMBER 16, 2010

2 9:25 AM

3 ---------------------------------------------------

4 THE VIDEOGRAPHER: On the record.

5 Today is December 16, 2010. The time on the

6 monitor is 9:25.

7 We are here at Paul Frank + Collins P.C., One

8 Church Street, Burlington, Vermont 05402, for a video

9 deposition of Douglas Allen, P.A., called by Attorney

10 Robert C. Blume of Gibson, Dunn & Crutcher, LLP, on

11 behalf of the plaintiff in the matter of Chevron

12 Corporation vs. Douglas Allen, P.A., U.S. District

13 Court for the District of Vermont, Docket No.

14 2:10-mc-0091-WKS.

15 The videographer is Eric Fernald of Moonlight

16 Video Productions, Worcester, Vermont. The court

17 reporter is Johanna Massé of Court Reporters

18 Associates, Burlington, Vermont.

19 Would all counsel please introduce themselves

20 and state whom they represent today.

21 MR. BLUME: Robert Blume, B-L-U-M-E, with

22 Rebecca Gray from Gibson, Dunn & Crutcher on behalf of

23 Chevron.

24 MR. SMALL: Adlai Small and Eric Daleo on

25 behalf of Doug Allen and the Lago Agrio plaintiffs.




1 Would you please identify yourself as well.

2 MR. HINCHEE: Robert Hinchee. I work for

3 Integrated Science Technology. I'm a consultant to

4 Chevron.

5 MR. DiPALMA: And Robert DiPalma, counsel for

6 Chevron also.

7 MR. SMALL: And then I understand that there's

8 also people that are connected streaming. Could you

9 guys identify who else is present here?

10 MR. BLUME: Claudia Barrett is a lawyer with

11 Gibson, Dunn & Crutcher, and Sara McMillen from Chevron

12 Corporation.

13 THE VIDEOGRAPHER: Are there any stipulations

14 today for the video record?

15 DOUGLAS C. ALLEN,

16 having been first duly sworn, testified as follows:

17 EXAMINATION

18 BY MR. BLUME:

19 Q. Mr. Allen, if you could state your first and

20 last name and spell it for the record, that would be

21 great.

22 A. I'm Douglas Allen, A-L-L-E-N.

23 Q. And, Mr. Allen, are you able today to testify

24 both truthfully and accurately?

25 A. I am.




1 Q. Are you under -- are you on any medications or

2 otherwise have anything which would inhibit your

3 ability to testify truthfully today?

4 A. I am not, and I do not.

5 Q. Okay. And you're represented today by counsel

6 from Patton Boggs; is that correct?

7 A. That's correct.

8 Q. Have you ever been deposed before?

9 A. Once.

10 Q. When was that, and what type of proceeding?

11 A. That was back in October 2001. It was an

12 insurance recovery matter in which I was a

13 co-testifying expert for damages.

14 Q. And what was your area of expertise for

15 damages? In what area of damages?

16 A. I'm sorry. Environmental. Environmental

17 property damages.

18 Q. What was the name of that case; do you recall?

19 A. Yes. United Technologies vs. -- I believe it

20 was American Home Insurance.

21 Q. Was that in the state of Vermont?

22 A. No.

23 Q. Where was it?

24 A. I'm just trying to think. The -- the

25 deposition was in D.C., but I think it may have been




1 Connecticut. I'm not certain.

2 Q. Federal or state?

3 A. I am not certain of that. It might have been

4 federal.

5 Q. Okay.

6 A. I could get those answers if that was --

7 Q. That's all right. You were representing which

8 party, sir?

9 A. I was representing the insurance company.

10 Q. Was there a lawyer present at the deposition?

11 A. Yes, there was.

12 Q. Do you recall who it was or what the firm was?

13 A. The firm was Steptoe & Johnson in Washington,

14 D.C. I believe the lawyer present with me that day was

15 John Jacobus.

16 Q. Okay. And what aspect of environmental

17 damages did you testify about?

18 A. We were looking at property damage at multiple

19 sites caused by contamination of the property due to

20 operations of the UTC.

21 Q. What type of contamination?

22 A. It was chlorinated solvents, I believe;

23 petroleum hydrocarbons; PCBs; metals. The usual run of

24 contaminants.

25 Q. So you under- -- having been through a




1 deposition, you understand there are certain ground

2 rules that help the deposition go quite smoothly, and

3 I'm just going to explain a couple of them,

4 understanding you've probably heard these before.

5 First off and most importantly is that as an

6 answer to my questions, the reporter will need a verbal

7 response.

8 A. Um-hum.

9 Q. It's very difficult for her to record head

10 movements or nods. If you do nod instinctively, as you

11 very well might, I may ask you to just make that

12 response in -- in -- verbally.

13 A. Um-hum.

14 Q. You understand that?

15 A. Um-hum.

16 Q. Also, what's very difficult for the court

17 reporter is when more than one person speaks at one

18 time. She can only record the voice of a single

19 person. So I will try very hard not to talk over you,

20 and I would ask the same courtesy from you, that you

21 try not to talk over me in my questions. Is --

22 A. Certainly.

23 Q. Great. At some point during the deposition,

24 your counsel may object to a question of mine. That is

25 done for legal purposes. They may instruct you after




1 that objection or simply may state an objection on the

2 record, but it in no way implies either your answer was

3 bad or necessarily my question was bad. Oftentimes

4 it's a procedural matter.

5 A. Um-hum.

6 Q. You understand that?

7 A. Yes, I do.

8 Q. Okay. If at any point during the day, Mr.

9 Allen, I ask you a question that is unclear, either I'm

10 using a term that's not familiar to you or my question

11 is simply confounding, I would ask that you ask me to

12 clarify that question so that I can be assured that the

13 answers you give are answers to the questions that --

14 that I ask. Is that okay?

15 A. Absolutely.

16 Q. Excellent. And at any point in time, Mr.

17 Allen, if you would like a break, please ask for one.

18 This is not an endurance test. As we all mentioned

19 before, we started late, but I will try to make up time

20 and by doing so may go longer than I otherwise might,

21 but by all means if you would like a break or just want

22 to stop or stretch your legs, please ask, and once I --

23 if I can -- if I'm at a decent stopping point --

24 A. Um-hum.

25 Q. -- I'll usually accommodate that request. Is




1 that okay?

2 A. That's okay.

3 Q. Okay. We talked about your deposition

4 experience. Have you ever testified at trial or at

5 any -- of any type?

6 A. No, I have not.

7 Q. Okay. Have you ever testified in any other

8 legal proceeding, an arbitration, a mediation, anything

9 of that nature?


11 Q. Prior to this case -- actually, prior to 2001,

12 the insurance case, at any other time have you been

13 qualified as an expert witness?


15 Q. So just to be clear, this is -- this would be

16 the second time that you would seek to be qualified as

17 an expert; is that right?

18 MR. SMALL: Objection to form.

19 You can answer.


21 MR. SMALL: Just so I'm clear, what do you

22 mean by "qualified"?

23 MR. BLUME: It's a fair question.

24 Q. You've never been asked to testify about any

25 area that you may consider to be within your area of




1 expertise?

2 A. No, I have not been asked to testify.

3 Q. You've never been qualified in any U.S. court

4 on the cost to remediate production pits in the oil

5 exploration field; is that correct?

6 A. That is correct.

7 Q. You've never been qualified as an expert in

8 any U.S. court to remediate -- on the subject of

9 remediating groundwater from contamination allegedly

10 caused by oil in an oil exploration or production pit;

11 is that correct?

12 MR. SMALL: In the U.S. court, you said?

13 MR. BLUME: In the U.S. court. In any court.


15 Q. And you've never been qualified as an expert

16 in any court on the cost to remediate sediments --

17 sediments in rivers, marshes, streams allegedly

18 contaminated by oil in an oil exploration and/or

19 production site; is that correct?


21 MR. SMALL: Just so I'm clear, when you're

22 talking about "qualified," you're talking about

23 formally qualified as an expert in the -- as a -- in

24 the U.S. court or any court?

25 MR. BLUME: Even more broad --




1 MR. SMALL: Formally qualified?

2 Q. Qualified -- you've never testified about any

3 of those topics; you've never presented yourself as an

4 expert in any of those topics in any formal legal

5 proceeding; is that correct?

6 A. I have never testified on any of those topics

7 in a court.

8 Q. Have you ever put yourself out in any legal

9 proceeding as an expert in any of those areas?

10 MR. SMALL: Objection.

11 You can answer.

12 A. I've recently been accepted as an expert in a

13 bankruptcy matter to do environmental damages.

14 Accepted, that is, by the bankruptcy court, but I'm not

15 sure how that relates to being qualified.

16 Q. Okay. And where -- in what bankruptcy court

17 was that, where was that, and in what topic?

18 A. That is -- I believe it's the Southern

19 District of New York. I'm not sure I'm at liberty to

20 identify the specific case.

21 Q. Okay.

22 A. But it's in the area of environmental damages

23 valuation.

24 Q. What type of environmental damages?

25 A. In this case, and I've just begun the case, it




1 involves a metallurgical manufacturing facility.

2 Q. Nothing in the oil exploration and/or

3 production area?

4 A. Not in those specific areas, no.

5 Q. Okay. At any point in time during the course

6 of your career, has anyone in a formal proceeding

7 anywhere in the world challenged your qualifications as

8 an expert?

9 A. No, they have not.

10 Q. Okay. Counsel today indicated when they

11 introduced themselves that they represent not only you

12 but the plaintiffs in this action; is that correct?

13 A. To my -- that's what I understand, yes.

14 Q. Okay. Are you paying counsel yourself, or are

15 they being paid by somebody else?

16 A. I am not paying them.

17 Q. Has anyone discussed with you the potential

18 of -- of what happens when a -- if a conflict of

19 interest may arise between yourself and the plaintiffs

20 in the litigation?


22 I advise you not to answer to the extent that

23 you might divulge attorney-client privileged

24 communication.

25 A. I'll take the advice of my attorney on that.




1 Q. Are you aware that in fact -- that there may

2 be a conflict that may arise in the course of the

3 proceedings when counsel represents two different

4 entities, in this case you and the plaintiffs in this

5 litigation?

6 MR. SMALL: Object to the form. I'm advising

7 my witness not to answer.

8 A. I take my attorney's advice on that.

9 MR. BLUME: And you're -- not to answer on

10 what grounds?

11 MR. SMALL: Because you're trying to get at

12 potentially privileged communications. You're asking

13 questions that are not proper.

14 Q. Without divulging anything that your attorney

15 may have told you at any point in time, in your own

16 mind, are you aware, have you thought about or

17 considered what may have happened if there's a conflict

18 that arises between you and -- and the plaintiffs in

19 this litigation?


21 Q. Have you signed any waiver of a conflict in

22 this case?

23 MR. SMALL: Again, objection to form.

24 Q. Have you --

25 MR. SMALL: And I advise my witness not to




1 answer. You're trying to get at what we did with --

2 with the client. That's clearly privileged.

3 MR. BLUME: No. It's clearly actually not

4 privileged. Whether he signed a waiver or not is not a

5 communication between counsel and a witness.

6 MR. SMALL: Really?

7 MR. BLUME: Really.

8 MR. SMALL: All right. Well, I'm going to

9 advise him not to answer.

10 MR. BLUME: On the grounds of -- of --

11 MR. SMALL: Privilege.

12 MR. BLUME: -- attorney-client communication?

13 MR. SMALL: Yes.

14 MR. BLUME: Very well.

15 Q. You received a subpoena in this case, sir?

16 A. I did.

17 Q. Okay. Did you have a chance to review it?

18 A. I reviewed it briefly, yes.

19 MR. BLUME: I'm going to mark -- what's our

20 numbering scheme?

21 Q. I'm going to hand you before we mark with the

22 understanding that eventually we will mark this in a

23 moment. We have -- as you can imagine, there are a

24 number of these --

25 A. Um-hum.




1 Q. -- depositions going on, and we're trying to

2 be somewhat organized in the way we --

3 MR. BLUME: I actually have one for you, too.

4 MR. DALEO: Thanks very much.

5 Q. -- way we number these. So with counsel's

6 permission, I'll ask you questions about it with the

7 understanding that we'll mark it in a moment.

8 Is this the subpoena you received in this

9 case?

10 A. This appears to be the document that I

11 received, yes.

12 Q. Okay. And it -- and it is a subpoena to

13 testify here today in -- in Burlington; is that

14 correct?

15 A. Yes, that's what it says.

16 Q. I want to -- I want to direct your attention

17 to Page 13 of the subpoena, the top of which says -- or

18 the third line down says "Documents to be Produced."

19 Do you see that?

20 A. Yes.

21 Q. Did you produce documents in response to this

22 subpoena?

23 A. Yes.

24 Q. Okay. And in fact, at some point during your

25 work here, you were instructed, were you not, by a




1 Chris Arthur from The Weinberg Group to keep track of

2 all the references that you relied upon in writing your

3 report; is that correct?



6 You can answer.

7 Q. And why don't -- just take a minute.

8 MR. BLUME: We'd label this as Exhibit 1100.

9 (Deposition Exhibit No. 1100 was

10 marked for identification.)

11 BY MR. BLUME:

12 Q. While working on this case, Mr. Allen, did you

13 have in place any protocols to ensure that documents

14 that might be discoverable or responsive to the

15 subpoena were properly maintained?

16 MR. SMALL: Objection to form. Are you asking

17 before he received the subpoena whether he had a

18 protocol to respond to the subpoena?

19 MR. BLUME: I haven't asked that yet.

20 MR. SMALL: That -- okay.

21 A. Define "protocol" for me in terms of what you

22 mean.

23 Q. Any system in place, any document retention

24 policy, any method of operations that you employed to

25 ensure that the documents that you relied upon or used




1 during the course of your work in this case were

2 maintained throughout your work in this case.


4 You can answer.

5 A. As I do with any case, I tend to set up

6 individual folders for the case. I tend to set up

7 within those folders things that relate to

8 administrative, things that relate to invoicing, and

9 things that relates -- relates to case documents, and I

10 maintain those folders as I go and conduct the work for

11 a case.

12 Q. And have all the documents that you -- that

13 were related to this case -- well, strike that.

14 Of all the documents that may have been

15 related to this case, how did you go about determining

16 which ones might have been responsive to this subpoena?

17 A. I basically produced the documents that I had

18 in my possession in response to the subpoena.

19 Q. Okay. When you say "basically produced," did

20 you --

21 A. I produced.

22 Q. Okay. What -- tell me what you did to search

23 for documents that were responsive to this subpoena.

24 What efforts did you take?

25 A. I briefly reviewed the subpoena, and then as I




1 indicated, I had these documents organized in various

2 folders, plus the communications out of my e-mail

3 system, and basically took those documents and produced

4 them for this proceeding.

5 Q. Okay. And that included a review of hard copy

6 paper files?

7 A. I had a few hard copy paper files that I also

8 produced in addition to the electronic.

9 Q. Okay. And the electronic files included --

10 leaving aside e-mails for a moment --

11 A. Um-hum.

12 Q. -- but electronic documents on your computer?

13 A. Yes.

14 Q. Okay. And as far as e-mails, that -- do you

15 maintain separate e-mail accounts for your work and

16 your personal?

17 A. Yes.

18 Q. And did you search both your personal and work

19 e-mail accounts to determine whether there were e-mails

20 or communications that were responsive to the subpoena?

21 A. Actually, let me restate that. I also set

22 up -- in addition to setting up folders in -- on my

23 computer for cases, I set up individual folders for

24 cases within my e-mail system. Any e-mail that was

25 generated as a result of this case went into that




1 folder. Those were produced.

2 Q. Okay. And did that include -- when you say

3 "e-mails generated," does that include both e-mails

4 received and e-mails that you sent?

5 A. Yes.

6 Q. During the course of your work on this case --

7 and let's put a -- a time frame on it. I believe you

8 were approached, and we'll get to this, approximately

9 August 21st. Does that sound about right?


11 You can answer.

12 Q. 2010?

13 A. That sounds about right, yes.

14 Q. If you give me a moment.

15 MR. BLUME: Let me mark what is an e-mail --

16 nope.

17 Let me mark as Chevron Exhibit 1101.



20 BY MR. BLUME:

21 Q. I've placed before you an e-mail dated August

22 21st, 2010, from you to a Ted Dunkelberger. Do you see

23 that?

24 A. Yes.

25 Q. And I -- we'll talk about it in a moment, but




1 I put it to you as perhaps a reference point. It says,

2 "Ted - it was a real pleasure talking with you earlier

3 about the subject matter. It sounds like an extremely

4 interesting and challenging assignment."

5 First off, who's Ted Dunkelberger?

6 A. Ted Dunkelberger is a project manager with The

7 Weinberg Group in Washington, D.C.

8 Q. Who -- what -- what or whom is The Weinberg

9 Group?

10 A. The Weinberg Group, as I understand them, is a

11 scientific advisory and consulting firm.

12 Q. Okay. And we'll come back to them in a

13 minute.

14 Was this e-mail in and around the time that

15 you were first approached to work on this matter?

16 A. Yes.

17 Q. Okay. Do you recall sitting here today that

18 you were approached by anyone about this case prior --

19 I'm sorry, before Saturday, August 21st?

20 A. Yes. This e-mail was generated as a result of

21 a referral from an individual that I know at another

22 D.C. firm to Ted Dunkelberger.

23 Q. Okay. And then is it fair to say Mr.

24 Dunkelberger then called you perhaps the morning of

25 August 21st?





2 Q. All right. And that -- okay. And did Mr.

3 Dunkelberger tell you about the referral, or you had

4 learned about it before Mr. Dunkelberger called?

5 A. I learned of the referral from -- from an

6 e-mail.

7 Q. And was this call with Mr. Dunkelberger on

8 August 21st the first time you had heard anything

9 substantive about what you might be asked to do in this

10 case?

11 A. Yes.

12 Q. Okay. So let's go back, then, about your

13 documents, and let's -- let's call August 21st as -- as

14 the beginning point.

15 MR. SMALL: Objection. But go ahead.

16 MR. BLUME: Objection to what?

17 MR. SMALL: Well, we don't know exactly when

18 the beginning point was. It was at or around that

19 time.

20 MR. BLUME: Well, I said let's call August --

21 MR. SMALL: Okay.

22 MR. BLUME: -- 21st as the beginning point.

23 Q. From August 21st going forward until today,

24 with regard to hard copy or electronic files, have you

25 thrown anything away, deleted anything, or destroyed




1 any materials that relate to the subject matter of this

2 litigation?

3 A. I don't typically keep drafts of my reports.

4 I tend to overwrite them, so those would probably be

5 the documents that got deleted.

6 Q. Okay. Is it possible any e-mails that you

7 received from anyone about the subject matter of this

8 litigation got deleted or destroyed between today and

9 August 21st?

10 A. That's probably not possible because I don't

11 delete e-mails at all.

12 Q. Okay. Did you at any point during -- well,

13 let me ask you this.

14 A. Um-hum.

15 Q. At some point during the time of your

16 engagement -- and when I say "the time of your

17 engagement," just for our understanding, I'll begin it

18 at August 21st. Is that fair?

19 A. That's fair.

20 Q. Okay. During the time of your engagement, did

21 you send away any documents upon which you may have

22 relied without keeping a copy?

23 A. There may have been one draft of my report

24 that I sent to my team, which was an internal document,

25 that I did not keep that draft copy on my machine.




1 Q. Okay. And let's -- let's talk about your team

2 for a quick minute. When you refer to your "team," to

3 whom are you referring?

4 A. I'm referring to three principaled individuals

5 from another firm that I affiliate with on matters of

6 this nature who helped me in preparing my valuation.

7 Q. Who are they?

8 A. The first individual's name is Christopher

9 Crandell, C-R-A-N-D-A-L-L. Christopher is the

10 president of a small environmental science and

11 consulting firm called The Johnson Company,

12 J-O-H-N-S-O-N, in Montpelier, Vermont.

13 Q. Okay.

14 A. The second individual was Joel Behrsing,

15 B-E-R-H-S-I-N-G. Joel is a senior engineer with The

16 Johnson Company. The third principaled individual was

17 Patrick Smart, S-M-A-R-T. He's a remediation engineer

18 with The Johnson company. In addition to that, I

19 utilized clerical resources of The Johnson Company, and

20 there were one or two other associate-level individuals

21 who did some specific tasks that they were assigned.

22 Q. Before this engagement, had you worked with

23 the members of The Johnson Company?

24 A. Yes.

25 Q. Okay. Had you worked with members of The




1 Johnson Company on any environmental remediation

2 efforts relating to the oil production industry?

3 A. Not to the oil production industry per se;

4 however, we have collaborated on cases that have

5 involved petroleum hydrocarbon contamination,

6 specifically cases involving former manufactured gas

7 plant sites.

8 Q. Okay. Have you collaborated with The Johnson

9 Company on any cases involving crude oil?

10 A. Well, I would argue that the petroleum

11 hydrocarbon fraction in coal tar and coal gases is a

12 fraction of crude oil, but crude oil in the context of

13 oil exploration and discovery, no.

14 Q. What efforts did you take to ensure that

15 members of The Johnson Company retained documents that

16 were related to your engagement in this matter?


18 A. The Johnson Company has their own procedures

19 and protocols for maintaining documents, and I did not

20 instruct them to delete any documents.

21 Q. Did you affirmatively instruct them to retain

22 documents?

23 A. I did not.

24 Q. Did you seek to collect documents from The

25 Johnson Company upon which they relied in assisting you




1 in response to the subpoena that's labeled Chevron

2 Exhibit 1100?


4 A. The documents that I produced included

5 documents that they had provided to me that were

6 developed for the purposes of my valuation.

7 Q. Okay. Do you know whether they relied upon

8 documents that they did not provide to you?

9 A. I do not know that for sure.

10 Q. Okay. During the course of your engagement,

11 did you at any time discuss a document with them that

12 was not provided to you?

13 A. I know that there are spreadsheet -- versions

14 of the spreadsheets that I provided to you that they

15 have.

16 Q. Different versions?

17 A. Different versions. Versions that were

18 created internally and was part of the iterative

19 process that we went through in preparing my valuation.

20 Q. And those are versions of the spreadsheet that

21 you have not produced in response to the subpoena; is

22 that correct?


24 Q. Okay.

25 A. I never received copies of those.




1 Q. Was The Johnson Company, were they considered

2 a contractor of you?


4 Q. Subcontractor, contractor?


6 A. I considered them a sub to me.

7 Q. A subcontractor?

8 But they certainly assisted you; is that

9 correct?

10 A. That's --


12 You can answer.


14 Q. Let me -- let me turn your attention to Page

15 11 of Exhibit 1100.

16 A. 1100.

17 Q. The first -- the subpoena, sir.

18 A. Okay. And page?

19 Q. Page 11.

20 A. Okay.

21 Q. Paragraph 45.

22 A. Okay.

23 Q. It's under the "Definitions" section of the

24 attachment to the subpoena, which reads, The phrase

25 "YOU" or YOUR" --




1 A. Um-hum.

2 Q. -- shall mean and includes yourself and all

3 persons acting in your interest or on your instructions

4 or assisting you, without limitation Douglas C. Allen,

5 P.A., your agents, servants, representatives, including

6 attorneys, accountants, investigators, advisers,

7 environmental consultants, contractors, and medical

8 consultants.

9 Do you see that?

10 A. I do.

11 Q. Throughout the reference of responding to the

12 subpoena, sir, every time you were instructed to

13 produce documents; that is, the subpoena requested

14 documents to be provided by "YOU," did you consider and

15 collect documents from Johnson Company in response to

16 the instructions on Paragraph 45?

17 MR. SMALL: Hold -- I just want to object and

18 make one thing clear that the Court in this case

19 ordered that the new version of Rule 26 applied, which

20 includes that we don't have to produce any drafts, and

21 although we have produced drafts from Doug Allen, I

22 just want to indicate that we don't necessarily agree

23 that these are documents that are -- that need to be

24 produced.

25 Q. You may answer my question. Would you like me




1 to read it -- read it back to you?

2 A. Please.

3 Q. In responding to the subpoena, when you were

4 instructed to produce documents; that is, when the

5 subpoena -- and I'll paraphrase. When the subpoena

6 instructed "YOU" to collect and produce documents, did

7 you consider that instruction as applying not only to

8 you in your personal capacity but also to The Johnson

9 Company?

10 A. I did not. What I did was submitted documents

11 that I had in my possession, which included the

12 documents that they had provided to me to support my

13 valuation.

14 Q. Okay. And so you made no efforts to -- in

15 responding to the subpoena, you made no efforts to

16 collect the same type of materials as you may have

17 provided from anyone at The Johnson Company; is that

18 correct?

19 MR. SMALL: Objection to the form.


21 Q. Okay.

22 MR. BLUME: We formally request that in

23 compliance with the subpoena, that all documents

24 related to all members of The Johnson Company,

25 specifically those mentioned by Mr. Allen to include




1 but not to be limited to Mr. Crandell, Mr. Behrsing,

2 Ms. Smart, and anyone else be produced forthwith

3 consistent with the request in the subpoena.

4 MR. SMALL: I'd just ask that you put it in

5 writing and we'll take it under consideration.

6 MR. BLUME: I'll do so.

7 A. Correction. For the record, Patrick Smart is

8 a male.

9 Q. I'm sorry.

10 A. That's okay. I didn't identify him as such.

11 Q. I wrote that down wrong. Mr. Smart.

12 Did anyone help you collect your own -- the

13 documents you did collect and produce, did anyone

14 assist you in doing that?

15 A. No.

16 Q. Did anyone help you decide what documents

17 should be collected and produced?

18 A. No.

19 Q. To whom did you produce these documents?

20 A. I produced these documents to counsel.

21 Q. By "counsel," you mean Mr. Small specifically?

22 A. Mr. Small.

23 Q. Okay. And did those documents include note --

24 I'm sorry, phone records and calendar -- calendars?

25 A. No. I don't keep phone records or calendars




1 other than an Outlook entry, but there weren't any of

2 those for this.

3 Q. Okay. During the course of your engagement,

4 did you access any documents on The Weinberg Group's

5 website?

6 A. Yes, I did.

7 Q. And did you access documents on any other

8 shared site?

9 A. Not --

10 Q. FT- -- I'm sorry to interrupt. FTP site or

11 website or anything of that nature?

12 A. Well, I accessed documents from USEPA CERCLA

13 Superfund databases and other technology databases,

14 yes.

15 Q. Did you reference those in your bibliography

16 specifically?

17 A. Yes.

18 Q. Okay.

19 A. And they were provided.

20 Q. The documents upon which you relied from the

21 Weinberg Group website, how did you assure yourself

22 that those documents would be produced in this

23 litigation?


25 You can answer.




1 A. Those documents that I found to be useful to

2 me I downloaded, and they were subsequently produced.

3 Q. Okay. So is it fair to say that any document

4 that you may have seen on the Weinberg Group website

5 that was not downloaded and produced you did not find

6 useful or consider in rendering your opinion?

7 A. It would be fair to say that.

8 Q. Okay. Did anyone during the course -- and --

9 well, I'll ask it this way: Did anyone in the course

10 of your engagement ever instruct you to destroy any

11 documents or delete any materials?

12 A. No.

13 Q. Other than discussions with Mr. Small and your

14 lawyer, did you have any discussions with anyone else

15 about collecting documents or producing documents in

16 this litigation?

17 A. No. Correction. In addition to the gentlemen

18 seated with me, I talked to a couple of their

19 colleagues about document production, but that was --

20 Q. By "their colleagues," you mean lawyers from

21 Patton Boggs?

22 A. Yes. And their staff, IT staff.

23 Q. Sure. Okay. Did anyone at any point in time

24 instruct you not to produce any documents?

25 A. No.




1 Q. To your knowledge, have all the documents that

2 you provided to counsel been turned over in this

3 litigation?

4 A. To my knowledge, yes. I have no reason to

5 believe otherwise.

6 Q. Okay. Some of the documents that we

7 originally received, Mr. Allen, were redacted. Do you

8 know what that means?

9 A. Yes.

10 Q. Were you aware of that?

11 A. No, I wasn't.

12 Q. Okay. Did you participate in the redaction

13 process at all?

14 A. No, I didn't.

15 Q. Okay. Let me show you what I will mark as

16 Chevron Exhibit 1102.

17 MR. SMALL: Just so I'm clear on the

18 numbering, this is just a continuation of the other

19 1782s?

20 MS. GRAY: Sort of.

21 MR. BLUME: Yeah. We can do this off the

22 record.



25 / / /




1 BY MR. BLUME:

2 Q. Mr. Allen, I've placed before you what is

3 marked as Chevron Exhibit 1102, which purports to be --

4 or which was a résumé or a description of your

5 experience pulled down from your website; is that

6 correct?


8 Q. And does this -- is it fair to call this a

9 résumé, sir?

10 A. Yes, it is.

11 Q. Okay. Does this résumé accurately set forth

12 your experience -- or your -- let me put it this way,

13 your -- well, tell me what this purports to tell me.

14 A. Well, you're correct. I believe this résumé

15 does put forth my background and experience.

16 Q. Okay. On the last page of this document

17 are -- is a segment called "Education &

18 Certifications."

19 A. Um-hum.

20 Q. Does that fairly represent your -- your

21 education?

22 A. It fairly represents my education in terms of

23 degrees and in terms of my registration. One item

24 that's missing here that I didn't think was relevant to

25 this work is I'm also a registered U.S. patent agent.




1 Q. Okay. Are you -- are you a licensed engineer?

2 A. I am. That's what the designation "registered

3 professional engineer" means.

4 Q. Yes, it does. In Massachusetts and Vermont?


6 Q. And does this résumé accurately represent your

7 previous employment at all or in any way demonstrate to

8 us your previous employment?

9 A. It does.

10 Q. And that would be in the "Positions Held"

11 area?


13 Q. So ABB Environmental from '83 to '94 and then

14 your own firm from '94 to present?

15 A. That's correct. With the caveat that the

16 period through 1983 to 1994 was actually spent

17 beginning with a small firm called E.C. Jordan, who was

18 acquired by Combustion Engineering. We became CE

19 Environmental, who in turn was acquired by Asea Brown

20 Boveri and hence ABB Environmental Services.

21 Q. You recently changed the name of your company

22 to the Theseus Consulting, Inc.?


24 Q. More out of curiosity, what -- does that have

25 a meaning?




1 A. Yes, it does. Greek mythology. Theseus was

2 the individual who navigated the maze or labyrinth on

3 the island of Crete on his mission to sleigh the

4 Minotaur. The tie-in there is navigating a maze, which

5 ties into my logo.

6 Q. So it's more the navigating than the slaying

7 part, I guess.

8 A. Yes.

9 Q. Okay. Have you -- have you ever worked in the

10 petroleum industry or did oil field-related work at all

11 before this engagement?


13 Q. In your -- in any of your previous work, have

14 you ever professionally opposed the interests of an oil

15 company or an oil company's insurer in any kind of

16 judicial proceeding, arbitration, mediation, insurance

17 claim, the like?

18 A. Yes. In a number of insurance claims that I

19 have done over the years, I have been involved

20 representing or working for the insurance company who

21 has been evaluating the claims presented to them by

22 petroleum companies.

23 Q. Okay. Have you ever done work for Texaco or

24 Chevron in your -- on behalf of Texaco or Chevron in

25 that capacity?




1 A. No.

2 Q. Have you ever done work in that capacity on

3 behalf of any state-run oil or gas company anywhere in

4 the world?

5 A. No.

6 Q. Does Theseus Consulting, formerly Douglas C.

7 Allen, P.A., employ anyone other than yourself?

8 A. No, they do not.

9 Q. In the course of your career, I've noticed

10 from your website that you've written a number of -- of

11 articles; is that correct?


13 Q. Three in particular I found interesting. Let

14 me hand them to you so we know what we're talking

15 about. And we'll label these sequentially, the

16 first your article entitled "Environmental Liabilities

17 Present High Risks and Management Challenges in

18 Business Operations & Transactions."



21 MR. BLUME: 1104 will be an article entitled

22 "Environmental Due Diligence in Mergers & Acquisitions:

23 Ten Common Mistakes to Avoid."






1 MR. BLUME: And finally 1105 is an article

2 entitled "Cost Allocations - Apportioning Environmental

3 Response Costs Among Multiple Parties for the Cleanup

4 of Contaminated Property."



7 BY MR. BLUME:

8 Q. Turning first to 1103, the article on

9 environmental liabilities, you mentioned in the article

10 that there are some key characteristics to

11 environmental liabilities that create risk, and you

12 list those in the first paragraph. The basis of that,

13 I assume, comes from your experience in doing this kind

14 of work; is that correct?


16 You can answer.

17 A. That would be fair to say.

18 Q. I -- just -- and I note that only because

19 there's -- it's not cited, those four key

20 characteristics, and so I was just curious from where

21 they came.

22 A. Is that a question?

23 Q. It's a poor -- poorly phrased one, but yes.

24 From where did these key characteristics come?

25 A. These were key characteristics that I




1 identified for the purposes of this article.

2 Q. Okay. And in -- in the second paragraph, you

3 talk about environmental liabilities. In the last

4 sentence of that paragraph you say, This may have

5 occurred -- environmental liabilities may have occurred

6 either during the ownership of former or currently

7 operating facilities or through shared responsibility

8 with other responsible parties at common waste disposal

9 and recycling sites.

10 What does that mean?


12 You can answer.

13 A. Well, this is what I would term to be a high-

14 level statement and a general article on environmental

15 liabilities, not any definition that would bear legal

16 scrutiny or anything. It's just simply saying, Look,

17 there are different ways to incur a liability. You

18 could be the owner or lessee of former property or you

19 could be hooked into the environmental liability

20 through having transported your waste as a third party

21 to a waste disposal site.

22 Q. I see. And then when you go on to say in the

23 first sentence of the next paragraph, "Current improper

24 operational activities can create new environmental

25 problems," what's -- what's the tie-in to that?





2 A. Well, if you're not operating a facility

3 appropriately under the applicable environmental

4 requirements, such as state statutes or RCRA or things

5 of that nature, then you can potentially create new

6 environmental problems for yourself moving forward into

7 the future. The point being that environmental

8 problems can exist in the past, the present, and they

9 can be created in the future.

10 Q. And so I guess assessing environmental

11 liabilities, the point being you need to consider not

12 only what happened in the past but perhaps often what's

13 happening in the present; is that true?

14 A. You may need to consider that, yes.

15 Q. Let me -- let me turn to Exhibit 1104 when you

16 talk about environmental due diligence in M&A

17 transactions. Have you been involved in conducting due

18 diligence in the course of a merger and acquisition?

19 A. I have.

20 Q. Okay. And -- and you go through a series of

21 suggestions on how to conduct due diligence. The first

22 one, reliance on reps -- representations and

23 warranties, you say in the middle there,

24 "Representations and warranties made by a seller should

25 never be relied on by a buyer in lieu of even cursory




1 due diligence."

2 Describe what you mean by that.


4 You can answer.

5 A. Well, I'm not an attorney. And so I'm not

6 offering legal advice, but my understanding is that --

7 it is my belief that representations and warranties in

8 the absence of due diligence is not advisable, that at

9 least some due diligence should be done.

10 Q. Is that -- is -- does it suggest that as a

11 buyer you need to have a certain amount of skepticism

12 in the information that comes to you from the seller?

13 Is that fair?


15 A. I would believe that as a buyer, you would

16 want to not necessarily look at the information and

17 accept it without doing at least a cursory look at the

18 validity of that information.

19 Q. Okay. And you actually -- if you turn the

20 page to Page 2 of the article, Number 9, you kind of --

21 you make -- you make the point in a slightly different

22 way when you say, "Buyers should not accept at face

23 value any information provided by a seller's

24 representatives particularly if those representatives

25 have limited knowledge and experience with the seller's




1 environmental issues and liabilities"; is that right?

2 A. That's what it says.

3 Q. And do you believe that?


5 You can answer.

6 A. In general, yes.

7 Q. Why -- why the qualifier?

8 A. Well, the qualifier being that, I mean, this

9 was, again, a generic article written from the

10 perspective of many different situations that one might

11 encounter when doing due diligence not just for mergers

12 and acquisitions but due diligence for any

13 environmental matter. So there are going to be

14 complexities and there are going to be differences that

15 you're going to have to factor in as you go along.

16 This is not meant to be a hard and fast road map or

17 checklist, even, for any one particular environmental

18 due diligence matter.

19 Q. In the course of your experience doing due

20 diligence in M&A transactions, have you ever had an

21 occasion where you simply accepted at face value the

22 representations of the seller without conducting some

23 additional diligence on your own?


25 A. There have been situations not across the




1 board but for, say, specific sites or specific groups

2 of sites where, because of the lack of information, I

3 had to accept what the seller was provided. In those

4 cases I had to factor in and make my client aware that

5 there were certain uncertainties and limitations

6 surrounding that information.

7 Q. I see. So it wasn't -- so those were

8 situations where there was simply a lack of -- a lack

9 of information and so you had really no other choice;

10 is that -- is that fair?



13 Just give me a second to object.

14 THE WITNESS: Sorry.

15 MR. SMALL: That's okay.


17 Q. Okay. Turning back to Paragraph 4, I think

18 you make another interesting point, actually, which is,

19 "Changes in site or operational conditions,

20 environmental legislation and regulatory agency

21 involvement, and other unforeseen circumstances, may

22 make older audit or assessment information obsolete or

23 inaccurate."

24 What's -- what is the point you're trying to

25 get across in that paragraph?





2 You can answer.

3 A. Well, I think this relates more specifically

4 to what's called Phase I environmental assessments or

5 even Phase IIs that are done during commercial real

6 estate property transfer. There's -- the conventional

7 wisdom is, and in fact I believe it's stated in a

8 standard, that if there's stuff that you have available

9 for property transfers, I'm talking Phase I's and Phase

10 II information, that is more than six months old, then

11 you really should be thinking about updating that

12 information.

13 Q. And why is that? What's the point of that?

14 A. Well, conditions can change or perhaps the

15 Phase I/Phase II were done under another set of

16 standards or perhaps they present done competently. I

17 mean, there's a whole host of reasons.

18 Q. And so I guess the point is, to avoid simply

19 accepting those issues, changed conditions or changed

20 standards, you need to -- you need to examine current

21 conditions to update, basically, the situation; is

22 that -- is that true?

23 MR. SMALL: Objection to form. You were

24 talking about something very specific and now you're

25 talking about something very general. But you can




1 answer.

2 A. Could you repeat that, please?

3 Q. Sure. You mentioned that conditions can

4 change and perhaps the -- that Phase I or Phase II were

5 done under another set of standards or perhaps not done

6 competently, so I guess the point of updating is to

7 make sure that you don't rely upon facts that no longer

8 apply; is that --


10 Q. -- a fair assessment?


12 A. In general, yes, but it's a -- it's a -- it

13 depends upon the specifics of the matter that you're

14 dealing with, the amount of information that you have

15 available to begin with. The only thing you have is a

16 Phase I, and that's the only piece of information that

17 you've got and it's six months old, that's different

18 than if you have a number of sources of information and

19 data, which you may or may not consider needs to be

20 updated. So it's not a cut and dried answer.

21 Q. As a general rule of thumb -- and in fact, I'm

22 using your language in this paragraph. As a general

23 rule of thumb, any audit or assessment over six months

24 should be updated. Is that the -- is that the standard

25 generally under which you operate in doing your work?





2 A. No. Again, this refers to Phase 1/Phase II

3 property transfers where that six-month rule is

4 typically evoked.

5 Q. Are there other situations in diligence where

6 you would ignore that and never update information?


8 A. There certainly would be.

9 Q. Any that you can name off the top of your

10 head?


12 A. Certainly some of the information that I have

13 done fairly recently in dealing with environmental

14 valuations for multiple sites for a bankrupt chemical

15 company and to a certain degree the information that I

16 used and relied upon here in this case.

17 Q. You felt it unnecessary to update the

18 information --


20 Q. -- in those -- in those situations?

21 MR. SMALL: You're mischaracterizing his

22 testimony.

23 A. I didn't say it was unnecessary to update the

24 information. I said that I looked at the volume or the

25 body of information that I had and felt comfortable




1 using that information.

2 Q. And -- okay. And we'll get to that. I guess

3 I'm just -- so that -- a situation like the bankruptcy

4 and -- and others would go against the general rule

5 that you -- that you talk about in Paragraph 4 of this

6 article?

7 MR. SMALL: Objection to the form. He didn't

8 say it was a general rule.

9 But go ahead. You can answer.

10 A. It could.

11 Q. I'm sorry. And the "general rule" language

12 came from the article. Let me quote it. It says, As a

13 general rule of thumb, any audit or assessment, any

14 audit or assessment, over six months old should be

15 updated.

16 So the experience that you're talking about

17 would go against that general rule of thumb; is that

18 fair?

19 MR. SMALL: Objection to the form. You are

20 mischaracterizing this document, which talks about

21 environmental due diligence in mergers and

22 acquisitions, and you're trying to make a very general

23 statement.

24 You can answer.

25 A. Could you repeat that, please.




1 Q. Sure. You mentioned the general rule of thumb

2 that any audit or assessment over six months old should

3 be updated. Is it fair to say that the experiences

4 that you talked about recently go against that general

5 rule of thumb?


7 MR. BLUME: I can keep asking the same

8 question; you can keep objecting.

9 MR. SMALL: Yeah. That's --

10 MR. BLUME: But it's the same question and

11 it's the same objection, and we'll just sit here all

12 day.

13 MR. SMALL: Yeah. And he answered it.

14 Q. Go ahead.

15 A. Yes, there are -- there are certainly

16 exceptions.

17 Q. Okay. Number 8 on Page 2 of this article

18 talks about acceptance of unreasonable or inappropriate

19 estimates of liability. And the last sentence says,

20 The buyer should derive independent estimates of

21 liability based on current regulatory cleanup

22 standards, best standards of practice, and consistent

23 with future intended use of the asset.

24 Is that -- is that a rule that's limited only

25 to due diligence in M&A?





2 Q. Or does that have a broader context?

3 MR. SMALL: Objection to "rule." And why

4 don't you read the whole statement instead of just

5 pulling out a piece of it?

6 MR. BLUME: Actually, I'm just interested in

7 that sentence.

8 Q. Does that have a general applicability or only

9 to M&A transactions?

10 MR. SMALL: Does what have -- what rule? Are

11 you talking about Number 8 or just a piece of Number 8?

12 MR. BLUME: We can start over.

13 Q. The sentence I read, The buyer should derive

14 independent liability -- independent estimates of

15 liability based on current regulatory cleanup

16 standards, best standards of practice, and consistent

17 with the future intended use of the asset.

18 Is that a rule specific to due diligence in

19 M&A transactions, or does that have a broader -- does

20 that apply more broadly?


22 You can answer.

23 A. As it is written here, the preceding sentence

24 says, Buyers should be wary of a seller's attempt to

25 "low ball" a liability estimate in order to minimize




1 the potential liability to the buyer.

2 So it just is in the context of a merger.

3 (Interruption by the reporter.)

4 BY MR. BLUME:

5 Q. When you're reading, we tend to speak faster

6 when we read, and so if you read slower, the reporter

7 won't jump out the window.

8 A. No problem. This sentence here is really in

9 the context -- put into it in the first sentence, which

10 states, Buyers should be wary of a seller's attempts to

11 "low ball" the liability estimate in order to minimize

12 the potential liability to the buyer.

13 In that sense this is in reference to a merger

14 and acquisition where a property is being bought and

15 sold.

16 Q. Okay. As a general rule, outside the M&A

17 context, in your experience, is it best practice to

18 consider current regulatory cleanup standards --


20 Q. -- when doing due diligence of an

21 environmental liability?


23 You can answer.

24 A. Certainly current regulatory environmental

25 standards are considered during an environmental due




1 diligence.

2 Q. And what about best standards of practice?

3 Are they considered when doing an environmental due

4 diligence?

5 A. Yes.

6 Q. And what about activities consistent or -- or

7 insights consistent with the future intended use of the

8 asset? Are those considered in general environmental

9 liability due diligence?


11 You can answer.

12 A. That is one among a number of factors that get

13 considered, yes.

14 Q. Okay. And then finally Exhibit 1105 talks

15 about cost allocation and apportioning response costs.

16 And you set forth, my characterization, a comprehensive

17 overview of cost allocation. And on Page 2, the third

18 paragraph, you actually divide it into three phases:

19 One, scoping and initiation; two, information

20 collection and database development; and three,

21 preliminary and final allocations. Is that right?

22 A. That's correct. That's what it says.

23 Q. Okay. Have you ever been involved -- you

24 mentioned later on in the page that cost allocations

25 may take as little as one to two months; more complex




1 may take 12 to 18.

2 Have you been involved in a cost allocation in

3 the course of your career?

4 A. I have.

5 Q. And what's the shortest amount of time you've

6 been able to conduct the steps that you set forth in

7 this article?

8 A. Well, that question is -- I need to qualify

9 that, because not every cost allocation necessarily

10 goes through this entire process. This is a generic

11 process that's developed here. Depending upon the

12 needs of the parties, depending upon the objective and

13 the scope and the information and the time frame and

14 everything else, this process may be truncated. They

15 may start at it at certain points. So to say that an

16 allocation goes through this process each and every

17 time is not accurate.

18 Q. Okay. Have you ever gone through this entire

19 process in your career?

20 A. Yes.

21 Q. And how long did -- did that experience take?

22 A. I'm trying to think of one particular case.

23 It was probably a six- to eight-month, maybe ten-month

24 effort.

25 Q. Okay. Did you undertake these steps, these --




1 efforts to allocate costs, in this engagement?


3 A. No, I did not.

4 THE WITNESS: I'm sorry.

5 Q. I'm sorry.


7 A. No, I did not.

8 Q. Okay. So there's no part of your engagement

9 in which you are opining on how remediation costs in

10 the Oriente in the concession area specifically should

11 be allocated between or among parties; is that correct?


13 You can answer.


15 Could we take a quick break?

16 Q. We certainly may.

17 THE VIDEOGRAPHER: The time on the monitor is

18 10:25, and we are going off the record.

19 (A short break was taken.)


21 10:32, and we are back on the record with Douglas

22 Allen.

23 BY MR. BLUME:

24 Q. Mr. Allen, you mentioned that you had been

25 involved in manufactured gas sites earlier?




1 A. Yes.

2 Q. Were those coal sites or oil based?

3 A. Both, actually.

4 Q. Both at a single site or different

5 experiences?

6 A. Different -- different experiences.

7 Q. Okay. So you've had experience on -- well,

8 describe your experiences.

9 A. Yup. These have been involved primarily with

10 utilities and their claims brought to their insurance

11 companies, utilities who either acquired through

12 acquisition or ended up owning properties that were

13 formerly occupied by manufactured gas plant sites; and

14 typically the contamination that was present at those

15 sites were the petroleum hydrocarbons present during

16 the coal gasification or the oil gasification process.

17 Q. Okay. Do you have -- do you have any

18 experience remediating crude oil-contaminated sites?


20 A. Not crude oil but oils associated with motor

21 pools, oil and grease that were used in those

22 situations at automobile maintenance facilities, yes.

23 Q. More refined petroleums?

24 A. More refined petroleum products.

25 Q. Any experience assessing costs -- before this,




1 any experience assessing costs to remediate oil pits in

2 an oil facility?

3 MR. SMALL: Objection to form. In an oil --

4 A. I don't believe so, but there were some cases

5 that I was involved with where there were oil pits

6 associated with natural gas pipelines where at various

7 points along the pipeline they had compressor stations

8 to pump the gas. The oils from those compressors were

9 dumped typically into pits or into drainage channels,

10 and we looked at the remediation of those.

11 Q. And in looking at the remediation of those,

12 did you have -- did you have experience in assessing

13 costs to remediate those?

14 A. Yes.

15 Q. Did you have any experience -- well, let me

16 ask you this on that: Where was that?

17 A. Where was that?

18 Q. Where.

19 A. There were a couple of cases. There was one

20 involving what was then known as the Texas Eastern Gas

21 Pipeline. It was a thousand-mile-long pipeline that

22 ran through multiple states. And there was another

23 insurance case from another petroleum company that

24 operated a gas pipeline with multiple compressor

25 stations located across a number of states.




1 Q. And the compressor oils, did they -- did those

2 compressor oils contain PCBs?

3 A. In -- in a number of cases, those -- those did

4 contain PCBs in the oils, yes.

5 Q. You said a number of cases. How many of those

6 cases?

7 A. I couldn't recall as I sit here today.

8 Q. And what was your role exactly in -- in those

9 activities?

10 A. I was asked to evaluate the claims that were

11 being presented by the owners of those facilities to

12 their insurance companies for the cost to clean up

13 those petroleum sites, those contaminated sites.

14 Q. As a general rule, is it fair to say that PCBs

15 are typically more toxic than straight crude?


17 A. I would --

18 Q. Or TP- --

19 A. I'm sorry.

20 Q. Go ahead. I'm sorry.

21 A. I wouldn't necessarily make that statement,

22 no.

23 Q. More expensive to remediate?


25 A. It depends upon the circumstances that you're




1 finding the PCBs and where they are and what needs to

2 be done for remediation. I don't think I'd necessarily

3 say that, either.

4 Q. What types of circumstances would make the

5 remediation of PCBs less expensive to remediate than

6 the TPHs associated with crude?


8 A. I'm not sure I could answer that sitting here

9 today. I'd have to think about particular cases that

10 I've worked upon -- I've worked on over the past that

11 involve PCBs and petroleum hydrocarbons and -- and -- I

12 just don't have a sense as I sit here today. I can't

13 tell you that right now.

14 Q. And in what context would PCBs be less toxic

15 than the TPHs associated with crude?


17 A. I don't really know in what situations they'd

18 be less toxic or more toxic as a general rule.

19 Q. Describe your experience assessing costs to

20 remediate groundwater from contamination allegedly

21 caused by oil from oil exploration or production sites.


23 A. I have looked at the cost to remediate

24 groundwater from oil refineries that had as part of

25 their facilities bulk storage of crude oil that was




1 being refined there.

2 Q. When -- when was that and where was that?

3 A. Well, one case involved one facility that was

4 referenced in the -- my bio in the bankruptcy case of

5 the chemical company, there was a refinery that this

6 company was involved with. There was another refinery

7 that I visited in Tennessee back during the time I was

8 doing work for the insurance companies. There was a

9 third refinery that I visited in one of the Caribbean

10 islands. I can't remember which one it was now. But

11 they also had bulk crude oil storage facilities, and

12 there were problems associated with those facilities

13 and the need to look at groundwater remediation.

14 Q. And what was your role in that -- in that

15 experience -- in those experiences?

16 A. In -- in those experiences of the refineries,

17 I was looking at the costs that had been proposed by

18 the owners of those facilities and looking at the

19 reasonableness and appropriateness of those costs as

20 they were making claims to insurers.

21 Q. What standards did you use to assess the

22 reasonableness of the costs associated with the

23 remediation of the groundwater in that instance?


25 A. Well, standards in my opinion would be best




1 professional practice in terms of looking at -- and

2 again, it would depend upon the particular situation.

3 Q. In the two situations that you --

4 A. Sorry?

5 Q. In your two situations.

6 A. I can't recall the details of those. Those

7 were a number of years ago. But in general you would

8 look at the nature and extent of the contamination, the

9 degree to which it's migrated and what are the best

10 treatment technologies for remediating it.

11 Q. Do you recall sitting here today what fraction

12 of the -- of the oil refinery cost was based on crude

13 oil?

14 A. I have no --


16 You can answer.

17 A. No, I don't recall sitting here today.

18 Q. Do you recall the name of the crude -- of the

19 oil-based manufacturing site that you worked on?

20 A. No, I do not.

21 Q. Do you have any experience assessing costs to

22 remediate sediments in rivers, marshes, or streams

23 allegedly caused by oil from oil exploration or

24 production?

25 A. I have had experience in remediating sediments




1 that contained petroleum hydrocarbon, but not with

2 respect to oil exploration and production.

3 Q. In any of your experience that you've just

4 described, have you gone back and followed up to verify

5 the accuracy of your estimates?


7 Q. To prepare for today's deposition, with whom

8 did you meet?

9 A. I met with counsel, Adlai and Eric.

10 Q. Okay. And for how long did you meet?

11 A. Five or six hours.

12 Q. When was that meeting?

13 A. Yesterday.

14 Q. Before yesterday, had you done anything to

15 prepare for the deposition today?

16 A. Yes.

17 Q. What did you do?

18 A. I read through my report and looked at some of

19 the documents that I had cited.

20 Q. Did you look through all the documents you

21 cited, or just some?

22 A. Just some of them.

23 Q. Which ones in particular?

24 A. I don't really have a strong recollection of

25 looking at any one particular document. I may have




1 looked at a couple. I know I looked at a couple of the

2 reports generated by the Chevron consultants. I looked

3 at a couple of EPA documents that I had used.

4 Q. When you say "reports generated by Chevron

5 consultants," which reports specifically are you

6 referring to?

7 A. Actually, they were generated by at the time

8 Texaco's consultants. They would have been the HBT

9 Agra report and the Fugro-McClelland report and the

10 Woodward-Clyde report.

11 Q. You're not referring to any -- any consultants

12 from 2009-2010 period?

13 A. No.

14 Q. Okay. Other than your attorneys, was there

15 anyone else present at your meeting to prepare for your

16 deposition?

17 A. No.

18 Q. Anyone from The Weinberg Group?

19 A. No.

20 Q. From The Johnson Company?

21 A. No.

22 Q. Any other lawyers besides lawyers from Patton

23 Boggs?

24 A. No.

25 Q. Did you -- other -- without revealing to me




1 what your lawyers told you, did you have any discussion

2 with anyone else about how to testify or what to say or

3 anything like that during your deposition?

4 A. For this case?

5 Q. Yes.

6 A. No.

7 Q. Okay. Did anyone at any point in time tell

8 you that there were things you could not say during

9 your deposition?

10 A. No.


12 You can answer.


14 MR. SMALL: It's okay.

15 Q. We looked at an e-mail from August 21st, and

16 you mentioned that you had received a call from a

17 colleague in Washington, D.C., telling you that he had

18 referred your name --

19 A. Um-hum.

20 Q. -- is that fair?

21 A. It was an e-mail.

22 Q. I'm sorry. An e-mail.

23 A. Um-hum.

24 Q. Before -- and that was in and around the

25 August 21st time frame?




1 A. Yes.

2 Q. Before that, when was the first time you heard

3 about the Lago Agrio litigation?

4 A. I hadn't heard about it until that -- that

5 time.

6 Q. Okay. So you hadn't read or seen any news

7 stories about it at all?

8 A. No, I had not.

9 Q. Okay. And this call with -- well, who --

10 who -- from whom did you get that referral in D.C.?

11 A. It was from a gentleman by the name of Tom

12 Vasquez, V-A-S-Q-U-E-Z.

13 Q. Who is Mr. Vasquez?

14 A. Mr. Vasquez is a principal in the firm of

15 ARPC. They are a financial consultant and

16 manufacturing firm in D.C.

17 Q. After making that referral, did Mr. Vasquez,

18 was he involved in any way in your engagement?

19 A. No.

20 Q. Okay. So he's just a professional colleague

21 or friend?

22 A. Yes.

23 Q. Do you know how -- did he tell you how he came

24 to learn of this particular engagement?

25 A. No. I literally received an e-mail from him




1 the prior evening as he was traveling, and that's the

2 last I heard. I haven't talked to him since.

3 Q. Okay. Looking back to the e-mail from August

4 21, and I believe it's Number 1100?

5 A. 01.

6 Q. 1101. Thank you. It mentions that you

7 spoke -- or it suggests that you spoke with Mr.

8 Dunkelberger about the subject matter. Do you recall

9 what specifically you talked to Mr. Dunkelberger about

10 during that call on the morning of 21 August?

11 A. Yeah. The subject matter just simply refers

12 to the subject Chevron matter.

13 Q. And what did he tell you about it?

14 A. He indicated that there was this client that

15 he had that needed to have a valuation done for the

16 potential cleanup costs of soil and groundwater and

17 sediment in the -- what he termed at the time, and I

18 didn't know what it was, a concession area of Ecuador.

19 Q. Did you ask Mr. Dunkelberger any specific

20 questions about either the parties involved or the area

21 or the type of remediation or the contaminant?

22 A. I'm sure we had a discussion about who the

23 parties were involved. That's when I learned who --

24 who the parties were. And he indicated to me that it

25 was petroleum contamination at multiple sites located




1 in the Ecuadorian Amazon.

2 Q. Okay. Before your contact with Mr.

3 Dunkelberger, had you had any -- had you worked with

4 The Weinberg Group at all?

5 A. I had not even heard of them until I got the

6 referral.

7 Q. Okay. Did you -- during your conversation,

8 did you express any reservation about accepting the

9 engagement at all?


11 A. Yes. I was concerned about the time frame.

12 Q. What was the time frame that was told to you?

13 A. At the time I talked to Mr. Dunkelberger, he

14 said that this effort needed -- was on a fast track and

15 needed to be completed -- or I would need to have a

16 work product by September 16.

17 Q. So approximately 21 days or so?

18 A. Yeah.

19 Q. Why did that concern you?

20 A. Because without having seen any material at

21 that point and not knowing what I was getting into, I

22 was just somewhat cautious about jumping into this and

23 being able to do an adequate -- an adequate job.

24 Q. After you began seeing materials in this case,

25 did your -- did that eliminate your concern of the time




1 frame or -- or enhance it or keep it the same?

2 A. After I began to see materials, I realized

3 that there was certainly enough time to do what I felt

4 I needed to do, but it was going to be a real push.

5 Q. At what point did you decide to employ The --

6 The Johnson Company?

7 A. That would have been probably about three or

8 four days after I had received the first call from Ted.

9 Q. Why did you decide to use them?

10 A. As part of the introduction to the assignment,

11 Ted sent me the executive summary done by Cabrera, both

12 the March and the November summaries, and we had some

13 additional conversation after I had a chance to read

14 those on the following Monday or Tuesday, I guess,

15 about the scope of work as I saw it evolving. It

16 became clear to me that given the complexity and the

17 magnitude of this engagement and the time frame

18 involved, that I would need to assemble a team of

19 professionals to assist me in preparing the valuation.

20 Q. Okay. And did you suggest to Mr. Dunkelberger

21 that The Weinberg Group employ those professionals, or

22 did you suggest that you would employ them yourself?


24 A. No. I made it clear that I wanted to assemble

25 the group from people that I knew were qualified to do




1 the work.

2 Q. Okay. Was Mr. Dunkelberger your contact point

3 at The Weinberg Group?

4 A. Yes, he was.

5 Q. Was he considered -- or was The -- well, let

6 me ask it this way: Who did you consider to be your

7 client?

8 A. I considered Ted Dunkelberger of The Weinberg

9 Group to be my client.

10 Q. And from whom did you expect to be paid?

11 A. From The Weinberg Group.

12 Q. In addition to Ted Dunkelberger, did you

13 come -- did you have any dealings with a gentleman by

14 the name of Chris Arthur?

15 A. Yes, I did.

16 Q. And who is Mr. Arthur?

17 A. My understanding is Mr. Arthur is an assistant

18 to Ted Dunkelberger and -- specifically and to The

19 Weinberg Group in general and provided a lot of

20 logistical support during this period.

21 Q. Logistical as opposed to substantive?

22 A. Well, I would call his support substantive as

23 well as logistical. Document requests that I made went

24 through Chris and were fulfilled by Chris, which I --

25 which was very important to me, obviously.




1 Q. Okay. What about Tom Golojuch,

2 G-O-L-O-J-U-C-H?

3 A. I'm not sure how that's pronounced, either.

4 Q. Maybe I'm hammering that name. Is that -- how

5 do you pronounce --

6 MR. SMALL: I think it's Golojuch.

7 Q. Golojuch. Is that a name familiar to you?

8 A. Yes. I talked with Tom a couple of times on

9 the telephone.

10 Q. He also -- what support did he provide?

11 A. He provided no support directly to me, and I

12 don't know what other support he may have provided to

13 Ted or other experts or The Weinberg Group.

14 Q. Carlos Peza?

15 A. That name doesn't sound familiar to me. Is he

16 Weinberg?

17 Q. I'm just --

18 A. I don't know.

19 Q. Okay. Anyone else at The Weinberg Group with

20 whom you had regular contact or even intermittent

21 contact?

22 A. No.

23 Q. To whom did you -- to whom specifically did

24 you provide your final work product?

25 A. My final work product was provided to




1 plaintiffs' counsel.

2 Q. Patton Boggs?

3 A. Yes.

4 Q. Okay. Not through The Weinberg Group?

5 A. No. It was directly given to plaintiffs'

6 counsel.

7 Q. Was that on instruction from Mr. Dunkelberger?

8 A. I don't recall how that came about, but I was

9 instructed to provide it directly to Patton Boggs.

10 Q. Okay. You entered into a -- a subcontractor

11 agreement with The Weinberg Group; is that correct?


13 MR. BLUME: I'll label this as Chevron Exhibit

14 1106, I believe.



17 BY MR. BLUME:

18 Q. In front of you is Chevron Exhibit 1106.

19 Turning to the last page of that exhibit, there looks

20 to be a signature page with your signature and

21 seemingly a signature of Matthew Weinberg. Do you see

22 that?

23 A. I do.

24 Q. And just perusing this, does this -- is this

25 the subcontractor agreement that you entered into with




1 The Weinberg Group?

2 A. This appears to be that agreement, yes.

3 Q. Okay. I notice that it contains no fee

4 provision in here. How is it that you were -- or what

5 agreement did you reach with Weinberg Group to get

6 paid?

7 A. I was asked what my professional fee would be.

8 I provided it. At the point to where I told The

9 Weinberg Group that I would need to assemble a team,

10 then Mr. Dunkelberger asked me for a very rough budget,

11 which I provided him with.

12 Q. Okay. Is that -- was that budget provided in

13 the course of your document collection and production

14 in this case?

15 A. It should have been, yes.

16 Q. Okay. What is your -- what is your -- your

17 rate?

18 A. My rate is $300 per hour.

19 Q. Did Mr. Dunkelberger negotiate your rate at

20 all --

21 A. No, he did not.

22 Q. -- for this matter?

23 Did Mr. Dunkelberger or anybody negotiate the

24 rates of anybody working with you in this matter?

25 A. No.




1 Q. Is any part of your fee contingent upon the

2 outcome of the Lago Agrio litigation?

3 A. No.

4 Q. So regardless of how that litigation turns

5 out, you get paid by the hour without any contingencies

6 related to anything?


8 Q. Okay. Were you aware when you were first

9 engaged that you may be deposed here in the United

10 States?


12 A. Yes.

13 MR. SMALL: You can answer.

14 A. Yes. I knew that was a possibility.

15 Q. Okay. Did -- was there any special

16 arrangement made with regard to your fee as it relates

17 to the deposition?


19 You can answer.

20 A. No.

21 Q. So you have the same hourly rate for

22 deposition as you did for your work in this engagement;

23 is that correct?






1 You can answer.

2 Q. And it's the same arrangement; that is, The

3 Weinberg Group -- you expect The Weinberg Group to pay

4 your invoices even for your time spent here today?


6 A. Yes.


8 Q. Did you have any written agreements with

9 members of The Johnson Company?

10 A. No.

11 Q. Did The Johnson Company have any written

12 agreements with The Weinberg Group?

13 A. No.

14 Q. How were the terms of their engagement

15 defined?

16 A. I've known Chris for ten years and have worked

17 with him. I subbed to him, he subbed to me, and we

18 have a very fluid relationship and have a very good

19 line of communication, and basically I described to him

20 what I needed and we assembled the team and conducted

21 the work.

22 MR. BLUME: I'll put before you what is marked

23 as Chevron Exhibit 1107.






1 BY MR. BLUME:

2 Q. Exhibit 1107 has a cover letter from you to

3 Mr. Dunkelberger attaching what purports to be an

4 invoice for period August 23, 2010, to September 11th,

5 2010. Do you see that?

6 A. I do.

7 Q. Does this represent all of the hours, time,

8 and services that you provided from the beginning of

9 your engagement until the submission of your expert

10 report?

11 A. Yes.

12 Q. Since September 11th, 2010, have you submitted

13 additional invoices to The Weinberg Group?


15 Q. Have you incurred additional time since

16 September 11th?

17 A. Yes.

18 Q. Specifically doing what?

19 A. Preparing and attending this deposition.

20 Q. Okay. Other than preparing and attending this

21 deposition, since September 11th have you spent any

22 time reviewing any additional materials, documents,

23 papers, reports, the like?


25 Q. Okay. Turning to Page -- what on the bottom




1 reads 1 of 2 of your invoice, which is a description of

2 the time entries.

3 A. Yes.

4 Q. In your time entries up top, there's reference

5 to e-mails with client, calls with client.

6 A. Um-hum.

7 Q. Is -- is that Mr. Dunkelberger?

8 A. Yes.

9 Q. Okay. Down for Mr. Crandell's time, the last

10 three -- the last -- or three of the last four entries

11 mention your name.

12 A. Um-hum.

13 Q. I presume that's you. It's "review report for

14 Doug."

15 A. Um-hum.

16 Q. "Final check cost estimates; discuss with

17 Doug" and "Assist Doug in finalization of report."

18 We've been provided drafts of this invoice in

19 which you were not referenced in those time entries and

20 then purportedly had a conversation with Mr. Crandell

21 about that. What -- what was the point of that

22 conversation?

23 A. I wanted those added to reflect the fact that

24 my report was reviewed internally by my team, and I

25 wanted to be accurate in the descriptions of the time




1 that was done for this engagement.

2 Q. Okay. We mentioned -- or you mentioned,

3 rather, most of the people on this invoice. I'm not

4 sure you mentioned Todd Hall, Julie -- or -- you may

5 have mentioned Julie Sellars, Shelly McCarthy. These

6 are all -- these are people -- part of the Johnson

7 Company team?

8 A. Yes.

9 Q. Do each of them have a particular area of

10 expertise, in your view?

11 A. The -- I didn't mention them, but Joel

12 Behrsing and Pat Smart do. Julia Sellars and Todd Hall

13 were the associates that we asked to do some specific

14 work, so --

15 Q. What is Josh -- or Joel's expertise and what

16 is Pat's expertise?

17 A. Joel's expertise is in the design,

18 implementation, and oversight of remediation systems

19 for soil and groundwater. Pat's expertise is also in

20 that same vein as well as in the analysis of

21 investigative data.

22 Q. And why did you feel you needed their

23 assistance in this engagement?

24 A. I felt that in order to do a credible and

25 defensible valuation, I needed to incorporate their




1 expertise in my team.

2 Q. Is it fair to say that they have expertise

3 that goes beyond your own expertise in those areas?

4 A. In terms of -- in terms of the actual work

5 that they've done over the last period of time they've

6 been professionals, they've certainly done it more than

7 I have, but that -- that's just part of assembling a

8 team to do this kind of work.

9 Q. Is it fair to say that they have expertise

10 that goes beyond -- aside from the time they've put

11 into it, is it fair to say that they have expertise

12 that goes beyond your own in those areas?


14 A. Certainly that's fair to say, but again,

15 that's part of what you do in this business is you

16 assemble teams of professionals that have specialized

17 expertise and you put them all together into a team to

18 come out with what you need to produce for your

19 valuation. There's no one individual that has the

20 expertise to cover all of the areas in something like

21 environmental investigation and remediation.

22 Q. So -- so Joel has greater expertise than you

23 do in the design, implementation, and oversight of

24 remediation systems for soil and groundwater?





1 A. Sure. But that's part of why you assemble a

2 team of experts.

3 Q. And Pat has greater expertise than you do in

4 that same vein as well as in the analysis of

5 investigative data?


7 You can answer.

8 A. He -- he -- he's a younger individual who's

9 just been brought on to the company, but in certain

10 areas, yes, he would probably have more expertise in

11 those areas than I do.

12 Q. When you say "certain areas," how about the

13 areas of analysis and investigative data as well as

14 implementation/oversight of remediation systems for

15 soil and groundwater?


17 A. Probably more expertise in the former than --

18 excuse me, in the latter than in the former.

19 Q. So more expertise in the -- in the

20 implementation and oversight of remediation systems for

21 soil and groundwater?

22 A. That's probably fair.

23 Q. Okay. Let me place before you what I'll mark


25 / / /






3 BY MR. BLUME:

4 Q. 1108, Mr. Allen, is an e-mail from Ted

5 Dunkelberger to you copying Chris Arthur dated 25

6 August. Do you see that?

7 A. Yes.

8 Q. On the bottom of the page, if you run it

9 chronologically, and it's double-sided, so you may look

10 at the back side if you like -- see, I did try to save

11 paper. The bottom purports -- or the bottom

12 suggests -- it's an e-mail from you to Chris Arthur and

13 Ted Dunkelberger copied "Supplemental Information

14 Request." And Mr. Dunkelberger responds in the second

15 sentence, "Is there a time you could participate in a

16 team meeting (without the lawyers)?" Do you see that?

17 A. Yes.

18 Q. What did you understand -- or who did you

19 understand the team to be that he referred to in that

20 e-mail?

21 A. My understanding was it was The Weinberg Group

22 and whoever the other experts were that had been

23 assembled, including myself, to conduct this

24 engagement.

25 Q. At the time, 25 August at 6:30 in the morning,




1 did you -- did you know who those other experts might

2 be?

3 A. I didn't know all of them for sure at that

4 point.

5 Q. Okay. Had you participated in a -- in a team

6 meeting, as Mr. Dunkelberger refers to it, before 25

7 August?

8 A. No.

9 Q. Okay. He says "without the lawyers." Did you

10 know which lawyers he was referring to?

11 A. Not precisely at that point.

12 Q. Did you have reason to believe that the

13 lawyers would otherwise be involved in that team

14 meeting?

15 A. I had no knowledge one way or the other. This

16 was a request from Ted about my availability to meet

17 with the team. However he defined it at that point was

18 unknown to me.

19 Q. Before 25 August, did Mr. Dunkelberger talk to

20 you about lawyers or mention lawyers to you at all?

21 A. Yes, he did.

22 Q. Who did he refer to?

23 A. He referred to Patton & Bogg counsel, and he

24 also identified Steven Donziger.

25 Q. How did he describe Mr. Donziger?




1 A. He just said that he was one of the

2 plaintiffs' attorneys that was involved in this case.

3 Q. Did he -- did he say anything about his

4 involvement in this aspect of the case; that is, the

5 preparing of expert reports?

6 A. He said he was -- if I recall, he was one of

7 the individuals that would be involved in -- scoping's

8 not the right word, but yes, I would probably be

9 talking to him at some point about the nature of my

10 work.

11 Q. And what did you understand to be -- what did

12 you understand that to mean; in other words, talk --

13 what did you understand you were going to be talking to

14 him about?

15 A. Well, I wasn't sure what I was going to be

16 talking to him about, but at that point in time, as I

17 understood my assignment, it was to develop an estimate

18 of cost to remediate contaminated soil, groundwater,

19 and sediments in the vicinity of the -- in the

20 concession area in the vicinity of the well sites and

21 production stations.

22 Q. And you knew all that prior to 25 August?

23 A. Yes.

24 Q. Okay. Before -- when did -- after -- well,

25 let me put it this way: When did you first hear about




1 Steven Donziger?

2 A. It would have been the morning that I talked

3 to -- the first conversation that I had with Ted

4 Dunkel, because Donziger would have been identified so

5 that I could do any kind of a conflicts check or

6 identify any potential conflicts.

7 Q. Okay. And at that time what did Mr.

8 Dunkelberger tell you about Mr. Donziger?

9 A. I don't recall the details of that

10 conversation other than Mr. Donziger was one of the

11 main plaintiffs' attorneys working on this case and did

12 I have any conflicts with him.

13 Q. Okay. Have you -- before that had you ever

14 heard of -- of Mr. Donziger?

15 A. No, I hadn't.

16 Q. Okay. To -- to date, as of 16 December, have

17 you ever spoken with Mr. Donziger?

18 A. Yes, I have.

19 Q. How many times?

20 A. At least three times that I can recall.

21 Q. And do you -- sitting here today, do you

22 believe Mr. Donziger represents you?


24 A. No, I don't believe he represents me.

25 Q. Okay. When was the first time you spoke with




1 Mr. Donziger?

2 A. There was a telephone call, and I don't recall

3 the date because I didn't keep any notes on it, with

4 Mr. Donziger, counsel from Patton Boggs, and the

5 experts who had been engaged to do the work. It was

6 what I would classify or call a kickoff meeting or

7 kickoff telephone call, and it was just basically all

8 of us getting on the phone, introducing ourselves to

9 each other, firming up who was going to do what for the

10 engagement. Kind of a general let's get started on

11 this and what information do you guys need and stuff

12 like that.

13 Q. What did Mr. Donziger tell you about his hopes

14 for these expert reports?

15 MR. SMALL: Objection to form. And to the

16 extent that it reveals privileged communications, I

17 object to that as well.

18 Q. But you can answer.

19 A. Okay. Mr. Donziger indicated that per an

20 order of the Court, he was hoping that we would be able

21 to prepare independent valuations in our respective

22 fields of expertise.

23 Q. Did he describe that order of the Court?

24 A. I don't recall that he did.

25 Q. Did he describe any previous reports that had




1 been generated in this case?

2 A. I'm sure that -- well, I was aware of the

3 Cabrera report at that point, so I'm sure that that

4 was -- came up in discussion.

5 Q. What did Mr. Donziger tell you about his hopes

6 for these reports; in other words, what he had expected

7 the reports to demonstrate?

8 MR. SMALL: Objection to form. Asked and

9 answered.

10 A. As I indicated, Mr. Donziger indicated that

11 what he was hoping to get out of this was independent

12 valuations from the experts that had been assembled for

13 their respective areas of expertise.

14 Q. Did -- did Mr. Donziger mention Cabrera during

15 this conversation?

16 A. I'm sure -- I'm not sure if Mr. Donziger

17 mentioned him, but he was certainly -- the Cabrera

18 report was mentioned during the conversation.

19 Q. Did Mr. Donziger talk at all about any

20 concerns that surrounded Mr. Cabrera or his report?


22 A. I don't recall any specific concerns that Mr.

23 Donziger may have spoke.

24 Q. Did anyone tell you the need to get Mr.

25 Donziger's approval before taking an opinion, reaching




1 an opinion, or acting in any way as an expert in this

2 case?


4 A. No.

5 MR. SMALL: You can answer, please.


7 MR. SMALL: It's okay.

8 A. No.

9 Q. Are you aware sitting here today of

10 allegations of fraud against Mr. Donziger?


12 A. Yes, I'm aware of allegations of fraud.

13 Q. What -- how did you become aware of those

14 allegations?

15 MR. SMALL: To the extent that any of those

16 were revealed during privileged conversations, I advise

17 you not to answer.

18 Q. Outside of conversations you may have had with

19 lawyers from Patton Boggs, what is it that you learned

20 or know about the allegations of fraud against Mr.

21 Donziger?

22 A. Only what I might have picked up off from the

23 web on blogs that were Chevron's or -- there was

24 another blog that I briefly looked at that came out of

25 an interest group in Ecuador, but that's all.




1 Q. Have you ever heard of the movie "Crude"?

2 A. Yes, I have.

3 Q. Have you watched it?

4 A. I watched the first two or three minutes of

5 it, and that was the end of it.

6 Q. Why?

7 A. I didn't feel it was relevant to what I was

8 assigned to do.

9 Q. Are you aware that during the course of this

10 litigation the courts have permitted Chevron to view

11 outtakes from the movie "Crude"?


13 You can answer.

14 A. I am not aware of what has transpired on --

15 surrounding that -- that video.

16 Q. Okay. Is that to say that you were not aware

17 that there are -- there are now publicly available

18 outtakes that were obtained in the course of this

19 litigation to the movie "Crude"? Are you aware of

20 that?


22 You can answer.

23 A. I'm aware of it only insofar as that might

24 have been identified for me on a website, but I haven't

25 heard it anywhere else.




1 Q. Have you heard or read about any of those

2 outtakes?


4 Q. Have you heard or read about what those

5 outtakes demonstrated?


7 A. I don't really have any knowledge about those

8 outtakes or what the subject matter was or what they

9 showed.

10 Q. Do you know that -- have you ever heard of

11 Judge Kaplan from the Southern District of New York?


13 A. I'm not sure I have.

14 Q. Okay. Are you aware that Judge Kaplan in the

15 course of the proceedings recently, in the last few

16 months, indicated that "there is evidence to support

17 Chevron's claim that the 'global assessment' is a fraud

18 orchestrated by the Lago Agrio plaintiffs. There is

19 evidence too that other expert evidence submitted to

20 the Ecuadorian courts on behalf of those plaintiffs

21 also was fraudulent." Are you aware --

22 MR. SMALL: Objection -- objection to form.

23 Q. Are you aware of that finding?

24 A. No, I am not.

25 Q. Has anyone in the course of this litigation




1 told you that there were allegations of fraud made -- I

2 asked you about Mr. Donziger, but that involved Mr.

3 Cabrera and his expert report?


5 A. Not that I recall sitting here.

6 Q. Did Mr. Donziger mention to you the concerns

7 in this regard related to the -- at any point in time,

8 not only in this first call but at any point in time,

9 related to the Cabrera report?

10 A. Concerns related to what again, please?

11 Q. To the fact that there -- that courts or

12 others have determined that the submission of that

13 report was fraudulent.


15 A. No. Not that I'm aware of.

16 Q. Hearing this today, does it cause any concern

17 to you about Mr. Donziger or the matter, that there

18 have been findings -- judicial findings of fraud in

19 this case?


21 A. No, it does not.

22 Q. Doesn't concern you at all?

23 A. No.

24 Q. Why not?

25 MR. SMALL: Objection to form. You're being




1 argumentative.

2 MR. BLUME: Actually, "why not" doesn't seem

3 very argumentative.

4 A. I was asked to and I performed an independent

5 valuation of damages in the concession area of the

6 Ecuadorian jungle. That valuation to me wasn't

7 impacted by whatever allegations are out there about

8 fraud or whether or not Cabrera's report was fraudulent

9 or whatever. I accepted that report at face value and

10 used that as a starting point to do my own evaluation.

11 Q. And we'll get into that a little more, but

12 just hypothetically speaking, that -- if -- if you had

13 reason to question the report that you accepted at face

14 value or if others, courts and the like, suggested that

15 there would be -- that one should not accept that

16 report at face value, would that cause you concern or

17 undermine your ability to opine as you did in this

18 case?


20 A. No. Because I used what I felt was relevant

21 and valid out of Cabrera's report, but I didn't rely

22 solely on Cabrera's report to do the valuation. I

23 relied on other sources of data and information.

24 Q. We'll get to that in a minute. Are you

25 familiar with Texpet?




1 A. Yes.

2 Q. Do you understand Texpet's connection with

3 Chevron?


5 You can answer.

6 A. In general I do, yes.

7 Q. Do you understand that Chevron never actually

8 opened any oil wells in Ecuador?

9 MR. SMALL: Objection to form. Are you

10 testifying?

11 Q. Actually, my question was --

12 MR. SMALL: Assumes facts not in evidence.

13 Q. Actually, my question was "do you understand,"

14 which is not so much testimony but a question. Do you

15 understand that Chevron never actually opened any oil

16 wells in Ecuador?

17 MR. SMALL: Okay. Objection to form. Assumes

18 facts not in evidence.

19 You can answer.

20 A. My understanding is that Texpet opened and

21 developed oil production sites in the Amazon jungle and

22 that through acquisition Chevron acquired Texaco and

23 Texpet.

24 Q. Acquired Texpet or Texaco?

25 A. Well, I'm not even clear on that, but they




1 ultimately ended up being in the line of successorship

2 or ownership.

3 Q. And do you know when that line of

4 successorship landed on -- in Chevron?


6 You can answer.

7 A. I'm not certain, but it may have been

8 referenced as part of my introduction in my report. If

9 I could have a copy of that, I could verify that for

10 you.

11 Q. Okay. But it was -- you think it's reflected

12 in the timeline in your report?

13 A. I believe it is. I can verify that with the

14 report.

15 Q. When did Texpet stop operating in Ecuador?


17 Q. Well, let me -- let me start with this: You

18 understand that Texpet has no -- no more operations in

19 Ecuador; is that correct?


21 You can answer.

22 A. That's what I understand.

23 Q. Okay. Do you know when they stopped operating

24 these oil facilities in Ecuador?

25 A. My understanding was there was a transfer of




1 operations around 1992. Again, I can verify it with my

2 report because it's part of my introduction and

3 timeline. I'm not certain when they actually stopped

4 operations.

5 Q. And who operates the oil exploration and

6 production facilities in the former concession area

7 now?


9 A. I believe, as I have stated in my report, it's

10 Petroecuador.

11 Q. And you're aware that Petroecuador has been

12 operating since Texpet left the country in and around

13 the early 1990s?


15 A. That's my understanding as reflected in my

16 report.

17 Q. And what's your understanding about the

18 relationship between Petroecuador and the government of

19 Ecuador?


21 A. I believe that I have explained that in the

22 introduction. I just simply can't recall it as I sit

23 here without that report in front of me to see what I

24 had written.

25 MR. SMALL: You want to show him the report?




1 MR. BLUME: Yeah. We'll get to that.

2 MR. SMALL: Okay.

3 Q. So sitting here today, you have no independent

4 recollection of the relationship between Petroecuador

5 and the government of Ecuador?

6 A. Well, there's a relationship there. You're

7 asking me what that relationship is. I'm telling you I

8 can't remember the details of it, but I'm pretty

9 certain that I had identified that in the introductory

10 section of my report and in the timeline of my report.

11 If I can have a copy of that, I will be able to verify

12 that.

13 Q. And we'll get that.

14 A. Okay.

15 Q. But you said there's a relationship. I'm just

16 curious sitting here today what you understand that

17 relationship to be.

18 A. I don't -- as I sit here without that report,

19 I can't recall it.

20 Q. Okay. Do you recall what percentage of

21 ownership Petroecuador had in the operating consortium

22 during the time of these -- of the oil operations there

23 in the concession area?


25 Q. Specifically between 1974 and 1977?





2 A. As I sit here without that report in front of

3 me, Mr. Blume, I can't tell you, but I can tell you

4 that the percentage ownership is identified in the

5 introduction and site chronology of my report.

6 Q. Did the percentage of ownership and control of

7 operations in the concession area matter to you in

8 forming your opinions in this case?

9 MR. SMALL: Objection to form. Are you asking

10 him whether the ownership mattered, whether the

11 operation mattered, or both?

12 Q. Did the ownership of the -- did ownership --

13 did the operations of the oil production facilities in

14 the concession area, who operated the oil facilities in

15 the construction area -- in the concession area, matter

16 to you in the course of rendering your opinion?

17 A. No, they did not.

18 Q. And is your answer at any point in time? So

19 it didn't matter who operated the facilities today, it

20 didn't matter to you who operated the facilities 10

21 years ago, 20 years ago, 30 years ago?



24 Q. Did you take into account who funded -- did it

25 matter to you who -- who may have funded the operations




1 of the consortium at any point in time in rendering

2 your opinion?


4 A. No, it did not.

5 Q. Did it make any difference to you in your

6 opinion who maintained on-site inspectors or engineers

7 for operating in the concession area?


9 Q. Did that matter to you in any way in your

10 opinion?


12 Q. Did it matter to you in forming your opinion

13 who approved the consortium's work plans, drilling

14 locations, practices, anything of that nature?



17 Q. In rendering your opinion, did you consider

18 the fact that Petroecuador has installed more than 400

19 new production wells in the former concession area

20 since it became the sole operator in 1990?


22 A. No, I --

23 MR. SMALL: Again, you're assuming facts that

24 aren't in evidence.

25 But go ahead. You can answer.




1 A. No, I did not.

2 Q. Did you take into account in your analysis of

3 natural resource -- I'm sorry.

4 Did you take into account as far as your

5 analysis the fact that since Petroecuador became the

6 sole operator, that they've had more than 1400

7 documented spills of crude oil in that former

8 concession area?


10 You can answer.

11 A. Other than identifying that specific fact that

12 you just mentioned, which is included, I believe, in my

13 "Nature & Extent of Contamination," no, I did not

14 consider it further in my valuation.

15 Q. Shouldn't Petroecuador be responsible for

16 those spills?


18 A. I was not asked to do an allocation.

19 Q. I'm asking you today. In your -- in your

20 expert opinion, should Petroecuador be responsible for

21 the more than 1400 documented spills of crude oil in

22 the former concession area?


24 A. I have no opinion on the allocation of

25 responsibility.




1 Q. Should Chevron be responsible for any spills

2 that occurred after Texpet left the concession area and

3 since Petroecuador has begun operations there?


5 A. I have no opinion on the allocation of

6 responsibility.

7 Q. Are you aware or did you -- well, put it this

8 way: Did you consider at all in the formation of your

9 opinions the net accounting profits of the consortium

10 during the time 1972 to 1992?

11 A. No, I did not.

12 MR. SMALL: Object -- objection to form.

13 Q. Were you made aware or did you seek to learn

14 about what percentage of the profits generated by the

15 consortium went to either the government of Ecuador,

16 Petroecuador, or Texpet?



19 Q. Was -- was Petroecuador's economic benefit a

20 factor at all in reaching any of your opinions?


22 A. No, it was not.

23 Q. Do you know that Texpet remediated certain

24 well sites in the 1990s pursuant to an agreement with

25 the government of Ecuador?




1 MR. SMALL: Objection to form. Again, assumes

2 facts not in evidence.

3 A. Yes, I am aware of a remediation program

4 conducted by Texpet.

5 Q. Did anyone tell you which sites specifically

6 or do you know which sites specifically were remediated

7 by Texpet?


9 You can answer.

10 A. No -- okay. Other than what I might have

11 tried to read into the documents, no one has told me

12 specifically which sites were remediated.

13 Q. Do you know which sites were remediated by

14 Texpet?

15 MR. SMALL: Objection. Assumes facts not in

16 evidence.

17 A. No, I don't have a clear understanding of

18 that.

19 MR. SMALL: You're assuming that they were

20 remediated.

21 MR. BLUME: Well, let's just go back and look.

22 I asked, Do you know that Texpet remediated certain

23 well sites? And you said yes.

24 MR. SMALL: And I objected. Right. Go ahead.

25 MR. BLUME: And I said, Do you know which




1 sites were remediated? And you said it assumes a fact

2 not in evidence.

3 MR. SMALL: You're assuming that --

4 MR. BLUME: I'm not sure I understand that,

5 but --

6 MR. SMALL: I'll explain it to you.

7 MR. BLUME: That's okay.

8 MR. SMALL: You're assuming that they were

9 remediated, and that's not in evidence.

10 Q. You understand that -- sitting here today, you

11 testified that you understand that Texpet remediated

12 sites in the 1990s in the former concession area; is

13 that correct?


15 A. That statement that you just said is true. I

16 understand --

17 Q. Okay.

18 A. -- that they remediated, to whatever degree

19 that was done, certain number of sites in the Texpet

20 area.

21 Q. And do you know -- of the sites that you

22 believe sitting here today were remediated by Texpet,

23 do you know specifically where they are or what they

24 are?

25 A. No.





2 You can answer.

3 A. No, I don't have a clear understanding of that

4 as I sit here today.

5 Q. Are you aware that Texpet was -- that Texaco

6 was released from any liability by the government of

7 Ecuador in 1998?

8 MR. SMALL: Objection to form. Assumes facts

9 not in evidence and it's asking for a legal conclusion.

10 MR. BLUME: I'm sorry. Evidence in this

11 deposition or evidence in the litigation?

12 MR. SMALL: Evidence in the case. In the

13 litigation in general.

14 MR. BLUME: You're saying -- you're telling me

15 that -- that the release of liability by the government

16 of Ecuador is not in evidence in the litigation?

17 MR. SMALL: What -- what -- release of what?

18 You're claiming that there's a release of liability

19 from everything, and we contest that.

20 MR. BLUME: Okay.

21 Q. Are you aware that Texaco is released from any

22 liability for continued remediation of the sites in the

23 former concession area by the government of Ecuador in

24 1998?





1 Q. You can answer.

2 MR. SMALL: That's simply not true.

3 You can answer. Go ahead.

4 A. I'm aware that that has been alleged, but I

5 have no proof of that one way or the other.

6 Q. Okay. So no one shared with you the contract

7 and release between the government of Ecuador and

8 Texaco?


10 Q. You have no --

11 A. No one shared that with me.

12 Q. Okay. And are you aware that Texpet agreed

13 based on this partial prior ownership to remediate a

14 portion but not all of the sites within the concession

15 area and that Petroecuador agreed to remediate the

16 other sites?


18 A. I am aware of that was represented by Texpet

19 in a document that they posted to the Internet, and

20 that's where I got my information from about the

21 remediation of a certain number of wells by Texpet and

22 by Petroecuador. That's the only extent of my

23 knowledge.

24 Q. Are you aware that Texpet's remedial efforts

25 were inspected by the government of Ecuador and the




1 government of Ecuador certified that remediation?


3 A. I'm aware that that was stated as such in this

4 Texpet document that I'm referring to, but I saw no

5 supporting documentation for that.

6 Q. Are you aware that after it completed its

7 remediation Texpet was indemnified by the government of

8 Ecuador against future claims for responsibility of

9 cleanup?

10 MR. SMALL: Objection to form. Again, assumes

11 facts that are certainly not in evidence.

12 A. I'm not aware of -- of ever finding or hearing

13 that they were indemnified by the government of

14 Ecuador.

15 Q. Did it matter to you in the formation of your

16 opinion that Petroecuador had assumed responsibility

17 for remediating certain pits within the former

18 concession area?



21 Q. Did it matter to you in the formation of your

22 opinion that certain pits previously identified had

23 already been remediated within the former concession

24 area?





1 A. I've -- I looked at that issue and found that

2 because of discrepancies in the information that I

3 reviewed and the sources that I looked at, I could not

4 tell one way or the other.

5 Q. What information did you look at whereby these

6 discrepancies were -- were raised, or wherein these

7 discrepancies were raised?

8 A. What I attempted to do was to look at the

9 number of well pits and production sites and do an

10 inventory of them and try to figure out what had been

11 done in terms of, first of all, knowing what the real

12 number of pits and well sites were out there; when they

13 had been remediated; to what extent had they been

14 remediated; what were the conditions that they were

15 found in before and after.

16 I looked -- found that information in multiple

17 sources. Those sources included the consulting reports

18 from -- from Texaco's consultants; they included

19 information that was cited by Cabrera. My conclusion

20 was there was just too many ambiguities and

21 discrepancies in that information to get a clear

22 picture of who had remediated what, when, and how that

23 related to the total number of production -- of pits in

24 the well sites in the production areas.

25 Q. So faced with that uncertainty, you decided to




1 simply go with the maximum number possible; is that

2 correct?


4 You can answer.

5 A. For the purpose of this valuation, yes.

6 Q. What do you mean, "for the purpose of this

7 valuation"? What was the purpose of this valuation?

8 A. The purpose of this valuation was to develop

9 an independent cost estimate for remediating

10 contaminated soils, sediment, and groundwater in the

11 well sites and production stations of the concession

12 area.

13 Q. But you just told me, sir, that you had -- you

14 were -- you were left with discrepancies and

15 uncertainty with regard to the well sites in the

16 concession area, so how is it that you were able, then,

17 to reach an opinion to a degree of any scientific

18 certainty on the number of sites that required

19 remediation?


21 A. What I did, because of the ambiguities and

22 uncertainties, is I used the number of well sites and

23 pits that had been reported by Cabrera as the basis of

24 my valuation.

25 Q. Why?




1 A. Because that represented to me the most recent

2 number of well pits at the -- at the well sites and

3 stations.

4 Q. Why did it represent the most recent number?


6 A. Because I didn't find any additional

7 information more recent than that that changed my

8 opinion on that.

9 Q. Did you read any of the reports filed by

10 Chevron's experts in response to the Cabrera report?



13 Q. Those in fact would have come after the

14 Cabrera report, would they not have?

15 A. I assume. I have no knowledge of those

16 reports as I sit here today.

17 Q. Plaintiffs never provided those reports to

18 you, did they?


20 A. I --


22 A. I didn't receive or review any reports.

23 Q. I know you didn't review them. No one gave

24 you the reports that rebutted the Cabrera report, did

25 they?





2 A. I did not receive any of those reports.

3 Q. Did you ask for them?

4 A. I asked for any reports other than what had

5 been identified by Cabrera that were prepared by

6 Chevron's consultants.

7 Q. What were you told in response to that

8 request?

9 MR. SMALL: Objection to the extent that it

10 reveals privileged communication.

11 A. I'm not sure I was told anything specific

12 about that item that I requested other than I didn't

13 receive it in the time frame that I did my valuation.

14 Q. Have you received it at any time since?


16 MR. BLUME: Why don't we take a break.





21 11:39, and we are back on the record.

22 BY MR. BLUME:

23 Q. You mentioned earlier back on 25 August you

24 had a team meeting or there was a reference in that

25 e-mail to a team meeting without the lawyers. Do you




1 remember that?

2 A. As cited in the -- in the e-mail, yes. Do I

3 remember the team meeting?

4 Q. Yes.

5 A. I remember there was a teleconference call

6 that took place around that time.

7 Q. And do you remember specifically who was on

8 that call?

9 A. Well, certainly I was, Ted Dunkelberger, Dan

10 O'Rourke was another member of the team, Tom Golojuch

11 was on that, and I -- I can't recall who else might

12 have been.

13 Q. Larry Barnthouse?

14 A. I -- I knew of Larry Barnthouse at that time.

15 I wasn't sure he was on that call.

16 Q. Okay. What about Mr. Scardina?

17 A. No. I wasn't familiar with him at that point.

18 Q. Mr. Picone?

19 MR. SMALL: Doctor.

20 A. Dr. Picone?

21 Q. Doctor. Sorry.

22 MR. SMALL: He's a real M.D.

23 Q. He's a real doctor, actually.

24 A. Right. The real thing.

25 Q. Dr. Picone.




1 A. Again, I was aware of his name and -- and he

2 being a member of the team. I can't recall if he was

3 on the call.

4 Q. Okay. Sitting here today, and I'll take them

5 one by one, what's your understanding of Mr.

6 Barnthouse's role in this litigation?

7 A. My understanding is that Mr. Barnthouse was

8 engaged --

9 MR. SMALL: I'm sorry. Just to clarify. When

10 you say "this litigation," do you mean the Lago Agrio

11 litigation?

12 MR. BLUME: Lago Agrio. Sorry.

13 MR. SMALL: Thank you.

14 MR. BLUME: Yeah, I know. There's a host.

15 The Lago Agrio.

16 A. Right. My understanding was that Mr.

17 Barnthouse was retained to develop a valuation of

18 potential natural resource or NRD damages.

19 Q. Okay. What involvement, if any, did you have

20 with retaining Mr. Barnthouse or assisting him in

21 reaching his opinions?

22 A. Ted Dunkelberger asked me if I knew of anybody

23 who could do the NRD piece, and at one point in time he

24 suggested that I could do it or asked me if I could do

25 it. That's not my particular area of expertise. I




1 couldn't identify an individual with that area of

2 expertise, so he reached out and looked for other

3 individuals, found Mr. Barnthouse, and asked me to

4 review Mr. Barnthouse's résumé in a general sense for

5 qualification.

6 Q. Did you suggest to Mr. -- to anyone in The

7 Weinberg Group that Mr. Barnthouse would be

8 appropriately qualified to opine in that area?


10 You can answer.

11 A. I'm sure that in conversations with --

12 subsequent conversations with Ted Wein- -- with Ted

13 Dunkelberger, I said that I had reviewed Mr.

14 Barnthouse's résumé and it would appear that he might

15 be a good person to do the NRD piece from what he had

16 represented as experience in his résumé.

17 Q. During the course of your engagement, did you

18 have any conversations with Mr. Barnthouse about your

19 opinion?

20 A. No. Not about my opinion.

21 Q. Did you have any conversations with Mr.

22 Barnthouse about his opinion?

23 A. Only insofar as I had an initial phone call

24 with him after he was retained. Ted Dunkelberger

25 requested I just call Mr. Barnthouse up. Mr.




1 Barnthouse was coming in two or three days behind the

2 rest of us, so we had a two- or three-day head start,

3 and I had a general conversation with Mr. Barnthouse,

4 who at that time had read Cabrera's section on NRD and

5 was beginning to formulate his own strategy for

6 preparing his valuation.

7 Q. Did he tell you what that strategy was?

8 A. No, he didn't, because at that time he felt

9 that he needed additional information, at which point I

10 directed him to get in contact with Ted or Chris Arthur

11 at The Weinberg Group and make his request for

12 information directly to them as soon as possible.

13 Q. At any point in time did -- did you coordinate

14 the production of materials to Mr. Barnthouse after

15 that call?

16 A. No.

17 Q. Okay. Anytime after that call did you -- did

18 Mr. Barnthouse seek your advice or counsel with regard

19 to opinions or procedure or logistics or anything like

20 that?


22 Q. What about Dr. Picone? Did you have any

23 conversations with Dr. Picone about your opinion?

24 A. No.

25 Q. Did you have any conversations with Dr. Picone




1 about his opinion?

2 A. No.

3 Q. Were you -- are you aware on what topic Dr.

4 Picone is opining?

5 A. Only generally. On aspects of human health

6 monitoring, I believe. I'm not certain.

7 Q. At any point in time did Dr. Picone seek your

8 counsel or advice with regard to the substance of his

9 opinion or any logistics related to his engagement?


11 Q. What about Mr. O'Rourke? Did you have any

12 conversations with Mr. O'Rourke about the substance of

13 your opinions?


15 Q. Any conversations that he had with regard to

16 the substance of his opinions?


18 Q. Did you have any -- did at any point in time

19 you have a discussion with -- with him about anything

20 related to the litigation or the logistics of his

21 engagement?

22 A. Nothing related to the litigation or the

23 logistics of his engagement.

24 Q. Anything else?

25 A. Yes. There was one phone call that I recall




1 where it was simply a -- a call to see if he had

2 received information that I might have been looking for

3 and would be useful and vice versa, and as it turned

4 out, neither one of us had anything to give to the

5 other and we didn't transmit anything to each other.

6 Q. Okay. What -- were you looking for something

7 specific from Mr. O'Rourke?

8 A. I was looking at one point for GIS,

9 geographical information system, type information,

10 because he had mentioned that on one of these team

11 status meeting calls, that I thought it might be useful

12 to me to have that. I wasn't sure what use I would

13 make of it at that point, but if he had received it, I

14 would have liked to have known about it so I could have

15 obtained it. But unfortunately, we didn't have any

16 transfer of information on that particular --

17 Q. Did you -- I'm sorry.

18 A. We didn't have any transfer of information on

19 that particular request.

20 Q. Do you have expertise in GIS?

21 A. No, I don't.


23 Q. Does anyone from The Johnson Company have

24 expertise in GIS?





1 You can -- you can answer.

2 Q. Working with GIS?

3 A. Yes, they do.

4 Q. Who would that be?

5 A. I don't know them by name, but The Johnson

6 Company has a GIS -- a couple of people who are very

7 familiar with GIS systems.

8 Q. Did you make that request to The Weinberg

9 Group for -- for GIS information?

10 A. I believe I did in one of my supplemental

11 information requests.

12 Q. Did you receive any GIS information from The

13 Weinberg Group?

14 A. We did receive some. It came in a couple of

15 forms. There were some hard copy reports that had

16 GIS-like information as appendices. They were

17 appendices to Cabrera report. We also received an

18 electronic data file that had coordinate information in

19 it. Unfortunately, we were unable to figure out what

20 the coordinate systems were to make any use of it.

21 Q. Okay. What about Mr. Scardina? Did you have

22 any conversations with him about the subject of his

23 opinions in this matter?

24 A. No, I did not. He was brought in later in the

25 process, and I don't recall even talking to him on a




1 status call.

2 Q. Okay. What about Mr. Schefftz? Are you

3 familiar with him?

4 A. I'm familiar with him by name, but I have

5 never talked to him.

6 Q. Even -- was he -- did he participate in any of

7 the status calls?

8 A. Not that I was ever aware of.

9 Q. How many of these status calls did you

10 participate in, approximately?

11 A. There wouldn't have been more than one or two,

12 possibly three at the most. I was reluctant to take

13 away any time from the work that I was doing to

14 participate in them, but with status calls as a group,

15 there wouldn't have been more than one or two that I

16 can recall.

17 Q. Does that include the first call that you had

18 on 25 August with Mr. Donziger and the lawyers?

19 A. Yes, that would.

20 Q. And does that -- I'm -- and I said 25

21 August --

22 A. Around that point.

23 Q. Around that time.

24 A. I'm not sure of the exact date.

25 Q. So that would be one. There's another call




1 referenced in the 25 August e-mail, the team meeting --


3 Q. -- without the lawyers. Would that be number

4 two?

5 A. I assume so, yes. That would be reasonable.

6 Q. Okay. And then on the back end, did you

7 participate in a call, again with Mr. Donziger, on

8 September 11th?

9 A. Yes, I did.

10 Q. And what was the -- what happened during that

11 call?

12 A. That was a recall -- that was a --

13 MR. SMALL: Objection to the extent that it

14 reveals privileged communication.

15 You can answer.


17 A. Okay. That was a teleconference call with

18 counsel to review my draft report.

19 Q. Who else was on that call aside from yourself

20 and Mr. Donziger?

21 A. I believe -- well, I know Adlai was; I believe

22 Eric Wester- -- Westbergen [sic] was from Patton &

23 Boggs; Steven Donziger; and there was another attorney

24 on, and I cannot recall his name at this point. I

25 think his first name is Ilanni, but I don't recall his




1 last name.

2 Q. Okay. Any other expert witnesses on that call

3 with you?

4 A. No.

5 Q. Did you participate -- and -- and you said you

6 discussed your opinions?


8 Q. Among other topics, did you discuss the

9 opinions that you were intending to generate in this

10 case on that September 11th call?

11 A. Actually, the call was to basically discuss

12 their comments on their review of my draft final

13 report.

14 Q. Do you recall what comments Mr. Donziger had

15 on your draft final report?


17 A. Yeah. Actually, I was floored by the lack of

18 comments on it. There were some minor nitpicks on the

19 language in the front pieces of the report, but there

20 was no substantive comments, and there was no comments

21 at all on the valuation that I had done.

22 Q. At any point in time between 21 August and 11

23 September did you receive comments -- substantive

24 comments from Mr. Donziger on your opinions or the

25 methodology that you used?




1 A. No. None at all.

2 Q. You mentioned Mr. Golojuch?

3 A. Tom Golojuch, yes.

4 Q. Did you have any discussions with him about

5 the substance of your opinions?

6 A. No.

7 Q. Upon what is he opining?

8 A. I'm not sure he opined on anything.

9 Q. What was -- you mentioned his name with regard

10 to other experts in this case. What was --


12 You can answer.

13 THE WITNESS: Okay.

14 MR. SMALL: To the extent you remember.

15 THE WITNESS: Yeah.

16 A. I don't recall him being one of the experts

17 who were engaged to develop a specific valuation. He

18 was a colleague of Ted Dunkelberger's.

19 Q. At any point in time did you exchange -- or

20 let me put it this way: At any point in time did you

21 receive any draft reports from either Messrs.

22 Barnthouse, O'Rourke, Scardina, Schefftz, or

23 Dr. Picone?

24 A. I did receive a draft report from Barnthouse

25 on his work.




1 Q. Why?

2 A. I was asked to just take a look at it by Ted

3 Dunkelberger.

4 Q. Did you have any comments to that draft

5 report?

6 A. I didn't.

7 Q. Even minor editorial comments?

8 A. I didn't make any comments on it. I'm not

9 even sure I actually opened it up and read it.

10 Q. Okay. Did you provide a draft report -- or --

11 did you provide a draft report at any point in time to

12 Mr. Dunkelberger?

13 A. I don't recall I ever did.

14 Q. Okay. Do you know whether any of these other

15 gentlemen reviewed a draft report of yours?

16 A. I have no knowledge that it was ever reviewed

17 by any of the others.

18 Q. To whom did you provide a draft report, if

19 anyone?

20 A. I provided a draft report to Patton & Boggs.

21 Q. Okay. Did Mr. Donziger ever request a draft

22 report from you directly?


24 Q. Did you and the other gentlemen maintain a

25 common database or have access to a common database of




1 materials?

2 MR. SMALL: Which -- which gentlemen are you

3 referring to?

4 A. Yeah.

5 Q. I'm sorry. Barnthouse; Picone; O'Rourke;

6 Scardina; Schefftz.

7 A. No, we did not maintain a common database

8 other than the FTP site that The Weinberg Group put up

9 to allow us access to the documents that were

10 collected.

11 Q. Now you get your report. If I can find it.

12 Oh, that FTP site, was it a SharePoint 3? Was

13 that the name of that site; do you know?

14 A. I have no idea. I was given an access code

15 and that was it.

16 MR. BLUME: Let me mark as Chevron Exhibit

17 1109 -- actually, you know what? Let's do this first.

18 Let me mark as 1109 this.



21 BY MR. BLUME:

22 Q. I've placed before you what's marked as

23 Chevron Exhibit 1109. It purports to be an e-mail from

24 24 August from you to Chris Crandell attaching Cabrera

25 expert report executive summary and Cabrera expert




1 report November updated response. Do you see that?

2 A. I do.

3 Q. On the cover of that e-mail, sir, the first

4 page, you mention a $27 billion current claim. Do you

5 see that?

6 A. I do.

7 Q. What was -- why did you mention that

8 specifically in this cover e-mail to Mr. Crandell?

9 A. No particular reason other than that's what

10 was totaled up on one of the data tables in Cabrera's

11 report.

12 Q. Why was that significant to you?


14 A. I'm not sure of the significance of it other

15 than just giving Chris an idea of the -- the claim that

16 had been put forth.

17 Q. Did that number in any way impact or have any

18 significance on the topics that you were opining on?


20 A. No.

21 Q. Did you take it upon yourself to find out

22 what -- how that -- what comprised that $27 billion

23 number?

24 A. Yes.

25 Q. And how did you go about to learn that?




1 A. I read Cabrera's report.

2 Q. Okay. These documents, the Cabrera report,

3 are these documents that were given to you by The

4 Weinberg Group?

5 A. Yes.

6 Q. It is the summary report and responses to the

7 question. Were you provided at any point in time the

8 rest of the Cabrera report?


10 Q. Including summary report and all of its

11 annexes?

12 A. Yes.

13 Q. To the extent you received those documents,

14 among others, would they be listed in the bibliography

15 section of your report?

16 A. Yes.

17 Q. Okay.

18 MR. BLUME: I will mark as Chevron Exhibit

19 1110.



22 BY MR. BLUME:

23 Q. You mentioned, by the way, earlier someone

24 named Ilanni on a telephone call. Is that Ilann

25 Maazel?




1 A. That sounds familiar.

2 Q. Turning to what is marked as Chevron Exhibit

3 1110, is this -- and you can look through it. Is this

4 the English version of your environmental damage

5 valuation report that you submitted in this matter?

6 A. Yes, it appears to be.

7 Q. Did you write this report, sir?

8 A. I did.

9 Q. By your own hand, or with the assistance of

10 Johnson Company?

11 A. I wrote the vast majority of it.

12 Q. And are the conclusions in the report yours?

13 A. They are.

14 Q. Other than your -- what we discussed with The

15 Johnson Company, did anyone else contribute to the

16 conclusions contained within this report?

17 A. No.

18 Q. And does it represent your opinions to a

19 degree of scientific certainty?


21 A. Yes, they do.

22 Q. You hesitated. Why?

23 A. Well, I was --

24 MR. SMALL: Object.

25 A. -- was going to ask you to define what you




1 meant by "scientific certainty."

2 Q. What do you mean -- when you answered yes,

3 what were you -- what did you think "scientific

4 certainty" meant?

5 A. "Scientific certainty" to me means that within

6 the scope of what I was asked to do, looking at the

7 data that I looked at, looking at the procedures and

8 methods that I used to develop this valuation, do I

9 come out with something that I considered to be

10 reasonable and appropriate consistent with best

11 practices and standards, and the answer to that is yes.

12 Q. Okay. Do you speak Spanish?

13 A. I do not, unfortunately. I wish I did.

14 Q. So I assume you wrote your report in English;

15 is that correct?

16 A. Yes, I did.

17 Q. And you're aware that there was a -- it was

18 translated into Spanish; is that -- are you? Or were

19 you aware of that?

20 A. Yes, I am aware of that.

21 MR. BLUME: Okay. Let me mark Chevron Exhibit

22 1111.



25 / / /




1 BY MR. BLUME:

2 Q. Feel free to look through that, but does this

3 appear to you to be the Spanish version of your report

4 dated September 11th?

5 MR. SMALL: I'll object to the extent he said

6 he doesn't speak Spanish.

7 MR. BLUME: Right. I mean, just --

8 A. Yeah.

9 Q. On its face. I understand.

10 A. This is the first time I've actually seen this

11 in its Spanish format, and without doing a page-by-page

12 comparison, it appears to be the same report, yes.

13 Q. Okay. And I will -- I will proffer to you

14 that it's the version that was submitted to the Court

15 in Ecuador.

16 A. Okay.

17 MR. SMALL: Right. There's a court

18 certification of the translation on the back.


20 Q. That was my next question. Are you aware --

21 turn to the last page. You see that certification?

22 That certifies that it was a translation submitted to

23 the Court of Ecuador. You see that?

24 A. Yes, I do see that.

25 Q. Did you -- did anyone contact --




1 MR. SMALL: I think it certifies that it was

2 translated.

3 MR. BLUME: Right.

4 MR. SMALL: But I don't think it was certified

5 that it was submitted to the Court in Ecuador.

6 MR. BLUME: You're absolutely right. I'm

7 sorry.

8 A. Actually -- yeah. Right.

9 Q. Did anyone contact you with regard to the

10 translations?

11 A. No.

12 Q. Did anyone ask you questions about certain

13 words, certain phrases, certain terms during the course

14 of the efforts to translate?

15 A. No.

16 Q. Okay. Did you allow your signature to be

17 placed on the Spanish version?


19 A. My --

20 Q. Turn -- well, let me do it this way. Let's

21 turn your attention to the back of the -- or the second

22 page of your report.

23 A. The English version?

24 Q. Of either -- both versions, actually.

25 A. Okay.




1 Q. First in the back of the cover page in 1110

2 and then the back of the cover page in 1111.

3 A. Um-hum.

4 Q. Do you see that?

5 A. Yes.

6 Q. That is -- there's -- there's a date,

7 September 11, 2010, typewritten and then a handwritten

8 signature. Do you see that?

9 A. Yes.

10 Q. Is that your signature?

11 A. That is my signature.

12 Q. Okay. Did you sign twice, or did you sign

13 once and have that signature copied?


15 A. The -- I signed the signature page once when I

16 submitted my final report in English to counsel.

17 Q. Okay. And did anyone talk to you about

18 whether you were comfortable simply having them copy

19 your signature page from the English version to the

20 Spanish version?


22 A. Nobody talked to me about the production

23 logistics of getting the report translated into

24 Spanish, including the signature page.

25 Q. Okay. Have you ever -- sitting here today,




1 have you ever filed anything in an Ecuadorian court?


3 Q. Okay. Do you know what the rules and

4 obligations are for expert witnesses in Ecuador?

5 A. I have no idea.

6 Q. Did you -- did anyone discuss them with you

7 before you agreed to file your report in Ecuador?

8 A. No, they did not.

9 MR. SMALL: I'll object to that, just --

10 Q. Do you have any understanding of what

11 Ecuadorian law requires regarding expert witnesses when

12 they're appearing in the Ecuadorian court?


14 A. No, I do not.

15 Q. So you -- sitting here today, do you know

16 whether what you did in this expert report complies

17 with Ecuadorian law?


19 A. No, I do not.

20 Q. Did anyone explain to you that you're

21 attesting under Ecuadorian law by that signature to

22 the -- to the truth and accuracy of the Spanish version

23 of your report?


25 A. I don't recall being aware of that.




1 Q. Sitting here today, can you verify for me

2 and -- and state for me that the Spanish version of

3 your report is a true and accurate copy of your English

4 version?


6 You can answer.


8 A. The only way I could do that is if I

9 translated the Spanish version and compared it against

10 my English version, but other than that I assume that

11 it's the same version.

12 Q. So -- but are you able today to tell me

13 that -- that by -- that the report that is accompanying

14 your signature in the Court of Ecuador is a true and

15 accurate version of the report that you filed in

16 English in the United -- and prepared in the United

17 States?

18 MR. SMALL: Objection to form. He didn't

19 submit anything, and the report was submitted both in

20 English and in Spanish.

21 Q. The question is, Sitting here today, can you

22 certify for me and assure me that the Spanish version

23 of your report, which carries your signature, is a true

24 and accurate copy of the report that you wrote in

25 English?




1 A. Sitting here today, I cannot certify that to

2 you.

3 Q. So you don't know whether your report meets

4 any attestation requirements of Ecuadorian law or is

5 consistent with the standards for valid scientific

6 testimony in Ecuador or anything like that?


8 A. No, I do not.

9 Q. Okay. Did you ever hear of Charles

10 Calmbacher?

11 A. That name does not -- is not familiar to me.

12 Q. Are you aware that he -- he too prepared an

13 expert report in this case, whose report was submitted

14 to the Ecuadorian court in Spanish, although he had

15 prepared it in English, and are you aware, Mr. Allen,

16 that he testified under oath that in fact he never

17 authorized his report to be filed under his name in

18 Ecuador and in fact had never himself verified the

19 Spanish translation of his report? Are you aware of

20 that?


22 A. I am not aware of that.



25 Q. And in fact are you aware that, similarly,




1 plaintiffs' counsel had asked him for a blank signature

2 page, which he provided, which was then attached to a

3 report which he never -- which he never wrote? Are you

4 aware of that?

5 MR. SMALL: I'm going to object -- I'm going

6 to object to the suggestion that he got a blank -- that

7 he didn't submit a form, and you just -- you're

8 mischaracterizing what happened here.

9 MR. BLUME: I'm not sure I understand that,

10 but that's okay.

11 MR. SMALL: Well, you said that he submitted a

12 blank form.

13 Q. You signed -- did you sign the Spanish version

14 of the report?


16 Q. So you signed what is the back of -- the page

17 you signed, right here, page two of your report --

18 A. Um-hum.

19 Q. -- that has a typewritten date, was there

20 anything attached to that when you signed it?

21 A. This signature page dated September 11th,

22 2010, was submitted as part of my final report to

23 counsel. I was aware at that time that it was

24 submitted that it was going to be translated into

25 Spanish and filed with the Ecuadorian court.




1 Q. But you never saw that final submission in

2 Spanish, did you?


4 A. Prior to its submittal, no.

5 Q. Did you see it after its submittal until I

6 showed it to you today?

7 A. I had received it, but I actually didn't even

8 look at it.

9 Q. So you hadn't seen it until today?

10 MR. SMALL: Wait. Objection. He said he

11 received it.

12 MR. BLUME: But he hadn't looked at it.

13 Q. So you hadn't seen it until today; is that

14 correct?

15 A. I hadn't looked at the Spanish version of this

16 report.

17 Q. That was my question. Until today, you've

18 never looked at the Spanish version of the report?

19 A. Correct.

20 Q. Did you have enough time, Mr. Allen, to

21 complete your report and reach your conclusions between

22 21 August and 11 September?

23 A. Yes, I did. I produced this report.

24 Q. Did you have enough time to do everything that

25 you wanted to do to reach the conclusions within the




1 report?

2 A. You never have time to do everything that you

3 wanted to do, but I had enough time and enough

4 information and data that I felt was sufficient to

5 prepare this report.

6 Q. So there were more things -- you say you never

7 had time to do everything that you want to do. So were

8 there more things you wanted to do?


10 A. There are more things I could have done if I'd

11 had more time and more information, but these are --

12 this report was done in the span of about two and a

13 half weeks using the available information and data

14 that I had and my assumptions and procedures, and it

15 was sufficient to do what I needed to do.

16 Q. Before this report, had you ever -- and I've

17 asked you a similar question, but I'm going to ask it

18 with regard to the report.

19 A. Um-hum.

20 Q. Before this report, have you ever submitted a

21 report, an expert report, to any court or jurisdiction

22 in any arbitration, mediation, proceeding, anything?

23 A. Other than the expert report that was

24 submitted for the litigation that I referenced to you

25 earlier in the deposition, I have submitted many




1 reports to clients to be used for settlement or

2 litigation purposes that were prepared using the same

3 procedures and methods that were prepared under the

4 same tight schedules before.

5 Q. And by "the same tight schedule," you've

6 prepared a report similar to this within a two and a

7 half-week period before?

8 A. Yes. In fact, over the last year and a half

9 when working for this chemical bankrupt company, I and

10 a team of people did evaluations for 36 sites, and I

11 looked this up the other day for another purpose, but

12 it turned out that those evaluations were done on

13 average in a two- to two and a half-week time frame,

14 and they were very similar to the valuations that were

15 prepared here.

16 Q. Originally your report was supposed to be part

17 of a larger report; is that correct?


19 Answer if you know.

20 A. The packaging of the report was something that

21 was talked about early on in the engagement, and I knew

22 that there was a consideration that maybe all of our

23 expert reports would be put together in a package with

24 a cover letter, but ultimately it turned out that we

25 all submitted them as stand-alone reports.




1 Q. How did that decision come about?

2 A. What decision?

3 Q. The decision to submit separate reports as

4 opposed to one big comprehensive report.

5 A. I wasn't part of that decision-making process,

6 so I'm not sure.

7 Q. When were you told in the course of this

8 process that your report would be a stand-alone report?

9 A. I'm not really sure as I sit here today, but

10 it was well before I had submitted the report for

11 review and finalization.

12 Q. I place before you what's going to be marked




16 BY MR. BLUME:

17 Q. Before you is Exhibit 1112. Its cover sheet

18 is an e-mail on the top dated 25 August from Chris

19 Arthur to you.

20 A. Um-hum.

21 Q. "Subject: Re: Supplemental Information

22 Request No. 1." Do you see that?

23 A. I do.

24 Q. Turning to the -- the third page, which is

25 actually the second page, but the attachment, I guess,




1 to the e-mail, this -- what is this?

2 A. Oh, we're looking at page with the Bates

3 number 8061?

4 Q. Yes. Thank you.

5 A. I am looking at what was a draft of what I had

6 thought I would prepare -- an outline of my report. I

7 was asked to provide this, and this was during the

8 stages where they were considering how they would

9 format and package this report, and I was asked to

10 provide what the table of contents for my report might

11 look like.

12 Q. There are names after each bullet point: Tom;

13 Carlos/Barry/Kerry; Dan.

14 A. Um-hum.

15 MR. SMALL: Take a look -- take a minute to

16 read the document.


18 Q. Do you see those names?

19 A. Yes, I do.

20 Q. And who are those people?

21 A. Aside from me, I believe Tom refers to Tom

22 Golojuch. That's his name. Carlos is the Dr. Carlos

23 Picone. I'm not sure who Barry and Kerry are. They

24 may be Weinberg Group personnel. Dan I believe refers

25 to Dan O'Rourke. And TBD is TBD.




1 Q. And they were -- you said this is an outline

2 of your -- your original outline of your report?

3 A. No, it isn't, actually. I misspoke. This --

4 gosh, I don't know now who produced this, to be honest

5 with you. Oh, this was produced by Chris Arthur.

6 Okay. Okay. All right.

7 As I understand this e-mail in front of me,

8 this is an e-mail from Chris Arthur to me, and attached

9 is a rough draft outline that was discussed during the

10 teleconference call with Ted. So this is a work

11 product that came from The -- The Weinberg Group.

12 Q. So this is not an outline of your report?

13 A. No, it's not.

14 Q. Okay. This suggests an outline that you would

15 contribute to a larger report; is that correct?


17 Q. And was this how the -- the task was first

18 presented to you, that you would provide essentially a

19 chapter of a larger group?

20 A. That was one of the potential format options

21 that was talked about.

22 Q. What were some of the other potential formats?

23 A. Stand-alone report. Each of us producing

24 stand-alone reports.

25 Q. And was that discussed during this initial




1 team call on -- with Steven Donziger?


3 Q. Donziger.

4 A. Well, I'm not sure that this team call that's

5 referenced here included attorneys. An earlier e-mail

6 suggested that this team call did not include

7 attorneys, so I -- I can't as I sit here today recall

8 if the attorneys were on this telephone call or not.

9 Q. And did you participate in the discussion

10 about whether a unified report would be more -- would

11 be acceptable as opposed to individual reports? Did

12 you have an opinion on that?

13 A. I really didn't one way or another.

14 Q. Eventually it was decided, presumably, to file

15 separate reports; is that correct?


17 Q. Who made that decision?

18 A. I'm not sure who did make that decision.

19 Q. When were you told that your report would be a

20 stand-alone report?

21 A. As I --

22 MR. SMALL: Objection. Asked and answered.

23 A. Yeah. As I indicated earlier to you when you

24 asked me that question, I'm not sure what point in the

25 process, but I do know that it was before I had




1 submitted my draft report for review.

2 Q. Okay. The top of that -- or the top third of

3 that page, it says, "An Estimate of the Damages to the

4 People and Environment of the blank Caused by Chevron

5 Corporation." You see that?

6 A. I do.

7 Q. Sitting here today, you're not offering any

8 opinion, are you, as to whether or not the damages in

9 the former concession area were caused by Chevron, are

10 you?


12 A. No, I'm not.

13 Q. Okay. And that's not in any way part of your

14 opinion or your report, the causation of any damages

15 within the former concession area; is that correct?


17 A. Who caused the damages.

18 Q. Yes. You're not opining or purporting to

19 opine as to who caused any of the damages in the former

20 concession area; is that correct?



23 You can answer.






1 Q. The first bullet point -- well, it says under

2 "Introduction," "Scope of analysis: An independent

3 assessment of the damages to human health and

4 environment."

5 Is it fair to say that's broader than what you

6 specifically were asked to do?


8 Q. Or let me -- let me withdraw that question and

9 rephrase it.

10 Are you sitting here today and opining as to

11 any damages in the former -- any damage to human health

12 and the environment in the former concession area?

13 A. I am opining -- as I sit here today, I am

14 opining on the damages and necessary remediation of the

15 soils, sediment, and groundwater in the concession

16 area.

17 Q. Okay. So to the extent that bullet point goes

18 beyond that, that's outside the scope of your

19 expertise?


21 Q. Okay. It then goes on to say, "Not just a

22 rebuttal to the Cabrera report." Do you see that?

23 A. I do.

24 Q. What does that mean?

25 A. It was made clear to us -- or made clear to me




1 in conversations with Ted Dunkelberger that what was

2 being asked for here was not just simply a critique of

3 the Cabrera report but to the extent possible there was

4 a desire to have an independent valuation done using

5 Cabrera as a starting point but then I was free to use

6 any other source of information that I felt was

7 appropriate to develop my valuation. So this isn't

8 looking at Cabrera's report and rebutting the work that

9 he did so much as it was using his information to the

10 extent that I found it was useful and valid to develop

11 my own valuation.

12 Q. And while you were free to use any other

13 source of information that you felt was appropriate, in

14 fact you only were able to use the sources of

15 information that were provided to you by The Weinberg

16 Group; is that correct?


18 A. I used sources of information that were

19 provided to me by The Weinberg Group which I found to

20 be sufficient to prepare this valuation.

21 Q. But if -- if there are documents related to

22 this litigation that were not provided to you that you

23 asked for but were not provided, obviously they didn't

24 form the basis of your opinion; is that correct?

25 A. Not in the report as it was produced for




1 September 11.

2 Q. In any other way?

3 A. No.

4 Q. Okay. You talk -- in the first bullet point

5 it says, the second sentence, "Justify choice of

6 standard; probably want to go beyond Ecuador standard

7 of 1000 ppm TPH." You see that?

8 A. Um-hum.

9 Q. What does it mean, "justify choice of

10 standard"?

11 A. Well --

12 MR. SMALL: Objection. He didn't write this,

13 either.

14 A. And that was going to be my -- my answer to

15 you, that I --

16 Q. What do you understand "justify choice of

17 standard" to mean?

18 A. Well, I guess he was asking me to -- if I was

19 picking a cleanup level, to have a justification for

20 it. Well, that's a no-brainer as far as I'm concerned,

21 which I would have done anyway in preparing a

22 valuation. I would have looked to have seen what would

23 have been an appropriate standard to apply here and --

24 and what was the justification for doing that.

25 Q. The next -- the next phrase was The Weinberg




1 Group telling you that you'd probably want to go beyond

2 Ecuador standard of 1,000 ppm TPH?


4 Q. What was the point of that, in your view?


6 A. Well, at this stage of the game - we're

7 talking very early in the process, when I had not had a

8 chance to look at an adequate amount of information,

9 much information at all, actually - this probably

10 relates to a discussion of, okay, how are we going to

11 look at target cleanup levels, what are we going to

12 base them on, but ultimately the decision to do all of

13 this was my decision and my decision alone because I

14 was the one that had to prepare this valuation, and I

15 needed to know that I could find materials that would

16 justify whatever standards were chosen. So these were

17 suggested, but at this point in time I didn't feel

18 compelled to use these.

19 Q. By -- did you understand by going beyond the

20 Ecuadorian standard of 1,000 ppm, that that meant using

21 a standard that required less -- a smaller value of

22 parts per million?


24 Q. Is that what you understood "going beyond"

25 meant, to use a standard less than 1,000, not greater




1 than?

2 A. I'm not sure I would have taken that to mean

3 going less than or beyond. I'm not sure what he was

4 referring to here. He wrote it. I didn't.

5 Q. Well, the next sentence says, "May argue for

6 using U.S. standard (which is 100 ppm in California,

7 home state of the defendant)." Do you see that?

8 A. I -- I see it, yes.

9 Q. And did you -- when you read this, did you

10 understand that to mean that by going beyond the

11 Ecuadorian standard -- or the supposed Ecuadorian

12 standard of 1,000 ppm, that they were intending -- or

13 suggesting that perhaps you go to a 100 ppm standard;

14 is that correct?

15 A. As it's written there, I guess that could --

16 could be the assumption, yes.

17 Q. And that would -- by -- by using a standard

18 lower than 100 -- 1,000 ppm, that would inevitably

19 increase the cost of remediation, would it not?

20 A. More than likely.

21 Q. It then goes on to say "916 waste pits." You

22 see that?

23 A. Um-hum.

24 Q. So they provided you with the number of waste

25 pits? Or is this the first you heard of the 900 -- of




1 916 waste pits?

2 A. I'm not sure if this is the number or not. I

3 know that earlier on in -- I had had a chance to read

4 Cabrera, so I know that it was certainly in that -- in

5 that ballpark. In fact --

6 Q. If -- I'm sorry.

7 A. Cabrera had identified 916 or 917 in his

8 report.

9 Q. I was going to say, in fact you used more

10 waste pits, right? You added a waste pit to this 916

11 and used 917, did you not?


13 A. One -- one more pit, but it was a problem with

14 math that I had with Cabrera looking at the way he

15 calculated the pits. I mean --

16 Q. What do you mean, a "problem"? I'm sorry.

17 A. Well, at one point I believe he stated 916 and

18 then in another area of his report he stated 917. It

19 was plus or minus a pit, but it was over 900 pits.

20 Q. But you chose to go with the larger number,

21 right?

22 A. I chose to go with one more pit.

23 Q. Did anyone from The Weinberg Group instruct

24 you to go with one more pit, 917 instead of 916?





1 You can answer, please.

2 A. Nobody from The Weinberg Group or from

3 plaintiffs' counsel, including Mr. Donziger, told me

4 how many pits to use or what values to use in my

5 valuation. I wouldn't have allowed it, to be honest

6 with you.

7 Q. So you just chose on your own to use the

8 greater number of pits?

9 A. That was my determination, yes.

10 Q. Turn back to Chevron Exhibit 1110, your

11 report, if you would, for a minute, and we'll do a

12 short little stint and then take a break.

13 A. Okay.

14 Q. Sitting here today -- well, sitting here

15 today, describe -- define for me the scope of your

16 engagement. And I know -- we'll get to -- I know kind

17 of how it's written in the report. I'm just curious if

18 you were at a cocktail party, how would you define the

19 scope of your engagement?

20 A. I'd have to laymanize it more than I'm going

21 to for you, but --

22 Q. Well, I appreciate that, sir. Usually it's

23 the other way around.

24 A. Yeah. My understanding of the scope that I

25 was asked to do was to develop an independent valuation




1 or a cost estimate to remediate the contaminated soils,

2 sediment, and groundwater from the well pits or well

3 fields and the production stations in the 1700-square-

4 mile area known as the concession area in the

5 Ecuadorian Amazon, that I was to do this as

6 independently as possible, and that I was to start with

7 Cabrera's report and his appendices and review that but

8 that I was free to go beyond that report and use

9 whatever sources and resources that I felt were

10 appropriate that would support my independent

11 valuation, which is exactly what I did. So while I

12 reviewed Cabrera's report and used certain pieces of it

13 that I felt were appropriate, I also used a lot of

14 other information and data from other resources.

15 Q. And turning to Page 21 and 22 and 23 of your

16 report.

17 A. Yes.

18 Q. This is Section 7, the bibliography.

19 A. Yes.

20 Q. This -- is this an exhaustive list of all of

21 the materials upon which you relied in reaching your

22 opinions in this report?

23 A. Yes.

24 Q. Okay. Turning back to Page 1 of your report,

25 sir, Section 1.1, this defines the scope of your




1 engagement, does it not?

2 A. Yes.

3 Q. And it reads, quote, that you were retained

4 "on behalf of plaintiffs' counsel in the Aguinda

5 litigation to assist in developing an independent

6 evaluation and estimate of the potential costs for the

7 remediation of environmental damages in the Concession

8 area in the Oriente region of Ecuador." You see that?

9 A. I do.

10 Q. Does that encapsulate exactly what you were

11 describing earlier?

12 A. It does by virtue of going on and reading the

13 next sentence.

14 Q. Okay. And the next sentence reads, "DCA" --

15 which is you, "DCA's task was limited to the

16 development of potential costs for the remediation of

17 contaminated soil and groundwater at well sites and

18 production stations, and sediments in waterways (e.g.,

19 rivers, streams, marshes, et cetera) associated with

20 the oil exploration and production operations conducted

21 by the Texpet-Petroecuador Consortium in the Concession

22 area."

23 All of that together defines the scope of your

24 engagement in this case?

25 A. Yes.




1 Q. And does either your testimony today or -- by

2 your testimony today or by anything else written in

3 your report, do you purport to extend the reach of your

4 opinions or offer any other opinions except that which

5 is defined within the scope of your engagement on pages

6 1 and 2 of your report?

7 A. As I sit here today, I'm opining on what is

8 written here as my scope of work; however, in the

9 future I may be asked to expand that. I have no

10 knowledge of that, nor have I been asked to do that at

11 this point, but I reserve the right to do that.

12 Q. Sure. Sure. And I don't want to take away

13 future work from you, but sitting here today, you

14 purport only to opine on that which is set forth in --

15 A. Yes.

16 Q. -- Section 1.1; is that correct?

17 A. Yes.

18 Q. What -- in your mind, going to the first

19 paragraph, what is an independent evaluation mean -- or

20 what does an independent evaluation mean?

21 A. An independent evaluation means to me that I

22 am left to my own devices to develop a valuation based

23 upon what I feel is adequate information and data using

24 what I use and consider to be as best professional

25 practices and standards, and most importantly it's




1 independent in the sense that I'm not swayed or

2 otherwise directed to develop a valuation that's going

3 to come out with a set of numbers that's something that

4 I'm not comfortable with or can support.

5 In the case here, I made it very clear from

6 the beginning that if I was going to be asked to do an

7 independent evaluation, that it would be independent

8 and that I would not accept any kind of input from

9 West- -- from The Weinberg Group, from plaintiffs'

10 counsel, or anybody outside of my team of professionals

11 as to where they thought the number should be or I

12 should consider going in this route for a particular

13 aspect of the evaluation. That to me would not have

14 been acceptable. That's not how I do my work.

15 And -- and -- I should add, and at no point in

16 time did I receive such direction or input or

17 suggestion on any of the numbers or work that I did for

18 this report. This is my independent work product.

19 Q. Did anyone say anything to you in the course

20 of your -- of the beginning of your engagement that led

21 you to feel as though it was important to stress that

22 point?


24 A. No. That's what I tell not just these folks

25 who I told this to but I tell this to all of my clients




1 that I get involved with. This is how I do my work. I

2 do it to high professional standards and ethics.

3 Q. When you received your early copies of the

4 Cabrera report from The Weinberg Group, how did -- and

5 I assume you got that from Ted?

6 A. I did.

7 Q. How did -- what did he say about it? How did

8 he describe that report to you as to what it was and

9 what it purported to be?

10 A. He just said that the starting point for my

11 valuation would be this report produced by Richard

12 Cabrera, who was a court-appointed expert, I believe he

13 said. He said it was an extremely large report, many

14 appendices, that he just wanted me to take a look at

15 the summary or executive summary, the text of the front

16 piece of the report, and get a sense of what work had

17 been done and then think about how I might do a

18 valuation that would be, to the maximum extent

19 practicable, independent of Cabrera's report and

20 conclusions.

21 Q. Did he tell you at all that the conclusions

22 reached in the Cabrera report had been challenged by

23 rebuttal experts from Chevron?


25 A. I don't recall he ever said that. He might




1 have said it had been challenged, but he did say that

2 there was a court order that had asked for another set

3 of independent environmental damages valuations be

4 submitted to the Court by September 16th.

5 Q. Did he tell you that there were questions

6 raised about the validity of some of the underlying

7 data in the Cabrera report?

8 A. I don't recall anything that he said

9 specifically with regards to the data validity.

10 Q. Did anyone at any point in time during the

11 course of your engagement suggest to you that there had

12 been questions raised about the validity of the data

13 that under- -- underlaid the Cabrera report?


15 You can answer.

16 A. I don't recall. I might have seen something

17 to that effect on one of the blogs on the Internet, but

18 it didn't matter to me. I accepted the data at face

19 value. My assignment was not to do an exhaustive QA/QC

20 or data validation exercise on the data. I accepted

21 that information and data at face value.

22 Q. You talk about an estimate of the potential

23 costs.

24 A. Um-hum.

25 Q. What do you mean by an "estimate of a




1 potential"?

2 A. What I mean by that is that given the stage of

3 investigation and remediation down there, it's still at

4 the very infancy, in my opinion, if you look at it in

5 the context of how you would remediate a contaminated

6 site under either CERCLA remedial action or RCRA

7 corrective action. So as I sit here today --


9 THE WITNESS: Sorry. Here goes the acronym.

10 Thank you. CERCLA is C-E-R-C-L-A, or Superfund, and

11 RCRA is R-C-R-A, Resource Conservation and Recovery

12 Act. Those are major pieces of environmental

13 legislation in the United States that have programmatic

14 procedures and guidance for doing cleanup of

15 contaminated property -- contamination in the

16 environment.

17 I've got to rewind my tape here.

18 BY MR. BLUME:

19 Q. You -- the question was, Define for me what

20 you mean by an estimate --

21 A. Oh.

22 Q. -- of a potential.

23 A. Right. Thank you. At this stage of the game,

24 I don't know what the ultimate remedy is going to

25 consist of down there. I don't know what the remedial




1 technologies are going to be that are ultimately

2 chosen. I don't know what the target cleanup level is

3 going to be. So in a sense this is a conceptual

4 estimate of the potential costs to clean up the damages

5 to the soil, sediment, and groundwater based upon the

6 information and data that I had available at this point

7 in time combined with my own knowledge and experience

8 and that of my team.

9 Q. And no one made you aware of any ongoing or

10 current remediation efforts that were going -- that

11 were happening within the concession area, did they?


13 A. The only thing I'm aware of with respect to

14 ongoing or current is what I believe is a program run

15 by -- I think it's PEPDA, P-E-P-D-A, which is an

16 Ecuadorian group that is in the process of remediating

17 petrol contamination in the -- Ecuador, but I don't

18 have any details on that.

19 Q. An evaluation of current -- excuse me.

20 There's a knock on the door.

21 MS. GRAY: It's probably lunch.

22 Q. You mentioned that it's -- that your

23 evaluation was conceptual or estimate of potential

24 cost --

25 A. Um-hum.




1 Q. -- because they were -- and correct me if I'm

2 wrong, but they were essentially costs associated with

3 efforts that had not yet begun; is that correct?


5 Q. That's what made them potential?

6 A. Potential in the sense that you have future

7 remedial costs for as-yet-undefined -- as-yet -- an

8 as-yet-undefined remedy.

9 Q. Okay.

10 A. Ultimate remedy.

11 Q. Would that -- would you have conducted the

12 same analysis had you been evaluating current ongoing

13 remediation efforts?


15 A. Clarify what you mean by the "same analysis,"

16 please.

17 Q. Sure. If someone had asked you to do an

18 evaluation of the remediation costs associated with an

19 ongoing remediation, would you have undertaken the same

20 analysis?


22 Q. Or would -- or -- let me -- let me even ask it

23 differently. If someone had asked you to assess the

24 remediation costs associated with an ongoing

25 remediation effort, would you have been limited in




1 your -- in your opinion to an estimate of potential

2 costs, or could you have been more definite in what

3 those costs would have been?


5 A. If I was evaluating the costs for an ongoing

6 or current remediation effort, I would have a different

7 set of information and data to go on. It might impact

8 that. I guess I would have to think about that a

9 little bit more. The data would be slightly different

10 in terms of having costs for the ongoing remediation

11 program available to me and it might be more of an

12 audit as opposed to looking at the development of

13 future costs to clean up contamination.

14 Q. So arguably it would have been more accurate?


16 A. Well, I would -- I'm sorry.

17 MR. SMALL: No. Go ahead. Go ahead. You can

18 answer.

19 A. I would argue that point because I don't know

20 unless I actually got a chance to look at that

21 information and data to see what the value or the -- of

22 that information and data is in terms of the volume and

23 the quantity and the accuracy and everything else.

24 Q. Okay. And you didn't look at any such data in

25 this case, did you?




1 A. No, I didn't.


3 Q. I'm sorry. Go ahead.

4 A. I'm sorry. No, I did not.

5 Q. Okay. You mentioned CERCLA and RCRA earlier.

6 Those are the acronyms that you talked about. Are U.S.

7 oil field sites in the United States remediated under

8 CERCLA or RCRA?

9 A. Petroleum is excluded under CERCLA as a

10 hazardous waste.

11 Q. Petroleum as in refined petroleum or crude?

12 A. I believe that's -- it's nonspecific. It's

13 petroleum. I'd have to go back and look at the exact

14 definition of petroleum in CERCLA.

15 Q. Are you -- do you purport to be an expert in

16 CERCLA?

17 A. I am an expert in CERCLA, but given the broad

18 range of contaminants that CERCLA covers, I'd have to

19 just check with the regulations to see what -- what

20 specifically is covered there as contaminants.

21 Q. So you're not aware whether CERCLA

22 specifically excludes any contaminant?

23 A. I'm sorry?


25 Q. Well, let me ask you this: Are you an expert




1 in petroleum-based remediation?


3 A. I wouldn't claim to be an expert in petroleum-

4 based remediation. I've certainly done work where

5 petroleum-based hydrocarbons have been part of the

6 problem that needed to be investigated and remediated.

7 Q. Okay. When you say you were part of -- of

8 efforts -- petroleum-based remediation efforts, would

9 you consider that a significant part of your

10 background, or -- or not?

11 A. Define "significant." Are you talking

12 percentage or --

13 Q. How would you define -- if you were to

14 define -- if you were to look back upon your career --

15 A. Um-hum.

16 Q. -- would you consider the majority of your --

17 majority, the most significant part, of your expertise

18 to be in petroleum-based remediation --


20 Q. -- or in some other area?


22 A. You know, I have worked on many different

23 cases or engagements involving petroleum as it relates

24 to petroleum refineries, bulk storage facilities,

25 transportation systems, former manufactured gas plants,




1 petroleum as it relates to automotive maintenance

2 facilities. I mean, it's -- it's just scattered

3 throughout my entire range of cases that I've been

4 involved with over a broad range of industries and

5 broad range of contaminants.

6 Q. Okay. And then finally just going back to the

7 potential costs, sitting here today, were you aware

8 that -- that the detailed cost, procedures, analytical

9 data, and comments on PEPDA, P-E-P-D-A's work in

10 Ecuador were part of a public court record? Were you

11 aware of that?


13 A. No, I was not.

14 Q. Okay. Would it have been helpful to have been

15 either told this or received this information to the

16 analysis that you performed in this case?


18 A. It might have been, but I would have -- I

19 can't tell you as I sit here today if it would have

20 been helpful or not unless I had reviewed the

21 information.

22 MR. BLUME: Okay. Why don't we take a break.



25 (A lunch break was taken.)





2 1:16. We are back on the record with Douglas Allen.

3 BY MR. BLUME:

4 Q. Mr. Allen, before you were engaged in this

5 matter, did anyone ask you whether you spoke Spanish?

6 A. No, they didn't.

7 Q. Were they -- at some point did someone ask, or

8 was there just never a discussion about your language

9 capabilities?

10 A. I don't recall any discussion about my

11 language capabilities.

12 Q. Okay. Let me turn, if you could, back to

13 Exhibit 1110, your report, specifically Page 3, Section

14 1.4, "Limitations and Uncertainties of Valuation." Do

15 you see that?

16 A. I do.

17 Q. Okay. The first paragraph talks -- it's one

18 paragraph, actually, but the first few sentences on

19 Page 3 talk about the hundred expert reports, the tens

20 of thousands of chemical samplings, time constraints.

21 It then goes on to say, "The documents reviewed and

22 relied on by DCA represent a small percentage of the

23 documents cited in the Cabrera reports and annexes and

24 an even smaller percentage of the documents submitted

25 to the Court during the litigation."




1 Do you see that?

2 A. I do.

3 Q. I mentioned right before the break that many

4 of the documents related to detailed costs and

5 procedures and analytical data about PEPDA's work and

6 the current and ongoing remediation efforts in the

7 former concession area were publicly available. Do you

8 remember that question?

9 A. I do.

10 Q. And you mention here that -- that you reviewed

11 even a smaller percentage of the documents submitted to

12 the Court during this litigation. Why was that?


14 Q. Why did you only review a small percentage of

15 the documents cited by Cabrera and even a smaller

16 percentage of documents submitted to the Court?

17 A. Frankly, a large part of it was due to the

18 time constraints under which we were doing this

19 valuation. As the first sentence indicates, and this

20 was simply a description taken from the Ecology and

21 Energy Business document where it was represented that

22 there are hundreds of expert reports and tens of

23 thousands of sampling data. I suspected that given

24 that this case had gone on for a long time, that there

25 would be a significant universe of documents. I also




1 recognized that in a span of two and a half weeks it

2 would only be possible to review a small percentage of

3 them, but this is not unusual. This is what I

4 typically end up dealing with in cases outside of this

5 one. You never have the opportunity to thoroughly

6 review the entire universe of documents that are out

7 there in the time frame that you have to do the

8 assignment, whether it's for bankruptcy claim

9 evaluation, mergers and acquisitions, insurance

10 recovery, whatever. This case was no different.

11 Q. How did you -- when you say there -- you

12 only -- well, let me put it this way: How do you know

13 that your -- you reviewed only -- even a smaller

14 percentage of documents submitted to the Court? Were

15 you made -- was it made known to you how many

16 documents, what type of documents had been submitted,

17 what information was even potentially out there?

18 A. No, it didn't, but, you know, I simply

19 recognize that when you have a hundred expert reports

20 in a case, there's got to be a voluminous amount of

21 documents submitted, and certainly they would have been

22 submitted to the Court during the litigation process,

23 and so quite frankly, I knew I was only going to end up

24 reviewing a small percentage of those.

25 Q. To the extent Cabrera relied on other




1 documents, it's fair to say you relied on Cabrera's

2 interpretation of that material; is that correct?


4 A. To a certain extent, maybe, but Cabrera

5 referenced documents that I didn't see in -- anywhere

6 in the rest of his document where he had expressly

7 relied upon them to develop his numbers.

8 Q. And by relying on them, he most undoubtedly

9 interpreted them in one manner or another; in other

10 words, you relied on Cabrera's reliance on those

11 documents?


13 You can answer.

14 A. Yes. I mean, one problem I had with Cabrera's

15 report was that it wasn't well referenced in terms of

16 if he was stating something, where that cite came from

17 or what was the basis for that. And it made it

18 difficult for me to know exactly what he was basing his

19 opinion on other than having identified his universe of

20 documents that he looked at up front.

21 Q. And for those -- for that information which

22 you couldn't -- about which you could not tell what

23 Cabrera was relying on, did you simply reject that

24 information or just accept it as he -- as he put it --

25 put it forth?




1 A. Well, it depended upon the information that I

2 was looking at, the specific information I was looking

3 at. If it was something that I -- because of my own

4 knowledge and experience I felt was valid and accurate,

5 I accepted it. If it was something that I just

6 disagreed with, I probably didn't use it.

7 Q. You've never been to Ecuador; is that correct?

8 A. I have not.

9 Q. So you have no experience in the oil

10 operations in the concession area, firsthand

11 experience, do you?


13 A. No, I do not.

14 Q. So to the extent Cabrera talked about the

15 operations in the former concession area, talked about

16 facts about the number of pits and all this, you had no

17 independent basis to assess that information; instead

18 you just accepted it?


20 A. Cabrera had descriptions of the operations of

21 the Ecuadorian oil field. I don't know because he

22 didn't explicitly reference those descriptions where he

23 got the information from. However, I did find in other

24 documents, specifically the documents developed by

25 Chevron's own consultants, where they were -- they did




1 have descriptions of the oil field operations and what

2 took place at them, and I used that information as

3 well, so --

4 Q. And -- I'm sorry.

5 A. So the reality of it was Cabrera may have

6 gotten his information from those documents. I can't

7 tell because he didn't reference it. But if he did or

8 didn't, I still used other sources to gather

9 information and data.

10 Q. To the extent you say "Chevron's consultants,"

11 you're not referring to any of the experts that were

12 hired to rebut the -- the Cabrera report; is that

13 correct?


15 Q. Are you familiar with the judicial

16 inspections?

17 A. Insofar as they were described by Cabrera,

18 yes.

19 Q. So you're -- and did you review any of the --

20 any of the experts' or consultants' reports that went

21 into the judicial inspections?

22 A. I did not.

23 Q. So with regard to the judicial inspections and

24 the data that -- that came from those, you relied on

25 Cabrera's interpretation of those in your report; is




1 that correct?


3 A. I relied upon Cabrera's recitation of the

4 sampling results that came from the judicial

5 inspections, which I understood to be -- were sampling

6 episodes by both the plaintiffs and the defendant

7 parties.

8 Q. Why didn't you go and look at some of that

9 data yourself?

10 A. Basically there was a time factor, and as I

11 said earlier on, my scope wasn't to do an analysis of

12 the quality assurance or quality control of the data

13 that was generated. I accepted that data.

14 Q. I've looked through your bibliography, and you

15 mention documents such as HBT Agra --

16 A. Um-hum.

17 Q. -- the Fugro report, and what you don't

18 mention is something you refer to in your report as a

19 database that you referenced?

20 A. Yes.

21 Q. What was that database?

22 A. That was a data file that I received -- or a

23 database that I received that, to my understanding,

24 contained data that was collected during the judicial

25 inspections, and I believe Cabrera data was also in




1 there as well. It was an Excel file that was

2 accessible.

3 Q. And by looking at that Excel file, could you

4 assess that data at all, where it was -- where it was

5 obtained, the procedures under which it was obtained,

6 the reliability of the data at all, or was it just a

7 series of numbers?


9 You can answer.

10 A. Well, it was somewhere in between. The

11 database contained fields that identified the sampling

12 data, and from those fields we could determine that

13 there were samples collected from the various media:

14 Soil; sediment; groundwater. We could tell that there

15 were samples collected from specific pits by virtue of

16 the identifier for the database. We could tell to a

17 certain extent at what depth that data was collected,

18 who it was collected by, because there was a data field

19 in there. There were some fields that gave the

20 coordinates of that sampling, and as I indicated, we

21 attempted to decipher what that coordinate system was

22 and were unsuccessful at it. And there were other

23 additional data fields in there as well that I just

24 can't recall as I sit here today.

25 Q. Looking at that data field, are you stating




1 today with a degree of scientific certainty that you

2 are attesting to the scientific accuracy of that data?


4 A. No, I'm not attesting to the scientific

5 accuracy of the data that I received in that data file.

6 Q. So to the extent Cabrera relied on that data,

7 you are -- you presumably assume that Cabrera at least

8 understood or somehow tested the scientific accuracy of

9 that data; is that correct?


11 A. I don't know that one way or the other. It

12 didn't matter to me in doing my valuation. I used that

13 data; I used data out of ABT Agra and out of Fugro-

14 McClelland and -- and other data to do my valuation,

15 so, you know, whether that was scientifically valid,

16 it -- again, that was not part of my scope to determine

17 the validity of that data, as it's not part of my scope

18 to do that if I review data for doing a valuation of a

19 site that's owned by a bankrupt chemical company or

20 doing valuations of a site that are owned by a company

21 that wants to sell its property to another seller -- to

22 another buyer.

23 Q. So -- so just so I'm clear, so in valuating or

24 reaching a conclusion to a degree of scientific

25 certainty on the cost of remediation, the legitimacy or




1 accuracy of the underlying data in this case was not

2 something you considered; you accepted the data and did

3 your analysis on top of the data regardless of whether

4 it was accurate or inaccurate?

5 MR. SMALL: Objection to form. There's no --

6 been -- it's not a question of whether it's accurate or

7 inaccurate. You're asking what he used the data for,

8 and you're characterizing the data.

9 You can answer.

10 Q. You can answer. You want me to read that

11 question again?

12 A. Please.

13 Q. In evaluating or reaching a conclusion to a

14 degree of scientific certainty, as -- as you are today

15 as an expert --

16 MR. SMALL: I object to that, too. Go ahead.

17 You can continue.

18 MR. BLUME: What part of that do you possibly

19 object to?

20 MR. SMALL: Well, what are you -- what

21 scientific certainty?

22 Q. You know what? Are you -- as an expert -- as

23 an expert opinion --

24 MR. SMALL: What scientific certainty? I'm

25 asking a question. U.S., international, what?




1 Q. As an expert opinion, are you -- are you

2 reaching your conclusions today to any degree of

3 scientific certainty or not?

4 A. I will tell you what I told you earlier today.

5 The valuation that I have produced is based upon the

6 information and data that I reviewed, the best

7 professional practices that I believe were needed to

8 put this valuation together, and the appropriate

9 standards; and the valuation that I produced is, in my

10 opinion, a solid valuation given the conditions under

11 which I created that.

12 So if you're asking me if there's a scientific

13 certainty associated with that, I can't give you a

14 percent of scientific certainty, which is what you're

15 implying. I can tell you that it is a val- -- in my

16 opinion, it is a valid valuation based upon information

17 and data that I reviewed and a process that I follow,

18 this case and for every case that I do this kind of

19 work for, and therefore I stand by my result.

20 Q. How about without a percentage? How about a

21 reasonable degree of scientific certainty? Are your

22 opinions today based upon a -- made with a reasonable

23 degree of scientific certainty?

24 A. I believe they are within the limitations and

25 uncertainties under which I did this valuation.




1 Q. So they are, qualified by how you just

2 qualified them?

3 A. I believe that's what I just said.

4 Q. Okay. So based on a reasonable degree of

5 scientific certainty with those qualifications, can --

6 did you -- are you reaching an opinion today regardless

7 of -- or without testing the underlying validity of the

8 data upon which Mr. Cabrera relied?


10 You can answer.

11 Asked and answered.

12 A. As I --

13 MR. SMALL: Go ahead. You can answer it if

14 you understand it. Go ahead.

15 Q. Do you understand the question? Because I'll

16 break it down.

17 A. Yeah. Go ahead.

18 Q. There's Cabrera -- you relied on the Cabrera

19 report, yes?

20 A. I relied on parts of the Cabrera report, yes.

21 Q. Okay. And within those parts of the Cabrera

22 report, Cabrera himself relied on underlying data; is

23 that correct?

24 A. He appears to have, yes.

25 Q. Okay. And you made no efforts to




1 independently verify that underlying data; is that

2 correct?


4 Q. Okay. So if I were -- if I asked you today to

5 assume hypothetically --

6 A. Um-hum.

7 Q. -- that that underlying data was suspect or

8 invalid, okay, does that in any way impact your ability

9 to opine in the way that you did on those parts of the

10 Cabrera report?


12 A. I have no knowledge that that underlying data

13 is suspect.

14 Q. It's a hypothetical, sir. I'm not asking you

15 whether it is or not, okay, so be -- listen to my

16 question.

17 Assume with me, as you can as an expert,

18 assume with me that the underlying -- that the data

19 upon which Mr. Cabrera relied is proven to be

20 unreliable.

21 MR. SMALL: All of the data? Some of the

22 data?

23 Q. The data supporting the parts of the Cabrera

24 report that you relied upon. Assuming the data

25 underlying the parts of the Cabrera report upon which




1 you relied is shown to be unreliable, would that impact

2 your opinions here today?

3 MR. SMALL: Objection to form. What -- what

4 do you mean by "unreliable"?

5 Q. I'm sorry. Do you understand my question? It

6 doesn't really matter if he does, but you have to.

7 MR. SMALL: It does, actually, but --

8 Q. Do you understand my question?

9 A. I believe I do.

10 Q. Okay.

11 A. And I'm thinking about that for a moment.

12 Q. All right.

13 A. The -- the data that was used by Cabrera was

14 sampling and analytical data.

15 Q. I didn't ask you what the data was. I asked

16 you to assume that data was unreliable. Can you do

17 that with me?

18 A. Well, when you say "assume that data," I need

19 to know what data you're referring to, because it's not

20 just sampling and analytical data that was presented in

21 Cabrera's report. There were specifications on well

22 sites, on -- on the dimensions of pits. There was also

23 data, if you will, on depth of contamination.

24 Q. Assume it's all --

25 A. There's a range of --




1 Q. Assume it's all unreliable.

2 A. Assume it's all unreliable?

3 Q. Assume -- assume the depth of the pits, the

4 number of sites, the sampling methodology, all of that

5 was shown to be unreliable. That's -- that's what I'm

6 asking you to assume.

7 MR. SMALL: So you're saying -- you're asking

8 him to assume --


10 MR. SMALL: -- the data he relied upon is

11 unreliable; then his report is unreliable.


13 MR. SMALL: It's a ridiculous hypothetical.

14 A. I understand your hypothetical.

15 Q. Okay. Assume --

16 A. You're saying that none of the data is

17 reliable. None of it.

18 Q. Assume that the data upon which Mr. Cabrera

19 relied was shown to be unreliable. Are you with me on

20 this?

21 A. I'm with you.

22 Q. Okay. Does -- would that impact the

23 conclusions you reach in your expert report?


25 A. If you're asking me to assume that -- I'm




1 sorry. I need to make sure I clarify this with you.

2 MR. SMALL: Yes.

3 A. Because this is important.

4 Q. No question, it's important.

5 A. When you say "data," you mean one thing. When

6 I say "data," I may mean something else, and data to

7 me --

8 Q. What do you mean by -- what do you mean by

9 "data"?

10 A. I mean any numbers that were produced and/or

11 used by Cabrera. That includes analytical sampling

12 data of the various environmental media. That

13 concludes [sic] the "data" that he used that came out

14 of his research of U.S. EPA Superfund sites' remedial

15 technologies for both soil and groundwater. That

16 includes the assumptions that he used on the area -- of

17 the average area of well site pits from which he

18 calculated the total average area or the total area of

19 well pits that needed to be remediated. That includes

20 his assessment of the total number of well sites,

21 production stations, and the pits associated with each

22 one of those. That includes his numbers used in his

23 actual calculations to come up with his estimate of

24 damages. Is that what you are defining as "data"?

25 Q. Yes, sir.




1 A. Well, if that's the case, then I would

2 probably have a problem with the numbers that I came up

3 with.

4 Q. Probably?

5 A. More than likely. But that's not the only

6 data that I used to do my valuation.

7 Q. You said you relied on Cabrera's presentation

8 of EPA data; is that what you said?

9 A. I relied -- no, I didn't rely upon Cabrera's

10 representation --

11 Q. I thought you said Superfund.

12 A. Let me back up.

13 Q. Okay.

14 A. Cabrera used, he accessed U.S. EPA Superfund

15 databases to get his information on appropriate

16 remedial technologies to take care of soil and

17 groundwater. He used the costing data that was in

18 those databases. Which, by the way, it's already been

19 proven that those are a valid cost, so --

20 Q. For crude oil remediation?

21 A. I beg your pardon?

22 Q. For crude oil remediation?

23 A. For the remediation of petroleum hydrocarbons.

24 Q. Hold on. That's not my question. My question

25 is --





2 THE WITNESS: I'm sorry. I'm confused here as

3 to where we're going.

4 BY MR. BLUME:

5 Q. You said that Cabrera relied -- that the

6 Superfund data has been proven to be an accurate

7 estimation of cost to remediate.

8 A. No, no. What I said was the Superfund data

9 that he used was for actual remediation that's been

10 done at sites in the U.S. That's where he got his cost

11 data from.

12 Q. At Superfund sites?

13 A. At Superfund sites. A lot of his data came

14 from looking at the costs that had been used; for

15 instance, groundwater, at CERCLA Superfund sites.

16 Q. And what percentage of those CERCLA Superfund

17 sites dealt with crude oil and not --


19 Q. -- refined petroleum or anything else?


21 A. I'd have to take a look. I'm not sure if any

22 dealt specifically with crude oil, but I believe some

23 of those sites did deal with petroleum hydrocarbons,

24 which is a -- which is crude oil.

25 Q. Can you name any oil field in the U.S. that's




1 a U.S. Superfund site?

2 A. Not offhand, no.

3 Q. Isn't it true that petroleum contamination is

4 specifically excluded from Superfund?

5 A. That's true.

6 Q. And a cleanup of non-Superfund petroleum-

7 contaminated sites are much less expensive than typical

8 Superfund sites?


10 A. That depends if they're collocated with other

11 contaminants.

12 Q. Well, usually Superfund sites -- don't they

13 usually, majority, largest percentage of time, contain

14 more toxin contaminants than simple -- than crude --


16 Q. Okay. So a comparison of a Superfund site is

17 much less appropriate than comparing the cost of a

18 crude oil-contaminated site; isn't that true?



21 Q. Okay. So Cabrera's comparison of Superfund

22 sites, to the extent he did, would be less -- a less

23 adequate comparison than a comparison to, say, the

24 remediation and cost estimates associated with

25 Petroecuador's remediation of the former concession




1 area; that is, the crude oil site; isn't that correct?


3 A. Clarify -- repeat that question again, please.

4 Q. You said the comparison of costs associated

5 with the cleanup of a Superfund site is not an equal

6 comparison to the cleanup of a -- of a -- of a crude

7 oil-contaminated site; is that correct? It's going to

8 be more expensive?

9 A. It could be. Let me restate. What he did was

10 he -- for instance, in his groundwater remediation, he

11 made an assumption on how many sites would have

12 contaminated groundwater and how they would have to be

13 cleaned up. What he came up with for his cost was to

14 go to the database out there, the databases, to look at

15 groundwater treatment costs that have been incurred for

16 Superfund sites, and he took those costs and averaged

17 them together to come up with an average cost for the

18 technology that was used at those sites, which he then

19 applied to the technology for cleaning up groundwater

20 at -- at these well sites and production stations.

21 Q. And we'll get to groundwater, but you would

22 agree with me, would you not, that technology

23 associated with the remediation of groundwater

24 contamination associated with crude oil is a far

25 different process than the technology associated with




1 the -- with the remediation of contamination associated

2 with Superfund sites?


4 A. No, I actually wouldn't agree with you on that

5 point because a groundwater pumping treatment system is

6 a groundwater pumping treatment system, whether you're

7 taking care of LNAPL or petroleum hydrocarbons or

8 whether you're taking care of chlorinated solvents in

9 groundwater. It's the physical remediation system.

10 It's how you're getting the contaminant, irrespective

11 of whether total petroleum hydrocarbon or PCBs or

12 solvents, out of the ground.

13 Q. My question was on cost of remediation, not

14 the technology. The cost of remediating groundwater

15 contamination or any contamination from a crude oil

16 site is less than the cost of remediating contaminants

17 from a Superfund site; isn't that true?


19 A. I -- I don't know if I would make that

20 statement as a general statement. It depends upon the

21 site-specific circumstances and the remediation that is

22 required for each one of those sites.

23 Q. But you would agree with me that comparing the

24 cost associated with remediation of a crude oil site to

25 the remediation in a crude oil site is a more apt




1 comparison for cost than it would be to compare it to

2 the remediation costs associated in a Superfund site?


4 Q. Isn't that right?

5 A. In general it might be, yes.

6 Q. Okay. So back to my hypothetical.

7 A. Okay.

8 Q. Assuming that Mr. Cabrera's data, all the

9 things you listed, his analytical data, his assumptions

10 on the average area of the well site, his total number

11 of well sites, all the things that you listed, and we

12 can go back and read them if you want, assuming that

13 all those were -- that the accuracy and reliability of

14 that data was called into question, would that impact

15 your opinion today?


17 A. It might. I would have to go back and look at

18 that and look at to the extent that I used specific

19 data from Cabrera versus specific data from other

20 sources, including my own knowledge and experience, to

21 determine what the potential cleanup costs would be.

22 As I sit here today, I can't tell you definitively.

23 Q. And did you use -- did you do any specific

24 independent analysis of the underlying data? I thought

25 you said you didn't.





2 A. A specific analysis of the underlying data?

3 MR. SMALL: That's not what he's talking

4 about. You're being argumentative.

5 A. Are we talking about the validity of that

6 data?

7 Q. Yes. Did you make any -- did you make -- did

8 you make any effort to -- to independently evaluate the

9 validity of the data that underlies the Cabrera report?

10 Any of it?


12 A. No specific effort to -- to confirm the

13 validity of it other than where I looked at something

14 and disagreed with it, I took an independent approach

15 to generating a number for that.

16 Q. For example, 916 sites in Cabrera versus your

17 917?


19 A. Or as a better example, depth of contamination

20 to be excavated and the lateral or radial extent of

21 soil to be excavated. I differed on that.

22 Q. Okay. And we'll go back and through all

23 those.

24 But let's look at the limitations and

25 uncertainties, because you talk specifically about them




1 in your report, don't you?

2 A. I do.

3 Q. And that's on Page 3 and 4 of your report

4 under Section 1.4. We talked about the limitations

5 that you had in reviewing the data, how you reviewed a

6 small percentage of documents cited in the Cabrera

7 report and annexes and even a smaller percentage of

8 documents submitted to the Court. You then go on to

9 say that DCA based its valuation on the information

10 made available during the period of engagement.

11 I assume that is information provided to you

12 by The Weinberg Group; is that correct?


14 Q. "The assumptions" -- and I'll quote: "The

15 assumptions made by DCA and the resulting estimated

16 potential costs developed for this valuation are

17 subject to change as a result of further review and

18 analysis of existing information and data, and/or the

19 generation of additional information and data from

20 future investigations."

21 You see that? Did I read that correctly?

22 A. Yes.

23 Q. Okay.

24 MR. SMALL: And very dramatically. Good.

25 MR. BLUME: Thank you. Talk to my theater




1 coach.

2 Q. So what this suggests, does it not, is that

3 there is existing information and data that you could

4 have reviewed or could currently review that may in

5 fact change the results of your analysis; is that

6 correct?


8 You can answer.

9 A. It may.

10 Q. It may -- I'm sorry?

11 A. It may.

12 Q. That -- well, I'm just asking you what you

13 meant by your words here when you say that further

14 review and analysis of existing information of data may

15 cause your report to change.

16 MR. SMALL: That's exactly what he just said,

17 and you're asking the same thing again.

18 Q. That data --

19 A. Yes, it may.

20 Q. Okay. So maybe I misunderstood. That data

21 may change your report, not you may consider it or not,

22 but --

23 A. No.

24 Q. Okay.

25 A. No. The consideration of additional




1 information and data may change the conclusions in this

2 report.

3 Q. And that's -- that's evaluation and

4 consideration of existing information and data; is that

5 correct?


7 Q. Okay. That you simply didn't look at to date?


9 Q. And you also say that in addition to that or

10 as an alternative to that there may be some other

11 information and data from some other future

12 investigation that may in fact impact your opinions

13 also; is that correct?


15 Q. Okay. You then go on to say that although

16 standard cost estimating practices and unit cost data

17 have been used to the extent practicable, the remedial

18 cost estimate developed by DCA for this valuation

19 should be viewed as a potential, conceptual-level

20 estimates only -- I'm sorry, as potential, conceptual-

21 level estimates only.

22 So you said you used standard cost estimating

23 practices and unit cost data to the extent practicable.

24 What does that mean?

25 A. I think it's fairly self-evident. I mean, the




1 standard cost estimating practices for assembling cost

2 estimates for remedial systems. Unit costs, unit costs

3 that are available out there through standardized unit

4 cost databases that are typically used in my industry

5 by professionals to generate these kinds of costs.

6 Q. And in what -- in what aspect of that for this

7 engagement made it impractical to use those practices

8 and that data?


10 A. I'm sorry. Repeat that question.

11 Q. Sure. You qualify it by saying you only used

12 it to the extent practicable, so what -- what was the

13 extent that it was not practical to use it?

14 MR. SMALL: To the extent -- objection.

15 A. Okay.


17 A. I think in terms of how I used that

18 information and data, I used the unit costs out of that

19 that were applicable to things like soil excavation,

20 groundwater treatment installation, things of that

21 nature.

22 Q. Right. And I didn't ask how it was

23 applicable. You say that you only use cost estimate --

24 you don't say "only," and I'm not -- I know he's going

25 to object that I'm reading it wrong. I'm paraphrasing.




1 That -- that cost estimating practices and unit cost

2 data have been used --

3 A. Um-hum.

4 Q. -- to the extent practicable. So my question

5 is, to what extent was it impracticable to use that

6 data in this instance?


8 Q. Why the qualifier, is my question.

9 A. Well, I understand your question now. I'm not

10 sure why the qualifier is there. I think that what I

11 was attempting to say was that there's a huge body of

12 information and data out there on costing and that I

13 used it to the extent that it could be applied to the

14 remediation of environmental contamination cleanup.

15 Q. And the judgment about the extent to which it

16 could be implied -- applied to the circumstances in

17 this case, in the former concession area in the

18 Oriente, was a judgment that you made or that was --

19 that you picked up from somewhere else? It was an

20 independent judgment where you determined to what

21 extent those standards and costs -- those practices and

22 cost data could be applied to this instance?

23 A. No. I think what I'm referring to here is

24 when you -- when we looked at costing out potential

25 remediation of soil or groundwater, we used the




1 databases, the standardized databases, for this and

2 applied them to the unit processes that would have to

3 take place to remediate soil and groundwater.

4 Q. Are you aware of available cost data

5 specifically for oil fields? Did you use those?


7 A. Not to my knowledge, no.

8 Q. Okay. You then go on to say that the remedial

9 cost estimates developed by DCA for this valuation

10 should be viewed -- by whom, by the way?

11 A. By users of this information, I would

12 assume --

13 Q. Okay.

14 A. -- is what I meant there.

15 Q. -- as potential conceptual-level estimates.

16 What does that phrase mean, "potential conceptual-level

17 estimates"?


19 You can answer.

20 A. I believe you asked me this earlier, and I

21 believe my response was and is now, I don't know what

22 the ultimate remedial scenario or scheme is going to be

23 for cleaning up all of the oil fields in the concession

24 area. I don't know that at this point. I don't -- I

25 did not come across any grand remedial action plan that




1 had -- lays that out. I don't know what the ultimate

2 cleanup levels are going to be or whether they're going

3 to even be established on the basis of total petroleum

4 hydrocarbon. So in my mind those are things that will

5 impact the ultimate costs of the remediation.

6 So when I say that it is potential, it is

7 potential in that this could come about, but they could

8 also do something else in terms of the actual

9 remediation, and it's conceptual level meaning that

10 before they do any large-scale remediation, more than

11 likely they will need to do additional remedial

12 investigations and some sort of a feasibility study to

13 look at what are the best possible options to do this.

14 Q. This is your first international cost

15 estimate, is it not -- or cost estimate of an oil field

16 outside the United States?


18 Q. And you would agree with me, would you not,

19 that you -- to assess cost data, you should be looking

20 at in-country cost data for Ecuador; isn't that right?


22 A. I agree that -- I agree only insofar as that's

23 one source of cost data that you can look at.

24 Q. Did you look at in-cost data for the country

25 of Ecuador?




1 A. No, I did not.

2 Q. Do you know whether using in-cost data in

3 Ecuador would in fact decrease the costs that you

4 conclude would be associated with the remediation that

5 you suggest?


7 A. As I sit here today, no, I don't.

8 Q. Did you --

9 A. I'd have to do a review of that information.

10 Q. Did you consider technologies available within

11 the country of Ecuador specifically?


13 A. No, but I will say that the technology to

14 remediate an oil well field or a pit in Ecuador in

15 terms of excavating the contaminated sediment or soil

16 from a pit would be no different than doing that in the

17 United States.

18 Q. But the costs would be different?


20 You can answer.

21 A. The costs would more than likely be different

22 when you factored in the factors that I did make a

23 consideration of in my cost estimates, yes.

24 Q. Do you know if PEPDA has a grand plan that you

25 spoke of earlier about feasibility of remediation and




1 the actual costs of remediation?


3 A. No. I have not seen a grand plan from PEPDA.

4 Q. Okay. Do you know whether they have one or

5 not?

6 A. No, I do not.

7 Q. No one advised you whether they did? No

8 one --

9 MR. SMALL: Objection. He said he doesn't

10 know.

11 Q. -- told you whether they did or not?

12 A. No one advised me.

13 Q. And did you ask?

14 A. I asked for information on PEPDA's remediation

15 because I had seen that referenced in a document that I

16 had looked at and wanted to know what the basis for

17 that information was.

18 Q. And no one gave you that information, did

19 they?

20 A. I did not receive any information to that

21 request.

22 Q. Before getting involved in this matter, had

23 you ever heard of Richard Stalin Cabrera Vega?

24 A. No, I had not.

25 Q. Incidentally, I think I asked you this with




1 regard to the specific site, but have you ever been to

2 Ecuador, even on holiday or any -- anytime?


4 Q. Do you have any reason to believe that -- or

5 would you agree with me that -- that labor costs in

6 Ecuador are far less than labor costs in the United

7 States?


9 A. I would -- I would assume that they would be

10 less, yes. I don't know to what degree.

11 Q. Have you ever been to South America?


13 Q. When you first learned about Mr. Cabrera,

14 what -- what was your understanding of his specific

15 role in the Lago Agrio litigation?

16 A. My understanding was pretty much limited to

17 the fact that he been appointed by the Court to develop

18 this evaluation, his evaluation.

19 Q. And he -- you're aware that he was one of many

20 experts hired by the plaintiffs; is that correct?


22 A. I wasn't aware who hired him.

23 Q. Okay. You're aware --

24 MR. SMALL: Wait. You're saying Cabrera --

25 you're saying Cabrera was hired by the plaintiffs?




1 MR. BLUME: I'm sorry. No. I misspoke.

2 Q. What I meant to say was you're aware that he

3 was one of many experts within this litigation?

4 A. Yes, I am aware.

5 Q. Okay. In fact, the plaintiffs themselves have

6 hired a number of experts in this case, including

7 yourself; is that correct?


9 Q. Okay. And you know, for example, the

10 plaintiffs hired an expert who obtained -- back to the

11 Ecuadorian labor rates, you know that plaintiffs hired

12 an expert who obtained Ecuadorian labor rates and did a

13 comparison in U.S. dollars about those labor rates

14 compared to the U.S.; are you aware of that?


16 A. I'm not aware of that specific expert and his

17 work product, no.

18 Q. Nobody provided that information to you?

19 A. No.

20 Q. Were you given copies of the Cabrera report --

21 the entire Cabrera report, as far as you know, the

22 summary report and all of its annexes?

23 A. As far as I know, yes.

24 Q. Okay. And those would be reflected in your

25 bibliography?




1 A. Yes.

2 Q. Okay.

3 A. The ones -- the -- the appendices that I

4 looked at. There were some appendices to the report

5 that did not relate to anything that I was doing for

6 this engagement, so I did not include them in the

7 bibliography, but I did receive them and they were

8 produced.

9 Q. And were they produced to you in English or in

10 Spanish?

11 A. They were all produced to me in English.

12 Q. Okay. And did you understand that -- that the

13 versions -- the English versions that you were provided

14 were translations of the Spanish or that the Spanish

15 were translations of the English?


17 A. Would you restate that question?

18 Q. Do you know that the Cabrera report was

19 submitted in Ecuador in Spanish? Are you aware of

20 that?

21 A. Actually, I'm not aware. I guess I would

22 assume it would have been submitted in Spanish and that

23 I had received English translations, but I didn't

24 verify that. I had no verification of that.

25 Q. You were -- you were told, were you not --




1 well, what were you told about Cabrera's independence

2 in this case?


4 A. I was told only that he was appointed by the

5 Court to come up with an evaluation of damages for the

6 concession area.

7 Q. Sitting here today, do you have any reason to

8 believe that he was hired by either the plaintiff or

9 the defendant?


11 A. I'm aware of the allegations, having read

12 something about that on one of the blogs, but I have no

13 other knowledge of that.

14 Q. Okay. Is Cabrera's independence in any way

15 relevant to your opinions?

16 A. No.

17 Q. But you assumed, did you not, for the purposes

18 of your report that he was unbiased; isn't that

19 correct?


21 A. Well, I don't even know if I made that

22 assumption. I just took his information at face value

23 the same way I took the information of the consultants

24 for Chevron or for Texaco at face value knowing that

25 they were advocates for Texaco and Petroecuador.




1 Q. So you considered the fact that the Chevron

2 experts were advocates for Chevron, but you didn't

3 consider that Cabrera was allegedly independent when

4 assessing his?


6 Q. I'm not following.

7 MR. SMALL: You're mischaracterizing what he

8 said.

9 A. That really didn't factor into it. You know,

10 I accepted the reports from the Chevron consultants,

11 ABT Agra and Fugro-McClelland, at face value as I

12 accepted the report prepared by Cabrera at face value.

13 Q. What you said was that you took the

14 information from consultants for Chevron knowing that

15 they were advocates for Texaco and --

16 A. Right.

17 Q. -- and you mentioned Petroecuador.

18 A. That's correct. One of the consultants, ABT

19 Agra, I believe, was jointly retained by Texaco and

20 Petroecuador, and the other consultant, Fugro-

21 McClelland, was exclusively retained by Texpet during

22 the same period of time to conduct independent

23 assessments, but they were hired by Texaco and

24 Petroecuador. But that didn't matter. I don't care

25 who hired them.




1 Q. Does it matter to you -- regardless of who

2 hired them, does it matter to you who wrote those

3 reports?

4 A. No.

5 MR. SMALL: Object --


7 MR. SMALL: Go ahead.

8 A. No, it doesn't matter.

9 Q. Okay. So you're aware of -- you said you're

10 aware of the allegations regarding the -- surrounding

11 the Cabrera report. What are you aware of?

12 A. What allegations are you referring to?

13 Q. Well, you mentioned allegations. I said are

14 you aware of the independence of Mr. Cabrera, and you

15 said, Well, I'm aware of the allegations surrounding

16 that.

17 A. Ah. That particular reference is to, again,

18 something I read on the blog about Cabrera being a

19 principal in a remediation firm in Ecuador. That was

20 the allegation that I recall seeing.

21 Q. That's all you're aware of?

22 A. That's all I'm aware of.

23 Q. Have you heard of a company called Stratus

24 Consulting?

25 A. Yes.




1 Q. When have you heard of Stratus Consulting?

2 A. Through this engagement.

3 Q. What have you heard about them?

4 A. Just that they're a consulting firm made up of

5 what I believe to be scientific professionals.

6 Q. Hired by whom in this case?

7 A. I wasn't clear who they were hired by, but I

8 think they might have been hired by plaintiffs'

9 counsel.

10 Q. Are you aware that Stratus is the firm that

11 drafted -- actually drafted most of the Cabrera report?


13 A. No, I am not aware of that.

14 Q. Did anyone tell you that before you formed

15 your opinion in this case?


17 A. Not that I'm aware of.

18 Q. So sitting here today, do you know that

19 Stratus drafted all the annexes to the Cabrera report

20 and then attributed them to Cabrera?


22 A. No, I do not.

23 Q. Are you aware that Stratus and Stratus' team

24 did all the underlying analysis for the Cabrera report

25 and then attributed it to Cabrera?





2 A. No, I'm not aware of that.

3 Q. Are you aware in fact that Cabrera didn't

4 write the report that is attributed to him that you --

5 upon which you relied, nor did he write the annexes in

6 the report that you relied? Are you aware of that?



9 Q. And in fact, are you aware that many of the

10 documents that you considered in your production were

11 drafts of the Cabrera report created by Stratus --


13 Q. -- and not the ones filed with the Court in

14 Ecuador? Are you aware of that?



17 Q. Are you aware that the English -- that the

18 English version of the Cabrera report that you

19 reviewed, which presumably was a translation of the

20 Spanish, was in fact the original version of the

21 Cabrera report that subsequently was translated for

22 Cabrera into Spanish? Are you aware of that?



25 Q. Do you know that several U.S. courts have held




1 that plaintiffs' attorneys and their consultants by

2 writing the Cabrera report engaged in a fraud on the

3 Ecuadorian court?



6 Q. And that the Cabrera report was actually

7 drafted by plaintiffs' consultants?


9 Q. Are you aware of that?


11 Q. Are you aware that during U.S. -- during

12 proceedings in a U.S. court there was video evidence

13 that has been produced showing that Cabrera met with

14 the plaintiffs to plan what he would say in his

15 reports?


17 Q. Are you aware that there's evidence to suggest

18 that Cabrera met with plaintiffs' attorneys even before

19 he was appointed as an expert in this case?


21 Q. Have you discussed the true authorship of the

22 Cabrera report with anyone?


24 A. Not that I'm aware of.

25 Q. Are you aware that a federal district court




1 found that Chevron did not know, quote, that the expert

2 report was being ghost-written by experts for the party

3 opponent and that it would be important for no one at

4 the meeting -- referring to a meeting between

5 Chevron -- between the plaintiffs' lawyers and Mr.

6 Cabrera?

7 MR. SMALL: What are you --

8 Q. That would -- that to the amusement of

9 those -- that it would be important for no one at the

10 meeting to tell Chevron that such had occurred and that

11 to the amusement of those in attendance at the meeting

12 Chevron would not realize what had happened to them

13 with the independent report?


15 Q. The Court went on to say, While the Court --

16 and this is the Western District of North Carolina,

17 August 28th, 2010, Chevron, in a proceeding in front of

18 that, the Court said, quote, While this Court is

19 unfamiliar with the practices of the Ecuadorian

20 judicial system, the Court must believe that the

21 concept of fraud is universal and that what was -- what

22 has blatantly occurred in this matter would in fact be

23 considered fraud by any court.

24 This is referring to the fact that Cabrera

25 had -- was a ghost-written report by plaintiffs'




1 consultants. Quote, if such conduct does not amount to

2 fraud in any -- in a particular country, then that

3 country has larger problems than an oil spill.


5 Q. Are you aware of that opinion by the federal

6 district court in the Western District of North

7 Carolina?

8 A. No, I am not.

9 Q. You said you're aware that Cabrera had

10 received -- or are you aware that Cabrera received

11 payments from the Amazon Defense Front in violation of

12 the laws of Ecuador?


14 A. I have no knowledge of how he was paid for his

15 work.

16 Q. Do you realize that -- that -- that Stratus,

17 the consulting firm hired by the plaintiffs, actually

18 selected the sites for Cabrera to review?


20 A. I have no knowledge of that.

21 Q. Are you aware that Cabrera and the sampling

22 director met secretly with plaintiffs' attorneys and

23 Stratus to plan the global expert work?


25 A. I'm not aware of that.




1 Q. Are you aware that when Cabrera and his team

2 took samples, more than a quarter of them were

3 discarded in the field with no explanation?


5 Q. And that he often discarded samples that he

6 believed were "clean"? Are you aware of that?



9 Q. Are you aware that Cabrera failed to assess

10 causation, attributing to Chevron only -- not only 100

11 percent of the damages allegedly caused by the

12 consortium's activity but they -- but also damages

13 caused by Petroecuador's subsequent conduct?

14 MR. SMALL: I object to this whole line of

15 questioning.


17 MR. SMALL: You're reading testimony into the

18 record.


20 MR. SMALL: And you're assuming facts that are

21 not in evidence.

22 MR. BLUME: You just said it was testimony.

23 MR. SMALL: It's both. It's testimony and

24 it's assuming facts that are not in the record.

25 Q. I'm asking if you're aware of it.




1 A. I am not aware of it.

2 Q. Okay. Because you don't mention any of that

3 in your report, do you?

4 A. I do not.

5 Q. If Cabrera didn't write his report, Mr. Allen,

6 but instead plaintiffs' attorneys and -- and a

7 technical team from Ecuador and paid U.S. consultants

8 planned and executed all the sampling, analyzed all the

9 results, and wrote the Cabrera report themselves, you'd

10 admit that would introduce a significant amount of bias

11 into that report; isn't that right?


13 A. It probably would.

14 Q. But you didn't consider whether or not the

15 Cabrera report was biased before relying on it, did

16 you?


18 A. I did not any more than I considered that the

19 HBT Agra or the Fugro-McClelland reports might not have

20 been ghost-written or otherwise biased.

21 Q. So your -- it doesn't bother you, sir, that

22 Cabrera passed off his report as an expert report when

23 in fact -- as an independent expert report when in fact

24 that report was written by plaintiffs' consultants?

25 That doesn't concern you at all in reaching your




1 opinions?


3 A. I used -- I took the Cabrera report as I did

4 the HBT Ag- --

5 Q. That's not my question.

6 A. Let me finish. Let me finish.

7 Q. But let me ask --

8 MR. SMALL: Let him finish his answer.

9 Q. Why don't you answer my question and then we

10 can talk about whatever it is you want to talk about.

11 Okay?

12 A. Okay. Go ahead.

13 Q. My question is, Does it not bother you or

14 impact your opinions to the reasonable degree of

15 scientific certainty with which they are made that the

16 report upon which you relied, that by Mr. Cabrera, was

17 not only purported to be written by Mr. Cabrera but in

18 fact has been shown not to be written by Mr. Cabrera

19 but to be written by plaintiffs and plaintiffs' paid

20 consultants?

21 MR. SMALL: Object.

22 Q. Does that concern you in the least in reaching

23 your opinions?

24 MR. SMALL: Objection to the form. Are you

25 asking whether it bothers him or whether it impacted




1 his opinions?

2 MR. BLUME: Let's start with bother him.

3 Q. Does it bother you?

4 A. If all of those things that you said were

5 true --

6 Q. Yes.

7 A. -- which I have no knowledge of knowing

8 whether they are or not - they're allegations as far as

9 I can tell sitting here today - yeah, it might bother

10 me.

11 Q. Okay. And assuming that all those things that

12 I said were true, would it impact your opinions and the

13 way with which you relied on Cabrera's -- on the

14 Cabrera report?


16 A. It might impact my opinions and the way in

17 which I relied on those pieces of the Cabrera report

18 that I used.

19 Q. Sitting here today, Mr. Allen, do you endorse

20 the Cabrera report?

21 MR. SMALL: Objection. What do you mean by

22 "endorse"?

23 Q. Do you endorse it?

24 MR. SMALL: What do you mean?

25 Q. Do you know what I mean by "endorse"?




1 A. I would like to know what your definition of

2 "endorsement" means.

3 Q. Do you accept it as accurate -- true, fair,

4 accurate, and just?


6 A. Do I accept it as accurate, true, fair, and

7 just?

8 Q. Yes.

9 MR. SMALL: What do you mean, does he accept

10 it?

11 A. I accept the report for what it was, a

12 presentation of information, calculations made based

13 upon the information in that report. Is it true, fair,

14 accurate, and adjust -- and just? I don't have any

15 opinion on that.

16 Q. Do you have an opinion whether it's

17 scientifically valid?


19 A. Define "scientific validity."

20 Q. Scientific. Do you understand what I mean by

21 "scientific" --

22 A. I understand --

23 Q. -- that which relates to the sciences.

24 A. I understand.

25 Q. And "valid," that which is true and accurate.




1 So sitting here today, sir -- do you understand the

2 word "valid"?

3 A. I understand the word "valid."

4 Q. And do you understand what "scientifically

5 valid" means?

6 A. I understand.

7 MR. SMALL: Counsel, please don't be

8 argumentative with the witness.

9 MR. BLUME: He asked me to define.

10 MR. SMALL: No, but you're doing it in a very

11 condescending way.

12 MR. BLUME: Let's go back and look.

13 Q. You said, What do you mean by "scientifically

14 valid"? So here's what I mean.

15 A. Okay.

16 Q. Something that is valid, true and accurate,

17 and based on the sciences.

18 So my question to you, sir, Mr. Allen, sitting

19 here today, Do you consider the Cabrera report to be

20 scientifically valid?


22 A. I still have no other knowledge other than

23 what you've alleged today in this testimony that that

24 report is invalid and that it's not based upon science.

25 The information that's in that report is based upon




1 science. There's science in that report in the data

2 and analysis; in the remediation schemes that were

3 proposed; in the information that was presented by

4 Cabrera and reference to other reports. It's

5 scientific information that I consider to be valid.

6 Q. Assuming -- I want you to sit here and assume

7 that what I told you about Mr. Cabrera and Cabrera's

8 report and who wrote it and who researched it, assume

9 that's true.

10 MR. SMALL: Assume what's true?

11 Q. We can go back over it. Okay? Would you like

12 me -- do you understand? Because counsel asked me to

13 repeat it, which I'd be more than happy to do. Okay?

14 So assume for a minute the following six facts. Okay?

15 A. Okay.

16 Q. Number one, that Cabrera received payments

17 directly from the Amazon Defense Front, which is an

18 organization funded by plaintiffs' counsel.

19 A. Okay.

20 Q. Okay?


22 Q. Assume also that Stratus, which is a

23 plaintiff-funded consulting firm, selected the sites

24 for Mr. Cabrera to analyze in his report.





1 Q. Okay? Assume that Stratus, not Cabrera but

2 Stratus, the people at Stratus, which is a consulting

3 firm in Colorado, actually drafted the Cabrera report

4 for Mr. Cabrera to then sign. Assume that's true.


6 Q. Assume that the people of Stratus researched

7 and -- and -- researched the underlying facts of the

8 Cabrera report, put it together, assembled it, and gave

9 it to Cabrera to sign -- and gave it to Cabrera to

10 sign. Assume that's true. Okay?

11 Assume that when Cabrera went down and

12 actually took samples, more than a quarter of them were

13 discarded without explanation and that he often

14 discarded samples that he believed were clean. Assume

15 that's true.


17 Q. Assume also that he failed in any way to

18 assess causation based on -- based on any damages

19 caused by Petroecuador's subsequent control. Assume

20 that's true.

21 MR. SMALL: Assume what? Can you explain

22 that, please?

23 MR. BLUME: Absolutely.

24 Q. Assume that it's true that in Cabrera's report

25 he did nothing to assess the causation but instead




1 attributed to Chevron a hundred percent of the damages

2 alleged -- alleged by -- to be caused by the

3 consortium.

4 A. Um-hum.

5 Q. Okay?

6 A. Um-hum.

7 Q. And assume also that what the Western District

8 of North Carolina said was true, that -- and I'll go

9 back and read that, too. That Chevron did not know

10 that the expert report was being ghost-written by

11 experts for the party opponent; that is, for the

12 plaintiffs. Assume that's true.

13 And assume also it's true that it would be --

14 as the judge noted, that it was important to no one at

15 that meeting, which consisted of Cabrera and the

16 plaintiffs, to tell Chevron that such had occurred and

17 that to the amusement of those in the -- at the

18 meeting, Chevron would not realize what had happened to

19 them with the independent report.

20 Assume all of that is true. And so the report

21 that we've been referring to as the Cabrera report in

22 fact, Mr. Allen, assume is not a report by Mr. Cabrera

23 at all but a report by plaintiffs' paid consultants?


25 Q. Assuming all that is true, does that impact or




1 change the opinions you give in this case as reflected

2 in your report, Chevron Exhibit 1110?


4 A. It may impact my opinions in this report in

5 that I would go back and look at to the extent that I

6 relied upon specific information in the Cabrera report

7 that I used to form the basis for my own valuation, and

8 looking at where that data came from and looking to see

9 if it was valid, it may change my opinion, but I would

10 have to look at that in the context of all of the other

11 information that I looked at, which included

12 information from the other consultants, ABT Agra and

13 Fugro-McClelland and other resources and sources that

14 I've cited. It may.

15 I can't tell you as I sit here today, because

16 there's a lot of information that was presented in

17 Cabrera's report, and some of that information, it

18 doesn't matter who wrote it. It would be factual

19 whether it was ghost-written by somebody for Cabrera or

20 by Cabrera himself or by another unknown expert that

21 I'm not aware of that pulled that information together.

22 Q. What would be an example of that -- of a fact

23 contained within the Cabrera report upon which you

24 relied that would matter not that -- that would not be

25 impacted by the fact that Mr. Cabrera was -- was -- did




1 not write his report?


3 A. There is an appendix, and I don't remember

4 which one it is, that summarizes the Ecuadorian

5 environmental standards, and that information is taken,

6 as far as I can tell, directly out of Ecuadorian

7 legislation. That is a factual representation of

8 information that doesn't matter if Cabrera wrote it or

9 Stratus ghost-wrote it.

10 Q. And you're referring to Cabrera's conclusion

11 that 1,000 ppm in a sensitive ecosystem is the

12 appropriate standard for remediation; is that what

13 you're referring to?


15 A. No. I'm referring more globally to the

16 excerpts out of the Ecuadorian environmental

17 legislation that were reproduced as part of the summary

18 that was contained in Cabrera's appendix entitled

19 Environmental Remedi- -- or Environmental Standards, I

20 believe. Environmental Quality Standards.

21 Q. What about the application of those standards

22 to the facts purportedly contained in the Cabrera

23 report? Would that be a fact that would not be

24 impacted whatsoever by any bias injected into the

25 report?





2 A. The application of those standards, whether it

3 was 1,000 or 2500 or 4,000, would be a judgment call of

4 whoever was preparing a valuation.

5 Q. So to the extent Cabrera used -- purportedly

6 used his judgment to apply a particular standard and

7 that judgment was called into question by his

8 independence or lack of independence, would that --

9 could that impact your conclusions with regard to Mr.

10 Cabrera's conclusions?


12 A. Probably not. And the reason is that I can

13 look at that table independently of Cabrera and see

14 clearly that for TPH and soils, the Ecuadorian

15 Environmental Standards have a three-tiered level.

16 They have 1,000 for sensitive ecosystems, they have

17 2500 for agricultural soils, and they have 4,000 for

18 industrial or commercial use. I can take that

19 information and based upon my own experience and

20 knowledge be very comfortable using a TPH cleanup level

21 of 1,000 ppm for a sensitive ecosystem under the

22 assumption that if the Amazon jungle isn't a sensitive

23 ecosystem, then I really don't know what would be

24 classified as a sensitive ecosystem.

25 Q. How big is the Amazon jungle?




1 A. Total area, I have no idea. The area in

2 question or at issue here is about 400,000 hectares or

3 1700 square miles.

4 Q. And sitting here today, are you purporting to

5 be an expert on the Amazonian jungle?

6 A. I am not.


8 Q. And are you in any way -- do you have any

9 expertise on how the confines within the borders of the

10 Amazon jungle are used -- or are you saying -- is it

11 your opinion stating here today that the entire Amazon

12 jungle, the entire Amazon, is a sensitive ecosystem?


14 A. No, I am not stating that.

15 Q. Okay. So --

16 A. But --

17 MR. SMALL: Wait. Let him finish his answer,

18 please.

19 A. I want to finish.

20 Q. All right. Sure.

21 A. I have 25-plus years of experience dealing

22 with environmental contamination in all kinds of

23 settings, ranging from sensitive ecological systems

24 which would I classify as things like wetlands and

25 estuaries all the way up to remediating property in




1 commercial and industrial zones. Because of that

2 knowledge and that experience and using the cleanup

3 levels that have been set out by state regulatory

4 agencies, by federal regulatory agencies, I feel

5 qualified to make a decision or a conclusion or base my

6 decision to use a particular cleanup level on what I

7 would see as a reasonable assumption as to how a

8 particular site would be classified. To me that's not

9 rocket science.

10 I am not telling you sitting here today that

11 I'm an expert on the Amazonian jungle. I am not

12 telling you that the whole jungle is exclusively an

13 ecosystem or an ecosensitive system. I am telling you

14 that for the purpose of my valuation I looked at this

15 particular situation and I concluded independently of

16 Richard Cabrera but using the information in the

17 environmental quality standards stuff that was

18 basically regurgitated into a -- an appendix authored

19 by I don't care who to come to the conclusion that a

20 cleanup level of 1,000 ppm TPH was a reasonable

21 assumption to use in this particular instance.

22 Q. Is the concession area in the Amazon jungle?

23 A. I'm sorry?

24 Q. Is the concession area in the Amazon jungle?

25 A. I believe it is a -- an area within what is




1 defined as the Amazon jungle.

2 Q. You've never been there, though, have you?

3 A. I have never been there, but I've looked at

4 maps, I've looked at some aerial photos, but I've never

5 been there.

6 Q. And you're not aware of how the government of

7 Ecuador classifies the concession area, are you?

8 A. No, I'm not.

9 MR. BLUME: Let's take a break.





14 2:25, and we are back on the record with Douglas Allen.

15 BY MR. BLUME:

16 Q. Mr. Allen, if I could have you turn to Section

17 7.0 of your report. Pages 21 and 22.

18 A. I'm sorry? 7 --

19 Q. 7. -- the bibliography. You mentioned a

20 couple of times two reports, the Fugro-McClelland

21 report and the HBT Agra report. Is that correct?


23 Q. The Fugro-McClelland report was written in

24 1992; is that right?





1 Q. And HBT Agra was written in 1993?


3 Q. Other than the Cabrera data or report, is

4 there any other document upon which you relied to learn

5 about the activities going on within the former

6 concession area that are more recent than 1993?

7 A. Yes. There -- one other one in particular

8 that was another Texpet or Texaco consultant was

9 Woodward-Clyde.

10 Q. And what was the date of the Woodward-Clyde --

11 A. It's on the next page. 2002 -- 2000.

12 Q. Okay.

13 A. May 2000.

14 Q. Anything in the last ten years?

15 A. Other than Cabrera.

16 Q. Other than Cabrera.

17 A. No, I don't believe so.

18 Q. You mentioned on the top of Page 22 the HBT

19 Agra, and you say here, draft appendices A through J?


21 Q. Did you review the entire HBT -- HBT Agra

22 report or just the appendices?

23 A. Oh, no. I reviewed the report, and I'm --

24 I'll have to check my -- the actual document which I

25 produced to you, but I believe I got some but not all




1 of the appendices, went back for an additional data

2 request to receive completed appendices. I can't

3 recall as I sit here today if I got the complete set of

4 appendices A through J. I believe I did get some of

5 that information.

6 Q. Why did you only review the draft HBT Agra

7 report and not the final?


9 A. The HBT draft report was all that I had

10 available, all that I received.

11 MR. SMALL: Objection to your characterization

12 of it as a draft.

13 Q. It actually says "draft" right on the page,

14 does it not?

15 MR. SMALL: Right. That's what it says, but

16 we don't know if it's a draft, so go ahead.

17 Q. Why did you write draft in your bibliography

18 for that report?

19 A. That was what was on the page, the front page

20 of the document.

21 Q. Do you have any reason to believe that what

22 was written on the front page of the document as

23 draft --

24 MR. SMALL: In handwriting.

25 Q. -- meant something other than draft?




1 A. I recognized it as a draft report from what

2 was written on the front cover.

3 Q. Did you review or did anyone provide for you

4 the 1997 final report?


6 A. No, I did not review the 1997 final report.

7 Q. No one -- no one provided it for you, did

8 they?

9 A. I did not receive it.

10 Q. Is that different than no one provided it?

11 A. No one provided it.

12 Q. Okay. Make my questions clearer. I just was

13 wondering whether when I say "no one provided it," you

14 say "I didn't receive it," whether we're saying the

15 same thing.

16 MR. SMALL: Well, he also said that he did his

17 own searching --

18 MR. BLUME: My question was to him, really.

19 MR. SMALL: I understand, but --

20 Q. Do you interpret my -- when I say "no one

21 provided it to you" and then you respond by saying "I

22 never received it," are we saying the same thing?

23 A. We are.

24 Q. Okay. Did you even know that the final 1997

25 draft existed -- or final -- the final 1997 report




1 existed?

2 A. No, I did not.

3 Q. On the Woodward-Clyde document, you say

4 "Volume I of II." Is that all you reviewed?

5 A. Yes.

6 Q. Why?

7 A. I'm not sure I received Volume II.

8 Q. If you had final reports for HBT Agra, would

9 you -- would you have preferred to rely on a final

10 report as opposed to a draft?


12 A. Yes.

13 Q. I'm sorry?

14 A. Yes.

15 Q. In your report, you refer to the Ecuadorian

16 environmental quality standards, decree 1215?

17 A. Yes.

18 Q. Do you recall that?

19 And you also refer to specific cleanup data

20 and information from the judicial inspections?

21 A. Yes.

22 Q. Did you receive -- did you review these

23 reports independently or did you just receive your data

24 about -- from the judicial inspections from Cabrera?

25 In other words, I don't see them in here and I was just




1 wondering if you looked at them independently or

2 whether the data that you discussed in your report

3 about the judicial inspections you just got from

4 Cabrera.

5 A. Oh. The data came from the Cabrera report,

6 plus I was able to do just a cursory check of the data

7 file that I received, which had a compilation of the

8 judicial inspection data in it.

9 Q. What do you mean by "cursory review"?

10 A. Well, I didn't do an exhaustive review of that

11 database. I didn't have time. But I did do -- I did

12 look at it to determine that there was judicial

13 inspection data in it.

14 Q. Did you look at decree 1215, or did you just

15 rely on Cabrera's description of decree 1215? Because

16 I didn't see that in your bibliography, either.

17 A. Decree 1215, the table from the directo decree

18 1215, was reproduced in the appendix on the

19 environmental quality standards, but I did not read the

20 original.

21 Q. So you didn't read any -- not only the

22 original of what was reproduced but any part of the

23 Ecuadorian environmental quality standards? You didn't

24 review those separately?





1 A. They would have been in Spanish, so no.

2 Q. Okay. And with regard to the data that you

3 did look at, you said a cursory review. Just so I

4 understand, did you -- did you analyze that data or

5 just assess that there was data in the database?

6 A. I assessed that there was data in the

7 database. I did not analyze the data.

8 Q. So when you talked earlier about making an

9 independent assessment of the standards that should

10 apply to the former concession area, you did no

11 independent evaluation of the Ecuadorian environmental

12 standards, did you?

13 MR. SMALL: Objection. What do you mean by

14 "independent evaluation"?

15 Q. Do you understand what I mean by that?

16 A. Other than looking at the information

17 presented in the environmental quality appendix which

18 discussed and provided the tables out of the

19 environmental quality standard legislation, no, I did

20 not do any independent investigation of the standard.

21 I took that as -- at face value.

22 Q. And the data that you -- that you looked at to

23 verify was data, what did you do with that data?

24 A. I'm sorry?

25 Q. The databases that you looked at where you




1 said you looked to verify that there was data in those

2 databases, what did you do with the data?

3 A. I didn't do anything with the data. It was

4 just a -- looking at what had been presented by Cabrera

5 in his report as his summary of the analytical data

6 collected during the judicial inspections and then

7 going to the data file and seeing if that matched up

8 with what was the data presented in that data file in

9 a -- in a -- not for a point for point, because I

10 couldn't do that given the information available, but

11 in a general sense in terms of the contaminants that

12 were found and the magnitude of the concentrations of

13 those contaminants.

14 Q. Back to Page 3 of your report, we looked under

15 the "Limitations and Uncertainty of Valuation" section.

16 We talked about that there were more than a hundred

17 expert reports in this case and tens of thousands of

18 chemical sampling results. Was that -- is that tens of

19 thousands of separate samples or tens of thousands of

20 tests taken on fewer samples?

21 A. I have no idea, because that is basically

22 taken right directly from the Energy and Ecology

23 Business document which basically was the August 2nd

24 order issued by the Court, and that was contained in

25 that order.




1 Q. And you made no -- in reaching your

2 independent evaluation and estimate of potential cost,

3 as you state in your scope, you made no independent

4 evaluation of that sampling at all, did you?

5 A. No, I did not.

6 Q. We talked earlier. You assumed there were 917

7 pits in the concession area that required remediation;

8 is that correct?

9 A. That's what's stated, yes.

10 Q. And that's a number that came, more or less,

11 from the Cabrera reports; is that correct?


13 Q. And you assumed that that number was accurate;

14 isn't that correct?

15 A. That's what I used for my assumption in the

16 valuation, yes.

17 Q. You didn't -- as you state in your scope, you

18 didn't develop an independent evaluation of the number

19 of pits, did you?

20 A. Other than looking at what had been reported

21 by others, and there were a number of sources that I

22 looked at, I did attempt to figure out how many pits,

23 well field pits and how many production pits, and what

24 were their various statuses and stuff of that nature,

25 yes.




1 Q. And there were a lot of inconsistencies in all

2 the data as to the number of pits; isn't that correct?

3 A. That's correct, yes, sir.

4 Q. Even within Cabrera's report itself there were

5 internal inconsistencies?

6 A. There were internal inconsistencies. In

7 addition there were a number of other field and desk

8 exercises conducted to look at -- or catalog the number

9 of pits and their dispositions, yes.

10 Q. And in fact, on Page 13 of your report,

11 paragraph two, you acknowledge those inconsistencies,

12 right? I think you say specifically --

13 A. Yup.

14 Q. -- that DCA's review of the available

15 technical and expert reports indicated numerous

16 discrepancies in the number of well sites and pits,

17 production stations and pits, and ambiguities in their

18 status; i.e., open/closed -- open/closed/covered; badly

19 remediated/well remediated; dry pit/water pit/floating

20 crude -- I'm sorry. Dry pit/water pit/floating crude

21 oil pits; pits with seepage/no seepage, et cetera,

22 closed paren, you acknowledge those discrepancies in

23 there; is that right?


25 Q. But in fact, in conducting your remediation




1 cost analysis, you selected the highest number of pits

2 of any of the discrepancies; is that right?


4 Q. Did anyone tell you to do that?

5 A. No. I decided to do that.

6 Q. Did you review any information from

7 Petroecuador's audit reports in assessing -- in

8 reaching what I presume you reached based on your

9 scope, an independent assessment of the number of pits?


11 Q. Did you look at any PEPDA data, P-E-P-D-A,

12 PEPDA data with regard to the number of pits?


14 Q. Any data from the Ministry of Environment in

15 Ecuador?


17 Q. Did you review any reports filed by DiPaolo &

18 Hall that may have refuted Cabrera's number of pit

19 count?


21 A. No report specifically. I don't recall those

22 names specifically.

23 Q. In fact, there are 67 documents on file, Mr.

24 Allen, with the Court that concern the number of pits,

25 the volume of pits, remediation unit costs, and the




1 like. Are you aware of that?

2 A. No, I am not, but that just would have

3 increased my ambiguity and uncertainty in trying to

4 sort it all out if there are that many documents out

5 there.

6 Q. And -- and -- but despite the ambiguity,

7 you've reached a certainty -- or I should say you've

8 reached a conceptual-level estimate as to the number of

9 pits; is that right?

10 A. For the --

11 MR. SMALL: Objection. Asked and answered 25

12 times, about.

13 MR. BLUME: I'm not sure I talked about pits

14 yet, but --

15 MR. SMALL: You've asked about the number of

16 pits a number of times.

17 Q. Regardless, you can answer my question.

18 A. For the purpose of this valuation, I used 917

19 pits.

20 Q. And sitting here today, as an expert in this

21 case, are you attesting that there are indeed 917 pits

22 requiring remediation in the former concession area?


24 A. No, I am not.

25 Q. You're not?




1 A. I am using 917 pits as the basis for my

2 valuation of what needs to be potentially remediated.

3 Q. So I'm sorry. My question was, Sitting here

4 today as an expert in this case, are you attesting that

5 there are indeed 917 pits requiring remediation in the

6 concession area?


8 A. I am basing my valuation for the cleanup of

9 soil, groundwater, and sediments at 917 pits

10 distributed through 300 and some-odd well fields and I

11 believe 22 production stations.

12 Q. And I very much understand, Mr. Allen, that

13 that's what you're basing your -- your evaluation on.

14 I get that. My question is, Sitting here today, as we

15 sit under oath in this proceeding, are you attesting

16 that there are in fact 917 pits that require

17 remediation today in the former concession area?


19 A. I don't know in fact if there are 917 pits

20 that require remediation, but in developing my

21 potential conceptual-level estimate for this valuation,

22 I used the number 917 pits.

23 Q. I know you did, sir. I get the fact that you

24 used 917.

25 MR. SMALL: Well, you keep asking the same




1 question. That's why he keeps answering it.

2 Q. You in fact -- when you talk about 917 in your

3 report, you -- you very specifically say that it is

4 DCA's understanding from counsel that the inventory of

5 well sites/pits and production stations/pits that was

6 conducted by Cabrera represents the most recent

7 information available.

8 What did counsel tell you about that?


10 A. Just what's written there. I expressed

11 frustration at -- on being unable to get to a number of

12 pits that I could justify given all of the various

13 sources, given all of the various ambiguities and

14 uncertainties in the reported number of pits and their

15 disposition, so I asked, is there anything out there

16 that is more recent or that is considered to be a

17 number that's been agreed to for the number of pits

18 that I can use for the purposes -- purpose of this

19 valuation.

20 Q. Who did you ask?

21 A. I asked counsel.

22 Q. Which counsel?

23 A. I'm not sure who specifically it was. It

24 might have been these folks.

25 Q. "These folks" being --




1 A. Patton & Boggs.

2 Q. -- Mr. Small?

3 A. I don't know if it was Mr. Small precisely,

4 but it was probably the Patton & Boggs folks during one

5 of our conference calls.

6 Q. And you don't remember specifically who it was

7 who told you that the --

8 MR. SMALL: Objection. He said he does not

9 remember who it was. He said that.

10 MR. BLUME: Let's not --

11 MR. SMALL: You can't keep asking the same

12 questions.

13 MR. BLUME: Let's not interrupt.

14 MR. SMALL: No one will make their flights.

15 MR. BLUME: Let's not interrupt.

16 MR. SMALL: I'm just objecting.

17 MR. BLUME: Okay? And if you miss your

18 flight, I'm sorry, okay? But this isn't helping.

19 MR. SMALL: I know. I'm just saying you're

20 asking the same question over and over. Well, I've got

21 to protect -- I've got to protect the integrity of

22 this. You don't like the answer you get, so you ask it

23 again and again and again.

24 MR. BLUME: Are you done?

25 MR. SMALL: Yeah. Now I am.




1 MR. BLUME: Okay.

2 A. I don't know specifically who told me that.

3 Q. Okay. When was that conversation?

4 A. I don't recall exactly what date that

5 conversation took place.

6 Q. And when you say "most recent," is that a

7 temporal qualification; in other words, whether it was

8 the most recent in time to your evaluation in the fall

9 of 2010?

10 A. That would be accurate to say, yes.

11 Q. Okay. So you were told by counsel from Patton

12 Boggs that there's no -- nothing in the record that --

13 MR. BLUME: Please don't interrupt me, okay,

14 because we're going to be here all day.

15 MR. SMALL: That's fine.

16 MR. BLUME: And by you interrupting me, it's

17 not making this go any better and you're not protecting

18 the integrity. In fact, you're doing quite the

19 opposite, okay?

20 MR. SMALL: Well, I disagree.

21 Q. Just so I'm clear, you were told by counsel

22 from Patton Boggs that there's nothing in the record

23 that's more recent than the Cabrera filing on the

24 number of pits in the concession area; is that what you

25 were told?





2 A. My recollection that it wasn't that specific,

3 that it was a comment made in a response to a question

4 that I floated regarding more recent information

5 regarding the number of pits, that the answer was it

6 was probably the most recent number that they were

7 aware of.

8 Q. And I'm sorry. Did he say "probably the most

9 recent number"? Because I don't see that in your

10 report.

11 A. I don't know if there was a qualifier attached

12 to that or not.

13 Q. And by "most recent," did -- did you -- are

14 you meaning that to mean the most reliable information

15 or simply the most recent?


17 A. The most recent.

18 Q. So not necessarily the most reliable?

19 A. I wasn't questioning the reliability of it at

20 that point.

21 Q. At any point have you questioned the

22 reliability of the pit count?

23 A. Yeah. Through looking at the various sources

24 that have reported the number of pits ranging all the

25 way from Chevron's consultants in '92 right up through




1 to what Cabrera reported and the -- and the -- the

2 efforts that were made to do the same thing that he

3 concluded in his appendix, they could all be reliable

4 or unreliable for all I know, but I do know that there

5 were differences. There were significant differences,

6 and it created ambiguities and uncertainties, and when

7 I looked at this and tried to figure out was there a

8 way that I could justify and support and be reasonable

9 about it to pick a number of pits to base my valuation

10 on, I came to the conclusion, You know what? It's not

11 possible given the information that I've got. If I had

12 the other 67 reports that you alluded to that also

13 address the number of pits and everything else, I'm not

14 sure that would reduce my level of ambiguity in this.

15 I picked a number for the purpose of this valuation.

16 If you have a better number, I would be happy to

17 consider it.

18 Q. And just so I'm clear, you picked that number

19 based on instruction from counsel; is that right?


21 A. I picked the number because --


23 A. -- that's the number I wanted to use. I

24 floated an inquiry to counsel and probably The Weinberg

25 Group who was also on board saying, Look, I've looked




1 at multiple sources here all the way up through to

2 Cabrera and what he references in his report. I've got

3 a problem. I'm looking at the number of pits, the

4 number of -- of pits that have been remediated, the

5 number that have got oil in them, the number that have

6 got sludges in them, and you know what? I can't make

7 them -- I can't make hide nor hair out of this stuff,

8 so help me out here. What do you think? Is there

9 anything out there that I can get that is more recent

10 that updates it, that corroborates with some of this

11 other information?

12 The decision to use a particular parameter in

13 this valuation was ultimately mine and mine alone. I

14 was not directed to use 916 or 917. I might have made

15 a mistake in the math and ended up using 920, but it

16 was my decision to use it based upon my review of the

17 information and data made available to me.

18 Q. Because that's not what you say in your

19 report, right? You say -- you don't say -- the

20 sentence isn't it is DCA's understanding that you use

21 the best available data. What you said was that it's

22 your understanding from counsel that the inventory in

23 Cabrera's represents the most recent information.

24 That's -- that's what you say in your report, so I just

25 want to make sure that what you're saying in this




1 report is accurate or what you're saying today, which

2 doesn't suggest this conversation with counsel.

3 MR. SMALL: Objection. You're being very

4 argumentative.


6 MR. SMALL: I don't understand your question.

7 MR. BLUME: Well, fortunately you're not

8 testifying, so it doesn't matter what you understand.

9 MR. SMALL: Well, this says -- this says from

10 counsel. Understanding from counsel. And you're

11 saying that it suggests there's not a conversation with

12 counsel?

13 Q. Do you understand my question? You just gave

14 this whole long explanation about your own assessment

15 of the pit count, but nowhere in there did you say, And

16 ultimately counsel said that the most recent number was

17 that in Cabrera. I mean, that in fact is true, isn't

18 it?


20 A. That was --


22 A. -- in regards to a query that I made, Look, is

23 there any more data that you guys are aware of out

24 there to go along with all of the other data that I

25 looked at.




1 Q. And they didn't provide you anything else, did

2 they?

3 A. And they didn't provide me with anything else,

4 so I made the decision that I'm going to use the

5 information by -- proffered by Cabrera.

6 Q. Why didn't you use a range, then, given the

7 discrepancies?


9 A. I thought about doing that at one point, and

10 the problem I had with it was that I had a difficult

11 time settling on what would be a number to use for a

12 lower number of pits, and it was due to this ambiguity

13 of what I was finding for the various sources that were

14 reporting the numbers of pits and their dispositions.

15 Q. At one point you asked for map and aerial

16 photographs showing the location of the oil fields, oil

17 field well pits, production stations, surface

18 topographical features, and the like?

19 A. I did.

20 Q. Is that correct? You never received that, did

21 you?

22 A. Actually, I received some of that information.

23 One of the appendices that was provided to me from the

24 Cabrera report in the English version that came to me,

25 there was a series of what were referenced as




1 photographs and figures. Those were not in that

2 particular version of the appendix. They went back and

3 subsequently found the version where they were in,

4 which is the Spanish version, and I received that.

5 I also received a folder of maps, digital

6 maps, which I produced to you, by the way, which I

7 received quite late in the valuation process,

8 unfortunately, and I looked at those briefly and it

9 looked to me that it didn't have exactly the kind of

10 information that I was looking for in order to do a

11 completely independent assessment of the number of pits

12 vis-a-vis looking at interpretation of aerial photos

13 and things like that. So to that extent, I did receive

14 some of the information that I asked for, but I didn't

15 find it particularly helpful within the constraints of

16 time and the resources that I had on this.

17 Q. Are you aware that in Annex H, Table H-1 to

18 the Cabrera report that he states there's no evidence

19 of open pits from aerial photography for 156 of the

20 alleged 916 pits?


22 A. I don't recall that. I might have read that.

23 What's the title to Appendix H, just for my --

24 Q. Did you -- well, let me show you Appendix H-1.

25 Let me show you the Cabrera report while we're at it.




1 MR. SMALL: Mark it as Chevron Exhibit 1113.



4 THE WITNESS: Go ahead.

5 BY MR. BLUME:

6 Q. Let me direct your attention to Page 3- --

7 well, the first blue -- I believe yours is divided by a

8 blue divider.

9 A. Appendix H.

10 Q. Appendix H-1.

11 A. Mine just says Appendix H, Page 1.

12 Q. Yes. Page 37 should say "Appendix H-1 Pit

13 Inventory," but regardless.

14 A. Okay.

15 Q. Do you see the pit inventory right there?

16 MR. SMALL: Hold on.

17 A. Yes.

18 Q. Okay. Did you review this in the course of

19 your analysis?

20 A. I'm sure either one of my team did, and this

21 does look familiar, so I might have reviewed this, yes.

22 Q. Okay. And are you aware that within this

23 appendix there -- Cabrera notes that there's no

24 evidence in the aerial photography for 156 of the 916

25 pits that he lists in this inventory? Are you aware of




1 that? Do you recall that?

2 MR. SMALL: What list of pits?

3 THE WITNESS: It's Page 37.

4 MR. SMALL: Right. There's not 150 listed

5 here.

6 THE WITNESS: No, there's not.

7 MR. BLUME: It just keeps going page after

8 page after page.

9 Q. You've -- you've -- you said you or your team

10 have reviewed H-1. This isn't the first time you're

11 seeing it, is it?

12 A. No. No.

13 Q. You've seen this before?

14 A. I've seen H-1. We looked at H-1.

15 Q. And you understand that H-1 reflects the

16 inventory of the pits --

17 A. Yes.

18 Q. -- according to Cabrera; is that correct?

19 A. Yes, that's my understanding.

20 Q. And did you do any independent analysis about

21 a particular pit that is in this -- is in this review,

22 is in this chart?

23 A. No, I didn't.

24 Q. Are you asserting -- can you sit here today

25 and assert that any particular pit needs remediation?





2 A. No, I cannot.

3 Q. Did you review -- Mr. Cabrera does not have

4 any aerial photos of the sites in his report; isn't

5 that right?

6 A. I believe I did ultimately see a few aerial

7 reports in one of the appendices. It may have been the

8 appendix that I originally got in English without any

9 photos or maps. Subsequently they were provided to me

10 for a subset of the total pits, and I think they may

11 have included aerial photos.

12 Q. Okay.

13 A. But it wasn't of the scale that it would have

14 been easy to do an independent evaluation. In fact,

15 that looks like one of the --

16 Q. Yeah. And I misspoke, because this -- I

17 believe this did come from Cabrera, and this was from

18 your production, the one -- you're looking at a

19 document which I'll hand you in a minute.

20 You don't have any independent expertise in

21 evaluating aerial photography, do you?

22 A. No, I don't.

23 Q. Okay. So did you undertake any effort

24 whatsoever to validate the number of pits that you use

25 in your report based on the actual need for remediating




1 them?


3 Q. And when I say "actual need," actual current

4 need to remediate them.


6 A. No, I didn't, and this information here

7 wouldn't have helped any. Just to simply say that the

8 pit was either open or covered wouldn't tell me whether

9 it needed to be remediated.

10 Q. One of the pits counted within your count is a

11 pit called Shushufindi 33, and you can find that in H-1

12 on Page --

13 A. 33?

14 Q. Yes. On Page 31 of H-1. I'm sorry. Yeah.

15 A. Okay. Shushufindi 33 --

16 Q. Has three pits associated with it, two on the

17 bottom of Page 31 --

18 A. Yup.

19 Q. -- and one on the bottom of 33.

20 A. Okay. Yes.

21 Q. And let me direct your attention to the one on

22 Page 33 of H-1, the very, very top line. It says

23 Shushufindi 33 on the left, pit number 3.

24 A. Yes.

25 Q. You see that?




1 A. Yes.

2 Q. This -- and it indicates for year 1986. It

3 indicates it is an open pit. Do you see that?

4 A. Yes.

5 Q. And you counted that in your pit count --


7 Q. -- isn't that correct?


9 Q. Okay. Let me show you ...



12 BY MR. BLUME:

13 Q. I'm putting before you what is a map, an

14 aerial map of the area, the Shushufindi area. Do you

15 recognize that? Have you seen that type of -- that map

16 before?

17 A. I can't recall if I've seen this specific map,

18 no.

19 Q. That is a particular map we received from you

20 in your production --

21 A. Um-hum.

22 Q. -- in this case.

23 A. Um-hum.

24 Q. Is that fair to say that -- that you -- that

25 somebody on your team must have reviewed it if it came




1 from your production?

2 A. They might have.

3 MR. SMALL: Was this a Bates labeled one? Or

4 is this a reproduction of one or --

5 MS. GRAY: It's a reproduction of one that you

6 submitted to us in the production, but you didn't Bates

7 label it and we haven't, either.

8 MR. BLUME: It came from --

9 THE WITNESS: No. It was in a digital format,

10 was it not?

11 MS. GRAY: Yes.

12 MR. BLUME: Yes.

13 Q. I'm going to place before you what I will mark

14 as 1115.

15 A. Are you done with 1114?

16 Q. We'll get to -- come back to that.



19 BY MR. BLUME:

20 Q. 1115 is entitled Rebuttal of the Methodology

21 Used by Mr. Cabrera to Determine the Number and Size of

22 Pits in the Petroecuador-Texaco Concession. You see

23 that? Is that the document you have in front of you?

24 A. It is.

25 Q. And it's a report prepared by William DiPaolo




1 and Laura Hall in September of 2008. Have you seen

2 this report before?

3 A. I don't believe so.

4 Q. Is this -- this is -- no one provided you this

5 report in the course of your review, did they?

6 A. I don't recall.

7 Q. Okay. You said -- and you said you didn't

8 recall looking at that map, that digital map that is

9 indicated as 1114?

10 A. Not this specific one.

11 Q. Is it possible that nobody from your group

12 looked at that map?

13 A. I don't know. We received this information

14 and data late in the valuation process. I just don't

15 know if they looked at this specific one or any of

16 them. I know that they received the files and, you

17 know, we -- I did open up some of these and take a

18 quick look at them to see if there was valuable

19 information that I could use.

20 Q. Did you charge anyone on your team to do an

21 independent assessment of the number of pits by

22 examining aerial photography or maps?

23 A. No, I didn't.

24 Q. Okay. And do you know if anyone on your team

25 performed any independent analysis based on aerial




1 photography and maps?

2 A. I don't believe so.

3 Q. Okay.

4 A. And I don't believe we had the information to

5 do a complete independent valuation.

6 Q. Incidentally, do you know the date of the

7 latest Cabrera report upon which you relied?

8 A. November 2008, I believe, was his last report.

9 Q. Okay. And do you recall which -- which report

10 you relied on for the pit count specifically? Was it

11 the November 8th report or was it the April 2008

12 report?


14 If you remember.

15 A. I don't recall exactly. It was one of them.

16 Q. Okay.

17 A. I could verify it if I had both of them,

18 probably, but --

19 Q. Directing your attention to Page 26 of the

20 report in front of you.

21 A. Um-hum.

22 MR. SMALL: Do you want him to read this

23 report, or are you just going to --

24 MR. BLUME: I'm just going to show him a

25 picture.




1 MR. SMALL: -- point him to specific things

2 that are out of context?

3 Q. I'm just going to show you a picture.

4 MR. SMALL: Okay.

5 A. 26?

6 Q. Nope, not that. I'm sorry. Hold on. Page

7 19. I'm sorry.

8 MR. SMALL: Can you tell me what this,

9 actually? Can you identify this document?

10 MR. BLUME: I -- yes. It's the rebuttal

11 report to Cabrera filed with the Court in Ecuador by

12 Mr. DiPaolo and Ms. Hall in September of 2008 rebutting

13 the pit count and size as put forth by Cabrera.

14 MR. SMALL: Who are -- who --

15 MR. BLUME: These are -- these are Chevron's

16 rebuttal reports and a report that goes directly to the

17 issue we're talking about in a date that postdates the

18 submission of the original Cabrera report and is

19 publicly available.

20 MR. SMALL: Was this filed in Spanish or in

21 English? I just want to make sure I'm aware.

22 Q. Do you see the photograph?

23 A. Yeah, I do.

24 MR. SMALL: Was it filed in Spanish or

25 English?




1 Q. On Page --

2 MR. SMALL: I'm allowed to know what this

3 document is.

4 MR. BLUME: The document is the English

5 version of the report.

6 Q. But if you can look at Page 19.

7 MR. SMALL: So you don't know whether it was

8 filed in English or Spanish. Okay.

9 MR. BLUME: It's publicly available. Have you

10 not looked at it, either?

11 MR. SMALL: It's publicly available?

12 MR. BLUME: Yeah. It's publicly filed.

13 MR. SMALL: Where?

14 A. When you say it's public --

15 Q. It means it could be --

16 A. -- what do you mean?

17 Q. -- available to you or to --

18 A. No, I understand what "public" means.

19 Q. Okay.

20 A. What I'm asking is, When you say "publicly

21 available," is this off from an Ecuadorian website,

22 government-sponsored website?

23 Q. No, no, no. These are documents filed in the

24 litigation --

25 A. I understand.




1 Q. -- to which you could have had access and your

2 counsel could have provided.


4 Q. Page 19 of this report talks about the

5 Shushufindi site. Do you see that?

6 A. Yes.

7 Q. Photograph from 1985.

8 A. Um-hum.

9 Q. And this is -- this is the photograph that was

10 reviewed -- that was reviewed -- I'm being corrected

11 by -- right.

12 MR. SMALL: So you're representing this was

13 filed in an Ecuadorian court, just so --

14 MS. GRAY: Yes.

15 MR. BLUME: Yes. Yes.

16 MR. SMALL: And it's in the public domain?

17 MR. BLUME: Yes.

18 MR. SMALL: Okay. The English version.

19 Q. Have you seen this photograph on the bottom of

20 Page 19 ever before?

21 A. Have I seen this particular photograph?

22 Q. Yes.

23 A. Not that I can recall.

24 Q. Okay. Well, this is a photograph relied on by

25 Cabrera to assess the -- or -- or -- this is a site at




1 which Mr. Cabrera indicates there is a pit and he

2 counts as Shushufindi 33 Pit No. 3.

3 A. Okay.


5 Q. Okay? I want to turn your attention to Page

6 20, which is a higher resolution of the very same pit,

7 and I suggest to you that this photo is not a pit where

8 the arrow -- pointed to the arrow but instead a tree.

9 Do you see that?

10 A. Yes.

11 Q. Okay. Assume with me for a minute because

12 you've never seen this photograph before that Mr.

13 Cabrera counted this shadow that you're looking at on

14 Page 20 of this report as a pit. Would that have been

15 an accurate description of what you see in this photo,

16 or would it have been an inaccurate description of what

17 you see in this photo?


19 A. Based upon what I am seeing here in this

20 photograph, this appears to be a tree.

21 MR. SMALL: I just want to be clear. You

22 represented that this is a publicly available document,

23 this English version of this is publicly available.

24 I'd like to know where it's publicly available.

25 MR. BLUME: I'm showing him the photograph and




1 asking him to assume for the sake of this deposition

2 that those photographs represent the well pit sites

3 analyzed Shushufindi 33.

4 MR. SMALL: Okay.

5 MR. BLUME: Okay?

6 MR. SMALL: You've already represented that

7 this is a publicly available document, this document

8 that you've handed out. I'd like to know where it's

9 publicly available.

10 Q. Let me direct your attention --

11 MR. SMALL: Okay.

12 Q. -- Mr. Allen to -- suffice to say that you

13 looked at no photographs, analyses, independent

14 assessment of any site in Ecuador; isn't that right?

15 A. No, that's not right. The information that I

16 asked for and obtained some of I did take a look at.

17 As I indicated, I referenced one of those figures that

18 you ended up getting produced from me. I took a look

19 at that with my team and we decided that the resolution

20 and the information was insufficient, nor did we have

21 the information for all of what were alleged to be the

22 total number of pits to do an independent valuation

23 that they were indeed pits from high-level aerial

24 photographs.

25 MR. SMALL: I'd also like to point out --




1 Q. I'm sorry. Nor did the --

2 MR. SMALL: -- this document is from September

3 8th, 2008.

4 MR. BLUME: Yes. I think I said that. Thank

5 you.

6 MR. SMALL: I don't think so.

7 Q. I'm sorry. I was just about to say you said

8 you -- all right. You know what?

9 So it's fair to say that it's entirely

10 possible, is it not, Mr. Allen, that many of the pits

11 that you counted as open and -- of open pits within the

12 concession area in fact may not be pits at all? You

13 have no way of telling -- of saying that's true or not,

14 do you?


16 A. At this point in time, I didn't do an

17 independent count of the number of pits.

18 Q. I'm not sure that was my question. My

19 question was, You have no way of telling -- that it's

20 entirely possible that many of the pits that you

21 counted as open in your analysis of 917 are in fact not

22 open pits that require remediation at all; isn't that

23 true?

24 MR. SMALL: Were they counted as open or in

25 need of remediation?





2 MR. SMALL: Well --

3 Q. I'd love for your counsel to switch places

4 with you and -- if he'd like to answer my questions,

5 because that would be -- that would be fun.

6 MR. SMALL: You're mischaracterizing the

7 document.

8 Q. My question to you, Mr. Allen -- and we can

9 get through this very quickly if we -- if you and I

10 just stay in tune here, okay? Is it fair to say that

11 many -- that the 917 pits in your analysis --

12 A. Um-hum.

13 Q. -- were the number of pits which you purported

14 to require remediation within the concession area

15 today; is that correct?

16 A. I used the number 917 pits in my valuation.

17 Q. Are there 917 pits in the concession area that

18 require remediation today?

19 A. That was the assumption that I used in my

20 valuation.

21 Q. I understand that was the assumption, but

22 listen to my question, because again --

23 A. I heard your question.

24 Q. Okay. Are there 917 pits today within the

25 former concession area that require remediation?




1 A. There could --


3 A. I used that number because there could be 917

4 pits that require remediation.

5 Q. And there could be fewer than 917, too, isn't

6 that correct?

7 A. There could be. There could be more than 917.

8 Maybe they were missed in all of these -- all of these

9 pit inventories that have been done.

10 Q. Fact is you have no idea?


12 A. The fact is that for the purpose of my

13 valuation, 917 was the number that I used.

14 Q. I understand that, but stay -- stay focused

15 with me, okay?

16 A. I'm focused with you.

17 Q. I understand what you used for your

18 evaluation. I have your report. I've read through it.

19 I've seen the beginning page and the last page, and

20 I've read everything in between.

21 Sitting here today, sitting here today, do you

22 know for a fact --


24 You already asked the question.

25 MR. BLUME: I'm not even done with my sentence




1 yet.

2 MR. SMALL: I know what -- you've already

3 asked it.

4 MR. BLUME: It's shocking. It's shocking that

5 you continue --

6 MR. SMALL: Because you ask the same

7 questions. You want me to -- I'll tell you what it is.

8 MR. BLUME: No.


10 MR. SMALL: Go ahead.

11 MR. BLUME: Go ahead what? You just

12 interrupted me.

13 MR. SMALL: Ask the question you were about to

14 ask, because I already know -- you've asked it already.

15 MR. BLUME: Here's the deal. If you're going

16 to tell me to go ahead, then don't -- the grandstanding

17 doesn't help, okay?

18 MR. SMALL: I'm not. I'm just trying to point

19 out that you've asked and answered the same question.

20 MR. BLUME: Here's a suggestion. Here's a

21 suggestion: "Objection." That's it. That's all you

22 need on the record.

23 MR. SMALL: Yeah, but I can only take so much.

24 MR. BLUME: If you've done this before, you

25 understand that's all you need on the record is




1 "objection."

2 MR. SMALL: I understand. But you --

3 MR. BLUME: Thank you.

4 Q. Now, I understand upon what you based your

5 opinion. I get that. Okay?

6 A. Um-hum.

7 Q. My question to you is, Sitting here today, you

8 have no idea actually how many pits in the former

9 concession area require remediation; isn't that true?


11 A. I used 917 and then applied a -- an algorithm

12 to look at remediating 917 pits.

13 Q. Great. And if I asked you to look at ten, you

14 would have done ten. My question is not what you used

15 in your report -- what's in your report. That's not my

16 question. So it's not asked and answered. I haven't

17 asked -- you haven't answered me yet, okay? I know

18 what you used in your report.

19 My question is, Sitting here today, do you

20 have any idea actually, actually, how many pits require

21 remediation within the concession area?


23 A. And my answer to you is no, I don't know

24 actually how many pits require remediation.

25 Q. Okay.




1 MR. SMALL: Which if we looked earlier in the

2 transcript he answered before.

3 Q. You assume that -- you assume that there's a

4 remediation standard in Ecuador for a concession area

5 of 1,000 ppm; is that correct?


7 Q. Okay. And you derive your potential

8 conceptual-level-only estimate based on an effort -- of

9 $487 million based on an effort to remediate to 1,000

10 ppm; is that correct?


12 Q. And your other number, 949 million, is based

13 on a conceptual-level estimate to remediate to 100 ppm;

14 is that correct?


16 Q. Is it fair to say that the difference between

17 those two numbers is essentially simply the standard to

18 which you would remediate?

19 A. Not entirely.

20 Q. Add in --

21 A. There are other differences in the parameters

22 that I used for each one of those that contributed to

23 that. The number of pits -- the -- the cleanup level

24 was one of them, yes.

25 Q. Okay. Going back to your report on Page 2,




1 paragraph four, you talk about the fact that the

2 concession area is located in the tropical Amazon

3 forest. You see that?

4 A. I'm sorry. What page is that again, please?

5 Q. Page 4.

6 A. Page 4. Yes. Go ahead.

7 Q. And then you go on to say in paragraph four --

8 MR. SMALL: Page 4 or paragraph four?

9 MR. BLUME: Page 4.

10 A. Of --

11 Q. I'm sorry.

12 A. Page 4 --

13 Q. Page 2, paragraph four.

14 A. Okay. Fine.

15 Q. My fault. You go on to say that the

16 concession area is located in the tropical Amazon

17 forest and is likely to be considered as a sensitive

18 ecosystem. You see that?

19 A. Um-hum.

20 Q. And then you cite Cabrera Annex D.

21 A. Um-hum.

22 Q. What do you mean by "likely to be considered"?

23 A. That was probably reflecting my opinion that

24 that would seem to be a reasonable cleanup level to

25 apply in this circumstance.




1 Q. And if it wasn't considered a sensitive

2 ecosystem, then the standards would have been higher?

3 A. Could be.

4 Q. What do you mean, "could be"? If it's not --

5 if it was determined to be an agricultural region, the

6 standard would be 2500 ppm.

7 A. Correct. According to the directive.

8 Q. And if it were determined to be an industrial

9 area, the standard would be even higher, right?

10 A. If it was an industrial area, it would be even

11 higher.

12 Q. Okay. Do you know whether these standards

13 applied when Texpet did its remediation?


15 A. When Texpet did its remediation when? Back in

16 the mid-'90s?

17 Q. In 1990s.

18 A. I don't believe they did.

19 Q. You -- in assessing your -- the cost

20 associated with the remediation, sir, you use and refer

21 often to the ASTM standards; is that correct?

22 A. That -- the ASTM 2137 standard, yes.

23 Q. Right. And in that standard there is

24 certain -- there are certain guidance -- guidelines to

25 use when assessing costs or making cost estimates;




1 isn't that correct?


3 Q. One of them, 5.1.2.3, talks about the use of

4 surrounding areas; isn't that right?

5 A. I believe so. I don't have the standard in

6 front of me.

7 Q. I can get it for you. I'll get that to you.

8 A. Okay.

9 Q. While we're waiting, to save time, one of the

10 areas is for the evaluator to assess the use of

11 surrounding areas, and I'll show you so you can make

12 sure that's true.

13 A. Okay.

14 Q. Are you aware, sir, that in and around many of

15 the production facilities in the former concession area

16 there's a network of roads, power lines, towns,

17 businesses, ranch, farms, things of that nature?

18 A. Yes.



21 Q. And those are -- many of those are attributes

22 or characteristics that could be associated with

23 industrial standards; isn't that correct?


25 A. They could be under certain circumstances,




1 yes.

2 Q. Okay.



5 BY MR. BLUME:

6 Q. I place before you what's marked as Chevron

7 Exhibit 1116?

8 A. 6.

9 Q. Are those the ASTM standards to which you and

10 I both just referred?

11 A. This is ASTM Standard E 2137-06.

12 Q. Okay. And I'll refer you to 5.1.2.3.

13 A. 5.1. --

14 Q. 2.3.

15 A. Okay.

16 Q. Use of surrounding areas.

17 A. Yes.

18 Q. And what does it say there?

19 A. "5.1.2.3 Use of surrounding property."

20 Q. Okay. And what do you take that to mean?

21 You're familiar with -- you've used this document in

22 your career; is that correct?

23 A. Yes, I have.

24 Q. And what do you take that to mean?

25 A. Land use. Intended land use.




1 Q. In and around the site to be costed? To be

2 remediated?

3 A. Presumably. Or the site itself and returning

4 the land to whatever productive use it would be

5 intended for. Could be the site itself, not just

6 surrounding land.

7 Q. Okay. And by using the 1,000 ppm standard,

8 you are assuming, are you not, that the land here is

9 intended to be a sensitive ecosystem; is that correct?


11 Q. Okay. Does it matter to you that most of the

12 sites within the former concession area are indeed

13 agricultural?


15 Q. Farmed?

16 A. Does it matter to me?

17 Q. Did you -- did you -- did you consider that

18 when assessing the standard?


20 Q. When looking at the -- when looking at the

21 surrounding use of this area, did you consider the fact

22 that much of the land within the former concession area

23 is used as farmland?


25 A. I -- I did an initial look to see if I could




1 determine what the land use was, and I didn't come to

2 any conclusions, so I decided to use the 1,000 ppm

3 based on sensitive ecosystem as the cleanup level.

4 Q. What do you know, sir, about the government of

5 Ecuador's land grants in northern Oriente between 1964

6 and 1992?

7 A. I don't know anything about the land grant

8 from the government.

9 Q. Do you know that approximately 165,000

10 acres -- between 165,000 acres to 2.5 million acres

11 were -- that -- I'm sorry. That the official land

12 grants by the government of Ecuador increased between

13 those dates from 165,000 acres to 2.5 million acres?

14 Did you know that?


16 A. Land grants -- land grants within the

17 concession area?

18 Q. Within the concession area.

19 A. I was not aware of that.

20 Q. And do you know that the government required

21 settlers -- by granting land to -- to the indigenous

22 people of Ecuador within that area, they required them

23 to make productive use of the land to gain title; that

24 is, clearing the area for agricultural use? Were you

25 aware of that government grant?





2 A. I was not aware of that government grant.

3 Q. And between 1972 and 1989, croplands and

4 pasturelands in the Oriente more than doubled. Are you

5 aware of that?



8 Q. In fact, Ecuador also granted large -- large

9 land areas in northern Ecuador to commercial

10 plantations for oil palm, livestock production, and the

11 like. Were you aware of that?



14 Q. And all of those areas fall within the

15 confines -- or significant portions of those areas fall

16 within the confines of the former concession area; are

17 you aware of that?



20 Q. And the sensitive ecosystem as a term applies

21 to protected areas in Ecuador, national forest areas in

22 Ecuador. Are you aware of that?


24 A. I believe I was aware of that through reading

25 the environmental quality standard.




1 Q. And which -- what percentage of the concession

2 area was either a national forest or a protected area?


4 Q. As opposed to land granted for agricultural or

5 livestock use?


7 A. I don't know the answer to that.

8 Q. Have you read Ecuadorian Decree 3516?

9 A. Can you give me the title on that, please?

10 Q. It talks about -- well, let me ask you this:

11 Do you know what the -- what the increase in

12 residential use within that area is?

13 MR. SMALL: What area?

14 Q. Within the former concession area.

15 A. Increase over --

16 Q. Of resident- -- of use of that land for

17 residential purposes.

18 A. No, I do not.

19 Q. Knowing what I told you --

20 A. Um-hum.

21 Q. Well, let me add another fact for you to

22 assume. That between 1972 and 1989 croplands grew from

23 74,000 acres to 330,000 acres, pasturelands increased

24 from 3 -- from 920 acres to 2.1 million acres. Does

25 knowing any of that, sir, or even assuming that to be




1 true --

2 A. Um-hum.

3 Q. -- as you're entitled to do as an expert --

4 A. Um-hum.

5 Q. -- in any way impact your decision to use the

6 1,000 sensitive ecosystem standard as opposed to a

7 2500 -- 2500 standard for agricultural use?


9 A. It may. It may well.

10 Q. And do you know that Petroecuador is currently

11 remediating these very sites? Petroecuador, a

12 government-run oil and gas company in Ecuador, is

13 remediating these sites to a standard of 2500 ppm, the

14 agricultural standard? Are you aware of that?


16 A. I am aware Petroecuador is remediating sites

17 to 2500. I don't know which sites they are.

18 Q. And -- and the government approves that

19 standard for this area; that is, the agricultural

20 standard in this area. Are you aware of that?


22 A. I'm not aware of it per se, but it seems

23 reasonable if they've allowed Petroecuador 2500 ppm

24 cleanup level.

25 Q. And you have no reason to believe that




1 Petroecuador is not complying with Ecuadorian law; is

2 that right?


4 A. As I sit here today, no, I don't.

5 Q. Knowing that the government of Ecuador has

6 approved the use of 2500 ppm for agricultural land

7 within the very same area that you've deemed to be an

8 ecological sensitive area, would that in any way change

9 your opinion that appropriate level and the appropriate

10 standard should be 1,000 and not 2500?


12 A. I based my decision to use 1,000 ppm TPH on

13 the assumption that the concession area overall was a

14 sensitive ecosystem, recognizing that within that

15 ecosystem there would probably be sections or areas

16 that might not be classified as an ecosystem, but I did

17 not have the information available nor the time within

18 the time frame of doing this valuation to parse out

19 that analysis or get down to that level of detail.

20 Therefore, I used the assumption that 1,000 ppm TPH

21 would be a reasonable cleanup level to apply for the

22 purpose of this valuation.

23 Q. And if the -- and if the area as I describe

24 was indeed an agricultural area instead of a sensitive

25 ecosystem, then in fact would you agree that you should




1 have used the 2500 ppm standard?


3 A. Yes, I would agree with that statement.

4 MR. BLUME: Can we mark that?

5 A. As I indicated earlier to you, and I want to

6 reemphasize this point, this valuation was a potential

7 conceptual-level valuation recognizing that with more

8 information and time to analyze, I might have been able

9 to parse this valuation or break this valuation down

10 into much greater detail to the point of looking at

11 specific wells or groups of wells that might have been

12 located in areas that would qualify for different

13 cleanup levels or looking at a hundred or more or

14 whatever the number is of aerial photographs to

15 determine if they are really well fields or well pits

16 instead of trees, but again, given the time constraints

17 and the information I had available, I used some

18 assumptions to develop a potential conceptual-level

19 estimate.

20 If additional information and time are

21 provided, I could probably look at additional

22 information and refine my analysis. And by the way,

23 this is not uncommon when you do these things even in

24 the U.S. You never have enough data. You never have

25 enough time. You do your valuation based upon a set of




1 assumptions and the information knowing that if

2 additional information and time are provided, whether

3 it's in a bankruptcy or a merger and acquisition or

4 doing something for an offshore site, you can refine

5 your analysis.

6 Q. And at no point in time was any of the

7 information that I just described to you provided to

8 you during the course of your engagement; is that

9 correct?


11 A. Information that you just described to me in

12 terms of the areal extent that's been designated as

13 agricultural and appropriate cleanup levels for 2500?

14 Is that what you're referring to?

15 Q. Any information about the actual use of the

16 area in the Oriente.

17 A. The land use data and information?

18 Q. Surrounding land use.

19 A. In the concession area.

20 Q. None -- no information -- other than Cabrera's

21 assessment of 1,000 ppm, no actual information about

22 actual surrounding land use was provided to you during

23 the course of your engagement; isn't that right?

24 A. I did not receive any other than a limited

25 amount of information in the form of digital maps and a




1 few photographs.

2 Q. And sitting here today -- just like we talked

3 about the pits. Sitting here today -- I understand

4 you -- what you assume, but sitting here today, you

5 have no -- you have no opinion whatsoever as to whether

6 or not the land within the concession area is indeed,

7 is actually factually a sensitive ecosystem or an

8 agricultural use area; is that correct?

9 A. Or some of both.

10 Q. Or some of -- some of both or something

11 different, industrial? You have no -- you have no

12 independent basis to make that judgment, do you?


14 A. I have no independent basis to make that

15 judgment.

16 Q. Okay.

17 A. Not having done the analysis.

18 Q. And just so I'm clear, the only reason you

19 made that assessment is because you were relying upon

20 Cabrera's assessment in that regard; is that correct?


22 A. I made that assessment based upon what Cabrera

23 had used and then looking at the environmental quality

24 information that was contained in Cabrera's report and

25 recognizing that that was a -- a standard set by the




1 Ecuadorian government and assuming for the purpose of

2 this conceptual-level valuation that 1,000 ppm TPH was

3 a reasonable cleanup level to assume.

4 Q. And in fact, at one point you actually raised

5 this very issue to the people at The Weinberg Group,

6 right? You asked how can Petroecuador remediate oil

7 well -- oil well pits in the Oriente to a 2500 ppm

8 cleanup level for agricultural soils while Cabrera

9 argues that the TPH cleanup level should be 1,000 ppm

10 based on sensitive area. Do you remember asking that

11 very question?

12 A. I remember raising that issue when I was

13 looking through information that told me Petroecuador

14 was remediating to 2500 ppm and Cabrera was claiming a

15 TPH of 1,000.

16 Q. And how can Petroecuador remediate to that

17 level when Cabrera claims it should be 1,000?


19 A. As I sit here today, I don't know. There

20 could be a number of reasons. I don't know what they

21 would be. I can't tell you.

22 Q. You never got an answer, did you?

23 A. I didn't receive any information that allowed

24 me to resolve that question.

25 / / /






3 BY MR. BLUME:

4 Q. I'm putting before you what's marked as

5 Chevron Exhibit 1117. It's a March 4th, 2008, e-mail

6 from a Doug Beltman to a Juan Pablo Sanez. That's not

7 right. Saenz. S-A-E-N-Z. You see that?

8 A. I see it.

9 Q. And I'm not suggesting that you've in any way

10 seen this before, but I will tell you that this is an

11 e-mail from Doug Beltman, who is the -- an executive

12 vice president at Stratus Consulting. Do you recall we

13 talked about Stratus Consulting?

14 A. Yes.

15 Q. Do you recall that we -- I mentioned to you

16 that Stratus Consulting were the true authors of the

17 Cabrera report?


19 A. I have no knowledge of that, but you --

20 Q. You remember I told you that, though?

21 A. You alleged that, yes.

22 Q. Right. I told you that?

23 A. You told me that.

24 Q. Okay.

25 A. I have no knowledge of whether it's true or




1 not.

2 Q. I want you to direct your attention to the

3 second paragraph of that top e-mail where Mr. Beltman

4 says, "Thanks for the info on the 'ecosistemas

5 sensibles.'"

6 A. Um-hum.

7 Q. And I will suggest to you, because I know you

8 don't speak Spanish, that that means sensitive

9 ecosystems.

10 A. Um-hum.

11 Q. If we can agree. Somewhere along -- it goes

12 on to say, quote, Somewhere along the line someone

13 decided that the 1,000 milligram -- well, mg/kg TPH

14 standard --

15 A. Um-hum.

16 Q. -- for "ecosistemas sensibles" --

17 A. Um-hum.

18 Q. -- is the one to use for our case, and I'm

19 trying to write up a justification for it. Since the

20 area isn't officially a Patrimonio Nacional de Areas

21 Naturales, which is translated loosely to --

22 A. Natural parks.

23 Q. Yes. Thank you. -- we need to find a way to

24 still justify the 1,000 milligrams per kilogram.

25 A. Um-hum.




1 Q. Would you be able to ask Pablo or Luis about

2 their thoughts as to how we can justify using 1,000

3 milligrams per kilogram? Maybe there's some room in

4 the Estudio Ambiental.

5 Now, I will suggest to you that this e-mail in

6 March of 2008 came a month before this section of --

7 the relevant section of the Cabrera report was written.

8 Do you -- does this suggest to you or call -- does this

9 cause you to question the basis upon which Cabrera

10 opined, allegedly, that this should be -- that the

11 decision to use 1,000 ppm came as a result of the fact

12 that it's a sensitive ecosystem and not the other way

13 around, that they determined it was -- that the number

14 should be 1,000 and so they found justification for it

15 later?


17 A. I'm sorry. I just noticed that there was a

18 back part to this --

19 Q. Yes.

20 A. -- e-mail that I need to read.

21 Q. Sure. Why don't we -- why don't we take a

22 break to change tapes. You keep reading. We'll just

23 change the tape.


25 3:25. We're going off the record.







4 BY MR. BLUME:

5 Q. Does reading this cause you any concern about

6 the method by which the 1,000 ppm standard came into

7 Cabrera's report?


9 A. No, because I looked at the environmental

10 quality standards and saw that there were a -- a --

11 there's a three-tiered standard for ecosystem,

12 agricultural, and for industrial, and I made an

13 independent decision to use the 1,000 ppm for the

14 purpose of a potential conceptual-level valuation as a

15 reasonable cleanup level for this concession area.

16 Q. And you attributed certain costs to that

17 level, too, did you not? To remediating -- to

18 remediating contamination to that standard in the

19 course of your expert report, you associated certain

20 costs with that?

21 A. Certain costs were derived based upon a 1,000

22 ppm standard.

23 Q. And you didn't -- you didn't look at the

24 underlying standard at all, did you? You just assessed

25 it based on your reading of Cabrera; is that correct?





2 A. I assessed it based upon what I saw to be an

3 excerpt of the table taken from the environmental

4 quality regulations of Ecuador.

5 Q. From Cabrera report only?

6 A. Contained in the appendix of Cabrera report.

7 Q. Only?

8 A. Yes, as far as I can recall.

9 Q. Is it possible --

10 A. I don't recall looking for another source to

11 see if I could find the table in Spanish and then

12 translate it, no.

13 Q. Okay. And the 1,000 ppm resulted in a low end

14 of your range of value approach; is that correct?


16 Q. And in fact the high end was 100 ppm; is that

17 right?


19 Q. And -- but sitting here today, isn't it true

20 that if the standard in fact were not 1,000 ppm but

21 2500 ppm, that would make your low end -- I'm sorry,

22 that would make your high end lower; is that correct?


24 Q. Let me rephrase that, because that was

25 inartful.




1 A. I think that was --

2 Q. If -- if indeed, as you said earlier --

3 A. Yup.

4 Q. -- it's very possible that the actual

5 classification of the area within the concession area

6 was agricultural and therefore the 2500 ppm standard

7 should apply, that would decrease the low end of your

8 remediation costs in your range of value; isn't that

9 correct?


11 Mischaracterizes the testimony.

12 A. If I had used a cleanup value of TPH for 2500,

13 assuming I'd reached that decision based upon

14 evaluating appropriate information, then yes, it would

15 have changed the number generated as a result of a

16 cleanup level to 2500 ppm.

17 Q. Where did the 100 ppm standard come from?

18 A. The 100 ppm standard came from -- Cabrera used

19 it in his report and referenced the fact that it had

20 been used -- is being used by PEPDA, P-E-P-D-A, in

21 their achievement of what they call 100 percent

22 environmental quality, that they had determined that

23 100 ppm TPH actually represented a 70 percent

24 environmental quality and in their remedial program

25 they didn't accept anything that was less than a 90 to




1 I believe 95 or 96 percent quality. That was one

2 source.

3 The second source is the fact that TPH is

4 regulated in many states in the United States to a

5 level of 100 ppm, so there is precedent for doing that.

6 Based upon those two pieces of information, again, for

7 the purpose of preparing a potential conceptual-level

8 estimate, I thought 100 ppm was not unreasonable to use

9 as an alternate cleanup level.

10 Q. The PEPDA requirements are not a regulatory

11 requirement, are they?


13 A. I don't believe so. I believe they're

14 guidance, but I didn't confirm that. But it is being

15 used as part of their remedial program, as I understand

16 it.

17 Q. Why do you believe they're guidance?

18 A. I beg your pardon?

19 Q. You said you believe they're guidance.

20 What --

21 A. I think they might have been characterized as

22 guidance. I can't recall exactly.

23 Q. Characterized by whom?

24 A. I'm not sure who. It might have been -- it

25 might have been by Cabrera. I don't know. I don't




1 recall.

2 Q. And how is PEPDA using that 100 ppm standard?

3 A. As I indicated, they are -- I don't know how

4 they're explicitly using it other than they are aiming

5 to achieve an environmental quality or restoration

6 quality in the 90 to 95 percent range, and apparently

7 the PEPDA -- the value of 100 ppm falls in about the 70

8 percent ppm range.

9 Q. Are they -- do you have any reason to believe

10 that they're actually cleaning up to that level?

11 A. I don't have any information to that effect,

12 no.

13 Q. And you've done no independent assessment as

14 to whether or not 100 ppm has foundation in any

15 Ecuadorian law or regulation; is that correct?

16 A. I have not.

17 Q. And in fact, your statement that there's basis

18 in -- in the U.S. for 100 ppm is based on Cabrera's

19 assessment of U.S. law?

20 A. Basically it was part of the environmental

21 quality standards appendix in which he referenced a

22 study that was done by a third party back in -- I think

23 it was 2003 or 2004 where they had looked at the number

24 of states in the U.S. regulating TPH to 100 ppm. He

25 had cited that survey.




1 I went ahead and looked at those states that

2 he cited to verify in fact that they were still in

3 effect, because one of the things that Cabrera cited

4 and I know to be true from my own experience is that

5 many states are moving away from regulating petroleum

6 hydrocarbon cleanups on the basis of TPH and moving

7 toward a more risk-based approach.

8 Q. Which states did you evaluate?

9 A. I took his list of states and looked at all of

10 them to verify that they were still using the 100 ppm,

11 and in the course of looking at that information, I

12 found a couple of additional states that are still

13 using 100 ppm target cleanup level.

14 Q. And what were those states?

15 A. They're in my footnotes in one of these pages.

16 I believe it may have been Washington state and Oregon.

17 Q. Is there any -- is there any oil production in

18 the state of Washington?

19 A. I don't believe so, but I'm not sure if that's

20 even relevant.

21 Q. And is there any oil production in the state

22 of Oregon?

23 A. I don't believe so, but I don't think that's

24 relevant, either.

25 Q. Do you know, Oregon now uses a risk-based




1 approach to set standards?


3 Q. Did you know that?

4 A. Hang on just a second. Let me check my

5 footnote for accuracy.

6 I'm sorry. I misspoke. It is Washington that

7 has a cleanup standard of less than 100 ppm and North

8 Dakota. That's Footnote 3 on Page 2.

9 Q. Washington is a gasoline standard, isn't it?

10 A. I understand. It's total petroleum

11 hydrocarbon. It is -- it's part of total petroleum

12 hydrocarbon that's being regulated.

13 Q. It's not crude, though, is it?


15 A. It's petroleum hydrocarbon. Crude oil has

16 petroleum hydrocarbons in it. TPH is actually a gross

17 quantity measurement independent of the constituents or

18 the chemical toxicities in petroleum.

19 Q. But TPH standards vary, do they not, depending

20 on the type of hydrocarbon?


22 A. In some states they do, yes.

23 Q. Okay. And what was the other one you cited

24 to?

25 A. North Dakota.




1 Q. And you realize that as of 2010 North Dakota

2 cleanup standards for oil production facilities is

3 10,000 ppm?


5 Q. Do you realize that?


7 A. I wasn't aware of that. And for cleanup of

8 what facilities again?

9 Q. Oil production facilities.

10 A. Okay.

11 Q. In fact, many of the states that Cabrera

12 mentions, Alabama no longer uses 100 ppm standard.

13 Colorado, standard's not used. Florida, standard's for

14 refined oils. Maryland, standard's for gasoline or

15 diesel. Minnesota works -- is on a risk-based

16 approach. Missouri, incorrect standard that he cites,

17 50 ppm. Nevada, standards for underground storage

18 closures. Oregon we talked about. No oil production

19 and it's a risk-based approach. Rhode Island, limits

20 are for refined products in soils. South Dakota is

21 not -- the 500 ppm that Cabrera mentions is not a

22 cleanup standard at all. It's a trigger level for

23 petroleum -- for total petroleum hydrocarbon

24 concentrations. Tennessee, not the correct standard he

25 cites.




1 Did you do any independent assessment of the

2 states that Cabrera mentions to determine independently

3 at the time you filed your report whether those

4 standards actually exist?

5 MR. SMALL: Objection to the testimony.

6 You can answer.

7 A. An independent assessment I believe I did.

8 Here we are on Page 2, Footnote 3. I looked at that

9 list of standards. The standards were generated by a

10 survey conducted in 2008 -- I'm sorry.

11 Q. Based on regulations in effect in 2003 --

12 A. Right. Right. And I indicated in the

13 footnote that a review of that list indicated three

14 states have moved to risk-based cleanup standards and

15 Washington is the cleanup standard that wasn't on the

16 original list, I don't believe, and North Dakota.

17 Q. And -- and were you -- the other states that I

18 mentioned to you, were you aware of any of those

19 changes?


21 A. I'm not sure as I sit here today which states

22 had actually changed and which hadn't, not looking at

23 that table.

24 Q. Do you understand the difference between

25 crude, refined, and total TPH?




1 A. Between crude, re- --

2 Q. Between the chemical compositions of crude

3 oil, refined petroleum, and total -- with regard to

4 total TPH?


6 A. Yeah, I believe I do.

7 Q. Okay. And is that significant in any way in

8 the regulations in the states that you mentioned?

9 A. Some states regulate TPH based upon whether

10 it's gasoline-range organics or diesel-range organics.

11 Some states just simply lump it all together under TPH.

12 Some states look at it from the standpoint of just

13 gasoline as it's defined.

14 Q. Do any of the states that you mentioned or

15 referred to have regulations specifically with regard

16 to crude oil?


18 A. As I sit here today, I can't recall.

19 Q. And is it your opinion based on a reasonable

20 degree of scientific certainty that standards that

21 apply -- remediation standards that apply to either

22 refined petroleum or things other than crude apply

23 equally and should apply equally to crude standards?


25 A. Would you rephrase that question, please?




1 Q. Is it your opinion sitting here today in your

2 expert capacity to a degree of scientific certainty

3 that -- that regulations and standards apply -- should

4 apply equally to crude as they do to other sorts of

5 petroleums and fine petroleums?


7 A. Should apply equally to crude?

8 Q. The same standards should be used for each?

9 A. If it's a standard that hasn't been parsed out

10 to look at a specific fraction of petroleum hydrocarbon

11 but it is just a generic standard, then I would say

12 yes.

13 Q. And of all the states that Cabrera mentioned

14 and that you analyzed, do any of them parse out the

15 difference or identify the difference, such as use

16 of -- application to simply gasoline as opposed to

17 crude?

18 A. I believe that there were some cases where

19 they did differentiate what was being regulated as TPH,

20 but I don't recall which specific ones as I sit here.

21 Q. What's the difference, by the way, between

22 gasoline and weathered crude?


24 A. Difference in terms of what?

25 Q. How would you define "weathered crude"?




1 A. Weathered crude, in my understanding, would be

2 crude that has been left to degrade by natural

3 processes in the environment through various mechanisms

4 as opposed to gasoline, which is a refined product of

5 crude oil.

6 Q. How would you -- how would you classify the --

7 the crude that purportedly remains within the

8 concession area? As -- as petroleum or as weathered

9 crude or as something else?


11 A. It would -- a lot of it would probably be

12 weathered crude because it's been there for a

13 significant length of time.

14 Q. With regard to the volume of soil used in your

15 cost estimations, you did not perform a detailed

16 statistical analysis of the soil sampling data, did

17 you?

18 A. I did not.

19 Q. And I assume that was the same reason, because

20 of time constraints and the like?


22 A. And lack of information for that.

23 Q. Okay. If -- if one sample within a pit is

24 above regulatory limits, does that necessarily mean

25 that the entire pit area to a certain depth must be




1 excavated and remediated?


3 A. Not necessarily, although regulators have been

4 known to require remediation if a single sample

5 exceeded an applicable cleanup level.

6 Q. If you were to assume that plaintiffs only

7 looked at certain hot spots within the concession area

8 when doing its soil sampling, how would that impact

9 your assessment of the soil volumes that might require

10 remediation?


12 A. I'm not sure how it would impact it. Define

13 "hot spot" for me as you understand it.

14 Q. If they took a single sample within a pit --

15 A. Um-hum.

16 Q. -- that fell above the regulatory limit

17 without doing a more broad-based sampling within the

18 entire area.


20 Q. If you knew that they only picked -- pick and

21 choose certain hot spot areas for soil sampling, would

22 that have impacted -- would you have mentioned that in

23 your report as -- as impacting perhaps your

24 conclusions?





1 A. It might have, but again, I didn't do an

2 exercise of validating the data. One of the issues

3 that I did raise in my report was the fact that I

4 accepted that data as we received it at face value, but

5 I also indicated that there was additional information

6 that would have been useful to help refine that

7 analysis.

8 Q. In fact, to assess the soil volume, you used

9 Figure 6 in your report, which is the distribution of

10 the data points on that graph; is that correct?

11 A. Yes.

12 Q. And let me direct your attention to Figure 6

13 within your report. That's the -- that's the

14 scattergraph that you used?


16 Q. Okay. And explain how your estimated depth --

17 how you derived your estimated depth from this graph.

18 A. We basically looked -- as I say "we," this was

19 something that was done with me and my team. We

20 plotted this data, which came off from the electronic

21 database that we received, and we looked at this and

22 made a qualitative determination of how far one would

23 have to go on average to remediate the contamination in

24 the pits.

25 Q. Do you know whether your conclusion as to the




1 appropriate depth was the same as Cabrera's?

2 A. It was not the same as Cabrera's because we

3 factored in a few additional factors and we also

4 believed that the data that he used generated a plot

5 slightly different than ours because we excluded some

6 data on purpose in generating our plot for -- hopefully

7 to --

8 Q. In fact, you concluded that the excavation

9 should occur to a deeper depth than Cabrera; is that

10 right? You said five meters; he said four?

11 A. Yeah, I believe that's -- I'd have to look at

12 the report to make sure of the numbers.

13 Okay. Cabrera calculated his soil volumes

14 based upon excavation depths of four meters and five

15 meters for 1,000 ppm and 100 ppm, and we used -- I

16 think -- three and five meters for the 1,000 and 100

17 ppm TPH levels.

18 Q. And let me direct your attention quickly to

19 Table A-1 in your report.

20 A. Yeah.

21 Q. There you seem to use two and four; is that

22 correct?

23 A. That's correct. Because if you continue to

24 read on in our report, you'll note that what we also

25 did, which Cabrera didn't do, is that we assumed that




1 there would be one meter of freeboard that would be

2 present in these pits; that is, the pits would be

3 depressed by about one meter. And therefore, where

4 Cabrera had made the assumption that he was excavating

5 from a level ground surface down, we made the

6 assumption that you would actually be excavating to a

7 lesser depth because of the one-meter freeboard, so

8 that took the one meter off from the three and the five

9 and gave us the depths of two and four, which is what's

10 referenced in Table A-1.

11 Q. To what depth is Petroecuador currently

12 excavating within the concession area in its

13 remediation efforts?


15 A. I don't -- I don't know.

16 Q. Was that information provided to you?

17 A. I did not receive it.

18 Q. Did you ever see any of the actual sampling

19 data that Cabrera used to support his four-meter depth

20 assumption?


22 A. The sampling data that was contained in the

23 electronic data file which contained data collected by

24 the judicial inspections as well as by Cabrera. This

25 is the data that we used to make this analysis.




1 Q. Did you -- that was the plots. Did you do any

2 analysis on that data?


4 A. "Analysis" meaning we took -- we -- we looked

5 at the data, we segregated it from all of the data in

6 the database, and we plotted it up, excluding any of

7 the data that had labels on it that suggested that it

8 was -- that it was soil sampling data that was not

9 collected in the pits.

10 Q. Other than -- other than accepting that data

11 and plotting it, did you do any independent analysis of

12 the sampling methodologies or the like?

13 A. No, I did not do any independent analysis of

14 the sampling methodologies or the sampling collection

15 methods that were used.

16 Q. And just so I'm clear, are the difference in

17 the excavation depth in your report, the low and the

18 high estimate, based solely on the difference in the

19 remediation standards?

20 A. Yes.

21 Q. The 100 ppm to 1,000 ppm?

22 A. Yes.

23 Q. So again, assuming that those numbers

24 changed --

25 A. Yes.




1 Q. -- the excavation depth would in turn change

2 as well; is that correct?

3 A. Most likely.

4 Q. And that would in turn impact -- in fact with

5 a higher ppm, it would require a lower depth, less soil

6 volume, and therefore less cost -- remediation cost; is

7 that correct?

8 A. That would be the assumption, but when you

9 look at the data, you note that it may be also that you

10 would have to excavate down to a certain depth anyway

11 to recover the 1,000 or even 2500. In other words, it

12 may not be possible to refine it based upon this data

13 here, whether or not we can determine a different depth

14 of excavation to go to for a different cleanup level.

15 What would have been nice to have, and I don't

16 believe we found this in the data that we received,

17 would be sampling profile data; that is, for a single

18 sample taken, you usually go down at different

19 intervals, take samples, and collect and analyze those

20 samples so that you can determine from any given sample

21 what the concentration or gradient of the contaminants

22 are.

23 We couldn't tell from this data where some of

24 this sampling data came from, whether it came from one

25 or multiple sampling holes, so that's the qualification




1 that I -- I put on to it and one of the things that we

2 noted as an area of uncertainty for us.

3 Q. And did you seek to get any of that data from

4 the current remediation efforts conducted by

5 Petroecuador within the region?

6 A. No, I didn't.

7 Q. Would it surprise you to learn that

8 Petroecuador actually excavates less soil than you

9 estimate as a result of its efforts?


11 A. It wouldn't necessarily surprise me given that

12 they're remediating to a 2500 ppm level that you're --

13 that you indicated.

14 Q. You also require or conclude that there should

15 be an excavation of approximately one-meter perimeter

16 around the pit.

17 A. Um-hum.

18 Q. Where did that come from?

19 A. That was a number that we basically came to

20 within my team as a reasonable number based upon the

21 knowledge and experience of my team in remediating

22 pits, waste pits.

23 Q. Is that required in law or regulation

24 anywhere?

25 A. No. That's just one of those engineering




1 decisions that's made based upon how many times you've

2 done this before and what you expect might be the

3 lateral migration of contamination from an unlined

4 waste pit.

5 Q. And did you assess that -- the lateral

6 contamination that might result specifically with

7 regard to the contaminants contained within the

8 concession area?


10 A. I'm sorry. Could you rephrase that question?

11 That's not clear.

12 Q. Did you reach that one-meter perimeter

13 conclusion based on an assessment of and your

14 experience in oil field pits specifically?

15 A. I'm not sure that was done specifically. We

16 were aware that there was contamination radial to the

17 pits by virtue of the data and by virtue of the

18 descriptions of the spills and overtopping that

19 occurred during the operation of the pits. We

20 looked -- or factored in or made an assumption of what

21 the subsurface soils were, and through that analysis we

22 kind of came to the conclusion that, well, you've got

23 petroleum hydrocarbons migrating through relatively

24 tight soil, so it seemed to us that a reasonable radial

25 influence might be a meter away from the pit.




1 Q. Do you know if Petroecuador's currently

2 excavating such a perimeter?

3 A. I don't have any knowledge of that as I sit

4 here.

5 Q. And did you assess any soil samples that were

6 collected from around the perimeter?


8 A. Assess soil samples from who?

9 Q. From any -- did -- can you point to, do you

10 know of any soil samples taken around the perimeter

11 upon which you could reach this conclusion?

12 A. As I sit here, we probably looked at the soil

13 samples that were identified from the data -- the file

14 that we looked at to see if we could determine where

15 those were located. Unfortunately, one of the things

16 we couldn't do was physically locate a lot of the

17 sampling data that was in there because we couldn't

18 figure out the sampling coordinates to know just how

19 far away from the edge of the pit those soil samples

20 were taken.

21 Q. And as a result, you couldn't look at any

22 specific perimeter data?

23 A. Not that I can recall that we identified as

24 specific data taken from soil samples adjacent or

25 radially to the pit.




1 Q. What type of soil is in the concession area?


3 A. Well, my understanding based upon the work

4 that's been done is it's -- it tends to be a clayey,

5 silty-type soil.

6 Q. Limited to no migration; isn't that right?


8 A. I wouldn't say limited to no migration, but

9 it's harder for contaminants to migrate in tighter

10 soils that have clay in them and silty clays than it is

11 for contaminants to migrate in sands.

12 Q. What's the basis of your opinion that soil

13 within a 15-meter radius of a wellhead to a depth of

14 one meter should be remediated?

15 A. A radius of 15 meters?

16 Q. Fifteen-meter radius from the wellheads to a

17 depth of one meter?

18 A. Again, I think that that was based upon an

19 assumption of how the operations might have contributed

20 to contamination of soils around the wellheads, through

21 spills or through other means of having the stuff

22 released into the environment, and I think we felt that

23 15 meters seemed to be a reasonable radial influence.

24 Q. Sitting here today, can you identify any

25 remediation at any oil field site in Ecuador or




1 anywhere in the world, frankly, where soil around a

2 wellhead has been remediated?


4 A. Sitting here today, not that I can recall.

5 Q. Cabrera does not account for remediation

6 around the wellhead, does he?

7 A. I'm not certain that he does. I actually

8 thought that he did, but I'd have to go back and check

9 his report.

10 Q. Much of this data that you -- that you sought

11 was contained within the judicial inspection reports;

12 are you aware of that?


14 A. I'm not aware of it, but it wouldn't surprise

15 me.

16 Q. And -- and that -- those are inspection

17 reports that you asked for but never received; isn't

18 that correct?


20 A. I asked for information that would help me get

21 there. I assumed that the judicial reports would

22 contain that.

23 Q. Are there operating oil wells within this area

24 that you were evaluating?

25 A. I'm not sure. I believe there were, but I




1 can't recall specifically.

2 Q. Do you know currently whether there are any

3 operating oil wells within the concession area?

4 A. I don't have any specific knowledge of

5 operating oil wells, although I would assume there

6 might be.

7 Q. Would that in turn lead -- or be a fact to

8 consider as to whether or not that area was in fact an

9 industrial area and not an ecological -- sensitive

10 ecosystem?


12 A. It may or it may not. I'd have to look at the

13 information and assess it in the context of the

14 surrounding land use and the regulations. I can't tell

15 you as I sit here right now.

16 MR. BLUME: How long have we been going? You

17 want to take a quick break?

18 MR. SMALL: Sure.

19 MR. BLUME: Okay. Take a quick five-minute

20 break.


22 3:54, and we're going off the record.







1 BY MR. BLUME:

2 Q. Mr. Allen, you performed what you referred to

3 in your report as an independent preliminary screening

4 of remedial technologies; is that right?


6 Q. And I think you set those forth in Table A-4

7 in your report; is that right?


9 Q. Cabrera, you note in your report, compares the

10 remediation technologies to those -- to the Superfund

11 sites; is that correct?

12 A. Yes. I was hesitant on your use of "compares

13 remedial technologies to the Superfund site." I

14 believe he went to the U.S. Superfund site to get

15 information on remedial technologies.

16 Q. And we talked a little bit about this earlier

17 that there is -- it's not -- it's not an apples-to-

18 apples comparison on the cost to remediate a Superfund

19 site compared to the cost to remediate a site

20 contaminated with crude oil; is that right?

21 A. It might not be, but again, I think where

22 Cabrera was coming from was looking at -- and I do this

23 as well, was looking at the Superfund database, the

24 remedial technology databases, which are extensive, and

25 it is probably the single best collection of




1 information and data on treatment technologies. It

2 just happens to be housed and in fact it was funded by

3 the Superfund program, but it's not exclusively for

4 CERCLA hazardous waste. Those technologies are

5 applicable to any waste, including things like

6 radioactive waste and petroleum and PCBs.

7 Q. Can you name any oil field sites that are U.S.

8 Superfund sites?

9 A. Not off the top of my head right at the

10 moment.

11 Q. In assessing technologies for your cost

12 analysis, did you consider available information on the

13 cost of remediating oil field sites in the United

14 States, specifically oil field sites?


16 A. I believe we looked for some of that

17 information, but we didn't come across any of it.

18 Q. Did you analyze any of the orphaned well sites

19 in Oklahoma; Texas; Louisiana?

20 A. I don't believe we did.

21 Q. Are you aware of any of the cleanup costs that

22 could be found in publicly available data for these

23 what amounts to tens of thousands of old oil well sites

24 in the United States?

25 A. I'm sure that data exists, but I don't believe




1 we accessed that data.

2 Q. If that data were -- revealed low or average

3 cost for remediation, would that not lower your cost

4 estimates in this case --


6 Q. -- if you had used that data?


8 A. It may depending upon what was physically done

9 to remediate that site in the U.S. and whether or not

10 those unit processes to remediate those sites would be

11 applicable and appropriate to use in -- in the Ecuador.

12 Q. But you didn't check that, did you?

13 A. I don't believe we did, no.

14 Q. Soil treatment -- you assume soil treatment in

15 the concession area would take place in multiple

16 centralized treatment centers; is that correct?

17 A. That was the assumption that we made to

18 conceptualize the remediation, yes.

19 Q. Do you know what the average treatment -- the

20 average volume treated at centralized facility is

21 currently in Ecuador --


23 Q. -- for remediation going on?

24 A. No, I don't.





1 Q. Have you reviewed any of the PEPDA facilities

2 that are remediating soil within the concession area?

3 A. No, I did not.


5 Q. So you don't know what volumes they use?

6 A. No.

7 Q. Would choosing different techniques within

8 your chart A-4 have resulted in different cost

9 estimates?

10 A. There are different unit costs associated with

11 those techniques. The question is whether or not they

12 would have been applicable for what we were proposing

13 for remediating petroleum-contaminated soils.

14 Q. For example, if you had recommended on-site

15 burial, number one, it would have -- you could have

16 applied a 3 percent by -- 3 percent by weight standard

17 and lowered costs; is that correct?

18 A. If we had considered on-site burial, yes, that

19 probably would have been how we would have approached

20 it.

21 Q. What is 3 percent by weight? What is that in

22 ppm?

23 A. I have to do the math. It's three parts per

24 hundred, so -- I'd have to figure that out with a

25 calculator.




1 Q. 30,000 ppm; isn't that right?

2 A. I believe so.

3 Q. Is that consistent with sites of -- oil-

4 contaminated sites or orphaned oil wells in Louisiana,

5 for example? Do you know?

6 A. I have no knowledge of. For on-site burial

7 levels?

8 Q. Yes.

9 A. I have no knowledge of that.

10 Q. Let me turn your attention back to the ASTM

11 2137 documents. If I can find mine.

12 A. Sorry?

13 Q. I'm just looking for mine. Hang on a second.

14 I got it.

15 A. 1116?

16 Q. Yup. On Page 3, paragraph three of your

17 report, you indicate that you developed a remedial cost

18 estimate as a range of values from low cost to high

19 cost; is that right?


21 Q. And that's a range of value technique that --

22 that finds origins within ASTM 2137; is that right?

23 A. That's one of the five methods in the

24 hierarchy of methodologies to generate costs, yes.

25 Q. And specifically that's the one defined in --




1 in Section 5.4.4 within that document?

2 A. That's correct. And shown on Figure 1.

3 Q. Okay. And you -- and you state specifically,

4 even in your report, that -- the last sentence in the

5 second full paragraph, "The range of values method is

6 best used where there is insufficient information for

7 more robust estimation methods and/or where the

8 probabilities for various scenarios cannot be

9 accurately predicted"; is that right?

10 A. That's what it says.

11 Q. Okay. And if you look at the actual language

12 within ASTM 2137 Section 5.4.4, it in fact says that

13 when an expected value approach is not practical or

14 appropriate, a range of value may be developed instead;

15 is that right?


17 Q. If sufficient information had been available,

18 it in fact would be better or more accurate to use one

19 of the other methodologies, specifically either the

20 expected value approach or the quoted price approach;

21 is that right?



24 Q. Okay. And in fact, the Section 5.2.3 states

25 that the estimator should take into account the number




1 of events and quality of the information available or

2 obtainable when selecting the cost and liability

3 estimation approach to be used, and then it goes on to

4 say that an estimate's accuracy -- sorry, that the

5 more -- the more accurate the information, the better

6 the approach and the better the approach falls in this

7 hierarchy as set forth in Figure 1 under the ASTM 2137;

8 is that right?

9 A. That is what 2137 says.

10 Q. Okay. You chose the range of value approach

11 why?

12 A. Because in my opinion it -- it fit with the

13 information and data that I had available and it seemed

14 to be a reasonable way to do this valuation, with a

15 range, with high-low. There's no prescribed selection

16 method for using any one particular estimation method

17 over another. It's, again, up to the judgment of the

18 estimator and the available information that they have,

19 and this is something that I've used many, many times,

20 and I felt comfortable using the range of values

21 approach.

22 Q. Give me one second. In the course of your

23 career, have you in fact used some of the other

24 approaches set forth in ASTM?

25 A. Yes, I have. I've used all of them.




1 Q. I'm sorry. I was distracted and I just simply

2 didn't hear your answer. I asked a question and then

3 ignored you. I'm sorry.

4 A. Could you repeat the question?

5 Q. Yes. Now I'm all backwards here. At any --

6 at some point in your career have you used any of the

7 other approaches set forth in ASTM 2137?

8 A. Yes, I have.

9 Q. For example, the quoted price and the expected

10 value?

11 A. Yes, I have.

12 Q. Okay. And under 5.4.1, the quoted price, it

13 in fact says, When possible, marketplace information

14 should be used to determine a fair market price. Do

15 you see that?

16 A. I'm sorry. 5.1. --

17 Q. 5.4.1, quoted price. That being the top of

18 the hierarchy.

19 A. Right. I'm sorry. 5.4. --

20 Q. 1. Quoted price.

21 A. Oh, yes. Yes, I see it. Yes.

22 Q. It says, When possible, marketplace

23 information --

24 A. Yes.

25 Q. -- should be used.




1 A. Yes.

2 Q. And that in fact would be -- would result in

3 the most accurate assessment of costs in a remediation

4 effort; isn't that right?

5 A. Yes.

6 Q. What is -- what kind of marketplace

7 information typically do you like to see in using the

8 quoted price approach?

9 A. The quoted price approach for me would be

10 something on the order of if you knew what the remedial

11 system was going to be that was going to be installed

12 to clean up a hazardous waste site, there had been a

13 remedial design that had been developed, that design

14 had been developed to the point to where it was put out

15 for bid and contractors had bidded on it, that would be

16 a quoted price piece of information that you could use.

17 Q. Do you know sitting here today whether or not

18 there is such a remediation plan in place in the

19 concession area in Ecuador?


21 A. I know that Petroecuador is remediating pits.

22 I don't know if they're following a grand remedial

23 action plan.

24 Q. Do you know whether they have put out for bid

25 specific activity within -- to effectuate their




1 remediation plan?

2 A. I don't know that for certain. I would --

3 Q. If -- if you -- I'm sorry.

4 A. I would expect so, but I don't know that for

5 certain.

6 Q. Okay. If they did --

7 A. Um-hum.

8 Q. -- and if Petroecuador had a plan that could

9 have been made available -- that would have -- that

10 could have been available to you and in fact had

11 marketplace information on the cost associated with

12 aspects of their remediation, is that information that

13 you would have liked to see to determine whether or not

14 the quoted price approach would have been better to use

15 than the range of value approach?


17 A. Yes, that information would have been

18 potentially very helpful.

19 Q. And in fact, that information would have

20 allowed you, would it have not, perhaps to increase the

21 accuracy of your cost evaluation; isn't that right?


23 A. It may well have, yes.

24 Q. In fact, even the expected value, 5.4.2, talks

25 about different ways to reach an expected value, either




1 by a decision tree approach, indicating on 5.4.2.2,

2 "The estimator should be careful to include realistic

3 outcomes with statistically significant probabilities

4 to avoid shifting the expected value through the

5 addition of extreme outcomes with insignificant

6 probabilities of occurrence." Do you see that?

7 A. I do.

8 Q. And knowing presumably -- well, isn't it

9 true -- isn't it true that actual knowledge of -- of

10 remediation efforts within the Oriente would have

11 allowed you to assess or -- or estimate a more

12 realistic outcome of those activities?

13 A. They may well have if I had built a decision

14 tree modeled to do that.

15 Q. That section goes on in 5.4.2.4 to say in the

16 middle, "Care should also be taken when using

17 historical data due to the effects of changes, such as

18 technology enhancements, modified laws and/or

19 regulatory policy, the changing application of

20 presumptive remedies and the application of risk-based

21 corrective action approaches that could significantly

22 alter current and future costs."

23 Did you take into account in reaching your

24 cost assessment any change in technology, modified

25 regulatory policy, or application of presumptive




1 remedies from the time of -- of -- well, let's just say

2 over the last 17 years?


4 A. No. What I based my valuation on were -- were

5 the standards currently in effect at this time, were

6 the remedial technologies currently being used at this

7 time, and what were -- what was the other factor that

8 you mentioned?

9 Q. I'm sorry. Remedial technologies currently

10 being used within the concession area at this time?

11 A. Currently being used in general to remediate

12 anything.

13 Q. Okay. But do you know what remedial

14 technologies are currently being used within the

15 concession area, the former concession area?


17 A. Today --

18 Q. Today?

19 A. -- or that have been used?

20 Q. Well, today.

21 A. I would suspect they would be the same

22 remedial technologies that have been used.

23 Q. And do you know specifically what technologies

24 Petroecuador has been using over the past number of

25 years to remediate the sites in the former concession




1 area?


3 A. I -- I believe, and I don't know for certain

4 but I believe, they have been using technologies

5 similar to the ones that were used during the Texpet

6 remediation in the mid-'90s, and that is they're using

7 things like surfactant washing; solidification;

8 low-temp thermal desorption. I think -- those are the

9 soil remedial technologies that I'm mentioning, by the

10 way.

11 Q. Your costing data is in fact costing data from

12 many years ago to which you apply an inflation factor;

13 is that right?


15 A. It was cost -- yes. It was costing data that

16 we inflated up to 2010. I'm not sure I -- the

17 characterization of "many years ago" is accurate. I

18 think it was costing data from an R.S. Means database.

19 I can look at the report to see where it was, but

20 that's what we did is we inflated those costs from that

21 database that we used up to the present time, which is

22 a standard technique.

23 Q. Given the advance of technology, does that not

24 supersede the inflation? In other words, the

25 efficiency of technology advancements, does that not




1 outweigh, as it were, the effect of inflation?


3 A. You're making a very general statement about

4 the advance of remedial technologies and how that might

5 overshadow the effects of inflation. Because again,

6 I'm making this as a general statement: Unless I

7 absolutely did research on this, I'm not sure there

8 have been significant -- significant advances in

9 remedial technologies like soil washing and

10 low-temperature thermal desorption that would result in

11 significantly lower unit costs than, say, what have

12 been done a few years back.

13 Q. In fact, the best way to avoid all of this is

14 to determine the actual costs -- or the known costs of

15 a current and ongoing remediation effort; isn't that

16 right?


18 A. That would be very useful information provided

19 that after reviewing it, it gave me what I needed to

20 base a cost valuation on.

21 Q. But on this case you were not provided with

22 any information regarding current efforts by

23 Petroecuador to remediate the former concession area;

24 is that right?





1 A. I did not receive any information of that

2 kind.

3 Q. And you didn't receive -- you didn't review

4 the current remedial action plan that had been

5 developed and the concession areawide remedial

6 activities that have commenced?


8 A. By Petroecuador?

9 Q. By Petroecuador.

10 A. No, I have not reviewed any remedial action

11 plan developed by Petroecuador.

12 Q. For costing, you used the HBT Agra three-tier

13 system: Low, medium, and high; isn't that right?

14 A. That was the -- that was the framework that --

15 that I used, yes.

16 Q. Okay. And it's fair to say that HBT Agra

17 describes conditions within a concession area that were

18 in existence some 17 or 18 years ago; is that right?


20 A. They describe conditions as they observed them

21 during their assessment in 1992-'93 time frame.

22 Q. And my math --

23 A. Yeah.

24 Q. -- puts that at somewhere around 18 years ago;

25 is that right?




1 A. Um-hum.

2 Q. Nineteen years ago.

3 And it doesn't reflect any work done by Texpet

4 during the 1990s, does it?


6 A. I don't believe it does.

7 Q. Neither does the Fugro-McClelland report; is

8 that correct?


10 A. Neither does the Fugro-McClelland report do

11 what?

12 Q. Reflect any remediation work that Texpet

13 did -- Texpet did in the early 1990s.

14 A. Are we talking early 1990s meaning post

15 reports or --

16 Q. Post reports.

17 A. -- site assessments done by HTP and Fugro?

18 Q. Post reports.

19 A. Then no, it wouldn't.

20 Q. Neither of them reflect the remediation work

21 that Petroecuador has performed; is that right?


23 A. I believe you asked that, and I answered no,

24 they don't.

25 Q. What evidence do you have, then, that the




1 conditions described in the HBT Agra report and the

2 Fugro-McClelland report accurately reflect the

3 conditions of the concession area today?


5 A. The evidence would be the information

6 presented in Cabrera report vis-a-vis the judicial

7 inspections in which there were samples taken by both

8 the defendant's and the plaintiffs' technical

9 consultants.

10 Q. And again, that's -- in reaching that

11 conclusion, you're relying upon how it's described in

12 the Cabrera report and not on any independent

13 evaluation or analysis that you or your team performed

14 on the current conditions; is that correct?

15 A. Other than looking at the data file of the

16 actual -- what I believe to be the actual data --

17 sampling data that was compiled in that data file and

18 may or may not have been represented accurately by

19 Cabrera.

20 Q. Right. And that data file, again, were just a

21 series of numbers; you had no -- you couldn't tell --

22 you didn't do any independent analysis of the source of

23 that data; is that right?


25 A. "The source" meaning where each sample was




1 taken and stuff like that?

2 Q. Correct.

3 A. Well, other than --

4 Q. Other than what was depicted in the

5 spreadsheet.

6 A. I beg your pardon. Yes. And using that to

7 the extent that we could to parse out sampling data in

8 the pits and the surrounding soils and groundwater and

9 sediment.

10 Q. You had in fact available to you current

11 ongoing PEPDA cleanup costs at some point during the

12 course of your evaluation in this engagement; isn't

13 that right?

14 A. I'm not aware of it other than having a

15 reference made to what Petroecuador's current costs

16 were in a document produced by Texaco -- or Texpet and

17 one which I took off from the Internet and provided.

18 It was undated, so I'm not sure what the date was. I

19 don't recall other information on costs to remediate

20 per pit from Petroecuador at -- at this point.

21 Q. Let me direct your attention back to the

22 Cabrera report, which is labeled as Exhibit --

23 MS. GRAY: 1113.

24 Q. -- 1113.

25 A. Okay.




1 Q. In the back of that, in the last -- kind of --

2 I guess three blue pages back is Annex N.

3 A. Three blue pages?

4 MS. GRAY: It's not the last section --

5 THE WITNESS: Okay. Yup.

6 MS. GRAY: -- but the one just before the

7 last.

8 Q. And reviewed Annex N, soil remediation costs?

9 A. Yes.

10 Q. Okay. Let me direct your attention to two

11 things. First, the very last page of Annex N, 9 of 9,

12 and I want to point out something which I found quite

13 interesting. The last paragraph, the very last

14 sentence says the total estimated remediation cost for

15 contaminated soil is 1 million -- I'm sorry,

16 1,000,697,000 [sic]. Do you see that?

17 A. I do.

18 Q. Below that is a chart reflecting total cost to

19 remediate soils. In the right-hand column is one --

20 essentially one -- 1,000,852,000 [sic]. Do you see

21 that?

22 A. I do.

23 Q. I submit to you that the final Cabrera report,

24 those two numbers are consistent as opposed to the

25 report that you were provided where they are




1 inconsistent.

2 A. "The final" meaning the Appendix N?

3 Q. Meaning Appendix N that was filed with the

4 Court in Ecuador. That discrepancy did not exist.

5 Where it does exist, sir, is in the draft Stratus

6 reports. As we talked about earlier, Stratus was the

7 company that drafted the Cabrera annexes. Do you

8 recall that conversation we had?


10 A. I recall -- recall you informing me of that,

11 yes.

12 Q. Okay. In fact, you were provided -- this came

13 from your production.

14 A. Um-hum.

15 Q. Did it not? I note the Allen-Native Bates

16 number at the bottom.

17 A. Um-hum.

18 Q. Were you provided any other copy or version of

19 Annex 9 than this one that you provided in your

20 production?

21 A. Annex N?

22 Q. I'm sorry. Annex N.

23 A. Not that I recall.

24 Q. Okay. Did you call into question when you

25 received this the fact that the -- in the text Annex N




1 lists a total remediation cost that is $200 million,

2 essentially, less than what is in the chart directly

3 below it?


5 A. I may not have noted this particular

6 discrepancy. I did note discrepancies in Cabrera's

7 numbers from the time he published his April or March

8 2008, and then there was an update or supplemental in

9 November 2008, and there were references made to

10 calculation errors, and his numbers did change.

11 Q. In fact, from the time Stratus drafted this

12 annex to the time it was filed, that's when the

13 additional $200 million in costs found their way into

14 the report.


16 Q. Okay. I also want to direct your attention to

17 Paragraph 2.3 on the page immediately prior. There is

18 a sentence right in the middle of that paragraph that I

19 purport to you you will not find in the final Cabrera

20 report but has found its way into your draft coming

21 from Stratus, and that is, On the other hand, the

22 ongoing PEPDA cleanup in the concession is reported to

23 cost about $60 per cubic meter, and it is as much --

24 and it is a much less aggressive and much less

25 expensive cleanup than what is proposed here.




1 Do you see that?

2 A. I see it.

3 Q. Do you recall reading that sentence in your

4 review of -- of your version of the Cabrera report?


6 A. Not specifically that sentence. I don't

7 recall as I sit here today.

8 Q. Did you have any conversation with anyone

9 about why that sentence was deleted from the final

10 Annex N in the Cabrera report?


12 A. I have no knowledge that it was deleted --

13 MR. SMALL: He wasn't even involved.

14 A. -- from the final Appendix N of Cabrera's

15 report.

16 Q. So you didn't see -- did you purport to see or

17 were you given what you believed to be the final

18 Cabrera report at any point in time during your

19 engagement in this matter?


21 A. I was given the Cabrera report which came to

22 me from The Weinberg Group, and I assumed that that was

23 the report that was produced to the Court.

24 Q. How many versions of the Cabrera report did

25 The Weinberg Group provide to you during the course of




1 your engagement?

2 A. I received one copy of the report, which is

3 the copy that I've produced here, and as far as I knew

4 and know, that was the final version -- or the only

5 version that I had received.



8 BY MR. BLUME:

9 Q. I'm putting in front of you what's marked as

10 Chevron Exhibit 1118, which I will tell you is the

11 certified English translation and the accompanying

12 filed Spanish version of Annex N from the filed Cabrera

13 report, and I will ask you to turn to the last page of

14 the English translation -- or the English version, I

15 should say, which is in the middle of the document that

16 I've handed you.

17 A. What page are you on, please?

18 Q. It would be the last -- it's an unnumbered

19 page, but the last page of the English version before

20 the certified -- the translation certification and the

21 beginning of the Spanish version.

22 A. Okay. Yup.

23 Q. This is what was -- this is the official

24 certified translation of what was filed in Ecuador, and

25 I direct you to Paragraph 3 on that page in which the




1 last sentence --

2 MR. SMALL: I'm sorry. When you -- I don't

3 mean to interrupt you, but when you say "official," do

4 you mean that this is the version that Chevron had

5 translated or --

6 MR. BLUME: This -- yeah. This is a certified

7 translation of the -- of the Spanish version which was

8 filed --

9 THE WITNESS: Um-hum.

10 MR. BLUME: -- in the court of Ecuador -- in

11 Ecuador.


13 Q. And I direct you to Paragraph 3, which the

14 last sentence says, Total estimated remediation costs

15 for all contaminated soil is 1. -- is 1,852,000,000.

16 Do you see that?

17 A. I see it.

18 Q. And that's a different number than was

19 contained in the version that was provided to you by

20 The Weinberg Group; is that correct?

21 A. I assume so if this is different than what I

22 was previously shown.

23 Q. And I also direct your attention to the

24 paragraph immediately before, 2.3, which you are more

25 than happy to take your time and review, and I suggest




1 to you that the sentence indicating a $60-per-cubic-

2 meter cost to remediate the concession area by PEPDA is

3 eliminated in fact from the final version. Do you see

4 that?

5 A. It appears that that is the case, yes.

6 Q. So in fact, regardless of the fact that this

7 was a Stratus-generated draft that you reviewed, did

8 you consider the $60-per-cubic-foot number, the actual

9 cost of PEPDA in its remediation, when assessing your

10 cleanup costs?


12 A. I have no --

13 MS. GRAY: Why?

14 MR. SMALL: Pardon?

15 A. No --

16 MR. BLUME: Quiet over there. Sorry.


18 Q. Okay. HBT determined -- the HBT report

19 determined that approximately 31 percent of the sites

20 were considered to be low impact.

21 A. Um-hum.

22 Q. 18 percent were considered to be medium

23 impact. 41 were -- 41 percent were considered to be

24 high impact and 10 percent no impact. And I take that

25 from Page 13 of your report. Do you remember that




1 analysis that you reviewed?

2 A. Yes.

3 Q. You, however, lumped together the no-impact

4 sites with the low-impact sites, effectively

5 eliminating 10 percent of the sites or -- I should

6 state it this way: Effectively including in the cost

7 of remediation an additional 10 percent of the sites

8 that HBT Agra did not include. Is that correct?

9 A. We combined that, yes.

10 Q. What was the basis for eliminating the

11 no-impact sites and adding them to the sites requiring

12 remediation?

13 A. I didn't see where HBT Agra had provided

14 enough information about the no-impact sites, and

15 because of that, I decided that because of how they had

16 defined their low-impact sites, that for the purpose of

17 this valuation I would lump those two categories

18 together under the low and then have the medium and the

19 high as the remaining two categories for the well

20 sites.

21 Q. By lumping those two categories together, you

22 effectively increased the cost of remediating the low-

23 impact sites by 10 percent; isn't that right?

24 A. That -- that's how the math works out, yes.

25 Q. And your concern, if I understand this, was




1 that you saw no independent basis within HBT Agra for

2 separating out sites -- 10 percent sites as no impact;

3 is that right?


5 Q. And what -- exactly what data did you rely on

6 to reach a different conclusion; that is, that those

7 no-impact sites should be -- were in fact low-impact

8 sites?

9 A. I'm sorry. Reask that question again, please.

10 Q. Is it true that you concluded independently

11 that the sites that HBT Agra designated as no impact --

12 A. Um-hum.

13 Q. -- were in fact low-impact sites; isn't that

14 right?


16 You can answer.

17 A. That's the assumption that I used in my

18 evaluation approach.

19 Q. And upon what data did you rely to reach that

20 conclusion?

21 A. Well, it was a lack of data that showed me

22 that there was no impact to those sites, that those --

23 those sites did not need to be remediated.

24 Q. And without the data, you presumed that rather

25 than simply eliminate them, they should be remediated?




1 A. Or have -- they should be remediated to some

2 degree or that they might require remediation to some

3 degree.

4 Q. Sitting here today, do you have any

5 independent -- can you reach any independent conclusion

6 that in fact those 10 percent sites require any

7 remediation at all?

8 A. No, I cannot sitting here today without

9 additional information and evaluation.

10 Q. Based on the reported costs -- or -- let me

11 rephrase that.

12 Looking at a 1,000 ppm standard, you estimated

13 unit costs to be $118 per cubic meter for biological

14 treatment remediating to a 1,000 ppm standard; is that

15 correct?


17 Q. And if I understand your analysis, and feel

18 free to refer to your report, you took -- using data

19 from the Argonne National Labs website, you took a

20 $70-per-cubic-meter cost, adjusted it to present day,

21 added round-trip transportation to spread fill,

22 discounted 30 percent, and came up with that number,

23 and I refer specifically to Table -- I think it's A-5

24 in your report. Is that right? Yes.

25 A. Yes, it is.




1 Q. Okay. Is that a rough summary of kind of the

2 methodology that you used to reach that number?

3 A. Yes, it is a general summary. The references

4 to the sources of data that we used are contained in

5 that heading, and I was just looking for the Argonne

6 National reference.

7 Q. Drilling waste management fact sheet -- I'm

8 sorry. A-6. The drilling waste management fact sheet

9 bioremediation information. That was from the Argonne

10 website; is that not -- is that correct?

11 A. I'm still trying to locate that. I'm sorry?

12 4?

13 Q. A-6, line 3. Composting unit costs?

14 A. Yes. Okay. Yup.

15 Q. You see that?

16 A. I'm with you. Yup.

17 Q. Okay.

18 A. Sorry.

19 Q. A review of that website actually, if you

20 recall, has a range of $40 to $70 per cubic meter

21 reported; is that -- do you recall that?

22 A. I don't recall that unless I looked at the

23 original source document.

24 MR. BLUME: Do we have a copy of that source

25 page?




1 MS. GRAY: Just by itself?

2 Q. We'll find that for you. But do you recall

3 the analysis that you undertook to determine why $70

4 per cubic meter was the appropriate amount for the unit

5 costs?

6 A. I don't recall as I sit here. Again, I would

7 need to look at the source document and --

8 Q. Did you review all of the source papers

9 underlying the assessment of that cost -- or the

10 calculation of that cost?

11 A. Most of them, yes.

12 Q. You add to that number -- we'll come back to

13 that in a second, but you add to that number the

14 inflation factor. What is the basis upon which you

15 increased the cost for inflation?

16 A. Is this the cost adjustment factor we're

17 looking at here in this column?

18 Q. Yes.

19 A. I believe that came from standard financial

20 inflation data which is, I believe, tabulated in one of

21 the spreadsheets that I produced to you. I believe

22 it's a soil remediation spreadsheet.

23 Q. In your experience, has bioremediation

24 costs -- have they increased or decreased since 1994?

25 A. I guess I would have to say I'm not sure




1 unless I looked at specifically the bioremediation

2 system that was implemented and how it was implemented

3 for a particular site.

4 Q. But you increase them on your chart, do you

5 not?

6 A. I increased it by virtue of the inflation

7 factor, yes.

8 Q. Without considering any offset related to

9 the --

10 A. Improvements in --

11 Q. -- improvements in technology?

12 A. Yes.

13 Q. Yes, you didn't consider improvements in

14 technology?

15 A. No --


17 A. I used the unit costs that we had available

18 for this as of 2008, which is in this case -- 2008,

19 yes, and then we used the cost adjustment factor to

20 bring it up to 2010 dollars. It's standard practice.

21 Q. You're aware that Texpet's remediation costs

22 back in the early '90s were higher than PEPDA's

23 remediation costs currently as a result of increased

24 efficiencies in the technology; are you aware of that?





1 A. I'm not aware of that, and in fact I -- I

2 looked at -- I found only one reference to Texpet's

3 costs for remediation and again in the Texpet document

4 that they produced to the web, and it appeared to be

5 lower than what Petroecuador was remediating their pits

6 to at the same point in time, so --

7 Q. What specific document are you referring to?

8 A. I'm referring to a document that I've obtained

9 off from the Internet which I provided to you. It's an

10 undated document by Texaco or Texpet that describes the

11 remediation program that took place in 1995.

12 Q. Did you produce the underlying papers with

13 regard to the actual unit cost evaluation that you did?

14 You mentioned that -- I asked whether you looked at the

15 underlying documentation from the Argonne site, and you

16 said you had reviewed that underlying data.

17 A. Yeah, I believe that was produced to you as

18 part of -- or we produced -- provided the reference in

19 my bibliography for that.

20 Q. I'm not sure I saw those papers in the

21 website, but -- in your production, but I can check

22 that.

23 A. We certainly can.

24 Q. So when you -- you looked at Texpet, did you

25 make any effort to find out what Petroecuador's actual




1 unit costs were for remediation currently?


3 A. I asked for information relating to the PEPDA

4 program where they were remediating to 2500 ppm.

5 Q. Did you get that information?

6 A. I did not receive any.

7 Q. Would you be -- would it -- do you know

8 that -- or did you learn through the course of your

9 engagement that PEPDA -- Petroecuador obtained a range

10 of bids for unit costs ranging anywhere from $29 a

11 cubic foot to $45 per cubic foot, significantly lower

12 than your $70 estimate?


14 A. Do you mean cubic meter or cubic foot --

15 Q. I'm sorry. Cubic meter. I'm sorry.

16 A. -- because that makes a big difference.

17 Q. Yeah, yeah, yeah. Cubic meter.



20 Q. If you had known that, would those -- would

21 that not be information that you could have applied to

22 a quoted price methodology under ASTM 2137?


24 A. I may have been able to apply that, yes,

25 depending upon the information.




1 Q. And those in fact would have -- would likely

2 have provided better estimates of the actual cost of

3 bioremediation within the relevant area; isn't that

4 true?


6 A. They may have.

7 Q. And in fact, lower unit costs under your

8 formula would have lowered your conceptual-level

9 estimate; isn't that true?


11 A. That would have likely been the case, yes.

12 Q. For the 100 ppm standard, you looked -- you

13 considered thermal desorption for the best technology,

14 best treatment option for the higher remedial cost

15 estimate of 100 ppm; is that right?


17 Q. But there's no guarantee that thermal

18 desorption would have achieved 100 ppm; is that right?


20 A. I guess I'm not sure what you mean by

21 "guarantee." Thermal desorption is a very efficient

22 technology that more than likely would have gotten the

23 soils down to that remedial level.

24 Q. Do you know -- can you point me to any

25 specific examples where thermal desorption in a crude




1 oil site has resulted in -- in remediation to a 100 ppm

2 level?


4 A. I can't as I sit here today.


6 Q. Do you know what temperature would be needed

7 to reach 100 ppm for weathered crude in a thermal

8 desorption technology?

9 A. The thermal absorption technol- -- to answer

10 your question, not as I sit here today, but the thermal

11 technology that we use operates in the range of about

12 600 to 1,000 degrees Fahrenheit.

13 Q. And that's for -- that's to -- that's to

14 remediate -- that is to achieve 100 ppm for weathered

15 crude --


17 Q. -- in Superfund sites?


19 A. I'm not sure of what that temperature range

20 is -- is capable of achieving with respect to crude oil

21 at Superfund sites.

22 Q. Okay. And it's fair to say that the

23 contaminant that we're -- is relevant to the former

24 concession area is weathered crude, is it not?





1 A. That would be fair to say, yes.

2 Q. What -- what happens to the soil as a result

3 of thermal desorption at that -- at those temperatures;

4 do you know?


6 A. In terms of what?

7 Q. In terms of the resulting quality of the soil.

8 A. The contaminants are -- well, it depends upon

9 what the constituents of that soil are. But the

10 contaminants are destroyed. Presumably the soil can

11 then be returned back to the -- the contaminant site

12 where they came from and reused as backfill.

13 Q. Is it your opinion today, your expert opinion,

14 that the soil after remediating with thermal desorption

15 at those temperatures could just immediately be

16 returned without any additional -- without any

17 additional effort to return it to viability?


19 A. No, that's not, because there may be

20 additional processes that might have to be employed to

21 take care of anything that wasn't destroyed with the

22 thermal desorption process. One particular issue is

23 metals can sometimes cause a problem in thermal

24 desorption systems and a typical posttreatment would be

25 a stabilization or solidification step to take care of




1 the metals or a leaching step to take them out of the

2 soil matrix altogether.

3 Q. In fact the technology that you suggest might

4 in fact make the soil worse such that revegetation in

5 those -- in those affected areas would be harder after

6 your technique of thermal desorption to those levels

7 than it would be before; is that true?


9 A. I would have to look at the information and

10 reevaluate that. It's possible, but I have no specific

11 knowledge of that as I sit here today. It would depend

12 upon the composition of the soils and additional

13 factors.

14 Q. A -- in your Table A-5 assumes that about

15 650,000 square feet of topsoil would be required to

16 revegetate that area. From where in the -- in the

17 Oriente would that come?


19 A. I'm not sure that we had actually gone to the

20 point of determining where in the Oriente you would

21 find clean back soil to put into -- again, this is a

22 conceptual-level estimate. We didn't do this to the

23 extent of actually developing a conceptual design that

24 could then be taken and moved into a remedial design

25 and implemented. This is a conceptual-level approach




1 where we determined that it would be an efficient way

2 to treat the soils down to 100 tpm -- 100 ppm to use

3 total petroleum hydrocarbon. Now, in reality -- that's

4 what we conceived of.

5 In reality, before you actually did that, you

6 would go through a bench test or pilot scale test more

7 likely to make sure that indeed you could use that

8 remedial technology to achieve that end point in

9 cleaning up your soil. At that point in time you might

10 discover that depending upon the characteristics of the

11 soils you had an additional problem to take care of

12 with metals that got oxidized and became more mobile in

13 the environment, so you might have to consider a

14 secondary treatment drain to take care of that or what

15 other contaminant might be created from it.

16 The point here is, once again, this was a

17 conceptual-level valuation. This was not a detailed

18 study. The kind of thing you're talking about is the

19 kind of thing that I've done when I've done feasibility

20 studies where I have looked at the alternatives and

21 have evaluated them using a set of criteria that

22 include effecting this implementation and cost, but

23 that's a whole order of magnitude more of an effort

24 than the effort that I employed here to develop this

25 potential conceptual-level estimate given the time




1 frame of two and a half weeks and the information and

2 data that I received.

3 Q. Turning to your unit cost estimate of $304 per

4 meter squared for thermal treatment. And again, it

5 appears that you took a unit cost estimate of $225 per

6 cubic meter -- 304 per cubic meter, sorry. $225 per

7 cubic meter, adjusted to present worth, accounted for

8 transportation and discounted 30 percent. Again, is

9 that a rough estimate of how you approached that?


11 A. That's a rough explanation of how I approached

12 it, yes.

13 Q. And your $225-per-cubic-meter cost came from a

14 figure of $150 per ton; is that right?

15 A. I believe that's what it says. What table are

16 we looking at again?

17 Q. Let's look at Table A-5.

18 A. Okay.

19 Q. 3a talks about thermal desorption unit costs

20 of $150 per unit ton.

21 A. I see that, yes.

22 Q. Okay. And your report cites to two sources:

23 This Argonne website and the U.S. Naval report.

24 A. Um-hum.

25 Q. Do you recall reviewing those sources?




1 A. I don't recall specifically reviewing these

2 two sources.

3 Q. How did you get from $150 per ton to $225 per

4 cubic meter?

5 A. I believe there would have been a conversion

6 done, and I don't see that right immediately as I sit

7 here. I'd have to review this and possibly go back to

8 my team.

9 Q. The Argonne National Lab, I will suggest to

10 you, shows a range for remediation costs of $75 to

11 $150, and again, you chose --

12 A. Per ton?

13 Q. Per ton. Per cubic meter.

14 A. I'm sorry?

15 Q. Per ton.

16 A. Okay.

17 Q. And again, you chose the number on the high

18 end, the $150, as opposed to the $75. Why was that?

19 A. Perhaps to be conservative. I'm not sure. I

20 wasn't predetermining that I was looking for any

21 particular number here. The numbers are referenced to

22 a particular source. I chose the upper limit of that

23 number. The upper limit was -- was chosen for the

24 purposes of this evaluation. I didn't do an

25 engineering cost evaluation on whether or not that's




1 the best number to use or an optimized number to use.

2 It is a number that I chose for the purpose of this

3 analysis.

4 Q. Why not pick something in between?

5 A. I could have, but I didn't. I picked 150.

6 Q. Which would result -- by choosing a higher

7 number, it will inevitably lead to a higher cost

8 estimate, higher conclusion in your report and a higher

9 cost; isn't that correct?

10 A. Well, sure. I could have picked all kinds of

11 different numbers that would have changed the estimate

12 upward and downward.

13 Q. But you didn't.

14 A. But I picked what I picked for this valuation.

15 Q. The highest one in the range; is that right?

16 A. In this particular case it was the highest one

17 in the range.

18 Q. And also in the particular case of the example

19 before, you picked the highest in the range, too?

20 A. Quite possibly.

21 Q. Well, possibly or you actually did?

22 A. Well, I mean, I'd have to go back and look at

23 it again, but if that's what you're telling me, then

24 yes. That's the highest one in the range as I see it

25 here.




1 Q. You also cite the naval technical report from

2 the Naval Facilities Engineering Service Center

3 document dated April 1998 for -- in an effort to adjust

4 for crude oil, and I think you pull out -- let me hand

5 it to you, do it that way.



8 BY MR. BLUME:

9 Q. Marked as Chevron 1119, is this the technical

10 report to which you refer in your report and from which

11 you get your unit cost of $150 per ton?

12 A. This is the report cited in this reference,

13 yes.

14 Q. Okay. And your report references the document

15 at Figure 5.3; is that right? And that's in Table A-5,

16 Row 3a?

17 A. Yes.

18 Q. So let's turn to Table 5. -- or Figure 5.3, if

19 I can. It's on Page 53 of the report.

20 A. Okay.

21 Q. Do you recognize this?

22 A. I'm -- this isn't familiar with me as I sit

23 here right at this moment.

24 Q. By not being familiar -- do you know what

25 reference this mobile thermal screw chart has to the




1 conclusion that you reached in your expert report that

2 thermal desorption unit cost was $150 per ton?

3 A. I'm not certain as I sit here today, no.

4 Q. Is there some analysis you can demonstrate for

5 me as to how you get to that number from this chart?

6 A. As I sit here today, there's not. I would

7 probably have to go back to my remediation team and

8 discuss this with them.

9 Q. Who specifically on your remediation team

10 would have information about how you reached the unit

11 cost of $150 per ton?

12 A. I'm not sure who specifically would have been

13 involved of the three individuals that provided me the

14 primary support.

15 Q. Do you have any idea about the assumptions you

16 made on moisture content of the remediated -- of the

17 purported remediated soil in your -- in your

18 conclusions?

19 A. As I sit here today, I don't, no.

20 Q. So you have -- you can't tell us here during

21 your deposition on your conclusions the basis for

22 your -- for the conclusions you reach on the cost to

23 remediate soil based on these charts; is that right?

24 MR. SMALL: Objection to your

25 characterization.




1 A. As I sit here today, I can tell you that we

2 used a unit cost of $150, which was based upon this

3 document referenced and provided, but how we obtained

4 that $150 from the information contained in that

5 document I can't tell you as I sit here today.

6 Q. Well, is it -- looking at this chart that you

7 reference specifically in Row 3a, it suggests that to

8 reach a cost of $150 per ton, you would have to be

9 talking about a site size of less than 2,000 tons. Do

10 you see that in this chart?

11 A. Yes.

12 Q. Is it your opinion, Mr. Allen, that the site

13 size at -- within the former concession area was less

14 than 2,000 tons?


16 A. No, that's not my opinion, necessarily.

17 Again, you've just presented me with this document and

18 asked me questions about it, which is at a fairly deep

19 level of detail. This information was developed with a

20 team of people that supported me, and I would have to

21 sit and look at this and probably go back and talk with

22 my team who developed these estimates and find out what

23 the correlation is.

24 Q. Well, and just so the record's clear, I'm

25 not -- you presented us with this data, Mr. Allen --




1 A. I understand.

2 Q. -- in your report, and you specifically cited

3 this chart.

4 A. I understand.

5 Q. And -- but what you're telling us today by way

6 of this scheduled deposition is that you cannot explain

7 how it is you came to determine the conclusions you

8 reach with regard to the high-level estimate of $949

9 million for 100 ppm TPH cleanup without going back and

10 speaking with your team; is that correct?

11 MR. SMALL: Objection to the form of your

12 question.

13 A. No, you're mischaracterizing it.

14 Q. Okay.

15 A. What I cannot --

16 Q. Explain to me what you can explain, then.

17 A. What I cannot --

18 MR. SMALL: Let him answer and he will do it.

19 A. What I cannot explain to you is the factual

20 basis for this $150-per-ton number, which is referenced

21 in that document. That's all I can't explain to you.

22 Q. And -- but it's -- I'm sorry. Go ahead.

23 MR. SMALL: Let him finish, please.

24 Q. I'm sorry. I thought you were done.

25 A. But there is an explanation for it. I just




1 don't happen to have that knowledge as I sit here

2 today. This valuation, which I have my name on and

3 stand by, was developed with a team of professionals

4 working for me. Different areas of expertise and

5 working on different sections of this report. This is

6 typical of anything that's done. This gentleman next

7 to you knows this.

8 Not a single individual will produce this kind

9 of a valuation with all of this costing data and

10 information in it. It's a team approach. It takes

11 different experts to do this thing. I employed those

12 to help me develop the valuation. You have asked me to

13 justify $150. It's cited to the source. I can't tell

14 you as I sit here today exactly how that relates to

15 this chart that's referenced, but I am certain that

16 there is an explanation for why the chart was used to

17 come up with $150. I don't have that answer for you as

18 I sit here today.

19 Q. The cite also references in parentheses

20 "multiplier of 3.0." Do you see that?

21 A. I see it.

22 Q. Do you have any basis today to explain to us

23 what that means or what multiplier or where that came

24 from?

25 A. Again, without going back and asking




1 specifically what this is in reference to and how it

2 relates to the number we provided you from this

3 reference cited, no, I cannot.

4 Q. So in order for us to gain information and

5 insight into the basis of $150 per ton for this

6 conclusion that you've reached in your report, we would

7 need to speak to someone else on your team; is that

8 correct?


10 A. Or I would need to go back and speak to them

11 myself.

12 MR. BLUME: Okay. And I would officially

13 request on the record that the deposition -- this part

14 of the deposition be reset to readdress this issue

15 which we are now prevented from discussing with either

16 a discussion with Mr. Allen for another period or

17 another time or someone else on his team that has the

18 appropriate knowledge set to answer our questions about

19 the foundation of the conclusions reached in Paragraph

20 3.2 of the report; that is, the total cleanup costs and

21 the high estimate of $949 million.

22 MR. SMALL: I object to that characterization

23 of what you're asking for and object to your request.

24 MR. BLUME: Well, and fine. So I'll ask one

25 more question just so we can close this out and move




1 on.

2 Q. Sitting here today, Mr. Allen, you're telling

3 me that you have no basis upon which to discuss with me

4 the foundations of the data that underlies your

5 conclusion that TPH cleanup to a high estimate of $949

6 million -- that you have no basis upon which to

7 describe for me and explain how that number came about;

8 is that correct?

9 MR. SMALL: Object to the form of that

10 question.

11 A. You're mischaracterizing.

12 MR. SMALL: Yeah.

13 A. And I disagree. I have no basis --

14 Q. Okay. So let me be clear.

15 A. Let me finish.

16 Q. Let me rephrase my question --

17 A. Let me finish.

18 Q. -- so I'm clear, okay?

19 A. Okay.

20 Q. Can you explain to me the basis for the unit

21 cost as it comes from this document that's cited in

22 your report that form the basis of both the low-end and

23 the high-end estimates? Can you explain that to me

24 today?

25 A. "The document" meaning the one we just looked




1 at?

2 Q. Meaning the -- the Row 3a in the thermal

3 desorption unit costs of Table A-5 as well as the

4 similar analysis under Table -- I believe it's A-6. Do

5 you have a basis by which to explain to me those -- the

6 table in A-5, do you have a basis by which to explain

7 to me the foundation of your conclusion that those

8 figures should be used to form the basis of your cost

9 remediation estimate?

10 MR. SMALL: Objection to the form of your

11 question again.

12 A. The basis is the information provided in this

13 table with the reference cited, and as to how that

14 information was used in that reference to get to that

15 value, I do not personally as I sit here today have the

16 ability to tell you how that was used, but there is

17 obviously an answer for that question.

18 Q. I'm sure there is, but you're not the person

19 to give me that answer, right?

20 A. No, I'm not.

21 Q. Okay. And -- and you're also not the person

22 to give me the answer or to explain to me what the

23 parenthetical "multiplier of 3.0" means; is that right?


25 Q. So you don't know whether that's -- well,




1 that's fair.

2 MR. BLUME: Why don't we take a minute and

3 change the tape.





8 5:10. We're going back on the record with Douglas

9 Allen.

10 BY MR. BLUME:

11 Q. Mr. Allen, you indicated that you have given

12 some thought to the questions about the $150 per

13 square -- per ton and you may have an explanation for

14 me.

15 A. Yes, I may. Going back to Exhibit 1119,

16 the --

17 Q. Naval document?

18 A. Yes. The technical report. It appears that

19 this may be a typo in my Table A-5, that what in fact

20 refers to Figure 5-3 may in fact be to Section 5.3 in

21 the document beginning on Page 41 and ending with the

22 table, Table 5-1 on Page 43.

23 The number of $150 per ton is in that Table

24 5.1, and that could be the possible explanation as to

25 the discussion that we had prior and in fact does not




1 relate at all to Figure 5.3. Having read this just

2 briefly here in this session, this certainly makes more

3 sense than trying to get an explanation for the $150

4 per ton based on that figure.

5 Q. And what -- what experience do you have using

6 an indirect contact rotary dryer as opposed to a direct

7 contact rotary dryer?

8 A. Personally?

9 Q. Yes.

10 A. I don't have any experience in the use of

11 either technology personally.

12 Q. And your explanation about this chart in 5.1,

13 is that in fact your -- what you're stating is going on

14 with this chart, or is that -- you're just guessing at

15 this point that that may be what's going on?


17 A. Again, I don't know that it is in fact the

18 correct answer, but I certainly believe that it is

19 probably closer to it than the use of the Figure 5.3 to

20 generate that $150-per-ton number.

21 Q. And -- and what about that -- the

22 parenthetical that discusses the multiplier 3.0?

23 What's that?

24 A. I don't have an explanation for you for that.

25 I was glancing through this section and I don't see any




1 reference to that 3.0 multiplier, so that's still an

2 outstanding issue.

3 Q. Okay. So we're -- I appreciate your effort to

4 clarify, but it's fair to say you're still not a

5 hundred percent certain and willing to testify to any

6 reasonable degree of scientific certainty that your

7 explanation on Row 3a in Table A-5 in your report is

8 explained by how you just described it?


10 Q. Is that right?

11 A. That would be accurate to say.

12 Q. Okay. Moving to groundwater remediation, in

13 your report on Page 18, you discuss -- you indicate,

14 Based on assumptions and analysis discussed above, you

15 estimate a potential cost to remediate contaminated

16 groundwater at the production site and well sites to

17 the Ecuadorian standard of .325 milligrams per liter

18 that could range from a low of 396 million to a high of

19 911. Do you see that?



22 BY MR. BLUME:

23 Q. "Based on the assumptions and analysis

24 discussed above, DCA estimated potential costs to

25 remediate contaminated groundwater at the production




1 sites and well sites to the Ecuadorian standard of

2 0.325 milligrams per liter for TPH could range from a

3 low of 396 million to a high of 911 million."

4 From where do you get the 0.325-milligrams-

5 per-liter standard?

6 A. That is the Ecuadorian environmental quality

7 standard for TPH in water.

8 Q. Really. And where do you find that?

9 A. That was in the information summarized by

10 Cabrera in the environmental quality standard section

11 or appendix.

12 Q. Did you independently determine whether in

13 fact that was -- that was true?

14 A. I read it out of the -- off from the directive

15 table that came from the environmental quality

16 legislation.

17 Q. Where did you get that information?

18 A. That was reproduced in the Cabrera report.

19 Q. Where in the Cabrera report?

20 A. In the appendix of environmental quality

21 standards.

22 Q. And to what does that .325-milligrams-per-

23 liter standard apply?

24 A. I believe it applied to underground waters.

25 Groundwater.




1 Q. How do you define "groundwater"?

2 A. Any water that is in the subsurface of the

3 environment.

4 Q. There have been many groundwater sampling

5 events within the concession area over the past 30

6 years; are you aware of that?

7 A. I've been -- I am aware that there have been

8 groundwater sampling done in the concession area. I'm

9 not sure I understand it to have been extensive or

10 complete.

11 Q. Did you review any reports generated by either

12 plaintiffs or defendants with regard to groundwater

13 sampling?


15 A. Other than the -- there was some limited

16 information available in the Agra and Fugro-McClelland

17 and information cited by Cabrera that results --

18 resulted from groundwater sampled during the judicial

19 inspections.

20 Q. Did you review independently enough data to

21 determine -- or to make a conclusion about groundwater

22 within the 400,000-hectare plot that is the former

23 concession area?

24 A. As I stated in my report, I didn't believe

25 there was enough data that I had available to make that




1 assessment. What I did was I looked at and made

2 assumptions about groundwater quality under and in the

3 immediate vicinity of the well sites and the production

4 areas, and that was the extent of my opinion.

5 Q. And does this opinion fall, similarly as the

6 soil did, within the potential conceptual-level

7 estimate area?

8 A. Yes, I believe it does.

9 Q. So sitting here today, do you have any

10 independent basis to opine that there is groundwater

11 contamination requiring remediation within the former

12 concession area?


14 A. Other than going out and taking samples

15 myself, no. I relied upon the information and data

16 that I cited to you previously.

17 Q. And you didn't go out and take samples

18 yourself, did you?

19 A. No, I didn't.

20 Q. So other -- so do you have any -- today any

21 independent basis to opine that there is groundwater

22 contamination requiring remediation within the former

23 concession area?


25 A. Again, other than the sources that I looked at




1 to determine that, no.

2 Q. Are you aware that the judicial inspection

3 experts sampled drinking water wells in and around the

4 sites and found little evidence of oil field-related

5 groundwater contamination?


7 A. I'm not specifically aware of that, no.

8 Q. Are you aware that serious questions had been

9 raised concerning the quality of the data collected by

10 plaintiffs and by Cabrera relating to groundwater

11 contamination?


13 A. I am aware there have been allegations made

14 about the collection of that groundwater data.

15 Q. What allegations are you aware of?

16 A. Just that there were potential issues over the

17 sampling done and how the samples were collected, and

18 that's the extent of my knowledge.

19 Q. Did that cause you any concern with regard to

20 your ability to rely on the data when you heard that

21 there may be concerns about the way that data was

22 collected?


24 A. Not really, because I had no way to verify

25 that one way or another.




1 Q. Did you ever look at photographs taken about

2 how -- that revealed how the plaintiffs and Cabrera

3 actually took groundwater samples?


5 A. No, I did not review any photographs.

6 Q. Did you review any -- any other expert reports

7 which discussed the sampling methodology by plaintiffs

8 and Cabrera related to groundwater contamination?


10 A. No, I didn't review any reports specifically

11 discussing the groundwater methods and techniques that

12 were used to collect samples.

13 Q. Sitting here today, can you point to any

14 evidence within the documents that you relied upon that

15 demonstrate or show evidence of groundwater

16 contamination specifically?


18 A. I can cite evidence of groundwater

19 contamination through the judicial information -- the

20 judicial inspection data that was reported by Cabrera

21 and I can look at the data file that was provided that

22 contained that judicial information and find evidence

23 of groundwater contamination.

24 Q. That data and those spreadsheets don't reveal

25 the methodology by which the groundwater was collected;




1 is that right?

2 A. I don't believe they cite the methods, no.

3 Q. And do those -- does that -- did you take into

4 account in assessing that data and analysis what

5 background levels of contamination might exist within

6 the groundwater?


8 A. Background levels of what?

9 Q. Of groundwater contamination. Of -- of the

10 contaminants.

11 A. Like TPH --

12 Q. TPH.

13 A. -- for background?

14 Q. TPH background levels.


16 Q. Do you know -- so sitting here today, you

17 can't tell me whether the data you reviewed was

18 actually above background levels of TPH; is that right?


20 A. I was assessing it with respect to the level

21 of 0.325 mgs per liter as my primary factor for

22 determining whether the groundwater was contaminated.

23 That is an environmental standard in Ecuador, and if

24 there are samples that had exceeded that, then it's

25 contaminated.




1 Q. What are the contaminants of concern located

2 within the groundwater in the concession area; do you

3 know?

4 A. The contaminants of concern?

5 Q. Yes.

6 A. In the groundwater?

7 Q. Yes. Specifically within the concession area.

8 A. Within the concession area.

9 Q. Within the concession area.

10 A. TPH. There have also been detections of some

11 of the fractions of petroleum, such as the aromatics;

12 benzene; benzo(a)pyrene; some metals, I believe. I'd

13 have to go back and look at the actual data to

14 determine specifically.

15 Q. Have you ever collected samples to do a

16 groundwater evaluation?

17 A. I have collected groundwater samples, yes.

18 Q. Where have you conducted groundwater samples?

19 Sorry.

20 A. At sites in the United States.

21 (Deposition Exhibit No. 1120-1122

22 were marked for identification.)

23 BY MR. BLUME:

24 Q. I'm placing before you what's been marked as

25 Chevron Exhibit 1120, 1121, and 1122 - these are three




1 photographs that I will tell you were taken of

2 groundwater sampling methods employed by plaintiffs in

3 the course of this case - and ask you to look at them

4 and tell me if you recognize in any of them any

5 accepted methodologies of collecting groundwater that

6 you've experienced in your career.

7 MR. SMALL: What are these pictures? Who took

8 them? When were they taken?

9 MR. BLUME: I'm --

10 MR. SMALL: What are they?

11 Q. You can answer my question.

12 MR. SMALL: You need to --

13 MR. BLUME: I don't need to do anything,

14 actually.

15 MR. SMALL: You need to say what these are.

16 A. Well --

17 Q. I'm just asking you, Do you recognize any of

18 these photographs as appropriate methods by which to

19 collect groundwater in any context in any place in the

20 world?



23 A. Based upon my experience in collecting

24 groundwater, I would not consider these to be the

25 standard procedures and techniques for collecting




1 groundwater, but as you show me three photographs, I

2 don't know if this was a onetime event. I don't know

3 anything surrounding the particulars of how or when or

4 by whom these samples were taken. I don't even know

5 from looking at these photographs if they were taken by

6 the plaintiffs. They could have been taken by

7 Chevron's consultants in Ecuador.

8 Q. You're absolutely right, and so I'm going to

9 ask you as an expert to assume the following facts:

10 That those photographs were taken in Ecuador of

11 plaintiffs and plaintiffs' experts and consultants

12 removing water for purposes of testing and sampling

13 groundwater within the concession area. Assume that's

14 true. Would it call into question your reliance on the

15 data that comes from the samples derived from those

16 techniques?


18 A. Based upon your hypothetical --

19 Q. Yes.

20 A. -- it might call into question the sampling

21 data collected from these samples.

22 Q. Are you aware that the HBT Agra report upon

23 which you have -- that you relied and discussed

24 actually concludes that concentrations of O&G in water

25 samples near well sites do not appear to vary




1 significantly from background samples collected far

2 from oil production sites?


4 Q. Are you aware of that conclusion?

5 A. I don't recall that specific finding in the

6 HBT report.

7 Q. Would it -- would it -- did you rely upon the

8 conclusions reached within the HBT Agra report to reach

9 your opinions on groundwater contamination within the

10 concession area?


12 A. In part, but what you just read me was a very

13 generalized statement. I don't know how those samples

14 were taken, when, how many wells. I don't know any of

15 the information behind it that I would need to know in

16 order to make an educated assessment of that. You just

17 simply read one sentence out of that report.

18 Q. And the data that you did rely on in reaching

19 your conclusions contained within Cabrera, did you know

20 any of the information that you just described to me,

21 specifically for the data upon which you relied in

22 reaching your conclusions on groundwater contamination,

23 do you know how those samples were taken?

24 A. As I sit here today, no, I do not.

25 Q. Okay. And do you know when those samples were




1 taken?

2 A. I don't believe there was a date associated

3 with them, but there could have been a date field in

4 the -- in the database that I'm just forgetting.

5 Q. And do you know how many wells from -- do you

6 know from how many wells those -- the data that you

7 relied upon to reach your conclusions --

8 A. I don't know as I sit here today, but again,

9 that data may be in the database, and I'd have to go

10 back and look at that and count them up.

11 Q. Okay. So the concerns you had about the

12 statement that I just read to you from HBT Agra really

13 apply to all the data that you reviewed in reaching

14 your conclusions in -- in your report; isn't that true?


16 A. No, I don't think that's true. I looked at --

17 I would look at the data from the judicial inspections

18 that has sample -- specific sample numbers that have

19 coordinates, that have who took the sample, that have

20 the depth in many cases and what kind of sample that it

21 was and the individual constituents, not just TPH but

22 all of the other individual constituents and what was

23 found in terms of concentrations. That suggests to me

24 a more rigorous data set to rely upon than that

25 preliminary or conclusive statement that you read in




1 the HBT report that I'd have to go back and read and

2 see what was the context in which that was made.

3 Q. Do you know if there are palm tree plantations

4 in and around the concession area?

5 A. I'm not aware of that as I sit here today.

6 Q. Would palm oil impact the results that may be

7 obtained in testing of background sampling?


9 A. It may, but I would have to evaluate that more

10 fully.

11 Q. Do you know if any of the judicial inspection

12 samples were -- concluded were background level

13 samples?


15 A. I'm sorry. If what?

16 Q. If any of the samples taken during the

17 judicial inspection revealed only background levels of

18 contaminants?

19 A. I can't recall any of that as I sit here right

20 now.

21 Q. What's the difference between -- are you

22 familiar with LNAPL?

23 A. Yes.

24 Q. Did you read -- did you read the judicial

25 inspection reports?




1 A. No, I did not, as I indicated earlier.

2 Q. Okay. So presumably you didn't see any of the

3 photos associated with the analysis done within the

4 judicial inspection; is that right?


6 Q. So you don't recognize the photo marked 1120

7 as coming from the judicial inspection reports, do you?

8 MR. SMALL: Object to the form.

9 A. No. There's nothing on here to indicate that,

10 and I don't recognize it as such.

11 Q. Having not read the judicial inspection

12 reports; is that right?

13 A. That's what I stated.

14 Q. Okay. Do you know what LNAPL is?

15 A. LNAPL is light nonaqueous phase liquid.

16 Q. Okay. And what's the difference between LNAPL

17 in or on groundwater -- well, strike that.

18 Does Ecuador have a standard for LNAPL?

19 A. I'm not aware of a standard for LNAPL.

20 Q. You mention in your report that LNAPL serves

21 as a continuous source of TPH contamination in the

22 groundwater. Do you remember saying that?

23 A. I do.

24 Q. Can you explain how LNAPL would serve as a

25 continuous source of TPH contamination?




1 A. LNAPL would be captured in the subsurface

2 soils beneath the well pits, and if it was not removed,

3 it would continue to leach constituents out of that and

4 down into the groundwater, and that would cause and

5 continue to cause a source of contamination.

6 Q. But it doesn't last forever, does it?

7 A. Well, it lasts for as long as the LNAPL is in

8 the subsurface, which can be a considerable length of

9 time depending upon many factors relating to the

10 hydrogeology of the site.

11 Q. And one of the factors that would matter would

12 be the solubility associated with the LNAPL; is that

13 correct?

14 A. Well, the solubility of the constituents in

15 the LNAPL as well as the permeabilities of the soil as

16 well as a bunch of factors.

17 Q. And we already talked about the soil. You

18 indicated that was clay and less permeable -- one of --

19 not as permeable as other types of soil; is that

20 correct?


22 A. My understanding based upon reviewing the

23 reports that I did was that the soils, which throughout

24 this large area would vary considerably, by the way --

25 I'm not suggesting that all the soils in the concession




1 area are clays, because they're not, but there's a

2 large percentage of soils that are clay -- clay-type,

3 silty-type clays, less permeable soils than sand. Let

4 me rephrase it that way.

5 Q. And what do you -- what do you know about the

6 solubility of crude oil within the Oriente?

7 A. I don't have any specific knowledge of the

8 solubility of crude oil. You're talking about not just

9 the solubility of crude oil but you're talking about

10 the solubility of 150 or more compounds or petroleum

11 hydrocarbons that -- that make up crude oil.

12 Q. So you're not familiar -- I presume you're not

13 familiar with the peer-reviewed publication from 2010

14 by O'Reilly and Thorsen indicating specifically that

15 oil contamination in Oriente are not sufficiently

16 soluble?


18 Q. Have you read that piece?


20 A. I have not.

21 Q. Okay. Are you aware of -- of the weathering

22 studies contained within every judicial inspection

23 showing significant loss of the more -- of more -- more

24 soluble hydrocarbons?





1 A. I'm not aware of any weathering studies, no.

2 Q. Do you understand the difference between

3 infrared detection and gas chromatography as it relates

4 to the analysis of groundwater samples?

5 A. In -- in general, yes.

6 Q. Do you know which was used in -- which method

7 was used in this instance, in the -- in the -- in the

8 data that you reviewed for this case?

9 A. I don't know what the methodology -- the

10 specific methodology was used for any specific

11 sampling, no.

12 Q. Would the method -- would the method of

13 sampling impact the conclusions and the results that it

14 would yield?

15 A. I believe I've already answered that, and it

16 may impact it.

17 Q. But it wasn't -- but you didn't take any

18 efforts to figure out what methodology was used to

19 analyze these samples; is that correct?


21 Q. You assume -- in your groundwater cost

22 estimates you assume recoverability of certain

23 quantities of LNAPL; isn't that correct?


25 A. I believe that to be correct.




1 Q. And much -- in fact, many -- much of your cost

2 is attributable to the recovery of the LNAPL; isn't

3 that right?

4 A. I believe that to be correct.

5 Q. On how many sites did H- -- and that's based

6 on the HBT Agra report, according to your report?

7 A. To -- to make the assumption that LNAPL was

8 present, yes.

9 Q. And --

10 A. Could be present.

11 Q. At how many sites did HBT Agra observe

12 recoverable LNAPL?


14 A. I don't believe they stated how many sites

15 they'd actually recovered LNAPL, only that they had

16 found LNAPL in some of the sites that they had observed

17 as part of their assessment.

18 Q. Did you make any independent assessment of

19 the -- of the thickness of the LNAPL at sites as it

20 would relate to the availability to recover it?


22 Q. Do you know if any LNAPL was observed through

23 the judicial inspection process?


25 A. No, I do not.




1 Q. You cite the American Petroleum Institute, the

2 API 1999 study describing the viscosity, saturation,

3 formation, thickness of LNAPL. Do you remember that?

4 A. I don't recall that specifically.

5 Q. Have you read that recently, that study?

6 A. I haven't read it recently.

7 Q. Have you read it within the last -- since --

8 have you read it since August 25th, 2010?

9 A. Since August 25th, 2010? I might have

10 reviewed it. I can't recall specifically if I reviewed

11 that reference or -- it was certainly reviewed by one

12 of my team if it's cited.

13 Q. Is it possible that -- it's true, is it not,

14 that there are reports in this case that could have

15 been available to you suggesting that recovery of LNAPL

16 is not possible within this area?


18 A. I'm not aware of any reports that state that.

19 Q. Did you read any reports on recovery of LNAPL

20 in this case?


22 Q. So you weren't -- you're not aware of it

23 because you looked and you didn't find it or because

24 that information was not provided to you?





1 A. I did not review or receive any information of

2 that kind.

3 Q. Is it possible that there is no recoverable

4 LNAPL in the concession area?


6 A. It's possible if the LNAPL has worked its way

7 down deep enough into the subsurface and gotten into

8 bedrock, yes, that is a typical problem for remediating

9 sites that have LNAPL in areas that are hard to reach,

10 such as fractures in bedrock.

11 Q. Are you aware that in the U.S. and elsewhere

12 in the world groundwater impacts from crude oil

13 production are very rare?


15 A. As I sit here today, I'm -- I'm aware that

16 there are situations where groundwater impacts from

17 crude oil are not significant, but I'm not sure I would

18 agree with your characterization that as a whole they

19 are rare.

20 Q. I'll -- I'll accept "not significant."

21 When you talked about the fact that it's

22 possible that there's -- based on these conditions you

23 mentioned that there's no recoverable LNAPL, does a

24 factor in that have to do with the -- that operations

25 in that area may have ceased almost 20 years ago?





2 Q. Would that impact the -- the recoverability of

3 LNAPL?

4 A. It might only insofar as it would have allowed

5 time for the LNAPL to migrate further down into the

6 subsurface stratum.

7 Q. Did you do any independent assessment as to

8 whether or not the -- the attenuation over time has

9 made the recoverability of LNAPL impossible?

10 A. For the purposes of this valuation, no.

11 Q. Is there -- do you have any opinion as to

12 whether or not time would stabilize the LNAPL in such a

13 way that it would no longer be recoverable or

14 contaminating?

15 A. No, I don't have any opinion.

16 Q. Okay. Do you know what happens to LNAPL over

17 time, how it -- what -- what physical qualities -- what

18 physical changes it undertakes?

19 A. Over time LNAPL can become more viscous by

20 virtue of the fact that the more mobile fractions will

21 have migrated out of the LNAPL area. Then there are

22 other processes, biological and other in-situ

23 processes, that would change the characteristics of

24 that LNAPL.

25 Q. So it's your opinion sitting here today that




1 over time LNAPL becomes more viscous?

2 A. That is one possible outcome of it, yes.

3 Q. And another possible outcome of it is it

4 becomes less viscous; isn't that right?


6 A. I believe that to be possible.

7 Q. Would it surprise you to learn that

8 groundwater contamination has only been undertaken in

9 fewer than 1 percent of the thousands of abandoned well

10 sites that have been remediated in Texas and Louisiana?


12 A. I'm not aware of that fact, and I would also

13 be interested in knowing what was triggering the

14 remediation of groundwater in those instances that you

15 just spoke about.

16 Q. In your report, you assume that groundwater

17 remediation required in all 22 production stations, 59

18 percent of the well sites; is that correct?


20 Q. And based on your estimates, it appears that

21 it's about 50 percent of the total remediation cost; is

22 that correct?


24 Q. In any other instance in your experience or

25 any experience that you've heard of, have groundwater




1 remediation costs equaled 50 percent of total

2 remediation costs for a -- for a crude oil-contaminated

3 site?


5 A. I don't have any specific knowledge about

6 groundwater costs being 50 percent of the total

7 remediation costs for crude oil sites.

8 Q. Other than your -- your analysis in this case;

9 is that correct?


11 Q. On Page 19 of your report you appear to

12 contend that sediment contamination exists but that

13 further analysis needs to be done; is that right?


15 Q. Do you have -- what evidence do you have for

16 any sediment contamination at all?

17 A. There were a limited amount of figures, I

18 believe, that came from Cabrera in one of the

19 appendices that were basically -- I believe they were

20 done during the judicial inspections or they could have

21 been done during his. I'm not clear on that at this

22 moment. But they showed that there was detectable TPH

23 in areas where there would be sediments such as wetland

24 areas that were nearby some of the well sites. It

25 would also -- there was also reference made to oil




1 being found in drainage ditches and channels that would

2 indicate to me that there was potentially contamination

3 of the sediment in those channels.

4 Q. And just to go back for a minute, do you have

5 any specific knowledge of groundwater contamination at

6 an oil production site?


8 A. At an oil production site?

9 Q. Yes.

10 A. Not as I sit here today.

11 Q. And can you point to a single crude oil-only

12 groundwater cleanup in your experience?


14 A. Not as I sit here today. That doesn't mean

15 they don't exist. I would have to just do some

16 research on it.

17 Q. Okay. Your -- your expert opinion, you don't

18 contend to purport any cost associated with the

19 remediation of sediment, do you?

20 A. That's correct. There is nothing in there

21 that is costed out for the remediation of sediment.

22 Q. Okay. And sitting here today, based on your

23 potential conceptual-level-only estimate, you don't

24 purport with a reasonable degree of any scientific

25 certainty to opine on the actual cost to remediate soil




1 in the concession area; is that correct?


3 A. What I have -- what I have opined on are the

4 potential costs to remediate soil in the concession

5 area based upon the data and information I reviewed and

6 the assumptions that I used.

7 Q. I understand that. You don't have -- sitting

8 here today, you're not opining on the actual cost of

9 remediation; is that correct?

10 A. As -- the "actual costs" meaning that have

11 been spent or that I'm telling you these are the actual

12 costs that are going to be used to clean up the soil

13 remediation?

14 Q. The latter.

15 A. I'm not telling you these are the actual

16 costs. I'm telling you that this is the conceptual and

17 potential range of costs for cleaning up soil in the

18 concession area --

19 Q. And is that --

20 A. -- based upon the assumptions and the

21 uncertainties and limitations of my valuation.

22 Q. And is that true for your analysis of

23 groundwater as well?

24 A. Yes, it is.

25 Q. And is that -- well, and you come to no




1 conclusions about sediment remediation costs; is that

2 correct?


4 MR. BLUME: How am I doing? Done, huh?

5 Q. Hold on. Indulge me with one last question?

6 A. Sure.

7 Q. Yeah. Just -- just so we understand the

8 potential -- potential conceptual -- I'm sorry. Let me

9 get it right. Conceptual potential estimate? Hold on.

10 Conceptual -- potential conceptual-level estimate, is

11 it fair to say that the range that you provide, given

12 that it's a potential conceptual-level estimate, based

13 on changes to your underlying assumptions, that range

14 could actually in reality fall lower than your low end

15 or in fact higher than your high end given any change

16 to the assumptions upon which you rely; is that true?

17 A. That's fair to say, yes.

18 MR. BLUME: Okay. I have nothing further.

19 MR. SMALL: Okay. Do we need to change

20 anything?

21 THE VIDEOGRAPHER: Ready to roll.

22 MR. SMALL: Let me just hit the head real

23 quick.


25 5:41, and we're going off the record.






3 5:45. We are back on the record with Douglas Allen.

4 EXAMINATION

5 BY MR. SMALL:

6 Q. Mr. Allen, I just have a few questions based

7 on some of the questions that were asked.

8 Concerning the report that you submitted, when

9 you were asked to do the report, did you understand

10 that it was going to be translated into Spanish and

11 submitted to the Court in Ecuador?

12 A. Yes, I did understand that.

13 Q. Okay. And when you -- when you provided a

14 signature at the end of your report, did you understand

15 that the report would be translated?

16 A. Yes, I did understand that.

17 Q. And is it your understanding that your report

18 has been translated?

19 A. Yes. I understand that it has been

20 translated.

21 Q. And do you understand that a translated

22 version of the report with your signature has been

23 submitted to the Court in Ecuador?

24 A. That is my understanding.

25 Q. And although you didn't personally go to the




1 courthouse in Ecuador and submit the Spanish version of

2 the report with your signature, it's your understanding

3 that -- that it has been submitted to the Court in

4 Ecuador?

5 A. Yes, I understand that it has been submitted

6 to the Court.

7 Q. And -- and additionally, you have received

8 both the English and Spanish versions of -- of your

9 report?


11 Q. And you have no reason to believe that the

12 version in Spanish is any -- is -- you have no reason

13 to believe that there are -- that anything has been

14 changed and that it is a professional, certified

15 translation of your report?

16 A. No, I don't have any reason to believe that.

17 Q. Okay. You mean that it's -- you have no

18 reason to believe that it's -- you have reason to

19 believe that it's a valid translation of your report?

20 A. That's correct. I have no reason to believe

21 that it isn't a valid translation of my report.

22 Q. Okay. And how would you describe your area of

23 expertise just briefly?

24 A. My area of expertise is in evaluating the

25 reasonableness and appropriateness of costs incurred to




1 clean up environmental contamination. That expertise

2 includes contamination at sites ranging from a number

3 of different industries and including contaminants

4 ranging from petroleum hydrocarbons to chlorinated

5 solvents to PCBs and heavy metals.

6 Q. Do you stand by all the findings and the

7 conclusions in your report?

8 A. As the report has been developed as a

9 potential -- as a potential conceptual-level estimate

10 based upon the information and data that I reviewed for

11 the report and the assignment that I was given, as I

12 sit here today, I still stand by the evaluation that

13 was done for this report.

14 Q. Do you consider your conclusions to be

15 reasonable and conservative?

16 A. I consider my conclusions to be reasonable and

17 conservative based upon the assumptions that I made,

18 the information and data that was made available to me

19 with the uncertainties and limitations that I expressly

20 stated in the report.

21 Q. Is it correct that it is not relevant to your

22 analysis who wrote the Cabrera report?

23 A. As I stated earlier, I took the information

24 and data from multiple sources, including Cabrera, at

25 face value and did not attempt to determine the




1 validity of that information. This is consistent with

2 the way in which I review reports done by every other

3 consultant for any of the other valuations that I have

4 been involved with. The issue of who wrote the reports

5 and the validity of those reports does not usually come

6 up.

7 Q. So it's not relevant to you who wrote the

8 Cabrera report, to your analysis?

9 A. It's not relevant in the sense that I used the

10 information out of the Cabrera report to the degree

11 that I could determine it was valid information

12 regardless of how it was generated, and then again I

13 supplemented that with other information from other

14 sources.

15 MR. SMALL: Okay. That's all I have. We --

16 MR. BLUME: I just have one question.

17 EXAMINATION

18 BY MR. BLUME:

19 Q. To the extent you were to conclude that the

20 information contained within the Cabrera report is

21 invalid, would that impact your conclusions that you

22 reached in your report and discussed today?


24 A. It may, but I would have to look at the degree

25 to which whatever information was determined to be




1 invalid was used in my valuation and whether I had

2 additional information that I used in addition to the

3 Cabrera report to come to my conclusions and -- and

4 valuation.

5 MR. BLUME: Okay.

6 MR. SMALL: We reserve the right to -- to read

7 and sign, and as far as we're concerned, the deposition

8 is over.

9 MR. BLUME: And we will keep the deposition

10 open to the extent that we will require more

11 information about the topics discussed or referenced in

12 Table -- the source data from the Navy report as it --

13 as it influences the total remediation costs and the

14 unit costs as discussed in your report. We will need

15 to revisit those either with Mr. Allen or an

16 appropriate person and therefore keep this deposition

17 open until those are satisfied.

18 MR. SMALL: I understand your position. Our

19 position is that the deposition's over and that you've

20 used your seven hours and we're done, but I understand

21 your position.


23 5:51, and this concludes today's deposition of Douglas

24 Allen.

25 (The deposition was in recess at 5:52 PM.)




1 S I G N A T U R E O F D E P O N E N T

2

3

4 I, the undersigned, do hereby certify that I

5 have read the foregoing deposition and find it to be a

6 true and accurate transcription of my testimony, with

7 any corrections so noted on the errata sheet.

8

9 Date: _____________ __________________________

10 Douglas C. Allen

11

12

13

14

15

16 STATE OF __________ COUNTY OF _______________________

17

18 Subscribed and sworn to before me this __________

19 day of _________________, 20 _______.

20

21

22 __________________________

23 NOTARY PUBLIC

24

25 My commission expires:




AUTHENTIC COPY

The original certified E-Transcript

file was electronically signed

using RealLegal technology.

1 C E R T I F I C A T E

2 I, Johanna Massé, Court Reporter and Notary

3 Public, do hereby certify that the foregoing pages,

4 numbered 6 through 380, inclusive, are a true and

5 accurate transcription of my stenographic notes of the

6 Deposition of Douglas C. Allen, who was first duly

7 sworn by me, taken before me on Thursday, December 16,

8 2010, commencing at 9:25 AM, for use in the matter of

9 Application of Chevron Corporation v. Douglas C. Allen,

10 P.A., Civil Action No. 2:10-mc-00091-WKS, as to which a

11 transcript was duly ordered.

12 I further certify that I am neither attorney

13 nor counsel for, nor related to or employed by any of

14 the parties to the action in which this transcript was

15 produced, and further that I am not a relative or

16 employee of any attorney or counsel employed in this

17 case, nor am I financially interested in this action.

18 THE FOREGOING CERTIFICATION OF THIS TRANSCRIPT

19 DOES NOT APPLY TO ANY REPRODUCTION OF THE SAME BY ANY

20 MEANS UNLESS UNDER THE DIRECT CONTROL AND/OR DIRECTION

21 OF THE CERTIFYING REPORTER.

22

23

24 _________________________________ JOHANNA MASSÉ, RMR, CRR

25 Comm. expires: 2/10/11

12/16/10 Deposition Transcript- Allen

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Transcript of 12/16/10 Deposition Transcript- Allen