Speaker 1: In March twenty fourteen, Judge Lewis A. Caplan issued a
Speaker 1: nearly five hundred page ruling against Donziger and the Lago
Speaker 1: Augerdo plaintiffs, blocking the collection of the nine billion dollar
Speaker 1: Ecuadorian judgment in the US. Judge Caplan cites in the
Speaker 1: summary of his ruling the Cabrera Report, crude outtakes and
Speaker 1: Gera's testimony. He writes that among the various objectives of
Speaker 1: Donziger's pr campaign has been an effort to quote shift
Speaker 1: the focus from the fraud on Chevron and the Lago
Speaker 1: Augrio court to the environmental harm that Donziger and the
Speaker 1: Lago Augda plaintiff's claim was done in the Oriente. There's
Speaker 1: an accent on that last e in Oriente in Judge
Speaker 1: Caplan's summary. That's a mistake, which is unford given how
Speaker 1: many of the Ecuadorians we spoke with accused Caplin of
Speaker 1: being racist and or too ignorant about their country, its laws,
Speaker 1: and its language to oversee this case. But the sentiment
Speaker 1: that Caplin expresses here is also really interesting. How dare
Speaker 1: you shift the focus from the fraud committed against a
Speaker 1: company to the damage inflicted on a community, Caplan says,
Speaker 1: we shouldn't be quote unquote distracted by the pollution. Then
Speaker 1: he writes, quote the court assumes that there is pollution
Speaker 1: in the Oriente. On that assumption, Texaco and perhaps even Chevron,
Speaker 1: though it never drilled for oil in Ecuador, might bear
Speaker 1: some responsibility. And yeah, the accent mistake is there on Oriente.
Speaker 1: Throughout this ruling, Caplin continues, quote. In any case, improvement
Speaker 1: of conditions for the residents of the Oriente appears to
Speaker 1: be both desirable and overdue. But the defendant's effort to
Speaker 1: change the subject to the Oriente, understandable as it is
Speaker 1: as a tactic, misses the point of this case. The
Speaker 1: issue here is not what happened in the Odiente more
Speaker 1: than twenty years ago, and who, if anyone now, is
Speaker 1: responsible for the wrongs then done. It instead is whether
Speaker 1: a court decision was procured by corrupt means, regardless of
Speaker 1: whether the cause was just. An innocent defendant is no
Speaker 1: more entitled to submit false evidence, to co opt and
Speaker 1: pay off a court appointed expert, or to coerce or
Speaker 1: bribe a judge or jury than a guilty one. So
Speaker 1: even if Donziger and his clients had a just cause,
Speaker 1: and the court expresses no opinion on that they were
Speaker 1: not entitled to corrupt the process to achieve their goal.
Speaker 1: Justice is not served by inflicting injustice. The ends do
Speaker 1: not justify the means. This passage has really stuck with
Speaker 1: me throughout this season and it raises some really big
Speaker 1: questions that we're going to spend these last two episodes
Speaker 1: grappling with what is justice? Where is the line between
Speaker 1: the law and morality? Are there ends that justify means?
Speaker 1: And if so, what kind of means? Welcome back to
Speaker 1: Drill Season five, La Lucha Mangla. I'm Amy Westervelt and
Speaker 1: this is episode ten, The Kill Step. We're going to
Speaker 1: dig into what happened after the Rico judgment and all
Speaker 1: these messy questions. Right after this quick break, I want
Speaker 1: to tell you about one of my personal favorite podcasts.
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Speaker 1: In the wake of its winds against Nicaraguan farmers on
Speaker 1: Behalf of Dole and against the Ecuadorians on behalf of Chevron.
Speaker 1: Gibson Dunn began referring to its approach on these cases,
Speaker 1: using the US court system to declare a foreign judgment
Speaker 1: fraudulent as the quote unquote kill step. It was sold
Speaker 1: as an effective way to keep multinational corporations out of
Speaker 1: trouble abroad and has this sort of scorched earth, winner,
Speaker 1: take all, fight to the death feel about it. As
Speaker 1: soon as the Rico verdict came down, Donziger and his
Speaker 1: appeals lawyer, Dipa Kupta began working on an appeal. Just
Speaker 1: as a reminder, we interviewed Donziger while he was on
Speaker 1: house arrest this summer. He still is, and he would
Speaker 1: often hang his head out the window while we were talking,
Speaker 1: so if you hear some wind or background noise.
Speaker 3: That's why we've contested the evidence every step of the way.
Speaker 3: I mean, I've always proclaimed that this evidence was false. However,
Speaker 3: and this is the rub on appeal. You can contest facts,
Speaker 3: or you can contest law. But under the US appellate system,
Speaker 3: it's usually futile to contest facts because they're almost never overturned.
Speaker 3: The appellate judges don't like to revisit factual determinations by
Speaker 3: a trial judge. So, given that Caplin had written five
Speaker 3: hundred pages and there were dozens and dozens of findings,
Speaker 3: we would have easily used up our entire allotment of
Speaker 3: pages on the appellate brief, you know, formally disputing every
Speaker 3: single one of his hundred findings.
Speaker 1: Instead, Gupta decided to focus on the entire application of
Speaker 1: RICO to this case as inappropriate.
Speaker 3: So we chose to focus on that, but we contested
Speaker 3: the facts every step of the way. We just didn't
Speaker 3: formally ask for Kaplan to be overturned on the facts.
Speaker 1: After the appeal had been filed, while the court was deliberating,
Speaker 1: Garrett testified in front of the Arbitral Tribunal and admitting
Speaker 1: to having lied in a few instances during his RICO testimony.
Speaker 3: So when Gara admitted lying during the pendency of the
Speaker 3: appeal of Caplan's decision, we immediately took this new information,
Speaker 3: as evidenced by a transcript, and we submitted it to
Speaker 3: the Federal Appellate Court to add to the record so
Speaker 3: they could consider it because it was cut to the
Speaker 3: core of one of our main arguments.
Speaker 1: What Donziger's lawyer had argued in the appeal was in
Speaker 1: part that a lot of the justification for bringing the
Speaker 1: Rico suit in the first place had come from this
Speaker 1: corrupt witness, which should never have been allowed.
Speaker 3: They totally ignored it, They didn't even mention it in
Speaker 3: their decision, and they completely affirmed Judge Kaplan without reviewing
Speaker 3: any of his factual findings or his credibility findings of
Speaker 3: this obviously corrupt line witness.
Speaker 1: The second Circuit affirmed Captain's ruling in the Rico suit,
Speaker 1: and that carried a lot of weight. Here's what Melissa Simms,
Speaker 1: who gave us a primer on Rico earlier this season,
Speaker 1: said about.
Speaker 4: It from a legal standpoint. There was a judgment, and
Speaker 4: the Court of Appeals, you know, affirmed the decision, so
Speaker 4: you know it is what it is. It's final.
Speaker 1: On top of what that meant for Donziger and the
Speaker 1: Lago Agrio plaintiffs that they would not be able to
Speaker 1: collect the judgment in the US and might also struggle
Speaker 1: in other courts around the world, it also set a
Speaker 1: new precedent in a few different ways.
Speaker 5: To me, the biggest thing is how much the Rico
Speaker 5: case has completely obscured who they are and what they're doing.
Speaker 1: Lindsay O Fries is an anthropologist and documentary filmmaker who's
Speaker 1: been studying the affected people in Ecuador since two thousand
Speaker 1: and five.
Speaker 5: The people who have been fighting in Ecuador and the
Speaker 5: actual reality of the oil disaster have been completely obscured
Speaker 5: from view, at least in the United States in other
Speaker 5: powerful countries.
Speaker 1: Ofrias is working on a documentary about how rico has
Speaker 1: been used against activists in recent years.
Speaker 5: I think it's important also to note that when we
Speaker 5: talk about the Ecuadorian plaintiffs, they're not just people who
Speaker 5: are involved in a legal battle. They're doing all kinds
Speaker 5: of things. And so two of those people in Bertolpio
Speaker 5: Guaffe and Carmen Zambrano, I went with them to Standing
Speaker 5: Rock in twenty sixteen. Part of the idea was for
Speaker 5: coalition building and also trying to think about what is
Speaker 5: possible outside or beyond this whole vortex of the law
Speaker 5: that kind of sucks everything into it. And so something
Speaker 5: that I will always remember is that around the fire
Speaker 5: went evening where you know, everybody would come and sit
Speaker 5: around the fire and share stories, and Berto and Carmen
Speaker 5: gave kind of like a warning about what they had
Speaker 5: gone through, and you know that it was likely to
Speaker 5: come to pass once again now that this RICO precedent
Speaker 5: has been set, And indeed that's what happened. And we
Speaker 5: can see so many many cases in which the RICO
Speaker 5: law has morphed from its original intention of targeting the
Speaker 5: mafia and white collar criminals to silencing protests to trying
Speaker 5: to quell particular forms of political organizing.
Speaker 1: Julio Gomez, the attorney who represented the Ecuadorian plaintiffs in
Speaker 1: the RICO, also said the case stands as something of
Speaker 1: a warning to attorneys who would take on a big
Speaker 1: multinational corporation like Chevron.
Speaker 6: If you will try to get involved in a case
Speaker 6: like this or against another oil company, and you do
Speaker 6: any research, I mean, the amount of information available online
Speaker 6: about the history of this case and the damage it
Speaker 6: has caused, the attorneys who have worked on it everywhere.
Speaker 6: So anyone who's contemplating doing something like this and begins
Speaker 6: to read about how difficult it is, I mean, even
Speaker 6: hearing probably my own positions in this in this interview,
Speaker 6: that certainly is not going to motivate people to take
Speaker 6: on these kinds of cases. It's yeah, it's it creates
Speaker 6: an enormous chilling effect, and that's again more of the
Speaker 6: disadvantage for people who trying to see justice.
Speaker 1: According to Sims, there has also been a surprise silver
Speaker 1: lining for some plaintiffs attorneys.
Speaker 4: Well, you know, I've been watching it since its inception
Speaker 4: just because I felt so badly for the people in
Speaker 4: Ecuador who face this environmental disaster, and so it's fascinating
Speaker 4: watching it unfold, and I think, the Lord, I'm not
Speaker 4: part of it at this point in time, but we
Speaker 4: have a lot that we're learning from it. Plus we
Speaker 4: have a lot of information that we're going to be
Speaker 4: able to utilize and our cases going forth. So one
Speaker 4: of the things that we're doing is a plane of
Speaker 4: spar is. We're actually exercising the rights of these people
Speaker 4: internationally to sue in the United States, because what we're
Speaker 4: finding is that when we tell the courts how difficult
Speaker 4: it is for these people to get compensation for their conduct,
Speaker 4: and then we show what Chevron has done, how they
Speaker 4: have been defending this judgment in the United States, and
Speaker 4: how hard it is, that actually helps us in our
Speaker 4: cases to prove that we have jurisdiction here in the
Speaker 4: United States.
Speaker 1: Meanwhile, the Equadorian plaintiffs are still trying to collect this
Speaker 1: judgment elsewhere in the world. Donziger was working on the
Speaker 1: case up in Canada when his recent troubles began. Chevron
Speaker 1: asked Kaplan to file civil contempt charges against Donziger because
Speaker 1: of his work. But before that, Donziger faced another challenge.
Speaker 3: I'm a member of two different state bars, one in
Speaker 3: New York and one in Washington, d c H. So
Speaker 3: you know, the first inkling.
Speaker 7: I got that the bar licensing process was going to
Speaker 7: be used against me to try to disbar me was
Speaker 7: a letter I received from the organization in the District
Speaker 7: of Columbia that licenses lawyers.
Speaker 1: Donziger says he remembers this letter vividly. Basically, it said
Speaker 1: that they had heard about the Reco decision and were
Speaker 1: concerned and wanted to hear his side.
Speaker 3: So they didn't do anything. And a few months later
Speaker 3: I got a similar letter, more hostile in tone, from
Speaker 3: the New York Bar Manhattan Grievance Committee, that's the group
Speaker 3: in New York City that monitors lawyers, and they asked
Speaker 3: me similar questions, but the big difference was the referral
Speaker 3: to the New York Grievance Committee came from several judges
Speaker 3: on the federal bench who worked with Judge Kaplan on
Speaker 3: the same court.
Speaker 1: The letter argued that Donziger was a threat to the
Speaker 1: public and should be immediately disbarred without a hearing. In
Speaker 1: July twenty eighteen, he was suspended from practicing law.
Speaker 3: I mean, I had my law license suspended without a hearing.
Speaker 3: So let's go back in the Rico case. I was
Speaker 3: denied a jury. Fast forward to my bar licensing procedure,
Speaker 3: and they concoct this idea that I can't get a
Speaker 3: hearing there. And by the way, those hearings are overseen
Speaker 3: by very establishment lawyers that are appointed by the same committee.
Speaker 3: So they didn't even want me to have that hearing.
Speaker 3: So they deny my law life license, suspend it without
Speaker 3: a hearing. But under the law, when you get a
Speaker 3: property interest like a professional license suspended without a hearing,
Speaker 3: you're entitled under the due process clause of our Constitution
Speaker 3: to what's called a post suspension hearing.
Speaker 1: Donziger got his hearing sort of.
Speaker 3: And on that first day, no one knew what to do.
Speaker 3: It was bizarre, like the hearing was like I don't
Speaker 3: really know what this hearing is because they're telling me
Speaker 3: you can't challenge anything, and I'm like, no, I have
Speaker 3: to be able to challenge. That's the whole point of
Speaker 3: a post suspension hearing is to allow the hearing that
Speaker 3: could have taken place before to now happen. And they're like, no,
Speaker 3: you can't use this to relitigate Caplan's findings, and I'm like, well,
Speaker 3: then I'm not really getting a hearing.
Speaker 1: The hearing officer got briefs from both the Grievance Committee
Speaker 1: and Donziger about how, why, and whether this hearing should
Speaker 1: really happen.
Speaker 3: You know, the chevron kaplan strategy was to just keep
Speaker 3: attacking me, distracting me, and if that didn't work, they
Speaker 3: would just up the annie and upping the animant, locking
Speaker 3: me up. And it's really scary.
Speaker 1: It was in the course of the disbarment proceedings that
Speaker 1: Donziger was charged with first civil and then criminal contempt.
Speaker 1: He was put on pre trial house arrest for the
Speaker 1: criminal contempt charge in August twenty nineteen, and he finally
Speaker 1: got that bar hearing a month later in September. This
Speaker 1: part of the story reminds me not only of the
Speaker 1: whole kill step thing, but also of a quote that's
Speaker 1: appeared in multiple stories about this case. In two thousand
Speaker 1: and nine, Donald Campbell, a spokesman for the company at
Speaker 1: the time, said this, We're going to fight this until
Speaker 1: hell freeze is over, and then we'll fight it out
Speaker 1: on the ice. When his bar hearing happened in September nine,
Speaker 1: team Donziger had to request permission from the court to
Speaker 1: leave his apartment. He showed up to the hearing with
Speaker 1: his ankle bracelet on. Chevron's attorneys came.
Speaker 3: To and I found it really creepy that they're there.
Speaker 3: First of all, they hit in theory should have no
Speaker 3: interest in what happens to me in a bar proceeding.
Speaker 3: They're not a party.
Speaker 1: Several lawyers spoke on Donziger's behalf, and a few months later,
Speaker 1: the hearing officer recommended that Donziger keep his law license.
Speaker 3: But he doesn't have the power to make the final decision.
Speaker 3: It goes up to the same court that ordered him
Speaker 3: not to consider Caplin's findings. Chevron lawyer Randy Mostro was
Speaker 3: like quoted in the press saying, Oh, this is never
Speaker 3: going to stand. It's totally going to be overturned. The
Speaker 3: hearing officer didn't do his job properly.
Speaker 1: According to Donziger, in the majority of these sorts of cases,
Speaker 1: the hearing officer's recommendation usually stands.
Speaker 3: But obviously this is a different situation.
Speaker 1: Shortly before this season, law And We learned from Donziger
Speaker 1: that the hearing officer had been overturned. He's been disbarred,
Speaker 1: he filed an appeal in September, and now he's waiting
Speaker 1: to hear back from the New York State Court of Appeals.
Speaker 1: Next time, we're going to attempt to wrap up this
Speaker 1: complicated story with some final thoughts on the case, how
Speaker 1: it's been litigated, how it's been covered, and what's happening
Speaker 1: today in Ecuador. Come back for that. Drilled is an
Speaker 1: original production of the Critical Frequency podcast Network. The show
Speaker 1: was created, reported, and written by me Amy Westervelt. My
Speaker 1: co reporter this season is Karen Savage. Our editor is
Speaker 1: Julia Ritchie. The show's editorial consultant is Rika Murphy. Mixing
Speaker 1: and mastering by Mark.
Speaker 8: Bush, original score by Bbman, fact checking by woodn Yan.
Speaker 8: Our artwork for this season was done by the super
Speaker 8: talented Matt Fleming. Special thanks to Trevor Gowan and Emily Gertz.
Speaker 8: If you are a Patreon subscriber, thank you your money
Speaker 8: is helping to make this season. And as a special.
Speaker 2: Thank you to Patreon members who're providing a variety of benefits,
Speaker 2: including bonus content and early access to episodes in this season.
Speaker 2: If that sounds appealing to you, or you just want.
Speaker 1: To support our work, go over to patreon dot com,
Speaker 1: slash drilled and sign up. We also have some merch.
Speaker 2: Associated with that. You can find stories, documents, and photos
Speaker 2: related to this season on our website at drillednews dot com.
Speaker 1: That's it for this time, Thanks for listening, and we'll
Speaker 1: see you next week. I bet him him
Speaker 5: H