Speaker 1: When I know. This is Pablo Fajardo. He's the guy who,
Speaker 1: along with Luisianza, won the Goldman Prize back in two
Speaker 1: thousand and eight for his work fighting Texaco and then
Speaker 1: Chevron in Ecuador. Remember, Chevron took an ad out about
Speaker 1: how he and Luis were frauds. Fajardo was actually the
Speaker 1: lead attorney on the case against Chevron in Ecuador, but
Speaker 1: because Chevron targeted Donziger in its press push, he shows
Speaker 1: up less and less in stories about the case from
Speaker 1: twenty ten onward. But he's still working on it today.
Speaker 1: We're going to get into more of that as the
Speaker 1: season goes on. But first a quick recap because we're
Speaker 1: halfway through this season and it's a very complicated story. Okay,
Speaker 1: So to recap. From the late nineteen sixties to nineteen ninety,
Speaker 1: Texico drilled for oil in the Ecuadorian rainforest. The company
Speaker 1: helped to start the oil industry there. A large group
Speaker 1: of both indigenous and non indigenous residents say Texico left
Speaker 1: a big mess and they should clean it up. An
Speaker 1: Ecuadorian lawyer named Cristobald Bonifas first filed a suit against
Speaker 1: Texico in New York in nineteen ninety three. When Chevron
Speaker 1: bought Texico in two thousand and one, it inherited this case,
Speaker 1: which was still going on. Like Texico before it, Chevron
Speaker 1: lobbied for the case to be tried in Ecuador. In
Speaker 1: two thousand and three, the New York courts agreed and
Speaker 1: the case was refiled, this time against Chevron in Ecuador.
Speaker 1: At this point, Bonifas kind of fades into the background.
Speaker 1: Donziger and Fijardos start to get a lot more involved,
Speaker 1: and they start to bring worldwide attention to the case.
Speaker 1: But still it drags on for years and years and years.
Speaker 1: When we left off last time, it was two thousand
Speaker 1: and nine. The plaintiffs were on a bit of a
Speaker 1: winning streak and Chevron was gearing up for a fight,
Speaker 1: or really another round in this fight. I didn't call
Speaker 1: this season Laluja munggla for nothing. In episode four, we
Speaker 1: dug into the details of one particular tactic, filing a
Speaker 1: complaint before an international arbitration tribunal that happened in September
Speaker 1: two thousand and nine. Weeks before that complaint was filed,
Speaker 1: Chevron released on YouTube a batch of videos taken with
Speaker 1: hidden spy cameras like those pen cameras that you see
Speaker 1: in novelty shops or advertised in skymall, teeny tiny cameras
Speaker 1: hidden inside normal looking pens. Chevron claimed the videos showed
Speaker 1: that the judge in the Ecuador case was being bribed.
Speaker 1: It all had a very national Enquirer caught on tape
Speaker 1: judge accepting bribes sort of vibe to it. In most
Speaker 1: of the tapes. An Ecuadorian man named Diego Borgia and
Speaker 1: an American named Wayne Hansen. We're meeting with the guy
Speaker 1: who was the judge in the case at that time,
Speaker 1: Judge Juan Nuniez. Here's a tidbit from one of these videos,
Speaker 1: and just to note the audio quality is terrible because
Speaker 1: you know pen.
Speaker 2: Cameras Spener who is maximum Santa fifty three.
Speaker 1: So to set up these meetings with Judge Nuniez, Borgia
Speaker 1: and Hansen had claimed to be environmental remediation experts who
Speaker 1: were tracking the case because there might be work in
Speaker 1: it for them. Eventually, when these videos came out, Judge
Speaker 1: Nunia said, yeah, I met with these guys. I explained
Speaker 1: the case to them and how Ecuadorian law works. None
Speaker 1: of that's illegal. That all tracks with the tapes that
Speaker 1: he's in. He insisted he'd done nothing wrong, but still
Speaker 1: in September, right around the time Chevron was filing its
Speaker 1: arbitration claim, Nuniaz recused himself from the case because of
Speaker 1: this whole scandal that set the trial back months, because
Speaker 1: a new judge had to come on board, familiarize himself
Speaker 1: with the case and read through thousands and thousands of
Speaker 1: pages of documents and filings and transcripts, all of that.
Speaker 1: A couple weeks after all of this was in the news,
Speaker 1: the Associated Press published a story that poked a lot
Speaker 1: of holes in these videos, especially the credibility of the
Speaker 1: American Wayne Hansen. As the story unfolded over the next
Speaker 1: few months, it just kept getting weirder. It sounds more
Speaker 1: like a Cohen Brothers movie than a law case. And
Speaker 1: that was the tip of the iceberg, that wild ride.
Speaker 1: Right after this quick break, I want to tell you
Speaker 1: about one of my favorite climate podcasts, Mothers of Invention.
Speaker 1: Their tagline is a man made problem with a feminist solution,
Speaker 1: so good, and Mothers of Invention is a climate justice
Speaker 1: podcast like you've never heard before, joined former Irish president
Speaker 1: Mary Robinson, comedian Maeve Higgins and series producer the Molly
Speaker 1: Kadi Kara as they celebrate black, brown and Indigenous leaders
Speaker 1: all over the world fighting from the front lines. Of course,
Speaker 1: one of my personal favorites is their recent episode with
Speaker 1: Mary Annie's Hegler, my co host on Hot Take and
Speaker 1: my favorite person to listen to on climate justice. But
Speaker 1: really I listen to every episode. They're all great find
Speaker 1: mothers of invention wherever you listen to podcasts. Quaene Hansen
Speaker 1: does a great job of playing the bumbling, confused American
Speaker 1: in these videos. Here he is asking how much longer
Speaker 1: the trial might go on?
Speaker 2: And we have much for the forty five more days
Speaker 2: than the trial was over.
Speaker 1: Again, Hanson claimed to be a remediation expert who was
Speaker 1: hoping to get in on some of the work on
Speaker 1: that front once Chevron was found guilty, But in October
Speaker 1: two thousand and nine, the Associated Press reported that Hanson
Speaker 1: was in fact in ex con with no verifiable experience
Speaker 1: in remediation work. That story read quote. Hanson, in two
Speaker 1: brief interviews, told AP he had water treatment projects in
Speaker 1: Mexico and Ecuador, but when a reporter questioned those claims,
Speaker 1: he hung up Chevron claimed to have no association with Hanson,
Speaker 1: but the company did offer to pay for any security
Speaker 1: and legal fees that resulted from his role in these videos.
Speaker 1: But remember there was someone else in those tapes too,
Speaker 1: Diego Borgia. And Borgia was a different story. Initially, Chevron
Speaker 1: described him as a quote unquote good Samaritan, but later
Speaker 1: it came out that Borgia and his wife, Sarah Portilla,
Speaker 1: had both worked for Chevron at various points. At that point,
Speaker 1: Chevron updated their description of Borgia to a logistics contractor
Speaker 1: for them, but also Borgia, his uncle, and Chevron's attorneys
Speaker 1: had offices in a building that Borgia's uncle owned. In June,
Speaker 1: a couple months before the videos were released, Chevron moved
Speaker 1: Borgia and his wife to the US. The company claims
Speaker 1: that was done to protect the Borgias. They rented the
Speaker 1: couple a house in California and paid them a stipend
Speaker 1: of ten thousand dollars a month for about two years.
Speaker 1: We only know all this stuff because the plaintiffs hired
Speaker 1: a private investigator to look into Borgia and Hansen, which
Speaker 1: turned up all kinds of stuff, including some tapes of
Speaker 1: their own audio recordings of calls between Borgia and an
Speaker 1: acquaintance that make Borgia seem like, well, let's say, not
Speaker 1: quite a good samaritan. Here's a moment from one of
Speaker 1: those tapes. You'll hear Borge's acquaintance first and then him
Speaker 1: you can tip the balance to either side. His acquaintance says,
Speaker 1: so I had to, of course, and for either of
Speaker 1: the two sides. Look at how much it tipped just
Speaker 1: now says this was around the time that Nunia's had
Speaker 1: just recused himself.
Speaker 3: And looking up for.
Speaker 1: What they haven't been able to do and how long
Speaker 1: a year or something, Borgia says they threw that judge
Speaker 1: out in what three days? Two days? There are several
Speaker 1: of these tapes, and some of them also called Chevron's
Speaker 1: scientific experts into question. Borza talks about collecting samples for
Speaker 1: the company, which he says he's been doing since two
Speaker 1: thousand and four. He also claims to have set up
Speaker 1: a bunch of supposedly independent labs to test samples for Chevron,
Speaker 1: and documents that were submitted to the ECUADORI in court
Speaker 1: do show not only that Borges's wife worked for the
Speaker 1: lab that Chevron used to test contamination samples, but also
Speaker 1: that Borgia was handing some samples off directly to her.
Speaker 1: None of this looked good for Chevron, But by this point,
Speaker 1: late two thousand and nine, they had brought on the
Speaker 1: law firm Gibson Done and lawyer Randy Mastro was busy
Speaker 1: gathering evidence of his own about the plaintiffs scientific experts.
Speaker 4: There were a series of wow moments.
Speaker 1: Here's Mastro talking to us via zoom from his place
Speaker 1: in New York describing what he dug up on the
Speaker 1: plaintiffs once Chevron brought Gibson dun in to help.
Speaker 4: What are the very first of these subpoenas that we
Speaker 4: were able to issue in the United States was to
Speaker 4: compel the testimony of a scientific expert Steve Donziger had hired,
Speaker 4: named doctor Charles Combacher from Georgia.
Speaker 1: If you're wondering how Chevron's lawyers were able to subpoena
Speaker 1: things from the plaintiffs when the case was still going
Speaker 1: on in Ecuador, I get it. It seems very weird.
Speaker 1: Here's the deal. There's a section of the US Legal
Speaker 1: Code called Section seventeen eighty two, and it says, basically,
Speaker 1: if you're an American or an American company or organization,
Speaker 1: and you're involved in a lawsuit in another country, and
Speaker 1: there are documents or American witnesses that might help you
Speaker 1: in that litigation, you can subpoena them. That's what Master
Speaker 1: used to get Combacher's deposition.
Speaker 4: And he was supposedly played this expert in Ecuador confirming
Speaker 4: that based on the research and tests that he had done,
Speaker 4: that there was significant environmental contamination done in the Amazon.
Speaker 4: But when we compelled doctor Combacker's testimony in Georgia, what
Speaker 4: he actually testified was that the report that Steve Donziger
Speaker 4: and his Ecuadorian lawyers submitted to the court in Ecuador,
Speaker 4: what was not Combacker's conclusion that he had not in
Speaker 4: fast concluded that it was a significant environmental damage, and
Speaker 4: the work that he had done was further revealed that
Speaker 4: Donziger had asked him for signature pages separate from his report.
Speaker 1: The plaint is, of course deny this. They say Combucker
Speaker 1: was fired, that he thought they owed him money, and
Speaker 1: this deposition was some sort of revenge. Donziger says Kalmbucker
Speaker 1: authorized the submission of his report and that he sent
Speaker 1: his signature separately because he'd already returned home to Georgia.
Speaker 1: In any case, it was enough for Gibson Done to
Speaker 1: get to go ahead from a US judge District Court
Speaker 1: Judge Lewis a Caplan of the Southern District of New
Speaker 1: York to file more subpoenas. Next, Mastro went after Douglas Beltman,
Speaker 1: the executive VP from Stratus Consulting, that we heard from
Speaker 1: last time. It's a disgrace. They treated Ecuador like a
Speaker 1: trash heap. He also subpoenaed Beltman's colleague and Maeste. At
Speaker 1: issue is the report by Richard Cabrera, the court appointed expert.
Speaker 1: Remember I mentioned before that this guy was going to
Speaker 1: come up again and again. Cabrera and the Cabrera report
Speaker 1: were becoming increasingly contentious, in part because Donziger was talking
Speaker 1: about the report a lot in the press, and because
Speaker 1: it was Cabrera's report that said, this is how much
Speaker 1: Chevron should owe to clean up this mess, and it
Speaker 1: was in the many, many billions of dollars. According to Mastro,
Speaker 1: Cabrera was supposed to be neutral and not tied to
Speaker 1: either side in the case, and he was increasingly finding
Speaker 1: that that was not the case at all. Here's Master
Speaker 1: explaining more.
Speaker 4: We sought by subpoena the records and then testimony from
Speaker 4: a firm that became a principal outside expert for Donziger Andess,
Speaker 4: Ecuadorian lawyers, Stratus scientists at Stratus, and when those records
Speaker 4: were ordered produced pursuing too our subpoena, and they showed
Speaker 4: that the supposedly independent expert in Ecuador, who had been
Speaker 4: appointed by the court to be an objective, independent party
Speaker 4: in assessing environmental damage and how much there was and
Speaker 4: attributing it to two parties if there were found to
Speaker 4: be environmental damage, that in fact that was not an
Speaker 4: independent objective report, had been ghost written word for word
Speaker 4: by Stratus.
Speaker 1: Donzegher says, there's a perfectly reasonable explanation for this.
Speaker 5: That allegation is just a bunch of bs on every level.
Speaker 5: Stratus did write or draft most of the Cabrera Report. Cabrera,
Speaker 5: though reviewed it, signed it. They worked together. There was
Speaker 5: a massive amount of information, you know, literally tens of
Speaker 5: thousands of chemical sampling results in any single individual would
Speaker 5: never have the capacity to pull that together analyze it
Speaker 5: by himself or herself. So we did what Chevron did
Speaker 5: and what's customary, and courts all over the world, including
Speaker 5: in the United States. We used our experts to support Cabrera,
Speaker 5: who was also our expert, because we were the ones
Speaker 5: who asked for his report and Chevron did not.
Speaker 1: In fact, Donziger says Chevron was doing the same thing
Speaker 1: with their experts.
Speaker 5: So Chevron used the same method in support of its experts,
Speaker 5: you know, would use its US based experts to help
Speaker 5: its equador and experts write their reports. And this was
Speaker 5: standard operating procedure under Ecuadoran law in terms of how
Speaker 5: expert reports were done in Ecuador in all cases, in
Speaker 5: particular this case.
Speaker 1: But Master thought the plaintiff's involvement with Cabrera was fishy
Speaker 1: and Kaplan a US judge agreed, So in May twenty ten,
Speaker 1: he okayd Masters next and possibly most critical move, a
Speaker 1: subpoena for all of the outtakes of the documentary, crued
Speaker 1: some six hundred hours worth of tape shot by documentary
Speaker 1: filmmaker Joe Berlinger.
Speaker 4: So you have this building block, you have what happened
Speaker 4: with Combacker. Simultaneous to this, there's proceedings are going on
Speaker 4: to get documents and testimony from Stratus status officials. Right,
Speaker 4: Joe Berlinger had made a documentary Crude. It had been
Speaker 4: on the film festival circuit, and the issue of whether
Speaker 4: Cabrera was an independent objective expert who'd done an independent
Speaker 4: report and reached conclusions independently was critical in the Ecuadorian
Speaker 4: proceeding because it was the basis on which Donziger and
Speaker 4: his Ecuadori lawyers were asking the Ecuadorian court to impose
Speaker 4: billions in damages on Chevron. So Joe Burlinchard produces Crude,
Speaker 4: and it shows on the festival circuit, then it comes
Speaker 4: out on Netflix, and a curious thing was picked up
Speaker 4: by the Chevron team. There was a change in scenes
Speaker 4: from the film festival version to the Netflix version, and
Speaker 4: the scene that had been changed or deleted was a
Speaker 4: scene that showed someone supposedly working as an independent expert
Speaker 4: for Cabrera, was in fact meeting with the plaintiffs lawyers
Speaker 4: and their clients at a session that Joe Berlinger was
Speaker 4: Steve Donziger in attendance, and then by the time it
Speaker 4: came out on Netflix, that scene had been deleted.
Speaker 1: The filmmaker Joe Berlinger fought this subpoena and the characterization
Speaker 1: of his work is not journalism. It became a really big,
Speaker 1: high profile First Amendment case in its own rate, and
Speaker 1: we're going to get into that in future episodes, but
Speaker 1: for now, keep in mind this is all happening in
Speaker 1: twenty ten and heading into twenty eleven, and there's still
Speaker 1: no verdict in Ecuador yet. So you've got the international
Speaker 1: arbitration proceeding happening, then you've got all this seventeen eighty
Speaker 1: two action from Mastro. Eventually he does get the crude
Speaker 1: out takes, and he fils more and more subpoenas. They
Speaker 1: get Donziger himself for weeks of depice positions, and he's
Speaker 1: even required to hand over his personal diary and various
Speaker 1: correspondences between himself and the lawyers in Ecuador, him and
Speaker 1: Pablo Fajardo, him and various litigation financers. Everything. Again, this
Speaker 1: is while the case is still going on in Ecuador.
Speaker 1: Even with all that, though, you.
Speaker 5: Know, it was very clear in i'd say December of
Speaker 5: two thousand and ten January twenty eleven that the case
Speaker 5: was going to end and they were going to lose.
Speaker 5: I mean, it was just obvious, you know, that all
Speaker 5: their little tricks had not worked and the case was
Speaker 5: ripe for decision the evidence against them was overwhelming and
Speaker 5: they were going to lose. So instead of just accepting
Speaker 5: that fact and appealing, they prior to the issuance of
Speaker 5: the judgment and Ecuador, they filed the RICO case against us,
Speaker 5: describing what they thought was a criminal conspiracy to extort
Speaker 5: money from them.
Speaker 1: RICO stands for racketeer, influence and Corrupt Organizations. It's a
Speaker 1: US federal law that was created to deal with the
Speaker 1: mob and various other types of organized crime. In more
Speaker 1: recent years, it's been used against big corporations. For example,
Speaker 1: RICO has been invoked in a law of the opioid litigation.
Speaker 1: In its initial RICO complaint against Donziger and Fajardo and
Speaker 1: the plaintiffs, Chevron alleged that the legal team had cooked
Speaker 1: up a sham case and then set about falsifying evidence
Speaker 1: and bribing judges to make it stick. About two weeks
Speaker 1: after this RICO case was filed, the Ecuadorian courts finally
Speaker 1: delivered a judgment, eight years after the trial had started.
Speaker 1: Chevron was guilty and I owed more than eighteen billion
Speaker 1: dollars in damages.
Speaker 3: So when the decision in Ecuador came down in our favor,
Speaker 3: that came down two weeks after Chevron had already tried
Speaker 3: to preempt it by suing US under the Rico case.
Speaker 3: So when the decision came down in Ecuador, I was
Speaker 3: in New York and, you know, with some other lawyers
Speaker 3: in the US who had been working on the case,
Speaker 3: and we got the news and we were obviously thrilled,
Speaker 3: but we were also at that point dealing with the
Speaker 3: Rico case. So it was all confusing, and in a
Speaker 3: weird way, Chevron had stolen the moment.
Speaker 1: The judge in Ecuador by this point, a guy named
Speaker 1: Nicholas Soembrano, made a point of saying that he had
Speaker 1: not relied on either Combacker's report or the Kaber report,
Speaker 1: not because he'd found evidence of a problem with either one,
Speaker 1: but because he didn't want the controversy swirling around the
Speaker 1: two to undermine his ruling. Next time on drilled.
Speaker 6: So in the mornings, we would be lined up in
Speaker 6: this very long line. We had to get there very
Speaker 6: early in October November, so it was cold, so we
Speaker 6: would be all bundled up. We would be in this
Speaker 6: long line to get through security to get into the courthouse,
Speaker 6: and we'd have our blow ups and our boxes with
Speaker 6: us and our briefcases, and then you would see a
Speaker 6: row of five black Lincoln suburbans arrive with tinted windows,
Speaker 6: and out of it would come the senior management of Chevron,
Speaker 6: their head of litigation, their entire legal team, and they
Speaker 6: were ushered in through a separate entrance as VIPs, so
Speaker 6: they didn't have to stand in the line with all
Speaker 6: the rest of us. They would get out and go
Speaker 6: straight into the courtroom. So we would have been in
Speaker 6: line for forty five minutes when they would arrive and
Speaker 6: go straight through.
Speaker 1: Drilled is an original production of the Critical Frequency podcast Network.
Speaker 1: The show was created, reported, and written by me Amy Westerveldt.
Speaker 1: My co reporter this season is Karen Savage. Our editor
Speaker 1: is Julia Ritchie. The show's editorial consultant is Rika Murphy.
Speaker 1: Mixing and mastering by Mark Bush. Original score by b Beeman,
Speaker 1: fact checking by wodn Yan. Our artwork for this season
Speaker 1: was done by the super talented Matt Fleming. Special thanks
Speaker 1: to Trevor Gowen and Emily Gertz. If you are a
Speaker 1: Patreon subscriber, thank you your money is helping to make
Speaker 1: this season, And as a special thank you to Patreon members,
Speaker 1: we're providing a variety of benefits, including bonus content and
Speaker 1: early access to episodes in this season. If that sounds
Speaker 1: appealing to you, or you just want to support our work,
Speaker 1: go over to patreon dot com slash drilled and sign up.
Speaker 1: We also have some merch associated with that. You can
Speaker 1: find stories, documents, and photos related to this season on
Speaker 1: our website at drillednews dot com. That's it for this time,
Speaker 1: Thanks for listening, and we'll see you next week.