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Speaker 1: I contended, can I whois you?

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Speaker 2: And p.

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Speaker 1: Noise um procession, assume process lucas pueblos aos.

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Speaker 3: This is Pablo Fajardo again, the Ecuadorian lawyer we heard

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Speaker 3: from last time. He says, well, you have to understand

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Speaker 3: what this trial, with everything about this case is that

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Speaker 3: it's not the lawyer's legal fight lalucha. The legal fight

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Speaker 3: is for los pueblos affrictaros, the towns that were affected,

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Speaker 3: the people who were affected. So it's not the lawyers,

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Speaker 3: it's the people who were directly affected. That's what they're

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Speaker 3: fighting for. This right here is the center of this story,

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Speaker 3: the heart. A lot of what has happened in the

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Speaker 3: decade since the verdict in Ecuador has focused on the

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Speaker 3: ins and outs of legal process things lawyers are doing

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Speaker 3: far away from the oil pits in Ecuador. But at

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Speaker 3: its root, this case is about an environmental disaster, the

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Speaker 3: poisoning of a pristine jungle and the people living in it,

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Speaker 3: and the fact that those people are still suffering the

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Speaker 3: consequences of what was done thirty forty years ago. May

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Speaker 3: have picked up on this last time, but Fajardo and

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Speaker 3: Donziger are somewhat at odds these days, neither will say

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Speaker 3: exactly why that. There are a few possibilities on the table. First,

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Speaker 3: Fahardo is now also suing Petro Ecuador, the state owned

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Speaker 3: oil company that Chevron has said is really responsible for

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Speaker 3: the pollution in the Amazon. That case could feasibly be

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Speaker 3: seen as a threat to the effort to collect on

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Speaker 3: the Chevron judgment, and just as a case that somehow

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Speaker 3: calls the Chevron case into question because it's holding Petro

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Speaker 3: Ecuador accountable too, although Fajardo says, of course, yeah, they

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Speaker 3: both did things, they're both responsible, they should both be

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Speaker 3: held to account. On the other side, Donziger has been

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Speaker 3: centered in a lot of the media coverage of this story,

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Speaker 3: often more so than the damage done to Ecuador. That's

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Speaker 3: not necessarily his fault. Sometimes it's just a function of

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Speaker 3: what's happened more recently and the fact that people are

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Speaker 3: being assigned stories on him and can't get into the

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Speaker 3: whole long history. But in either case it can and

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Speaker 3: has caused some resentment in Ecuador. Today, we're going to

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Speaker 3: talk about why media coverage of this case started to

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Speaker 3: shift away from musuffiicpapos, those people in Ecuador who were

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Speaker 3: affected and towards the lawyers, because that was not an accident,

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Speaker 3: that was a strategy.

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Speaker 4: Think about it.

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Speaker 3: If your Chevron, you'd probably rather fight a Manhattan attorney

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Speaker 3: in the court of public opinion than thousands of indigenous

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Speaker 3: people who no longer have access to clean drinking water

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Speaker 3: in the Amazon. When Chevron brought on Gibson Dunn in

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Speaker 3: late two thousand and nine, the firm had just finished

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Speaker 3: up a case for Dole, the food company, and they'd

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Speaker 3: been really successful deploying what they called the quote unquote

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Speaker 3: kill step, which worked to nullify a judgment against the

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Speaker 3: company that had come in Nicaragua. Basically, the lawyers had

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Speaker 3: convinced a US court that the case in Nicaragua was

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Speaker 3: a sham, part of a con that these plaintiffs, who

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Speaker 3: claimed they had been sterilized by a pesticide Dole used

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Speaker 3: on its banana plantation down there were frauds. Pretty quickly

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Speaker 3: after they started working on the Chevron case in Ecuador,

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Speaker 3: the Gibson Dun lawyers were describing that case in fairly

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Speaker 3: similar terms we heard in the last couple of episodes

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Speaker 3: about the various penis and depositions at Randy Mastro, the

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Speaker 3: lead attorney on the case for Gibson Dunn was getting.

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Speaker 3: That all culminated in Chevron filing a civil racketeering suit

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Speaker 3: under RICO against the plaintiffs and attorneys in the Ecuador

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Speaker 3: case in twenty eleven. That came just a couple weeks

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Speaker 3: before the verdict actually came down against Chevron in Ecuador. Remember,

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Speaker 3: Stephen Donziger, the American attorney working on the case, told

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Speaker 3: us a while back that Chevron had stolen the moment

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Speaker 3: of that victory.

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Speaker 4: So when the decision came down in Ecuador, I was

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Speaker 4: in New York with some of the lawyers in the

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Speaker 4: US who had been working on the case, and we

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Speaker 4: got the news and we were obviously thrilled, but we

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Speaker 4: were also at that point dealing with the Rico case,

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Speaker 4: so it was all confusing, and in a weird way,

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Speaker 4: Chevron had stolen the moment.

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Speaker 3: And they'd stolen more than the moment. They'd taken control

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Speaker 3: of the story. From that point on, most coverage of

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Speaker 3: this case has focused on the legal ins and outs,

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Speaker 3: not the original environmental damage in the Amazon. It became

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Speaker 3: all about the lawyers and not the affected people at all,

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Speaker 3: And in general, that framing of the story has tended

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Speaker 3: to benefit Chevron. So what the heck was this reco case?

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Speaker 3: What were the charges and what happened here? That story

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Speaker 3: coming up right after this quick break.

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Speaker 5: Okay, let's be real. There are now a lot of

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Speaker 5: daily news podcasts out there, but there's not one that's

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Speaker 5: anything like Today Explained from Fox. Every day, the team

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Speaker 5: picks an essential news story that defines our moment, and

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Speaker 5: then Sean Ramasa sits down with some of the world's

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Speaker 5: best journalists, academics, and policymakers to help us understand it.

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Speaker 5: The team recently took a look back at the ways

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Speaker 5: in which our first reality TV president has fundamentally changed

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Speaker 5: our reality in a special series called The Trump Years.

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Speaker 5: Today Explained really explains the news, all of it. Subscribe

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Speaker 5: if you haven't already, to Today Explained for free right

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Speaker 5: now in your favorite podcast app to get new episodes automatically.

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Speaker 5: The reco case filed against lawyers and some of the

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Speaker 5: Ecuadorian plaintiffs in the Chevron Ecuador case was pretty damning.

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Speaker 5: Charges sounded really bad. They included intimidating judges, tampering with evidence,

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Speaker 5: ghostwriting witness testimony, and even ghostwriting the final judgment itself.

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Speaker 5: But like everything else in this story, their RICO case

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Speaker 5: was anything but straightforward.

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Speaker 6: So my name is Melissa Simms, and I'm an attorney

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Speaker 6: with Sanders Philips Grossman in New York.

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Speaker 3: We asked Melissa Sims, who's been involved in various RICO

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Speaker 3: cases and is familiar with this case but has no

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Speaker 3: stake in it, to give us the lay of the

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Speaker 3: land on RICO in general and some of the particularities

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Speaker 3: of this case. To start with, what the heck is RICO.

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Speaker 3: It stands for Racketeer, Influenced and Corrupt Organizations Act, which

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Speaker 3: is the law these cases are filed under.

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Speaker 6: It was passed initially in the nineteen seventies and intended

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Speaker 6: to pursue the mafia. What they tried to do is

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Speaker 6: establish a law to where you could tie all of

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Speaker 6: their crimes together in one case and show them to

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Speaker 6: be an enterprise, which allowed the prosecution to be able

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Speaker 6: to connect a lot of different incidences into one enterprise,

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Speaker 6: to show that these people came together for a common

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Speaker 6: purpose and that common purpose caused whatever type of damage.

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Speaker 3: The way the RICO Statute is written, you can't just

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Speaker 3: bring a RICO charge against a group of people doing

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Speaker 3: crimes together. The crimes have to be in service of

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Speaker 3: some broader goal.

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Speaker 6: Okay, so it can't just be you and I going

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Speaker 6: to rob a bank. It has to be you and

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Speaker 6: I going to rob a bank with the purposes of

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Speaker 6: taking the money to further some other type of conduct.

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Speaker 3: SIMS is a plaintiff's atorney, which means she's usually bringing

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Speaker 3: RICO complaints against large corporations on behalf of people who've

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Speaker 3: been wronged in some way by the company's behavior. In

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Speaker 3: the past few years, for example, she's been working on

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Speaker 3: the big opioid cases where they were able to show

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Speaker 3: that pharmaceutical companies, distributors, and some doctors were knowingly getting

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Speaker 3: people hooked on prescription opioids.

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Speaker 6: Now that illegal conduct is one of a list of

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Speaker 6: conduct in the statute, so in the federal statue that

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Speaker 6: has to be enumerated, like bribery, extortion, arson, robbery, kidnapping.

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Speaker 6: The most common is mail and wire fraud. So mail

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Speaker 6: and wire fraud are the ones that we fall back

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Speaker 6: on on our cases because you can show if there's

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Speaker 6: an intent to decease.

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Speaker 3: That's all you need is an intent to deceive using

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Speaker 3: the US.

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Speaker 6: Mail or wire, and the wire would be money. You

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Speaker 6: could also apply it to the internet.

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Speaker 3: Sim says for plaintiffs attorneys, the burden of proof can

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Speaker 3: be really high to make a RICO claim stick to

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Speaker 3: get past a motion to dismiss, and she says, usually

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Speaker 3: with a RICO complaint, you have to show a long

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Speaker 3: pattern of behavior.

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Speaker 6: It's something that is more than just one or two times.

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Speaker 6: It has to be an ongoing event. There has to

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Speaker 6: be more than two occasions in the last ten years

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Speaker 6: of these people that get together to perpetuate something that

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Speaker 6: they could.

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Speaker 3: Not do on their own, that didn't really happen in

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Speaker 3: this case.

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Speaker 6: So, you know, going after a one or two event

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Speaker 6: type of conduct that I think they're alleging in Chevron

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Speaker 6: is that is really rare to be able to pass

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Speaker 6: a motion to dismiss on a RICO claim.

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Speaker 3: The other big anomalies here center around damages and a jury. Generally,

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Speaker 3: in a RICO suit, the whole point is damages. The

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Speaker 3: people bringing the claim were damaged in some quantifiable way

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Speaker 3: and they're seeking compensation. In fact, one of the reasons

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Speaker 3: big companies have become a target for RICO cases is

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Speaker 3: that plaintiffs can ask for what's called treble damages, so

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Speaker 3: three times the damages they'd be able to get in

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Speaker 3: a simple liability case. When it filed its suits, Chevron

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Speaker 3: did claim damages, but then shortly before the trial was

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Speaker 3: set to begin, they drop the damages claim. They made

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Speaker 3: it solely about blocking the Ecuadorian judgment from being collected

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Speaker 3: in the US.

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Speaker 6: But it's weird because that's what Rico's all about, damages.

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Speaker 6: What good is it without damages?

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Speaker 3: Sims says, damages are the whole basis of Rico claims.

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Speaker 3: In general. She says it would be kind of pointless

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Speaker 3: to bring a reco case if you don't have any damages.

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Speaker 3: But it may also explain why the plaintiff's request for

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Speaker 3: a jury trial was denied without damages, to assess there's

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Speaker 3: not much need for a jury. This Rico case is

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Speaker 3: every bit. It's complicated and confusing as the original case

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Speaker 3: in Ecuador. So we're going to spend a couple of

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Speaker 3: episodes going through it, not because we want to take

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Speaker 3: our eyes or ears off of what happened in Ecuador,

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Speaker 3: but because we think it's important to evaluate these claims

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Speaker 3: transparently and to weigh them against the damage. At the

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Speaker 3: heart of the original case, the environmental damage in the

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Speaker 3: Amazon to explore this mismatch that filmmakers Joe Berlinger described

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Speaker 3: last time between what's legal and what's moral, to look

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Speaker 3: at where the focus of the story turned and figure

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Speaker 3: out where we think it should be now. So first

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Speaker 3: charge pressuring the Lago Agrio court and manufacturing evidence. When

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Speaker 3: we talked to Randy Mastro, the lawyer with Gibson Dunn

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Speaker 3: who led this rico effort for Chevron, he talked a

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Speaker 3: lot about how much Donziger and the other plaintiffs attorneys

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Speaker 3: were trying to influence and pressure Ecuadorian judges, among various

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Speaker 3: other pieces of evidence. Mastro pointed to outtakes from the

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Speaker 3: documentary crewed. Here he is talking about one scene in particular.

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Speaker 1: He also is captured at a dinner. I mean's sitting

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Speaker 1: next to a woman who says to him, you know

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Speaker 1: the judge will be killed if he doesn't rule in

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Speaker 1: your favor in this country, and don Zeger says, well,

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Speaker 1: I don't know about killed, but he thinks he will,

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Speaker 1: which is just as good.

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Speaker 3: It sounds really shady what Mastro's describing, but trying to

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Speaker 3: make your case in the public so that it's unpopular

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Speaker 3: for a judge to rule against you. It's kind of

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Speaker 3: the entire basis of litigation PR which PR firms created

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Speaker 3: four multinational corporations in the first place, and it's something

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Speaker 3: a lot of companies, including various oil companies, have used

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Speaker 3: to their benefit for years. Another scene Mastro described is

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Speaker 3: a bit more concerning.

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Speaker 1: He's talking about mobilizing to put people in front of

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Speaker 1: the courthouse, the thousand people in front of the courthouse,

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Speaker 1: to pressure, and he's saying, literally, we have to pressure

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Speaker 1: the judge. We have to make him know who's boss.

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Speaker 1: We have to make them know who's in control. We're

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Speaker 1: going to put a thousand people in front of the

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Speaker 1: courthouse and we're going to mobilize. And there's even discussion

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Speaker 1: of arming the thousand people, and some discussion about whether

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Speaker 1: that is, you know, conspiracy and a crime.

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Speaker 3: In the outtake, it's hard to tell whether the arming

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Speaker 3: part is serious. In this clip, you'll hear donze Grew

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Speaker 3: described pulling together a bunch of protesters, which he describes

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Speaker 3: as an heercito an army. Then Luisianza jumps in and

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Speaker 3: says in Spanish, we're using the word army, but it's

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Speaker 3: not really an army. It's like a specialized group.

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Speaker 7: Various march gra okay for moms, most appropriate, hersing prevalent.

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Speaker 1: As as a least.

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Speaker 2: Side.

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Speaker 3: A woman from Amazon Watch asks if it's possible these

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Speaker 3: videos might be subpoenaed and warns the group.

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Speaker 2: I again put a subpoena. What about you, asked these guys.

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Speaker 2: I just wanted to know that it's illegal to conspire

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Speaker 2: to break the law.

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Speaker 3: In another shorter snippet from this scene that we found

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Speaker 3: on YouTube, Yansa says this, and so he's saying, and

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Speaker 3: then if we need weapons, we can provide weapons. That

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Speaker 3: does sound bad, although Yance is laughing a lot, so

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Speaker 3: it's hard to tell what the context was here. Remember

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Speaker 3: this is thirty seconds taken out of what seems to

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Speaker 3: be a fifteen minute or so scene, so we're not

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Speaker 3: really sure how this particular segment was taken out, what

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Speaker 3: was before and after it, how it might have been edited.

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Speaker 3: All we're seeing is this one part. It mostly sounds

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Speaker 3: like people organizing a big protest. The manufacturing evidence part

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Speaker 3: of this section of the Ego complaint refers to the

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Speaker 3: two issues Mastro mentioned a couple episodes back, the Combucker

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Speaker 3: Report and the Cabrera report. Here he is explaining the

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Speaker 3: issue with Charles Combacker, an expert for the plaintiffs.

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Speaker 1: When we compelled doctor Combacker's testimony in Georgia. What he

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Speaker 1: actually testified was that the report that Steve Donziger and

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Speaker 1: his Ecuadorian lawyers submitted to the court in Ecuador was

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Speaker 1: not Combacker's conclusion that he had not in fast included

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Speaker 1: that it was a significant environmental damage in the work

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Speaker 1: that he had done.

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Speaker 3: Donziger and the plaintiffs denied this. They said Kmbucker had

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Speaker 3: been fired and his deposition was basically sour greeps. Then

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Speaker 3: there's the Kabrew report, which Mastro says the plaintiffs experts Douglas,

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Speaker 3: Speltman and and mast ghost wrote.

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Speaker 8: Here's Mastro, the supposedly independent expert in equita who had

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Speaker 8: been appointed by the court to be an objective, independent

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Speaker 8: party in assessing environmental damage and how much there was

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Speaker 8: and attributing it to parties if there were found to

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Speaker 8: be environmental damage, that, in fact, that was not an independent,

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Speaker 8: objective report.

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Speaker 1: It had been ghost written word for word by Stratus.

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Speaker 3: Donziger's explanation was that this was all perfectly normal, that

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Speaker 3: the plaintiffs had asked for Cabrera to be appointed, and

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Speaker 3: that their experts helped to run analysis for his report.

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Speaker 3: He talked about this a couple episodes ago, but here's

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Speaker 3: a little snippet to remind you.

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Speaker 7: Stratis did write or draft most of the Cabrera report. Cabrera,

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Speaker 7: though review it, signed it. They worked together. There was

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Speaker 7: a massive amount of information, you know, literally tens of

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Speaker 7: thousands of chemical sampling results in any single individual would

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Speaker 7: never have the capacity to pull that together analyze it

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Speaker 7: by himself or herself.

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Speaker 3: Douglas Beltman, the scientist from Stratus Consulting, told sixty minutes

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Speaker 3: in no uncertain terms what he thought of Texico's practices

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Speaker 3: in the Amazon.

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Speaker 8: It's a disgrace.

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Speaker 3: They treated Ecuador like a trash heat He was named

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Speaker 3: as a defendant in the Rico too, and in his

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Speaker 3: initial deposition he said, quote, we didn't collect any data ourselves.

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Speaker 3: We were only looking at the data that had been

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Speaker 3: collected by others. According to Velpment, that included data collected

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Speaker 3: as part of the trial, including the judicial inspection data,

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Speaker 3: where plaintiff experts and Chevron experts collected environmental data, and

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Speaker 3: Cabrera and his team also collected environmental data. When asked

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Speaker 3: why the plaintiff samples all seemed to be contaminated and

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Speaker 3: Chevron samples devoid of contamination, Veltman explained why, quote, Chevron

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Speaker 3: may have sampled farther away from the pits, and they

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Speaker 3: used a different analytical method from that of the plaintiffs.

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Speaker 3: At one point, the attorney conducting the deposition ask, did

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Speaker 3: you reach any conclusion about whether or not the environment

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Speaker 3: had been contaminated during Texico's work in the concession by

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Speaker 3: their work in the concession? And Veltman answers, quote that

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Speaker 3: conclusion is that Texico did cause environmental contamination as a

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Speaker 3: result of their operations. Then the attorney asks, did you

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Speaker 3: reach a conclusion as to whether or not Texco operations

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Speaker 3: in the concession complied with the industry standards in effect

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Speaker 3: at the time, And Beltman says, quote, the way that

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Speaker 3: Texco operated that oil field was substandard by industry practices.

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Speaker 3: They used practices that were common in the early nineteen hundreds,

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Speaker 3: but by the time they were conducting operations in Ecuador,

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Speaker 3: these practices were not typically used, certainly in the US

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Speaker 3: and in most places in the world. Now again, it's

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Speaker 3: the method of the report that's been called into question,

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Speaker 3: and in this case, in particular, the idea that Beltman

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Speaker 3: and his colleague and Maste wrote the report and that

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Speaker 3: Cabrera just signed his name to it. And it's possible

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Speaker 3: that the plaintiffs and their attorneys and Beltman and Maste

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Speaker 3: should have been more transparent about Stratus's work with Cabrera. Ultimately,

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Speaker 3: it seems like a mood point because both the Kombacher

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Speaker 3: report and the Cabrera Report were thrown out by the

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Speaker 3: judge in Ecuador. In the final judgment, Judge Sombrano wrote

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Speaker 3: that he had disregarded these reports because of the controversy

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Speaker 3: swirling around them both, which begs the question why would

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Speaker 3: reports that were disregarded by the Ecuadorian court be used

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Speaker 3: as proof that the case was fraudulent. According to Donziger's

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Speaker 3: attorney for the Rico case, Zoe Littlepage, it was all

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Speaker 3: a diversion tactic.

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Speaker 9: We have seen a pattern in the last decade of

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Speaker 9: defense lawyers starting to and mainly corporations, starting to attack

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Speaker 9: the lawyers personally and the advocates personally as opposed to

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Speaker 9: the plaintiffs or dealing with the underlying issues, and it

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Speaker 9: has been.

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Speaker 2: A terrifying.

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Speaker 9: Trend for most people in the bar that when you

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Speaker 9: bring a case, you are putting yourself personally on the line,

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Speaker 9: not just representing your client. That's never really happened before.

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Speaker 3: But Mastro was about to up the ante. Here's what

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Speaker 3: he argued in court.

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Speaker 1: So you asked me, did Sobrano say, didn't rely on Cabrero.

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Speaker 1: Actually it's more complicated than that, because Sobrano didn't write

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Speaker 1: his own judgments.

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Speaker 3: Mastro's accusation is that the plaintiffs and their attorneys ghost

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Speaker 3: wrote the final judgment. Donziger, the other plaintiff attorneys, and

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Speaker 3: the plaintiffs themselves, of course say this is completely false.

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Speaker 3: So let's look at how Mastro tried to make this case. First,

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Speaker 3: two points to phrases that were found in the Ecuadorian

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Speaker 3: legal team's files that were similar or exact to phrases

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Speaker 3: found in the judgment. Suspicious maybe, but not necessarily proof.

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Speaker 3: They never did find the smoking gun the final judgment

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Speaker 3: itself on any devices or hard drives, and both their

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Speaker 3: expert and a forensic expert hired by the Ecuadorian government

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Speaker 3: did find multiple drafts of the judgment on Zambrano's computer,

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Speaker 3: which is consistent with him writing it himself. However, as

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Speaker 3: with everything else in this case, each side thought that

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Speaker 3: the existence of multiple drafts proved their point. Master bolsters

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Speaker 3: his claims with two things. First, he points to Judge

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Speaker 3: Sombrano's behavior at the Rico trial.

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Speaker 1: When I crossed examined him and gave him a pop quiz,

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Speaker 1: and he couldn't answer a single question right about the

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Speaker 1: most central important elements in his judgments. Couldn't answer a

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Speaker 1: single one correctly.

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Speaker 3: And then he points to the testimony of a witness

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Speaker 3: named Alberto Gheta. Gherra was, by his own admission, a

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Speaker 3: corrupt judge in Ecuador. He claimed to have been part

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Speaker 3: of this big conspiracy to ghostwrite the judgment who'd had

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Speaker 3: a change of heart, and then his master put it flipped. Guerta,

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Speaker 3: though changed his testimony in a few instances despite having

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Speaker 3: been prepped by Chevron's attorneys. And that's what we'll dig

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Speaker 3: into next week next time on Drill.

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Speaker 9: Well, it was shocking, you know, we knew coming in

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Speaker 9: that Chevron had gone and recruited and paid cash in

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Speaker 9: a duffel bag to a judge who had been essentially

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Speaker 9: disbarred in Ecuador for corruption and fraud.

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Speaker 8: And you know, as an American.

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Speaker 9: Lawyer, I just assumed that that sort of what sounded.

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Speaker 10: Like a story, like a movie plot would be completely

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Speaker 10: laughed out of an American footroot, that we would have

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Speaker 10: a key witness in a trial be someone that Chevron

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Speaker 10: had paid close to a million.

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Speaker 9: Dollars too in either money or compensation or you know.

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Speaker 9: They bought him a house, they gave him a job,

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Speaker 9: they bought him cars, they paved his flights for him

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Speaker 9: and his family to move out of Ecuador. They paid

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Speaker 9: for the immigration lawyer to bring him here. They you know,

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Speaker 9: and it all started with Chevron going up to a

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Speaker 9: sketchy meeting with this former disbarred judge with a double

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Speaker 9: bag full of cats.

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Speaker 2: Thanks.

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Speaker 3: Drilled is an original production of the Critical Frequency podcast Network.

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Speaker 3: The show was created, reported, and written by me Amy Westerveldt.

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Speaker 3: My co reporter this season is Karen Savage. Our editor

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Speaker 3: is Julia Ritchie. The show's editorial consultant is Rika Murphy.

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Speaker 3: Mixing and mastering by Mark Bush, Original score by b Beeman,

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Speaker 3: fact checking by wodn Yan. Our artwork for this season

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Speaker 3: was done by the super talented Matt Fleming special thanks

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Speaker 3: to Trevor Gowan and Emily Gertz. If you are a

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Speaker 3: Patreon subscriber, thank you. Your money is helping to make

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Speaker 3: this season. And as a special thank you to Patreon members,

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Speaker 3: we're providing a variety of benefits, including bonus content and

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Speaker 3: early access to episodes in this season. If that sounds

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Speaker 3: appealing to you, or you just want to support our work,

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Speaker 3: go over to patreon dot com, slash drilled and sign up.

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Speaker 3: We also have some merch associated with that. You can

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Speaker 3: find stories, documents, and photos related to this season on

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Speaker 3: our website at drillednews dot com. That's it for this time,

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Speaker 3: Thanks for listening, and we'll see you next week.