Speaker 1: I contended, can I whois you?
Speaker 2: And p.
Speaker 1: Noise um procession, assume process lucas pueblos aos.
Speaker 3: This is Pablo Fajardo again, the Ecuadorian lawyer we heard
Speaker 3: from last time. He says, well, you have to understand
Speaker 3: what this trial, with everything about this case is that
Speaker 3: it's not the lawyer's legal fight lalucha. The legal fight
Speaker 3: is for los pueblos affrictaros, the towns that were affected,
Speaker 3: the people who were affected. So it's not the lawyers,
Speaker 3: it's the people who were directly affected. That's what they're
Speaker 3: fighting for. This right here is the center of this story,
Speaker 3: the heart. A lot of what has happened in the
Speaker 3: decade since the verdict in Ecuador has focused on the
Speaker 3: ins and outs of legal process things lawyers are doing
Speaker 3: far away from the oil pits in Ecuador. But at
Speaker 3: its root, this case is about an environmental disaster, the
Speaker 3: poisoning of a pristine jungle and the people living in it,
Speaker 3: and the fact that those people are still suffering the
Speaker 3: consequences of what was done thirty forty years ago. May
Speaker 3: have picked up on this last time, but Fajardo and
Speaker 3: Donziger are somewhat at odds these days, neither will say
Speaker 3: exactly why that. There are a few possibilities on the table. First,
Speaker 3: Fahardo is now also suing Petro Ecuador, the state owned
Speaker 3: oil company that Chevron has said is really responsible for
Speaker 3: the pollution in the Amazon. That case could feasibly be
Speaker 3: seen as a threat to the effort to collect on
Speaker 3: the Chevron judgment, and just as a case that somehow
Speaker 3: calls the Chevron case into question because it's holding Petro
Speaker 3: Ecuador accountable too, although Fajardo says, of course, yeah, they
Speaker 3: both did things, they're both responsible, they should both be
Speaker 3: held to account. On the other side, Donziger has been
Speaker 3: centered in a lot of the media coverage of this story,
Speaker 3: often more so than the damage done to Ecuador. That's
Speaker 3: not necessarily his fault. Sometimes it's just a function of
Speaker 3: what's happened more recently and the fact that people are
Speaker 3: being assigned stories on him and can't get into the
Speaker 3: whole long history. But in either case it can and
Speaker 3: has caused some resentment in Ecuador. Today, we're going to
Speaker 3: talk about why media coverage of this case started to
Speaker 3: shift away from musuffiicpapos, those people in Ecuador who were
Speaker 3: affected and towards the lawyers, because that was not an accident,
Speaker 3: that was a strategy.
Speaker 4: Think about it.
Speaker 3: If your Chevron, you'd probably rather fight a Manhattan attorney
Speaker 3: in the court of public opinion than thousands of indigenous
Speaker 3: people who no longer have access to clean drinking water
Speaker 3: in the Amazon. When Chevron brought on Gibson Dunn in
Speaker 3: late two thousand and nine, the firm had just finished
Speaker 3: up a case for Dole, the food company, and they'd
Speaker 3: been really successful deploying what they called the quote unquote
Speaker 3: kill step, which worked to nullify a judgment against the
Speaker 3: company that had come in Nicaragua. Basically, the lawyers had
Speaker 3: convinced a US court that the case in Nicaragua was
Speaker 3: a sham, part of a con that these plaintiffs, who
Speaker 3: claimed they had been sterilized by a pesticide Dole used
Speaker 3: on its banana plantation down there were frauds. Pretty quickly
Speaker 3: after they started working on the Chevron case in Ecuador,
Speaker 3: the Gibson Dun lawyers were describing that case in fairly
Speaker 3: similar terms we heard in the last couple of episodes
Speaker 3: about the various penis and depositions at Randy Mastro, the
Speaker 3: lead attorney on the case for Gibson Dunn was getting.
Speaker 3: That all culminated in Chevron filing a civil racketeering suit
Speaker 3: under RICO against the plaintiffs and attorneys in the Ecuador
Speaker 3: case in twenty eleven. That came just a couple weeks
Speaker 3: before the verdict actually came down against Chevron in Ecuador. Remember,
Speaker 3: Stephen Donziger, the American attorney working on the case, told
Speaker 3: us a while back that Chevron had stolen the moment
Speaker 3: of that victory.
Speaker 4: So when the decision came down in Ecuador, I was
Speaker 4: in New York with some of the lawyers in the
Speaker 4: US who had been working on the case, and we
Speaker 4: got the news and we were obviously thrilled, but we
Speaker 4: were also at that point dealing with the Rico case,
Speaker 4: so it was all confusing, and in a weird way,
Speaker 4: Chevron had stolen the moment.
Speaker 3: And they'd stolen more than the moment. They'd taken control
Speaker 3: of the story. From that point on, most coverage of
Speaker 3: this case has focused on the legal ins and outs,
Speaker 3: not the original environmental damage in the Amazon. It became
Speaker 3: all about the lawyers and not the affected people at all,
Speaker 3: And in general, that framing of the story has tended
Speaker 3: to benefit Chevron. So what the heck was this reco case?
Speaker 3: What were the charges and what happened here? That story
Speaker 3: coming up right after this quick break.
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Speaker 5: The reco case filed against lawyers and some of the
Speaker 5: Ecuadorian plaintiffs in the Chevron Ecuador case was pretty damning.
Speaker 5: Charges sounded really bad. They included intimidating judges, tampering with evidence,
Speaker 5: ghostwriting witness testimony, and even ghostwriting the final judgment itself.
Speaker 5: But like everything else in this story, their RICO case
Speaker 5: was anything but straightforward.
Speaker 6: So my name is Melissa Simms, and I'm an attorney
Speaker 6: with Sanders Philips Grossman in New York.
Speaker 3: We asked Melissa Sims, who's been involved in various RICO
Speaker 3: cases and is familiar with this case but has no
Speaker 3: stake in it, to give us the lay of the
Speaker 3: land on RICO in general and some of the particularities
Speaker 3: of this case. To start with, what the heck is RICO.
Speaker 3: It stands for Racketeer, Influenced and Corrupt Organizations Act, which
Speaker 3: is the law these cases are filed under.
Speaker 6: It was passed initially in the nineteen seventies and intended
Speaker 6: to pursue the mafia. What they tried to do is
Speaker 6: establish a law to where you could tie all of
Speaker 6: their crimes together in one case and show them to
Speaker 6: be an enterprise, which allowed the prosecution to be able
Speaker 6: to connect a lot of different incidences into one enterprise,
Speaker 6: to show that these people came together for a common
Speaker 6: purpose and that common purpose caused whatever type of damage.
Speaker 3: The way the RICO Statute is written, you can't just
Speaker 3: bring a RICO charge against a group of people doing
Speaker 3: crimes together. The crimes have to be in service of
Speaker 3: some broader goal.
Speaker 6: Okay, so it can't just be you and I going
Speaker 6: to rob a bank. It has to be you and
Speaker 6: I going to rob a bank with the purposes of
Speaker 6: taking the money to further some other type of conduct.
Speaker 3: SIMS is a plaintiff's atorney, which means she's usually bringing
Speaker 3: RICO complaints against large corporations on behalf of people who've
Speaker 3: been wronged in some way by the company's behavior. In
Speaker 3: the past few years, for example, she's been working on
Speaker 3: the big opioid cases where they were able to show
Speaker 3: that pharmaceutical companies, distributors, and some doctors were knowingly getting
Speaker 3: people hooked on prescription opioids.
Speaker 6: Now that illegal conduct is one of a list of
Speaker 6: conduct in the statute, so in the federal statue that
Speaker 6: has to be enumerated, like bribery, extortion, arson, robbery, kidnapping.
Speaker 6: The most common is mail and wire fraud. So mail
Speaker 6: and wire fraud are the ones that we fall back
Speaker 6: on on our cases because you can show if there's
Speaker 6: an intent to decease.
Speaker 3: That's all you need is an intent to deceive using
Speaker 3: the US.
Speaker 6: Mail or wire, and the wire would be money. You
Speaker 6: could also apply it to the internet.
Speaker 3: Sim says for plaintiffs attorneys, the burden of proof can
Speaker 3: be really high to make a RICO claim stick to
Speaker 3: get past a motion to dismiss, and she says, usually
Speaker 3: with a RICO complaint, you have to show a long
Speaker 3: pattern of behavior.
Speaker 6: It's something that is more than just one or two times.
Speaker 6: It has to be an ongoing event. There has to
Speaker 6: be more than two occasions in the last ten years
Speaker 6: of these people that get together to perpetuate something that
Speaker 6: they could.
Speaker 3: Not do on their own, that didn't really happen in
Speaker 3: this case.
Speaker 6: So, you know, going after a one or two event
Speaker 6: type of conduct that I think they're alleging in Chevron
Speaker 6: is that is really rare to be able to pass
Speaker 6: a motion to dismiss on a RICO claim.
Speaker 3: The other big anomalies here center around damages and a jury. Generally,
Speaker 3: in a RICO suit, the whole point is damages. The
Speaker 3: people bringing the claim were damaged in some quantifiable way
Speaker 3: and they're seeking compensation. In fact, one of the reasons
Speaker 3: big companies have become a target for RICO cases is
Speaker 3: that plaintiffs can ask for what's called treble damages, so
Speaker 3: three times the damages they'd be able to get in
Speaker 3: a simple liability case. When it filed its suits, Chevron
Speaker 3: did claim damages, but then shortly before the trial was
Speaker 3: set to begin, they drop the damages claim. They made
Speaker 3: it solely about blocking the Ecuadorian judgment from being collected
Speaker 3: in the US.
Speaker 6: But it's weird because that's what Rico's all about, damages.
Speaker 6: What good is it without damages?
Speaker 3: Sims says, damages are the whole basis of Rico claims.
Speaker 3: In general. She says it would be kind of pointless
Speaker 3: to bring a reco case if you don't have any damages.
Speaker 3: But it may also explain why the plaintiff's request for
Speaker 3: a jury trial was denied without damages, to assess there's
Speaker 3: not much need for a jury. This Rico case is
Speaker 3: every bit. It's complicated and confusing as the original case
Speaker 3: in Ecuador. So we're going to spend a couple of
Speaker 3: episodes going through it, not because we want to take
Speaker 3: our eyes or ears off of what happened in Ecuador,
Speaker 3: but because we think it's important to evaluate these claims
Speaker 3: transparently and to weigh them against the damage. At the
Speaker 3: heart of the original case, the environmental damage in the
Speaker 3: Amazon to explore this mismatch that filmmakers Joe Berlinger described
Speaker 3: last time between what's legal and what's moral, to look
Speaker 3: at where the focus of the story turned and figure
Speaker 3: out where we think it should be now. So first
Speaker 3: charge pressuring the Lago Agrio court and manufacturing evidence. When
Speaker 3: we talked to Randy Mastro, the lawyer with Gibson Dunn
Speaker 3: who led this rico effort for Chevron, he talked a
Speaker 3: lot about how much Donziger and the other plaintiffs attorneys
Speaker 3: were trying to influence and pressure Ecuadorian judges, among various
Speaker 3: other pieces of evidence. Mastro pointed to outtakes from the
Speaker 3: documentary crewed. Here he is talking about one scene in particular.
Speaker 1: He also is captured at a dinner. I mean's sitting
Speaker 1: next to a woman who says to him, you know
Speaker 1: the judge will be killed if he doesn't rule in
Speaker 1: your favor in this country, and don Zeger says, well,
Speaker 1: I don't know about killed, but he thinks he will,
Speaker 1: which is just as good.
Speaker 3: It sounds really shady what Mastro's describing, but trying to
Speaker 3: make your case in the public so that it's unpopular
Speaker 3: for a judge to rule against you. It's kind of
Speaker 3: the entire basis of litigation PR which PR firms created
Speaker 3: four multinational corporations in the first place, and it's something
Speaker 3: a lot of companies, including various oil companies, have used
Speaker 3: to their benefit for years. Another scene Mastro described is
Speaker 3: a bit more concerning.
Speaker 1: He's talking about mobilizing to put people in front of
Speaker 1: the courthouse, the thousand people in front of the courthouse,
Speaker 1: to pressure, and he's saying, literally, we have to pressure
Speaker 1: the judge. We have to make him know who's boss.
Speaker 1: We have to make them know who's in control. We're
Speaker 1: going to put a thousand people in front of the
Speaker 1: courthouse and we're going to mobilize. And there's even discussion
Speaker 1: of arming the thousand people, and some discussion about whether
Speaker 1: that is, you know, conspiracy and a crime.
Speaker 3: In the outtake, it's hard to tell whether the arming
Speaker 3: part is serious. In this clip, you'll hear donze Grew
Speaker 3: described pulling together a bunch of protesters, which he describes
Speaker 3: as an heercito an army. Then Luisianza jumps in and
Speaker 3: says in Spanish, we're using the word army, but it's
Speaker 3: not really an army. It's like a specialized group.
Speaker 7: Various march gra okay for moms, most appropriate, hersing prevalent.
Speaker 1: As as a least.
Speaker 2: Side.
Speaker 3: A woman from Amazon Watch asks if it's possible these
Speaker 3: videos might be subpoenaed and warns the group.
Speaker 2: I again put a subpoena. What about you, asked these guys.
Speaker 2: I just wanted to know that it's illegal to conspire
Speaker 2: to break the law.
Speaker 3: In another shorter snippet from this scene that we found
Speaker 3: on YouTube, Yansa says this, and so he's saying, and
Speaker 3: then if we need weapons, we can provide weapons. That
Speaker 3: does sound bad, although Yance is laughing a lot, so
Speaker 3: it's hard to tell what the context was here. Remember
Speaker 3: this is thirty seconds taken out of what seems to
Speaker 3: be a fifteen minute or so scene, so we're not
Speaker 3: really sure how this particular segment was taken out, what
Speaker 3: was before and after it, how it might have been edited.
Speaker 3: All we're seeing is this one part. It mostly sounds
Speaker 3: like people organizing a big protest. The manufacturing evidence part
Speaker 3: of this section of the Ego complaint refers to the
Speaker 3: two issues Mastro mentioned a couple episodes back, the Combucker
Speaker 3: Report and the Cabrera report. Here he is explaining the
Speaker 3: issue with Charles Combacker, an expert for the plaintiffs.
Speaker 1: When we compelled doctor Combacker's testimony in Georgia. What he
Speaker 1: actually testified was that the report that Steve Donziger and
Speaker 1: his Ecuadorian lawyers submitted to the court in Ecuador was
Speaker 1: not Combacker's conclusion that he had not in fast included
Speaker 1: that it was a significant environmental damage in the work
Speaker 1: that he had done.
Speaker 3: Donziger and the plaintiffs denied this. They said Kmbucker had
Speaker 3: been fired and his deposition was basically sour greeps. Then
Speaker 3: there's the Kabrew report, which Mastro says the plaintiffs experts Douglas,
Speaker 3: Speltman and and mast ghost wrote.
Speaker 8: Here's Mastro, the supposedly independent expert in equita who had
Speaker 8: been appointed by the court to be an objective, independent
Speaker 8: party in assessing environmental damage and how much there was
Speaker 8: and attributing it to parties if there were found to
Speaker 8: be environmental damage, that, in fact, that was not an independent,
Speaker 8: objective report.
Speaker 1: It had been ghost written word for word by Stratus.
Speaker 3: Donziger's explanation was that this was all perfectly normal, that
Speaker 3: the plaintiffs had asked for Cabrera to be appointed, and
Speaker 3: that their experts helped to run analysis for his report.
Speaker 3: He talked about this a couple episodes ago, but here's
Speaker 3: a little snippet to remind you.
Speaker 7: Stratis did write or draft most of the Cabrera report. Cabrera,
Speaker 7: though review it, signed it. They worked together. There was
Speaker 7: a massive amount of information, you know, literally tens of
Speaker 7: thousands of chemical sampling results in any single individual would
Speaker 7: never have the capacity to pull that together analyze it
Speaker 7: by himself or herself.
Speaker 3: Douglas Beltman, the scientist from Stratus Consulting, told sixty minutes
Speaker 3: in no uncertain terms what he thought of Texico's practices
Speaker 3: in the Amazon.
Speaker 8: It's a disgrace.
Speaker 3: They treated Ecuador like a trash heat He was named
Speaker 3: as a defendant in the Rico too, and in his
Speaker 3: initial deposition he said, quote, we didn't collect any data ourselves.
Speaker 3: We were only looking at the data that had been
Speaker 3: collected by others. According to Velpment, that included data collected
Speaker 3: as part of the trial, including the judicial inspection data,
Speaker 3: where plaintiff experts and Chevron experts collected environmental data, and
Speaker 3: Cabrera and his team also collected environmental data. When asked
Speaker 3: why the plaintiff samples all seemed to be contaminated and
Speaker 3: Chevron samples devoid of contamination, Veltman explained why, quote, Chevron
Speaker 3: may have sampled farther away from the pits, and they
Speaker 3: used a different analytical method from that of the plaintiffs.
Speaker 3: At one point, the attorney conducting the deposition ask, did
Speaker 3: you reach any conclusion about whether or not the environment
Speaker 3: had been contaminated during Texico's work in the concession by
Speaker 3: their work in the concession? And Veltman answers, quote that
Speaker 3: conclusion is that Texico did cause environmental contamination as a
Speaker 3: result of their operations. Then the attorney asks, did you
Speaker 3: reach a conclusion as to whether or not Texco operations
Speaker 3: in the concession complied with the industry standards in effect
Speaker 3: at the time, And Beltman says, quote, the way that
Speaker 3: Texco operated that oil field was substandard by industry practices.
Speaker 3: They used practices that were common in the early nineteen hundreds,
Speaker 3: but by the time they were conducting operations in Ecuador,
Speaker 3: these practices were not typically used, certainly in the US
Speaker 3: and in most places in the world. Now again, it's
Speaker 3: the method of the report that's been called into question,
Speaker 3: and in this case, in particular, the idea that Beltman
Speaker 3: and his colleague and Maste wrote the report and that
Speaker 3: Cabrera just signed his name to it. And it's possible
Speaker 3: that the plaintiffs and their attorneys and Beltman and Maste
Speaker 3: should have been more transparent about Stratus's work with Cabrera. Ultimately,
Speaker 3: it seems like a mood point because both the Kombacher
Speaker 3: report and the Cabrera Report were thrown out by the
Speaker 3: judge in Ecuador. In the final judgment, Judge Sombrano wrote
Speaker 3: that he had disregarded these reports because of the controversy
Speaker 3: swirling around them both, which begs the question why would
Speaker 3: reports that were disregarded by the Ecuadorian court be used
Speaker 3: as proof that the case was fraudulent. According to Donziger's
Speaker 3: attorney for the Rico case, Zoe Littlepage, it was all
Speaker 3: a diversion tactic.
Speaker 9: We have seen a pattern in the last decade of
Speaker 9: defense lawyers starting to and mainly corporations, starting to attack
Speaker 9: the lawyers personally and the advocates personally as opposed to
Speaker 9: the plaintiffs or dealing with the underlying issues, and it
Speaker 9: has been.
Speaker 2: A terrifying.
Speaker 9: Trend for most people in the bar that when you
Speaker 9: bring a case, you are putting yourself personally on the line,
Speaker 9: not just representing your client. That's never really happened before.
Speaker 3: But Mastro was about to up the ante. Here's what
Speaker 3: he argued in court.
Speaker 1: So you asked me, did Sobrano say, didn't rely on Cabrero.
Speaker 1: Actually it's more complicated than that, because Sobrano didn't write
Speaker 1: his own judgments.
Speaker 3: Mastro's accusation is that the plaintiffs and their attorneys ghost
Speaker 3: wrote the final judgment. Donziger, the other plaintiff attorneys, and
Speaker 3: the plaintiffs themselves, of course say this is completely false.
Speaker 3: So let's look at how Mastro tried to make this case. First,
Speaker 3: two points to phrases that were found in the Ecuadorian
Speaker 3: legal team's files that were similar or exact to phrases
Speaker 3: found in the judgment. Suspicious maybe, but not necessarily proof.
Speaker 3: They never did find the smoking gun the final judgment
Speaker 3: itself on any devices or hard drives, and both their
Speaker 3: expert and a forensic expert hired by the Ecuadorian government
Speaker 3: did find multiple drafts of the judgment on Zambrano's computer,
Speaker 3: which is consistent with him writing it himself. However, as
Speaker 3: with everything else in this case, each side thought that
Speaker 3: the existence of multiple drafts proved their point. Master bolsters
Speaker 3: his claims with two things. First, he points to Judge
Speaker 3: Sombrano's behavior at the Rico trial.
Speaker 1: When I crossed examined him and gave him a pop quiz,
Speaker 1: and he couldn't answer a single question right about the
Speaker 1: most central important elements in his judgments. Couldn't answer a
Speaker 1: single one correctly.
Speaker 3: And then he points to the testimony of a witness
Speaker 3: named Alberto Gheta. Gherra was, by his own admission, a
Speaker 3: corrupt judge in Ecuador. He claimed to have been part
Speaker 3: of this big conspiracy to ghostwrite the judgment who'd had
Speaker 3: a change of heart, and then his master put it flipped. Guerta,
Speaker 3: though changed his testimony in a few instances despite having
Speaker 3: been prepped by Chevron's attorneys. And that's what we'll dig
Speaker 3: into next week next time on Drill.
Speaker 9: Well, it was shocking, you know, we knew coming in
Speaker 9: that Chevron had gone and recruited and paid cash in
Speaker 9: a duffel bag to a judge who had been essentially
Speaker 9: disbarred in Ecuador for corruption and fraud.
Speaker 8: And you know, as an American.
Speaker 9: Lawyer, I just assumed that that sort of what sounded.
Speaker 10: Like a story, like a movie plot would be completely
Speaker 10: laughed out of an American footroot, that we would have
Speaker 10: a key witness in a trial be someone that Chevron
Speaker 10: had paid close to a million.
Speaker 9: Dollars too in either money or compensation or you know.
Speaker 9: They bought him a house, they gave him a job,
Speaker 9: they bought him cars, they paved his flights for him
Speaker 9: and his family to move out of Ecuador. They paid
Speaker 9: for the immigration lawyer to bring him here. They you know,
Speaker 9: and it all started with Chevron going up to a
Speaker 9: sketchy meeting with this former disbarred judge with a double
Speaker 9: bag full of cats.
Speaker 2: Thanks.
Speaker 3: Drilled is an original production of the Critical Frequency podcast Network.
Speaker 3: The show was created, reported, and written by me Amy Westerveldt.
Speaker 3: My co reporter this season is Karen Savage. Our editor
Speaker 3: is Julia Ritchie. The show's editorial consultant is Rika Murphy.
Speaker 3: Mixing and mastering by Mark Bush, Original score by b Beeman,
Speaker 3: fact checking by wodn Yan. Our artwork for this season
Speaker 3: was done by the super talented Matt Fleming special thanks
Speaker 3: to Trevor Gowan and Emily Gertz. If you are a
Speaker 3: Patreon subscriber, thank you. Your money is helping to make
Speaker 3: this season. And as a special thank you to Patreon members,
Speaker 3: we're providing a variety of benefits, including bonus content and
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Speaker 3: go over to patreon dot com, slash drilled and sign up.
Speaker 3: We also have some merch associated with that. You can
Speaker 3: find stories, documents, and photos related to this season on
Speaker 3: our website at drillednews dot com. That's it for this time,
Speaker 3: Thanks for listening, and we'll see you next week.