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