S5, Ep5 | The Big Guns

S5 Ep5 Big Guns

[00:00:10] When I know more some days in La Amazonia, and this is Pablo for hard, though.

[00:00:19] He's the guy who, along with Louisiana, won the Goldman Prize back in 2008 for his work fighting Texaco and then Chevron in Ecuador. Remember, Chevron took an ad out about how he and Luis were frauds for Hado was actually the lead attorney on the case against Chevron and Ecuador. But because Chevron targeted Donziger in its press push, he shows up less and less in stories about the case from 2010 onward. But he's still working on it today. We're going to get into more of that as the season goes on. But first, a quick recap, because we're halfway through this season and it's a very complicated story. OK, so [00:01:02]to recap, from the late 1960s to 1990, Texaco drilled for oil in the Ecuadorian rainforest. The company helped to start the oil industry there. A large group of both indigenous and non-indigenous residents say Texaco left a big mess and they should clean it up. And Ecuadorian lawyer named Cristobal Bonifaz first filed a suit against Texaco in New York in 1993, when Chevron bought Texaco in 2001. [28.6s]

[00:01:31] [00:01:31]It inherited this case, which was still going on like Texaco before it. Chevron lobbied for the case to be tried in Ecuador. In 2003, the New York courts agreed, and the case was refiled, this time against Chevron in Ecuador. At this point, Bonifaz kind of fades into the background. Donziger and four Hado start to get a lot more involved and they start to bring worldwide attention to the case. [24.8s]

[00:01:57] [00:01:57]But still, it drags on for years and years and years. [2.5s] When we left off last time, it was 2009. The plaintiffs were on a bit of a winning streak and Chevron was gearing up for a fight or really another round in this fight. I haven't called this season Lalu Junoon glove or nothing. In Episode four, we dug into the details of one particular tactic filing a complaint before an international arbitration tribunal. That happened in September 2009. Weeks before that complaint was filed, Chevron released on YouTube a batch of videos taken with hidden spy cameras like those pen cameras that you see in novelty shops or advertise in sky maul, teeny tiny cameras hidden inside normal looking pens. Chevron claimed the videos showed that the judge in the Ecuador case was being bribed. It all had a very National Enquirer caught on tape, judge accepting bribes sort of vibe to it in most of the tapes. And Ecuadorian man named Diego Porscha and an American named Wayne Hanson were meeting with the guy who is the judge in the case at that time. Judge one noon. Yes. Here's a tidbit from one of these videos.

[00:03:10] And just note, the audio quality is terrible because you, Ben Gamora, Martinez is simply the maximum. So the system really.

[00:03:26] So to set up these meetings with Judge Nunez Bhatia and Hansen had claimed to be environmental remediation experts who were tracking the case because there might be work in it for them eventually. When these videos came out, Judge Ninia said, yeah, I met with these guys. I explained the case to them and how Ecuadorian law works. None of that's illegal. That all tracks with the tapes that he's in. He insisted he'd done nothing wrong. But still, in September, right around the time Chevron was filing its arbitration claim, Narnia's recused himself from the case because of this whole scandal that set the trial back months because a new judge had to come on board, familiarize himself with the case and read through thousands and thousands of pages of documents and filings and transcripts. All of that. A couple weeks after all of this was in the news, the Associated Press published a story that poked a lot of holes in these videos, especially the credibility of the American Wayne Hanson. As the story unfolded over the next few months, it just kept getting weirder. It sounds more like a Coen Brothers movie than a law case. And that was the tip of the iceberg. That wild ride right after this quick break.

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[00:05:59] Wayne Hanson does a great job of playing the bumbling, confused American in these videos. Here he is asking how much longer the trial might go on.

[00:06:09] I have my support of a five more days and the trial is over again.

[00:06:14] Hanson claimed to be a remediation expert who is hoping to get in on some of the work on that front. Once Chevron was found guilty. But in October 2009, the Associated Press reported that Hanson was, in fact an ex-con with no verifiable experience in remediation work. That story read, quote, Hanson, in two brief interviews, told AP he had water treatment projects in Mexico and Ecuador. But when a reporter questioned those claims, he hung up. Chevron claimed to have no association with Hanson, but the company did offer to pay for any security and legal fees that resulted from his role in these videos. But remember, there was someone else in those tapes, too. Diego Bhatia and Bhatia was a different story. Initially, Chevron described him as a quote unquote, good Samaritan. But later it came out that Bhatia and his wife, Sarah Portier, had both worked for Chevron at various points. At that point, Chevron updated their description of Borsa to a logistics contractor for them. But also Bhatia, his uncle and Chevron's attorneys had offices in a building that Borgas uncle owned. In June, a couple months before the videos were released, Chevron moved Bhatia and his wife to the US. The company claims that was done to protect the Borgias. They rented the couple a house in California and paid them a stipend of ten thousand dollars a month for about two years. We only know all of this stuff because the plaintiffs hired a private investigator to look into Bhatia and Hansen, which turned up all kinds of stuff, including some tapes of their own. Audio recordings of calls between Bhatia and an acquaintance that make Baugus seem like, well, let's say not quite a good Samaritan. Here's a moment from one of those tapes. You'll hear Borgas acquaintance first and then him to walk away thinking that Labi Lansac like this, you can tip the balance to either side.

[00:08:10] His acquaintance says that you'd better go. Don't you have to go look. Simply noted of course.

[00:08:17] And for either of the two sides, look at how much it tipped. Just now, Bhatia says this was around the time that Newnes had just recused himself in looking up where he was.

[00:08:27] Any money. Yeoval live with where it went because it was there with they haven't been able to do.

[00:08:34] And how long? A year or something. Pausa says through that judge out in, what, three days? Two days.

[00:08:49] There are several of these tapes, and some of them also called Chevron's scientific experts into question. Borza talks about collecting samples for the company, which he says he's been doing since 2004. He also claims to have set up a bunch of supposedly independent labs to test samples for Chevron and documents that were submitted to the Ecuadorian court do show. Not only that, Borgas wife worked for the lab that Chevron used to test contamination samples, but also that Borgia was handing some samples off directly to her. None of this looked good for Chevron, but by this point lead 2009, they had brought on the law firm Gibson, Dunn and lawyer Randy Mastro was busy gathering evidence of his own about the plaintiff's scientific experts.

[00:09:36] There were a series of wild moments.

[00:09:39] Here's Mastro talking to us, we assume from his place in New York, describing what he dug up on the plaintiff's. Once Chevron brought Gibson Dunn in to help.

[00:09:48] One of the very first of these subpoenas that we were able to issue in the United States was to compel the testimony of a scientific expert. Steve Donziger had hired named Dr. Charles Calm Bocker from Georgia.

[00:10:11] If you're wondering how Chevron's lawyers were able to subpoena things from the plaintiffs when the case was still going on in Ecuador, I get it. It seems very weird. Here's the deal. There's a section of the U.S. legal code called Section 1782, and it says basically, if you're an American or an American company or organization and you're involved in a lawsuit in another country and there are documents or American witnesses that might help you in that litigation, you can subpoena them.

[00:10:40] That's what master used to get called Borchers deposition.

[00:10:45] And he was supposedly plaintiff's expert in Ecuador confirming that based on research and tests that he had done, that there was significant environmental contamination done in the Amazon. But when. We compelled Dr. Kim Barker's testimony in Georgia. He actually testified was that the report that. Steve Donziger and his Ecuadorian lawyers submitted to the court in Ecuador. It was not. Com Bakker's conclusion that he had not, in fact, concluded that there was a significant environmental damage in the work that he had done was further revealed that Donziger had asked him for signature pages separate from his report.

[00:11:41] The plaintiffs, of course, deny this. They say Humbucker was fired, that he thought they owed him money. And this deposition was some sort of revenge. Donziger says Bucker authorize the submission of his report. And then he sent his signature separately because he'd already returned home to Georgia. In any case, it was enough for Gibson Dunn to get the go ahead from a U.S. judge. District Court Judge Lewis A. Kaplan of the Southern District of New York to file more subpoenas next.

[00:12:09] M. went after Douglas Feltman, the executive V.P. from Stratus Consulting that we heard from last time.

[00:12:16] It's a disgrace. They treated Ecuador like a trash heap.

[00:12:21] He also subpoenaed Feldman's colleague and maced. At issue is the report by Richard Cabrera, the court appointed expert. Remember I mentioned before that this guy was gonna come up again and again. Cabrera and the Cabrera report were becoming increasingly contentious, in part because Donziger was talking about the report a lot in the press and because it was Cabrera's report that said this is how much Chevron should owe to clean up this mess. And it was in the many, many billions of dollars, according to Mastro. Cabrera was supposed to be neutral and not tied to either side in the case.

[00:12:58] And he was increasingly finding that that was not the case at all. Here's master explaining more.

[00:13:06] We sought by subpoena the records and then testimony from a firm that became a principal outside expert for Donziger and his Ecuadorian lawyers, Stratis.

[00:13:25] Scientists at Stratis and. When those records were ordered produced pursuant to a subpoena and they showed that.

[00:13:38] The supposedly independent expert in Ecuador who'd been appointed by the court to be an objective, independent party in assessing environmental damage and how much there was and attributing it to the two parties. If they were found to be environmental damage, that in fact, that was not an independent objective report. It had been ghostwritten.

[00:14:02] Word for word.

[00:14:03] I stress Donziger says there's a perfectly reasonable explanation for this.

[00:14:08] That allegation is just a bunch of B.S. on every level. Stratus did write or draft most of the Krubera report. Cabrera, though, reviewed it, signed it. They worked together. There was a massive amount of information, know literally tens of thousands of chemicals. Sampling results in any single individual would never have the capacity to pull that together, analyze it by himself or herself. So we did what Chevron did. And what's customary in courts all over the world, including in the United States. We we we used our experts to support Cabrera, who was also our expert, because we were the ones who asked for his report. And Chevron did not.

[00:14:52] In fact, Donziger says Chevron was doing the same thing with their experts.

[00:14:56] So Chevron used the same method in support of its experts, you know, would use its U.S. base experts to help its Ecuador and experts write their reports. And this was standard operating procedure under Ecuadorian law and terms of how export reports were done in Ecuador in all cases, and in particular this case.

[00:15:16] But Masteroff thought the plaintiffs involvement with Cabrera was fishy and Kaplan, a U.S. judge, agreed. So in May 2010, he okayed master's next and possibly most critical move, a subpoena for all of the outtakes of the documentary Crude, some 600 hours worth of tape shot by documentary filmmaker Joe Berlinger.

[00:15:40] So you have this building blocks. You have what happened with Con Bocker? It says simultaneous to this, these proceedings are going on to get documents and testimony from Stratis Satisfaction. Right. Joe Berlinger had made a documentary, Crude, that had been on the film festival circuit and.

[00:16:07] The issue of whether Cabrera.

[00:16:12] Was an independent objective expert, done an independent report and reached conclusions independently and was critical in the Ecuadorian proceeding because it was the basis on which Donziger and his Ecuadorian lawyers were asking the Ecuadorian court to impose billions in damages on Chevron. So Joe Berlinger produces crude and it shows on the festival circuit. Then it comes out on Netflix and a curious thing was picked up by the Chevron team. There was a change in scenes from the film festival version to the Netflix version. And the scene that had been changed or deleted was a scene that showed someone supposedly working as an independent expert for Cabrera was in fact, meeting with the plaintiffs lawyers and their clients at a session that Joe Berlinger was Steve Donziger in attendance. And then by the time it came out on Netflix, that scene had been deleted.

[00:17:22] The filmmaker Joe Berlinger fought this subpoena, and the characterization of his work is not journalism.

[00:17:29] It became a really big, high profile First Amendment case in its own right. And we're going to get into that in future episodes. But for now, keep in mind, this is all happening in 2010 and heading into 2011.

[00:17:43] And there's still no verdict in Ecuador yet. So you've got the international arbitration proceeding happening. Then you've got all this 1782 action for Mastro. Eventually, he does get the crude outtakes and he files more and more subpoenas. They get Donziger himself, four weeks of depositions and he's even required to hand over his personal diary and various correspondence between himself and the lawyers in Ecuador in public for Hado, him and various litigation financiers, everything.

[00:18:14] Again, this is while the case is still going on in Ecuador.

[00:18:19] Even with all that, though, you know, it was very clear in. I'd say December two thousand and ten. January 2011 that the case was going to end and they were going to lose. And it was just obvious that, you know, that all their little tricks had not worked and the case was ripe for decision and the evidence against them was overwhelming and they were going to lose. So instead of just accepting that fact and appealing, they. Prior to the issuance of the judgment in Ecuador, they filed the RICO case against us, describing what they thought was a criminal conspiracy to extort money from them.

[00:18:57] [00:18:57]Rico stands for Racketeer Influenced and Corrupt Organizations. It's a U.S. federal law that was created to deal with the mob and various other types of organized crime. In more recent years, it's been used against big corporations. For example, RICO has been invoked in a lot of the opioid litigation in its initial RICO complaint against Donziger and for Hado and the plaintiffs, Chevron alleged that the legal team had cooked up a sham case and then set about falsifying evidence and bribing judges to make it stick. [32.8s]

[00:19:31] [00:19:31]About two weeks after this RICO case was filed, the Ecuadorian courts finally delivered a judgment. Eight years after the trial had started, Chevron was guilty and it owed more than 18 billion dollars in damages. [15.8s]

[00:19:48] [00:19:48]So when the decision in Ecuador came down in our favor, that came down two weeks after Chevron had already tried to preempt it by suing us under the RICO case. So when the decision came down in Ecuador, I was in New York and, you know, with some other lawyers in the U.S. 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. [35.7s]

[00:20:25] The judge in Ecuador by this point, a guy named Nicholas, some trial made a point of saying that he had not relied on either Con Bakker's report or the Kebir report, not because he'd found evidence of a problem with either one, but because he didn't want the controversy swirling around the two to undermine his ruling.

[00:20:52] Next time on Drilled.

[00:20:54] So in the mornings, we would be lined up in this very long line. We had to get there very early and it was in October, November. It was cold. So we would be all bundled up. We would be in this long line to get through security, to get into the courthouse, and we'd have our blow ups and our boxes with us and our briefcases. And then you would see a row of five black Lincoln Suburbans arrive with tinted windows. And out of it will come the senior management of Chevron There, head of litigation, their entire legal team. And they were they were ushered into a separate entrance as VIP. So they didn't have to stand in the line with all the rest of us when they would get out and go straight into the courtroom.

[00:21:46] So we would have been in line for 45 minutes when they would arrive and go straight with.

[00:22:00] Drilled is an original production of the Critical Frequency podcast network. The show was created, reported and written by me. Amy Westervelt, my co reporter this season, is Karen Savage. Our editor is Julia Ritchie. The show's editorial consultant is Rekha Murthy Mixing and Mastering by Mark Bush. Original score by B. Beamon. Fact checking by Woot n Yen or artwork for this season was done by these super talented Matt Fleming. Special thanks to Trevor Gowan and Emily Girds. If you are a patriot and subscriber, thank you. Your money is helping to make this season and as a special thank you to Patriot, members were providing a variety of benefits, including bonus content and early access to episodes in this season. If that sounds appealing to you or you just want to support our work, go over to Patria on dot com, slash Drilled and sign up. We also have some merch associated with that. You can find stories, documents and photos related to this season on our Web site at Drilled news dot com. That's it for this time. Thanks for listening and we'll see you next week.