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Damning revelations in outtakes from anti-Chevron movie, 'Crude'

If Chevron's legal defense against the contingency lawsuit claiming environmental damage in Ecuador tells us anything, it's this: U.S. trial lawyers will be much more cautious about recruiting documentary filmmakers to do public relations for their lawsuits.

The media/PR aspect is just one angle to this complex international litigation, but it's a fascinating aspect, especially given the explosion of "documentaries" that agitate against business. (Think "Bananas," the dishonest attack against Dole.)

Outtakes from the movie, "Crude," have revealed a wide range of misconduct by the legal and PR team led by New York attorney Steven Donziger waging the $27 billion litigation against Chevron. On Tuesday, U.S. District Court Judge Lewis Kaplan in the Southern District of New York ordered the director, Joe Berlinger, to submit himself to depositions. Kaplan -- upheld by the Second Circuit -- had already required Berlinger to make relevant video outtakes available so Chevron could defend itself on several fronts, including supporting two of their attorneys facing criminal charges in Ecuador.

Berlinger, who in interviews stressed his independence and fair-mindedness, had claimed a journalist's privilege in trying to keep the outtakes from scrutiny. (Media companies and First Amendment activists lept reactively to his defense.) Lawyers for the plaintiffs were equally energetic in their attempts to prevent access to the footage.

Of course they were. The meetings and discussions they document are catastrophic for the trial lawyers and show Berlinger not to be a journalist striving for balance, as he claimed, but rather a partisan. Lawyers and environmental activists scheming to shake down a U.S.-based energy giant would make a good story for a documentarian, but the director chose to conceal that angle.

In his order Tuesday (available here), Judge Kaplan cited a ruling by another federal judge, Lorenzo F. Garcia, U.S. magistrate for the District of New Mexico, to describe the import of Berlinger's footage.

The release of many hours of the outtakes has sent shockwaves through the nation's legal communities, primarily because the footage shows, with unflattering frankness, inappropriate, unethical and perhaps illegal conduct. In the film itself, Attorney Donziger brags of his ex parte contacts with the Ecuadorian judge, confessing that he would never be allowed to do such things in the United States, but, in Ecuador, everyone plays dirty. The outtakes support, in large part, Applicants' contentions of corruption in the judicial process. They show how nongovernmental organizations, labor organizations, community groups and others were organized by the Lago Agrio attorneys to place pressure on the new Ecuadorian government to push for a specific outcome in the litigation, and how the Ecuadorian government intervened in ongoing litigation.


Garcia offered that description in granting Chevron's 1782 motion to obtain discovery from two environmental consultants who attended a meeting in Ecuador where Donziger and others discussed how to exaggerate damage claims against the company. In attendance was Richard Cabrera, soon to be named by an Ecuadorian judge to serve as the independent "Special Master" to assess damages. (Garcia's opinion and order are available here.)

Chevron has successfully pursued 1782 motions -- obtaining discovery from witnesses in foreign judicial proceedings -- across the country, gaining testimony and evidence helping the company to unravel the dishonest campaign against it. (See Michael Goldhaber, American Lawyer, [subscription], "The Global Lawyer: Chevron Wields U.S. Discovery as a Weapon in Ecuadorian Litigation.")

But so far the greatest damage to the shakedown litigation results from the outtakes from "Crude," a movie idea that Donziger originally pitched to Berlinger with an invitation to visit Ecuador. Live by the PR, die by the PR.


P.S. We've blogged often on the litigation at Shopfloor.org, the blog of the National Association of Manufacturers, including two posts yesterday on Kaplan's ruling:

And again, for purposes of disclosure, in June 2009 Chevron paid for several bloggers including myself to travel to Miami and Ecuador for briefings on the case.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.