Litigation

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

By Carter Wood

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 an 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.

Full post as published by Point of Law on September 08, 2010 (boomark / email).