Chevron Gets Outtakes From 'Crude' Documentary for Ecuadoran Case

     MANHATTAN (CN) - A federal judge granted Chevron's request for 600 hours of raw footage that director Joseph Berlinger shot for the 2009 documentary "Crude." Chevron said it needs the outtakes to prove that due process was violated in Ecuador, where it is being sued for $27 billion.
     The oil giant has been sued by nongovernmental organizations, alleging violations of the 1999 Ecuadoran environmental law.
     The movie chronicles the devastation of the Amazon rainforest from oil production and provides an intimate look at a class-action against Chevron in Lago Agrio, Ecuador. Chevron says two of its attorneys face the possibility of indictment in Ecuador, for representing it.
     The U.S. law firm Kohn, Swift and Graf represents the NGOs in the case, which has been pending in Lago Agrio since 2003.
     Chevron claims the government of Ecuador has been working "hand in glove" to receive 90 percent of any judgment or settlement.
     "Crude" was produced by Third Eye Productions and directed by Joe Berlinger, who shadowed the Kohn Swift attorneys for three years.
     U.S. District Judge Lewis Kaplan found that outtakes from the final cut of "Crude" may prove Chevron's claims.
     "The released version of 'Crude' nevertheless depicts interactions which suggest the possibility of misconduct on the part of both plaintiffs' counsel and GOE [the government of Ecuador]," Kaplan wrote in 31-page decision.
     "In all the circumstances, it is likely that the outtakes will be relevant to significant issues in the prosecutions, including whether the prosecutions were motivated by a desire to put pressure on Chevron in the Lago Agrio litigation and the role, if any, that plaintiffs' counsel and the GOE played in those proceedings."
     Kaplan cited the fact that Berlinger edited one scene differently in the version available for streaming on Netflix and the final version released on DVD. The judge found that shows that Berlinger altered the scene at the direction of Kohn Swift to conceal images of bias on the part of a so-called impartial expert witness, Carlos Beristain.
     "Berlinger, moreover, concededly edited the scene at the direction of plaintiffs' counsel to remove all images of Beristain before 'Crude' was released on DVD, a fact suggestive of an awareness of questionable activity," Judge Kaplan wrote.
     A spokesman for Chevron said the company is eager to use the footage to show misconduct by the government of Ecuador.
     "The streaming Netflix version of 'Crude' documents improper conduct by the trial lawyers behind the Ecuador lawsuit," Chevron spokesman Kent Robertson said in an e-mail. "It is highly likely that additional misconduct is captured on the outtakes, content that could be extremely relevant in revealing the truth about the trial in Ecuador. Already, a similar discovery process revealed that the trial lawyers have been submitting fabricated expert reports to the court, and we believe that is only the tip of the iceberg when it comes to their misconduct."
     Kaplan said the footage from "Crude" will also help Chevron in an international arbitration in which it is trying to prove that its prosecution in Ecuador is an abuse of the criminal justice system and violates the Bilateral Investment Treaty between the United States and Ecuador and the United Nations Commission on International Trade Law.
     Kaplan found arguments on behalf of Berlinger and the Lago Agrio plaintiffs "without merit."
     The judge wrote that turning over the footage would be a minimal burden to Berlinger, and found the director "not persuasive" in showing he had confidentiality agreements with sources.
     "He does not identify any source or subject with whom he has such an agreement," Kaplan wrote. "He does not identify any particular footage allegedly covered by any such agreements. He does not even state whether the footage allegedly subject to such understandings is included in the outtakes or, instead, already is in the publicly available documentary. And he makes no effort to reconcile the claim of explicit assurances of confidentiality with the standard form of release he obtained from his subjects, which granted him carte blanche to use all of the footage in his production.
     "Berlinger no doubt won the confidence of many of his subjects," Kaplan continued. "The standard release that his subjects signed, however, expressly disclaims any expectation of confidentiality. In any event, all of Berlinger's subjects appeared on camera for the very purpose of having their images and words shown publicly in whatever film Berlinger decided to create."
     An attorney who represented the Lago Agrio plaintiffs against Chevron's petition said Kaplan's decision will not protect Chevron from being taken to task.
     "We're obviously disappointed with the decision, but we're confident that when all is said and done, Chevron will be held accountable for what they did in the Amazon," said Ilann Maazel, a partner with Emery Celli Brinckerhoff & Abady.
     "In this case, in the end, the facts and the law are on our side. We all know what Chevron did in Ecuador, and at the end the day, they will be held accountable."
     Judge Kaplan conceded that Chevron's conduct in Ecuador and its relationship with the government there has been inconsistent, and that more transparency on this case can only help matters.
     "As Justice Brandeis once wrote, however, 'Sunshine is said to the best of disinfectants,'" Kaplan wrote. "Review of Berlinger's outtakes will contribute to the goal of seeing not only that justice is done, but that it appears to be done."
     Berlinger's attorney, Maura Wogan, of Frankfurt Kurnit Klein & Selz, said in a statement that she plans to appeal the decision, which she said "will cause grave harm" to other journalists and documentary filmmakers.