Chevron Seeks to Expand|Discovery in ‘Crude’ Case

     MANHATTAN (CN) – Chevron seeks to expand the scope of an order forcing documentary filmmaker Joseph Berlinger to turn over about 480 hours of footage from his 2009 film “Crude.” The oil giant claims the outtakes it has reviewed so far demonstrate “a massive fraud.”




     Berlinger was ordered in July by the 2nd Circuit to produce relevant outtakes from his documentary “Crude,” which shows how oil production in Ecuador has dramatically affected the landscape there.
     Chevron faces a $27 billion lawsuit in Ecuador over the environmental role that Texaco may have played before Chevron bought the company in 2001.
     The appellate order, issued by judges Pierre Leval, Barrington Parker and Peter Hall, set parameters for the footage Chevron could review, stating that Chevron was entitled to “copies of all footage that does not appear in publicly released versions of ‘Crude’ showing: (a) counsel for the plaintiffs in the case of Maria Aguinda y Otros v. Chevron Corp.; (b) private or court-appointed experts in that proceeding; or (c) current or former officials of the Government of Ecuador.”
     In its most recent court filing, Chevron says Berlinger produced more than 80 percent of the footage he claims to have. Of 520 total tapes, Berlinger released 421 full master tapes and 16 partially redacted digital tapes, Chevron claims.
     Chevron had hoped the outtakes would prove that its due process was violated in Ecuador, and the oil giant says its predictions were on target.
     “Chevron has thus far been able to review only a small fraction of the outtakes produced, but already it is clear that they contain conclusive evidence that plaintiffs’ counsel, consultants, and associates have knowingly participated in a fraudulent enterprise to corrupt the legal proceedings pending in Ecuador against Chevron,” Chevron attorney Randy Mastro wrote in a filing with the motion.
     The footage reveals Steven Donziger, a U.S. attorney for the plaintiffs in Lago Agrio, Ecuador, leading a planning meeting with PowerPoint presentations for an audience that includes the Amazon Defense Fund and Richard Cabrera, whom the Lago Agrio court appointed as a neutral expert.
     “This meeting occurred two weeks before the Lago Agrio court appointed Cabrera as its ‘neutral’ and ‘independent’ court auxiliary to conduct an ‘Examen Pericial Global’ or ‘Peritaje Global’ (both translated as ‘Global Expert Assessment’), but the participants at the meeting already knew that the court was going to appoint Cabrera as its global expert and referred to him as such,” according to the filing (italics in original).
     “These outtakes show that plaintiffs’ counsel, consultants and associates colluded from the very beginning to have Cabrera appointed and to then have the allegedly neutral ‘Special Master’ adopt their bogus, multi-billion dollar damages claims and present them to the Ecuadorian court and the world as his own” (original emphasis).
     At the meeting, Donziger and Pablo Fajardo, the lead Ecuadoran lawyer for the plaintiffs, dictate what should be included in Cabrera’s report, Chevron claims.
     “Fajardo says that the expert will ‘sign the report and review it. But all of us … have to contribute to that report,'” Chevron claims. “These admissions stand in stark contrast to the Ecuadorian court’s repeated orders that Cabrera be ‘responsible for the entire report, the methodology used, for the work done by his assistants, etc.’ and ‘maintain strict independence with regard to the parties.'”
     Mastro says that during the meeting, the “Crude” cameraman “obviously attempt[s] to avoid filming Cabrera,” and that Donziger also directs what can and cannot be filmed, including footage of Carlos Beristain, who worked on Cabrera’s team.
     Chevron says Berlinger also claims to have lost two tapes, but his claim cannot be verified without the original footage log. Complying with the additional demands does not intrude on journalistic privilege, Chevron claims.
     “This unexplained ‘loss’ of videotapes, coupled with respondents’ demonstrated affinity for plaintiffs — which extends so far as to edit out the Beristain footage at plaintiffs’ request, to turn off or divert the cameras when plaintiffs wanted, and even to engage in joint fundraising with plaintiffs — suggests that the Court should consider requiring — and would be well within its rights to order — that respondents deposit all the videotapes with the Court for safekeeping, until such time as the Second Circuit completes its opinion in this matter,” Chevron says.
     When Donziger’s environmental consultants report that there is no evidence contamination has spread into the groundwater, “Donziger looks at the camera and says, ‘There’s another point I got to make … with these guys, but I can’t get this on camera,’ and then the camera goes off,” the oil giant claims.
     Chevron says it needs a preservation order so that the footage is not destroyed and “limited supplemental discovery” of deposition testimony and documents from Berlinger’s crew.
     “The outtakes that respondents have produced thus far have brought into the sunlight what plaintiffs’ counsel and their associates have tried so hard to keep hidden — their fraudulent collusion with court expert Cabrera to present their allegations and damages figures as his ‘independent,’ ‘neutral’ assessment,” according to Chevron’s filing.
     “However, the outtakes have also revealed that after soliciting Berlinger to tell their story, and granting his crew extraordinary access to everything else about the litigation, Plaintiffs’ counsel specifically instructed the crew not to record certain conversations discussing the fraud, in an obvious attempt to avoid leaving too much tangible evidence behind.”
     Ilann Maazel, who represents the Lago Agrio plaintiffs, called Chevron’s motion “a cynical and desperate, last-minute legal strategy.”
     “They have hundreds of hours of outtakes documenting their own misconduct and they refuse to share them with the court or with the plaintiffs,” Maazel said.
     By not sharing the footage, Maazel says Chevron is flouting standard court procedure. He added that Chevron is also violating a court order, because the 2nd Circuit barred the company from using the outtakes in press releases.
     “I find their conduct not just shocking but desperate,” Maazel said. “For some reason, they refuse to share these outtakes with the plaintiffs, and my question is, ‘What are they hiding?’ If the evidence in Ecuador is overwhelming and devastating, they should attack the evidence not the lawyers.”

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