MANHATTAN (CN) – Objecting to Chevron’s request for additional discovery, documentary movie director Joseph Berlinger claims that all of Chevron new demands are irrelevant or moot. Chevron wants to use outtakes from Berlinger’s film, “Crude,” in a $27 billion lawsuit in Lago Agrio, Ecuador, to show that its due process rights were violated. But Berlinger claims he already complied with the 2nd Circuit’s discovery order.
To comply with the 2nd Circuit’s order, Berlinger in July turned over about 80 percent of the footage for his 2009 documentary “Crude.”
After reviewing some of the subpoenaed footage, Chevron requested additional discovery not covered in the 2nd Circuit’s order: deposition testimony from the “Crude” filmmakers and copies of communications between the crew and other parties to the lawsuit in Ecuador.
In an opposition brief, Berlinger’s attorney, Maura Wogan with Frankfurt Klein, says that Berlinger has accounted for 526 tapes, produced 446 full tapes, 16 partially redacted tapes, the original footage log, an annotated footage log and a detailed privilege log.
“The only issue is whether and to what extent the filmmakers must continue to disrupt their work and lives to ‘aid’ Chevron,” Wogan wrote, adding that the evidence Chevron cited in its motion is either irrelevant or moot.
“After having received well over 80 percent of the raw footage, Chevron now asks this court to permit it to conduct ‘limited additional discovery’ of the filmmakers,” Wogan wrote. “However, there is nothing limited about the new subpoenas which, if permitted, would add several broad document requests and significantly expand the scope of the deposition the court previously authorized solely to authenticate the footage. Once again, Chevron is seeking a very broad order that would require the disclosure of confidential and nonconfidential information protected by the journalist’s privilege.”
Chevron attorney Randy Mastro, with Gibson Dunn, says Berlinger supplied footage that was previously unaccounted for, and is confused about the relevance of what he taped.
“This late production of responsive footage demonstrates that Chevron’s initial concerns about the review process were justified, that neither Chevron nor this court can have full confidence in respondents’ review and production of the ‘Crude’ outtakes, and that there are obvious deficiencies in Mr. Berlinger’s various privilege logs,” according to Chevron’s brief.
Wogan disagrees, claiming that the testimony and documents Chevron seeks are “well beyond” the narrow scope of the 2nd Circuit’s order, bear little relevance to the legal proceedings and “cannot be characterized as ‘unimpeachably objective evidence’ that is not available from any other source.”
Wogan also accuses Chevron of violating the 2nd Circuit’s “unambiguous directive” to use the “Crude” footage only for litigation, arbitration or submission to official bodies.
“Chevron has swiftly exploited the material obtained and abused this forum for its own public relations campaign, just as the filmmakers feared and the 2nd Circuit prohibited,” Wogan wrote. “Before counsel for the filmmakers had even received copies of Chevron’s papers, Chevron had already released a false and misleading message through Twitter (‘”Crude” outtakes reveal director Joe Berlinger followed trial lawyers’ bidding to aid suit against Chevron’) and linked to a blog post of a writer who appears to have been provided with an advance copy of the filing,” Wogan claims.
Chevron’s account on Twitter.com shows that the company retweeted ShopFloor_NAM, the blog for the National Association of Manufacturers, which posted a link to an article on Chevron’s motion at 8:04 p.m. on Aug. 3 – the same day that Chevron filed its motion for discovery.
Wogan also claims that an article for the San Francisco Chronicle stated that the newspaper “reviewed transcripts of the outtakes supplied by Chevron.”
Chevron claims it did not provide journalists with any prohibited access to the “Crude” footage, and that the information became publicly available when the documents were electronically filed on Aug. 3, at approximately 5:40 p.m.
“The brief described in detail and quoted at length the footage excerpts filed with the court,” according to Chevron’s reply brief. “Immediately upon e-filing, in keeping with the First Amendment’s guarantee of the public’s right of access to judicial filings, Chevron’s motion papers became available to the public through the court’s public filing system. The public filing included transcripts of the footage filed by Chevron, and those transcripts were available for any member of the public to review from the moment of filing.”
Chevron had claimed that in the footage it reviewed, the filmmakers taped at the direction of the attorneys suing Chevron. Since the crew stopped taping during relevant events, Chevron says it is entitled to ask the filmmakers about their observations of what happened when the cameras were off.
Wogan claims that the footage does not prove any collusion between the “Crude” filmmakers and the attorneys suing Chevron, and that it is common to go “off the record” when requested by a source.
Wogan claims that privilege covers any information a reporter gathers through recording or perception, and that the information is available elsewhere since other people observed the events in question.
“Only the raw footage from ‘Crude,’ which has already been produced, even arguably qualifies as information that is not reasonably obtainable from any other source,” according to the brief. “In each of the scenes discussed in Chevron’s brief there were numerous people other than the filmmakers present who could provide equal or better information about the events and communications that occurred.”
Chevron disputes Wogan’s claim and says Berlinger still has never proved the existence of any confidentiality agreements between him and the subjects of this film.
“Because these unrecorded acts and conversations are likely damning and compelling evidence, Chevron’s requests here would satisfy the higher standard for obtaining confidential journalist’s material as well,” according to Mastro’s brief for Chevron.
“The journalist’s privilege cannot serve to protect material from disclosure when the only person with any interest in maintaining ‘confidentiality’ is a person who seeks the confidentiality in order to conceal a crime or fraud. And the person committing the crime cannot be expected to confess on his own.”
On behalf of the Lago Agrio plaintiff, Ilann Maazel with Emery Celli says Chevron took dialogue out of context to present a misleading picture in its motion.
Though Chevron claims the outtakes capture environmental consultants discussing lack of evidence for groundwater contamination, Maazel says the same experts repeatedly discuss the groundwater pollutants, including a visible sheen of oil on the surface of a stream.
“Chevron and its counsel have rushed to mislead the court and the public with a McMotion based on sound bits and highly edited, decontextualized snippets constituting less than 0.1 percent of the outtakes,” according to Maazel’s brief. “It did so while concealing massive evidence in the outtakes of its own misconduct. And it did so in plain violation of a 2nd Circuit order.”
Maazel also claimed that the so-called improper meetings between the Lago Agrio plaintiffs and the court-appointed, neutral expert, Richard Cabrera, are within legal bounds.
“Chevron was free to meet with Cabrera, and has itself met with court experts outside the presence of the plaintiffs,” Maazel claimed, adding that even if the plaintiffs did draft Cabrera’s report, Cabrera still had to review and sign it. Chevron has even drafted judicial opinions that a Texas Federal Court signed, according to Maazel’s brief.
Berlinger says he cannot turn over footage taped in November and December 2005 because he did not begin shooting until January 2006.
“Yet on April 22, 2010, Mr. Berlinger swore to this court that ‘principal photography for Crude began in November 2005,'” according to Mastro’s filing. “These constantly evolving representations about the ‘Crude’ footage and Mr. Berlinger’s production make it impossible for Chevron or this Court to trust Mr. Berlinger’s claims or even attempt to verify their accuracy without further discovery.”
“All of these recent developments, and the revealing evidence still emerging from our ongoing review of the hundreds of hours of outtakes continues, demonstrate that either Mr. Berlinger and his ‘Crude’ colleagues do not understand the import of what they witnessed in Ecuador and caught on tape, or they are so wedded to Plaintiffs’ counsel that they do not care. But, in any event, they clearly cannot be relied upon to determine responsiveness or relevance.”
Maazel contends, however, that Chevron has failed to satisfy its burden.
“First, having received from Berlinger hundreds of hours of outtakes, Chevron cannot now claim that, because there might be something additional in Berlinger’s files it could use in its all-out assault on the Ecuadorian proceeding, it is entitled to a second bite at the apple. No further piercing of the journalists’ privilege should be permitted to occur.”