MANHATTAN (CN) – The fight over outtakes from the documentary “Crude” continued Wednesday in a contentious hearing before a three-judge panel of the 2nd Circuit. Chevron claims the 600 hours of outtakes may reveal that attorneys suing the oil company for $27 billion in Ecuador engaged in misconduct. And an attorney for movie director Joseph Berlinger told the judges she would support a more narrow order, compelling Berlinger to release some footage from the film.
Berlinger has been fighting an order that U.S. District Judge Lewis Kaplan granted to Chevron in May, directing Berlinger to turn over 600 hours of outtakes from his 2009 documentary.
Chevron says that “time is of the essence,” because two Chevron attorneys face possible criminal trials in Ecuador,
Berlinger obtained intimate access to the class action against Chevron in Lago Agrio, Ecuador, while filming his documentary on how oil production has devastated the Amazon rainforest.
Circuit Judges Peter Hall, Pierre Leval and Barrington Parker heard nearly 2 hours of arguments from five attorneys representing Berlinger, the plaintiffs suing Chevron in Lago Agrio, Chevron, and the two Chevron attorneys who face criminal charges in Ecuador.
A crowd of at least 100 people, including Trudie Styler, wife of the musician Sting, filled the courtroom. Styler, who appears in “Crude” to champion humanitarian issues, wrote an article on behalf of Berlinger that the Huffington Post published on the morning of the hearing.
As Judge Kaplan did at the hearing in May, the panel of judges interrupted the attorneys’ arguments often, seeking clarification, and seemed to find little merit in the argument that the “Crude” outtakes met the burden for journalistic privilege.
“If you look at the way the film was made, this isn’t Edward R. Murrow or ‘Dateline,'” Judge Leval said early in the hearing. Leval added that the “cozy relationship” between Berlinger and the attorneys suing Chevron indicated that the attorneys were inviting publicity for their lawsuit.
Maura Wogan, with Frankfurt Kurnit, representing Berlinger and his film company, maintained that while the Ecuador plaintiffs’ attorneys invited Berlinger to film the documentary, Berlinger “made it very clear that he would maintain his editorial discretion.”
Wogan disagreed with the claim, or intimation, that Berlinger’s editing of the film indicated he was obeying orders from Lago Agrio plaintiffs’ attorneys, including Steven Donziger.
Chevron attorneys pointed out that Berlinger removed a scene from the DVD version of “Crude” because the scene suggested collusion between an impartial expert in Lago Agrio and the plaintiff’s attorneys. Judge Kaplan cited that argument in his May decision.
The appellate panel called Wogan’s argument “irrelevant,” and said the people whom Berlinger interviewed for the documentary had no expectation of confidentiality.
The panel of judges was also harsh toward attorney Ilann Maazel, with Emery Celli, who represents the Lago Agrio plaintiffs.
As Maazel spoke about seeking justice for “30,000 people whose lives are being destroyed” and “have waited 17 years for justice,” Leval interrupted repeatedly for clarification on the interests of Maazel’s clients and why Maazel was involved in the hearing at all.
Maazel said his clients are interested in how discovery will affect their case.
“This is a sideshow,” Maazel said. “It’s another delay in this very important case. And if Chevron is successful, the next time there won’t be a crew. There won’t be a film.”
An attorney for Rodrigo Perez Pallares, a Chevron attorney who faces criminal charges in Lago Agrio, said Maazel’s only interest is to further the case against Perez. “They don’t have an interest here, but they have an interest to see my client prosecuted,” said Andres Rivero, of Rivero Mestre. “It is a criminal, 9-year sentence that my client faces.”
Maazel claimed that Chevron’s move to prove bias in a foreign court is not a valid argument. “This court should not jump the gun and order discovery for another court,” Maazel said.
Leval poked holes in Maazel’s argument with a hypothetical situation about a corrupt judge, saying it would be appropriate to seek discovery from another court despite the objections of the corrupt judge.
Chevron attorney Randy Mastro, of Gibson Dunn, took aim at Wogan’s claim that Chevron already has the footage, since the oil company’s camera crews filmed the same events with their own cameras.
“Chevron has some of the events on film, but the film [shot by Berlinger] is narrated by the attorneys for the plaintiffs,” Mastro said. “Mr. Donziger leads the camera into the judge’s chambers ex parte. He barges in … and Chevron appears after the fact. Ms. Wogan cites this as evidence that Chevron has footage. We do not have any of the footage of plaintiffs’ counsel’s narration and perspective.”
When the panel asked Mastro to clarify whether he expected all 600 hours of outtakes to be relevant, Mastro replied that while he did not think Kaplan abused his discretion in granting access to the entire footage, there were three categories that are critical to Chevron’s case.
Mastro said he should be entitled to review the entire 600 hours, but Berlinger should immediately release any portions that involve the plaintiffs’ attorneys, court-appointed experts and government officials.
Wogan said the three categories involve more than 50 percent of Berlinger’s footage, most of which Chevron taped for itself.
The panel of judges asked Wogan why Chevron would want to bother going through the footage if it had the same tapes.
“If it’s just another copy, then what difference does it make?” Judge Parker asked. “I don’t see the reason to [withhold the footage], given the urgencies at stake.”
Wogan ultimately agreed to support an order for a release of footage, narrowed to the three categories, but Maazel refused to bend.
Mastro urged for a quick turnaround since “two individuals’ liberty is at stake.”
Wogan and Maazel argued that the outtakes should be of no concern to Perez or the other attorney facing criminal charges, Ricardo Reis Veiga, since neither is in the film.
Rivero said Perez faces prosecution in Ecuador because he signed a release that Ecuador claims was falsified.
“The plaintiffs’ attorneys urged very specifically to indict my client, to throw out that release,” Rivero said. “It is important to defeat that release to advance their case.”
Rivero’s associate, Jorge Mestre, said the outtakes are still relevant since the court-appointed neutral expert who is caught in possible collusion on film filed a report that accuses Perez of lying.
Reis’ attorney, Beth Stewart, of Williams & Connolly, argued that the fact that her client is portrayed negatively in the film entitles him to review the footage.
Maazel called Stewart and Rivero “proxies for Chevron” who are trying to bog down the Lago Agrio litigation.
“It is very telling that they have asked for evidence in Chevron’s case and not their own,” Maazel said. “Joseph Berlinger has testified that there is nothing in the footage involving them.
The panel of judges questioned that.
“Joseph Berlinger is not a criminal defense attorney,” Parker said.
After the hearing, Mestre said that it was interesting that Berlinger and the Lago Agrio plaintiffs are trying to suppress information under the umbrella of the First Amendment.
“Perez is being absolutely railroaded by the government of Ecuador, and all we’re trying to do is protect him,” Mestre said.
Maazel said in an interview after the hearing that Chevron is using a “cynical legal strategy” to duck liability.
“This is a case where they chose to go to Ecuador, and when they got there, now they’re trying to attack the court that they requested,” Maazel said. “It’s a cynical legal strategy and an unprecedented attempt to use an American court to attack a foreign court. If Chevron chose to litigate in Ecuador, we should litigate in Ecuador.”