5/3/2010 6:19:00 AM,
MANHATTAN (CN) - Chevron asked a federal judge Friday to order the release of outtakes from a 2009 documentary shot in Ecuador, saying the footage will exonerate the company in a multibillion trial in Ecuador. To skepticism from the bench, an attorney for the movie makers argued that the outtakes are protected by the First Amendment.
Chevron claims it faces a baseless lawsuit in Ecuador, financed by the U.S. law firm Kohn, Swift and Graf, which is looking for a $27 billion payday for itself and its clients, Ecuadoran nongovernmental organizations. Chevron adds that plaintiffs such as the Amazon Defense Front have been working "hand in glove" with the Ecuadoran government, which hopes to distract from its own role in polluting the Amazon.
"Crude," produced by Third Eye Productions and directed by Joe Berlinger, chronicles oil production in the Amazon rainforest and how it affects forest and the people of Ecuador. It also provides an intimate look at the class-action lawsuit against Chevron in Lago Agrio, Ecuador.
In his opening statement on Friday, Chevron attorney Randy Mastro showed clips from the film to argue that the company has been denied due process in Ecuador.
Ecuador gave Texaco "a complete release" in 2001 in exchange for a $40 million remediation program, and Chevron bought Texaco in 2001, Mastro said.
Chevron claims it is not liable for any environmental damages and "has never done a stitch of business in Ecuador."
Judge Lewis Kaplan listened impassively as Mastro highlighted scenes that he said showed that attorneys representing the plaintiffs in Ecuador engaged in misconduct, "doing things that no attorney would do."
Mastro says the outtakes will show a meeting between an attorney for the prosecution in Ecuador and court-appointed "neutral" expert.
"We're trying to show in Ecuador that the expert report is tainted," Mastro said. "We have the right to show how the process was manipulated by the plaintiffs' counsel working in concert with the government."
After playing a clip of the expert in the same room as the attorney, Mastro said the outtakes would shed more light on what happened in the meeting.
"The plaintiffs' counsel prevailed upon Berlinger to take the scene out of the distributed version of the film," Mastro said.
Judge Kaplan scoffed when an attorney for the respondents argued that the clip was "flimsy," since the expert had yet to be appointed.
"He was just wandering through the rain forest, and he happened to be there," Kaplan snorted. "The impropriety is that he became the court-appointed expert."
Mastro also played a clip in which Steven Donziger, a U.S. lawyer who represents the plaintiffs in Ecuador, meets with Rafael Correa, who was elected president of Ecuador in 2007 and has supported the lawsuit against Chevron.
In another scene, Donziger met with an Ecuadoran judge to torpedo Chevron's petition for an independent expert to look at soil tests submitted to the court.
In the scene, Donziger tells the "Crude" cameraman, "We're going to huddle - meet with the judge - something you'd never do in the U.S. But in Ecuador, this is how the game is played. It's dirty, and you have to use pressure to neutralize Texaco's corruption."
During the meeting, subtitles from "Crude" show that Donziger told the Ecuadoran judge to "be careful with the Texaco lawyers."
After the judge agrees to suspend Chevron's motion, Chevron's attorney bursts into the meeting, and the attorneys criticize each other's ethics.
"Outtakes are an extraordinary record in which the plaintiffs' counsel and their clients participated," Mastro said. "Even assuming that journalistic privilege applies, such outtakes are nonconfidential and entitled to discovery as long as they are likely relevant and not obtainable through any other source. ... This is unimpeachably objective evidence to which we should be entitled."
An attorney for the respondents said that Chevron was grasping at straws.
"Anytime two people are in a room without a Chevron lawyer, they call that collusion," the attorney said.
Judge Kaplan interrupted.
"You would have been unhappy if I had a meeting [with Chevron] this morning, decided the matter, then said, 'Oh, come on in!'," Kaplan said.
Because Mastro spoke for more than 30 minutes - more time than Kaplan had allotted for all of the applicants - the judge allowed another attorney for the applicants only 2 minutes to speak and a third attorney no time at all.
Both attorneys represented Ecuadoran lawyers being prosecuted in Ecuador for representing Texaco in the 1990s.
One of the lawyers quoted the U.S. State Department as saying, "in Ecuador there is a problem with using state processes to advance the interests of private litigants."
During the presentation from Maura Wogan, who represents Berlinger and the production company, Judge Kaplan interrupted several times to criticize what he called "weak" arguments.
Wogan argued that Berlinger's 600 hours of unused film were not outtakes, and when Kaplan told her to move on, she said Chevron should have to identify particular scenes for which they would like more footage.
Kaplan became increasingly agitated with this argument, interrupting to say that it reminded him of an outdated practice that he called a "farce" in New York litigation.
"It used make civil litigation impossible, and it all went away when people saw how silly it was," Kaplan said. "It's a very weak argument that used to be enforced in New York practice."
Kaplan said that the attorneys in question "are all over the film," and an applicant cannot particularize which documents or outtakes he needs until he gets full access.
"If this is your argument, you are in a lot of trouble," Kaplan said.
Wogan said that if there was more important footage, Berlinger would have included it in the final product because "filmmakers put the best stuff in the film."
"The idea of 'just because there are some scenes in the film, you can go on a fishing expedition' is rejected in courts," Wogan said. "It is precisely the thing journalist's privilege was created to protect."
Kaplan didn't seem to buy Wogan's argument that it would be an unnecessary and unfair burden to ask Berlinger to turn over his footage.
"The burden in arguing for Berlinger far exceeds any burden in turning over the film," Kaplan said.
Wogan took another tactic, saying that Berlinger would not be able to work as a documentary filmmaker again if the footage is released.
"Documentary filmmakers play an essential role in exposing social injustice," Berlinger said in a statement. "As with traditional journalists, their sources must be protected or we risk the demise of this kind of comprehensive investigative reporting."
Kaplan asked Wogan to prove that Berlinger had made confidentiality agreements with his sources, and Wogan said those agreements are "never put in writing."
At this, Kaplan told Wogan she was going after "straw men."
"Berlinger had full opportunity to file those documents under seal," Kaplan said. "The burden is on him to show that there is [confidentiality]. This argument is not persuasive to me."
As the second attorney for the respondents took the podium, the court stenographer interrupted almost as often as Judge Kaplan, twice asking the lawyer to slow down and speak more clearly.
This attorney said Chevron was one of 12 defendants and not the only target of the Ecuador lawsuit.
Kaplan interrupted again, saying, "I am not naïve. I don't assume that anyone's hands in this are clean."
The attorney said that Chevron built "a house of cards" and "rushed the briefing schedule" to try to "impugn" the court in Lago Agrio.
"They are trying to get around Lago Agrio jurisdiction," the attorney said. "They claim that Lago Agrio did not rule in their favor; they can't come to the U.S. and try again."
Kaplan interrupted to quote Shakespeare.
"The lady doth protest too much," the judge said. "What's it to you what's in the film?"
Kaplan asked about limiting the scope of Chevron's request to scenes involving only counsel or officials, but the attorney brushed off the offer.
"Anything less than 600 hours is better than 600 hours, but they shouldn't be entitled to anything," he said.
After Judge Kaplan adjourned the hearing, Mastro said that Chevron has won two other petitions for discovery, in Denver and Atlanta.
Mastro said those applications showed that attorneys in Lago Agrio submitted fabricated evidence. He added that Chevron also has issued subpoenas in Texas and California.
Mastro said Chevron also wants to bring its findings to an international treaty arbitration.