Our question of the day inspired by the latest twist in the continuing trial lawyer/activist campaign against Chevron for environmental damage in Ecuador: What’s in the footage from “Crude” that the U.S. trial lawyers don’t want the public to see?
The question is prompted by a motion for an emergency order filed today, in which the attorney for the Amazon Defense Coalition tries again to block Chevron’s access to footage from the movie.
We write often about this litigation because it captures so well the forces that can align against a U.S.-based company, in this case Chevron. Trial lawyers put up the money for a lawsuit claiming exploitation or environmental harm, solicit support from celebrities and activists, attempt to create a PR storm, and rely on favorable coverage from the media. The goal is to threaten the company with enough reputational damage that it settles out of court.
Increasingly common weapons in these campaigns are “documentary” films that are really advocacy pieces for the plaintiffs. One such movie was “Crude, a well-done film by director Joe Berlinger.
The Second Circuit Court of Appeals last Thursday ruled that Berlinger had to turn over film outtakes to Chevron so the company could adequately defend itself. Chevron suspects the footage will document the plaintiffs’ team working with government officials and supposedly neutral, court-appointed experts in Ecuador to rig the $27 billion suit against the company for environmental damage in the Amazon.
The the order from the three-judge panel limited the impact to relevant material, that is, 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.
Berlinger had originally claimed journalistic privilege as a principle upon which he would stand, but he toned down the rhetoric after a District Court’s ruling in May and then the Circuit Court’s order that required the footage’s release. Following the appeals’ court ruling Thursday, he told The New York Times: “We have to be intellectually honest about the merits of laws that allow certain footage or certain reporters’ material, under certain conditions, to be turned over. I believe there are times when it’s appropriate to turn it over.” Now it’s a victory that Chevron can’t see ALL the footage and the company can only use the shots in judicial or arbitration proceedings. (The media corporations that sided with Berlinger must be disappointed, but they’ve been quiet.)
The more fervent rhetoric now comes from the lawyer for the plaintiffs, the Amazon Defense Coalition, which claims to represent 30,000 Amazonian residents. Ilann M. Maazel told the Wall Street Journal: “This case is not about outtakes. The case is about Chevron attempting to intimidate journalists from covering their destruction of the Amazon.” If so, then why did the Maazel today file an emergency motion trying to limit the release of the outtakes? To defend a journalist’s privilege? But Berlinger, while not happy, can live with the court’s ruling on privilege.
The motion (available here) claims the court’s order is much too broad, and the footage should be limited to scenes depicting certain contacts between the plaintiffs’ attorneys and court and/or government officials. If the court chooses not to impose those limits, the attorneys argue, then it should appoint a special master to review the footage. (The latter would be a time-consuming process that would deny due process to the Chevron employees facing criminal charges in Ecuador.)
There are two conclusions one can reasonably infer from the motion:
- The outtakes will reveal improper contact between the plaintiffs’ attorneys and government or court officials that demonstrates how Ecuador’s government is helping to orchestrate the suit.
- Delay actually plays into the hands of the U.S. trial lawyers, who want the Ecuadorian court to hurry up and rule against Chevron, creating a judicial fait accompli that provides a publicity boost to their cause.
Maazel appeared to irritate at least the appellate judges in oral arguments last week; Judge Pierre Leval repeatedly inquired as to the plaintiffs’ interest in the proceedings over footage from “Crude.” It’s hard to envision the court being sympathetic to his latest motion, which really just restates legal arguments the judges already dismissed.
Following the oral arguments last week, Karen Hinton, the spokeswoman for the Amazon Defense Coalition, engaged in her usual rabid attacks and charged: “One thing that is certain is that Berlinger’s video outtakes, just like the material in Crude, contain even more evidence that Chevron engaged in reckless misconduct in Ecuador and then concocted a fraudulent cover-up to conceal it from authorities.”
Well, if so, then the trial lawyers and the Amazon Defense Coalition that fronts for them should want that footage made public. Instead, they’re trying to keep it under wraps. So we ask again: What’s in the footage from Ecuador that the U.S. trial lawyers don’t want the public to see?
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