Lawyers for Chevron are in the U.S. Second Circuit Court of Appeals in New York City today, arguing in support of a federal judge’s earlier ruling that would provide them access to video shot for but not used in “Crude,” a documentary-style movie about a lawsuit against the company for pollution in Ecuador. U.S. trial lawyers led by Steven Donziger have ginned up a suit against Chevron using the now-standard PR machinery of activist outrage, celebrity environmentalism and one-sided reporting to try to drive the company into settling $27 billion in claims.

A key tool in that PR battle has been ”Crude,” a well-done film that took a clear side against Chevron, despite the protests of director Joe Berlinger that he was fairly examining the issues. As Chevron defends itself against the civil lawsuit and as Chevron employees in Ecuador defend themselves against malicious prosecution there, the company seeks access to the video, which could reveal the strategizing among government officials in Ecuador and the trial lawyer team. Already seen footage shows Donziger and Ecuador attorney Pablo Fajardo working with a supposed “neutral expert” appointed by a judge to examine the evidence of contamination and recommend damages. (See this entry from Chevron’s Amazon Post blog.)

The Los Angeles Times reports on the story today, quoting Chevron attorney Randy Mastro, “”Chevron now has an opportunity to prove it was denied due process. Imagine what a treasure trove these outtakes will be.”

Berlinger is claiming that his outtakes should not be turned over because their “confidentiality” is protected by his First Amendment rights as a journalist. Some media groups and the usual arts and grievance crowd have joined in. (Woody Allen, Leonardo DiCaprio, Gorbachev!) It’s a thin legal argument with little precedent, but not to be rejected out of hand: The public interest is served, generally, by allowing journalists to practice their news collecting and reporting freely.

But what if the filmmaker is not a journalist but rather an agent of one side in the litigation? It IS possible.  From The Associated Press, “Filmmaker: I was undercover operative for law firm”:

LOS ANGELES — A filmmaker who went to Nicaragua to make a documentary said Thursday he became an undercover operative for a Texas law firm that was suing Dole Foods on behalf of purported banana plantation workers who claim they were left sterile by pesticide exposure.

Jason Glaser testified about his transformation into a secret sleuth, saying he told none of the people he interviewed in Latin America about his dual role. He was called to the witness stand by attorney Steve Condie, who represents six men claiming they were left sterile by pesticide exposure while working on Dole banana plantations from 1970 to 1980.

Glaser, docu-spy, adds another angle when in an interview he cited Steven Donziger as a major influence:

As a filmmaker, who or what are your biggest influences? Without a doubt, my team and the people I’ve interviewed and coordinated with while making the film. This is going to sound silly, but I don’t see myself as a filmmaker. I have a friend/influence, Steven Donziger, who is the lawyer featured in the film Crude. I asked him what it is exactly that we do, given all the angles we need to cover in our respective fights. He answered unabashedly, “Glaser, we’re in the Justice Business.” Well, that’s true ultimately and it’s an understaffed industry. I see myself as an organizer, a facilitator, a new kind of activist, one that draws on the great traditions of the real game-changers but recognizes that we have moved into a different age of communication.

Berlinger, meanwhile, explicitly credited Donziger in a 2009 interview for inspiring his movie.

I met the plaintiffs’ consulting attorney Steven Donziger (who is one of the central characters in “Crude”) in the Fall of 2005, through Richard Stratton. Richard is a screenwriter I’d known for a while through our mutual friend, the late Eddie Bunker. Steven told me about the case and it sounded interesting, so I went down to Ecuador to check it out. When I saw the devastation in the Amazon and heard stories from the local people, I was shocked, disturbed and profoundly moved. Plus, it seemed like a huge story that at the time no one was really paying any attention to.

Although I’m always on the lookout for stories as potential film subjects, I didn’t immediately see this as a feature documentary. Despite being deeply affected by what I saw in Ecuador, it didn’t strike me that it would translate into something other than a news story or some kind of one-sided environmental expose, neither of which interested me. But I did feel like I wanted to help these people in some way.

Chevron is defending not just against $27 billion in liability, but also against an unrelenting attack on its corporate reputation and corporate worth. It does seem likely that Berlinger was more a supportive observer and advocate manipulated by Donziger than part of any strategizing team. Whatever his role, the movie “Crude” is part of the legal attack against Chevron, and the footage could be critical to the company’s ability to defend itself.

Berlinger should be just as accountable in our court system as anyone else. No matter what Gorby says.

Earlier Shopfloor posts are here. Again, also, a disclosure: This blogger went to Ecuador in June 2009 on Chevron’s dime for briefings on issues related to the litigation. Our interest in the trial lawyer/media/activist combine preceded the trip.

Donziger and Berlinger promoting ‘Crude’ at the Silver Docs film festival, June 2009, Silver Spring, Md.

 

 

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