U.S. District Judge Lewis Kaplan of the Southern District of New York has just issued an order (.pdf file) making outtakes from the documentary-style film, “Crude,” available to the public. 

Footage from Joe Berlinger’s movie has been available to the attorneys involved in the contingency-fee litigation against Chevron for environmental damage in Ecuador. Transcripts from the outtakes have also been entered into the court record, documenting the  manipulation of the judicial process by Steven Donziger, the lead U.S. trial lawyer, and the U.S. and Ecuadorian legal team/activists. (Shopfloor, “‘Crude’ Footage Reveals Lies Behind Trial Lawyers’ Suit Against Chevron.”)

However explosive, the transcripts still fail to capture the full disdain for the truth shown by the players behind the litigation and PR campaign against Chevron.  Thanks to Judge Kaplan’s Oct. 7 order, now everyone can see the video that shows the plaintiff’s team scheming and swearing and orchestrating the shakedown against the company. From the order:

Reporters with Thomson Reuters and with The American Lawyer magazine and ALM Media have requested copies to a total of approximately ten compact disks filed as Exhibit A to a declaration of Kristen Hendricks [DI 14 -10 MC 0002]; Exhibits A and D to another declaration of Ms. Hendricks [DI41 – 10 MC 0002]; and Exhibits 1 and 2 to the declaration of Paul E. Dans [DI 40-10 MC 0002]. The parties have no objection to the requests.

Accordingly, the Clerk shall provide copies of these disks to the requesters and any member of the public who requests copies of the same disks upon payment of the reasonable cost of duplication and blank media.

We were disappointed to see that “60 Minutes” was not one of the requesters asking for copies of the videos. The CBS news-entertainment magazine delivered a miserably one-sided report on the litigation in May 2009, “Amazon Crude,” that accepted as fact the trial lawyers’ thesis: Chevron is a corporate monster that does not care that its predecessor, Texaco, polluted Ecuador’s Amazon with no regard for the native people, so damn right they should pay up.

Along with “Crude” and William Langewiesche’s evocative story-telling in Vanity Fair, “Jungle Law,” the “60 Minutes” piece represented one of the most powerful PR weapons in the U.S. trial lawyers’ litigation war against Chevron. Of course, as this Columbia Journalism Review analysis concluded, “How 60 Minutes Missed on Chevron,” the report fell short on facts and relied instead of innuendo.

Judge Kaplan’s order provides “60 Minutes”  a great opportunity for more serious journalism in the form of a powerful follow-up segment, recounting how their producers and reporter Scott Pelley gave too much credence to the trial lawyers’ claims, failed to appreciate the legitimacy of Chevron’s arguments, and ultimately produced an unfair and inaccurate account of the litigation.

It’s a heck of story: Foul-mouthed New York trial lawyer and supposedly heroic activists work with left-wing Ecuadorian government to corrupt the courts and shake down a U.S. company for billions of dollars.

“60 Minutes,” you already have all the earlier footage shot in Ecuador. Now the damning, explosive outtakes from “Crude” are available just for the price of copying the files onto DVDs.

What a great opportunity for serious journalism.

OK, it’s not that imaginative a description, but it IS accurate and we’re pleased that The Wall Street Journal editorial page joins us in describing the U.S. trial lawyer-instigated litigation in Ecuador against Chevron as a “shakedown.” Today’s lead opinion piece is, “Shakedown in the Rain Forest.”

The editorial brings readers up to date on the collapse of the trial lawyer/activist combine’s legal attack against the company, including last week’s preposterous increase of claims against it for environmental damage in Ecuador to $113 billion. As the Journal recounts, testimony and outtakes from the documentary-style movie, “Crude,” demonstrate the suit to be a cynical, orchestrated, well, shakedown, using bad publicity as a hammer in an attempt to beat Chevron into a settlement.

The Journal concludes:

Perhaps the definitive verdict on the case was delivered by one of the plaintiffs’ attorneys, Joe Kohn of the Philadelphia firm Kohn Swift & Graf, who told the makers of “Crude” that “a lot of my motivation is, at the end of the day, is that it will be a lucrative case for the firm.” And that’s not even in the outtakes.

The (non-jury) trial stage of the litigation ended in Ecuador last week. For an update, see our post at Point of Law, “Anti-Chevron suit reaches new stage in Ecuador, still ridiculous,” and this AmLaw Daily report, “Back for More in Ecuador.” And this news release from Chevron offers a “greatest hits” of the trial lawyer conniving and admissions against interest.

UPDATE (2:50 p.m.): Bob McCarty, who blogs at Bob McCarty Writes, has been following the Chevron litigation as well and takes satisfaction at the major media accounts now confirming what should have been obvious all along, that the lawsuit was a ginned-up effort to judicially “extort” billions of dollars from a U.S. company. See his post, “Sixteen Months of Reporting Validated by Major Media Reports About Chevron-Ecuador Lawsuit.”

From Daniel Fisher’s “Full Disclosure” blog at Forbes.com, “Judge To “Crude” Filmmaker: You’re Part Of The Story“:

Judge Lewis Kaplan’s Sept. 7 order requiring filmmaker Joe Berlinger to undergo a deposition over what he saw and heard while filming the documentary “Crude” is more than a refutation of Berlinger’s argument of journalistic privilege. It’s a warning to future plaintiff lawyers not to let sympathetic filmmakers follow them around, camera in hand. And it offers a glimpse into how Kaplan or another federal judge might view any attempt by attorney Steven Donziger to enforce any judgement he obtains in Ecuador. Kaplan drops enough hints about his concerns over unethical and possibly illegal goings-on down in Ecuador that Donziger’s team should be on notice they will face fierce scrutiny if they ask a U.S. court to enforce their judgment here.

Fisher’s blog quotes a federal judge’s separate ruling in New Mexico, which we also cited in a post at the Manhattan Institute’s legal blog, Point of Law, “Damning revelations in outtakes from anti-Chevron movie, ‘Crude’.” District Judge Lorenzo F. Garcia summarized the revelations originally concealed in Berlinger’s footage:

The release of many hours of the outtakes has sent shockwaves through the nation’s legal communities, primarily because the footage shows, with unflattering frankness, inappropriate, unethical and perhaps illegal conduct. In the film itself, Attorney Donziger brags of his ex parte contacts with the Ecuadorian judge, confessing that he would never be allowed to do such things in the United States, but, in Ecuador, everyone plays dirty. The outtakes support, in large part, Applicants’ contentions of corruption in the judicial process. They show how nongovernmental organizations, labor organizations, community groups and others were organized by the Lago Agrio attorneys to place pressure on the new Ecuadorian government to push for a specific outcome in the litigation, and how the Ecuadorian government intervened in ongoing litigation.

Shopfloor.org, the blog of the National Association of Manufacturers, makes a brief appearance, as well. Judge Kaplan recognized that  bloggers and members of the public know how to download public documents from the federal courts’ electronic filing system.

A follow-up to the Shopfloor post immediately below, “Judge’s Ruling on ‘Crude’ Shows that the Truth is in the Outtakes“…

In ruling that movie director Joe Berlinger had to submit to depositions so Chevron can fully defend itself in court, Judge Lewis Kaplan also rejected Berlinger’s attempt to punish the company because it had suppposedly violated an order from the Second Circuit when it used the film outtakes for public relations purposes.

Berlinger’s claim rested in part on the assertion that Chevron supplied one of its court filings to Shopfloor, the blog of the National Association of Manufacturers, and that I wrote about the document in this Aug. 3 post. See, PR! But the assertion wasn’t true — as we explained here — and even it were, so what? There’s this thing called the First Amendment.

Judge Kaplan did not treat Berlinger’s claims kindly. In his 28-page ruling, starting on page 24, he writes:

As an initial matter, there is irony in Berlinger’s application. On the one hand, he has resisted production of his outtakes, and resists the discovery that Chevron now seeks, by invoking the Free Press Clause of the First Amendment. Yet he seeks to prevent Chevron from publicly discussing litigation taking place on the public record. The First Amendment, however, protects Chevron’s right to speak about this litigation at least to the same, and probably to a greater, extent than it protects Berlinger’s desire to avoid giving evidence in court like any other citizen. But Berlinger’s cross-motion fails for reasons having nothing to do with the First Amendment.

Alas, First Amendment advocates and media mavens like Reporters Committee for Freedom of the Press appeared untroubled by Berlinger’s disregard for constitutionally protected liberties.

Judge Kaplan then provides a quick lesson on how federal courts use electronic filings, which make the documents public records, accessible by people like bloggers: (continue reading…)

A federal judge today dealt another setback to the trial lawyer/activist/media combine trying to shake down Chevron for alleged environmental damage in Ecuador. Judge Lewis Kaplan of the U.S. District Court, Southern District of New York, ruled that film director Joe Berlinger must provide additional evidence about the shooting of his documentary-style film, “Crude.” David Itzkoff of the Arts Beat blog at The New York Times covers the ruling, “Filmmaker Ordered to Give Testimony in Chevron Case“:

A federal judge in Manhattan ruled on Tuesday that a documentary filmmaker must submit to depositions in a case involving Chevron, writing in a strongly worded opinion that the oil company’s original request to see the filmmaker’s raw documentary footage was “no fishing expedition.”

In July a federal appeals court ruled that the filmmaker, Joe Berlinger, must turn over a portion of unused footage from his documentary “Crude” to Chevron, which said that the footage may be useful in its fight against a lawsuit in Ecuador.

Judge Kaplan’s 28-page ruling is here. He makes three points:

Berlinger’s suppression of the “Crude” outtakes tells you that despite all his claims about trying to make a fair movie, he was perfectly happy with being manipulated by Donziger and in turn with manipulating the audience, just as long as he had a compelling storyline. Didn’t matter if it was true or not.

But the truth matters when a U.S.-based business employing thousands of people is subject to a trial lawyer shakedown — $27 billion claimed in damages! —  and some of its employees are facing criminal charges in Ecuador.

In a Financial Post blog entry, “Turning the tables,” Silvia Santacruz, an Ecuadorian economist based in New York and the publisher of Ecuador Mining News.com, provides knowledgeable perspective about the trial lawyer/activist litigation against Chevron.  She also critiques the one-sided and misleading documentary-style film about the dispute, “Crude.” Companies usually try to buy peace in circumstances like these, Santacruz observes, funding NGOs in order to avoid a PR beating to their market capitalization. But…

[One] American firm — Chevron — is not only fearless of green campaigners’ tactics, it is giving them a taste of their own medicine. In the process, it may also highlight the problems with government ownership of natural resources, including eco-disasters, that environmentalist activists blithely ignore.

In this case, the government-owned operator is Petroecuador, which has continued to develop the Amazon region’s oil resources after ending its consortium with Texaco — later bought by Chevron — in 1992.  Santacruz, who recently traveled to the Lago Agrio region in Ecuador, reports the reality ignored by the activists, U.S. trial lawyers and, too often, the U.S. media who report on the litigation.

During my visit to the oil spills, I found some reforested sites, others being cleaned up, and just a few crude spills collected in pools. At one site, known as the “Presidential Well” after Correa gave a press conference there, I noticed that the pipelines were warm. Petroleum was being pumped, and the spill was recent — I threw a stone that sank instantly. I had no doubt: Petroecuador is currently operating there. So, how can Correa and environmentalists accuse Texaco of a “pollution 30 times greater than the Exxon-Mobil,” when the company left 20 years ago?

Recent data reveal that state-owned Petroecuador has caused 1,415 crude spills between 2000 and 2008, an average of one incident every other day. But environmentalists in Ecuador do not care about Petroecuador and continue to point fingers at Chevron instead. Astonishingly, my country’s ecological disaster does not make the green campaigners blink. State-owned companies’ pollution is simply not on their radar screen. They seem to care not so much about my country’s indigenous people as they do about Chevron’s pockets.

So that was actually Petroecuador oil that the actress Daryl Hannah stuck her hand into for all those anti-Chevron publicity photos. She seemed not to care so much about the country’s indigenous people as she did about her own self-promotion, but that’s Hollywood environmentalism for you.

Santacruz is an Ecuadorian, an economist, and a person with first-hand knowledge of the energy industry in developing countries. Her insights merit serious attention. Instead, we predict, the Amazon Defense Coalition will attack her motives and dream up some sort of nefarious connection. That’s SOP for the activists, who seem to care not so much about truth as they do about Chevron’s pockets.

As we blog about frequently here at Shopfloor.org, Chevron is defending itself in the U.S. and Ecuador courts against litigation by U.S. trial lawyers and their activist allies who want the company to pay $27.4 billion for environmental damage in Ecuador allegedly committed by its predecessor company, Texaco.

Now Shopfloor is being mentioned in court filings in the case, but the claims made about blog posts here are just not true.

The most recent turn of legal events has involved outtakes from the documentary-style movie “Crude,” which covers the litigation against the company from a perspective sympathetic to the Ecuadorian victims of Western civilization. Chevron sought outtakes from the movie in federal court, and once acquiring them, identified clear incidents of the trial lawyer team scheming to maximize damages against the company, even to the extent of meeting with the supposedly “independent” court-appointed expert who later recommended the $27.4 billion award. Also damning were the claims from Steven Donziger, the U.S. trial lawyer leading the litigation, who said among other outrageous things:  “Hold on a second, you know, this is Ecuador. . . . You can say whatever you want and at the end of the day, there’s a thousand people around the courthouse, you’re going to get what you want. Sorry, but it’s true.”

The above information is available in Chevron’s Aug. 3 filing in U.S. District Court, Southern District Court of New York, “Chevron Corporation’s Memorandum of Law in support of a motion for a preservation order, and to supplement and enforce the subpoenas.” We wrote about the filing here, an Aug. 3 Shopfloor post, “‘Crude’ Footage Reveals Lies Behind Trial Lawyers’ Suit Against Chevron.”

Chevron obtained the footage after the legal process went from the District Court to the Second Circuit Court of Appeals. On July 15, the Second Circuit ordered Joe Berlinger, the director of the film, to make relevant footage available to Chevron. That order, which we wrote about here, includes a court instruction to Chevron: “2) Material produced under this order shall be used by the petitioners solely for litigation, arbitration, or submission to official bodies, either local or international.”

Lawyers for both Berlinger and the plaintiffs are now claiming that Shopfloor.org’s blogging about the court proceedings somehow represents a violation by Chevron of the Second Circuit Court of Appeals order which required Berlinger to turn over footage to the company.

Well, of course, Shopfloor is not Chevron and Chevron is not Shopfloor. Included in these most recent filings are misstatements of fact, which we will now correct.

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The New York Times ArtsBeat blog this afternoon became the first mainstream media outlet to report on Chevron’s court filing based on footage from the documentary-style film, “Crude,” about a lawsuit claiming the company is responsible for environmental damage in Ecuador’s Amazon jungle.

As we reported yesterday, the outtakes clearly show U.S. trial lawyers and activists instructing the supposedly independent, court-appointed expert — Richard Cabrera — on how to rig his report to maximize damage claims against the company. At one point, New York lawyer Steven Donziger declares, “We could jack this thing up to $30 billion …in one day.” Close! Cabrera recommended $27.4 billion in damages.

In his ArtsBeat piece, “Chevron Cites Documentary Footage in Its Fight Against Ecuadorean Plaintiffs,” reporter David Itzkoff elicits just an amazing quote from Ilann M. Maazel, a lawyer whose firm represents the Ecuadorean plaintiffs.

“They cherrypick a couple of minutes and share it with the court, but they’re not willing to release all the tapes,” Mr. Maazel said in a telephone interview. “I think it’s very revealing of their strategy of diversion and misleading people.”

That is an hilarious comment, reflecting either audacious spin or short-term memory damage. Chevron went to federal district court seeking all the outtakes from “Crude,” arguing — correctly, as it turned out — that the footage would show the plaintiffs conspiring with government experts. The director, Joe Berlinger, fought the attempt but eventually accepted as a “limited victory” the Second Circuit Court of Appeals’ ruling that required he make available only relevant footage depicting certain events or people.

After the Second Circuit’s ruling, Maazel went to court, filing an emergency motion seeking even further restrictions on the release of outtakes. (Shopfloor post, “After ‘Crude’ Ruling, Trial Lawyers Suing Chevron Get Nervous.“) In other words, the last thing Maazel wanted was for Berlinger to release all the tapes. Please, please, please cherrypick, he pleaded with the court.

Elsewhere … (continue reading…)

One of the reasons that Chevron filed the memorandum with U.S. District Court, Southern District of New York, we blogged about below is that the company has only started reviewing footage from the documentary-style film, “Crude.” Given how damning the early outtakes are, and the apparent games being played over the footage, what else might be out there? Better make sure the footage is preserved.

We especially liked the following passage from Chevron’s court filing, demonstrating once again that there’s no real distinction among the U.S. trial lawyers — Steven Donziger and the Philadelphia law firm funding the litigation, Kohn, Swift & Graf — the Ecuadorian lawyer/activists like Luis Yanza and Pablo Fajarda, and the supposed grassroots activists of the Amazon Defense Coalition, which turns out mostly to be PR person Karen Hinton.

It would strain the Second Circuit’s Order to include only footage of counsel and not footage of those working on behalf of or in concert with Plaintiffs’ counsel. There is little question that groups such as Soltani’s Amazon Watch and Amazon Defense Front have been working on behalf of or in concert with Plaintiffs’ counsel in connection with the Lago Agrio Litigation, and thus footage of personnel from those groups should be produced pursuant to the Second Circuit’s Order. Indeed, recognizing the role that personnel from such organizations have played on behalf of Plaintiffs’ counsel, Berlinger has treated Luis Yanza and other members of Amazon Defense Front as part of Plaintiffs’ litigation team, and has already produced footage including Luis Yanza. See Ex. U. Nonetheless, during the meet and confer, Berlinger’s counsel stated that Mr. Berlinger has taken the position that communications with or film involving Amazon Watch and the Frente are privileged, even though they stand effectively in the same position as Yanza. But Plaintiffs have asserted in the District Court in Colorado that the Frente, Amazon Watch, and Karen Hinton are so closely aligned that they fall within the circle of attorney-client privilege. Ex. QQ. They cannot possible contend here that communications with “Plaintiffs’ counsel” do not include Karen Hinton, the Frente, and Amazon Watch.

It’s the combine — trial lawyers, activists and the supposedly disinterested media — working to wring billions out of Chevron’s shareholders.

Chevron asks the court to order the plaintiffs and their team to preserve evidence, to allow further discovery, and to require director Joe Berlinger to produce the original footage log.

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.

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