Outtakes from the documentary-style movie “Crude” should leave no doubt that the campaign against Chevron instigated by U.S. trial lawyers has nothing to do with the law or justice, and everything to do with politics, PR and manipulating Ecuador’s judicial system.

Chevron has recently filed additional transcripts in federal court to support the company’s legal motions. Among the transcripts’ astonishing revelations:

• The U.S. trial lawyer leading the litigation, Steven Donziger, and the plaintiffs’ team discuss the need for “an army” of supporters to surround the courthouse in Lago Agrio, Ecuador, to pressure the judge hearing the lawsuit.
• The head of the supposedly independent group, Amazon Watch, worries that the cameraman recording the conversation is documenting an illegal conspiracy.

In July, Chevron successfully argued in federal court — the Southern District of New York and the Second Circuit Court of Appeals — that it had a legal right to review outtakes from the anti-Chevron film, “Crude.”  Both the plaintiffs suing the company for $27.4 billion — the Amazon Defense Coalition, ostensibly representing Ecuadorians harmed by oil drilling — and the movie’s director, Joe Berlinger, vigorously fought the motion.

No wonder: The outtakes show the litigation not to be the great moral cause that plaintiffs claim, but rather a cynical shake-down effort directed at the company because it’s American and it’s profitable. But that’s the nature of many of the lawsuits filed against U.S. companies that operate in poor countries.

As evidence, consider Chevron Document 22-4 (available   here Scribd version,), which documents portions of a June 6, 2007 conversation among Donziger, Luis Yanza (Ecuadorian coordinator for the plaintiffs) and Atossa Soltani, founder and director of Amazon Watch.

Most of the conversation is in Spanish, translated into English. (The transcripts include both languages.) The word “ejército” is translated as “army,” but it sounds more like a goon squad to us. Luis Yanza says at one point: “They would have to receive minimal training… things– details, so they do a good job for us. That’s it. And then, if it goes well, and we need, uh, if we need weapons, we can provide weapons.”

This is the same Luis Yanza awarded the Goldman Environmental Prize in 2008, including an award of $150,000, for organizing Amazonian Indians.
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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 documentary evidence has been mounting for many months now that the U.S. trial lawyers’ litigation against Chevron for environmental damages in Ecuador was built on collusion, fraud and lies, all marketed as an environmental and humanitarian campaign.

This week’s revelations from outtakes from the documentary-style film “Crude” sealed the case. The collusion, fraud and lies are now on film, visible for the courts and the whole world to see.

So this next step makes eminent sense.

Chevron Files Petition in Ecuador Seeking Dismissal of Lawsuit

SAN RAMON, Calif., Aug. 6, 2010 – Chevron Corporation has today filed a petition before the Provincial Court of Sucumbíos in Lago Agrio, Ecuador seeking dismissal of the lawsuit pending against it there. In support of its petition, Chevron has submitted to the court video outtakes from the movie Crude that show the plaintiffs’ counsel, consultants, and associates meeting with the court’s supposedly neutral “Global Expert,” Richard Stalin Cabrera Vega, to plan and create the $27.3 billion damages report that Cabrera later would present to the court as his own.

Chevron believes that the video evidence proves that plaintiffs’ counsel and consultants colluded with Cabrera to present a fraudulent report and then to present a fraudulent “peer review” of their own work. Chevron also believes that the video proves that plaintiffs’ and Cabrera’s denials of their collusion in filings and testimony before the Ecuadorian court, before various United States courts and other institutions, and before the worldwide press have been false.

Chevron’s petition argues that the case must be dismissed as a sanction for the abusive misconduct by plaintiffs and their attorneys, and because the fraudulent “Global Expert” report submitted under Cabrera’s name is the only “evidence” supporting plaintiffs’ case.

Roger Alford of Pepperdine University School of Law has been reporting on Chevron’s court filing this week based on the “Crude” footage, including responses from Karen Hinton, the trial lawyers’ PR person, and an attorney for the Ecuadorian plaintiffs. His excellent posts are at the Opinio Juris blog here. But you cannot spin or explain away the clear meaning of the words of Steven Donziger, the head U.S. trial lawyer. As Alford writes:

In responding to concerns from their own experts that there was not evidence of groundwater contamination, Donziger replies, “This is all for the Court just a bunch of smoke and mirrors and bullshit.” (p. 12). That’s right, Donziger is caught on tape saying that the evidence he is gathering for inclusion in the court-appointed expert report about groundwater contamination is just smoke and mirrors and bullshit.

I would rarely advise our readers to read a court filing they don’t have to, especially during the summer recess. But this one is explosive.

Shopfloor posts:

• ‘Crude’ Footage Reveals Lies Behind Trial Lawyers’ Suit Against Chevron
• What Else Will Footage from ‘Crude’ Show?
• Chevron ‘Cherrypicks’ Film Footage? That’s Hilarious

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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.

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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.

Now, THIS is a blockbuster. Footage from the documentary-style film, “Crude,” reveals that U.S. trial lawyers strategized with a supposedly independent court-appointed expert in Ecuador who went on to recommmend penalizing Chevron $27.4 billion for environmental damage in the Amazon.

In a court filing today in U.S. District Court, Southern District of New York, attorneys for Chevron detailed the collusion among Steven Donziger, the U.S. trial lawyer who has masterminded the suit, the Ecuadorian lawyers who serve as the public face of the anti-Chevron campaign, and Richard Cabrera, an engineer later appointed as the court’s “special master” charged with assessing the pollution and damages. It is Cabrera who recommended the $27.4 billion damage figure, earning him praise from anti-Chevron activists who hailed his findings as proof of the company’s greed and criminality.

The damning revelations are the result of Chevron’s successful legal efforts to gain access to outtakes from the movie, “Crude,” which the director, Joe Berlinger, claimed to be a fair and balanced effort to show both sides in the litigation over Texaco’s operations in Ecuador between 1964 and 1990. Chevron purchased Texaco in 2001.  Berlinger claimed journalistic privilege and fought to keep control of the footage, but was ordered by the Second Circuit Court of Appeals on July 15 to turn over relevant material.  The review by Chevron’s lawyers of the first batch of outtakes shows that not only that the legal case against Chevron is built on lies, but that Berlinger’s reputation as a serious, fair-minded documentarian is hollow.

The opening of Chevron’s memorandum filed today reads like a good movie, with the added virtue of being true. From the document, “Chevron Corporation’s Memorandum of Law in Support of Motion for a Preservation Order, and to supplement and enforce the subpoenas,” filed by Chevron’s attorney, Randy Mastro, with Gibson Dunn & Crutcher:

“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.” “Because at the end of the day, this is all for the Court just a bunch of smoke and mirrors and bullshit. It really is. We have enough, to get money, to win.” Ex. F at 195-05.1 So says Lago Agrio Plaintiffs’ counsel and New York licensed lawyer Steven Donziger in an outtake from Crude produced just days ago pursuant to the orders of this Court and the Second Circuit. Donziger makes these statements during a meeting with Plaintiffs’ U.S. environmental consultants Charles Champ, Ann Maest, and Dick Kamp, after Maest tells him, point blank, that they need evidence of groundwater contamination, because Plaintiffs did not submit any and “right now all the reports are saying it’s just at the pits and the stations and nothing has spread anywhere at all.” Id. When Champ continues to press on the lack of evidence, Donziger looks at the camera and says, “There’s another point I got to make . . . with these guys, but I can’t get this on camera,” and then the camera goes off. Id.

Chevron has thus far been able to review only a small fraction of the outtakes produced, but already it is clear that they contain conclusive evidence that Plaintiffs’ counsel, consultants, and associates have knowingly participated in a fraudulent enterprise to corrupt the legal proceedings pending in Ecuador against Chevron. The express goal of their scheme is to procure a fraudulent, multi-billion dollar damages recommendation from a supposedly independent “Special Master,” and then to use that fraudulent recommendation either to extort a settlement from Chevron or to obtain a fraudulent judgment from the Ecuadorian court.

We’ve uploaded the court filing here. (Scribd here.) The 39-page document provides a wealth of details about the sordid  orchestration of the claims against Chevron, with Steven Donziger being the cynical conductor. The key factual point appears on page five:

The Crude Outtakes Show That Plaintiffs’ Counsel and Consultants Planned and Created the Supposedly Independent $27.4 Billion “Global Expert Assessment”

The outtakes that Chevron has reviewed so far leave no doubt that Plaintiffs arranged for Cabrera’s appointment and decided what Cabrera’s report would say, and that Plaintiffs’ lawyers and their U.S. consultants—not independent experts working for Cabrera—drafted Cabrera’s initial work plan and ultimately his damages assessment in the Lago Agrio Litigation.

We have followed this case because the litigation captures so well the modern shakedown campaigns that trial lawyers and activists carry out against U.S. businesses, often cheered on by a biased media. The evidence was always there, conclusions ready to be drawn. Now there’s no denying it — the corruption behind this litigation is on film.

Earlier posts about Chevron, “Crude,” and Donziger.

Disclosure: As I have disclosed repeatedly, Chevron paid for several bloggers, myself included, to take a trip to Florida and Ecuador in June 2009, during which Chevron presented its side of  the case. No one at Chevron has ever told me what to write on the issue.

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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The Second Circuit Court of Appeals took just a day to determine that Chevron had the right to view video that was shot for but not used in the final version of the documentary-style film “Crude.” The director, Joe Berlinger, does not have to turn over every second of footage, but he must make available anything that Chevron could possibly use to defend itself from the $27 billion shakedown litigation by U.S. trial lawyers. Chevron’s attorneys decided not to bother with the celebrities, instead argued the law and won the day.

From the order (Scribd here):

Pending further order of this Court, respondent Joseph Berlinger is directed to comply
forthwith with the District Court’s order, to the following extent:

1) Berlinger shall promptly turn over to the petitioners copies of all 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.
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.
3) Berlinger’s reasonable expenses of sorting and duplication of footage, incurred in complying with this order, are to be reimbursed by Chevron.
4) Any disputes related to the performance of this order shall be directed to the district court for resolution.
Opinion to follow.

Congratulations to Chevron. As we argued in our post Wednesday, Chevron has the right to defend itself, as do its employees who face abusive criminal charges in Ecuador. The subjects in the film signed waivers, had no expectations of privacy, and Berlinger couldn’t seriously claim “confidentiality” even if he served in some quasi-journalistic role.

Let the truth out, the judges decided.

The movie “Crude” was again used to promote the anti-Chevron cause last week when a Congressman and the U.S. trial lawyer appeared at a Washington, D.C. showing alongside the film’s director, Joe Berlinger.  Their comments in the Q&A demonstrated again that the litigation against Chevron for its predecessor Texaco’s operations in Ecuador is a matter of politics and public relations — not law –  designed to force the company into a settlement.

Rep. Jim McGovern (D-MA) levied several serious charges against Chevron, accusations commonly made by the anti-corporate activists but still startling when delivered by an elected member of Congress. In his five minutes of remarks (audio here), McGovern urged the crowd “to ramp up the pressure.”

And one final thing, and that is, here in Washington, we need to raise this issue more in Congress. We’re trying. I chair a human rights commission. We had a hearing on this, and trying to raise the issue of environmental contamination as a human rights issue. These people, their human rights are being abused by being forced to live in that area. And we can do something about this. We need to make this a priority.

Shortly after…when I came back — this was in December — I sent then President-elect Obama a letter [here] explaining my trip and asking him to raise this issue, and to coordinate with all the relevant departments and with the Ecuadorian government a way to help these people. We can’t continue to fight this thing out. This is not about lawyers, this is about these people that you see in this film. It’s about my friend Luis and all the people he’s been fighting for.

Donziger, the New York City trial lawyer who has masterminded the case, made it clear what he considers Chevron’s real target — its reputation:

At the end of the day, though, I don’t think it’s just a money question for them, I think it’s a reputational question. There’s opportunity costs when you have this hanging over your head and you search for new sources of supply around the world. So, you know, we’ll see how this all shakes out. They could try to drag this out as long as they possibly can. But we have a plan legally to go get their money, assuming we win the case and get a judgment, to go get that judgment in force as quickly as possible. (Audio clip)

As the old saying goes, when the law is against you, argue the facts. When the facts are against you, argue the law. And when both are against you, pound the table.

And get a movie made about your cause.

And hire a lobbyist while you’re at it. Only someone who believes the issue is going to be resolved politically, not legally, hires lobbyists as have Donziger, the Amazon Defense Coalition, and Kohn, Swift and Graf, the Philadelphia law firm paying the bills.

For the audio of the entire Q&A, click here. It’s about 28 minutes. Also speaking are Mitch Anderson, Amazon Watch; Luis Yanza, an Ecuadorian activist; Joe Berlinger, director of “Crude.” Berlinger said Washington’s E Street Cinema was the only venue showing the film and he urged the crowd to support the film, saying, “If it does not do well this week, it will be gone.”
 

The documentary-style film about the litigation against Chevron for past oil operations in Ecuador, “Crude,” has been rolled out around the country in recent weeks, accompanied by much touting by the anti-corporate activists and uncritical reviewers. The Los Angeles Times, for example, profiled the film’s director, Joe Berlinger, and the film under the headline, “‘Crude’ tactics in Ecuador.”

“Crude” ostensibly relates the story around a lawsuit filed by U.S. trial lawyers against Chevron for pollution caused during the operations in Ecuador by Texaco decades ago. (Chevron bought Texaco in 2001.) And “Crude” is a well-made, even compelling movie. Too bad it’s only loosely related to the truth.

Berlinger’s product is a classic anti-business hit job, biased and selective in its telling of facts and spreader of myths and half-truths. But in the media coverage and reviews, the public rarely learns that much of what the movie portrays is bunk — or at least vigorously disputed by Chevron. The Times’ reviewer, Gary Goldstein, doesn’t bother to solicit a response from Chevron.

Berlinger claims to be an objective filmmaker, just bringing a good story to light. In remarks after the June premiere of “Crude” at the SilverDocs film festival in Silver Spring, Md., (Berlinger said):

I think one of the strengths of the film is that it is a fairly objective film, it shows kind of the warts and all of both sides.

Yet moments later he says:

For me the lawsuit is obviously the structural glue of the film. I made this film because of how we as white people have treated indigenous people over the years in both North and South America, and around the world. I think what multinational corporations have done in our name is just the late 20th Century and early 21st Century continuation of this terrible treatment of indigenous people. That’s really why I’m in.

It’s an objective film about the destruction of peaceful people by evil Western exploiters, he said, objectively.  (The photo above is from the SilverDocs’ presentation with Berlinger, right, and Steven Donziger, the trial lawyer who is leading the litigation against Chevron, financed by the Philadelphia law firm of Kohn, Swift & Graft.) (continue reading…)