Scenes Cut From Film Find New Role in Court
By JOHN SCHWARTZ and DAVE ITZKOFF
The film clips look like evidence from a sting operation: in one, a lawyer plans a huge protest at a courthouse because the judges “make decisions based on who they fear the most.”
But the lawyer, Steven Donziger, had invited the cameras in to document his work on a high-profile, 17-year legal battle with the Chevron Corporation in Ecuador.
The candid footage has come to light because Chevron’s lawyers persuaded a federal judge in New York to force a filmmaker who chronicled the legal fight, Joe Berlinger, to turn over more than 500 hours of outtakes from his film, “Crude.”
The ruling has drawn wide attention because Mr. Berlinger and lawyers for the plaintiffs had argued that the outtakes were protected, in much the same way that journalists are generally not required to turn over their notebooks if they are subpoenaed in a lawsuit between other parties.
The ruling, which came last May and was largely upheld by a court of appeals this summer, is being seen as a cautionary tale for lawyers who invite in documentary filmmakers to tell the story of their legal fights.
Chevron has used the outtakes in case after case in the United States tied to the sprawling suit, in which plaintiffs in Lago Agrio, Ecuador, claim that oil exploration by Texaco, which Chevron acquired in 2001, left local waters toxic. A report submitted to the court in Ecuador puts the damage at $113 billion.
Karen Hinton, a spokeswoman for the plaintiffs’ side of the suit, said the core of the litigation is that “Chevron’s reckless drilling practices and its fraudulent remediation resulted in the massive contamination of the environment and the deaths and illnesses of thousands of people.”
The clips, however, “have sent shock waves through the nation’s legal communities,” one federal judge said in an opinion. Another court last month called them “extraordinary evidence” that suggests that lawyers “presented false evidence and engaged in other misconduct.”
In one outtake, when a dinner companion asks Mr. Donziger if the judge will be killed if he rules against his side, Mr. Donziger says, “He thinks he will be, which is just as good.” In another, he talks about evidence of toxic contamination that is all “smoke and mirrors.”
Chevron contends that still other clips and documents show that the plaintiffs ghostwrote a crucial environmental report by a supposedly independent expert and worked with the government to prosecute two Texaco lawyers who helped get Ecuadorean officials to sign off on the company’s cleanup efforts in 2001.
Randy M. Mastro, a lawyer for Chevron, said, “This is a series of smoking guns that’s more like a five-alarm fire.”
Stuart D. Karle, a lawyer who specializes in media and international law, said the video, like the clip where Mr. Donziger refers to intimidating the judge, seems to play into Chevron’s hand. “It’s impossible for some of the stuff to see the context in which it has a benign explanation,” Mr. Karle said. “This guy gave them a great big stick and said, ‘Beat the hell out of me with it.’ ”
But Ms. Hinton, the spokeswoman for the plaintiffs’ lawyers, disagreed. She said the outtakes were “of little relevance to the lawsuit in Ecuador” and called Chevron’s accusations “a sideshow and a distraction from the real fraud the company is committing in Ecuador.” As for the ghostwriting accusations, the plaintiffs have argued that the court allowed a degree of contact and contribution from both sides.
Mr. Donziger, aside from the statement provided by Ms. Hinton, declined to comment. Mr. Berlinger, the filmmaker, said the outtakes “do not demonstrate anything other than the types of interactions you would expect when an independent documentary crew is embedded for nearly three years with their subjects.”
Chevron’s demand for the outtakes began with an early look at the film. The company’s lawyers noticed that the version at the Sundance Film Festival showed Carlos Beristain, a physician and psychologist, at a meeting with the plaintiffs and their lawyers before the Ecuadorean court appointed him to serve as an independent expert for the environmental report. By American legal standards, that meeting could undercut claims of neutrality. In the film’s commercial release, Mr. Beristain had been edited out.
Mr. Mastro said, “We found the substituted scene and said: ‘Wow. If that was in the film, what else was out there that didn’t make it into the film?’ ”
Alliances between filmmakers and lawyers are becoming increasingly common, with recent films tied to cases involving Dole Food, Coca-Cola and Unocal.
The movie about Dole — “Bananas!” — told the story of Nicaraguan banana workers who claim they were left sterile by pesticides. Lawyers for Dole showed clips from the film depicting rallies that a California judge said showed that the plaintiffs had “stirred up and manipulated the frantic and forlorn populace” to create “an atmosphere of intimidation and fear.” She threw out a $2.3 million verdict for the plaintiffs, citing fraud.
Theodore J. Boutrous Jr., a lawyer for Dole, said defendants would increasingly fight plaintiffs’ use of documentaries to promote their cause and force settlements. “The ‘Crude’ and Dole cases are going to make this a strategy that defendants are going to fight back against, hard,” Mr. Boutrous predicted.
Filmmakers say the Berlinger case worries them.
Alex Gibney, the director of “Client 9: The Rise and Fall of Eliot Spitzer,” said he had successfully fended off similar subpoenas for outtakes from two of his other documentaries, “Enron: The Smartest Guys in the Room” and “Casino Jack and the United States of Money,” about the disgraced lobbyist Jack Abramoff.
Mr. Gibney said he was concerned about an erosion of trust with interview subjects. “I want to create that safe space where people feel like they can talk to me because they trust me to use their remarks in a way that’s properly contextualized,” he said.
If any on-camera remarks that were not intended to be a part of the journalistic record are open to scrutiny in a legal case, “it’s a big problem,” Mr. Gibney said.
Mr. Berlinger wrote in an e-mailed response to questions that he was concerned that when younger filmmakers learned of “my astronomical legal bills,” they might be scared off of such films entirely.
Floyd Abrams, an expert in First Amendment law who wrote a brief fighting the demand for the outtakes by Chevron on behalf of journalism organizations, including The New York Times, said that regardless of how revealing the clips were, the court’s broad order was mistaken.
“It is essential to the creative process that outtakes — even nonconfidential ones — be generally protected from disclosure and that they be ordered produced only when they are truly needed for use in a litigation,” he said, even if some of the outtakes are useful to those seeking them.
In one of the “Crude” outtakes, Alexis Mera, the Ecuadorean president’s chief legal adviser, raises a concern others might have after the Chevron ruling.
“Why are they filming?” Mr. Mera blurts out in a meeting with plaintiffs’ lawyers. “That seems to me to be completely improper.”
But the lawyer, Steven Donziger, had invited the cameras in to document his work on a high-profile, 17-year legal battle with the Chevron Corporation in Ecuador.
The candid footage has come to light because Chevron’s lawyers persuaded a federal judge in New York to force a filmmaker who chronicled the legal fight, Joe Berlinger, to turn over more than 500 hours of outtakes from his film, “Crude.”
The ruling has drawn wide attention because Mr. Berlinger and lawyers for the plaintiffs had argued that the outtakes were protected, in much the same way that journalists are generally not required to turn over their notebooks if they are subpoenaed in a lawsuit between other parties.
The ruling, which came last May and was largely upheld by a court of appeals this summer, is being seen as a cautionary tale for lawyers who invite in documentary filmmakers to tell the story of their legal fights.
Chevron has used the outtakes in case after case in the United States tied to the sprawling suit, in which plaintiffs in Lago Agrio, Ecuador, claim that oil exploration by Texaco, which Chevron acquired in 2001, left local waters toxic. A report submitted to the court in Ecuador puts the damage at $113 billion.
Karen Hinton, a spokeswoman for the plaintiffs’ side of the suit, said the core of the litigation is that “Chevron’s reckless drilling practices and its fraudulent remediation resulted in the massive contamination of the environment and the deaths and illnesses of thousands of people.”
The clips, however, “have sent shock waves through the nation’s legal communities,” one federal judge said in an opinion. Another court last month called them “extraordinary evidence” that suggests that lawyers “presented false evidence and engaged in other misconduct.”
In one outtake, when a dinner companion asks Mr. Donziger if the judge will be killed if he rules against his side, Mr. Donziger says, “He thinks he will be, which is just as good.” In another, he talks about evidence of toxic contamination that is all “smoke and mirrors.”
Chevron contends that still other clips and documents show that the plaintiffs ghostwrote a crucial environmental report by a supposedly independent expert and worked with the government to prosecute two Texaco lawyers who helped get Ecuadorean officials to sign off on the company’s cleanup efforts in 2001.
Randy M. Mastro, a lawyer for Chevron, said, “This is a series of smoking guns that’s more like a five-alarm fire.”
Stuart D. Karle, a lawyer who specializes in media and international law, said the video, like the clip where Mr. Donziger refers to intimidating the judge, seems to play into Chevron’s hand. “It’s impossible for some of the stuff to see the context in which it has a benign explanation,” Mr. Karle said. “This guy gave them a great big stick and said, ‘Beat the hell out of me with it.’ ”
But Ms. Hinton, the spokeswoman for the plaintiffs’ lawyers, disagreed. She said the outtakes were “of little relevance to the lawsuit in Ecuador” and called Chevron’s accusations “a sideshow and a distraction from the real fraud the company is committing in Ecuador.” As for the ghostwriting accusations, the plaintiffs have argued that the court allowed a degree of contact and contribution from both sides.
Mr. Donziger, aside from the statement provided by Ms. Hinton, declined to comment. Mr. Berlinger, the filmmaker, said the outtakes “do not demonstrate anything other than the types of interactions you would expect when an independent documentary crew is embedded for nearly three years with their subjects.”
Chevron’s demand for the outtakes began with an early look at the film. The company’s lawyers noticed that the version at the Sundance Film Festival showed Carlos Beristain, a physician and psychologist, at a meeting with the plaintiffs and their lawyers before the Ecuadorean court appointed him to serve as an independent expert for the environmental report. By American legal standards, that meeting could undercut claims of neutrality. In the film’s commercial release, Mr. Beristain had been edited out.
Mr. Mastro said, “We found the substituted scene and said: ‘Wow. If that was in the film, what else was out there that didn’t make it into the film?’ ”
Alliances between filmmakers and lawyers are becoming increasingly common, with recent films tied to cases involving Dole Food, Coca-Cola and Unocal.
The movie about Dole — “Bananas!” — told the story of Nicaraguan banana workers who claim they were left sterile by pesticides. Lawyers for Dole showed clips from the film depicting rallies that a California judge said showed that the plaintiffs had “stirred up and manipulated the frantic and forlorn populace” to create “an atmosphere of intimidation and fear.” She threw out a $2.3 million verdict for the plaintiffs, citing fraud.
Theodore J. Boutrous Jr., a lawyer for Dole, said defendants would increasingly fight plaintiffs’ use of documentaries to promote their cause and force settlements. “The ‘Crude’ and Dole cases are going to make this a strategy that defendants are going to fight back against, hard,” Mr. Boutrous predicted.
Filmmakers say the Berlinger case worries them.
Alex Gibney, the director of “Client 9: The Rise and Fall of Eliot Spitzer,” said he had successfully fended off similar subpoenas for outtakes from two of his other documentaries, “Enron: The Smartest Guys in the Room” and “Casino Jack and the United States of Money,” about the disgraced lobbyist Jack Abramoff.
Mr. Gibney said he was concerned about an erosion of trust with interview subjects. “I want to create that safe space where people feel like they can talk to me because they trust me to use their remarks in a way that’s properly contextualized,” he said.
If any on-camera remarks that were not intended to be a part of the journalistic record are open to scrutiny in a legal case, “it’s a big problem,” Mr. Gibney said.
Mr. Berlinger wrote in an e-mailed response to questions that he was concerned that when younger filmmakers learned of “my astronomical legal bills,” they might be scared off of such films entirely.
Floyd Abrams, an expert in First Amendment law who wrote a brief fighting the demand for the outtakes by Chevron on behalf of journalism organizations, including The New York Times, said that regardless of how revealing the clips were, the court’s broad order was mistaken.
“It is essential to the creative process that outtakes — even nonconfidential ones — be generally protected from disclosure and that they be ordered produced only when they are truly needed for use in a litigation,” he said, even if some of the outtakes are useful to those seeking them.
In one of the “Crude” outtakes, Alexis Mera, the Ecuadorean president’s chief legal adviser, raises a concern others might have after the Chevron ruling.
“Why are they filming?” Mr. Mera blurts out in a meeting with plaintiffs’ lawyers. “That seems to me to be completely improper.”
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