In one of Hollywood's most gripping legal thrillers, Chevron Corp. is trying to obtain 600 hours of outtakes from a documentary film focused on oil industry environmental practices in Ecuador, sparking a court battle that has attracted the attention of 1st Amendment lawyers, top filmmakers, show business unions and a corporation that says it was defamed in another nonfiction film.
For 17 years, the San Ramon, Calif.-based energy giant has fought a class-action lawsuit in Ecuador that could cost it up to $27 billion in damages and cleanup costs. Lawyers for Chevron are convinced that the environmental contamination litigation is tainted, alleging that an expert was not impartial, a report was fabricated and a judge was bribed. When Chevron saw director Joe Berlinger's 2009 documentary "Crude," a behind-the-scenes look at the lawsuit, the company believed it had found cinematic proof of misconduct — and demanded to see everything else Berlinger discovered in the three years he spent making the film.
Some documentarians say Chevron's action against Berlinger, the focus of an oral argument Wednesday before the U.S. Court of Appeals in New York, is part of a movement to marginalize nonfiction filmmakers by subjects unhappy over how they have been depicted.
Chevron and Dole Food Co. argue that some of today's documentarians, who like Michael Moore increasingly use their cameras more for dogmatic activism than neutral reporting, are mouthpieces for plaintiffs' lawyers, and should not necessarily enjoy all of the legal protections afforded most journalists against turning over unused material such as notes and outtakes.
Chevron calls "Crude" "an unapologetic work of propaganda" while Berlinger defends his feature-length movie as "a very fair and balanced film."
"This is a very significant case, and it comes up in a very unusual context," said Floyd Abrams, a prominent free speech lawyer who filed a brief in support of Berlinger on behalf of several media companies. Randy Mastro, a lawyer for Chevron, agrees the case is important. "Chevron now has an opportunity to prove it was denied due process," Mastro said. "Imagine what a treasure trove these outtakes will be."
Berlinger, several other filmmakers (including Robert Redford), the Writers Guild of America, the Directors Guild of America and numerous media companies argue that the lawsuit will have a chilling effect on documentary filmmaking beyond this project. They note that Dole, which sued documentary director Fredrik Gertten for defamation, is also backing Chevron in its lawsuit.
"The risk here is if all of [the outtakes] can be ordered produced … other outtakes far too routinely will be made available in the future," Abrams said. Consequently, people "may well be discouraged to talk to filmmakers," he added.
Louie Psihoyos, director of the Academy Award-winning documentary "The Cove," about the slaughter of dolphins in Japan, said the legal assault comes as nonfiction films are showing increased impact. "The documentary medium has evolved into the most powerful cultural force we have for change and I think the subjects are responding to that," he said. Psihoyos signed a letter in support of Berlinger.
Berlinger, whose documentary credits include the critically acclaimed "Brother's Keeper" and "Paradise Lost: The Child Murders at Robin Hood Hills," introduced "Crude" at last year's Sundance Film Festival. The movie received exceptional reviews but failed to sell many tickets in its theatrical release last September, grossing just $170,000.
The film focuses on a class-action suit filed by 30,000 Ecuadorans against Chevron, alleging Texaco (which Chevron later acquired) and others dumped billions of gallons of wastewater several decades ago, poisoning the land, its animals and people. In "Crude," Berlinger follows lawyers for the plaintiffs (including American Steve Donziger) as they assemble and promote their case, showing conduct that might startle some U.S. attorneys.
Donziger at one point walks into the chambers of a judge (apparently outside of an official hearing) to complain about Chevron's litigation strategy. "This is how the game is played — dirty," Donziger says to Berlinger's camera before speaking to the judge, who promptly rescinds an order Chevron had backed.
Chevron believes Berlinger must have similarly contentious footage that isn't included in the finished film, including scenes where the oil company's lawyers were not present but Berlinger's cameras were. "The film depicts the plaintiffs' lawyers engaging in some extreme misconduct," Mastro said. The outtakes, he believes, could contain "explosive evidence" of similar wrongdoing.
Earlier this year, Chevron asked U.S. District Judge Lewis Kaplan to compel Berlinger to hand over the outtakes. In May, Kaplan ruled in Chevron's favor, but the order was stayed pending the appeal.
Kaplan dismissed Berlinger's argument that the interviews were confidential, meaning he couldn't claim that they were closely protected by a journalist's privilege, which (like an attorney-client relationship) in some cases prevents reporters from having to surrender their notes. The judge also said he did not believe Berlinger's "activities as a filmmaker would be unduly burdened" by having to surrender the extra footage. The 2nd Circuit Court of Appeals will hear arguments about overturning or affirming Kaplan's ruling and could rule in just a few weeks.
"The material here without question is protected by the journalist's privilege," said Maura Wogan, a lawyer for Berlinger.
"The nature of the relationship [between a filmmaker and his subjects] is one of trust and access," Berlinger said. "And these kinds of stories are built on a trusting relationship." The director has other concerns too. "My fear is that the motivation here is not to find evidence," Berlinger said. "It's to use my footage as part of [Chevron's] massive public relations campaign to discredit the plaintiffs and the case and me."
Last year, Dole sued Swedish filmmaker Gertten, arguing that his 2009 documentary film "Bananas!*," a look at litigation involving the produce company's alleged misuse of a pesticide in Nicaragua, "promotes as fact a false story" and ignored a judgment in the case against Dole that was dismissed as fraudulent.
Like "Crude," Gertten's film followed a plaintiffs' lawyer — in this case, the prolific bus advertiser Juan Dominguez — who allowed Gertten to shadow him. Dole withdrew the suit in October, but is still displeased with how the food giant was treated in the film. "Both 'Bananas!*' and 'Crude' are part of the growing trend of plaintiffs' lawyers using a supposedly factual documentary film in a public campaign seeking to discredit the targeted defendants," Dole said in its friend-of-the-court brief.
"Documentary filmmaking is still the last bastion for truth telling," Gertten said. "It's very sad that Dole has now shown their support for Chevron's attack on Joe Berlinger."
Chevron lawyer Mastro, whose firm Gibson, Dunn & Crutcher was suspended from the 1st Amendment-promoting Media Law Resource Center for its representation of Dole in the "Bananas!*" case, said neither he nor his firm was out to silence journalists and nonfiction filmmakers.
"This is not a case about the 1st Amendment," Mastro said. "It's about an American company urgently needing this evidence to defend itself."