Exclusive: ‘Crude’ Director Battles Chevron Over Footage

Oil company wants footage for Ecuadorean lawsuit, but Berlinger invokes First Amendment

Exclusive

Documentary filmmaker Joe Berlinger and his production company, Third Eye Motion Picture Company, filed legal papers on Friday opposing Chevron’s request for raw footage created during the filming of the director’s 2009 film "Crude."

The move comes in response to an April 9 request by lawyers for Chevron in a federal court in New York to grant the company access to more than 600 hours of footage related to Berlinger’s film.

A hearing is scheduled for April 30. 

"Crude" documents an environmental catastrophe in the Amazon rainforest, which resulted in decades of litigation between Chevron and the indigenous populations.

It argues that the oil spills and toxic waste dumping by Texaco, which was acquired by Chevron in 2001, resulted in deaths from cancer and other diseases of people living in the nearby community.

Berlinger had previously been subpoenaed by Chevron in an attempt to mine the footage for materials to use in a massive class-action lawsuit winding its way through Ecuadorean courts. 

At stake in the Ecudorean lawsuit are damages in the area of $27 billion, but the oil company has hit back at claims that its wells contaminated indigenous populations, recently charging lawyers for the plaintiffs with submitting fraudulent reports.

It further claims that Texaco cleaned up its portion of the oil fields in Ecuador but that its partner in the venture, the government-owned Petroecuador did not fulfill its end of the cleanup.

The environmental damage shown in Berlinger’s film is the responsibility of Petroecuador, a spokesperson for Chevron says.

"They’re going on a fishing expedition," Berlinger told TheWrap. "I’m doing everything in my power to protect my footage."

A spokesperson for Chevron insisted that Berlinger’s footage was relevant to three pending lawsuits taking place in Ecuador and at the Hague.

“Mr. Berlinger claims to have more than 600 hours of film, largely capturing public events, that is highly relevant to the Lago Agrio trial," Kent Robertson, a spokesperson for Chevron told TheWrap. "In particular, one version of Mr. Berlinger’s film shows representatives of the plaintiffs’ legal team actively participating in a focus group with a supposedly neutral court expert. In the version released on DVD, that scene was edited out."

Robertson said he also believe that Berlinger may have "unwittingly captured on film other instances of improper collaboration between court experts and the plaintiffs’ representatives that would further demonstrate the illegitimate nature of the entire Lago Agrio trial.”

Berlinger’s team says Chevron’s request violates Berlinger’s First Amendment rights and does not meet the standards necessary to violate journalistic privileges.

“We will vigorously oppose Chevron’s attempt to get to these materials,” said Maura Wogan of Frankfurt Kurnit, the lawyers for Berlinger and his production company.

Compounding the issue, Berlinger says, is that he offered confidentiality agreements to members of the Ecuadorean tribe and employees of the oil company; allowing Chevron’s legal team access to the raw footage would violate those pacts.

"When invited into extremely sensitive situations, there’s a level of trust-building that the filmmaker is going to be responsible with the story he’s telling, and not an expectation that dailies will be handed over to adversaries in litigation," Berlinger said.

Berlinger’s team seemed braced for a protracted legal fight on Friday, but maintained that losing the court fight would have dramatic repercussions for the documentary film business.

"There is a lot at stake here," Berlinger said. "This is a financial burden for a documentarian to fight this fight. But if Chevron is successful in getting a journalist to turn over a work in process, it will have a chilling effect on this kind of documentary making in future."

Berlinger is an Emmy award winner, who is best known for his documentaries "Brother’s Keeper, Paradise Lost: The Child Murders at Robin Hood Hills" and "Metallica: Some Kind of Monster."