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Speaker 1: Before we get started today, a quick note about another show.

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Speaker 1: I know you probably care about climate change if you're

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Speaker 1: listening to this podcast, so I want to recommend another one

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Speaker 1: that's sharing some of the most powerful ideas about the

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Speaker 1: climate crisis. It's called Countdown, and it's part of Ted's

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Speaker 1: global initiative to champion and accelerate solutions to the climate crisis,

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Speaker 1: turning ideas into action with talks from Prince William, decarbonization

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Speaker 1: strategist Monica Araya, environmental activist Severn Cullis, Suzuki, and many

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Speaker 1: many more. You can check out Countdown wherever you listen

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Speaker 1: to podcasts, and stick around after this episode to hear

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Speaker 1: clip from the show on why climate justice can't happen

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Speaker 1: without racial justice.

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Speaker 2: If you were watching ABC seven US at eleven, two

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Speaker 2: activists spearheading a landmark class action lawsuit against Chevron are

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Speaker 2: receiving the world's most prestigious environmental honor today. Pablodo and

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Speaker 2: Luisienza are accepting the Goldman Prize in San Francisco today.

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Speaker 2: It is for their efforts to make Chevron clean up

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Speaker 2: what some environmentalists call the world's worst oil related disaster.

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Speaker 1: This is a clip from the documentary Crude the Real

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Speaker 1: Price of Oil, about the Chevron litigation in Ecuador. This

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Speaker 1: particular scene shows what happened when Ecuadorian attorney Pablo Fajardo

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Speaker 1: and activist Luisianza came to San Francisco to accept the

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Speaker 1: Goldman Environmental Prize. Remember we mentioned this a couple episodes.

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Speaker 2: Back tonight, Chevron is finding the claim and the two

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Speaker 2: men who they say have made up their story for

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Speaker 2: their own financial gain. They're frankly a group of con

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Speaker 2: men that have put one past the Goldmans and have

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Speaker 2: been put putting it past the media for quite some

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Speaker 2: time now too.

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Speaker 3: Concider and investiguing Naida.

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Speaker 4: If you deem so, please to investigate the life of Pablo.

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Speaker 3: Fajardo, Investiga navidad.

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Speaker 4: And investigate which everyone's life is.

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Speaker 3: That's key one of investigingndrest a king time.

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Speaker 4: Once you investigate, you'll see who is lying.

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Speaker 3: In this case.

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Speaker 1: We mentioned last time that one of the many subpoenas

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Speaker 1: that Chevron's attorney Randy Mastro filed when Chevron brought on

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Speaker 1: his firm Gibson Dunn to help with their defense, was

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Speaker 1: for outtakes from this film Crude. It was a big

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Speaker 1: moment in the case, and today we're going to dig

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Speaker 1: into it in detail with the documentary's filmmaker, Joe Berlinger.

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Speaker 1: Berlinger is a pioneering documentary filmmaker who's made several groundbreaking

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Speaker 1: films both before and since Crude, including Paradise Lost, Brothers Keeper, Metallica,

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Speaker 1: Some Kind of Monster, and more recently, Conversations with a Killer,

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Speaker 1: The Ted Bundy Tapes and Jeffrey Epstein Filthy Rich, both

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Speaker 1: for Netflix.

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Speaker 4: Hey Bob, I can I call you later? I know

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Speaker 4: you're wishing me a happy birthday, but I'm in the

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Speaker 4: middle of a is.

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Speaker 3: It your birthday?

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Speaker 2: Today?

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Speaker 3: Birthday?

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Speaker 4: Thank God, happy birthday.

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Speaker 1: I started bugging Berlinger to talk to us for this

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Speaker 1: season months ago, and it took a lot of convincing,

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Speaker 1: but ultimately he agreed to do it, and on his birthday,

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Speaker 1: no less. It's no wonder he was hesitant. Mastro and

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Speaker 1: his team made Berlinger's life hell for a couple of

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Speaker 1: years when they subpoenaed his outtakes. Berlinger fought it. As

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Speaker 1: an independent documentarian. He figured he had First Amendment protections

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Speaker 1: and journalistic privilege, and he didn't want to set a

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Speaker 1: bad precedent for his industry or for journalists in general.

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Speaker 1: He paid a heavy price for that fight, literally and figuratively.

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Speaker 1: That story coming up right after this quick break. Welcome

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Speaker 1: back to Drill Season five, l Ucha Longa. I'm Amy Westerveldt.

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Speaker 1: Today we're talking to documentary film director Joe Berlinger, and

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Speaker 1: we're digging into the ramp up to this reco case

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Speaker 1: that was filed just before the verdict came out in Ecuador.

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Speaker 1: We talked about that a bit at the end of

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Speaker 1: the last episode. Here's Berlinger describing how he started to

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Speaker 1: make this film in the first place.

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Speaker 4: One of the ironies of this film having had such

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Speaker 4: a deep impact on my life, as I never wanted

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Speaker 4: to make it in the first place.

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Speaker 1: In order to get outtakes from Crude, Randy Mastro had

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Speaker 1: to show that Berlinger was neither independent nor a journalist.

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Speaker 1: He did that with two key accusations, first that the

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Speaker 1: film was solicited by the plaintiff's attorneys, and second that

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Speaker 1: the plaintiff's attorneys had editorial input. Here's Berlinger.

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Speaker 4: Steven Donziger, a plaintiffs lawyer, had a mutual friend who

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Speaker 4: knew me, and Stephen Donziger came to my office in

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Speaker 4: New York in I think two thousand and five, and

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Speaker 4: pitched me on the idea of making a film, but

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Speaker 4: obviously not pitching me to work for them. They knew

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Speaker 4: I was an independent journalist and they just so believed

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Speaker 4: in the story that they wanted a filmmaker of my

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Speaker 4: stature to take a look at the story. And initially

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Speaker 4: I was very hesitant.

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Speaker 1: Now keep in mind this was two thousand and five.

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Speaker 1: Streaming was not really a thing. Netflix was still mostly

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Speaker 1: just mailing people. DBDs and documentaries were gaining in popularity,

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Speaker 1: but this more recent boom was nowhere in sight. It

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Speaker 1: was hard to sell documentary at the time, much less

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Speaker 1: one in Spanish about an environmental issue in a country

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Speaker 1: far away from the US.

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Speaker 4: They were just pitching me. They thought this would make

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Speaker 4: a great film. It was an interesting period to step

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Speaker 4: into the case. The trial had started an Ecuador in

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Speaker 4: two thousand and three and had kind of petered out,

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Speaker 4: and they were waiting for these judicial field inspections to

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Speaker 4: start in the coming year, and so pitched me several

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Speaker 4: times about it, and I was a little reluctant, and

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Speaker 4: Donziger said to me, look, let me take you down

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Speaker 4: and show you the region, you know, the famous Toxi

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Speaker 4: tour that you know so many people have taken.

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Speaker 1: You might remember us mentioning the Toxi tour a few

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Speaker 1: episodes back when we met Donald Moncayo. It was a

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Speaker 1: tour that the plaintiffs took many journalists and politicians on

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Speaker 1: over the years of the various oil pits Texico had

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Speaker 1: left in the Ecuadorian Amazon.

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Speaker 4: And he was very persistent. You know, they really thought

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Speaker 4: I was the right guy because I had made two

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Speaker 4: well known criminal justice films, Paradise Lost and Brothers Keeper.

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Speaker 4: And initially I was just reluctant, and Donziger was somewhat

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Speaker 4: relentless in trying to win me over to come down

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Speaker 4: and take Toxi tour. And so several months after that

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Speaker 4: first meeting he called again and said, I really want

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Speaker 4: to show you the region. And I said, look, I

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Speaker 4: will go down and check it out. It sounds like

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Speaker 4: an interesting personal experience. But you know, I don't want

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Speaker 4: to mismanage your expectations. I have lots of hesitation and

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Speaker 4: doubt about whether or not I want to make this film.

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Speaker 4: I have other projects happening. I think this one will

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Speaker 4: be a difficult one. To raise money for But I

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Speaker 4: will take the Toxi tour, although it wasn't called that

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Speaker 4: then to me, But I will go down and take

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Speaker 4: the tour of the region, as long as you understand

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Speaker 4: that I'm not promising you that I'm going to commit

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Speaker 4: to making a film about it.

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Speaker 1: So he went, and when he got to the Amazon

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Speaker 1: and Ecuador, Berlinger says he was shocked by what he saw.

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Speaker 4: I was just blown away by the devastation. I mean,

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Speaker 4: here we are in a pristine or what was supposed

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Speaker 4: to be, this pristine region of the world that everyone

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Speaker 4: talks about the Amazon being so special and magical, and

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Speaker 4: all I saw was gas flares out of you know,

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Speaker 4: oil refineries, these pits, these unline pits all over the landscape,

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Speaker 4: people living over these pits, people dying of cancer. I

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Speaker 4: was horrified. It was kind of my wake up call.

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Speaker 4: And I remember, in particular the moment that I just

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Speaker 4: felt like I had to make this film is we

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Speaker 4: were paddling by canoe to Durano, which is the ancestral

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Speaker 4: land of the Coofon, where prior to Texico's arrival, there

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Speaker 4: were about fifteen thousand Coofon and now there were just

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Speaker 4: hundreds of Cofon living on their ancestral lands. And as

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Speaker 4: we pulled up, we were going to have a meeting

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Speaker 4: with some of the tribal leaders. And as we pulled

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Speaker 4: up to the shore to get out, I looked to

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Speaker 4: my left and there was a family, several families, sitting

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Speaker 4: around a fire, eating canned tuna fish out of these

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Speaker 4: giant imagine you know, these big industrial kind of vats

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Speaker 4: of tuna that that a restaurant might buy at whatever

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Speaker 4: the Ecuadorian equivalent of costco would be. And here we

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Speaker 4: were in the middle of the Amazon rainforest, you know,

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Speaker 4: with water based people, the Cofon, and these these families

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Speaker 4: were eating canned tuna fish because there was no there

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Speaker 4: was no fish in there in their rivers, and I

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Speaker 4: just I just felt like, you know, something's got.

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Speaker 3: To be done.

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Speaker 1: He didn't know how he was going to do it.

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Speaker 1: The Bilander couldn't shake the feeling that this film needed

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Speaker 1: to be made and that he needed to be the

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Speaker 1: one to make it.

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Speaker 4: I got home, and I went upstairs and tucked my

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Speaker 4: child into bed, and went to the tap and took

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Speaker 4: a drink of water and looked at the glass of

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Speaker 4: water and thought to myself. You know, these luxuries that

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Speaker 4: we take for granted, these poor people, these water based people,

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Speaker 4: have polluted water. You know, they use water for transportation,

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Speaker 4: for drinking, for bathing, for cleaning. And I just I

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Speaker 4: just felt like the universe tapping me on the shoulder, saying,

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Speaker 4: you know, you, for whatever reason, you're the guy who

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Speaker 4: has to make this movie, and don't worry about fundraising.

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Speaker 4: And in fact, I started the movie with my own

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Speaker 4: resources because I just I just felt like somebody had

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Speaker 4: to tell this story because I was just I could

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Speaker 4: not believe what I saw.

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Speaker 5: It was.

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Speaker 4: It was horrifying.

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Speaker 1: Berliner says the legal proceedings provided some narrative, structure and

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Speaker 1: drama to the story, but he was never really interested

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Speaker 1: in making a film about a lawsuit or sighting with

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Speaker 1: one side or the other.

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Speaker 4: You know, my style of filmmaking is to show both

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Speaker 4: sides of the story and let the viewer decide. And

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Speaker 4: the plaintiffs actually, when they saw the movie at Sundance,

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Speaker 4: were kind of shocked at how much Chevron's point of

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Speaker 4: view was in the film. I actually had a much

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Speaker 4: more thirty thousand foot view of the situation, which was

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Speaker 4: as much as I admire the historic nature of this case.

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Speaker 4: As much as it as this David and Goliath's story

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Speaker 4: was impressive cinematically and as impressive as it is that

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Speaker 4: indigenous people were actually holding Chevron to account for the

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Speaker 4: actions of Texaco in this historic lawsuit, My interest in

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Speaker 4: this case was a little different, and it's why I

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Speaker 4: show both sides in the movie.

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Speaker 1: It's true you hear from a lot of different attorneys

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Speaker 1: and scientists and other kinds of experts throughout the film.

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Speaker 1: Here's an example where Berliner interviewed Ricardo raised Vega, the

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Speaker 1: longtime Chevron attorney in Ecuador. You've heard his name come

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Speaker 1: up a few times this season.

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Speaker 5: My name is Ricardo res Vega, being with the company

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Speaker 5: for thirty years, practicing law in different countries and jurisdictions.

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Speaker 5: My involvement with Ecuador started in nineteen ninety one, when

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Speaker 5: our concession was about to expire. We try really to

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Speaker 5: get an extension for another ten years. We proposed an

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Speaker 5: additional investment in Ecuador. The government at the time basically

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Speaker 5: thought that they didn't want to do that, and they said, well,

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Speaker 5: we want to have one hundred percent ownership of the

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Speaker 5: Consortian air fields. It's known that Patrick Calador has had

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Speaker 5: a very poor operational record.

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Speaker 4: I mean, the movie's actually quite balanced, because for me,

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Speaker 4: there is something deeply disturbing about an environmental calamity of

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Speaker 4: this magnitude, the area the size of Rhode Island, more

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Speaker 4: oil dumped than you know, thirty times more oil, as

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Speaker 4: I understand it, dumped than the Exxon Valdies incident. And

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Speaker 4: why is it that this environmental calamity is being held

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Speaker 4: hostage to a protracted legal proceeding. If this was you know,

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Speaker 4: the BP oil spill or the spill outside of Santa Barbara,

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Speaker 4: if this was on the shores of the United States

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Speaker 4: or European country, there would be immediate environmental remediation and

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Speaker 4: then the legal proceedings would figure out who's responsible, as

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Speaker 4: happened in this country many times. Meanwhile, these poor people

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Speaker 4: have been held hostage for thirty years to this case,

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Speaker 4: and that really that was the point of the film.

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Speaker 4: That's why I show both sides. I let each side

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Speaker 4: have their say. But to me, there's something even more

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Speaker 4: fundamentally wrong that the world. You know, we know how

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Speaker 4: important the Amazon is to the Earth's ecosystem, and we

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Speaker 4: are destroying the Amazon. As we all know, and oil

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Speaker 4: extraction is a dirty, messy business, and if this incident

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Speaker 4: had happened anywhere where white people live, it would have

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Speaker 4: been cleaned up, you know, and then they would have

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Speaker 4: figured out the culpability later. My point of view was, look,

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Speaker 4: I am not smart enough to tell you whether or

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Speaker 4: not Chevron has wrapped itself up in enough legal arguments

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Speaker 4: to be legally correct in this situation. But there is

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Speaker 4: a moral issue here. With such devastation, why are we

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Speaker 4: not cleaning it up now and figuring out the legal

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Speaker 4: responsibility later. That's really is the point of view of

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Speaker 4: the movie, and why the irony that I was castigated

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Speaker 4: as a shill and a propagandist for the plaintiffs is

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Speaker 4: just so fundamentally wrong.

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Speaker 1: One of the strategies Gibson duntook to try to undermine

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Speaker 1: the case in Ecuador was to pit the plaintiff's attorneys

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Speaker 1: against each other. We're going to get into that strategy

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Speaker 1: in a bit more detail in the next episode. But

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Speaker 1: Berlinger had a bird's eye view of some of the

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Speaker 1: natural tensions between the Ecuadorian and American attorneys, things that

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Speaker 1: would have been easy for a master litigator like Mastro

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Speaker 1: to exploit.

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Speaker 4: I mean, from a cinematic standpoint, you couldn't have asked

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Speaker 4: for a better pairing of Pablo and Steven Donziger. Pablo

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Speaker 4: is a very impressive guy. I mean, you know, he

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Speaker 4: grew up in that region, he worked in the oil fields.

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Speaker 4: He was impoverished, a self educated lawyer, finding himself at

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Speaker 4: the center of one of the most historic and biggest

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Speaker 4: environmental lawsuits in history.

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Speaker 1: We spoke with Pablo for this season, and unfortunately we

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Speaker 1: were talking to Pablo over the Internet and the connection

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Speaker 1: wasn't great, so the recording hasn't turned out that well.

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Speaker 1: So instead I'm going to play another clip from Crude

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Speaker 1: because it shows you kind of how Pablo interacted with

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Speaker 1: the plaintiffs, what he was doing on the ground in Ecuador.

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Speaker 1: This is a scene where Fajardo is speaking with members

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Speaker 1: of the Sequoya tribe. That's the tribe that Houstino Piaguaje

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Speaker 1: is a leader of. We've heard from him a couple

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Speaker 1: of times this season.

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Speaker 3: A Primierra.

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Speaker 1: He says, first of all, thank you for the welcome,

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Speaker 1: thank you for having us, I mean the thanks also

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Speaker 1: to the Sequoya village that's signed on to the lawsuit.

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Speaker 1: These contributions have allowed the trial to move forward.

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Speaker 4: Paired with Donziger, you know, is a big guy, big

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Speaker 4: in many ways. He has a big presence. He's physically

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Speaker 4: largs and so Donziger was a very large presence and

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Speaker 4: Pablo was a very quiet but commanding presence. I mean

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Speaker 4: he has he just had this natural charisma, a quietness

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Speaker 4: to him. But it's hard to explain, but he just

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Speaker 4: he just oozed with morality and somebody on a mission.

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Speaker 4: And the two of them together were quite an interesting parents.

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Speaker 4: You know, this quiet, serious, committed chay Gavara kind of

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Speaker 4: figure who is a man of the people, who is

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Speaker 4: not motivated by finances, who really is a hero in

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Speaker 4: my opinion, whether you believe in the cases merits or not,

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Speaker 4: he is a hero. And Donziger, you know, also is heroic,

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Speaker 4: but I think is a much more complicated figure, wrong

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Speaker 4: and dynamic presence who drove the case forward. There would

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Speaker 4: have been no case without him. But he's a package

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Speaker 4: and there was you know, there was some stuff that

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Speaker 4: I think rubbed the Ecuadorians the wrong way, and it

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Speaker 4: was a very complicated relationship that I observed, you know,

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Speaker 4: not the least of which is something that's not Donziger's fault.

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Speaker 4: But this whole white white savior thing in a country

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Speaker 4: that was trying to throw off the yoke of imperial Yeah, totally.

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Speaker 4: Here you had this big, tall, aggressive white guy telling

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Speaker 4: them what to do. And on the one hand, they

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Speaker 4: needed that council. But on the other hand, I think

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Speaker 4: it rubbed people the wrong way as well. But there

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Speaker 4: would have been no case without Donziger.

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Speaker 1: Mastro argued that there would have been no documentary without

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Speaker 1: Donziger either. And Donziger diditch Berlinger the idea of doing

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Speaker 1: a documentary, and he did show him around in Ecuador.

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Speaker 1: But importantly, Berlander says he paid his own way for

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Speaker 1: that initial toxi toward trip that convinced him to make

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Speaker 1: the film. And also this whole thing of someone pitching

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Speaker 1: you a story and then encouraging you to go check

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Speaker 1: it out more. It's extremely common. People bitch me stories

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Speaker 1: all the time. They like me up with sources or information.

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Speaker 1: Whistleblowers have leaked documents to me. Former excellent scientists have

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Speaker 1: had me over to talk to them at length. None

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Speaker 1: of that means that I work for any of these people,

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Speaker 1: or that covering a story that I get pitched somehow

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Speaker 1: erodes my First Amendment rights as a journalist.

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Speaker 4: In my court papers where I lost my subpoena battle,

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Speaker 4: they deemed I was not a journalist because Donziger solicited

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Speaker 4: the movie from me and used verbiage to make it

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Speaker 4: seem like somehow they paid for the movie or they

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Speaker 4: aired me to do the movie. But the court disregarded

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Speaker 4: the fact that I had a DGA deal memo that

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Speaker 4: said I have final cut.

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Speaker 1: The DGA is the Director's Guild of America. That's the

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Speaker 1: labor union for film and TV directors.

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Speaker 4: I had a DGA deal memo that said I have

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Speaker 4: final cut. That the release that Stephen Donziger and all

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Speaker 4: the other plaintiff signed gave me final cut of the movie.

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Speaker 4: They had no editorial rights to the film. They did

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Speaker 4: not pay me to make the film. It was an

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Speaker 4: independently financed film.

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Speaker 1: The court ignored the deal memo with respect to the

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Speaker 1: other argument in Master's subpoena requests too, that the plaintiff's

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Speaker 1: attorneys had editorial input on the film. That argument was

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Speaker 1: made on the basis of one key thing.

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Speaker 3: Here's mastro So Joe Barlanchard produces Crude and it shows

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Speaker 3: on the festival circuit. It yeah, then it comes out

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Speaker 3: on Netflix, and a curious thing was picked up by

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Speaker 3: the Chevron team. There was a change in scenes from

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Speaker 3: the film festival version to the Netflix version, and the

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Speaker 3: scene that had been changed were deleted was a scene

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Speaker 3: that showed someone supposedly working as an independent expert for Cabrera,

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Speaker 3: was in fact meeting with the plaintiffs lawyers and their

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Speaker 3: clients at a session that Joe Berlinger was Steve Donziger

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Speaker 3: in attendance with that Joe Berlinger filmed, and then by

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Speaker 3: the time it came out on Netflix, that scene had

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Speaker 3: been deleted, so you could so you could still hear

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Speaker 3: the audio, because the audio was one of the lawyers

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Speaker 3: in Ecuador who was working with Donziger doing the speaking

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Speaker 3: and donzig are doing the speaking, But the image of

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Speaker 3: Cabrera's assistant there at that meeting when he's supposed to

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Speaker 3: be operating objectively and independently and meeting with the plaintas

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Speaker 3: lawyers and Donziger and what appeared to be some of

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Speaker 3: their clients, that scene, that video was deleted.

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Speaker 4: That is largely true, but it lacks context.

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Speaker 1: Berlinger argued this point in court as well.

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Speaker 4: When you go to Sundance often a film is not

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Speaker 4: quite finished. You get in great, they tell you by

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Speaker 4: Thanksgiving you rush you finish the film. Of course you're

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Speaker 4: showing a finished film.

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Speaker 1: So just to be clear, you find out at Thanksgiving

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Speaker 1: at the end of November if your film has made

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Speaker 1: it into Sundance, and Sundance is in January, which means

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Speaker 1: you have just a few weeks really to lock your

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Speaker 1: film in before doing all of the sort of post

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Speaker 1: production things that are required to finish a film and

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Speaker 1: show it at the festival.

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Speaker 4: It often, you know, is not The final version of

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Speaker 4: the film, Brothers Keeper was premiered at Sundance, and you know,

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Speaker 4: sitting with an audience, we realized needed some changes and

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Speaker 4: it was twenty minutes too long. So the final version

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Speaker 4: of Brothers Keeper differed from the sun Dance version. In fact,

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Speaker 4: virtually every film I have brought to Sundance we make

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Speaker 4: tweaks afterwards. So we showed the movie at Sundance. Chevron

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Speaker 4: was invited to come to Sundance and they declined. The

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Speaker 4: plaintiffs came and Donziger at some point sent me a

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Speaker 4: ten twelve page memo with all the things he didn't

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Speaker 4: like about the film.

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Speaker 1: So this tracks with our interactions with Donziger for this

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Speaker 1: podcast too. You know, he's a guy who likes to

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Speaker 1: control the story, and that's not uncommon, especially when you're

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Speaker 1: covering a contentious legal case. Lawyers, in particular, and in

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Speaker 1: this case, because he's had so much personal blowback from

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Speaker 1: this case, find it useful to make their case in

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Speaker 1: the press, and Berlinger was used to dealing with that.

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Speaker 1: He had made two other films focused on legal cases.

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Speaker 1: Here's Berlinger again explaining how this one change did happen.

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Speaker 4: In ninety nine percent of his suggestion, In fact, ninety

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Speaker 4: nine point five percent of his suggestions. I disregard it,

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Speaker 4: you know. But Pablo in particular was concerned that the

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Speaker 4: condensation of chronology, you know, which is what I was

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Speaker 4: told by Donziger and by Fajardo, that the condensation of

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Speaker 4: chronology in my film made it appear that somebody who

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Speaker 4: shouldn't have been in a scene was in a scene,

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Speaker 4: and would I consider removing two cutaways? That's the thing

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Speaker 4: people have, you know. The implication is that I re

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Speaker 4: edited the film and changed scenes. I mean literally two

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Speaker 4: cutaways that included the guy from a Oxyon ecologic. I

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Speaker 4: believe you know an NGO who later became part of

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Speaker 4: Cabrera's independent team, who was at a meeting, and this

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Speaker 4: person is sitting in the background. He's not a character

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Speaker 4: in the film. Nobody knows who he is with regard

402
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Speaker 4: to the film. It's so inside baseball as to whether

403
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Speaker 4: or not he belongs at this place at this time,

404
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Speaker 4: and admdally, I didn't fully understand the issues, and so

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Speaker 4: I removed and like, I feel like this is such

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Speaker 4: inside baseball that people may not even understand what I'm

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Speaker 4: talking about. But I removed two cutaways. It was one

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Speaker 4: of about I can't even give you a number, that

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Speaker 4: was probably sixty or seventy notes about what to change

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Speaker 4: in my film, alarm over how much Chevron is in

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Speaker 4: the movie, all sorts of notes that I was given

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Speaker 4: that I'm like, hey, dude, this is my film, and

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Speaker 4: I'm not doing these changes. I will make that one change,

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Speaker 4: and I think I made one other change that was

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Speaker 4: an accuracy issue.

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Speaker 1: Ultimately, those changes and the fact that Donziger had pitched

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Speaker 1: Berlin or the film in the first place outweighed the context.

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Speaker 4: With this full explanation that I gave to the court

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Speaker 4: that A, I have final cut. Here's all the paperwork

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Speaker 4: to prove I had final cut. B. Here's the ten

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Speaker 4: page memo from Donziger in which he's asking me to

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Speaker 4: make a zillion changes and I didn't make those changes

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Speaker 4: and wrote him a terse email in response saying, Hey,

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Speaker 4: I'm not making these changes. I'm the filmmaker. I have

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Speaker 4: final cut. All of that could have outweighed you know,

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Speaker 4: this idea that somehow because I made a change, I

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Speaker 4: wasn't a journalist. You know, in hindsight, it should have

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Speaker 4: been a more of a red flag, but at the

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Speaker 4: time it just seemed like such a such a trivial detail.

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Speaker 4: The irony is that that little trivial detail of removing

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Speaker 4: three two second cutaways, or maybe it was two to

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Speaker 4: three second cutaways, one or the other, but literally we're

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Speaker 4: talking about six seconds of footage.

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Speaker 1: The fight over those six seconds and how they defined

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Speaker 1: Berlinger's relationship with the plaintiffs dragged on for years and

436
00:27:27,880 --> 00:27:29,440
Speaker 1: really punished Berlinger.

437
00:27:29,760 --> 00:27:33,240
Speaker 4: On several occasions, as my kids were getting off the bus,

438
00:27:33,800 --> 00:27:37,920
Speaker 4: a private detective or seemingly so, somebody in a flashy

439
00:27:38,640 --> 00:27:44,200
Speaker 4: red BMW being as conspicuous as possible, would screech, would

440
00:27:44,240 --> 00:27:48,040
Speaker 4: screech up to our driveway and take photographs of my

441
00:27:48,200 --> 00:27:51,160
Speaker 4: kids getting off the bus and walking up the driveway.

442
00:27:51,600 --> 00:27:53,960
Speaker 4: Now this was during my court proceeding. Can I say

443
00:27:54,880 --> 00:27:57,720
Speaker 4: Chevron was responsible for it? No? Can I say Gibson

444
00:27:57,800 --> 00:28:01,919
Speaker 4: Dunn was responsible for it? No? But it happened. There

445
00:28:01,960 --> 00:28:04,320
Speaker 4: were times where I felt my phone was being tapped.

446
00:28:04,400 --> 00:28:08,359
Speaker 4: I heard the distinct clicks on my phone that just

447
00:28:08,480 --> 00:28:13,359
Speaker 4: didn't sound right. I was investigated by Kroll, a corporate investigator.

448
00:28:13,560 --> 00:28:17,440
Speaker 1: Documentarians and investigative journalists are somewhat prepared for this sort

449
00:28:17,440 --> 00:28:21,720
Speaker 1: of thing. We carry expensive specialty insurance policies, for example,

450
00:28:21,960 --> 00:28:24,040
Speaker 1: and we have lawyers who look things over for us.

451
00:28:24,240 --> 00:28:27,800
Speaker 1: But this was way beyond anything Berlinger ever thought he'd

452
00:28:27,880 --> 00:28:29,480
Speaker 1: be up against, because it.

453
00:28:29,560 --> 00:28:34,320
Speaker 4: Became extremely costly, beyond anything I could have ever imagined.

454
00:28:34,760 --> 00:28:40,280
Speaker 4: My footage was subpoened. I fought lost, appealed lost, and

455
00:28:40,360 --> 00:28:42,800
Speaker 4: then after the footage was turned over, at some point,

456
00:28:43,240 --> 00:28:48,360
Speaker 4: they then went after my computer. I lost, appealed lost,

457
00:28:48,440 --> 00:28:50,600
Speaker 4: and had to turn the contents of my computer over

458
00:28:50,680 --> 00:28:53,880
Speaker 4: as well. And then in addition to that, because and

459
00:28:54,000 --> 00:28:57,840
Speaker 4: this is where the pressure tactics come in, Chevron attorneys

460
00:28:57,880 --> 00:29:03,760
Speaker 4: were intimating to my attorneys that they might seek criminal

461
00:29:04,600 --> 00:29:06,480
Speaker 4: action against me.

462
00:29:06,960 --> 00:29:11,040
Speaker 1: Okay, so this is really worth paying attention to. Berlinger

463
00:29:11,200 --> 00:29:15,560
Speaker 1: wasn't being accused of fraud himself, or of libel or

464
00:29:15,840 --> 00:29:20,080
Speaker 1: various other crimes, but Chevron was hinting that they could

465
00:29:20,600 --> 00:29:25,720
Speaker 1: use misprision. When you observe a fraud, you're supposed to

466
00:29:25,800 --> 00:29:28,840
Speaker 1: have sort of a legal responsibility to report it, and

467
00:29:28,960 --> 00:29:32,200
Speaker 1: if you don't, that's called misprision. The idea that a

468
00:29:32,320 --> 00:29:38,080
Speaker 1: documentary filmmaker could be guilty of this crime simply by

469
00:29:38,520 --> 00:29:41,680
Speaker 1: filming other people who may or may not be engaging

470
00:29:41,920 --> 00:29:45,280
Speaker 1: in some kind of fraudulent activity is pretty scary when

471
00:29:45,320 --> 00:29:45,920
Speaker 1: you think about it.

472
00:29:46,240 --> 00:29:49,680
Speaker 4: So their theory of the Donziger case, in the plaintiff's

473
00:29:49,720 --> 00:29:53,920
Speaker 4: case was that it was fraudulent. It was a fraudulent case,

474
00:29:54,080 --> 00:29:58,880
Speaker 4: that the cancer claims were fraudulent, that the the you

475
00:29:58,960 --> 00:30:02,480
Speaker 4: know that the entire basis for the case was fraudulent.

476
00:30:02,680 --> 00:30:06,840
Speaker 4: And so I, as a documentarian, who by definition is

477
00:30:06,880 --> 00:30:11,440
Speaker 4: an observer, So that I, as a documentarian observing fraud,

478
00:30:12,400 --> 00:30:13,960
Speaker 4: was therefore a party to fraud.

479
00:30:14,200 --> 00:30:19,920
Speaker 1: That's something that could really undermine quite a bit of investigative, documentary,

480
00:30:20,000 --> 00:30:21,680
Speaker 1: filmmaking or journalism.

481
00:30:22,080 --> 00:30:25,360
Speaker 4: You know, you have one of the largest corporations in

482
00:30:25,440 --> 00:30:30,360
Speaker 4: America threatening to bring criminal charges against you or intimating

483
00:30:30,480 --> 00:30:33,640
Speaker 4: I should say, you know, it was scary, and luckily

484
00:30:33,760 --> 00:30:37,080
Speaker 4: that didn't go anywhere. But I remember turning to my

485
00:30:37,160 --> 00:30:39,160
Speaker 4: wife at one point and saying, you know, if something

486
00:30:39,200 --> 00:30:44,120
Speaker 4: doesn't turn around, we could lose everything. Again, I wasn't

487
00:30:44,160 --> 00:30:47,360
Speaker 4: being sued for libel or defamation. I wasn't being sued

488
00:30:47,480 --> 00:30:51,160
Speaker 4: for wrongdoing. I was defending the turning over of my

489
00:30:51,280 --> 00:30:55,360
Speaker 4: footage to an interested party in somebody else's litigation. And

490
00:30:55,880 --> 00:30:58,720
Speaker 4: you know, it took a lot out of me.

491
00:31:02,280 --> 00:31:05,640
Speaker 1: Ultimately, the courts didn't think Berlinger's deal memo or the

492
00:31:05,680 --> 00:31:09,040
Speaker 1: fact that he had ignored the vast majority of Donziger's

493
00:31:09,080 --> 00:31:11,600
Speaker 1: notes outweighed the fact that he had changed this one

494
00:31:11,720 --> 00:31:14,920
Speaker 1: scene and that Donziger had initially pitched him the story.

495
00:31:15,200 --> 00:31:17,479
Speaker 1: The Second Circuit Court of Appeals ruled that he had

496
00:31:17,520 --> 00:31:20,320
Speaker 1: to handover his outtakes, although he was able to narrow

497
00:31:20,360 --> 00:31:22,560
Speaker 1: that request down a little bit. He had to hand

498
00:31:22,600 --> 00:31:23,640
Speaker 1: over his computer too.

499
00:31:24,040 --> 00:31:26,800
Speaker 4: I mean, here's an example that just still makes my

500
00:31:26,960 --> 00:31:31,680
Speaker 4: head spin. After I lost the footage case. They then

501
00:31:31,880 --> 00:31:37,640
Speaker 4: used the footage to justify getting my laptop the contents

502
00:31:37,680 --> 00:31:41,120
Speaker 4: of my computer, and so these discovery and I lost,

503
00:31:41,720 --> 00:31:45,560
Speaker 4: you know, I appealed, I lost, and you know, these

504
00:31:45,680 --> 00:31:49,160
Speaker 4: discovery experts walked into my office, you know, wearing skinny

505
00:31:49,200 --> 00:31:52,200
Speaker 4: black ties like men in black. It was just really bizarre.

506
00:31:53,320 --> 00:31:56,360
Speaker 4: Me and several others on the team had the handover

507
00:31:56,480 --> 00:32:00,800
Speaker 4: our computers where they sucked down the entire higher contents

508
00:32:00,880 --> 00:32:01,680
Speaker 4: of my laptop.

509
00:32:01,880 --> 00:32:05,400
Speaker 1: The court had approved about one hundred key search terms,

510
00:32:05,920 --> 00:32:08,360
Speaker 1: but some of them were very vague, like, for example,

511
00:32:08,760 --> 00:32:11,280
Speaker 1: because one of the experts who had worked on the

512
00:32:11,360 --> 00:32:16,000
Speaker 1: case in Ecuador was named Charles Kombacher, Charles was a

513
00:32:16,080 --> 00:32:16,640
Speaker 1: search term.

514
00:32:17,560 --> 00:32:17,760
Speaker 3: Well.

515
00:32:17,920 --> 00:32:22,160
Speaker 1: Berlinger's financial account was with Charles Schwab, and he didn't

516
00:32:22,240 --> 00:32:25,479
Speaker 1: want Chevron to have access to all of his financial files,

517
00:32:25,640 --> 00:32:27,960
Speaker 1: so he had to make something called a privileged log,

518
00:32:28,200 --> 00:32:31,160
Speaker 1: which meant he had to pay lawyers lots of money

519
00:32:31,320 --> 00:32:33,800
Speaker 1: to go through all of the documents on all of

520
00:32:33,880 --> 00:32:36,760
Speaker 1: his devices and prove to the court that things like

521
00:32:36,840 --> 00:32:39,960
Speaker 1: bank statements and love letters to his wife and various

522
00:32:39,960 --> 00:32:42,800
Speaker 1: other personal items should not be handed over to Chevron

523
00:32:42,840 --> 00:32:43,320
Speaker 1: as part of.

524
00:32:43,360 --> 00:32:47,720
Speaker 4: This case, and I had to pay my lawyers lots

525
00:32:47,760 --> 00:32:51,800
Speaker 4: of money to go through all the things that were

526
00:32:51,920 --> 00:32:55,360
Speaker 4: captured by these search terms and prove to the court

527
00:32:55,560 --> 00:32:59,960
Speaker 4: why those are privileged communications or irrelevant communications that shouldn't

528
00:32:59,960 --> 00:33:02,600
Speaker 4: be turned over to Chevron. I mean it was. It

529
00:33:02,720 --> 00:33:04,280
Speaker 4: was an insane process.

530
00:33:05,080 --> 00:33:08,080
Speaker 1: The cost of that kind of litigation is just not

531
00:33:08,360 --> 00:33:12,680
Speaker 1: something most journalists or filmmakers can afford. Just to put

532
00:33:12,720 --> 00:33:17,480
Speaker 1: this in perspective, the movie Crude costs about one point

533
00:33:17,560 --> 00:33:21,520
Speaker 1: two million dollars to make, and Crude the lawsuit ended

534
00:33:21,600 --> 00:33:26,200
Speaker 1: up costing an estimated one point three million dollars, So

535
00:33:26,320 --> 00:33:29,280
Speaker 1: this kind of thing can be crushing financially. And keep

536
00:33:29,320 --> 00:33:32,280
Speaker 1: in mind, Berliner wasn't even really the focus of this

537
00:33:32,440 --> 00:33:36,360
Speaker 1: Rico case. He wasn't being accused of doing anything himself.

538
00:33:36,480 --> 00:33:39,600
Speaker 1: He just didn't want to hand over his footage to

539
00:33:39,680 --> 00:33:44,000
Speaker 1: be used in someone else's case. This type of scorchhar strategy.

540
00:33:44,120 --> 00:33:46,800
Speaker 1: It was exactly the sort of thing that the lawyers

541
00:33:46,880 --> 00:33:49,840
Speaker 1: and the pr experts had been brought on by Chevron

542
00:33:49,960 --> 00:33:53,680
Speaker 1: to do. Even just having these sort of army of lawyers,

543
00:33:53,760 --> 00:33:57,320
Speaker 1: you need to scour footage and notice a six second

544
00:33:57,440 --> 00:34:00,600
Speaker 1: difference between the sundance and Netflix ver versions of the

545
00:34:00,680 --> 00:34:03,200
Speaker 1: film requires pretty deep pockets.

546
00:34:03,840 --> 00:34:05,720
Speaker 4: I mean, I give the Chevron lawyers a lot of

547
00:34:05,760 --> 00:34:08,880
Speaker 4: credit for noticing it, because it's like astounding to me

548
00:34:09,000 --> 00:34:13,120
Speaker 4: that they did. But it ended up being the lynchpin

549
00:34:13,320 --> 00:34:18,080
Speaker 4: that turned this case, meaning my case about having to

550
00:34:18,120 --> 00:34:22,720
Speaker 4: turn all my footage over, because they used that fact

551
00:34:22,880 --> 00:34:26,680
Speaker 4: quite successfully to discredit me as a journalist, which in turn,

552
00:34:28,360 --> 00:34:32,000
Speaker 4: you know, made me not protected as a journalist under

553
00:34:32,040 --> 00:34:33,120
Speaker 4: the journalist's privilege.

554
00:34:33,560 --> 00:34:38,320
Speaker 1: That's the thing. Bruiner doesn't even necessarily blame Mastro or

555
00:34:38,440 --> 00:34:41,200
Speaker 1: Gibson Dune for what they did. They were doing what

556
00:34:41,320 --> 00:34:44,080
Speaker 1: they were hired to do. But he says these kinds

557
00:34:44,080 --> 00:34:47,640
Speaker 1: of aggressive tactics only underscore why he felt he needed

558
00:34:47,640 --> 00:34:49,960
Speaker 1: to make this documentary in the first place.

559
00:34:50,360 --> 00:34:53,000
Speaker 4: Look, they did everything that they should do to defend

560
00:34:53,040 --> 00:34:57,200
Speaker 4: their client, but it's once again, it's illustrative of you know,

561
00:34:57,440 --> 00:35:01,960
Speaker 4: the focus was changed from the underlying all to demonizing

562
00:35:02,080 --> 00:35:05,480
Speaker 4: anybody who had anything to do with the plaintiffs and

563
00:35:05,600 --> 00:35:10,880
Speaker 4: to take the eye off of the central question of

564
00:35:11,400 --> 00:35:15,920
Speaker 4: the damage and that we have a system of justice

565
00:35:16,040 --> 00:35:18,200
Speaker 4: where deep pockets prevail.

566
00:35:34,200 --> 00:35:37,520
Speaker 1: These outtakes were used to compel all sorts of additional

567
00:35:37,600 --> 00:35:40,800
Speaker 1: materials from Donziger and the rest of the team, including

568
00:35:40,880 --> 00:35:44,080
Speaker 1: week's worth of depositions. And again, this was all happening

569
00:35:44,239 --> 00:35:47,800
Speaker 1: before the verdict came out in Ecuador. It formed the

570
00:35:47,840 --> 00:35:51,160
Speaker 1: basis of this racketeering or rico suit that was filed

571
00:35:51,200 --> 00:35:54,360
Speaker 1: against the plaintiffs and their attorneys just a couple weeks

572
00:35:54,440 --> 00:36:08,279
Speaker 1: before they won their case in Ecuador. We're going to

573
00:36:08,360 --> 00:36:11,080
Speaker 1: get into the details of that next time.

574
00:36:11,360 --> 00:36:12,759
Speaker 6: I think if I had it to do over, I

575
00:36:12,800 --> 00:36:17,040
Speaker 6: would advise my client to completely protest the trial. And

576
00:36:17,200 --> 00:36:20,920
Speaker 6: unfortunately Steven didn't have that option because Stephen lives in

577
00:36:20,960 --> 00:36:23,480
Speaker 6: New York and he's subject to the jurisdiction of the

578
00:36:23,560 --> 00:36:26,360
Speaker 6: court and he has to defend the case. But my

579
00:36:26,560 --> 00:36:29,480
Speaker 6: clients did have that option, and that was not a

580
00:36:29,560 --> 00:36:30,759
Speaker 6: card we chose to play.

581
00:36:42,920 --> 00:36:47,560
Speaker 1: Drilled is an original production of the Critical Frequency Podcast Network.

582
00:36:48,040 --> 00:36:52,160
Speaker 1: The show was created, reported, and written by me Amy Westervelt.

583
00:36:52,520 --> 00:36:56,280
Speaker 1: My co reporter this season is Karen Savage. Our editor

584
00:36:56,480 --> 00:37:01,000
Speaker 1: is Julia Ritchie. The show's editorial consultant is Rika Murphy.

585
00:37:01,440 --> 00:37:07,240
Speaker 1: Mixing and mastering by Mark Bush, original score by b Beman,

586
00:37:07,880 --> 00:37:11,239
Speaker 1: fact checking by Wouo dan Yan. Our artwork for this

587
00:37:11,400 --> 00:37:15,640
Speaker 1: season was done by the super talented Matt Fleming. Special

588
00:37:15,719 --> 00:37:20,239
Speaker 1: thanks to Trevor Gowen and Emily Gertz. If you are

589
00:37:20,360 --> 00:37:24,320
Speaker 1: a Patreon subscriber, thank you. Your money is helping to

590
00:37:24,400 --> 00:37:27,480
Speaker 1: make this season. And as a special thank you to

591
00:37:27,560 --> 00:37:32,920
Speaker 1: Patreon members, we're providing a variety of benefits, including bonus

592
00:37:33,080 --> 00:37:37,399
Speaker 1: content and early access to episodes in this season. If

593
00:37:37,480 --> 00:37:39,400
Speaker 1: that sounds appealing to you, or you just want to

594
00:37:39,400 --> 00:37:42,800
Speaker 1: support our work, go over to Patreon dot com, slash

595
00:37:42,920 --> 00:37:46,960
Speaker 1: drilled and sign up. We also have some merch associated

596
00:37:47,000 --> 00:37:50,160
Speaker 1: with that. You can find stories, documents, and photos related

597
00:37:50,200 --> 00:37:53,960
Speaker 1: to this season on our website at drillednews dot com.

598
00:37:54,360 --> 00:37:56,759
Speaker 1: That's it for this time, Thanks for listening and we'll

599
00:37:56,800 --> 00:38:21,440
Speaker 1: see you next week. It's Amy again. Here's David Lammy Labor,

600
00:38:21,600 --> 00:38:25,560
Speaker 1: MP of Tottenham, England, on why climate justice can't happen

601
00:38:25,640 --> 00:38:28,759
Speaker 1: without racial justice. You can find more episodes like this

602
00:38:28,880 --> 00:38:32,800
Speaker 1: one on Ted's podcast Countdown wherever you listen.

603
00:38:34,080 --> 00:38:37,480
Speaker 7: My parents' home country of Guyana is one of the

604
00:38:37,560 --> 00:38:41,000
Speaker 7: most vulnerable countries on Earth to the effects of climate change.

605
00:38:42,200 --> 00:38:46,319
Speaker 7: So far, Guyana has contributed relatively little to the climate emergency,

606
00:38:46,920 --> 00:38:49,800
Speaker 7: but it's one of the countries facing the most serious

607
00:38:49,920 --> 00:38:53,960
Speaker 7: threats from it. While the annual carbon dioxide emissions per

608
00:38:54,040 --> 00:38:57,759
Speaker 7: head in the United States is a staggering sixteen point

609
00:38:57,880 --> 00:39:01,560
Speaker 7: five metric tons, in guy it's just two point six.

610
00:39:02,320 --> 00:39:06,600
Speaker 7: It is a pattern repeated across the globe. Those countries

611
00:39:06,680 --> 00:39:10,480
Speaker 7: that have contributed least to the climate breakdown, mainly in

612
00:39:10,560 --> 00:39:14,360
Speaker 7: the Global South, will suffer the most from floods, droughts,

613
00:39:14,600 --> 00:39:19,120
Speaker 7: and rising temperatures. This is a pattern of suffering with

614
00:39:19,280 --> 00:39:24,120
Speaker 7: a long history. The exploitation of our planet's natural resources

615
00:39:24,200 --> 00:39:28,240
Speaker 7: have always been tied to the exploitation of people of color.

616
00:39:28,840 --> 00:39:33,080
Speaker 7: The logic of colonization was to extract valuable resources from

617
00:39:33,120 --> 00:39:37,560
Speaker 7: our planet through force, paying no attention to its secondary effects.

618
00:39:38,120 --> 00:39:43,440
Speaker 7: The climate crisis is, in a way, colonialism's natural conclusion.

619
00:39:44,440 --> 00:39:47,600
Speaker 7: The solution is to build a new coalition made up

620
00:39:47,680 --> 00:39:51,920
Speaker 7: of all the groups most affected by this emergency. Black

621
00:39:51,960 --> 00:39:55,480
Speaker 7: people in American cities who are already protesting that they

622
00:39:55,520 --> 00:39:59,560
Speaker 7: cannot breathe, people of color in Guyana watching sea levels

623
00:39:59,640 --> 00:40:03,319
Speaker 7: rise to the point where many of their homes become uninhabitable.

624
00:40:03,800 --> 00:40:07,200
Speaker 7: Young people in places like Tottenham, London, afraid of the

625
00:40:07,320 --> 00:40:10,560
Speaker 7: world that they will grow old in and progressive allies

626
00:40:10,840 --> 00:40:14,240
Speaker 7: from all nations, of all races, religions, creeds, and ages

627
00:40:14,600 --> 00:40:18,920
Speaker 7: on their side, all demanding recognition that climate justice is

628
00:40:19,080 --> 00:40:23,719
Speaker 7: linked to racial justice, social justice, and intergenerational justice too,