Speaker 1: Before we get started today, a quick note about another show.
Speaker 1: I know you probably care about climate change if you're
Speaker 1: listening to this podcast, so I want to recommend another one
Speaker 1: that's sharing some of the most powerful ideas about the
Speaker 1: climate crisis. It's called Countdown, and it's part of Ted's
Speaker 1: global initiative to champion and accelerate solutions to the climate crisis,
Speaker 1: turning ideas into action with talks from Prince William, decarbonization
Speaker 1: strategist Monica Araya, environmental activist Severn Cullis, Suzuki, and many
Speaker 1: many more. You can check out Countdown wherever you listen
Speaker 1: to podcasts, and stick around after this episode to hear
Speaker 1: clip from the show on why climate justice can't happen
Speaker 1: without racial justice.
Speaker 2: If you were watching ABC seven US at eleven, two
Speaker 2: activists spearheading a landmark class action lawsuit against Chevron are
Speaker 2: receiving the world's most prestigious environmental honor today. Pablodo and
Speaker 2: Luisienza are accepting the Goldman Prize in San Francisco today.
Speaker 2: It is for their efforts to make Chevron clean up
Speaker 2: what some environmentalists call the world's worst oil related disaster.
Speaker 1: This is a clip from the documentary Crude the Real
Speaker 1: Price of Oil, about the Chevron litigation in Ecuador. This
Speaker 1: particular scene shows what happened when Ecuadorian attorney Pablo Fajardo
Speaker 1: and activist Luisianza came to San Francisco to accept the
Speaker 1: Goldman Environmental Prize. Remember we mentioned this a couple episodes.
Speaker 2: Back tonight, Chevron is finding the claim and the two
Speaker 2: men who they say have made up their story for
Speaker 2: their own financial gain. They're frankly a group of con
Speaker 2: men that have put one past the Goldmans and have
Speaker 2: been put putting it past the media for quite some
Speaker 2: time now too.
Speaker 3: Concider and investiguing Naida.
Speaker 4: If you deem so, please to investigate the life of Pablo.
Speaker 3: Fajardo, Investiga navidad.
Speaker 4: And investigate which everyone's life is.
Speaker 3: That's key one of investigingndrest a king time.
Speaker 4: Once you investigate, you'll see who is lying.
Speaker 3: In this case.
Speaker 1: We mentioned last time that one of the many subpoenas
Speaker 1: that Chevron's attorney Randy Mastro filed when Chevron brought on
Speaker 1: his firm Gibson Dunn to help with their defense, was
Speaker 1: for outtakes from this film Crude. It was a big
Speaker 1: moment in the case, and today we're going to dig
Speaker 1: into it in detail with the documentary's filmmaker, Joe Berlinger.
Speaker 1: Berlinger is a pioneering documentary filmmaker who's made several groundbreaking
Speaker 1: films both before and since Crude, including Paradise Lost, Brothers Keeper, Metallica,
Speaker 1: Some Kind of Monster, and more recently, Conversations with a Killer,
Speaker 1: The Ted Bundy Tapes and Jeffrey Epstein Filthy Rich, both
Speaker 1: for Netflix.
Speaker 4: Hey Bob, I can I call you later? I know
Speaker 4: you're wishing me a happy birthday, but I'm in the
Speaker 4: middle of a is.
Speaker 3: It your birthday?
Speaker 2: Today?
Speaker 3: Birthday?
Speaker 4: Thank God, happy birthday.
Speaker 1: I started bugging Berlinger to talk to us for this
Speaker 1: season months ago, and it took a lot of convincing,
Speaker 1: but ultimately he agreed to do it, and on his birthday,
Speaker 1: no less. It's no wonder he was hesitant. Mastro and
Speaker 1: his team made Berlinger's life hell for a couple of
Speaker 1: years when they subpoenaed his outtakes. Berlinger fought it. As
Speaker 1: an independent documentarian. He figured he had First Amendment protections
Speaker 1: and journalistic privilege, and he didn't want to set a
Speaker 1: bad precedent for his industry or for journalists in general.
Speaker 1: He paid a heavy price for that fight, literally and figuratively.
Speaker 1: That story coming up right after this quick break. Welcome
Speaker 1: back to Drill Season five, l Ucha Longa. I'm Amy Westerveldt.
Speaker 1: Today we're talking to documentary film director Joe Berlinger, and
Speaker 1: we're digging into the ramp up to this reco case
Speaker 1: that was filed just before the verdict came out in Ecuador.
Speaker 1: We talked about that a bit at the end of
Speaker 1: the last episode. Here's Berlinger describing how he started to
Speaker 1: make this film in the first place.
Speaker 4: One of the ironies of this film having had such
Speaker 4: a deep impact on my life, as I never wanted
Speaker 4: to make it in the first place.
Speaker 1: In order to get outtakes from Crude, Randy Mastro had
Speaker 1: to show that Berlinger was neither independent nor a journalist.
Speaker 1: He did that with two key accusations, first that the
Speaker 1: film was solicited by the plaintiff's attorneys, and second that
Speaker 1: the plaintiff's attorneys had editorial input. Here's Berlinger.
Speaker 4: Steven Donziger, a plaintiffs lawyer, had a mutual friend who
Speaker 4: knew me, and Stephen Donziger came to my office in
Speaker 4: New York in I think two thousand and five, and
Speaker 4: pitched me on the idea of making a film, but
Speaker 4: obviously not pitching me to work for them. They knew
Speaker 4: I was an independent journalist and they just so believed
Speaker 4: in the story that they wanted a filmmaker of my
Speaker 4: stature to take a look at the story. And initially
Speaker 4: I was very hesitant.
Speaker 1: Now keep in mind this was two thousand and five.
Speaker 1: Streaming was not really a thing. Netflix was still mostly
Speaker 1: just mailing people. DBDs and documentaries were gaining in popularity,
Speaker 1: but this more recent boom was nowhere in sight. It
Speaker 1: was hard to sell documentary at the time, much less
Speaker 1: one in Spanish about an environmental issue in a country
Speaker 1: far away from the US.
Speaker 4: They were just pitching me. They thought this would make
Speaker 4: a great film. It was an interesting period to step
Speaker 4: into the case. The trial had started an Ecuador in
Speaker 4: two thousand and three and had kind of petered out,
Speaker 4: and they were waiting for these judicial field inspections to
Speaker 4: start in the coming year, and so pitched me several
Speaker 4: times about it, and I was a little reluctant, and
Speaker 4: Donziger said to me, look, let me take you down
Speaker 4: and show you the region, you know, the famous Toxi
Speaker 4: tour that you know so many people have taken.
Speaker 1: You might remember us mentioning the Toxi tour a few
Speaker 1: episodes back when we met Donald Moncayo. It was a
Speaker 1: tour that the plaintiffs took many journalists and politicians on
Speaker 1: over the years of the various oil pits Texico had
Speaker 1: left in the Ecuadorian Amazon.
Speaker 4: And he was very persistent. You know, they really thought
Speaker 4: I was the right guy because I had made two
Speaker 4: well known criminal justice films, Paradise Lost and Brothers Keeper.
Speaker 4: And initially I was just reluctant, and Donziger was somewhat
Speaker 4: relentless in trying to win me over to come down
Speaker 4: and take Toxi tour. And so several months after that
Speaker 4: first meeting he called again and said, I really want
Speaker 4: to show you the region. And I said, look, I
Speaker 4: will go down and check it out. It sounds like
Speaker 4: an interesting personal experience. But you know, I don't want
Speaker 4: to mismanage your expectations. I have lots of hesitation and
Speaker 4: doubt about whether or not I want to make this film.
Speaker 4: I have other projects happening. I think this one will
Speaker 4: be a difficult one. To raise money for But I
Speaker 4: will take the Toxi tour, although it wasn't called that
Speaker 4: then to me, But I will go down and take
Speaker 4: the tour of the region, as long as you understand
Speaker 4: that I'm not promising you that I'm going to commit
Speaker 4: to making a film about it.
Speaker 1: So he went, and when he got to the Amazon
Speaker 1: and Ecuador, Berlinger says he was shocked by what he saw.
Speaker 4: I was just blown away by the devastation. I mean,
Speaker 4: here we are in a pristine or what was supposed
Speaker 4: to be, this pristine region of the world that everyone
Speaker 4: talks about the Amazon being so special and magical, and
Speaker 4: all I saw was gas flares out of you know,
Speaker 4: oil refineries, these pits, these unline pits all over the landscape,
Speaker 4: people living over these pits, people dying of cancer. I
Speaker 4: was horrified. It was kind of my wake up call.
Speaker 4: And I remember, in particular the moment that I just
Speaker 4: felt like I had to make this film is we
Speaker 4: were paddling by canoe to Durano, which is the ancestral
Speaker 4: land of the Coofon, where prior to Texico's arrival, there
Speaker 4: were about fifteen thousand Coofon and now there were just
Speaker 4: hundreds of Cofon living on their ancestral lands. And as
Speaker 4: we pulled up, we were going to have a meeting
Speaker 4: with some of the tribal leaders. And as we pulled
Speaker 4: up to the shore to get out, I looked to
Speaker 4: my left and there was a family, several families, sitting
Speaker 4: around a fire, eating canned tuna fish out of these
Speaker 4: giant imagine you know, these big industrial kind of vats
Speaker 4: of tuna that that a restaurant might buy at whatever
Speaker 4: the Ecuadorian equivalent of costco would be. And here we
Speaker 4: were in the middle of the Amazon rainforest, you know,
Speaker 4: with water based people, the Cofon, and these these families
Speaker 4: were eating canned tuna fish because there was no there
Speaker 4: was no fish in there in their rivers, and I
Speaker 4: just I just felt like, you know, something's got.
Speaker 3: To be done.
Speaker 1: He didn't know how he was going to do it.
Speaker 1: The Bilander couldn't shake the feeling that this film needed
Speaker 1: to be made and that he needed to be the
Speaker 1: one to make it.
Speaker 4: I got home, and I went upstairs and tucked my
Speaker 4: child into bed, and went to the tap and took
Speaker 4: a drink of water and looked at the glass of
Speaker 4: water and thought to myself. You know, these luxuries that
Speaker 4: we take for granted, these poor people, these water based people,
Speaker 4: have polluted water. You know, they use water for transportation,
Speaker 4: for drinking, for bathing, for cleaning. And I just I
Speaker 4: just felt like the universe tapping me on the shoulder, saying,
Speaker 4: you know, you, for whatever reason, you're the guy who
Speaker 4: has to make this movie, and don't worry about fundraising.
Speaker 4: And in fact, I started the movie with my own
Speaker 4: resources because I just I just felt like somebody had
Speaker 4: to tell this story because I was just I could
Speaker 4: not believe what I saw.
Speaker 5: It was.
Speaker 4: It was horrifying.
Speaker 1: Berliner says the legal proceedings provided some narrative, structure and
Speaker 1: drama to the story, but he was never really interested
Speaker 1: in making a film about a lawsuit or sighting with
Speaker 1: one side or the other.
Speaker 4: You know, my style of filmmaking is to show both
Speaker 4: sides of the story and let the viewer decide. And
Speaker 4: the plaintiffs actually, when they saw the movie at Sundance,
Speaker 4: were kind of shocked at how much Chevron's point of
Speaker 4: view was in the film. I actually had a much
Speaker 4: more thirty thousand foot view of the situation, which was
Speaker 4: as much as I admire the historic nature of this case.
Speaker 4: As much as it as this David and Goliath's story
Speaker 4: was impressive cinematically and as impressive as it is that
Speaker 4: indigenous people were actually holding Chevron to account for the
Speaker 4: actions of Texaco in this historic lawsuit, My interest in
Speaker 4: this case was a little different, and it's why I
Speaker 4: show both sides in the movie.
Speaker 1: It's true you hear from a lot of different attorneys
Speaker 1: and scientists and other kinds of experts throughout the film.
Speaker 1: Here's an example where Berliner interviewed Ricardo raised Vega, the
Speaker 1: longtime Chevron attorney in Ecuador. You've heard his name come
Speaker 1: up a few times this season.
Speaker 5: My name is Ricardo res Vega, being with the company
Speaker 5: for thirty years, practicing law in different countries and jurisdictions.
Speaker 5: My involvement with Ecuador started in nineteen ninety one, when
Speaker 5: our concession was about to expire. We try really to
Speaker 5: get an extension for another ten years. We proposed an
Speaker 5: additional investment in Ecuador. The government at the time basically
Speaker 5: thought that they didn't want to do that, and they said, well,
Speaker 5: we want to have one hundred percent ownership of the
Speaker 5: Consortian air fields. It's known that Patrick Calador has had
Speaker 5: a very poor operational record.
Speaker 4: I mean, the movie's actually quite balanced, because for me,
Speaker 4: there is something deeply disturbing about an environmental calamity of
Speaker 4: this magnitude, the area the size of Rhode Island, more
Speaker 4: oil dumped than you know, thirty times more oil, as
Speaker 4: I understand it, dumped than the Exxon Valdies incident. And
Speaker 4: why is it that this environmental calamity is being held
Speaker 4: hostage to a protracted legal proceeding. If this was you know,
Speaker 4: the BP oil spill or the spill outside of Santa Barbara,
Speaker 4: if this was on the shores of the United States
Speaker 4: or European country, there would be immediate environmental remediation and
Speaker 4: then the legal proceedings would figure out who's responsible, as
Speaker 4: happened in this country many times. Meanwhile, these poor people
Speaker 4: have been held hostage for thirty years to this case,
Speaker 4: and that really that was the point of the film.
Speaker 4: That's why I show both sides. I let each side
Speaker 4: have their say. But to me, there's something even more
Speaker 4: fundamentally wrong that the world. You know, we know how
Speaker 4: important the Amazon is to the Earth's ecosystem, and we
Speaker 4: are destroying the Amazon. As we all know, and oil
Speaker 4: extraction is a dirty, messy business, and if this incident
Speaker 4: had happened anywhere where white people live, it would have
Speaker 4: been cleaned up, you know, and then they would have
Speaker 4: figured out the culpability later. My point of view was, look,
Speaker 4: I am not smart enough to tell you whether or
Speaker 4: not Chevron has wrapped itself up in enough legal arguments
Speaker 4: to be legally correct in this situation. But there is
Speaker 4: a moral issue here. With such devastation, why are we
Speaker 4: not cleaning it up now and figuring out the legal
Speaker 4: responsibility later. That's really is the point of view of
Speaker 4: the movie, and why the irony that I was castigated
Speaker 4: as a shill and a propagandist for the plaintiffs is
Speaker 4: just so fundamentally wrong.
Speaker 1: One of the strategies Gibson duntook to try to undermine
Speaker 1: the case in Ecuador was to pit the plaintiff's attorneys
Speaker 1: against each other. We're going to get into that strategy
Speaker 1: in a bit more detail in the next episode. But
Speaker 1: Berlinger had a bird's eye view of some of the
Speaker 1: natural tensions between the Ecuadorian and American attorneys, things that
Speaker 1: would have been easy for a master litigator like Mastro
Speaker 1: to exploit.
Speaker 4: I mean, from a cinematic standpoint, you couldn't have asked
Speaker 4: for a better pairing of Pablo and Steven Donziger. Pablo
Speaker 4: is a very impressive guy. I mean, you know, he
Speaker 4: grew up in that region, he worked in the oil fields.
Speaker 4: He was impoverished, a self educated lawyer, finding himself at
Speaker 4: the center of one of the most historic and biggest
Speaker 4: environmental lawsuits in history.
Speaker 1: We spoke with Pablo for this season, and unfortunately we
Speaker 1: were talking to Pablo over the Internet and the connection
Speaker 1: wasn't great, so the recording hasn't turned out that well.
Speaker 1: So instead I'm going to play another clip from Crude
Speaker 1: because it shows you kind of how Pablo interacted with
Speaker 1: the plaintiffs, what he was doing on the ground in Ecuador.
Speaker 1: This is a scene where Fajardo is speaking with members
Speaker 1: of the Sequoya tribe. That's the tribe that Houstino Piaguaje
Speaker 1: is a leader of. We've heard from him a couple
Speaker 1: of times this season.
Speaker 3: A Primierra.
Speaker 1: He says, first of all, thank you for the welcome,
Speaker 1: thank you for having us, I mean the thanks also
Speaker 1: to the Sequoya village that's signed on to the lawsuit.
Speaker 1: These contributions have allowed the trial to move forward.
Speaker 4: Paired with Donziger, you know, is a big guy, big
Speaker 4: in many ways. He has a big presence. He's physically
Speaker 4: largs and so Donziger was a very large presence and
Speaker 4: Pablo was a very quiet but commanding presence. I mean
Speaker 4: he has he just had this natural charisma, a quietness
Speaker 4: to him. But it's hard to explain, but he just
Speaker 4: he just oozed with morality and somebody on a mission.
Speaker 4: And the two of them together were quite an interesting parents.
Speaker 4: You know, this quiet, serious, committed chay Gavara kind of
Speaker 4: figure who is a man of the people, who is
Speaker 4: not motivated by finances, who really is a hero in
Speaker 4: my opinion, whether you believe in the cases merits or not,
Speaker 4: he is a hero. And Donziger, you know, also is heroic,
Speaker 4: but I think is a much more complicated figure, wrong
Speaker 4: and dynamic presence who drove the case forward. There would
Speaker 4: have been no case without him. But he's a package
Speaker 4: and there was you know, there was some stuff that
Speaker 4: I think rubbed the Ecuadorians the wrong way, and it
Speaker 4: was a very complicated relationship that I observed, you know,
Speaker 4: not the least of which is something that's not Donziger's fault.
Speaker 4: But this whole white white savior thing in a country
Speaker 4: that was trying to throw off the yoke of imperial Yeah, totally.
Speaker 4: Here you had this big, tall, aggressive white guy telling
Speaker 4: them what to do. And on the one hand, they
Speaker 4: needed that council. But on the other hand, I think
Speaker 4: it rubbed people the wrong way as well. But there
Speaker 4: would have been no case without Donziger.
Speaker 1: Mastro argued that there would have been no documentary without
Speaker 1: Donziger either. And Donziger diditch Berlinger the idea of doing
Speaker 1: a documentary, and he did show him around in Ecuador.
Speaker 1: But importantly, Berlander says he paid his own way for
Speaker 1: that initial toxi toward trip that convinced him to make
Speaker 1: the film. And also this whole thing of someone pitching
Speaker 1: you a story and then encouraging you to go check
Speaker 1: it out more. It's extremely common. People bitch me stories
Speaker 1: all the time. They like me up with sources or information.
Speaker 1: Whistleblowers have leaked documents to me. Former excellent scientists have
Speaker 1: had me over to talk to them at length. None
Speaker 1: of that means that I work for any of these people,
Speaker 1: or that covering a story that I get pitched somehow
Speaker 1: erodes my First Amendment rights as a journalist.
Speaker 4: In my court papers where I lost my subpoena battle,
Speaker 4: they deemed I was not a journalist because Donziger solicited
Speaker 4: the movie from me and used verbiage to make it
Speaker 4: seem like somehow they paid for the movie or they
Speaker 4: aired me to do the movie. But the court disregarded
Speaker 4: the fact that I had a DGA deal memo that
Speaker 4: said I have final cut.
Speaker 1: The DGA is the Director's Guild of America. That's the
Speaker 1: labor union for film and TV directors.
Speaker 4: I had a DGA deal memo that said I have
Speaker 4: final cut. That the release that Stephen Donziger and all
Speaker 4: the other plaintiff signed gave me final cut of the movie.
Speaker 4: They had no editorial rights to the film. They did
Speaker 4: not pay me to make the film. It was an
Speaker 4: independently financed film.
Speaker 1: The court ignored the deal memo with respect to the
Speaker 1: other argument in Master's subpoena requests too, that the plaintiff's
Speaker 1: attorneys had editorial input on the film. That argument was
Speaker 1: made on the basis of one key thing.
Speaker 3: Here's mastro So Joe Barlanchard produces Crude and it shows
Speaker 3: on the festival circuit. It yeah, then it comes out
Speaker 3: on Netflix, and a curious thing was picked up by
Speaker 3: the Chevron team. There was a change in scenes from
Speaker 3: the film festival version to the Netflix version, and the
Speaker 3: scene that had been changed were deleted was a scene
Speaker 3: that showed someone supposedly working as an independent expert for Cabrera,
Speaker 3: was in fact meeting with the plaintiffs lawyers and their
Speaker 3: clients at a session that Joe Berlinger was Steve Donziger
Speaker 3: in attendance with that Joe Berlinger filmed, and then by
Speaker 3: the time it came out on Netflix, that scene had
Speaker 3: been deleted, so you could so you could still hear
Speaker 3: the audio, because the audio was one of the lawyers
Speaker 3: in Ecuador who was working with Donziger doing the speaking
Speaker 3: and donzig are doing the speaking, But the image of
Speaker 3: Cabrera's assistant there at that meeting when he's supposed to
Speaker 3: be operating objectively and independently and meeting with the plaintas
Speaker 3: lawyers and Donziger and what appeared to be some of
Speaker 3: their clients, that scene, that video was deleted.
Speaker 4: That is largely true, but it lacks context.
Speaker 1: Berlinger argued this point in court as well.
Speaker 4: When you go to Sundance often a film is not
Speaker 4: quite finished. You get in great, they tell you by
Speaker 4: Thanksgiving you rush you finish the film. Of course you're
Speaker 4: showing a finished film.
Speaker 1: So just to be clear, you find out at Thanksgiving
Speaker 1: at the end of November if your film has made
Speaker 1: it into Sundance, and Sundance is in January, which means
Speaker 1: you have just a few weeks really to lock your
Speaker 1: film in before doing all of the sort of post
Speaker 1: production things that are required to finish a film and
Speaker 1: show it at the festival.
Speaker 4: It often, you know, is not The final version of
Speaker 4: the film, Brothers Keeper was premiered at Sundance, and you know,
Speaker 4: sitting with an audience, we realized needed some changes and
Speaker 4: it was twenty minutes too long. So the final version
Speaker 4: of Brothers Keeper differed from the sun Dance version. In fact,
Speaker 4: virtually every film I have brought to Sundance we make
Speaker 4: tweaks afterwards. So we showed the movie at Sundance. Chevron
Speaker 4: was invited to come to Sundance and they declined. The
Speaker 4: plaintiffs came and Donziger at some point sent me a
Speaker 4: ten twelve page memo with all the things he didn't
Speaker 4: like about the film.
Speaker 1: So this tracks with our interactions with Donziger for this
Speaker 1: podcast too. You know, he's a guy who likes to
Speaker 1: control the story, and that's not uncommon, especially when you're
Speaker 1: covering a contentious legal case. Lawyers, in particular, and in
Speaker 1: this case, because he's had so much personal blowback from
Speaker 1: this case, find it useful to make their case in
Speaker 1: the press, and Berlinger was used to dealing with that.
Speaker 1: He had made two other films focused on legal cases.
Speaker 1: Here's Berlinger again explaining how this one change did happen.
Speaker 4: In ninety nine percent of his suggestion, In fact, ninety
Speaker 4: nine point five percent of his suggestions. I disregard it,
Speaker 4: you know. But Pablo in particular was concerned that the
Speaker 4: condensation of chronology, you know, which is what I was
Speaker 4: told by Donziger and by Fajardo, that the condensation of
Speaker 4: chronology in my film made it appear that somebody who
Speaker 4: shouldn't have been in a scene was in a scene,
Speaker 4: and would I consider removing two cutaways? That's the thing
Speaker 4: people have, you know. The implication is that I re
Speaker 4: edited the film and changed scenes. I mean literally two
Speaker 4: cutaways that included the guy from a Oxyon ecologic. I
Speaker 4: believe you know an NGO who later became part of
Speaker 4: Cabrera's independent team, who was at a meeting, and this
Speaker 4: person is sitting in the background. He's not a character
Speaker 4: in the film. Nobody knows who he is with regard
Speaker 4: to the film. It's so inside baseball as to whether
Speaker 4: or not he belongs at this place at this time,
Speaker 4: and admdally, I didn't fully understand the issues, and so
Speaker 4: I removed and like, I feel like this is such
Speaker 4: inside baseball that people may not even understand what I'm
Speaker 4: talking about. But I removed two cutaways. It was one
Speaker 4: of about I can't even give you a number, that
Speaker 4: was probably sixty or seventy notes about what to change
Speaker 4: in my film, alarm over how much Chevron is in
Speaker 4: the movie, all sorts of notes that I was given
Speaker 4: that I'm like, hey, dude, this is my film, and
Speaker 4: I'm not doing these changes. I will make that one change,
Speaker 4: and I think I made one other change that was
Speaker 4: an accuracy issue.
Speaker 1: Ultimately, those changes and the fact that Donziger had pitched
Speaker 1: Berlin or the film in the first place outweighed the context.
Speaker 4: With this full explanation that I gave to the court
Speaker 4: that A, I have final cut. Here's all the paperwork
Speaker 4: to prove I had final cut. B. Here's the ten
Speaker 4: page memo from Donziger in which he's asking me to
Speaker 4: make a zillion changes and I didn't make those changes
Speaker 4: and wrote him a terse email in response saying, Hey,
Speaker 4: I'm not making these changes. I'm the filmmaker. I have
Speaker 4: final cut. All of that could have outweighed you know,
Speaker 4: this idea that somehow because I made a change, I
Speaker 4: wasn't a journalist. You know, in hindsight, it should have
Speaker 4: been a more of a red flag, but at the
Speaker 4: time it just seemed like such a such a trivial detail.
Speaker 4: The irony is that that little trivial detail of removing
Speaker 4: three two second cutaways, or maybe it was two to
Speaker 4: three second cutaways, one or the other, but literally we're
Speaker 4: talking about six seconds of footage.
Speaker 1: The fight over those six seconds and how they defined
Speaker 1: Berlinger's relationship with the plaintiffs dragged on for years and
Speaker 1: really punished Berlinger.
Speaker 4: On several occasions, as my kids were getting off the bus,
Speaker 4: a private detective or seemingly so, somebody in a flashy
Speaker 4: red BMW being as conspicuous as possible, would screech, would
Speaker 4: screech up to our driveway and take photographs of my
Speaker 4: kids getting off the bus and walking up the driveway.
Speaker 4: Now this was during my court proceeding. Can I say
Speaker 4: Chevron was responsible for it? No? Can I say Gibson
Speaker 4: Dunn was responsible for it? No? But it happened. There
Speaker 4: were times where I felt my phone was being tapped.
Speaker 4: I heard the distinct clicks on my phone that just
Speaker 4: didn't sound right. I was investigated by Kroll, a corporate investigator.
Speaker 1: Documentarians and investigative journalists are somewhat prepared for this sort
Speaker 1: of thing. We carry expensive specialty insurance policies, for example,
Speaker 1: and we have lawyers who look things over for us.
Speaker 1: But this was way beyond anything Berlinger ever thought he'd
Speaker 1: be up against, because it.
Speaker 4: Became extremely costly, beyond anything I could have ever imagined.
Speaker 4: My footage was subpoened. I fought lost, appealed lost, and
Speaker 4: then after the footage was turned over, at some point,
Speaker 4: they then went after my computer. I lost, appealed lost,
Speaker 4: and had to turn the contents of my computer over
Speaker 4: as well. And then in addition to that, because and
Speaker 4: this is where the pressure tactics come in, Chevron attorneys
Speaker 4: were intimating to my attorneys that they might seek criminal
Speaker 4: action against me.
Speaker 1: Okay, so this is really worth paying attention to. Berlinger
Speaker 1: wasn't being accused of fraud himself, or of libel or
Speaker 1: various other crimes, but Chevron was hinting that they could
Speaker 1: use misprision. When you observe a fraud, you're supposed to
Speaker 1: have sort of a legal responsibility to report it, and
Speaker 1: if you don't, that's called misprision. The idea that a
Speaker 1: documentary filmmaker could be guilty of this crime simply by
Speaker 1: filming other people who may or may not be engaging
Speaker 1: in some kind of fraudulent activity is pretty scary when
Speaker 1: you think about it.
Speaker 4: So their theory of the Donziger case, in the plaintiff's
Speaker 4: case was that it was fraudulent. It was a fraudulent case,
Speaker 4: that the cancer claims were fraudulent, that the the you
Speaker 4: know that the entire basis for the case was fraudulent.
Speaker 4: And so I, as a documentarian, who by definition is
Speaker 4: an observer, So that I, as a documentarian observing fraud,
Speaker 4: was therefore a party to fraud.
Speaker 1: That's something that could really undermine quite a bit of investigative, documentary,
Speaker 1: filmmaking or journalism.
Speaker 4: You know, you have one of the largest corporations in
Speaker 4: America threatening to bring criminal charges against you or intimating
Speaker 4: I should say, you know, it was scary, and luckily
Speaker 4: that didn't go anywhere. But I remember turning to my
Speaker 4: wife at one point and saying, you know, if something
Speaker 4: doesn't turn around, we could lose everything. Again, I wasn't
Speaker 4: being sued for libel or defamation. I wasn't being sued
Speaker 4: for wrongdoing. I was defending the turning over of my
Speaker 4: footage to an interested party in somebody else's litigation. And
Speaker 4: you know, it took a lot out of me.
Speaker 1: Ultimately, the courts didn't think Berlinger's deal memo or the
Speaker 1: fact that he had ignored the vast majority of Donziger's
Speaker 1: notes outweighed the fact that he had changed this one
Speaker 1: scene and that Donziger had initially pitched him the story.
Speaker 1: The Second Circuit Court of Appeals ruled that he had
Speaker 1: to handover his outtakes, although he was able to narrow
Speaker 1: that request down a little bit. He had to hand
Speaker 1: over his computer too.
Speaker 4: I mean, here's an example that just still makes my
Speaker 4: head spin. After I lost the footage case. They then
Speaker 4: used the footage to justify getting my laptop the contents
Speaker 4: of my computer, and so these discovery and I lost,
Speaker 4: you know, I appealed, I lost, and you know, these
Speaker 4: discovery experts walked into my office, you know, wearing skinny
Speaker 4: black ties like men in black. It was just really bizarre.
Speaker 4: Me and several others on the team had the handover
Speaker 4: our computers where they sucked down the entire higher contents
Speaker 4: of my laptop.
Speaker 1: The court had approved about one hundred key search terms,
Speaker 1: but some of them were very vague, like, for example,
Speaker 1: because one of the experts who had worked on the
Speaker 1: case in Ecuador was named Charles Kombacher, Charles was a
Speaker 1: search term.
Speaker 3: Well.
Speaker 1: Berlinger's financial account was with Charles Schwab, and he didn't
Speaker 1: want Chevron to have access to all of his financial files,
Speaker 1: so he had to make something called a privileged log,
Speaker 1: which meant he had to pay lawyers lots of money
Speaker 1: to go through all of the documents on all of
Speaker 1: his devices and prove to the court that things like
Speaker 1: bank statements and love letters to his wife and various
Speaker 1: other personal items should not be handed over to Chevron
Speaker 1: as part of.
Speaker 4: This case, and I had to pay my lawyers lots
Speaker 4: of money to go through all the things that were
Speaker 4: captured by these search terms and prove to the court
Speaker 4: why those are privileged communications or irrelevant communications that shouldn't
Speaker 4: be turned over to Chevron. I mean it was. It
Speaker 4: was an insane process.
Speaker 1: The cost of that kind of litigation is just not
Speaker 1: something most journalists or filmmakers can afford. Just to put
Speaker 1: this in perspective, the movie Crude costs about one point
Speaker 1: two million dollars to make, and Crude the lawsuit ended
Speaker 1: up costing an estimated one point three million dollars, So
Speaker 1: this kind of thing can be crushing financially. And keep
Speaker 1: in mind, Berliner wasn't even really the focus of this
Speaker 1: Rico case. He wasn't being accused of doing anything himself.
Speaker 1: He just didn't want to hand over his footage to
Speaker 1: be used in someone else's case. This type of scorchhar strategy.
Speaker 1: It was exactly the sort of thing that the lawyers
Speaker 1: and the pr experts had been brought on by Chevron
Speaker 1: to do. Even just having these sort of army of lawyers,
Speaker 1: you need to scour footage and notice a six second
Speaker 1: difference between the sundance and Netflix ver versions of the
Speaker 1: film requires pretty deep pockets.
Speaker 4: I mean, I give the Chevron lawyers a lot of
Speaker 4: credit for noticing it, because it's like astounding to me
Speaker 4: that they did. But it ended up being the lynchpin
Speaker 4: that turned this case, meaning my case about having to
Speaker 4: turn all my footage over, because they used that fact
Speaker 4: quite successfully to discredit me as a journalist, which in turn,
Speaker 4: you know, made me not protected as a journalist under
Speaker 4: the journalist's privilege.
Speaker 1: That's the thing. Bruiner doesn't even necessarily blame Mastro or
Speaker 1: Gibson Dune for what they did. They were doing what
Speaker 1: they were hired to do. But he says these kinds
Speaker 1: of aggressive tactics only underscore why he felt he needed
Speaker 1: to make this documentary in the first place.
Speaker 4: Look, they did everything that they should do to defend
Speaker 4: their client, but it's once again, it's illustrative of you know,
Speaker 4: the focus was changed from the underlying all to demonizing
Speaker 4: anybody who had anything to do with the plaintiffs and
Speaker 4: to take the eye off of the central question of
Speaker 4: the damage and that we have a system of justice
Speaker 4: where deep pockets prevail.
Speaker 1: These outtakes were used to compel all sorts of additional
Speaker 1: materials from Donziger and the rest of the team, including
Speaker 1: week's worth of depositions. And again, this was all happening
Speaker 1: before the verdict came out in Ecuador. It formed the
Speaker 1: basis of this racketeering or rico suit that was filed
Speaker 1: against the plaintiffs and their attorneys just a couple weeks
Speaker 1: before they won their case in Ecuador. We're going to
Speaker 1: get into the details of that next time.
Speaker 6: I think if I had it to do over, I
Speaker 6: would advise my client to completely protest the trial. And
Speaker 6: unfortunately Steven didn't have that option because Stephen lives in
Speaker 6: New York and he's subject to the jurisdiction of the
Speaker 6: court and he has to defend the case. But my
Speaker 6: clients did have that option, and that was not a
Speaker 6: card we chose to play.
Speaker 1: Drilled is an original production of the Critical Frequency Podcast Network.
Speaker 1: The show was created, reported, and written by me Amy Westervelt.
Speaker 1: My co reporter this season is Karen Savage. Our editor
Speaker 1: is Julia Ritchie. The show's editorial consultant is Rika Murphy.
Speaker 1: Mixing and mastering by Mark Bush, original score by b Beman,
Speaker 1: fact checking by Wouo dan Yan. Our artwork for this
Speaker 1: season was done by the super talented Matt Fleming. Special
Speaker 1: thanks to Trevor Gowen and Emily Gertz. If you are
Speaker 1: a Patreon subscriber, thank you. Your money is helping to
Speaker 1: make this season. And as a special thank you to
Speaker 1: Patreon members, we're providing a variety of benefits, including bonus
Speaker 1: content and early access to episodes in this season. If
Speaker 1: that sounds appealing to you, or you just want to
Speaker 1: support our work, go over to Patreon dot com, slash
Speaker 1: drilled and sign up. We also have some merch associated
Speaker 1: with that. You can find stories, documents, and photos related
Speaker 1: to this season on our website at drillednews dot com.
Speaker 1: That's it for this time, Thanks for listening and we'll
Speaker 1: see you next week. It's Amy again. Here's David Lammy Labor,
Speaker 1: MP of Tottenham, England, on why climate justice can't happen
Speaker 1: without racial justice. You can find more episodes like this
Speaker 1: one on Ted's podcast Countdown wherever you listen.
Speaker 7: My parents' home country of Guyana is one of the
Speaker 7: most vulnerable countries on Earth to the effects of climate change.
Speaker 7: So far, Guyana has contributed relatively little to the climate emergency,
Speaker 7: but it's one of the countries facing the most serious
Speaker 7: threats from it. While the annual carbon dioxide emissions per
Speaker 7: head in the United States is a staggering sixteen point
Speaker 7: five metric tons, in guy it's just two point six.
Speaker 7: It is a pattern repeated across the globe. Those countries
Speaker 7: that have contributed least to the climate breakdown, mainly in
Speaker 7: the Global South, will suffer the most from floods, droughts,
Speaker 7: and rising temperatures. This is a pattern of suffering with
Speaker 7: a long history. The exploitation of our planet's natural resources
Speaker 7: have always been tied to the exploitation of people of color.
Speaker 7: The logic of colonization was to extract valuable resources from
Speaker 7: our planet through force, paying no attention to its secondary effects.
Speaker 7: The climate crisis is, in a way, colonialism's natural conclusion.
Speaker 7: The solution is to build a new coalition made up
Speaker 7: of all the groups most affected by this emergency. Black
Speaker 7: people in American cities who are already protesting that they
Speaker 7: cannot breathe, people of color in Guyana watching sea levels
Speaker 7: rise to the point where many of their homes become uninhabitable.
Speaker 7: Young people in places like Tottenham, London, afraid of the
Speaker 7: world that they will grow old in and progressive allies
Speaker 7: from all nations, of all races, religions, creeds, and ages
Speaker 7: on their side, all demanding recognition that climate justice is
Speaker 7: linked to racial justice, social justice, and intergenerational justice too,