The Linchpin: Joe Berlinger

Before we get started today, a quick note about another show. I know you probably care about climate change if you're listening to this podcast, so I want to recommend another one that's sharing some of the most powerful ideas about the

If you were watching ABC seven US at eleven, two activists spearheading a landmark class action lawsuit against Chevron are receiving the world's most prestigious environmental honor today. Pablodo and Luisienza are accepting the Goldman Prize in San Francisco today. It is for their efforts to make Chevron clean up what some environmentalists call the world's worst oil related disaster.

This is a clip from the documentary Crude the Real Price of Oil, about the Chevron litigation in Ecuador. This particular scene shows what happened when Ecuadorian attorney Pablo Fajardo and activist Luisianza came to San Francisco to accept the Goldman Environmental Prize. Remember we mentioned this a couple episodes.

Back tonight, Chevron is finding the claim and the two men who they say have made up their story for their own financial gain. They're frankly a group of con men that have put one past the Goldmans and have been put putting it past the media for quite some time now too.

Concider and investiguing Naida.

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

Fajardo, Investiga navidad.

And investigate which everyone's life is.

That's key one of investigingndrest a king time.

Once you investigate, you'll see who is lying.

In this case.

We mentioned last time that one of the many subpoenas that Chevron's attorney Randy Mastro filed when Chevron brought on his firm Gibson Dunn to help with their defense, was for outtakes from this film Crude. It was a big moment in the case, and today we're going to dig into it in detail with the documentary's filmmaker, Joe Berlinger.

Hey Bob, I can I call you later? I know you're wishing me a happy birthday, but I'm in the middle of a is.

It your birthday?

Today?

Birthday?

Thank God, happy birthday.

I started bugging Berlinger to talk to us for this season months ago, and it took a lot of convincing, but ultimately he agreed to do it, and on his birthday, no less. It's no wonder he was hesitant. Mastro and his team made Berlinger's life hell for a couple of years when they subpoenaed his outtakes. Berlinger fought it. As

One of the ironies of this film having had such a deep impact on my life, as I never wanted to make it in the first place.

In order to get outtakes from Crude, Randy Mastro had to show that Berlinger was neither independent nor a journalist. He did that with two key accusations, first that the film was solicited by the plaintiff's attorneys, and second that the plaintiff's attorneys had editorial input. Here's Berlinger.

Steven Donziger, a plaintiffs lawyer, had a mutual friend who knew me, and Stephen Donziger came to my office in New York in I think two thousand and five, and pitched me on the idea of making a film, but obviously not pitching me to work for them. They knew I was an independent journalist and they just so believed in the story that they wanted a filmmaker of my stature to take a look at the story. And initially I was very hesitant.

Now keep in mind this was two thousand and five. Streaming was not really a thing. Netflix was still mostly just mailing people. DBDs and documentaries were gaining in popularity, but this more recent boom was nowhere in sight. It was hard to sell documentary at the time, much less one in Spanish about an environmental issue in a country far away from the US.

They were just pitching me. They thought this would make a great film. It was an interesting period to step

You might remember us mentioning the Toxi tour a few episodes back when we met Donald Moncayo. It was a tour that the plaintiffs took many journalists and politicians on over the years of the various oil pits Texico had left in the Ecuadorian Amazon.

And he was very persistent. You know, they really thought I was the right guy because I had made two well known criminal justice films, Paradise Lost and Brothers Keeper. And initially I was just reluctant, and Donziger was somewhat relentless in trying to win me over to come down and take Toxi tour. And so several months after that first meeting he called again and said, I really want to show you the region. And I said, look, I will go down and check it out. It sounds like

So he went, and when he got to the Amazon and Ecuador, Berlinger says he was shocked by what he saw.

I was just blown away by the devastation. I mean, here we are in a pristine or what was supposed to be, this pristine region of the world that everyone talks about the Amazon being so special and magical, and all I saw was gas flares out of you know, oil refineries, these pits, these unline pits all over the landscape, people living over these pits, people dying of cancer. I was horrified. It was kind of my wake up call.

To be done.

He didn't know how he was going to do it. The Bilander couldn't shake the feeling that this film needed to be made and that he needed to be the one to make it.

I got home, and I went upstairs and tucked my child into bed, and went to the tap and took a drink of water and looked at the glass of water and thought to myself. You know, these luxuries that we take for granted, these poor people, these water based people, have polluted water. You know, they use water for transportation,

It was.

It was horrifying.

Berliner says the legal proceedings provided some narrative, structure and drama to the story, but he was never really interested in making a film about a lawsuit or sighting with one side or the other.

You know, my style of filmmaking is to show both sides of the story and let the viewer decide. And the plaintiffs actually, when they saw the movie at Sundance, were kind of shocked at how much Chevron's point of view was in the film. I actually had a much more thirty thousand foot view of the situation, which was as much as I admire the historic nature of this case.

It's true you hear from a lot of different attorneys and scientists and other kinds of experts throughout the film. Here's an example where Berliner interviewed Ricardo raised Vega, the longtime Chevron attorney in Ecuador. You've heard his name come up a few times this season.

My name is Ricardo res Vega, being with the company for thirty years, practicing law in different countries and jurisdictions. My involvement with Ecuador started in nineteen ninety one, when our concession was about to expire. We try really to get an extension for another ten years. We proposed an additional investment in Ecuador. The government at the time basically thought that they didn't want to do that, and they said, well, we want to have one hundred percent ownership of the

I mean, the movie's actually quite balanced, because for me, there is something deeply disturbing about an environmental calamity of this magnitude, the area the size of Rhode Island, more oil dumped than you know, thirty times more oil, as I understand it, dumped than the Exxon Valdies incident. And why is it that this environmental calamity is being held

One of the strategies Gibson duntook to try to undermine the case in Ecuador was to pit the plaintiff's attorneys against each other. We're going to get into that strategy in a bit more detail in the next episode. But Berlinger had a bird's eye view of some of the natural tensions between the Ecuadorian and American attorneys, things that would have been easy for a master litigator like Mastro to exploit.

I mean, from a cinematic standpoint, you couldn't have asked for a better pairing of Pablo and Steven Donziger. Pablo is a very impressive guy. I mean, you know, he grew up in that region, he worked in the oil fields. He was impoverished, a self educated lawyer, finding himself at the center of one of the most historic and biggest environmental lawsuits in history.

We spoke with Pablo for this season, and unfortunately we were talking to Pablo over the Internet and the connection wasn't great, so the recording hasn't turned out that well. So instead I'm going to play another clip from Crude because it shows you kind of how Pablo interacted with the plaintiffs, what he was doing on the ground in Ecuador. This is a scene where Fajardo is speaking with members of the Sequoya tribe. That's the tribe that Houstino Piaguaje

A Primierra.

He says, first of all, thank you for the welcome, thank you for having us, I mean the thanks also to the Sequoya village that's signed on to the lawsuit. These contributions have allowed the trial to move forward.

Paired with Donziger, you know, is a big guy, big in many ways. He has a big presence. He's physically largs and so Donziger was a very large presence and Pablo was a very quiet but commanding presence. I mean he has he just had this natural charisma, a quietness to him. But it's hard to explain, but he just he just oozed with morality and somebody on a mission. And the two of them together were quite an interesting parents.

Mastro argued that there would have been no documentary without Donziger either. And Donziger diditch Berlinger the idea of doing a documentary, and he did show him around in Ecuador. But importantly, Berlander says he paid his own way for that initial toxi toward trip that convinced him to make the film. And also this whole thing of someone pitching you a story and then encouraging you to go check it out more. It's extremely common. People bitch me stories

In my court papers where I lost my subpoena battle, they deemed I was not a journalist because Donziger solicited the movie from me and used verbiage to make it seem like somehow they paid for the movie or they aired me to do the movie. But the court disregarded the fact that I had a DGA deal memo that said I have final cut.

The DGA is the Director's Guild of America. That's the labor union for film and TV directors.

I had a DGA deal memo that said I have final cut. That the release that Stephen Donziger and all the other plaintiff signed gave me final cut of the movie. They had no editorial rights to the film. They did not pay me to make the film. It was an independently financed film.

The court ignored the deal memo with respect to the other argument in Master's subpoena requests too, that the plaintiff's attorneys had editorial input on the film. That argument was made on the basis of one key thing.

Here's mastro So Joe Barlanchard produces Crude and it shows on the festival circuit. It yeah, then it comes out on Netflix, and a curious thing was picked up by

That is largely true, but it lacks context.

Berlinger argued this point in court as well.

When you go to Sundance often a film is not quite finished. You get in great, they tell you by Thanksgiving you rush you finish the film. Of course you're showing a finished film.

So just to be clear, you find out at Thanksgiving at the end of November if your film has made it into Sundance, and Sundance is in January, which means you have just a few weeks really to lock your film in before doing all of the sort of post production things that are required to finish a film and show it at the festival.

It often, you know, is not The final version of the film, Brothers Keeper was premiered at Sundance, and you know, sitting with an audience, we realized needed some changes and it was twenty minutes too long. So the final version of Brothers Keeper differed from the sun Dance version. In fact, virtually every film I have brought to Sundance we make tweaks afterwards. So we showed the movie at Sundance. Chevron

So this tracks with our interactions with Donziger for this podcast too. You know, he's a guy who likes to control the story, and that's not uncommon, especially when you're covering a contentious legal case. Lawyers, in particular, and in this case, because he's had so much personal blowback from this case, find it useful to make their case in the press, and Berlinger was used to dealing with that. He had made two other films focused on legal cases.

In ninety nine percent of his suggestion, In fact, ninety nine point five percent of his suggestions. I disregard it, you know. But Pablo in particular was concerned that the condensation of chronology, you know, which is what I was told by Donziger and by Fajardo, that the condensation of chronology in my film made it appear that somebody who shouldn't have been in a scene was in a scene, and would I consider removing two cutaways? That's the thing

Ultimately, those changes and the fact that Donziger had pitched Berlin or the film in the first place outweighed the context.

With this full explanation that I gave to the court that A, I have final cut. Here's all the paperwork to prove I had final cut. B. Here's the ten page memo from Donziger in which he's asking me to make a zillion changes and I didn't make those changes and wrote him a terse email in response saying, Hey, I'm not making these changes. I'm the filmmaker. I have final cut. All of that could have outweighed you know, this idea that somehow because I made a change, I

The fight over those six seconds and how they defined Berlinger's relationship with the plaintiffs dragged on for years and really punished Berlinger.

On several occasions, as my kids were getting off the bus, a private detective or seemingly so, somebody in a flashy red BMW being as conspicuous as possible, would screech, would screech up to our driveway and take photographs of my kids getting off the bus and walking up the driveway. Now this was during my court proceeding. Can I say Chevron was responsible for it? No? Can I say Gibson Dunn was responsible for it? No? But it happened. There were times where I felt my phone was being tapped.

Documentarians and investigative journalists are somewhat prepared for this sort of thing. We carry expensive specialty insurance policies, for example, and we have lawyers who look things over for us. But this was way beyond anything Berlinger ever thought he'd be up against, because it.

Became extremely costly, beyond anything I could have ever imagined. My footage was subpoened. I fought lost, appealed lost, and then after the footage was turned over, at some point, they then went after my computer. I lost, appealed lost, and had to turn the contents of my computer over as well. And then in addition to that, because and this is where the pressure tactics come in, Chevron attorneys were intimating to my attorneys that they might seek criminal action against me.

Okay, so this is really worth paying attention to. Berlinger wasn't being accused of fraud himself, or of libel or various other crimes, but Chevron was hinting that they could use misprision. When you observe a fraud, you're supposed to have sort of a legal responsibility to report it, and

So their theory of the Donziger case, in the plaintiff's case was that it was fraudulent. It was a fraudulent case, that the cancer claims were fraudulent, that the the you know that the entire basis for the case was fraudulent. And so I, as a documentarian, who by definition is an observer, So that I, as a documentarian observing fraud, was therefore a party to fraud.

That's something that could really undermine quite a bit of investigative, documentary, filmmaking or journalism.

You know, you have one of the largest corporations in America threatening to bring criminal charges against you or intimating I should say, you know, it was scary, and luckily that didn't go anywhere. But I remember turning to my wife at one point and saying, you know, if something doesn't turn around, we could lose everything. Again, I wasn't being sued for libel or defamation. I wasn't being sued for wrongdoing. I was defending the turning over of my

Ultimately, the courts didn't think Berlinger's deal memo or the fact that he had ignored the vast majority of Donziger's notes outweighed the fact that he had changed this one scene and that Donziger had initially pitched him the story. The Second Circuit Court of Appeals ruled that he had to handover his outtakes, although he was able to narrow that request down a little bit. He had to hand over his computer too.

I mean, here's an example that just still makes my head spin. After I lost the footage case. They then used the footage to justify getting my laptop the contents of my computer, and so these discovery and I lost, you know, I appealed, I lost, and you know, these discovery experts walked into my office, you know, wearing skinny black ties like men in black. It was just really bizarre.

The court had approved about one hundred key search terms, but some of them were very vague, like, for example, because one of the experts who had worked on the case in Ecuador was named Charles Kombacher, Charles was a search term.

Well.

Berlinger's financial account was with Charles Schwab, and he didn't want Chevron to have access to all of his financial files, so he had to make something called a privileged log, which meant he had to pay lawyers lots of money to go through all of the documents on all of his devices and prove to the court that things like bank statements and love letters to his wife and various other personal items should not be handed over to Chevron as part of.

This case, and I had to pay my lawyers lots of money to go through all the things that were captured by these search terms and prove to the court why those are privileged communications or irrelevant communications that shouldn't be turned over to Chevron. I mean it was. It was an insane process.

The cost of that kind of litigation is just not something most journalists or filmmakers can afford. Just to put this in perspective, the movie Crude costs about one point two million dollars to make, and Crude the lawsuit ended up costing an estimated one point three million dollars, So this kind of thing can be crushing financially. And keep in mind, Berliner wasn't even really the focus of this Rico case. He wasn't being accused of doing anything himself.

I mean, I give the Chevron lawyers a lot of credit for noticing it, because it's like astounding to me that they did. But it ended up being the lynchpin that turned this case, meaning my case about having to turn all my footage over, because they used that fact quite successfully to discredit me as a journalist, which in turn, you know, made me not protected as a journalist under the journalist's privilege.

That's the thing. Bruiner doesn't even necessarily blame Mastro or Gibson Dune for what they did. They were doing what they were hired to do. But he says these kinds of aggressive tactics only underscore why he felt he needed to make this documentary in the first place.

Look, they did everything that they should do to defend their client, but it's once again, it's illustrative of you know, the focus was changed from the underlying all to demonizing anybody who had anything to do with the plaintiffs and to take the eye off of the central question of the damage and that we have a system of justice where deep pockets prevail.

These outtakes were used to compel all sorts of additional materials from Donziger and the rest of the team, including week's worth of depositions. And again, this was all happening before the verdict came out in Ecuador. It formed the basis of this racketeering or rico suit that was filed against the plaintiffs and their attorneys just a couple weeks before they won their case in Ecuador. We're going to get into the details of that next time.

I think if I had it to do over, I would advise my client to completely protest the trial. And unfortunately Steven didn't have that option because Stephen lives in New York and he's subject to the jurisdiction of the court and he has to defend the case. But my clients did have that option, and that was not a card we chose to play.

Drilled is an original production of the Critical Frequency Podcast Network. The show was created, reported, and written by me Amy Westervelt. My co reporter this season is Karen Savage. Our editor is Julia Ritchie. The show's editorial consultant is Rika Murphy. Mixing and mastering by Mark Bush, original score by b Beman, fact checking by Wouo dan Yan. Our artwork for this season was done by the super talented Matt Fleming. Special thanks to Trevor Gowen and Emily Gertz. If you are

My parents' home country of Guyana is one of the most vulnerable countries on Earth to the effects of climate change. So far, Guyana has contributed relatively little to the climate emergency, but it's one of the countries facing the most serious threats from it. While the annual carbon dioxide emissions per head in the United States is a staggering sixteen point five metric tons, in guy it's just two point six.