The legal controversy surrounding the documentary film, Crude, is fascinating.   The basic facts are as follows: Chevron has been in litigation against a coalition of indigenous groups for destruction of their lands in Ecuador and Peru.  The main case is Aguinda v. Texaco, and it is one of the biggest and most significant environmental justice cases to be litigated under the Alien Tort Claims Act (please forgive the lack of citations — it’s just too late on Friday…).

The film’s website is here, and the trailer is here:

I am probably botching the explanation slightly, but here goes.  Plaintiffs’ counsel asked a prominent filmmaker, Joe Berlinger, to make a movie about the situation surrounding the case, in order to create more public awareness of the issue.  It looks like plaintiffs’ counsel worked with Mr. Berlinger in shaping some of the content of the movie and might have engaged in some ethically borderline practices in connection with the filmmaker (I am very skeptical, but you can see the allegations in the district court’s opinion here).

Chevron made a really big deal about this, arguing that the content of Mr. Berlinger’s raw footage could impact the case — a lot of this argument has to do with some pretty obscure issues relating to the proper forum for the litigation.  The judge agreed with Chevron and ordered Berlinger to turn over all of his raw footage.  That’s right all of it — 600 hours, much of it presumably obtained though months of work building trust with his subjects.  The second circuit has granted a stay and will hear Berlinger’s appeal.  Those of us who have worked for the Courts of Appeals know that Berlinger has a tough road ahead.

The merits of the case have been thoroughly debated, but I would like to raise a different point.  The situation the Berlinger and Plaintiffs’ counsel (not to mention the Plaintiffs!) find themselves in shows why lawyers (not to mention the judiciary) need to have a better understanding of video and new media.  This is one reason why N-Map’s work is important: we are developing an understanding of the many pitfalls involved in using video and other media in legal advocacy — as important as knowing how to use media to get a good result is when to not use it at all.

Some thoughts on the tactical issues that this case brings to light (note that this are taking the allegations in the district court’s opinion as true ), below the fold.  Dissenting opinions are welcome! Please comment:

1) Plaintiffs’ council made some huge mistakes in commissioning the film (mistakes that N-Map helps our clients avoid).  Most importantly, he commissioned it from an outside director, treating it as a project separate from the litigation.  The project was bound to get out of counsel’s control.  By hiring an outside filmmaker to basically make his own documentary, counsel removed even the possibility that the footage would have been protected by the work product doctrine (or conversations with the filmmaker by the attorney-client privilege).  Note that it is not entirely clear to which extent raw footage is ever protected by work product — but if it is not produced in anticipation of litigation or for the litigation, it will have no chance at all of such protection.

2) On the other hand, the filmmaker was clearly not acting just as a documentary filmmaker or as a journalist, so it is unlikely that the footage would be protected by the Journalists’ Privilege.

3) Plaintiffs’ counsel was reckless in what he said and what he allowed is clients to say on camera.  He must have known that the footage was not going to be protected work-product, and he said some incredibly damaging things.  Most importantly, those things related to process, not even to the underlying facts of the case, making them more easily obtainable by the other side for a variety of reasons (not least of which is that judges hate interference with process).

I am surprised at counsel’s conduct, as a lawyer (counsel pressuring a judge; giving his expert witness too close contact with the plantiffs, etc), but I am doubly surprised that he let it all be taped on film by a third party.

4) Finally, I really don’t understand why the legal team commissioned the video.  This is a litigation involving very complex procedural issues, and (I think) counsel had chosen litigation as their primary vehicle to get a remedy for their clients.  This movie, even if it had not just caused significant damage to the plaintiffs’ case, would have done next to nothing to aid the litigation.  If they were building a social movement around the issue, than perhaps the movie would have helped — but he could have saved a lot of money by commissioning shorter videos which more people would watch (though I am not sure how many people have seen Crude).  That said, I am sure there are lots of other advocacy efforts on behalf of the Aguinda plaintiffs — but the video should have been in control of those groups, not litigation counsel.

So that’s my two cents.  Am I right about this? Am I completely missing something? Any thoughts?