Court Rejects Claim of Journalist’s Privilege for Documentary Filmmaker

David Itzkoff
Friday, January 14, 2011

A federal appeals court says that Joe Berlinger, the filmmaker who was ordered to give footage from his 2009 documentary “Crude” to the Chevron Corporation, could not invoke a journalist’s privilege in refusing to turn over that footage because his work on the film did not constitute an act of independent reporting.

Mr. Berlinger, whose film chronicles a lawsuit brought by a group of Ecuadoreans who say that the Lago Agrio oil field — then run by Texaco, which Chevron now owns — polluted their water supply, has been locked in a legal battle against Chevron for several months.

Last May, a United States district court ruled that Mr. Berlinger would have to give his raw footage from the film, some 600 hours, to Chevron, which said the material could show an improper collaboration between plaintiffs’ lawyers in the Ecuadorean lawsuit and a neutral expert appointed by the Ecuadorean court. On appeal, the United States Court of Appeals for the Second Circuit ruled that Mr. Berlinger would have to give only a portion of that footage, but which has since totaled more than 500 hours.

The district court later ruled in September that Mr. Berlinger would have to submit to depositions in the case. In a decision issued on Thursday, the judges of the Second Circuit court in Manhattan said the argument, presented by Mr. Berlinger’s lawyers in July, that he was protected as a journalist from being compelled to share his reporting materials was not persuasive. “Given all the circumstances of the making of the film,” the judges wrote, “as reasonably found by the district court, particularly the fact that Berlinger’s making of the film was solicited by the plaintiffs in the Lago Agrio litigation for the purpose of telling their story, and that changes to the film were made at their instance, Berlinger failed to carry his burden of showing that he collected information for the purpose of independent reporting and commentary.”

Lawyers for Chevron have pointed out that the version of “Crude” shown at the Sundance Film Festival showed one of the Ecuadorean court-appointed experts, Carlos Beristain, at a meeting with the plaintiffs and their lawyers before he was appointed by the court. In the film’s commercial release, the scene had been edited out.

It would later be revealed that the editing took place after a request from the plaintiffs. A member of the legal team wrote to Mr. Berlinger after Sundance and asked that he “remove the images that we discussed.” He added, “This is so serious that we could lose everything, or a great deal, just because of these minuscule shots.”

In response to the appeals court’s latest ruling, Mr. Berlinger wrote in an e-mail that the decision represents a “fundamental misunderstanding of the circumstances surrounding the production of this film in particular and the nature of long-term investigative documentary reporting in general.” Mr. Berlinger added that while the idea for “Crude” was proposed to him by Steven Donziger, an American lawyer for the Ecuadorean plaintiffs, the documentary was “not a commissioned film” but a project on which he “had complete editorial independence.”

Mr. Berlinger continued: “The decision to modify one scene in the film based on comments from the plaintiffs’ lawyers after viewing the film at the Sundance Film Festival was exclusively my own and in no way diminishes the independence of this production from its subjects. I rejected many other suggested changes and my documentary ‘Crude’ has been widely praised for its balance in the presentation of Chevron’s point of view as well as the plaintiffs’.”

Randy M. Mastro, a lawyer for Chevron, wrote in an email, “We always said how valuable we expected the ‘Crude’ outtakes to be” to the company’s case, adding that “we are therefore extremely grateful to the Court for recognizing Chevron’s right to obtain this critical evidence.”


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