Judge Rules That Filmmaker Must Give Footage to Chevron

Dave Itzkoff
Thursday, May 6, 2010

A federal judge in Manhattan on Thursday granted a petition by Chevron to issue a subpoena for hundreds of hours of footage from a documentary about the pollution of the Amazon rainforests of Ecuador and the oil company’s involvement.

Judge Lewis A. Kaplan of United States District Court said that the director Joe Berlinger would have to turn over more than 600 hours of footage from his documentary “Crude.” The film, which was released last year, chronicles the Ecuadorians who sued Texaco (now owned by Chevron) saying the operations of the companies’ oil field at Lago Agrio contaminated their water. Chevron, which is pursuing an international treaty arbitration related to the lawsuit and seeking to have the litigation dismissed, said that Mr. Berlinger’s footage could be helpful to the company. It pointed to a scene from “Crude” in which representatives for the plaintiffs in the Lago Agrio lawsuit take part in a focus group with a neutral court expert, and said that other footage shot by Mr. Berlinger could show further instances of improper collaboration.

Lawyers for Mr. Berlinger argued that his footage was protected by his privilege as an investigative journalist, and that turning over the film would violate confidentiality agreements with his subjects as well as his First Amendment rights. In siding with Chevron, Judge Kaplan wrote that Mr. Berlinger had not met his burden of showing whether any of his filmed material was subject to any confidentiality agreements with his sources, and that the release forms he used with his subjects gave him “carte blanche to use all of the footage in his production.”

The judge also noted that Chevron, which once praised Ecuador’s legal system, was now arguing that it could become a victim of political influence in that country. Nonetheless, Judge Kaplan cited the maxim of the former Supreme Court Justice Louis D. Brandeis that “sunlight is said to be the best of disinfectants” and wrote: “Review of Berlinger’s outtakes will contribute to the goal of seeing not only that justice is done, but that it appears to be done.”

Randy M. Mastro, a lawyer representing Chevron, said in a telephone interview on Thursday afternoon: “We are very gratified by the judge’s decision, especially so since he recognized the time urgencies here. Through this kind of discovery, we have been exposing corruption, fraud and a travesty of justice going on in Ecuador. This evidence will be critical to determining Ecuador’s violation of international law and its denial of due process and fair treatment to Chevron.” Mr. Mastro added that the footage for “Crude” represented “an extraordinary film record of exactly the kinds of abuses that have tainted the judicial process in Ecuador.”

Maura J. Wogan, a lawyer representing Mr. Berlinger, said in a telephone interview: “We’re obviously very surprised at the court’s lack of sensitivity to the journalist’s privilege, which is based on core First Amendment principles. The decision really threatens grave harm to documentary filmmakers and investigative reporters. It’s compelling the production of an extraordinary amount of footage.”

Ms. Wogan said the decision to grant the subpoena would create “a fishing expedition” through the filmmaker’s work, adding: “It just permits a private litigant to scour through this footage that was created.”

The lawyers for Mr. Berlinger said they would ask Judge Kaplan to stay the subpoena while they appeal the decision to the United States Court of Appeals for the Second Circuit.


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