Friend-of-the-court briefs filed in case over 'Crude' outtakes

Ellen Biltz | Newsgathering | Feature | June 24, 2010

Three groups filed friend-of-the-court briefs yesterday in a dispute between an oil company that wants unused documentary footage and the filmmaker who says he is not bound to provide it.

In the case, Chevron Corporation v. Berlinger, filmmaker Joe Berlinger is asking the U.S. Court of Appeals in New York City (2nd Cir.) to deny Chevron’s request that he overturn 600 hours worth of unused film from his documentary "Crude: The Real Price of Oil," which depicts rain forest damage in Ecuador that was allegedly caused by the oil company Texaco, which was later bought by Chevron.

One brief, filed by several media outlets and joined by The Reporters Committee for Freedom of the Press, asks the court to uphold the long-standing precedent of reporter’s privilege for video outtakes.

Specifically, the brief asks the court to rely on the case, Gonzalez v. National Broadcasting Company, in which the court found that a litigant can only subpoena nonconfidential materials if they are of "likely relevance to a significant issue in the case, and are not reasonably obtainable from other available sources.”

The brief argues that Chevron's request for all 600 hours of footage is overbroad because many of the scenes are irrelevant to Chevron’s case.

Chevron, however, has argued that the film is relevant to three separate cases – two civil and one criminal – the company or its employees are involved in regarding the damage to Ecuadoran rain forests by Texaco in 1970s and 80s.

A three-judge panel of the appeals court decided earlier this month to stay the release of the footage until another panel gets a chance to review the trial court’s findings.

The trial court judge, Lewis Kaplan, previously ruled that the video should be handed over because it was not confidential and could play a major role in Chevron’s three cases. But Kaplan briefly stayed his decision to order the release of the film until the documentary makers could ask the appeals court to review the case.

The media organizations’ brief says that Gonzalez requires “a party seeking to compel production of such [non-confidential] materials must make a somewhat less demanding showing than for confidential information -- but a showing that is, nonetheless, still significantly more substantial than the burden on a litigant seeking ordinary garden-variety discovery.”

Explaining his opinion at the trial-court level, Kaplan said, "Berlinger investigated ... a newsworthy event, and disseminated his film to the public. The Court therefore assumes that a qualified journalists' privilege applies to Berlinger's raw footage." However, "[t]he protection afforded by the journalists' privilege turns on whether the material sought is confidential or nonconfidential."

The case is set to be heard by the Court of Appeals panel on July 14.

In addition to the media organizations, two other friend-of-the-court briefs wer filed yesterday: on from a group of documentary and film makers in support of Berlinger and one from  Dole Food Company arguing that the video should be released. Both of these briefs also discuss the implication the Gonzalez case should have on Berlinger’s release of film.