At least one judge on the appellate panel that will decide whether a documentary filmmaker must turn over 600 hours of unused footage seemed skeptical on Wednesday of the argument that a journalist’s privilege protects all of the documentary outtakes.
The Court of Appeals in New York City (2nd Cir.) heard oral arguments yesterday about whether Joe Berlinger, the maker of "Crude: The Real Price of Oil," should have to give his outtakes to the Chevron Corporation, which says they’re needed to fight pending legal battles.
Chevron filed a petition for subpoena earlier this year to get Berlinger’s outtakes, claiming the company needed the footage as evidence in three lawsuits the company and its attorneys are currently fighting related to oil drilling that took place in Ecuador until the 1990s. Chevron claims that the film contains information that could help its case and that Berlinger is the only one with that information.
Journalists, celebrities and other filmmakers have come to Berlinger’s defense as he’s argued that the outtakes should be protected by his journalist’s privilege.
It is unclear when a decision will be announced by the appeals court.
Judge Pierre Leval indicated that Berlinger’s documentary was in a different class than other media reports. Leval was quoted by the Courthouse News Service as saying “If you look at the way the film was made, this isn’t Edward R. Murrow or ‘Dateline.’” Leval seemed to be referring to the fact that the documentary was made with the cooperation of the attorneys for one side.
Berlinger’s documentary focused on the plaintiff’s legal efforts in a case where 30,000 indigenous Ecuadorians are suing Chevron for what they claim to be irreparable damage to the Amazon forests where they live.
Chevron argues that oil drilling by Texaco, which it has since bought, is not responsible for any damage and that Berlinger’s film is instead a product of propaganda aimed at the company, citing Berlinger’s exclusive access to the plaintiff’s case preparations during the making of "Crude."
Yesterday, according to media accounts of the oral arguments, Maura Wogan, an attorney for Berlinger, agreed to turn over some footage to Chevron if it fit into one of three narrow categories the company set out as most relevant: “portions that involve the plaintiffs’ attorneys, court-appointed experts and government officials,” according to the Courthouse News Service.
In an interview Berlinger gave after the hearing, he said to The Hollywood Reporter legal blog “I was happy that a lot of the conversation centered on narrowing (the district court’s order). It’s an extraordinarily bad precedent for filmmakers if they are forced into a wholesale dumping of footage into the hands of an interested party.”
Berlinger added that he felt it would be a victory if the court narrows the lower court’s ruling that he turn over all outtakes. The case is on appeal from the Southern District of New York, where Judge Lewis A. Kaplan previously ruled that Berlinger must turn over the footage to Chevron. Kaplan relied on the Gonzalez case, a 1999 appeals court case that spells out the test for when a journalist must turn over information deemed to be nonconfidential.
The court said in that case that information is to be handed over if it is “likely relevant” to “significant issues” and is “not obtainable elsewhere.” And Kaplan found that all of these factors existed.
In Wogan’s brief to the court filed before oral arguments, she argues that Kaplan’s finding that the outtakes included only nonconfidential information was wrong and that he had confidentiality agreements with several of the film’s subjects. Wogan argues that upholding Kaplan’s ruling could cause a grave problem for himself and other journalists in the future.
“[W]ithout the ability to assure his subjects that the footage he is capturing will be used for the limited purpose of making a documentary, Berlinger and other similarly situated investigative journalists will not be able to undertake this type of long-form investigative film in the future,” the brief states.
But Robert Mastro, the attorney for Chevron, has argued that the outtakes of the film would be his only way to show that the attorneys for the plaintiff have acted inappropriately. Additionally, Mastro argued in his brief for Chevron and again at the oral arguments, that the outtakes are needed urgently to fight criminal charges two attorneys for the company are facing in Ecuador related to drilling done there.
Friend-of-the-court briefs were filed last month in support of both Berlinger and Chevron, including one brief filed by several media outlets and signed onto by The Reporters Committee for Freedom of the Press.