Filmmaker wins stay in fight over 'Crude' footage

Documentary filmmaker Joe Berlinger will not have to turn over 600 hours of raw footage to Chevron for now, at least until the appellate court hears the merits of his appeal.

A three-judge panel of the U.S. Court of Appeals in New York City (2nd Cir.) on Tuesday temporarily blocked a subpoena for Berlinger’s uncut footage until the full court has a chance to hear the case, which will likely occur next month. The stay was granted early in the proceeding without the need for extensive arguments from the parties, with the rest of the hearing devoted to how urgently the appeal should proceed.

Chevron and two of its executives subpoenaed all unused footage from Berlinger’s 2009 documentary "Crude: The Real Price of Oil" under a U.S. law that allows federal courts to order the production of evidence relevant to foreign proceedings.

The oil company argued that the evidence is relevant to three different proceedings: a civil lawsuit brought by thousands of indigenous Ecuadoreans who allege the oil company is responsible for extensive pollution in the Amazon rain forest; a criminal case in Ecuador against the two Chevron officials; and an international arbitration proceeding over the same controversy.

Chevron argued against the stay, saying that there was an urgent need for the information because of the advanced status of the civil suit and criminal proceeding. An attempt by the Ecuadorians to halt the arbitration is also currently on appeal before the same appellate court.

In the trial court, Berlinger’s attorney had argued that the information was protected under the First Amendment-based reporter’s privilege and disclosure would have a chilling effect on future film reporting. Though the judge agreed that a journalist’s privilege could apply to filmmakers and did so in this case, he ruled that Chevron’s interest in obtaining the material outweighed Berlinger’s interest in withholding it.

"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," Judge Lewis Kaplan wrote. However "[t]he protection afforded by the journalists’ privilege turns on whether the material sought is confidential or nonconfidential."

Kaplan then briefly stayed his decision, but only until the appellate court could decide whether it would grant a further stay to hear Berlinger’s appeal. Appellate courts will only grant such stays if there is reason to believe the requesting party will ultimately prevail.

At the time, Berlinger’s attorney, Maura Wogan of Frankfurt Kurnit Klein & Selz, called the decision to compel disclosure of the footage unprecedented and said that “to be turned into an arm of private litigation would undo his ability to do this kind of movie.”

In the past, courts in other states, including Hawaii and Montana, have successfully applied a journalist’s privilege to filmmakers. A Hawaii trial court judge last fall granted a documentary filmmaker’s request to keep his unpublished footage and sources confidential, ruling that a plaintiff in a lawsuit could not depose or subpoena filmmaker Keoni Kealoha Alvarez to obtain material Alvarez gathered while documenting native Hawaiian burial practices.

Several years ago, a University of Montana student journalist who had videotaped disturbances between protesters and police at a July 2000 Hells Angels gathering was found to be covered by that state’s shield law over the prosecutor’s objection that she was not covered because she was not employed by a traditional news media outlet.

Berlinger’s case has attracted attention from journalists, organizations and filmmakers. Actor and director Robert Redford in a Huffington Post column rallied support for the filmmaker, pointing out that the decision would dramatically limit the ability for documentarians to independently disseminate information.