A New York federal judge on Thursday ruled that though a reporter’s privilege applies to a documentary filmmaker, he must still hand over unused footage to Chevron in a dispute over whether the oil company polluted the Amazon rain forest.
Though Judge Lewis Kaplan was unpersuaded by Chevron’s argument that a reporters privilege does not apply to documentarians, he said that in this case, filmmaker Joe Berlinger had not shown that he promised his sources confidentiality that would be necessary to usurp Chevron’s interest in obtaining the footage to defend itself in a private lawsuit.
"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," Kaplan wrote. However "[t]he protection afforded by the journalists’ privilege turns on whether the material sought is confidential or nonconfidential."
Berlinger’s unused footage from "Crude: The Real Price of Oil" was subpoenaed in a private lawsuit between indigenous Ecuadoran communities and Chevron over whether the company is responsible for rain forest pollution. Berlinger and his attorneys appeared last Friday in a Manhattan court to argue that turning over the requested 600 hours of footage would have a chilling effect on future reporting.
In Thursday’s opinion Judge Kaplan was unpersuaded by Chevron’s argument that Berlinger’s film was a "piece of theatre deliberately designed to win over audiences to the Plaintiffs’ side" and therefore unprotected by a journalists’ privilege. However, Kaplan wrote that Chevron had met the burden of proving that the footage was relevant and unavailable from other sources in order to overcome the privilege.
Berlinger plans to appeal the decision.