Judge orders Berlinger to turn over some, not all, Chevron video

An appeals court has ordered the director of “Crude” to turn over outtakes from his movie to Chevron, but the judges have greatly limited the amount of footage the oil giant will be entitled to obtain and has placed restrictions on the way it can be used.

Director Joe Berlinger has been fighting Chevron’s request that he turn over 600 hours of material, representing all the outtakes from his 2009 project. In May, U.S. District Court Judge Lewis Kaplan ruled that he had to turn over all of the footage, but Berlinger appealed, and the 2nd Circuit Court of Appeals in New York heard his case Wednesday.

Chevron has argued the material is needed in its legal battle in Ecuador against a class action of plaintiffs, who claim the oil giant bears responsibility for environmental damage and health woes from years of drilling in the region. Chevron claims the footage could contain evidence of unethical conduct among the class-action plaintiffs’ lawyers as well as questionable activity among government officials.

The three-member appellate panel said Thursday that Berlinger must turn over all footage “that does not appear in publicly released versions of ‘Crude,’?” which shows the counsel for the class action plaintiffs in the Ecuadoran litigation, private or court-appointed experts in those proceedings or current or former officials of the country’s government.

Although it had been likely that Berlinger would have to turn over some material, given the precedent set by the 2nd Circuit’s 1999 decision in Gonzales vs. NBC, the documentary community also had been wary of how the released material would be used. The appellate court said the material could only be used for “litigation, arbitration or submission to official bodies, local or international.” Chevron also must pay “reasonable expenses” that Berlinger bears in duplicating the footage.

Via e-mail, Berlinger said that he wanted to reserve his full analysis of the decision until the appellate panel delivers an opinion explaining its rationale.

“However, I can say that we are extremely pleased with today’s results,” he said. “The appeals court has substantially limited Judge Kaplan’s overbroad order, which was the main thrust of our appeal. Furthermore, the court has expressly prohibited Chevron from using any footage we do turn over in their public relations campaigns, a goal that was extremely important to me.”

He added that the appeals court “affirmed that documentary filmmakers are no different than any other journalists deserving First Amendment protection.”

Chevron spokesman Kent Robertson said that they were “pleased and eager to move forward with this matter.”

“We have already seen instances of collusion and fraud on the part of plaintiffs’ lawyers in portions of Crude that have been publicly released. We are confident that review of the outtakes will reveal additional instances of misconduct.”

Michael C. Donaldson, who filed a friend-of-the-court brief on behalf of nearly two dozen organizations and individuals in support of Berlinger, said that “quantitatively, it was a partial victory for both sides.” Among other things, he said, Berlinger does not have to turn over footage in which he talked privately with the class action plaintiffs, their friends and neighbors. “That is exactly the footage that Berlinger was most interested in protecting,” Donaldson said.

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