The makers of the documentary “Crude” are resisting an effort by Chevron to turn over hundreds of hours of raw footage created during the making of the movie, which chronicles the oil company’s years of litigation with local Ecudorians over oil spills and toxic dumps in the Amazon rain forest.
The oil giant is seeking footage not included in the 2009 documentary in in its ongoing litigation in an Ecudorian court over the environmental and health claims from a class action of approximately 30,000 residents. They allege that Chevron’s oil drilling and inadequate remediation of the Lago Agrio field caused severe injuries to health and habitat. Chevron denies liability and contests the harm.
In a filing on Friday in U.S. District Court in the Southern District of New York, the movie’s director, Joseph Berlinger, and producer, Michael Bonfiglio, contend they are protected by journalistic privilege, and that the company has not shown that it is not available from other sources or even relevant to their case. They say that they would have to turn over some 600 hours of footage if Chevron’s order is granted.
This is a classic fishing expedition, and courts in the Second Circuit have rejected similar arguments in favor of the journalists’ privilege,” attorneys Maura J. Wogan and Jeremy S. Goldman of Frankfurt Kurnit state in the filing on behalf Berlinger and Bonfiglio.
They point out that in gathering footage and interviews, Berlinger made agreements with sources promising not to use certain footage in which they appared without their authorization, or that his subjects could request that cameras be turned off if they became uncomfortable. With that footage, there was an “implicit understanding that the moments leading up to the request to turn off the camera also would not be included in the film,” they state, and Berlinger offered confidentialty arrangements to Chevron as well.
Simply put, Berlinger could not create his documentaries if the subjects of his work feared that everything they said, and everything that Berlinger learned, could be viewed by thrid parties, taken out of context for purposes unrelated to the documentary itself,” the attorneys state.
Berlinger says he sought to make a “balanced and accurate depiction of events” in his movie, and notes that after months of reaching out, obtained cooperation from key Chevron executives.
Chevron issued a statement defending its request as relevant. “One version of Mr. Berlinger’s film shows representatives of the plaintiffs’ legal team actively participating in a focus group with a supposedly neutral court expert. In the version released on DVD, that scene was edited out.”
The company added, “We believe that Mr. Berlinger may have also unwittingly captured on film other instances of improper collaboration between court experts and the plaintiffs’ representatives that would further demonstrate the illegitimate nature of the entire Lago Agrio trial. Through our discovery request, we are simply asking to review Mr. Berlinger’s film archive to establish if there are other documented instances of misconduct.”
But in their filing, Berlinger’s attorneys argue that that the scene did not depict a focus group meeting, but a meeting of the class action plaintiffs. They say that the scene was edited out of the DVD release of the movie “to prevent the scene from being misconstrued and taken out of context.” The original, they say, can still be viewed on Netflix.
The documentary debuted at Sundance in 2009 and was released in theaters later that year.