Following oral arguments before a federal appeals court on Wednesday, it’s likely that the director of “Crude” will have to turn over some outtakes from his documentary to Chevron, but Joseph Berlinger expressed hope that the oil giant’s effort to obtain the footage will be greatly limited in scope.
The case has garnered the attention of First Amendment advocates, Hollywood guilds (Daily Variety, June 24), other filmmakers and, most recently, even former Soviet leader Mikhail Gorbachev, who have either signed petitions or have filed briefs in support of Berlinger.
In May, U.S. District Court Judge Lewis Kaplan ordered Berlinger to turn over some 600 hours of outtakes of his 2009 doc to Chevron, which argues that the footage is needed in connection with a long legal saga in Ecuador, where a class action of residents claims that the company bears responsibility for environmental damage and health harms from years of oil drilling in a rainforest region.
Berlinger appealed his case to the Second Circuit Court of Appeals in New York, which raised the possibility of limiting the amount of footage that he would be required to turn over.
“It felt like the court was sympathetic to our core concerns, but who knows, ultimately, what they are going to say,” Berlinger said in an interview afterward. “I am hopeful with my fingers crossed.”
Chevron has argued that the footage will reinforce its contention that lawyers for the class action plaintiffs have manipulated the legal system for their own benefit, and that it could reveal questionable conduct on the part of government officials there.
Berlinger said that he never expected that he would get a total reversal of Kaplan’s order so that he would not have to turn over any footage, only that the subpoena should be greatly limited in scope. He said he recognizes that there are times when a journalist could be made to turn over material “if basic standards are being met,” but to not challenge Kaplan’s decision would leave a precedent that could inhibit the work of documentary filmmakers and investigative reporters.
At the hearing, there was much discussion of just such a case, the Second Circuit’s 1999 decision in Gonzales v. NBC, which held that journalists had a “qualified privilege” to protect even non-confidential material, but that litigants could get the material if they showed that it was “likely relevant” to their case and not “reasonably obtainable” from other available sources. As it turned out, one of the appellate judges in Berlinger’s case, Pierre N. Leval, was among the panel that heard the Gonzales case and wrote the decision.
Berlinger’s lead attorney, Maura Wogan of Frankfurt Kurnit, noted that as much as 50% of what Berlinger filmed in his docu on Chevron’s legal problems in Ecuador consists of public judicial proceedings. In other words, it was available elsewhere.
At one point during the hearing, Judge Barrington D. Parker asked Randy Mastro of Gibson Dunn & Crutcher, representing Chevron, what would be wrong if Kaplan assigned a special master to recommend to the judge which of the outtakes should be given to Chevron.
“Time is of the essence,” Mastro said, adding that a lengthy process could irreparably harm Chevron’s effort to be treated fairly by the courts in Ecuador.
Wogan also said that they wanted some kind of a protective order to ensure that Chevron only uses the footage in its litigation, and not as part of PR efforts.
The judges indicated that they would issue an opinion soon.
Michael C. Donaldson, an attorney who filed a friend-of-the-court brief in support of Berlinger on behalf of the Intl. Documentary Assn. and almost two dozen other groups and individuals, said that the appellate judges “indicated pretty clearly that 600 hours is way too broad but there are still other items that might be relevant to Chevron’s case that they couldn’t get anywhere else.”
Berlinger’s docu has won numerous awards and garnered positive reviews. He has long defended the film as a balanced portrait of both sides in the case.
Among Chevron’s defenders in the case is the Dole Food Co., which filed a brief in which it argued that it also has been the victim of a “growing trend” whereby U.S. lawyers “partner with lawyers in foreign jurisdictions to recruit plaintiffs and manufacture evidence in support of fraudulent lawsuits aimed at U.S. companies.”
Also filing a brief was the National Assn. of Criminal Defense Lawyers, which noted that two oil company executives, Rodrigo Perez Pallares and Ricardo Reis Veiga, face criminal charges for their role in a prior effort to settle litigation in Ecuador, and that the footage will be relevant to their defense.
Chevron spokesman Kent Robertson said in a statement, “We believe this is a reasonable request — and a necessary one for anyone who cares about justice.”
(The Associated Press contributed to this report.)