Joe Berlinger Versus Chevron

Joe Berlinger’s Crude (2009), which details a lawsuit between the Ecuadorian people and the oil corporation Chevron over the pollution of the Amazon Rain Forest, has found itself to be in the middle of a contentious lawsuit. Chevron recently brought suit against Berlinger, demanding to see all of the footage that didn't make it into the final cut of the film. Reuters reports that on May 6th, U.S. District Judge Lewis Kaplan ordered Berlinger to turn over 600 hours of raw footage from the cutting room floor to Chevron.

A still from Crude

The original case unfolded 17 years ago in Ecuadorian courts. Chevron (then Texaco) was found accountable for environmental damage in the country, and as a result faced liabilities of up to $27 billion. Chevron now believes that the unseen documentary footage may contain evidence of various transgressions on the part of the Ecuadorean legal team that may enable them to seek arbitration. Berlinger’s footage could be used as evidence against the Ecuadorians.

At issue here are one’s rights as a journalist. As an investigative documentary filmmaker, Berlinger should be granted Reporters’ Privilege under the First Amendment. Berlinger’s attorney, Maura Wogan, said that the ruling threatens "great harm to documentary filmmakers and investigative reporters everywhere."

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An outcry from the documentary film community ensued, including a May 7 NY Times ArtsBeat blog post featuring quotations from an outspoken Michael Moore and a May 12 open letter from the International Documentary Association, signed by the IDA’s Board of Directors and over 150 filmmakers, including Alex Gibney, Michael Moore and Morgan Spurlock. An excerpt:

While we commend Judge Kaplan for stating "that the qualified journalists' privilege applies to Berlinger's raw footage", we are nonetheless dismayed both by Chevron's attempts to go on a "fishing expedition" into the edit rooms and production offices of a fellow documentary filmmaker without any particular cause or agenda, and the judge's allowance of said intentions. What's next, phone records and e-mails?

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The Times reports that last Friday, May 21, Berlinger was granted an appeal by Federal Appeals Court Judge Denny Chin. A court date was set for June 8.

The line from the IDA letter regarding phone records and emails concisely highlights the issue at hand. A filmmakers footage is akin to a reporter's notebook. It is private, and it should be protected by the law.

The implications of this case can not be overestimated. If the footage from filmmakers can be open to a subpoena this easily, it will make certain documentary filmmakers think twice about undertaking range of projects of a political nature and it may intimidate whistle-blowers from coming forward to expose illegal activities. The doc film community eagerly awaits the developments of the trial.