In May, we here at DocZine reported on the lawsuit of multinational energy corporation vs. filmmaker. Chevron had brought suit against director Joe Berlinger in an effort to subpoena over 600 hours of unused footage from his 2009 film Crude, which itself was a film about a court case in which the Ecuadorian people sued Chevron (then Texaco) over the pollution of the Amazon Rain Forest. Chevron believed the outtakes from the film would expose corruption on behalf of the Ecuadorian legal team.
Chevron had won the case for the footage, but Berlinger was granted his request for an appeal in June.
Yesterday an appeals court ruled that Berlinger had to turn over some, but not all, of the footage. According to the LA times, “While the judges said a full opinion would follow, they did order that Berlinger give Chevron footage not appearing in ‘Crude’ showing counsel for the plaintiffs in the environmental lawsuit (who discuss trial strategy in the film); experts in the proceeding (some of whom Chevron has accused of partiality); and current or former Ecuadorean government officials (which the oil company says colluded with the plaintiffs' lawyers).”
Evidently this was a fair decision, as both sides seemed pleased with the compromise. Chevron got the footage they were looking for. Berlinger remarked, "We are extremely pleased with today's results."
For those that may be interested in yesterday's appeal proceedings, courthousenews.com has a detailed account.
The NY Times reports that Joe Berliner was granted a stay to the subpoenia issued on May 6 that would have forced the filmmaker to turn over more than 600 hours of unused footage from his film Crude to the Chevron corporation.
Crude documents a lawsuit against Chevron on behalf of the Ecuadorian people, who claim that the oil giant polluted their country's water. Chevron is seeking access to the footage that didn’t make the final cut of the film because they believe it may help them as they try to have the lawsuit dismissed.
In an interview with the Times, Maura Wogan, Mr. Berlinger’s counsel, said that if her client had not been granted this stay, “he would have been forced to turn over this material before the appeal was heard – he would have, in effect, lost his right to an appeal.”
A trial date has not yet been set for the expedited appeal, but one is expected by mid-July.
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.
Joe Berlinger (via filmmakermagazine.com)
