Appeals Court Narrows, Upholds Subpoena for Film Outtakes

On July 16, 2010, a federal appeals court limited a subpoena for 600 hours of raw footage from a documentary about an international lawsuit between Chevron Corp. and Ecuadorian citizens who allege the oil company is responsible for environmental contamination.

The three-judge panel of the 2nd Circuit U.S. Court of Appeals ordered filmmaker Joseph Berlinger—whose film "Crude" was released in September 2009—to turn over to Chevron all outtakes that show the Ecuadorians' lawyers, "private or court-appointed experts" involved in the lawsuit, or "current or former officials of the Government of Ecuador." Chevron Corp. v. Berlinger, Nos. 10-1918-cv, 10-1966-cv (2d Cir. July 15, 2010)

NPR's "All Things Considered" reported June 4 that Chevron requested the footage because it believed it will help show that lawyers suing the company have acted unethically—associating with government officials and pressuring Ecuadorian judges when Chevron lawyers were not present.

In May 2010, U.S. District Judge Lewis Kaplan ordered Berlinger to hand over all of his unused footage to Chevron. Berlinger had claimed that the footage was protected by a qualified journalists' privilege recognized in the 2nd Circuit. In a May 6 memorandum opinion, Kaplan ruled that under 2nd Circuit precedent, the privilege—which is not reserved exclusively for "member[s] of the institutional press"—applied to Berlinger because he was "involved in activities traditionally associated with the gathering and dissemination of news." However, Kaplan wrote, Berlinger failed to demonstrate that the information contained in the footage was confidential. Berlinger "has not sustained his burden of demonstrating confidentiality for purposes of the journalist privilege. ... He does not identify any source or subject with whom he had ... [a confidentiality] agreement. He docs [sic] not identify any particular footage allegedly covered by such agreements," and therefore Berlinger's subjects did not have a reasonable expectation of confidentiality, Kaplan wrote. Because the raw footage was not confidential, Chevron needed only to show it was relevant to the case and not easily obtainable from other sources to compel its disclosure—a burden it clearly met, Kaplan ruled. In re Application of Chevron Corp., 2010 U.S. Dist. LEXIS 47042 (S.D.N.Y., May 6, 2010)

On appeal, the case attracted amicus briefs on both sides of the question. One brief was filed by prominent First Amendment attorney Floyd Abrams on behalf of media corporations and advocates including ABC, CBS, NBC, The Associated Press (AP), Dow Jones & Company, Gannett Co., the National Press Photographers Association, The New York Times Company, The Washington Post, the Reporters Committee For Freedom of the Press, and the Society of Environmental Journalists. The brief argued that the subpoena—and Kaplan's ruling—was too broad because it included footage that was irrelevant to Chevron's case.

Jane Kirtley, director of the Silha Center and professor of media ethics and law at the University of Minnesota, told Reuters for a June 25 story that documentary outtakes ought to have the same protections as a journalist's notebook. However, she said, "it's often a tough argument to make because it really does require a judge to buy into the idea that what you're protecting here is editorial and journalistic independence."

Dole Food Company also filed an amicus brief, arguing that the footage should be released, and that Berlinger and the media corporations were "pressing for an expansive interpretation of" the 2nd Circuit's decisions on journalist's privilege in order to "recast" the court's standard for compelling disclosure. Dole's brief explained in its "statement of interest" that, "like many other large U.S. companies, [Dole] finds itself facing lawsuits brought in foreign countries or on behalf of foreign citizens by U.S.-based lawyers. ... part of a growing global tort business in which 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."

The 2nd Circuit's order also specified that the footage be used "solely for litigation, arbitration, or submission to official bodies," and ordered Chevron to pay any expenses related to the duplication or sorting of the footage.

Although the 2nd Circuit did not overturn the lower court's order, Berlinger said he was pleased with the ruling because it limited what he must disclose, the AP reported on July 16.

"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," Berlinger said. "The courts have affirmed that documentary filmmakers are journalists deserving of First Amendment protection."

However, the AP reported that Karen Hinton, a representative for the Ecuadorians' lawyers, decried the decision. "This ruling undermines investigative journalism during a time when more aggressive inquiry is sorely needed in the oil industry," she said.

The 2nd Circuit's order noted that a full opinion was forthcoming; when the Bulletin went to press it had not been released.

- Patrick File
Silha Fellow and Bulletin Editor



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This page contains a single entry by cla published on September 10, 2010 3:41 PM.

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