Filmmaker must turn over unused footage

From the Summer 2010 issue of The News Media & The Law, page 14.

An appellate court panel has ordered a documentary filmmaker who chronicled the legal battle over Chevron’s alleged pollution of the Ecuadorian rainforest to turn over portions of his unused footage to the oil company.

Though documentarian Joe Berlinger had resisted a subpoena for all 600 hours of raw footage he shot during the making of “Crude: The Real Price of Oil,” he characterized the court’s order to hand over footage in several narrow categories as a “limited victory.”

“It’s a good result … but not a great result,” Berlinger added.

It didn’t take long for the U.S. Court of Appeals in New York City (2nd Cir.) to issue its ruling, which came the day after the court heard oral arguments on July 14. At that hearing, Chevron attorney Randy Mastro urged the court to make a quick decision, saying the footage was necessary in three ongoing legal matters over oil drilling in Lago Agrio, Ecuador. One of the three lawsuits was the subject of Berlinger’s documentary.

Though Mastro had previously asked the court to uphold a ruling that Berlinger must turn over all 600 hours of outtakes, the appellate judges, after hearing during oral arguments that Berlinger would not be totally opposed to turning over a more narrowly specified amount of footage, ordered the filmmaker to produce outtakes that fell into three categories.

“Berlinger shall promptly turn over to the petitioners copies of all footage that does not appear in publicly released versions of Crude showing: (a) counsel for the plaintiffs in the case of Maria Aguinda y Otros v. Chevron Corp.; (b) private or court-appointed experts in that proceeding; or (c) current or former officials of the Government of Ecuador,” the order stated.

These categories were described by Mastro during oral arguments as the most important because he felt they might show improper handling of the Ecuadorian cases in which Chevron is involved.

Berlinger said that because he’s satisfied that the court at least narrowed the amount of footage he’d have to hand over, he didn’t plan to appeal the order before the full appellate court.

“I think we risk a worse result [if we appeal],” Berlinger said. “As you know, most appeals aren’t successful, and the panel was obviously persuaded by Chevron’s urgency.”

Berlinger estimated that the three categories he must produce to Chevron would amount to at least half of the unused footage.

The Journalist’s Privilege Test

Though the appeals court issued an order to release footage, Berlinger and Chevron are still awaiting the court’s written opinion, which is likely to explain the court’s interpretation of the Gonzales case, a 1999 appeals court case that spells out the test for when a journalist must turn over information deemed to be nonconfidential.

The trial court judge — Judge Lewis A. Kaplan of the Southern District of New York — relied on that case when on May 6 he ruled that Berlinger’s full outtakes should be released. The court in Gonzales said that information is to be handed over if it is “likely relevant” to “significant issues” and is “not obtainable elsewhere.” Kaplan reasoned that all of these factors existed and the footage was necessary for Chevron to mount its defense.

Berlinger said one of his fears in fighting Chevron’s petition was that he would set a worse precedent than the outcome in Gonzales.

“I didn’t want Berlinger v. Chevron to be the new test,” he said, explaining that he felt the standard in Gonzales was already too weak when it came to supporting a reporter’s privilege to protect information.

Though Berlinger has not yet had the opportunity to read the court’s reasoning, he said he was pleased that the judges’ comments at oral arguments and the wording of the order indicated that the court considered documentary filmmakers to be journalists, which is something Chevron had disputed, arguing that a reporter’s privilege could not be applied in this case because the attorney subjects in the documentary approached Berlinger with the idea and gave him unprecedented access.

“This case literally is the opposite of the classic journalists’ privilege case, where an investigative journalist, pursuing a story and relying on frightened confidential sources, seeks court protection of their identities and information,” Chevron’s brief argued.

Berlinger’s attorney, Maura Wogan, addressed this issue in a brief filed with the court and argued that not only did the reporter’s privilege apply to Berlinger, a stricter standard should be used than Gonzales since some of the material, which was filmed over a three-year period, was in fact confidential in nature.

“[W]ithout the ability to assure his subjects that the footage he is capturing will be used for the limited purpose of making a documentary, Berlinger and other similarly situated investigative journalists will not be able to undertake this type of long-form investigative film in the future,” her brief argued.

In the end, Berlinger said he’ll accept the narrow ruling and expects that Chevron will do the same. Mastro did not return repeated requests for comment.

Why Chevron wanted the outtakes

When Chevron bought oil and gas company Texaco in 2001, the company’s history came with its assets. Over about two decades, beginning in 1972, Texaco had created hundreds of wells in Lago Agrio, situated in the Amazon rainforest. When Texaco turned over its operations to the Ecuadorian company Petroecuador, Vanity Fair writer William Langewiesche described the operation as one that had created a “noxious soup that for decades was dumped into leaky pits, or directly in the Amazonian watershed.”

The “noxious soup” spawned multiple lawsuits, which in turn led to the petition for Berlinger’s outtakes. Chevron claims that Berlinger’s footage could aid its defense in three separate cases: a civil suit filed in 2003 against the company by the indigenous people of Lago Agrio; an Ecuadorian criminal suit alleging fraud by two of the company’s former lawyers; and an international arbitration case initiated by Chevron in an attempt to get a declaration that the company cannot be brought to trial in Ecuador.

When Berlinger fought the petition, he was backed by New York-based attorney Ilaan Maazel, who is representing the 30,000 indigenous people of Lago Agrio and is intimately familiar with the Ecuadorian proceedings. Maazel has been dealing with the lawsuit against Chevron for seven years and is not fond of the company’s legal practices and he was concerned the company’s attempt to limit the journalist’s privilege set a negative legal precedent.

“They mounted a full assault on the Amazon and now they’re mounting a full assault on journalism,” he said of Chevron.

Maazel argued against an even limited release of outtakes in the recent oral arguments before the appeals court.

While the verdict is in that Berlinger will hand over footage in three categories, Maazel’s battle against Chevron in the Ecuadorian court system is still ongoing. The evidence-gathering phase of the case is over, during which hundreds of on-site investigations of oil wells occurred in the presence of a judge. Now, the plaintiffs are waiting.

“No one can say when the court will rule,” he said, adding that he entered a petition in the Ecuadorian court asking if the judge was interested in seeing Berlinger’s outtakes.

“The court, so far, has shown no interest,” he said.