Second Cir. releases opinion on "Crude" outtakes

The U.S. Court of Appeals in New York City (2nd Cir.) Thursday affirmed a federal district court's ruling that required a documentary filmmaker to turn over all unused footage from his film, "Crude: The Real Price of Oil," which chronicled Ecuadorians who sued Texaco (now owned by Chevron) regarding alleged pollution of the Ecuador rainforest. The released opinion was simply a written decision supporting a June order finding that the footage had to be disclosed.

In April, Chevron subpoenaed filmmaker Joe Berlinger to obtain 600 hours of raw footage, claiming it was needed as evidence in three ongoing legal matters regarding the company's oil drilling in Lago Agrio, Ecuador. Berlinger claimed the outtakes should be protected by a journalist's privilege, which the Second Circuit has long recognized.

While the appellate court's opinion in Chevron Corp. v. Berlinger "recognized a qualified evidentiary privilege for information gathered in a journalistic investigation," it noted that the privilege would only be upheld "where the purpose to disseminate the information motivated the gathering" as opposed to "where the information was gathered for other reasons and the intent to publish arose only later."

The court found Berlinger was not covered by the privilege because he failed to prove "he collected information for the purpose of independent reporting and commentary." (The emphasis is in the opinion.) The court emphasized that it was not deciding that he was not an independent journalist, but was instead just upholding the lower court's determination that he had failed to prove that he was.

The lower court had ruled that Berlinger was "solicited" by Stephen Donziger, the legal adviser to the Lago Agrio plaintiffs, to produce the film to serve the objectives of the litigants. The district court ruling also noted that Berlinger removed at least one scene from the film at the request of the Lago Agrio plaintiffs.

Berlinger appealed the district court decision to the Second Circuit and the appellate court issued an order on June 8, 2010, requiring Berlinger to turn over "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 court clarified that a journalist solicited to investigate and publish a story supporting the viewpoint of his or her employer can still be protected under the privilege by establishing journalistic independence through evidence of editorial and financial independence. It found, however, that while the oil company had made a showing that Berlinger was not independent, he had failed to counter that in a manner convincing to the trial judge. The appellate court also found that the trial court "was not obliged to credit [Berlinger's] self-serving testimony" about his own independence as a filmmaker.