In a decision that is sending a shock wave of concern through the community of investigative documentary filmmakers and journalists, acclaimed producer/director Joe Berlinger has been ordered by Judge Lewis A. Kaplan in United States District Court to turn over more than 600 hours of raw footage shot for his documentary Crude to Chevron for use in defending against a $27-billion lawsuit brought against the multinational company by Ecuadorian indignious peoples. Certain aspects of the lawsuit, in which plaintiffs claim that their water supply was contaminated by Texaco (now owned by Chevron) in the operation of an oil field at Lago Agrio, and events leading up to the lawsuit are chronicled in Berlinger's documentary, which was released in 2009.
Chevron, pursuing an international treaty arbitration related to the lawsuit, is seeking to have the litigation dismissed. Claiming that Berlinger's raw footage -- which, according to Berlinger, they have not yet seen -- could be helpful to their case, Chevron demanded all of the material Berlinger shot during the extensive period he was working on the documentary.
In subpoenaing Berlinger's footage, Chevron's attorneys singled out one scene from "Crude" in which representatives for the plaintiffs in the Lago Agrio lawsuit are shown participating in a focus group with a neutral court expert. They claim the scene indicates improper collaboration, and said that other footage shot by Berlinger could show other such instances.
Berlinger's lawyers argued that his footage is protected by his privilege as an investigative journalist, and that turning over the film would violate confidentiality agreements with his subjects as well as his First Amendment rights.
In siding with Chevron, Judge Kaplan wrote that Berlinger hadn't met his burden of showing that his footage was subject to any confidentiality agreements with his sources, and that release forms used with his subjects gave him "carte blanche to use all of the footage in his production." Judge Kaplan also noted, however, that Chevron, which once praised Ecuador's legal system and moved to have the lawsuit heard there, was now arguing that the company and its defense in the lawsuit could become a victim of political influence in Ecuador.
Berlinger, who see Judge Kaplan's ruling as a direct threat to First Amendment rights and to any journalist's ability to guarantee confidentiality to prospective sources, will appeal the decision. Expect a huge surge of support for him.
(PHOTO: Joe Berlinger. Courtesy Joe Berlinger.)