Chevron Allowed to Subpoena Film

[Source: The New York Times, by Dave Itzkoff, May 6, 2010]

A federal judge in Manhattan on Thursday ruled that Chevron could subpoena footage from a documentary about the pollution of the Amazon rainforests of Ecuador and the oil company’s involvement.

Judge Lewis A. Kaplan of United States District Court said the director, Joe Berlinger, would have to turn over more than 600 hours of footage from his documentary “Crude.”  The film, which was released last year, chronicles the Ecuadoreans who sued Texaco (now owned by Chevron), saying the operations of the companies’ oil field at Lago Agrio contaminated their water.

Chevron, which is pursuing an international treaty arbitration related to the lawsuit and is seeking to have the litigation dismissed, said Mr. Berlinger’s footage could help the company.

Lawyers for Mr. Berlinger argued that his footage was 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 Mr. Berlinger had been unable to produce evidence that any of his filmed material was subject to any confidentiality agreements with his sources, and that the release forms the filmmaker used with his subjects gave him “carte blanche to use all of the footage in his production.”

Judge Kaplan cited the maxim of the former Justice Louis D. Brandeis that “sunlight is said to be the best of disinfectants,” and wrote, “Review of Berlinger’s outtakes will contribute to the goal of seeing not only that justice is done, but that it appears to be done.”

Randy M. Mastro, a lawyer for Chevron, said in a interview on Thursday, “This evidence will be critical to determining Ecuador’s violation of international law and its denial of due process and fair treatment to Chevron.”

Maura J. Wogan, a lawyer for Mr. Berlinger, said in a telephone interview, “We’re obviously very surprised at the court’s lack of sensitivity to the journalist’s privilege.”  She added, “The decision really threatens grave harm to documentary filmmakers and investigative reporters.”

The lawyers for Mr. Berlinger said they would ask Judge Kaplan to stay the subpoena while they appeal the decision.

[For the latest updates on this case, visit the filmmaker's blog at http://www.crudethemovie.com/crude-blog]