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Appeals Court: No Journalist Protection for Documentary Filmmaker

The Second Circuit Court of Appeals has ruled today that filmmaker Joseph Berlinger can't invoke journalistic privilege to prevent outtake footage from his documentary Crude from falling into the hands of Chevron.

Lawyers for Chevron argued that 600 hours of raw footage from Berlinger's film was "urgently needed evidence" critical to the company's defense of litigation in Ecuador. The case was heard in July before the Second Circuit after a federal judge had ordered Berlinger to cooperate, saying that Chevron's subpoena attempts were "no fishing expedition." Since the ruling, the footage handed over has played a role in the ongoing case.

Berlinger has maintained that he is fighting for the First Amendment in his attempts to hold back Chevron, and he has received support from the Directors Guild of America and prominent media organizations in his fight.

Will the ruling make sources think twice before cooperating with documentary filmmakers? The answer might depend on the independence of the filmmaker in telling the story.

According to today's opinion:

"Given all the circumstances of the making of the film, as reasonably found by the district court, particularly the fact that Berlinger’s making of the film was solicited by the plaintiffs in the Lago Agrio litigation for the purpose of telling their story, and that changes to the film were made at their instance, Berlinger failed to carry his burden of showing that he collected information for the purpose of independent reporting and commentary. Accordingly,we cannot say it was error for the district court to conclude that petitioners had successfully overcome Berlinger’s claim of privilege. "


Berlinger e-mailed us this statement:

I am deeply concerned by the Court's fundamental misunderstanding of the circumstances surrounding the production of this film in particular and the nature of long-term investigative documentary reporting in general, when filmmakers embed themselves with their subjects over a long period of time to be able to tell underreported stories that serve the public interest

While the idea for CRUDE was pitched to me by Steven Donziger, one of the Lago AgrioPlaintiffs' lawyers, this was not a commissioned film. I had complete editorial independence, as did 60 Minutes and Vanity Fair who also produced stories on this case that were solicited by Mr. Donziger.   The decision to modify one scene in the film based on comments from the plaintiffs' lawyers after viewing the film at the Sundance Film Festival was exclusively my own and in no way diminishes the independence of this production from its subjects. I rejected many other suggested changes and my documentary CRUDE has been widely praised for its balance in the presentation of Chevron's point of view as well as the plaintiffs'.   

The facts concerning my independence were never fully before the Second Circuit, because this was not a significant issue in the district court proceedings and not addressed in the district court's holding.  The appeals court's ruling that a journalist must affirmatively establish editorial independence is a sea change in the law.  The standards it articulates for determining independence will unfortunately deter a great deal of important reporting by independent journalists. 

  The WGA has also issued a statement in reaction to the ruling:  

"In response to the United States Court of Appeals for the Second Circuit’s latest ruling, the Writers Guild of America, East reaffirms its support of filmmaker Joe Berlinger’s independence as a journalist and his rights under the First Amendment. As Mr. Berlinger himself stated, the ruling that a journalist must affirmatively establish editorial independence to maintain the press privilege ‘is a sea change in the law. The standards it articulates for determining independence will unfortunately deter a great deal of important reporting by independent journalists.’ The court’s ruling fails to fully understand the nature of news and documentary reporting and will have a chilling effect on journalists who constantly receive information from sources representing a variety of interests and points of view – tips that lead to stories vital to the public interest and the public's  right to know.”