Last week I wrote about a brewing court battle between filmmaker Joe Berlinger and the oil company Chevron over 600 hours of outtakes from his documentary, “Crude: The Real Price of Oil” (“Crude”). Chevron and its attorneys had argued in federal district court in the Southern District of New York that they wanted the footage because it might be useful to them in their pending lawsuits in Ecuador, which arose out of charges of widespread oil pollution in the country. Crude covers the underlying class-action civil lawsuit against Chevron.
A day after a standing room only hearing in New York—attended by the media, filmmakers, rainforest activist Trudie Styler (wife of the musician Sting) and even a large group of high school students on a field trip—a three-judge panel of the Second Circuit Court of Appeals issued a tentative ruling on the status of Berlinger’s outtakes. In their 2-page ruling, Judges Pierre N. Leval, Barrington D. Parker Jr. and Peter W. Hall ruled on Thursday that Berlinger has to hand over some footage to the Chevron parties, subject to the following terms:
- Berlinger has to turn over all footage showing (1) plaintiffs’ counsel in Chevron’s civil lawsuit in Ecuador, (2) private or court-appointed experts, and (3) current or former Ecuadorian officials;
- Chevron can only use the material produced for litigation, arbitration or submission to official government bodies;
- Chevron must pay for all reasonable costs incurred by Berlinger in turning over the footage; and
- The district court below shall maintain jurisdiction to address any disputes relating to the release of the footage.
The appellate court’s order compelling disclosure of only certain footage appears to have narrowed the ruling of the district court judge, Lewis A. Kaplan, who required disclosure of all of Berlinger’s outtakes. The appellate panel also seems to have rejected the costly and time-consuming proposal raised in the July 14 hearing of having a special master review and process for relevance the hundreds of hours of material that did not fit into the three categories of footage identified by the court and the parties.
Already, both sides of the controversy are claiming victory.
In a statement to the Wall Street Journal, Berlinger noted he was particularly pleased with the order because it barred Chevron from using his footage in “their public relations campaigns, a goal that was extremely important to me.” He also told the New York Times blog that he thought the order “preserved the basic standards [of protection] for non-confidential material.” Maura J. Wogan, a lawyer for Berlinger, echoed, to some degree, her client’s sentiment to the same Times blog, noting that the order “from what we’ve seen so far, is certainly a narrowing of Judge Kaplan’s broad order.”
Meanwhile, Randy M. Mastro, a lawyer representing Chevron, said in statement to the same Times blog that he was pleased with the Second Circuit for responding “so swiftly to Chevron’s emergency need for this evidence to defend itself against a travesty of justice in Ecuador.”
Mastro should certainly be satisfied given that, by his own calculation, plaintiffs’ counsel was in 70 percent of Crude. The outtakes could be similarly dominated by plaintiffs’ counsel’s presence, leading to a possible production of almost 420 hours of footage. Such a forced disclosure arising out the ruling must surely, in the words of Karen Hinton, spokesperson for the plaintiffs in the Ecuadorean suit against Chevron, undermine "investigative journalism during a time when more inquiry is sorely needed in the oil industry."
Still, famed First Amendment lawyer Floyd Abrams noted to the Los Angeles Times that no victor in this case should be declared until the full ruling of the panel is published. It will be troubling if the panel merely memorializes what was essentially a settlement reached in open court without disturbing the lower court's analysis. Despite the unusual factual circumstances of this case, the lower court's opinion is arguably a weakening of the key reporter's privilege case in the Second Circuit, Gonzales v. National Broadcasting Company, 194 F.3d 29 (2d Cir. 1999). As I wrote last week, the end result could be more burdensome subpoenas on the press, which would divert their limited resources and attention. But, this all ultimately depends on what rationale the court offers for its decision in the weeks to come.(Itai Maytal is a media law attorney in New York and was the 2009 First Amendment Fellow at The New York Times Company.)