A filmmaker's fight against an oil company seeking his raw documentary footage has spurred a national debate on the reporter's privilege, pitting media organizations and filmmakers against powerful corporations and criminal defense attorneys. At stake is the breadth of the protection given to unpublished newsgathering materials and, ultimately, the basic trust between journalists and their sources.
On July 14, lawyers for filmmaker Joe Berlinger will go before the Second Circuit Court of Appeals in New York to appeal an order requiring Berlinger to turn over to the Chevron Corporation 600 hours of footage collected for his 2009 film, "Crude: The Real Price of Oil" ("Crude"). Chevron sought disclosure of the footage in connection with an ongoing class action suit against it in an Ecuadorian court. The lawsuit revolves around oil pollution in the Ecuadorian Amazon, allegedly caused in the 1970s and 80s by Texaco. Chevron absorbed the legal liabilities of Texaco after it merged with the company in 2001. The oil company believes the Crude footage will shed light on a corrupt legal process in Ecuador and help in the defense of two of its lawyers facing related criminal charges.
"I do believe they think there is some kind of smoking gun there that will somehow help them," said Berlinger on a panel in Manhattan, following a recent screening of Crude.
Hollywood guilds, documentarians, media companies and professional groups have rallied in support of Berlinger in two amicus briefs filed recently. These amici ask the Second Circuit to overturn the lower court ruling, which they say "made it far too easy for Chevron to obtain far too much." As part of their argument, they invoke the reporter's privilege, which allows journalists to withhold from a court confidential or non-confidential information they learned in their professional capacity. Meanwhile, the Dole Food Company and the National Association of Criminal Defense Lawyers filed two separate amicus briefs on behalf of the Chevron parties. These amici argue that the reporter's privilege was not intended to withhold “outtakes to interviews of persons who voluntarily appeared on camera” from litigants facing disputes as serious as those facing the Chevron parties.
As the significant amicus participation suggests, the appeal presents a number of issues with important implications for the future of the reporter's privilege, a privilege that is relevant to online media, documentary filmmakers, and mainstream media organizations alike.
Background of the Film and Controversy
In 2003, lawyers acting on behalf of 30,000 Ecuadorians filed a class action lawsuit against Chevron in the town of Lago Agrio, Ecuador, alleging violations of a 1999 Ecuadorian environmental law. The Ecuadorian plaintiffs allege that the oil giant is liable for polluting waters in the Lago Agrio area and ask for up to $27 billion in damages and cleanup costs. Also in 2003, the Ecuadorian government filed criminal charges against two Chevron attorneys, alleging that they falsified public documents and violated environmental laws.
According to court papers, in 2005 one of the plaintiffs' lawyers in the Lago Agrio case solicited Berlinger to produce a documentary depicting the litigation from the plaintiffs' perspective. For the next three years, Berlinger shadowed the plaintiffs' lawyers and filmed "the events and people surrounding the trial," compiling six hundred hours of raw footage. Crude premiered to critical acclaim in 2009 at the Sundance Film Festival, and was shown at more than 80 film festivals, receiving praise for its even-handedness by reviewers. According to its own press package, the film "captures the evidentiary phase of the Lago Agrio trial."
Following the film's premiere, Chevron and the two attorneys facing criminal charges filed applications in a New York federal court seeking Berlinger’s raw footage for Crude. They pointed to scenes in the film showing interactions between plaintiffs’ counsel and an expert witness, a judge, and Ecuadorean government officials, respectively. They asserted that outtakes for these and other scenes are "highly likely to be directly relevant" to their class action lawsuit and to the criminal proceedings against the attorneys. They also argued for access to the remaining footage on the basis that Berlinger, according to his own press statements, was given "extraordinary access to players on all sides of the legal fight and beyond." Berlinger opposed the applications on the grounds that the footage was protected by the reporter's privilege and that compliance with such subpoenas would be a burdensome intrusion into his editorial process.
"My sources expected that I was going to protect them and use their footage to make a film," Berlinger said at the previously mentioned Manhattan screening of Crude. "They never would have assumed that the information they gave me would be just handed over to the other side, to be used without any limitation."
District Court Decision
On May 6, 2010, Judge Lewis A. Kaplan of the Southern District of New York issued an order granting the applications of Chevron and its attorneys in their entirety. The district court's order permits the Chevron parties to obtain all 600 hours of footage, without granting Berlinger's request to prohibit disclosure of the footage to third parties or even the public-at-large.
As an initial matter, Judge Kaplan found that the qualified reporter's privilege applied to Crude, because Berlinger investigated "the events and people surrounding the Lago Agrio Litigation, a newsworthy event, and disseminated his film to the public."
Under the controlling reporter's privilege case, Gonzales v. National Broadcasting Company, 194 F.3d 29 (2d Cir. 1999), if the information sought is confidential, civil litigants have to make "a clear and specific showing" that the "information is highly material and relevant, necessary or critical to the maintenance of the claim and not obtainable from other available sources." Id. at 33. If the information sought is not confidential, civil litigants need only show “the materials at issue are of likely relevance to a significant issue in the case, and are not reasonably obtainable from other available sources.” Id. at 36. The burden is diminished when the party seeking discovery is a criminal defendant. Id.
Judge Kaplan rejected Berlinger's argument that the footage was confidential, discounting Berlinger’s affidavit that he had confidentiality agreements with his sources because he did not identify any source, subject, or scene covered by such an agreement and did not explain whether the confidential footage was in the outtakes or already published in the documentary. Berlinger also did not explain how his assurances of confidentiality squared with his standard release forms, which granted him carte blanche to use all of his footage in the production. As a result, Judge Kaplan deemed the footage non-confidential and found that the qualified privilege protecting the footage was overcome under the less demanding two-part Gonzales test.
On the relevance prong of Gonzales, Judge Kaplan found that any interactions captured in the footage between plaintiffs’ counsel and a supposedly neutral expert would be likely relevant to “whether the expert is independent and his damages assessment reliable.” Likewise, footage of plaintiffs’ counsel interacting with the Ecuadorian judiciary and government officials could show that the Chevron parties were denied due process in the civil and criminal matters in Ecuador. Although Judge Kaplan did not review all 600 hours of footage, he was persuaded of their relevance by excerpts of the published film shown to him at an evidentiary hearing.
Judge Kaplan also found that the material sought by the Chevron parties from Berlinger was not reasonably obtainable from other sources, because Berlinger “is in sole possession of the Crude outtakes.” The Judge dismissed Berlinger’s argument that his outtakes were cumulative or duplicated decades worth of scientific reports and analyses, as well as his argument that Chevron recorded all phases of the case covered by Berlinger. What seemed most pertinent to Judge Kaplan was that Berlinger, according to Crude’s own press package, was given "extraordinary access to players on all sides of the legal fight and beyond."
Amicus Curiae Positions
The Media and the Filmmakers
The media amicus brief, drafted by leading First Amendment lawyer Floyd Abrams, focuses on application of the Gonzales case to non-confidential information. The brief, submitted on behalf of The Washington Post, The New York Times Company, The Associated Press, Dow Jones & Company and 11 other news organizations, argues that the district court's ruling violates "both the letter and the spirit" of Gonzales and threatens to "severely undermine the continued validity of a journalist's privilege with respect to outtakes and unpublished newsgathering material."
The media brief argues that the district court misapplied the two-part Gonzales test. First, it shifted the "likely relevance" burden away from the Chevron parties by accepting "the sweeping assumption that all 600 hours of tape—nearly 350 times the footage that appeared in the final film itself—contained material 'of likely relevance to a significant issue in the case' even though there was no basis in the record for this assumption." Amici argue that the difficulty involved in reviewing the material in its entirety does not justify disregarding a legally-recognized, First Amendment-rooted privilege. Second, the media coalition argues that the district court misapplied the “reasonably obtainable from other available sources” portion of the test by focusing on the footage itself, rather than the information contained in that footage.
Alongside the media, a group of filmmakers filed their own amicus brief. The filmmakers' coalition includes the International Documentary Association, the Directors Guild of America, the Tribeca Film Institute, 12 other filmmaker organizations and nine individual filmmakers. The filmmakers’ brief included similar arguments on the misapplication of the Gonzales standard. In addition, they develop more fully Berlinger’s confidentiality argument, contending that outtakes should be protected under the more demanding three-part Gonzales test for confidential information, given "the implicit understanding of confidentiality that existed between Berlinger and his interview subjects." (emphasis added)
The Dole Food Company and the Defense Attorneys
The Dole Food Company, itself facing legal battles in Latin America, argues in its brief that Crude is part of a "growing trend of plaintiffs’ lawyers using a supposedly factual documentary film in a public campaign seeking to discredit the targeted defendants." The fruit company notes that it was the subject of a similar documentary film, "Bananas!*," which chronicles lawsuits filed against the company in the United States. Dole used outtakes from the film in its own defense and filed its amicus brief to help ensure that "legal rules applicable to privilege claims, whether asserted by parties or non-parties such as filmmakers who have teamed up with plaintiffs’ lawyers, [are] applied in a fair and balanced way." Turning to Chevron’s dispute, Dole asserts that the district court properly applied the less demanding Gonzales standard for non-confidential material and that Berlinger's definition of confidentiality would blur the dividing line between different privilege tests.
The National Association of Criminal Defense Lawyers ("Association") also filed an amicus brief. It argues that the circumstances here—non-confidential information sought from a filmmaker who allegedly colluded with a plaintiff’s attorney—present a particularly weak case for upholding the common law reporter's privilege. With respect to the Gonzales test, the Association first reminds the appellate court that the standard for overcoming the privilege is less stringent for criminal defendants. It then argues that the district court correctly held the Chevron attorneys met the standard, “given the importance of their interests as criminal defendants and the relative weakness of Berlinger's asserted interest.” Citing to the Supreme Court decision in United States v. Nixon, 418 U.S. 683, 709 (1974), the Association emphasizes that, in criminal cases, "only the strongest of societal interests justifies foregoing ‘every man's evidence’ and thus distorting the truth-seeking process."
What is really at stake here?
Where Hollywood and the Media Got It Wrong: Precedent, Confidentiality and Misuse
Much has been written about the potential catastrophic consequences to journalism if the Second Circuit affirms the district court’s ruling in support of the Chevron subpoena. Aside from the amicus briefs filed in this case, and an open letter sent to Judge Kaplan from the documentary community, media and film luminaries like actor Robert Redford and journalist Bill Moyers have published separate opinion pieces in Berlinger’s defense. Yet, some of these concerns may be overstated.
I. Limited Precedent
First, an adverse ruling for Berlinger in the Second Circuit would not spell trouble for journalists across the country. While it is an influential appellate court, the Second Circuit’s decisions are only binding in federal district courts in three states, New York, Connecticut and Vermont. Other circuits, some of which seem to have stronger protections for journalists than the Second Circuit, could decide future such privilege cases differently. See, e.g., Shoen v. Shoen, 48 F.3d 412, 416 (9th Cir.1995); Zerilli v. Smith, 656 F.2d 705, 714 (D.C. Cir. 1981); Riley v. City of Chester, 612 F.2d 708, 717 (3rd Cir. 1979). Plus, state courts deciding privilege issues under state shield laws can interpret state law in their own fashion.
II. No Impact on Privilege of Traditional Confidential Information
Second, if the Second Circuit were to rule against Berlinger, it would have no legal bearing on access to information obtained by journalists through an express promise of confidentiality. In a recent press release, the International Documentary Association and dozens of big name filmmakers noted that they feared that an adverse ruling for Berlinger would devastate the ability of documentary filmmakers "to not only acquire the statements they need from confidential sources, but also to protect through anonymity those who do come forward to tell their stories." But use of the term "confidential" seems strained here given Berlinger’s public statements about his outtakes, his option to publish all the footage he collected, and his failure to provide the court with even redacted versions of his confidentiality agreements. Moreover, the record does not show the existence of sources who were granted anonymity in exchange for providing information or who gave Berlinger information on condition that he could publish it only if sourced elsewhere. Thus, fears about the impact on collection of confidential information are likely misplaced.
III. Unwarranted Fear of Misuse
At a recent screening of Crude in Manhattan, Berlinger expressed concern that if he lost his case, one of the largest U.S. oil companies would likely use the footage not only for the courts, but also for public relations purposes on the Internet or elsewhere. “If you scour 600 hours of footage and take things out of context, you can do anything, you can spin any story,” he said. His concern is understandable, but the Second Circuit can mitigate the problem by issuing a protective order, previously denied to Berlinger by the district court, that limits the Chevron parties' use of the outtakes to litigation. Even if no such protective order is granted and the Chevron parties uses the outtakes outside the litigation, Berlinger still has the option of releasing more outtakes to give the Chevron release the necessary context.
Where Hollywood and the Media Got It Right: Non-Confidential Information
Despite the important qualifications mentioned above, the concerns of the media and the filmmaking community are warranted when it comes to the district court's treatment of non-confidential information. A wholesale affirmation of the district court ruling would signal a dramatic weakening of the privilege in the Second Circuit. It would essentially reduce the two-factor Gonzales standard into a single-factor "likely relevance" test, because a reporter's actual unpublished material could never be obtainable elsewhere. And this “likely relevance" test, as interpreted by the district court, would seem to allow litigants to acquire large swaths of unpublished material by merely showing the relevance of a small portion of it. As the media brief notes, this interpretation effectively "shifts the burden of alleged unfairness onto the [journalist] rendering this Circuit's requirement of a relevance showing meaningless." Such an attenuation of the reporter's privilege would carry enormous costs for the press, and, by extension, the public seeking access to information.
First, a weakened standard would encourage more—and more burdensome— subpoenas in federal cases. The significant additional burdens of responding to and defending against such subpoenas could chip away at the already dwindling resources of the press and divert time and energy away from important newsgathering activity. Second, a weakened reporter's privilege, even just for non-confidential information, may leave journalists with fewer forthcoming sources. As media and filmmaker amicus briefs explain effectively, even non-confidential sources expect journalists to be independent chroniclers of events, not investigative functionaries for private litigants and the government. Still, whether this presumed expectation for journalists will convince a Second Circuit panel to protect Berlinger's outtakes from forced disclosure remains an open question.
An update on this case is available here.
(Itai Maytal is a media law attorney in New York and was the 2009 First Amendment Fellow at The New York Times Company.)