Comment   |   Volume 160, Issue 3

Chevron Corp. v. Berlinger and the Future of the Journalists' Privilege for Documentary Filmmakers

Tom Isler

February 2012

The documentary film Crude, directed by award-winning filmmaker Joseph Berlinger, tells the story of a class action lawsuit brought by thousands of Ecuadorians against the oil company Chevron, alleging that the company’s systematic contamination of a portion of the Amazon jungle increased the rates of cancer, leukemia, birth defects, and other health problems for the indigenous people of the region. Berlinger and his crew spent three years filming but captured only a small portion of the ongoing fight between the Ecuadorians and Chevron. By the time Berlinger’s cameras arrived, the legal battle was already a dozen years old, and a title screen at the end of Crude predicts that the litigation could last another decade. The film premiered at the 2009 Sundance Film Festival and went on to earn dozens of nominations and awards from film festival juries and critics’ organizations around the world.

In 2010, Chevron and, separately, two of Chevron’s lawyers who were facing criminal charges in Ecuador for falsifying documents, moved to subpoena nearly six-hundred hours of raw footage, or “outtakes,” that Berlinger did not include in the completed film. Chevron sought to prove that the plaintiffs’ lawyers exerted improper influence over judges and experts involved in the proceedings in Ecuador through ex parte communications, and it argued that Berlinger’s footage contained evidence of this misconduct. Berlinger attempted to quash the subpoenas on the ground that he was protected by the journalists’ privilege.

The district court ordered Berlinger to turn over all of his outtakes—the largest mandate to turn over outtakes ever ordered by a U.S. court. In doing so, the court revealed its misunderstanding of outtakes and how they should be treated under the existing journalists’ privilege doctrine. The Second Circuit’s standard for obtaining nonconfidential material from journalists, set forth in Gonzales v. NBC, requires petitioners to prove that the material sought is “of likely relevance to a significant issue in the case” and “not reasonably obtainable from other available sources.” The district court in the Berlinger litigation, after assuming that this qualified privilege applies to independent documentary filmmakers, narrowed the protection of journalistic work product by collapsing the two-pronged Gonzales test into a general standard of “likely relevance” for outtakes, and lowered the bar for what constitutes relevance. The Second Circuit narrowed but nonetheless affirmed the order. The Second Circuit further ruled that because Berlinger appeared to be subject to the influence of his filmmaking subjects, he lacked the editorial independence necessary to qualify for the journalists’ privilege.

<i>Chevron Corp. v. Berlinger</i> and the Future of the Journalists' Privilege for Documentary Filmmakers -

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