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

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.