Circuit finds 'Crude' filmmaker lacked independence

Independence is the key factor in determining whether journalists can invoke a qualified evidentiary privilege for the information they have gathered.

That point was emphasized yesterday as the U.S. Court of Appeals for the Second Circuit explained why it upheld a judge's order that filmmaker Joseph Berlinger turn over footage from "Crude," a documentary about the multi-billion dollar litigation over oil company pollution in Ecuador.

In 2010, Southern District Judge Lewis A. Kaplan ordered production of the outtakes, saying Mr. Berlinger could not invoke the privilege because he had been solicited to make the film by plaintiff's attorney Steven Donziger and that he actually removed footage from the film at Mr. Donziger's request.

Mr. Donziger represents Ecuadorian residents who claim environmental degradation and resulting health consequences.

Chevron, defending itself against charges that its predecessor Texaco caused massive environmental damage in Ecuador, and two of Chevron's lawyers who are facing what they say are trumped up criminal charges in Ecuador, requested the footage to show that Mr. Donziger was attempting to corrupt Ecuador's judicial system in an attempt win a $27 billion award.

Chevron charged that Mr. Donziger improperly influenced a court-appointed expert witness who contributed to the damages assessment for cancer deaths, and that he then requested Mr. Berlinger to remove from the "Crude" DVD scenes of the attorney's interaction with that witness. There was also the question of whether Mr. Donziger pressured authorities to bring criminal charges against the two Chevron lawyers.

Finding that the outtakes could provide objective evidence of misconduct, Judge Kaplan ordered the release of some 600 hours of outtakes.

Mr. Berlinger, as well as the Ecuadorian plaintiffs in the court of Ecuador at Lago Agrio, appealed to the Second Circuit, where Judges Pierre Leval, Barrington Parker and Peter Hall heard arguments on July 14, 2010, in Chevron Corp. v. Berlinger, 10-1918-cv (NYLJ, July 15, 2010).

The following day, the court ordered Mr. Berlinger to turn over all footage showing plaintiffs' counsel in the Lago Agrio litigation, "private or court-appointed experts in the proceeding" or "current or former officials in the Government of Ecuador."

In its opinion released yesterday, the circuit reiterated the "long-recognized qualified evidentiary privilege" for information journalists gather in investigations.

The privilege, the court said, citing von Bulow v. von Bulow, 811 F.2d 136 (2d Cir. 1987), "is intended to protect the public's interest in being informed by 'a vigorous, aggressive and independent press.'"

Writing for the court, Judge Leval outlined what that independence means.

"While freedom of speech and of the press belongs to virtually anyone who intends to publish anything (with a few narrow exceptions), all those who intend to publish do not share an equal entitlement to the press privilege from compelled disclosure," he said. "Those who gather and publish information because they have been commissioned to publish in order to serve the objectives of others who have a stake in the subject of the reporting are not acting as an independent press."

"Those who do not retain independence as to what they will publish but are subservient to the objectives of others who have a stake in what will be published have either a weaker privilege or none at all."

The circuit's July order narrowed, albeit slightly, the number of outtakes to be produced. In the end, more than 500 hours of film were turned over, giving more ammunition to the lawyers representing Chevron and its two embattled lawyers, Rodrigo Perez Pallares and Ricardo Reis Veiga.

Chevron lawyer Randy Mastro of Gibson, Dunn & Crutcher was able to get subpoenas enforced to obtain documents from Mr. Berlinger and his deposition, and in turn, obtain documents from Mr. Donziger and depose him as well.

The deposition of Mr. Donziger is ongoing and there was a hearing yesterday before Judge Kaplan in which Mr. Mastro pressed his case that Mr. Donziger should be held in contempt for noncompliance with the subpoena, particularly his failure to conduct thorough searches of his e-mail accounts. That issue is expected to be taken up again next week.

"We always said this wasn't a First Amendment case, it was a case about important evidence that a U.S. party facing a bogus multi-billion judgment needed to defend itself," Mr. Mastro said.

He said plaintiffs' lawyers who enlist "sympathetic documentary filmmakers" to do films to promote their litigation causes cannot use those filmmakers "as a sword and then try to use them as a shield."

Independent reporting

In its opinion yesterday, the circuit said Judge Kaplan made no error in finding that the privilege did not apply because of Mr. Berlinger's lack of independence.

"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," the court said.

Floyd Abrams of Cahill Gordon & Reindel filed an amicus brief on behalf of several media organizations arguing against the compelled production of the outtakes.

Mr. Abrams said he was pleased that the panel gave such a strong reaffirmation of the privilege in what he called "an extremely fact-based and case-specific ruling."

"Judge Leval was very careful to reaffirm, and do so very clearly, that in the ordinary case journalists will still receive the benefits of a qualified but nonetheless important legal protection against having to produce their outtakes," he said.

But Mr. Abrams was also concerned about situations where journalists are accused of being non-independent and have to "affirmatively demonstrate that no money came from the entity they are writing about or filming and there was complete journalistic autonomy."

"In most cases, that should not be difficult because there are some problems unique to the area of what I call personal documentaries that are made by people who do become involved because one side or the other persuades the producer that there may be wrong doing or there is nothing wrong," he said. "We'll just have to see how this plays out, and precisely what kind of showing a filmmaker has to make to demonstrate independence."

Maura Wogan of Frankfurt Kurnit Klein & Selz argued for Mr. Berlinger.

(Published by Law.com - January 14, 2011)