Published November 20, 2014
A federal appeals court on Wednesday raised the possibility that it might order a filmmaker to turn over only some of the raw footage from his documentary about a legal dispute between Chevron and Ecuadoreans over oil contamination.
Members of a three-judge panel of the 2nd U.S. Circuit Court of Appeals in Manhattan showed little sympathy for arguments by a lawyer for filmmaker Joseph Berlinger who said Chevron had no right to obtain outtakes of Berlinger's work on the documentary "Crude," released last year.
In May, U.S. District Judge Lewis Kaplan ordered the filmmaker to turn over about 600 hours of raw footage from the film. Kaplan said Berlinger could not use the First Amendment to shield himself from the effort by Chevron to get the footage.
The appeals judges seemed to agree with Kaplan, though they suggested that they might limit the amount of raw footage that must be turned over to ensure it is necessary for Chevron's litigation and cannot be gotten elsewhere. Though they did not immediately rule, the judges seemed poised to issue a decision quickly.
Berlinger attorney Maura Wogan said as much as 50 percent of what Berlinger filmed consists of public judicial proceedings and should not be delivered to Chevron.
At one point during the hearing, Judge Barrington D. Parker asked Randy Mastro, Chevron's lawyer, what problem would result if Kaplan assigned a special master to recommend to the judge which of the outtakes should be given to Chevron.
"Time is of the essence," Mastro responded, saying a lengthy process could irreparably harm Chevron's effort to be treated fairly in the courts in Ecuador.
The lawsuit in Ecuador is the continuation of a 17-year-old legal fight. Ecuadoreans claim their land was contaminated during three decades of oil exploration and extraction by Texaco Inc., which became a wholly owned subsidiary of San Ramon, Calif.-based Chevron Corp. in 2001.
Chevron says the raw footage will help bolster its case that lawyers for the plaintiffs have worked to manipulate the judicial system in Ecuador for their own benefit.
Some of the discussion before the appeals court concerned publicity in the case.
Wogan at one point said Berlinger would be willing to surrender some raw footage but wanted assurances that Chevron would not use them in a publicity campaign.
Kaplan said earlier this year that he was not swayed by claims by lawyers for the Ecuadorean plaintiffs that hundreds of filmmakers had written a letter to say Berlinger's rights were being violated. The lawyers had noted in a release that filmmakers Michael Moore and Ric Burns, among others, had criticized Kaplan's ruling against Berlinger.
Critics of Kaplan's ruling have said it would be difficult to persuade sources to cooperate with filmmakers if the decision were not reversed.
Kaplan concluded that Berlinger had no confidentiality agreements with anyone interviewed for the film and thus could not rely on a journalist's privilege.
In a statement released after Wednesday's hearing, Berlinger said he thought the appeals court was "sympathetic to our primary concern about narrowing the amount of footage to be produced and making sure it is put under some kind of protective order."
He added: "My fingers are crossed for a favorable decision."