Kaplan dismissed Berlinger's argument that the interviews were confidential, meaning he couldn't claim that they were closely protected by a journalist's privilege, which (like an attorney-client relationship) in some cases prevents reporters from having to surrender their notes. The judge also said he did not believe Berlinger's "activities as a filmmaker would be unduly burdened" by having to surrender the extra footage. The 2nd Circuit Court of Appeals will hear arguments about overturning or affirming Kaplan's ruling and could rule in just a few weeks.
"The material here without question is protected by the journalist's privilege," said Maura Wogan, a lawyer for Berlinger.
"The nature of the relationship [between a filmmaker and his subjects] is one of trust and access," Berlinger said. "And these kinds of stories are built on a trusting relationship." The director has other concerns too. "My fear is that the motivation here is not to find evidence," Berlinger said. "It's to use my footage as part of [Chevron's] massive public relations campaign to discredit the plaintiffs and the case and me."
Last year, Dole sued Swedish filmmaker Gertten, arguing that his 2009 documentary film "Bananas!*," a look at litigation involving the produce company's alleged misuse of a pesticide in Nicaragua, "promotes as fact a false story" and ignored a judgment in the case against Dole that was dismissed as fraudulent.