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.
Like "Crude," Gertten's film followed a plaintiffs' lawyer — in this case, the prolific bus advertiser Juan Dominguez — who allowed Gertten to shadow him. Dole withdrew the suit in October, but is still displeased with how the food giant was treated in the film. "Both 'Bananas!*' and 'Crude' are part of the growing trend of plaintiffs' lawyers using a supposedly factual documentary film in a public campaign seeking to discredit the targeted defendants," Dole said in its friend-of-the-court brief.
"Documentary filmmaking is still the last bastion for truth telling," Gertten said. "It's very sad that Dole has now shown their support for Chevron's attack on Joe Berlinger."
Chevron lawyer Mastro, whose firm Gibson, Dunn & Crutcher was suspended from the 1st Amendment-promoting Media Law Resource Center for its representation of Dole in the "Bananas!*" case, said neither he nor his firm was out to silence journalists and nonfiction filmmakers.
"This is not a case about the 1st Amendment," Mastro said. "It's about an American company urgently needing this evidence to defend itself."