A federal appeals panel has ruled quickly that though Joe Berlinger does not have to surrender all 600 hours of outtakes from his film "Crude" to Chevron Corp., the documentary filmmaker must immediately hand over several categories of unused film footage.
In an order issued Thursday, a day after the closely watched 1st Amendment case was argued in New York, the three-judge panel said that Berlinger must turn over outtakes related to three issues covered in his 2009 film about environmental litigation in Ecuador. The 17-year-old environmental case could cost Chevron $27 billion in damages and cleanup costs.
Chevron had been seeking all of the director's unused film footage, arguing that it was relevant to its Ecuador defense, not covered by a journalist's privilege of confidentiality and unavailable from other sources. A U.S. district judge in May directed Berlinger to hand over all 600 hours of outtakes from his film about the litigation.
Floyd Abrams, a prominent 1st Amendment lawyer who opposed the district court's ruling in a brief for media companies submitted to the U.S. 2nd Circuit Court of Appeals, said, "I'm not saying it's a victory" but added that it was important to see the panel's full ruling before making conclusions. "Requiring the production of certain materials" in the Chevron dispute, he said, does not necessarily mean the concept of "protecting outtakes has been damaged."
In their appeal of the May ruling, Berlinger's lawyers — joined by attorneys like Abrams representing media companies, filmmakers and documentary associations —told the appeals court that Chevron's demand, if granted, would undermine the protections journalists give the people they interview and have the "chilling effect" of preventing others from talking to reporters in the future.
While the judges said a full opinion would follow, they did order that Berlinger give Chevron footage not appearing in "Crude" showing counsel for the plaintiffs in the environmental lawsuit (who discuss trial strategy in the film); experts in the proceeding (some of whom Chevron has accused of partiality); and current or former Ecuadorean government officials (which the oil company says colluded with the plaintiffs' lawyers).
The judges instructed Chevron not to use the footage outside of litigation, arbitration or submissions to official bodies. Berlinger had said he feared his outtakes might be used for public relations purposes. "We are extremely pleased with today's results," Berlinger said.
Chevron's lawyer was more than satisfied with the ruling. "Plaintiffs' counsel were on screen more than 70% of the film, so the outtakes are likely to be similarly dominated by them, and all of that footage now has to be produced," Randy Mastro said.
Michael Donaldson, who filed a friend-of-the-court brief supporting Berlinger on behalf of the International Documentary Assn. and others, said, "I think it's a limited win for both sides. Chevron gets something it was after, and Joe Berlinger's outtakes to a certain extent are protected."