A Crude awakening

May 1, 2010 by Barry Walsh

As we were going to press for this issue, news broke of the latest update regarding a ruling handed down by Judge Lewis A. Kaplan in the U.S. District Court that, if upheld, will require documentarian Joe Berlinger to hand over 600 hours of footage from his last film, Crude, to energy company Chevron.

At press time, Berlinger has been given a 10-day extension to the original date that he was given to hand over the footage. It’s the latest twist in the 17-year legal saga between Chevron and groups of indigenous Ecuadorians who contend that an oil operation owned by Texaco (now part of Chevron) in Lago Agrio contaminated their water supply. Chevron wants to subpoena the footage as it maintains there will likely be content that is ‘directly relevant’ to the Lago Agrio litigation. Berlinger and his lawyers argue that the request is in direct opposition to the First Amendment and that the footage should lie under the protection of the journalists’ privilege. While the judge did state in his original ruling that the ‘qualified journalists’ privilege applies to Berlinger’s raw footage,’ he also wrote that the filmmaker and his lawyers didn’t fully disclose any confidentiality agreements held with the film’s subjects or sources, and maintains that the standard release form issued by the director to subjects ‘expressly disclaims any expectation of confidentiality.’

However, Berlinger has told the New York Times that placing specific information about confidentiality agreements in a public court document flies against the concept of confidentiality. He’s also said that he offered to present the arrangements in an in- camera session, but that offer was rebuked by the judge.

After news of the ruling hit, the show of support from the doc community came fast and furious. A letter, spearheaded by filmmaker Patrick Creadon and editor Doug Blush (I.O.U.S.A., Wordplay) and supported by the IDA, was issued days later, and it now boasts over 400 signatures – among them, from Michael Moore, Louie Psihoyos, Kim Longinotto and Errol Morris. The letter registers the shock felt by many in the doc world that the scope of the ruling covers all of the footage shot and not, at least, specific outtakes or scenes that may be seen as relevant to the litigation.

‘It was a tough call to fight this,’ Berlinger told realscreen before the extension was issued. ‘It’s very costly to me personally and a bit of an uphill battle… this spontaneous outpouring of support kind of spurred me on to continue to fight.’

The case certainly has its complexities, but as seen through the letter, the consensus from many in the doc world and beyond is that if the ruling stands and Berlinger has to ship off the footage to Chevron’s legal team, it will set an incredibly dangerous precedent for doc-makers and journalists. Access is the most integral element of the documentary process, and Berlinger and his supporters maintain that’s what is in danger of being jeopardized should Chevron’s lawyers win the day.

The extension buys Berlinger and his lawyers a little time to pursue an appeal to the United States Court of Appeals for the Second Circuit. In the meantime, the director says the messages of support ‘make me feel like I’m not alone.’

Barry Walsh

Editor

UPDATE: Judge Denny Chin of the United States Court of Appeals for the Second Circuit has stayed the subpoena until June 8 to permit a hearing in which a three-judge panel will hear Berlinger’s motions for a stay pending appeal and an expedited appeal.

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