2010.09.04

Filmmakers Argue Against Ruling In Chevron Case

Sunday, Jul 4, 2010

NEW YORK (Dow Jones)–A group of high-profile documentary makers and film-making associations have asked a federal appeals court to overturn a ruling giving oil giant Chevron Corp. (CVX) access to hundreds of hours of unpublished documentary film footage, saying it infringes on journalistic privileges and has the ability to irreparably damage the documentary-making industry.

In a document filed Wednesday in the U.S. Court of Appeals for the Second Circuit, the groups support Joseph Berlinger, the producer of “Crude: The Real Price of Oil,” who has been ordered to turn over 600 hours of nonpublic footage he shot.

Lawyers for Chevron, and two Chevron lawyers facing criminal charges in Ecuador, have argued the footage should be turned over because it will shed light on a corrupt legal process in Ecuador. They argue the deck is stacked against the oil company in a bruising legal fight over environmental damages to Ecuador’s Amazon region. Another filing Wednesday by Dole Food Company Inc. (DOLE) in the case supported Chevron’s position that the footage should be available.

Earlier this month the appeals court upheld a stay on the matter and approved an expedited hearing on the appeal, likely coming next month.

In the court filing supporting Berlinger, the documentary industry says it has an open letter signed by more than 300 people, including high-profile names like Davis Guggenheim and Errol Morris.

It argues that not only should Berlinger’s outtake footage be considered protected by journalistic privilege and the First Amendment, but that if the ruling is upheld, it “will have a chilling effect on the creation of socially important documentary films.”

“If subjects fear that their outtakes may be taken out of context and used against them by their adversaries in litigation, they will be less willing to participate,” the brief reads. “The District Court’s order will significantly impair the creation of documentary films that investigate controversial issues.”

The brief quotes filmmaker Theodore Braun, who has won awards for his documentary on Sudan, “Darfur Now,” saying what he has included in his film was “a matter of life or death” for many of his sources.

Arguing for Chevron’s side of the argument, Dole said Berlinger’s subjects were voluntarily filmed and had signed releases giving Berlinger permission to reveal any or all of the footage. It argued the journalistic privilege of those interviews shouldn’t be held above the serious matters facing Chevron and its employees because the interviews shouldn’t be considered confidential.

The fruit company, which is itself embroiled in legal battles in Latin America, said a documentary shot on its operations in Nicaragua knowingly disregarded the truth. While it was able to use the footage of the film in its own lawsuits, it said if the court protected the “Crude” outtakes under journalistic privilege it would be overstepping the law’s intent.

“Notwithstanding the alarmist claims that the heavens will fall if Berlinger is forced to provide the outtakes to interviews of persons who voluntarily appeared on camera for his film,” Dole’s brief says, “the incursion on the interests of Berlinger, or other documentary filmmakers, is minimal.”

Among the groups signed onto the filmmakers’ brief were the Directors Guild of America Inc.; the Tribeca Film Institute; and two chapters of the Writers Guild of America. Also signing were a litany of well-known documentary-making names including Alex Gibney, an Oscar winner and producer of “Enron: The Smartest Guys in the Room”; Robert Kenner, the director and producer of “Food, Inc.”; and Tia Lessin, a producer for three of Michael Moore’s films.


-By David Benoit, Dow Jones Newswires; 212-227-2017; david.benoit@dowjones.com