MANHATTAN (CN) – Movie director Joseph Berlinger must give Chevron a selection of outtakes from his 2009 documentary “Crude,” a three-judge panel on the 2nd Circuit Court of Appeals ruled late Thursday. Both sides claimed victory in the case. Chevron hopes the footage may help prove that its due process was violated in Ecuador, where it is being sued for $27 billion. Berlinger had appealed U.S. District Judge Lewis Kaplan’s order to turn over all 600 hours of “Crude” footage.
Berlinger claimed that as a documentary filmmaker, his outtakes were privileged and confidential – like a reporter’s notes – and he says that status has been confirmed by the appellate court’s ruling.
The ruling, issued by Judges Pierre Leval, Barrington Parker and Peter Hall, states that Chevron is entitled to review “copies of all footage that does not appear in publicly released versions of Crude showing: (a) counsel for the plaintiffs in the case of Maria Aguinda y Otros v. Chevron Corp.; (b) private or court-appointed experts in that proceeding; or (c) current or former officials of the Government of Ecuador.”
Berlinger’s attorney, Maura Wogan, said at the hearing Wednesday that the three categories encompass more than 50 percent of Berlinger’s footage.
Chevron is barred from using the outtakes for purposes other than “litigation, arbitration, or submission to official bodies, either local or international,” according to the ruling. The company must reimburse Berlinger for the cost of sorting and copying the film.
The judges’ opinion should be released soon. Their bare-bones ruling gives Chevron a chance to review the footage as quickly as possible.
Chevron argued that “time is of the essence” because two of its attorneys face possible criminal trials in Ecuador. Attorneys for the men said the trumped-up charges are just another way that the Ecuadoran government is trying to bully Chevron in the environmental lawsuit.
“We are pleased and eager to move forward with this matter,” Chevron spokesman Kent Robertson said in an email. “We have already seen instances of collusion and fraud on the part of plaintiffs’ lawyers in portions of Crude that have been publicly released. We are confident that review of the outtakes will reveal additional instances of misconduct.”
Berlinger also said he was pleased with the narrowed ruling.
“The appeals court has substantially limited Judge Kaplan’s overbroad order, which was the main thrust of our appeal,” Berlinger said in an email. “Furthermore, the court has expressly prohibited Chevron from using any footage we do turn over in their public relations campaigns, a goal that was extremely important to me. “
First Amendment lawyer Floyd Abrams filed an amicus brief in June, supporting Berlinger on behalf of media companies, including The Associated Press, Dow Jones, Gannett and Hearst.
“The courts have affirmed that documentary filmmakers are journalists deserving of First Amendment protection,” Berlinger said in an email. “I am deeply grateful for the tremendous outpouring of support that the artistic, media and journalist communities have shown towards this case in the past three months.”
Chevron received support from Dole Food and the National Association of Criminal Defense Lawyers.
“The fact that the lawyers for the Lago Agrio plaintiffs fought so hard to keep the ‘Crude’ outtakes from public view would seem to indicate that our suspicions are correct – that Joe Berlinger is privy to more misconduct on the part of the plaintiffs, that content was knowingly concealed from audiences, and that the plaintiffs’ lawyers have much to fear from Chevron’s review of the tapes,” Robertson said in an email.