‘Crude’ Filmmaker Must|Comply With Subpoenas

MANHATTAN (CN) - Documentary filmmaker Joseph Berlinger must comply with additional subpoenas and testify at depositions, a federal judge ruled. "Chevron's quest for discovery is no fishing expedition," U.S. District Judge Lewis Kaplan wrote.

Kaplan had ruled on Chevron's first request, in May, seeking access to outtakes from Berlinger's 2009 documentary "Crude." He ordered Berlinger to turn over more than 600 hours of raw footage.

A contentious legal battle ensued, with Chevron claiming that the "Crude" outtakes prove its due process was violated in Ecuador, and Berlinger fighting most of Chevron's applications on the basis of journalist's privilege.

Chevron faces a $27 billion lawsuit in Lago Agrio, Ecuador, over alleged environmental contamination by Texaco, which became a Chevron subsidiary. Berlinger obtained intimate access to the lawyers representing the Lago Agrio plaintiffs while filming "Crude" and chronicling the effects of oil drilling in the Amazon rainforest.

Judge Kaplan's latest ruling came this week in a 28-page opinion.

Buoyed by an amicus briefs on behalf of media organizations including The Associated Press and documentary filmmakers including Michael Moore, an appeals court ruled in July to limit the footage Berlinger must release to Chevron.

After Berlinger turned over 85 percent of the footage he filmed, which fell into three categories that the appellate court deemed relevant to Chevron's claims, Chevron filed a motion for additional discovery from Berlinger and four members of the "Crude" crew.

Berlinger opposed the motion and filed a counterclaim against Chevron in which he accused the company of violating a court order by publicizing the material obtained from his outtakes.

In this week's ruling, Kaplan threw out Berlinger's cross claim and ordered him to comply with the request for deposition, pointing to "substantial evidence of misconduct in and relating to the Ecuadorian litigation."

"Berlinger was invited by the Lago Agrio plaintiffs to make 'Crude' and given extraordinary access, a fact amply demonstrated by the contents of the film and the outtakes," Kaplan wrote. "The Lago Agrio plaintiffs' counsel acted in his presence in the (mistaken) belief that Berlinger could not be subpoenaed to tell what he knew or to produce his outtakes."

Kaplan added that Berlinger and his counsel have not been forthcoming about what the "Crude" footage contains.

"For example, their assertion that there was nothing relevant in the outtakes because anything of significance wound up in 'Crude' is belied by the fact that over 85 percent of all of the outtakes came within the Second Circuit's order and now, belatedly, have been produced," Kaplan wrote.

"Likewise, only last week, Berlinger's counsel confessed that their assertions, made to the Second Circuit during oral argument, that the outtakes contained nothing relating to criminal proceedings in Ecuador were 'overstatements.' These and similar instances are worrisome in considering their present claims. In all the circumstances, it is exceptionally likely that Berlinger and his associates have information that is highly relevant and that does not appear either in 'Crude' or in the outtakes."

Berlinger and his attorney, Maura Wogan, did not respond to a request to comment for this article.

Kaplan said Berlinger cannot use journalist's privilege to avoid testifying about what he witnessed in Ecuador.

"There is a fundamental difference - ignored by Berlinger - between the issuance of a subpoena, which is relief sought by the present motion, and the ultimate compulsion of the production of evidence or testimony," Kaplan wrote. "The word 'journalist,' in other words, is not an incantation that protects against the issuance of a subpoena, although a properly supported claim of privilege may well protect against the imposition of, or limit, any duty to comply with it."

Kaplan found that Berlinger did not establish that his observations are privileged or confidential.

"Like the sweeping claims of privilege with respect to whatever responsive documents may be in his possession, Berlinger's blanket claim of privilege with respect to Chevron's attempt to obtain testimony about what he and his affiliates saw and heard is at best premature," Kaplan wrote. "He and his associates have provided extremely little, if any, information about what they saw and heard or the circumstances in which that occurred."

To protect Berlinger's "legitimate interests" and confine Chevron's inquiry to relevant information that has not been disclosed in the outtakes, Kaplan limited depositions of Berlinger and his four associates to observations of the counsel for the Lago Agrio plaintiffs, private or court-appointed experts, and current or former Ecuadoran officials.

Berlinger also must preserve all potentially relevant evidence.

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