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Director Loses Appeal Over ‘Crude’ Outtakes

MANHATTAN (CN) - The 2nd Circuit said a documentary filmmaker cannot fight a subpoena from Chevron because he is not protected by journalist's privilege. Joseph Berlinger's work was not independent journalism since the lawyers suing Chevron in Lago Agrio, Ecuador, for $113 billion, solicited him to make the film, the court found.

A federal judge had ordered Berlinger to turn over raw footage left out of his 2009 documentary "Crude."

In creating the film, Berlinger got an intimate look at the lawsuit against Chevron over damage to the Ecuadorian rainforest from 30 years of drilling in the country conducted by Texaco, which became a Chevron subsidiary in 2001.

In a bid to draw international attention to the case, and mount pressure on Chevron, the lawyers suing Chevron, including Steven Donziger, invited filmmaker Joseph Berlinger to document the rainforest devastation.

A contentious legal battle ensued, with Chevron claiming that the "Crude" outtakes prove its due process was violated in Ecuador. Berlinger called upon First Amendment experts and media companies for support of his journalistic privilege.

Berlinger rejected the court's conclusion that his work was not independent.

"I am deeply concerned by the court's fundamental misunderstanding of the circumstances surrounding the production of this film in particular and the nature of long-term investigative documentary reporting in general, when filmmakers embed themselves with their subjects over a long period of time to be able to tell underreported stories that serve the public interest," Berlinger wrote in an e-mail.

"Pitching" the story is not the same as "commissioning" it, Berlinger explained.

"I had complete editorial independence, as did '60 Minutes' and Vanity Fair, who also produced stories on this case that were solicited by Mr. Donziger," Berlinger wrote. "The decision to modify one scene in the film based on comments from the plaintiffs' lawyers after viewing the film at the Sundance Film Festival was exclusively my own and in no way diminishes the independence of this production from its subjects. I rejected many other suggested changes and my documentary 'Crude' has been widely praised for its balance in the presentation of Chevron's point of view as well as the plaintiffs'."

Chevron has been seeking discovery in courts throughout the United States as two of its attorneys face criminal charges in Ecuador for their role in representing the company. They also hope the evidence will be helpful to prove their case in international arbitration proceedings against Ecuador.

The Manhattan federal appeals panel rejected Berlinger's arguments on Thursday.

"Given all the circumstances of the making of the film, as reasonably found by the district court, particularly the fact that Berlinger's making of the film was solicited by the plaintiffs in the Lago Agrio litigation for the purpose of telling their story, and that changes to the film were made at their instance, Berlinger failed to carry his burden of showing that he collected information for the purpose of independent reporting and commentary," Judge Pierre Leval wrote for the court in a 23-page opinion (emphasis in original). "Accordingly, we cannot say it was error for the district court to conclude that petitioners had successfully overcome Berlinger's claim of privilege."

Without passing judgment on "Crude," Leval found that it simply was not independent journalism.

"The burden is on the person who claims the privilege to show entitlement, and in this instance, Berlinger failed to persuade the district court that he undertook the task with independence," Leval wrote.

Berlinger added that he wished he had a greater opportunity to present his independence to the 2nd Circuit because that issue was not a significant part of the district court proceedings.

"The appeals court's ruling that a journalist must affirmatively establish editorial independence is a sea change in the law," Berlinger wrote. "The standards it articulates for determining independence will unfortunately deter a great deal of important reporting by independent journalists."

As the 2nd Circuit ruled on Berlinger's appeal, the federal court ordered Steven Donziger, a lawyer behind the Ecuadorians' lawsuit, to comply with Chevron's subpoenas.

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