Wednesday, April 28, 2010

Filmmaker Vows to Fight Chevron's Demand for Ecuador Footage, Cites 1st Amendment

As I wrote about in my last post, the latest target of Chevron's abusive legal tactics in the Ecuador case is critically-acclaimed filmmaker Joe Berlinger, director of the award-winning documentary Crude. Chevron is going after Joe because Crude dared to look unflinchingly at the oil giant's legacy in Ecuador's Amazon region, and won large audiences, accolades from critics, and prestigious awards while doing so.

A couple of weeks ago, Chevron asked the Federal court in New York to allow it to subpoena Berlinger, demanding he turn over "all of the 'Crude' footage that was shot, acquired, or licensed in connection with the the movie 'Crude'" – more than 600 hours of footage on hundreds of tapes and across countless digital platforms, collected over several years. On Friday, lawyers representing Berlinger and his production company filed a motion opposing the subpoena.

Berlinger and his attorneys have vowed to "vigorously" fight the subpoena, saying that his raw footage is protected no differently than a reporter's confidential sources under the First Amendment and what is referred to as journalist's privilege.

Yesterday, The San Francisco Chronicle explains why Chevron's lawyers say they want the footage. Chevron spokesman Kent Robertson alleges that Berlinger captured a moment in which lawyers for the plaintiffs appear to be present during a community meeting about the health impacts of oil contamination that was supposed to be conducted without influence from either side.

But Berlinger, who was there and had developed an intimate understanding of the case, said the lawyers weren't actually present during the meeting referenced by Chevron.

According to the Chronicle:

"The scene in question, Berlinger said, briefly shows the lawyers at an earlier plaintiffs' meeting that included a consultant who was later hired by the court to perform the cancer survey."

Chevron says they want the footage to see if Berlinger “may have also unwittingly captured on film other instances" of the plaintiffs misconduct. But Berlinger just explained away the one instance the company highlighted to justify its demand that an investigative journalist turn over his constitutionally-protected materials.

Berlinger explains it well on's 'documentaries blog':

"Our opposition has nothing to do with Chevron's position regarding issues raised in the lawsuit depicted in the film, but rather represents our concern about this as an unnecessary breach of our First Amendment rights -- not only as they pertain to Crude, but also with long term implications for investigative documentary filmmaking, which represents a singularly important form of in-depth reporting in the contemporary media forum."

"And this position has, as I said, has nothing to do with the fact that it's Chevron -- the defendant -- requesting the footage. This would be my position equally strongly if it were the plaintiffs who wanted access to everything we'd shot for the film."

Berlinger summarizes his opposition to Chevron's subpoena in comments to film industry website

"There is a lot at stake here. This is a financial burden for a documentarian to fight this fight. But if Chevron is successful in getting a journalist to turn over a work in process, it will have a chilling effect on this kind of documentary making in future."

Berlinger will face off with Chevron's hired gun attorneys from law firm Gibson Dunn at a hearing on Friday, April 30th at 10:15 am, at the U.S. District Court, Daniel Patrick Moynihan Courthouse (500 Pearl St. in New York), before Judge Lewis A. Kaplan.

– Han

Han Shan is the Coordinator of Amazon Watch's Clean Up Ecuador Campaign.

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