This article originally appeared in the June 25, 2010 edition of MLRC Media Law Letter. Published with permission of the Media Law Resource Center.
The conflict between a journalist's right to safeguard his or her source materials from compelled disclosure and a litigant's right to obtain discovery in aid of a foreign proceeding is at the core of In re Chevron Corp., 10-1918 (2d Cir.), a case currently pending before the Second Circuit Court of Appeals.
Background
Joe Berlinger, an award-winning journalist and documentary filmmaker, has appealed from a lower court order requiring him to produce to Chevron Corporation more than 600 hours of unreleased raw footage produced in connection with a documentary film entitled Crude: The Real Price of Oil. Crude depicts the events surrounding the "Lago Agrio Litigation" – a class action lawsuit brought in Ecuador against Chevron by approximately 30,000 inhabitants of the Amazon rainforest for alleged environmental damage caused by Chevron's oil drilling operations in the 1960's and 70's and the company's inadequate remediation following its exit from the country. For more than three years, Berlinger and his crew travelled through the rainforests of Ecuador to investigate, film and document the people, places and events involved in the Lago Agrio Litigation, including the legal representatives from both sides of the controversy.
Crude debuted in January 2009 at the Sundance Film Festival and was later shown at over 80 national and international film festivals and in theaters. The 104-minute documentary film received numerous awards and was well-regarded by reviewers, many of whom focused on the film's even-handed and balanced treatment of the subject matter.
On April 9, 2010, Chevron and two Chevron employees filed applications in the Southern District of New York under 28 U.S.C. § 1782, seeking discovery in aid of a foreign proceeding. Among other restrictions, a person subject to a Section 1782 application "may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege."
The Chevron Parties' applications sought permission to issue to Berlinger and his affiliated companies subpoenas requiring them to turn over more than 600 hours of raw footage that were collected during the filming of Crude, as well as to provide testimony authenticating the footage. According to the Chevron Parties, they were seeking the raw footage as evidence in three foreign proceedings: the Lago Agrio Litigation, an international arbitration related to the Lago Agrio Litigation, and a criminal action in Ecuador against the two Chevron employees.
Berlinger opposed the applications on the ground that the undisclosed footage is protected by the journalist's privilege and that the applications did not satisfy the statutory requirements or discretionary factors under Section 1782. Counsel for the plaintiffs in the Lago Agrio Litigation also opposed the applications on similar grounds.
Berlinger argued that the raw footage he and his crew produced in connection with Crude – a film covering a newsworthy topic of considerable global importance – qualifies and indeed exemplifies the need for the protections of the journalist's privilege. Berlinger explained that requiring him to turn over his privileged materials would threaten his incentive and ability to engage in the documentary film process by deterring potential subjects from speaking freely to him, burdening him with subpoena compliance and conscripting him as an investigative arm of private litigants like Chevron.
Berlinger argued that the Chevron Parties did not meet their burden to overcome the journalist's privilege under the test enunciated by the Second Circuit in Gonzales v. NBC, 194 F.3d 29 (2d Cir. 1999), which held that both confidential and non-confidential materials are protected by the journalist's privilege. Id. at 35. Under Gonzales, where the material sought is confidential, the movant must make "a clear and specific showing" that "the information is highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources." Id. at 33. Where the information is non-confidential, the movant must show that "the materials at issue are of likely relevance to a significant issue in the case, and are not reasonably obtainable from other available sources." Id. at 36.
Berlinger contended that the more stringent standard for confidential materials should apply to his undisclosed footage because he had entered into agreements with several of his sources that he would not use certain footage in which they appeared. He also asserted that, either explicitly or implicitly, he had agreed with all of his subjects that he would not reveal any of the undisclosed outtakes to third parties other than as part of a documentary film he created. Finally, Berlinger argued that, even if the lower standard applicable to non-confidential materials applied, the Chevron Parties had not overcome their burden of showing the relevance of all 600 hours of outtakes to a significant issue in the foreign proceedings and that the materials were not obtainable elsewhere.
To support their claim that the outtakes were of likely relevance, the Chevron Parties highlighted three types of scenes in the released film: scenes showing interactions between counsel for the Lago Agrio Plaintiffs with an Ecuadorian judge, the newly-elected president Raphael Correa, and a Spanish scientist who was later commissioned to conduct a neutral focus group study of cancer rates in the region. They alleged that these scenes – amounting to under 10 minutes of footage – documented improper conduct by the Lago Agrio Plaintiffs, and they were therefore entitled to obtain all 600 hours of unused footage. Berlinger contested the significance of those scenes to the foreign proceedings and argued that, even if those isolated segments were relevant, the Chevron Parties' claim that all of the remaining footage was likely relevant (including the footage completely unrelated to those three scenes) was pure speculation and a classic fishing expedition. Furthermore, Berlinger argued that much of the raw footage was easily obtainable from other sources, such as shots of the environmental harm to the people and land of the Ecuadorian Amazon and public events attended and often independently filmed by Chevron. Finally, Berlinger argued that the two Chevron employee applicants who are facing criminal charges in Ecuador had not shown that anything in the film is relevant to their cases, much less that anything in the outtakes was likely to be relevant.
The District Court Order
By order entered May 6, 2010, Judge Lewis A. Kaplan granted the Chevron Parties' applications in their entirety, permitting them to subpoena all 600 hours of raw footage without, as Berlinger had requested, limiting the use of the footage to submissions to the foreign proceedings or prohibiting disclosure of the footage to third parties or the public at large.
After holding that the statutory requirements under Section 1782 had been satisfied, the District Court examined the four discretionary factors enunciated by the Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), and held they too weighed in favor of granting the applications. With respect to the fourth factor, which looks at whether the subpoena contains unduly intrusive or burdensome requests, the District Court refused to "credit any assertion that the discovery of the outtakes by petitioners would compromise the ability of Berlinger or, for that matter, any other film maker, to obtain material from individuals interested in confidential treatment."
Turning to the journalist's privilege, the District Court first held that under the test established in von Bulow v. von Bulow, 811 F.2d 136, 142 (2d Cir. 1987), Crude qualifies for the privilege because, to create the film, "Berlinger investigated 'the events and people surrounding' the Lago Agrio Litigation, a newsworthy event, and disseminated his film to the public."
The District Court next held that none of the raw footage is entitled to confidential treatment. The court found that Berlinger's assertions concerning his confidentiality agreements were "conclusory," even though Berlinger had submitted sworn testimony detailing the nature of those agreements. Also central to the finding of non-confidentiality was the court's determination that an unsigned form release submitted by Chevron suggested that Berlinger retained complete editorial control over the footage.
Having determined that the footage is not entitled to confidential treatment, the District Court analyzed whether the materials were "of likely relevance to a significant issue" in the foreign proceedings and "not reasonably obtainable from other available sources." Gonzales, 194 F.3d at 36. The District Court described the three types of scenes that Chevron had highlighted in its application and held that, because those scenes contained relevant material, Chevron had overcome its burden of proving the likely relevance of all 600 hours of raw footage. The court also noted that Berlinger had supposedly been "solicited" to create the film by counsel for the Lago Agrio, who appear on the screen throughout the film, and that Berlinger had edited one scene in the film at their suggestion. The court also found that the Chevron employees had shown the likely relevance of all of the outtakes to the criminal proceedings against them, but without citing to even a single scene in Crude and ignoring Berlinger's testimony that the outtakes contain no material concerning the criminal prosecutions.
Finally, the District Court held that "the footage petitioners seek would not reasonably be obtainable elsewhere" because Berlinger "is in sole possession of the Crude outtakes" and the footage would contain "unimpeachably objective" evidence of the events that were filmed.
The Second Circuit Appeal
On May 13, 2010, pursuant to the District Court's order, the Chevron Parties served the subpoenas requiring Berlinger to turn over all of the raw footage on May 19, 2010. The next day, Berlinger appealed the order and sought a stay pending appeal, which the District Court denied. Berlinger immediately filed a motion for a stay in the Second Circuit, which the Court granted on June 8, 2010.
In his appeal, Berlinger argues that requiring him to produce all 600 hours of footage from Crude violates the journalist's privilege protecting his right to engage freely in the newsgathering process without the fear that his materials may be seized at any time by private litigants. In holding that the journalist's privilege had been overcome, the District Court erred in at least four ways:
- The court failed to "credit" the substantial burden that the disclosure of even non-confidential materials would impose on Berlinger and other journalists, as the Second Circuit recognized in Gonzales.
- The District Court's conclusion that all 600 hours of raw footage were of likely relevance to the foreign proceedings, based solely on the purported relevance of three scenes in the film, constituted an unwarranted leap in logic. Granting the Chevron Parties access to hundreds of hours of unreleased footage that does not relate to those isolated scenes authorized them to engage in a fishing expedition far exceeding the scope of any previous court order requiring the production of outtakes.
- The District Court erred in holding that, to meet the "availability" test, the Chevron Parties need only show that the footage itself, rather than requiring them to establish that the information contained in the footage was not reasonably obtainable from another source.
- The District Court erroneously held that all of the footage was non-confidential because the court ignored uncontroverted evidence that Berlinger had entered into confidentiality agreements with many of his subjects.
The case is scheduled for argument on July 14, 2010.
A copy of the briefs filed by Berlinger in the Second Circuit can be found at http://www.fkks.com.
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