Today, a panel of three Federal Appeal Court judges heard arguments to determine whether Joe Berlinger will have to turn over to Chevron 600 hours of raw footage he shot while producing the documentary CRUDE. Chevron went to court to gain access to the footage to help in defending itself against a massive Ecuadorian class action lawsuit brought by workers and residents of the Amazon who are seeking redress for years of environmental pollution.
Michael C. Donaldson filed an Amicus Brief on behalf of IFP, as well as 22 other industry organizations and individuals, who saw the order to turn over the footage as a threat to the future of investigative documentaries. The judges heard from attorneys for Chevron, for Joe Berlinger, and for the Ecuadorian plaintiffs. The hearing, which was initially scheduled to last forty-two minutes, lasted an hour and forty minutes. About the only thing the attorneys could agree on in their oral arguments was that the fate of Berlinger’s appeal was controlled by a 1998 case – issued by this same court – entitled Gonzalez v. NBC. In fact, the three-judge panel that heard Berlinger’s appeal included Judge Leval who was on the panel for the Gonzalez case.
The judges have taken the case under submission, promising to issue their decision “expeditiously.” Although one can never predict exactly what a court will decide, it’s of Donaldson’s opinion that the lower court’s order to turn over the 600 hours of footage would be substantially cut – and that an additional step would be taken of putting restrictions on how the information gathered could be used by Chevron, i.e.: that it could not simply be used in the massive PR campaign Chevron has mounted, but that it could be used only in court or government proceedings. Additionally, Donaldson felt that the judges were prepared to confirm the test set forth in the Gonzalez case which stated that, in order for a journalist to turn over material that is non-confidential, the material at issue must be of likely relevance to a significant issue in the case and not be reasonably attainable from other available sources – a test that is extremely important to the documentary community.
Other potential decisions could include sending the case back to the trial court with some clear direction as to how to decide these issues, ordering the trial court to view the footage before Chevron is able to view it, throwing out the subpoena in its entirety, or issuing an order that combines one or more of the above options.
After the hearing, Donaldson – who authored the Amicus Brief for filmmakers – praised the International Documentary Association for recruiting co-signers to their Amicus Brief. He felt that the voice of filmmakers was heard, stating “Everyone was extremely well prepared. The judges were attentive, interested and extended the arguments by asking extensive, well-informed questions. You can’t ask for much more –except a decision that favors the filmmaker.”