NEW YORK (AP) - May 6, 2010
U.S. District Judge Lewis A. Kaplan said filmmaker Joe Berlinger must turn over the outtakes from the film "Crude," which was released last year, to lawyers for Chevron.
Kaplan said Berlinger could not use the First Amendment to shield himself from Chevron's effort to get the raw footage because Berlinger had not demonstrated he was entitled to a journalist's privilege of confidentiality.
The judge noted that a lawyer for 30,000 inhabitants of the Lago Agrio region of Ecuador who are considered victims of environmental damage solicited Berlinger to create a documentary of the progression of a lawsuit through the courts in Ecuador from the perspective of his clients.
The lawsuit in Ecuador's courts is the continuation of a 17-year-old legal battle in which Ecuadoreans claim Texaco Inc. contaminated their land during three decades of oil exploration and extraction there. Texaco became a wholly owned subsidiary of Chevron in 2001.
Kaplan said the plaintiffs' lawyers were on the screen through most of the documentary, which contains less than 1 percent of the total footage shot by Berlinger. The judge also noted Berlinger has conceded he removed at least one scene from the film at the lawyers' direction.
The judge said he was expressing no view as to whether the concerns of either side were supported by proof of improper political influence, corruption or other misconduct affecting the Ecuadorean proceedings.
"Review of Berlinger's outtakes will contribute to the goal of seeing not only that justice is done, but that it appears to be done," he wrote.
Maura Wogan, a lawyer for Berlinger, said Berlinger will ask Kaplan to delay the effect of his order so he has time to appeal to the 2nd U.S. Circuit Court of Appeals in Manhattan.
The ruling threatens "great harm to documentary filmmakers and investigative reporters everywhere," she said.
"We're frankly surprised at the court's total lack of sensitivity to the journalists' privilege," Wogan said.
Wogan said the ruling will let Chevron conduct a "fishing expedition" for evidence. It also could lead to the opening up of notes of any reporter who covers litigation to the scrutiny of lawyers in a case, she said.
Chevron lawyer Randy Mastro called the raw footage a "treasure trove" and said it will expose "corruption and fraud and a travesty of justice going on right now in Ecuador."
He said it was not a case about the First Amendment.
"It's a case about a lawyer who decided he wanted to star in a movie," he said. "It is literally candid camera."
He said the raw footage will show how the plaintiffs' lawyers have "tainted and corrupted the judicial process in Ecuador."
In Ecuador, a court-appointed expert has recommended that San Ramon, Calif.-based Chevron pay up to $27 billion for environmental damages and related illnesses.
Chevron has long argued that a 1998 agreement Texaco signed with Ecuador after a $40 million cleanup absolves it of any liability in the case. It claims Ecuador's state-run oil company is responsible for much of the pollution in the oil patch that Texaco quit nearly two decades ago.
Another federal judge in Manhattan recently ruled that Chevron can proceed with an international arbitration claim against Ecuador. Chevron filed a claim in September with a Netherlands-based arbitration panel, saying it was denied due process in Ecuadorean courts.
