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- April 28, 2010
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 About.com'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 TheWrap.com:
"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.
By now, the threat posed by Big Oil's stranglehold on our political leadership should be as obvious as the oil slick spreading on the Gulf. With oil companies ranking as seven of the top ten largest corporations on the planet, and the fossil fuels industry spending colossal amounts of money to disrupt meaningful efforts to combat climate change, people are waking up to the peril represented by what oil analyst and author Antonia Juhasz calls 'The Tyranny of Oil."
Last week I wrote about the latest threat posed by Big Oil– this time, an attack by oil giant Chevron against the First Amendment.
Chevron is going after acclaimed filmmaker Joe Berlinger, the director of 'CRUDE', which tells the story of the company's toxic legacy in the Amazon rainforest of Ecuador. Journalists, filmmakers, and civil libertarians – along with supporters of the campaign to hold Chevron accountable for its devastation of the Amazon – were appalled when Chevron went to court to demand that Berlinger turn over all of the 600+ hours of footage he shot during the making of CRUDE.
Chevron is hoping to mine the footage for any material that might help its relentless public relations schemes to try to discredit the plaintiffs, their attorneys and the courts in Ecuador.
Late last week, U.S. District Court Judge Lewis Kaplan sided with Chevron, sending shock waves through the documentary film community.
But now, filmmakers – including the most prominent documentary filmmakers in the world – are rallying behind Joe as he appeals the misguided judgment.
On Wednesday, Dave Itzkoff wrote on The New York Times' Arts Beat blog:
The International Documentary Association and a group of filmmakers that includes 20 Academy Award winners and many more nominees have issued an open letter in support of Joe Berlinger, the director of “Crude,” and objecting to a judge’s ruling that Chevron could subpoena Mr. Berlinger’s footage from that film.
The letter is signed by some twenty Oscar-winning filmmakers, as well as the Board of Directors of the International Documentary Association. Signatories include Michael Moore, who had already railed against the potential "chilling effect" on investigative journalism that the ruling could have, as well as Louie Psihoyos, director of this year's Academy Award-winning documentary film The Cove, about dolphin slaughter in Japan.
Entitled 'An open letter in support of Joe Berlinger and the documentary filmmaking team of "Crude"', the letter reads in part:
While we commend Judge Kaplan for stating "that the qualified journalists' privilege applies to Berlinger's raw footage", we are nonetheless dismayed both by Chevron's attempts to go on a "fishing expedition" into the edit rooms and production offices of a fellow documentary filmmaker without any particular cause or agenda, and the judge's allowance of said intentions. What's next, phone records and e-mails?
At the heart of journalism lies the trust between the interviewer and his or her subject. Individuals who agree to be interviewed by the news media are often putting themselves at great risk, especially in the case of television news and documentary film where the subject's identity and voice are presented in the final report. If witnesses sense that their entire interviews will be scrutinized by attorneys and examined in courtrooms they will undoubtedly speak less freely. This ruling surely will have a crippling effect on the work of investigative journalists everywhere, should it stand.
In addition to those mentioned above, the signatories read like a veritable who's who of documentary filmmaking (and a few non-doc-makers too) in the late 20th and 21st centuries– Morgan Spurlock, Alex Gibney ('Taxi to the Dark Side', Oscar Winner), Davis Guggenheim ('An Inconvenient Truth, Oscar Winner), Ken Burns, Joel Cohen, Barbara Kopple, Nick Broomfield, D.A. Pennebaker, James Longley, Jehane Noujaim, and many, many more.
The letter concludes:
This case offers a clear and compelling argument for more vigorous federal shield laws to protect journalists and their work, better federal laws to protect confidential sources, and stronger standards to prevent entities from piercing the journalists' privilege. We urge the higher courts to overturn this ruling to help ensure the safety and protection of journalists and their subjects, and to promote a free and vital press in our nation and around the world.
Today, another of the signatories, respected journalist and commentator Bill Moyers, raised his voice even louder in defense of Joe. Moyers and co-author Michael Winship – president of the Writers Guild of America, East – have an article on Huffington Post today, which is sure to make waves. In 'Chevron's "Crude" Attempt to Suppress Free Speech', Moyers and Winship write:
This is a serious matter for reporters, filmmakers and frankly, everyone else. Tough, investigative reporting without fear or favor -- already under siege by severe cutbacks and the shutdown of newspapers and other media outlets -- is vital to the public awareness and understanding essential to a democracy. As Michael Moore put it, "The chilling effect of this is, [to] someone like me, if something like this is upheld, the next whistleblower at the next corporation is going to think twice about showing me some documents if that information has to be turned over to the corporation that they're working for."
The film community is rallying to support Joe and the team behind his powerful documentary CRUDE. They have appealed the ruling granting access to his raw footage, and have filed a motion to stay the District Court's ruling while they file an appeal with the Circuit Court of Appeals.
Supporters of the communities working to hold Chevron accountable are also rallying to support Joe and highlight this attack as part and parcel of the oil company's abusive legal and PR strategy to evade responsibility for its toxic legacy in the Amazon.
Chevron Corp (CVX.N) has won a three-year-old arbitration fight against Ecuador over a commercial dispute as it battles the country separately over an environmental claim against the company that could result in $27 billion in damages.
An arbitration panel ruled on Tuesday that Ecuador's courts violated international law by delaying rulings on commercial disputes between a subsidiary of the second-largest U.S. oil company and Ecuador's government.
The arbitration panel partially resolved seven claims that Texaco, bought by Chevron in 2001, filed in Ecuador from 1991 to 1993, and awarded the company $700 million, Chevron said.
"It is a partial decision," Ecuador's solicitor general, Diego Garcia, said in a statement. "It is inexact to say that Ecuador has been ordered to pay compensation of $700 million."
The panel found that Ecuador's courts had breached a trade treaty between the South American country and the United States by not ruling on the cases.
It is the same treaty that Chevron is citing in its arbitration claim filed in September over alleged interference by the government in a blockbuster case brought by indigenous Ecuadoreans who accuse Texaco of damaging the environment and their health through its operations there. [ID:nN23418073]