If last Thursday’s appeals court ruling in the Berlinger v. Chevron made anything clear, it’s that the fine line between what separates documentary filmmakers from journalists has become even more blurred.
In a rather favorable outcome for documentary filmmaker Joe Berlinger, the Court of Appeals modified a ruling made in May by U.S. District Judge Lewis Kaplan that had ordered Berlinger to turn over all of the unused footage from his 2009 film “Crude: The Real Price of Oil” to Chevron, who were depicted negatively in the film. Chevron wanted to use to the outtakes as evidence to defend itself against a class action lawsuit depicted in the film itself. Thursday’s ruling ordered that Berlinger only submit footage that depicts the lawyers for the Ecuadorian plaintiffs, private or court-appointed experts or current or former Ecuadorian officials. In addition, the Court made clear that Chevron may only use this footage “solely for litigation, arbitration, or submission to official bodies, either local or international.”
In an interview Berlinger conducted with The New York Times soon after the modified ruling was rendered, Berlinger avowed that it was never his goal to prevent Chevron from obtaining any of his unused film footage. “Just because it’s a big oil company doesn’t mean they don’t have a right to a certain amount of footage or a certain amount of discovery,” he told the Times. “As long as it doesn’t violate First Amendment rights.”
As such, Berlinger is extremely pleased with the outcome; one Berlinger actually saw coming he told indieWIRE following the hearing on Wednesday. In a statement made to indieWIRE, Berlinger wrote via email: “The appeals court has substantially limited Judge Kaplan’s over broad order, which was the main thrust of our appeal. Furthermore, the court has expressly prohibited Chevron from using any footage we do turn over in their public relations campaigns, a goal that was extremely important to me.”
Berlinger intends to turn over the specified film footage as quickly as possible, and told the Times that a further appeal of the decision is unlikely.
“I am gratified that by adhering to the basic standards of the journalist’s privilege articulated in the previous precedent setting case Gonzalez v. NBC,” Berlinger wrote to indieWIRE, “the appeals court for the Second Circuit has affirmed that documentary filmmakers are no different than any other journalists deserving First Amendment protection.”
EDITORS NOTE: This story has been revised to remove the word ‘exclusive’ referring to a statement provided by Joe Berlinger.