By Nigel M Smith | Indiewire January 14, 2011 at 10:16AM
In a setback for filmmaker Joe Berlinger's ongoing legal battle with Chevron, a federal appeals court has ruled that he cannot invoke journalist's privilege in refusing to turn over footage for the 2009 documentary "Crude: The Real Price of Oil."
Berlinger's documentary chronicles a lawsuit brought on by a group of Ecuadoreans who say that Texaco's Lago Agrio oil field, which is now owned by Chevron, polluted their water supply.
Last July the Court of Appeals modified a ruling made in May by U.S. District Judge Lewis Kaplan, who ordered Berlinger to turn over all of the unused footage from the film to Chevron. The July 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.
Chevron wants to use outtakes as evidence to defend itself against a class-action lawsuit depicted in the film itself.
The New York Times reported today that the judges of the Second Circuit court in Manhattan decided on Thursday that the argument, presented by Berlinger's lawyers in July, was not persuasive.
"Given all the circumstances of the making of the film," the judges wrote, "as reasonably found by the district court, particularly the fact that Berlinger’s making of the film was solicited by the plaintiffs in the Lago Agrio litigation for the purpose of telling their story, and that changes to the film were made at their instance, Berlinger failed to carry his burden of showing that he collected information for the purpose of independent reporting and commentary."
In response to the appeals court's latest ruling, Berlinger told the Times the decision represents a "fundamental misunderstanding of the circumstances surrounding the production of this film in particular and the nature of long-term investigative documentary reporting in general."
While he admitted to the Times that the idea for "Crude" was proposed to him by Steven Donziger, a lawyer for the Ecuadorian plaintiffs, he stressed the documentary was "not a commissioned film," but one on which he "had complete editorial independence."