Thursday evening at Hot Docs in Toronto, word spread quickly through the documentary community that a judge's ruling may force filmmaker Joe Berlinger to turn over more than 600 hours of footage from his documentary, CRUDE, to energy giant, Chevron. CRUDE examined pollution in the Amazon rainforests and Chevron's role, chronicling the efforts of locals to sue Texaco/Chevron over alleged water contamination.
Chevron argued to US District Court Judge Lewis A. Kaplan that the footage may help the company defend itself in the ongoing lawsuit and Kaplan agreed, ruling that Berlinger didn't meet the burden "of showing whether any of his filmed material was subject to any confidentiality agreements with his sources, and that the release forms he used with his subjects gave him 'carte blanche to use all of the footage in his production'."
Berlinger told the NY Times that he was shocked and dismayed by the ruling,
The case and the ruling reignites the debate on whether documentary filmmakers are journalists - a debate that documentary filmmakers always seem to be on the losing side of: expected to conform to some notion of journalistic norms and standards, but not necessarily accorded the First Amendment rights of journalists.
While lawyers for Berlinger argued that the filmmaker's role as investigative journalist protected his work product, lawyers for Chevron dismissed the assertion, telling the NY Times' Dave Itzkoff and John Schwartz that the case was not about the First Amendment and that "whatever CRUDE is, it should not be considered journalism".
Kaplan agreed that Berlinger was protected by the journalistic privilege, but argued the conditions for overcoming that privilege had been met. The judge cited a 1999 case involving Dateline NBC where a subpeona for outtakes was upheld.
The Times' Itzkoff has been all over this story, reporting back in April on Berlinger's decision to fight Chevron's request to turn over the footage, then following up Thursday with the judge's ruling, and reactions from Michael Moore and Ric Burns.
Moore told Itzkoff that the ruling "could have dire consequences on the documentary filmmaking process, and urged that film’s director to resist the subpoena if he can":
"'If this isn’t overturned, it would make a lot of documentary filmmakers afraid,” Mr. Moore said. “People are going to have to start getting rid of all their extra footage now, right?”
Should the decision of Judge Kaplan be upheld and a subpoena be served for Mr. Berlinger’s footage, Mr. Moore said, “The chilling effect of this is, 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.”
Mr. Moore said that in making his documentary films like “Roger & Me,” he has spoken in confidence to corporate employees who have revealed sensitive information or shared internal documents.
“I’ve never had to deal with any corporation suing me to find out how I gather this information,” he said. “Obviously the ramifications of this go far beyond documentary films, if corporations are allowed to pry into a reporter’s notebook or into a television station’s newsroom.'"
For his part, Berlinger told Itzkoff that he would comply with a subpeona - if all other legal options failed, saying that he had two kids and the case wasn't worth going to prison over.
Meanwhile, conversations are bubbling up amongst top documentary filmmakers on how to respond to the ruling and whether a group statement should be issued.