In the aftermath of a judge's ruling that may force filmmaker Joe Berlinger to hand over the outtakes from CRUDE to energy giant Chevron, nearly 200 top documentary filmmakers have signed "an open letter of support", protesting the breadth of the decision by Judge Lewis A. Kaplan to allow Chevron to subpeona all of Berlinger's raw footage.
Noting that "it is understood that First Amendment protection of the journalist's privilege is never absolute", the letter goes on to note that "(t)ypically, if such privilege is successfully rebutted in court, a turn-over order demanding a document or other thing is issued..."
"Therefore, it is astounding to us that Judge Kaplan demanded that all of the footage shot during the production of the film be handed over to the attorneys of Chevron, given that the privilege exists primarily to protect against the wholesale exposure of press files to litigant scrutiny...
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."
Spearheaded by filmmaker Patrick Creadon and editor Doug Blush (who worked together on WORDPLAY and I.O.U.S.A.), the letter has been signed by a veritable who's who of the documentary community, including at least 20 Oscar winners (among them: Michael Moore, Alex Gibney, Rob Epstein, Barbara Kopple, Peter Davis, Davis Guggenheim, Freida Lee Mock, James Marsh, Louie Psihoyos, Ross Kauffman, Kevin Macdonald, Jessica Yu, Cynthia Wade, Mark Harris, Steven Okazaki and Leon Gast), and even more Oscar nominees (including DA Pennebaker, Morgan Spurlock, Laura Poitras, Kirby Dick, Heidi Ewing, Rachel Grady, Jeff Blitz, James Longley, Tia Lessin, Carl Deal, Ellen Kuras, Robert Kenner, Julia Reichert, Steven Bognar, Scott Kennedy, Hupert Sauper, Liz Garbus and Amy Berg) as well as dozens of the community's top filmmakers (Kim Longinotto, Jehane Noujaim, Chris Hegedus, R.J. Cutler, Nick Broomfield, Haskell Wexler, Steve James, Peter Gilbert, Ken Burns, Lucy Walker, Doug Pray and Amir Bar-Lev, among them).
[Full disclosure: I am also a signer on the letter.]
Work began on the letter on Saturday when Creadon reached out to a handful of filmmakers calling for a united community response in support of Berlinger. A first draft on the letter was completed Sunday, with the IDA joining the effort and working with Creadon and others to finesse the language regarding the case's complex legal issues. IDA President Eddie Schmidt took the letter to his Board of Directors, which decided to sign the letter en masse to make a statement on behalf of the organization.
"Advocacy is an area where an organization like IDA can make a difference - and we should try to lead as much as we can," Schmidt told me. "It seemed important to come out early and instrumentally, and luckily, we have a forward-thinking Board of Directors and an Executive Director who believe in making a stand."
Schmidt said that he was amazed at the support the letter garnered within the community in just a few short days. "Those names say it all: who can argue with the greatest cinematic arguers of our time?"
In an email exchange, Creadon wrote about his reaction to the news as it broke last Thursday:
"I read the story in the New York Times Saturday morning and was stunned when I realized Joe was likely going to have to turn over all of his footage. What many outside of our community do not realize is that of all the challenges facing documentary filmmakers, it's often the legal hurdles that prove to be most difficult. And of course legal difficulties usually lead to big legal bills -- a particularly acute kind of pain that doesn't just hurt the individual but can often hurt that person's family and livelihood."
And earlier today, Blush described the chain of events that unfolded after the judge's decision was announced:
"I've worked on several films with critical interview confidentiality issues, and when I first saw the story Thursday, I was profoundly shaken by its implications. Patrick called on Friday, and he was on fire. He proposed bringing together doc community filmmakers around a statement of support, and wrote a first draft. Since then, with many great suggestions and the incredible tidal wave of signatures, the statement is out there and Joe knows he's not alone in this. My gratitude goes out to Eddie, the IDA, and this amazing global group of artists, and I believe this can be a first step to amend and increase the vital legal protections for our work."
The full text of the letter after the jump.
Filmmakers and others in the documentary community are invited to add their names to this open letter in the comments section of this post.
An open letter in support of Joe Berlinger
and the documentary filmmaking team of
As members of the documentary film community, we the undersigned strongly object to the Honorable Judge Lewis A. Kaplan's ruling last week in the case involving our colleague Joe Berlinger, the Chevron Corporation, and Berlinger's 600 hours of raw footage shot during production of his documentary film "Crude".
Judge Kaplan sided with Chevron and ruled that Berlinger must turn over all of his raw footage to Chevron for their use in the lawsuit discussed in the film. Berlinger and his legal team plan to appeal the ruling.
In cases such as these involving access to a journalist's work material, whether they involve a newspaper or online reporter, a radio interviewer, a television news producer, or a documentary filmmaker, it is understood that First Amendment protection of the journalist's privilege is never absolute. Typically, if such privilege is successfully rebutted in court, a turn-over order demanding a document or other thing is issued and the journalist must comply or face the consequences. Therefore, it is astounding to us that Judge Kaplan demanded that all of the footage shot during the production of the film be handed over to the attorneys of Chevron, given that the privilege exists primarily to protect against the wholesale exposure of press files to litigant scrutiny.
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.
Though many of us work independently of large news organizations, we nevertheless hold ourselves to the highest of journalistic standards in the writing, producing, and editing of our films. In fact, as traditional news media finds itself taking fewer chances due to advertiser fears and corporate ownership, the urgency of bold, groundbreaking journalism through the documentary medium is perhaps greater than ever.
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.
Patrick Creadon Doug
Los Angeles, CA Los Angeles, CA
President, International Documentary Association (IDA)
With the support of IDA's Board of Directors:
Laurie Ann Schag, Marjan Safinia, Moises Velez, Pi Ware, Sara Hutchison,
Senain Kheshgi, Steven Reich, Sue West, Thomas Miller
Executive Director Michael Lumpkin
Supporting Filmmakers Alex Gibney, Michael
Moore, D.A. Pennebaker, Chris Hegedus, Bruce Sinofsky,
Joan Churchill, Rob Epstein, Barbara Kopple, AJ Schnack, Kirby Dick,
Ricki Stern, Annie Sundberg, Heidi Ewing, Rachel Grady, Freida Mock,
Terry Sanders, Marina Zenovich, Tia Lessin, Carl Deal, Kevin Macdonald,
Ken Burns, Haskell Wexler, Ellen Kuras, Robby Kenner, Elise Pearlstein
Alex Gibney, Michael
Moore, D.A. Pennebaker, Chris Hegedus, Bruce Sinofsky,
Davis Guggenheim, Lesley Chilcott, Rory Kennedy, Jeff
Blitz, Laura Poitras,
Marshall Curry, Ross Kauffman, Adam Del Deo, Hubert Sauper, Adam Hyman,
Richard Pearce, R.J. Cutler, Sam Pollard, Jessica Yu, Nick Broomfield,
Morgan Neville, Peter Gilbert, Steve James, Louie Psihoyos, Lucy Walker,
Morgan Spurlock, Bill Moyers, Scott Hamilton Kennedy, Tom
Joel Cohen, Kate Amend, Anne Makepeace, Evangeline Griego, David Zeiger,
Chris Paine, Greg Barker, Skip Blumberg, Brian Strause, Joe Angio,
Ben Shedd, Brian Oakes, Dallas Rexer, John Maringouin, Jeff Malmberg,
David Van Taylor
Liz Garbus, Cara Mertes, Simon Kilmurry, Cynthia Wade, Stefan Forbes,
Jennifer Venditti, Peter Kinoy, Tom Putnam, Jessie Deeter, Robin Hessman,
Paco de Onis, Kim Longinotto, Steven Bognar, Julia Reichert, Sean Welch,
Steven Ascher, Jeanne Jordan, Kevin Walsh, Christine O'Malley,
Theodore James, Tomlinson Holman, Paola Di Florio, Martin Smith
Weyermann, Jehane Noujaim, Leon Gast, Bill Guttentag,
Steven Okazaki, Peter Davis, Michael Tucker, Gabor Kalman,
Andrew Goldberg, Eva Orner, Christoph Baaden, Mark Lewis, Annie Roney,
Petra Epperlein, Christopher Quinn, Amy Berg, Douglas Chang,
Tina DiFeliciantonio, Jane C. Wagner
James Longley, James Marsh, Yance Ford, Lisa Rich, Tony Gerber,
Amy Ziering, Kurt Norton, Amanda Micheli, B. Ruby Rich,
Amir Bar-Lev, Jon Else, Judy Branfman, Lucy Phenix, Mike Tollin, Paul Mariano,
Jay Rosenblatt, Johanna Demetrakas, Kristine Samuelson, John Haptas
Doug Block, Ken Schneider, Gary Cohen, Peter Gerard, Nathan Truesdell,
Chris Smith, Bob Richman, Sandy McLeod, Judith Katz, Paul Rachman,
Hilari Scarl, Jonathan Stack, Shirley Moyers, Andrew Berends
Lynne Littman, Mark J Harris, Thom Powers, Lauren Greenfield,
Theodore Braun, Mary Ann Braubach, Frederick Gerten, Seth Gordon,
Celia Maysles, Buddy Squires, Jon Alpert, Matthew O'Neill, Henry Alex Rubin,
Rick Goldsmith, Bob Hercules, Jim Morrissette, Howard Weinberg,
Judith Helfand, Andrew Garrison, Rebecca Chaiklin, Doug Pray,
Katy Chevigny, Sarah Gibson, Daniel Junge, Ted Hope,
Tom Fontana, Doug Zwick, Michael Winship, Matt Zoller Seitz