In a bit of a split decision that was anticipated by court watchers yesterday, the US Appeals Court just handed down its order that filmmaker Joe Berlinger must turn over select portions of raw footage from his documentary CRUDE to Chevron.
The decision is a brushback to the broad order issued in May by US District Court Judge Lewis Kaplan, that ordered Berlinger to turn over the entirety of his raw footage. The appeals court said that only segments of the raw footage directly related to a lawsuit against Chevron need to be turned over. Chevron has argued that the footage will show fraud on the part of an expert witness who testified in the case.
Moments ago, Berlinger sent us the following statement about today's ruling:
"Since the court issued its Order without yet a corresponding legal opinion, I must reserve my full analysis of the results until the three-judge panel's opinion is rendered. However, I can say that we are extremely pleased with today's results. The appeals court has substantially limited Judge Kaplan's overbroad 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. I am gratified that by adhering to the basic standards of the journalist's privilege articulated in the previous precedent setting case Gonzalez vs. NBC, the appeals court for the Second Circuit has affirmed that documentary filmmakers are no different than any other journalists deserving First Amendment protection. I am deeply grateful for the tremendous outpouring of support that the artistic, media and journalist communities have shown towards this case in the past three months. It was precisely this support that gave me and my legal team at Frankfurt, Kurnit, Klein & Selz the strength to stand up for these very important foundations of American democracy."
In its ruling, the appeals court gave the following stipulations regarding the turning over of footage:
1) Berlinger shall promptly turn over to the petitioners copies of all footage that does not appear in publicly released versions of Crude showing: (a) counsel for the plaintiffs in the case of Maria Aguinda y Otros v. Chevron Corp.; (b) private or court-appointed experts in that proceeding; or (c) current or former officials of the Government of Ecuador.
2) Material produced under this order shall be used by the petitioners solely for litigation, arbitration, or submission to official bodies, either local or international.
3) Berlinger’s reasonable expenses of sorting and duplication of footage, incurred in complying with this order, are to be reimbursed by Chevron.
4) Any disputes related to the performance of this order shall be directed to the district court for resolution.
The order says that the legal opinion in the case will follow. That opinion will be worth watching for all those interested in the first amendment implications in the case and whether the case sets new precedents.