Over the past year or so, CRUDE, has been making the rounds at Film Festivals around the country - and garnering a handful of prestigious awards and widespread critical acclaim - among filmmakers and film fans alike.
Three years in the making, this cinéma-vérité feature from acclaimed filmmaker Joe Berlinger (Brother’s Keeper, Paradise Lost, Metallica) weaves the intriguing true story of one of the largest and most controversial environmental lawsuits on the planet.
"Crude is a real-life high stakes legal drama, set against a backdrop of the environmental movement, global politics, celebrity activism, human rights advocacy, the media, multinational corporate power, and rapidly-disappearing indigenous culture," according the film's producers.
The film explores a myriad of complex issues from all angles in a bold-faced effort to reveal the truth about environmental peril and human suffering as seen through the eyes of Berlinger's searing penetrating lens.
Now there is a new twist to the complicated drama!
Recently - Chevron demanded 600 hours of outtake footage from the "Crude" production offices (by way of a subpoena submitted to the court) - arguing in its defense that said evidence may be able to establish that the filmmakers intentions have not always been so lily-white and pure (or altruistic in nature).
In a nutshell, Chevron is seeking to establish corruption and misconduct on the part of the plaintiffs.
In a knee-jerk response, the Plaintiffs submitted a vigorous defense to the Judge presiding over the case.
For example, in their legal brief, the filmmaker argued that his work was protected by journalist privilege which protects reporters and others in the news-gathering business from being compelled to reveal confidential sources or divulge confidential material.
Judge Lewis A. Kaplan of Federal District Court in New York found little merit with the arguments and proceeded to grant the request for the subpoena.
The filmmakers did qualify for the privilege, Judge Kaplan wrote, but the conditions for overcoming that privilege had been met.
The judge’s decision sparked outrage among documentary filmmakers, who said it endangered their form of journalism.
Michael Moore said the decision could have “a chilling effect.”
“If something like this is upheld, the next whistle-blower 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.
“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.”
Chevron lawyer, Randy M. Mastro, said that those criticizing the subpoena were on the wrong side of established law concerning what kinds of materials can be obtained - and that whatever “Crude” is it should not be considered journalism.
“This isn’t about the First Amendment,” Mr. Mastro said.
“This is about a plaintiffs’ lawyer who decided he wanted to star in a movie and gave a sympathetic filmmaker extraordinary access to the plaintiffs’ case and strategy," he accused.
The outtakes provide - “a compelling video record of exactly the activities that these plaintiffs’ lawyers have engaged in to corrupt and taint the political process in Ecuador” - he summed up.
Ilann Maazel, a lawyer for the plaintiffs, called the efforts by Chevron to get the outtakes “another last-minute attempt to delay the proceeding and avoid justice.”
He accused the defendants of - “twisting the truth” and mischaracterizing the scenes from the film - to make the plaintiffs’ actions appear to be corrupt.
“The corruption is not in some 600 hours of videotape."
“It’s in the ground and water of the rainforest for anyone to see and smell.”
In his decision, Judge Kaplan acknowledged that the Court of Appeals for the Second Circuit recognizes the existence of a “qualified privilege for journalistic information” and declared that “Crude” merits that protection.
But that is only the beginning of the process, since the privilege does not grant absolute protection of materials.
“It doesn’t necessarily mean you’re exempt from the subpoena,” said David Hudson of the First Amendment Center in Nashville.
“It just means that there are hoops the party seeking the material has to jump through.”
Judge Kaplan referred to those hoops in citing a 1999 case (Gonzales v. NBC) which upheld a District Court subpoena for outtakes from a “Dateline NBC” program that reported on what it called racially-based traffic stops by Louisiana law enforcement officers.
Materials can be released - the Court of Appeals for the Second Circuit held - "if they are confidential, are likely to be relevant to a significant issue in the case and are not reasonably obtainable elsewhere."
The conditions were met in this case, Judge Kaplan concluded; the outtakes, he wrote, “will contribute to the goal of seeing not only that justice is done, but that it appears to be done.”
Experts in media law said Judge Kaplan’s opinion did not fall outside of the mainstream of First Amendment jurisprudence.
Dave Heller, senior staff attorney at the Media Law Resource Center in Manhattan, said that if someone seeking a subpoena says the material is relevant to significant issues, “it’s appropriate for the judge to take that seriously.”
However, Mr. Heller added that he was not sure this request should have been granted.
“The common-sense reaction is, ‘This is just a documentary — it speaks for itself,’ ” he said.
“It suggests that Chevron and the other defendants in Ecuador would have more than enough leads to follow up and question people to obtain relevant information to their litigation there, without imposing on the documentary filmmaker to compromise his relationship with his sources and disgorge his own unpublished material.”
The film’s director, Joe Berlinger, said Judge Kaplan’s order came as a shock.
“To have this broad request to turn over everything related to the case, to me, is just a trampling of the First Amendment and the journalist’s privilege,” he said.
Even though the people on camera had agreed to participate in the film and had signed waivers, Mr. Berlinger argued, they still had a measure of confidentiality that should have counted for more in Judge Kaplan’s consideration of the case.
“People who agree to be in a film don’t agree to have their lives exposed as if they agreed to be on a 24/7 Web cam, which is in essence what’s happening,” he said.
He said he hoped the order could be overturned.
“At the end of the day, if I lose all my options, yeah I’m going to comply with the subpoena and turn it over. I’m the father of two children, and this is certainly not worth going to prison over.”
In response, the filmmakers have organized a petition - which has been signed by a who's who's of the Hollywood elite (Oscar-winners are on the list) - and have submitted an "open letter" urging a reconsideration.
Since I personally have some knowledge of the court system ( I studied law) - I am keenly aware that while the petitioners have a right to urge a reconsideration - it must be submitted in the proper format in the correct forum with legal jurisdiction over the issues.
To clarifty this, I asked the Public Relations firm handling the dialogue between the filmmakers and the press, to kindly advise as to what they hoped to accomplish wth an open letter - which in my estimation - carries no legitimate weight in the eyes of the judiciary in its current incarnation.
As of this date, there has not been any response back.
Subsequently, I am publishing their "open letter" herein below verbatim to at least get their protest arguments out to the general public so that a dialogue may commence in the community at large.
_________________________________________________
May 13, 2010
An Open Letter in Support of Joe Berlinger
(Documentary Filmmaking Team of "Crude")
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 tooverturn 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
Los Angeles, CA
Doug Blush
Los Angeles, CA
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