CRUDE Screening & Benefit for Joe Berlinger’s Legal Defense Fund
June 22, 2010
New York, NY
By Brian Geldin
L to R: Thom Powers, Joe Berlinger, Maura Wogan, Morgan Spurlock and Michael Winship. Not pictured: Ilan Maazel. Photo by Brian Geldin.
As reported in the press recently, Chevron served a subpoena on Joe Berlinger’s documentary CRUDE in order to obtain nearly 600 hours of raw footage. In May, a US District Court ruled for Chevron and ordered Berlinger to produce the footage. In an effort to protect the footage, his sources, and his process, Berlinger immediately appealed. On June 8, Berlinger’s legal team won a stay of the District Court’s order. As a result, the district court’s May 20 order directing Berlinger to produce the footage will be suspended during the pendency of the appeal. A full hearing before the US Court of Appeals for the Second Circuit will take place July 14. Stranger Than Fiction held a special screening Tuesday night to support Berlinger’s legal defense fund and to further discuss the issues raised in the film, which documents a lawsuit made by tens of thousands of Ecuadoreans against Chevron (formerly Texaco) over contamination of crude oil in the Ecuadorean Amazon. One of Berlinger’s earlier films, Paradise Lost: The Child Murders of Robin Hood Hills, which he co-directed with Bruce Sinofsky, also deals with a trial and is among one of the best and most disturbing documentaries I’ve ever seen. CRUDE is an eye-opening and heartbreaking account of a horrific man-made disaster, which topples over the devastating spill that’s taking place now in the Gulf Coast. The film features an appearance by pop music performer Sting and his wife Trudie Style, founders of the Rainforest Fund. Below are highlights of the discussion at last night’s Q&A.
Thom Powers – Stranger Than Fiction
Joe Berlinger – Director, CRUDE
Maura Wogan – Berlinger’s Attorney
Morgan Spurlock – Director, Super Size Me
Michael Winship – President of WGA East
Ilan Maazel – Attorney to the Plaintiffs in the film
Powers opened by giving a bit of background on CRUDE, saying it made its world premiere at the 2009 Sundance Film Festival, played theatrically last fall at the IFC Center, and has also come out on DVD. Thinking he had put this film behind him, Berlinger received a shocking phone call more recently. Berlinger said he had been sitting on the beach in the Bahamas just after completing an episode of the Sundance Channel series, Iconoclasts, and his wife called him to break the news that he’d been subpoenaed to turn over his 600 hours of footage from the film with only three days to respond to months of legal work. At the time, he thought, “There’s no way on earth that a corporation in a foreign country litigation pollution trial has any right to look at my footage.” He’s since learned that it’s a lot more complicated because Federal shield laws have been so chipped away that there are some circumstances in which they (Chevron) could get his footage. In January, he received a letter from two Chevron employees. There were actually two sets of subpoenas, one from the Chevron corporation for the underlying litigation (as seen in the film), and another from a Chevron employee (who’s seen in the film as being indicted for fraud charges), along with another Chevron employee also who’d been indicted. The attorneys for those Chevron employees sent Berlinger a letter in January asking him to voluntarily turn over the footage, and if he didn’t voluntarily turn it over, he would be subpoenaed. He wrote a letter back saying he wouldn’t turn it over, because it violates his First Amendment rights.
Powers clarified that those two Chevron employees wanted Berlinger’s footage because they were being sued, and by somehow seeing his footage, it would help them in their lawsuit. Berlinger said on an objective basis, one could argue that is what they were looking for, but a more cynical person might say that a company that has invested a tremendous amount of time in marketing this case to the American public as a fraud, might want to take some of that footage out of context and not necessarily use it in the actual court case. Berlinger said he believes that they think there’s some sort of “smoking gun” there. Powers notes that Chevron has a history of taking footage and spinning it in a different way. Berlinger said one of the things he’s fighting for, if he ends up losing and hopes he won’t, is that his footage is put in a protective order, which means being put into the court under seal and can only be used for the specific purpose of using it in these litigations. Berlinger alluded to when CBS’s 60 Minutes did critical story on this same issue, even more aggressively than his film. He said Chevron’s response to the 60 Minutes piece was that they hired ex-CNN reporter Gene Randall, who created a fake news report telling Chevron’s version of the story, which Berlinger said, they have a right to do, but they didn’t disclose to the viewer that this was a Chevron-paid report. And then Chevron purchased the upper bar of Google so that if one were to Google, “60 Minutes Chevron,” the first thing that would appear above the actual link to the 60 Minutes piece was a YouTube story with this fake news report. Berlinger said one of his big concerns in his case is that he doesn’t want his footage used for public relations purposes. “You scour 600 hours of footage and take things out of context, you can do anything. You can spin any story,” he said.
Bringing the audience up to speed on where the case is now was Berlinger’s attorney Maura Wogan. She said Berlinger has something called the “Journalist’s Privilege,” which he was able to assert in the proceeding. This is a privilege grounded in First Amendment principles that permits him to say, “No, I’m not going to produce this material because it’s protected by the First Amendment.” She said in order to overcome the Journalist’s Privilege, Chevron had to go to court and argue that the material was likely relevant to the underlying proceedings in Ecuador, and that they would not be able to find that same evidence somewhere else or from another source. So she and Berlinger went to court and said, “This burden is on you Chevron to come forward and prove that.” Chevron came into court and looked at CRUDE, highlighting three particular scenes that would be useful to them in the proceedings in Ecuador, saying, “Because the film has those three scenes, we believe we’re entitled to all 600 hours of this footage.” Her and Berlinger’s position was, “that’s ridiculous,” and they went into court, in front of Judge Lewis Kaplan, saying that Chevron had not met their burden. Kaplan weighed the First Amendment rights against the Ecuadorean justice for Chevron, and he came out on Chevron’s side and ordered Berlinger to turn over the footage.
Berlinger clarified that the key issue is, “Is this information available from any other source?” He said half of his film shows very public scenes where there were lots of media, and Chevron had their own cameras rolling. “Just by definition, half of my footage is available from other sources,” he said. That is what he said he’s arguing: to turn over all of this footage would create a terrible precedent that all journalists could be subject to wealthy corporations or any interested party getting their hands on an entire vault of somebody’s work product. Berlinger added, there are two basic standards that need to be met when overcoming the journalists privilege. First, an interested party must prove that the subpoenaed material is highly relevant to their case, not just a fishing expedition for evidence and, second, that the information contained in the material being subpoenaed must not be available from any other source.
Since Judge Kaplan’s order for Berlinger to turn over the footage, Berlinger has made an appeal. Wogan said that this order is unprecedented. There have been many cases where courts have said there are circumstances where outtakes should be handed over, but all of the decisions that she’s looked at in this court and other courts throughout the country, the orders were very narrowly tailored. She said the concern that the fear that sources in the future will have that they can’t trust a filmmaker or rely on a filmmaker’s promise that he or she won’t turn over footage to third parties is what’s at stake here. The courts in the appellate division, which is where she and Berlinger are now, have recognized that basic concern.
Berlinger and Wogan will be back in court on July 14, but what could happen then, Powers asked? Wogan said by that point she’ll have submitted her briefs submitted by so many interested parties. Berlinger said they have several “friends of the court” briefs where the community turned out from all the major TV networks, the Directors Guild of America, the Writers Guild of America, the International Documentary Association, the Producer Guild of America, and basically any entity involved in filmmaking, newsgathering, the Associated Press, the Washington Post, the New York Times, and so on. “It’s an amazing squaring off of the media against corporations and corporate legal concerns,” he said.
Berlinger said that he’s learned that Chevron’s Amicus brief will be the Dole Corporation, which had been involved with a film called Bananas, which he said he hasn’t seen yet so can’t say if it’s balanced or not , but Dole claims that Bananas is extremely fraudulent. Powers mentioned that Dole tried very hard to pressure the Los Angeles Film Festival not to show this film, adding that there is an increased activity on the part of corporations that have come under scrutiny to use their muscle against these kind of films.
An example of this would be Morgan Spurlock who went up against McDonald’s in Super Size Me. Spurlock was also one of the many filmmakers who signed a petition by the International Documentary Association for in support of Berlinger’s case. What does Spurlock think about the implications of Berlinger’s case, Powers asked? Spurlock said he thinks the ramifications of a judgment that sides with a corporation to turn over raw footage that can be manipulated or translated anyway possible goes down a path that will lead an arena where the ability to find truth or question corporate authority will end. “This is literally just a gigantic chink in the armor that many people need to stand behind as possible because it’s not just going to affect filmmakers or documentarians, it’s going to affect everyone,” he said.
Michael Winship, a senior writer with Bill Moyers’ production company, has had his share going up against tough clients, therefore what does he see as the implications of Berlinger’s case, Powers asked? Winship said his position has always been progressive, and non-partisan. In terms of the Writers Guild, they represent about 4,000 writers and producers, about 1,500 of which are news writers and producers. The Writers Guild stands for freedom of the press as one of its highest priorities. He said the Writers Guild thinks that if Chevron succeeds, it is going to have an incredibly chilling effect on journalism and filmmaking.
Ilan Maazel and his team of lawyers have been fighting the Chevron case for 17 years. How does he see this action as being part of Chevron’s larger behavior, Powers asked? Ilan said the case to him is very straightforward. “If this movie were an ode to Chevron, we would not have this lawsuit,” he said. Maazel said he thinks Chevron is trying to intimidate anyone who tries to expose its conduct. Ilan’s firm filed this case in 1993 in New York City, where the Chevron-Texaco headquarters was. For nine years, they tried to escape this case and didn’t want to have it in a Federal court, and they won and moved the case to Ecuador. “Chevron makes BP look like a model corporate citizen,” he said. “What Chevron did was intentional and they did it for over 20 years and they thought they could get away with it, because it was in Ecuador. What BP did was not intentional. It was perhaps negligent, but unintentional.” Berlinger wanted to go on the record to say, “We (he and Maazel and his firm) are not connected.” He said that in Chevron’s legal papers, they have argued that he doesn’t deserve the Journalist’s Privilege and that he was hired or “solicited” by the plaintiffs to make this film. Berlinger said his film was an independently financed film where people allowed him access, which is standard documentary filmmaking practice. He didn’t have a relationship with the plaintiffs other than they were subjects in his documentary who gave him access.
A question asked by a member in the audience was if any of the material Berlinger captured off-the-record versus on-the-record, and did that make a difference in the material that Chevron wanted. Berlinger said the vast majority of footage was on the record, and what’s misunderstood is what is on-the-record are people who trusted a filmmaker who spent three years building a relationship of trust, not one where he said, “I’m only going to tell your side of the story.” He said he thinks he made an incredibly balanced film that includes things that are also negative toward the plaintiffs “in the telling of a balanced story.” He said they were willing to accept those risks, but what they are not agreeing to, even if it’s on-the-record, that all of the footage gets turned over to an interested party to do with what they want, because it could be taken out of context.