Industry organizations and documentary filmmakers joined forces today by lending their names to an amicus brief filed on their behalf by attorney Michael C. Donaldson in support of Joe Berlinger who was ordered to turn over some 600 hours of raw footage shot in connection with his film Crude.
American petrochemical company Chevron Corporation asked the court for the order in connection with an Ecuadorian class-action lawsuit. Chevron is being sued over environmental contamination in the Amazon rainforest (the Lago Agrio Litigation). Additionally, Chevron intended to use the footage to help fend off threatened Ecuadorian criminal prosecution of two of its attorneys in the litigation. A related international arbitration is also pending.
Chevron's attorneys are seeking to obtain footage shot during the production of appellant Joe Berlinger's 2009 film "Crude," a documentary which reports on the Ecuadorian lawsuit and focuses on indigenous efforts to hold Texaco (now owned by Chevron) accountable for its role in polluting the Amazon rain forests. Chevron obtained the order to turn over the raw footage on May 10, 2010. A federal appeals court stayed the order pending the appeal, but is handling the matter on an expedited schedule due to the timing of the lawsuits in Ecuador.
The brief was filed for fear that the subpoena, if upheld in the Court of Appeal, would have far-reaching and potentially devastating consequences on documentary filmmakers' ability to not only acquire the statements they need from confidential sources, but also to protect through anonymity those who do come forward to tell their stories, often at great personal risk to themselves and their families.
The amicus brief is filed as a friend of the court in order to bring to the court's attention the interests of the broader group of filmmakers who are not a party to the dispute. "Allowing an entity--any entity--to have access to all the raw materials that comprise a film--any film--effectively muzzles the future of free speech as it applies to our profession," states Eddie Schmidt, IDA President and Oscar nominee for the 2005 documentary Twist of Faith. "The scope of this order--all 600 hours of shot footage for a 105-minute film--is so vast, it threatens to swallow an entire profession along with it."
Initially, the brief was prepared on behalf of the International Documentary Association. The following organizations joined the brief: Center for Asian American Media, Directors Guild of America, Film Independent, IFP, Inc., Latino Public Broadcasting, Native American Public Telecommunications, National Association of Latino Independent Producers, Pacific Islanders in Communications, Producers Guild of America, Tribeca Film Institute, University Film and Video Association, Women Make Movies, Writers Guild of America East and Writers Guild of America West. Individual amici also joined the brief: Patricia Aufderheide, Theodore Braun (Darfur Now), Kirby Dick (This Film Is Not Yet Rated), Alex Gibney (Casino Jack and the United States of Money), Andrew Goldberg (Armenian Genocide), Robert Kenner (Food, Inc.), Tia Lessin (Capitalism: A Love Story), Eddie Schmidt (President of the International Documentary Association) and Ricki Stern (Joan Rivers: A Piece of Work).
The United States Court of Appeals for the Second Circuit in New York City will rule on the decision of the lower federal court that granted Chevron's request forcing Berlinger to hand over the footage. Attorney Michael C. Donaldson plans to attend the hearing, which will be held on July 14, 2010.
Michael C. Donaldson, of Donaldson & Callif, organized the writing of the amicus brief along with his partner Lisa Callif and their legal team: Chris Perez, Melissa Radin and Brianna Dahlberg. The International Documentary Association recruited filmmakers and organizations as declarants and signatories.
As reported in indieWire, Berlinger appeared at the IFC Center on June 22 in a fundraising event for his legal fees. Following a screening of Crude, he was joined on stage by his attorney, as well as filmmaker Morgan Spurlock and WGA East President Michael Winship. A separate coalition of media companies-HBO, The New York Times, the Washington Post, CBS among them-has also signed on to an amicus brief, filed by attorney Floyd Abrams. "It is American media versus corporate interests and defense attorneys," Berlinger said at the event, calling the impending battle "an amazing squaring off of the media against corporations."