As reported in The New York Times, a federal appeals court ruled earlier this month that filmmaker Joe Berlinger could not invoke journalist's privilege in protecting the 600 hours of footage of his documentary Crude from Chevron's subpoena of the material last spring.
Although the same Second Court of Appeals ruled last summer that Chevron could not arbitrarily claim all of Berlinger's footage, in submitting the more recent ruling, the judges wrote, "Given all the circumstances of the making of the film, as reasonably found by the district court, particularly the fact that Berlinger's making of the film was solicited by the plaintiffs in the Lago Agrio litigation for the purpose of telling their story, and that changes to the film were made at their instance, Berlinger failed to carry his burden of showing that he collected information for the purpose of independent reporting and commentary."
At last week's Cinema Eye Honors in New York City, IDA Board President Eddie Schmidt addressed the audience about the January 14th ruling: "In a year when corporations were given the opportunity to express themselves in our elections, and another corporation is able to win a ruling judging that a documentary filmmaker investigating them is not, in fact, a journalist...I ask if you begin to see the connections in the world we're living in. If we're not independent, who is?...There's no question in my mind that the most important investigative journalism, and the most in-depth examinations of the human condition, are happening today because of the people in our community.
"One of the things that IDA is working on for the future is a federal shield law that properly includes documentary filmmakers in the very definition of journalists. Had this been in place in a meaningful way, what happened to Joe Berlinger might not have been possible. It appears there's a fundamental misunderstanding of the process in our work, and just as we expect truth from our news sources, our new sources require the building of trust.
"So I may be calling on many of you, as I have in the past, to come together and make a difference again to help this bill work its way into law. We can be independent, but should be united. As we clearly see from what is happening in Joe Berlinger's case, our professional lives and our pursuit of the truth may depend on it."
For his part, Berlinger responded to the ruling, in an e-mailed statement, "I am deeply concerned by the Court's fundamental misunderstanding of the circumstances surrounding the production of this film in particular and the nature of long-term investigative documentary reporting in general, when filmmakers embed themselves with their subjects over a long period of time to be able to tell underreported stories that serve the public interest.
"While the idea for Crude was pitched to me by Steven Donziger, one of the Lago Agrio Plaintiffs' lawyers, this was not a commissioned film. I had complete editorial independence, as did 60 Minutes and Vanity Fair, who also produced stories on this case that were solicited by Mr. Donziger. The decision to modify one scene in the film based on comments from the plaintiffs' lawyers after viewing the film at the Sundance Film Festival was exclusively my own and in no way diminishes the independence of this production from its subjects. I rejected many other suggested changes and my documentary Crude has been widely praised for its balance in the presentation of Chevron's point of view as well as the plaintiffs'.
"The facts concerning my independence were never fully before the Second Circuit, because this was not a significant issue in the district court proceedings and not addressed in the district court's holding. The appeals court's ruling that a journalist must affirmatively establish editorial independence is a sea change in the law. The standards it articulates for determining independence will unfortunately deter a great deal of important reporting by independent journalists."