This article appeared on the New York Times "ArtsBeat" blog yesterday:
Media Companies File Brief on Behalf of Filmmaker in Chevron Case
By DAVE ITZKOFFA group of 13 media companies has filed a friend-of-the-court brief on behalf of Joe Berlinger, the documentary filmmaker who is appealing a federal district court’s ruling that the oil company Chevron can subpoena the outtakes from his film “Crude.”
The brief, filed Tuesday in the United States Court of Appeals for the Second Circuit, in Manhattan, by the lawyer Floyd Abrams, and which was joined by others, including NBC Universal, the Directors Guild of America, HBO and The New York Times Company, says the work of these companies “will be seriously jeopardized” by the district court’s decision and its effect on journalist’s privilege.
Last month, Judge Lewis A. Kaplan of Federal District court in Manhattan ruled that Mr. Berlinger would have to turn over more than 600 hours of footage from “Crude,” his documentary about the Ecuadorians who sued Texaco (now owned by Chevron), accusing it of contaminating their water. Chevron said Mr. Berlinger’s footage could be helpful to the company as it seeks to have the suit dismissed and pursues an international treaty arbitration related to the litigation.
The brief says the district court’s ruling “was fundamentally flawed” in its interpretation of the 1999 case Gonzales v. NBC, in which the Court of Appeals for the Second Circuit held that even confidential materials can be released if they are likely to be relevant to a significant issue in the case and are not reasonably obtainable elsewhere.
The brief said:
a party seeking to compel production of such materials must make a somewhat less demanding showing than for confidential information — but a showing that is, nonetheless, still significantly more substantial than the burden on a litigant seeking ordinary garden-variety discovery.
Judge Kaplan’s ruling, the brief said, “effectively shifted the burden of alleged unfairness onto the filmmakers, rendering this circuit’s requirement of a relevance showing meaningless,” and “made it far too easy for Chevron to obtain far too much, precisely what Gonzales forbids.”
On May 21 Judge Denny Chin of the appellate court ordered a hearing on June 8 to consider a subpoena and stayed the subpoena until that hearing.
The friend-of-the-court brief can be found here. The 13 companies that joined it are ABC, The Associated Press, CBS Broadcasting, the Daily News, the Directors Guild of America, Dow Jones & Company, Gannett Company, Hearst Corporation, Home Box Office, the International Documentary Association, NBC Universal, The New York Times Company and The Washington Post.