LA Times Editorial: Chevron Should Be Prevented From Violating Journalist's Privilege

Chevron sues over 'Crude'

A documentary's unused footage, akin to reporters' notes, should be protected.

Journalism that serves society does not always spring from objectivity, nor is it always written from a distance. When Upton Sinclair exposed the conditions of Chicago's meat industry, he did so on assignment from a socialist newspaper. He went to work in grim stockyards and returned with "The Jungle." The result was a revolution in food safety and the founding of the Food and Drug Administration.

Sinclair's closeness to his story gave his journalism urgency and moral power. It was precisely the sort of work that deserves the greatest protection from corporate intrusion. That lesson, however, has been turned upside down by a New York federal judge who this week ordered a documentary filmmaker to turn over outtakes of his work to Chevron.

The man at the center of this important 1st Amendment battle is Joe Berlinger, a respected documentary filmmaker who launched a project in 2005 to chronicle a landmark lawsuit filed by Ecuadoran indigenous people seeking compensation for environmental damage. Berlinger's acclaimed documentary, "Crude," followed the case, focusing on the lawyers for the plaintiffs. Chevron, however, says several scenes reinforce the company's charge that those lawyers cooked up the case: In one, a lawyer for the plaintiffs meets with an expert witness hired by the government to estimate damages from oil in the Ecuadoran jungle; in another, a lawyer is shown meeting with the judge and remarking that such a meeting would be inconceivable in the United States but not in Ecuador, because there "this is how the game is played. It's dirty." Because just a fraction of Berlinger's footage made it into the final film, Chevron believes there was potentially more damaging material left on the cutting-room floor, so it sought to force Berlinger to hand over his outtakes.

Were the material in question notes gathered by a journalist in pursuit of a story, the journalist's privilege, which recognizes the societal benefit of allowing journalists to shield their unpublished notes, would almost certainly have protected it. So the issues were: Was Berlinger a journalist, and do the protections for notes extend to film outtakes? U.S. District Judge Lewis Kaplan sided with Berlinger on both points, concluding that the filmmaker covered a newsworthy event and disseminated his findings to the public — a fairly sound description of journalism in any form.

Nevertheless, noting that the journalist's privilege is a limited one, Kaplan ordered Berlinger to turn over the footage precisely because, paradoxically, Berlinger's close ties to the plaintiffs meant that he has material that Chevron is unable to get anyplace else. (Kaplan seems to have overlooked the presence of other witnesses in the filmed scenes.) Kaplan may be right that Berlinger has exclusive material, but forcing him to relinquish it turns the point of journalistic access on its head: If journalists must reveal what they learn but do not publish from those sources they cultivate most carefully, then sources will keep them at arms' length. This nation is better off because Sinclair was able to insinuate himself into Chicago's meatpacking plants; it will be better again if Berlinger prevails on appeal. And it will be better still when Congress passes a federal shield law that protects journalists and their sources.

Copyright © 2010, The Los Angeles Times

Read More

LA Times Editorial Blasts Chevron

Last Friday an editorial blasted Chevron's newest tricky legal maneuver: an attempt to freeze out the rights of more than 30,000 indigenous people by moving the trial (that they asked for!) into a secret international arbitration. The editorial clearly lays out what Chevron is attempting – read on:

latimes.com

Editorial

Chevron's shifty shifting of venue

The oil giant, facing a $27-billion damage claim in a pollution case brought by natives in Ecuador, shops the case to The Hague in a bid to escape liability.

October 2, 2009

When Chevron was in a New York courtroom battling a lawsuit by thousands of indigenous Ecuadoreans, it argued that the case rightly belonged in their country. But now that the company is poised to lose in the Andean nation and could be assessed as much as $27 billion in damages, it says Ecuador isn't the right place either. Last week, the oil giant shopped the case to yet another court, filing a claim at the Permanent Court of Arbitration in The Hague.

Chevron has long maintained that it would appeal an adverse decision, which is entirely understandable. But this action is different. By going to The Hague before a verdict is issued in Ecuador, the company shuts outthe private citizens who brought the suit and who have no standing there. This reframes the case as between Ecuador and Chevron, and if it succeeds -- shifting liability from the company to the Ecuadorean government -- it could have a chilling effect on people all over the world who are engaged in legal battles with multinational corporations.

Let's be clear: The case wasn't brought by Ecuador. It was filed by people who say they have suffered serious personal harm, illness and environmental damage as a result of oil operations in their homelands. From the very beginning, Chevron has been trying to turn the focus away from these people and to pin the responsibility for the pollution on the government of Ecuador. After the suit was filed, the company got a waiver from Ecuador releasing it from all claims by the government. But the waiver didn't successfully stop third-party claims. So, in 2004, the company asked a federal court in New York to force Ecuador's state-owned oil company to indemnify it for any judgment in the case. The court rejected that claim in 2007, and in 2008, a three-judge panel for the U.S. 2nd Circuit Court of Appeals affirmed the ruling.

Now Chevron, which once agreed to abide by the Ecuadorean court's ruling, says it has no choice but to seek an international remedy in The Hague because it cannot get a fair trial in the Amazon. To bolster that contention, it recently released videotapes that it says depict the judge, Juan Nunez Sanabria, prematurely declaring Chevron's guilt. The tapes are unclear as to Nunez's intent, and he maintains that no impropriety occurred. He recused himself from the case to avoid becoming a distraction but has since been reinstated.

The real problem for Chevron, however, isn't jurisdictional or procedural. Nor is it about biased justice in New York or Ecuador. The issue is the devastating contamination in the Ecuadorean Amazon, the individuals whose lives have been affected and the importance of accountability. No matter where this case is tried, that's not going to disappear.

Copyright © 2009, The Los Angeles Times

Read More