Chevron Breaks Promise to U.S. Courts, Misrepresentation Campaign Continues

As predictable as ever, Chevron has violated another promise made to a U.S. federal court – this time just days after it was made by Gibson Dunn lawyer Randy Mastro.

Last week Mastro (the former Deputy Mayor to Rudy Giuliani who is now Chevron's lead lawyer in the Ecuador litigation) promised the 2^nd Circuit Court of Appeals that the oil giant wouldn't use any footage turned over by filmmaker Joe Berlinger in its publicity campaign to distract attention from its role in creating the worst oil-related disaster on Earth.

Chevron had been trying to access the film footage - Berlinger shot it for his award-winning documentary "Crude" – in a highly criticized, unprecedented assault on the First Amendment. After a long court fight, Berlinger surrendered the film to Chevron after the company promised not to use it for any purpose other than litigation.

Only days after getting the footage, Chevron has gone back on its promise and pushed the contents of the film out to its pet bloggers – exactly what it had promised not to do. Predictably, Chevron has spliced and diced the footage to claim it shows evidence of "fraud". The basis for this extraordinary accusation? One scene which showed a lawyer telling the scientific consultants for the plaintiffs that he thought no more proof was necessary to make the case that Chevron was responsible for massive environmental contamination, and then asking the filmmaker to turn off the camera.

Wow Randy – you really hit paydirt!!!!

Talk about spending millions of dollars in legal fees to hit a dry well. Chevron's lawyers at Gibson Dunn, sniffing a billing bonanza and promising on its website to mount a "rescue operation" from the potential $27 billion liability in Ecuador, sold Chevron's in-house counsel on the idea that Berlinger's outtakes contained "smoking gun" evidence of "collusion" between lawyers for the Amazonian communities and Ecuador's government. On this theory Mastro has justified a legal odyssey that has trampled the First Amendment and lined up pretty much every actor and filmmaker on the planet, from Leonardo Di Caprio to Bill Moyers to Michael Moore, against Chevron. Gibson Dunn actually had the audacity to bill for this abomination.

Mr. Mastro, we're still waiting for that smoking gun evidence. In the meantime, why don't you investigate Chevron's fraud in the so-called "remediation," the use by Chevron of a bogus laboratory test to fraudulently induce a release from Ecuador's government, the bribe that your buddy Reis Veiga orchestrated to stop the Guanta inspection, the Borja sting operation orchestrated by Chevron's in-house counsel, the corporate espionage campaign where you hired Kroll to pay journalists to go undercover in Ecuador to spy on the plaintiffs, and the role of you and your colleagues in whisking Borja and others out of Ecuador so they could not be questioned by prosecutors.

In Chevron's desperate attempt to direct attention away from the massive evidence of the contamination caused by its oil operations in Ecuador's rainforest (all told, more than 64,000 scientific sampling results and more than 200,000 pages of trial record point to Chevron's culpability), the company is using every card in the old tobacco industry playbook. Chevron management surely knows what its lawyers try to hide from the public: that the evidence before the court conclusively proves its responsibility for an environmental disaster at least twice the size of the BP disaster in the Gulf.

This isn't the first time Chevron has gotten itself into hot water for manufacturing videos to "prove" its points. Last year the company fell flat on its face when it misrepresented the contents of a secret video created by Borja and became a laughingstock when it paid former CNN reporter Gene Randall to produce a propaganda video masquerading as a "news" report.

So Chevron's misrepresentation campaign marches on, with human lives destroyed and the integrity of the company in tatters, and with lawyers like Mastro laughing all the way to the bank.

Federal courts should sanction Chevron and Mastro for this latest travesty. The oil giant clearly thinks it is above the law. Let's hope that the Court reminds Chevron's lawyer Mastro that promises to the federal judiciary are not made in vain.

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Shan: Chevron Loses a Round in First Amendment Battle over Ecuador Film Footage

The below post appeared on ChevroninEcuador.com today – take a look below or after the jump:

Victory for First Amendment, Filmmakers, & Amazon Communities in Battle Vs. Chevron Over Ecuador Footage!

Chevron suffered a significant legal setback in the courts today in its sprawling cynical effort to evade accountability for its environmental devastation in Ecuador

Today, the U.S. Court of Appeals for the Second Circuit ruled that acclaimed filmmaker Joe Berlinger will get an Appeals Court hearing of his appeal of the lower court decision ordering him to turn over 600+ hours of raw footage shot during the making of his award-winning documentary CRUDE. The ruling by the three-judge panel of the Circuit Court also 'stays' the subpoena ordering the production of the footage while Berlinger's appeal is pending.

This is excellent news for supporters of the U.S. Constitution and the First Amendment, and documentary filmmakers and investigative journalists– and everyone that benefits from the work done by these people to shine a spotlight on issues of social and political importance. In other words, this is great news for everyone.

Furthermore, this is a victory for those who have dared to discover the truth about Chevron's environmental disaster in Ecuador, and the communities struggling to hold the oil giant accountable.

Chevron's lawyers from corporate law behemoth Gibson Dunnhope to mine the CRUDE outtakes for any material that they might find useful to their relentless legal and public relations schemes to discredit the plaintiffs, their attorneys and supporters, and the courts in Ecuador.

In response to the ruling, Mr. Berlinger's lawyer Maura Wogan told The Wrap:

"Today's decision signals that the appeals court takes seriously the rights of investigative journalists like Joe Berlinger."

And Joe Berlinger had this to say:

"I am delighted that the appellate court seems to understand the significant public interest in my appeal being heard. The stay that was granted today will allow us to argue the merits of our position before the Court."

The ruling by the Circuit Court of Appeals vindicates the position of the growing number of high-profile supporters who have spoken out for Berlinger.

On Friday, film legend and environmental activist Robert Redford penned a powerful opinion article in the Huffington Post, entitled 'Joe Berlinger vs. Chevron: Why We Must All Defend Independent Filmmaking'.

Redford's argument couldn't be more straightforward:

Filmmakers like Joe Berlinger fulfill a crucial role in today's society by providing independent information on pressing contemporary human rights and social issues. Their success as storytellers depends on access to those men and women willing to talk on camera. If the subjects of those documentaries are fearful of the ramifications of telling the truth then the filmmaker has no story.

Without a shield law, there is no recognized journalist/filmmaker/source protection, creating the very scenario we have now. The judges in this case must recognize this is first and foremost a first amendment issue. The higher courts need to overturn the decision and adhere to higher standards of journalistic privilege.

If we allow the voice of the independent artist to be stifled we should expect nothing less than extreme repercussions for freedom of information... and freedom in general.

Also last week, Floyd Abrams, perhaps the best-known First Amendment lawyer in the country, filed an Amicus Curiae (friend-of-the-court) brief with the U.S. Court of Appeals for the Second Circuit. The brief was joined by 13 (!) major media organizations– ABC, CBS, NBC, HBO, The Associated Press, Dow Jones, The Washington Post, The New York Times Company, Gannett Company, Hearst Corporation, the Daily News, the Directors Guild of America, and the International Documentary Association.

The New York Times' Dave Itzkoff, who has been following the case closely for the Arts Beat blog at NYTimes.com, wrote:

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.

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."

In the June 1, 2010 amicus brief, Abrams writes more on Judge Kaplan's misreading of the Gonzalez case and gets to the the real heart of the matter:

The vast distance between the District Court's reading of Gonzales and its text and spirit is illustrated by the Court's emphasis in both its May 10 and May 20 orders on the proposition that, because the individual subjects captured in the outtake footage voluntarily chose to expose themselves to public scrutiny through the inevitable screening of a completed film, it would "not credit any assertion that the discovery of the outtakes by Petitioners would compromise the ability of Berlinger or, for that matter, any other film maker, to obtain material from individuals interested in confidential treatment." This analysis completely ignores the relationship between a documentary filmmaker and the individuals that he or she interviews; it assumes, wrongly, that the participants in such a project would see no difference between the public circulation of a final film painstakingly prepared and edited by the filmmaker who solicited their contribution and whom they entrusted with telling their story and the potentially unlimited display of their every word in a widely-publicized multi-billion dollar international litigation.

And lastly, last week ahead of today's hearing, NPR's All Things Considered covered the legal battle in a story called 'A 'Crude' Awakening: Chevron Vs. The Documentarian'. The story predictably gives Chevron lawyer Randy Mastro of Gibson Dunn and company spokesman Kent Robertson each a chance to weigh in with their cynical spin. After today's loss in the courts over their attempts to get at Berlinger's CRUDE outtakes, I'm sure they're huddling up to devise their next tactic in Chevron's treacherous strategy to deceive, deny, and delay... until it all goes away.

But the communities in Ecuador's Amazon rainforest have other plans, and have vowed to struggle until they get the justice that has been denied them so long.

And of course, Berlinger's legal battle isn't over. While the Circuit Court stayed the lower court's order to turn over all his raw footage to Chevron, Berlinger still has to argue his case on appeal. Want to help with the costly legal battle? Any amount you can donate to the CRUDE First Amendment legal defense fund is deeply appreciated.

And if you still haven't seen the explosive, award-winning documentary CRUDE, see it, and judge for yourself.

– Han
Han Shan is Coordinator of Amazon Watch's Clean Up Ecuador Campaign

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Norman Lear Latest to Blast Chevron for Trying to Seize Ecuador Film Footage

This article, by Norman Lear, appeared today on The Huffington Post:

Was Oil Named 'Crude' Because of the Way Oil Companies Do Business?

Let me leave it to you; which is it? "Couldn't be" or "certainly possible"? The recent BP crisis could be called the greatest of "natural" disasters. Natural for a company that had already received 760 citations for "egregious, willful violations," accounting for "97% of all flagrant violations found in the refining industry..." according to the Center for Public Integrity,as quoted by Frank Rich in this past Sunday's New York Times.

Currently setting another high standard for crude behavior in the oil business is Chevron. As for the battle between Chevron and the indigenous groups of people in Ecuador who are suing the oil company for despoiling a swath of the Amazon rainforest the size of Rhode Island that is their habitat, and upon which they depend for their sustenance, I am not taking sides. It is Chevron's reaction to a documentary on that very subject, Crude, which received the most glowing reviews in 2009, with which I take issue.

With no precedent for such a broad action, Chevron has subpoenaed the filmmaker, Joe Berlinger, to turn over his entire vault of footage -- over 600 hours shot (Berlinger is an exceedingly thorough filmmaker) plus the notes and sources the film was based on -- by citing the relevance of three scenes totaling about six minutes in a film that has a running time of 105 minutes and represents an infinitesimal fraction of the total hours shot.

Let me say that again: Chevron wants it all, every scene, 600 hours, because they believe they've found six minutes of footage that they think can help discredit the class-action suit filed against them by 30,000 Ecuadorians. Who would have guessed that Chevron would find a crudely sympathetic ear in U.S. District Court Judge Lewis Kaplan? Flouting the First Amendment, the author's right to keep his sources and work product private, and simple common sense (600 hours for the six minutes that they hold in question, my God!!) Judge Kaplan, ruling in favor of the company, ordered the largest turnover of a reporter's work product in American history.

Giving deep-pocketed corporations the right to rummage around in the files of a well-respected, independent documentarian like Berlinger will not only send a very discouraging message to anyone involved in the news-gathering business, but also to anyone who might want to talk to reporters about exposing the kind of corporate negligence or potential villainy that made the BP disaster possible. Chevron is the largest corporation in California and the fifth largest on the planet. I am quite confident that the Founding Fathers did not want corporations to use their vast profits to discourage this kind of reporting from taking place and at the same time place considerable financial burdens on filmmakers like Berlinger to defend their constitutional rights.

Although the American media has been on hand to catch BP with its tactics and ethical shorts down, the Chevron situation took place far from the lens of most American journalists and is the kind of story often overlooked by the mainstream American press. Whatever the reason for that may be, the chilling effect that this ruling will have on investigative filmmakers like Berlinger will mean that stories like this might not be told in the future. This is such a matter of grave importance that the bulk of American media companies signed on to leading constitutional lawyer Floyd Abrams friend-of-the-court brief recently filed on behalf of Berlinger's case. The group filing included all three major broadcast networks, the New York Times and the Washington Post.

The crudest thing of all in this story is the tilt in this country in favor of corporations. From the Supreme Court's recent decision allowing corporations to flood Washington with campaign finance -- which in turn keeps our country tethered to an antiquated fuel source that is destroying our environment -- to Chevron's current attempt to destroy the protections that allow a free press to function, it is time we put the future of this country back in the hands of its citizens, not its corporations.

Having observed hundreds of thousands of Americans in almost 50 states wait in line as long as 90 minutes to spend a moment with a touring original copy of the Declaration of Independence, born the night of July 4, 1776, our country's birth certificate, I am here to report that the American people, the solid American people, are ready for a rebirth of citizenship. They are ready to be freed, to become born-again Americans -- citizens who once more declare their independence, this time from the growing corporatocracy in which we find ourselves today.

I suggest that we begin by applauding today's appellate court decision granting Berlinger a stay in order to have a full hearing on his appeal. I, along with my fellow citizens, hope that these judges will continue to put the sanctity of the First Amendment ahead of the rights of corporations when Berlinger's appeal is heard in July.

* * * * * * *

To learn more about how to help with Mr. Berlinger's legal efforts, please click here

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Redford: Chevron Move to Seize Ecuador Film Footage "Shocking"

The below article appeared on The Huffington Post today:

Joe Berlinger vs. Chevron: Why We Must All Defend Independent Filmmaking

I have devoted a significant part of my life's work in support of the independent artist -- independent referring not to the size of a project, its funding or subject matter; rather, to the singular vision and voice of that artist. I founded Sundance Institute 30 years ago out of the belief that it is vital to ensure that the artist's voice remains vibrant, valued and heard in civil society at large.

It is with this in mind that I ask you to join me in bringing wider attention and broader support to a critically important case currently in play in U.S. courts.

On May 6, 2010 Judge Lewis A. Kaplan ordered filmmaker Joe Berlinger to turn over to Chevron Corporation all raw footage -- some 600 hours -- from the making of his documentary, Crude: The Real Price of Oil. Chevron has sued to use this footage to bolster its legal proceedings in the very same case that is the central subject of Berlinger's film. The potential ramifications of this for the journalist community, film world and society in general are both shocking and profound.

Joe Berlinger has been connected to the Sundance family in a variety of ways for a number of years. Crude made its world premiere at the 2009 Sundance Film Festival; he has volunteered his time and expertise to Sundance Institute by serving as both a competition Juror and a Festival panelist, and he has participated in the Institute's Documentary Film Program. He has directed Sundance Channel's award-winning Iconoclast series along with Bruce Sinofsky and his films have been broadcast on the Channel as well.

His stellar career includes such landmark documentaries as Brothers Keeper, Paradise Lost and Metallica: Some Kind of Monster, all of which premiered at our Festival. But even if there were not these connections, I would strongly call for his support. Here's why.

Filmmakers like Joe Berlinger fulfill a crucial role in today's society by providing independent information on pressing contemporary human rights and social issues. Their success as storytellers depends on access to those men and women willing to talk on camera. If the subjects of those documentaries are fearful of the ramifications of telling the truth then the filmmaker has no story.

Without a shield law, there is no recognized journalist/filmmaker/source protection, creating the very scenario we have now. The judges in this case must recognize this is first and foremost a first amendment issue. The higher courts need to overturn the decision and adhere to higher standards of journalistic privilege.

If we allow the voice of the independent artist to be stifled we should expect nothing less than extreme repercussions for freedom of information...and freedom in general.

You can support Berlinger's legal efforts by going here.

Robert Redford is the Founder and President of Sundance Institute, a non-profit arts organization which supports independent artists worldwide.

www.sundance.org

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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

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Chevron Tries to Silence Critics of Its Ecuador Environmental Disaster

Chevron is exhibiting some awfully thin skin lately over its Ecuador environmental disaster.

A clear pattern is emerging where the company, its lawyers, and its public relations firms try to intimidate critics of its Ecuador problem into silence. Award-winning filmmaker Joe Berlinger, who recent made a movie documenting the company's abuses in Ecuador, is the latest victim. That has gotten Chevron on the bad side of prominent journalists and filmmakers such as Bill Moyers, Trudie Styler and Michael Moore.

Chevron has admitted to dumping billions of gallons of toxic waste into Ecuador's Amazon to cut costs, decimating indigenous groups and creating an outbreak of cancer that affects thousands of people. For years, the company has engaged in abusive litigation to evade accountability for a clean-up.

Unlike the BP disaster in the Gulf, Chevron (via its predecessor company Texaco) discharged this waste on purpose. And unlike BP, Chevron's executives have buried their heads in the sand and refused to accept responsibility for the clean-up.

The increased pressure on Chevron – 60 Minutes did a highly unflattering segment on the company recently – seems be taking a toll.

Take look at Chevron's attacks on Free Speech just in the past year:

• Filing frivolous lawsuits to "punish" critics: Chevron, via its new law firm Gibson Dunn, initiated a "malicious prosecution" lawsuit in a California federal court to punish a 75-year-old lawyer, Cristobal Bonifaz. Bonifaz had brought a separate lawsuit against Chevron on behalf of a handful of individuals for health claims related to the company's Ecuador disaster in San Francisco federal court. A federal judge turned the tables on Chevron, finding the Chevron action violated a California law that bars nuisance lawsuits designed to suppress Free Speech. The judge dismissed virtually all of Chevron's claims against Bonifaz. The California law (called Anti-SLAPP) used by the court against Chevron was created to prevent legal attacks brought to censor, intimidate and silence critics by burdening them with the cost of defending a frivolous lawsuit. The decision was a tremendous setback for Gibson Dunn, which has a reputation for being paid millions to protect companies like Chevron from being held accountable for their human rights abuses.

• Attempting to intimidate journalists and gain access to their files: Chevron recently launched an unprecedented legal attack on award-winning documentarian Joe Berlinger to force him to allow the company to rummage through 600 hours of video footage Berlinger shot for the documentary, CRUDE. The movie – which has won 22 awards from film festivals -- chronicles the struggle of the 30,000 residents of the Ecuadorian rainforest to hold Chevron accountable for systematically polluting their lands. Chevron's lawsuit prompted a group of filmmakers that includes 20 Academy Award winners and many more nominees to write an open letter in support of Berlinger stating that Chevron's effort "will have a crippling effect on the work of investigative journalists everywhere." Filmmaker Michael Moore has stated, "The chilling effect of this is, someone like me, if something like this is upheld, the next whistleblower at the next corporation is going to think twice about showing me some documents if that information has to be turned over to the corporation that they're working for."

• Barring critics from public events: At the Chevron-sponsored Houston Marathon, a team of runners was barred from participating in the event, and threatened with arrest, for attempting to distribute materials critical of Chevron's human rights record in Ecuador. The race manager told the runners that "higher ups at Chevron were freaking out." At the time, runner Maria Ramos stated: "It is sad that the Chevron Houston Marathon – which raises awareness and money for many important causes – would deny the rights of participants to appease a corporate sponsor that is clearly ashamed of its human rights record."
• Attempting to pressure news outlets to silence critics: Chevron has used pressure tactics to force major media outlets to prevent advertisements critical of the company from being published. Chevron responded to an ad campaign from the Rainforest Action Network by directing its lawyers and public relations firms to leverage the company's influence and demand that the New York Times and Washington Post pull the ads. Despite Chevron's complaints, the New York Times ran the advertisements. However, the Washington Post initially succumbed to Chevron's pressure and pulled the ads temporarily. Of course, the fact Chevron was contemporaneously paying for the publication of advertisements attacking its critics was of no small irony.

• Taking out advertisements attacking critics: Chevron has taken out multiple paid advertisements in Ecuador, in the United States, and across the internet accusing the Amazon community leaders suing Chevron of being liars, frauds, and con men. Chevron has also taken out ads attacking the independent court-appointed expert in Ecuador, the judge, and other participants in the lawsuit. The use of paid public advertisements to attack and intimidate court officials is unethical and would result in sanctions against the company's lawyers if it were done in the United States.

Chevron's "scorched earth" approach to its critics is pathetic, to say the least. But that's what happens when some of Big Oil's corporate leaders don't want to be reminded that they are responsible for the discharge of more than 18 billion gallons of toxic waste into the Amazon Rainforest.

But the facts are the facts. While we can understand Chevron's desire to forget about the mess it made in Ecuador, and to wish that its critics would go away, it's time for the company to stop trying to silence the opposition.

For more information, visit www.chevrontoxico.com.

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Bill Moyers: Chevron's "Crude" Attempt to Suppress Free Speech

This article, by Bill Moyers and Michael Winship, appeared on The Huffington Post.

Chevron's "Crude" Attempt to Suppress Free Speech

Even as headlines and broadcast news are dominated by BP's fire-ravaged, sunken offshore rig and the ruptured well gushing a reported 210,000 gallons of oil per day into the Gulf of Mexico, there's another important story involving Big Oil and pollution -- one that shatters not only the environment but the essential First Amendment right of journalists to tell truth and shame the devil.

(Have you read, by the way, that after the surviving, dazed and frightened workers were evacuated from that burning platform, they were met by lawyers from the drilling giant Transocean with forms to sign stating they had not been injured and had no first-hand knowledge of what had happened?! So much for the corporate soul.)

But our story is about another petrochemical giant -- Chevron -- and a major threat to independent journalism. In New York last Thursday, Federal Judge Lewis A. Kaplan ordered documentary producer and director Joe Berlinger to turn over to Chevron more than 600 hours of raw footage used to create a film titled Crude: The Real Price of Oil.

Released last year, it's the story of how 30,000 Ecuadorians rose up to challenge the pollution of their bodies, livestock, rivers and wells from Texaco's drilling for oil there, a rainforest disaster that has been described as the Amazon's Chernobyl. When Chevron acquired Texaco in 2001 and attempted to dismiss claims that it was now responsible, the indigenous people and their lawyers fought back in court.

Some of the issues and nuances of Berlinger's case are admittedly complex, but they all boil down to this: Chevron is trying to avoid responsibility and hopes to find in the unused footage -- material the filmmaker did not utilize in the final version of his documentary -- evidence helpful to the company in fending off potential damages of $27.3 billion.

This is a serious matter for reporters, filmmakers and frankly, everyone else. Tough, investigative reporting without fear or favor -- already under siege by severe cutbacks and the shutdown of newspapers and other media outlets -- is vital to the public awareness and understanding essential to a democracy. As Michael Moore put it, "The chilling effect of this is, [to] someone like me, if something like this is upheld, the next whistleblower at the next corporation is going to think twice about showing me some documents if that information has to be turned over to the corporation that they're working for."

In an open letter on Joe Berlinger's behalf, signed by many in the non-fiction film business (including the two of us), the Independent Documentary Association described Chevron's case as a "fishing expedition" and wrote that, "At the heart of journalism lies the trust between the interviewer and his or her subject. Individuals who agree to be interviewed by the news media are often putting themselves at great risk, especially in the case of television news and documentary film where the subject's identity and voice are presented in the final report.

"If witnesses sense that their entire interviews will be scrutinized by attorneys and examined in courtrooms they will undoubtedly speak less freely. This ruling surely will have a crippling effect on the work of investigative journalists everywhere, should it stand."

Just so. With certain exceptions, the courts have considered outtakes of a film to be the equivalent of a reporter's notebook, to be shielded from the scrutiny of others. If we -- reporters, journalists, filmmakers -- are required to turn research, transcripts and outtakes over to a government or a corporation -- or to one party in a lawsuit -- the whole integrity of the process of journalism is in jeopardy; no one will talk to us.

In his decision, Judge Kaplan wrote that, "Review of Berlinger's outtakes will contribute to the goal of seeing not only that justice is done, but that it appears to be done." He also quoted former Supreme Court Justice Louis D. Brandeis' famous maxim that "sunlight is said to be the best of disinfectants."

There is an irony to this, noted by Frank Smyth of the Committee to Protect Journalists.Brandeis "made his famous sunlight statement about the need to expose bankers and investors who controlled 'money trusts' to stifle competition, and he later railed against not only powerful corporations but the lawyers and other members of the bar who worked to perpetuate their power"

In a 1905 speech before the Harvard Ethical Society, Brandeis said, "Instead of holding a position of independence, between the wealthy and the people, prepared to curb the excesses of either, able lawyers have, to a large extent, allowed themselves to become adjuncts of great corporations and have neglected the obligation to use their powers for the protection of the people."

Now, more than a century later, Chevron, the third largest corporation in America, according to Forbes Magazine, has hauled out their lawyers in a case that would undermine the right of journalists to protect the people by telling them the truth. Joe Berlinger and his legal team have asked Judge Kaplan to suspend his order pending an appeal to the United States Court of Appeals for the Second Circuit.

As the Independent Documentary Association asserts, "This case offers a clear and compelling argument for more vigorous federal shield laws to protect journalists and their work, better federal laws to protect confidential sources, and stronger standards to prevent entities from piercing the journalists' privilege. We urge the higher courts to overturn this ruling to help ensure the safety and protection of journalists and their subjects, and to promote a free and vital press in our nation and around the world."

Bill Moyers is president of the Schumann Center for Media and Democracy. Michael Winship is president of the Writers Guild of America, East. Rebecca Wharton conducted original research for this article.

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