* Judge says director must turn clips over, he appeals
* Film outtakes are like journalist notebook - expert
* Chevron says clips needed for their case
By Basil Katz
NEW YORK, June 25 (Reuters) - A bid by oil giant Chevron Corp (CVX.N) to obtain hundreds of hours of raw documentary footage from a U.S. filmmaker has sparked an outcry from media groups rallying in support of journalists’ rights.
As the United States confronts the massive BP Plc (BP.N) (BP.L) oil spill in the Gulf of Mexico, Chevron wants access to 600 hours of raw footage from “Crude,” Joe Berlinger’s 2009 film about a dispute between Ecuadoreans and Chevron over oil pollution.
Lawyers for the Ecuadorean plaintiffs say Chevron could be liable for as much as $27 billion in cleanup and other costs, and allege polluted water has led to high cancer rates among the inhabitants of the Lago Agrio area.
Chevron lawyers say the Ecuadorean claim is without merit and believe the film footage could help the company defend itself.
But the case has raised concerns about First Amendment protections for journalists. The New York Times (NYT.N), Walt Disney Co’s (DIS.N) ABC, General Electric Co’s (GE.N) NBC and CBS, owned by CBS Corp (CBS.N), are among 13 media companies or groups supporting Berlinger as the issue makes its way through the courts.
“I do believe they think there is some kind of smoking gun there that will somehow help them,” Berlinger said about Chevron’s bid for the film’s outtakes.
He is worried that the second-largest U.S. oil company will use the footage out of context and for other means. “If you scour 600 hours of footage and take things out of context, you can do anything, you can spin any story,” he said at a recent Manhattan screening of the film.
A U.S. district judge last month ruled that Berlinger should hand over the footage to Chevron, but also affirmed that the documentary-maker qualified as a journalist.
Berlinger has appealed the decision and a three judge panel at the 2nd U.S. Circuit Court of Appeals in New York is to hear arguments on the matter next month.
“Crude,” which was released last year to critical acclaim, chronicles the oil production and legal fights in Ecuador’s Amazon rain forest. Indigenous communities accused Texaco, bought by Chevron in 2001, of damaging their health and the rain forest by polluting rivers. The main lawsuit was first brought in 1993 by Amazon farmers and residents.
In one scene, an attorney for the plaintiffs describes using pressure tactics on an Ecuadorean judge to get a favorable ruling. “This is something you would never do in the United States, but Ecuador, you know, this is how the game is played. It’s dirty,” lawyer Steven Donziger explains.
This and other scenes got Chevron’s attention, leading it to subpoena Berlinger in April for all of the footage in the hope it could help the company get the 17-year-old lawsuit dismissed.
Chevron attorney Randy Mastro said the film’s outtakes “are literally a candid camera of plaintiffs councils’ transgressions, a treasure trove of their misconduct.”
The company’s attorneys have alleged that Berlinger was sympathetic to the Ecuadoreans’ plight and grants disproportionate screen time to the plaintiffs.
“This is not a case about the First Amendment,” said Mastro. “No journalist need fear this decision in any way because this is an extraordinary circumstance.”
U.S. Judge Lewis Kaplan said in his May 6 opinion that since the film did not use confidential sources and the material is unattainable elsewhere and is useful for Chevron’s case, it must be relinquished.
Berlinger, however, says the relationship between a filmmaker and his subjects does not need to be confidential to be protected. Subjects implicitly trust the filmmaker or journalist to not share the footage with others, and to portray them in a truthful way.
Jane Kirtley, a professor at the University of Minnesota School of Journalism and Mass Communication, said documentary outtakes ought to have the same protections as a journalist’s notebook, but she recognized it could be a difficult case to make.
“It’s often a tough argument to make because it really does require a judge to buy into the idea that what you’re protecting here is editorial and journalistic independence,” she said.
She said the case could undermine the editorial process and effectively turn Berlinger “into an investigator for Chevron.” (Editing by Michelle Nichols and Brian Winter)