Doc Film That Cut A/C Privilege in $113B Enviro Case Also Pierced Filmmaker's Shield, 2nd Cir. Says

Last year, a decision to cooperate with a filmmaker making a documentary about a $113 billion Ecuadorean environmental case cost plaintiffs’ counsel their attorney-client privilege.

Now in the latest adverse ruling to the plaintiffs as a result of the Crude documentary, a federal appeals court has held that the film also invalidated the filmmaker’s journalistic privilege, because he cooperated with counsel while making the movie rather than acting independently.

In a decision this week (PDF), the 2nd U.S. Circuit Court of Appeals agreed with a trial court that Joe Berlinger, the maker of the movie, gave up his journalistic shield when he made changes demanded by plaintiffs’ counsel, reports the Associated Press.

Agreeing with the trial court that Berlinger could be required to produce to defendant Chevron Corp. some 600 feet of outtakes from the movie, a three-judge appellate panel said the filmmaker—who was asked by plaintiffs’ counsel in 2005 to make the movie—had failed to meet his burden of showing he collected information for the purpose of independent reporting and commentary.

“Those who gather and publish information because they have been commissioned to publish in order to serve the objectives of others who have a stake in the subject of the reporting are not acting as an independent press,” the opinion says. “Those who do not retain independence as to what they will publish but are subservient to the objectives of others who have a stake in what will be published have either a weaker privilege or none at all.”

Earlier coverage:

ABAJournal.com: “2nd Circuit Steps In, Stays Turnover Order for 600 Feet of ‘Crude’ Raw Footage”

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