05/10/2010 11:59 am ET Updated May 25, 2011

Chevron Wins First Round Against Crude Filmmaker

A ruling by a federal court judge in a case involving Chevron's environmental disaster in the Amazon could lead to documentary filmmakers and investigative journalists dumping their unused footage and notes in order to avoid having them seized, said the filmmaker's attorney.

Documentary filmmaker Joe Berlinger must hand over to Chevron more than 600 hours of video taped during the filming of Crude, a federal judge ruled Thursday in Manhattan, a ruling that bodes ill for filmmakers and investigative journalists.

The award-winning 2009 movie chronicled the $27 billion lawsuit against Chevron, an attempt to bring restitution to hundreds of communities in the Ecuadorean Amazon devastated by contamination from the company's operations in the region.

Berlinger has argued that the footage is protected under the First Amendment and that he had promised confidentiality to his sources. U.S. District Judge Lewis Kaplan responded that there was no proof of those promises, and agreed with Chevron's argument that Berlinger's footage might prove malfeasance on the part of some of those involved in the lawsuit.

"We were surprised at the decision," said Maura Wogan, attorney for Frankfurt Kurnit Klein & Selz who represents Berlinger's company, Third Eye Productions, in the case. "We respectfully disagree, and obviously we're going to appeal. We feel that the court lacks sensitivity" to journalistic procedures and methods, she said.

Kaplan ruled that turning over the film to Chevron would be a minimal burden on Berlinger -- a fact that shows Kaplan's lack of understanding of the journalistic process, Wogan said. "The judge was focused more on the administrative burden of actually handing over the files," she said. "But the type of burden we're talking about is the impact on his ability to go forward in future to make these types of films.

"Joe Berlinger does wonderful documentaries, many of them focused on ongoing litigation," Wogan said. "His ability to cover these cases and to get access to people involved in lawsuits is entirely based on his ability to build relationships of trust. He will not be able to make these kinds of movies if people can't trust him not to turn over his material wholesale to the other side."

Indeed, filmmaker Michael Moore told the New York Times the ruling would have a dire effect on documentary filmmaking, and he urged Berlinger to resist the subpoena. "Obviously the ramifications of this go far beyond documentary films, if corporations are allowed to pry into a reporter's notebook or into a television station's newsroom," he told Arts Beat writer David Itzkoff.

Wogan agreed that the potential impact of this case goes far beyond Joe Berlinger and the hundreds of people interviewed for his documentary, Wogan said. Besides making sources much more reluctant to talk, the ruling could make journalists and filmmakers the targets of routine harassment by participants in lawsuits of all kinds.

I, for one, hope to keep my notes to myself, and I hope to keep watching the work of hard-hitting filmmakers like Berlinger and Moore. Let's hope common sense and the public good will prevail.

Tracy L. Barnett is the founder of The Esperanza Project, a bilingual, multimedia initiative profiling sustainability projects throughout Latin America.