‘Crude’ filmmaker’s raw footage subject to subpoena

By Frank Smyth/CPJ Washington Representative on May 7, 2010 3:01 PM ET

Ruling invokes Justice Brandeis in a surprising way. (AP)

filmmaker’s raw footage is much like a photographer’s unedited images or a
reporter’s notebooks—a private record of their reporting that is rarely
disclosed to others. On Thursday, a federal judge in New York ruled
that a private firm could subpoena the unedited footage used to make a news
documentary. The reason? To help the company defend itself against a lawsuit.

In his ruling, U.S. District Court Judge Lewis A. Kaplan quoted an adage from 20th century Supreme Court Justice Louis D. Brandeis: “Sunlight is said to be the best of disinfectants.” The New York federal judge went on to write that allowing the firm to review the filmmaker’s outtakes “will contribute to the goal of seeing not only that justice is done, but that it appears to be done.”


The irony in the judge’s choice of language is as thick as crude. The raw footage from “Crude,” a documentary called “thorough and dispassionate,” by The New York Times, is now vulnerable to a subpoena by Chevron. “Crude” investigates alleged health and environmental degradation resulting from oil extraction by Texaco, now owned by Chevron, in Ecuador. The company is being sued by Ecuadorans for millions of dollars in damages in a U.S. civil court, and “Crude” is the documentary shot largely in Ecuador to tell their story.


What would the late Supreme Court Justice Brandeis think? He 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.


“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. We hear much of the ‘corporation lawyer,’ and far too little of the ‘people's lawyer,’" he said in a 1905 speech before the Harvard Ethical Society.


Judge Kaplan’s ruling this week means that the independent filmmaker Joe Berlinger who made “Crude,” may have to turn over more than 600 hours of footage to Chevron, which Forbes lists as the third largest U.S. corporation.

"We’re obviously very surprised at the court’s lack of sensitivity to the journalist’s privilege,” the filmmaker’s lawyer, Maura J. Wogan, told The New York Times. “The decision really threatens grave harm to documentary filmmakers and investigative reporters.”


I knew this was coming right after watching some raw footage some journalist had taken over there. Another military coverup in the midst!

"The irony in the judge’s choice of language is as thick as crude." Perfect.

If the judge's ruling – which went against abundant legal precedent in the United States – is allowed to stand, it could indeed endanger the critical work of people like filmmaker Joe Berlinger, who explore under-reported issues of profound social and ecological importance. In that way, it would have the exact opposite effect from what Brandeis was suggesting.

Thanks for the post. I hope that CPJ will help rally support for Berlinger as he appeals this terrible ruling.

Well, did you see the video the of the two "journalists" who went into Acorn and supposedly received assistance pretending to be a pimp and a prostitute? It turns out the footage was heavily edited and showed Acorn workers did absolutely nothing wrong. This footage was a catalyst in bringing down the organization.

The attorney general, upon seeing the raw footage, released a statement saying that if the raw footage was showed it would have actually put Acorn in a very positive light.

If you've got nothing to hide, then why not hand over the unedited footage?

Rich, while you do have a valid point in regards to the Acorn case, even though the two "journalists" you talked about never went to journalism school or know the fundamental point of being a journalist (non-fiction), it (your point) doesn't hold true unless the defense feels the journalist exposed the issue in a false light in his film, in which case they should make their case to the judge, not ask to see the footage to make an adequate defense.

The company should know what practices their company uses, not what practices their company got caught with in the raw footage, so they defend each individual aspect of it, especially since the raw footage is irrelevant to the prosecution's case. The company should watch the released movie and use the movie to make its defense, not ask for the raw footage, unless they feel and have proof that the journalist cast them in a false light in the film.

This also goes into another territory. Are journalists now going to be required to provide all their un-published notes, unedited photos, and unedited footage, to defense lawyers? Journalists and their non-published work should not be forced to show their work, unless one party claims an issue with the fairness of that work.

This action by the court can cause documentary filmmakers and photojournalists particular problems, especially the former. If a filmmaker intentionally left out a person's identity during an interview or assignment to make sure no harm befalls on them from the company they work for, then this case has bigger implications than Chevron is letting on. Chevron has an incentive to see that footage, they can find out where they were exposed, who talked, what they said and how someone gained access. If journalists are now worried about private companies being able to subpoena their raw footage, are they suppose to destroy their raw footage, like some journalists do their notes?

This case has far bigger issues than making a proper defense. I'm sure a company like Chevron didn't hire some recent law school graduate for their defense. They should be able to hire their own private investigator to get the information they need, not rely on a journalist and his sources for that.

Also the Acorn case allowed the Attorney General to view the footage and make a decision, what Chevron is asking is not what happen in the Acorn case, since it was not Acorn who asked to see the raw footage.

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