In the media vs. Chevron, an uncertain winner

by Alex Konrad, contributor


FORTUNE -- Just one day after arguments were heard in an appeals case that pitted documentary filmmaker Joe Berlinger against oil giant Chevron in a dispute over 600 hours of subpoenaed film outtakes, an appeals court has released a preliminary ruling that limits the demands initially set by a federal judge in May.

That ruling led a consortium of media giants, filmmakers, and others to rush to Berlinger's defense, fearful of its impact on protection of journalists' information. The newest appeals ruling appears to more closely follow guidelines for "qualified" privilege of non-confidential information.

The 2009 film Crude documents the ongoing legal battle waged by Ecuadorian Indians against Texaco, which was later acquired by Chevron (CVX, Fortune 500). (For more on this case, see The media vs. Chevron: Bring it on and Are documentary filmmakers journalists?)

On Thursday, the appeals judge ruled that Berlinger must turn over Crude footage that does not appear in any public version of the film's release if it shows the counsel for the plaintiffs in the Lago Agrio class action lawsuit against Chevron or any experts or Ecuadorian government officials involved in that case.

Chevron can claim a partial victory now that it has access to at least some of the footage, which its attorney Randy Mastro has maintained is critical to Chevron's defense and also the defense of two lawyers facing criminal charges in Ecuador. But Mastro had earlier said that all 600 hours were relevant and should be released.

"We are certainly pleased with the ruling," a spokesman for Chevron said. "We are appreciative that the court moved as quickly as it did."

Victory on both sides?

Optimism also ruled in the Berlinger and media camp. Berlinger and his media amici had long maintained that their biggest concern was the sweeping nature of the initial ruling demanding every minute of Crude outtakes. That broad ruling appears to have now been significantly reduced.

In a decision addressing one of Berlinger's main personal concerns, the court also ruled to limit the footage to official and legal use, preventing its general use by Chevron.

"We're heartened by the preliminary ruling because it shows that the court does seem to be concerned about the breadth of the order," Berlinger's lawyer Maura Wogan told Fortune. "That's a very good thing, that Chevron will not be able to use [the footage] for its publicity purposes."

The Lago Agrio plaintiffs' lawyers, a party to the case, have potentially come out as the biggest losers in the ruling, as they had demanded no footage be released. And Chevron's spokesman went so far as to label the decision "a devastating ruling for the Lago Agrio plaintiff lawyers."

But plaintiffs' lawyer Ilann Maazel said the ruling properly found Kaplan's earlier decision too broad.

"[This new decision is] certainly an improvement over Judge Kaplan's order," he said, adding: "The only thing that's devastating is what Chevron did to the Amazon."

As for the case's potential use as precedence on non-confidential information and journalist's privilege in the future, Floyd Abrams, the famed First Amendment lawyer representing the media amici, cautioned that a ruling alone is not enough grounds to gauge its future applications.

"We have to wait for the opinion of the court to see how they applied the law," Abrams said. "It's too early to tell where we're going in this area."

Expect an update when the court's opinion is released later this summer. To top of page