‘Limited Victory’ for Berlinger in ‘Crude’ Case

Filmmaker only has to turn over certain footage to Chevron and there are tight restrictions on how oil company can use film

In what is being hailed as a “limited victory,” the U.S. Court of Appeals in Manhattan ruled Thursday that documentary director Joe Berlinger will have to turn over some unused footage from his film “Crude” to Chevron.

However, the court modified a lower court order requiring that Berlinger surrender all 600 hours of outtakes from his 2009 film. It also imposed tight restrictions on how the oil company could use the footage.

“Crude" documents a $27 billion environmental lawsuit filed by the residents of the Amazon Rainforest against Chevron. In it, members of five indigenous tribes charge that their communities have been ravaged by oil spills and toxic waste left over from when Texaco, which is now owned by Chevron, operated oil fields in the region.

Chevron subpoenaed Berlinger’s outtakes earlier this year, claiming that it proved that the plaintiffs' lawyers in that case engaged in various forms of misconduct.

In May, New York Federal Court Judge Lewis A. Kaplan ordered Berlinger to comply with the oil company’s subpoena and turn over all footage. But under Thursday's ruling, he will only have to give Chevron access to footage that specifically shows counsel for the plaintiffs, private or court-appointed experts in that case, and current and former official in the government of Ecuador.

More importantly, the appeals court mandated that the footage could only be used by Chevron in litigation or arbitration.

Berlinger did not immediately respond to requests for comment on Thursday, but in an interview following Wednesday’s hearing he told TheWrap that he was hopeful the court would impose restrictions on how Chevron could use his footage. He was particularly concerned that without these stipulations, the company would use his film in a manner similar to its 2009 video on the oil spill, which was edited to look like an impartial news report.

“It’s a limited victory for both sides,” Michael C. Donaldson,who filed an amicus brief on behalf of various media companies in support of Berlinger, told TheWrap. “The most sensitive parts of Joe’s film, which are the interviews with indigenous people effected by Chevron’s conduct, that footage is protected. It is also a huge victory that it can only be used in official proceedings.”

A spokesperson for Chevron also accentuated the positive in responding to Thursday's court order.

“We are eager to move forward with this matter," Justin Higgs, a spokesperson for Chevron, told TheWrap. "We have already seen instances of collusion and fraud on the part of plaintiffs’ lawyers in portions of Crude that have been publicly released. We are confident that review of the outtakes will reveal additional instances of misconduct.”

A decision on Berlinger’s appeal was not expected until sometime next week, but because of the pending litigation against Chevron in Ecuadorian court, the court moved quickly to deliver its order.

The court also found that Chevron will be required to pay any costs associated with reproducing Berlinger’s footage.