By Tom Isler
In 2011, thousands of Ecuadorians won a multi-billion-dollar class-action judgment in Ecuador against Chevron Corp. for environmental contamination in the Amazon rainforest. Earlier this month, Judge Lewis A. Kaplan of the U.S. District Court for the Southern District of New York concluded that the Ecuadorians could not proceed against Chevron’s assets in America because their attorney Steven Donziger and his legal team had obtained the judgment through corrupt means, including fraud, bribery, extortion and coercive behavior. (View the 485-page opinion.)
In documentary circles, this case is better known as the subject of Joe Berlinger’s award-winning film Crude and his unsuccessful legal battle to invoke the “journalists’ privilege” to protect his outtakes from discovery by Chevron’s lawyers.
In 2010, Judge Kaplan ordered Berlinger to turn over approximately 600 hours of outtakes to Chevron. (See Chevron Corp. v. Berlinger, 709 F. Supp. 2d 283 (S.D.N.Y. 2010).) Berlinger thought the order was vastly overbroad and appealed it. The U.S. Court of Appeals for the Second Circuit narrowed the production order (Berlinger eventually had to produce only 500 or so hours of footage), but, largely affirming the district court, held that Berlinger could not invoke the journalists’ privilege because he failed to demonstrate sufficient “independence” from Donziger.
The journalists’ privilege is designed to protect newsgathering and prevent journalists from being used as investigators for the government or civil litigants. When successfully invoked, the privilege shields journalists’ notes, sources, files and other documents from subpoenas and may relieve journalists from testifying in court. Although legislatures have enacted shield laws in some states, in others the journalists’ privilege is a court-made doctrine.
In the Second Circuit, a civil litigant can subpoena non-confidential press material if it is likely to be relevant to a significant issue in the case and the information is not reasonably obtainable from other sources. (See Gonzales v. NBC, 194 F.3d 29, 36 (2d Cir. 1999).) The privilege can be invoked by anyone who is “involved in activities traditionally associated with the gathering and dissemination of news,” even if that person is not a member of the institutional media. In other words, going after journalistic work product should be a matter of last resort, and the privilege is to be widely available to anyone involved in journalistic activity.
In the Chevron case, the district court held that Berlinger’s outtakes were not confidential and likely relevant to a significant issue in the litigation; in addition, they contained information that was not reasonably obtainable elsewhere. The Second Circuit panel, however, reasoned that Berlinger could not invoke the journalists’ privilege at all because he failed to demonstrate sufficient “independence” from Donziger – and therefore he was not a member of the free, autonomous press. “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,” Judge Pierre Leval wrote. (See Chevron Corp. v. Berlinger, 629 F.3d 297 (2d Cir. 2011).)
The lower court, which had previously observed that Berlinger “alone retained control of the content of the film and determined what footage would be made public,” on remand concluded that Berlinger was subservient to Donziger. As it turns out, the outtakes contained exactly what Chevron hoped they would, i.e., evidence of corruption.
The problem with these decisions is that, in explaining why Berlinger was not independent, the courts ended up holding common documentary filmmaking practices against him. The courts’ approach could make it more difficult for the next documentarian to prove her or his “independence,” simply due to the nature of the medium and the filmmaker-subject relationship. It appears that courts need help understanding how documentary filmmaking works when they consider the requirements of the journalists’ privilege.
Consider the five factual findings on which Judge Kaplan concluded that “[t]he Crude team’s independence from Donziger and the [plaintiffs’] lawyers – to the extent there was any at all – was limited.” First, Donziger “recruited” Berlinger to make the film. Second, “Donziger often instructed [cameraman Michael] Bonfiglio to stop filming when he did not like what was being said.” Third, Donziger coordinated with the filmmakers to ensure that the filmmakers and the lawyers were putting forth the same message. “[T]here will be certain questions asked of us that you might want to advise us on how to position – such as funding sources, questions of bias, etc.,” Donziger wrote in an e-mail to Bonfiglio in December 23, 2008, just four weeks before the film premiered at Sundance. “[W]e need to show independence from each other but we should be on the same page as to how that will play out.” The e-mail was written late in the post-production (editing and vetting) process, more than a year before Chevron moved to subpoena the footage and nearly two years before the Second Circuit introduced the concept of “independence” into this case.
Fourth, the filmmakers removed a scene from the final cut which showed the lawyers working with a purportedly neutral party who was writing a report that would recommend damages in the case. At first, Berlinger refused to excise the scene, and showed the film at Sundance with that footage. But a lawyer for the plaintiffs suggested that inclusion of that scene was “so serious we could lose everything.” Berlinger cut the scene from the DVD version of Crude but kept it in the version that was available for streaming over Netflix.
Fifth, and finally, Donziger “recruited the film’s main source of funding: his former classmate Russell DeLeon.” DeLeon contributed “approximately 60 percent of the film’s total funding,” and also contributed to the litigation expenses themselves. (According to a CNNMoney report from 2011, DeLeon contributed $2.3 million to the litigation effort for a 1.75 percent stake in the recovery.) The court also quoted a “personal notebook” entry written by Donziger on April 4, 2007: “I had an incredible email with Russ this morning. He read the VF [Vanity Fair] story [about the case]. R[u]ss is funding the case. Russ is funding the movie. And Russ wants to fund more cases and more movies. I sit back and dream.” (According to an article Berlinger wrote in the fall of 2009, Berlinger himself funded the film for the first year of production.)
In Judge Kaplan’s mind, this all adds up to Berlinger being Donziger’s filmmaking puppet, so beholden to Donziger’s team that he obviously lacked the professional distance to invoke the journalists’ privilege. I, on the other hand, think the courts’ collective reasoning in the Berlinger cases reflects an incomplete understanding of how documentary filmmakers work. Let’s look closer at the conduct cited by the courts.
Pursuing film project pitched by the subject. It is not uncommon for subjects or other interested parties (particularly those who crave the spotlight or who seek to advance a social cause) to pitch ideas to nonfiction filmmakers. This tradition goes back at least to the early days of observational documentary, when Bob Dylan’s manager phoned D.A. Pennebaker to see if the director would make a film about Dylan’s 1965 tour of Great Britain. (Dylan and his manager may have had some input on the film, but the final product was undeniably Pennebaker’s work.)
Pitching stories happens all the time in print and TV journalism. It is the essence of the public relations profession. Sure, public relations professionals will attempt to influence the final product by controlling, to some extent, access to subjects and certain information; that’s within their job description. The fact that someone pitches a story to a journalist hardly means that the journalist cedes editorial control to that person or ceases to exercise independent judgment in agreeing to embark on the project.
The more important question is whether the filmmaker actually ceded editorial control. Courts should focus on the actual agreement, understanding or interaction between the filmmaker and subject that followed the recruitment in making their determination of independence. The Second Circuit opinion, for example, did not fully credit the release forms Berlinger obtained from his subjects that gave Berlinger, in the words of the district court, “carte blanche” to use the footage as Berlinger desired.
Interrupting filming at a subject’s request. At times, film subjects simply do not want to be filmed doing or saying certain things, in the same way that interviewees of print journalists do not always want to be quoted or have their name associated with their quotes. Requests not to film a certain moment (whether recorded or made before the cameras roll) cannot always be avoided; they are as routine in the documentary world as off-the-record conversations are in print journalism. It is also unsurprising that a lawyer, discussing sensitive information, would not allow cameras to roll at will.
What would the court have the camera operator do? Until filming is wrapped, documentary makers are beholden to their subjects for access, and generally will be accommodating of minor requests, such as turning off the camera for a non-essential moment. If a filmmaker continues to record, he or she risks losing the subject’s trust or, worse, access altogether. Ultimately, the filmmaker must decide when the subject’s propensity to ask for “off-the-record” time starts to hinder the filmmaker’s ability to capture the story the filmmaker chooses to tell. (As just one example, director Rachel Boynton recently said she respects her subjects’ limits as a matter of course, according to an article about her new documentary, Big Men, about African oil exploration.)
Removing a scene at a subject’s request. It is a common practice for filmmakers to show their subjects rough cuts of the film as a courtesy and to invite feedback. Some filmmakers consider it an ethical duty to share the story with their subjects before the premiere, particularly with main characters of an observational documentary, because they are the people whose lives will be exposed for public scrutiny. (See, for example, filmmaker Steve James’s comments about showing footage to subjects, in the context of his film Stevie.) Subjects often will make suggestions about things to cut or add. Sometimes filmmakers agree to make changes because those changes make sense or because the changes meana lot to the subjects and do not materially affect the filmmaker’s narrative. Other times, filmmakers will explain their choices and leave the film as it is.
Thus, the fact that a filmmaker agrees to alter a film in light of subject feedback should not automatically mean that the filmmaker is subservient to his subject. Context matters, as do the filmmaker’s reasons for accepting a subject’s suggestion. (Berlinger, for his part, also rejected several suggestions Donziger made to alter the film.)
Accepting funding from sources connected with the subject. Money is usually a good proxy for control, but what exactly does having a common source of funding show? Filmmakers often will look to individuals or organizations that have an interest in the underlying subject matter for some portion of funding, and those people or groups might have strong feelings about how the subject is depicted. When it comes to funding, the more relevant inquiry, obviously, is what strings are attached to the money, explicitly or implicitly. In this case, the courts appeared to assume that strings were attached to Berlinger’s funding.
(I’m not sure exactly what to make of Donziger’s comments prior to Sundance. Viewed most charitably, they reveal a media-savvy subject trying to coordinate a unified publicity strategy in light of obvious perception problems with the film’s funding and the filmmaker’s unequal access to the litigants. At worst, they are fairly direct evidence of Donziger’s attempt to position the film to best suit his own purposes.)
I am concerned about the Crude precedent because, as a documentary filmmaker, I’ve received pitches from individuals or people who would be considered “interested” parties in a certain subject. I’ve turned off the camera when asked to do so. I’ve fielded requests from subjects to remove material from films. And yet I obtained releases from my subjects, and I do not feel that I’ve ever lost editorial control of the content of my films. I wonder if I would be able to convince a court of my independence if Berlinger couldn’t.
In rejecting Berlinger’s right to invoke the journalists’ privilege, the courts point to common documentary filmmaking practices as if the behavior spoke for itself, without discussing the more salient underlying facts. Were strings attached to the film’s funding? What agreement did the filmmaker have with his subject? Who really controlled what content was recorded and, later, included in the final cut? Why was a scene removed? What did the subjects think the filmmaker would do when they requested changes to the final cut? Will future courts look to the underlying facts, or simply go down the checklist of fairly routine documentary practices?
I’m not suggesting that Judge Kaplan should have added to his 485-page opinion, which hardly needed to be longer. The concern is simply that the next court would look at the Chevron decisions for guidance and similarly short-circuit the analysis by checking merely for the presence of common filmmaking practices without asking the more important questions.
When thinking about the journalists’ privilege, it is important to remember that the doctrine developed to protect the free flow of newsworthy information to the public, and not to preserve an ideal of objectivity. Not every film (or news article) will get all of the facts right. Not every film will present all sides of a story with equal weight, equal screen time, or equal vigor. But focusing on one party’s experience – as is common in observational documentary – is not incompatible with maintaining a distanced, “objective” perspective (whatever that term may mean). Responsible observational or investigative filmmaking (or journalism) does not demand equality. It demands good judgment, an honest effort to gather important information for public consumption … and good storytelling skills.
It can be hard to distinguish propaganda from journalism at times, and some courts have already stated they do not want to be in the business of drawing that line. “We can think of no workable test or principle that would distinguish ‘legitimate’ from ‘illegitimate’ news,” one California appellate court wrote in 2006. “Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace.” (See O’Grady v. Superior Court, 44 Cal. Rptr. 3d 72, 97 (Ct. App. 2006)).
Perhaps it makes more sense to look at whether a filmmaker is “involved in activities traditionally associated with the gathering and dissemination of news,” rather than put so much effort into making “independence” determinations.
Documentary filmmakers today are responsible for an impressive amount of investigative journalism. Their footage deserves to be protected – not absolutely, not at the expense of justice – the same way more traditional journalistic work product is protected. Institutional media has the benefit of a longer history and a wealth of legal precedent behind it, and courts seem to understand how a reporter working for a major media outlet fits into the traditional notions of the free press. Documentary filmmakers do not enjoy the same level of understanding, nor do they have the same track record in the courts. That is why the documentary community would be well served by producing studies or reports about common or “best” practices related to the formation and maintenance of the filmmaker-subject relationship, so as to demonstrate that the close ties necessitated by documentary filmmaking do not come at the expense of independence.