Q&A: 'Crude' director Joe Berlinger on his epic battle with Chevron

By Eriq Gardner

Today, the Second Circuit Court of Appeals heard arguments over whether it should compel filmmaker Joe Berlinger to turn over to Chevron more than 600 hours of raw footage taken for a documentary on oil pollution in Ecuador.

In May, a district court ordered the "Crude" director to hand over outtakes from his film. In arguments today, a lawyer for Berlinger argued that the district court's order would result in harming "a relationship of trust" between journalists and their sources. Lawyers for Chevron countered that the footage was "urgently needed evidence" critical to the company's defense of litigation in Ecuador.

A panel of judges seemed to probe possible resolutions that would satisfy both parties, such as appointing a special master to first examine the outtakes. A decision from the Second Circuit should come shortly.

We spoke with Berlinger on his reaction to today's hearing. (A longer radio interview here.)

THR, Esq: How optimistic are you?

Berlinger: It's premature to call it. Most appeals are unsuccessful and the appealing party has a lot to prove. I was very relieved the court seemed to be sympathetic to my primary concerns about the case. Nobody expects the decision to be completely reversed. Having covered the legal process, I know there are times you want journalists to be compelled. But it can't just be a fishing expedition. If I knew I had any evidence that was exculpatory, I would want the footage to be turned over. But only if the First Amendment standards of true relevancy and exclusive access of information are met.

THR, Esq.: What would be a realistic outcome that you'd be happy with?

Berlinger: I was happy that a lot of the conversation centered on narrowing (the district court's order). It's an extraordinarily bad precedent for filmmakers if they are forced into a wholesale dumping of footage into the hands of an interested party. If we get a ruling that narrows the turning over of footage, I'll consider that a victory. I also think it's important that the court put the footage under protective order. Chevron has a massive marketing budget, and I don't want my footage to be sucked into a marketing campaign. 

THR, Esq.: Have you given any thought to what you'll do if the 2nd Circuit decides to uphold the lower court ruling?

Berlinger: If it's a pure upholding of the ruling, I can't give you an answer. I so believe in the righteousness of the argument that it should be a narrowed request that it's hard to speculate otherwise. I would have to think through my options. I would want to read the judge's reasoning.

THR, Esq.: You've received tremendous support from the filmmaking community, from the DGA to a number of prominent Hollywood players. Have you been surprised by the level of support?

Berlinger: Beyond surprised. I'm stunned. We all work in our own worlds and keep our heads buried. Just the fact that there's been a huge level of outpouring from Robert Redford to Norman Lear to Bill Moyers has been great. The other thing is, I've been stunned by the support from media organizations. (First Amendment attorney) Floyd Abrams wrote an amicus brief that was signed by every major media company. In this era of corporate media and declining ad sales, to sign on and potentially offend a big potential advertiser like Chevron, is remarkable and so unexpected. I'm deeply touched.