Chevron v Berlinger
This case continues to spin my head.
The first response is to proclaim that Berlinger and his footage is protected by the First Amendment and he should have zero threat of it being subpoenaed by the court and counsel for Chevron.
Then, I start thinking… Joe is after The Truth. Chevron wants to obfuscate the truth and make the case about something other than the actions of the company they now own.
However, if the hands of the side that Joe has advocated for are clean… how can the footage hurt them. In fact, if Chevron scours the footage and nothing comes of it, doesn’t it bolster the film and the case against Chevron?
Combine the issues and one has to take into consideration that Chevron may or may not legitimately think there is someone of weight in the case in that video… but what they will surely try to find and get introduced is footage that infers there are some sort of procedural issues with the case… not unlike Michael Moore in Fahrenheit 9/11. Berlinger didn’t start shooting until many years We would be expected to trust the court to keep out footage that might bias the case but has no evidentiary value. Not everyone agrees that this is a good idea.
As Berlinger told Horn, “My fear is that the motivation here is not to find evidence. It’s to use my footage as part of [Chevron’s] massive public relations campaign to discredit the plaintiffs and the case and me.”
Thing is, the courts have been quite clear that if there is some specific evidence, filmmakers like Berlinger are not protected. And indeed, traditional journalists can be held in contempt of court.
So, in spite of the many proclamations, this is not really a FIRST AMENDMENT, DUE OR DIE case. It’s about the right of Chevron to go on a fishing expedition through Berlinger’s footage. In other words, it’s an issue of degree… at least, in terms of the law.
I’m glad Horn included the film and filmmaker of Bananas! in his piece, though he doesn’t point out that the LA Film Festival took Bananas! out of competition at last year’s festival after Dole claimed that the lawsuit against them was a fraud. Dole, which filed an amicus brief in this Chevron/Berlinger case, was using much the same tactic that Chevron wants to use here. Only Fredrik Gertten was not a well-known American documentarian with relationships here.
I hope that the court will find that Berlinger will only be forced to hand over outtakes from sections which Chevron claims – and can get past a judge – has potential as evidence in a specific way.
I don’t know that the law provides him any more protection than that. And I do think that the idea of demanding ALL footage is both onerous, unfair, and loaded with potential for mischief.
I know folks working on this case and the sight of Chevron sending in their suits to Ecuador to fight dying natives is repulsive.
‘Crude’ is on Netflix streaming if anyone is interested.
They might also be trying to simply bleed Mr. Berlinger and his associated companies dry via lawyer bills.
Obviously I’m no legal eagle, but this reminds me of the case brought against those 2 dudes who wrote the Barry Bonds slam…err..”tell-all” book. They too were subpoenaed and the courts tried to get them to say who their source was, and they didn’t. They were held in contempt and it basically amounted to a hand slap (like, a day behind bars or something). Again, not sure if this is apples and oranges, but I would think Berlinger is covered under the same protections?
A little different level but Judy Miller did 85 days. Not exactly a slap.
Judy should have hid out in France instead.