Sundance Film Festival

Will CRUDE director be forced to surrender his footage?

As the world struggles to absorb the devastating implications of the oil spill currently glugging untold barrels of crude into the Gulf of Mexico, while the companies involved point fingers at each other and decline to fully admit their mistakes, another oil-related drama has been playing out in a federal court in New York.

Chevron, the oil giant at the center of Joe Berlinger’s documentary CRUDE, which opened at the Sundance Film Festival in January 2009, has petitioned the court to allow it to subpoena more than 600 hours of footage shot for his film. The film tells the story of a group of Ecuadoreans who are suing the oil company, contending that it poisoned their people by dumping 18 billion gallons of toxic oil waste into their rivers and onto their land in what has become known as “Amazon Chernobyl.”

Chevron is seeking a dismissal of the suit, which has dragged on for years, and believes that the footage may help its case. But Berlinger’s attorneys have argued that the director should be offered the same privileges that all investigative journalists receive, allowing them to protect confidential sources and information. They insist that forcing him to turn over the footage would violate his rights under the First Amendment and constitute a breech of the confidentiality agreements he’d established with the people who appear in the film.

A little more than a week ago, the ruling came back. It wasn’t good news for Berlinger. Judge Lewis A. Kaplan of United States District Court said that the director had failed to prove that handing over the footage would violate his agreement with his subjects, who had, the judge noted, signed release forms giving the filmmaker “carte blanche to use all of the footage in his production.” What’s more, the judge wrote, “Review of Berlinger’s outtakes will contribute to the goal of seeing not only that justice is done, but that it appears to be done.”

Berlinger’s lawyers have told The New York Times that they plan to appeal the judge’s ruling, and that in the meantime, they will request a stay.

“We’re obviously very surprised at the court’s lack of sensitivity to the journalist’s privilege,” Berlinger’s lawyer Maura J. Wogan told the Times after the ruling came through. “The decision really threatens grave harm to documentary filmmakers and investigative reporters.”

Berlinger, for his part, told the paper that he was “shocked” by the judge’s decision. “To have this broad request to turn over everything related to the case, to me, is just a trampling of the First Amendment and the journalist’s privilege,” he said, adding that, should the subpoena be upheld, it would establish a “horrible precedent” that would damage the trust between filmmakers’ and their subjects.

But, though he will fight the ruling in court, Berlinger says that, ultimately, he will not go against the judge’s orders. “At the end of the day, if I lose all my options, yeah, I’m going to comply with the subpoena and turn it over,” he told the Times. “I’m the father of two children, and this is certainly not worth going to prison over.”

Let’s hope it doesn’t come to that.