The Second Circuit has ordered Joe Berlinger, the director of the documentary Crude to hand over some, but not all, outtakes from the movie. Berlinger declares victory and Chevron now has ammunition to delay the the case for many months, if not years.
You can find the order here. It is short, so I will copy the text:
Pending further order of this Court, respondent Joseph Berlinger is directed to comply forthwith with the District Court’s order, to the following extent:
1) Berlinger shall promptly turn over to the petitioners copies of all footage that does not appear in publicly released versions of Crude showing: (a) counsel for the plaintiffs in the case of Maria Aguinda y Otros v. Chevron Corp.; (b) private or court-appointed experts in that proceeding; or (c) current or former officials of the Government of Ecuador.
2) Material produced under this order shall be used by the petitioners solely for litigation, arbitration, or submission to official bodies, either local or international.
3) Berlinger’s reasonable expenses of sorting and duplication of footage, incurred in complying with this order, are to be reimbursed by Chevron.
4) Any disputes related to the performance of this order shall be directed to the district court for resolution.
Opinion to follow.
Presumably, we’ll see the the opinion shortly, but my sense is that the court managed to successfully thread the needle, balancing the Journalists’ privilege with the Federal Courts’ presumption of robust discovery, set forth most clearly in FRCP Rule 26(b) (why do I always mix metaphors when writing about law?).
All of this may be much ado about nothing. We’ll find out when we hear whatever arguments Chevron makes with the footage — but regardless of the outcome of those arguments, this is a huge tactical victory for them. They’ve layered a lot of uncertainty and delay into the current state of play, which will certainly help them in settlement negotiations.
I stand by my analysis of the district court’s original opinion — be very very careful if you are going to commission a video in the context of litigation. And please, call N-Map before you start rolling.