A Second Circuit panel issued an opinion in the Crude case a few days ago.  The ordered the director of Crude, Tom Berlinger, to hand over almost all – 500 hours – of his raw footage from the production of the film.  In some ways even more devastating, a few months ago the district court ruled that it would not quash a subpoena from Chevron seeking testimony from Steven Donziger, the attorney in the case.  As far as I know, that deposition is ongoing.

Here are a few preliminary thoughts on the decision.  Please note that I am commenting on the panel’s legal conclusions.  I have no idea if Chevron and its counsel are lying through their teeth, or if anything that Donziger did in front of the camera was wrong (it certainly doesn’t look good).

First of all, although Berlinger basically lost the case, Judge Leval’s decision was very fact-specific and strongly reaffirmed the journalists’ privilege:

“Given all the circumstances of the making of the film, as reasonably found by the district court, particularly the fact that Berlinger’s making of the film was solicited by the plaintiffs in the Lago Agrio litigation for the purpose of telling their story, and that changes to the film were made at their instance, Berlinger failed to carry his burden of showing that he collected information for the purpose of independent reporting and commentary,” the court said.

The key distinction here, and one that I agree with, is that the film was solicited by the plaintiffs’ attorney, and the purpose of the video was to create public awareness of and support for the attorneys’ clients.

“While freedom of speech and of the press belongs to virtually anyone who intends to publish anything (with a few narrow exceptions), all those who intend to publish do not share an equal entitlement to the press privilege from compelled disclosure,” he said. “Those who gather and publish information because they have been commissioned to publish in order to serve the objectives of others who have a stake in the subject of the reporting are not acting as an independent press.”

Basically, Judge Leval makes the case look easy: there exists a strong journalists’ privilege – (including important corollaries, such as not needed to be a credentialed reporter to take advantage of the privilege), but only for independent journalists.  Since Berlinger was commissioned by a lawyer to create a movie from the perspective of his clients, and because he made change to the final cut at the lawyer’s request, he was not independent.

Two thoughts:

1)  Though I think that the holding is very limited, I do worry a bit about Leval’s heavy reliance on “independence,” and his discussions in dicta.  What does “independence” mean exactly? I would have liked him to clarify that this means independence from the interests of the specific parties to the litigation, not independence from any political agenda or organization with an opinion on the matter.

What this opinion really says is that if you are a lawyer, if you get a filmmaker to make a film whose purpose is to support your side of the case, and you have some say in the final product, a district court probably has discretion to find that the journalists’ privilege does not apply.

However, in dicta, Leval seems to muddy the waters:

Those who gather and publish information because they have been commissioned to publish in order to serve the objectives of others who have a stake in the subject of the reporting are not acting as an independent 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.

I thought this case had to do with the specific situation of a lawyer soliciting a movie to help is clients in a specific litigation.   What about Upton Sinclair’s The Jungle? Sinclair conducted the underlying research for the book in Chicago’s meatpacking plans at the request of the magazine where it was published – Appeal to Reason.  As a political journal, Appeal to Reason clearly had a “stake” in the subject of the reporting.  Does that mean that Sinclair’s notes and drafts could be subpoenaed be a third party suing the meatpacking plants? I’d love to learn more about The Jungle and whether any of this happened.

Furthermore, this dicta uses the term “commissioned,” to describe the relationship if the journalist to the third party.  I am not sure if any facts have been found as to who paid Berlinger, but I am assuming that it was not the legal team.  Leval carefully uses the word “solicited” throughout the opinion to describe Donziger’s asking Berlinger to make the movie.  Does it matter who is paying?

2) This case has implications for N-Map’s work, of course, but it is really a cautionary tale about how not to use video in the context of an advocacy effort.  As I have argued before, the plaintiffs’ attorney was reckless in how he solicited the video, and particularly reckless in how he conducted himself in front of a rolling camera (not because he necessarily did anything wrong, but because he created the appearance that he might have done something wrong – something that he must have known an aggressive defendant would have jumped on).  There are many ways that lawyers can use video to more effectively represent their clients – we just need to do it right.

More analysis and debate to come.