A unanimous panel of the 2nd U.S. Circuit Court of Appeals on Thursday ordered the maker of a documentary about a $27 billion environmental damage suit in Ecuador against Chevron Corp. to turn over outtakes from his film. The 2nd Circuit's order, however, narrowed the scope of subpoenas issued by Southern District of New York Judge Lewis A. Kaplan. Kaplan had directed filmmaker Joseph A. Berlinger to turn over to Chevron 600 pieces of footage that were not included in his film "Crude."
As foreshadowed in oral argument Wednesday, the appellate panel limited the outtakes to be produced to those depicting the attorney for the plaintiffs in the Ecuadorian environmental suit, Steven Donziger; private or court-appointed experts in the suit or former or present Ecuadorian government officials. The panel, consisting of Judges Pierre N. Leval, Peter W. Hall and Barrington D. Parker, ordered Berlinger to turn over the required outtakes "forthwith," and said an opinion would follow.
Berlinger's lawyer, Maura Wogan of Frankfurt Kurnit Klein & Seiz, said that the circuit's order had "substantially narrowed" the two subpoenas issued by Kaplan. "A vast amount of footage" in the film, she said, deals with topics beyond "what's in the court's order." Berlinger had argued that all of the outtakes were protected by a journalist's privilege under the First Amendment.
Kaplan had issued the subpoenas sought by Chevron and two longtime Chevron lawyers, who have been charged with crimes in Ecuador for certifying the completion of an environmental cleanup by Texaco prior to its acquisition by Chevron. The two lawyers, Rodrigo Perez Pallares and Ricardo Reis Veiga, contended they needed the outtakes for their defense. Chevron's attorney, Randy Mastro of Gibson Dunn & Crutcher was not immediately available to comment.