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(Argued: July 14, 2010 Decided: January 13, 2011)

Before: LEVAL, B.D. PARKER, and HALL, Circuit Judges.

Appeal in a proceeding under 28 U.S.C. § 1782 from an order of the United States District Court for the Southern District of New York (Kaplan, J.) compelling disclosure for use in a suit in a foreign tribunal. Respondents, who directed and produced a documentary film about an environmental damage litigation being conducted in the courts of Ecuador, were directed by the district court to produce to petitioners, who are parties to Ecuadoran litigation, the videotape footage constituting the outtakes of their film. Respondents contend they are protected from such compelled disclosure by the qualified evidentiary privilege for information gathered during a journalistic investigation. The Court of Appeals (Leval, J.) affirms. Given the district court’s findings about the circumstances of the making of the film, particularly the fact that the making of the film was solicited by parties to the litigation to tell their story, and that changes to the film were made at the parties’ instance, Berlinger failed to carry his burden of showing that he collected information for purposes of independent reporting and commentary. Accordingly, it was within the district court’s discretion to order the production. AFFIRMED.

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