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‘Crude’ Filmmaker’s Raw Footage Subject to Subpoena
By Frank Smyth, May 7, 2010, The Comittee to Protect Journalists

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Original story ran on the Committee to Protect Journalists' blog.

A filmmaker’s raw footage is much like a photographer’s unedited images or a reporter’s notebooks—a private record of their reporting that is rarely disclosed to others. On Thursday, a federal judge in New York ruled that a private firm could subpoena the unedited footage used to make a news documentary. The reason? To help the company defend itself against a lawsuit.

In his ruling, U.S. District Court Judge Lewis A. Kaplan quoted an adage from 20th century Supreme Court Justice Louis D. Brandeis: “Sunlight is said to be the best of disinfectants.” The New York federal judge went on to write that allowing the firm to review the filmmaker’s outtakes “will contribute to the goal of seeing not only that justice is done, but that it appears to be done.”

The irony in the judge’s choice of language is as thick as crude. The raw footage from “Crude,” a documentary called “thorough and dispassionate,” by The New York Times, is now vulnerable to a subpoena by Chevron. “Crude” investigates alleged health and environmental degradation resulting from oil extraction by Texaco, now owned by Chevron, in Ecuador. The company is being sued by Ecuadorans for millions of dollars in damages in [Ecuador], and “Crude” is the documentary shot largely in Ecuador to tell their story.

What would the late Supreme Court Justice Brandeis think? He made his famous sunlight statement about the need to expose bankers and investors who controlled “money trusts” to stifle competition, and he later railed against not only powerful corporations but the lawyers and other members of the bar who worked to perpetuate their power.

“Instead of holding a position of independence, between the wealthy and the people, prepared to curb the excesses of either, able lawyers have, to a large extent, allowed themselves to become adjuncts of great corporations and have neglected the obligation to use their powers for the protection of the people. We hear much of the ‘corporation lawyer,’ and far too little of the ‘people's lawyer,’" he said in a 1905 speech before the Harvard Ethical Society.

Judge Kaplan’s ruling this week means that the independent filmmaker Joe Berlinger who made “Crude,” may have to turn over more than 600 hours of footage to Chevron, which Forbes lists as the third largest U.S. corporation.

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

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