Thursday, February 10, 2011

Journalistic privilege is rejected in Chevron litigation

When can a private litigant subpoena someone's journalistic files? This raises serious First Amendment issues, which is why there is such a thing as "journalistic privilege." But that privilege is not impenetrable.

The case is Chevron v. Berlinger, decided on January 13. Berlinger was solicited by plaintiffs in foreign litigation in Ecuador to create a documentary that was sympathetic to their interests. That litigation alleged that Chevron was polluting the environment in Ecuador. Berlinger chronicled the litigation and and filmed "the events and people surrounding the trial," compiling 600 hours of footage. Chevron wanted that footage for that litigation and other purposes, including a treaty arbitration and a criminal prosecution in Ecuador.

The qualified journalistic privilege protects the "public's interest in being informed by a vigorous, aggressive and independent press." See how I italicized "independent"? The Second Circuit did the same thing in this decision. That foreshadows the outcome of this appeal. Berlinger may have been a journalist, but in this case, he was not independent. That waters down his privilege. The Second Circuit (Leval, Hall and Parker) writes:

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. 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.

As the plaintiffs' lawyer in the Ecuador case commissioned Berliner to make the documentary of the litigation from the perspective of his clients, and Berliner edited the documentary at the plaintiffs' direction," the trial court that upheld the subpoena forcing Berliner to turn over his files properly held that Chevron was able to overcome the privilege.

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