Brief filed: 06/23/2010
Chevron Corp. v. Berlinger
2nd Circuit Court of Appeals; Case No. 10-1918 & 10-1966
In 2005, a lawyer for the plaintiffs hired independent filmmaker Joseph Berlinger to make a documentary of the litigation from the plaintiff’s point of view, amassing some 600 hours of outtake footage not used in the final film, Crude. Pallares and Veiga seek to subpoena the outtakes in support of their defense in a criminal trial in Ecuador; Ballinger asserts in federal court that his outtakes are protected by a “reporter’s privilege” (which does not exist per se in federal court, see, e.g., In re: Grand Jury Subpoena (Judith Miller), 397 F.3d 964 (D.C. Cir. 2005)).
Assuming arguendo that Berlinger has a sufficient nexus to newsgathering to assert whatever journalists’ privilege does exist, it does not outweigh Pallares’s and Veiga’s due process right to obtain non-confidential information helpful to their defense in criminal proceedings. Because the subpoena is patently reasonable under the circumstances, the court of appeals should affirm the district court’s order enforcing the subpoena.
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