Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of appellees Rodrigo Perez Pallares and Ricardo Reis Veiga urging affirmance of the district court’s order. Chevron Corp. and filmmaker Joseph Berlinger are involved in ongoing litigation dating back to 2003, when the Ecuadorian plaintiffs filed a class action lawsuit in Ecuador. Also in 2003, the Ecuadorean government filed criminal charges against Chevron and two of its lawyers, Pallares and Veiga.
Argument: 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.