Chevron Corp. v. Berlinger
629 F.3d 297
| 2d Cir. | 2011Background
- Berlinger was ordered to produce outtakes of Crude for use in the Lago Agrio litigation, related arbitration, and Ecuadorian criminal prosecutions.
- The district court found Berlinger solicited by Lago Agrio plaintiffs’ counsel and that he edited the film at their direction, undermining independence.
- The Lago Agrio litigation involved environmental claims against ChevronTexaco in Ecuador and was accompanied by a 1995 settlement and a final release with the GOE.
- Aguinda v. Texaco, initially filed in the U.S. and later dismissed on forum non conveniens grounds, preceded the Lago Agrio action.
- Berlinger sought protection under the journalist’s privilege; Chevron sought production to use as evidence of influence on experts and officials.
- The district court concluded the information was relevant to the Lago Agrio litigation, the BIT arbitration, and the Ecuadorian prosecutions, and was not reasonably obtainable from other sources.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Berlinger's journalistic privilege applied. | Berlinger claims independence; privilege bars disclosure. | Chevron argues independence not shown; privilege overcome. | Privilege overcome; production permissible. |
| Whether the Lago Agrio litigation and related prosecutions fall within § 1782. | Argues § 1782 does not cover foreign arbitration and related actions. | Argues § 1782 covers Lago Agrio and prosecutions, permitting discovery. | Lago Agrio and prosecutions are within § 1782; production authorized. |
| Whether the district court abused its discretion by ordering production of all footage. | All footage relevant and necessary for investigations; not overbroad. | Footage may be overbroad; material can be selectively produced. | No abuse; district court properly exercised discretion given independence concerns. |
| Whether the independent press standard requires a different approach because of confidentiality concerns. | Unedited footage should be protected due to confidentiality expectations. | No sufficient evidence of confidentiality; standard release shows consent to disclosure. | Independent journalist requirement not met; production upheld. |
Key Cases Cited
- Gonzales v. NBC, 194 F.3d 29 (2d Cir.1999) (independence and likely relevance showing to overcome privilege when independent press exists)
- Baker v. F & F Inv., 470 F.2d 778 (2d Cir.1972) (press privilege scope and confidentiality considerations)
- Petroleum Prods. Antitrust Litig., 680 F.2d 5 (2d Cir.1982) (confidentiality protections when sources promised confidentiality)
- Branzburg v. Hayes, 408 U.S. 665 (U.S. Supreme Court, 1972) (limits of journalist's privilege; not absolute)
- von Bulow v. von Bulow, 811 F.2d 136 (2d Cir.1987) (talisman of the privilege is intent to disseminate at start of gathering)
- Intel Corp. v. AMD, 542 U.S. 241 (U.S. Supreme Court, 2004) (standards for discovery in aid of foreign proceedings)
- Gonzales v. NBC, 194 F.3d 125 (2d Cir.2006) (context for independent press standard and information access)
- In re Gianoli Aldunate, 3 F.3d 54 (2d Cir.1993) (finality and appealability of § 1782 discovery orders)