When journalist’s privilege offers little protection

Monday, May 17, 2010

In Congress and state assemblies, federal courts and state courts, journalists for decades have argued that they are entitled to a privilege to protect their confidential sources and unpublished material from the subpoenas of prosecutors and private litigants.

During that time, journalists’ arguments have met with mixed success. As the recent decision in In re Chevron Corporation reminds us, however, even when journalists win the argument as to unpublished material, they don’t win much.

In Chevron, Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York considered the oil company’s request for more than 600 hours of a documentary filmmaker’s outtakes. Kaplan acknowledged that the filmmaker possessed a First Amendment right to protect the outtakes from subpoena but then demonstrated how easily that right can be overcome.

At issue in Chevron were the outtakes from “Crude,” a documentary produced by Joseph Berlinger about a class-action environmental lawsuit brought by 30,000 Ecuadorian inhabitants of the Amazon rainforest against Chevron and its subsidiaries. In the lawsuit, which is now pending in Ecuador’s courts after winding through the U.S. judicial system for nine years, the plaintiffs allege that the companies’ oil exploration and development contaminated the water supply and caused many cancer deaths.

Berlinger received more than 20 international awards for “Crude,” but what interests Chevron is the close relationship between Berlinger and the Ecuadorian plaintiffs’ lead lawyer, Steven Donziger. Donziger approached Berlinger in 2005 about making the documentary and promised him unprecedented access to the events and people involved in the lawsuit. Berlinger took advantage of that access and filmed several events that might damage the plaintiffs’ case, including meetings between the plaintiffs’ lawyers and a supposedly neutral damage expert and Donziger’s comments about persuading Ecuador President Rafael Correa to influence the case’s outcome.

Chevron, invoking a federal statute that permits a party involved in international litigation to subpoena U.S. citizens, asked Kaplan to require Berlinger to turn over the outtakes. Berlinger resisted, claiming, among other things, that the journalist’s privilege protected the outtakes from disclosure.

Because New York is within the 2nd Circuit and because the 2nd U.S. Circuit Court of Appeals recognizes a journalist’s privilege, Kaplan ruled that Berlinger could assert the privilege. The fact that Berlinger was a filmmaker rather than a traditional journalist did not prevent him from asserting the privilege, Kaplan said, because the film concerned a “newsworthy event” and was disseminated to the public.

Without a claim that Berlinger was protecting anonymous sources or confidential material, however, the privilege offered little protection. “Where a civil litigant seeks nonconfidential materials from a nonparty press entity,” Kaplan wrote, “the litigant is entitled to the requested discovery notwithstanding a valid assertion of the journalist privilege if he can show that the materials at issue are of likely relevance to a significant issue in the case, and are not reasonably obtainable from other available sources.”

In this case, Kaplan easily found that the outtakes were “of likely relevance” to an issue in the lawsuit. The outtakes were relevant, the judge concluded, because at least some of them indisputably contain evidence of interactions between the plaintiffs’ lawyers and others involved in the case. This raw footage, Kaplan wrote, would be “‘unimpeachably objective’ evidence of any misconduct on the part of plaintiffs’ counsel, expert witnesses” or the government of Ecuador.

Kaplan even more easily found that the outtakes were unavailable from other sources, as Berlinger was the only person who possessed them. The journalist’s privilege overcome, the judge ordered Berlinger to provide the outtakes to Chevron’s counsel.

As Kaplan’s ruling demonstrates, the journalist’s privilege protecting nonconfidential, unpublished materials will not withstand any legitimate claim for the information. In pretrial proceedings, whether criminal or civil, relevance is defined liberally, and the information sought need not even be admissible. Therefore, nonconfidential information will be deemed irrelevant only in the most obvious of fishing expeditions.

Likewise, the party seeking the information can nearly always show that the materials are not obtainable from another source. Almost by definition, unpublished information is only in the hands of the journalist who created, compiled or gathered it. While in some cases the journalist fighting a subpoena can argue that the subpoenaing party should go directly to the journalist’s source, that argument usually loses to the claim that the source might provide different information to the prosecutor or party than he did to the journalist.

In Chevron, Kaplan did not make new law or unreasonably apply the journalist’s privilege. As a result, little is remarkable about his decision that, as long as at least some of a filmmaker’s raw footage is at least marginally relevant to an issue in pending litigation, the filmmaker must surrender all of the footage to the parties in the lawsuit.

That Kaplan’s decision is unremarkable, however, doesn't make it any less unpleasant for journalists — or any less unfortunate.