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Berlinger

Berlinger

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Published by eriqgardner

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Published by: eriqgardner on Jan 13, 2011
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1
10-1918-cv(L), 10-1966-cv(CON)Chevron Corp. v. Berlinger 
1
UNITED STATES COURT OF APPEALS
2
FOR THE SECOND CIRCUIT
3 August Term, 20094(Argued: July 14, 2010 Decided: January 13, 2011)5Docket Nos. 10-1918-cv(L), 10-1966-cv(CON)6- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X7CHEVRON CORPORATION, RODRIGO REZ PALLARES, RICARDO REIS VEIGA,8
 Petitioners-Appellees
,9v.10JOSEPH A. BERLINGER, CRUDE PRODUCTIONS, LLC, MICHAEL BONFIGLIO, THIRD11EYE MOTION PICTURE COMPANY, INC., @RADICAL.MEDIA, LAGO AGRIO12PLAINTIFFS,13
 Respondents-Appellants
.1415- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X161718Before: LEVAL, B.D. PARKER, and HALL,
Circuit Judges
.1920Appeal in a proceeding under 28 U.S.C. § 1782 from an order of the United States District21Court for the Southern District of New York (Kaplan,
 J.
) compelling disclosure for use in a suit in22a foreign tribunal. Respondents, who directed and produced a documentary film about an23environmental damage litigation being conducted in the courts of Ecuador, were directed by the24district court to produce to petitioners, who are parties to Ecuadoran litigation, the videotape footage25constituting the outtakes of their film. Respondents contend they are protected from such compelled26disclosure by the qualified evidentiary privilege for information gathered during a journalistic27investigation. The Court of Appeals (Leval,
 J.
) affirms. Given the district court’s findings about28the circumstances of the making of the film, particularly the fact that the making of the film was
Case: 10-1966 Document: 76-1 Page: 1 01/13/2011 185267 23
 
21solicited by parties to the litigation to tell their story, and that changes to the film were made at the2parties’ instance, Berlinger failed to carry his burden of showing that he collected information for 3purposes o
independent 
reporting and commentary. Accordingly, it was within the district court’s4discretion to order the production. AFFIRMED.5RANDY M. MASTRO, Gibson, Dunn & Crutche6LLP,
 for 
Petitioner-Appellee Chevron Corp.78ANDRÉS RIVERO, Rivero Mestre & Castro (Paul E.9Dans, Jorge A. Mestre,
on the brief 
),
 for 
Petitioner-10Appellee Rodrigo Pérez Pallares.11BETH A. STEWART, Williams & Connolly LLP12(Christopher N. Manner,
on the brief 
),
 for 
Petitioner-13Appellee Ricardo Reis Veiga.1415MAURA J. WOGAN, Frankfurt Kurnit Klein & Selz,16P.C. (Jessie F. Beeber, Nicole Hyland, Jeremy S.17Goldman,
on the brief 
),
 for 
Respondents-Appellants18Joseph A. Berlinger, Crude Productions, LLC,19Michael Bonfiglio, Third Eye Motion Picture20Company, Inc., @radical.media.21ILANN M. MAAZEL, Emery Celli Brinckerhoff &22Abady LLP (Jonathan S. Abady, O. Andrew F.23Wilson,
on the brief 
),
 for 
Respondents-Appellants24Lago Agrio Plaintiffs.2526Floyd Abrams, Cahill Gordon & Reindel LLP (Landis27C. Best and Catherine Suvari,
on the brief 
),
 for Amici
28
Curiae
ABC Inc., et al.2930Rodney A. Smolla, Washington & Lee School of Law31(John J. Walsh and Joshua E. Abraham, Carte32Ledyard & Milburn LLP,
on the brief 
),
 for Amicus
33
Curiae
Dole Food Co., Inc.34Michael C. Donaldson, Donaldson & Callif, LLP35(Christopher L. Perez,
on the brief 
),
 for 
 
 Amici Curiae
36International Documentary Association, et al.37
Case: 10-1966 Document: 76-1 Page: 2 01/13/2011 185267 23
 
The appealing respondents also include Berlinger’s affiliated production companies that
1
were involved in the production of 
Crude
, which were similarly directed by the district court tomake disclosure. Because the legal principles involved in this appeal apply equally and withoutdifferentiation to Berlinger and his affiliates, we refer in the remainder of this opinion only toBerlinger, with the understanding that the points made in our discussion apply equally to theother appellants.31Richard D. Willstatter, Green & Willstatter (John D.2Cline and K.C. Maxwell,
on the brief 
),
 for Amicus
3
Curiae
 National Association of Criminal Defense4Lawyers.56LEVAL,
Circuit Judge
:7This is an appeal in a proceeding under 28 U.S.C. § 1782 from an order of the United States8District Court for the Southern District of New York (Kaplan,
 J.
) compelling disclosure for use in9proceedings in foreign tribunals. The appeal involves the application of the qualified evidentiary10privilege for information gathered during a journalistic investigation, sometimes described as the11“press privilege” or “journalist’s privilege.”12The appeal is brought by Joseph Berlinger, a respondent in the § 1782 proceeding. Berlinge13created a documentary film, entitled
Crude
, about a litigation being conducted in the courts of 14Ecuador at Lago Agrio (the “Lago Agrio litigation”) over allegations of environmental damage in15Ecuador from petroleum exploration and extraction operations conducted by an affiliate of petitione16Chevron Corp. The district court directed Berlinger to produce to the petitioners the videotape
1
17footage constituting the outtakes of the film.18Petitioners, who sought and obtained the contested order of disclosure, are: 1) Chevron,19which is a defendant in the Lago Agrio litigation, as well as a plaintiff in an arbitration in the Hague20against Ecuador protesting the Lago Agrio litigation, and 2) Rodrigo Pérez Pallares (Pérez) and
Case: 10-1966 Document: 76-1 Page: 3 01/13/2011 185267 23

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