629 F.3d 297 (2nd Cir. 2011), 10-1918-cv(L), Chevron Corp. v. Berlinger

Docket Nº:10-1918-cv(L), 10-1966-cv(CON).
Citation:629 F.3d 297
Opinion Judge:LEVAL, Circuit Judge:
Attorney:Randy M. Mastro, Gibson, Dunn & Crutcher LLP, for Petitioner-Appellee Chevron Corp. Andr
Judge Panel:Before: LEVAL, B.D. PARKER, and HALL, Circuit Judges.
Case Date:January 13, 2011
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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629 F.3d 297 (2nd Cir. 2011)

CHEVRON CORPORATION, Rodrigo Pé rez Pallares, Ricardo Reis Veiga, Petitioners-Appellees,


Joseph A. BERLINGER, Crude Productions, LLC, Michael Bonfiglio, Third Eye Motion Picture Company, Inc., @Radical.Media, Lago Agrio Plaintiffs, Respondents-Appellants.

Nos. 10-1918-cv(L), 10-1966-cv(CON).

United States Court of Appeals, Second Circuit.

January 13, 2011

Argued: July 14, 2010.

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[Copyrighted Material Omitted]

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Randy M. Mastro, Gibson, Dunn & Crutcher LLP, for Petitioner-Appellee Chevron Corp.

André s Rivero, Rivero Mestre & Castro (Paul E. Dans, Jorge A. Mestre, on the brief), for Petitioner-Appellee Rodrigo Pé rez Pallares.

Beth A. Stewart, Williams & Connolly LLP (Christopher N. Manner, on the brief), for Petitioner-Appellee Ricardo Reis Veiga.

Maura J. Wogan, Frankfurt Kurnit Klein & Selz, P.C. (Jessie F. Beeber, Nicole Hyland, Jeremy S. Goldman, on the brief), for Respondents-Appellants Joseph A. Berlinger, Crude Productions, LLC, Michael Bonfiglio, Third Eye Motion Picture Company, Inc., @radical.media.

Ilann M. Maazel, Emery Celli Brinckerhoff & Abady LLP (Jonathan S. Abady, O. Andrew F. Wilson, on the brief), for Respondents-Appellants Lago Agrio Plaintiffs.

Floyd Abrams, Cahill Gordon & Reindel LLP (Landis C. Best and Catherine Suvari, on the brief), for Amici Curiae ABC Inc., et al.

Rodney A. Smolla, Washington & Lee School of Law (John J. Walsh and Joshua E. Abraham, Carter Ledyard & Milburn LLP, on the brief), for Amicus Curiae Dole Food Co., Inc.

Michael C. Donaldson, Donaldson & Callif, LLP (Christopher L. Perez, on the brief), for Amici Curiae International Documentary Association, et al.

Richard D. Willstatter, Green & Willstatter (John D. Cline and K.C. Maxwell, on the brief), for Amicus Curiae National Association of Criminal Defense Lawyers.

Before: LEVAL, B.D. PARKER, and HALL, Circuit Judges.

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LEVAL, Circuit Judge:

This is an appeal in a proceeding under 28 U.S. C. § 1782 fro an order of the United States District Court for the Southern District of New York (Kaplan, J. ) compelling disclosure for use in proceedings in foreign tribunals. The appeal involves the application of the qualified evidentiary privilege for information gathered during a journalistic investigation, sometimes described as the " press privilege" or " journalist's privilege."

The appeal is brought by Joseph Berlinger, a respondent in the § 1782 proceeding. Berlinger created a documentary film, entitled Crude, about a litigation being conducted in the courts of Ecuador at Lago Agrio (the " Lago Agrio litigation" ) over allegations of environmental damage in Ecuador from petroleum exploration and extraction operations conducted by an affiliate of petitioner Chevron Corp. The district court directed Berlinger 1 to produce to the petitioners the videotape footage constituting the outtakes of the film.

Petitioners, who sought and obtained the contested order of disclosure, are: 1) Chevron, which is a defendant in the Lago Agrio litigation, as well as a plaintiff in an arbitration in the Hague against Ecuador protesting the Lago Agrio litigation, and 2) Rodrigo Pé rez Pallares (Pé rez) and Ricardo Reis Veiga (Reis), attorneys employed by Chevron, who are defendants in criminal proceedings in Ecuador based on their actions in connection with the environmental litigation. They sought the disclosure for use in those criminal proceedings.

Berlinger contends the district court abused its discretion in ordering production of the outtake footage. He argues that his investigative journalism recorded in the raw footage is protected from such compelled disclosure by the press privilege. He therefore asks that we overturn the district court's order.

We reject Berlinger's contention. Given all the circumstances of the making of the film, as reasonably found by the district court, particularly the fact that Berlinger's making of the film was solicited by the plaintiffs in the Lago Agrio litigation for the purpose of telling their story, and that changes to the film were made at their instance, Berlinger failed to carry his burden of showing that he collected information for the purpose of independent reporting and commentary. Accordingly, we cannot say it was error for the district court to conclude that petitioners had successfully overcome Berlinger's claim of privilege.


A. Events Prior to the Initiation of Petitions Under § 1782

The district court's opinion sets forth a concise summary of the facts relevant to the challenged order of disclosure, prior to the filing of these petitions. See In re Chevron Corp., 709 F.Supp.2d 283, 285-89 (S.D.N.Y.2010). We quote from the district court's statement of facts verbatim (omitting citations).

I. Background

These applications arise in the context of three decades of oil exploration and extraction in Ecuador by Texaco, Inc. (" Texaco" ), which became a wholly-owned subsidiary of Chevron in 2001. The following is a brief summary of

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Texaco's activities in Ecuador and the nine-year litigation that ensued in [the courts of the Second Circuit].

A. Texaco's Oil Operations in Ecuador

In 1964, Texaco Petroleum Company (" TexPet" ), a subsidiary of Texaco, began oil exploration and drilling in the Oriente region of eastern Ecuador. In the following year, TexPet started operating a petroleum concession for a consortium owned in equal shares by TexPet and Gulf Oil Corporation (the " Consortium" ). The government of Ecuador (" GOE" ) thereafter obtained Gulf Oil's interest through its state-owned oil company, Petroecuador, and became the majority stakeholder in the Consortium in 1976. TexPet operated a trans-Ecuadorian oil pipeline and the Consortium's drilling activities until 1990, when Petroecuador assumed those functions. Two years later, TexPet relinquished all of its interests in the Consortium, leaving it owned entirely by Petroecuador.

B. The Aguinda Action

In 1993, a group of residents of the Oriente region of Ecuador brought a class action suit in [the U.S. District Court for the Southern District of New York] against Texaco arising from TexPet's operations in the Consortium. The complaint in the action, captioned Aguinda v. Texaco, alleged that " between 1964 and 1992 Texaco's oil operation activities polluted the rain forests and rivers in Ecuador." The plaintiffs sought billions of dollars in damages on a variety of theories, including negligence, strict liability, and equity to " redress contamination of the water supplies and environment."

C. Settlement and Release Agreements

While the Aguinda litigation was pending, TexPet entered into a 1995 settlement agreement with the GOE and Petroecuador (the " Settlement" ) whereby TexPet agreed to perform specified environmental remedial work in exchange for a release of claims by the GOE. The release, which covered TexPet, Texaco, and other related companies, encompassed " all the Government's and Petroecuador's claims against the Releasees for Environmental Impact from the Operations of the Consortium, except for those related to the obligations contracted" under the Settlement, which were to be " released as the Environmental Remedial Work is performed to the satisfaction of the Government and Petroecuador."

Three years later, the GOE entered into an agreement with TexPet (the " Final Release" ) according to which the GOE deemed the Settlement to have been " fully performed and concluded" and " proceede[ed] to release, absolve, and discharge" TexPet and related companies " from any liability and claims ... for items related to the obligations assumed by TexPet" in the Settlement.

D. Dismissal of the Aguinda Action

In the meantime, Texaco worked in earnest to transfer the Aguinda action from [the U.S. District Court for the Southern District of New York] to the courts of Ecuador on the grounds of forum non conveniens and international comity. Texaco touted the ability of the Ecuadorian courts to " provide a fair and alternative forum" for the plaintiffs' claims. It argued also that the case did not belong in [the U.S. court] because the evidence and witnesses were predominantly in Ecuador. After nine years of litigation, [the U.S. district court] dismissed the case on forum non conveniens grounds in 2001. The Second

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Circuit affirmed the dismissal the following year.2

II. Ecuadorian Litigation and Criminal Prosecutions

A. The Lago Agrio Litigation

In 2003, following the dismissal of the Aguinda action, a group of Ecuadorians including " a substantial number of the Aguinda Plaintiffs" brought an action against ChevronTexaco in Lago Agrio, Ecuador (the " Lago Agrio Litigation" ). Plaintiffs asserted claims for, among other things, violations of an Ecuadorian environmental law enacted in 1999. The defendants contended that the law in effect impermissibly allowed plaintiffs to assert, as private attorneys-general, claims that belonged to the GOE but were released pursuant to the Settlement and Final Release. The GOE announced that it would receive ninety percent of any recovery.

The Lago Agrio court ordered a " global" assessment of damages to be conducted by a team of expert witnesses led by Richard Stalin Cabrera Vega, who was required to " perform his work in an impartial matter" and to " maintain strict independence with regard to the parties." Dr. Carlos Beristain, who was appointed to Cabrera's team of expert witnesses, contributed to Cabrera's damages assessment for cancer deaths by meeting in " focus groups" with inhabitants of the region allegedly polluted by Chevron.... Chevron maintains that Dr...

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