The opinion of the court was delivered by: Leval, Circuit Judge:
(Argued: July 14, 2010 Decided: January 13, 2011)
Before: LEVAL, B.D. PARKER, and HALL, Circuit Judges.
Appeal in a proceeding under 28 U.S.C. § 1782 from an order of the United States District Court for the Southern District of New York (Kaplan, J.) compelling disclosure for use in a suit in a foreign tribunal. Respondents, who directed and produced a documentary film about an environmental damage litigation being conducted in the courts of Ecuador, were directed by the district court to produce to petitioners, who are parties to Ecuadoran litigation, the videotape footage constituting the outtakes of their film. Respondents contend they are protected from such compelled disclosure by the qualified evidentiary privilege for information gathered during a journalistic investigation. The Court of Appeals (Leval, J.) affirms. Given the district court's findings about the circumstances of the making of the film, particularly the fact that the making of the film was solicited by parties to the litigation to tell their story, and that changes to the film were made at the parties' instance, Berlinger failed to carry his burden of showing that he collected information for purposes of independent reporting and commentary. Accordingly, it was within the district court's discretion to order the production. AFFIRMED.
This is an appeal in a proceeding under 28 U.S.C. § 1782 from 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*fn1 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 Perez Pallares (Perez) 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).
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 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.
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 Circuit affirmed the dismissal the following year.*fn2
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 ...