It’s a big day at Letters Blogatory—our first appellate Case of the Day! The case is Chevron Corp. v. Berlinger. It arose out of the epic Lago Agrio litigation. You may remember the case as an example of why you should be careful what you wish for: Ecuadorian plaintiffs had filed a class action alleging all kinds of nasty environmental torts against the oil company in the U.S. District Court for the Southern District of New York. Texaco vigorously argued that the case should be dismissed on forum non conveniens grounds and should instead be litigated in Ecuador. The District Court, and the Second Circuit, ultimately agreed after years of litigation. But after dismissal, the Ecuadorian plaintiffs proceeded to sue Texaco in Ecuador, and things began to go badly wrong for the oil company. You can read about the apparent collusion between the Ecuadorian court’s court-appointed expert and the plaintiffs’ lawyer at Opinio Juris.

Chevron is involved in three relevant proceedings in Ecuador. First is the lawsuit that the Ecuadorian plaintiffs brought after Chevron insisted that they sue it in Ecuador rather than in New York. Second is an arbitration against the government of Ecuador under the U.S.-Ecuador bilateral investment treaty, which seeks dismissal of the Ecuadorian lawsuit. (Ecuador’s attempt to enjoin the arbitration in the District Court was denied, and that issue is now on appeal to the Second Circuit). Third is an Ecuadorian criminal prosecution against two Chevron lawyers and others.

Chevron and the two lawyers being prosecuted filed an application under the judicial assistance statute seeking a subpoena to compel disclosure of “outtakes” from a documentary film about the Lago Agrio litigation created by Joseph Berlinger, an award-making filmmaker. One of the plaintiffs’ lawyers had approached Berlinger saying he was looking for a filmmaker to “tell his clients’ story”. Berlinger had access to the plaintiffs’ lawyers and filmed six hundred hours of footage. Without knowing anything about the attorney-client privilege in Ecuador, a can say pretty categorically that this was a monumentally bad idea. Berlinger released his film, Crude, in 2009. The version of the film streamed on Netflix showed the Ecuadorian court’s “neutral” expert meeting with plaintiffs’ counsel. But the DVD version was altered, at the request of plaintiffs’ counsel, to conceal all images of the expert. Yikes!

The statute expressly gives witnesses the benefit of evidentiary privileges:

A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.

The key question in the case was whether Berlinger could assert the journalist’s privilege to resist the subpoena. The key fact that bore on the Court’s decision, which was to affirm the lower court’s order compelling the disclosure, was that Berlinger was not an independent journalist. He had been solicited by the plaintiffs’ lawyer to create a film to portray the litigation “from the perspective of his clients,” and he had removed material from the final version of the film at the lawyer’s direction. The court also noted that Berlinger had failed to show that his “sources”, the people who appeared in the outtakes, had expected him to keep the footage confidential, because there was no corroborating evidence and in fact the people who appeared in the movie had signed standard release forms.

The court avoided deciding a question of the scope of the judicial assistance statute, namely whether the BIT arbitration was a “proceeding in a foreign or international tribunal,” within the meaning of the statute. It held that since both the Ecuadorian lawsuit and the Ecuadorian criminal prosecution clearly came within the scope of the statute, it need not decide whether the arbitration likewise was within the scope of the statute. For the reasons I gave in an earlier post, I think the correct construction of the statute should exclude foreign private arbitrations from its scope, though it is less clear to me that the same is true in BIT arbitrations, where the primary goal of the states that enter into BITs is probably not confidentiality and avoidance of pre-trial discovery, but the creation of a stable investment climate.

The Second Circuit’s opinion is available here.