Documentarians Should be Accountable, Two

Attorneys for Dole Foods have submitted an amicus brief (pdf, on Scribd) to the U.S. Second Circuit in support of Chevron’s request to gain access to video outtakes from the movie, “Crude.” As noted below, the movie was inspired by the litigation from U.S. trial lawyers who claim Chevron’s predecessor, Texaco, caused environmental damage in Ecuador. In May, District Court Judge Lewis Kaplan ordered that director Joseph Berlinger make the video available, and Berlinger is now appealing. The Second Circuit heard arguments today.

Dole is well-informed on the issues, having been subject to a lawsuit over pesticide use in Nicaragua, in which the attorneys faked test results and other evidence, and which a judge dismissed with prejudice. Nevertheless, the fraud was exploited by a Swedish filmmaker to produce the dishonest anti-Dole film, “Bananas!

Dole’s friend of the court brief does an outstanding job of presenting the law in the case, explaining why the Berlinger is making an extraordinary claim when he says the First Amendment allows him to withhold the footage. He claims he must grant confidentiality to functioning as a journalistic filmmaker. But all the people whom he interviewed signed waivers releasing all their claims to the footage? How does a waiver equal a secrecy agreement? Dole also makes the point that Berlinger’s attorneys are seeking a new standard of de novo review of his claims at the appellate level.

Dole’s attorneys also bring much-needed attention to the fact that two of Chevron’s employees face criminal charges in Ecuador. These are politically motivated charges in a country where the court system has been debased and corrupted, but still serious threats to the men’s liberty. What’s most important? The brief answers:

Protection of the free flow of information is not the only societal interest at stake here. Also at stake is the rule of law, and the truth-seeking function of the various tribunals, civil, criminal, and arbitral, in which the evidence at issue here will be germane. It is especially important that criminal proceedings, and the
liberty of the two defense attorneys, Rodrigo Pérez Pallares and Ricardo Reis Veiga, are part of the mix. Branzburg instructs that the public interest in news cannot take precedence over the truth-finding function of society’s criminal tribunals. Branzburg, at 408 U.S. at 695. In that central judgment expressing the core values of our constitutional system, Branzburg was right. Whether or not the ruling in Branzburg technically controls the precise doctrines to be applied in this Appeal, its central defining values ought to guide this Court in the application of those doctrines.

Exactly so. Let the truth out.

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