I wish actual personhood had the same kind of rights and protections that corporate personhood had:
On Thursday, Judge Lewis A. Kaplan of United States District Court in Manhattan said that Joe Berlinger, the director of “Crude,” would have to turn over more than 600 hours of footage from that documentary. The film chronicles the Ecuadorians who sued Texaco (now owned by Chevron) saying an oil field contaminated their water. Chevron said that Mr. Berlinger’s footage could be helpful as it seeks to have the litigation dismissed and pursues an international treaty arbitration related to the lawsuit.
In a telephone interview on Thursday night, Mr. Moore, whose films include “Bowling for Columbine” and “Capitalism: A Love Story,” said that he had never heard of such a ruling.
“If this isn’t overturned, it would make a lot of documentary filmmakers afraid,” Mr. Moore said. “People are going to have to start getting rid of all their extra footage now, right?”
Should the decision of Judge Kaplan be upheld and a subpoena be served for Mr. Berlinger’s footage, Mr. Moore said, “The chilling effect of this is, someone like me, if something like this is upheld, the next whistleblower at the next corporation is going to think twice about showing me some documents if that information has to be turned over to the corporation that they’re working for.”
This seems kind of crazy to me.
russell
It’s us vs. them.
Martin
Wow, we’ve got a 4th amendment against the government but not against corporations. Maybe I should incorporate so I can take all of your stuff.
Felonious Wench
Dumb questions…I know these people are filmmakers, not members of the press, but it seems to me that we’re hitting a gray area between reporting (documentary) and entertainment. Could 1st Amendment apply? Or does someone have to be a card-carrying member of the press, such as it is?
Zifnab
The problem isn’t so much the release of information from journalists. It’s that anonymity is the only protection a whistle blower really has.
Even the dirtiest mobsters get witness protection, but a corporate canary is basically tossed back out on the street into the loving arms of his gang-mates. “You’ll never work in this
towncontinent again” is about the nicest thing that comes of it.Violet
How can people become corporations? They seem to have so many more rights and protections than do individuals.
Martin
@Felonious Wench: What’s the difference? It’s the film makers IP. That much is without dispute. It’s like Texaco demanding your sofa because it would be helpful to them.
RS
@Martin:
Not even that. They’re demanding it because it might be helpful to them.
Zach
That’s a little misleading; Chevron’s asking for access to the footage in the discovery process of some related proceeding, I think. They aren’t confiscating the footage or anything. If you’re in possession of evidence relevant to a civil suit, you don’t really have a right to keep it to yourself. Obviously, you have to prove that it will probably be useful to get a subpoena approved.
Don’t think this has anything to do with Citizens United.
Edit: And it’s pretty amazing if Michael Moore is able to guarantee people anonymity by pinky swearing that he won’t include their footage in his films… what’s the chilling effect of having what you keep in the can not be guaranteed to be private? It’s still your IP and you can probably protect its contents if it’s used in court if there’s a compelling reason to do so.
Maude
@Felonious Wench:
A documentary filmmaker isn’t the press.
The minute you pick up a camera, you are deciding what to show.
If the corporation is the owner of the documents, it can demand the documents.
If you make a film, you can’t count on the outakes being protected from disclosure.
If someone “loses” the extra footage, why, it could take a long time to find it.
If you make a movie and you are behind schedule, the one who is paying for the film, can take it over.
It used to happen a lot in the old Hollywood studio system.
I would never think that I could prevent film footage from being handed over.
No one said it would be fair.
Mr. Moore can’t be shocked by this ruling.
El Cid
It’s more than that. They’re going after the director as a target himself, saying that he was a representative for the plaintiffs’ attorneys, and that the lead plaintiff attorney illegally and improperly attempted to influence developments and actions within Ecuador.
oklahomo
I remember something in a Tad Williams sci-fi novel about a not-so-far-future USA having an “Industrial Senate.” Doesn’t seem so far-fetched now.
jurassicpork
They might have a case, as documentarians aren’t considered journalists, who aren’t protected, anyway, when they try to protect the anonymity of their sources.
There’s some very evil collusion going on in this massive movement against whistleblowers. Look what happened to the UBS executive who literally brought billions in unpaid taxes to the federal government. He still got 40 months in prison.
Look what happened to the Wilsons, to Sibel Edmonds, to Bunny Greenhouse, Susan Lindauer. And those are the ones who’d actually survived.
Meanwhile, the douchebags who carry out these crimes, the Bushes, the Cheneys, the Princes, the Roves, the Blankfeins, to name just a few are above and beyond reproach let alone legal accountability. And the ones who actually get caught simply resign to escape impeachment and we forget it ever happened while they make a ton of pelf in the private sector.
Leo
I agree with Zach: For better or worse, almost everything is discoverable in litigation, and this has been true for decades.
Bill E Pilgrim
That reminds me, I need to put in a subpoena to see all the raw unedited material for this blog, all the stuff that’s crumpled up and left on the blogging room floor, text, photos, etc, like the 7 or 9 different cats who play “Tunch”, and the chain-smoking team of bleached blondes in a windowless building off Hollywood Blvd who write all of the characters like “John” and “DougJ” and “B.O.B”, and so on.
In my case only because it would be fun, though, nothing legal involved.
Leo
@Bill E Pilgrim: If you come up with a legal theory puts that information in issue, and file a lawsuit under that legal theory, you could probably get all that information. Welcome to the wonderful world of civil litigation.
jibeaux
I think Zach’s right about this. It seems to me to be a pretty straightforward subpoena duces tecum for something that might be relevant. Chevron doesn’t get to make a sequel out of the footage or anything. If Chevron can show the footage would be relevant and helpful, and that this is the best way to obtain the information, I don’t think there’s a privilege that protects it. Same result, I think, if I were shooting video on my camcorder that became relevant to a civil or criminal case, or if the security cameras of a corporate megastore picked up something relevant.
Proper Gander
This seems to be a disturbing trend, with Cuccinelli in Virginia demanding every piece of paper that Michael Mann was ever in the same room with…
Citizen Alan
Some clarification (you have to click through to read the order because the Times article is as informative as any other piece of useless Times crap):
In 1993, Chevron/Texaco got sued in Texas by Ecuadorian citizens over the effects of their drilling on local water. At that time, Chevron/Texaco argued that the case should be heard in Ecuador rather than the U.S. The Texas case got dismissed, and a new class action lawsuit was filed in Ecuador over the same issues. A few years ago, a documentary called Crude was produced covering the case. Chevron/Texaco now claims that unaired footage from said documentary might have bearing on both its defenses and on whether an arbitration agreement might apply. They filed an application in Kaplan’s court to subpoena all of the footage from Crude and he just granted their request.
So, to sum up, a U.S. Judge (who is not hearing any part of the actual litigation, which is presently before a foreign court) has ruled that a documentary filmmaker (who is not a party to said lawsuit) is required to turn over personal materials which he claims are covered by a confidentiality agreement.
Is anyone else in favor of a violent, French-style revolution in this country?
Gene
Maybe the judge is angling for a job at Chevron?
We’re basically run by corporations now…
Maude
@Citizen Alan:
You don’t know who owns the footage. This argument doesn’t make any sense.
Say for instance, the movie is edited in such a way to make Texaco look like the devil. Say, also, that the outakes would change that point of view.
This isn’t about personal property.
It takes a village to make a movie.
ChockFullO'Nuts
@Bill E Pilgrim:
Boy do you have it wrong. I write everything out of doors, on a legal pad, using a fountain pen and watermarked stationery.
Then I have people who type the material into whatever it is they type it into. Some infernal electrical thing, I presume.
While they type, I eat watercress sandwiches and sip on Chinotto.
Corner Stone
@Bill E Pilgrim: I’m pretty sure Omnes Omnibus already has a legal letter out to Cole. So you’ll have to get in line.
But when you discover who the actual DougJ is, and determine just how many front pager accounts + spoof handles he’s running please document for posterity.
Corner Stone
@Citizen Alan: This was my initial take on it too.
Kind of a “lolwhut?”
scav
Funny, this reminds me somehow of Blago subpoenaing Obama and everybody / everything not otherwise nailed down to his trial (or was it his other reality show gig? Hard to tell with that man). Is it now standard procedure to go for the too paper-encumbered-to-convict defense?
MattR
@Maude:
If true, this is kinda disturbing. What is the difference betwen a documentary and a long piece done by a news channel? Sure, the director of a documentary picks and chooses which footage to show and may edit the piece to present a certain POV, but how is that different than what FOX News (among others) do?
tc125231
@Maude:
someguy
Isn’t Chevron owned by the Venezuelan government? My understanding is that Venezuala is a close ally of the Ecuadorean government, which is now in the process of seizing the profits of the oil companies now operating in Ecuador. So maybe brother Hugo has some reason to want to shut down at least one group of people with rival claims on Chevron.
Belafon (formerly anonevent)
@someguy: That’s CitGo that’s owned by Venezuela.
brantl
@Maude: It’s somebody’s personal property, or some business’ property, Maude, and not anyone who is a party to the case.
MikeF
So, to sum up, a U.S. Judge (who is not hearing any part of the actual litigation, which is presently before a foreign court) has ruled that a documentary filmmaker (who is not a party to said lawsuit) is required to turn over personal materials which he claims are covered by a confidentiality agreement.
Apparently there is some sort of international arbitration angle to the case, although I’m not sure exactly what the implications of that are. If there had been a confidentiality agreement the ruling might have been different, but apparently the filmmaker’s release forms didn’t have any confidentiality requirements.
Brachiator
@jurassicpork:
So 60 Minutes does a documentary using in-house staff and they are protected, but if they hire a documentary filmmaker to do a report, then they are not? Doesn’t quite sound right to me.
ChockFullO'Nuts
008
Urm, the difference between a long piece about the 2008 Iowa Primary, and a book on the whole 2008 election? Scope, and depth?
Where’s the poolboy? I need another Gibson.
John M
I have to side with the minority here. What looks ominous because of the parties involved really is a pretty straightforward application of discovery rules. If you are in possession of documents or things that might be relevant to someone else’s lawsuit, you can be compelled, via nonparty subpoena, to produce those documents (although the party seeking documents generally must pay for the copies). Further, if such documents are held across state lines or across national lines, there are various ways to get such documents. Certainly, it may seem strange for an American judge to get involved in an evidentiary dispute in a lawsuit filed in Ecuador, but imagine the shoe is on the other foot: imagine that Chevron were being sued in the US and moved relevant documents to Ecuador. Should that be the end of it, or should there be some way for an American litigant to get documents that are held in a foreign country? Should a “confidentiality agreement,” say between Chevron and a vendor, be allowed to trump a lawful subpoena?
I make no judgment concerning whether this particular dispute is correctly decided. Of course, the discovery process can be abused, and there are various ways to limit the distribution of confidential or proprietary information. But this has nothing to do with “corporate personhood.” “Little guys” use the discovery rules all the time to advance lawsuits, often to the embarrassment and detriment of large corporations.
JasonF
There is no journalist’s privilege under the FIrst Amendment. That’s why Judith Miller went to jail.
If News Channel 1 gets some footage relevant to a lawsuit in which my client is a party, and if I think that footage is going to help my client, you’re damned right I’m going to subpoena a copy of that footage.
Mumphrey
I think that part of what makes this so upsetting is the imbalance of power involed here. Chevron–or now I guess it’s Texaco; or maybe Chevron and Texaco; or maybe Chevron-Texaco or even Texaco-Chevron–is a dangerously powerful company that can go into some Amazonian jungle and drill, baby, drill, and uproot tribes who love there and befoul their water and do who knows what else.
And who’s on the other side? A bunch of campesinos and hunter-gatherers who live there, and whose lives are getting upended so Chevraco can make a few more billions this year. They complain, rightly so, about how Texron is shafting them, and most often they get told to go fuck themselves. So some guy gets offended by this, goes down and helps these people broadcast their plight to the world, so that maybe they’ll end up with a few more influential allies, and, dare we dream, maybe they can even come out on top in the end.
Then Chevraco buries them with paper and drags things out, and on top of it all, claims a right to see stuff the movie guy left out and still has sitting around. Now I’m no lawyer, so maybe this all really is just hunk-dory, but to me it just smells. It smells because it isn’t fair; it isn’t right. I guess I am a dirty, fucking hippie, since I think that there should be some way for the thousands of Ecuadorians whose lives may end up turned to shit to stop this from happening. I think that they ought to have a say in how much drilling there is on their land–or whether there’s any drilling at all.
Part of what makes it so easy for Texron to do this is that it isn’t like they’re coming into my backyard and drilling and throwing me out. That would be against the law, and I culd stop them from doing that, or at least I could today; in another 5 years, I might lose that right, but for today, they can’t throw me out of my own house or even take my sofa. In Ecuador, though, much of that land is, legally, at least, not owned by the campesinos and hunter-gatherers. There might be some tribally owned land, I don’t know. But in a narrow, first world, legal sense, they have no real claim to it, and oil companies know this, and they use it to their advantage.
I really hope this thing ends up going for the Ecuadorans bringing the suit. But in the long run, I think we have to change the way we think about the law here; not everybody can show you a deed that says, “I live here!” with all the seals and notarized embossings and all. I lived in Honduras for 2 years, and there are millions of people who live way out in the country, who have lived there for years, and who have houses and little farms, and have raised children there, but who, if it came to it, don’t really “own” their own houses, since there aren’t any deeds and the local governments don’t always keep good records and where somebody with enough money can push people off their land.
I don’t know what the answer is, but it seems to me that we need some kind of wholesale overhaul of corporate law. I know the framers of the Constitution would be aghast at what big businesses can get away with today.
Well, that was depressing…
Josh E.
ITT people get outraged over standard third-party discovery.
Cain
@oklahomo:
I blame the Grail Brotherhood.
cain
Xenos
I hate to be the pedantic contrarian here, but the civil procedure here does not distinguish between corporations and natural persons. If you are running a sole proprietorship in your own name and you need to subpoena a third party you would proceed in the exact same way. And this is exactly the sort of thing that corporate personhood is supposed to accomplish – the corp can have access to justice through the courts just like any natural human body can.
Don
There is no journalist’s privilege under the FIrst Amendment. That’s why Judith Miller went to jail.
But there is work being done on a shield law. This kind of thing shows just how necessary it is.
I haven’t read the details but I suspect that this case, involving international matters, helps show how important it is to put a federal one on the books. Lots of states have shield laws – more than don’t, in fact – but I’m betting that’s no help when you’re dealing with international matters and the federal system.
JGabriel
I think, more than anything, this will change the documentary making process.
Going forward, it’s clear that documentary makers should always shoot in digital, and delete all footage from the disks after the final edit, leaving nothing but the finished film available for subpoena.
Sucks for archivists, academics, and historians, but — short of Judge Kaplan’s decision being overturned or legislated against — I don’t see any other solution.
.
Anton Sirius
@Mumphrey:
Susette Kelo says hi.
Steve
Let me try an analogy. Say ACORN is being sued or charged with a crime or whatnot because they supposedly advise people on how to engage in prostitution or cheat on their taxes. Do you think they ought to be able to subpoena James O’Keefe’s full, unedited videos, to prove that they don’t really do anything like that?
I’ve had many cases before Judge Kaplan. He’s not infallible, but he is very smart, and he does things by the book. My money says he made the right ruling here.
Zach
@Steve: There’s not much else to say other than that. It’s generally a good rule to err on the side of trusting the wisdom of Federal judges over that of Michael Moore.
grits
I wish actual personhood had the same kind of rights and protections that corporate personhood had:
bcinaz
If your personhood were the same as corporate personhood, you would not be personally liable for any bankruptcy and you would essentially be immortal or at least have a really long lifespan.
Bruce Webb
This is nutty. I worked for a public agency in a state with a very strict public records law and we were trained (indirectly) that not all work product was a public record, that if you took personal notes at a meeting, or drafted a memo but eliminated all such notes and drafts before actually transmitting them to someone else then that was okay. No public request, no foul. On the other hand once a public records request came in then legally you had to preserve everything, informal or not.
Lesson learned? Sanitize. Which is terrible, it is exactly in the outtakes and ephemera that lets you get inside the mind of the author. These kind of judicial rulings are chilling to historians who don’t want everything tidied up after the final draft or final cut. But that is exactly what the outcome is bound to be: shred those notes, burn that film BEFORE they issue the subpoena.
Xenos
@bcinaz: If you were a corporation then chapter 7 bankruptcy would amount to an execution.