Jay Shapiro On Chevron Corp. v. Berlinger: When the Journalist's Privilege Is Lost

  By Jay Shapiro, Partner, Katten Muchin Rosenman LLP

"It is not a usual occurrence for a federal appellate court to have occasion to review a district court decision addressing the propriety of discovery to be used in foreign litigation, including a national civil court, a criminal prosecution in that same nation and the Hague, but that is exactly what the Court of Appeals for the Second Circuit heard in Chevron Corp. v. Berlinger, 2011 U.S. App. LEXIS 629, [enhanced version available to subscribersunenhanced version available from lexisONE Free Case Law]. In a decision released on January 13, 2011, the Second Circuit affirmed a district court ruling compelling disclosure of outtakes from a documentary film by an American filmmaker," writes Jay Shapiro. "Among the unusual aspects of this ruling is that it addressed the specialized privilege raised by journalists and that there is no present intention for those outtakes to be used in any litigation in the United States.

"Crude was the documentary made by an American filmmaker, Joseph Berlinger, telling a story about litigation in Lago Agrio, Ecuador, concerning allegations that an oil exploration and extraction operations caused environmental damage in that area," explains the author. "The story actually began in 1964, when Texaco Petroleum Company (TexPet) started its explorations in Ecuador in a partnership with Gulf Oil. Gulf's interest was later assumed by the Government of Ecuador and, after years of drilling and the creation of an Ecuadorian pipeline, the government and a state owned company ultimately assumed control of all operations in the early 1990s."


"However, at around that same time a class action lawsuit was filed in the Southern District of New York by Ecuadorian citizens. This lawsuit, Aguinda v. Texaco, charged that 'between 1964 and 1992 Texaco's oil operation activities polluted the rain forests and rivers in Ecuador.' The claims asserted claims in the billions, arguing that causes of action of negligence, strict liability, and equity, directed at the damages done to the environment, including the region's water supply. While these claims were being pursued, TexPet reached a settlement with the government and its company (Petroecuador) whereby TexPet would perform remedial environmental work in exchange for a release for claims by the government for environmental damage. After three years of work, that release was granted in 1998. Several years later, Texaco's motion to dismiss the action in the Southern District on the grounds of forum non conveniens was granted. In pursuing that motion, Texaco, an affiliate of Chevron as of 2001, argued that Ecuador was the proper situs of the lawsuit and that it would subject itself to personal jurisdiction in that country." subscribers can access the complete commentary, Jay Shapiro on Chevron Corp. v. Berlinger, 2011 U.S. App. LEXIS 629 (2d Cir. 2011): When the Journalist's Privilege is Lost. Additional fees may be incurred. (Approx. 4 pages.)

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Jay Shapiro is a partner in the New York office of Katten Muchin Rosenman LLP. Jay has more than 20 years experience concentrating his practice in litigation matters. He began his legal career as a prosecutor in the Bronx County District Attorney's Office (1980-1988) and later joined the King's County District Attorney's Office (1990-2002) where he became the Deputy District Attorney in charge of the Rackets Division before going into private practice. Mr. Shapiro has tried more than thirty-five cases in state and federal court. In private practice, he has handled litigation involving insurance fraud, white collar crime and Lanham Act (trademark) violations.