## Facts

- Chevron Corporation was a defendant in Ecuadorian environmental litigation and a claimant in related international arbitration proceedings.
- Two Chevron attorneys were also defendants in criminal proceedings in Ecuador.
- A documentary film, *Crude*, depicted the Ecuadorian litigation and was made after plaintiffs’ counsel solicited the filmmaker’s involvement.
- Chevron sought production of the film’s raw, unused footage (outtakes), asserting it could be used in the foreign civil and criminal proceedings.
- Chevron filed a petition in the Southern District of New York under 28 U.S.C. § 1782 to obtain the outtakes from the filmmaker and production entities found in the district.
- The district court granted discovery and ordered production; the filmmaker appealed, asserting a qualified journalist’s (press) privilege.

## Issues

1. Whether an order granting discovery in a standalone 28 U.S.C. § 1782 proceeding is immediately appealable as a final decision under 28 U.S.C. § 1291.
2. Whether the filmmaker could invoke the Second Circuit’s qualified journalist’s privilege to withhold documentary outtakes.
3. Whether the district court abused its discretion under § 1782 in compelling production, including the scope and tailoring of the discovery order.

## Decision

- The court held it had appellate jurisdiction because the § 1782 discovery order conclusively resolved the only matter before the district court and was therefore final.
- The court held the filmmaker was not entitled to the qualified journalist’s privilege because he failed to make the threshold showing of journalistic independence.
- The court affirmed the discovery order compelling production of the outtakes, with limited modification to narrow and/or condition production.

## Legal Principles

- A discovery order that finally resolves an independent § 1782 application is a final, immediately appealable decision under § 1291.
- The Second Circuit recognizes a qualified evidentiary privilege for materials gathered in a journalistic investigation, grounded in protecting the functioning of an independent press.
- The party asserting the journalist’s privilege bears the burden to show that the materials were gathered through independent journalistic activity; close alignment with, or effective control by, an interested litigant undermines the predicate for the privilege.
- When the privilege does not attach, a district court may compel production under § 1782 if statutory requirements are met, subject to discretionary management of relevance, burden, and appropriate limitations; appellate review is for abuse of discretion.

## Conclusion

The Second Circuit treated the § 1782 discovery order as final and appealable, rejected the claimed journalist’s privilege due to lack of demonstrated editorial independence, and largely affirmed compelled production of the documentary outtakes for use in foreign proceedings.


Chevron Corp. v. Berlinger, 629 F.3d 297 (2d Cir. 2011)