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The battle over 'Crude'

Joe Berlinger, directory of the muckraking oil-industry documentary "Crude," has been ordered to turn over outtakes to the Chevron Corp.

Although Berlinger ("Metallica: Some Kind of Monster") tried to invoke the privilege that allows reporters to keep their notes confidential, a federal appeals court in Manhattan essentially decided he was too biased to deserve it.

It's a surprising turn of events. Who knew anyone still cared about an objective media?

The notion of an impartial media has been dying for years. Accusations of liberal bias in the mainstream media rose to near-deafening levels over the past decade, giving rise to a counter-movement of right-wing talk shows.

Meantime, progressives chose the documentary film as their bully pulpit. Filmmakers like Michael Moore, Morgan Spurlock and Al Gore argued vehemently for lefty causes like health-care reform, food-industry regulation and environmental stewardship. A question: When was the last time you saw an old-fashioned, fly-on-the-wall documentary in theaters?

Berlinger's film focused on a group of Ecuadorans from indigenous tribes in the process of suing Texaco (now owned by Chevron), whose Lago Agrio oil field had allegedly polluted their water supply. "Crude" received largely positive reviews for taking on the powerful oil industry but also for its evenhanded treatment of the legal battle.

The appeals court didn't see it that way.

In their decision, the judges wrote that because "Berlinger’s making of the film was solicited by the plaintiffs in the Lago Agrio litigation for the purpose of telling their story and that changes to the film were made at their instance, Berlinger failed to carry his burden of showing that he collected information for the purpose of independent reporting and commentary."

Berlinger, in an e-mail to The New York Times, called the decision a “fundamental misunderstanding of the circumstances surrounding the production of this film in particular and the nature of long-term investigative documentary reporting in general.”

He may have a point. Just because the Ecuadorans' lawyer proposed the idea for a film doesn't mean "Crude" is inherently biased. As any reporter knows, tips tend to come from people with agendas -- whistle-blowers, activists, troublemakers, ex-employees, ex-wives. What's important is how the reporter proceeds from there.

As for "changes made to the film," reporters are often pressured by their sources to add or omit information, which can certainly change a story. Every reporter ends up deciding, on a case-by-case basis, what goes in and what stays out.

Berlinger may or may not be getting a fair shake from the court. He may be right that a bunch of appeals judges don't quite grasp how the sausage of journalism is made. But it's nice to know that the courts still value an objective, independent media. Future documentarians, take note.

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