By: L. David Russell
Law.com (February 6, 2017)
YouTube has changed what we view as entertainment. Before the advent of YouTube, few people would have predicted the enormous popularity of cat videos. Yet videos of cats and kittens chasing red laser pointers, tumbling off of bookshelves, and slowly fall- ing asleep are among the most popular and shared videos on the Internet.
Likewise, deposition videos have become a new form of entertainment. In May 2010, a search of YouTube for “deposition” yielded 2,700 videos. (Katherine A. Lauer, Jennifer
L. Barry, and L. David Russell, Was That a Yes or a No?: Depositions in the YouTube Era, The Practical Litigator, Nov. 2010, at 10.) Today, that same search will yield more than 200,000 clips and videos.
Celebrity and high-profile clients generate the largest share of views. A video of rapper Lil Wayne’s deposition from June 2012 has generated more than 4 million views. One of pop star Justin Bieber’s deposition taken in March 2014 bested that number with more than 8 million views, and a parody of his deposition has gathered an additional 3.2 million views. Even an older deposition of Microsoft founder Bill Gates from 1998 has received more than 150,000 views. Other popular videos involve lawyers and deponents threatening each other, belittling each other, and generally embarrassing themselves.
Potential embarrassment and the dis- closure of personal information are at the forefront of deponents’ minds when the pub- lic release of deposition videos is threatened. For public figures, the distribution of embarrassing depositions can create reputational problems and damage their brands. (Consider Justin Bieber’s now infamous statement in his deposition:
“I think that I was detrimental to my own career.”) For persons not in the public eye, the release of videos may still bring unwanted attention. Further, the public release of deposition videos can lead to other significant harms, including the public exposure of trade secrets, confidential material, and other sensitive information.
Given the potential harms associated with the public release of deposition videos, law- yers should consider the various ways to keep those videos from being released pub- licly. This article discusses several ways that a lawyer can help prevent his or her client’s deposition video from becoming the next hit on YouTube.
The Public’s Right of Access to Deposition Materials
If a deposition transcript or video has been filed with the court and thus made into a pub- lic record, then the public is generally allowed access to it for copying. See Nixon v. Warner Commc’ns., 435 U.S. 589, 597 (1978). Such access, however, is not absolute, and courts have denied it “where court files might have become a vehicle for improper purposes,” such as being used “to gratify private spite or promote public scandal.” Id. at 598.
When the deposition material has not been filed with the court, the likelihood that the public has a right to access it goes down substantially, although different federal circuit courts employ slightly different standards. For the Third Circuit, the public right of access depends on whether “a document is physically on file with the court,” Pansy v. Borough of Stroudsburg, 23 F.3d 772, 782 (3d Cir. 1994), or if not filed, whether a court “interprets or enforces the terms of that document, or requires that it be submitted to the court under seal,” In re Cendant, 260 F.3d 183, 192
(3d Cir. 2001).
The Third Circuit’s technical rule contrasts with the more holistic rule of the First Circuit, which presumes a right of access to extend to “materials on which a court relies in determining the litigants’ substantive rights,” whether at trial or in most pretrial proceedings (such as summary judgment). In re Providence Journal Co., 293 F.3d 1, 9 (1st Cir. 2002). The Second and Seventh Circuits’ tests are similar to the First Circuit’s. See Matter of Cont’l Ill. Sec. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984); Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982).
In every circuit, however, the right of access does not extend to tangential documents and material merely brought to light through discovery without relevance to a non-discovery judicial decision. See, e.g., Anderson v. Cryovac, 805 F.2d 1, 11 (1st Cir. 1986) (“We think it is clear and hold that there is no right of public access to documents considered in civil discovery motions.”). Individual state laws also vary. California’s, for example, is similar to that of the federal circuit courts. See Cal. Rules of Court, Rule 2.550(a) (seal- ing rules “do not apply to discovery motions and records filed or lodged in connection with discovery motions or proceedings”).
Preventing Parties From Releasing Deposition Materials
Obtaining a stipulation or protective order limiting the disclosure of discoverable mate- rial is the best way to prevent parties from publicly releasing deposition depositions. The level of protection provided by the stipulation or protective order can be tailored for each particular case. For example, in a case involving a celebrity deponent or extremely sensitive information, the parties could agree to leave deposition videos in the possession of the court reporter, who then would notify the par- ties when anyone requested access to them. This arrangement would allow the parties to determine when, to whom, and under what circumstances to release the videos, if at all.
In those instances where the other party is recalcitrant, counsel may use the potential for “annoyance, embarrassment, oppression, or undue burden or expense” to convince a court to issue a protective order. See Fed. R. Civ. P. 26(c). While a stipulation or protective order may not be enough to prevent third parties from acquiring materials allowed through common law right of access principles, they at least provide a means of relief if the other party violates the stipulation or order.
The “Trump University” case provides a recent example of a party preventing the dissemination of a video deposition with a protective order. In that case, Donald Trump moved to amend a stipulated protective order to prohibit the public filing or dissemination of any videotaped depositions, while media intervenors filed a related motion ask- ing for an order releasing the videotape of Mr. Trump’s deposition. See Low v. Trump Univ., No. 3:13-cv-02519-GPC-WVG, 2016 WL 4098195, at *3 (S.D. Cal. Aug. 2, 2016).
After substantial analysis, the court deter- mined that the deposition videos should not be released, and amended the protective order accordingly. Id. at *8. The court reasoned that the public’s interest in the deposition videos was not substantial, particularly because transcripts of those depositions had already been released. Id. Additionally, the court concluded that releasing the videos “would impair judicial efficiency” by making it more difficult to empanel an impartial jury. Id.
What to Do After a Deposition Video Is Publicly Released
Particularly for high-profile clients, counsel should search Google and YouTube to determine whether any deposition videos have been posted. If those videos have been posted by the opposing party against a stipulation or protective order, counsel should inform YouTube (or other video-hosting service), the opposing party, and the court of the violation. If a third party has shared the videos, and the material is under a protective order and not part of the judicial record, or is sealed, counsel should do the same.
Even if a deponent’s counsel did not obtain a protective order or stipulation prior to the opposing party’s dissemination of a deposition video, a court might still be able to issue a protective order requiring the opposing party to remove the video, if the video was not a public record. A North Carolina federal magistrate judge recently ruled that a plaintiff had improperly released on YouTube a deposition video—edited along with plaintiff’s highly critical commentary—a year and a half after the original case had been dismissed, and ordered the plaintiff to remove the video. Springs v. Ally Fin., Inc., No. 3:10-CV-311-MOC-DCK, 2014 WL 7778947, at *3 (W.D.N.C. Dec. 2, 2014).
The judge agreed with the defendants that FRCP 26(c) did not impose “any deadline for when a protective order may issue” and that the video was never filed “or otherwise made public during the litigation.” Id. at *6–7.
Citing authorities from the Second Circuit and United States Supreme Court, the Springs court explained that the “liberality” of the discovery process creates a “significant potential for abuse” and reminded the parties that the purpose of discovery is “to facilitate orderly preparation for trial, not to educate or titillate the public.” Id. at *5 (quoting Seattle Times v. Rhinehart, 467 U.S. 20, 34–35 (1984); Joy v. North, 692 F.2d at 893). Thus, “courts must be vigilant to ensure that their processes are not used improperly for purposes unrelated to their role.” Springs, 2014 WL 7778947, at *3. This ruling is currently pending appeal in the Fourth Circuit. If the ruling is upheld, this sort of “clawback” protective order could be a very useful tool if a protective order has not been issued in advance.
Deponent’s counsel should also examine the guidelines of the video sharing website on which the deposition video is posted. For example, YouTube will consider removal of a video for violation of privacy if the complainant is “uniquely identifiable by image, voice, full name, Social Security number, bank account number or contact information.” YouTube Privacy Guidelines, YouTube (last visited Jan. 20, 2017), https://www.youtube. com/static?template=privacy_guidelines. At the same time, the more high profile the deponent, the less likely YouTube will remove the video because it also takes into account “public interest, newsworthiness, and consent … when determining if content should be removed for a privacy violation.” Id. Due to the vagueness of YouTube’s “balancing test,” deponent’s counsel should not rely on YouTube to remove videos for privacy reasons.
In this era of viral videos, YouTube has become a means of transforming deposition videos into a form of mass entertainment and a weapon to be used against opposing par- ties outside of court. Taking simple steps, like obtaining stipulations and protective orders limiting the disclosure of discoverable material, can effectively mitigate these potential harms.
—By L. David Russell, Christopher Chiou, and Sean Nelson, former attorneys at Jenner & Block LLP
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