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Was That a Yes Or a No?: Depositions in the Youtube

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Was That A Yes Or A No? Katherine A. Lauer is a part- Katherine A. Lauer, Jennifer L. Barry, and ner with the San Diego office L. David Russell of Latham and Watkins. She focuses her practice on health- care litigation, with emphasis on healthcare fraud defense. She is a past co-chair of the Depositions in the YouTube era. Health Law Litigation Commit- tee of the American Bar Asso- ciation and is a Barrister in the William Enright chapter of the American Inns of Court and a member of the Association of Business Trial Lawyers. She can be reached at [email protected]. THE INTERNET has created a bevy of new concerns Jennifer L. Barry is an associ- for civil litigators. One such concern is the online avail- ate in the Litigation Depart- ability of materials obtained and created during litigation. ment of Latham & Watkins’ San For instance, while court filings have always been available Diego office. Ms. Barry special- izes in intellectual property to the public, acquiring these materials once required a and general commercial liti- trip to the courthouse. Now obtaining a document from gation. Ms. Barry has signifi- a court’s file is as easy as clicking a mouse — with one cant experience in all aspects of commercial intellectual more click the same document can be emailed, posted on property, including trademark social media sites, shared with peer-to-peer software, or prosecution and worldwide otherwise quickly distributed around the world. For ex- trademark portfolio manage- ment; trademark and trade dress infringement counsel- ample, Colorado attorney Alison Maynard filed a Motion ing and litigation; trademark licensing counseling and for Extension to Respond to Bill of Costs on March 4, litigation; domain name portfolio management and re- 2007. This pleading, which cited the consumption of wine covery of domain names; social networking, Web site/ e-commerce, copyright, trade secrets, false advertising, at a birthday dinner as grounds for the extension (“ine- unfair competition, defamation, and right of publicity briation constituting excusable neglect”) and made use of counseling and litigation. She can be reached at jen- emoticons, appeared on the Web site abovethelaw.com [email protected]. four days later. See David Lat, This Is Way Better Than “The L. David Russell is also an as- Dog Ate My Pleading”, Mar. 8, 2007, http://abovethelaw. sociate with the San Diego com/2007/03/this-is-way-better-than-the-dog-ate-my- office of Latham and Watkins, He focuses his practice on ap- pleading/; David Lat, Lawyer of the Day: Alison Maynard, pellate and complex litigation. Mar. 8, 2007, http://abovethelaw.com/2007/03/lawyer- He can be reached at david.rus- of-the-day-alison-maynard/. In another seemingly rou- [email protected]. tine court filing, an order resolving where a deposition would be held, United States District Judge Gregory A. Presnell ordered counsel to play a game of rock, paper, The Practical Litigator | 9 10 | The Practical Litigator November 2010 scissors to determine the deposition location. This The right to post deposition material on You- order was filed on June 6, 2006 and a day later was Tube has been litigated in at least one court. In late posted on CNN.com. See Avista Mgmt. v. Wausau Un- 2008, Texas plaintiff ’s attorney Jeffrey Weinstein, derwriters Ins. Co., No. 6:05-cv-1430-Orl-31JGG, motivated by a desire to expose what he considered (M.D. Fla. Jun. 6, 2006), available at http://money. to be gross misconduct by the defendant and seeing cnn.com/2006/06/07/magazines/fortune/judg- a potential advertising opportunity, posted an ex- erps_fortune/index.htm. Thus, it is increasingly cerpt of the defendant’s video deposition on You- important for civil litigators to ensure that their Tube. The YouTube posting, titled It’s Not a Kick- clients’ private, confidential, or otherwise sensitive back — It’s a Fee, showed an edited six-minute clip material is protected. of the deposition of the defendant car dealership’s A similar concern is found with materials ob- chief financial officer. Brenda Sapino Jeffreys,Judge tained during discovery. It is often inevitable that Orders Counsel to Remove Deposition Excerpt From You- personal or potentially embarrassing information Tube, Dec. 9, 2008, http://www.law.com/jsp/law/ will be produced during discovery. If not protected LawArticleFriendly.jsp?id=1202426579607. After appropriately, this information can be quickly and the defendant sought a protective order, the judge ordered Weinstein to remove the video from You- widely disseminated. Discovery is rarely more per- Tube because the deposition had not been filed with sonal (and sometimes embarrassing) than testimony the court and was therefore not a public record. Id. given by a deponent. In part because of the deposi- Plaintiff ’s counsel subsequently posted the video tion’s inherent intimacy, the dissemination of depo- back on YouTube after filing a transcript of the de- sition videos on video-sharing Web sites has become position excerpt with the court (although the judge widespread. A May 2010 search of the popular vid- later ruled that Weinstein violated the court order eo-sharing Web site YouTube for the term “deposi- by not first filing the entire transcript). Brenda -Sa tion” turned up more than 2,700 videos. Many of pino Jeffreys, Judge Issues Ruling in YouTube Deposition these video clips are taken from actual depositions Dispute, Feb. 12, 2009, http://texaslawyer.typepad. of high-profile litigants, or litigants in high-profile com/texas_lawyer_blog/2009/02/judge-issues- cases. For example, the first page of hits displays ruling-in-youtube-deposition-dispute-.html; see also excerpts of the depositions of Bill Gates, Michael Hearing of Def.’s Mot. To Enforce Protective Or- Jackson, Rudy Giluiani, Archbishop Weakland, der & Mot. for Sanctions, Harper v. Mac Haik Ford, and George and Cindy Anthony. Other video clips Ltd. (No. 910,257) (County Civil Court at Law No. show deposition bloopers — when deposition ques- 4, Harris County, TX) (Feb. 11, 2009), available at tioning has devolved into name calling, threats, and http://www.longhornlawyer.com/blog/wp-con- even fights. Perhaps the most infamous viral depo- tent/uploads/2009/04/transcript-hearing-mac- sition video, a three-minute clip of a rowdy deposi- haik-february-11-2009.pdf; Hearing of Def.’s Mot. tion taken by Texas “King of Torts” Joe Jamail, has To Enforce Protective Order & Mot. for Sanctions, been viewed over 400,000 times. See http://www. Harper v. Mac Haik Ford, Ltd. (No. 910,257) (Coun- youtube.com/watch?v=td-KKmcYtrM; http:// ty Civil Court at Law No. 4, Harris County, TX) www.youtube.com/watch?v=ZIxmrvbMeKc. (Feb. 12, 2009), available at http://www.longhorn- Another viral favorite, a one-minute clip, How to lawyer.com/blog/wp-content/uploads/2009/04/ Handle a Tough Deposition Question, has been viewed transcript-hearing-mac-haik-february-12-2009.pdf. over 200,000 times. See http://www.youtube.com/ Shortly thereafter, defendants in related cases sought watch?v=RjtnRmy0H-U. and obtained confidentiality orders proscribing the Depositions | 11 opposing parties’ abilities to publicize deposition sonable charges. The court has authority to alter videos taken in those matters. Middlekauff Ford I, these statutory arrangements by issuing an order. L.P.’s Mot. for Entry of Confidentiality Order,Cur - Fed. R. Civ. P. 30(f)(1), (3). ry v. MiddleKauff Ford I, LLP, (No. 006-02005-2008) The First Circuit addressed the ownership of (County Court at Law No. 6, Collin County, TX), court transcripts in Lipman v. Massachusetts, 475 F.2d available at http://www.lawyeredge.com/wein- 565 (1st Cir. 1973). In Lipman, freelance court re- stein_jeff/blog/wp-content/uploads/2008/12/d- porter Sidney Lipman was hired by a Massachu- motion-for-entry-of-confidentiality-order-121808. setts district judge to record and transcribe the pdf; Hearing on Motions to Consolidate and for testimony taken at the inquest of the drowning of Protective Order (CC2-2007-405) (County Court Mary Jo Kopechne, who died in a car driven by the at Law No. 2, Henderson, TX), available at http:// late Senator Edward Kennedy. The court reporter www.longhornlawyer.com/blog/wp-content/up- provided two copies of the transcript to the judge loads/2009/04/reporters-record-hrng-on-mtn-to- daily, along with his notes. Because of public inter- consolidate-hrng-on-mtn-for-prot-order-0402091. est in the proceedings, the court clerk decided to pdf. make copies of the transcripts and sell those copies This article gives practical advice about how to to the public. Lipman sought an injunction block- keep deposition videos from being publicly dissemi- ing the sale, claiming a property right and common nated and posted on video-sharing Web sites. This law copyright in the transcript. includes a discussion of the ownership and right to The First Circuit quickly disposed of Lip- access depositions, general rules of discovery, ethi- man’s copyright claim; the court reasoned that cal rules regarding advertising, and the regulations “[s]ince transcription is by definition a verbatim of video-sharing Web sites. recording of other persons’ statements, there can be no originality in the reporter’s product.” Id. at APPLICABLE LAWS/REGULATIONS • Rules 568. The court also rejected Lipman’s property of civil procedure regulate procedures for taking right claim. Without any express agreement, Lip- depositions. See, e.g., Fed. R. Civ. P. 28, 30, 31, 32; man relied solely on custom to argue that only Cal. Code Civ. P. §2025, et seq. While these rules court reporters could sell court transcripts. While explain in great detail how depositions must be no- the court recognized that custom allowed a court ticed, conducted, and how they may be used, they reporter to sell transcripts for their normal wage, do not directly address who owns the deposition.
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