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. it refused to permit the court reporter to reap “a Potentially, the court reporter, the deponent, the bonanza at [the public’s] expense.” Id. at 569. party paying for the deposition, the attorney tak- A Massachusetts state court considering a simi- ing the deposition, and the court have ownership lar issue expanded on Lipman’s ruling. In Linnen v. interests in the deposition. A.H. Robins Co., Inc., 10 Mass. L. Rep. 45 (1999), The Federal Rules of Civil Procedure (the the court observed that both federal and local rules “Federal Rules”) do little to clarify this issue. Under required the court reporter to furnish deposition the Federal Rules, the court reporter is required to transcripts to the parties upon the receipt of ap- retain stenographic notes of the deposition. Fed. R. propriate compensation, but that these statutes did Civ. P. 30(f)(3). The court reporter must also send not specify whether third parties could only obtain a copy of the deposition transcript to the attorney copies of deposition transcripts from the reporter. taking the deposition, and provide a copy to any The court reasoned that court reporters contract party or the deponent upon the payment of rea- with parties or legal counsel to produce a deposi- 12 | The Practical Litigator November 2010 tion transcript for a certain fee. Then, “[o]nce a that the document in question was not a judicial party or its counsel provides compensation to the record, and that third parties did not have a right court reporter, the party or the lawyer becomes to access the document. Id. at 783. Indeed, in the owner of the transcript.” Id. As long as the party or Third Circuit the public has no right to access doc- lawyer does not make copies for other parties in the uments that were once part of the judicial record lawsuit or profit from distributing the deposition, but, after the case’s completion, were later returned the party or lawyer can do as he or she pleases with to the parties. Littlejohn v. BIC Corp., 851 F.2d 673, the transcript. 683 (3d Cir. 1988). The First Circuit has taken a slightly differ- Right To Access Depositions ent approach. Instead of looking at whether the Judicial proceedings and court filings are gener- documents in question were physically on file at ally available to the public. However, under modern the court, the court concentrated on whether “the statutes, discovery is generally conducted between material is important and the decision to which it the parties with limited court supervision, although is relevant amounts to an adjudication of an im- deposition transcripts are often later filed with the portant substantive right[.]” Anderson v. Cryovac, Inc., court. See Fed. R. Civ. P. 30(f)(4). Once filed, the 805 F.2d 1, 11 (1st Cir. 1986). If the court relies on transcript is available to the public for viewing the materials in determining a litigant’s substantive and copying unless it is subject to a protective or rights, the public has a right to inspect the materi- confidentiality order. Still, this right is not abso- als. Id. at 13. Subsequent case law has clarified that lute. “Every court has supervisory power over its documents “used only in discovery” play no role in own records and files, and access has been denied the adjudication process. Fed. Trade Comm’n v. Stan- where court files might have become a vehicle for dard Fin. Mgmt. Corp., 830 F.2d 404, 408 (1st Cir. improper purposes.” Nixon v. Warner Commc’ns, 435 1987). U.S. 589, 598 (1978). Presumably, if a deposition This line of reasoning could lead a court to video is filed with the court, this presumption of find that deposition transcripts, but not deposition public availability would also apply. videos, should be made available to the public. For This issue becomes more complicated when example, if a court reviewed deposition transcripts a deposition transcript has not been filed with the to rule on a motion for summary judgment, those court. While not addressing depositions particular- transcripts would be central to the court’s adjudica- ly, courts have created different tests to determine tion of the issue, but a video of the same deposition whether the public has the right to access materi- would not be. als obtained or created during litigation that were The Second Circuit has taken an approach not filed with the court. The Third Circuit decided similar to the First Circuit. While acknowledging that the public only has a right to access “judicial a presumption of public access, the court found records.” Pansy v. Borough of Stroudsburg, 23 F.3d 772, that “[w]here testimony or documents play only a 780-81 (3d Cir. 1994). To decide whether a docu- negligible role in the performance of Article III du- ment is a judicial record, the court “focused on the ties, the weight of the presumption is low[.]” United technical question of whether a document is physi- States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995). cally on file with the court.” Id. at 782. Finding that Indeed, because “deposition discovery…are ‘docu- the document in question was “briefly perused” by ments that play no role in the performance of [the the trial court, but never filed, the court concluded court’s] Article III functions,’” the presumption of Depositions | 13 access is inapplicable. Sec. & Exch. Comm’n v. TheS- causes unwarranted annoyance, embarrassment, treet.com, 273 F.3d 222, 234 (2d. Cir. 2001) (quot- or oppression, or undue burden and expense.” A ing Amodeo, 71 F.3d at 1050). Of course, once those deposition clip posted on YouTube which unneces- discovery materials are “presented to the court to sarily includes personal or embarrassing informa- invoke its powers or affect its decisions,” the equa- tion, or is edited in a misleading fashion may very tion is drastically changed and the presumption well violate this code section. Indeed, one motion again applies. Amodeo, supra, 71 F.3d at 1050. The for sanctions related to the posting of a video de- court must then balance competing considerations position excerpt on YouTube argued that the Texas against this presumption, including the privacy in- variation of this code section justified sanctions terests of those resisting disclosure. Id. As with the against the posting attorney, although the judge First Circuit’s analysis, this rule could lead to depo- disagreed. See Brenda Sapino Jeffreys, Judge Orders sition transcripts being made available to the pub- Counsel to Remove Deposition Excerpt From YouTube, su- lic, but not videos of the same depositions. pra.

Advertising Video Sharing Site Regulations The guidelines of internet video sharing Web Sometimes an attorney will post a video clip of sites severely restrict what can be shared online. For a deposition video in order to advertise her prac- example, the YouTube Community Guidelines al- tice. See Brenda Sapino Jeffreys, Judge Orders Coun- low “people who are readily identifiable and who sel to Remove Deposition Excerpt From YouTube, supra. haven’t consented to being filmed” to file a com- In these cases, rules regulating the advertisement plaint seeking a video’s removal. YouTube Com- of legal services would apply. Because these Web- munity Guidelines, http://www.youtube.com/t/ based advertisements can be accessed in different community_guidelines#tips. Arguably this provi- jurisdictions, an attorney should make sure that the sion would apply to a person compelled to undergo advertisement complies with the professional re- a video deposition — while that person sat for a de- sponsibility rules in all jurisdictions. One applicable position, she still may argue that she was not filmed ethical rule is ABA Model Rule of Professional Re- voluntarily, as being filmed was legally compelled. sponsibility 7.3(c). This rule requires all electronic Moreover, YouTube will remove any videos that communications to include the words “Advertising contain personal information, including addresses, Material” at the beginning and ending of the com- phone numbers, government identification num- munications. Thus, a deposition video clip posted bers and credit card information. Id. online, technically an electronic communication, would need to include this disclaimer. Protecting The Video Deponent Before The Deposition • Before the de- Using YouTube To Harass An Opponent position, a deponent’s counsel has a few options to The codes of civil procedure in most jurisdic- ensure that the video deposition, or sensitive parts tions proscribe discovery methods employed to ha- of that video, cannot be posted on YouTube. First, rass an adversary. For example, California Code of counsel can seek a stipulation from the other parties Civil Procedure Section 2030.010(c) states that it is in the case agreeing not to use the deposition out- a misuse of the discovery process to “[e]mploy[] a side of the litigation. While this stipulation will not discovery method in a manner or to an extent that bar third parties from attempting to acquire and 14 | The Practical Litigator November 2010

use the deposition, it will prevent the parties most Protecting The Video Deponent After familiar with the case from later using the depo- The Deposition sition outside of the litigation, including posting Obtaining a protective order does not guaran- it on YouTube. Counsel may alternatively seek tee that opposing counsel will respect it. If a cli- ent is deposed in a high-profile case, it would be a stipulation proscribing the distribution or use prudent to search Google and YouTube for your of the video outside of the proceeding. A broad client’s name or other identifying keywords. If you stipulation will not only prevent videos from being discover that someone has posted the deposition posted on Web sites; it will also stop videos from video, you can then quickly alert the video hosting being distributed over peer-to-peer sharing appli- Web site to take the video down, inform the party cations, as well as through more traditional means. who posted the video of their violation of the court Second, deponent’s counsel should seek a pro- order, and petition the court to enforce the protec- tective order from the court permitting the depo- tive order. nent’s counsel to mark deposition testimony and exhibits “confidential.” Under standard protective CONCLUSION • The publication of a deposi- tion video on a video-sharing Web site is not only orders, material marked “confidential” cannot be potentially embarrassing to a deponent; it can also shared with third parties and may be lodged, but lead to the publication of confidential or otherwise not publicly filed, with the court. Thus, portions sensitive information. However, by understanding of the deposition video containing confidential in- the relevant law and regulations, and taking appro- formation cannot be posted without violating the priate steps before and after the deposition, these court’s order. risks can be reduced.

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PRACTICE CHECKLIST FOR Was That A Yes Or A No? Now that it takes no more than a few mouse clicks to post anything to video-sharing Web sites, you have to be especially careful about deposition videos.

• Rules governing depositions do not directly address who owns the deposition. One of the few cases to address the issue was Lipman v. Massachusetts, 475 F.2d 565 (1st Cir. 1973). A Massachusetts state court considering a similar issue expanded on it in Linnen v. A.H. Robins Co., Inc., 10 Mass. L. Rep. 45 (1999).

• Typically, deposition transcripts are available after they have been filed with the court and can be ac- cessed by the public for viewing and copying unless subject to a protective or confidentiality order. Cer- tain tests can be used to assess availability if a deposition transcript has not been filed with the court: Depositions | 15

__ The Third Circuit decided that the public only has a right to access “judicial records.” Pansy v. Borough of Stroudsburg, 23 F.3d 772, 780-81 (3d Cir. 1994). To decide whether a document is a judicial record, the court “focused on the technical question of whether a document is physically on file with the court.” Id. at 782;

__ The First Circuit focuses on whether “the material is important and the decision to which it is relevant amounts to an adjudication of an important substantive right[.]” Anderson v. Cryovac, Inc., 805 F.2d 1, 11 (1st Cir. 1986). If the court relies on the materials in determining a litigant’s substantive rights, the public has a right to inspect the materials. Id. at 13. Hence, a court could find that deposition transcripts, but not deposition videos, should be made available to the public;

__ The Second Circuit acknowledges a presumption of public access, but has found that “[w]here testi- mony or documents play only a negligible role in the performance of Article III duties, the weight of the presumption is low[.]” United States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995). However, once discovery materials are “presented to the court to invoke its powers or affect its decisions,” the presumption applies. The court must then balance competing considerations against this presumption, including the privacy interests of those resisting disclosure.

• An attorney who wants to post a video clip of a deposition video to advertise her practice should consult rules regulating the advertisement of legal services in all jurisdictions and should include the words “Advertising Material” at the beginning and ending of the clip pursuant to ABA Model Rule of Professional Responsibility 7.3(c).

• Video clips of depositions should not be posted to harass an adversary or edited to be misleading.

• The guidelines of Internet video sharing Web sites severely restrict what can be shared online. For example, the YouTube Community Guidelines allow “people who are readily identifiable and who haven’t consented to being filmed” to file a complaint seeking a video’s removal.

• To prevent the posting of video deposition material:

__ Seek a stipulation from the other parties in the case agreeing not to use the deposition outside of the litigation;

__ Seek a protective order from the court permitting the deponent’s counsel to mark deposition testimony and exhibits “confidential.” (Nevertheless, search Google and YouTube for your client’s name or other identifying keywords. If you discover that someone has posted the deposition video, you can then quickly alert the video hosting Web site to take the video down, inform the party who posted the video of their violation of the court order, and petition the court to enforce the protective order.)