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Bieber, Beer, and… Protective Orders

On February 8, 2017, pop star Justin Bieber was scheduled to be deposed in Santa Monica, California.  Lawyers traveled from Nashville to California for the deposition, but upon arrival they were informed Bieber was too ill to show up.  The lawyers, however, were not convinced that “illness” (in the traditional sense of the word) was the cause of Bieber’s absence after they saw internet videos of Bieber chugging beer just hours before his deposition was set to begin.  Bieber’s alleged antics in this copyright action do not represent the first time he has drawn public attention for his behavior in dealing with legal action.  On March 6, 2014, Bieber was deposed in a different case.  He proved to be a difficult witness during a deposition that entailed Bieber winking at the camera, making his own objections, and calling the male opposing counsel “Katie Couric.”   Highlights of the videotaped deposition were posted on YouTube and have more than eight million views.

Posting entertaining highlights from videotaped depositions on YouTube has become increasingly popular.  A YouTube search using the term “deposition” recently resulted in approximately 236,000 results.  These videos largely consist of: (1) depositions of high-profile litigants; (2) entertaining (funny and/or contentions) clips from depositions; and (3) instructive videos providing tips and advice for litigators.  The high volume of deposition clips on YouTube begs the question, “Are lawyers really allowed to post deposition videos on YouTube?”.  In some instances, the answer is “yes,” however there are ways to protect a witness/client from having a videotaped deposition published on the internet.

Generally, a party in receipt of pretrial discovery material is not prohibited from disseminating such material absent a protective order.  DaCosta v. City of Danbury, 298 F.R.D. 37, 39 (D. Conn. 2014).  Nevertheless, the United States Supreme Court has held, “It does not necessarily follow, however, that a litigant has an unrestrained right to disseminate information that has been obtained through pretrial discovery.”  Seattle Times Co. v. Rhinehart, 467 U.S. 20, 31 (1984) (holding that, where a protective order is entered for good cause, is limited to pretrial discovery, and does not restrict the dissemination of material obtained from sources outside of discovery, it does not violate the First Amendment).  Rule 26.03 of the Tennessee Rules of Civil Procedure states, in pertinent part, “Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense…”

By the time depositions are taken, the parties often have in place a general protective order governing the maintenance of discovery material.  When drafting the protective order, it might be beneficial to consider including language addressing the dissemination of deposition videos and transcripts.  Alternatively, the parties could consider a separate protective order that exclusively addresses deposition videos and transcripts.  Lastly, the parties might consider designating the deposition (on the record), the video, and the associated transcript “Confidential” pursuant to the general protective order on file in the case.  In many instances, any of these options might be effectuated by joint motions or stipulations.  At the very least, a party can almost always make a sound argument for the prohibition of parties posting deposition videos on video-sharing websites like YouTube.  It would be difficult to successfully counter-argue that such publication is for anything other than to annoy, embarrass, or unduly burden another.  As the Court noted in Seattle Times Co., discovery provides litigants with the opportunity to obtain information that, if publicly released, could be damaging to reputation or privacy, and “[t]he government clearly has a substantial interest in preventing this sort of abuse of its processes.”  467 U.S. at 35.

 

by Andrew D. Tharp

Andrew Tharp