Public Disclosure of Discovery

If you look up “deposition” on YouTube, you’ll likely find over 200,000 videos to choose from. Many include graphics and commentary that the uploader added after the deposition was taken, usually with the aim of mocking the witness being deposed. The purpose of the discovery process is to require witnesses and corporations in possession of information potentially relevant to a case to divulge information to the requesting party for the purpose of assisting in the preparation of a litigated dispute for trial. Depositions are a specific form of discovery designed to allow litigants to obtain sworn testimony from witnesses in advance of the trial date and to get that testimony in a video format suitable for presenting to a jury. With the soaring popularity of video-sharing social-media sites, the temptation can be great to humiliate your opponent in litigation by posting embarrassing video depositions (or other discovery responses) on Facebook or YouTube, either during the pendency of the litigation or after it has ended. Is this permissible in Virginia?

There are authorities coming out on both sides of this question. On the one hand, “pretrial depositions and interrogatories are not public components of a civil trial.” (See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984)). Thus, while the public generally has a common law right of access to court orders and legal proceedings, information collected through discovery is not a matter of public record to which that right extends. In other words, regardless how entertaining it might be to watch a celebrity make a fool of himself at a deposition, it’s really nobody’s business outside of the confines of the court proceeding. On the other hand, dissemination of pretrial discovery materials by the receiving party is not automatically prohibited absent a protective order.

To get the protective order, you’ll need to show “good cause.” In Virginia, trial courts are expressly authorized by our discovery rule “for good cause shown [to]…make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense”. Whether good cause exists will depend on the circumstances of the case. For example, if the discovery you want to post online is embarrassing to a corporation but not so serious that it would likely cause a decline in profits, most judges would probably allow the material to be shared with the public. The same judges might rule differently if the embarrassment is severe and caused to a private individual rather than a large corporation. At least one federal court has expressed the view that good cause will not exist unless the embarrassment that would result from the public disclosure is particularly severe:

To show good cause, a party must demonstrate more than that an opposing party intends to disseminate discovery materials; rather, it must show that the disclosure of those materials will cause specific prejudice or harm, such as annoyance, embarrassment, oppression, or undue burden or expense.  And, importantly, the fact that public disclosure of discovery materials will cause some annoyance or embarrassment is not sufficient to warrant a protective order; the annoyance or embarrassment must be particularly serious.

(U.S. ex rel. Davis v. Prince, 753 F. Supp.2d 561, 568 (E.D. Va. 2010)).

You probably won’t get in trouble if you post discovery online if no protective order has been entered. The general rule is that absent such an order, parties are free to use videotaped depositions and other discovery responses in whatever manner they see fit. Still, this is a developing area of the law and any litigant wishing to post discovery depositions on YouTube should tread with caution. Despite the absence of any express prohibition against sharing pretrial discovery materials with the general public, doing so is unusual (though it is becoming increasingly more common) and, particularly if it invades another’s personal privacy or exposes the witness to public ridicule, many trial judges would undoubtedly frown on the practice and readily enter a protective order requiring you to remove the material from the Internet.

Ultimately, when a court is faced with having to decide whether to enter a protective order shielding discovery from public disclosure, the question involves a balancing of the potential harm to the litigants’ interests against the public’s right to obtain information concerning judicial proceedings and the presumption embodied in the rule that information not be restricted absent a showing of good cause.