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Court Hits Pause in Case Involving Internet Video of Deposition

By Sean T. Carnathan, Litigation News Associate Editor – February 10, 2009

In late 2008, a small Texas consumer fraud claim became big news when the plaintiff’s lawyer, Jeffrey L. Weinstein, Houston, TX, posted an excerpt from a video deposition of the chief financial officer of an auto dealer defendant on YouTube and on his own firm website. Weinstein captioned the excerpt, “it’s not a kickback. It’s a fee,” referring to monies paid to the dealership for arranging automobile financing for the plaintiff. The caption was a direct quotation from the CFO’s deposition.

A Matter of Public Record
On December 3, 2008, the Harris County Civil Court in Houston ordered that the video be removed. The defendant argued the excerpt was misleading. On the record at the hearing, however, the court stated that the sole basis for the order was that the deposition transcript had not been filed with the court and was, accordingly, not public record. The written order nevertheless restrained the plaintiff from posting the edited deposition, whether in writing or video, throughout the pendency of the case.

Motion for Enforcement
Based on the court’s statements at the hearing, and without seeing the written order, Weinstein promptly filed the deposition transcript with the court, making it public record, and reposted the video excerpt. The defendant responded with a recently filed Motion for Enforcement of Protective Order and Motion for Contempt, set for hearing February 11, 2009. After receiving the Motion for Enforcement, Weinstein reset the video excerpt to “private,” so that it is no longer readily viewable by the public through Weinstein’s website. The Motion for Enforcement notes, however, that at the time the court issued the original protective order, YouTube reflected only 58 “views” of the deposition excerpt. As of the filing of the Motion for Enforcement, YouTube showed 646 views.

Pendency and Constraints
“While a case is pending, the lawyer should properly be constrained in the ability to put this sort of material out there for the world to see,” says Lamont Jefferson, San Antonio, TX, cochair of the Section of Litigation’s Commercial and Business Litigation Committee.

“What’s troubling to me is that a lawyer can try to gain an advantage through Internet publicity,” says Jefferson, referring to Rule 3.06 of the Texas Bar Rules—”Maintaining the Integrity of the Jury System”—as possibly applicable. Once the case is over, however, Jefferson does not believe there is any valid objection to posting a deposition excerpt on the Internet. “It is public record,” says Jefferson, and “every newspaper you’ve ever read . . . edits its material.”

The Internet and First Amendment Rights
Weinstein, of course, disagrees that posting this material is properly constrained while the case is pending. He sees the issue as having First Amendment ramifications. According to Weinstein, a number of academic and public interest groups have offered to assist with any necessary appeal. “This is bigger than Jeff Weinstein,” he says. “Everybody wants this information.” No Texas bar rule specifically deals with posting materials on the Internet, notes Weinstein.

There are literally hundreds of video deposition excerpts on YouTube, including depositions of Michael Jackson, Bill Gates, and Tupac Shakur. Indeed, even after Weinstein has taken down his posting to YouTube, the public can still see the deposition excerpt through another posting.

Prevention of Dissemination
Fox News aired the story; a recording of its broadcast can be viewed on YouTube, including part of the deposition excerpt as well as reporter commentary doubtless more upsetting to the auto dealer than the original excerpt. The Fox News piece not only suggests that there is a First Amendment aspect to this material, but also that a court order may not be enough to prevent dissemination. The Internet is viral.

“If the transcribed deposition is filed with the clerk’s office, then the deposition may be read by anyone who looks at the court file. It is usually a public record depending on the rules of the court or state,” notes Michael Alexander Garcia, Miami, FL, cochair of the Internet Litigation subcommittee of the Section’s Commercial and Business Litigation Committee.

Ethical Consideration
Garcia agrees with the Texas court, however, that before a deposition is filed and a matter of public record, “It is not considered ethical for the contents of a deposition to be used in any other manner other than to refute a witness’s statements in a courtroom.”

Defendant’s counsel declined to make any substantive comment on this matter.

Keywords: Internet, YouTube, video, deposition, jury selection, First Amendment rights

  • February 6, 2009 – I can't see a legitimate objection to posting this kind of material. Parties to litigation routinely make public statements about their positions that could be heard by potential jurors, and they are almost always slanted in favor of the party making them. Pleadings that are public records are slanted and often highly inflammatory. Finding jurors unaffected by such things is what voir dire is for.
  • February 9, 2009 – But -- there must be limits. A party may be required to disclose some very personal and secret information about their lives: they've been raped or molseted by a parent, imprisioned for some old, old crime, are undergoing psychiatric counseling, etc, all that may have little to do with the merits of the case itself. I don't think the other side should be allowed to simply post such private things to YouTube either for the fun of it or out of spite.

    Also, there is a very real difference between such information being buried in a court clerk's office in a case of no notoriety, and posting these "tidbits" of salacious information on the web. Nobody but the opposing party -- as a part of discovery -- really has a right to know about some poor shlump's marital or mental problems. The First Amendment is involved only if there is some value to the public being made aware of these facts. Perhaps a "socially redeeming value" test ought to be applied --- by the court, not some attorney on his own.


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