01 Jan My Video Deposition Is On YouTube?!?!

Question:

What do Microsoft’s Bill Gates and Oracle’s Larry Ellison have in common with Bill Clinton, Rudolph Giuliani, Larry Flynt, Tupac Shakur, and Michael Jackson?

Answer:

Their videotaped depositions can be found on the Internet.

If you answered correctly, you would get extra credit if you included the fact that dozens of not-so-famous people can also be found on YouTube and elsewhere, fidgeting and squirming as they are forced to answer personal (and sometimes embarrassing) questions. Presumably, they did not know their opponents planned on memorializing the event for eternity, in a very public way.

How can you prevent this from happening to you?

Fix the Problem Before It Becomes a Problem.

If you are a party to a lawsuit, it will be virtually impossible to prevent your opponents from taking your videotaped deposition if they are determined to do so. But if you and your lawyer are thinking ahead, you can control access to the videotape itself and prevent it from going public. Good lawyers who represent honorable adversaries will usually agree with you and your counsel to strict controls over the video and audio records of a deposition.

We recommend entering into a “stipulated protective order” before the deposition is taken. A protective order is a court order designed to control the disclosure of confidential, private, or otherwise sensitive information. For videotaped depositions, a protective order can limit the number of videotapes or DVDs that are created, the location where the videotapes or DVDs are kept, and the people who have access to them. The parties can stipulate, or agree, that the video deposition will not be disseminated, and that if it somehow gets out, there will be an agreed-to injunction to remove the video from the Internet. Finally, the protective order should also provide for heavy penalties against any party that violates its terms.

Why would your adversary agree to this? Because what’s good for the goose is good for the gander: anyone intent on publicizing your video deposition will know that he or she could meet the same embarrassing fate.

If, for some reason, your opponent won’t agree to a protective order, you can seek court intervention before your testimony is taken. California law authorizes courts to protect deposition witnesses from “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” If you can show that your adversary is intent on publicizing your video deposition for no good reason, the court can place strict controls on the disclosure and dissemination of the deposition.

Fixing the Problem After the Fact.

If you and your counsel did not get a protective order and you are now “viral” on the Internet, there is still hope. Courts have been willing to afford relief to parties who find themselves involuntarily on the Internet.

In Texas, a plaintiff who had filed a lawsuit against a Ford dealership took the video deposition of the defendant’s officer. Plaintiff’s counsel then posted an excerpt of the video on YouTube. The enraged defendant brought a motion for a protective order to have the video taken down. The Texas court ruled that the video was not a public record because it had not been filed in court, and the plaintiff therefore did not have any right to post it on the Internet.

But what about the First Amendment? Didn’t the plaintiff have a “free speech” right to publicize the videotape? Basically, the answer is “no”: courts have held that litigants have no First Amendment right to publish deposition testimony that is not filed in court, and most depositions — especially videotapes of depositions — are not filed in court. This means, however, that once the videotaped deposition testimony is filed in court without a protective order, it will become a public record, available to the public at large.

A more aggressive approach than seeking a protective order is to file a separate claim for invasion of privacy. California law protects a person’s privacy rights in many ways: by prohibiting public disclosure of embarrassing private facts, by outlawing publicity that places a person in a false light, and by penalizing appropriation of a person’s name or likeness for commercial use (to name a few). The potential remedies for these invasions of privacy include money damages and an injunction against further dissemination of the video. But the law in this area is developing, and you and your lawyer would need to determine the viability of such a claim, based on the particular facts of your case.

If all else fails, you can try getting a copyright on the video deposition, and suing anyone who uses the video without authority for infringement. This strategy was recently employed (albeit not in the context of a deposition) by celebrities Eric Dane and Rebecca Gayheart. They obtained a copyright on a personal, private video of themselves when it showed up on the Internet, and then sued a website for $1 million for copyright infringement. Again, the law here is not well-developed, and it is not entirely clear who actually owns the intellectual property — if there is any — in a video deposition. Copyright issues such as this need to be thought through and applied to the particular facts of your case before moving forward with a copyright claim.

As you can see, the remedies available to you once the video is out of the bag are not as effective as being prepared before the deposition. By thinking ahead and being prepared, you can go a long way toward preventing your video deposition from “going viral” on the Internet.