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Court Orders Removal of Deposition From YouTube

Depositions are a matter of public record, and as such, most lawyers never think to shield videotaped deposition testimony from public disclosure except in cases involving highly sensitive or proprietary information. After all, up until a few years ago, even if someone wanted to disseminate inflammatory or embarrassing deposition video, there wasn't any way to do so conveniently.

Of course, the advent of YouTube and other Web sites that enable users to upload video has changed all that. And as this recent Texas Lawyer story (via Law.com) suggests, lawyers may need to rethink how they use videotaped deposition testimony outside of the case.

According to the story, attorney Jefferey Weinstein posted excerpts of a videotaped deposition from his client's fraud suit against a Houston car dealer. The video, titled "It's Not a Kickback, It's a Fee" included clips from testimony by the dealer's chief financial officer regarding the terms of the financing for the pickup truck that Weinstein's client purchased. Weinstein explained that he posted the video so that his client could see it and use the information in her negotiations.

The dealer sought a protective order to prevent Weinstein and others from "continuing to use the discovery process as a means to harass, annoy, embarrass, and mis-characterize Movant's business dealings with Plaintiff." Among other things, the defendants argued that the video was misleading because it included only excerpts of the deposition taken out of context. In response, the plaintiff contended that the deposition was public record and she had a First Amendment right to post the content. The judge agreed with the defendants and ordered the deposition testimony to be removed. Undeterred, Weinstein said that he intends to file a complete paper transcript of the video in court and then post the entire video on YouTube.

I'm all in favor of free speech, but I don't see any reason to post videotaped depositions on YouTube in an ongoing matter except to harass or embarrass the deponent and extract a more favorable settlement. To me, that seems unethical. At the same time, lawyers must recognize the possibility that others in the case may publicize deposition videos online and may want to negotiate a condition to bar posting in exchange for a client's consent to sit for a videotaped deposition.

Today we lawyers have many tools available for disseminating information generated in discovery. But that doesn't mean that we're obligated to use them.

Posted by Carolyn Elefant on December 9, 2008 at 11:01 AM | Permalink | Comments (1)

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