Protective Order and Video Depo's


Judge Donna Geck
Department 4 SB­Anacapa 1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121­1107
Michael Johnson vs R&R Auction Company LLC
Case No:
Hearing Date:
Fri Apr 08, 2016 9:30
Nature of Proceedings: Motion: Protective Order/Sanctions
This is an action in which plaintiff Michael Johnson alleges that defendant R&R Auction Company, LLC (R&R), sold to Johnson autographed items that were not authentic.
Plaintiff Johnson registered the internet domain name “” (the website) on July 13, 2013. (Eaton decl., ¶ 3 & exhibit 3, ¶ 20.) According to Johnson, the website was established to inform potential class members and interested members of the public about the facts of, and development in, this lawsuit. (Clarke decl., ¶ 4.)
Johnson has taken and video recorded the depositions of four employees of defendant R&R: Robert Livingston, R&R’s Executive Vice President, on January 6, 2015; Elizebeth Otto, R&R’s Consignment Director, on January 7, 2015; Bill White, R&R’s Handwriting Expert, on January 7, 2015; and, Robert S. Eaton, R&R’s President, on January 8, 2015. (Eaton decl., ¶ 2.) The deposition notices for these depositions all stated that the depositions would be video recorded. (Clarke decl., ¶ 5 & exhibits 1­4.) There was no objection to the video recording of these depositions. (Clarke decl., ¶ 6.)
On January 29, 2015, Johnson posted the video depositions on the website available for viewing by the general public. (Eaton decl., ¶ 6 & exhibit 3, ¶ 21.) Images on the website of the deponents show unflattering frame captures from the video depositions. (Eaton decl., ¶ 7 & exhibits 5­8.) The video depositions have also been posted to other internet sites, such as YouTube and Twitter. (Eaton decl., ¶¶ 9­11.)
Since the posting of the video depositions, R&R has received various direct communications from past, present, and future customers (consignors and buyers) concerning this lawsuit and the website. (Eaton decl., ¶ 13; Livingston decl., ¶ 15.) As a result, some customers have chosen to end their relationship with R&R, in some cases leaving invoices unpaid. (Eaton decl., ¶ 13; Livingston decl., ¶¶ 7, 13­14 & exhibit 18.) Since Johnson began utilizing
http://wwwt.shbceourwts.eorgb/os/tirt/ten,tatRive&­detRail.php?aRsuleeIDx=4p83e49rienced an overall decline in business. (Eaton 1/8
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the website, R& R has experienced an overall decline in business. (Eaton decl., ¶ 12; Livingston decl., ¶¶ 4­6, 8, 16­19.) The posting of the video depositions has also led to the individual deponents suffering disparaging comments, embarrassment, and annoyance. (Livingston decl., ¶¶ 9­12, 20; Otto decl., ¶¶ 3­4.)
The Facebook account linked to the website stated, as of February 1, 2015, that video deposition of other R&R employees would be upcoming. (Eaton decl., ¶ 8 & exhibit 7.)
R&R now moves for a protective order to require Johnson to remove the video recordings of the depositions from the website and from other internet sites and to prohibit Johnson from further publishing or disseminating further deposition video recordings in this case prior to being admitted in the records of this court as a basis for adjudication.
Johnson opposes the motion for a protective order on the grounds that the order sought is prohibited by the First Amendment.
Each side seeks an award of monetary sanctions against the other.
Also pending before the court for hearing on April 29, 2016, are motions for protective orders by non­party deponents seeking to prohibit the dissemination of video recordings of their depositions.
“The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420, subd. (b).) The burden is on the party seeking a protective order to show good cause. (See Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110.)
This motion raises the same issue in two analytically separate contexts. The first context is the motion to compel plaintiff to take down videos posted to the internet in January 2015. The second context is to prohibit plaintiff from posting video of other depositions which have not yet been posted. In both cases, the central issue is the protection afforded to the videos under the First Amendment to the United States Constitution.
(1) Posted Videos R&R argues that the videos are unprotected by the First Amendment, citing
Seattle Times Co. v. Rhinehart (1984) 467 U.S. 20 [104 S.Ct. 2199, 81 L.Ed.2d 17] (Rhinehart). In Rhinehart, the plaintiffs comprised the leader of a spiritual group and five female members of the group. (Id. at p. 22­23.) The defendant newspapers had published articles about the plaintiffs which reported, falsely according to plaintiffs, of an extravagant and risqué show at a Washington state prison. (Ibid.) Plaintiffs sued the defendant in Washington state court for defamation and invasion of privacy. (Id. at p. 23.)
In the course of litigation in Rhinehart, the defendants conducted extensive discovery. (Rhinehart, supra, 467 U.S. at p. 24.) Plaintiffs refused to provide discovery requesting certain of the spiritual group’s financial information, as well as information about the group’s donors and members during the preceding 10 years. (Ibid.) Defendants moved to compel, which was opposed by plaintiffs on First Amendment grounds. (Ibid.) The plaintiffs noted that the defendant had stated their intention to use the information discovered in
http://wwwf.subctourtse.orag/orst/tirc/telnetastiv.e­(deItbaili.dph.p)?RTulehIDe=48t3r4i9al court granted the motion to compel, but subject 2/8
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future articles. (Ibid.) The trial court granted the motion to compel, but subject to the plaintiffs’ right to move for a protective order restraining the use of the materials. (Id. at pp. 25­26.) The trial court on reconsideration issued a protective order prohibiting the dissemination of the information produced in discovery except as necessary to prepare for and try the case. (Id. at p. 27.) The Supreme Court of Washington affirmed the orders. (Id. at p. 28.) The United States Supreme Court also affirmed. (Id. at p. 29.) The United States Supreme Court pointed out:
“It is, of course, clear that information obtained through civil discovery authorized by modern rules of civil procedure would rarely, if ever, fall within the classes of unprotected speech identified by decisions of this Court. In this case, as petitioners argue, there certainly is a public interest in knowing more about respondents. This interest may well include most—and possibly all—of what has been discovered as a result of the court’s order .... It does not necessarily follow, however, that a litigant has an unrestrained right to disseminate information that has been obtained through pretrial discovery. For even though the broad sweep of the First Amendment seems to prohibit all restraints on free expression, this Court has observed that ‘[f]reedom of speech ... does not comprehend the right to speak on any subject at any time.’ [Citation.]” (Rhinehart, supra, 467 U.S. at p. 31.)
“At the outset, it is important to recognize the extent of the impairment of First Amendment rights that a protective order, such as the one at issue here, may cause. As in all civil litigation, petitioners gained the information they wish to disseminate only by virtue of the trial court’s discovery processes. As the Rules authorizing discovery were adopted by the state legislature, the processes thereunder are a matter of legislative grace. A litigant has no First Amendment right of access to information made available only for purposes of trying his suit. [Citation.] Thus, continued court control over the discovered information does not raise the same specter of government censorship that such control might suggest in other situations.” (Rhinehart, supra, 467 U.S. at p. 32.)
“Moreover, pretrial depositions and interrogatories are not public components of a civil trial.” (Rhinehart, supra, 467 U.S. at p. 33.) “Therefore, restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information.” (Ibid.) “Finally, it is significant to note that an order prohibiting dissemination of discovered information before trial is not the kind of classic prior restraint that requires exacting First Amendment scrutiny. [Citation.] As in this case, such a protective order prevents a party from disseminating only that information obtained through use of the discovery process. Thus, the party may disseminate the identical information covered by the protective order as long as the information is gained through means independent of the court’s processes. In sum, judicial limitations on a party’s ability to disseminate information discovered in advance of trial implicates the First Amendment rights of the restricted party to a far lesser extent than would restraints on dissemination of information in a different context.” (Id. at pp. 33­34.)
The Supreme Court in Rhinehart thus found that the protective order there at issue did not warrant heightened First Amendment scrutiny, but did require the balancing of governmental interests to protect abuse of its processes through the public release of discovery information that could be damaging to
http://wwwr.sebcpourtst.aortgi/os/ntr/teantnatidve­dpetrailv.phap?cRyu.leI(DR=48h34in9 ehart, supra, 467 U.S. at p. 34­36.) 3/8
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reputation and privacy. (Rhinehart, supra, 467 U.S. at p. 34­36.)
Rhinehart, however, addresses the First Amendment issue only in the context of information that has not previously been made public. This is predominantly the issue that exists for future depositions, as discussed below. Rhinehart does not discuss the First Amendment implications of information obtained by discovery that has been publicly disseminated. Johnson argues that a different rule obtains for publicly disseminated information, citing Coalition Against Police Abuse v. Superior Court (1985) 170 Cal.App.3d 888 (Coalition).
In Coalition, the issue presented was “[w]hether documents produced in civil discovery, subject to protective orders including an order that the court retains jurisdiction as to the ultimate disposition of such documents, may be retained by the party which received them, for use in matters other than the action in which they were produced, where that action is settled before trial.” (Coalition, supra, (1985) 170 Cal.App.3d at p. 891.) With respect to some of the information, the court noted: “Throughout their brief petitioners urge that the challenged return order offends their First Amendment rights because much of the material ordered to be returned is now in the public domain. They assert that it has already been disclosed, disseminated and released to the public pursuant to the trial court’s protective orders or with the consent of the City. [¶] To the extent that this contention is supported by the facts petitioners are correct. The truthful publication and dissemination of information which has been disclosed to the public cannot be prohibited.” (Id. at p. 892.)
In response, R&R cites Stadish v. Superior Court (1999) 71 Cal.App.4th 1130 (Stadish). In Stadish, the plaintiffs sued the defendant alleging injuries from exposure to toxic chemicals. (Id. at p. 1134.) Plaintiffs made broad requests for production of documents. (Ibid.) On August 7, 1998, the defendant produced approximately 50,000 pages of documents together with its written response to the discovery request. (Id. at p. 1135.) The written response did not mention any trade secret privilege. (Ibid.) The plaintiffs copied approximately half of the documents produced. (Ibid.)
In October 1998, the defendant in Stadish expressed concern to the plaintiff that one of plaintiff’s attorneys who was reviewing the documents would use the information for the attorney’s own political and economic interests. (Stadish, supra, 71 Cal.App.4th at pp. 1136­1137 & fn. 5.) Defendants sought a confidentiality agreement to prevent the use of the documents outside of the litigation. (Id. at p. 1137.) The plaintiffs refused. (Id. at pp. 1137­1138.) The trial court, among other things, issued a protective order to prohibit disclosure of information identified as confidential. (Id. at pp. 1138­1139.)
On petition for writ of mandate, the Court of Appeal held that by failing to assert the trade secret privilege as to the documents produced, the trade secret privilege was waived as a matter of law. (Stadish, supra, 71 Cal.App.4th at p. 1141.) Notwithstanding, the court noted that there is no time limit provided in the Civil Discovery Act to bring a motion for a protective order. (Id. at pp. 1143­1144.) The defendant had not therefore waived its right to bring a motion for a protective order restricting dissemination of the documents produced in discovery. (Id. at p. 1144.) The Stadish court determined that the trial court had not followed the correct procedure in addressing the plaintiff’s claims that the documents at issue implicated public health. (Ibid.) The appellate court remanded the matter to the trial court for­dientagil.pshp.?R(IudleID.=a48t34p9. 1146.) 4/8
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further proceedings. (Id. at p. 1146.)
The facts here are that the videos were not subject to a prior protective order limiting their use or disclosure. Johnson publicly disseminated the videos by internet posting in January 2015. This motion, filed March 14, 2016, is the first motion to restrict dissemination of the internet­posted videos. While, as held by Stadish, R&R is not time­barred from bringing this motion for protective order, the timing of this motion goes to the character of the prior disclosure, not to a waiver of the right to bring this motion. In Stadish, there was an unrestricted disclosure of the documents to counsel for the party­ opponent but no public disclosure of those documents. The disclosure was effectively limited to counsel. The defendant there made the motion for a protective order promptly upon discovery that counsel for the plaintiff intended to use the documents outside of the litigation.
As held by Rhinehart, there is no heightened First Amendment protection for information acquired in pre­trial discovery. The discovery at issue in Rhinehart had not been publicly disclosed. The scope of First Amendment protection of the information here, however, is different because of the duration and character of the public disclosure. Information lawfully acquired and publicly disclosed is subject to heightened First Amendment protection. (Oklahoma Publishing Co. v. District Court (1977) 430 U.S. 308, 311­312 [97 S.Ct. 1045, 51 L.Ed.2d 355].) The evidence here is that R&R was aware of the public disclosure on the website for a considerable period of time prior to bringing this motion. (Eaton decl., ¶¶ 4, 6, 8, 13; Livingston decl., ¶¶ 12, 13.) Moreover, the evidence presented by R&R in support of its motion demonstrates a significant public interest in information concerning this lawsuit, however detrimental to R&R such information may be.
The fact that the video recordings were acquired by virtue of the discovery process in this action does not forever deprive those video recordings of First Amendment protection. Having made the videos available to the public for a considerable period of time, without any judicial proceeding to remove the videos, the videos are shown here to have acquired a sufficient public interest to warrant heightened First Amendment protection. This is not the case, for example, where the public disclosure occurred immediately prior to the making of the motion and the motion was intended to remedy the unforeseen disclosure.
A helpful case in this analysis is Steiner v. Superior Court (2013) 220 Cal.App.4th 1479. In Steiner: “An attorney’s web site advertised her success in two cases raising issues similar to those she was about to try here. The trial court admonished the jury not to ‘Google’ the attorneys or to read any articles about the case or anyone involved in it. Concerned that a juror might ignore these admonitions, the court ordered the attorney to remove for the duration of trial two pages from her web site discussing the similar cases. We conclude this was an unlawful prior restraint on the attorney’s free speech rights under the First Amendment. Whether analyzed under the strict scrutiny standard or the lesser standard for commercial speech, the order was more extensive than necessary to advance the competing public interest in assuring a fair trial. Juror admonitions and instructions, such as those given here, were the presumptively adequate means of addressing the threat of jury contamination in this case.” (Id. at p. 1482.)
“Petitioners correctly assert the trial court’s order placed a direct restraint on
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[attorney’s] right to freedom of speech under the United States and California Constitutions. [Citations.] ‘Orders which restrict or preclude a citizen from speaking in advance are known as “prior restraints,” and are disfavored and presumptively invalid.’ [Citations.] An order restricting the speech of trial participants, typically known as a ‘gag order,’ is a prior restraint. [Citations.] Although the right to a fair trial is also a protected constitutional right, a court seeking to insure a fair trial may not impose a prior restraint unless ‘“the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.”’ [Citation.]” (Steiner v. Superior Court, supra, 220 Cal.App.4th at p. 1486.)
The requested order as to posted videos is thus a prior restraint that is presumptively invalid. R&R argues that the public at large and potential jurors may become biased against R&R as long as the deposition videos remain posted online. In support of this argument, R&R asserts that the videos have been embedded to portray R&R in a negative light and that the videos are subject to manipulation (see Stern v. Cosby (S.D.N.Y. 2007) 529 F.Supp.2d 417, 422 [celebrity deposition video subject to potential distortion]). There is no persuasive evidence of any such danger here. (Cf. Nebraska Press Association v. Stuart (1976) 427 U.S. 539, 564­565 [96 S.Ct. 2791, 49 L.Ed.2d 683].) The evidence presented relates only to those who would do business with R&R and not to any potential jury pool. As Steiner teaches, the court has multiple tools to ensure a fair trial without the overbroad requested order.
R&R does present substantial evidence that the continued availability of the videos online has a deleterious effect upon R&R’s reputation. This is precisely the same interest which is at issue in an action for defamation. (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 27 [“‘Defamation is an invasion of the interest in reputation ....’”].) However, “[a]n order prohibiting a party from making or publishing false statements is a classic type of an unconstitutional prior restraint. [Citation.] ‘While [a party] may be held responsible for abusing his right to speak freely in a subsequent tort action, he has the initial right to speak freely without censorship.’ [Citation.]” (Evans v. Evans (2008) 162 Cal.App.4th 1157, 1167­1168.) The reputation interests R&R seeks to protect, when weighed against the First Amendment principles and the simple fact that the deposition videos are comprised of complete, unedited testimony under oath, are not of a sufficient magnitude to warrant a prior restraint. (See Wilson v. Superior Court (1975) 13 Cal.3d 652, 660.) While the unflattering frame captures and exposure of the video deponents have unfortunate consequences for the deponents, this embarrassment does not rise to the level where prior restraint is appropriate or authorized. (See also id. at p. 662 [“The judiciary has been ever mindful of Thomas Jefferson’s aphorism that ‘error of opinion may be tolerated when reason is free to combat it.’”].)
For these reasons, the court finds that R&R has not met its burden of showing good cause for issuance of a protective order to compel Johnson to remove the four video recordings of depositions from the internet. This aspect to the motion will be denied.
(2) Upcoming Video Depositions
For the reasons previously discussed in Rhinehart, supra, 467 U.S. 20, the analysis of the second part of the requested order is different. Upcoming
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video depositions have not been publicly available and do not implicate any heightened First Amendment scrutiny. (See also NBC Subsidiary (KNBC­TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1209, fn. 25 [“decisions have held that the First Amendment does not compel public access to discovery materials that are neither used at trial nor submitted as a basis for adjudication”].)
The appropriate test for this aspect of the order is the same test by which the party seeking the order ordinarily must show good cause to protect parties, deponents, or other persons from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (See Code Civ. Proc., § 2025.420, subd. (b); see also Rhinehart, supra, 467 U.S. at p. 37.) Because the First Amendment concerns largely (but not entirely) disappear from the analysis, it is incumbent upon R&R, as the moving party, to show good cause for restricting dissemination as to the specific upcoming depositions with particular emphasis on how dissemination of each specific video recording of a deposition would impact the interests of the parties or affected non­parties.
R&R has not made the necessary showing, relying instead for this part of the motion on the abstract concept that dissemination is bad for R&R’s reputational interests and, to a much lesser extent, is an embarrassment for the deponents whose video depositions have already been posted. R&R presents no evidence regarding the annoyance, embarrassment, or oppression that would follow from the dissemination of video recordings of upcoming deponents. Those upcoming deponents are scarcely identified, and there is no information presented about their respective roles in the transactions at issue in this action. In order for the court to determine whether to issue an order for upcoming depositions along the lines requested by R&R, there would need to be a factual showing upon which the court could appropriately balance the respective interests. In the absence of that factual showing, the court will deny the request for the second part of the protective order.
The court notes that there is already pending a motion for a protective order on this issue for some upcoming deponents. Those motions will be decided upon their own merits. This disposition is without prejudice to further motions specific to particular depositions.
(3) Sanctions
“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2025.420, subd. (h).)
As discussed above, the court will deny the motion for a protective order in its entirety. Johnson requests monetary sanctions against R&R in the amount of $1,500. Based upon the totality of the circumstances here, the court finds the imposition of sanctions unjust. The request for sanctions will be denied.
Tentative Ruling:
For the reasons stated herein, the motion of defendant R&R Auction Company, LLC, for a protective order is denied in its entirety. The request of plaintiff Michael Johnson for an order of monetary sanctions is denied.­detail.php?RuleID=48349 7/8
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  • In both cases, the central issue is the protection afforded to the videos under the First Amendment to the United States Constitution.

     So I guess that means we will be seeing Roger Epperson in that chair real soon, and PSA's video's will be posted sooner then later.

    Got to love that 1st amendment, right Roger? (since he like to claim it so much in his cases as his defense and his right)  Lets get to the brass tacks so to speak... come on boys!

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