Lisa C.-R. v. William R.

• Decision Date: 15 November 1995
• Citation: 635 N.Y.S.2d 449,166 Misc.2d 817
• Parties: LISA C.-R., Plaintiff, v. WILLIAM R., Defendant.
• Court: New York Supreme Court

Page 449

635 N.Y.S.2d 449

166 Misc.2d 817

LISA C.-R., Plaintiff, v. WILLIAM R., Defendant.

Supreme Court, New York County.

Nov. 15, 1995.

Herman H. Tarnow, New York City, for Plaintiff.

Mark S. Helweil, New York City, for Defendant.

LEWIS R. FRIEDMAN, Justice.

This case presents an important question: When should a protective order be available to limit the use of videotaped depositions in matrimonial cases? The court holds that the burden is on the party seeking disclosure and that the burden is not met in this case.

This is a heavily litigated divorce case, which involves custody and financial matters. The financial deposition of defendant ("Husband") was scheduled for October 23 and 24, 1995. Wife's counsel served Husband with notice, pursuant to 22 NYCRR § 202.15[c], that the deposition would be videotaped. Wife's counsel's notice also stated that ABC News would like to cover the deposition as part of a "feature story". Counsel advised that ABC would not be present without Husband's consent. Husband strenuously objected to any audio-visual coverage of the deposition and brought this motion to enjoin the dissemination of the video or audio tapes or the transcript of the deposition. Both parties appear to have conceded that audio-visual recording of a deposition does not require the showing of special circumstances (22 NYCRR § 202.15; Roche v. Udell, 155 Misc.2d 329, 335, 588 N.Y.S.2d 76 [Sup Ct. Nassau Co, 1992]; 3A Weinstein-Korn-Miller, N.Y.Civ.Prac. p 3113.07). By interim order the court directed the deposition to proceed and enjoined all parties from disclosing the material to anyone pending this decision. The press was not to be present at the deposition. Subsequent to the deposition both sides made additional submissions to the court. Husband alleges that since he is a public official Wife has been using the threat of disclosure to pressure a settlement of the case. Wife's opposition appears to rely on First Amendment grounds.

The Court of Appeals has concluded that the appropriate constitutional test of whether a proceeding should be open to the press is two pronged: "whether the place and process have historically been open to the press and general public" and "whether public access plays a significant positive role in the functioning of the particular process in question" (Matter of Johnson Newspaper Corp. v. Melino, 77 N.Y.2d 1, 5, 563 N.Y.S.2d 380, 564 N.E.2d 1046 [1990]. The court relied on the Supreme Court's definition of a two-prong test in Press-Enterprise Co v. Superior Ct. of Cal., 478 US 1, 8, 106 S.Ct. 2735, 2740, 92 L.Ed.2d 1 [1986]; it held that there was no reason to believe that the high court's First Amendment analysis no longer retained an historical component. In the context of a press application to gain access to depositions the Supreme Court has concluded that "pre-trial depositions ... are not public components of a civil trial. Such proceedings were not open to the public at common law.... [I]n general, they are conducted in private as a matter of modern practice." (Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33, 104 S.Ct. 2199, 2208, 81 L.Ed.2d 17 [1984]; Gannett Co. v. DePasquale, 443 U.S. 368, 388-89 n. 18, 99 S.Ct. 2898, 2909-10 n. 18, 61 L.Ed.2d 608 [1979]; in RE reporterS comm. foR freedom of thE press, 773 F.2d 1325, 1338 [D.C.Cir.1985].

Under the New York cases the press has consistently been denied access to pretrial depositions since depositions are not a part of a public trial (Scollo v. Good Samaritan Hosp., 175 A.D.2d 278, 572 N.Y.S.2d 730 [2nd Dept.1991]; Matter of Westchester Rockland Newspapers v. Marbach, 66 A.D.2d 335, 413 N.Y.S.2d 411 [2nd Dept.1979]. The public's limited right of access to matrimonial matters (see discussion of Domestic Relations Law § 235 infra ) is not impaired by exclusion from depositions. The right of access is merely delayed until trial (Matter of Westchester Rockland Newspapers v. Marbach supra, 66 A.D.2d at 338, 413 N.Y.S.2d 411). A pre-trial deposition meets neither branch of the Press-Enterprise test (see Matter of Johnson Newspaper Corp. v. Melino, supra ). There is no First Amendment right to press access to a deposition. Nor is there a right under the state constitution, which, in this respect, is co-extensive with the First Amendment (Matter of Johnson Newspaper Co v. Melino, supra, 77 N.Y.2d at 7, 563 N.Y.S.2d 380, 564 N.E.2d 1046).

That conclusion does not end the inquiry. In the federal courts the rule has developed that, notwithstanding the absence of a constitutional right of public access to discovery and that the press may not attend a deposition (Amato v. City of Richmond, 157 F.R.D. 26 [E.D.Va.1994], a party must establish good cause for sealing discovery (see, e.g., In re "Agent Orange" Product Liability Litigation, 104 F.R.D. 559, 568 [E.D.N.Y.1985], aff'd 821 F.2d 139, 145-6 [2d Cir.1987], cert. denied sub nom. Dow Chemical Co v. Ryan, 484 U.S. 953, 108 S.Ct. 344, 98 L.Ed.2d 370 [1987]; Gumowitz v. First Fed. Savings & Loan Assn., 1994 WL 683431 [S.D.N.Y.1994]; Cipollone v. Liggett Group, 785 F.2d 1108, 1121 [3rd Cir.1986].

In New York it is well accepted that the court has authority pursuant to CPLR 3103(b) to regulate discovery by barring dissemination of information to persons other than those connected with the case (see, e.g. Krygier v. Airweld, Inc., 176 A.D.2d 701, 574 N.Y.S.2d 791 [2d Dept.1991]; Van Eycken v. Van Eycken, 142 A.D.2d 576, 530 N.Y.S.2d 991 [2d Dept.1988]; Tymko v. K-Mart Discount Stores, 75 A.D.2d 987, 429 N.Y.S.2d 119 [4th Dept.1980]. That rule also applies to the use of the videotape of a deposition (Liebman & Charme v. Lanzoni, 164 Misc.2d 302, 624 N.Y.S.2d 752 [Civ.Ct.N.Y.Co.1995]. The issue thus presented is whether there is a valid basis for the issuance of a protective order. Wife claims that such an order should be granted only upon a showing of special circumstances. The traditional rule is that the burden of establishing the need for a protective order is on the party seeking it (see, e.g. Nab-Tern-Betts v. City of New York, 209 A.D.2d 223, 224, 618 N.Y.S.2d 306 [1st Dept.1994]; Flores v. City of New York, 207 A.D.2d 302, 615 N.Y.S.2d 400 [1st Dept.1994]; Viruet v. City of New York, 97 A.D.2d 435, 436, 467 N.Y.S.2d 285 [2nd Dept.1983]. Husband's argument here seems to be that since different rules generally apply to matrimonial cases different standards should govern public access to discovery.

Judiciary Law Section 4 states that the primary rule in this state is open court proceedings: "The sittings of every court within this state shall be public." There appears to be a general trend in the cases to permit a trial court to refuse to close a courtroom to the public where there is a strong public interest even though the parties seek privacy (e.g., Merrick v. Merrick, 154 Misc.2d 559, 562-63, 585 N.Y.S.2d 989 [Sup.Ct.N.Y.Co., 1992], aff'd 190 A.D.2d 516, 593 N.Y.S.2d 192 [1st Dept.1993]; Anonymous v. Anonymous, 158 A.D.2d 296, 297, 550 N.Y.S.2d 704 [1st Dept., 1990], modifying Sprecher v. Sprecher, NYLJ, June 21, 1988, p. 21, col. 6 [Sup.Ct.N.Y.Co., Schackman, J.]. That is, in the recent reported cases the courts have applied a standard that public access to a trial is to be preferred, absent strong reasons to the contrary, such as detailed allegations of sexual misconduct or acts of cruelty (see Olesh v. Olesh, 143 Misc.2d 299, 540 N.Y.S.2d 123 [Sup.Co. Nassau Co., 1989]. It is clear that, at least in 1995, the burden on courtroom closure is on the party seeking it.

However, the court is granted authority in its discretion to exclude "all persons who are not directly interested therein" from "all proceedings and trials in cases for divorce." (Judic Law § 4). That power of exclusion from the trial is repeated in the Domestic Relations Law. Section 235 grants partial confidentiality to divorce proceedings. Section 235, which originated in 1847, bars public access to potentially embarrassing materials (see Stevenson v. News Syndicate Co., 276 App.Div. 614, 615, 96 N.Y.S.2d 751 [2nd Dept.1950], aff'd 302 N.Y. 81, 96 N.E.2d 187 [1950]. Subdivision 1 of the statute bars, absent a court order, any access except for the parties and counsel to certain parts of the court's records. Subdivision 2 permits the court to grant an order excluding the public from the trial and trial exhibits. Although the statute appears to give the parties' privacy great weight, there are major loopholes. For example, there is no tort cause of action against a person who publishes material obtained in violation of the statute (e.g., Shiles v. News Syndicate Co., 27 N.Y.2d 9, 15, 313 N.Y.S.2d 104, 261 N.E.2d 251 [1970]; Freihofer v. Hearst Corp., 65 N.Y.2d 135, 490 N.Y.S.2d 735, 480 N.E.2d 349 [1985]. Public access to courtroom proceedings is strongly favored (Richmond Newspapers v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 [1980], even in matrimonial cases (see Merrick v. Merrick, supra; Anonymous v. Anonymous, supra ).

The law governing the pre-trial rights of the parties in matrimonial matters is not discussed in the reported cases. Pre-trial disclosure in matrimonial cases typically involves detailed examination of the financial workings of the marriage, employers and related parties. Discovery, as in all cases, is not limited to admissible matter but usually goes far beyond the matter to be offered at trial. But it is only the trial evidence to which the statutes and cases provide a public right to access. In this respect the New York procedure in matrimonial cases differs from the federal system relied on in In re "Agent Orange", supra, where discovery is filed with the court clerk and is available to the public (FedRCivP, rule 5[d]. In...