Mirlis v. Greer

• Decision Date: 03 March 2020
• Docket Number: 17-4023 (L),August Term, 2018
• Citation: 952 F.3d 51
• Parties: Eliyahu MIRLIS, Plaintiff-Appellee, Lawrence Dressler, Interested Party-Appellee, v. Daniel GREER, Rabbi, Yeshiva of New Haven, Inc., Defendants-Appellants, Aviad Hack, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

952 F.3d 51

Eliyahu MIRLIS, Plaintiff-Appellee,Lawrence Dressler, Interested Party-Appellee,

v. Daniel GREER, Rabbi, Yeshiva of New Haven, Inc., Defendants-Appellants,Aviad Hack, Appellant.

17-4023 (L)

August Term, 2018

United States Court of Appeals, Second Circuit.

Argued: May 22, 2019

Decided: March 3, 2020

Steven J. Errante, Lynch, Traub, Keefe, & Errante P.C., New Haven, CT, for Aviad Hack.

David Grudberg, Carmody Torrance Sandak & Hennessey LLP, New Haven, CT, for Daniel Greer.

Lawrence Dressler, pro se, New Haven, CT.

Before: Chin and Carney, Circuit Judges, and Sannes, District Judge.¹

Carney, Circuit Judge:

Appellant Aviad Hack ("Hack") was a non-party witness in a 2016 civil lawsuit in the District of Connecticut. In that suit, the plaintiff, Eliyahu Mirlis ("Mirlis"), a former student at a religious school in New Haven, Connecticut, accused the defendant, Daniel Greer ("Greer"), the former religious leader of that school, of sexually abusing Mirlis when Mirlis was a minor and a student there. Mirlis sought damages from Greer for that abuse. In connection with those proceedings, Hack gave a video-recorded deposition lasting several hours in which he testified in detail to having also been a victim of Greer’s sexual abuse several decades earlier, when Hack was a minor and a student at the school. Hack further testified in his deposition that he had known about Greer’s abuse of Mirlis, which occurred when Hack was an adult and employed at the school. A transcript of the deposition is publicly available, but public access to the video recording itself is the subject of this appeal.

Hack voluntarily sat for the deposition in 2016, but he did not voluntarily appear at trial in 2017; indeed, at the school in Rhode Island where he was teaching in 2017, he successfully evaded those who were attempting to serve a subpoena on him to appear at the civil proceedings in Connecticut. Accordingly, in place of his live testimony, the United States District Court for the District of Connecticut (Shea, J. ) permitted the parties to play portions of Hack’s deposition video for the jury.

After trial, Lawrence Dressler ("Dressler"), the Interested Party-Appellee in the appeal now before us, sought the District Court’s leave to access the video recording of Hack’s entire deposition. Using the screenname "Larry Noodles," Dressler had written voluminously on his blog about the trial and disparagingly about both Hack and Greer. He informed the court that he sought to copy the video so that he could post it publicly to his internet blog.

Hack vigorously opposed Dressler’s motion. His counsel argued that "the privacy interests of Mr. Hack in not having the video of his deposition distributed in public forums and replayed to the masses[ ] far outweighs the need [for] access [to the] same." Mot. for Protective Order at 1, Mirlis v. Greer , No. 16-cv-678 (D. Conn. Jan. 2, 2018), ECF No. 256. While this motion was pending, on March 8, 2018, an unsealed transcript of Hack’s deposition, edited to show only the portions of Hack’s deposition that were played for the jury, was filed with the court and noted on the District Court docket.² It was made, and is still, available for public examination.

The District Court determined that those portions of the video-recorded deposition that had been shown to the jury at trial constituted a "judicial record" subject to a strong common law presumption of public access under Circuit precedent. Then, relying primarily on our 1987 decision in Application of CBS, Inc. , 828 F.2d 958, 959 (2d Cir. 1987) (" CBS "), the District Court further determined that Hack’s privacy interests in those excerpts of the deposition video were not sufficient to override the presumption of public access. The court reasoned that, although the video captured Hack describing Greer’s predatory sexual assault on Hack when Hack was a minor, the video’s subject matter was less "gruesome" than the content of videos in cases where public access has been denied, and therefore, under standards derived largely from CBS , it was less compellingly private. Hack App’x 143. The District Court also found persuasive the argument that Hack’s privacy interests in the portions of the video that had been played for the jury were reduced because a transcript of the entire deposition was already publicly available. It therefore ordered that Dressler be given access to a video of those portions of the deposition, to do with as he liked. Recognizing the sensitivity of its decision, however, the court stayed its order pending appeal.

On review, we conclude that the District Court committed reversible error in determining that those portions of the video-recorded deposition that had been played for the jury should be publicly released for copying and general display on the Internet. We agree with the District Court’s initial conclusion that, having been displayed to the jury during trial, those portions of the video were "judicial documents" as to which a presumptive right of public access applied. But, in balancing the weight of the presumption of access, the District Court failed to take sufficient account of two categories of countervailing considerations: (1) Dressler’s motive for obtaining, and intent in releasing, the deposition video; and (2) Hack’s privacy interests.

First , the court erred as a matter of law by failing to give any consideration to Dressler’s apparently spiteful motives and announced course of action with the footage. Although we have commented generally that motive is "irrelevant to defining the weight accorded the presumption of access," United States v. Amodeo , 71 F.3d 1044, 1050 (2d Cir. 1995) (" Amodeo II "),³ the Supreme Court has instructed that access to judicial documents should not be permitted "to gratify private spite or promote public scandal with no corresponding assurance of public benefit," Nixon v. Warner Commc’ns, Inc. , 435 U.S. 589, 603, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) (" Nixon "), a limitation that we find relevant here.

Second , the District Court undervalued the weight properly accorded the intense intrusion on Hack’s privacy interests that the internet publication of the video excerpts would effect. Today, unlike in the era of our decision in CBS , videos of all types are routinely and widely shared on the Internet, where (as far as we can predict now) it appears they will be available in perpetuity for unlimited viewing, further dissemination, and easy manipulation; their subjects are unable to escape them. Yet Dressler identified no affirmative public need that would be served by general release of the video when the transcript was already available. Indeed, no other individual or entity, and no media outlet, joined in Dressler’s request. The privacy interests of a third-party witness in a deposition video in which that witness describes being the minor victim of a sex crime perpetrated by a trusted adult are entitled to great weight and sensitive consideration in the court’s balancing of the type of access sought against the privacy rights asserted.

Accordingly, we REVERSE the order of the District Court and REMAND the cause with instructions that the District Court enter an order denying Dressler’s request for the video recording.

BACKGROUND

In May 2016, Mirlis sued the Yeshiva of New Haven, Inc. (the "Yeshiva") and Greer, the former principal and rabbi of the Yeshiva, alleging that Greer sexually abused Mirlis in the early 2000s, when Mirlis was in his teens and a student at the Yeshiva, and Greer was in his 50s. Mirlis sought damages for the harm to him. In 2017, the case went to trial and the jury returned a verdict in favor of Mirlis, awarding him $21.7 million in compensatory and punitive damages. Greer’s appellate challenges to the trial proceedings and the damages award are the subject of a separate opinion published concurrently with this writing.⁴

In preparation for trial, on July 25, 2016, and August 2, 2016, Mirlis conducted a video-recorded deposition of Hack as a non-party fact witness with knowledge relevant to the civil litigation. Hack, by that time in his 40s and a resident of Rhode Island, served as assistant dean of the Yeshiva during Mirlis’s time as a student there. During his deposition, Hack testified that he, too, had been a victim of Greer’s sexual abuse when he was a student at the Yeshiva in the late 1990s, several years before Mirlis arrived. Hack also admitted that he became aware when he was assistant dean of the Yeshiva that Greer was assaulting Mirlis, and made no report to state authorities.

Although Hack willingly participated in the deposition, he went to great lengths later to evade process servers who were attempting to subpoena him to testify at trial. Three process servers submitted affidavits to the District Court, one averring that, when he approached Hack at the school in Rhode Island where Hack then taught, Hack "ran out of his classroom, down the hallway[,] ... and out the back door of the school, leaving behind a classroom full of students." App’x 442. The other affidavits offered similar sworn statements. For two weeks after the service attempts began, Hack called in sick to the school. Despite surveilling the school and his home, no process server was able to serve the subpoena, and Hack did not appear at trial.

Based on these affidavits, the District Court ruled at Mirlis’s request that Hack was an "unavailable witness" within the meaning of Rule 32(a)(4) of the Federal Rules of Civil Procedure and that, accordingly, Mirlis would be permitted to introduce at trial relevant portions of Hack’s deposition video. Mirlis did so. In those deposition excerpts, Hack described a sexual relationship that Greer initiated with him in the early 1990s, when Hack was about sixteen years of age and a student at the Yeshiva, and Greer was the school’s rabbi and leader. Hack further averred that the relationship continued through the years after 2000, when Hack became...