Stern v. Cosby

• Decision Date: 12 December 2007
• Docket Number: No. 07 Civ. 8536(DC).,07 Civ. 8536(DC).
• Citation: 529 F.Supp.2d 417
• Parties: Howard K. STERN, Plaintiff, v. Rita COSBY and Hachette Book Group USA, Inc. d/b/a Grand Central Publishing, and John or Jane Doe, Defendants.
• Court: U.S. District Court — Southern District of New York

529 F.Supp.2d 417

Howard K. STERN, Plaintiff, v. Rita COSBY and Hachette Book Group USA, Inc. d/b/a Grand Central Publishing, and John or Jane Doe, Defendants.

No. 07 Civ. 8536(DC).

United States District Court, S.D. New York.

December 12, 2007.

Supplemental Order December 13, 2007.

Powell Goldstein LLP, by: L. Lin Wood, Esq., Nicole Jennings Wade, Esq., John C. Patton, Esq., Luke A. Lantta, Esq., Katherine V. Hernacki, Esq., Atlanta, GA, Gilberti Stinziano Heintz & Smith, P.C., by: William J. Gilberti, Jr., Esq., Lisa DiPoala Haber, Esq., Belina Anderson, Esq., Syracuse, NY, for Plaintiff Howard K. Stern.

Davis Wright Tremaine LLP, by: Elizabeth A. McNamara, Esq., Elisa L. Miller, Esq., New York, NY, for Defendant Rita Cosby.

Akin Gump Strauss Hauer & Feld LLP, by: Douglass B. Maynard, Esq., Deborah

J. Newman, Esq., New York, NY, for Defendant Hachette Book Group USA, Inc.

MEMORANDUM DECISION

CHIN, District Judge.

On November 6, 2007, I issued a Memorandum Decision granting plaintiff Howard K. Stern's application for expedited discovery on the issue of whether defendant Rita Cosby attempted to interfere with potential witnesses. See Stern v. Cosby, 246 F.R.D. 453 (S.D.N.Y.2007). Stern thereafter served a notice of deposition on Cosby for her deposition. Although a copy of the notice has not been submitted to the Court, the notice apparently advised Cos by that the deposition would be both Transcribed and videotaped.

By letter to the Court dated November 15, 2007, Cosby requested a protective order prohibiting the public disclosure of the transcript and video of her deposition before they become a "judicial record." By letter to the Court dated November 16, 2007, Stern opposed the application. Although Stern's attorney, L. Lin Wood, Esq., represents that he has no intention of releasing the video or transcript to the media, Stern argues that good cause does not exist to bar the public dissemination of the video or transcript and that the public has a right of access to the courts and judicial documents. Nonetheless, Mr. Wood apparently agreed not to release the video or transcript to the media pending the Court's decision on Cosby's application.¹

Cosby's deposition began on November 15, 2007, but it has not yet been completed. The transcript is already some 400 pages long.

On December 7, 2007, I conducted a conference to address Cosby's request for a protective order, with Mr. Wood participating by telephone and the other attorneys attending in person. At the conclusion of the conference, I reserved decision.

I have now considered the matter. For the reasons set forth below, Cosby's application is granted and I will enter a protective order prohibiting—for now—public disclosure of the video and transcript of Cosby's deposition.

DISCUSSION

A. Applicable Law

1. The Applicable Federal Rules

The Federal Rules of Civil Procedure were recently amended, effective December 1, 2007, "to make them more easily understood." Fed.R.Civ.P. 30 advisory committee's note to 2007 Amendments. Rule 30, which governs depositions, was amended and certain of its subparts were re-numbered. Rule 30(b)(3)(A) now provides that "[u]nless the court orders otherwise, testimony may be recorded by audio, audiovisual, or stenographic means."² Accordingly, unless the court orders otherwise, a party may videotape a deposition as a matter of right, as long as notice is given of the party's intention to do so.

Rule 26(c), which governs protective orders, was also amended. It now reads that "[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense."³ The rule provides that the court may, for example, preclude discovery or limit the scope or manner of discovery or order that a deposition be sealed, to be opened only upon further order of the court. Fed.R.Civ.P. 26(c)(1)(A), (B), (C), (D), (F).

2. The Public's Right of Access to Court Documents

The courts have long recognized a "common law right of public access to judicial documents." Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir.2006). The Second Circuit has set forth a threepart analysis for determining whether documents relating to a lawsuit must be made available to the public. Lugosch, 435 F.3d at 119-20; United States v. Amodeo, 71 F.3d 1044, 1048-52 (2d Cir.1995) ("Amodeo II"); see also Centauri Shipping La v. W. Bulk Carriers KS, 528 F.Supp.2d 197, ___ _ ___, 2007 WL 3378254, at *6 (S.D.M.Y.2007).

First, the court must determine whether the documents are indeed "judicial documents," to which the public has a presumptive right of access. Lugosch, 435 F.3d at 119; Amodeo II, 71 F.3d at 1047; United States v. Amodeo, 44 F.3d 141, 145-46 (2d Cir.1995) ("Amodeo I"). Second, if the documents are judicial documents, the court must determine "the weight of the presumption," Lugosch, 435 F.3d at 119, that is, whether the presumption is an "especially strong" one that can be overcome only by "extraordinary circumstances" or whether the presumption is a "low" one that "amounts to little more than a prediction of public access absent a countervailing reason" or whether the presumption is somewhere in between. Amodeo II, 71 F.3c1 at 1048, 1050 (internal quotations and citations omitted). Third, "[o]nce the weight of the presumption is determined, a court must balance competing considerations against it." Id. at 1050. Countervailing factors include, among others, the danger of impairing judicial efficiency and the privacy interests of those resisting disclosure. Lugosch, 435 F.3d at 120; Amodeo II, 71 F.3d at 1050.

Not every document generated in a lawsuit is a "judicial document." As the Second Circuit explained in Amodeo I:

We think that the mere filing of a paper or document with the court is insufficient to render that paper a judicial document subject to the right of public access. We think that the item filed must be relevant to the performance of the judicial function and useful in the judicial process in order for it to be designated a judicial document.

44 F.3d at 145. In Amodeo II, the Court elaborated:

[A]n abundance of statements and documents generated in federal litigation actually have little or no bearing on the exercise of Article III judicial power .... [T]he temptation to leave, no stone unturned in the search for evidence material to a judicial proceeding turns up a vast amount of not only irrelevant but also unreliable material.

Unlimited access to every item turned up in the course of litigation would be unthinkable....

71 F.3d at 1048. The Court, specifically observed that "[d]ocuments that play, no role in the performance of Article III functions, such as those passed between the parties in discovery, lie entirely beyond the presumption's reach." Id. at 1050 (emphasis added); accord SEC v. TheStreet.com, 273 F.3d 222, 233 (2d Cir.2001) (holding that transcripts of deposition testimony were not "judicial documents" that carried presumption of public access).

There is little case law on the specific issue of whether a transcript or videotape of a deposition should be sealed in the discovery phase of a lawsuit.⁴ Stern relies heavily on Condit v. Dunne, 225 F.R.D. 113 (S.D.N.Y.2004), a defamation case brought by Gary Condit, the former Congressman, against Dominick Dunne, an author and commentator, who publicly spoke about Condit's possible involvement in the disappearance and murder of a young woman.

Judge Leisure denied Dunne's application for a protective order prohibiting Condit and his attorney—L. Lin Wood, Esq., who also represents Stern in this case— from publicly disseminating the videotape of Dunne's deposition. Judge Leisure applied Amodeo II and held that although the videotaped deposition was not a judicial record giving rise to a common law presumption of public access, the case was one of "public concern" involving a "thensitting United States Congressman in the discharge of his duties." 225 F.R.D. at 118-20. Judge Leisure concluded that because Dunne had publicly accused Mr. Wood of bullying him during the deposition and questions had been raised as to Dunne's credibility, "public scrutiny" was warranted. Id. at 119. Judge Leisure held that Dunne had failed to allege "sufficient good cause to justify a bar on public dissemination of his videotaped deposition." Id. at 120. Compare Paisley Park Enters., Inc. v. Uptown Prods., 54 F.Supp.2d 347 (S.D.N.Y.1999) (permitting defendants to videotape deposition of plaintiff, a rock artist, but allowing only one tape to be made, and requiring that it be safeguarded).

B. Application

I apply the Second Circuit's threepart analysis to the instant case.

First, the transcript and videotape of Cosby's deposition are not, at this point, "judicial documents" entitled to a presumption of public access. To the contrary, at the moment they are merely materials generated in discovery. They are not relevant to my "performance" of a "judicial function," Amodeo I, 44 F.3d at 145, and they have "little or no bearing" on my exercise of Article III judicial power, Amodeo II, 71 F.3d at 1048. Even in Condit, Judge Leisure held that the videotape of Dunne's deposition was not a judicial document. It may be that the transcript of Cosby's deposition will be brought to my attention on a motion to compel, when I will be called upon to exercise my judicial authority to resolve the discovery dispute. Even then, however, I would not need to see the videotape, as my usual practice in considering such a dispute is to rely only on the transcripts. If and when the deposition is presented at trial, it may acquire a different status.

Second, the presumption of public access—if any—that attaches to the transcript and videotape is low, at best. No such presumption attaches at all to the videotape, and even if the transcript is filed for purposes of a motion to compel, the presumption that would attach to the transcript would...