Court Refuses to Enjoin Plaintiff from Posting Her Own Deposition Online

From Black v. Friedrichsen, decided yesterday by Judge Theresa L. Springmann (N.D. Ind.); seems quite right to me:

[C]ounsel for the Defendants discovered that the Plaintiff recorded portions of her deposition [in her Fair Housing Act case against Defendants] without counsel's knowledge and posted them on social media. That day, counsel emailed the Plaintiff and asked that she remove the videos, but the Plaintiff refused, stating that counsel had "no right to ask for removal of MY TESTIMONY." Shortly thereafter, the Plaintiff made several more postings on her social media account related to the case, including calling the Defendants liars, evil, and racist, among other things…. [T]he Defendants … request[] that the Court enjoin the Plaintiff from posting disparaging comments about the Defendants and their counsel on social media, order the removal of various social media posts and videos, and sanction the Plaintiff by terminating her case….

In their motion, the Defendants argue that a temporary restraining order (TRO) and preliminary injunction are proper because they are likely to succeed on the Plaintiff's Fair Housing Act claims and the social media posts are causing irreparable harm to their reputation….

While the Defendants are correct that the First Amendment allows courts to restrict the dissemination of information gained through the civil discovery process, see, e.g., Seattle Times Co. v. Rhinehart (1984), their motion requests a far broader injunction. The Defendants seek to restrict the Plaintiff from disseminating her own deposition testimony (as opposed to just the Defendants' deposition testimony), as well as order the Plaintiff to take down social media posts that do not include any pretrial discovery materials. That kind of order is untethered from what the Supreme Court has said the First Amendment allows. It would also undermine the longstanding "tradition that litigation is open to the public." Given these considerations, the Court finds that the harm posed to the Defendants' reputations is outweighed by the harm posed to the Plaintiff and the public interest.

Comments

[DaivdBehar]

I have a lawyer question. How come diverse plaintiffs get on TV to boohoo their bogus claims, and defendants do not do the same? I think it has to do with rent seeking defense lawyers. They do not want to pressure or to deter the plaintiff bar from going to trial. so they can make money from a trial.

The other possibility is that the press is all far left radical extremists biased against defendants. There are two types of people with lower morals than the scumbag lawyer. One is the serial rapist and murderer of children. The other is the journalist.

[Brophy]

CovidMania has proven that doctors are more evil than lawyers, journalists, serial rapists, and child murderers.

[santamonica811]

Eugene,
Is there a litigation privilege (ie, that anything said in a depo is shielded from a later suit for defamation) that would apply here? I'm vaguely recalling something from law school, but maybe that applied only to things said during an actual trial???

I assume that the answer to the above is "No.". Otherwise, it would seem to be a huge loophole...one could say outrageous things in a depo and then merely repeat them, in public--in order to get around normal libel and slander penalties.

(Apologies if this has already been asked...I muted the first poster months ago, so I have no idea what she/he actually wrote.)

[Libertymike]

Do you think he who you have muted would pose a question regarding the nuances of the litigation privilege?

In Massachusetts, one of the foundational cases on the topic is Sriberg v. Raymond, 370 Mass. 105, 108 (1976) ("statements by a party, counsel or witness in the institution of, or during the course of, a judicial proceeding are absolutely privileged provided such statement related to that proceeding").

As for your question regarding the making of defamatory statements by counsel at a deposition, the short answer is, it depends. To whom is counsel making the statements, i.e., who is present at the precise point in time the statements are made? Who is the subject of the statements? Are the statements in any way connected to the present litigation? Do the statements relate to the subject matter of another judicial or quasi-judicial proceeding the lawyer and his client are seriously considering filing?

[Voize of Reazon]

one could say outrageous things in a depo and then merely repeat them, in public

That the statement made in a judicial proceeding is privileged doesn't mean that the content is.

[santamonica811]

Voize,
Ah, good point. For something said in a depo, trial, etc, that distinction is slim. But of course it makes sense to treat statements said outside of this situation (even if identical) quite differently. That distinction achieves two policy goals: Unfettered litigation, and minimizing libel/slander while out in the general world.

Thanks for pointing it out.

[AtR]

Doesn't context matter for privilege?

It's very different to tell a close friend a defamatory statement about a third party, and to publish that defamation in the New York Times.
Same goes for taking a phrase from the deposition out of context, or digitally rearranging the words or sentences said to suggest an alternate meaning.

[Kazinski]

I think EV discussed a month or so ago that making an allegations in a lawsuit, then repeating the allegation is not protected from a libel action.

If Jane sues John for sexual harassment, a media outlet can't be sued for reporting on the allegations, even if it turns out to be false. But if Jane or her attorney make statements to the press repeating the allegation, they can't use the fact it was a public document in a court filing as a defense, because they filed it.

[Kristian H.]

Aren't depositions under oath? Whatever outrageous things might be said, wouldn't false statements be prejudicial to theior case, and possibly open them up to perjury charges? I'd think in some ways, that is an easier bar to clear than defamation or libel not under oath (i.e., perjury doesn't have a public persons 'loophole').

[David Nieporent]

Perjury is a criminal charge, not a civil cause of action, and while they are theoretically at risk of perjury charges, in real life nobody ever gets prosecuted for perjury in a civil case.

[Kristian H.]

IRL sucks then. Lying to the court, civil or criminal shouldn't be tolerated.

[Dan Schiavetta]

I once had a witness who, while looking right at the stenographer, ended every one of his answers with "but don't quote me!".

[David Nieporent]

Did the stenographer listen?

[Dan Schiavetta]

Yes.

After this happened a couple of times, I took a break and told my guy to stop doing that. Fortunately this was a New York case. (In New Jersey you’re not allowed to confer with your client while the deposition’s in progress,)

When the transcript came in for correction, I sat down with him and had him delete every time he said that.

[David Nieporent]

I don't think "I wish my client hadn't said that" is actually errata.

[tkamenick]

Why on earth would the reporter let you do that?

[John F. Carr]

From page 4 of the order: "With that said, the Defendants are not without a potential remedy. They are free to seek recourse under the Federal Rules of Civil Procedure governing the discovery process, and the Court granted the Defendants’ request for a protective order not long after they filed this motion. Thus, the Defendants can seek discovery sanctions [...]"

There is a protective order and a pending motion to dismiss as sanction for discovery disputes. As I see it, the defendants lost a battle, having used the wrong procedural mechanism, but they haven't lost the war.