The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This is in the libel case I blogged about yesterday, Gogol v. White; here's the plaintiff's framing of the situation:
Defendant Malissa White published multiple tweets accusing Plaintiff Frank Gogol of making racially insensitive jokes, using racial slurs, and engaging in overtly racist conduct at a social function where others were present. Witnesses who attended this social function have expressed concerns that they will face retaliation if they participate in this lawsuit, including as a result of a "cancel culture" movement on the internet….
Multiple witnesses expressed reluctance to becoming involved in this lawsuit in any manner, having observed the devastating effect of Defendant's statements on Plaintiff and fearing a similar retaliation by the Defendant, the internet community, and the comics community, generally… The comic book industry is a relatively small and close-knit profession, where an author's reputation is paramount. A stain on a comic book author's reputation can have severe consequences on the author's ability to work in the profession. This is particularly true given the rapidity and ubiquity of disclosures over the internet, where "cancel culture" mindsets can result in the immediate ostracization and "cancellation" of a person.
Based on this,
Plaintiff requests that the Court enter the Los Angeles Superior Court's Model Protective Order without modification….
- The Model Protective Order will allow third-party witnesses to designate their testimony and any documents they produce as Confidential, including their identities.
- The Model Protective Order will allow all parties and their counsel to review documents and testimony designated as Confidential.
- The Model Protective Order will allow any party to challenge a Confidentiality designation through a meet-and-confer process and then motion if necessary….
[T]he Model Protective Order will not entitle any party or witness to file any document (or portion thereof) under seal, and such party or witness will need to make an independent showing before the Court will seal any document….
(A "protective order," as the motion suggests, would keep the defendant and defendant's counsel from publicizing the names of the witnesses, but only until their testimony is used at trial or in a filing, such as a motion for summary judgment. To hide the names of witnesses at that point would require further court orders, such as sealing orders, and those would require a much greater showing.)
The plaintiff is claiming that this reflects the standard protective order used in California cases, but the standard order provides for confidentiality only for "information which is in the possession of a Designating Party who believes in good faith that such information is entitled to confidential treatment under applicable law." And my sense (reinforced by most though not all of the California lawyer friends of mine I asked about this) is that the names of such witnesses are usually not viewed as "entitled to confidential treatment under applicable law," and that such a request is quite unusual.
Protective orders can be used to shield the identity of a party or witness when there is a risk of embarrassment or retaliation. California courts have recognized that a party may proceed in litigation pseudonymously where their privacy rights are implicated, "particularly given the rapidity and ubiquity of disclosures over the World Wide Web." Doe v. Superior Ct. (Cal. App. 2016). Among the factors that courts look to when deciding whether a party can proceed pseudonymously is when identification creates a risk of retaliatory physical or mental harm.
Similarly, California courts—particularly in criminal cases—have regularly entered protective orders shielding witnesses' identities, even from the defendant and their counsel, to protect the witnesses from retaliation….
While good cause exists to enter the Model Protective Order, Defendant, by contrast, will not be prejudiced by a restriction on the disclosure of certain confidential information. Defendant will continue to have complete access to the protected information and be able to use these materials throughout these proceedings without limitation. Indeed, Defendant will likely benefit from the protective order which will equally apply to any confidential and personal information they may disclose through discovery.
Moreover, the Model Protective Order has provisions in place which seek to prevent blanket designations (e.g., designating an entire production as confidential). For instance, under the Model Protective Order, if a receiving party objects to a producing party's designation of a document as confidential, the receiving party can alert the producing party of its objection. Thereafter, if the parties are unable to agree on the document's designation, the producing party will then be required to file a motion to defend the confidential designation. In other words, Defendant will not be unduly burdened by Plaintiff's or a third-party witness's designation of certain materials as confidential because if they disagree with the designation, the designating party will need to file a motion to defend the designation in Court.
Is this enough for a protective order as to percipient witnesses in a normal civil case, where the concern about retaliation is that the witnesses may face public disapproval? I'd love to hear what experienced litigators have to say about this.