A trial court in Texas has ordered a lawyer in a pending case to remove from YouTube a deposition video-excerpt that the lawyer had posted to the site. The court reasoned that deposition records and other “discovery” materials are not public records until they have been introduced in evidence in a lawsuit.–PS
December 9, 2008
By Brenda Sapino Jeffreys
Jeffrey Weinstein’s client was so outraged by the deposition testimony in her fraud suit against a Houston car dealership that Weinstein posted an excerpt from the deposition on YouTube and put a link to the video on his firm’s Web site.
But the video isn’t on YouTube anymore.
Although law professors say lawyers can, under most circumstances, do what they want with deposition testimony, the defendant in the litigation secured a court order on Dec. 3 that forced Weinstein to take down the video on the ground it wasn’t a public record. This is a cautionary tale for lawyers who may be thinking of using YouTube — a Web site that allows users to load videos — or other online mediums such as MySpace or Facebook to disseminate deposition testimony.
Titled “Its Not a Kickback — Its a Fee,” the six-minute video features a small portion of the deposition of the chief financial officer of Mac Haik Ford Ltd., the dealership-defendant in Elizabeth Harper v. Mac Haik Ford Ltd. Weinstein says he decided to post the YouTube link because Harper asked him to and because he’s trying to provide easily accessible information about his caseload to clients and others.
Harper alleges in the suit filed in December 2007 in County Court-at-Law No. 4 in Harris County that the Houston car dealership engaged in fraud by misrepresentation and concealment when it failed to disclose all terms of her financing for her purchase of a pickup truck from Mac Haik Ford in 2004. She alleges she should have paid a lower interest rate than the dealership arranged for her.
Mac Haik Ford denies the allegations in Harper’s petition.
In the Oct. 8 video deposition, Mac Haik Ford CFO Jeffrey Heath testified that the financing terms Harper alleges cost her money were “customary” in 2004. Weinstein says Harper wanted the video on YouTube so others would have the information when negotiating a deal to buy a vehicle.
But on Dec. 3, County Court-at-Law No. 4 Judge Roberta Lloyd of Houston ordered Weinstein to take the video deposition off YouTube. Mac Haik Ford had sought a protective order to prevent Weinstein and others from “continuing to use the discovery process as a means to harass, annoy, embarrass, and mis-characterize Movant’s business dealings with Plaintiff and made the basis of this lawsuit.”
In the Defendant’s Motion for Protective Order, Mac Haik Ford alleges it sought the protective order because the video includes only six minutes and 23 seconds of the hour-long deposition, it is misleading, and because Weinstein included a link to the video on his Athens, Texas, firm’s Web site. Mac Haik Ford also notes that the video was placed online around Oct. 15, before Heath had an opportunity to review, correct and certify a written copy of the deposition.
Weinstein says he posted the video on YouTube because he believes a deposition is public record, even if it’s not filed at the courthouse. “In the old days, you used to file all your discovery down at the courthouse until the Supreme Court of Texas said, ‘No, it’s not economical for the clerks to store all the depositions.’ ”
Weinstein also argues that his client has a First Amendment right to publish the information. That’s the argument Harper made in her response to the defendant’s motion for protective order. She asked Lloyd to deny the motion for protective order on the ground that it would “unlawfully restrain free speech.”
Characterizing the YouTube video as “highly suggestive, inflammatory, misleading and edited” in the motion for protective order, Mac Haik Ford also sought sanctions against Weinstein because of the video.
Ruling from the bench, Lloyd denied the motion for sanctions, but she did order Weinstein to take the video off YouTube on the ground it was not a public record and had not been filed in the suit, Weinstein and defense lawyer Henry Robertson say.
“The judge granted the motion for protective order, basically saying that since a deposition is not a public record, that we did not have the right to post it on the Internet,” Weinstein says.
Weinstein says he complied with Lloyd’s order to dismantle the link to the YouTube video on the Weinstein Law Firm Web site and to take the video off YouTube. But he intends to file a complete paper transcript of the video deposition in the court file and then post the entire deposition on YouTube.
Under those circumstances, Robertson says his client would be unlikely to seek a protective order to prevent Weinstein from making the full video available to the public on YouTube.
“If he chooses to publish [post on YouTube] the entire deposition under the proper circumstances … I wouldn’t have a reasonable objection if the entire deposition was published and it wasn’t altered,” says Robertson, a solo practitioner in Houston.
“Clearly once it becomes a part of the court file, the public has access to the file,” he notes.
Two professors in Houston who teach civil procedure, David Crump of the University of Houston Law Center and Jim Paulsen of South Texas College of Law, say Lloyd has the discretion under the circumstances in this case to issue a protective order to force Weinstein to take down the YouTube video.
“There’s a lot of discretion in discovery matters,” Paulsen says.
But Alex Albright, senior lecturer and associate dean at the University of Texas School of Law, says nothing in the Texas Rules of Civil Procedure directly addresses the issue of what lawyers can do with deposition testimony.
“It just shows that there are all sorts of things we don’t even think about,” she says.
Crump says lawyers can pretty much do anything with deposition testimony.
“As far as anything I know, you can show it to anyone, read it to anyone, or mail it to the president of the United States if you want to … or put it on YouTube,” Crump says. “Without some rule or order to the contrary, I don’t know of any reason why you can’t excerpt it, and I suspect that’s why the judge didn’t think sanctions were appropriate.”
In the Motion for Sanctions, Mac Haik Ford alleges Weinstein violated Rule 13 of the Texas Rules of Civil Procedure by posting the “misleading, groundless” video excerpt and did it with the goal of harassing the defendant, circumventing the legal process and improperly using the video to solicit clients. Mac Haik Ford asked Lloyd to strike Harper’s pleading as a sanction.
Crump says deposition testimony, like other testimony in litigation, is public unless a judge specifically issues a protective order making it “confidential.”
As to putting the video on YouTube, Paulsen suggests that it’s really no different from putting deposition information on a billboard.
Crump notes that the cat is already out of the bag, since the video was available to the public for several weeks.
“Do we require a party to put the cat back in the bag if it’s already out of the bag? Well, that’s a harder question,” Crump says.
Robertson and Weinstein say Lloyd suggested that the use of YouTube in discovery may be a matter for the State Bar of Texas to consider.
Kim Davey, a spokeswoman for the State Bar, says nothing in the Texas Rules of Disciplinary Procedure relating to lawyer advertising specifically address depositions. But she notes that a video posted on YouTube or elsewhere on the Internet that is considered advertising would have to be approved by the Advertising Review Committee.
Copyright Texas Lawyer 2008