A&A: Can We Publish Discovery & Depositions From a 1994 California Case?

Q: We operate a news publication. We have obtained discovery and depositions from the 1990s for a California civil case. There were no court orders sealing the discovery or depositions. Can we use that material for a story?

A: Although we cannot provide you with specific legal advice, generally speaking, the publication of truthful information regarding a matter of public concern is rarely legally actionable. The U.S. Supreme Court has held that state officials may not constitutionally punish publication of truthful information that a newspaper lawfully obtains about a matter of public significance. Smith v. Daily Mail Pub. Co., 443 U.S. 97, 103 (1979).

Occasionally, some court records are ordered sealed by a judge. That does not appear to be the case here, but even if a judge did order that these records be sealed, if the records remained publicly available and you did nothing illegal to obtain a copy – and simply obtained a copy the way you normally obtain access to court records – then the Supreme Court has held that the First Amendment would generally protect you from liability for accurately reporting information in those records. See Cox Broad. Corp. v. Cohn, 420 U.S. 469, 496 (1975) (“Once true information is disclosed in public court records open to public inspection, the press cannot be sanctioned for publishing it.”).

That said, we cannot say for certain that your publication would be privileged in the event of a lawsuit. For specific legal questions regarding your state’s media and libel laws, we recommend consulting with an attorney qualified in your state, who can provide you with more detail and advice tailored to your situation.

Bryan Cave Leighton Paisner LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries.  In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation. No attorney-client relationship has been formed by way of this response.