Opinion
XXXX
06-27-2019
C.C., Plaintiff, v. D.D., Defendant.
Appearances Redacted
Appearances Redacted
Non-party Sebastian D. and/or [Organization 1] moved, by letter e-mailed to the court, to "request permission to film all upcoming court proceedings in the above-captioned case, from the next court date through the conclusion of trial (if such a trial happens)." [the "First Sebastian D. Letter;" later e-filed by attorney in this case as NYSCEF doc. 178]. Mr. Sebastian D. stated that he has previously "filmed with the blessing of the NYS Office of Court Administration on other occasions," and provides a www.youtube.com link to what he stated are proceedings at the New York Commission on Statewide Attorney Discipline. Mr. Sebastian D. did not state whether he or his organization has ever been previously allowed to videotape a matrimonial court proceeding or trial, as he requested here, or, even, any court proceeding.
The First Sebastian D. Letter lists the following as the reasons for his video-broadcasting request:
We are producing a documentary film about the family courts. We are also providing ongoing coverage of specific cases, including the above-captioned matter, distributing on various media platforms... The presence of cameras helps to keep attorneys and judges honest. In this case, there are disturbing allegations that the attorneys in this matter are ‘churning’ the case for their own financial enrichment. With [Wife's attorneys'] firm charging $1,100 an hour, and the AFCs hourly billing at $550 [attorney for child A.] and $500 [attorney for children B. and C.], every hour in court costs the family $2,200. These attorneys are rapidly ruining this family — and harming the subject children's lives. That is why those attorneys will undoubtedly fight tooth and claw to have you deny this request. Yet the spotlight of cameras may just encourage these attorneys to stop filing frivolous motions — such as the application made yesterday by [attorney for child A.]. And that could help you in your stated objective in this matter, which is for the parties to settle, and for this case to be removed from your desk....
Please also note that we are working independently from both parties in this case. The decision to investigate this matter was borne of detailed research into this case, and is this organization's alone
First Sebastian D. Letter at 1-2 [please note that the court does not necessarily agree or endorse the allegations or the allegedly factual assertions made in the letter]. Mr. Sebastian D. does not cite any other "specific cases, including the above-captioned matter, distributing on various media platforms," or whether he has made requests to videotape in those other cases.
It appears that Defendant Husband met with Mr. Sebastian D. in early February 2019, several months before this videotaping application. [see NYSCEF doc. 193, [Husband's attorney's] invoice to his then-client Defendant, apparently as produced by Defendant to Plaintiff in this action, at 3: "2/06/2019, ... Conversation with [Husband] regarding media plans...; 2/07/2019, Read and respond to e-mails concerning his meeting with Sebastian today..."]. Thereafter, Defendant became pro se . Defendant is an attorney, admitted in the State of New York, although he perhaps has allowed his Judiciary Law § 468-a bi-annual registration to lapse. Defendant, first with his counsel, and then as pro se, has filed a motion (seq. 003), seeking removal of one Attorney for Child and the court-appointed forensic evaluator. Defendant Husband's motion (seq. 003) was filed after receipt of the forensic report from the court-appointed evaluator [Doctor K], and a subsequent request by one of the attorneys for the children, [attorney for child A.], to hire her own expert to help [attorney for child A.] evaluate whether it would be necessary for her to make certain emergency applications on behalf of her client, based on concerns raised in the report. Defendant's motion then sought the "immediate" removal of [attorney for child A.] as that child's attorney, and suggested a specific replacement attorney for the child. Defendant also sought removal of the forensic evaluator Dr. [K], striking his report, ordering a "disgorgement" of fees paid to him and to [attorney for child A.], suggested a specific replacement forensic evaluator, and sought to refer several attorneys in the case to the "disciplinary authorities." Defendant's motion cited portions of emails between Plaintiff and her attorneys, without Defendant fully explaining how he accessed these emails. At first, Plaintiff Wife's attorneys requested that the court not read the privileged emails, and urged the court not to waive her privilege. All sides then briefed the issue of whether the emails were privileged under the [alleged] circumstances. At the next court appearance, in large part because Defendant continued to quote and cite portions of the Wife's emails in his submissions, Wife's counsel consented to the submission of the emails in question to the court as long as the submission would not be considered a general waiver of her privilege. On everybody's consent, the emails were received, and Defendant Husband's motion (seq. 003) was filed. Plaintiff's counsel then cross-moved (seq. 004) for sanctions, stating, in pertinent part, that Defendant's motion is a gross and erroneous misreading of Plaintiff's attorney-client-privileged emails that Defendant Husband improperly retrieved, accessed, read, and printed over at least several days, and which emails showed absolutely no wrongdoing on the part of any of the professionals or Plaintiff, nor has there been any such alleged wrongdoing.
Defendant Husband then filed a Notice of Cross Motion to that cross-motion, contrary to Part Rules and the CPLR, seeking an order directing attorneys for Plaintiff and both attorneys for the children to produce e-mail correspondence between themselves or Dr. K., and for Wife's attorneys to submit unredacted invoices. These combined motions (003, 004, and Husband's purported cross-motion to Wife's cross-motion) together comprised over forty documents on NYSCEF, not including voluminous briefing regarding the issue of attorney-client privileged communications. Husband has, in the meantime, accused all others of slowing down the case, driving up the costs of the case, and preventing a resolution of the case. The court continues towards the goal of assisting all parties to resolve the case, either through settlement or an expeditious trial.
This court forwarded the First Sebastian D. Letter to all counsel and pro se litigant in this case, specifically, to attorneys for Plaintiff, to Defendant pro se , and to both Attorneys for the Children. The court requested that the recipients notify the court and all parties "whether you consent or object to the request. And if there is an objection, please state your specific reasons for the objection." Attorneys for Plaintiff and Attorney for the Children B. and C. filed letters objecting to the filming [NYSCEF docs. 169-173, filed June 4, 2019].
Attorney for Child A. filed the instant motion, seeking an order "Restraining the parties and the news media from the use of any video or audio recording devices in the courtroom when the Court addresses the custody portions of the parties' matrimonial action, pursuant to NYCRR § 131.3, Domestic Relations Law § 235, Judiciary Law § 4, and applicable case law." [NYSCEF doc. 174 et al, filed June 4, 2019].
Defendant, pro se , filed a letter, stating his support for filming:
I support the application of [Organization 1], provided that
all filming be subject to a so-ordered written stipulation strictly prohibiting the use of our children's names, photos, likenesses, and voices.
I would also support changing the case caption to Anonymous v. Anonymous.
I also request that everyone cease referring to the children by their actual full
names in open court, or in their motion papers. I will abide by this rule too.
[NYSEF doc. 186, filed June 4, 2019].
The following day, June 5, 2019, the court received a second letter from Mr. Sebastian D. and/or [Organization 1] and/or [Organization 2] [the "Second Sebastian D. Letter," NYSCEF doc. 199]. In the letter, Mr. Sebastian D. replies to some of the objections raised by the attorneys, and offers at least some anonymity to the parties, as well as requests a new order from the court, which would require everybody not to mention the children's names, schools, or doctors in court:
If you judge it a prudent and necessary condition for granting us filming permission, we will even consent to provide significant anonymity to the parents. As a gesture of good faith, the [Organization 1] has already started referring to the case as Anonymous [* *] v. Anonymous [* *], and has removed the names of the litigants from past articles. If you consent to our filming request, and judge it necessary, we will also agree not to show the names or faces of the parents, allowing no possibility of anyone linking anything we produce to the subject-children. As has been done in other filmed court cases, we can show only the parents' hands and blur out their faces if they ever come into shot ...
We are anxious that future coverage of this case -- whether or not you grant our request to allow audio-visual coverage -- should make no mention of the children's names. To date, the attorneys, parents and you yourself have mentioned the kids'
names numerous times in open court. I thus request that you issue an order that none of the parties or attorneys make any mention of the children's names, schools, or doctors in either open court or papers filed with the court, and instead refer to them as ‘Subject-child 1, 2 and 3’, in order of age.
Second Sebastian D. Letter at 2, 3.
The Second Sebastian D. Letter does not provide a method for the court or parties to have any way of verifying or controlling the proposed alleged anonymity.
Both Sebastian D. letters appear to reference documents submitted throughout the case, information in the forensic report (although the forensic has not yet testified), appointment orders, motions in the case, as well as the fact that each of the Attorneys for the Children may have discussed the videotaping request with at least some of their clients, although not all of the allegedly factual information in the Sebastian D. letters is necessarily an accurate recitation of the record. Access to NYSCEF electronic filings in matrimonial cases in this County are restricted, much like paper filings with the County Clerk in a non-NYSCEF matrimonial case are, to only the attorneys in the case who affirmatively register for the NYSCEF matrimonial case and affirm their understanding of the applicable rules, pro se litigants who register for the case and affirm their understanding of the applicable rules, and certain limited number of court personnel. See D.R.L. § 235(1) ("An officer of the court with whom the proceedings in a matrimonial action ... are filed, or before whom the testimony is taken, or his clerk ... shall not permit a copy of any of the pleadings, affidavits, findings of fact, conclusions of law, judgment of dissolution, written agreement of separation or memorandum thereof, or testimony, or any examination or perusal thereof, to be taken by any other person than a party, or the attorney or counsel of a party, except by order of the court"), N.Y.C.R.R. § 202.5-b(k)(1) ("Submissions pursuant to e-filing procedures shall have the same copyright, confidentiality and proprietary rights as paper documents.") Mr. Sebastian D. is not a litigant or an attorney in the case with access to the file, and this court has not provided the matrimonial filings in this case to Mr. Sebastian D.. This case has been heard in open court, but at least some of the alleged facts in the two Sebastian D. letters appear to have come from either one of the parties or from the filings in the case. D.R.L. § 235 statutory prohibition on dissemination of matrimonial files, however, applies to court employees and not specifically to litigants. See, e.g., Tornheim v. Blue & White Food Prod. Corp. , 73 A.D.3d 747, 748, 901 N.Y.S.2d 307, 308 (2d Dept. 2010) (declining sanctions where corporate plaintiff obtained matrimonial files with consent from an ex-spouse). There has not been a request to stop either party from sharing or disseminating information about this case (other than the parents' mutual agreement not to discuss the action improperly with their children, recognizing, of course, that the children may ask either parent questions and the parents may respond reasonably and appropriately). Accordingly, the court is not suggesting that it was sanctionable for one of the litigants in this case to share information with Mr. Sebastian D.. The court, at this time, declines to discuss whether it was necessarily in the children's best interest to do so.
ANALYSIS
Audiovisual coverage in the courtrooms is covered in Civil Rights Law § 52, which "bans audiovisual coverage of most courtroom proceedings" (see Courtroom Television Network LLC v. State of New York , 5 N.Y.3d 222, 227—28, 800 N.Y.S.2d 522, 833 N.E.2d 1197 (2005) (upholding the constitutionality of the ban), Rules of the Chief Administrator of the Courts (22 NYCRR) part 131 (setting out the procedure for consideration of requests for audio-visual coverage, listing certain absolute prohibitions, and listing considerations and "special consideration[s]" that presiding justices are required to consider before granting permission), and 22 NYCRR § 29.1(a), N.Y. Ct. Rules § 29.1(a) (Rules of the Chief Judge ) (Electronic Recording and Audio-Visual Coverage in Court Facilities and of Court Proceedings, setting out factors to be considered before audio-visual coverage permission may be granted).
In relevant part, Civil Rights Law § 52 states:
No person, firm, association or corporation shall televise, broadcast, take motion pictures or arrange for the televising, broadcasting, or taking of motion pictures within this state of proceedings, in which the testimony of witnesses by subpoena or other compulsory process is or may be taken , conducted by a court ... in this state ...
Any violation of this section shall be a misdemeanor.
N.Y. Civ. Rights Law § 52 (emphasis added)
In 2005, Court of Appeals upheld this ban, explaining that there is no constitutional right to televise a trial, and that cases regarding open court are not relevant to questions of videotaping:
Though the public acquires information about trials chiefly through the press and electronic media, the press is not imbued with any special right of access. Rather, the media possesses the same right of access as the public so that they may report what people in attendance have seen and heard..... Civil Rights Law § 52 does not prevent the press, including television journalists, from attending trials and reporting on the proceedings. What they cannot do under the statute is bring cameras into the courtroom. This is not a restriction on the openness of court proceedings but
rather on what means can be used in order to gather news....
[In a "seminal" United States Supreme Court case, the Supreme] Court listed a number of concerns about the presence of cameras at the trial, including ...the impact on the truthfulness of the witnesses, responsibilities placed on the trial judge to assure a fair trial and the impact on the petitioner. The Court wrote, ‘A defendant on trial for a specific crime is entitled to his day in court, not in a stadium, or a city or nationwide arena.’...
The governmental interests of the right of a defendant to have a fair trial and for the trial court to maintain the integrity of the courtroom outweigh any absolute First Amendment or article I, § 8 right of the press or the public to have access to trials.
This Court has clearly and unequivocally held that the state constitutional right of the press to attend a trial is the same as that of any citizen. "The fact that petitioners are in the business of disseminating news gives them no special right or privilege, not possessed by other members of the public. Since the only rights they assert are those supposedly given ‘every citizen’ to attend court sessions ( Judiciary Law, § 44 ), they are in no position to claim any right or privilege not common to ‘every [other] citizen’ ". The ... press had no independent right to request that the courtroom remain open separate from defendant's right to make either a request for the court to remain open or closed....
[T]here is no additional or broader protection under [New York] State Constitution, article I, § 8,
than under the First Amendment insofar as access to court proceedings is concerned. Thus, we conclude that Civil Rights Law § 52 withstands state
Courtroom Television Network LLC v. State of New York , 5 N.Y.3d 222, 232—33, 800 N.Y.S.2d 522, 833 N.E.2d 1197 (2005) (internal citations omitted).
The court, accordingly, could not allow audio or videotaping of "proceedings, in which the testimony of witnesses by subpoena or other compulsory process is or may be taken, conducted by a court." N.Y. CIV. RIGHTS LAW § 52. The court notes that, as discussed in Courtroom Television decision, New York State had, from 1987 until 1997, an "experimental program in which presiding trial judges, in their discretion, [were allowed to] permit audio-visual coverage of civil and criminal court proceedings, including trials subject to certain conditions and restrictions." Courtroom Television , 5 N.Y.3d at 233—34, 800 N.Y.S.2d 522, 833 N.E.2d 1197, discussing Judiciary Law § 218. "On June 30, 1997, the Legislature and Governor allowed Judiciary Law § 218 to sunset. Thus, the ban on televised trials contained in Civil Rights Law § 52 resumed as of July 1, 1997, a ban which continues to the present. Despite the technological improvements to audiovisual equipment, which renders its presence in courtrooms less obtrusive, the Legislature has not seen fit since 1997 to amend section 52 or reenact section 218." Id. The court notes the history of § 218 only to set into context any 1987-1997 cases cited by the parties, counsel, or Mr. Sebastian D., which would no longer be applicable after the sunset of § 218, and this court could not now allow any audio or videotaping that his prohibited by New York Civil Rights Law § 52.
New York Civil Rights Law § 52 covers not only the actual testimony of witnesses, but also the proceedings in which "testimony is or may be taken." Id. For example, the Appellate Division, Third Department, granted an Article 78 petition to issue a writ of prohibition to a trial judge from allowing videotaping, stating that the trial judge had exceeded his statutory authority when the judge "too narrowly" interpreted Civil Rights Law § 52 as precluding audiovisual coverage only during the testimony of subpoenaed witnesses, and a writ of prohibition was necessitated by the possibility of "grave harm":
Despite that statute's clear prohibition of the use of cameras in any proceeding where subpoenaed witnesses may be called, ... [the trial judge] interpreted the words of that statute so narrowly so as to permit that which the Legislature has expressly forbidden. In so doing, [the trial judge] has acted in excess of his authority .... [T]he ruling impacts the overall fairness of petitioner's trial in a manner which will evade effective appellate review and in a manner which is expressly prohibited by the Legislature. As [the trial judge] has exceeded his authority, we must determine whether a writ of prohibition should be issued. Prohibition is required here because deprivation of a fair trial is a grave harm and petitioner cannot adequately address this issue on an appeal. It is undisputed that the right to a fair trial is paramount. Unfortunately, the extent to which cameras in the courtroom affect that right—including whether jurors will be unwilling to serve, witnesses reticent to testify, or attorneys prone to grandstanding —is unknown and largely unmeasurable. A criminal defendant cannot be expected to adequately show on appeal that he or she was prejudiced by such unmeasurable conduct. Because [the trial judge's] actions implicate petitioner's fundamental right to a fair trial in a way which cannot be adequately addressed on appeal, this Court will exercise its discretion in this action and grant the petition.
Heckstall v. McGrath , 15 A.D.3d 824, 826, 790 N.Y.S.2d 566 (3d Dept. 2005) (internal citations omitted; emphasis added).
The proscriptions of by New York Civil Rights Law § 52 greatly limit the types of court appearances that Mr. Sebastian D. could potentially be allowed to videotape, including, at the very least, any hearing or trial. It would also foreclose videotaping at court appearances where "testimony of witnesses by subpoena or other compulsory process is or may be taken." Id. Personal appearances in matrimonial cases in this Court are mandatory. See New York County Supreme Court, Civil Branch Rules of the Justices, Matrimonial Rule 24 ("Appearances at Conferences. Counsel and client must appear at the preliminary conference, all compliance conferences and the pre-trial conference. Failure to appear may result in costs or sanctions being imposed against the defaulting party.") Parties do not have the option to absent themselves from some of the appearances without facing costs or sanctions, which are somewhat similar to the risks of costs or sanctions for witnesses choosing not to respond to testimony subpoenas.
Neither Mr. Sebastian D. nor Defendant, who are both writing in support of videotaping in this case, presented the court with information about any matrimonial cases where videotaping was allowed after the 1997 sunset of Judiciary Law § 218. Nor is the court aware of any such cases. See, e.g. , Zappin v. Comfort , No. M-6527, 2016 N.Y. Slip Op. 67068(U), 2016 WL 962414 (1st Dept. Mar. 15, 2016) (denying leave to appeal filed by non-party pro se Sebastian D.) [NYSCEF doc. 192]. In non-matrimonial contexts, courts have allowed the possibility of videotaping of a criminal sentencing, as opposed to the criminal trial itself ( People v. Ashdown , 12 Misc. 3d 836, 838, 815 N.Y.S.2d 424 (Sup. Ct., Rensselaer Cty. 2006). The court does not decide whether videotaping could be permissible (although not required) under Civil Rights Law § 52 for non-trial status or compliance conferences because, even if videotaping were permissible at such conferences, in this case, the court declines to allow it, pursuant to broad powers under Rules of the Chief Administrator of the Courts (22 NYCRR) part 131, originally enacted when " Judiciary Law § 218 was in effect, [and] the court system itself exercised control over the means of access to proceedings made available to broadcast media under Rules of the Chief Administrator of the Courts (22 NYCRR) part 131." Courtroom Television , infra . Pursuant to Part 131.1, the trial judge has power and discretion to "control the conduct of judicial proceedings," and "No judicial proceeding shall be scheduled, delayed, reenacted or continued at the request of, or for the convenience of, the news media." Further, "all presiding trial judges ... shall take whatever steps are necessary to ensure that audio-visual coverage is conducted without disruption of court activities, without detracting from or interfering with the dignity or decorum of the court, courtrooms and court facilities, without compromise of the safety of persons having business before the court, and without adversely affecting the administration of justice." Part 131.1. Part 131 incorporates both the prohibition under Civil Rights Law § 52 ("Audio-visual coverage of proceedings in which the testimony of parties or witnesses by subpoena or other compulsory process is or may be taken is prohibited. (See , Civil Rights Law § 52.)" Part 131.1(b) and an additional prohibition "Audio-visual coverage of party or witness testimony in any court proceeding (other than a plea at an arraignment) is prohibited." Part 131.1(c).
Rules of the Chief Judge § 29.1(a), Electronic Recording and Audio-Visual Coverage in Court Facilities and of Court Proceedings, sets out factors to be considered before audio-visual coverage permission may be granted:
Taking photographs, films or videotapes, or audiotaping, broadcasting or telecasting, in a courthouse, including any court room, office or hallway thereof, at any time or on any occasion, whether or not the court is in session, is forbidden, unless permission of the Chief Administrator of the courts or a designee of the Chief Administrator is first obtained; provided, however, that the permission of the Chief Judge of the Court of Appeals or the presiding justice of an Appellate Division shall be obtained with respect to the court over which each presides. Such permission may be granted if:
(1) there will be no detraction from the dignity or decorum of the courtroom or courthouse;
(2) there will be no compromise of the safety of persons having business in the courtroom or courthouse;
(3) there will be no disruption of court activities;
(4) there will be no undue burden upon the resources of the courts; and
(5) granting of permission will be consistent with the constitutional and statutory rights of all affected persons and institutions.
Permission may be conditioned upon compliance with any special requirements that may be necessary to ensure that the above conditions are met.
22 NYCRR § 29.1(a), N.Y. Ct. Rules § 29.1(a)
Part 131.3 sets out a somewhat similar non-exclusive list of factors for consideration (emphasis added):
In determining an application for coverage, the presiding trial judge shall consider
all relevant factors, including but not limited to:
(1) the type of case involved;
(2) whether the coverage would cause harm to any
participant;
(3) whether the coverage would interfere with the fair administration of justice, the advancement of a fair trial, or the rights of the parties;
(4) whether the coverage would interfere with any law enforcement activity;
(5) whether the proceedings would involve lewd or scandalous matters;
(6) the objections of any of the parties, victims or other participants in the proceeding of which coverage is sought;
(7) the physical structure of the courtroom and the likelihood that any equipment required to conduct coverage of proceedings can be installed and operated without disturbance to those proceedings or any other proceedings in the courthouse; and
(8) the extent to which the coverage would be barred by law in the judicial proceeding of which coverage is sought.
The presiding trial judge also shall consider and give great weight to the fact that any party, victim, or other participant in the proceeding is a child .
Special consideration is required for cases, such as the instant case, which concern children: "Where the proceedings of which coverage is sought involve a child, a victim, or a party, any of whom object to such coverage, and in any other appropriate instance, the presiding trial judge may hold such conferences and conduct any direct inquiry as may be fitting." Part 131.3. Here, both Attorneys for the Children have strongly objected to video or audio coverage, and have affirmed that after appropriate conversations with their clients, their clients themselves directly object. [NYSCEF doc. 175 at ¶ 11 "I met and spoke with [Child A.], who adamantly opposes and audio/visual recordings of these custody proceedings"; NYSCEF doc. 170 at ¶ 8 "Nor can I support on her behalf any chance, no matter how remote, that [Child B.] — who is aware of and strenuously opposes the request of [Organization 1] — sees or is told by friends or contemporaries about published video clips of this proceeding addressing her emotional and cognitive issues."].
[Organization 1], however, has already started to discuss the children and their mental-health providers. Child A.'s attorney attaches a recent printout from [Organization 1]'s public Facebook page, which discloses the children's [alleged treating psychologists and psychiatrist by name], and cites the case name by the parents' initials and presiding Justice, and also includes the date of the hearing, alleged billing rates of the attorneys and the children's mental health providers, and an allegation that these individuals are being chosen to become rich from the families in court proceedings. [NYSCEF doc. 182 at 2, [Organization 1] Facebook page]. Setting aside whether any of the above names, rates, accusations, or alleged facts are accurate, they are a public statement by [Organization 1] that these children are allegedly seeing two psychologists and a psychiatrist.
Although [Organization 1] previously publicly referred to this case by the parties' actual last names [NYSCEF doc. 170], it now apparently uses the allegedly anonymous caption with their actual initials "Anonymous [* * redacted by the court] v. Anonymous [* * redacted by the court]" for this family. (See Second Sebastian D. Letter). Even if the prior public [Organization 1] postings citing the parties' actual names are somehow "scrubbed" from the internet, which is not clear, nevertheless, even the initials [* * redacted by the court], however, are sufficient to publicly identify this family: although matrimonial files themselves are confidential, this Court's judges' calendars are publicly available, listing party names, appearance dates, and attorneys. There are no other cases currently before Justice Hoffman with these initials, let alone any cases with those initials that also include attorneys cited in [Organization 1] Facebook post, so [Organization 1]'s "anonymous" caption provides no actual anonymity to the family, or to the children whose psychological and psychiatric treatments are being publicly disclosed by [Organization 1].
Attorney for the daughters, in his June 4, 2019 submission in opposition to the First Sebastian D. Letter's request to videotape the proceedings, attached the same public Facebook posting, except at that time, identifying the family by name [* * redacted by the court]. [NYSCEF doc. 170, [Organization 1] Facebook page.] As discussed supra note 1, even if Mr. Sebastian D. somehow "scrubbed" from the internet all of his prior public [Organization 1] postings citing the parties' actual names, nevertheless, [Organization 1]'s continued public use of the parties' initials [* * redacted by the court] is sufficient to identify this family, especially when court dates and presiding Justice's name are also included, and thus, it is sufficient to identity the children and [Organization 1]'s public discussion of their mental health services. Continued public disclosure may raise Health Insurance Portability and Accountability Act of 1996 (HIPAA) and privacy-rights concerns.
To the extent that any privacy or anonymity protections could have been possible at the outset of the case before starting any video-broadcast, they were not requested until well into the proceedings, after the matter was discussed in open court, after Defendant apparently discussed the case with Mr. Sebastian D. at least as far back as February 2019 [see NYSCEF doc. 193, [Husband's attorney's] invoice], after Sebastian D. attended several open court appearances, and after Mr. Sebastian D. wrote about the case on a public Facebook page, identifying the parties, attorneys, and the children's alleged mental health professionals by name. Now, this case is over one year old, there have been numerous public appearances, including those where Mr. Sebastian D. was present, all before he made his May 21, 2019 first request to videotape. The possibility that more detailed information about the parties' and the children's medical, emotional, cognitive, psychological, psychiatric, or safety issues could be publicly broadcast and made available on www.youtube.com, beyond just the [alleged] names of their treating mental-health professionals is not appropriate or acceptable.
Additionally, according to each party's statements of net worth, each parent's income from their joint business during the year of commencement was in the seven figures. Detailed public www.youtube.com discussion of the family's finances, including their names, addresses, and the children's schools, camps, or afterschool locations may create new dangers to the family and their children.
Both Mr. Sebastian D. and Defendant, who are writing in support of videotaping, concede that there are inherent privacy concerns in their combined requests that the court, parties, and counsel stop referring to the children by name, and by offering a switch to an anonymous caption. In this case, where there are three children, some of whom are seeing different doctors for different reasons, including for new and emergent issues, the court declines to require both parents and all counsel to divert their focus from those children's needs and to instead focus on an elaborate code for the three children's names (suggested as " ‘Subject-child 1, 2 and 3’, in order of age" in the Second Sebastian D. Letter) and some other (not yet suggested) alternate names for their numerous doctors and schools ("I thus request that you issue an order that none of the parties or attorneys make any mention of the children's names, schools, or doctors in either open court or papers filed with the court." Second Sebastian D. Letter at 3). To issue such an order for the purposes of facilitating videotaping would improperly "interfere" with the "advancement of a fair trial, or the rights of the parties." Part 131.3; see also 22 NYCRR § 29.1(a).
Even if the court were to issue orders requiring an anonymous caption and mandating the use of coded names for the parties, children, doctors, and schools, nevertheless, anonymity of video-broadcast proceedings is not actually possible with the advent of facial recognition technology. Any video or photograph of either parent on the internet would immediately "out" them, and with that revelation, it would make public all of the children's medical, emotional, educational, and mental health concerns and considerations discussed in court. As the United States District Court for the Northern District of California recently explained, as part of a decision certifying a class action against Facebook, Inc. regarding Facebook's "facial recognition technology," that technology already has the ability to recognize majority of faces, and the recognition rates are likely to improve as technology improves:
Briefly summarized, plaintiffs are Facebook users who challenge its "Tag Suggestions" program, which scans for and identifies people in uploaded photographs to promote user tagging.... The salient facts for class certification are undisputed.... In broad strokes, Tag Suggestions is powered by a four-step facial recognition process. Initially, the software tries to detect faces (the "detection" step) and standardizes any detected faces for qualities like orientation and size (the "alignment step"). For each face that is detected and aligned, Facebook computes a "face signature," which is a "string of numbers that represents a particular image of a face" (the "representation" step). Face signatures are then run through a stored database of user "face templates" to look for matches (the "classification" step). A face template is "a string of numbers that represents a boundary" between the face signatures of a given Facebook user and the face signatures of others, and is calculated based on that user's photographs. If a computed face signature falls within the boundary described by a user's face template, Facebook suggests tagging the user.... Facebook's facial recognition technology is reliable but not foolproof. Facebook estimates that 90% of
faces appearing in photographs are successfully detected, and of those detected faces, 85% are successfully aligned. That means approximately 76% of faces appearing in photographs reach the representation step and have face signatures computed. Facebook states that in 2014, it was able to match around 67% of detected faces with users, which somewhat understates current matches because the rate has risen as the technology has matured.
In re Facebook Biometric Info. Privacy Litig. , 326 F.R.D. 535, 541 (N.D. Cal. 2018).
Presumably, there are other facial recognition platforms, not only Facebook, any of which could, either now or in the future, identify these parties if they are videotaped, and therefore, identify their children. Both Sebastian D. letters cite to several (unrelated to this case) www.youtube.com postings by Mr. Sebastian D. or the organizations on whose behalf he writes. There does not appear to be an expiration date for the videos, nor is there a proposed "seal" date on the proposed video recordings in this case, if allowed. The video and audio, if allowed, could potentially remain available and publicly searchable throughout the parties' and their children's lives. This is not an acceptable risk. The presence of this risk would substantially interfere with the non-consenting party's and attorneys' abilities to prosecute their case. [See, e.g., NYSCEF doc. at 185 at 3-4, Memo of Law by Attorney for Child A. (internal citations omitted): "Allowing audio/visual coverage may impair the [Attorneys' for the Children] ability to provide meaningful representation. The role of the Attorney for the Child is to zealously advocate positions of the child or the children, not the parents. If audio/visual coverage is allowed during the custody proceedings, it may prevent the Attorneys for the Children in this matter from providing legal representation that the children deserve. It will undoubtedly influence the Attorneys for the Children's decisions as to ... what arguments should be made."]
The court notes that Mr. Sebastian D. makes an offer to videotape only the parties' hands, or to obstruct their faces if necessary. Mr. Sebastian D. does not propose a method by which either the court or the parties could ensure that this offer would be adhered to, either now or in the future, and that at no time during these children's lives would he (or anybody else who comes into possession of these tapes) release unredacted tapes. Accordingly, the offer neither promotes the parties' or their children's anonymity, nor actually assuages the concerns of witnesses, parties, or attorneys in the case to proceed unhindered. As Plaintiff's attorney points out, Mr. Sebastian D. was able to redact his prior public Facebook postings to switch old mentions of the family from [using their full names to just initials], which meant, at least to Plaintiff's attorney, that Mr. Sebastian D. would be able to change the caption back at a later time, as well.
The First Department recently re-iterated that the "press is not imbued with any special right of access, and while it possesses the same right of access as the public, it has no right to information about a trial that is greater or superior to that of the general public." Daily News, L.P. v. Wiley , 126 A.D.3d 511, 512, 6 N.Y.S.3d 19 (1st Dept. 2015) (upholding trial court's limitations on press access to certain portions of the trial). It is the court's duty both to "guarantee that the defendant receives a fair trial," and to "do so in a manner that balances the interests of the defendant, ... witnesses, attorneys and the public at large." Id.
There is no constitutional right to videotape or audiotape court proceedings, and there is an absolute prohibition against recording some court proceedings. This is balanced with the very serious interests of the non-consenting party, witnesses, attorneys, including attorneys for the children, and the children themselves, which interests the court is obligated to protect by prohibiting any videotaping or audiotaping of the proceedings or in the courtroom. Therefore, the court denies the video-taping and -broadcasting request, as prohibited in large part by Civil Rights Law § 52, and pursuant to 22 NYCRR part 131, 22 NYCRR § 29.1(a), N.Y. Ct. Rules § 29.1(a) because it would not be in the children's best interest since anonymity cannot be guaranteed, and because the parties' and attorneys' focus in court cannot be diverted from the children's complex and emerging mental health needs and towards the complicated "anonymity" protocol proposed by Husband and Mr. Sebastian D., and therefore, pursuant to Section 29.1, proposed videotaping and broadcasting would likely detract from the dignity and decorum of the courtroom, result in a disruption of court activities, and be against the best interests of the children and compromise their safety and the safety of other participants.
The court will, if Mr. Sebastian D. so desires, allow Mr. Sebastian D. to photograph the courtroom itself, without any individuals in the photograph (not staff, not litigants, not attorneys, not members of the public), as long as those photographs can be taken without greatly taxing the resources of this court (i.e., will not take an extraordinary amount of time or require any special set up).
Accordingly, it is
HEREBY ORDERED that the instant motion sequence 005 is GRANTED, and a protective order is hereby issued, as follows: all parties, counsel, and any member of the public attending open court in this matter may not use any video or audio recording devices in the courtroom during this case, may not broadcast, upload, disseminate, or share any video or audio recordings made of court proceedings in this action (including, if any such recordings were previously made, in violation of 22 NYCRR 29.1 ); and it is further
ORDERED that requests made in the First Sebastian D. Letter and the Second Sebastian D. Letter for permission "to film all upcoming court proceedings in the above-captioned case, from the next court date through the conclusion of trial" are DENIED; and it is further
ORDERED that Mr. Sebastian D. may photograph the courtroom itself, without any individuals in the photograph (not staff, not litigants, not attorneys, not members of the public), as long as those photographs can be taken without greatly taxing the resources of this court (i.e., will not take an extraordinary amount of time or require any special set up).
Any relief requested but not granted is denied.
This constitutes the decision and order of the court.