Opinion
Civ. No. 99-2227-GTV.
February 9, 2000.
MEMORANDUM AND ORDER
This matter is before the Court on two motions of Defendants for protective orders pertaining to the deposition of Defendant Michael Merriam (doc. nos. 69 and 76). Defendants object to the dates for which Plaintiff has noticed the deposition and to Plaintiff's stated intention to videotape the deposition.
Plaintiff, who is appearing pro se, and Mr. Merriam's counsel have both orally indicated to the Court that they have reached an agreement that the deposition may take place on February 11, 2000. Thus, to the extent that Defendants' Motions for Protective Order seek to reschedule the deposition, the Motions are moot and will be denied.
The Court will next consider whether Plaintiff should be allowed to videotape the deposition.
Federal Rule of Civil Procedure 30(b)(2) specifically permits depositions to be recorded by non-stenographic means, unless the court orders otherwise. As the Advisory Committee Notes to the 1993 Amendment to Rule 30(b)(2) indicate, the Rule now "confers on the party taking the deposition the choice of the method of recording." The Rule was amended to permit videotaped depositions as a matter of routine "in recognition of the fact that videotapes are a means of presenting deposition testimony to juries that is superior to readings from cold, printed records." Paisley Park Enterprises, Inc. v. Uptown Productions, 54 F. Supp.2d 347, 349 (S.D.N.Y.). Under the amended Rule, a party has no burden to justify the decision to videotape the deposition. Wilson v. Olathe Bank, 184 F.R.D. 395, 397-98 (D.Kan. 1999).
The Advisory Committee Notes recognize that objections to the non-stenographic recording of a deposition, "when warranted by the circumstances," may be presented to the court under Fed.R.Civ.P. 26(c). That rule authorizes protective orders against annoyance, embarrassment, oppression, and undue burden or expense. The party seeking to prevent the videotaping has the burden to show that one or more of the above reasons exist. Wilson, 184 F.R.D. at 397-98.
Defendants argue that the deposition should not be videotaped because Plaintiff "plans to use this litigation process to create some documentary that plaintiff is trying to advertise and sell under the auspices of the first amendment." Defendants' Memorandum in Support of Motion for Protective Order (doc. 70) at 2. Defendants attach to their brief a "National Publication Announcement" which appears to be an advertisement soliciting orders for a documentary that "chronicles the all out war in court by CBS affiliate WIBW-TV to kill and conquer free speech and the First Amendment." The documentary is advertised for sale at the price of $199.99. Defendants also submit correspondence from Plaintiff to the Court in which Plaintiff states that "[o]ne of the most important television documentaries ever produced will be released following this trial. . . ."
Plaintiff does not dispute that he prepared either the letter or the announcement. Nor does he attempt to dispute Defendants' contention that Plaintiff plans to use the deposition for purposes other than this litigation. He does, however, argue that Mr. Merriam is a public figure and that the Court "should not formulate any special orders to hide Merriam's deposition from public view." Plaintiff's Objection to Motion for Protective Order (doc. 74) at 2.
As recognized in Paisley Park Enterprises, supra, the Rule's provision for videotaped depositions was not intended to further a party's commercial goals or private pursuits or "to be a vehicle for generating content for broadcast and other media." 54 F. Supp.2d at 349. As Paisley Park Enterprises also recognized, courts must be vigilant to ensure that its processes are not used improperly for purposes unrelated to their role. Id.
Based on the record before it, the Court finds there is some likelihood that Plaintiff intends to use the videotaped deposition of Mr. Merriam for purposes unrelated to the resolution of this lawsuit and even for some commercial or personal financial gain. The Court therefore holds that Mr. Merriam should be afforded some protection under Fed.R.Civ.P. 26(c) against the potential improper use of his deposition. The Court will not, however, prohibit Plaintiff from videotaping the deposition. Rather, the court will fashion safeguards to ensure that the videotape will be used solely for purposes of the lawsuit. See Paisley Park, 54 F. Supp.2d at 349-50 (refusing to ban videotaping of the deposition but ordering parties to select a neutral custodian to take possession of the original videotape and prohibiting any copies of the videotape from being made).
Accordingly, the Court will allow the deposition of Mr. Merriam to be videotaped subject to the following conditions:
1. The original videotape and any copies made shall be used solely for purposes of this litigation.
2. Each party will be entitled to one copy of the videotaped deposition. No other copies shall be made without further order of the Court.
3. No persons shall be permitted to view the videotaped deposition except for the following: the Court and the jury hearing this case, and any person in attendance at the trial or any hearing at which the videotaped deposition is played; the Parties; the Parties' counsel; persons in the regular employ of the Parties's counsel who are assisting the Parties' counsel in this lawsuit; experts and consultants and their associates who are not in the employ of the Parties or the Parties' counsel and who have a need to view said deposition to assist the Parties and/or their counsel in this case.
To summarize, the Court denies as moot Defendants' Motion for Protective Order (doc. nos. 69 and 76) to the extent they seek to reschedule the deposition of Defendant Michael Merriam. The Court denies Defendants' Motions to the extent they ask the Court to prevent Plaintiff from videotaping the deposition, but grants the Motions to the extent they ask the Court to provide safeguards to prevent Plaintiff from improperly using the videotaped deposition. Plaintiff may videotape the deposition of Michael Merriam only under the conditions set forth herein.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 9th day of February 2000.
cc: All counsel and pro se parties.