The Internet has invigorated questions about depositions which has laid fairly dormant for years: who “owns” a deposition video or transcript? Is it public record?
Ever considered posting a video deposition on YouTube? Is that allowed? A quick search suggests there’s more than two thousand video depos on YouTube.
We’re not impressed that these questions have been squarely answered but the Merrill Corporation has done a fairly tidy job summarizing the issue in their essay, “Is that Me on YouTube? Ground Rules for Access, Use and Sharing of Digital Depositions.”
We won’t summarize Merrill’s work but add these thoughts:
1. The Court likely does not “own” the deposition transcript/video but clearly has control over it.
2. Filing the transcript/video in the court file makes it public record. Filing it before using it elsewhere seems like a threshold step to avoid lengthy questions as to what is or is not public record.
3. I’m not impressed with the idea the court reporter owns the transcript. Again, there is little to no law on point but I think the requesting attorney hired the reporter for a job and gets the benefit of the work product. I also mention that, under FRCP 30(f)(3), the reporter can be ordered who can get a copy. That suggests the reporter plainly doesn’t own the transcript free and clear.
4. The question of the right to distribute seems to come down to (a) is it filed with the court, (b) is there a danger of impairing law enforcement or judicial efficiency, (c) privacy interest of those resisting disclosure, and (d) nature/degree of injury to party if information is released. Here in Florida, there is a trend towards more open invasive discovery and clamping down on the distribution of public record information seems counterculture to Florida legal theories and trends.
5. Merrill notes some interesting potential privacy violations if the transcript includes HIPAA, drug, alcohol or mental health treatment.
6. Merrill also casts a shadow over the practice of sharing expert deposition transcripts (for the reasons in #5) but cites no case or instance where that ultimately became a legal issue.
7. Suggestions? File the video or transcript with the court and, if you’re going to distribute on YouTube or elsewhere, consider distributing edited snipets.