-GWF Barket v. Clark, No. 2:2012cv00393 - Document 30 (D. Nev. 2013)

Court Description: ORDER Granting 26 Defendant's Motion for Protective Order in accordance with the foregoing provisions of order. Signed by Magistrate Judge George Foley, Jr on 02/21/2013. (Copies have been distributed pursuant to the NEF - AC)
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-GWF Barket v. Clark Doc. 30 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 8 9 10 11 12 STEVE BARKET, ) ) Plaintiff, ) ) vs. ) ) TOM CLARK aka TOM CLARKE, ) ) Defendant. ) __________________________________________) Case No. 2:12-cv-00393-JCM-GWF ORDER Motion for Protective Order (#26) 13 14 This matter is before the Court on Defendant’s Motion for Protective Order (#26), filed on 15 January 14, 2013 and Plaintiff’s Opposition to Defendant’s Motion for Protective Order (#28), filed 16 on January 28, 2013. The Court conducted a hearing in this matter on February 20, 2013. 17 BACKGROUND 18 Defendant Tom Clark seeks a protective order barring the Plaintiff Steve Barket from 19 posting the video recording or transcript of Defendant’s deposition on the internet and to preclude 20 Plaintiff from disseminating the video recording or transcript of Defendant’s deposition to third 21 persons. Defendant also requests an order prohibiting the Plaintiff from recording Defendant’s 22 deposition by any means other than by the authorized court reporter and videographer. 23 Plaintiff Steve Barket has sued Defendant Tom Clark for violation of 18 U.S.C. §1125(d), 24 the Anticybersquatting Consumer Protection Act, and 15 U.S.C. §1125(a) and §8131, the Lanham 25 Act. Plaintiff alleges that Defendant has wrongfully registered the domain names 26 <stevebarketexpose.com>, <stevebarketvegas.com>, and <stevebarketinfo.com> as well as the 27 email address <Stevebarket@aol.com>. Barket further alleges that his livelihood is reliant on the 28 internet and he earns a living through internet marketing and internet based reputation management. Dockets.Justia.com 1 Barket states that due to his profession, his name is well known on the internet and is therefore 2 highly valuable. Amended Complaint (#5), ¶¶ 8, 9. Defendant Clark has filed a counterclaim 3 against Barket in which Clark alleges that he runs a training program for various types of tactical 4 teams and security personnel. Clark also alleges that he consults with various movie makers and 5 television producers to provide expert information regarding military and security operations so 6 that the movies and television shows are technically accurate. Clark alleges “[t]hat in or about the 7 middle of 2011, Counterdefendant Barket began playing on the internet and on sites dedicated to 8 divulging sensitive information about Clark, his staff of advisors, and his clientele.” Answer and 9 Counterclaim (#8), ¶5. Clark also alleges that Barket posted information about Clark’s fiancé10 which resulted in her having to relocate for safety concerns. Clark alleges claims against Barket for 11 negligence, negligent infliction of emotional distress, interference with contractual relations and 12 with prospective economic advantage, defamation, and false light. 13 Plaintiff Barket previously noticed the video deposition of Defendant Clark for January 10, 14 2013. Defendant’s counsel requested that Plaintiff’s counsel stipulate that Plaintiff or his agents 15 would not post the video recording or transcript of Clark’s deposition on the internet. Plaintiff’s 16 counsel refused to so stipulate and the parties agreed to postpone Clark’s deposition pending a 17 decision on Defendant’s motion for protective order. Clark also alleges that Barket told him on 18 several occasions that he would post the video recording of the deposition on the internet. Motion 19 (#26), pg. 2. Defendant attached copies of statements that Barket allegedly posted on the internet 20 stating that he would love to see Clark in a deposition and that he “cannot wait to video tape Tom 21 Clarke’s deposition.” Id., Exhibit D. Plaintiff has not disavowed the intention to post Clark’s 22 deposition on the internet. 23 24 DISCUSSION Fed. R. Civ. P. 26(c) permits the court in which an action is pending to “make any order 25 which justice requires to protect the party or person from annoyance, embarrassment, oppression or 26 undue burden or expense” upon motion by a party or a person from whom discovery is sought. The 27 burden of persuasion under Fed. R. Civ. P. 26(c) is on the party seeking the protective order. 28 Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986). To meet that burden of 2 1 persuasion, the party seeking the protective order must show good cause by demonstrating a 2 particular need for the protection sought. Beckman Indus., Inc., v. Int’l. Ins. Co., 966 F.2d 470, 476 3 (9th Cir. 1992). Rule 26(c) requires more than “broad allegations of harm, unsubstantiated by 4 specific examples or articulated reasoning.” Id., citing Cipollone v. Liggett. “A party asserting 5 good cause bears the burden, for each particular document it seeks to protect, of showing that 6 prejudice or harm will result if no protective order is granted.” Foltz v. State Farm, 331 F.3d 1122, 7 1130 (9th Cir. 2003), citing San Jose Mercury News, Inc. v. District Court, 187 F.3d 1096, 1102 8 (9th Cir. 1999). 9 In Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199 (1984), a state trial court 10 entered a protective order that prohibited the defendant newspapers from publishing or 11 disseminating plaintiff’s financial information and donor names that were produced in discovery. 12 In support of the motion for protective order, plaintiff provided information regarding anonymous 13 threats or harassment that he and members of his organization had received as a result of 14 defendants’ publication of allegedly defamatory articles about the plaintiffs. In upholding the 15 protective order, the Supreme Court stated that it was important to recognize the extent of the 16 impairment of First Amendment Rights that the protective order may cause. The Court noted that 17 the defendants gained the information they wished to disseminate only by virtue of the trial court’s 18 discovery processes. The Court stated: 19 20 21 A litigant has no First Amendment right of access to information made available only for purposes of trying his lawsuit. (citation omitted) Thus, continued court control over the discovered information does not raise the same specter of government censorship that such control might suggest in other situations.” 104 S.Ct. at 2207. 22 23 The Court further stated that pretrial depositions and interrogatories are not public 24 components of a civil trial. Such proceedings were not open to the public at common law, and 25 depositions are generally conducted in private as a matter of modern practice. Id. at 2207-8. The 26 Court also noted that much of the information that surfaces during pretrial discovery may be 27 unrelated or only tangentially related to the underlying cause of action and therefore not admissible 28 at trial. Id. at 2208. 3 1 Federal district court decisions are divided on the question of whether a protective order 2 should be issued to prohibit the posting of a party’s deposition on the internet. In Larson v. 3 American Family Mut. Ins. Co., 2007 WL 622214, *1 (D.Colo. 2007), the court entered a 4 protective order that video depositions taken in the case not be publicly disseminated at any time, 5 except as to those portions of video depositions actually admitted at trial and which therefore 6 become part of the public record in the case. In so holding, the court echoed Seattle Times Co. v. 7 Rhinehart in stating that “[a] videotaped deposition is, by nature, information that would not 8 otherwise be obtained by opposing counsel, absent this litigation. It is, therefore, appropriate that 9 such information be limited to use in this lawsuit, if the Defendant can establish that other uses will 10 subject the deponents to annoyance, harassment and embarrassment.” See also Patterson v. Burge, 11 2007 WL 2128363 (N.D.Ill. 2007) (protective order entered barring the public dissemination of 12 deposition transcripts and videotapes). In Pia v. Supernova Media, Inc., 275 F.R.D. 559 (D.Utah 2011), however, the district court 13 14 denied the plaintiff/counterdefendant’s motion for protective order to prohibit the disclosure of 15 deposition transcripts and video recordings of depositions taken in the case. The plaintiff had sued 16 the defendant for defamation, including the allegation that defendant had published defamatory 17 information about the plaintiff on websites and through electronic media. Plaintiff argued that 18 defendant’s refusal to agree to a protective order against public dissemination of depositions 19 implied, at the very least, that defendant might use the depositions for purposes other than the 20 litigation, including publishing through electronic and other media. Id. 275 F.R.D. at 560. In 21 denying the protective order, the court distinguished cases, such as Paisley Park Enterprises, Inc. v. 22 Uptown Productions, 54 F.Supp.2d 347 (S.D.N.Y. 1999), where there was evidence that the 23 opposing party intended to publicize the movant’s deposition for commercial gain. The court 24 stated: 25 26 27 [T]here is nothing inherently oppressive in the dissemination of Pia’s deposition. In fact, several courts have noted that the sharing of depositions should be encouraged. Similarly, while dissemination of Pia’s deposition may cause him some level of discomfort, the court concludes that is not sufficient to support the entry of protective order. As Supernova argues, there is no legitimate concern that any 28 4 1 deposition in this case will be used for commercial or other private pursuits. 2 3 Pia, 275. F.R.D. at 561-62. 4 This Court respectfully disagrees with the analysis in Pia and finds Larson v. American 5 Family Mut. Ins. Co. to be more persuasive. The case cited by the Pia court, in support of the 6 statement that the sharing of depositions should be encouraged, involved the sharing of defense 7 expert witness depositions among different plaintiffs, in different courts, in different jurisdictions. 8 Burlington City Bd. of Educ. v. U.S. Mineral Products, 115 F.R.D. 188, 190 (M.D.N.C. 1987). 9 Burlington stated that the sharing of such depositions promotes speedy, efficient and inexpensive 10 litigation by facilitating the dissemination of discovery material necessary to analyze one’s case and 11 prepare for trial. Such laudatory purposes are not generally served, however, by the internet 12 publication of an individual party’s pretrial deposition concerning a discrete dispute between he 13 and another party. 14 Good cause for the issuance of a protective order in this case is supported by the fact that 15 the subject dispute concerns each party’s alleged improper use of the internet to harm the other. 16 Plaintiff’s alleged internet statements regarding his desire to take and see Defendant’s video 17 deposition also suggest that he may post that deposition or excerpts therefrom on the internet to 18 support his position in this case or to possibly make other criticisms or accusations against the 19 Defendant. Such postings will likely serve only to add fuel to the dispute between the parties. It is 20 also impossible to control the editing of such material by others once it has been posted. Defendant 21 also points out that public dissemination of his deposition prior to trial undermines the witness 22 exclusionary rule in Fed.R.Evid. 615 by giving potential trial witnesses access to Defendant’s 23 testimony prior to their own depositions or trial testimony. 24 Because depositions are information that the parties only obtain by virtue of the court 25 governed civil discovery process, it is appropriate to issue a protective order precluding the posting 26 of the parties’ depositions on the internet. This does not bar either party from disseminating or 27 publishing information obtained through means or sources other than the discovery process, 28 subject, of course, to laws governing defamation, copyright or other forms of protected information. 5 1 The Court also recognizes that Plaintiff may, at some future time, have reasonable grounds for 2 sharing Defendant’s deposition transcript with third persons. For example, if another person 3 alleges a substantially similar claim against Defendant Clark, his testimony in this case may be 4 relevant and discoverable for use in the other case. Such instances can, however, be dealt with on a 5 case-by-case basis without undue burden on either party in this action. 6 CONCLUSION 7 Based on the foregoing, the Court finds that good cause exists for entry 8 of a protective order that precludes either party1 from publicly disseminating, on the internet or 9 otherwise, the depositions of the parties taken in this action. This order does not preclude either 10 party from hereafter publishing deposition testimony that is admitted into evidence at trial and 11 thereby becomes part of the public record. The Court further orders that the depositions shall not 12 be disclosed to third persons who have no interest or involvement in this action, except as may be 13 authorized by future court order. The protective order applies to the parties, their agents, including 14 the parties’ counsel and counsel’s staff, and to the court reporters and videographers who record the 15 testimony. It is also ordered that the depositions shall not be recorded by any means other than by 16 the authorized court reporter and videographer. Accordingly, 17 18 IT IS HEREBY ORDERED that Defendant’s Motion for Protective Order (#26) is granted in accordance with the foregoing provisions of this order. 19 Dated this 21st day of February, 2013. 20 21 ______________________________________ GEORGE FOLEY, JR. United States Magistrate Judge 22 23 24 25 26 27 28 1 Although Plaintiff did not counter-move for such a protective order, the Court concludes that the same restriction should be imposed on the publication of Plaintiff’s deposition, if it is taken in this action. 6