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CONDIT v. DUNNE

December 15, 2004.

GARY CONDIT, Plaintiff,
v.
DOMINICK DUNNE, Defendant.



The opinion of the court was delivered by: PETER LEISURE, District Judge

OPINION AND ORDER

Defendant Dominick Dunne brings this motion for a protective order barring public dissemination of the videotape transcript of defendant Dunne's September 29-30, 2004 deposition pursuant to Federal Rule of Civil Procedure ("FRCP") 26(c). Defendant does not seek to protect the written transcript, but limits his motion to the videotape only. This Opinion and Order accompanies this Court's December 8, 2004 Opinion and Order ("companion Order"), which granted in part and denied in part defendant's motion to compel discovery, and wholly denied plaintiff's cross-motion for protective order. The facts of this case are detailed in the companion Order, familiarity with which is assumed. This Court heard oral argument from both parties on this issue on November 4, 2004.

  STATEMENT OF FACTS

  The facts with respect to the instant motion are as follows. Defendant claims an order of protection is necessary to bar plaintiff from using the videotape transcript of defendant's deposition to embarrass Dunne, deprive him of a fair trial, and taint the potential jury pool. (Defendant Dominick Dunne's Memorandum of Law in Support of Defendant's Motion for Protective Order ("Def.'s Mem.") at 1.) Defendant states that plaintiff counsel L. Lin Wood, Esq.'s statements to defense counsel, Paul V. LiCalsi, Esq., and to the New York Post constitute a threat to improperly disseminate the videotape transcript. (Id. at 1-2). On October 4, 2004, the New York Post reported Mr. Wood's statements that Dunne was in "deep, deep, trouble" as a result of his deposition testimony and that the "transcript will be interesting, but the video will be even more interesting." (Id. at 1-2.) Further, in an email correspondence with defense counsel, Mr. Wood stated that "when the public learns of Mr. Dunne's testimony, whatever reputation he enjoyed will be lost forever in my opinion." (Id. at 2.) Mr. Wood responds that his statement to Mr. LiCalsi and the New York Post were taken out of context, in that they were made when Mr. LiCalsi had designated the entire deposition, written and visual, as confidential. Further, Mr. Wood reminds the Court that his statement regarding Dunne's reputation was made in a private email and would not have affected the public perception of Dunne had it not been made public by defendant's instant motion. Mr. Wood avers that Mr. LiCalsi and Dunne have also "tried this case in the press," pointing specifically to defense counsel's statement, appearing in the New York Post on September 13, 2004, that plaintiff Condit "murdered his own reputation before Dominick Dunne made any of the statements that are at issue in this lawsuit," and Dunne's references to this lawsuit in his Vanity Fair article. (Plaintiff Gary Condit's Memorandum of Law in Opposition to Defendant's Motion for Protective Order ("Pl.'s Opp'n") at 5.) Plaintiff's counsel represents that he has no intention to embarrass Dunne but believes the videotape speaks for itself and will most likely embarrass Dunne on its own. (Affidavit of L. Lin Wood, Esq. in Support of Pl.'s Opp'n ("Wood Aff.") ¶¶ 5, 8.) Moreover, plaintiff argues defendant's accusations, even if true, do not constitute good cause to seal the video, because, given the public accusations and public figures at issue in this case, the public has a right to hear and see the whole truth. (Pl.'s Opp'n at 10-11.) Finally, plaintiff asserts that defendant and Mr. LiCalsi should not be allowed to represent that Dunne's deposition testimony resulted from fatigue, confusion, and Mr. Wood's allegedly bullying questioning style without the public being allowed access to the tape. (Id. at 10-11.)

  The Court notes that defendant made his previously private claim — that testimony given in his deposition resulted from confusion, exhaustion, and Mr. Wood's bullying questions — public through affidavits submitted to this Court for review on the instant motion and the companion motion. (Supplemental Affidavit of Rachel G. Balaban, Esq. in Support of Defendant Dominick Dunne's Motion to Compel Discovery and for Court Supervision of Plaintiff Gary Condit's Deposition ("Balaban Aff."), Exhibit 2, Affidavit of Dominick Dunne ("Dunne Aff.") at ¶ 6; Affidavit of Paul V. LiCalsi, Esq. in Support of Defendant Dominick Dunne's Motion for Protective Order ("LiCalsi Aff."), Exhibit C, October 1, 2004 Email from Mr. LiCalsi to Mr. Wood ("Ex. C") ("I believe, [Dunne] was exhausted and confused at times [during his deposition]."); see November 4, 2004 Oral Argument Transcript ("Oral Argument Tr.") at 47.)

  DISCUSSION

  Disappointingly, and despite this Court's encouragement, the parties have been unable to resolve this discovery dispute absent Court intervention. As this Court has previously stated:
The discovery provisions of the Federal Rules of Civil Procedure are "designed to achieve disclosure of all the evidence relevant to the merits of a controversy." Discovery is meant to proceed "at the initiative of the parties, free from the time-consuming and costly process of court intervention." Nevertheless, Fed.R.Civ.P. 26(c) provides for judicial intervention in the discovery process.
Spring Valley Water Co. v. Cosco Indus., No. 91 Civ. 0410, 1992 U.S. Dist. LEXIS 223, *7 (S.D.N.Y. 1992) (Leisure, J.) (citing Daval Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1365 (2d Cir. 1991) (quoting Thomas E. Hoar, Inc. v. Sara Lee Corp., 882 F.2d 682, 687 (2d Cir. 1989)); see, eg., Loussier v. Universal Music Group, 214 F.R.D. 174, 175 (S.D.N.Y. 2003) ("[T]he Court notes that the course of discovery thus far has been quite contentious between the attorneys, and the Court has been inundated with letters from both sides on discovery matters which, in a more perfect world, would have been worked out between the parties without the Court's intervention.").*fn1 So too, have the parties here inundated the Court with letters regarding discovery matters that seem to the Court to be best resolved by the parties. However, when litigation reaches such an impasse as it has here, the Court must exercise its discretion under the Rules to aid in efficient and expeditious discovery.

  FRCP Rule 26(c) governs defendant's motion and provides that a court may issue a protective order when, for good cause shown, the order is required by justice to protect the party from annoyance, embarrassment, or oppression. Fed.R.Civ.P. 26(c). The order may be limited to requiring that "the discovery may be had only by a method of discovery other than that selected by the party seeking discovery." Fed.R.Civ.P. 26(c)(3). Under this Rule, the burden is on movant to show good cause for barring public dissemination of discovery materials. Loussier, 214 F.R.D. at 176-77.

  The Second Circuit will not disturb the district court's decision either granting or denying an order of protection unless the district court clearly abused its discretion. Dove v. Atl. Capital Corp., 963 F.2d 15, 19 (2d Cir. 1992) ("The grant and nature of protection is singularly within the discretion of the district court and may be reversed only on a clear showing of abuse of discretion.") (citing Galella v. Onassis, 487 F.2d 986, 997 (2d Cir. 1973); Penthouse Int'l, Ltd. v. Playboy Enter., 663 F.2d 371, 391 (2d Cir. 1981)); see Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984) ("Rule 26(c) confers broad discretion on the trial court" because "[t]he trial court is in the best position to weigh fairly the competing needs and interests on parties affected by discovery.").

  At first blush, the requirement that movant show "good cause" under Rule 26(c) appears clear. However, as evidenced by this Court's review of the relevant case law and the parties' contradictory moving papers, whether a movant has demonstrated good cause is an "unusually fact-sensitive" inquiry. Michael Hoenig, Protective Confidentiality Orders, N.Y.L.J., Mar. 5, 1990, at 6. Perhaps due to the broad discretion afforded the trial court, as cited above, and the affect of a highly fact-contingent decisionmaking process, the Court finds it challenging to harmonize the case law in this area. This District has held that movant's burden requires him to cite "specific examples or articulated reasoning" in support of his order of protection. Louissier, 214 F.R.D. at 177 (Ellis, Mag. J.) (citing Akron Beacon Journal v. Metro. Life Ins. Co., No. 94 Civ. 1402, 1995 U.S. Dist. LEXIS 5183, *10 (S.D.N.Y. Apr. 20, 1995). However, this District has also held that specific examples are not necessary and movant need only allege "sufficient good cause." Topo v. Dhir, 210 F.R.D. 76, 77-78 (S.D.N.Y. 2002) (Ellis, Mag. J.) (Only a "showing of good cause is required to grant this order without the specificity required by Cipollone[v. Liggett Group Inc., 785 F.2d 1108, 1121 (3d Cir. 1986)), vacated on other grounds, 167 F.Supp.2d 606 (S.D.N.Y. 2001)].") (citing Dove, 963 F.2d at 19; Penthouse Int'l, 663 F.2d at 391; Gillette Co. v. Philips Oral Healthcare, Inc., No. 99 Civ. 0807, 2001 U.S. Dist. LEXIS 18624, *3 (S.D.N.Y. Nov. 9, 2001)). Magistrate Judge Ellis' offered explanation in Topo for this discrepancy was that specificity is required of movants alleging that public dissemination threatens movants with economic injury. However, both Topo and Louissier involved proposed non-economic uses of discovery related materials, yet held movant to differing standards. Compare Topo, 210 F.R.D. at 78 ("The majority of courts within this district have only used the specificity requirement of Cipollone when dealing with protective orders seeking to prevent injury to business.") with Louissier, 214 F.R.D. at 177 (finding that plaintiff had "no intention to make commercial gain from the use of the depositions," but requiring movant to meet a specificity standard). Though the case law is muddled, the Court is persuaded that defendant fails to allege sufficiently good cause for sealing the videotape transcript of his deposition testimony, with specificity or otherwise. The Court finds no case law that would support sealing the video under the facts of this case; therefore, the Court finds that movant has failed to satisfy either standard.

  A. Dunne Has Not Sufficiently Alleged Potential Embarrassment or Jury Tainting as Good Cause for Sealing the Video Tape

  Dunne alleges that Mr. Wood's statements to the press and to Mr. LiCalsi constitute a threat that Mr. Wood will use the Court's processes to further "private spite or public scandal." Nixon v. Warner Communications, Inc., 435 U.S. 589, 598, 603 (1978); see Defendant Dominick Dunne's Reply Memorandum in Support of Defendant's Motion for Protective Order ("Def.'s Reply") at 2-3. Defendant argues that, because "the potential for abuse of procedure is high, the Court can and should act within its discretion to limit the discovery process." Topo, 210 F.R.D at 78; Def.'s Reply at 3. However, after a review of the case law in this Circuit, the Court finds that the threat alleged here does not rise to the level of good cause sufficient to justify barring public dissemination of the videotape.

  In Topo, plaintiff non-citizen accused defendants of, inter alia, human trafficking, involuntary servitude, and false imprisonment. 210 F.R.D. at 77. Facing these very serious claims, defendants sought to discover plaintiff's immigration status. The Court, while refusing to find malicious reasons underlying defendants' discovery request, did find that, because plaintiff's immigration status was collateral to the litigation, defendants' interest in liberal discovery did not outweigh the "danger of intimidation [that] would inhibit [non-citizen] plaintiffs in pursuing their rights." Id. at 78 (citing Zeng Liu v. Donna Karan Int'l, Inc., 207 F. Supp. 2d 191, 193 (S.D.N.Y. 2002)). Thus, in Topo, Judge Ellis found good cause for limiting discovery where the danger was that plaintiff would be effectively barred from bringing her claim if defendants were allowed to discover her immigration status.

  In Flaherty v. Seroussi, 209 F.R.D. 295 (N.D.N.Y. 2001), the court found movant failed sufficiently to allege good cause and deemed a protective order inappropriate for defendant Mayor's videotaped deposition where the underlying litigation alleged improper official action. There, plaintiff's counsel, in opposing the protective order, directly stated that he "relishes the opportunity to question [the Mayor and is] going to concentrate [his] efforts on knocking Mayor Seroussi's teeth down his throat." Id. at 298 (internal quotations and citation omitted). Further, in Flaherty, plaintiff's lawyer was adamant about his "intention to publicize the Mayor's deposition, championing `the rights of the citizens.'" Id. Despite this guarantee of imminent public dissemination, the court refused to apply a protective order ...


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