Deposition transcripts, like other pretrial discovery materials, do not become public records until they’re filed with the court. Before they are filed with the court, they routinely dwell in obscurity, shielded from public view in locked filing cabinets and on law firm and court reporting agency computer networks.
That’s the way litigators like it. Pretrial discovery is most efficient when treated as a private matter among litigants, conducted in law offices and conference rooms by parties and their counsel.
But exceptions arise occasionally: cases in which the public and news media have a legitimate interest in learning what was discussed during a deposition. There’s also the not insignificant number of high-profile cases in which a lawyer or a party — or someone else — sees some advantage in sharing with the public embarrassing information captured on a deposition transcript or deposition video recording.
Consider, for example, these recent events:
The allegedly unlawful leaks of depositions in the Maxwell and Cosby cases contributed, in part, to criminal prosecutions and prison terms for both individuals.
So, what can litigators do to prevent potentially damaging deposition transcripts from seeing the light of day? Quite a bit, as it turns out. Here are four main strategies for dealing with the problem of leaked deposition transcripts.
1. Depose Judiciously and Discreetly
Depositions do not create a record on the court’s public-facing docket. Notices of deposition are communicated only among counsel and the parties, providing another reason why third parties would not ordinarily be aware of the possible existence of deposition transcripts. The names of parties or witnesses who have been, or will be deposed, should not be mentioned in court filings without a good reason to do so. Similarly, there is no need to publicize depositions (or any other pretrial discovery matters), either on social media or in public relations campaigns that might accompany the litigation.
2. Abide by Professional Ethics Rules
Professional ethics codes in both the legal profession and the court reporting industry should ensure that sensitive information in deposition transcripts is not made public without good reason.
Several ethical obligations create a duty for lawyers to prevent unauthorized parties from accessing deposition transcripts.
The first ethical duty implicated in the safeguarding of deposition transcripts is the duty of competence found in Rule 1.1 of the Model Rules of Professional Conduct. To competently represent a client involved in civil litigation, a lawyer must be able to responsibly engage in the discovery process, which requires an attorney to safely maintain and securely transmit confidential materials. In modern, technology-dependent law practices, professional competence demands that lawyers take reasonable measures to secure deposition transcripts wherever they reside. This duty necessarily includes careful consideration of vendor data security practices in the selection of court reporting agencies.
The ethical duty of competence extends even to discovery materials produced by other parties. The ethical duty of competence forbids lawyers from carelessly allowing deposition transcripts to fall into the hands of third parties, and it obliges them to appreciate the ways that modern information technology can be used to steal confidential information with no more than a mouse click.
In an egregious case where the leak of a deposition transcript compromises the integrity of a judicial proceeding, the culpable lawyer’s behavior may amount to sanctionable misconduct, in violation of Rule 8.4 of the Model Rules of Professional Responsibility.
Finally, Rule 5.1 of the Model Rules of Professional Conduct makes clear that a lawyer with managerial responsibilities is liable for ethical lapses of direct reports — lawyers or staff — in his or her law firm.
Court reporters also have ethical and legal responsibilities to safeguard deposition transcripts. Generally speaking, the court reporting community treats deposition transcripts as confidential so long as they have not been filed with a court by one of the parties in the litigation. Advisory Opinion 9, published by the National Court Reporters Association, states that “any information entrusted to the reporter will be kept confidential until the parties themselves decide to make the deposition a public document.”
3. Obtain a Protective Order
The third line of defense against deposition transcript leaks is the protective order. Available in both federal and state courts, litigants can invoke the trial court’s authority to shield pretrial discovery materials from public view upon a showing of good cause. In the federal system, for example, Rule 26(c) of the Federal Rules of Civil Procedure authorizes the trial court to enter a protective order if it can be shown that the release of the information will lead to “annoyance, embarrassment, oppression, or undue burden or expense.” Protective orders frequently place limits on a lawyer’s ability to share discovery materials.
A well-written and legally justifiable protective order will, in most cases, shield pretrial discovery materials from public view, even in cases where the public arguably has a limited right to know about the judicial proceeding. In Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), the U.S. Supreme Court upheld the constitutionality of a Rule 26 protective order that prohibited a newspaper from disseminating pretrial discovery materials generated in a libel lawsuit, ruling that the order did not violate the First Amendment. The high court noted that “pretrial depositions and interrogatories are not public components of a civil trial. Such proceedings were not open to the public at common law, and, in general, they are conducted in private as a matter of modern practice.”
Protective orders can be highly effective in preventing parties and their lawyers from leaking pretrial discovery materials to the public. The combination of professional ethics rules and protective orders will create a strong deterrent against unauthorized leaks of deposition transcripts.
4. Seek Permission to File Under Seal
Finally, in cases in which sensitive discovery materials must necessarily be filed with the court, a party can request that the motion and supporting materials be filed under seal. A request to file documents under seal requires the court to balance the asserted interest in secrecy (e.g., national security, protection of proprietary information, protection of personal identifiers, protection of witness names) against the public’s qualified right of access to judicial proceedings.
Deposition transcripts can be protected by a sealing order. With a sealing order in place, the court clerk will store the sealed records — regardless of whether they are on paper or in electronic format — separately from the public case file.
Courts are more likely to protect with a sealing order discovery materials filed in support of discovery-related motions than discovery matters filed in support of nondiscovery pretrial motions because the presumptive right of access to court materials does not, generally speaking, attach to discovery-related matters. See e.g., Leucadia Inc. v. Applied Extrusion Techs. Inc., 998 F.2d 157 (3d Cir. 1993).
Privacy-minded litigants may find, however, that a sealing order is not easy to obtain. The sealing of court records is a drastic measure that is not considered appropriate if intended merely to protect a party from embarrassment.
The Imperative to Protect Sensitive Information
In this day and age, when anybody can publish anything on the internet, the need to take effective measures to protect embarrassing or confidential information surrendered during the pretrial discovery process is critical to the task of protecting the client’s best interests. Protective orders, legal ethics (including the thoughtful selection of third-party vendors), and professional judgment provide the necessary tools to fight back, provided that lawyers have the foresight to use them.
