A plaintiff in a fraud lawsuit against Mac Haik Ford placed a six-minute-long excerpt of a video deposition onto YouTube. The video clip included one of Mac Haik’s officers talking about which financing charges were customary and why it had not been fraud to include them in a contract.
I can’t post the YouTube link here (aren’t you disappointed?) because a Texas state county-court-at-law judge has ordered that the clip be taken down.
The judge concluded that, because the video and the deposition had not yet been filed with the court, they were not yet “public records” and thus couldn’t be posted. That seems like a puzzling ruling, although the sentiment is understandable. (( If the same deposition clip were chosen for broadcast on the local news, I can’t imagine that the trial judge would have stopped it. But this highlights how disruptive the new technology is. Anyone who can figure out how to encode their video (and it’s not hard) can “broadcast” to the whole planet at essentially no cost. ))
So, if the plaintiff ever does file the deposition with the court, we may get to see if a videographed deposition can compete with the campaign for free hugs, a three-year-old’s explanation of the plot of Star Wars, the OK Go music video on treadmills, or geography lessons from Miss Teen South Carolina.
Or maybe not. The defendant seems to think that only a whole, unexercepted (and thus longer than mere YouTube mortals are permitted to upload without special permission) video would be acceptable:
“If he chooses to publish [post on YouTube] the entire deposition under the proper circumstances … I wouldn’t have a reasonable objection if the entire deposition was published and it wasn’t altered,” says Robertson, a solo practitioner in Houston.
Funny. I suspect if someone tried to read that deposition whole to the jury, the defendant might find some reason to carve parts of it out as being misleading. Whatever the defendant’s objection to having discovery used this way, whether it’s “misleading” doesn’t seem like quite the right framework.
In this Google-driven world in which all data lives forever, there are strong reasons to hope that discovery materials will start to be classified as private by default until they are incorporated into an actual motion or are introduced as evidence. Perhaps this will be taken up eventually by the Texas Supreme Court’s rules advisory committee.