When can a blogger recover a non-party's video testimony?

The Second Circuit has used a child abuse case to clarify the rules guiding when the district courts may release private information about non-party witnesses. The Court of Appeals rules in favor of the non-party witness, who fought to prevent the release of a video deposition in which he described how a former teacher had sexually abused him.

The case is Mirlis v. Greer, issued on March 3. The plaintiff sued his former teacher, Greer, for sexual abuse. The non-party witness, Hack, gave deposition testimony about the sexual abuse to which Greer had subjected him several decades earlier. Hack, now a teacher himself, did not want to testify at trial. He ran away from process servers when he was teaching a class, abandoning his students. Since he did not testify at trial, the jury saw portions of the video deposition. After the jury awarded the plaintiff $21 million in damages, a Connecticut blogger who'd been covering the case asked the district court to release the video deposition in its entirety. The district court granted that motion, but the Court of Appeals (Chin, Carney and Sannes [D.J.]) reverses.

In order to obtain records like this, they must be "judicial documents." The video deposition is such a document, defined as "any item entered into evidence at a public session of trial" except for matters entered under seal. Courts also presume that the public should have access to such documents, as "such access is critical" in "enabl[ing] the public to monitor the actions of the courts and juries." The hard question is how courts should balance the interest between public access and any countervailing interest, such as the privacy of third parties. The last major ruling on this final issue came in 1987, in the pre-Internet CBS case, 828 F.2d 958 (2d Cir 1987). While the district court agreed to release the video deposition on authority of the CBS case, the Court of Appeals says that was wrong.

The CBS case is different from this case. In CBS, the information was public and had already been publicized. In the Mirlis case, the video is personal in nature and, importantly for the Court of Appeals, the ubiquity of the Internet can result in this video remaining available forever. That changes the equation. The Court of Appeals believes the Connecticut blogger who wants this video has "unsavory motives" in seeking the video, and that his blog "demonstrate[s] considerable personality hostility" toward Greer and Hack, the witness, such that he may use the video to "humiliate and harass" Hack. The Court of Appeals clarifies that the motives of the individual seeking the judicial records is relevant to whether the trial court should release the information. As the Court finds the blogger has impure motives, that weighs heavily against releasing the video deposition. Hack's privacy interests were also improperly discounted by the district court.