OPINION AND ORDER
Dеfendant 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 plaintiffs 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, deeр, 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 rеminds 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.) Plaintiffs 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
The Court notes that defendant made his previously private claim — that testimony given in his depоsition 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 frоm 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,
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,
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. Loussier,
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.,
In Topo, plaintiff non-citizen accused defendants of, inter alia, human trafficking, involuntary servitude, and false imprisonment.
In Flaherty v. Seroussi,
Finally, in Paisley Park Enterprises v. Uptown Productions,
The cases above are clеarly distinguishable from the case at hand. While defendant is correct that Mr. Wood’s statements support an inferential conclusion that he will disseminate Dunne’s videotaped deposition, the threat is surely not as prevalent as that in Flaherty where the court found good cause did not exist. {See Def.’s Mem. at 1-2.) Mr. Wood’s statements to the media seem to be on par with Mr. LiCalsi’s statements. {See Pl.’s Opp’n at 3-6.) As such, considering that both are officers of the Court and absent other evidence, the Court will assume that neither Mr. Wood nor Mr. LiCalsi has malicious or improper intentions regarding any of the discovery materials in this case. See Topo,
To that end, the Court is not convinced that the jury pool will be tainted if this protective order is not issued. As defendant’s motion papers leave much open for speculation, the Court assumes defendant fears that media misrepresentation of his videotaped deposition will taint the jury pool and deprive him of a fair trial. However, it is unclear how the media would create such an erroneous and lasting impression of Dunne. The most relevant case defendant cites is not on point. In United States v. Poindexter,
Because Poindexter seems inapplicable to the instant motion, the Court defers to the Second Circuit’s cogent view that publicity is unlikely to color incurably jurors’ views, even in the most high-profile cases. See In re NBC, Inc.,
B. The Countervailing Interest of Public Access in this Case Furthers the Court’s Finding of Failure to Allege Sufficient Good Cause
It is undisputed that, as of now, Dunne’s videotaped deposition is not a judicial record giving rise to the common law presumption of a public right to free access. See United States v. Amodeo,
However, as noted by plaintiff, this case is of public concern. Most persuasive to the Court is that Dunne has publicly accused Mr. Wood of bullying him during his deposition. (Dunne Aff. at 116.) More importantly, Dunne’s affidavit casts doubt on the reliability of his deposition testimony in total:
To the extent any statements made during my deposition testimony tends in any way to contradict what I have set forth in this affidavit, it was because I was fatigued, confused by what counsel for plaintiff Gary Condit was asking me, and feeling bullied by Mr. Condit’s counsel and the manner by which he asked his questions.
(Id.) In email correspondence between Mr. LiCalsi and Mr. Wood, Mr. LiCalsi also claimеd that Dunne’s testimony resulted from fatigue and confusion. (LiCalsi Aff., Ex. C.) In this regard, the videotape is of concern to “those monitoring the federal courts” because, coupled with the affidavit assertions, it implicates the reliability of discovery. and seemliness of lawyers’ deposition tactics. Amodeo II,
Also, the Court notes that the substantive issues in this litigation are also of public concern. Dunne made public statements regarding a then-sitting public official. Those statements directly addressed the propriety of Condit’s service as a United States Congrеssman. (Plaintiff Gary Condit’s First Amended Complaint at 20) (“And, you know, if it is indeed true that [Condit] is a welcomed guest at the Middle Eastern embassies, I mean what is a guy on the House Intelligence Committee doing at those embassies?”); see also Condit v. Dunne,
In this respect, Flaherty is distinguishable as the public officials involved were the defendants accused of wrongdoing. Therefore Flaherty’s reasoning does not serve as a lynchpin in the instant decision. However, that the Flaherty plaintiff alleged that then-sitting рublic officials engaged in wrongdoing does not negate the public concern in this case. Analogously, here, a then-sitting public official was accused of wrongdoing. More than mere celebrity interest is involved in this case. Contra Paisley Park,
In sum, defendant does not allege sufficient good cause to justify a bar on public dissemination of his videotaped deposition based on an alleged threat of embarrassment or jury tainting. This Court’s refusal to issue such an order is further supported by Dunne’s public accusation regarding Mr. Wood’s conduct during Dunne’s deposition and the effect of that conduct on the reliability of Dunne’s testimony. Finally, the Court notes the added public interest in this case; the statements at issue address the .propriety of a then-sitting United States Congressman in the discharge of his duties. Though the Court refuses to bar affirmatively public dissemination of Dunne’s deposition tape, as mentioned in the companion Order, the parties remain free to mutually consent to designate any information garnered through discovery as confidential pursuant to their July 12, 2004, Consent Protective Order Governing Confidential Information.
CONCLUSION
Defendant’s motion for a Protective Order bаrring public dissemination of the videotape transcript of Defendant Dominick Dunne’s September 29-30, 2004 deposition pursuant to FRCP 26(c) is hereby DENIED.
SO ORDERED.
Notes
. Peart v. City of New York,