Publicity Risk Associated With Lawsuits Continues To Increase

A recent article in the Denver Post ( brought to the forefront again the increased risk of adverse publicity that is associated with lawsuits in the age of the internet and social networking.  The article is a good reminder of how important it is for trial lawyers to pay attention to the possibility that documents and testimony provided during the course of lawsuits may be publicly used against clients, and to address that possibility before, during, and at the conclusion of lawsuits.

The Denver Post article addresses the practice of posting videotaped deposition excerpts on YouTube and similar sites, and quotes Boulder, Colorado attorney John Pineau as saying the practice “will change justice around the world.”  Of course, whether the ease with which depositions can be videotaped and posted online really will change the world, depends on whether the practice ultimately will be condoned by Courts.  Courts have, on occasion, required parties to lawsuits to remove posts of videotaped depositions (see, e.g., Forrest v. Citi Residential Lending, Inc., 73 So.2d 269 (Fla. Ct. App. 2011)), but the number of videotaped deposition excerpts available on YouTube shows that portions of many videotaped depositions end up widely viewed in the public domain.  The same is true of many documents obtained in discovery during lawsuits.

The technical ability to widely disseminate documents and deposition testimony, which historically were available only to those involved in a lawsuit and those who were willing to go to a courthouse and look through a specific court file, raises a number of issues, including: privacy issues; whether dissemination of deposition excerpts and documents constitutes the type of embarrassment or harassment prohibited by most court rules of procedure (see, e.g., C.R.C.P. 26(c)); and, whether dissemination of such information violates the Rules of Professional Conduct (see, e.g., Colo. R. Prof. Con. 3.6).  Accordingly, lawyers handling lawsuits and other disputes for clients should consider throughout their representation the implications associated with the potential of wide dissemination of documents and other discovery material, including excerpts of videotaped depositions.  As examples, lawyers should consider written agreements concerning the distribution of discovery material, protective or confidentiality orders, and confidentiality provisions in settlement agreements that govern the use of information, documents, and other material obtained during discovery.