(left Column/point) an Open Democracy Is a Healthy Democracy

• Publication year: 2014
• Pages: 55
• Citation: Vol. 43 No. 2 Pg. 55

43 Colo.Law. 55 (Left Column/Point) An Open Democracy is a Healthy Democracy Vol. 43, No. 2 [Page 55] Colorado Bar Journal February, 2014

By John K. Pineau

Point/Counterpoint: YouTube Law—When Depositions Go Viral

(Left Column/Point) An Open Democracy is a Healthy Democracy

Point/Counterpoint articles provide an open forum for the expression of ideas and address issues that are substantially related to the law, to the practice of law, or to lawyers (not matters of general interest). Any CBA member wishing to submit a Point/Counterpoint article should work with another CBA member to provide a companion article that argues for a significantly different conclusion. For further information and writing guidelines, to discuss topics in advance, or to get help finding someone to write an opposing viewpoint, contact Point/Counterpoint Coordinating Editor Fred Burtzos at fred.burtzos.gdzO@statefarm.com.

John K. Pineau is a trial lawyer in civil and criminal courts. He has handled a number of high-profile cases and lectures on trial tactics and strategy. He also is the president of JusticeTV, LLC, a company that assists lawyers and their clients in creating and sharing public record videos—(303) 440-4444, johnpineau@yahoo. com, www.johnpineau. com.

Nazi Hermann Goering is on YouTube at his 1946 trial in Nuremburg testifying about the necessity of concentration camps.^[1] Charles Manson is on the Internet discussing his 1970 murder trial.^[2] F. Lee Bailey's powerful 1995 cross-examination in the 0. J. Simpson trial is on the Web.^[3] The thoughtful testimony of Bill Gates is posted from a 1998 video deposition.^[4] Bill Clinton's 1998 attempts to weave through a deposition are uploaded.^[5] Andrew Fastow's admission to Enron fraud in 2006 is posted throughout the Internet.^[6] The 2011 video deposition of Tony Hayward, nervous CEO of British Petroleum, also is preserved for us online. And there are thousands of other public court records and depositions available at the click of a few keystrokes.^[7]

Court records are public records, particularly after the trial is over. They are reviewed by us, and shared in books, studies, newspapers, television, and the movies. For centuries, these records have been open to the public, and for decades, they have included video exhibits and depositions. Public access is an accepted part of our constitutional plan for an open democracy. That venerable principle is being advanced by citizens who are securing their court files in cases that expose community hazards and then sharing the facts with the public on the Internet.

This practice is a growing pain for those who endanger our safety. Wayward corporations, and the insurance companies who represent them, expect that after trial, the court records of their misconduct will be forgotten, buried in a courthouse cellar, and covered with a sleepy layer of dust. Instead, these records are being uploaded so that the evidence is available to the public. The move is to openness and accountability—two necessary components of a healthy democracy.

The Public's Right to Access Case Records

U.S. Circuit Court Judge Frank Easterbrook wrote in Union Oil Company of California v. Leavell:

People who want secrecy should opt for arbitration. When they call on the courts, they must accept the openness that goes with subsidized dispute resolution by public (and publicly accountable) officials. Judicial proceedings are public rather than private property and the third-party effects that justify the subsidy of the judicial system also justify making records and decisions as open as possible. What happens in the halls of government is presumptively public business. Judges deliberate in private but issue public decisions after public arguments based on public records. . . . Much of what passes between the parties remains out of public sight because discovery materials are not filed with the court. But most portions of discovery that are filed and form the basis of judicial action must eventually be released.^[8]

Our courts proclaim that the public has a constitutional right to access court records.^[9]

The presumption of public access recognized and promoted by the local rule finds its root in the common law rights of access to judicial proceedings and to inspect judicial...