What to do when opposing counsel uses the Internet as a weapon: tools to combat the publication of discovery materials and extrajudicial statements on the Internet.

• Author: Kopon, Andrew, Jr.
• Position: Conning the IADC Newsletters

This article originally appeared in the March 2010 Trial Techniques and Tactics Committee Newsletter.

While the benefits of the internet to litigation are undeniable, the potential negative implications are equally clear. Indeed, the impartiality of the judicial system is lost where discovery materials are posted online, causing cases to be tried in the court of public opinion. A similar risk is posed where extrajudicial statements concerning ongoing litigation are splashed across the internet. When published online, discovery materials are often taken out of context and extrajudicial statements are almost always biased. The resulting slanted presentation of facts creates a significant risk of prejudicing the jury pool, causes unnecessary court battles, and implicates the right to a fair trial.

This predicament begs the question: what can attorneys do when opposing counsel publishes discovery materials and extrajudicial statements on the internet? The answer involves a careful balance between the fight to free speech and the fight to a fair trial. However, the United States Supreme Court is clear that attorneys and parties are not defenseless in such situations. Although the relevant decisions do not involve internet publications, the rationale behind those cases is nevertheless applicable to situations where opposing counsel uses the internet as a weapon in litigation.

UNITED STATES SUPREME COURT CASES

1. Supreme Court Cases Regarding the Publication of Discovery Materials

   In Seattle Times Co. v. Rhinehart, (1) the United States Supreme Court unanimously upheld restrictions on the release of information gained "only by virtue of the trial court's discovery processes." In Seattle, the Court addressed the issue of whether a litigant's freedom comprehends the fight to disseminate information that he has obtained pursuant to a court order that both granted him access to that information and placed restraints on the way in which the information might be used. (2) The Court held that where "a protective order is entered on a showing of good cause as required by Rule 26(c), is limited to the context of pretrial civil discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment." (3) The Court reasoned that "in all civil litigation, petitioners gain the information they wish to disseminate only by virtue of the trial court's discovery processes." (4)

   The Court further reasoned, because "[a] litigant has no First Amendment right of access to information made available only for purposes of trying his suit ... continued court control over the discovered information does not raise the same specter of government censorship that such control might suggest in other situations." (5) Moreover, it noted that restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information. (6) Pretrial depositions and interrogatories are not public components of a civil trial and, in general, they are conducted in private as a matter of modern practice. (7) In reality, much of the information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action. (8)

   Likewise, in U.S. v. Aguilar, (9) the Supreme Court stated that protective orders may be imposed in connection with information acquired through civil discovery without violating the First Amendment.

2. Supreme Court Cases Regarding the Publication of Extrajudicial Statements

   In Gentile v. State Bar of Nevada, (10) the Supreme Court discussed the threat posed by extrajudicial statements made by attorneys regarding pending cases when it addressed the constitutionality of a ban which implicated the ability of counsel to speak freely about a pending case. The Court reasoned, "[b]ecause lawyers have special access to information through discovery and client communications, their extrajudicial statements pose a threat to the fairness of a pending proceeding since lawyers' statements are likely to be received as especially authoritative." (11) The Court upheld a limitation on attorneys' extrajudicial statements, which was directed at comments likely to influence a trial outcome and prejudice the jury pool. The Court noted, "[e]xtensive voir dire may not be able to filter out all of the effects of pretrial publicity." (12) "Extra judicial comments on, or discussion of, evidence which might never be admitted at trial and ex parte statements by counsel giving their version of the facts obviously threaten to undermine [the] basic tenet of a fair trial." (13) In upholding the ban, the Court states "[f]ew, if any, interests under the Constitution are more fundamental than the right to a fair trial by 'impartial' jurors, and an outcome affected by extrajudicial statements would violate that fundamental right." (14)

   The Supreme Court's decision in Sheppard v. Maxwell, (15) also indicates that the speech of lawyers representing clients in pending cases may be regulated under a less exacting standard. In Sheppard, the Supreme Court overturned a criminal conviction after the courtroom was taken over by the press and jurors turned into media stars. (16) The prejudice to the plaintiff's right to a fair trial was traced, in principal part, to the trial court's failure to control the proceedings and the courthouse environment. (17) In Sheppard, the Court noted:

   [f]reedom of discussion should be given the widest range compatible with the essential requirement of the fair and orderly administration of justice. But it must not be allowed to divert the trial from the very purpose of a court system to adjudicate controversies, both criminal and civil, in the calmness and solemnity of the courtroom according to legal procedures. Among these legal procedures is the requirement that the jury's verdict be based on evidence received in open court, not from outside sources. (18) Based on these principals, the Court held that the failure of trial judge to protect the defendant from inherently prejudicial publicity and to control disruptive influences in the courtroom deprived the defendant of a fair trial consistent with due process.

   RELEVANT ETHICS RULES

   The ABA...