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special to the national law journal During the Republicans’ long legal odyssey in search of evidence against Bill and Hillary Clinton, the depositions had some memorable moments. While comedians enjoyed the conundrum of “what the definition of ‘is’ is,” another deposition formed the basis of a legal question with greater potential importance for litigators: Is a deposition videotape a public record? Bill Clinton was not the first president to be deposed on videotape-that honor goes to Ronald Reagan during the Iran-Contra scandal. United States v. Poindexter, 732 F. Supp. 170 (D.D.C. 1990). As video cameras become ubiquitous fixtures in depositions, more presidents and less high-profile deponents will face the legal issues associated with them. Does a party have a right to a videotaped deposition? What are the admissibility pitfalls? How can it be edited for trial-for example, can the law stop opposing counsel from splicing one’s client into a really nasty guy? Litigators will be asking these and other questions as video becomes an ever more important part of their trial strategy. Presidential tapes The dispute concerning Bill Clinton came about during the criminal prosecution of his friends, James and Susan McDougal. Various news organizations moved to obtain copies of his videotaped deposition, taken at the White House in 1996. The 8th U.S. Circuit Court of Appeals affirmed a federal trial judge’s denial of their request. United States v. McDougal, 103 F.3d 651 (8th Cir. 1996). The court held that, as a matter of law, deposition videos were not judicial records to which the common law rule of public access applied. In addition, the court held that, since Fed. R. Crim. P. 53 prohibits photographic or electronic recording of live witness testimony in court, its ruling put deponents on equal footing with live witnesses at trial. The district court also took notice of the risk of the tapes being used for rather nefarious purposes, relying on precedent from presidential audiotapes. In Nixon v. Warner Communications Inc., 435 U.S. 589 (1978), the U.S. Supreme Court, in reversing the D.C. Circuit, upheld U.S. District Judge John Sirica’s decision not to release President Richard Nixon’s White House audiotapes to the press. The court recognized Nixon’s interest in not having the tapes released, including the risk of their commercialization. Nixon argued that the only safeguard against having portions taken out of context by “cutting, erasing and splicing” would be “the taste of the marketing medium.” Sirica held that access to the tapes could lead to commentary by “journalists or entertainers,” which would “involve mass merchandising techniques designed to generate excitement in an air of ridicule to stimulate sales.” To prevent Nixon’s nightmare splicing scenario, courts have retained their right to limit what portions of depositions go in front of juries. Federal appellate courts have affirmed trial courts that limited deposition evidence-including video that has been edited in such a way that it might confuse or mislead a jury. See, e.g., Clark v. Allen, No. 95-2487 (4th Cir. 1998). With lawyers editing video on a daily basis, and with new editing products available on many trial-presentation systems, it’s good for litigators to know just what they can-and cannot-do with video. Before 1993, there was no right to a video deposition. Prior to the 1993 amendments to Fed. R. Civ. P. 30, a party wishing to take a video deposition had to obtain the consent of the parties or get a court order. In fact, it was not until the 1980 amendments to Rule 30 that video depositions were even allowed explicitly. Then again, 1980 was before the era of mass-produced video cameras. With the 1993 amendments and the even greater proliferation of video into many parts of everyday life, avoiding video may be a tough trick for a camera-shy witness. A series of decisions has held that the 1993 amendments created a right to a video deposition. Last November, the U.S. District Court for the District of New Jersey compelled a former college professor to give a video deposition, rejecting her argument that being deposed on video would cause her psychological harm. Fanelli v. Centenary College, 211 F.R.D. 268 (D.N.J. 2002). In the underlying case, the professor claimed that the college breached a contract by failing to conduct a hearing before terminating her employment. The court held that to overcome a party’s right to a video deposition under Rule 30(b)(2), a witness would have to demonstrate a “clearly defined” and “serious injury” to justify a Rule 26 protective order to quash the video. The bench and bar have given numerous reasons for preferring video depositions. First and foremost: to capture the demeanor of the witness-something often lost when reading a stenographic transcript. Courts, including the U.S. District Court for the District of Kansas, have held that video is an important tool for jurors. That court said, “Videotape depositions are considered a superior means of presenting the testimony of an absent witness, because they allow the jury to better assess the credibility of the witness.” Weseloh-Hurtig v. Hepker, 152 F.R.D. 198, 201 (D. Kan. 1993). Caught on camera Although Michael Henke, a senior litigation partner in the Washington office of Houston’s Vinson & Elkins, agrees that witness-credibility determinations are an important video advantage, he said an even more important use of video may be for impeachment purposes. “With the rapid changes in video technology, now you can really nail a witness if he deviates on the stand,” Henke said. Henke-the author of law review articles on video depositions-forecasts the biggest changes in legal video to be in the way it is edited. “It used to be that somebody would just take a single video of a whole deposition,” Henke said, adding, “Then people started realizing video was a powerful tool. Now, they’ve started realizing that it’s an even more powerful tool when skillfully edited. “Once lawyers have reviewed all the video, they sometimes realize it may have a more powerful impact if presented in a different order after editing,” Henke said, adding, “Lawyers are increasingly asking, and courts are increasingly permitting, edited video to be placed in a different order than originally recorded.” Another advantage of video is its, well, babysitting ability. Sandra Gavin is director of advocacy programs at Rutgers School of Law and a trial lawyer in private practice. She describes what she calls the “Rambo Culture” of depositions where, since the proceedings are “far removed from judicial supervision, an underworld developed over time which became a self-perpetuating breeding ground for unprofessional-if not outright unethical-conduct.” In one case, Paramount Communications Inc. v. AVC Network Inc., 637 A.2d 34 (Del. 1994), Gavin noted that the Delaware Supreme Court took exception to some conduct by well-known Houston litigator Joseph Jamail in the course of a nonvideo deposition. The Delaware court objected to Jamail’s calling opposing counsel an “asshole,” his telling opposing counsel, “You could gag a maggot off a meat wagon” and other generally unfriendly conduct. Gavin noted that having video at depositions can remedy the problem. “I don’t think video is going to turn lawyers into ‘congeniality on camera,’ but it does have somewhat of a deterrent effect on Rambo behavior,” she said. Video in depositions can capture some intimidation techniques lawyers use that don’t appear on a written transcript. “It’s the posturing, the pointing of a finger, the tone in the voice. It doesn’t show up on a transcript,” Gavin said, adding, “I teach advocacy-I don’t teach my students to be milquetoast-they’ll get eaten alive if they’re too genteel.” However, she cautions them against going to the other extreme as well. “Many courts are toughening their policies for deposition conduct,” Gavin said. She noted that Delaware changed its rules of conduct shortly after the Jamail incident. Even with its advantages, the video deposition will not be a truly mainstream legal tool until it attains that exalted status-taxable cost, recoverable by the prevailing party. Rulings on cost recovery When televangelist Robert Tilton lost his libel dispute with ABC News, he objected to paying the cost of ABC’s video depositions. The court was not moved. It held that although videotaped depositions were not mentioned among taxable items for prevailing parties in 28 U.S.C. 1920, that statute, taken with Fed. R. Civ. P. 30(b) provisions for video depositions, made their cost recoverable to prevailing parties. Tilton v. Capital Cities/ABC Inc., 115 F.3d 1471 (10th Cir. 1997). The 10th Circuit’s position on recovery of costs is not universally accepted, however. In fact, there is a great deal of disagreement among the various courts on this issue. Some have held that, because video costs are not listed specifically in 28 U.S.C. 1920, they are not recoverable costs. Coats v. Penrod Drilling Corp., 5 F.3d 877 (5th Cir. 1993), cert. denied, 510 U.S. 1195 (1994). Even the 10th Circuit rejected reimbursement when the moving party did not offer sufficient evid- ence that the costs were reasonably necessary. Allison v. Bank One-Denver, 289 F.3d 1223 (10th Cir. 2002). In addition, although the federal rules allow the videotaping of depositions, that right is not absolute; deposition video may not be admissible at trial. In United Fire & Cas. Co. v. Historic Pres. Trust, 265 F.3d 722 (8th Cir. 2001), the court affirmed a trial court’s refusal to admit a complete copy of a deposition video, holding that Fed. R. Evid. 403 gives a trial court broad discretion to exclude even probative evidence if it is prejudicial and to exclude evidence if its admission would cause undue delay or waste time. The available technology Using video at depositions within these legal confines is now easier with a virtual cornucopia of video gadgets that can be used to edit and present deposition video. Trial presentation systems included in Sanction, TrialDirector, PowerPoint and others allow lawyers and paralegals to edit deposition videotape. The video can then be presented at trial with audio and a scrolling transcript on the computer screen. The presentation can be made with a lawyer’s own system or in the increasing number of technology courtrooms across the nation, many in federal district courts. Most trial-presentation systems include video editors and an application called YesLaw that allows users to combine deposition transcripts, video and an editing tool onto one compact disc. Undoubtedly, the time will soon come when video is as much a part of depositions as lawyers and bad coffee. “Twenty years ago, a video at a deposition was a frill,” said Vinson & Elkins’ Henke, adding, “Things have changed. It’s an evolution, not a revolution, but things change.” Horrigan’s e-mail address is

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