Thank you for sharing!

Your article was successfully shared with the contacts you provided.
A plaintiff in a federal lawsuit cannot be barred from opening an Internet Web site where he posts every document in his case — including full transcripts of all depositions — a federal judge ruled Wednesday. U.S. District Judge Anita B. Brody issued the order from the bench Wednesday in Fraser v. Nationwide Mutual Insurance Co. et al. after a brief hearing in which Nationwide’s lawyer, Curtis P. Cheyney III of Philadelphia-based Swartz Campbell & Detweiler, sought a protective order. In the suit, Richard Fraser claims he was terminated as a Nationwide “captive” agent in retaliation for his efforts to get a state law that would limit the insurer’s rights to terminate contracts. But Cheyney said Wednesday that Nationwide canceled the contract after it learned that Fraser “solicited competitors of Nationwide … to acquire his book of business and that of others.” Recently, Cheyney said, Nationwide learned of the existence of an Internet Web site that is being operated by the Pennsylvania chapter of the Nationwide Insurance Independent Contractors Association (NIICA). National NIICA is funding 75 percent of Fraser’s lawsuit, Cheyney said, and Pennsylvania NIICA is funding 25 percent. Fraser, he said, has no obligation to reimburse them unless he’s successful. Cheyney said he objects to the Web site because it contains commentary about the case that is false and inflammatory. “Civil litigation and discovery in civil litigation is a private process, and as a private process, it’s not necessarily public information,” Cheyney said. The deposition transcripts, he said, are “being disseminated on a public forum with prefatory language that we think is inflammatory, we think is false, and we think is contrary to the rules of civil procedure.” Brody was quick to focus Cheyney’s argument. “Well, that’s all that’s before me — is whether it’s contrary to the rules of civil procedure,” she said. “We believe the court is in control of the discovery process,” Cheyney said. Brody pressed the point, saying, “Tell me the rule that you are referring to and how you’ve met the standard.” Cheyney said that under Rule 26(c) of the Federal Rules of Civil Procedure, the sole purpose of discovery is “assisting in the preparation and trial or the settlement of litigated disputes.” The Web site and its prefatory language, he said, are “thwarting that discovery process and that purpose of either having a dispute settled in court or a settlement process that works.” Discovery is a liberal process, Cheyney said, and lawyers are not supposed to lodge constant objections to every question they consider irrelevant. Instead, he said, those objections ought to be left for the court to decide later. “Are you taking the position that it’s never permissible for a party to put depositions onto a Web site?” Brody asked. Cheyney insisted he was not, but that all of the cases cited by his opponents involved documents that had been filed with a court before being posted on the Internet. But Brody said it was Cheyney who had the burden in seeking a protective order. “I don’t want to hear about their cases,” she said. “What cases are you relying upon that say that I should restrict this?” Cheyney said he was relying on Seattle Times Co. v. Rhinehart, a 1984 decision from the U.S. Supreme Court, which, he argued, held that pretrial depositions and interrogatories are not public components of a civil trial and that restraints placed on pre-trial discovery, but not yet admitted information, are not a restriction of a traditionally public source of information. The Seattle Times court, he said, held that a protective order may be issued to prevent a party from disseminating information obtained through the use of the discovery process in advance of trial. “Seattle says the court has the authority to control depositions and discovery in your courtroom,” Cheyney said. Cheyney said Nationwide was “asking the court to consider the undue burden and expense that will likely result if we know at every deposition that we have to defend it against the process of public disclosure and dissemination.” Without a protective order, he said, he would be forced to be “much more circumspect in what answers I permit being disclosed.” To make the discovery process work, he said, “we need a screening process. … If they want to put something on the Web site, I can’t stop them … but I think the court should at least look at what goes on the Web site first so that our objections can be ruled on.” “Are you telling me that I have the right to monitor what they put on the Web site — that they don’t have the freedom to put on the Web site what they wish?” Brody asked. Cheyney clarified his request, saying he was asking the court to order that the plaintiff not be allowed to put depositions on the Web site “until they’ve been released by the court after scrutiny of the objections.” The court’s authority for that is Rule 26, he said, because the purpose of such an order would be “to avoid undue burden and expense to the parties and to facilitate the possibility of a fruitful settlement.” “But there is no case that really says that?” Brody asked. “There’s no case anywhere that exists that suggests to the contrary,” Cheyney replied. When Fraser’s lawyer, James G. Wiles of Wilmington, Del.-based Blank Rome Comisky & McCauley, stepped to the podium, he said, “I think their argument fell on its face without my help.” Wiles, who filed the case along with attorney Anita F. Alberts of Alberts & Associates, said, “what they want is gag order, and they don’t have a case that authorizes it or a rule.” Under the law of the 3rd U.S. Circuit Court of Appeals, he said, “the standard is: it’s their burden to show a clearly defined and serious injury. … They’ve shown nothing.” In the one case so far that has addressed the issue, Wiles said, a New York judge allowed a similar Web site, and “that case is currently on trial and there’s simultaneous publication on the ‘net of what’s happening in the courtroom.” Wiles insisted that “all we’re doing here … is we’re using new technology to do something we’re perfectly entitled to do.” The purpose of the site, which was set up and is run by Fraser himself, is to keep the 1,400 members of his organization, which is funding the suit, informed. “I could do the same thing by making 1,400 copies of each transcript and each court paper, but technology gives us the advantage of putting this out simultaneously,”‘ Wiles said. “It’s perfectly legal.” As for Cheyney’s argument that the “prefatory” language on the site is false and inflammatory, Wiles said, “if we’re slandering him — if we’re telling lies — he’s got a remedy. They just want you to close the doors on this case so nobody can see what’s happening.” Wiles said the court documents posted on the site are available to anyone who comes to a courthouse, so the only issue is whether it’s proper to post the depositions. “What they’re saying, in effect, is that somehow or other the testimony of their witnesses — which is under oath and therefore is presumed to be truthful — ought not to be exposed to the public eye. I find that an extraordinary argument,” he said. On rebuttal, Cheyney said, “We’re simply asking the court to control the discovery process.” The depositions, he said, “are going very, very far afield. … It needs to be screened. … Why should things be placed on the Web site that assist other attorneys, or why should things be put on the Web site that are personal in nature and not relevant?” By doing so, he said, Fraser is “creating red herrings in this litigation that are really going to be a problem if we are ever going to consider settlement.” But Brody said Rule 26 imposes “very specific criteria which must be met before I would even consider this kind of protective order — and I have to tell you that I don’t believe the defense has met this.” Brody also said she was “certainly … not going to impose some all-encompassing restrictions” on the questions that can be asked at depositions. “The depositions have to go forward,” she said, adding that she is always open to making a ruling on a specific objection about improper questions of a personal nature.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.