Sauce For The Goose / Sauce For The Gander

Cable TV host Nancy Grace, along with CNN, is a defendant in a wrongful death action. The family of Melinda Duckett accuses Grace of causing Ms. Duckett to commit suicide as a result of Grace’s questioning Ms. Duckett about the disappearance of her son. A federal court in Florida allowed the case to proceed and it is currently in the discovery phase. “Discovery” is the period in which lawyers attempt to find out as much as they can about the opposing side’s case. Contrary to a lot of bad TV and movies, there are rarely surprises at trials, because the discovery process is typically exhaustive (some people use the term “scorched earth” to describe it). One discovery method is the “deposition.” In a deposition a party is required to answer questions under oath. It is fairly common to videotape the deposition (remember the Clinton/Lewinsky matter?). And the Duckett family in this case sought to videotape Grace’s deposition. Displaying a heretofore repressed camera shyness, Grace (and CNN) asked the court to prohibit the videotaping and to restrict the Ducketts from releasing the video to the public without court permission. Grace fought the videotaping on technical grounds – contending that the Ducketts didn’t provide timely notice of their intention to videotape. She sought the order restricting release of the video on the grounds that release of the video would “harass, embarrass and intimidate Ms. Grace and corrupt the jury pool.” The court issued an order allowing the video taping. As to the request to restrict access to the video, the court noted that the parties had entered an agreed order restricting the release of discovery materials, so the court did not need to address the specific request of Grace and CNN. As a lawyer that represents media clients in access cases, I’m really troubled by Grace and CNN’s efforts to limit public access here. Discovery is not a public event – no one has the right to attend a deposition other than the parties and their lawyers. But if a party wants to release discovery material, it should have that right, unless the material is covered by specific federal procedural rules justifying a protective order. The flimsy reasons offered by Grace and CNN for asking the court to order that the material be kept under wraps are the same excuses that prosecutors frequently assert when they try to block the public from attending criminal trials. A media company like CNN should know better.