Condit v. Dunne

225 F.R.D. 113, 33 Media L. Rep. (BNA) 1363, 2004 U.S. Dist. LEXIS 25264, 2004 WL 2912905
District Court, S.D. New York·Decided December 15, 2004·No. No. 02 Civ. 9910(PKL)·Published·Cited by 14 cases

Opinion

OPINION AND ORDER

LEISURE, District Judge.

Defendant Dominick Dunne brings this motion for a protective order barring public dissemination of the videotape transcript of defendant Dunne’s September 29-30, 2004 deposition pursuant to Federal Rule of Civil Procedure (“FRCP”) 26(c). Defendant does not seek to protect the written transcript, but limits his motion to the videotape only. This Opinion and Order accompanies this Court’s December 8, 2004 Opinion and Order (“companion Order”), which granted in part and denied in part defendant’s motion to compel discovery, and wholly denied plaintiffs cross-motion for protective order. The facts of this case are detailed in the companion Order, familiarity with which is assumed. This Court heard oral argument from both parties on this issue on November 4, 2004.

STATEMENT OF FACTS

The facts with respect to the instant motion are as follows. Defendant claims an order of protection is necessary to bar plaintiff from using the videotape transcript of defendant’s deposition to embarrass Dunne, deprive him of a fair trial, and taint the potential jury pool. (Defendant Dominick Dunne’s Memorandum of Law in Support of Defendant’s Motion for Protective Order (“Def.’s Mem.”) at 1.) Defendant states that plaintiff counsel L. Lin Wood, Esq.’s statements to defense counsel, Paul V. LiCalsi, Esq., and to the New York Post constitute a threat to improperly disseminate the videotape transcript. (Id. at 1-2). On October 4, 2004, the New York Post reported Mr. Wood’s statements that Dunne was in “deep, deep, trouble” as a result of his deposition testimony and that the “transcript will be interesting, but the video will be even more interesting.” (Id. at 1-2.) Further, in an email correspondence with defense counsel, Mr. Wood stated that “when the public learns of Mr. Dunne’s testimony, whatever reputation he enjoyed will be lost forever in my opinion.” (Id. at 2.)

Mr. Wood responds that his statement to Mr. LiCalsi and the New York Post were taken out of context, in that they were made when Mr. LiCalsi had designated the entire deposition, written and visual, as confidential. Further, Mr. Wood reminds the Court that his statement regarding Dunne’s reputation was made in a private email and would not have affected the public perception of Dunne had it not been made public by defendant’s instant motion. Mr. Wood avers that Mr. LiCalsi and Dunne have also “tried this case in the press,” pointing specifically to defense counsel’s statement, appearing in the New York Post on September 13, 2004, that plaintiff Condit “murdered his own reputation before Dominick Dunne made any of the statements that are at issue in this lawsuit,” and Dunne’s references to this lawsuit in his Vanity Fair article. (Plaintiff Gary Condit’s Memorandum of Law in Opposition to Defendant’s Motion for Protective Order (“Pl.’s Opp’n”) at 5.) Plaintiffs counsel represents that he has no intention to embarrass Dunne but believes the videotape speaks for itself and will most likely embarrass Dunne on its [115] own. (Affidavit of L. Lin Wood, Esq. in Support of Pl.'s Opp’n (‘Wood Aff.”) ¶¶ 5, 8.) Moreover, plaintiff argues defendant’s accusations, even if true, do not constitute good cause to seal the video, because, given the public accusations and public figures at issue in this case, the public has a right to hear and see the whole truth. (Pl.’s Opp’n at 10-11.) Finally, plaintiff asserts that defendant and Mr. LiCalsi should not be allowed to represent that Dunne’s deposition testimony resulted from fatigue, confusion, and Mr. Wood’s allegedly bullying questioning style without the public being allowed access to the tape. (Id. at 10-11.)

The Court notes that defendant made his previously private claim — that testimony given in his deposition resulted from confusion, exhaustion, and Mr. Wood’s bullying questions — public through affidavits submitted to this Court for review on the instant motion and the companion motion. (Supplemental Affidavit of Rachel G. Balaban, Esq. in Support of Defendant Dominick Dunne’s Motion to Compel Discovery and for Court Supervision of Plaintiff Gary Condit’s Deposition (“Balaban Aff.”), Exhibit 2, Affidavit of Dominick Dunne (“Dunne Aff.”) at ¶ 6; Affidavit of Paul V. LiCalsi, Esq. in Support of Defendant Dominick Dunne’s Motion for Protective Order (“LiCalsi Aff.”), Exhibit C, October 1, 2004 Email from Mr. LiCalsi to Mr. Wood (“Ex. C”) (“I believe, [Dunne] was exhausted and confused at times [during his deposition].”); see November 4, 2004 Oral Argument Transcript (“Oral Argument Tr.”) at 47.)

DISCUSSION

Disappointingly, and despite this Court’s encouragement, the parties have been unable to resolve this discovery dispute absent Court intervention. As this Court has previously stated:

The discovery provisions of the Federal Rules of Civil Procedure are “designed to achieve disclosure of all the evidence relevant to the merits of a controversy.” Discovery is meant to proceed “at the initiative of the parties, free from the time-consuming and costly process of court intervention.” Nevertheless, Fed.R.Civ.P. 26(c) provides for judicial intervention in the discovery process.

Spring Valley Water Co. v. Cosco Indus., No. 91 Civ. 0410, 1992 WL 8230, *3, 1992 U.S. Dist. LEXIS 223, *7 (S.D.N.Y.1992) (Leisure, J.) (citing Daval Steel Prods, v. M/V Fakredine, 951 F.2d 1357, 1365 (2d Cir.1991)) (quoting Thomas E. Hoar, Inc. v. Sara Lee Corp., 882 F.2d 682, 687 (2d Cir.1989)); see, e.g., Loussier v. Universal Music Group, 214 F.R.D. 174,175 (S.D.N.Y.2003) (“[T]he Court notes that the course of discovery thus far has been quite contentious between the attorneys, and the Court has been inundated with letters from both sides on discovery matters which, in a more perfect world, would have been worked out between the parties without the Court’s intervention.”).1 So too, have the parties here inundated the Court with letters regarding discovery matters that seem to the Court to be best resolved by the parties. However, when litigation reaches such an impasse as it has here, the Court must exercise its discretion under the Rules to aid in efficient and expeditious discovery.

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Condit v. Dunne, 225 F.R.D. 113, 33 Media L. Rep. (BNA) 1363, 2004 U.S. Dist. LEXIS 25264, 2004 WL 2912905 (S.D.N.Y. 2004).

225 F.R.D. 113 (Condit v. Dunne) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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