When taking a deposition for pending litigation, it is integral to pry into the details of the situation, get all of the information that you can, and try to get something that you can use for your side and your argument. Often depositions can get heated, personal, and things can be said that the person being deposed, or doing the deposing, later regrets.
The purpose of depositions is to assist the opposing side in discovery. Parties are able to depose the witnesses of the opposing party, and they’re able to depose others who may have information that would assist them in their case. Depositions are always recorded in the form of a typed record, and, if the client or attorney provides equipment and funds, may often be recorded.
Typically the purpose of recording a deposition is to preserve for your record and to have to go back to. Sometimes the video deposition can be played before a jury at trial for impeachment purposes. When the video deposition is played before a jury at trial, if the witness acted in a heated manner, sometimes the purpose may also be to display the demeanor of the witness and portray the witness as someone who gets easily angry, someone who is rude, or someone who provided an answer hesitantly.
There are no ethics opinions or rules on video deposition sharing
But, what happens when you settle? What if the trial for which you took a video deposition never occurs? Is that video deposition confidential? Can it be shared? Can it be published on YouTube or sold to another party who is attached to similar pending litigation for a large case with many parties? There are no ethics opinions or rules on video deposition sharing. Because of this lack of guidance, it appears the video deposition is the property or possession of the person who paid for the video to be recorded.
So, what does this mean for the future of that video? Essentially, the video deposition can be shared with whomever the party in possession of the video wishes to share it.
If two parties settle outside of court, but there are still other parties to that action remaining, this means one of those parties can buy that deposition video. If two parties settle outside of court, this means that if the party in possession of the video wishes to share the video with the public, he or she can.
Can the party in possession share it to their Facebook page? Can they put it on their LinkedIn page? Can they sell it to just anyone? Or should there be guidelines for sharing the video? Should there be limits to where and in what capacity a deposition video is shared?
When searching the North Carolina State Bar’s website for an answer, there does not seem to be an opinion on this topic. There is no guidance for what a video deposition may be used for when the case settles. The North Carolina State Bar Ethics Committee should address video deposition sharing, or at least provide guidelines on this area that is not laid out. When other parties ask to purchase video deposition copies, there is no guidance for whether or not it is ethical or permissible.