RUHEL et al v. S.N.M. ENTERPRISES, INC.

Filing 57

MEMORANDUM ORDER - IT IS ORDERED THAT the plaintiffs request for a protective order to preclude the video recording of Mr. Panishs deposition is DENIED. The defendant shall be permitted to record Mr. Panishs deposition by video and stenographic means. SEE MEMO & ORDER FOR COMPLETE DETAILS. Signed by Magistrate Judge Martin C. Carlson on March 17, 2017. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
EDWARD RUEHL, Individually
And as Administrator of the Estate
of Shirley T. Ruehl, deceased,
Plaintiff
v.
S.N.M. ENTERPRISES, INC.,
Defendant

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Civil No. 1:15-CV-168
(Judge Kane)
(Magistrate Judge Carlson)

MEMORANDUM ORDER
The background to this order is as follows:
On Thursday, March 16, 2017, the parties jointly wrote to the Court with a
time-sensitive discovery dispute concerning the defendant’s deposition of the
plaintiff’s liability expert, Michael Panish, which is scheduled to be taken on
Monday, March 20, 2017, at 12:00 p.m. The Court promptly convened a telephone
conference with the parties on Friday, March 17, 2017, at 11:00 a.m. to address the
dispute, and to hear from the plaintiff regarding the request for a protective order
precluding the use of video equipment at Mr. Panish’s deposition.
During the call, counsel for the defendants aptly noted that under the Federal
Rules of Civil Procedure, the party noticing a deposition enjoys the right to direct

that a deposition will be recorded by video. See Fed. R. Civ. P. 30(b)(3)(A) (“The
party who notices the deposition must state in the notice the method for recording
the testimony. Unless the Court orders otherwise, testimony may be recorded by
audio, audio-visual, or stenographic means.”). Counsel for the defendant noted
that the parties in the instant action have already taken a number of depositions by
video, and that there has been no issue with this practice until Mr. Panish informed
the plaintiff regarding his misgivings about having his deposition recorded in this
manner.
The defendant then noted that case law in this field strongly supports the
view that the party seeking a protective order bears the burden of proving that a
protective order is warranted, and specifically a protective order barring use of a
recording method expressly authorized by the Federal Rules of Civil Procedure.
The defendant submitted that such a showing had not been made here, where Mr.
Panish merely expressed a subjective, speculative and unfounded concern that his
video recording would somehow be misused or his likeness somehow altered or his
testimony mischaracterized and distributed via the internet to Mr. Panish’s
detriment.
Counsel for the plaintiff argued vigorously on behalf of Mr. Panish, and
urged the Court to issue a protective order in this case, asserting that Mr. Panish
had expressed genuine reservations about sitting for a videotaped deposition – a
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practice that he has apparently managed to avoid despite having appeared as an
expert witness in scores of cases. According to the plaintiff’s counsel, Mr. Panish
is personally aware of instances where witness’ testimony has been manipulated or
edited and disseminated in a way that has worked injury to the witness. He
acknowledged that the parties have already taken many depositions by video in this
case, but offered to forego further video depositions if it would cause the defendant
to agree not to use video during Mr. Panish’s deposition. He also expressed his
concern about the prejudice to his client if Mr. Panish were to refuse to testify, or
even if Mr. Panish were to be held in contempt of Court for disregarding a
subpoena.
Counsel for the defendant declined the plaintiff’s invitation to forego further
video depositions, but assured the plaintiff and the Court that he had no intention
of using Mr. Panish’s recorded deposition for any purpose other than defending his
client in this civil action. Nevertheless, he argued that he was entitled to take Mr.
Panish’s deposition by video, and had good cause to do so in order to prepare most
effectively for trial in this litigation.
Upon consideration, and acknowledging the vigorous arguments that
plaintiff’s counsel advanced on Mr. Panish’s behalf, the Court finds insufficient
grounds to issue a protective order that would preclude the defendant from doing

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that which it is entitled to do under the Rules: take Mr. Panish’s deposition by
video and stenographic means.
The Federal Rules of Civil Procedure expressly authorize the party noticing
a deposition to choose the manner in which to record the deposition. Fed. R. Civ.
P. 30(b)(3)(A). Courts have for years recognized that audio and visual recordings
of depositions are “routine”. Gillen v. Nissan Motor Corp., 156 F.R.D. 120, 122
(E.D. Pa. 1994). Courts have thus long held that “the use of videotaped testimony
should be encouraged and not impeded because it permits the jury to make
credibility determinations not available when a transcript is read by another.”
Weiss v. Wayes, 132 F.R.D. 152, 155 (M.D. Pa. 1990). In contrast to a written
transcript, a video allows lawyers and factfinders to assess “demeanor and
appearance of the witness,” id., and courts have found that “facial expressions,
voice inflection and intonation, gestures, ‘body language’ . . . may all express a
message . . . .” Fanelli v. Centenary College, 211 F.R.D. 268, 270 (D.N.J. 2002)
(quoting Riley v. Murdock, 156 F.R.D. 130, 131 (E.D.N.C. 1994)).
In order to overcome the right to take a deposition by video, and a judicial
preference for this manner of recording, a party or witness may seek a protective
order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, which
provides that a court may for good cause “issue an order to protect a party or
person from annoyance, embarrassment, oppression, or undue burden or expense . .
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. .” Fed. R. Civ. P. 26(c). The Third Circuit Court of Appeals has cautioned,
however, that “absent exceptional circumstances, protective orders should not
serve to interfere” with court proceedings. In re Grand Jury, 286 F.3d 153, 159
(3d Cir. 2002). The party seeking a protective order has the burden of proving that
there exists good cause to believe that the discovery or practice – in this case,
videotaping a deposition – “will work a clearly defined and serious injury to the
party seeking closure. The injury must be shown with specificity.” Pansy v.
Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994). A party does not
establish good cause by alleging a general or speculative alleged harm. Fanelli,
211 F.R.D. at 270.
Upon consideration of the plaintiff’s argument for the issuance of a
protective order, the Court finds that the plaintiff has not demonstrated that good
cause exists to prevent the defendant from taking Mr. Panish’s deposition by video,
which is a manner expressly authorized by rule. Mr. Panish’s subjective concerns
about the potential for misuse of video or audio recording are speculative, and
insufficient to override the defendant’s right to record the deposition by video.
Moreover, the defendant has represented to the Court that it has no intention of
using Mr. Panish’s deposition for any purpose other than defending against the
claims in this litigation, and the Court credits the defendant’s representations in
this regard.
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Recognizing that the defendant has a right to record Mr. Panish’s deposition
by video, and finding that the plaintiff has not demonstrated sufficient good cause
for the issuance of a protective order, IT IS ORDERED THAT the plaintiff’s
request for a protective order to preclude the video recording of Mr. Panish’s
deposition is DENIED. The defendant shall be permitted to record Mr. Panish’s
deposition by video and stenographic means.
In order to address Mr. Panish’s concerns, however; and to memorialize the
defendant’s representations regarding the intended use of the video recording of
the deposition, IT IS FURTHER ORDERED THAT the parties shall use Mr.
Panish’s recorded deposition only for purposes of defending or prosecuting the
claims in this litigation, and shall not disseminate the recording outside of these
proceedings in the absence of a Court order.
So Ordered this 17th day of March, 2017.

/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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