It's a fact of modern life that many gossip websites are extremely aggressive in their attempts to dig up scoops on celebrities. At the same time, many judges are allowing more and more information to be redacted, sealed and protected from prying eyes. How much secrecy should judges afford celebrities on the things they say in the midst of a legal proceeding?
That's the issue in a pending legal proceeding dealing with a Los Angeles home purchased by Nicolas Cage in 2002. Six months after buying the home in the Venice neighborhood, Cage encountered water intrusion, flooding and other problems. So he decided to sell it. The sale didn't go smoothly, and Cage and some of his partners now are being sued for fraudulently concealing facts about the allegedly defective property.
If real estate can act as a metaphor, this case is a great one. Celebrities don't like to live in leaky houses and will take all sorts of steps to plug holes.
In this dispute, the litigation first was delayed over whether it should go to arbitration. Now the hot topic of discussion is a not-yet-taken Cage deposition potentially being divulged to the media. The fear isn't totally unfounded; some websites have used depositions to poke fun of celebrities including Lil Wayne and Paris Hilton. Other times, as in the case of one from Donald Trump, testimony from a deposition has been used to make a point about statements made in public versus things said under oath.
Mark Scott, attorney for the plaintiffs, first demanded that Cage be available to answer questions in a deposition. Cage's attorneys don't necessarily disagree but required that it happen under a broad protective order so as to prevent the testimony from being leaked to the tabloids. Scott refused to stipulate to this and has gone so far as to request $20,000 in sanctions against Cage.
On Nov. 8, before Los Angeles Superior Court Judge Rolf Treu, the attorneys got the opportunity to explain themselves. The judge likely will issue a decision this week on whether to compel Cage's testimony with or without a protective order.
At last month's hearing, Brian Wolf, an attorney at Lavely & Singer who is representing Cage, told the judge that the protective order he wanted was "a very routine request to avoid having a videotape released to the media, put up on TMZ, put up on one of numerous websites for no purpose."
In response, Scott said that Wolf was misrepresenting the requested protective order -- saying that it was broader and would affect all depositions that had any connection with what Cage would say. He also said has that his goal wasn't to intrude on Cage's privacy, and in support of his good intentions, he said that he had originally offered to name Cage as a "John Doe" in the lawsuit so that nobody would know the celebrity was getting sued for selling a leaky house.
After more back-and-forth, the attorney was forced to admit that the protective order would deal only with Cage's deposition. Scott then said this -- our emphasis added in bold:
"I don't think there's a separate celebrity rule -- celebrity code of civil procedure. If I were to ask Mr. Cage in his deposition what his name is or I ask him about his background, I don't see why that's something that is not public record. My issue is more a philosophical one about whether celebrities have the ability to make sure that their depositions on everything are completely treated differently from that of the rest of the population."
Wolf then noted that the U.S. Supreme Court in Seattle Times Co. v. Rhinehart had determined that discovery matters don't provide a third party with a First Amendment right to disclose to the public and that there was "no legitimate basis" to have a celebrity's deposition testimony leaked to the media.
Scott responded by making reference to "prior restraint," the difference between federal laws and California laws on freedom of expression and his "concern" that a protection order would "shift the burdens." Presumably, he meant that in the past, litigants who wish to keep something confidential held the burden of reasoning, but that in the future, that burden would move toward media outlets for coming up with an explanation as to why what a celebrity says during a court proceeding should be public.
Scott told the judge he had offered a compromise: a "30-day confidentiality stipulation" where Cage's attorneys could review the deposition with the ability to protect specific testimony deemed sensitive. The offer appears to have been rejected.
Treu seem inclined to take the side of Cage's lawyers, striking a note that maybe it was wise to have the burden placed on secret-revealers rather than secret-protectors. "That's a problem," he said, "because the ability of certain media to interpret words in a way that those words may not have been meant is something that is given in our modern society."
The judge also asked one "representative of the press" in the courtroom what he thought and didn't get much of a response. For the record, had The Hollywood Reporter been asked, we would have agreed with Cage's attorneys that there isn't a legitimate reason to have a celebrity deposition leaked. On the other hand, if a media outlet were to request it, that might be a different story. The judge isn't confident about the media's ability to interpret certain words, but that ability arguably is injured further by incomplete access. Rules preventing disclosure go further than merely preventing leaks.
At the conclusion of the hearing, Treu said he was taking the issue under advisement and would issue a ruling before the next court date Dec. 7.
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