Website refuses to pull deposition, despite judge's order

Derek Green | Prior Restraints | Feature | July 8, 2011

Online newspaper The Daily on Wednesday refused to comply with a federal judge’s order to remove from its website video clips of former BP CEO Tony Hayward’s deposition in the ongoing litigation related to the Deepwater Horizon oil spill in the Gulf of Mexico last year. That decision may prove to be vindicated, as the judge today indicated an intent to withdraw the order.

“We have not removed the clips . . . and have no intention of doing so until we’ve had the opportunity to present our case to the court,” The Daily said in a statement, as reported on the organization’s website. The Daily reported that it has published Hayward's deposition on its website and its iPad app.

“The Deepwater Horizon disaster is one of the worst environmental disasters in United States history and there is tremendous public interest in the complete disclosure of all of the surrounding facts,” the statement continued.

U.S. Magistrate Judge Sally Shushan of the Eastern District of Louisiana issued the order to take down and return the video clips on July 5. The short order said the release of the video clips “may be in violation” of a pretrial order that prohibits the release of video or audio records of a video deposition without the court’s authorization.

Hayward was deposed in London last month. Details about the deposition emerged last week from media outlets who had obtained transcripts of the deposition. The court’s July 5 order does not address the transcripts.

Houston attorney Chip Babcock, who is not involved in the ongoing litigation, said that such court orders present multiple constitutional issues. As a procedural matter, the order raises jurisdictional and due process concerns as to whether the court has authority to issue an order against a nonparty who has not had an opportunity to address the court.

"Due process requires that, before a judge can order somebody to do something or not do something, that person has to be before the court and have an opportunity to respond to whatever is in dispute -- and that is assuming that the court has jurisdiction over the party," Babcock said.

The court's order also presents a First Amendment issue. "[S]o long as The Daily received the deposition lawfully -- that is, that they . . . had no involvement in any sort of impropriety or improper conduct -- then I think they have a right to publish it," Babcock said. “And for a judge to say you don’t have a right to publish it or continue to publish it, that is a prior restraint, which is forbidden by the Constitution.”

Nonetheless, refusal to comply with the court's order could carry risks, Babcock said. "Disobeying a court order that you know about and that applies to you has risks in and of itself," Babcock said.

That risk may now be moot, however. New Orleans attorney Loretta Mince said that the judge today in court indicated that she planned to withdraw the order, although the case docket does not yet reflect this decision.