Amicus brief in SEG v. Stillman (Cal. Super. Ct., L.A.)
Arguing that a deposition given in the "Survivor" libel/contract suit and filed with the court not be sealed.
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STEVEN M. PERRY (State Bar No. 106154) MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue Thirty-Fifth Floor Los Angeles, California 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 Attorneys for THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS Of Counsel: Lucy Dalglish, Esq. Gregg Leslie, Esq. Ashley Gauthier, Esq. The Reporters Committee for Freedom of the Press 1815 N. Fort Myer Drive Suite 900 Arlington, Virginia 22209 Telephone: (703) 807-2100 Facsimile: (703) 807-2109 (fax)
IN AND FOR THE COUNTY OF LOS ANGELES
ARGUMENT 2 I. Been's Deposition should be open to the public 2 A. California rules presume that court records will be open to the public 2 B. A deposition becomes a public record when it is filed in court and used as evidence in a case 5 E. The parties' confidentiality agreement does not bind this Court 10 II. Public policy requires openness of court records, including Been's deposition transcript 11 CONCLUSION 12 The Reporters Committee for Freedom of the Press is a voluntary, unincorporated association of reporters and editors that works to defend the First Amendment rights and freedom of information interests of the news media. The Reporters Committee has provided representation, guidance and research in First Amendment and Freedom of Information Act litigation since 1970. The California First Amendment Coalition ("CFAC") is a nonpartisan, nonprofit public benefit corporation organized under the law of California. Its mission is to educate and inform the public, the press and government officials concerning federal and state laws fostering freedom of information, open government, and free speech and press. To that end, CFAC provides free telephone access to a lawyer for information, and if need be a network of law firms experienced in litigating such matters; several special publications; a weekly news bulletin; an Internet Web site (cfac.org) with other resources; and a variety of conferences and training workshops. The present case raises important issues regarding the sealing of court documents. The California judiciary enacted new rules, effective January 1, 2001, to govern the sealing of court records. The new rules were intended to require courts to conform to the First Amendment standards set by the Supreme Court of California in NBC Subsidiary, Inc. v. Superior Court, 86 Cal.Rptr.2d 778, 980 P.2d 337 (Cal. 1999). The present case is one of the first cases to test the new rules, and the decision by this Court will likely be considered by other courts faced with similar issues. Amici therefore urge this Court to consider the significant and fundamental First Amendment issues raised by this case. This case involves a dispute between SEG, Inc., the producers of a popular television show, Survivor, and a former contestant on the show, Stacey Stillman. Stillman has alleged that Survivor is a game show subject to federal laws and that the producers violated those federal laws during the production of the show. SEG contends that Stillman violated her confidentiality agreement with SEG and libeled the producers. During the course of discovery, a witness, Dirk Been, was deposed. Amici are informed that Been, also a former contestant on Survivor, asked that his deposition be kept confidential, and that the parties entered into a Stipulation regarding confidentiality.(1) Because Stillman and her counsel apparently believed that some of the testimony provided substantive evidence to support her Special Motion to Strike, Stillman lodged the deposition "conditionally under seal" with this Court. SEG also cited to the deposition in its Opposition to Stillman's Special Motion to Strike, relying on the deposition for adjudication. Been has filed a motion for a protective order, asking the court to seal his testimony, even if it is used as substantive evidence in this case. Peter Lance, an investigative reporter, has filed a motion to "unseal" the deposition.(2) Amici file this brief in support of Lance's motion to unseal the deposition. Amici understand that Stillman has filed a motion to unseal the deposition and that Stillman's interest in unsealing the deposition may coincide with Lance's and Amici's interest in unsealing the deposition. Nevertheless, Amici do not take a position, nor do they intend to lend support to either party, with regard to the substantive merits of the case. I. Been's Deposition should be open to the public. A. California rules presume that court records will be open to the public. California law clearly presumes that court records and proceedings shall be open to the public. In NBC Subsidiary, Inc. v. Superior Court, 20 Cal.4th 1178, 980 P.2d 337, 86 Cal.Rptr.2d 778 (1999), the Supreme Court of California carefully considered the issue of access to judicial proceedings and judicial records. NBC Subsidiary involved a civil lawsuit between two celebrities, Clint Eastwood and Sondra Locke. The trial court closed the courtroom to the public and press, and it also ordered that transcripts of the proceedings would be withheld from the public until after the trial. Various media organizations, including an NBC affiliate and the Los Angeles Times, intervened to oppose the closure and sealing order. The Court of Appeal issued a peremptory writ of mandate, ordering the trial court to vacate its closure order, and the Supreme Court of California affirmed. The court examined the competing interests: the public's interest in an open court system and the parties' interest in a fair trial. After a lengthy discussion, the appeals court held that the judge's decision to close the courtroom and seal the transcript was subject to strict constitutional scrutiny. NBC Subsidiary, 20 Cal.4th at 1216-18. After evaluating the constitutional rights of the public and the parties' interests, the court concluded that closing the courtroom and sealing the transcript was improper. Id. at 1221-25. The court looked to several U.S. Supreme Court decisions bearing on the issue of public access to judicial proceedings, including Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (finding a public right of access to criminal trials), Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) (holding that statute mandating closure of courtrooms during minor victims' testimony was unconstitutional), Press Enterprise Co. v. Superior Court (Press Enterprise I), 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (reversing California state court's closure of voir dire), Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (closure of criminal suppression hearing was overbroad and unconstitutional), Press Enterprise Co. v. Superior Court (Press Enterprise II), 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (finding qualified right of access to pretrial hearings, and noting that First Amendment scrutiny must be applied), and El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147, 113 S.Ct. 2004, 124 L.Ed.2d 60 (1993) (closure of preliminary hearing was unconstitutional). NBC Subsidiary, 20 Cal.4th at 1198-1207. The court in NBC Subsidiary noted a clear and specific trend towards court openness. The U.S. Supreme Court has consistently ruled that courts should be open to the public and press, and if closure could possibly be warranted, it would be only after a court has undertaken a rigorous First Amendment analysis, subjecting closure to strict scrutiny. "The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered." Id. at 1204 (quoting Press-Enterprise I, 464 U.S. at 510). The court also noted that the principle of openness has been held to apply to civil as well as criminal proceedings. Id. at 1207-09 (citing Publicker Industries, Inc. v. Cohen, 733 F.2d 1059 (3d Cir. 1984); Westmoreland v. CBS, Inc., 752 F.2d 16 (2d Cir. 1984); In re Iowa Freedom of Information Council, 724 F.2d 658 (8th Cir. 1984); Newman v. Graddick, 696 F.2d 796 (11th Cir. 1983); Del Papa v. Steffen, 915 P.2d 245 (Nev. 1996); State v. Cottman Transmission, 542 A.2d 859 (Md. App. 1988)). The court rejected the argument that the public did not have a real interest in the case, as it was merely a dispute between two private parties. Instead, the court recognized the interest of the public in all litigation: We believe that the public has an interest, in all civil cases, in observing and assessing the performance of its public judicial system, and that interest strongly supports a general right of access in ordinary civil cases. NBC Subsidiary, 20 Cal.4th at 1210. The court noted that "a trial court is a public government institution. Litigants certainly anticipate, upon submitting their disputes for resolution in a public court, before a state-appointed or publicly elected judge, that the proceedings in their case will be adjudicated in public." Id. at 1211. "An individual or corporate entity involved as a party to a civil case is entitled to a fair trial, not a private one." Id. (quoting State v. Cottman Transmission, 542 A.2d 859 (Md. App. 1988)).(3) After careful consideration of the issues, the California Supreme Court held that civil cases were presumptively open to the public. Id. at 1217. Additionally, the court held that before a courtroom is closed or evidentiary matter is sealed, a court must hold a hearing and expressly find (1) that there is an overriding interest supporting closure or sealing, (2) that there is a substantial probability that the interest will be prejudiced absent closure or sealing, (3) that the proposed closure or sealing is narrowly tailored to serve the overriding interest, and (4) that there is no less restrictive means of achieving the overriding interest. Id. at 1217-18 (emphasis supplied). In response to the NBC Subsidiary case, the California judiciary enacted new Rules of Court to conform to the strict constitutional standard set forth in the case. The Rules, which went into effect on January 1, 2001, presume that court records are open to the public. Specifically, Cal. Rule of Court 243.1(c) provides that "[u]nless confidentiality is required by law, court records are presumed to be open." Cal. Rule of Court 243.1(d) further provides: The court may order that a record be filed under seal only if it expressly finds that: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest. As discussed below, the requirements of Rule 243.1(d) cannot be met in the present case and therefore, the deposition of Dirk Been should not be sealed. B. A deposition becomes a public record when it is filed in court and used as evidence in a case. All documents filed in court become part of the public record. Although discovery materials are generally not considered part of the public record, they become part of the public record when filed in support of a substantive motion in the case. Numerous courts have found a First Amendment right of access to discovery documents filed during the course of civil litigation when those documents are used as evidence or a basis for any adjudication. See Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1179 (6th Cir. 1983) (documents filed in civil litigation should be open because secrecy insulates the participants, masks impropriety, obscures incompetence, and conceals corruption); Rushford v. New Yorker Magazine, Inc., 846 F.2d 249 (4th Cir. 1988) (summary judgment pleadings and evidentiary documents should be open); Matter of Continental Illinois Securities Litigation, 732 F.2d 1302 (7th Cir. 1984) (records submitted with summary judgment motion should be open); Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893 (7th Cir. 1994) (assuming both a First Amendment and a common law right of access to civil litigation documents). See also, Copley Press, Inc. v. Superior Court, 6 Cal.App.4th 106, 111, 7 Cal.Rptr.2d 841 (1992) (holding that the press had a right to inspect the clerk's "rough minute" books of a trial court; First Amendment provides "broad access rights to judicial hearings and records . . . both in criminal and civil cases."). In Brown & Williamson Tobacco Corp., the court considered whether to permit public access to evidentiary documents that had been filed as part of the court record, but that were subject to a confidentiality agreement between the parties. The case involved allegations that the tobacco company had engaged in fraudulent and improper conduct. The trial court sealed certain documents that were used as evidence in the case, but the Sixth Circuit reversed and unsealed the documents. The court found that the company failed to provide a sufficient justification for keeping the record secret. The court held that "[s]imply showing that the information would harm the company's reputation is not sufficient to overcome the strong common law presumption in favor of public access to court proceedings and records." Brown & Williamson, 710 F.2d at 1179. The court noted that the standard for sealing a court record was quite high, and vague assertions that disclosure might result in some harm were insufficient to overcome the presumption of openness. The court relied upon the analysis in Joy v. North, where the court stated: [A] naked conclusory statement that publication of the Report will injure the bank in the industry and local community falls woefully short of the kind of showing which raises even an arguable issue as to whether it may be kept under seal. The Report is no longer a private document. It is part of a court record. Since it is the basis for the adjudication, only the most compelling reasons can justify the total foreclosure of public and professional scrutiny. Brown & Williamson, 710 F.2d at 1180 (quoting Joy v. North, 692 F.2d 880 (2d Cir.1982)). The court further noted that, in cases where wrongdoing has been alleged, there is a "natural desire . . . to shield prejudicial information contained in judicial records from competitors and the public." The court concluded that:
Id. The court also clarified that a confidentiality agreement between the parties does not justify sealing a court record:
Id. The court subsequently held that the sealing order was improper. Id. at 1176. In the present case, the transcript of the deposition of Dirk Been was lodged with the court and relied upon by the parties in arguing the merits of this case. As a consequence, and under the authorities cited above, the transcript is presumed to be available to the public unless the exacting standards set forth in NBC Subsidiary are met. As discussed below, Been has not met his burden. The court may order that a record be filed under seal only if it expressly finds that: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest. Cal. Rule of Ct. 243.1(d). Been argues that his privacy interests are sufficient to overcome the presumption of openness. However, the California Court of Appeals recently ruled that privacy interests, including the potential for embarrassment, are insufficient to overcome the presumption of openness. Hurvitz v. Hoefflin, 84 Cal.App.4th 1322, 101 Cal.Rptr.2d 558 (2000). The dispute in Hurvitz arose from allegations that Hoefflin, a plastic surgeon, exposed and mocked his patients' physical characteristics while they were under anesthesia. Many of the patients were well-known celebrities. Id. at 561-62. The trial court entered an order to seal declarations that had been filed with the court because it felt that the patients, who were not parties to the lawsuit, should not be subjected to any embarrassment or prejudice, and because the information in question was protected by "the physician-patient privilege and [the patients'] rights to privacy and dignity." Id. at 562-63. The Court of Appeal held that the order sealing the declarations and barring further disclosure of patient information was unconstitutional. Id. at 561. The court's analysis is fully applicable here:
Id. at 567. The court also ruled that the sealing order was unjustified because "[c]ourt records are public records, available to the public in general, including news reporters, unless a specific exception makes specific records nonpublic." Id. at 569 (quoting Gilbert v. National Enquirer, Inc., 43 Cal.App.4th 1135, 1149, 51 Cal.Rptr.2d 91 (1996) and citing NBC Subsidiary, Inc.). There are many other cases that have held that potential embarrassment or injury to reputation is insufficient to overcome the presumption of public access to court records. See, e.g., Under Seal v. Under Seal, 27 F.3d 564 (4th Cir. 1994) (the party seeking to overcome the presumption of public access "bears the burden of showing some significant interest that outweighs the presumption" and potential harm to reputation is insufficient to overcome presumption of access to court records); Mack v. Derwinski, 2 Vet.App. 345 (CVA 1992), writ denied, 976 F.2d 746 (Fed. Cir.) (court refused to seal records showing petitioner's history of mental illness because his vague concerns of damage to privacy or possible future discrimination were insufficient to overcome the presumption of access to court records); Doe v. Frank, 951 F.2d 320 (11th Cir. 1992) (denying request to sue under fictitious name; embarrassment to plaintiff of having to admit his alcoholism was not sufficient to outweigh presumption of openness); Black v. U.S., 24 Cl.Ct. 461 (Cl.Ct. 1991) (potential for embarrassment or injury to reputation is insufficient to overcome presumption of access to court records); Davis v. Reynolds, 890 F.2d 1105 (10th Cir. 1989) (holding that witness' interest in preserving privacy and preventing embarrassment was not an "overriding interest" to justify closure); Littlejohn v. Bic Corp., 851 F.2d 673 (3d Cir. 1988) (newspaper entitled to access evidentiary materials submitted to court; party's desire for privacy was insufficient to overcome presumption of access); Wilson v. American Motors Corp., 759 F.2d 1568 (11th Cir. 1985) (court should not seal record merely because company did not want it to be used against it in other cases); Matter of Search of 1993 Jeep Grand Cherokee, 958 F.Supp. 205 (D. Del. 1996) (although court records contained personal information, it was not of such an "intimate" nature to justify denial of public access; potential for embarrassment or adverse impact on reputation did not justify sealing records); Picard Chemical Inc. Profit Sharing Plan v. Perrigo Co., 951 F.Supp. 679 (W.D.Mich. 1996) (once report was submitted to court it became part of public record and subject to public access; harm to reputation was insufficient to deny public access); State v. Cottman Transmission, 542 A.2d 859 (Md. App. 1988) (First Amendment and state constitutional right of access apply to proceedings and documents in civil lawsuit; closure not justified merely to minimize damage to corporate reputation). In the present case, Been's purported privacy interest does not outweigh the important First Amendment issues at stake. Been's declaration in support of his motion for a protective order mentions only one concern that he believes justifies confidentiality: I am pursuing a career as a performer, and I desire to maintain the confidentiality of my deposition testimony in order to protect my reputation in the entertainment field. I believe it would create significant professional embarrassment and hardship to reveal my private impressions on a production company and its production methods, and it would also create an impression in the industry that I am uncooperative and cannot be trusted. Declaration of Dirk Henry Been in Support of his Motion for a Protective Order, ¶ 13. As noted above, courts have held that potential injury to reputation is insufficient to overcome the presumption of public access to court records, and thus Been does not present an "overriding interest" that would justify sealing his deposition. Further, the Declaration does not explain why Been thinks he might be embarrassed or why he might be perceived as uncooperative or untrustworthy. In short, there is no evidence at all that Been will, in fact, suffer any hardship. His conclusory statement that he is concerned that he might suffer some "professional embarrassment" if the contents of his (presumably truthful) deposition transcript are disclosed is insufficient to overcome the presumption of openness.(4) Thus, Hurvitz and NBC Subsidiary mandate here that Been's motion be denied, that Lance's motion be granted and the deposition be unsealed. Even if this Court were to conclude that Been's vague concern regarding his professional reputation constituted an interest worthy of protection, the sealing of an entire deposition is not a "narrowly tailored" remedy. Cal. Rule of Ct. 243.1(d) requires the Court to consider less restrictive alternatives and, if none exist, to ensure that the selected remedy is narrowly tailored, such as redacting a specific word or line. Under no circumstance would the sealing of Been's entire deposition transcript be considered "narrowly tailored." In any event, Been has failed to establish any overriding interest sufficient to overcome the presumption of access to court records in this case. E. The parties' confidentiality agreement does not bind this Court. The fact that the parties in this matter may have entered into a confidentiality agreement does not bind the court and is not a legitimate justification for sealing Been's deposition. See Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165 (6th Cir. 1983) (parties' agreement does not bind the court); Bryan v. The Pep Boys, 2000 U.S. Dist. Lexis 13499 (E.D. Pa. 2000) (sealing orders should not be entered merely because the parties agree to seal the records.). In Bryan, the parties to a contentious lawsuit agreed to seal numerous court records. However, the federal district court refused to seal the records merely because the parties agreed to do so. The court ruled that the parties' agreement to seal the records was insufficient to counter the general rule of open access to information. The judge stated that the parties would have to demonstrate a specific and serious need for confidentiality if they wanted to overcome the presumption of openness. Id. It is also important to note that the Stipulation itself does not automatically require the deposition transcript to be confidential, because it states that disputed materials are subject to a court decision. See Stipulation Regarding Confidential Information Related to Deposition of Dirk Been at para. 11 (noting that a court order would overrule the agreement of the parties). Thus, regardless of the existence of a confidentiality agreement, Been must still meet the standards set out in NBC Subsidiary and in Rule 243.1. He has not done so. II. Public policy requires openness of court records, including Been's deposition transcript. Courts have consistently noted that access to courts and court records is important for public education, public trust, and the integrity of the court system. In this case, access to court records, including Been's deposition, is particularly important because the case involves allegations of game show-fixing in violation of federal law. See 47 U.S.C. § 509 (prohibited practices in contests of knowledge, skill, or chance).(5) Survivor is a wildly popular television program. It is presented to the public as a hybrid game show/reality show. Ordinary Americans are sent to remote places with little or no survival gear and must endure the elements, compete in "challenges" and vote each other out of the game every few days. The winner of the game receives one million dollars. Contestants on the show were well aware that they were thrusting themselves voluntarily into the public eye and that their every action would be subject to public observation and discussion. Many of them, including Been, have used their appearance on the show to pursue a career as a performer. Far from retreating from public view, Been has sought it out. The public believes - and is led to believe - that the events shown are actual events, that the people who win "challenges" are the true winners, and that the show accurately portrays the interpersonal relationships of the contestants. In fact, the great lure of the program is the dynamics of those relationships and the alliances that form or fall as events unfold. Many of the contestants have won a large fan base who admire them for their character or their efforts competing in the game. Been himself has attempted to cultivate a fan base of those who admired him as a "castaway." It goes without saying that the public would be gravely disappointed if the show's results had been manipulated in some way. Thus, this case does not present an ordinary dispute between two private parties. As in NBC Subsidiary, the case is of great interest to the public. Amici do not know whether Been has any information regarding the alleged manipulation of Survivor's results. But because Been's deposition transcript has been relied upon by the parties, the public's right of access to that information, whatever it may be, must prevail. California rules presume that judicial proceedings and records will be open to the public. Because Been has not met his burden of establishing an "overriding interest" that would overcome the presumption of openness, Been's deposition transcript, lodged with the court and used as evidence in this case, should be open to the public. Amici therefore request that the Court deny Been's motion for a protective order and order that the Court's file in this matter be unsealed. DATED: May 7, 2001 Respectfully submitted, MUNGER, TOLLES & OLSON LLP By: __________________________________ Steven M. Perry Attorneys for THE REPORTERS COMMITTEE Of counsel:
Lucy Dalglish, Esq. FEDERAL CASES Black v. U.S., 24 Cl.Ct. 461 (Cl.Ct. 1991) 9 Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165 (6th Cir. 1983) 5, 10 Bryan v. The Pep Boys, 2000 U.S. Dist. LEXIS 13499 (E.D. Pa. 2000) 11 Davis v. Reynolds, 890 F.2d 1105 (10th Cir. 1989) 9 Doe v. Frank, 951 F.2d 320 (11th Cir. 1992) 8 El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147, 113 S.Ct. 2004, 124 L.Ed.2d 60 (1993) 3 Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) 3 Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893 (7th Cir. 1994) 6 In re Mack, 976 F.2d 746 (Fed. Cir. 1992) 8 Joy v. North, 692 F.2d 880 (2d Cir. 1982) 6 Littlejohn v. Bic Corp., 851 F.2d 673 (3d Cir. 1988) 9 Matter of Continental Illinois Securities Litigation, 732 F.2d 1302 (7th Cir. 1984) 6 Matter of Search of 1993 Jeep Grand Cherokee, 958 F. Supp. 205 (D. Del. 1996) 9 Picard Chemical Inc. Profit Sharing Plan v. Perrigo Co., 951 F. Supp. 679 (W.D.Mich. 1996) 9 Press Enterprise Co. v. Superior Court (Press Enterprise I), 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) 3, 4 Press Enterprise Co. v. Superior Court (Press Enterprise II), 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) 3 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) 3 Rushford v. New Yorker Magazine, Inc., 846 F.2d 249 (4th Cir. 1988) 5 Under Seal v. Under Seal, 27 F.3d 564 (4th Cir. 1994) 8 Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) 3 Wilson v. American Motors Corp., 759 F.2d 1568 (11th Cir. 1985) 9 STATE CASES Copley Press, Inc. v. Superior Court, 6 Cal.App.4th 106, 7 Cal.Rptr.2d 841 (1992) 6 Estate of Hearst, 67 Cal.App.3d 777, 136 Cal.Rptr. 821 (1977) 4 Hurvitz v. Hoefflin, 84 Cal.App.4th 1322, 101 Cal.Rptr.2d 558 (2000) 7, 8 NBC Subsidiary, Inc. v. Superior Court, 20 Cal.4th 1178, 980 P.2d 337, 86 Cal.Rptr.2d 778 (1999) 2, 3, 4, 5 NBC Subsidiary, Inc. v. Superior Court, 86 Cal.Rptr.2d 778, 980 P.2d 337 (Cal. 1999) 1 State v. Cottman Transmission, 542 A.2d 859 (Md. App. 1988) 4, 9 STATUTES 47 U.S.C. § 509 11 California Rule of Court Rule 243.1 11 Rule 243.1(c) 5 Rule 243.1(d) 5, 7, 10 FOOTNOTES: 1. The Stipulation, on file with this Court, speaks for itself, and its terms will not be recited herein. 2. Amici note that the deposition has not yet been formally sealed by this Court, but it was filed conditionally under seal by Stillman. We therefore refer to "unsealing" the deposition, even though no sealing order has formally been entered. 3. The court also quoted from Estate of Hearst, 67 Cal.App.3d 777, 136 Cal.Rptr. 821 (1977): "when individuals employ the public powers of state courts to accomplish private ends, . . . they do so in full knowledge of the possibly disadvantageous circumstance that the documents and records filed . . . will be open to public inspection. . . . In a sense [such civil litigants] take the good with the bad, knowing that with public protection comes public knowledge." 4. Been also asserts that he "has consistently maintained that his impressions and his thoughts on his involvement in Survivor are confidential" and that "Been has consistently refused to answer questions when faced with the numerous encounters with reporters and authors . . . ." See Been's Motion for a Protective Order at p.4. However, Been has been interviewed on The Early Show, Late Night With David Letterman, and E! True Hollywood Story about his experience on the show. He has also given interviews that appeared on various websites such as christianity.com and maxpages.com. In any event, his own belief that his recitation of events as a "survivor" is confidential is a wholly inadequate basis for a sealing order. 5. Section 509 prohibits "any special and secret assistance; " any "persuasion, bribery, intimidation, or otherwise;" or "any artifice or scheme" for the purpose of "prearranging or predetermining in whole or in part the outcome of a purportedly bona fide contest of intellectual knowledge, intellectual skill, or chance." It imposes liability on both producers and any conspirators. |