| by Heather Duncan, Esq.

In our February 2017 Network News, we outlined upon the basics of deposition confidentiality. This month, we explore some of the more specific and nuanced aspects of confidentiality, both in depositions and in court proceedings.

Generally, depositions and exhibits are accessible as part of the record of the case and may be disclosed accordingly by the litigants. Absent special circumstances, transcripts of court proceedings are public records accessible to all.

Under exceptions to the general rule, with a court protective order or a stipulation of all of the parties, all or portions of a transcript may be deemed confidential.

There are three levels of restricted disclosure available for deposition transcripts, with an additional level available for court proceedings:

CONFIDENTIAL: Under this designation, “confidential” information may only be used in the subject litigation and may be shared with and/or reviewed only by the parties, all employees of the parties, witnesses, experts, legal counsel, and anyone else involved in the legal process.

ATTORNEYS AND CLIENT REPRESENTATIVES: Under this category, counsel has access to all information, including the opponent’s trade secret information, but only one or a few client representatives, agreed to by the client and the litigation opponent, may receive access to such information.

ATTORNEY EYES ONLY: The most restrictive designation for deposition transcripts is the limitation of information only to legal counsel under the “attorney eyes only” designation. Under this restriction, documents and information disclosed are only shared with the parties’ legal counsel, including legal staff, and under certain restrictions, outside experts. None of the specific information can be revealed to anyone else.

COURT TRANSCRIPTS UNDER SEAL: In court, there are some transcripts of proceedings that are not available to anyone, including the attorneys who were present and/or the parties without a court order unsealing the proceeding. This includes proceedings that are automatically sealed, such as Marsden motions (requesting new counsel) and Pitchess motions (requesting police misconduct files), or any proceeding ordered sealed by the judge. In addition, any request for a transcript of a juvenile proceeding made by an individual who is not the minor, the minor’s parent or guardian, or  the minor’s counsel, must be made to the court.

If you foresee a confidentiality issue it is best to be prepared beforehand with a signed stipulation or a judicial protective order. For a deposition, it is a good idea to have a copy of the order attached to the deposition transcript. If a confidentiality dispute arises during the deposition and cannot be resolved, any attorney or the deponent may suspend the deposition and move for a protective order under California Code of Civil Procedure Section 2025.420.

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