Motion to Take Down YouTube Depositions Response
- All of the cases cited by Defendants are distinguishable from the instant case because they dealt with specific findings of fact regarding 1) particular content; and 2) the relief requested was specifically focused on regulating that content.
In support of their argument, Defendants cite numerous cases where courts have issued protective orders. However, each of these cases is distinguishable from the relief requested in this case, which is overly broad and not based upon any specific facts.
Defendants cite Mullaney v. Aude, 126 Md. App. 639 (1999), but that case dealt with the issuance of a protective order after a male defense counsel attempted to gain an unfair advantage against a female Plaintiff's counsel at a deposition by calling her demeaning names. Clearly, the trial court was prohibiting specific conduct that was abusive, which is completely different than the conduct in this case which simply involves the posting an unedited, unaltered videotaped deposition on the internet of a Defendant who gave testimony under oath. To be sure, 99% of Dr. Martin's deposition testimony involves her treatment of Jonathan Valladares, which she also publicly testified about at trial. It seems anomalous that Dr. Martin was perfectly fine testifying about this information at trial but is somehow embarrassed by her deposition testimony now. It just doesn't make any sense. Mullaney involves completely different subject matter.
Defendants next cite the fourth circuit case of Springs v. Ally Fin., Inc., No. 3 3:10-CV-311-MOC-DCK, 2014 WL 7778947 (W.D.N.C. Dec. 2, 2014). Springs was a magistrate decision that was later affirmed by the fourth circuit. See Springs v. Ally Fin. Inc., 684 F. App'x 336, 338 (4th Cir.), cert. denied, 138 S. Ct. 221, 199 L. Ed. 2d 119 (2017). In Springs, the conduct of Plaintiff's was particularly malicious and egregious. He posted a video on YouTube titled "Amy Bouque Deposition: Best Ways To Tell If A Witness Is Lying." "The 37-minute video consists entirely of excerpts from Bouque's 30(b)(6) deposition, overlaid with audio commentary by Plaintiff. In her commentary in the video, Plaintiff repeatedly suggests that Bouque is lying at the deposition. Plaintiff asserts that Bouque is lying based almost entirely on her hand gestures. Around the same time, Plaintiff posted two other videos on YouTube, one entitled "Ally Bank-Agent of the Elite-Doesn't Care About Customers," and the other entitled "Ally Bank-They Don't Represent Your Interests." Springs v. Ally Fin., Inc., No. 3:10-CV-311-MOC-DCK, 2014 WL 7778947, at *3 (W.D.N.C. Dec. 2, 2014), aff'd, No. 3:10-CV-00311-MOC-DC, 2015 WL 506471 (W.D.N.C. Feb. 6, 2015), order vacated in part, 657 F. App'x 148 (4th Cir. 2016).
In upholding the Magistrates issuance of a protective order, the fourth circuit explained its first amendment analysis. "In the sealing context, the First Amendment limits restricting access to court documents to restrictions 'necessitated by a compelling government interest" and that are "narrowly tailored to serve that interest.' Doe, 749 F.3d at 266 (internal quotation marks omitted). Applying this framework to the protective order at issue, we readily conclude that the district court's order does not unduly infringe on Springs' First Amendment rights. The district court has a compelling interest in preventing litigants like Springs from using discovery to mock and harass a private party on the Internet. See Seattle Times, 467 U.S. at 34, 104 S.Ct. 2199 ("Rule 26(c) furthers a substantial governmental interest unrelated to the suppression of expression."). Moreover, the district court's order is narrowly tailored to support that interest, only preventing Springs from using the video and audio recordings to distribute her message. Springs v. Ally Fin. Inc., 684 F. App'x 336, 338 (4th Cir.), cert. denied, 138 S. Ct. 221, 199 L. Ed. 2d 119 (2017).
Unlike the Plaintiff in Springs, Plaintiff's counsel is not mocking or calling Dr. Martin a liar. Plaintiff's counsel has not edited or altered her videotaped deposition. Plaintiff's counsel freely admitted in the synopsis to the video that they lost the trial and the jury did not find that Dr. Martin breached the standard of care. The purpose of posting the videotaped deposition does not have anything to do with Dr. Martin. The purpose of posting the deposition is merely for educational purposes. Dr. Martin is the only one attempting to making the posting of this video about Dr. Martin.
Moreover, unlike in Springs, Defendants have not identified any specific harm to Dr. Martin and the proposed protective order is not narrowly tailored to preclude whatever harm is being claimed (which is actually none). Thus, the case is inapposite on the facts.
Defendants next cite several other cases that are factually distinct. Barket v. Clark, No. 2:12-CV-00393-JCM, 2013 WL 647507, at *3 (D. Nev. Feb. 21, 2013) (holding good cause for the issuance of a protective order in this case is supported by the fact that the subject dispute concerns each party's alleged improper use of the internet to harm the other. Plaintiff's alleged internet statements regarding his desire to take and see Defendant's video deposition also suggest that he may post that deposition or excerpts therefrom on the internet to support his position in this case or to possibly make other criticisms or accusations against the Defendant. Such postings will likely serve only to add fuel to the dispute between the parties); Larson v. Am. Family Mut. Inc. Co., No. CIV.A. 06CV01355PSFM, 2007 WL 622214, at *1 (D. Colo. Feb. 23, 2007)
(finding Plaintiff's counsel does nothing to hide the identity of the deponents in his videos, edits the clips chosen, and thus inaccurately portrays these individuals in an embarrassing and humiliating light.); Patterson v. Burge, No. 03 C 4433, 2007 WL 2128363, at *4 (N.D. Ill. July 24, 2007) (holding that certain portions of depositions that were the subject of potential harassment should be prohibited from disclosure, but also holding that requests that all future depositions be precluded from disclosure is "too board and is premature."); Stern v. Cosby, 529 F. Supp. 2d 417, 422 (S.D.N.Y. 2007) (finding there is a danger that judicial efficiency would be impaired by the premature release of the videotape and transcript, and Bill Cosby has a strong privacy interest in resisting disclosure. "The allegations being explored at Cosby's deposition have already drawn attention from certain sectors of the media-described by Cosby's counsel as the 'exploitive media.'" Indeed, certain individuals seem to have their own agendas."); Baker v. Buffenbarger, No. 03-C-5443, 2004 WL 2124787, at *2 (N.D. Ill. Sept. 22, 2004)
(finding Defendants claim that Plaintiffs desire to use the materials for insidious purposes, including to embarrass Defendants and to influence the impending national union election.); and See Paisley Park Enterprises, Inc. v. Uptown Prods., 54 F. Supp. 2d 347, 348 (S.D.N.Y. 1999)
(finding there is every reason to believe that defendants' motive in seeking to videotape the deposition of the famous singer "Prince" is at least in part to generate notoriety for themselves and their business ventures by making non-litigation use of the videotape.)
As is clearly shown above, all of these cases deal with specific findings of fact regarding particularly "embarrassing, annoying, or harassing" subject matter. The protective orders were specifically tailored to address these issues. Nearly all of the motions for a protective order occurred prior to trial. Each of these cases is factually distinct from the instant case where there are no facts supporting the claim of "embarrassment, annoyance, and harassment." In addition, unlike the cases cited above, the proposed protective order in this case is not specifically tailored to avoid running afoul of the first amendment.
- Defendants Leslie A. Mitchell, M.D., Gisella Valderrama, M.D., Melissa Longley, RPA-C, and Scott Wissman, M.D. motion for a prospective blanket protective order regarding their entire videotaped depositions more than six (6) months after the trial is a violation of the Plaintiff's first amendment rights and Md. Rule 2-403 because it is 1) not made with respect to any specific content; 2) is overly broad; 3) and is not based upon a showing of any identifiable embarrassment, annoyance, or harassment.
Amazingly, Defendants don't stop with Dr. Martin. They next argue for a blanket prospective protective order, post-trial, for the remaining Defendants. They do this without any showing of proof regarding the need for a protective order or any actual harm to the prior litigants. In fact, these Defendants have not filed any affidavits in support of their motion.
There is a real danger in this kind of request. In a sense, the Defendants are asking this Court to enact a wholesale prospective ban on the public disclosure of videotape deposition material without any factual findings of harm. Defendants provide no evidence in support of this ban other than that the Defendants are doctors. However, the Maryland legislature has not enacted a law that says, "videotape depositions of doctors in medical malpractice cases shall never be disclosed to the public" and the court cannot judicially engraft such a ban without violating the separation of powers clause of the Maryland Declaration of Rights. Such a ban would also significantly violate the Plaintiff's right to free speech, freedom of expression, and would be an abuse of discretion pursuant to Md. Rule 2-403.
None of the case law cited by the Defendants supports such a prospective ban, particularly after the trial has concluded. In fact, all of the case law cited by the Defendants performs a first amendment analysis with specific findings of fact and protective orders that are narrowly tailored to address the court's concerns. To wit, all of the attempted motions that sought prospective blanket protective ordered were determined to infringe upon the Plaintiff's first amendment rights. See Patterson v. Burge, No. 03 C 4433, 2007 WL 2128363, at *4 (N.D. Ill. July 24, 2007) (holding that requests that all future depositions be precluded from disclosure is "too board and is premature.")
On a much more fundamental level, it seems odd that these Defendants are moving to preclude the Plaintiff from publishing their videotaped depositions when each over these individuals publicly testified at trial regarding the care they provided to Jonathan Valladares. Defendants are clearly confident in the treatment they provided Jonathan. Their depositions talk at length about their medical care and are perfectly benign. See Exhibits 3-8. How are they harmed by discussing the treatment they provided via their deposition? Is it just the fear that somehow someone might find out they were sued? If that is the case, all of this information is a matter of public record. To be sure, anyone reading Maryland Judiciary Case Search would see the big bold type at docket entry number 292 for the Valladares case stating, "VERDICT: IN FAVOR OF ALL DEFENDANTS." There simply is no harm here.
For these reasons, the Court must deny Defendant Mitchell's, Valderrama's, Longley's, and Wissman's Motion for a protective order. It is overly broad and based upon no factual showing whatsoever.
- Defendants requested relief for a blanket protective order raises other freedom of speech and due process concerns, particularly regarding physicians, and their prior deposition testimony.
As the Court is fully aware, doctors play a special role in our judicial system because they are often called upon to testify both as experts and fact witnesses in criminal and civil cases. Dr. Martin testified at her deposition that she has testified several times at deposition and at trial as a medical witness at trial in child abuse cases. See Martin Dep. P. 8, Lines 15-21, and P. 9 Lines 1-3 attached as Exhibit 3. Similarly, Dr. Edelstein testified at her deposition that she has testified before as a medical-legal expert. See Edelstein Dep. P. 10 attached as Exhibit 4. Dr. Mitchell testified at her deposition that she has testified "many" times as a fact witness and medical expert in child abuse cases and medical malpractice cases. See Mitchell Dep. P. 9-15 attached as Exhibit 6. All of these physicians will testify again as experts and fact witnesses in the future. It's part of the profession.
Nearly all of the cases cited by the Defendants involve private citizens with a strong privacy interest regarding specific matters that would clearly be harmful to them or the impending trial if publicly disclosed. Unlike those individuals, a physician's deposition testimony in a medical malpractice case has wide ranging value to the general public and to other attorneys in future litigation. Many databases exist throughout the country that contain physician depositions. All of these depositions are accessible to the general public and contain important information regarding medical practice and the standard of care that is a matter of public concern. These depositions are used frequently used by attorneys for Plaintiff, Defendants, and criminal litigants for trial preparation and the impeachment of medical witnesses.
In this case, there is a very strong public interest in this deposition testimony that far outweighs whatever privacy interest the Defendants claim they might have in their deposition testimony. This is particularly true with respect to whether a physician has ever been sued before. Questions regarding prior litigation history frequently come up in physician depositions. While not always directly admissible, whether a physician has been sued often leads to additional questions regarding the subject matter of their prior testimony, which is often admissible at trial and is vital to an attorney's ability to impeach the witness. Plaintiff's counsel has impeached numerous physicians in the past-both fact witnesses and experts-with their prior trial and deposition testimony.
If the Court were to adopt a blanket rule that none of a physician's prior deposition testimony could be publicly disclosed purely because the physician is concerned about someone learning that they have been sued, litigants in our legal system would be unnecessarily denied access to a potentially essential piece of cross-examination material regarding the witness. This would affect numerous litigants across the board, not only in medical malpractice cases but in auto accident cases, as well as criminal cases. As stated above, physicians play a vital role in many cases and a litigant must be able to enquire and cross-examine them regarding their testimony.
Numerous Courts have commented about the special role that physicians play in our legal system and the public interest in their testimony. In Burlington City Bd. of Educ. v. U.S. Mineral Prod. Co., 115 F.R.D. 188, 190 (M.D.N.C. 1987), the Court denied a protective order precluding a litigant from sharing a physician's prior deposition testimony. In reaching its decision, the Court stated as follows:
The present controversy should, if anything, serve to assuage even that reservation-i.e., that video depositions may be too expensive. While video depositions may impose additional costs on the parties, permitting video depositions of experts can, in the long run, reduce litigation costs in general. The high cost associated with deposing expert witnesses can be curtailed by allowing plaintiffs to share information with plaintiffs in other cases. The courts considering the matter have overwhelmingly and decisively endorsed the sharing of discovery information among different plaintiffs, in different cases, in different courts. Kamp Implement Co., Inc. v. J.I. Case Co., 630 F.Supp. 218 (D.Mont.1986) (collecting cases); Cipollone v. Liggett Group Inc., 106 F.R.D. 573, 586 (D.N.J.1985) (collecting cases); U.S. v. Hooker Chemicals & Plastics Corp., 90 F.R.D. 421, 426 (W.D.N.Y.1981). The sharing of information between even diverse plaintiffs promotes speedy, efficient and inexpensive litigation by facilitating the dissemination of discovery material necessary to analyze one's case and prepare for trial. It reduces repetitious requests and depositions, thereby conserving even defendant's time and expense in having to respond or attend the deposition. It conserves judicial resources by reducing the number of discovery motions and disputes. Permitting plaintiffs to share information helps counterbalance the effect uneven financial resources between parties might otherwise have on the discovery process, thereby protecting economically modest plaintiffs faced with financially well-off defendants and improving accessibility to justice. Id. Defendants will not be heard to complain that sharing information will burden their defending similar type lawsuits. U.S. v. Hooker Chemicals & Plastics Corp., supra. To some extent, that result is both a desired and expected consequence of the expediting and evening process which sharing produces. "[C]ollaboration among plaintiffs' attorneys ... comes squarely within the purposes of the Federal Rules of Civil Procedure." Id. at 426. Of course, the Court must be vigilant to prevent abuse, such as by a plaintiff's attempt to use present discovery in order to assist him or counsel in another lawsuit. Johnson Foils, Inc. v. Huyck Corp., 61 F.R.D. 405, 410 (N.D.N.Y.1973). Nevertheless, it is the party seeking the Rule 26(c) protective order who bears the burden of establishing with a specific factual showing both the need for a protective order and the harm ensuing without one, should he wish to prevent the sharing of discovery material. Id.; Kamp Implement Co., Inc., supra. Any protective order entered should be narrowly tailored to fit the situation and even confidential material should be shared when possible. Cipollone, supra.
Because video depositions provide a better means of assessing a witness, including an expert witness, it is even more imperative that the parties be able to share them as opposed to stenographic depositions.
Similarly, in Pia v. Supernova Media, Inc., 275 F.R.D. 559, 561-62 (D. Utah 2011), the Court held that "there is nothing inherently oppressive in the dissemination" of a Defendant's deposition. "In fact, several courts have noted that the sharing of depositions should be encouraged. Similarly, while the dissemination of Pia's videotaped deposition may cause him some level of discomfort, the court concludes that is not sufficient to support the entry of protective order." See also Barket v. Clark, No. 2:12-CV-00393-JCM, 2013 WL 647507, at *3 (D. Nev. Feb. 21, 2013) (noting the distinction between expert witnesses and ordinary defendants and holding that an expert witness's depositions should be freely shared); and see Flaherty v. Seroussi, 209 F.R.D. 295, 300 (N.D.N.Y. 2001) (denying a motion for protective order by finding "that there was a strong, legitimate public interest on the part of the citizenry to have unfettered access to court proceedings, particularly when they involve elected officials and the performance of their governmental responsibilities.")
The due process clause of the Maryland Declaration of Rights states that "[t]hat no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land." Md. Const. Decl. of Rts. art. 24. If the court upholds the Defendants request for a blanket protective order in this case, it will effectively deny the Plaintiff and many other litigant's access to essential cross-examination materials regarding medical witnesses. It will also set a precedent for similar motions in the future. This is a violation of the due process of law and the right to a fair jury trial.
Therefore, the Court must deny the Defendants' motion.
- Defendants Motion must be dismissed because this litigation is over, and Plaintiffs' technically is no longer an attorney of records representing the Plaintiff
Defendants move for a protective order pursuant to Maryland Rule 2-403, which states that "on a motion of a party, a person from whom discovery is sought, or a person named or depicted in an item sought to be discovered, and for good cause shown, the court may enter any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense."
Defendants filed this Motion for a Protective Order even though the jury returned a verdict in this matter on April 1, 2019, and thirty days passed with no appeal. At this point, as Defendants have correctly pointed out, the jury verdict has been enrolled. For some inexplicable reason, Defendants chose to file this Motion for Protective Order in the prior case even though that Court does not have any jurisdiction over the Plaintiff's counsel.
"Generally, jurisdiction of a trial court with regard to a specific case ends upon enrollment of a final judgment, which occurs thirty days after its entry." Mullaney v. Aude, 126 Md. App. 639, 650, 730 A.2d 759, 764-65 (1999). "This rule does not, however, preclude a trial court from entertaining a collateral or independent matter." Mullaney v. Aude, 126 Md. App. 639, 650, 730 A.2d 759, 765 (1999). Unfortunately, there is no Maryland case on point specifically addressing whether a Motion for a Protective Order to preclude Plaintiffs' counsel from posting videotaped depositions on the internet is a collateral matter.
Protective orders are "not to be granted liberally." Tanis v. Crocker, 110 Md. App. 559, 574 (1996). Furthermore, "a protective order [is] to be utilized in limited circumstances." Tanis at 575.
Similar to Maryland Rule 2-403, F.R.C.P 26 (c) does not expressly set forth time limits within which a motion for protective order must be made. Brittain v. Stroh Brewery Co., 136 F.R.D. 408, 413 (M.D.N.C. 1991). However, "there is an implicit requirement that the motion must be timely, or seasonable ...." Brittain, at 413. The Court determined that "[a] motion for a protective order is timely if made prior to the date set for producing the discovery." "The failure to timely move for a protective order constitutes grounds for denying the same." Brittain, at 413.
In this case, Defendants believe that their entire videotape depositions should be subject to a protective order after the trial has concluded because they claim that they have for the first time realized that their videotaped depositions are annoying, embarrassing, and harassing to the Defendants. What's interesting is that none of these Defendants moved for such a protective order prior to trial, even though they were fully aware of the contents of their videotape depositions many months prior to trial.
The timing and the Defendants knowledge are two important factors that distinguish this case from Springs C. Ally Fin., Inc., No. 3:10-CV-311-MOC-DCK, 2014 WL 7778947 at *1 (W.D.N.C. Dec. 2, 2014) aff'd by Springs v. Ally Fin. Inc., 657 F. App'x 148, 151 (4th Cir. 2016). In Springs, the Plaintiff's counsel posted a video of the Defendant a year after the entry of final judgment. However, the video he posted was not the entire unaltered deposition of the Defendant, but rather specific experts with voice-over commentary by Plaintiff. The video was entitled, "Amy Bouque Deposition: Best Ways to Tell if A Witness is Lying." Moreover, "[i]n her commentary in the video, the Plaintiff repeatedly suggests that Bouque is lying at the deposition. The plaintiff asserts that Bouque is lying based almost entirely on her hand gestures." Springs v. Ally Fin., Inc., No. 3:10-CV-311-MOC-DCK, 2014 WL 7778947, at *3 (W.D.N.C. Dec. 2, 2014), aff'd, No. 3:10-CV-00311-MOC-DC, 2015 WL 506471 (W.D.N.C. Feb. 6, 2015), order vacated in part, 657 F. App'x 148 (4th Cir. 2016).
In Springs, Defendants claimed "they could not have foreseen the alleged abuse of the discovery process, and timely sought relief once they learned of the video posting(s)." Id. At 6. The Court also noted "[a] motion for a protective order is timely if made prior to the date set for producing the discovery… "a failure to request a protective order prior to the time set for producing the discovery may be excused for good cause such as lack of sufficient time or opportunity to obtain the order." Springs v. Ally Fin., Inc., No. 3:10-CV-311-MOC-DCK, 2014 WL 7778947, at *6 (W.D.N.C. Dec. 2, 2014), aff'd, No. 3:10-CV-00311-MOC-DC, 2015 WL 506471 (W.D.N.C. Feb. 6, 2015), order vacated in part, 657 F. App'x 148 (4th Cir. 2016).
In this case, Plaintiff's counsel has not posted a video of excerpts with voice-over commentary suggesting a witness is lying. Plaintiff's counsel posted Dr. Martin's entire unaltered videotaped deposition on the internet for educational purposes. This is the same videotape deposition that Plaintiff's counsel could have used at trial. Defendants never moved for a protective order prior to taking the videotape depositions or prior to trial. If the Defendants want to move for a protective order, they should have done so prior to the deposition or, at the very least, prior to trial. At this point, their motion for a protective order is untimely and the Court should dismiss their motion for that reason alone.
In addition, Defendants motion does not deal with a collateral issue. In their motion, Defendants wish to preclude Plaintiffs from disclosing entire depositions. Following this logic, Defendants entire deposition transcript is objectionable and somehow offensive. If that was the case, that any Motion for a protective order holding that the Defendants' entire videotape deposition contained objectionable and offensive material would have severely limited the Plaintiff's from using any of these depositions at trial.
Defendants objections in this regard are completely disingenuous and have been waived as untimely.
WHEREFORE: Plaintiff respectfully requests that this Honorable Court deny Defendants' Motion For A Protective Order.
MILLER & ZOIS, LLC
Justin P. Zuber, Esq. #0812180339
Laura G. Zois, Esq. #9512120371
Rodney M. Gaston, Esq. #8806140012
1 South Street, Suite 2450
Baltimore, Maryland 21202
(410) 553-6000│(844) 712-5151
Attorneys for the Plaintiff
Plaintiff requests a hearing on all the issues set forth herein.
Justin P. Zuber
I HEREBY CERTIFY that on this 22nd day of October, 2019, a copy of Plaintiff's Opposition to Defendants' Suzanna Martin, M.D.'s, Leslie Mitchell, M.D.'s, Gisella Valderrama, M.D's, Melissa Longley, RPA-C's, and Scott Wissman, M.D.'s Motion For Protective Order and Request For A Hearing was sent via first-class mail, postage prepaid, to:
Michael K. Wiggins, Esquire
Wharton, Levin, Ehrmantraut & Klein
104 West Street, Post Office Box 551
Annapolis, Maryland 21404-0551
Attorneys for Defendants International Pediatrics, P.A.,
Melissa Longely, RPA-C and Scott Wissman, M.D.
Michael E. von Diezelski, Esquire
Von Diezelski & Turgeon, LLC
1410 Forest Drive, Suite 26
Annapolis, Maryland 21403
Attorneys for Defendants Sylvia Edelstein, M.D.
and Kids Neuro, P.C.
Thomas Monahan, Esquire
Goodell, DeVries, Leech & Dann, LLP
1 South Street, 20th Floor
Baltimore, Maryland 21202
Attorneys for Defendants Suzanna E. Martin, M.D.,
Leslie A. Mitchell, M.D. and MEP Health, LLC
Larry D. McAfee, Esquire
Gleason, Flynn, Emig, Fogleman & McAfee, Chartered
11 North Washington Street, Suite 400
Rockville, Maryland 20850
Attorneys for Defendant Gisella Valderrama, M.D.
Justin P. Zuber, Esq.
MONICA CAMELO, et al. :
v. : Case No.: 442210-V
MELISSA LONGLEY, et al. :
Upon consideration of the Defendants' Suzanna Martin, M.D.'s, Leslie Mitchell, M.D.'s, Gisella Valderrama, M.D's, Melissa Longley, RPA-C's, and Scott Wissman, M.D.'s Motion For Protective Order, and the Plaintiff's Opposition filed thereto, and any argument of counsel, it is on this _____ day of 2019, HEREBY ORDERED:
That the Defendants' Motion is DENIED.
JUDGE, CIRCUIT COURT FOR MONTGOMERY COUNTY
 It is important to point out that the right to "gather" information is distinguished from the right to "speak" about the information you gathered. Defendants suggest that there is no first amendment protection for the "freedom of speech" related to information obtained in discovery, but that is not what the Supreme Court held. The Court only held that there is no first amendment right "to gather." See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32, 104 S. Ct. 2199, 2207, 81 L. Ed. 2d 17 (1984).