With Pastilong and Rodriguez Depositions Nigh, Will Videos Surface on Web?

With the deposition of West Virginia University athletic director Ed Pastilong scheduled for Friday at the Waterfront Place Hotel in Morgantown, a key question pertaining to WVU’s lawsuit against Rich Rodriguez remains: to what extent will the videotaped depositions of Rodriguez and Pastilong enter public record?

At a motions hearing on April 3, WVU attorneys expressed concern that videotaped testimony of the concerned parties might show up on YouTube. Wakefield then asked Monongalia County Circuit Court Judge Robert Stone to order that the depositions be conducted in private and that all copies and transcripts of the videotaped depositions be kept private.

In opposing the request, Marv Robon, co-counsel for Rodriguez, argued to Stone, “This is a case involving a public institution. We don’t think the court should impose a gag order on the media, which is what the other side is suggesting…We have nothing to hide.”

“Maybe we should just rent the football stadium and hold the depositions there,” replied Stone sarcastically. “The depositions will proceed as they normally do. There is no gag order. The parties can speak to whomever they want to and say whatever they want to say. But maybe the videos should not be made available.”

Ultimately, Stone asked Robon to submit a written statement explaining why he feels the transcripts should be made available to the public, on which he will rule at a later date.

Rule 30(b)(3) of the West Virginia Rules of Civil Procedure allows for sound-and-visual recording of depositions. Ironically, holding the depositions at a football stadium, as Stone jokingly suggested, is not outside of the realm of the law as stated in Rule 29(a) of the WVRCP. While that won’t happen, Stone must now decide whether allow Robon to freely disseminate any videotaped depositions and their transcripts at his discretion, or to issue a protective order barring the dissemination of the deposition material to anyone not involved in the adjudication of the case.

Upon motion by either party, Rule 26(c) of the WVRCP allows the court in the circuit in which the deposition is being taken to make an order, when justice requires, protecting a party from annoyance, embarrassment, or undue burden. WVRCP 26(c)(6) states that such an order can require that a deposition be sealed and opened only by order of the court.

The potential ramifications of making the depositions of public figures available to the public, regardless of the medium in which they are presented, are substantial. “Misrepresentation by the media through the use of sound bites is a recognized ‘Achilles heel’ of videotaped depositions.” Condit v. Dunne, 225 F.R.D. 113, 118 (S.D.N.Y. 2004). The concern of the attorneys for WVU, presumably, is that sworn statements by Pastilong or other WVU officials could be spliced into a “mixtape” casting the school in an unflattering light, which would then be posted for public consumption on the internet. For instance, the unedited video depositions of many well-known figures, such as Tupac Shakur, Michael Jackson, and Bill Gates, are already available. Depositions taken in cases involving government agencies or a prevailing public interest are less likely to receive court protection.

Should Judge Stone order that the videotaped depositions and transcripts of Rodriguez and Pastilong be kept private, or should Robon be permitted to make them available to the media as he sees fit? Would Rodriguez or Pastilong suffer from “annoyance” or “embarrassment” as a result of the depositions being made available to the public? Does this case involve a “prevailing public interest” requiring that the depositions be made public, or does WVU’s status as a public institution necessitate that they enter public record?

- submitted by Brian Welch, second-year student, WVU College of Law

(Photo by Eric Seals/Detroit Free Press)