The defendant’s corporate designee and records custodian moved for a protective order to forbid videotaping of his deposition, on the grounds that videotaping would constitute processing of his personal information for which he did not consent. The judge examined the laws cited by the deponent—the EU’s General Data Protection Regulation (“GDPR”), the UK’s Data Protection Act, and the European Convention on Human Rights—and ultimately determined that GDPR protections “are directed to the use of videotaped images of persons unaware (at least, initially) of being videotaped.” But because this deponent was undisputedly aware that his deposition would be videotaped for purposes of the litigation, the court found the EU laws inapplicable to the litigation.
The court also examined the deponent’s GDPR argument in the context of a U.S. Federal Rule 26(c) analysis, which allows the court to balance competing factors to determine whether there is good cause to limit certain discovery based on annoyance, embarrassment, or oppression. The deponent refused to consent to the videotaping on the grounds that it was solely intended to annoy and intimidate. The court was unconvinced by this speculative argument that lacked any facts to establish a particularized harm to support the requested relief. The court also credited the plaintiff’s interest in videotaping to preserve the testimony, noting that the deponent might stay in Europe rather than appear for the November 2018 trial in Mobile, Alabama. Still, to “ease [the deponent’s] privacy concerns,” the judge ordered that the video component of the deposition not be publicly disclosed or otherwise released outside of the current litigation.
This issue reflects the tension between U.S. and EU approaches toward the involuntary collection of personal information. For the deponent, the right to protect his information from unwanted collection is fundamental, albeit not absolute. For the court, this was an eleventh-hour attempt to stifle a discovery tool squarely available under the Federal Rules.
Historically, U.S. court decisions reflect the view that EU privacy laws do not deprive a U.S. court of the power to order a party to subject to its jurisdiction despite any purported violation of EU law, and the Nikka Court stayed the course. However, the instant decision was narrow and fact-specific, suggesting the fatal flaw was not the assertion of GDPR rights per se but rather a lack of evidence of particularized harm needed to prevail in the Rule 26(c) balancing test. Given that GDPR rights are not absolute, balancing tests may serve as a convenient judicial tool to ensure the U.S. discovery process is not overridden by the development of privacy laws and increased data subject rights. But as U.S. courts see an uptick in discovery protests grounded in the GDPR, there may not always be an equitable mechanism to escape the GDPR analysis.
Authored by Michelle Kisloff and Morgan Perna
*Morgan Perna was not yet a member of the Washington, D.C. bar when this post was originally published.
