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S.D. Ala.: No Basis Under GDPR for Protective Order Preventing Videotaping of Deposition

On Friday, Magistrate Judge P. Bradley Murray, issued a decision, D'Amico Dry D.A.C. v. Nikka Fin. Corp., No. 18-0284-KD-MU, 2018 U.S. Dist. LEXIS 179858 (S.D. Ala. Oct. 19, 2018) denying a motion for a protective order. This is an admiralty action in which d'Amico seeks to collect a $1.7 million foreign judgment against Nikka under the alter ego theory. The motion for a protective order aimed to protect Nikka's 30(b)(6) representative and records custodian from taking a deposition that would be videotaped. The Defendant argued that it did not receive notice that the deposition would be videotaped; the purpose of the videotaping was to embarrass, intimidate, and harass the witness; and the videotaping would violate his privacy rights under the Data Protection Act, the General Data Protection Regulation, and the European Convention on Human Rights and the Human Rights Act. Nikka makes the argument that the video of the deposition would be protected personal data.

Judge Murray declined to issue on a protective order on the basis of lack of notice because the October 5, 2018 motion for a protective order itself was filed well in advance of the deposition scheduled for October 24, 2018. He also denied the motion on the basis of it being used to harass the witness because of Nikka's failure to establish the actual harm that would be suffered and because the witness was able to endure testifying in the trial of a related action in New York.

Judge Murray also rejected the privacy concerns of the witness, stating that the GDPR and other privacy regulations were not a basis to reject the use of video of an individual in a deposition. "[T]hose Acts are directed to the use of videotaped images of persons unaware (at least,initially) of being videotaped. Here, of course, Mr. Coronis is well aware his deposition is to be videotaped and, therefore, having in hand no authority to the contrary supplied by Nikka, the undersigned DECLINES to find that the Acts to which Nikka cites are applicable to Mr. Coronis' duly-noticed videotaped deposition,which is to be utilized in civil litigation in the United States." Id. at *11-12. However to "ease his privacy concerns" Judge Murray did order that the video of the deposition not be publicly disclosed or used in any other case or investigation.

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