Request By:
Mr. Myron Worley
Editor
The Pioneer News
P.O. Box 98
Shepherdsville, Kentucky 40165
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Carl Miller, Assistant Attorney General
You have requested an opinion of the Attorney General as to whether depositions taken in a civil law suit are open for public inspection and whether representatives of the news media may attend a deposition hearing. You state that the questions you ask arise in connection with a law suit between Bullitt Fiscal Court and Jailer Bally Roy Sheperd.
The matters presented in your letter are governed by the Kentucky Rules of Civil Procedure, not by the Kentucky Open Records Law or Open Meetings Law. KRS 61.805; KRS 61.870 et seq.
The purpose of depositions is to discover evidence pertaining to a matter in litigation or about to be litigated or to preserve evidence to be presented in the trial, or both. A deposition hearing is not an open court hearing and when a deposition is taken in a private place, such as a lawyer's office, the person in charge of the premises may limit attendance to counsel, witnesses and parties. There is no requirement that strangers and news media representatives must be admitted. After the deposition has been taken and transcribed, the officer taking the deposition is required to file it in the court record. CR 30.06. Unless the court has ordered the deposition to be sealed, it may be inspected by the public after it has been filed.
The Court can issue a protective order under CR 26.03 which reads, in part, as follows:
"(1) Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the judicial district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
* * *
"(e) That discovery be conducted with no one present except persons designated by the court;
(f) That a deposition after being sealed be opened only by order of the court. . . ."
You also pose two other questions which we will quote and answer.
Question -- If a reporter is present when a deposition is taken, and an attorney later obtains a court order closing the record of the deposition, would that reporter be in contempt of court for reporting about what he had personally observed?
Answer -- A person is in contempt of court only when he violates a court order directed to him or commits a contemptuous act in the presence of the court in session. Under federal and state constitutional provisions the press is free to discover and publish information however obtained.
Question -- Does a court order sealing the record of a deposition cover information a reporter might obtain from witnesses who personally saw/heard the deposition being taken?
Answer -- A court order sealing a deposition only makes the deposition unavailable for inspection. It does not preclude a reporter from publishing information he has gained from any other source.
This opinion deals only with general principles and is not to be construed with approving or recommending disregarding any court order which may have been issued.