Reprimand For Posting Deposition Video On YouTube

The North Carolina Court of Appeals affirmed the imposition of a reprimand

This disciplinary action arose from defendant’s misconduct related to her 2010 lawsuit against Ally Financial, Inc. (“Ally Financial”) in the U.S. District Court of the Western District of North Carolina. Defendant was admitted to the North Carolina State Bar in 2002 and was at all relevant times engaged in the practice of law. Defendant, while representing herself pro se as plaintiff in the Ally Financial lawsuit, deposed Amy Bouque (“Bouque”) as the corporate representative of Ally Financial in a 30(b)(6) deposition. The deposition was video recorded but never made part of the record of the case prior to its disposition. In January 2012, the District Court granted summary judgment for the Ally Financial defendants and the U.S. Court of Appeals for the Fourth Circuit affirmed.

Then

On 24 September 2012, defendant formed a company called the Pro Se Advocate, LLC, whose purported purpose was to help pro se litigants navigate the legal system, particularly through the discovery process, and better defend themselves. Defendant further created a YouTube channel for the company on which she could post video content. In or about March 2014, defendant posted an approximately 37-minute video to the YouTube channel entitled “Amy Bouque 30b(6) Deposition: Best Ways to Tell if A Witness is Lying.” The YouTube video at issue consisted of excerpts from the Ally Financial deposition with audio commentary by defendant opining that certain of the hand gestures and facial expressions Bouque was making in the video indicated that she was lying. Defendant further publicized the video on the social media site Twitter, to which she posted a tweet that read “Just posted – video on how to conduct a deposition and identify deceit.”

Ally Financial sought and secured sanctions

During the hearing, the District Court told defendant “I am ordering you to take down every single video or audio of this or screen shot or anything about it that identifies it as being part of a deposition of these people in any way. No part of their deposition, no part, pictures, audio, any part of these depositions is to be on your website or be put out by you. None. Zero.”

The order was remanded on appeal but eventually affirmed.

Then came state bar charges

In order entered 7 June 2019, the DHC concluded that defendant was subject to discipline for publishing the deposition video at issue in a manner that served no substantial purpose other than to humiliate or embarrass a participant in the judicial process and for disobeying the protective order in violation of Rules 8.4(d) and 3.4(c)  of the Rules of Professional Conduct, respectively.

The court here rejected challenges to the fact-finding

Though defendant claims to have posted the video as a way to help other pro se litigants through the discovery process, there are many other ways defendant could have done this without publicly humiliating and accusing a former legal adversary of a crime. Instead, defendant decided to create a YouTube page whose public videos were comprised exclusively of content from the Ally Financial deposition accompanied by defendant’s commentary asserting Bouque was lying under oath. Even after she was ordered to remove those videos from her YouTube page, defendant attempted to find ways around obeying the court order.

And rejected a First Amendment challenge

Here, defendant does not reasonably argue that she had a First Amendment interest in the kind of speech at issue, and nor can she. Though defendant asserts that “truthful speech” and criticism of the courts or public officials is generally protected, she engaged in neither of those. In the deposition video at issue, defendant did not offer criticism of the discovery or litigation process, or of the court system itself, or of any public official of the courts. Rather, throughout the video defendant asserts that the deposition witness was lying under oath based on certain of her gestures and facial cues. Defendant also did not offer any legitimate or reliable evidence to show the truth of her accusations. Thus, there was no “truthful criticism” involved here which would constitute protected speech. In contrast, the State Bar has a legitimate interest in protecting the integrity of the judicial system and ensuring the fair administration of justice through its regulation of the legal profession, an interest which is recognized in Rule 8.4(d). We therefore reject defendant’s argument.

The court also declined to impose sanctions on the State Bar for an alleged false statement in its appeal brief. (Mike Frisch)