On 21 March 2014, the motion of Petitioner Bullis Charter School for a protective order was argued and submitted. Respondent Los Altos School District filed a response in which it declines to take a position as to the merits of the motion. Amicus Curiae Huttlinger Alliance for Education filed a formal opposition to the motion.

All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).

Factual and Procedural Background

This action arises from a dispute between Bullis Charter School (“Bullis”) and the Los Altos School District (the “District”) concerning the facilities provided by the District to Bullis for the 2009-2010 school year.

In 1992, the California Legislature enacted the Charter Schools Act. (See Ed. Code, § 47600 et seq.) Eight years later, the Legislature amended the Act by adopting Proposition 39, which required school districts to provide charter schools established within their jurisdiction school facilities with “conditions reasonably equivalent to those in which the [charter school] students would be accommodated if they were attending other public schools of the district.” (Ed. Code, § 47614, subd. (b).)

Bullis was established as a public charter school, through the approval of the Santa Clara County Office of Education, in the Spring of 2003. Bullis began offering classes in the 2004-2005 school year for children in kindergarten through the sixth grade. Bullis services families from Los Altos, Los Altos Hills, and surrounding communities, and is located within the boundaries of the District. At its inception, Bullis conducted classes in portable buildings located on a portion of the District-run Egan Junior High School campus.

In June 2009, Bullis filed suit against the District, alleging that the District had violated the Charter Schools Act—as amended by Proposition 39—by failing to offer and provide Bullis with facilities for the 2009-2010 school year that were reasonably equivalent to other public schools in the District. Based on these allegations, Bullis sought (1) a writ of mandate compelling the District to provide it with reasonably equivalent facilities as required under the law, and (2) a declaration from the court that the District’s offer of facilities for the 2009-2010 school year violated Proposition 39 and its implementing regulations.

The existence of Bullis as a public school has been and remains a controversial issue among residents within the District. This controversy stems from the fact that Bullis gives an admissions edge to residents of parts of Los Altos Hills, where the median household income is four times the state average, resulting in a student population of children with wealthy parents. Bullis also actively seeks private donations from its students’ parents. Given these circumstances, some people within the community believe that Bullis discriminates against children from underprivileged families and that taxpayers should not be funding the education of the children of millionaires.

Following the submission of briefing and evidence to the court in support of the parties’ respective positions, on 24 November 2009, this Court (Judge Kleinberg) issued an order denying the relief sought in Bullis’ petition and entered a judgment in favor of the District. Bullis appealed and the Court of Appeal reversed the Court’s decision, finding that the District’s offer of facilities did not comply with Proposition 39 or its implementing regulations. (Bullis Charter School v. Los Altos School District (2011) 200 Cal.App.4th 1022.)

Following the Court of Appeal’s decision, Bullis filed a motion asking this Court to order the District to comply with the Court of Appeal’s decision. Specifically, Bullis asked the Court to order the District to provide the charter school with 8.37 acres of land (which was identified as the appropriate amount of space by the Court of Appeal) plus additional land based upon the school’s increased admissions since the date of the Court of Appeal’s decision.

In response to Bullis’ motion, the Huttlinger Alliance for Education (the “Alliance”) filed an application to appear and file a brief as amicus curiae. The issue identified by the Alliance to be addressed in the amicus brief was whether an order granting Bullis’ motion to compel compliance with the Court of Appeal’s decision would result in the discrimination against some of the District’s most vulnerable students, i.e., socioeconomically disadvantaged students, Latino students, and English language learning students. Judge Lucas granted the Alliance’s application to appear as amicus curiae on 20 September 2012.

In addition to the motion to compel the District’s compliance with the Court of Appeal’s decision, Bullis also filed a motion to recover $1.3 million in legal fees as the “successful party” under Code of Civil Procedure section 1021.5. That motion remains pending.

In response to the motion for legal fees filed by Bullis, the District served written discovery requests aimed at ascertaining how Bullis has financed the litigation. Specifically, the District sought information concerning the existence of a litigation fund and whether Bullis or the school’s donors had a pecuniary interest in the litigation, which would affect Bullis’ ability to recuperate legal fees under Code of Civil Procedure section 1021.5. Bullis objected to the discovery requests, asserting that it did not have a pecuniary interest in the litigation and that no discovery was permissible. The District filed a motion to compel and, on 13 November 2012, the Court (Judge Lucas) granted the motion and awarded the District $51,000 in monetary sanctions. Bullis filed a petition seeking to overturn the order compelling discovery and awarding sanctions. The petition was summarily denied by the court of appeal on 13 December 2012.

Discovery related to the award of legal fees remains ongoing.

Discovery Dispute

As part of the discovery related to Bullis’ motion for legal fees, the District took the video deposition of David Spector on 7 August 2013. Mr. Spector was formally a member of Bullis’ Legal Committee, Finance Committee, and a board member of the Bullis’ Foundation, which funded the underlying litigation in this case.

On 14 August 2013, the District took the video deposition of Kenneth Moore. Mr. Moore is the Chair of Bullis’ governing board.

Following Mr. Moore’s deposition, counsel for Bullis indicated to counsel for the District that Mr. Moore was concerned about his video testimony being made available to the public. The District agreed that the video portion of the deposition need not be published so long as a member of the public did not request a copy and further agreed to give Bullis notice of any such request.

On 9 January 2014, the District received a request under the California Public Records Act from community member David Cortright to obtain a copy of the transcript and videotape of all depositions taken in this matter.

The District advised Mr. Cortright that he could view the written and/or video transcripts at the District’s offices, but that copies must be obtained from the deposition officer pursuant to Code of Civil Procedure section 2025.570.

The District notified Bullis of Mr. Cortright’s request on 14 January 2014.

Counsel for the District and Bullis exchanged a number of emails concerning Mr. Cortright’s request. Those requests indicate that Bullis was not concerned with Mr. Cortright obtaining the written transcript of the depositions. Rather, Bullis was concerned with Mr. Cortright obtaining the images and audio of the depositions because Bullis believes that Mr. Cortright intends to manipulate the images and/or audio recordings to disparage Mr. Moore.

Counsel for Bullis also informed counsel for the District that Bullis was going to file an ex parte application for a protective order prohibiting the disclosure of the video deposition. In response to the question of whether the District would oppose the application for a protective order, counsel for the District indicated that the dispute was between Mr. Cortright and Bullis and that the District did not want to take a position, but would likely offer the opinion to the Court that the community members have a right to see the video deposition.

On 20 February 2014, Bullis provided notice to the District and Mr. Cortright that Bullis intended to appear ex parte the next day to seek a temporary protective order preventing the distribution of the video of Mr. Moore’s deposition.

On 21 February 2014, the Court granted Bullis’ ex parte application. The order provides the following directives: (1) the District and the deposition officer (Merrill Corporation) are temporarily prohibited from furnishing or otherwise releasing copies of the video recording of deposition testimony of Messrs. Moore and Spector to any person who is not a party to the action; (2) the District and the deposition officer are not prohibited from providing complete written transcripts of the depositions to any person; and (3) any person may view the video depositions provided that (a) Bullis is provided reasonable notice prior to the viewing and an opportunity to attend the viewing, and (b) the individual viewing the video cannot record the video. The order also granted Bullis’ motion to shorten time as to the briefing schedule for Bullis’ motion for protective order.

Following the issuance of the 21 February 2014 temporary protective order, Mr. Cortright requested the District to make the video depositions available for his viewing in accordance with the temporary protective order. A viewing session was scheduled for 4 March 2014. Further dispute then arose between Bullis and Mr. Cortright regarding whether any recordings would be permitted during the viewing session.

Based on that dispute between Bullis and Mr. Cortright, Bullis appeared ex parte on 3 March 2014 to apply for modification of the temporary protective order. The Alliance, Mr. Cortright, and the District appeared at the ex parte hearing through counsel. Based on the parties’ arguments and representations (including arguments and representations made on behalf of the Alliance and Mr. Cortright), the Court (Judge Overton) modified the temporary protective order. The modified protective order (1) prohibits the District from allowing any person who is not a party to the action to record any viewing of the deposition testimony of Messrs. Moore and Spector (including audio), (2) indicates that it will remain in effect until the hearing on Bullis’ motion for a protective order on 21 March 2014, and (3) modified the briefing schedule on the motion for a protective order.

In accordance with the modified briefing schedule, the District filed a response to Bullis’ motion for a protective order on 10 March 2014, and the Alliance (as amicus curiae) filed an opposition to the motion for a protective order on 11 March 2014. Bullis filed its reply on 17 March 2014.

Discussion

I. Request for Judicial Notice

The Alliance requests that the Court take judicial notice of the following documents: (1) the declaration of Mark Boennighausen and referenced exhibits attached thereto filed in support of the Alliance’s brief filed on 30 July 2012 in this action; (2) the declaration of Elena Shea filed in support of the Alliance’s brief filed on 30 July 2012 in this action; (3) pages of an internet blog; and (4) a brief filed by the District on 18 October 2013 in this action concerning the attorney fee issues which ultimately resulted in the depositions of Messrs. Moore and Spector being taken.

The declarations of Mark Boennighausen and Elena Shea previously filed in this case, as well as the District’s brief previously filed in this case, constitute records of the superior court subject to judicial notice under Evidence Code section 452, subdivision (d). (See Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500 [the court may take judicial notice of its own file].) They are also relevant to the matter presently before the Court. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [information subject to judicial notice must be relevant to the issue at hand].) The Alliance’s request for judicial notice of the above listed documents on file with the Court is therefore GRANTED.

Concerning the request to take judicial notice of the internet blog, the Alliance asserts that it contradicts Bullis’ assertion that Mr. Moore keeps a low profile. The Alliance further states that it does not submit this posting for the truth of the matters discussed in the posting, but only for the proposition that Mr. Moore’s image can easily be found on the Internet. Evidence Code section 452, subdivision (h), authorizes judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” The issue of whether Mr. Moore has attempted to keep his image off the internet is clearly disputed and therefore not properly subject to judicial notice under Evidence Code section 452, subdivision (h). The Alliance’s request for judicial notice of the internet blog is therefore DENIED.

II. Motion for Protective Order

Bullis moves the Court for a protective order under Code of Civil Procedure 2025.420, subdivision (b), prohibiting the District and the other named respondents, as well as the deposition officer Merrill Corporation, from furnishing or otherwise releasing a copy of the video recording of the depositions of Kenneth Moore and David Spector to any person who is not a party to this action. Bullis asserts that the dissemination of the video recording of the depositions will cause unwarranted annoyance, embarrassment, oppression, and risk of harm to the deponents and their families.

A. Preliminary Matters

This matter is procedurally irregular for at least two reasons. First, the only opposition to the motion comes not from a party to this action, but from the Alliance—an amicus curiae. Second, the District has filed a response to the motion for a protective order in which it declines to take a position on the merits of the motion, but suggests that the dispute is not a discovery matter in the first instance and therefore not properly before the Court. The Court will address these preliminary matters before moving to the merits of Bullis’ motion.

1. Amicus Curiae

The Alliance has filed a formal opposition to Bullis’ motion for a protective order. The Alliance is not a party to this action and submits the opposition as amicus curiae. The only authority cited by the Alliance as to the propriety of its appearance on this matter is that it was previously granted amicus status in this case by Judge Lucas. For the reasons set forth below, the Court finds that the Alliance’s opposition is not properly before the Court.

The California Rules of Court authorize the filing of amicus briefs in the California Supreme Court (Cal. Rules of Court, rule 8.520(f)(1)) and the California Court of Appeal (Cal. Rules of Court, rule 8.200(c)(1)). These rules are not generalized. Rather, they set forth specific procedures and requirements for the filing of amicus briefs. For instance, such briefs may be filed only with the express permission of the presiding justice or the Chief Justice. In addition, amicus briefs generally must be confined to the issues raised by the appealing parties and issues raised on appeal for the first time by amici curiae ordinarily will not be considered. (California Highway Patrol v. Sup. Ct. (2006) 135 Cal.App.th 488, 498.) Additionally, amici curiae have no right to appear at oral argument and, in the Court of Appeal, an amicus curiae may present oral argument only with the court’s permission upon written request. (Cal Rules of Court, rule 8.256(c)(2).) In the Supreme Court, an amicus curiae is not entitled to argument time, but may ask a party for permission to use a portion or all of that party’s allocated time. (Id., rule 8.524(g).)

The California Rules of Court do not authorize amicus briefs at the trial court level and the Court is aware of no statutory authority authorizing the appearance of amicus curiae in a trial court. The Court is aware of two cases suggesting that an amicus curiae may appear before a trial court. (See Jersey Maid Milk Products Co. v. Brock (1939) 13 Cal.2d 661, 665 (“Jersey Maid”); In re Veterans’ Industries, Inc. (1970) 8 Cal.App.3d 902, 924-925.) The authority relied upon in those cases, however, calls into question the validity of the practice. For instance, in the Jersey Maid case, the court held that a group having no direct interest in the litigation had not right to intervene as a party to the action but indicated in the last paragraph of the decision that an application by the group to file an amicus brief might be considered favorably. (Jersey Maid, supra, 13 Cal.2d at 665.) The Jersey Maid court cited La Mesa Irrigation District v. Halley (1925) 195 Cal. 739 (“La Mesa”) as authority for the proposition that a non-party may file an amicus brief with the trial court. In that case, as with Jersey Maid, the court held that a non-party group was not entitled to intervene in the case. However, in the last sentence of the court’s opinion—almost as an afterthought—the court made the following statement:

If the proposed interveners desire to file a brief as amici curiae in the pending proceedings, application to that end would no doubt receive favorable consideration.

(La Mesa, supra, 195 Cal. at p. 743.) The above sentence is not followed by a citation to any authority and the court does not otherwise offer an explanation for how or why a non-party interest group may surreptitiously insert itself into a trial court proceeding as amicus curiae.

Assuming for the moment that amicus briefs may be filed with the trial court, the Alliance’s opposition remains problematic for at least two reasons.

First, the Alliance has not sought leave to appear as amicus curiae in the matter presently before the Court. The Court recognizes that the Alliance previously filed an application and was permitted to appear as amicus curiae in this case. The Alliance’s application, however, was specifically limited to addressing Bullis’ post-appeal motion for an order directing the District to comply with the Court of Appeal’s decision. Indeed, the Alliance’s application identified the discrete issue before the Court and explained why the Alliance’s brief would assist the Court in ruling on the issue.

More specifically, the issue identified by the Alliance was whether an order granting Bullis’ motion to compel compliance with the Court of Appeal’s decision would result in discrimination against some of the District’s most vulnerable students, i.e., socioeconomically disadvantaged students, Latino students, and English language learning students. The Alliance’s application was limited to that issue. Judge Lucas granted the Alliance’s application to appear as amicus curiae on 20 September 2012. Nothing in that order suggests that the Alliance would be allowed to perpetually appear as amicus curiae on issues outside the scope of the Alliance’s application. Thus, even if amicus briefs are authorized to be filed with the trial court, the amicus curiae must first seek leave to appear and then file a brief on the particular issue addressed in the application for amicus status before interjecting itself into the litigation.

The second problem with the Alliance’s opposition is that the opposition brief is not an amicus brief as contemplated by the California Rules of Court. Amicus briefs are designed to provide the court will additional information as to the implications of resolving the issues presented by the case one way or the other. (See Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1177.) Amici Curiae are literally “Friends of the Court”—there to help the court resolve the dispute at issue—and are not strictly speaking the adversary of either party. (Id.) The Alliance’s submission, however, is an opposition. The distinction is significant because, through its opposition, the Alliance has inserted itself into this case to a greater degree than that typically afforded to amici curiae.

In other words, the Alliance has assumed an adversarial role in this proceeding. In the absence of an assertion of standing to intervene or statutory authority to oppose the motion, the Court is reluctant to consider an opposition from a non-party who has failed to justify its right to appear on the matter before the Court in the first instance.

In sum, because the Alliance failed to seek leave to file its brief opposing Bullis’ motion for a protective order, the opposition is not properly before the Court. Assuming, arguendo, that the opposition brief is properly before the Court, for the reasons set forth below, the Alliance’s arguments in opposition to the motion lack merit.

2. The District’s Response and the Nature of Bullis’ Motion

In its response to Bullis’ motion for a protective order, the District indicates that it “takes no position” on the motion. (District’s Response, p. 1.) The District states, however, that, “[a]lthough [Bullis] filed its motion in this action and in this discovery department, this is not a discovery dispute” because the “motion does not seek to take or be spared from discovery.” (Ibid., emphasis added.) The Court disagrees with the District’s contention that the matter presently before the Court is not a discovery matter.

The depositions at issue in this case have already occurred. Code of Civil Procedure section 2025.570 provides that, “unless the court issues an order to the contrary, a copy of the transcript of the deposition testimony . . . or an audio or video recording of the deposition testimony, if still in the possession of the deposition officer, shall be made available by the deposition officer to any person requesting a copy.” (Code Civ. Proc. [“CCP”], § 2025.570, subd. (a).) The section further provides that, if a person requests a copy of a deposition transcript or video from the deposition officer, and the officer does not receive a copy of a protective order within 30 days of the request, “the deposition officer shall make the copy available to the person requesting the copy.” (Id., § 2025.570, subd. (c).)

Consistent with the above provisions, Code of Civil Procedure section 2025.420, provides that, “[b]efore, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order.” (CCP, § 2025.420, subd. (a), emphasis added.) The section further provides that, upon a showing of good cause, the court “may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Id., § 2025.420, subd. (b).) Protective orders “may include, but [are] not limited to” a directive that certain information “not be disclosed or be disclosed only to specified persons or only in a specified way” and “[t]hat the deposition be sealed and thereafter opened only on order of the court.” (Id., § 2025.420, subd. (b)(13) & (15).)

The order sought by Bullis does not fall directly within the potential directives listed in section 2025.420, subdivision (b), which may be included in a protective order because Bullis does not seek to seal the depositions or prohibit any person from viewing the video depositions at the District’s office or obtaining copies of the deposition transcripts. Bullis only seeks an order prohibiting non-parties from obtaining copies of the video depositions, the images and audio of which Bullis fears could be manipulated by non-parties in general, and Mr. Cortright specifically, to disparage Messrs. Moore and Spector. Although the requested order does not fall directly within the directives listed in section 2025.420, subdivision (b), the order sought by Bullis in this case is consistent with the listed directives.

Contrary to the District’s assertion that this is not a discovery matter, the Code of Civil Procedure contemplates the factual scenario that has played out in this case and authorizes the motion filed by Bullis. In other words, the Court finds that Bullis has correctly characterized its motion as a discovery matter.

B. The Alliance’s Opposition to the Motion

Like the District, the Alliance asserts that Bullis’ motion has improperly been characterized as a discovery matter. According to the Alliance, this matter should be considered under the California Public Records Act. For the reasons outlined below, the Court disagrees.

The Alliance relies heavily on the holding in City of Los Angeles v. Superior Court (1996) 41 Cal.App.4th 1083, for the proposition that the discovery statutes are inapplicable where a person invokes his or her rights under the Public Records Act. The Court agrees that the holding in City of Los Angeles is instructive, but not for the reasons cited by the Alliance. Indeed, an examination of the facts and procedural posture of that case make clear that the court’s holding is inapplicable in this case.

In City of Los Angeles, real party in interest Adam Axelrad (“Axelrad”) submitted requests to the office of the city attorney pursuant to the Public Records Act for deposition transcripts in three cases. (City of Los Angeles, supra, 41 Cal.App.4th at p. 1085.) The litigation in the cases for which the depositions were taken had concluded, i.e., the cases were closed. (Id.) The city refused to comply with the requests and Axelrad filed a petition in the Los Angeles County Superior Court to mandate compliance with the Public Records Act. (Id.) The trial court ordered the city to give Axelrad copies of the deposition transcripts and the city appealed.

On appeal, the question before the court was whether a party may utilize the Public Records Act in order to obtain documents generated in litigation in which the city was a party. The city argued that the depositions were not “public records” as defined in Public Records Act and that, assuming the Act applied, the records were exempted from disclosure under Government Code section 6254, subdivision (b). (Id., pp. 1085-1086.) The court noted that section 6252, subdivision (b), provides an exemption for disclosure of “[r]ecords pertaining to pending litigation to which the public agency is a party . . . until the pending litigation or claim has been finally adjudicated or otherwise settled.” (Id., p. 1087, emphasis in original.) Because the cases in which the depositions had been taken had been finally adjudicated, the court held that the exemption did not apply. (Id., p. 1089.) The court went on to weigh the public interest served by not making the record public on the one hand and the public interest served by the disclosure of the records. (Id., pp. 1089-1092.) Ultimately, the court concluded that the city had not provided a valid ground for the nondisclosure of the deposition transcripts and denied the city’s petition for writ of mandate. (Id., p. 1092.)

The differences between the matter presently before the Court and the circumstances present in the City of Los Angeles case are numerous. Perhaps the most important distinction for the purposes of this case is the fact that, unlike Axelrad in the above case, here Mr. Cortright has not filed a petition under the Public Records Act. The distinction is significant. The Public Records Act expressly provides that “[a]ny person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record.” (Gov. Code, § 6258.) By filing a petition under Government Code section 6258, Axelrad became a real party in interest and was conferred statutory standing. Moreover, by filing the petition, the matter was properly addressed under the auspices of the Public Records Act. In this case, Mr. Cortright has not filed a petition under the Public Records Act. Indeed, although he has filed a declaration in this case attached to the Alliance’s opposition, Mr. Cortright has not officially appeared as a real party in interest or otherwise. Put simply, by failing to file a petition under Government Code section 6258, Mr. Cortright has not yet availed himself of the statutory standing conferred by the statute and any relief he may seek under the Public Records Act is not properly before the Court.

Although the above distinction is the most important for the purposes of the Court’s evaluation in this case, there are other significant distinctions between City of Los Angeles and the circumstances presented here. For instance, unlike City of Los Angeles, the litigation in this case has not concluded. Accordingly, the exemption under Government Code section 6252, subdivision (b), may very well apply in this case. Additionally, in contrast to the case at bench, in City of Los Angeles the city did not file a motion for a protective order. Similarly, unlike that case, Bullis does not seek an order prohibiting the disclosure of the deposition transcripts (only the images and audio of the video depositions). Based on the above distinctions, the Court concludes that the holding in City of Los Angeles does not apply in this case.

The Alliance further argues that the issuance of a protective order would violate Mr. Cortright’s rights under the First Amendment of the United States Constitution. The Court rejects this argument. The court of appeal has expressly held that information obtained in the discovery process is not subject to the same rules requiring the public disclosure of court records:

The discovery process, which is intended to be largely self-enforcing, would be greatly impeded if every document a party might produce was ipso facto open to public inspection. Records now freely disclosed under protective orders, often entered by stipulation, would require laborious collateral litigation to establish grounds for a sealing order. This would impose a substantial new burden on parties as well as on the courts, all in derogation of a process that is largely a modern invention and has never been conceived as open to the public. (H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 892-893.)

The Court also rejects the Alliance’s argument that the issuance of a protective order in this case would operate as a prior restraint in violation of the First Amendment. The United States Supreme Court has made clear that where “a protective order is entered on a showing of good cause . . . , is limited to the context of pretrial civil discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment.” (Seattle Times Co. v. Rhinehart (1984) 467 U.S. 20, 37.)

C. Good Cause Analysis

As indicated above, Code of Civil Procedure section 2025.420, provides that, “[b]efore, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order,” (CCP, § 2025.420, subd. (a)), and the court is empowered to issue whatever order “justice requires” to protect a party or deponent against “unwarranted annoyance, embarrassment, or oppression” (CCP, § 2025.420, subd. (b)). The burden is on the moving party to demonstrate good cause for the protective order. (Id., § 2025.420, subd. (b).) Generally, this requires a showing that the harm attempted to be prevented by the protective order clearly outweigh whatever benefits if the protective order is not entered. (See Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2012) at 8E-97.)

Bullis argues that a protective order is necessary for the safety and privacy of Messrs. Moore and Spector and their families. According to Mr. Moore (who has supplied a declaration attached to Bullis’ motion), he and his family are well known in Silicon Valley. His father is co-founder of Intel and his parents are large-scale philanthropists. Mr. Moore’s high profile has led to various threats over the years (including threats of kidnapping), and there have been times when there has been the need for full-time security agents to protect his family. Mr. Moore has also received death threats from anti-charter advocates based on his role as Board Chair at Bullis. Similarly, images of Mr. Moore have previously been manipulated and posted on the Internet, including an anonymous video parody depicting Mr. Moore as Hitler and other parents of students at Bullis as Nazis.

It is undisputed that Mr. Cortright is an anti-charter advocate. It is also undisputed that Mr. Cortright has a ‘history’ with Bullis and Mr. Moore. For instance, according to Bullis, Mr. Cortright has engaged in a “wiki war” with Bullis in which Mr. Cortright removes posts from the Wikipedia page concerning Bullis and posts contrary information about the school. Similarly, in connection with this lawsuit, Mr. Cortright has posted online blog entries calling Mr. Moore a liar for information Mr. Moore supplied in a declaration in this case.

Ultimately, Bullis contends that, “[i]n this age of modern technology, once video images are out and up on the internet, it can go ‘viral’ – [and] that bell cannot be unrung.” (Bullis Mot., p. 4.) Bullis further argues that the dissemination of Messrs. Moore and Spector video depositions will expose Messrs. Moore and Spector (and their families) to undue and unwarranted harassment, annoyance, oppression, and increased risk of harm. According to Bullis, Messrs. Moore and Spector greatly value their ability to walk through the streets, shops and restaurants of Los Altos and Los Altos Hills and not be recognized or harassed. Bullis also argues that, if the protective order is not granted, and the images from the depositions are used in flyers, posters, or hostile internet parodies, this would likely have a chilling effect on school parents and supporters and their willingness to serve as school volunteers.

The Court finds that Bullis has established good cause for the protective order. Bullis has identified specific harms that may occur through the dissemination of the video depositions and these harms do not appear hypothetical or without a factual basis. Moreover, Bullis is not asking the Court to prohibit the disclosure of the information contained in the depositions. Indeed, Bullis does not oppose any member of the public obtaining copies of the deposition transcripts. Indeed, it appears that Mr. Cortright has in fact received copies of the deposition transcripts and viewed the video depositions. This leads the Court to believe that the disclosure of the video depositions is less about the disclosure of information and more about obtaining the visual and/or audio data from the videos to be used for other purposes than the gathering information.

Based on these considerations, the Court finds that Messrs. Moore and Spector’s concerns outweigh any rights that the public may have to the use of their images during the course of this litigation. Bullis’ motion for a protective order is therefore GRANTED.

Nothing in this order should be construed as speaking to the issue of Mr. Cortright’s ability to obtain the video depositions under the Public Records Act. As discussed above, that issue is not properly before the Court. Moreover, this order does not speak to the issue of whether Mr. Cortright, or any member of the public, may obtain copies of the video depositions once this litigation concludes.

Conclusion and Order

Bullis’ motion for a protective order is GRANTED on the following conditions:

1. The District, Board of Trustees of the Los Altos School District, and Jeff Baier, in his capacity as District Superintendent, and deposition Officer Merrill Corporation, and their representatives, agents, servants, employees, partners, and anyone acting in concert with them, are hereby prohibited and restrained from furnishing or otherwise releasing a copy of the video recording of deposition testimony of Kenneth Moore (taken 14 August 2013) and David Spector (taken 7 August 2013) to any person who is not a party to this action;

2. Nothing in this Order prohibits or restrains the disclosure of the complete written transcript of deposition testimony taken in this action to any person;

3. Nothing in this Order prohibits or retrains the District (or other named respondents) from allowing any person who is not a party to this action to view the video recording of deposition testimony at the District’s offices; and

4. This protective order shall remain in effect until further order of the Court.