If you’ve ever wondered, “Are depositions confidential?” the reality is that they can be, but only if proactive measures are taken. In today’s world, where information can be shared online in seconds, protecting what’s said in a deposition is essential.
It is a question often presented by clients, as they are aware that, unlike motions or pleadings filed with the court, deposition transcripts are generally not on the court’s public docket. However, depositions sometimes become public.
We find situations in high-profile legal battles, such as Lively v. Wayfarer Studios, where depositional details from actress Blake Lively’s testimony—such as her clothing and the individuals present with her—ended up in tabloid outlets.
Then there is the historically significant example in President Bill Clinton’s deposition in the Clinton–Paula Jones Case that wound up being leaked to the public with published detailed summaries.
This creates a sense of distrust.
These examples prove that mastering how to protect sensitive deposition material is crucial to guarding your client’s privacy and strategic interests. Lawyers must be smart and careful about not allowing deposition transcripts to become public record.
So, then, how is it possible to keep deposition transcripts confidential?
This is accomplished by implementing protective orders, professional ethics, and careful vendor selection. Some professional ethics rules categorically provide that lawyers have a duty of confidentiality to clients in depositions.
Therefore, when preparing for your client’s deposition, keep these things in mind:
Meet Ways to Keep Depositions Confidential
Rule 1.1 Duty of Competence states that lawyers are obligated to be competent and diligent in protecting their clients. In the case of deposition transcripts, that means lawyers must take care to have the transcripts securely stored wherever they are being stored—on a computer, with a court reporter, or with a third-party service provider.
Lawyers also need to ensure that any company handling the transcripts has robust cybersecurity protocols in place to prevent the information from being hacked or leaked.
Additionally, if the lawyer is negligent and causes unauthorized leakage or distribution of deposition transcripts to the wrong hands, it would violate Rule 8.4. Such conduct would amount to professional misconduct and invite disciplinary action.
Rule 5.1 mandates lawyers who are in a supervisory role or those who are in a leadership position to make sure that their subordinates and other lawyers in the firm are taking steps to ensure the confidentiality of deposition transcripts. If the team members default, the managing lawyer is also liable.
Lawyer supervisors must ensure that their personnel handle deposition transcripts securely, and they can be held responsible if their staff fails to keep matters confidential.
Court reporters, too, have professional ethical responsibilities to protect transcripts of depositions and uphold confidentiality except in the case of an explicit exception. The National Court Reporters Association’s (NCRA) Advisory Opinion 9 formally states that:
“Any information placed in the reporter’s trust will be held confidential until the parties themselves choose to make the deposition a public document.”
A court reporter cannot sell or otherwise distribute deposition transcripts to third parties, unless the parties agree, with the sole exception where the transcript has been officially filed with the court.
Using Protective Orders to Keep Deposition Transcripts Confidential
Even though deposition transcripts tend not to be public, protective orders are typically required to prevent leaks. State and federal courts allow litigants to petition for protective orders under such regulations as Federal Rule of Civil Procedure 26(c).
Perhaps the best-known example of protective orders in action is the federal antitrust litigation AMD v. Intel (2006). In this extremely high-stakes case, Judge Joseph Farnan Jr. signed into effect one of the extensive protective orders ever issued to safeguard hundreds of millions of pages of discovery—much of which contained confidential corporate trade secrets.
This case illustrates how a carefully drafted Rule 26(c) protective order can serve well to insulate discovery materials from public disclosure. Even where the public otherwise might be able to claim a limited right to know.
Seek Permission to File Deposition Transcripts Under Seal
Deposition transcripts sometimes have very sensitive material that must be filed with the court. In such cases, parties can request that the motion and supporting materials be filed under seal.
To file under seal is to maintain the transcripts in a discrete storage apart from the public case file, concealing them from public view while still complying with court regulations.
Sealing on filing is a serious measure, reserved for the protection of valid privacy or legal interests. They are typically issued by courts only where there is good cause, such as national security matters or protecting trade secrets.
It is to be understood that courts ordinarily will not seal documents simply to prevent embarrassment or negative publicity.
A real-life example is in re Garlock Sealing Technologies, LLC, 504 B.R. 71 (2014) – , where there were charges against a number of asbestos law firms. When Garlock filed motions that were relevant to discovery, the court allowed the firm to file sensitive supporting documentation under seal.
This included confidential information in prior asbestos cases and other trade secret data. Limited portions only, i.e., the first page of some filings, were made public.
This case illustrates how sealing orders is a powerful tool.
Final Thoughts: Are Depositions Public?
So, are depositions public record? No, not by default.
Are deposition transcripts confidential? Yes, but only if attorneys and court reporters make efforts to protect them.
At LanguageLitigation.com, we believe that professional judgment, legal ethics, and protective orders are more than mere procedural barriers to overcome—these are the foundation of a strong litigation strategy. Protective orders can shield sensitive information from unwarranted disclosure, and ethical obligations require scrutiny, especially when third-party vendors are involved.
Professional judgment on the part of the lawyer governs how and when to employ such safeguards. Used effectively and boldly, these tools defend against attack—they empower lawyers to keep depositions confidential and away from public record.