Libel Plaintiff Cites “Cancel Culture” in Seeking Protective Order for Identities of Witnesses

These are the facts in yesterday’s libel case, which I blogged about. Gogol v. WhiteThe plaintiff has presented the following scenario:

Multiple tweets were published by defendant Malissa white accusing plaintiff Frank Gogol, among others, of using racist slurs and making insensitive jokes. Witnesses who attended this social function have expressed concerns that they will face retaliation if they participate in this lawsuit, including as a result of a “cancel culture” movement on the internet….

Multiple witnesses expressed reluctance to becoming involved in this lawsuit in any manner, having observed the devastating effect of Defendant’s statements on Plaintiff and fearing a similar retaliation by the Defendant, the internet community, and the comics community, generally… The comic book industry is a relatively small and close-knit profession, where an author’s reputation is paramount.  An author who has a bad reputation in comics can make it difficult to get work.  Due to the rapidity of internet disclosures, “cancel culture”, mindsets that encourage cancellation can lead to the immediate exclusion and/or “cancellation” of an individual.

This is what we have come up with:

Plaintiff requests that the Court enter the Los Angeles Superior Court’s Model Protective Order without modification….

  1. Third-party witnesses can use the Model Protective Order to identify themselves and designate any document they have as Confidential.
  1. All parties can review confidential documents and witness with their lawyers by using the Model Protective Order.
  1. The Model Protective Order will allow any party to challenge a Confidentiality designation through a meet-and-confer process and then motion if necessary….

[T]he Model Protective Order will not entitle any party or witness to file any document (or portion thereof) under seal, and such party or witness will need to make an independent showing before the Court will seal any document….

A “protective order” would prevent defendant and defendant’s attorneys from making public the names of witnesses until they are used in trial testimony or filed as such, as with a motion to dismiss. Further court orders such as sealing orders would be required to hide names of witnesses. These would require an even greater showing.

This is the plaintiff’s claim that it reflects California’s common protective order. But the standard order allows confidentiality only for information “which is in the possession” of the Designating Party. The Designating Party must believe in good faith that such information has the right to confidential treatment. This is reinforced by my California law friend, but not all, who said that these names are rarely considered to be “entitled” to confidential treatment.

The Plaintiff claims:

When there are risks of embarrassment, retaliation or reprisal, protective orders may be used. California courts recognize that parties may pursue litigation anonymously if their privacy rights have been violated, especially given the speed and accessibility of information available on the World Wide Web. Doe v. Superior Ct. (Cal. App. 2016). Courts consider the following factors when determining whether one party may proceed pseudonymously. Identification that creates a threat of physical or mental injury is one.

Similarly, California courts—particularly in criminal cases—have regularly entered protective orders shielding witnesses’ identities, even from the defendant and their counsel, to protect the witnesses from retaliation….

Although good cause exists for defendant to apply for the Model Protective Order (MPO), Defendant will not be affected by any restrictions on disclosures of confidential information. Defendant will have full access to all protected information, and can use the materials during these proceedings. Defendant may actually benefit from the protective order, which will apply equally to any confidential and/or personal information they disclose via discovery.

Furthermore, provisions of the Model Protective Order are in place to stop blanket designationse.g.Designating an entire production confidential. A Model Protective Order states that a party may object to another party’s confidential designation of documents. The receiving party is allowed to notify the producing party. If they are not able to reach an agreement on the document’s classification, the producing side will be asked to file a motion for defense. The designation of confidential materials by Plaintiff or third party witnesses will not cause Plaintiff unduel burden. Defendant must then file a motion in Court to challenge the designation.

What is the minimum amount of protection that can be granted to percipient witness in a civil case? The concern over retaliation could mean the witnesses face public disapproval. It would be great to hear from other experienced litigators about these matters.