From Authors Guild & Am. Council of Learned Societies v. National Endowment for the Humanities, decided today by Judge Colleen McMahon (D.D.C.):

Defendants … move for entry of a protective order in the aftermath of Plaintiffs' decision to publish on the internet video recordings of four depositions taken during discovery in these consolidated actions. The videos—totaling approximately twenty-five hours of testimony—were posted publicly on YouTube and on the websites of Plaintiffs American Council of Learned Societies and Modern Language Association. The Government objected to their dissemination, particularly in light of reported harassment, even threats, directed at the witnesses and members of their families after the videos were posted.

On March 13, 2026, the Court issued an interim order directing Plaintiffs to remove the videos and to cease further dissemination pending full briefing, argument, and resolution of the dispute. The videos have since been taken down.

The Government now seeks a protective order prohibiting Plaintiffs from republishing the recordings and restricting Plaintiffs' dissemination of any discovery materials that are not filed on the public docket. The Government is correct that the videos are not judicial documents and so carry no presumption of public access.

But they are also not covered by the existing protective order in this case and, absent a court order, could be publicly disseminated by any party in the ordinary course. The issue is therefore whether the Government has carried its burden under Rule 26(c) to justify restricting that dissemination. It has not.

The Government's motion for a new protective order is therefore DENIED….

Between January 23 and January 30, 2026, Plaintiffs deposed four witnesses, all of whom are current or former senior federal officials: Nate Cavanaugh, a political appointee at the General Services Administration and member of the DOGE team; Justin Fox, a political appointee at the General Services Administration and member of the DOGE team; Michael McDonald, the former Acting Chairperson of the National Endowment for the Humanities; and Adam Wolfson, the current Acting Chairperson of the National Endowment for the Humanities. The testimony was recorded on videotape. Written transcripts were also produced.

On March 6, 2026, Plaintiffs moved for summary judgment. In support of that motion, they filed a memorandum of law that relied extensively on the testimony of these witnesses….

Plaintiffs [also] published the video recordings online, posting the full, non-confidential versions of the four depositions on YouTube and making those same materials available on the websites of the American Council of Learned Societies and the Modern Language Association.

After they were posted, the videos—and excerpts created and circulated by third parties who are not parties to this lawsuit—spread widely across the internet. The videos were cited in numerous news stories about the role of DOGE in the termination of NEH grants.

The Government sent a letter to the Court, dated March 10, 2026, in which it stated that the dissemination of the videos had resulted in harassment of Justin Fox and Nate Cavanaugh; it asked the Court to enter a protective order to restrict their further dissemination by Plaintiffs. In a subsequent letter dated March 13, 2026, the Government advised that the risks it had previously identified had, in its view, escalated. It represented that the videos had circulated widely across social media and news platforms, and that at least one witness had been subjected to significant harassment, including reported death threats.

Plaintiffs oppose the motion. They argue that the deposition videos are judicial documents, which enjoy a presumption of public access—a presumption that is impossible to overcome given the public interest in this case. In the alternative, Plaintiffs [also] insist that the Government has not made the particularized showing required to justify a protective order restricting dissemination of materials that were not designated confidential and were lawfully obtained in discovery….

The public indeed doesn't have a general right of access to discovery materials, except to the extent the materials are actually used in court filings. The court thus concluded that the videos weren't "judicial documents" to which there was a legal right of public access, since they themselves "were never properly placed before the Court for the purpose of obtaining any ruling and they are not part of the record on the motion." Only "the specific excerpts the parties choose to cite in their moving papers" were judicial documents, "not the entirety of the underlying discovery record, and certainly not largely unedited video recordings that were neither narrowed to the portions actually relied upon nor filed (or even sought to be filed) with the Clerk of Court."

But whether the parties remain free to disseminate the information themselves is a separate matter. And there the court holds the plaintiffs are indeed entitled to disseminate the videos (so I assume plaintiffs will now be free to repost the videos that the court had temporarily ordered removed from plaintiffs' sites): The videos weren't covered by the original protective order, and there's no basis to enter a new protective order barring their dissemination:

Rule 26(c) authorizes a court, "for good cause," to issue an order protecting a party or person from "annoyance, embarrassment, oppression, or undue burden." … The burden of demonstrating good cause, however, rests squarely on the movant….

There is no dispute that this Court has the authority to regulate the dissemination of discovery materials…. The authority to compel disclosure through discovery [such as by requiring people to testify at a deposition -EV] exists only because procedural rules authorize it…. Because the government confers this extraordinary power of compulsory disclosure, courts bear a corresponding responsibility to ensure that those processes are not abused.

But the Court's exercise of its authority under Rule 26(c) still requires a finding of good cause grounded in specific facts…. The Government's motion [for a protective order] fails for three independent reasons. First, the materials at issue concern the conduct of public officials acting in their official capacities, which substantially diminishes any cognizable privacy interest and weighs against restriction. Second, the Government has not made the particularized showing of a "clearly defined, specific and serious injury" required by Rule 26(c). Third, the Government has not demonstrated that the prospective relief it seeks would be effective in preventing the harms it identifies, particularly where those harms arise from the conduct of third-party actors beyond the control of the parties….

Here, the information sought to be removed from Plaintiffs' website is not information that is conventionally subject to protection. This case does not involve "family affairs, illnesses, [or] embarrassing conduct with no public ramifications." Rather, it concerns the legality of actions taken by government officials in their official capacities. Whatever privacy interests might otherwise be implicated here are diminished by the public character of the conduct being described….

Reputational injury, public criticism, and even harsh commentary are not unexpected consequences of disclosing information about public conduct. They are foreseeable incidents of public scrutiny concerning government action. Where, as here, the material sought to be shielded by a protective order is testimony about the actions of government officials acting in their official capacities, embarrassment and reputational harm arising from the public's reaction to official conduct is not the sort of harm against which Rule 26(c) protects. Public officials "accept certain necessary consequences" of involvement in public affairs, including "closer public scrutiny than might otherwise be the case." The public interest in transparency concerning official governmental conduct remains a relevant consideration in determining whether good cause exists.

Condit v. Dunne (S.D.N.Y. 2004) and Flaherty v. Seroussi (N.D.N.Y. 2001) illustrate the principle. In Condit, the court refused to enter a protective order barring dissemination of a videotaped deposition, despite claims of embarrassment and media misuse. The court emphasized that the case involved statements concerning a sitting public official and "directly address[ed] a matter of public interest regarding a Congressman's performance of his official duties." Similarly, in Flaherty, the court refused to restrict dissemination of a mayor's videotaped deposition, even where counsel expressly intended to publicize the testimony, because the "mere fact that some level of discomfort, or even embarrassment, may result … is not in and of itself sufficient to establish good cause," and that any such embarrassment must be "substantial" particularly where the materials concern "elected officials and the performance of their governmental responsibilities." …

Next, the Government insists that the posting of the videos uniquely exacerbates the risk of harm to the witnesses. But it offers no evidence tending to show that restricting access to the videos, while allowing the testimony itself to remain on the public record (where it has always been and always will be), would materially reduce the alleged risk of harm or embarrassment. Instead, the Government's submissions rely largely on generalized assertions about the risks of online dissemination—harassment, reputational harm, and the potential for distortion or misuse of video content.

The Court is not blind to the realities of the modern digital environment, with its potential for heightened risk of invasion of privacy. As the Second Circuit has recognized, the "ease with which videos may be shared worldwide" and their "eternal digital life" can "multiply and intensify" the consequences of dissemination. But good cause under Rule 26(c) requires not only a showing of harm, but a showing that the proposed order would meaningfully mitigate that harm.

The Government has not identified particular portions of the testimony that have caused or are likely to cause harm if they are publicly available. Nor does it explain how dissemination of the videos, as distinct from the written transcript portions that are and will remain on the court's public docket, materially increases any such risk. Defendants rely on conclusory and unverified assertions about online harassment, untethered either to specific content or identifiable third-party actors. This does not establish the kind of "clearly defined, specific and serious injury" required for the entry of a protective order under Rule 26(c).

Finally, the Government speculates that individuals inclined to engage in harassment may be more likely to watch videos than to read written transcripts that are equally available on the public docket. That is speculation, and the Court cannot assume it to be true. Nor can the Court assume that a person motivated to express hostility toward the Government's position in this litigation—by engaging in uncivil or offensive conduct toward the officials involved—would be deterred from doing so simply because Plaintiffs were prohibited from reposting the videos on websites devoted to discussing this case and informing the public about its progress. The harms the Government identifies arise not from Plaintiffs' conduct, but from independent third-party actors who accessed and redistributed the videos. Rule 26(c) relief directed solely at Plaintiffs does not meaningfully address that source of harm.

At bottom, the Government has not shown that the relief it seeks is capable of addressing the harm it identifies. The videos have already been widely disseminated across multiple platforms, including YouTube, X, TikTok, Instagram, and Reddit, where they have been shared, reposted, and viewed by at least hundreds of thousands of users, resulting in near-instantaneous and effectively permanent global distribution. This is a predictable consequence of dissemination in the modern digital environment, where content can be copied, redistributed, and indefinitely preserved beyond the control of any single actor. Given this reality, a protective order directed solely at Plaintiffs would not meaningfully limit further dissemination or mitigate the Government's asserted harms.

The Court accepts that witnesses and their families have experienced harassment. That conduct is deeply troubling; it is highly inappropriate and should trouble every good citizen. But Rule 26(c) requires the Government to show that a "clearly defined, specific and serious injury" will occur in the absence of a protective order, and that showing has not been made. There are laws against threats and harassment; the Government and its witnesses have every right to ask law enforcement to take action against those who engage in such conduct, by enforcing federal prohibitions on interstate threats and cyberstalking, as well as comparable state laws. Rule 26(c) is not a substitute for those remedies.

As evidence that law enforcement takes such threats seriously and prosecutes offenders, the Court calls the parties' attention to a recent case from the Northern District of New York, United States v. Shane Daley, 25-mj-225 (N.D.N.Y.), in which a defendant pleaded guilty to cyberstalking charges arising from harassing communications directed at the family of a UnitedHealthcare executive following his killing in midtown Manhattan. See New York Man Pleads Guilty to Cyberstalking in Threats to Relative of Slain UnitedHealthcare CEO, Newsday (Mar. 19, 2026), https://www.newsday.com/news/nation/unitedhealthcare-ceo-cyberstalking-family-new-york-pleads-k58024. Reporting such conduct to law enforcement offers a far more effective means of stopping the harassment than any order this Court could enter restricting Plaintiffs' conduct, particularly when restricting Plaintiffs' ability to repost the videos would do nothing to deter or punish those third-party actors.

In sum, because defendants have not demonstrated a particularized harm, have not overcome the strong public interest in dissemination of information concerning official conduct, and have not shown that the requested order would effectively mitigate the asserted injuries, they have failed to establish good cause under Rule 26(c)….

Daniel F. Jacobson, Lynn D. Eisenberg, John Robinson, and Kyla M. Snow (Jacobson Lawyers Group PLLC) represent plaintiffs American Council of Learned Societies and Modern Language Association.

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