On October 3, the Associated Press reported on interviews with people who were associated with “The Apprentice” and claimed “Donald Trump repeatedly demeaned women with sexist language” and “said he rated female contestants by the size of their breasts and talked about which ones he’d like to have sex with.”
But what if someone subpoenas the “Apprentice” tapes or seeks a court order disclosing them? Does a media company have any privilege or privacy rights?
That might not apply here, especially if the conversations are confidential. And, even though the concept of “newsperson” is more amorphous in the modern age, “Apprentice” footage might not qualify. Even if it does, there are exceptions.
Also, just because the parties or their contracts say something is private doesn’t mean a court will honor that privacy.
If MGM/Burnett insists this is “important proprietary information,” they must establish they have historically sought to maintain the confidentiality of this information. Since reality shows — especially those centered on a competition — depend heavily on suspense and surprise, there’s a strong argument to be made that the footage should be protected from disclosure.
There’s a problem with this argument though. The show aired some time ago; there’s no surprise left to safeguard. MGM/Burnett would be making an argument on principle: “If we released these tapes, none of our tapes in the future will be safe.”
They would have to argue that the process itself is the proprietary material, and not just the outcome of a show or a season.
Legally the biggest obstacle to unearthing any material in the possession of MGM or Burnett is the absence — so far — of any court case. As a general rule, there must be a criminal investigation or civil case pending to ask a court to pry open the records vault of a private company.
That’s especially relevant now that Trump himself is threatening litigation against The New York Times. Any litigation could potentially open a company like MGM to a third-party subpoena — whether or not they are a party to the action. The scope of discovery in a civil case is breathtakingly broad. Similarly, law enforcement has its ways of obtaining documents from companies, even in advance of an indictment.
Phrases like “confidential” or “secret” are thrown around offices and companies as if their invocation alone will ward off prying eyes. To a court, these are just words. A court has the power to open up the books and the vaults of even the most secretive companies; all it needs is a case, and someone — or something — or some prosecutor — willing to bring it.
The dilemma facing MGM and Burnett illustrates a modern concern for companies. Technology has allowed us to keep an unprecedented volume of records, video and otherwise. However, the fact that we are all just a lawsuit away from having to hand over incredibly sensitive and damaging information encourages a Snapchat approach: companies have every incentive to delete or “lose” records as soon as possible. Unfortunately, the safest company from the reach of discovery is the company with the fewest records, and the fewest scruples.