Introducing lawyers to the First Amendment

When last we met over Sunday morning coffee, I was regaling you with a tale of lawyerly legerdemain and deposition dancing.

This week, we examine some contorted concepts of privacy and confidentiality in the process of preparing for a public trial in a public court.

To recap the previous episode of this thrilling Sunday morning serial, return with me now to the downtown law office where I was being deposed by the California lawyer for international casino tycoon Sheldon Adelson, who is suing Review-Journal columnist John L. Smith for libel over a couple of items in his book "Sharks in the Desert."

I was being quizzed as to why I had left out certain portions of the chapter on Adelson when the newspaper published excerpts from the book. Both video and audio recordings were being made, a stenographer was typing away and three lawyers were scribbling notes.

According to the lawsuit, "Smith deceptively manipulates language, quotations and sources in order to concoct the smear that Adelson had dealings with the Boston Mob when Adelson was in the vending machine business. Smith's claims are baseless -- part of Smith's Procrustean effort to find gangsters and molls behind every casino door."

(Procrustes was a robber in Greek legend who strapped his house guests to an iron bed. In order to make them fit, he either stretched them or cut off their legs. Of course, like the facts in the hands of crafty litigators, the victims never fit because the bed was adjustable.)

The deposition appeared to end when Adelson's lawyer, Marty Singer, said, "I have nothing further for this witness."

That's when I reached down and turned off the digital audio recorder I had placed on the table directly in front of me and in plain sight at the beginning of the deposition a half-hour earlier.

The court reporter started protesting that the deposition was a "private matter."

Singer chimed in. He demanded to see the recorder that I had just placed in my pocket.

"No," I replied.

Singer said I had no right to record the deposition and demanded that I immediately erase the recording, even though his video camera and audio recording were still running and the stenographer still typing.

"No," I said.

"In the state of Nevada I have the right to record my own voice in public," I insisted. Actually, I could've kept it out of sight in my pocket and been within Nevada law, which only requires two-party consent for recording telephone conversations.

Adelson's lawyer, his voice rising, protested that the deposition was for a California-based lawsuit and therefore California law applied and such a recording was a crime.

"Just so you know, you are put on notice of that. That is a crime under California law," he angrily exclaimed.

There is a law in California that makes it a crime punishable by up to a year in jail to record a "confidential communication." Since mine was technically the fourth recorder in the room, I wonder just who gets charged with a crime?

After more bluster and demands, Singer asked, "Why did you record this deposition?"

"So I would have my own record."

"Why do you need your own record for?"

"I'm a reporter. I'm an editor. I write."

"So you want to write about your deposition?"

"I may."

Later, the flustered lawyer said, "I have to tell you, in 30 years of practice I've never had a witness do this."

Always glad to introduce lawyers to the First Amendment.

Eventually, one of the two attorneys representing the Review-Journal was able to get a word in edgewise.

"In the state of Nevada, I can tell you that the law is that it is perfectly permissible to tape a person while you are in person with that ... as opposed to being over the telephone," said Colby Williams. "That's legal whether that person consents or not, so that's the law in the state of Nevada."

This little contretemps happened just a couple of days after I had been in Reno addressing two classes of new judges at the National Judicial College on why and how they should talk to the press. My co-presenter was an affable and savvy Texas judge, Steve Smith, who advised the new judges that when being interviewed on camera or tape by an unfamiliar reporter, it is perfectly permissible and/or advisable to record the interview yourself, just in case there is some clumsy or judicious editing.

It sounded like good advice at the time.

Thomas Mitchell is editor of the Las Vegas Review-Journal and writes about the role of the press and access public information. He may be contacted at 383-0261 or via e-mail at