While sitting for a videotaped deposition, in one of his last public appearances, the late Apple CEO Steve Jobs swiveled impatiently in his chair and answered questions regarding Apple's digital rights management technology in a tone that altered between boredom and sarcasm. Or so we are told; we actually have not seen the video and nor will the general public, based on a ruling by U.S. District Court Judge Yvonne Gonzalez Rogers of the Northern District of California.

Indeed, except for the few who were present in the courtroom in Oakland, California, on December 5, 2014, when the video was played during the iPod antitrust trial, no other member of the public has seen the video recorded several years earlier and the federal district court judge who presided over the trial ordered that the video not be made available for public viewing. Apple iPod iTunes Antitrust Litig., --- F. Supp. 3d ---, 2014 WL 7323399 (N.D. Cal. Dec. 17, 2014).

Three media organizations—Bloomberg L.P., The Associated Press, and Cable News Network, Inc. (CNN)—fought to make the video public. They argued that based on the First Amendment and federal common law, the press and public had the right to view and copy the portion of Mr. Jobs' video deposition that was shown to the jury in open court. This right of access applied even though the video was never formally admitted into evidence by either party. Application of CBS, Inc., 828 F.2d 958 (2d Cir.1987). The Jobs deposition video was shown to the jury by the plaintiffs. Apple vehemently opposed the release of the video, arguing that the right of access did not apply because the video was not a judicial record and Mr. Jobs' privacy interests outweighed the public interest in the video.

Thus, the request raised the important question of what constitutes a judicial record under the right of access—a question that the 9th Circuit has yet to answer. The media organizations advocated for an expansive definition – one that would extend to any material presented in open court regardless of whether it was formally admitted into evidence.

The court disagreed, holding that "the request is not authorized by current 9th Circuit precedent and such an extension of existing law is not warranted or prudential." The video was not a judicial record, the court explained, because it was not admitted into evidence. It was "merely presented in lieu of live testimony due to the witness's unavailability, and was and should be treated in the same manner as any other live testimony offered at trial." The Court pointed out that the Court provided the media with advanced notice of when the Jobs' deposition video would be shown to the jury, provided room in her courtroom for the media to observe the video and made the transcript of Mr. Jobs' testimony publicly available. The Court found support in an 8th Circuit case, which held that the video deposition of President Clinton was not a judicial record and the press's First Amendment right of access was satisfied by allowing them to attend the playing of the video deposition and providing a copy of the transcript. United States v. McDougal, 103 F.3d 651, 654 (8th Cir. 1996).

Judge Gonzalez Rogers was concerned not only about the privacy implications of releasing the video in this case, but possible requests in other unrelated cases. Of course, Mr. Jobs is deceased and his rights of privacy have terminated. The Court however, speculated that "if releases of video depositions routinely occurred, witnesses might be reticent to submit voluntarily to video depositions in the future, knowing they might one day be publicly broadcast." The Court also tacitly relied on the local rule banning cameras in the courtroom, except under particular circumstances, stating "[i]f cameras in courtrooms were not currently prohibited, the argument might have less weight."

The Court's ruling against access offers another example of the secrecy that permeates federal courts particularly when it comes to video recordings. At the moment, federal courts are often at a rudimentary level when it comes to transparency and camera access issues particularly when compared to other branches of government and the decades of experience of many state courts. Of course, federal courts are steeped in tradition and move cautiously, but these values are currently at odds with the right of access.