Doe v. Uber Technologies, Inc.

Background

Jane Doe brought a negligence claim against Uber Technologies, Inc., Rasier, LLC, and Rasier CA, LLC, which the opinion collectively calls Uber. The claim arose from an assault by a former Uber driver posing as a current Uber driver.

Uber moved for a protective order—an order limiting conduct connected with a case. Specifically, Uber sought to prohibit Doe’s counsel from making statements outside court about the action, including statements to the media or other public bodies. The proposed restriction covered statements about a party’s character, credibility, or reputation; a witness’s identity or expected testimony; statements by a defendant or a defendant’s refusal to speak; physical evidence; the strengths or weaknesses of either side’s case; and information that counsel knew or reasonably should have known was likely to be inadmissible and substantially prejudicial.

Uber argued that the order was necessary because of Doe’s earlier conduct in the case. Uber pointed to an opinion piece in The New York Times and to a letter Doe sent to the California Public Utilities Commission and other third parties. Uber asserted that the letter contained misstatements and misleading excerpts from depositions. The opinion states that the New York Times piece was shared 56 times on Twitter, while Uber did not show that the letter generated media attention or publicity.

Court’s Analysis

The court held that the requested order would be a prior restraint on speech. Under the standard discussed in the opinion, such an order could issue only if: (1) there was a substantial likelihood of material prejudice to the administration of justice; (2) the order was narrowly drawn; and (3) no less restrictive alternatives were available.

First, the court found that Uber had not shown a substantial likelihood of material prejudice. It distinguished the earlier case the court discussed because that case involved extensive local and national media coverage, repeated warnings to defense counsel, and publicity about trial strategy and the merits of the criminal case. Here, Uber identified one New York Times opinion piece and a letter that had been shared with third parties, but did not show comparable publicity. The court also found that the article primarily concerned Uber’s practices regarding rider safety and sexual assaults and discussed the present case in the context of publicly filed documents, rather than attorney arguments about Uber’s litigation strategy or the strengths and weaknesses of its case.

Second, the court found that the proposed order was not narrowly drawn. It would have broadly barred Doe’s counsel from making statements about the case, including statements about parties’ or counsel’s character, credibility, or reputation and statements about testimony, admissions, or a defendant’s refusal to make a statement. The proposed order would have applied only to Doe’s counsel, and the court concluded that it was not limited to speech substantially likely to have a materially prejudicial effect on the proceedings.

Third, the court found that less restrictive alternatives were available. It identified jury questioning about possible prejudice, jury instructions requiring jurors to decide the case based only on trial evidence, and other measures recognized by the Ninth Circuit. The court also noted that Doe’s counsel remained subject to the California Rules of Professional Conduct and the court’s local rules.

Disposition

The court denied Uber’s motion for a protective order. It stated that, unless Uber could demonstrate that Doe’s counsel’s statements were substantially likely to affect Uber’s right to a fair trial, a prior restraint would be impermissible. The order disposed of Docket No. 169.