Finally, we see no material distinction between subpoenaed deposition testimony and testimony in open court, where both are offered in the context of a judicial or administrative proceeding alleging government misconduct. Caw argues that testimony given during a deposition, which is often conducted in the private confines of a law firm, differs from testimony elicited in court, which is open to the public. We have recognized that the public has a lesser First Amendment interest in accessing pretrial discovery materials.
See Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1179–80 (9th Cir.2006) (holding parties to a lower standard when they seek to file under seal documents attached to non-dispositive rather than dispositive motions);
see also Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984) (holding that a protective order prohibiting the disclosure of pretrial discovery does not offend the First Amendment). We see no basis, however, for affording a lower level of First Amendment protection to a subpoenaed deponent than to a witness at trial. Both offer sworn testimony. Both have the potential to “ ‘bring[ ] to light potential or actual discrimination, corruption, or other wrongful conduct by government agencies or officials.’ ”
Clairmont, 632 F.3d at 1104 (quoting
Alpha Energy Savers, 381 F.3d at 925). Both “contribute in some way to the resolution of a proceeding in which a matter of public concern is at issue.”
Id. (quoting
Robinson, 566 F.3d at 823). Furthermore, while the public may not have immediate access to private deposition testimony, such testimony may later become a matter of public judicial record, for example if attached to a summary judgment motion.
See Kamakana, 447 F.3d at 1179–80. At that point, the deposition testimony would reach as broad an audience as would the courtroom testimony.
Cf. Desrochers, 572 F.3d at 714 (explaining that, while not dispositive, one factor to be weighed is whether the speech is made publicly or to a limited audience). A rule protecting an employee from retaliation for her deposition testimony only after the testimony had been made part of the public record would be both unworkable and unjustified.