The government submits that the district court properly excluded the public and press from Governor Edgar's deposition. It urges us to accept the district court's characterization of the procedure employed as a
Rule 15 deposition. By definition, it continues,
Rule 15 depositions are taken from “prospective” witnesses. When the deposition is taken, the party seeking the deposition is not committed to introducing it at trial, and the trial judge has not ruled on the admissibility of the testimony. Until admitted into the record, potential evidence is not ordinarily within the scope of press access.
See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). Arguing in the alternative, the government submits that, even if there is a common law or constitutional right of access to a
Rule 15 deposition, the district court did not abuse its discretion by sealing the deposition until it was played at trial. Under
Grove Fresh, the press' right of access can be overcome if necessary to protect the parties' right to a fair trial. Mr. Berger's trial was highly publicized, and there was a substantial possibility that news coverage of the Governor's deposition would have come to the jurors' attention and thereby damaged Mr. Berger's right to a fair trial.