Editor's Note: (Danny Cevallos (@CevallosLaw) is a CNN Legal Analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. The opinions expressed in this commentary are his.)
(CNN) The presidential campaign has been jolted by the leak of a tape from the show "Access Hollywood" that caught Donald Trump bragging about his ability to kiss and grope women at will. Since he spent years as the star of "The Apprentice," the question has arisen of whether that show has tapes that could affect the course of the election and if there are legal constraints that would prevent their release.
On October 3, the Associated Press reported on interviews with people who were associated with "The Apprentice" and claimed "Donald Trump repeatedly demeaned women with sexist language" and "said he rated female contestants by the size of their breasts and talked about which ones he'd like to have sex with."
After much speculation about tapes, "Apprentice" producer Mark Burnett and his company's owner, MGM, went so far as to issue a joint statement this week: "Mark Burnett does not have the ability nor the right to release footage or other material from 'The Apprentice.' Various contractual and legal requirements also restrict MGM's ability to release such material."
That argument didn't sit well with Barry Diller, the media entrepreneur, who backs Hillary Clinton. Diller told Politico, "There are no legal obligations. To who? For what? ...They own the copyright. They can do whatever they want with it."
Of course, it's also possible Trump himself has some ownership or control over that "Apprentice" material as well -- without looking at the agreements, it's impossible to tell.
But what if someone subpoenas the "Apprentice" tapes or seeks a court order disclosing them? Does a media company have any privilege or privacy rights?
In California, the "newsperson's shield law" protects "a newsperson from being (held in) contempt for refusing to disclose ... unpublished information." This immunity is not absolute, though. "Unpublished information" is "non-confidential, eyewitness observations of an occurrence in a public place."
That might not apply here, especially if the conversations are confidential. And, even though the concept of "newsperson" is more amorphous in the modern age, "Apprentice" footage might not qualify. Even if it does, there are exceptions.
Also, just because the parties or their contracts say something is private doesn't mean a court will honor that privacy.
There is no pending lawsuit or apparent grounds for a court order or subpoena. If someone does try to subpoena the company's footage, courts can "quash" or modify a subpoena if it requires disclosing a trade secret or other confidential research, development, or commercial information. There must be a substantial need for the material that cannot be otherwise met without undue hardship.
If MGM/Burnett insists this is "important proprietary information," they must establish they have historically sought to maintain the confidentiality of this information. Since reality shows -- especially those centered on a competition -- depend heavily on suspense and surprise, there's a strong argument to be made that the footage should be protected from disclosure.
There's a problem with this argument though. The show aired some time ago; there's no surprise left to safeguard. MGM/Burnett would be making an argument on principle: "If we released these tapes, none of our tapes in the future will be safe."
They would have to argue that the process itself is the proprietary material, and not just the outcome of a show or a season.
If you're Mark Burnett and MGM, you're wondering if any of your current or former employees with access to the outtakes would be tempted to leak them to the media. There was even an unverified claim that there's a contractual penalty of $5 million for any Burnett employee who disclosed proprietary information about the show."
Even if that's true, though, that penalty clause offers no real remedy after the material is already out there. Those employees -- just like most of us -- are probably "judgment-proof." This means the company might be able to win the lawsuit, but most employees couldn't pony up $5 million in damages. Plus, the real damage wouldn't be the money -- it would be the leak of the tapes. Probably the best the aggrieved company could do here is terminate the employee.
Employees who take sensitive company material could be prosecuted, too. For example, federal law prohibits the commercial theft of trade secrets to benefit someone other than the owner, and that is punishable by up to 10 years' imprisonment. The law broadly defines "trade secret" to include all types of information that the owner has taken reasonable measures to keep secret and that itself has independent economic value. This seems to perfectly describe footage taken by reality competition shows, although its value today is questionable.
Legally the biggest obstacle to unearthing any material in the possession of MGM or Burnett is the absence -- so far -- of any court case. As a general rule, there must be a criminal investigation or civil case pending to ask a court to pry open the records vault of a private company.
That's especially relevant now that Trump himself is threatening litigation against The New York Times. Any litigation could potentially open a company like MGM to a third-party subpoena -- whether or not they are a party to the action. The scope of discovery in a civil case is breathtakingly broad. Similarly, law enforcement has its ways of obtaining documents from companies, even in advance of an indictment.
Phrases like "confidential" or "secret" are thrown around offices and companies as if their invocation alone will ward off prying eyes. To a court, these are just words. A court has the power to open up the books and the vaults of even the most secretive companies; all it needs is a case, and someone -- or something -- or some prosecutor -- willing to bring it.
The dilemma facing MGM and Burnett illustrates a modern concern for companies. Technology has allowed us to keep an unprecedented volume of records, video and otherwise. However, the fact that we are all just a lawsuit away from having to hand over incredibly sensitive and damaging information encourages a Snapchat approach: companies have every incentive to delete or "lose" records as soon as possible. Unfortunately, the safest company from the reach of discovery is the company with the fewest records, and the fewest scruples.