Hulk Hogan's Lawyers Seize on Nick Denton Blog Post in Bid for More Secrecy

As the FBI turns over video and documents, who is going to see them?
AP Images/Invision

There's nothing typical about Hulk Hogan's lawsuit against Gawker over the publishing of a sex tape.

In a dispute that is primed to deliver the first celebrity sex tape trial — if only the judge can get her act together — comes an emergency motion for clarification of a protective order.

Almost all lawsuits involving celebrities have protective orders. They allow the parties to engage in pretrial discovery without fear that sensitive secrets will be spilled. Except this time, the emergency motion seeks to clarify one and involves an FBI investigation, word of possible other sex tapes, a blog post written by Gawker chief Nick Denton mentioning "Hulk Hogan’s real secret," and some redefinition of "attorney's eyes only."

In May, two months before Hogan was supposed to be going to trial, Gawker filed a separate lawsuit under the Freedom of Information Act looking to order the FBI to turn over materials related to its probe of Hogan's sex tape.

This happened after Gawker got the judge in the Hogan case to sign off on an order compelling Hogan to waive his privacy rights in the FOIA request. But even before Gawker sued the FBI, the media company came to an agreement with Hogan about the protocol for documents and video obtained from the government.

Now, the FBI is ready to hand over what it's got.

Last week, a Justice Department attorney provided notice that "re-processed video footage" was on its way, regardless if one of the DVDs was "corrupt" and another video had audio "not synchronized." The video will be going to a magistrate judge first to determine the relevancy. Other documents have already or will soon be going to attorneys for the parties.

But, wait.

On Friday, Denton provided his own full recap of the case and included the cryptic line, "There will be a third act which we believe will center on the real story: the additional recordings held by the FBI, the information in them that is Hulk Hogan’s real secret, and irregularities in the recordings which indicate some sort of cover-up."

In a letter to the judge, Hogan's lawyers boldfaced the part about "the information in them that is Hulk Hogan’s real secret." They told the judge it raised "serious concerns that Gawker Defendants have already been told about the contents of materials that are designated 'Highly Confidential — Attorneys' Eyes Only.'"

Whether or not this was a real concern, Hogan's lawyers asked the judge to take stock of the protective order and amend some stuff in regards to the FBI materials.

Gawker has sent a letter in response that assures the judge that Denton hasn't been told about the contents of government documents. What's more, Gawker is objecting to proposed changes that would treat all documents as "highly confidential" on a blanket basis and exclude Gawker general counsel Heather Dietrick from the definition of "attorney's eyes only." On the latter point, Gawker says it should be able to consult with its chief legal counsel about the Hogan case, which Gawker has pretty much publicly admitted is a "bet the company" type of lawsuit.

The motion may be taken up at an Oct. 1 case management conference currently scheduled. Add clarification of a protective order to the long list of unusual motions in this case: Gawker's motion to permit presentation of offensive language at trial, media companies' motion to intervene so as to contest a closed viewing of the sex tape, etc. Yet another one for the ages.