Communications, Inc., 435 U.S. at 591, 98 S.Ct. at 1308-09 (audiotapes, which were kept under seal, had been admitted into evidence at trial); Webbe, 791 F.2d at 104 (same). We conclude, for reasons unrelated to the fact that the videotape was never admitted into evidence, that the videotape itself is not a judicial record for purposes of this analysis. The district court in the present case declined to decide whether the videotape itself was a judicial record to which the common law right attaches, but did note that courts are divided over whether a videotape of witness testimony, taken pursuant to Fed. R.Crim.P. 15, is a judicial record. 940 F.Supp. at 227 (comparing, for example, Application of American Broadcasting Cos., 537 F.Supp. 1168, 1171-72 (D.D.C.1982) (Application of ABC) (<HOLDING>), with In re Application of CBS, Inc., 828 F.2d
holding that a videotape of a rule 15 deponents testimony is not a judicial record for purposes of broadcasters right of access because otherwise such deponents would be subject to exceptional treatment as compared with other witnesses recognizing that first amendment provides qualified right of access to judicial documents holding that the individuals with whom a plaintiff seeks to be compared must have engaged in the same conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employers treatment of them for it recognizing common law right of access to judicial documents holding that right of access to recover damages for bodily injury was fundamental but noting that numerous other states have held otherwise