6 June 2000

MPAA v. 2600: Solomonic Ruling on Motion for Protective Order to Close Depositions

By Cryptome

A hearing was held today in MPAA v. 2600, before Judge Lewis Kaplan in the Southern District of New York, on the MPAA motion to bar public and press access to depositions.

Judge Kaplan granted leave to intervene to the Village Voice, the Times Mirror/Newsday, and Mike Godwin but denied leave to Godwin's co-applicant Declan McCullagh.

After arguments by MPAA, 2600, the Times Mirror for Newsday, the Village Voice and Mike Godwin, Judge Kaplan ruled:

1. Because he had approved the confidentiality stipulation between parties yesterday that was no longer an issue for the hearing.

2. Stipulated confidential information includes: that which could lead to harm of a deponent; trade or business secrets; information on present or future encryption protection measures. Excluded is information or testimony that is embarrassing to deponents.

3. Judge Kaplan emphasized that protection of encryption information is limited to the discovery phase since such information is the heart of the suit and is therefore likely to become public during trial.

4. As a result of today's arguments, the terms of the stipulation will be modified in lieu of a blanket protective order, as follows:

5. Publicly released material can be posted to the Internet as with any other medium.

6. The press and public will not be allowed to sit in on depositions.

7. Depositions of "prominent" deponents such as Jack Valenti, Michael Eisner (or his substitute) and Fritz Attaway (head of DVD CCA) shall be excised of stipulated confidential information and released to the public within three (3) days. (Jack Valenti was deposed this morning in Washington D.C. and that material shall be treated as set forth by today's ruling.)

8. Parties may propose additional "prominent" deponents to the Court for consideration.

9. Videotape of depositions shall be treated the same as text. (The Valenti deposition was videotaped.)

10. Depositions of "non-prominent" deponents shall be excised of confidential information and released to the public within ten (10) days.

11. Judge Kaplan will be available to promptly adjudicate disputes on designation of confidentiality, but said that plaintiffs and defendants will be subject to harshest sanctions if he finds that there is a deliberate effort to abuse designation of confidentiality or to otherwise inhibit speedy trial preparation.

A hearing on discovery is scheduled for Thursday, June 8, 2000.


The courtroom had more people than previous hearings Cryptome attended in January and May. In addition to the five legal teams, in attendance was Wendy Seltzer of OpenLaw, Declan McCullagh of Wired, Carl Kaplan of the New York Times, Jeff Howe of the Village Voice, Rita Ciolli of Newsday, Dave Buchwald and John Katz and Mollie X,  Deborah Natsios of Cryptome, 3 or 4 observers from Proskauer and a half dozen other scribblers and secret agents of unknown identity.

Judge Kaplan was marginally less hostile to the defense but regularly admonished Martin Garbus, lead Frankfurt Garbus attorney for 2600, who, as ever, was unfazed. (These exchanges are quite admirable swordplay.) Kaplan was genial and even humorous, and threatened the lawyers only once with fire and brimstone for refusing to ease up on harassing each other (applying the metaphor of two scorpions in a bottle fighting to the death). He thundered that there is rule which allows him to personally charge a miscreant with the financial cost of delay which he will invoke with pleasure if required.

Charles Sims, lead Proskauer Rose attorney for MPAA, complained that their filings appear on the Internet within a day or two of submission. Kaplan said get used to it, that's the way the world now works, that now even judge's financial statements are on the Internet. (He didn't say that the judicial conference arranged APBonline's insolvency with the wiseguys at Gambino's across the park.)