11 May 2000
Source: Electronic Frontier Foundation

See related Martin Garbus affidavit and order to show cause:

http://cryptome.org/mpaa-v-2600-ao.htm

And case files:

http://www.eff.org/pub/Intellectual_property/DVD/
http://eon.law.harvard.edu/openlaw/dvd/
http://jya.com/cryptout.htm#DVD-DeCSS

A hearing is to take place today on this matter.

[Record of telephone conference in MPAA v. 2600]

WITH EDITS FOR CLARITY

May 2, 2000
12:20 p.m.

Before:  HON. LEWIS A. KAPLAN, District Judge

APPEARANCES

PROSKAUER, ROSE, LLP
Attorneys for Plaintiffs
1585 Broadway
New York, New York
LEON P. GOLD, SQ., by telephone
Of counsel

FRANKFURT, GARBUS KLEIN & SELZ
Attorneys for Defendants
488 Madison Avenue
New York, New Yok
MARTIN GARBUS, ESQ., by telephone
Of counsel

BELDOCK LEVINE & HOFFMAN LLP
Attorneys for Martin Garbus
99 Park Avenue
New York, New York
RONALD C. MINKOFF, ESQ.,
HAL LIEBERMAN, ESQ.,
Of counsel

THE COURT: Good afternoon.

Who is on the telephone, please?

MR. GOLD: Leon Gold and Carla Miller.

MR. GARBUS: I understand Mr. Lieberman and Mr. Minkoff are in court.

THE COURT: They are here.

Before anyone on the telephone says anything, you are going to have to identify yourself each time you speak so that the court reporter has some idea whose mellow tones are issuing forth from the speaker.  Okay?

MR. GOLD: Yes.

MR. GARBUS: Yes, Judge.

THE COURT: What I have before me is an application by the plaintiffs to stay discovery pending a ruling on the plaintiff's motion to disqualify the Garbus firm as counsel to the defendants.

The immediate problem, as I understand it, are depositions of two nonparty witnesses that are now scheduled for May 8 and 9 in Los Angeles.

MR. GOLD: Yes, your Honor.

THE COURT: Just a minute.

You are both talking simultaneously and neither one of you identified yourself.

MR. GARBUS: I don't think that is an issue, because as I understand it I have already spoken to one of the nonparty witnesses and we are trying to work out a schedule with him, and that is the DVD, so we don't have that problem.

MR. GOLD: We have two other nonparties that I represent that were served for Monday the 8th and Tuesday the 9th.

THE COURT: Now, look, gentlemen, stop.  This is impossible to do on the telephone if you are going to behave in this fashion.

Nobody speaks until I ask you to speak.  All right?  Do you understand, Mr. Gold?

MR. GOLD: Yes, your Honor.

THE COURT: Mr. Garbus?

MR. GARBUS: Absolutely.

THE COURT: Nobody interrupts anybody.

MR. GARBUS: Absolutely.

THE COURT: All right.

Now, what, Mr. Gold, is the immediate problem?

MR. GOLD: I have two nonparty witnesses that were served for depositions on one for Monday, one for Tuesday in Los Angeles.  That is this coming Monday and Tuesday.

THE COURT: Who are they?

MR. GOLD: Motion Picture Association of America and Mr. Jack Valente, who is its executive officer and was separately subpoenaed.

To my knowledge, there have been no discussions that those depositions can be adjourned at all.

The letter I wrote to you was because we couldn't work that out and that's why I wrote you the letter to begin with.

The letter is an application to stay their discovery and other discovery until the disqualification motion is decided.

THE COURT: I understand that.

MR. GOLD: Or in the alternative that it is impossible for us to go on, get our documents delivered and have that deposition, and we asked for an adjournment of those two depositions if you didn't grant the stay until the disqualification motion was decided.

THE COURT: All right.

When is the disqualification motion going to be briefed for the defendants?

MR. MINKOFF: Your Honor, we would like until the 19th of May to file papers.  We are putting together a substantial opposition papers.

THE COURT: Is there any objection to that, Mr. Gold?

MR. GOLD: No, other than our position is that discovery should not go on until after --

THE COURT: I got that, Mr. Gold.

MR. GOLD: Yes.  Other than that, I have no objection to May 19 or any other date that is convenient for them.

THE COURT: All right, May 19 it is.

Your reply papers, Mr. Gold, when are you going to get them?

MR. GOLD: If I can have five days.  I think the 24th is a working day.

THE COURT: Offhand I don't remember.  I think it is.  I am sure it is, now that I think of it.

So that takes care of that.

What discovery is scheduled between now and, say, the first week in June?

MR. GOLD: Only these two depositions.  Mr. Garbus' office has been kind enough to state that he rescheduled the depositions of the parties.  He noticed to a convenient time and if Mr. Garbus is in the case we will work that out later.  It is only these two nonparty witnesses.

THE COURT: That is right, Mr. Garbus?

MR. GARBUS: No. We wanted to go ahead with the discovery.  I said we will reschedule, if we can't make it on May 16, I will make it on May 17.

We have 11 depositions in May, there is an injunction in effect.  We had submitted to the court to vacate the injunction. we served a cross-motion yesterday.  It is a First Amendment injunction.  Every minute that it remains in effect the _________ public is damaged.  If there were no injunction for the next six months, the plaintiff would not be damaged at all.

We have now gone through the facts, I am prepared to argue just briefly, if you will, something about that motion.

That order should be vacated immediately, the motion to expand should be immediately denied.

We gave the court today some twelve affidavits.  We may or may not, given the history of this litigation, be able to persuade the court to vacate the injunction based on the proof that we have.  I doubt it.

We will get the proof from the plaintiffs' mouths and from the plaintiffs' documents.  We want those depositions now.  This is a prior restraint.

I appreciate what the court's decision said.  The court's decision was based on facts that were submitted by the plaintiff, that were uncontroverted, that were false.

Two days ago --

THE COURT: Look, Mr. Garbus, let's retreat a little bit from the high dudgeon.

Your clients had an opportunity to put in affidavits; they didn't.  They had a right to appeal; they didn't.  It is now three-and-a-half months since I ruled on the injunction or three months, something like that, and with all due respect, you can't expect in that posture simply to say stop the world, I want to get off.

Your motion will be heard in due course.

MR. GARBUS: Your Honor, may I now speak?

THE COURT: Yes.

MR. GARBUS: I recognize that the motion will be heard in due course.  We have filed papers that have to be in to you by tomorrow and they will be in to you by tomorrow.

Then I presume Mr. Gold will seek an additional two weeks.  He told us he will.  That gets us roughly to the end of May.  That means this unprecedented, unconstitutional injunction is violative of the First Amendment will be in effect for four months.

We want to litigate this case on behalf of my client and the very important issues in my way.  We need discovery now.  This is the first request for discovery.  I'm not going to go over what happened in this case before.  Your court's decision is very clear about no evidence having been presented on behalf of the defendants.  Clearly the defendants, previous counsel is responsible for that.

What we are now saying is that the evidence is there.  We can take the depositions this month and we will show you on the basis -- and I can go into a list of the facts right now that we will prove in your decision which were based on fact were based on facts given to you by the plaintiff where the defendants did not submit a document, a piece of paper, any evidence in opposition which are totally wrong.

THE COURT: Mr. Garbus, you said all that a minute ago.  Now let's get back to what we are dealing with now.

MR. GARBUS: I want the discovery now.

THE COURT: Just a minute, Mr. Gold.

MR. GOLD: Sorry, your Honor.

THE COURT: For what purpose, Mr. Garbus?

MR. GARBUS: It is obvious.

You have an injunction in place now --

THE COURT: I will tell you what is obvious, Mr. Garbus:

What is obvious is that you filed a cross-motion to vacate the injunction.  Now, I suppose that if you did that you thought that the papers you filed are sufficient to warrant vacating the injunction.  Am I right or wrong?

MR. GARBUS: Totally wrong.  And what we said in the motion, and we are very clear in the motion, is that we have not had discovery.

What we have said, and I really want to be clear, and I hope there is a transcript of this proceeding so there is no misunderstanding, I want to be clear what I said in the motion and what we are saying in the brief tomorrow, we have submitted some ten affidavits from academics, professors, scholars, defendants, representatives of the media, the same thing that they are trying to stop this defendant from doing The New York Times does, the San Jose Mercury News does, the Associate Press does.

I am not convinced that on the basis of the documents that we have presented to this court now that this court, given what has already happen, will vacate this injunction.

I am convinced that if I take discovery now and this injunction will be immediately lifted after the three or four days of discovery of each plainiff.  We have statements made and we have affidavits which we have submitted to you by these plaintiffs saying there has been no piracy now, or ever, they know of no future piracy.

We have statements submitted to you by some of the leading cryptographers, scientists from Princeton, from the University of California, from Berkeley telling you that the factual decision that you made in your decision based on what you were told is wrong, that there has not been a case of piracy, that this DECSS was for the Linux system, which you totally disregard in your decision based on the information that the plaintiffs have given to you.

I can go through, it if you want, the 20 factual decisions that you made in your decision based on what Mr. Gold told you.  Each of which are wrong.  You have a First Amendment issue here and I think we ought to deal with it in a responsible way.

I'm not going to pass judgment on what has happened in this case before.  I have been in this case now for two months.  I understand the case.  We have interviewed literally 200 witnesses.  We have taken 50 affidavits.  We have submitting to you within the next two days -- we already submitted twelve.  We will submit two more tomorrow from the leading professors in this field as well as the leading cryptographers.

You will have in the papers we will submit to you and in the papers you now have a total discussion of what DECSS is, about its value to encryption technology.

I feel the difficulty, Judge Kaplan, of communicating with you, and it's not because of any personal reason but because of the record you previously had before you and because of the information that Mr. Gold gave you.

THE COURT: Are you quite finished?

MR. GARBUS: No, I am not finished.  I am prepared to argue it further in court.

THE COURT: Well, this is your opportunity.  Are you finished?

MR. GARBUS: No. Then I will go through it.

In your decision you say, and I will just go through the 20 points of your decision.

THE COURT: Now look, Mr. Garbus, this is a discovery matter, you are not arguing the motion to vacate the injunction.

MR. GARBUS:  No, no.  The discovery relates to the injunction.  Judge, let me say it.  I am going to go through, I can go through each factual issue of delay and difficulty, I think I can go through 24 factual issues in ten minutes--

THE COURT: Mr. Garbus, you are not going to do that.

MR. GARBUS: That is what the discovery is for.  The discovery is to prove that each of the factual judgments that you made in your decision based on the evidence that the plaintiff gave you is wrong.  There was not one single affidavit or piece of evidence given to you by the defendants.  Based on the discovery that we will produce this week we will show you that the factual allegations are wrong.

The New York Times on Friday published and posted the DECSS concerning the linking issue before you.  The San Jose Mercury News had it "linked" close to two or three months.  The AP has circulated this information.  And that information we will show to you not through our allegations, not just through the witnesses that we produce, we will show it to you through their witnesses.

We have an affidavit by Robin Gross, who attended a Yale seminar on Tuesday, and at that time --

THE COURT: I am going to interrupt you now, Mr. Garbus, because it is perfectly clear, I think, that what I am being subjected to is a rude, noisy, loud, belligerent and highly offensive harangue, and I am simply not going to listen to it.  Either you are going to address the discovery issue or you are going to make a speech which is clearly intended for an audience other than me.

MR. GARBUS: No, this --

THE COURT: If it is the latter, I don't think I am going to hear it, particularly in a circumstance where, because of the technology of the telephone and because of the lack of any visual component to this conversation, you are unable to see when I am indicating that you should stop in order to let me interpose a question or a suggestion, and because the phone will not transmit voice in two directions at the same time you cannot hear when I am trying to cut you short to bring the conversation into focus.  So that if you can't control yourself, we are going to do this at the court house or not at all.

Now, what is your pleasure?

MR. GARBUS: Judge Kaplan, it was not my suggestion to have this done by phone at all.  I do not like telephone arguments and I think they are inappropriate in this case.  I would rather be in Court so that we can talk to each other.  I will try and refer everything solely to the discovery and I will try to do it in a slow, quiet voice.

Is that acceptable to you?

THE COURT: We will try.

MR. GARBUS: If you feel I have overstepped that bound, please tell me and I will stop.

THE COURT: You overstepped it to such an extent that I had to turn the volume on the telephone from the highest amplification, which I normally need to hear conversations at the other end, to the lowest to avoid everyone in the room being blasted out of here by you.

MR. GARBUS: Judge Kaplan, with all due respect, if I may say, I also turned down my volume on a good deal of this dialogue.  I don't like it either.

I am prepared to argue.  I am prepared to relate the discovery to each of the issues that I was talking about.

THE COURT: I don't need that right now, Mr. Garbus, though it is obviously relevant at some point.

MR. GARBUS: I will do it whenever you say, Judge.

THE COURT: The injunction was entered, if memory serves, on February 2, is that right?

MR. GARBUS: Yes, it was.

THE COURT: It is now May 2.

Whatever the circumstances, your client was perfectly contend to allow three entire months to go by without in any way challenging the injunction either on appeal or before me, and what I am trying to get at is the very narrow question of why another week or two or three is going to produce such a horrendous injury that the world ought to be turned upside down.  That's what I want to get at.

MR. GARBUS: May I respond?

THE COURT: Yes, please, to the point.

MR. GARBUS: My client has done everything, everything, everything it can conceivably do in the last two-and-a-half months, since I've been involved in this case, to bring this matter before you and to start informed discovery.

My client has spent hundreds of thousands of dollars-- and I thought I was being responsive, and if you tell me to stop I will stop.  You have a very complicated technical issues here, very sophisticated issues, not so much of law because the law seems to me to be relatively obviously and relatively simple, even though it's a first interpretation of the DMCA.  There is no nuclear physics in this law.  A first year constitutional law student could understand it.

What this case depends on in large part are a lot of the factual allegations in the case, and what we feel is that there has been an extraordinary chilling effect.  This court cited Bantam Books and its decision and its progeny and this court is fully familiar with Bantam Books and its progeny.  I litigated it.  What has happened as a result of this decision is that universities, academics pray for public information, and you have affidavits before you now and you will have further affidavits before you tomorrow of universities that want to publish information about DECSS and how it gets there.

We have information from Frank Stevenson, a very respected cryptographer who wants to publish.  The New York Times is publishing.  We have an affidavit from Herald Ableson, professor of computer science and engineering at MIT, talking about the extraordinary need to disseminate this information in the interest of research and science.

I want to prove all of this and I want to prove it now.  This injunction at the present time is interfering with important First Amendment issues.  You tell me, Judge Kaplan, if I am still rasing my voice, it happens to be my passion, I don't mean it out of disrespect, Judge Kaplan.  I have great respect for you.  I have previously appeared before you and enjoyed it.  It is a question my passion for this issue.

You have a First Amendment injunction in place and effect and you will have affidavits by tomorrow from various academics and scientists talking about the effect of that injunction.

I have every reason to believe that those affidavits stand a possibility of not persuading you.  In any event, the motion will not be finally submitted to you until the end of May.

What I want to do is to get this discovery in place now.  I think, and Mr. Lieberman will argue that at a different time, that the disqualification motion is an attempt to stop that discovery -- they knew we were in this case for two months.  We were before your Honor when they tried to force me on to trial and to start discovery within a week.  They then knew I had represented Time-Warner.  Time-Warner and I had been in a series of disputes -- if I am raising my voice, Judge, just tell me -- had been in a series of disputes for three to four to five years.  So Time-Warner is totally familiar with the fact that we have been in the case.  They were prepared to let us to go to trial when we were totally unprepared.

They want me out of the case now.  This disqualification motion it is merely a strategy aimed at me.  As I read your decision, your previous decision, namely, on disqualification, it seems to me that the disqualification motion is of exactly no merit.

If you look at their brief and the disqualification motion, you will see that they ignore totally your decision on conflict.  They don't mention it, they don't distinguish it.  This motion is transparently false.

I have never been in a situation where I have been before a judge where I have not cited a case that a judge has dealt with in an area that is exactly on point.  I believe it raises ethical issues.  This motion is transparent and false, and what it is doing is attempting to keep in place a First Amendment injunction.

I can continue, but I don't want to impose on you and I do -- you know, I respect you and you and I will meet together in this case for a while and to the extent I offended you I apologize and I want the relationship to be a professional one.  And I do apologize if I raised my voice.

THE COURT: All right.  Thank you, Mr. Garbus.

Mr. Gold.

MR. GOLD: Yes, your Honor.

Obviously, your Honor, we didn't put anything before you on the motion which we thought was false.  We made sure as far as we could that was true and I think it was.  There is no point in arguing motions when I haven't seen their papers.

THE COURT: Why did it take so long to move to disqualify Mr. Garbus?

MR. GOLD: Well, at the time Time-Warner heard of it, it said sometime in mid-April.

There are different -- in mid-April -- was that in March?  I apologize, your Honor, it was in mid-March.

The lawyers that are on this case are not in any way involved in the other case and there are an awful lot of lawyers there and they are frequently out of the office.  I think it took several weeks to circulate, and then the lawyer involved in the other case and in this case understood that they had this conflict and they --

THE COURT: I'm sorry, I don't understand what you are referring to when you say the other case.

MR. GOLD: The case where Mr. Garbus represents Time-Warner.

MR. GARBUS: Judge, your Honor, pardon me.  May I have Mr. Lieberman, who is our counsel --

MR. GOLD: I am not finished yet, Bill.

THE COURT: No interruptions, counsel.

MR. GOLD: So it took several weeks as it ordinarily would in an organization like Time-Warner with tens of divisions and tens of subsidiaries and a ton of lawyers for them to understand there was a conflict.

They then contacted Mr. Garbus.  He knew about it before I knew anything about it.

MR. GARBUS: I beg your pardon, I never heard -THE COURT: Mr. Garbus, control yourself.  Please do not interrupt.

MR. GOLD: They then contacted the Garbus firm and had a discussion.  After that I was advised of it.

I think that since we never knew about any disqualification and it came up somewhat by happenstance out of Time-Warner, it is not surprising that a couple of weeks past since Mr. Garbus -- one thing Mr. Garbus would never, to my knowledge, and as I understand it from Time-Warner, the Garbus office never talked to Time-Warner about any potential

conflict or about this potential case so it is not surprising it took a while to find out.

THE COURT: Let me ask you this, Mr. Gold:

To what extent, if at all, would there be any relationship between the matter in which Mr. Garbus is now representing Time-Warner and the depositions in this case of the MPAA and Mr. Valente?

MR. GOLD: I think the answer to that is that there would be none.

THE COURT: So why is there any harm in letting him go ahead and take those depositions --

MR. GOLD: The harm on the 8th and the 9th, as we said, is that we can't possibly come up with documents until the end of May.  That is a laborious job.

THE COURT: That is a separate issue.

MR. GOLD: Secondly, well, we will just have to do those depositions over again after we produce documents.

THE COURT: I'm sorry, look, let's just focus on one thing at a time.

What I am trying to focus on right now with you, Mr. Gold, is whether even assuming that Mr. Garbus is somehow poisoned by his current representation of Time-Warner there would be any harm in his deposing Valente and the MPAA in this case.  I take it your answer is it wouldn't.

MR. GOLD: The harm is to the, we would submit, with respect, the harm is to the principal.

THE COURT: I understand about that.

MR. GOLD: That is the only harm we would cite in response to your question.

THE COURT: What about this other discovery that is likely to take place in the next two or three weeks?

MR. GOLD: The other discovery Mr. Garbus noticed is discovery in the last half of May for the eight parties.  My associate, Ms. Miller, called Mr. Kernstad of Mr. Garbus' office and said, look, to produce documents it will take us to early June, so as soon as we get everyone's schedule we will do this on dates agreed upon after I have the availability and after we have the documents to move in an orderly way.

I would imagine discovery in this case is supposed to finish in October.  Mr. Garbus has noticed eight days of depositions.

THE COURT: Would any of those depositions have any relationship to what Mr. Garbus is doing for Time-Warner?  Are any of them of Time-Warner?

MR. GOLD: Well, one, one or two is of Time-Warner, I have to look again, and the others are not, they are of the other plaintiffs.

THE COURT: And the ones that are not of Time-Warner, are they related in any way to what Mr. Garbus does for Time-Warner?

MR. GOLD: No, not to my knowledge, they will not in any way they relate.

THE COURT: Do you have a different view than that, Mr. Garbus?

MR. GARBUS: No, I agree with Mr. Gold.

I disagree only with respect to one thing, namely, that I agreed to put these depositions off.

I was told that some of these dates were inconvenient.  I said we will reschedule them.  Instead of taking Paramount on the 17th, we will take Columbia on the 17th.

And also after Mr. Gold said that, he had that conversation with Mr. Kernstad, I immediately sent Mr. Gold, who I have the greatest respect for, a letter pointing out that he was wrong.

THE COURT: All right.

MR. GOLD: Well, if that letter ever arrived, sir, we never got it.  The fact that we never got it --

THE COURT: Counsel, you are forgetting the ground rules for this.  I will ask you to speak, otherwise quiet.

All right.  Mr. Gold, putting aside the devotion to the overriding principle that you rely on here, if what I were to do now is to block Mr. Garbus' firm from conducting discovery against Time-Warner until the motion is decided and to permit him to go ahead in the interim with respect to other discovery, how is anybody hurt?

MR. GOLD: Putting aside the principal set forth from the Second Circuit, I have no answer.

THE COURT: Okay.

Mr. Garbus, why doesn't that work for you, too?

MR. GARBUS:  I want this case before the Supreme Court in the fall.  That works fine for me.

THE COURT: All right.

That's what we are going to do.

MR. GOLD: Your Honor, may I point out several facts?

THE COURT: Yes.

MR. GOLD: One, it would be speedy if we could get all the documents relating to those depositions so we are finished with them once we take them out and there are going to be all kinds of problems with respect to attorney-client privileges and whether they apply.  Even if there aren't, it will be early June until we get them out.

Depositions, I would submit, can then be scheduled after that and finished before early July or late July and I don't see any purpose, since we have until October, that Mr. Garbus has to finish all the plaintiffs, depositions by May.

Lastly, I did point out to Mr. Garbus, who has been very interested in telling me what his vacation is this summer and nothing will happen to it, that I have an anniversary

scheduled for this year at the second half of May and I find it courteous, especially after his assertions of his vacations anyway, to put those things over to mid-June, during which time we can get document discovery and discover the documents and start his depositions.

THE COURT: Okay.  Let me interrupt you right there.

First of all, on the broad proposition, in ordinary circumstances I would be inclined to stop the discovery altogether pending resolution of the disqualification motion.  I am not going to do that and will do what I indicated a moment ago as I think as a practical compromise, taking into account that there may well be First Amendment interests implicated here which transcend the rights of the parties and taking into account also both the defendants' delay in raising this issue again, the manner in which they presented the case in the first place and some at least lack of coordination on the plaintiffs, side if not knowing delay.

It seems to me that the resolution I have indicated will pretty much serve everyone's reasonable interests.

As far as scheduling and the vacations and wedding trips or anniversary trips, I really do expect that two such well-known and well-thought of litigators in the City of New York are going to be able to treat each other like professionals and do what needs to be done here without making anyone's personal life a horror, and bearing in mind, also, that you both come from law firms with lots of resources and neither one of you personally is going to do everything in this case.

If, indeed, you can't in the last analysis reach an accommodation, I will make the accommodation for you, but I am not even going to try that until I am sure that you have exhausted your ability to do it.

So I don't need to here more today about vacations and anniversaries and who is accommodating whom.

I also understand that passions are high on both sides of this case, and Mr. Garbus' were very high before and I appreciate that they have settled downed a little bit, and I detect in some of the comments by counsel about each other that it has infected personal relationships and I want that to end right now.

So let's now proceed on a much more measured and quieter basis.  All right, folks?

MR. GARBUS: Thank you, your Honor.

MR. GOLD: Thank you, Judge.

MR. GARBUS: If I may say one thing, if I may.  I warrant I will not interfere with Mr. Gold's holiday, which I understand starts on May 24 or 25.  I see no reason why we can't complete everything I want to complete by then.  In any event, Proskauer has 400 other lawyers.

THE COURT: All right.

I also think that it is in everyone's interest if we accelerate the schedule on this disqualification motion.  Mr. Lieberman is having an cow right before me, but I really want to do that.

Can you get your papers in by the 12th, Mr. Lieberman?

MR. MINKOFF: We can try, your Honor.  We want to make a full presentation.  We are expecting affidavits and we are preparing a memorandum of law.  We will try to get it in by the 12th.  We prefer a few extra days if we may, but if that is your ruling we will certainly try to abide by that.

THE COURT: Is the 14th a weekday?

MR. LIEBERMAN: No, the 14th is a Sunday.  If we can have until the 15th.

THE COURT: The 15th.

Then, Mr. Gold, the 20th for you.

MR. GOLD: Thank you, your Honor.

MR. MINKOFF: The 20th is a Saturday.

MR. GOLD: May we do it on the 22nd?

THE COURT: All right.  Ideally I would like it a little bit earlier, but if -- if both of you can accelerate a couple of days, it would be helpful, but I understand that there is something of substance to say on this motion.

MR. GOLD: Your Honor, at the risk of trying your patience too much, Mr. Garber is going to make an effort to schedule --

THE COURT: Excuse me, his name is Garbus, Mr. Gold.

MR. GOLD: I'm sorry, your Honor, I don't even know what I said.  I do know it is Mr. Garbus.

Mr. Garbus is going to insist that all of these depositions of the plaintiff be done prior to the 20th since I am out for two weeks after that.  Our position is going to be since we can't fetch up the documents, there is no point in going forward with plaintiffs' discovery only to have it resumed later, and the 20th is going to be, I submit, impossible to furnish these documents and that that makes no sense.

I think we can work together once we have -- if we can start in June, that gives us something, I think, we can work out.

MR. GARBUS: I am not interested -- this is Mr. Garbus.

I don't want to reargue the motion.  We are prepared to go ahead with the deposition with as many documents as I can get.  If I find for some reason that the documents preclude me, I will tell Mr. Gold, he will get what he wants.

I have enough documents myself to start these depositions now.  Most of what Mr. Valente has said, most of what the DVD CCA has said, most of which has been said before Congress by these plaintiffs, is a matter of official records.  We have hundreds of thousands of pages.  We are prepared to go now.

MR. GOLD: I'm sorry, Mr. Garbus, but if you are saying you want Valente and MPAA, that is a different matter.

THE COURT: Mr. Gold, please, okay.

MR. GOLD: Thank you, your Honor.

THE COURT: I am not going to referee this debate.  You two are going to have to talk to each other and we all know exactly how fast the million documents can be produced if it is in the client's interest, Mr. Gold, so let's bear that in mind.  Okay?

MR. GARBUS: Thank you very much, your Honor.

THE COURT: Thank you.

MR. GOLD: Thank you, Judge.

EFF notice, May 11, 2000

NY Court to Hear Arguments re: Sanctioning Movie Studios in DVD Case

WHO:  EFF DVD Legal Defense Team and Defendant 2600 vs. Movie Studios.
WHAT:  Hearing to compel MPAA's Valenti and Disney's Eisner to testify.
WHERE:  Courtroom 12d, Federal District Court, Southern District of New York, 500 Pearl Street, New York, NY; see http://www.nysd.uscourts.gov/travlnyc.htm
WHEN:  Thursday, May 11 at 9:30 a.m.
WHY:  First Amendment says people can't just suppress ideas they don't like.

On Thursday morning, a federal court will hear arguments over media defendant 2600's request to sanction the movie studios for refusing to comply with the court's discovery schedule.  Martin Garbus, EFF and 2600's defense lawyer, asked the court to compel MPAA President Jack Valenti and Disney CEO Michael Eisner to submit to testimony under oath about piracy related to DeCSS.  We believe they have key evidence that there is no commercial or visible piracy of DVD movies occurring because of DeCSS and related programs. Also, because of the irreparable harm done to 2600 and others chilled by the court's preliminary injunction, Mr. Garbus will also ask the court to increase the financial bond the movie companies are required to pay pending the outcome of the case.

EFF encourages attendance by its members in the New York area, public citizens, and journalists concerned about the movie studios' overly broad interpretation of the Digital Millennium Copyright Act.

Contacts:

    Katina Bishop, Communications Manager
    Electronic Frontier Foundation
    (415) 436-9333 x101

    Robin Gross, Staff Counsel
    Electronic Frontier Foundation
    (415) 863-5459

For more information on this case, and three other DVD-related cases being sponsored by EFF, see http://www.eff.org/IP/Video