7 June 2000
Source: Anonymous.
See related files:
http://www.eff.org/pub/Intellectual_property/DVD/
http://eon.law.harvard.edu/openlaw/dvd/
http://www.2600.com
http://jya.com/cryptout.htm#DVD-DeCSS
Jump to list of MPAA deponents noticed by 2600.
A hearing on discovery is scheduled for June 8, 2000 before Judge Lewis Kaplan.
[5 pages.]
Frankfurt Garbus Klein & Selz, PC |
||
| 488 Madison Avenue New York, New York 10022 Tel: (212) 980-0120 Fax: (212) 593-9175
Martin Garbus |
June 1, 2000
BY HAND
The Honorable Lewis A. Kaplan
United States District Judge
United States Courthouse
500 Pearl Street
New York, New York 10007
Re: Universal City Studios v. 2600 Enterprises and Goldstein, 00 Civ. 277 (LAK)
Dear Judge Kaplan:
On April 28, 2000, Mr. Gold wrote the Court:
"After the Court rules on Time-Warner's disqualification motion, we will work with whomever appears as counsel for the defendants to negotiate an appropriate discovery schedule well within the timeframes provided for in this Court's Scheduling Order, which currently requires that discovery be completed by October 20, 2000."
The disqualification motion is over. We seek to go back to the original trial date and schedule set forth in Mr. Gold's letter. It is impossible to adequately prepare the defense for this case for trial for July 17th, to adequately finish discovery and to adequately prepare a meaningful pretrial order.
The preliminary injunction is in effect. We will not, if the Court grants this request, seek to again litigate the motions presently before this Court. To the extent the Court felt we were unclear about this previously, we mean to now be perfectly clear.
We have not had an adequate opportunity to prepare our case, to seek out new witnesses or to prepare those witnesses who have agreed to testify.
After the Court's discovery decision, we finished one deposition. We lost two weeks of depositions because plaintiffs' witnesses were inconvenienced and three weeks of preparation of our case because we cannot share the facts of discovery.
We have not examined one plaintiff, have not received one meaningful document from any plaintiff, have not had the deposition of the DVD/CCA or received one document from them. We have had three days of deposition (these depositions have been furnished to the Court), two MPAA witnesses and only one deposition is finished. One of the two witnesses, Mr. Schumann, was a consultant to Proskauer, Rose after having been a consultant of the MPAA. He only spoke to lawyers, he says. Mr. Schumann thus asserted attorney-client and work product privileges. Mr. Jacobsen, also a lawyer, also asserted those privileges. These were the witnesses who could allegedly speak on behalf of the plaintiffs.
Document production thus far avoids the main issues of the case.
We now have two depositions allegedly scheduled from plaintiffs. One, the Valenti deposition, is set for the same day as the motion to argue the sealing of the file and plaintiffs were asked to adjourn it to some other day this week so that we can appear before the Court. Plaintiffs refused to do so. The other prospective witness, Mr. Attaway, is an MPAA witness. No plaintiffs are now scheduled and even if they were, too much time has now passed.
The previous deposition of Mr. Schumann is in limbo. Mr. Gold had agreed to produce Mr. Schumann, who could only testify for one day, according to Mr. Gold, the week after his first day of deposition. He did not. He asked us to immediately give him a list of the documents asked for at the deposition and said he would get back to us. He did not. He said the following week there would be depositions. There were none. He said the MPAA witnesses could answer all questions that plaintiffs would be asked. They could not.
The only reason we obtained any of the discovery was because of the Court's previous ruling. Before that, we had absolutely nothing.
The deposition of DVD CCA was originally set for the first week of May. DVD CCA promised to furnish us with documents before and after we signed a confidentiality order. We never got documents. The claim that DVD CCA and plaintiffs are unrelated and not involved with similar issues is transparent. They are as involved with the issues in this case as the MPAA. The deposition dates, set and broken for various times, are now set for June 21 and 22. I have no idea if it will go forth. We are to look at documents the day before.
The DVD CCA is the licensor. The monopoly issue focuses on them. They, and the relationship to plaintiffs, is critical. We are told there are dozens, if not hundred, of boxes of documents in California. We have not seen one license or documents showing the relation between DVD CCA and plaintiffs.
The protective order sought by plaintiffs, unsupportable as a matter of law and fact, is part of a larger legal strategy that has been at play since the plaintiff first walked into court. The application for a quick trial and alleged agreement to participate in discovery are also part of plaintiffs' strategy to forge ahead and leave inadequate opportunity to prepare a defense. Because of the suppression of the depositions and the documents, we have already been damaged and prejudiced in our attempt to prepare for an early trial date. Defendants' prospective witnesses must have access to the facts and documents relevant to their testimony.
By the time the Court hears the motion for a protective order, nearly four weeks will have been wasted. Not only have plaintiffs impossibly delayed producing deposition witnesses, but they have blocked defendants from showing our witnesses or prospective witnesses the information necessary for them to make a decision as to whether or not to testify, and if so, on what grounds this testimony will be most relevant. Many prospective witnesses may, as a result of the protective order sought, be unable to testify.
When we left Court after the Court's discovery decision, we expected to move ahead. But since the date of the first deposition, we have been precluded from being fully able to prepare our defense. The protective order extending the time of the confidentiality agreement will only exacerbate this fact. Defendants are also dealing with numerous amici in this case -- from the media, from universities, and from academia -- all of whom are intensely interested in the very important issues presented by this case. We have been required to cancel and delay meetings and conversations with many of them.
The defendants do not have the resources plaintiffs have. This squabbling and the broken agreements ultimately inure to plaintiffs' benefit -- it wastes lawyers' time and stops our defense. Our defense does not come from witnesses employed by plaintiffs. It comes from academics and other throughout the country.
In the three weeks since May 12, when this Court, at plaintiffs' request, established the new trial date, reduced the discovery period by three and one-half months to some seven weeks (by Monday, June 5, there will be four weeks left), and directed the parties to engage in "expedited" discovery, plaintiffs have produced only two of the nearly two dozen witnesses noticed to be deposed and scheduled the depositions of only two other witnesses -- and it is unclear that those will all go forward. Only one deposition has been finished. As of this writing, not one person from a named defendant has been produced -- 37 pages of document production is purely symbolic.1 Plaintiffs decline to state whether their refusal to produce a witness is temporary or permanent, decline to identify witnesses they may produce, decline to schedule depositions, and make the instant motion for a protective order.2 It is consistent with plaintiffs' strategy that they have devoted far more time to their efforts to shroud the facts of this case in obscurity by sealing the transcripts of the only two depositions that have been taken than they have in engaging in "expedited" discovery.
____________________
1. The MPAA has produced many pages of non-confidential material, much of which is fodder. Defendants believe that it has produced a large number of documents to obscure the fact that it has withheld the most relevant documents. Documents that the MPAA have, that are on the Net or are in our files, were originally, according to Mr. Gold, to be deemed confidential.2. On May 31, plaintiffs agreed to attempt to produce three witnesses during the week of June 12 (three weeks prior to the close of discovery), and raised the distant possibility of producing an additional witness next week.
Attaway and Valenti, like Schumann and Jacobsen, have been identified and designated by both the plaintiffs and the MPAA as the witnesses with the most knowledge about the plaintiffs' learning of DeCSS, requests to the MPAA to circumvent CSS, the CSS license, his testimony before Congress, and other public statements on behalf of the MPAA. We advised the Court that the two MPAA witnesses previously produced could not answer on behalf of the plaintiffs. As with Schumann and Jacobsen, Attaway and Valenti can answer only for the MPAA.
The information we seek is critical. For example, various plaintiffs have search engines. Disney has Infoseek and Go. There are over 1,000 DeCSS "hits" on the Disney sites. These search engines, hit by numbers far greater than defendants, refer to DeCSS sites and to the code. A major search engines -- Northern Light -- has over 700,000 DeCSS "hits." Not one document has been produced by plaintiffs relating to this.
Plaintiffs claim defendants violate the DMCA while they do the same thing, a hundred fold. Disney never sought to stop Time Warner or Northern Light or its own search engine from going to DeCSS. In seconds I can go, I understand, from Northern Light or Disney to DeCSS. It is either one or several clicks. I do not know which plaintiff has or controls other search engines. We are entitled to discovery on these issues. For plaintiffs to continue to link to DeCSS and then try and stop defendants from doing so, is using unclean hands.
We have been working full-time on this case for the past four weeks.3 We now have the application for a protective order before you, an application to compel further depositions, and an application for rulings on the depositions previously taken. Although it is in some instances wasteful to take depositions without rulings, we are prepared to do so.
____________________
3. The letter of May 31, 2000 of Mr. Hernstadt, incorporated herein, sets forth the previous history of our discovery attempts.
We have recently completed briefing the disqualification motion and the motion for a protective order. We now have pending our responses to plaintiffs' papers to be served on Friday, June 2nd. Those papers are due June 12th.
A very substantial amount of time was spent with amici on the motion for the protective order and linking motions. In part because of plaintiffs' actions and in part due to the pressure of the work itself, we request an adjournment to the date originally set by the Court.
We have been dealing with amicus in three separate areas -- the linking issue, the motion for the protective order filed last week, and the preliminary injunction presently in place. We have been dealing with the media, academics, universities and private interest groups. We have been working as hard as we possibly can to prepare the case as quickly as we can.
We are being abused.
We also ask that a Magistrate be appointed to oversee discovery. This Court's time, I submit, should not be taken up with these issues.
Respectfully submitted,
Martin Garbus
cc: Leon Gold, Esq. (By Hand)
[5 pages; with Exhibits A, 21 pages, and Exhibit B, 2 pages.]
Frankfurt Garbus Klein & Selz, PC |
||
| 488 Madison Avenue New York, New York 10022 Tel: (212) 980-0120 Fax: (212) 593-9175
Edward Hemstadt |
May 29, 2000
BY HAND
The Honorable Lewis A. Kaplan
United States District Judge
United States Courthouse
500 Pearl Street
New York, New York 10007
Re: Universal City Studios v. 2600 Enterprises and Goldstein. 00 Civ. 277(LAK)
Dear Judge Kaplan:
Pursuant to Your Honor's Order of May 12, 2000 (the "Order"), defendants respectfully request the Court's intervention and assistance. Plaintiffs have rejected, ignored, or failed to respond to defendants' repeated, good faith efforts to resolve disputes regarding the expedited discovery process established by the Order. In accordance with Your Honor's clear instructions in the Order for "complete cooperation" between the parties, defendants have forestalled approaching the Court for assistance. Defendants are also mindful of Your Honor's indication that defendants were somewhat premature on a prior occasion in seeking the Court's help with discovery.
This complex case was originally scheduled for trial on December 5, to permit defendants adequate time to take discovery and prepare to try the numerous difficult and complicated Constitutional and statutory issues, including those arising under the Digital Millenium Copyright Act and a defense base on violations of the antitrust laws. Unless plaintiffs begin cooperating and participating in the discovery process in a meaningful way, it will be very difficult. if not imsossible, for defendants to be prepared to commence the trial on July 17.1
____________________
1 The Court has expressed concern that defendants did not on an earlier occasion give an unqualified assurance that they will not make a series of motions to vacate the injunction. Defendants now give their unqualified assurance of no additional motions to vacate prior to trial.
Indeed, due to plaintiffs' recalcitrance, defendants have already lost more than two of the seven weeks for discovery allotted in the Order, and have been able to take only three days out of the two-three months of depositions defendants anticipated needing during our first conference with Your Honor. Defendants have therefore already been and, unless the Court now intervenes, will continue to be severely prejudiced by plaintiffs' concerted and relentless efforts to delay and frustrate discovery by, among other tactics, refusing to produce witnesses for noticed depositions, refusing to reschedule such depositions, delaying the production of documents, and repeatedly directing the two witnesses whom plaintiffs have produced since May 12 not to answer questions on the basis of an overbroad invocation of the attorney-client and work-product privileges.
The prejudice defendants have suffered and will continue to suffer because of plaintiff's improper conduct is magnified significantly by the very limited discovery period in this case.2 For example, plaintiffs' insistence on designating both depositions conducted to date entirely "confidential" makes it difficult for defendants to select and prepare witnesses. Typically, a party will provide potential witnesses with copies of deposition transcripts; plaintiffs, however, have foreclosed this conduct. Moreover, although plaintiffs will in all likelihood eventually produce documents, the abbreviated discovery period ensures that any delay in production is prejudicial. With five and one-half weeks of discovery remaining, tasks that might ordinarily take a month to complete must be done in a week, so that even a few days is meaningful.
____________________
2 The Order compressed the discovery phase of this case by 60%: discovery now closes on July 5 instead of on October 20, and the trial date is now July 17 rather than December 5.
Defendants, who had already noticed 22 depositions and served document requests on one of the plaintiffs and the MPAA (by subpoena duces tecum) as of May 12, immediately contacted plaintiffs in an effort to speed up discovery. The parties had already agreed to and executed a Confidentiality Stipulation prior to the issuance of the Order, as suggested by the Court during the May 11 hearing. On May 15, 17, and 18, defendants deposed two of the three witnesses designated by plaintiffs and the MPAA pursuant to Federal Rule of Civil Procedure 30(b)(6). By letters dated May 15, 17 and 19, defendants provided plaintiffs with lists of the documents demanded during that day's session and served plaintiffs with notices to depose witnesses identified bv Mr. Jacobsen as having knowledge relevant or related to the case.3
____________________
3 Copies of these and other communications pleading for plaintiffs to cooperate in the discovery process are attached hereto as Exhibit A for the Court's convenience. A chart setting forth the depositions noticed to date in this case and the results of such notices is attached as Exhibit B hereto.
Subsequently, defendants attempted by means of daily telephone conversations and daily letters to confirm the deposition dates we had noticed and to push plaintiffs to produce documents pursuant to the subpoena and the document requests. Additionally, defendants requested that plaintiffs remove the "confidential" designation from certain documents and from the entire deposition transcripts of Mssrs. Schumann and Jacobsen; and that plaintiffs agree to modify ¶ 6(c) of the Confidentiality Stipulation.4
____________________
4 Defendants have requested that the Court direct a modification of paragraph 6(c) of the Confidentiality Stipulation, reducing the time to consider depositions with respect to their confidentiality from 15 business days to five days. In this regard, defendants hereby request that the Court also modify paragraphs 6(d), 7(b), and 11 to provide in each paragraph for a period of 5 days rather than the time period set forth in the Stipulation.
Plaintiffs did not respond substantively to any of defendants' repeated efforts to persuade plaintiffs to produce witnesses or set deposition dates -- or even to state clearly whether they would ever produce a witness. Accordingly, despite the fact that plaintiffs have now noticed the depositions of 22 specific witnesses (plus the eight plaintiffs), only two depositions are presently confirmed: that of Jack Valenti on June 6 and Fritz Attaway on June 7. Additionally, plaintiffs have yet to produce a single document in this case,5 even though production from Universal was due on May 22 and production from the remaining plaintiffs was due on May 24; Time Warner's document production is due May 31. Documents demanded during the deposition of Mr. Schumann and during the first day of Mr. Jacobsen's deposition -- which demands were restated in letters to planitiffs counsel -- were due on May 24 and today, respectively: none have been produced.
____________________
5 The MPAA. however, has begun its production of documents.
Accordingly, defendants respectfully request that the Court schedule a conference, or a conference call, for the afternoon of Thursday, June 1, in order to address plaintiffs' providing defendants with witnesses to depose and documents to review.
Plaintiffs' overuse of the attorney-client and work-product privileges are equally troubling. First, the plaintiffs claim a "joint privilege" that protects any and all conversations or discussions among plaintiffs and the MPAA, and among the plaintiffs, the MPAA and the DVD CCA. See, e.g., Jacobsen Deposition Tr., pp. 169-79; 217, 301-03. Plaintiffs have invoked this privilege, which plaintiffs do not claim is supported by any forrnal agreement (or, indeed, anything other than counsels' assertion that it exists), to shut down any testimony by Mr. Jacobsen, designated witness for the MPAA and all plaintiffs, regarding whether any employee of the MPAA or the plaintiffs ever viewed a DVD decrypted by DeCSS, whether the MPAA or the plaintiffs hired any outside DeCSS experts.
Plaintiffs have also asserted the attorney-client and work-product privileges to silence the other witness designated by the MPAA and all plaintiffs, Mr. Schumann, from testifying about the materials the MPAA gave him to review, selected portions of which he attached to his first declaration, about his review of Linux and LiVid (the Linux DVD player project) websites and postings, about whether anyone at the MPAA or the plaintiffs has even seen a DVD movie decrypted by DeCSS, about the sources of information upon which he based his professional opinion, about whether he conducted any investigation in addition to the materials presented him by the MPAA, and the like. See, e.g., Schumann Deposition Tr., 27-28, 40, 47-48, 115-18, 130, 186-88. In fact, Mr. Schumann (through his company Cinea) was employed in November-December 1999 by the MPAA, and was then retained by Proskauer as an expert witness in early Januarv, 2000, and remains on their payroll today. See id., pp. 50-53, 71-73.
Similarly, counsel instructed Mr. Jacobsen not to answer any question about MPAA policies and/or positions regarding DeCSS and piracy, fair use, and/or reverse engineering on the ground that such policies/positions were developed with counsel for this litigation -- they were, in effect, the legal arguments presented by plaintiffs in this case -- and thus privileged. This seems to be a binding admission that the MPAA has no policies or positions regarding these important matters, and that the plaintiffs are thus foreclosed from claiming otherwise at trial. In reality, of course, it is absurd that all MPAA policies on piracy, DeCSS, fair use, and reverse engineering is confidential. The MPAA has a powerful interest to let the entire world know that it is vigorously policing it members' intellectual property and has undertaken sweeping antipiracy programs. Indeed, the MPAA's anti-piracy efforts are one of eight topics featured on its internet home page (appearing immediately below Jack Valenti press releases).
Accordingly, defendants respectfully request that the Court direct the plaintiffs to narrow their invocation of the attorney-client and work-product privileges.
Thank you for Your Honor's assistance with the foregoing.
Respectfully submitted,
[Signature]
Edward Hernstadt
cc: Leon Gold. Esq. (By Hand, w/out enclosures)
Carla Miller, Esq. (By Hand, w/out enclosures)
Nancy Kilson, Esq. (By Hand, w/out enclosures)
Martin Garbus, Esq.
[21 pages total.]
[3 pages.]
[Frankfurt Garbus letterhead]
May 15, 2000
BY FASCIMILE
Carla Miller, Esq.
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
Re: Universal City Studios, Inc. v. 2600 and Emmanuel Goldstein. (11560-0200)
Dear Carla:
Pursuant to Paragraph 7(b) of the Confidentiality Stipulation and Protective Order, please be advised that documents numbered 130-392 should not be designated as ''Confidential.'' We hereby notify you that this designation should be dropped. Additionally, we object on the same grounds to Mr. Gold's designating the entire deposition of Mr. Schumann "Confidential" at the commencement of the deposition.
In this regard, in light of the expedited discovery in this case, which the Court directed after we met last Thursday, I think we have to modify ¶ 6(c) to put a shorter time limit on the how long counsel has after a deposition to mark portions of it "Confidential" or "Attorneys Eyes Only." I suggest four days, on the theory the judge cut the time to respond to document requests by a little more than 25%, so we shorten the tirne to designate by a little less than 25%.
Finally, as agreed to by Mr. Gold and myself at the deposition this afternoon, I set forth below a partial list of the documents defendants production of which was called for by defendants during the course of the deposition. Because this list is not exhaustive, defendants do not waive their right to augment it within a reasonable time of reviewing the transcript. In turn, Mr. Gold agreed to make inquiries regarding the demanded documents and respond as expeditiously as possible.
1. All documents (as defined in defendants' First Request for the Production of Documents) related to Mr. Schumann and/or Cinea's work for any of the plaintiffs1 which are located on any hard-drive(s) (or discs) or other computer storage media in Mr. Schumann's control. For these purposes, Mr. Schumann is to run a disk recovery program to retrieve responsive documents on the drives and discs in question, and Proskauer will represent that it has retrieved and produced documents reflecting the same.______________________
1 In the context of this letter, all plaintiffs shall be understood to include Time Warner for purposes of demanding and collecting docurnents, but to exclude Time Warner with respect actually to producing such documents. Thus, defendants won't be required to restate all claims with respect to Time Warner, and plaintiffs won't have to conduct discovery at the last moment.
2. All docurnents in Mr. Schumann's control or possession regarding or relating to his or Cinea's work for the MPAA and/or the plaintiffs and/or the Proskauer Firm, including but not limited to all documents in the "MPAA" and "Proskauer" files all notes of telephone conversations or meetings, and all print-outs or other records of research by Mr. Schumann regarding websites posting DeCSS and/or the defendants (past and present) and/or tape drives and/or other DVD burners and/or other types of storage media.
3. All documents relating or referring to DVDs and/or CSS and/or DeCSS that were provided to Mr. Schumann by the MPAA and/or the plaintiffs and/or the Proskauer Firrn, including but not limited to the Linux -dev and LiVid Logs.
4. All documents relating or referring to DVDs and/or CSS and/or DeCSS that were provided to the MPAA and/or the plaintiffs and/or the Proskauer Firm by Mr. Schumann, including but not limited to his interim report and final report, and notes on the Linux -dev and LiVid Logs.
5. A copy of the DVD that Mr. Schumann caused to be "burned" and then sold.
6. Any and all documents reflecting information about the quality of copied or decrypted or otherwise "ripped" DVD movies.
7. Any and all files regarding all "cease and desist" letters sent out by the MPAA and/or the plaintiffs and/or the Proskauer firm and/or any other law firm employed by the foregoing relating or referring to DeCSS.
8. Any and all documents downloaded and/or printed out by the MPAA relating to any issues in this matter.
If you have any questions or cornments do not hesitate to telephone me.
Best,
[Signature]
Edward Hernstadt
cc: Leon Gold, Esq.
Nancy Kilson, Esq.
Martin Garbus, Esq.
[1 page.]
[Frankfurt Garbus letterhead]
May 17, 2000
VIA FACSIMILE
Leon Gold, Esq.
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
(212) 969-2900
Re: Universal City Studios. Inc. v. Shawn C. Reimerdes. et al. (11560-0200)
Dear Leon:
I had hoped to see you this morning, or to have spoken with you yesterday, regarding the confidentiality designations with respect to the documents produced to date and the Schumann deposition. Additionally, you were going to get back to me regarding the documents demanded to be produced during the course of Schumann's deposition.
I look forward to speaking with you soon.
Sincerely yours,
[Signature]
Edward Hernstadt
cc: Carla Miller. Esq.
[1 page.]
[Frankfurt Garbus letterhead]
May 17, 2000
VIA FACSIMILE
Carla Miller, Esq.
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
(212) 969-2900
Re: Universal City Studios, Inc. v. Shawn C. Reimerdes, et al. (11560-0200)
Dear Carla:
I write with respect to your letter dated May 17, 2000, concerning the subpoena of Ms. King. As we discussed last week, defendants are aware that we cannot subpoena any Time Wamer witnesses. Accordingly, you and Ms. King should consider the subpoena adjourned or withdrawn until such time as the court rules on the disqualification motion.
Best,
[Signature]
Edward Hemstadt
[1 page.]
[Frankfurt Garbus letterhead]
May 19, 2000
VIA FACSIMILE
Carla Miller, Esq.
Proskauer Rose LLP
1585 Broadway
New York New York 10036
Re: Universal City Studios. Inc. v. Shawn C. Reimerdes. et al. (11560-0200)
Dear Carla:
The defendants propose that, subject to your response regarding the depositions already notice, we take the deposition of Fritz Attaway on May 30 and 31, 2000 in Washington. Since we should have the additional documents due us in connection with Mr. Schumann, it may make sense to complete his deposition on May 31st, if Mr. Attaway's deposition does not take two full days. Finally, we will be in California for the DVD CCA deposition on June 8, 2000. Although you have not gotten back to us on Mr. Eisner's deposition, perhaps June 9, 10, 11 or 12'h would be a good day.
Sincerely,
[Signature]
Edward Hernstadt
[2 pages.]
[Frankfurt Garbus letterhead]
May 19, 2000
BY HAND
Carla Miller, Esq.
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
Re: Universal City Studios. Inc. v. Shawn C. Reimerdes. et al. (11560-0200)
Dear Carla:
I write in connection with the depositions noticed for the next two weeks. Could you please confirm today that the plaintiffs will be producing Karen Elliot on May 22nd, Anat Levy on May 23rd and Laura Tunberg on May 24th. Similarly, please confirm that the plaintiffs will be producing Vicky Solomon on May 30th, Andy Combs on May 31st and Jane Sunderland on June 15th. As of today, we have scheduled all of these depositions and arranged for a court reporter.
Additionally, we still have the deposition of Michael Eisner scheduled or May 25th; please confirm that date or let me know when you will be producing Mr. Eisner. Also, I enclose the original of the second day of Mr. Jacobsen's deposition, and Notices of Deposition for Linda Scheer for May 26th; Michael Ellis on June 7th and Nathan Knight on June 8th. Please confirrn that the MPAA will be producing the above-named on those dates.
With respect to the Protective Order, I understand that plaintiffs' position is that all depositions are and will be designated confidential in order to prevent any part of a deposition from being posted on the Internet. Please let me know by Monday morning if plaintiffs have changed this position, as well as if the plaintiffs agree to amend the Protective Order to reduce to seven days the time within which depositions must be designated.
As per the agreement with Mr. Gold, we hereby request production of the following documents, which were called for at the second day of Mr. Jacobsen's deposition. As usual, the failure to include every request for production made during the course of Mr. Jacobsen's deposition does not constitute a waiver of any kind:
1. Any and all joint prosecution or other joint privilege agreements among the plaintiffs, the MPAA andlor the DVD CCA.2. The MPAA's quarterly and annual reports created by the MPAA regarding worldwide piracy of movies owned by MPAA members, including but not limited to, documents showing the nurnbers of "pirated" movies in the video cassette, VCD and DVD formats, and the source of such pirated copies.
3. Any and all documents concerning or relating to the investigation of "hard good" websites, including but not limited to, cease and desist letters, website pictures, responses and follow-up to cease and desist letters, technical analyses and litigations or prosecutions.
Sincerely yours,
[Signature]
Edward Hernstadt
cc: Martin Garbus, Esq.
[3 pages.]
[Frankfurt Garbus letterhead]
May 22, 2000
BY FASCIMILE
Carla Miller, Esq.
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
Re: Universal City Studios. Inc. v. 2600 and Emmanuel Goldstein. (11560-0200)
Dear Carla,
I write in response to your letter dated May 19, 2000. It is my understanding from your letter that plaintiffs are refusing ever to produce those of their employees whom defendants noticed for deposition this week (Karen Elliot on May 22, Anat Levy on May 23, Laura Tunberg on May 24) and for next week (Vicky Solomon on May 30, Andy Combs on May 31, Jane Sunderland on June 1). Please let me know immediately if plaintiffs will produce such witnesses on some other date, and provide me with suggested dates as soon as possible.
As you know, the Judge advanced the trial almost five months, and decreed that the parties would engage in expedited discovery. To that end, we have within 24 hours (and usually within three hours) provided you with a letter or letters listing document demands that arose during the course of a deposition, and listing the notices of deposition defendants would be serving on persons who had been identified during that day's deposition as a person with particular knowledge relevant to the case. The first set of such depositions (listed in the paragraph above) are all persons employed by one or more of the plaintiffs, whom Kenneth Jacobsen -- the plaintiffs' designated witness -- identified as being responsible for piracy matters for one of the plaintiffs We noticed them for dates originally blocked out on April 3 for the depositions of the plaintiffs.
It is impossible to see how the first deposition of a person directly employed by any of the plaintiffs could be "cumulative or duplicative," but that is your objection to make. However, we must insist that you do so as expeditiously as possible, and by tomorrow at the latest. At that time, please also confirm the deposition of Linda Sheer for May 26, and dates for the deposition of Fritz Attaway. Similarly, please let me know when we will get documents from the plaintiffs: I understood that, as a matter of convenience to the plaintiffs, we agreed that all responses to the demands would be due on May 24, but that any documents would be produced when due; documents from the plaintiffs are due today.
Regarding other depositions that have been noticed, if scheduling is a problem, we would be happy to take the depositions of Brad Hunt (June 16), Mark Litvack (June 23) and Mikhail Reider (June 25) next week, now that Mr. Jacobsen has made clear their importance to this case. Finally, I do not understand you to be saying that the MPAA will not produce Mr. Ellis and Mr. Knight (whose deposition notice of June 22 was, of course, superseded by the notice for June 8), only that you will have to get back to us on scheduling. Please do so as soon as possible, or let me know if the foregoing is incorrect.
There are a number of depositions scheduled, and we anticipate noticing more if witnesses point us to other witnesses with knowledge Obviously, given the severely expedited schedule imposed by Judge Kaplan, any delays now will make completing discovery difficult, if not impossible.
Regarding the deposition of Michael Eisner, Nancy Kilson's letter to Martin Garbus objecting to such deposition misses the point: Mr. Eisner has been an active player in matters related to this case. See, e.g., Declaration of Martin Garbus dated May 3, 2000, Exhibit G. Defendants wish to depose Mr. Eisner on matters about which he has publicly asserted personal knowledge, including in the pages of Variety and in his letter to all Disney employees. In fact, it would be improper to depose another employee to ask them what Mr. Eisner meant by his words. Given these facts, which render meaningless the cases referred to by Ms. Kilson, please let us know immediately when (and where; we are prepared to go to Los Angeles if necessary) we can commence Mr. Eisner's deposition. If plaintiff's position is unchanged, and you adhere to the refusal to produce Mr. Eisner, please let me know.
Finally, I have not yet received any further word from you on the question of the defendants' having designated the entire Schumann and Jacobsen depositions as confidential. You told me would respond sometime today. If you do not, however, and if I do not hear from you to the contrary by mid-day tomorrow, defendants will assume that plaintiffs' position is that the blanket designation of those two depositions is appropriate, and will proceed accordingly.
If you have any questions or comments do not hesitate to telephone me.
Best,
[Signature]
Edward Hernstadt
cc: Leon Gold, Esq.
Nancy Kilson, Esq.
Martin Garbus, Esq.
[3 pages.]
[Frankfurt Garbus letterhead]
May 23, 2000
VIA FACSIMILE (212-969-2900)
Leon Gold, Esq.
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
Re: Universal City Studios. Inc. v. 2600 and Emmanuel Goldstein. (11560-0200)
Dear Leon:
I write further to this afternoon's conference call among Scott Cooper, you and me.
It is defendants' position that we must be able to take discovery of the plaintiffs, including by deposition. Areas defendants would inquire of plaintiffs include, but are expressly not limited to, the DVD format and discussions regarding that format, CSS, DeCSS, piracy, and injury. It is defendants' position that we have noticed the depositions of witnesses and that the plaintiffs will not produce such witnesses. Defendants noticed five depositions this week; none of these depositions have taken or will take place because plaintiffs have refused to produce any of the witnesses. We are informed that none of the depositions noticed for next week will go forward either. Given the fact that plaintiffs moved for and were granted an expedited trial date, and that the Court has ordered expedited discovery, it is clear that plaintiffs must do better.
Specifically regarding the six plaintiff witnesses noticed for this week and next week, we understand the plaintiffs to be contending that none of them (and, indeed, no one employed by any plaintiff) will testify any differently than the three individuals designated by the plaintiffs as their witnesses; or that if they could or would testify differently, such testimony would be blocked on the ground of some privilege. Given these asserted positions, we discussed a potential method of exploring whether officers, directors, and/or employees of the plaintiffs will have information about issues relevant to this case. Obviously, defendants' willingness to participate in this or any other attempt to push discovery forward is not a waiver of any of defendants' rights.
The suggestion is that you would provide a witness from one of the plaintiffs (presumably one of the persons identified by Kenneth Jacobsen at his deposition) to be deposed. The remaining plaintiffs would review that deposition and, within three days of receipt thereof, either inform defendants that they will provide all witnesses noticed by defendants or some other witnesses that plaintiffs represent have knowledge, or, assuming that the result of the deposition is as anticipated by plaintiffs, they would provide defendants with the representation that no person employed by any plaintiff would answer the questions posed in the deposition any differently.
Of course, under this scenario, plaintiffs would be prohibited from presenting any witnesses at trial other than the three witnesses already designated by them in this case. We would be prepared to try this, so long as we are given a witness to depose this week. Based on the testimony of that witness, and the documents we receive (no documents have yet been produced by any plaintiff), we can discuss how to move forward.
With respect to the matters that have arisen regarding the Protective Order, you and I have agreed that plaintiffs will inform us by tomorrow (May 24) mid-day whether they have changed their positions that they are entitled to designate the entirety of each deposition as confidential to prevent any portion of such depositions from being posted on the internet, and that the plaintiffs should have the 15 business days to designate depositions that were agreed to prior to the Court's advancing the trial date by almost five months and instituting expedited discovery.
We must also resolve the privilege issues that have arisen, or seek resolution of them from the Court. Have the plaintiffs changed their position that any discussion involving the plaintiffs and either the DVD CCA (or their attorneys) or the MPAA (or their atorneys) or both organizations are privileged by some sort of joint prosecution agreement or privilege? We have objected to that assertion of privilege, and hereby request that you let us know by 5:00 p.m. tomorrow, May 24, if the plaintiffs have renounced that alleged privilege. Similarly, we believe that plaintiffs cannot simply designate any conversation at which "in-house" attorneys were present as confidential, but must inquire into the nature of the function being performed by such persons.
Additionally, per the agreement between Mr. Cooper and myself during Mr. Jacobsen' s deposition potentially to avoid having to recall Mr. Jacobsen, please have Mr. Jacobsen add to his deposition answers regarding Time Warner in each place where his answer omitted a response referring to Time Warner. In this regard, I await Mr. Cooper's call regarding the issues that we aqreed to discuss during Mr. Jacobsen's deposition.
Finally, let me again request that plaintiffs confirm or otherwise respond to the other depositions that defendants have noticed, and in particular, that of Linda Sheer on May 26, as well as our suggested rescheduling of the depositions of Mikhail Reider, Mark Litvack, and Brad Hunt for next week. In that regard, defendants would be willing to move Linda Sheer to next week as well.
We look forward to resolving these matters as soon as possible.
Best,
[Signature]
Edward Hernstadt
cc: Scott Cooper, Esq.
Nancy Kilson, Esq.
Carla Miller, Esq.
Martin Garbus, Esq.
[3 pages.]
[Frankfurt Garbus letterhead]
May 24, 2000
VIA FACSIMILE (212-969-2900)
Nancy Kilson, Esq.
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
Re: Universal City Studios. Inc. v. 2600 and Emmanuel Goldstein. (11560-0200)
Dear Nancy:
I write further to our numerous letters to members of your firm, each setting forth several pressing discovery matters. Virtually none of these matters has even been addressed by the plaintiffs, let alone resolved. I take them up again, and must inform you that if plaintiffs do not commence discovery, and make some real effort at addressing the many outstanding issues, defendants will he forced to turn to the Court for intervention and assistance.
As of 7:00 p.m. on Wednesday, May 24, we have not received a single document from any plaintiff in response to our Document Requests. Documents from Universal were due on May 221; written responses and objections to defendants' document demands were due today from all plaintiffs except Time Warner; written responses and objections and documents responsive to the demands made during the deposition of Mr. Schumann on May 15 and by letter dated May 15 to Leon Gold were due today. As of tonight, plaintiffs have produced none of these responses and objections or documents. In this regard, Ms. Miller has informed me that documents would be produced on a "rolling" basis. While recognizing that it takes time to review and stamp documents, defendants object to any attenuated process and hereby demand that all documents due on or before May 24 be produced by May 30.
____________________
1 I agreed with Carla Miller that Universal's written responses and objections, which were due with the documents on May 22, could be served with those of the other plaintiffs on May 24. Ms. Miller understood the extension to apply to the production of documents as well. I am at a loss to understand this misconception, particularly since defendants have been crying for documents for weeks, but I accept that it is a genuine misunderstanding. In any event, we received NO documents from any plaintiff today.
Turning to specific issues:
1. We have written you numerous times about Mr. Eisner's deposition. You continue to refuse to produce him. We are prepared to risk Mr. Eisner's informing us that he knows nothing about the preparation of and background to, for example, his letter to Disney employees and public cornments quoted in, among other news sources, Variety. If that is the case, his will be a short and illuminating deposition. We have not and do not reject Preston Padden or Sanford M. Litvack as deponents, but only the apparent condition that such deposition be in the place of Mr. Eisner. In any event, we accept your invitation. Enclosed is a notice of deposition for Sanford M. Litvack. We will complete his deposition before noticing Mr. Padden, in the event that Mr. Litvack is sufficient. Unless we hear from you to the contrary by mid-day tomorrow, defendants will take your refusal to produce Mr. Eisner as final and proceed accordingly.2. Please inform us which of the seven witnesses noticed to be deposed this week and next week you will produce on Friday of this week, as set forth in my letter dated May 23, 2000. However, you must inform us of the name of the witness you will produce by 3:00 p.m. tomorrow, or we will understand this to mean that you do not intend to proceed with the proposal discussed during the May 23 telephone call among myself, Leon Gold and Scott Cooper and memorialized in my May 23 letter to Mr. Gold. Surely plaintiffs can produce one out of six witnesses who have been noticed for deposition for at least a week on three or four days notice. In this regard, please also inform me by 3:00 p.m. if you will produce Linda Sheer as noticed on May 26. We are prepared to conduct both depositions on Friday, but need minimal notice to do so.
3. We are prepared to commence Fritz Attaway's deposition any day next week, preferably prior to June 2. Mr. Attaway, who is the third designated witness of all of the plaintiffs and of the MPAA, has been back in the country since May 17 at the latest. Surely an earlier date than June 2 was available? Particularly given the expedited nature of discovery in this case, our repeated requests for an earlier date, and the fact that we have indicated that it might not be possible to complete Mr. Attaway's deposition in one day. In this regard, Mr. Attaway's deposition will take place in Washington, D.C. as ordered by the Court, and not in Los Angeles as noticed by defendants prior to the Court's Order.
4. Will Mr. Jacobsen "fill in the blanks" in his deposition, as requested. By what date?
5. Because plaintiffs have failed to respond to our suggestion that plaintiffs move up the depositions of Brad Hunt, Mikhail Reider and Mark Litvack, I enclose superseding Notices of Depositions for them and for Marsha King.
We are hopeful that plaintiffs will respond to our repeated attempts to commence discovery in this case. It is 7:00 p.m. on Wednesday, May 24, 2000. In the twelve (12) [sic] since the Court directed expedited discovery in this case, plaintiffs have produced two witnesses and, other than saying they would not produce any other of the numerous witnesses on the dates for which their depositions were noticed, have repeatedly refused to state whether and when such witnesses would be produced. Plaintiffs have failed to produce a single document and have failed timely to provide us with written responses and objections to defendants' document requests. Defendants have suggested a number of alternatives to plaintiffs' refusal to produce witnesses; plaintiffs have failed to provide us with a specific response to any of them.
We must have discovery in this case or defendants will have no alternative but to seek the intervention and assistance of the Court. Please provide us with a specific response by 3:00 p.m. tomorrow.
Best,
[Signature]
Edward Hernstadt
cc: Scott Cooper, Esq.
Leon Gold, Esq.
Carla Miller, Esq.
Martin Garbus, Esq.
[2 pages.]
[Frankfurt Garbus letterhead]
May 25, 2000
VIA FACSIMILE (212-969-2900)
Nancy Kilson, Esq.
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
Re: Universal City Studios. Inc. v. 2600 and Emmanuel Goldstein. (11560-0200)
Dear Nancy:
I write in response to your letter dated May 24, 2000, which, together with plaintiffs Responses and Objections to defendants' first set of document requests, was delivered to our offices last night at 7:27 p.m.
Let me clarify one statement in the letter. I told Ms. Miller that we would of course be reasonable in conducting depositions and had no intention to take unnecessary depositions. As of today, not having deposed a single officer, director or employee of any of the plaintiffs, and not having received a single document from any of the plaintiffs, and based on the depositions of Mssrs. Schumann and Jacobsen, it is our belief and understanding that we need the deposition of every witness we have noticed. Obviously, if we learn that a deposition is unnecessary, we will so inform you and release the witness. However, given the fact that defendants have been permitted to depose zero witnesses who work for the plaintiffs, you have no basis to suggest that plaintiffs have subjected to any burden whatsoever, let alone an undue one.
Please clarify for me whether you will produce Mssrs. Hunt, Litvack, Goeckner and Ostroff, and Ms. Reider to be deposed, and if so, whether it will be on the date noticed (as amended by superseding notices of deposition) or some other date.1 Or, does your objection mean that plaintiffs and the MPAA refuse to produce them at all.
____________________
1 If it is some other date, defendants object to your not informing us of the witnesses unavailability immediately, but urge you to call me today to schedule.
Finally, I am waiting to get certificates of service on some of the subpoena's that were sent out to be served. In the interim, defendants request that you accept service of all subpoenas for MPAA employees, including Mssrs. Taylor, Knight and Cohen. We have already requested the most current address of Mr. Hirsch as well as his current employer and job title; we would appreciate your providing them as soon as possible.
Thank you for your assistance with these matters.
Best,
[Signature]
Edward Hernstadt
cc: Scott Cooper, Esq.
Leon Gold, Esq.
Carla Miller, Esq.
Martin Garbus, Esq.
[2 pages.]
[Frankfurt Garbus letterhead]
May 25, 2000
VIA FACSIMILE (212-969-2900)
Leon Gold, Esq.
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
Re: Universal City Studios, Inc. v. 2600 and Emmanuel Goldstein. (11560-0200)
Dear Leon:
I write in response to your letter dated May 25, 2000. Since you do not point to any inaccuracies in my letter, I cannot respond to your assertion that my "representations are not correct." In fact, they are. Despite repeated requests by me and by Martin Garbus for deposition witnesses, plaintiffs have not produced anyone except Mssrs. Schumann and Jacobsen; we will also be taking the depositions of Mssrs. Valenti and Attaway in early June. Plaintiffs have not responded to any of my repeated requests for either deposition dates for the numerous witnesses whose depositions we have noticed, or for a definitive statement that you will not produce the witnesses. Neither response has been forthcoming.
Leon, you say that it seems that we are posturing for the next motion. We are not: we are seeking a response -- yes we will produce such-and-such witness on such-and-such date, or no, our "objections" to your notices of depositions mean that we will not produce the witnesses. The only thing that would force defendants to turn to Judge Kaplan for assistance is plaintiffs' continued refusal to state clearly and directly what witnesses it will produce and when. You must be well aware that only seven weeks of discovery were available to the parties as of May 12, when Judge Kaplan advanced the close of discovery to July 5, 2000. Defendants had already, or have since, noticed depositions for virtually every one of the twelve business days between May 12 and June 1; plaintiffs produced witnesses on only three of those days. It is now May 25, we are running out of time, and plaintiffs will not tell us whether or they will produce witnesses.
Leon, I had a productive conversation with Scott Cooper today. Defendants only goal is conduct discovery. Scott and I agreed to work towards that goal. I told him that we needed witnesses to depose.1 I told him we would rather conduct discovery than go to the Court, but that in the absence of discovery we have no choice but to seek relief. Defendants have been waiting since for almost two weeks for clear statements from the plaintiffs; we cannot wait any longer.
____________________
1 We also need documents produced (we have not received a single document from the plaintiffs), but I did not raise that issue.
Thank you for your assistance with these matters.
Best,
[Signature]
Edward Hernstadt
cc: Scott Cooper, Esq.
Nancy Kilson, Esq.
Carla Miller, Esq.
Martin Garbus, Esq.
[2 pages.]
| Name | Noticed | Served | Renoticed | Revised Notice |
Produced | D's informed of new date |
D's informed witness would be produced? |
| Fritz Attaway | 6/14/00 |
5/12/00 |
? | No | No | ||
| Todd Cohen | 6/13/00 |
Mailed no cert. service |
? | No | No | ||
| Andy Combs | 5/31/00 |
5/17/00 |
? | No | No | ||
| Michael Eisner |
|
|
No | No | |||
| Karen Elliot | 5/22/00 |
5/17/00 |
No | No | No | ||
| Michael Ellis | 5/17/00 |
5/19/00 |
No | No | No | ||
| Gregory Goeckner | 6/15/00 |
5/12/00 |
? | No | No | ||
| Frederich Hirsch | 6/21/00 |
Mailed no cert. of service |
? | No | No | ||
| Brad Hunt | 6/16/00 |
5/12/00 |
yes 6/9/00 | 5/24/00 |
? | No | No |
| Marsha King | 6/28/00 |
5/12/00 |
yes 6/13/00 | 5/24/00 |
? | No | No |
| Nathan Knight | 6/22/00 |
Mailed no cert. service |
yes 6/8/00 | 5/24/00 |
? | No | No |
| Anat Levy | 5/23/00 |
5/12/00 |
No | No | No | ||
| Mark Litvack | 6/23/00 |
5/12/00 |
yes 6/12/00 | 5/24/00 |
? | No | No |
| Sanford Litvack | 5/30/00 |
5/24/00 |
? | No | No | ||
| Micahel Ostroff | 6/27/00 |
5/12/00 |
? | No | No | ||
| Mikhail Reider | 6/26/00 |
5/12/00 |
yes 6/5/00 | 5/24/00 |
? | No | No |
| Linda Sheer | 5/26/00 |
5/19/00 |
No | No | No | ||
| Vicky Solomon | 5/30/00 |
5/17/00 |
? | No | No | ||
| Jane Sunderland | 6/1/00 |
5/17/00 |
? | No | No | ||
| Richard Taylor | 6/20/00 |
Mailed no cert. of service |
? | No | No | ||
| Laura Tunberg | 5/24/00 |
5/17/00 |
No | No | No | ||
| Jack Valenti | 5/3/00 |
4/21/00 |
yes 6/6/00 | No | No | No | |
| Columbia Pictures | 5/17/00 |
4/3/00 |
No | No | No | ||
| Disney Enterprises | 5/19/00 |
4/3/00 |
No | No | No | ||
| DVD CCA | 5/5/00 |
4/21/00 |
No | No | No | ||
| Metro-Goldwyn Mayer | 5/24/00 |
4/3/00 |
No | No | No | ||
| MPAA | 5/2/00 |
4/21/00 |
No | No | No | ||
| Paramount Pictures | 5/16/00 |
4/3/00 |
No | No | No | ||
| Time Warner Ent. | 5/18/00 |
4/3/00 |
No | No | No | ||
| Tri Star Pictures | 5/23/00 |
4/3/00 |
No | No | No | ||
| Twentieth Century Fox | 5/22/00 |
4/3/00 |
No | No | No | ||
| Universal City Studios | 5/15/00 |
4/3/00 |
No | No | No | ||
| Kenneth Jacobsen | 30(b)(6) |
5/12/00 |
Yes | ||||
| Robert Schumann | 30(b)(6) |
5/12/00 |
Yes |
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