31 May 2000
Source: Frankfurt, Garbus, Klein & Selz for
2600.
See related argument letters on a protective order: http://cryptome.org/mpaa-v-2600-poa.htm
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
Contents
Notice of Motion for Protective Order
Declaration of Kenneth A. Jacobsen
Memorandum of Law in Support of Plaintiffs' Motion for a Protective Order
Leon P. Gold (LG-1434)
William M. Hart (WH-1604)
Charles S. Sims
PROSKAUER ROSE LLP
1585 Broadway
New York, New York 10036
(212) 969-3000 Telephone
(212) 969-2900 Facsimile
Jon A. Baumgarten
PROSKAUER ROSE LLP
1233 20th Street, N.W., Suite 800
Washington, DC 20036-2396
(202) 416-6800 Telephone
(202) 416-6899 Facsimile
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK |
||
| UNIVERSAL CITY STUDIOS, INC.; PARAMOUNT PICTURES CORPORATION; METRO-GOLDWYN-MAYER STUDIOS INC.; TRISTAR PICTURES, INC.; COLUMBIA PICTURES INDUSTRIES, INC.; TIME WARNER ENTERTAINMENT CO., L.P.; DISNEY ENTERPRISES, INC.; AND TWENTIETH CENTURY FOX FILM CORPORATION, Plaintiffs, v.
SHAWN C. REIMERDES; ERIC CORLEY A/K/A Defendants. ___________________________________________ |
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) |
00 Civ. 0277 (LAK)(RLE) NOTICE OF MOTION FOR PROTECTIVE ORDER |
PLEASE TAKE NOTICE that upon the annexed Declaration of Kenneth A. Jacobsen, and the accompanying Memorandum of Law in Support of Plaintiffs' Motion for a Protective Order, Plaintiffs will move this Court pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, on Friday June 2, 2000 at 4:00 p.m., or as soon thereafter as counsel may be hard, at the United States District Court, Southern District of New York, 500 Pearl Street, New York, New York, for an Order (a) precluding outsiders to the litigation, including members of the press or news organizations (hereinafter "the press"), from attending depositions, including those of individual representatives of plaintiffs or the MPAA in this matter, (b) precluding defendants from posting to the Internet all or any portion of depositions of individual representatives of plaintiffs or the MPAA, whether in the form of written transcripts, videotapes, or ASCII files (hereinafter "deposition materials"), and (c) precluding defendants from publicly disclosing documents and information obtained through discovery, which plaintiffs have designated, under the Confidentiality Stipulation previously agreed to, as "CONFIDENTIAL" or for "ATTORNEYS EYES ONLY", to anyone not authorized to receive the information under the Confidentiality Stipulation, whether by posting on the Internet or otherwise.
Dated: New York, New York
May 30, 2000
| PROSKAUER ROSE LLP
By: [Charles Sims Signature] Leon P. Gold (LG-1434) Attorneys for Plaintiffs |
TO:
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
Martin Garbus
Edward Hernstadt
488 Madison Avenue
New York, New York 10022
(212) 826-5582
Attorneys for Defendant
THE VILLAGE VOICE
Barbara Cohen
Attorney for The Village Voice
Fax: 505.1698, 362.5667
THE NEW YORK OBSERVER
Brian Kempner
Attorney for The New York Observer
Fax: 753.2572
[5 pages with 16 pages of Exhibits A and B]
Leon P. Gold (LG-1434)
William M. Hart (WH-1604)
Charles S. Sims (CS-0624)
PROSKAUER ROSE LLP
1585 Broadway
New York, New York 10036
(212) 969-3000 Telephone
(212) 969-2900 Facsimile
Jon A. Baumgarten
PROSKAUER ROSE LLP
1233 20th Street, N.W., Suite 800
Washington, DC 20036-2396
(202) 416-6800 Telephone
(202) 416-6899 Facsimile
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK |
||
| UNIVERSAL CITY STUDIOS, INC.; PARAMOUNT PICTURES CORPORATION; METRO-GOLDWYN-MAYER STUDIOS INC.; TRISTAR PICTURES, INC.; COLUMBIA PICTURES INDUSTRIES, INC.; TIME WARNER ENTERTAINMENT CO., L.P.; DISNEY ENTERPRISES, INC.; AND TWENTIETH CENTURY FOX FILM CORPORATION, Plaintiffs, v.
SHAWN C. REIMERDES; ERIC CORLEY A/K/A Defendants. ___________________________________________ |
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) |
00 Civ. 0277 (LAK)(RLE) DECLARATION OF KENNETH A. JACOBSEN |
I, Kenneth A. Jacobsen, hereby declare:
1. I am Director of Anti-Piracy, Worldwide, for the Motion Picture Association of America, Inc. and its international counterparts (the "MPAA"). Prior to employment by the MPAA, I was for over 25 years a special agent for the Federal Bureau of Investigation. I submit this declaration in support of the plaintiffs' motion for a protective order: (a) precluding outsiders to the litigation, including members of the press or news organizations (hereinafter, collectively, "the press"), from attending depositions of individual representatives of plaintiffs or the MPAA in this matter; (b) precluding defendants from posting all or any portion of depositions of individual representatives of plaintiffs or the MPAA, whether in the form of written transcripts, videotapes, or ASCII files (hereinafter, collectively, "deposition materials"), and (c) precluding defendants from publicly disclosing information, obtained through discovery, which plaintiffs have designated as confidential or for "attorneys eyes only," to anyone not authorized to receive the information under the Confidentiality Stipulation, whether by posting on the Internet or otherwise. I have personal knowledge of the facts set forth below.
2. As Director of Anti-Policy, Worldwide, I am responsible for the safety of hundreds of MPAA employees and representatives assigned to the MPAA's anti-piracy effort against audiovisual piracy in 67 countries around the world. It is in large measure to protect these individuals and plaintiffs' own employees who are engaged in anti-piracy work that plaintiffs oppose press attendance at the depositions, posting transcripts on the Internet, and public dissemination of confidential testimony or discovered information concerning this matter.
3. In addition to the protection of our employees from the kinds of harassment and invasion of privacy that have previously occurred (described below), a second major concern is that public disclosure of testimony concerning such sensitive matters as anti-piracy investigative techniques, ongoing anti-piracy investigations, and future plans for DVD encryption and security will harm our proprietary interests by hampering our confidential investigative efforts and make "next generation" security devices more vulnerable to attack.
4. It is critical that the Court prevent public dissemination of three categories of information: (a) home addresses of the deponents and others; (b) names of employees and representatives or [sic] the MPAA who are engaged in anti-piracy work and not normally in the public eye; and (c) sensitive business information, such as future plans for DVD encryption and security, anti-piracy investigative techniques and ongoing investigations, and other non-public information.
5. Public dissemination of the information described in subsections (a) and (b) of paragraph 4 above, especially over the Internet, would facilitate harassment of plaintiffs, their witnesses, and other persons who may be identified in deposition testimony, as I understand plaintiffs' counsel have previously advised the Court. Disclosure of the information described in subsection (c) of paragraph 4 would substantially hinder ongoing anti-piracy investigations, frustrate future investigations, and undermine future security measures. Just as the FBI needs to protect its agents, sources, and methods, so as to safeguard their safety and effectiveness, so too the MPAA needs to protect those engaged in its anti-piracy operations. The focus of audiovisual piracy is rapidly shifting to Internet, DVDs and other digital transmissions. Posting information about MPAA's anti-privacy [sic] operations and techniques will make that information easily available to those engaged in, or planning for, digital piracy of individual works.
6. Since the filing of this lawsuit and the issuance of the Court's preliminary injunction, the MPAA and its counsel have received dozens of harassing, profane, and (in some cases) anti-Semitic e-mail messages, some of them even containing death threats. Copies of some of these messages are annexed as Exhibit A. The authors of some e-mails received at MPAA have complained the did not have the names of people to target directly. See, for example, Exhibit B.
7. Attorneys who have been engaged in anti-piracy efforts on plaintiffs' behalf have had their private credit records hacked into and interfered with. While I do not suggest that defendants were responsible for these e-mails or harassing conduct, they demonstrate the violent reaction some people have to the MPAA's anti-piracy efforts, especially among Internet users. In the past, MPAA anti-piracy personnel have experienced home burglaries and beatings, have been assaulted with weapons, and have received death threats, as a direct result of their anti-piracy work. The witnesses who testify in this case should not have to concern themselves with whether testimony will place themselves and/or others at risk.
8. On May 24, 2000, a country manager for the MPAA in Malaysia was returning home from dinner with a female friend when the two were confronted by a man who brutally slashed the friend's face, inflicting a wound which required 22 stitches to close. Again, while I do not suggest that defendants were responsible for this attack, I believe, based on the circumstances known to me, that the attacker intended to hurt the MPAA representative, rather than her companion, because the MPAA representative had received threats recently as the result of her anti-piracy work, and that this deplorable incident reflects the very real danger faced by MPAA personnel and others who work to fight piracy in an increasingly contentious atmosphere. Similar incidents have occurred in the past.
9. The plaintiffs' accompanying memorandum of law addresses the reasons why the Court should not permit the press to attend depositions, and why the Court should prevent dissemination of information properly designated as confidential or for "attorneys eyes only" under any circumstances. For the forgoing reasons, I respectfully request that the Court grant plaintiffs' motion for a protective order.
Pursuant to 28 U.S.C. § 1746, I hereby declare under penalty of perjury that the forgoing is true and correct. Executed on May 30, 2000.
[Signature]
Kenneth A. Jacobsen
[9 pages]
["REDACTED"s below in original]
____________________________________________
REDACTED
____________________________Forward Header ________________________________ Subject: DeCSS will rule yer ass yer filthy Jew>:[ Author: "James McLaren" <jamesmcl@mweb.co.za> at smtp_link Date: 1/6/00 11:48 AM
____________________________________________
REDACTED
--Original Message---- From: lake456@aol.com [mailto:lake456@aol.com]<mailto:lake@aol.com> Sent: Saturday, January 29, 2000 4:10 PM To: hotline@mpaa.org Subject: i support your fight against piracy Below is the result of your feedback form. It was submitted by (lake456@aol.com) on, January 30, 2000 at 00:09:37 __________________________________________________________
M-2510
content: If you even dare try to put forward your litigation and lawsuits, I will kill you and your lawyers and anyone else who supports you in your fight against piracy. I will also kill your attorneys and judges who think piracy is bad. Also, I hope kill at least one thousand of you! I have hired several hitmen to kill Elian when comes back into cuban soil __________________________________________________________
M-2511
REDACTED
Subject: Fwd:fuck you Screw you. You mother fuckers need to learn what battles to fight and when to fucking learn the laws you think are being broken. we're going to kill each and everyone of you. __________________________________________________________ Do You Yahoo? Talk to your friends online with Yahoo! Messenger. http://im.yahoo.com
M-2512
[Apparently a duplicate]
HotLine
__________________________________________________________ From: lake456@aol.com Sent: Saturday, January 29, 2000 4:10 PM To: hotline@mpaa.org Subject: i support your fight against piracy Below is the result of your feedback form. It was submitted by (lake456@aol.com) on, January 30, 2000 at 00:09:37 __________________________________________________________ content: If you even dare try to put forward your litigation and lawsuits, I will kill you and your lawyers and anyone else who supports you in your fight against piracy. I will also kill your attorneys and judges who think piracy is bad. Also, I hope kill at least one thousand of you! I have hired several hitmen to kill Elian when comes back into cuban soil __________________________________________________________
M-4091
Page 1 of 1 Austin, Kathy __________________________________________________________ From: Nate Watson [nwatson@einet.com] Sent: Tuesday, January 25, 2000 7:47 PM To: hotline@mpaa.org Subject: This emphasis has paid off as 6.163 VCRs have been seized since 1996. What the h"ll kind of comment is that. You people are a bunch of overbearing, fascist, corporate bastards. You arrest a norwegian teenager because he is smarter then you asshol*s. Isn't that a shame, some 16 year old reversed your lame ass encryption. Got news for you bastar's You think your "Anti-Piracy" campaign is paying off, haha I laugh...it's to late about the CSS too. you should have supported the world. not the U.S. Windows isn't the only operating system out there. Others wish to view DVD players you didn't support it. Well I lust wanted to rant cuz I hate you fuck"rs. You guys are gonna loose madd money. One last note, what makes a corporation thnky they can have someone arrested overseas. Your the association of AMERICA. Pissed off: Nate W.
M-4100
Austin; Kathy-
From: Cuck999999@aol.com
Sent: Wednesday, January 26, 2000 5:25 PM To: hotline@mpaa.org
Subject: INformation Dont worry about piracy...it wont effect you income...id didnt with the MP3's and it wont with DVD's... just like it didnt with VHS cassetts...if you had competent people or you if really cared about piracy...you would have your own security personell try to crack the code... then you could fix the SECURITY FLAWS before you lost some of your precious income...Also, if you werent so interested in obtaining revenues from the public...even more than you already are (from movies and copyrights and such...you would have made DVD's playable on non Windows systems...if you (the industry or whatever big corporate machine claims "Intellectual property") only you werent so greedy... The people will make a stand...are you (explanation as above)willing to bleed for your beliefs? One day it may come to that...
M-4141
Austin; Kathy- From: Anthony Teague [ATeague@arcmail.com]
Sent: Friday, January 21, 2000 2:29 PM
To: hotline@mpaa.org
Subject: 2600 magazine You guys fucking are assholes. I hope you all rot in hell. Goddamn corporate lackey fuck-up capitalist shitheads. ANARCHY!
M-4160
__________
HotLine ________________________________________________________________ From: John Schultz [johnschultz@mindspring.com]
Sent: Friday, January 28, 2000 12:45 PM
To: hotline@mpaa.org
Subject: DeCSS Shame on you. you jack-booted thugs. The lies you're telling to the ignorant courts will come back to haunt you when the public catches on.
M-4167
HotLine _______________________________________________________________ From: The BoZ [the_boz@email.com]
Sent: Friday, January 21, 2000 12: 38 PM To: hotline@mpaa.org; root@mpaa.org Subject: Violation of laws I just thought I'd let you know that you guys are violating the first amendment by suing innocent citizens who post material that is not copyrighted. You do not own the deCSS programs, and you do not own cryptography. I will never pay to watch another movie again, since the law does not apply to your organization, then it must not apply to me neither. You people can't take on everyone in the world and win. You will win the benefits of the actions you have taken against freedom by trying to circumvent the law. The double edged sword of the law will come back at you. You can sincerely bite my ass and suck my nuts,
The BoZ _______________________________________________________________ FREE! The World's Best Email Address @email.com Reserve your name now at http://www.email.com
M-4067
[5 pages]
HotLine _______________________________________________________________ From: Jake Stevenson [Jake.Stevenson@dacg.com] Sent: Friday, january 28, 2000 8:44 AM To: 'hotline@mpaa.org' Subject: Recent MPAA Actions Concerning DeCSS To whom it may concern: I was unable to find any better contact point for feedback from your website, so I'd like to ask that you please forward this to the appropriate parties in your organization. I am very concerned about the actions of the MPAA over the recent release of code which allowed software-reading of DVD disks, especially therecent action taken against Jon Johansen and his father. It is my job to follow technical news quite closely, and I've kep well abreast of the news regarding this controversy. I understand that Mr. Johansen and his associates wrote the code by reverse engineering the encryption scheme that DVD players use. I also know taht the code is not intended to be used as a method of copying DVD information, but simply allowing access to that information for users of the Linux operating system. I have read the Digital Millennium Copyright Act (DMCA), and my understanding is that it allows for properly reverse-engineerined products. Due to my concerns over the MPAA's actions in this matter, I would like to make it known that I am boycotting films at the theater, DVD, and otherwise from the following companies: Disney Saony Pictures Entertainment Metro-Goldwyn-Mayer Paramoutn Pictures Twentieth Century Fox Universal Studios Warner Brothers This action upsets me, as I an avid attender of films at theaters, but I find involvement of these companies in these actions so appaling [sic] that I cannot support them. I am forwarding my notice to each company and will encourage my friends and family to do the same. I urge you to discontinue your actions in this case and work with the community to find a way to protect the movie industry without detriment to our rights. Thank you. Jake A. Stevenson
M-2863
HotLine _______________________________________________________________ From: ? [kmb51@hotmail.com] Sent: Sunday, January 31, 1999 12:47 AM [year as written] To: hotline@mpaa.org' Subject: Forward to a Mpaa exec. :0) Thanks I could not find any other email address contained within your web-site so I assume you will forward this on to the right people. I was recently "surfing" on the Internet and came across a article that to do with the mpaa taking to court several people and organizations over DVD copyright protection. I thought this does not seem right. A dvd is ruffly 3.5 gigabits and for the average Internet user would take something like 6 days to download, so that cant be what there trying to protect hmmmm... OK A blank DVD cost some-where in the range of 3 times as muchas a dvd bought from a store with content already on it hmmm.. O.K. IM still searching and wondering for the answer to why the mpaa a organization with corporations that hold all the media giants, would want to suppress first amendment rights of the people. Tapes where copied they survived. CD's where copied they survived. DVD's can be copied and they will survive. Why should you decide that I can only watch my DVD movie on a windows platform machine! Who made you God? Nor the first or the last Eric Smith
M-2874
REDACTED
From: Donovan Hill [alt@teius.net] Sent: Saturday, January 16, 2000 xxxx To: hotline@mpaa.org Subject: DVD Since this seems to be the only mail link on the entire MPAA site, I am writing you here. The recent lawsuits regarding the DeCSS program concern me greatly. In my opinion, these are bully cases and therefore I fell I have no choice to respond. I have decided to NOT purchase anything related to DVD until this case is resolved. Also, I sincerely hope you lose in a court case[?]. Thank you. Donovan Hill
M-2793
REDACTED
From: Chris Barker [chris@amiya.co.jp]
Sent: Monday, January 17, 2000 12:15 AM
To: hotline@mpaa.org; pegge@mpaa.org
Subject: you people just don't get it
To whom it may concern:
I appologize in advance if this reaches the wrong email address.
Since these were the only two I could find on www.mpaa.org I had to
use these. If this has not reached the appropriate persons, would
you be kind enough to forward this email, or print it out for the
technologically impaired.
I am writing today as an irate consumer. I own about 200 DVDs and
have been an eager consumer and vocal advocate of theformat. I live
in Japan where the market penetration of DVD is not as high as
in the USA where I am originally from. My collection of DVDs includes
discs from both Region 1 and Region 2, due to the facts that 1) some
movies I want to own are not released here in Japan, 2) some movies
I want to own are not released in the US, 3) some DVDs are released
in anamorphic format here which have been slashed down to 4:3 in
the US, and 4) my wife is Japanese and so she wants Region 2 discs
so she can see the subtitles. Unfortunately the members of the DVD
Consortium acting in accordance with the content producers whom you
represent chose to impose the region coding system upon consumers.
This made it difficult for those of us who have legitimate consumer
need for multi region players to enjoy our investment in DVD movies.
I have addressed this issue by building a home theater PC which is
connected to my widescreen TV. Because I did research and because
there were programmers who felt passionately that people should be
able to watch their DVDs no matter what region the discs were
encoded for, my family is able to enjoy a range of movies from
around the world. We buy all our DVDs, we do not copy them. We feel
the producers of the movies we enjoy should be compensated fairly.
The only downside to this setup is that I have to use Microsoft Windows
98 as the operating system since the software DVD industry has chosen
(or perhaps been forced to) ignore the Linux market. Were I able
to purchase a software decoder for Linux, I would have done so and
thus setup my home theater exactly as I want to.
I have friends who are engineers and legal folks at several large
companies which manufacture DVD players. We have discussed the whole
CSS issue and they have told me some interesting things. This is
pretty much common knowledge by now, but I can happily say that I
have it first hand that CSS was never designed as a copyright
protection scheme, but ONLY for licensing control. CSS allows
local distributors to fix pricing according to their markets and
it allows the DVD Consortium to say who is and is not allowed to
produce hardware and software DVD players. CSS in no way prevents
piracy by mass production since it does not limit bitwise copies
of discs.
Shame on your industry for not trusting your consumers. Shame on you
for trying to tell us how we can and can not watch the movies we
have purchased a license to view. People outside the US want to see
movies dubbed or subtitled into their own language and are not very
likely to import grey market copies, the only reason for regional
coding is greed on the part of Hollywood and local distributors.
Shame on you for xxxing to the public and claiming that your
frivolous lawsuits against those involved with DeCSS have anything
to do with piracy. I thank God in heaven that EFF exists and will
fight you in court. No matter how much you strongarm the press into
publishing your filthy lies as facts, people will know the truth.
Those who wrote the DMCA and the Berne Convention understood that
technology evolves faster than industry, that consumers have
rights as well as content producers. If you really want to fight
piracy, go after the large scale pirates, not the individual
programmers who want only to watch their legally purchased DVDs.
Mr. Jack Valenti seems to be nothing more than a lying blowhard who
does not understand what he is talking about. Publishing the results
of reverse-engineering a weak encryption scheme is fundamentally
different from copying and distributing keys to a department store.
Reverse engineering is not in fact illegal, and the DMCA provides
specific exception for cases of interoperability. It is more of a
shame that Mr. Valenti and the other executives of the MPAA are
too cowardly to publish their email addresses on your website. By
the way, whoever codes your HTML should be fired. The links to the
Connecticut and New York claims are broken.
Sincerely,
Chris Barker
chris@amiya.co.jp
M-2788
[10 pages]
Leon P. Gold (LG-1434)
William M. Hart (WH-1604)
Charles S. Sims
PROSKAUER ROSE LLP
1585 Broadway
New York, New York 10036
(212) 969-3000 Telephone
(212) 969-2900 Facsimile
Jon A. Baumgarten
PROSKAUER ROSE LLP
1233 20th Street, N.W., Suite 800
Washington, DC 20036-2396
(202) 416-6800 Telephone
(202) 416-6899 Facsimile
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK |
||
| UNIVERSAL CITY STUDIOS, INC.; PARAMOUNT PICTURES CORPORATION; METRO-GOLDWYN-MAYER STUDIOS INC.; TRISTAR PICTURES, INC.; COLUMBIA PICTURES INDUSTRIES, INC.; TIME WARNER ENTERTAINMENT CO., L.P.; DISNEY ENTERPRISES, INC.; AND TWENTIETH CENTURY FOX FILM CORPORATION, Plaintiffs, v.
SHAWN C. REIMERDES; ERIC CORLEY A/K/A Defendants. ___________________________________________ |
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) |
00 Civ. 0277 (LAK)(RLE) MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' MOTION FOR A PROTECTIVE ORDER |
PRELIMINARY STATEMENT
Defendants have made clear their intention to disseminate publicly transcripts and video recordings of the depositions of representatives of plaintiffs and the Motion Picture Association of America ("MPAA") taken in this matter. In addition, certain press organizations have sought leave of Court to attend the depositions.
Plaintiffs object strongly to publicizing pretrial discovery proceedings. In view of past experience of substantial harm to persons engaged in anti-piracy activity whose identity has become publicly known, and disturbing email already received in this case threatening the court and counsel and MPAA personnel,1 there is substantial and unacceptable risk that public identification of the identities and methods of those engaged in the anti-piracy efforts of the MPAA and its members would lead to serious hard to those individuals; would harm the legitimate and necessary anti-piracy efforts of plaintiffs and the MPAA; and would obstruct and hamper the discovery process.
____________________
1 Some of these threatening emails are annexed as Exhibit A to the accompanying Declaration of Kenneth A. Jacobsen, dated May 30, 2000 (hereinafter "Jacobsen Decl."), at ¶ 5.
Neither defendants nor members of the press or news organizations have an
absolute right to publish discovery materials, and protection is amply warranted
here, given the threats received and the kinds of harassment which anti-piracy
personnel and efforts have drawn in the past, documented in the declaration
of Kenneth A. Jacobsen, Director of Anti-Piracy, World-wide, for the Motion
Picture Association of America and its international counterparts ("MPAA"),
submitted in support of this motion. Plaintiffs therefore respectfully request,
pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, which authorizes
protection for good cause shown "to protect a party or person from annoyance,
embarrassment, or undue burden and expense," a protective order (a) precluding
the public, including the members of the press or news organizations
(hereinafter, collectively, "the Press"), from attending depositions of
plaintiffs or representatives of the MPAA in this matter, (b) precluding
defendants from posting all or any portion of depositions of plaintiffs or
MPAA representatives, whether in the form of written transcripts, videotapes,
or ASCII files (hereinafter, collectively, "deposition materials"), on the
Internet, and (c) precluding defendants from disclosing documents or information
which plaintiffs have designated, under the Confidentiality Stipulation
previously agreed to, as confidential or for "attorneys eyes only," to anyone
not authorized to receive the information, under the Confidentiality Stipulation
whether by posting on the Internet or otherwise.
ARGUMENT
I. THE COURT SHOULD BAR PUBLIC DISSEMINATION OF THE DEPOSITION MATERIALS
A. Good Cause Exists for the Entry of a Protective Order
Public dissemination of the deposition materials would be harmful to the deponents themselves, the discovery process, and to plaintiffs. Indeed, since plaintiffs filed this lawsuit and the Court entered its preliminary injunction order, the MPAA has been barraged with harassing, profane, threatening, and anti-Semitic e-mail messages, evidently in response to (retaliation for) plaintiffs' attempt to enforce their rights against defendants under the Digital Millennium Copyright Act. (See accompanying Jacobsen Declaration at ¶ 6.) The public dissemination of information from deposition transcripts, especially over the Internet, will only serve to facilitate further harassment of plaintiffs, their witnesses, and other persons who may be identified during the depositions, and to facilitate efforts to compromise and defeat plaintiffs' anti-piracy activities.
Since the filing of this suit, MPAA and its personnel have received death threats and other harassing, profane, and anti-Semitic e-mail (Jacobsen Decl. ¶ 6.) One recent email to the MPAA, annexed as Exhibit A to the Jacobsen Declaration, asked if the reader was "willing to bleed for your beliefs? One day it may come to that." Other recent e-mails have threatened to kill "your attorneys and judges who think internet piracy is bad." Id. Last week, a country manager for the MPAA in Malaysia, after having received threats as result of her work, was returning home from dinner with a friend when the friend was brutally slashed in the face by an unknown attacker. The circumstances strongly suggested that the attack was intended for the MPAA representative, as a result of her anti-piracy work. Jacobsen Decl. ¶ 8.
In the past, MPAA anti-piracy personnel and attorneys have had their credit records locked and interfered with, and have experienced burglaries and beatings. Jacobsen Decl. ¶ 7.
Based on these and other recent experiences, there is ample reason to believe that disclosure of the identities of witnesses and other MPAA anti-piracy personnel, their methods, and other details predictably arising in their depositions, would give rise to similar threats, harassment, and violence. There is therefore ample basis for protection under Rule 26(c). The authors of many of the e-mails that have been routed to the general MPAA mailbox have lamented the fact that they do not have specific names of individuals to harass directly. Jacobsen Decl. ¶ 6. In the current contentious, accusatory, overheated atmosphere, it is unconscionable to ask deponents to testify knowing that their words will be available to every Internet user in the world within hours, including the very individuals who have engaged in intimidation tactics in the past. (Many of those who have been sent cease and desist letters by MPAA regarding their posting of the DeCSS hack have posted the MPAA's correspondence on their websites.)
In addition, the deposition testimony is likely to cover details of plaintiff's anti-piracy techniques and ongoing investigations. With the cooperation of the FBI and law enforcement agencies around the world, and led by former FBI special agent Kenneth Jacobsen, MPAA and its international counterparts carry out thousands of investigations of illegal activity worldwide and assist in the prosecution of thousands of criminal cases each year against copyright pirates. Public disclosure of the sources and methods by which this anti-piracy work is undertaken would both hamper plaintiffs' law enforcement efforts and add further fuel to an overheated dispute.
The Supreme Court upheld the issuance of a protective order under strikingly similar circumstances in Seattle Times v. Rhinehart, 467 U.S. 20 (1984). There petitioners had "stated their intention to continue publishing articles about respondents and [the] litigation, and their intent to use information gained through discovery in future articles." 467 U.S. at 25. In support of their request for a protective order, respondents "described incidents at [respondents'] headquarters involving attacks, threats and assaults directed at [their] members by anonymous individuals and groups." 467 U.S. at 26. Upholding trial court's protective order, which prohibited any use of discovery material except as necessary for trial preparation, the Court noted (467 U.S. at 35):
There is an opportunity ... for litigants to obtain -- incidentally or purposefully -- information that not only is irrelevant but if publicly released could be damaging .... The government clearly has a substantial interest in preventing this sort of abuse of its processes.
Here, as in Seattle Times, conducting the depositions without the requested protective order would inevitably have a chilling effect on the deponents and lead to misuse of the court's processes, in ways harmful to plaintiffs and inconsistent with federal discovery policies. See Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 529 F. Supp. 866, 911 (E.D. Pa. 1981) ("The overriding purpose of a protective order is to facilitate the communication of information between litigants. To accomplish that end, it may be necessary to limit speech by parties and their counsel outside of court.") (citations omitted); Word of Faith World Outreach Center Church v. Morales, 143 F.R.D. 109, 113 (W.D. Tex. 1992) (citing Seattle Times) ("[t]o allow a party to use that information for purposes unrelated to the litigation and in a manner which harms the giver of that information is abusive, and courts have a significant interest in preventing such usage."). Substantial governmental interests warrant the protection sought here under Rule 26(c).
B. There Is No First Amendment Right To Disseminate Deposition Materials.
It is well settled that "where a protective order is entered on a showing of good cause ..., is limited to the context of pretrial civil discovery, and does not restrict the dissemination of information if gained from other sources, it does not offend First Amendment principles." Seattle times Co. v. Rhinehart, 467 U.S. 20, 37 (1984). This is so because "pretrial depositions ... are not public components of a civil trial." 467 U.S. at 31.2
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2 In a May 25, 2000 letter to the Court, defendants cited several authorities for the proposition that this Court should permit them to disseminate deposition materials publicly all of which are readily distinguishable. See Koster v. Chase Manhattan Bank, 93 F.R.D. 471, 482 (S.D.N.Y. 1982) (a pre-Rhinehart decision denying a protective order in a sexual harassment suit where "plaintiff obviously would have known the details of her alleged relationship with [defendant and] will be able to disseminate this information regardless of the order"); Campaign For Fiscal Equity, Inc. v. New York State, 796 N.Y.S.2d 411, 411 (1st Dep't 2000)(denying a motion by senior state officials to limit deposition videotape dissemination in order to avoid "political harassment" and "unwanted publicity" in a taxpayer action alleging inadequate and unconstitutional funding of public schools); Cianci v. New York Times Publishing Co., 88 F.R.D. 562 (S.D.N.Y. 1980) (granting a motion to unseal deposition transcripts and answers tor requests to admit where those materials had already become a part of a public trial record); and In re Texaco, 84 B.R. 14, 18 (S.D.N.Y. 1988) (denying a motion for a protective order preventing dissemination of depositions where information had "either been substantially disclosed to the public already, or is not the type that will result in harm to the parties or the witnesses if disclosed").
In Pailsey Park Enterprises v. Uptown Productions, 54 F. Supp2d 347 (S.D.N.Y. 1999) (Kaplan, J.), this Court granted a protective order limiting the use of a deposition videotape, in light of defendants' apparent intention to post the video recording on their website, stating:
It is readily apparent that the Defendants intend to use any videotape for purposes entirely unrelated to the litigation. Rule 30(b)(2) was amended to permit videotaped depositions as a matter of routine in recognition of the fact that videotapes are a means of presenting deposition testimony to jurors that is superior to readings from cold, printed records. It was not intended to be vehicle for generating content for broadcast and other media.
54 F. Supp. 2d at 349 (emphasis added, citations omitted). The Court further noted that "courts must be vigilant to ensure that their processes are not used improperly for purposes unrelated to their role." Id. See also Drake v. Benedek Broadcasting Corp., 2000 WL 156825 (D. Kan.), at *2 (ordering that deposition videotape "shall be used solely for the purpose of this litigation" where plaintiff planned to use deposition of public figure defendant to create a documentary) (citing Paisley Park).
Here too, defendants have no First Amendment or other right to deposition
materials on the Internet, and this Court should prohibit them from doing
so.
II. THE COURT SHOULD DECLINE TO PERMIT PRESS ACCESS TO THE DEPOSITION PROCEEDINGS
A. Good Cause Exists for the Entry of an Order Denying Press Access to the Deposition Proceedings.
The same serious concerns that attend the dissemination of deposition transcripts and video recordings apply equally to the issue of press access, and the factual basis set forth in the Jacobsen Declaration supports an order excluding the press from depositions as well. Given the threats and risks present here, there is no practical difference between publication of the deposition testimony by defendants and publication by The Village Voice or The New York Observer. Each manner of publication risks the kind of harassment described above, and a concomitant chilling of deponents' willingness to testify openly. Nor would it be appropriate to complicate these depositions for the witnesses by subjecting them to concern and worry about whether counsel will be able to eject the press representatives from the deposition room each time any discussion of confidential matters is imminent. See United States v. Poindexter, 732 F. Supp. 165, 167 (D.D.C. 1990) ("it is impractical to screen out in advance all the sensitive security information that could be revealed in the course of the former President's examination and cross-examination").
B. Denying Press Access to the Deposition Proceedings Does Not Offend the First Amendment
Because pretrial depositions are not public components of a civil trial, "[t]he press has no First Amendment right to be present at a deposition." Bal v. Hughes, 1995 WL 244757 (S.D.N.Y. Apr. 26, 1995) (Peck, M.J.) (citations omitted); see also Lisa C.-R. v. William R., 166 Misc.2d 817, 819, 635 N.Y.S.2d 449, 450 (Sup. Ct. 1995) ("the press has consistently been denied access to pretrial depositions since depositions are not part of a public trial.") Numerous decisions recognize that press representatives may be excluded for pretrial depositions, even depositions that involve subject matter of substantial public interest and concern. See, e.g., Kimberlin v. Quinlan, 145 F.R.D.1 (D.D.C. 1992) (prohibiting CNN from attending depositions of current and former officials including a former Attorney General); Amato v. City of Richmond, 157 F.R.D. 26, 27 (E.D. Va. 1994) (precluding a newspaper from attending pretrial depositions in a civil action against a police department); United States v. Poindexter, 732 F. Supp. 165, 167 (D.D.C. 1990) (precluding press attendance at a deposition of former President Reagan).
III. THE COURT SHOULD "SO ORDER" THE CONFIDENTIALITY STIPULATION
The parties have entered into a stipulation under which either of them may designate transcripts and documents as "confidential" or "for attorneys' eyes only," wherever [sic] has been forwarded to the Court for its approval. The Court should "So Order" that stipulation as it provides the plaintiffs appropriate and necessary protection to avert the harms identified in the Jacobsen Declaration and its exhibits.
This Court has already advised the parties of its general practice of approving
protective orders of the kind to which the parties have agreed. Once the
Court has approved the protective order, that order will apply to prevent
any use of deposition materials that have been designated as confidential
except for purposes of conducting this litigation.
CONCLUSION
For these reasons, Plaintiffs respectfully request that their motion for a protective order and for strict enforcement of the existing confidentiality stipulation be granted.
Dated: New York, New York
May ___, 2000
| PROSKAUER ROSE LLP
By: [Charles Sims Signature] Leon P. Gold (LG-1434) Attorneys for Plaintiffs |
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