26 May 2000
Source: Frankfurt, Garbus, Klein & Selz for 2600.

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

Proskauer Rose Letter to Judge Kaplan

Frankfurt Garbus Letter to Proskauer

Frankfurt Garbus Letter to Judge Kaplan 1

Frankfurt Garbus Letter to Judge Kaplan 2

Court Order

[PROSKAUER ROSE LLP LETTERHEAD]

May 24, 2000

By Hand

The Honorable Lewis A. Kaplan
United States District Judge
Southern District of New York
500 Pearl Street
Room 870
New York, New York 10007

Re: Universal City Studios v. Reimerdes
00 Civ. 0277 (LAK)(RLE)

Dear Judge Kaplan:

By letter of May 2, 2000 we expressed our objection to the request of the New York Observer for leave to attend depositions in this action. Believing that Defendants now intend to publish over the Internet complete deposition transcripts of Plaintiff's witnesses (as well as complete video tapes), we called Defendants' counsel asking for an agreement that the transcripts and video tapes not be disclosed to persons not directly involved in this litigation. Defendants' counsel refused to commit to refrain hm publishing the transcripts, however. We respectfully request that the Court enter a protective order to prevent Defendants from posting either the transcripts themselves or video recordings or other information from depositions in this case on the Internet.

Good cause exists for the entry of such an order pursuant to Rule 26(c)of the Federal Rules of Civil Procedure. As the Court is aware from papers previously filed in this action, there are sectors of the public who have demonstrated their predilection for harassing Plaintiffs and anybody who supports them. 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. Indeed, since Plaintiffs filed this lawsuit and the Court entered its preliminary injunction order, the MPAA has been barraged with harassing, profane and even anti-Semitic e-mail messages; presumably, in "protest" of the plaintiffs' attempt to enforce the law.(1) In the past, MPAA personnel whose names and addresses were identified have experienced home burglaries and beatings and received death threats. Plaintiffs have no doubt that disclosure of the identities of witnesses, and their detailed testimony, could give rise to similar harassment of the deponents and others. Notably, the first questions by defendants' counsel at the depositions to date elicited the plaintiffs' witnesses' respective addresses.

The authors of many of the e-mails that have been routed to the general MPAA mailbox have lamented the fact that they don't have specific names of individuals to harass directly. Certainly disclosure of deposition testimony would have a chilling effect on the deponents that would be both harmful to Plaintiffs and inconsistent with federal discovery policies.

In addition, the deposition testimony is likely to cover details of Plaintiffs' anti-piracy measures. Although this information is perhaps, in some limited instances, not protected under the existing Confidentiality Stipulation, public disclosure would nonetheless both hamper Plaintiffs' legal enforcement efforts and foment further vitriol in what has already proved a most antagonistic dispute.

All of this must be considered in light of the fact that neither the public nor Defendants have any significant First Amendment interest in disclosure of the pretrial deposition testimony in this case. See Seattle Times Co. v. Rhinehart, 467 U. S. 20, 31 (1984) (protective order precluding party to litigation from publicly disseminating information divulged in pre-trial discovery did not offend First Amendment principles); Bal v. Hughes, 1995 WL 244757 (S.D.N.Y. Apr. 26,1995) (Peck, M.J.) ("pretrial depositions and interrogatories are not public components of civil litigation") (quoting In re Texaco Inc., 84 B.R. 14,17 (Bankr. S. D. N. Y. 1988)). In addition, it has been held that "[u]nder the law of procedure, parties and related persons often have no choice but to divulge information they would not otherwise freely share. To 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." Word of Faith World Outreach Center Church v. Morales, 143 F. R. D. 109,113 (W. D. Tex. 1992) (citing Rhinehart). Defendants have made clear their intention to disseminate information disclosed in the depositions for just such abusive purposes.

The interests of the Plaintiff's and deponents, and the integrity of the discovery process, can only be preserved by the entry of a protective order (a) sealing all deposition transcripts and tapes in this action until further order of the Court; (b) precluding access to the deposition proceedings by members of the press, the public, or other nonparties not required for the conduct of the deposition proceedings; (c) precluding Defendants and defense counsel from disseminating, disclosing, publishing or releasing, on the Internet or otherwise, the deposition transcripts or any parts thereof, or all or any parts of any media relating to the depositions (such as audio tapes, video tapes or ASCII disks), to the press, the public, or any nonparty not specifically involved in the conduct of this litigation; and (d) precluding the dissemination, disclosure, publication, or release of any information disclosed at the deposition proceedings to the press, the pub&or any nonparty not involved in the conduct of this litigation, including but not limited to publication or dissemination via the Internet, to the extent that information is not publicly available from alternative sources.

Respectfully,

Nancy Kilson

NK/cb

cc: Martin Garbus, Esq. (with attachments)
By Telecopier

1. Some examples of these messages are also annexed.

[Attachments]

__________

From: lake456@aol.com
Sent: Saturday, January 29, 2000 4:10 PM
To: hotline@mpaa.org
Subject: i support your fight against piracy

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 light against piracy. I will also kill your attorneys and judges who think piracy is bad. Also, I hope to kill at least one thousand of you!

I have hired several hitmen to kill Elian when comes back into cuban soil

__________

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 every one of you.

__________

From: Nate Mtson [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 1995.

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.

__________

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...

__________

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!

__________

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.

__________

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

__________

FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022
(212) 826-5582

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.

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,

Edward Hernstadt

cc: Scott Cooper, Esq.
Leon Gold, Esq.
Carla Miller, Esq.
Martin Garbus, Esq.

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.

FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022
(212) 826-5582

May 25, 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:

We write in response to plaintiffs' letter to the Court dated May 24, 2000, which arrived in our offices by telefacsimile at the end of yesterday's business day. We also write to seek the Court's assistance in connection with the Confidentiality Stipulation and Protective Order entered into by the parties on May 11, 2000 and executed by the parties the next day (May 12), prior to Your Honor's Order of that date advancing the trial in this matter from December 5, 2000 to July 17, 2000 and directing expedited discovery.

After repeated requests from defendants, plaintiffs finally informed us yesterday that they refuse to "un-designate" any parts of the deposition of Robert Schumann (taken May15) or of the deposition of Kenneth Jacobsen (May 17 and 18). Plaintiffs designated both of these depositions in their entireties as confidential at the commencement of each such deposition. See, e.g., Deposition of Robert Schumann, pp 6:20 - 8:21 ("minuscript" copies of both depositions are attached for the Court's convenience; we would be pleased to provide the Court with full-page or ASCII versions if so desired). Defendants objected at the time of these pre-emptive "blanket" designations, and continue to object to this tactic, whether based on the Confidentiality Stipulation or an application to the Court for a Protective Order on the grounds that such designations will impede our defense of this case and because the tactic seeks improperly to block press and public access to matters of important public concern.

We reluctantly turn to the Court for assistance because, despite defendants' concerted efforts for more than a week to press plaintiffs to resolve these two issues, plaintiffs have insisted and continue to insist that the entirety of each deposition can be, have been and will be designated as confidential; plaintiffs now also seek a protective order to the same effect. Finally, plaintiffs have also refused to modify 6 of the Confidentiality Stipulation at all. Accordingly, we turn to the Court for assistance as outlined in Your Honor's May 12 Order.

Defendants have a significant interest in the transcripts being designated pursuant to the terms of the Confidentiality Stipulation as quickly as possible so that we can move expeditiously towards trial. The protective order now sought would impose very serious burdens on defendants. We have witnesses, potential witnesses, amici, potential amici, experts, and potential experts quite literally all over the world. It would be a significant additional burden that none of these people could review any non-confidential portion of a deposition transcript in this case without signing on to the Confidentiality Stipulation. Nor will other interested parties who might contact defendants with information or other assistance after reviewing a deposition transcript they found because, for example, it was linked to an article in Wired or The New York Times, be able to do so.

In this regard, the Court must be aware the issue of whether it is appropriate for plaintiffs to designate entire transcripts confidential, or to seek a protective order to that same effect, is not limited to or even primarily driven by any desire on the parts of defendants to "publish" the transcripts. Defendants have received a number of requests from members of the press -- including The New Republic, Business Week, The New York Times, The Village Voice, Wired, www.feed, and The New York Observer -- and interested parties for copies of the deposition transcript. This interest is created in large measure by the actions of the plaintiffs themselves: they have mounted a public relations blizzard against the defendants and their supporters, calling them pirates, dishonest and the like. Each part of this litigation has been highlighted by press releases and PR people spreading negative information (or misinformation) about defendants or other issues in the case. Well known figures such as Jack Valenti and Michael Eisner have commented publicly on aspects of the case. As a result, dozens of newspapers and magazines are covering the story. Indeed, plaintiffs's conduct in reaching out to the public constitutes a waiver of any claim now for a protective order.

Other interests are at stake, too. This has been and is a very public case. Almost all of the pleadings, motion papers and decisions to date have been posted by a variety of sources on the internet. The complaint raises issues of first impression and matters of great interest to very broad segments of the public. There is a significant public interest, and considerable First Amendment free press and speech interests, in the contents of the depositions in this case. To the extent that any confidential business information is discussed by a deponent, plaintiffs (and defendants) can avail themselves of the Confidentiality Stipulation. However, it is improper for plaintiffs to designate entire depositions as confidential simply to cloak them from the public eye, or to seek a protective order, without regard to whether they are actually confidential.

In this regard, what is most ironic about plaintiffs' application is the innocuousness of the depositions. Counsel for plaintiffs, in addition to have designated the Schumann and Jacobsen depositions confidential in their entirety, have been assiduous in designating "sensitive" portions of the transcripts as confidential. More than anything else, the deposition transcripts contain numerous admissions and acknowledgments by the witnesses that no copying has ever been traced or attributed to DeCSS. Defendants long ago asserted this fact, and predicted that they would prove it from the mouths of plaintiffs' own witnesses: the desposition transcripts do so.

Most importantly, plaintiffs well know, although they neglect to inform Your Honor, that I immediately offered to designate the addresses and any other personal information regarding the witnesses as Highly Confidential, the first time counsel for plaintiffs informed me they wished to maintain indefinitely the "blanket" designations of confidential. Moreover, plaintiffs' application is based on speculative and overbroad allegations that the witnesses may be subjected to insulting, biting and even threatening e-mails. Plaintiffs make this allegation based upon a dozen or e-mails apparently sent to the MPAA in January of this year, the most striking of which have been redacted in unkown but significant ways, such that it is impossible to determine if they are even e-mails. Additionally, even though plaintiffs have had most of theses e-mails (containing return e-mail addresses) since January, they do not inform the Court whether they believed them to present any real threat, if so, what actions they have taken in response to them, and the results of such investigations. And, for example, the resume of Mr. Schumann, who has submitted two declarations already in this case, has been posted on the internet since January, and plaintiffs point to no negative or threatening contacts to him. In sum, plaintiffs' argument that a deponent has a "privacy" interest in blocking dissemination of a deposition is not based on any factual substance. It is also disingenuous, in that the persons being deposed are party witnesses or experts who are presumably available to testify at trial (i.e., publicly) and whose depositions will presumably be used in various memoranda of law and thus made public.

A protective order should not be granted unless "good cause" exists. General factors used by Federal Courts to determine "good cause" are: (a) danger of abuse if a protective is granted; (b) the good faith the various parties' positions; (c) the adequacy of protective measures provided by protective measures; and (d) availability of other means of proof. 6 Moores Federal Practice 26.104[1] (Matthew Bender 3d Edition). First, the risk of abuse is very real, since plaintiffs seek to bury all parts of all deposition transcripts: plaintiffs seek to use the protective order as a sword, not a shield. This is clear because there is a Confidentiality Stipulation in place, which is more than adequate to protect any business secrets or proprietary information that might be included in a transcript. Finally, while the MPAA has clearly received some highly critical and crudely phrased e-mails,(1) these redacted, inflamatory missives do no constitute proof that so drastic a block on information as a protective order is necessary.

Finally, plaintiffs also informed us yesterday that they refuse to modify 6(c) of the Confidentiality Stipulation and Protective Order, as requested by defendants, to provide for a period of time shorter than fifteen business days(2) within which to designate appropriate portions of depositions as confidential (if not so designated during the course of the deposition). Given the drastically abbreviated and expedited discovery schedule, defendants believe that 15 business days is far too long a period to provide for designating deposition transcripts, to the extent that such designations have not been made during the deposition itself. Indeed, the Court has expedited discovery by reducing the time to respond to discovery requests by approximately two-thirds (thirty days to seven business days). This suggests that an appropriate period of time to afford the parties in the future to consider depositions should be five days, or at most, five business days.

Accordingly, defendants respectfully request that the Court issue and Order modifying 6(c) of the Stipulation of Confidentiality to provide that designations "shall be made . . . within five (5) days" rather than fifteen business days; and respectfully request that the Court Order that designations of Confidential or Outside Counsel's eyes only shall be made strictly and only in accordance with the provisions of the Stipulation of Confidentiality, and that the Court reject plaintiffs' application for a protective order.

Thank you for you for considering the foregoing.

Respectfully submitted,

Edward Hernstadt

cc: Leon Gold, Esq. (By Hand)
Carla Miller, Esq. (By Hand)
Nancy Kilson, Esq. (By Hand)
Martin Garbus, Esq.

1. In this regard, defendants of course are concerned by any personal threats the MPAA has received, and absolutely reject the use of any type of intimidation or threats. However, plaintiffs have apparently had such messages since January, and the identity of who sent them, without having verified that any real threat was actually intended.

2. Defendants agreed to this time period when the trial date was December 5, 2000. The Court's Order moving the trial date to July 17 was signed only hours after the parties executed the Confidentiality Stipulation. Of course, defendants would have insisted on shorter time frames in the Stipulation had the trial date already been moved.

FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022
(212) 826-5582



May 25, 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:

We write further to our letter of this morning.

The very significant First Amendment values and impact on those values in determining whether the requisite "good cause" exists to support a protective order sealing all of the depositions of plaintiffs' witnesses have been addressed in cases under New York law and that of other jurisdictions. These cases militate strongly against granting a protective order based on plaintiffs' application, which can be rejected without making a finding on whether there exists a right of access to discovery materials. See, e.g., Koster v. Chase Manhattan Bank, 93 F.R.D. 471 (S.D.N.Y. 1982) (denying protective order sealing all discovery and depositions; order opposed by plaintiff and press); Campaign for Fiscal Equity, inc. v. New York State, 796 N.Y.S.2d 411 (1st Dep't 2000) (affirming denial of protective order, but directing in camera review of videotaped depositions to determine potential for abuse); Cianci v. New Times Publishing Co., et al., 88 F.R.D. 562 (S.D.N.Y. 1980) (vacating protective order and unsealing deposition on press motion after materials used in court papers); In re Texaco, 84 B.R. 14 (S.D.N.Y. 1988) (denying protective order opposed by intervenor press entities, except for delaying release of specified passages, where case of public interest and press interest significant).

Here, no protective order is necessary, and its issuance would not only burden defendants' ability to interview and seek out witnesses,(1) but will significantly constrict the information about this trial available to the press and public.

Thank you for you for considering the foregoing.

Respectfully submitted,

Edward Hernstadt

cc: Leon Gold, Esq. (By Hand)
Carla Miller, Esq. (By Hand)
Nancy Kilson, Esq. (By Hand)
Martin Garbus, Esq.

1. This case is not just one of first impression regarding the Digital Millenium Copyright Act, but it is also ground-breaking in terms of the importance of the internet to the parties' ability to find and interact with witnesses and potential witnesses, and to disseminate information.

Source: http://www.nysd.uscourts.gov/courtweb/pdf/00-05471.PDF

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

UNIVERSAL CITY STUDIOS, INC., et al.,

Plaintiffs,
-against-                                                                           00 Civ. 0277 (LAK)

SHAWN C. REIMERDES, et al.,

Defendants.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

ORDER

LEWIS A. KAPLAN, District Judge.

The Court has received letters from plaintiffs and two news media regarding the questions whether members of the media should be permitted to attend depositions and whether discovery materials in this case should be subject to a protective order.

In view of the nature of the issues, plaintiffs shall present their position by means of a motion for a protective order and members of the media wishing to be heard on these matters shall move for leave to intervene for that purpose and, at the same time, move for whatever substantive relief they care to seek. Any motions should be served promptly. The parties are to work out a briefing schedule, one element of which shall be that all papers in support or in opposition to such motions shall be filed with the Court no later than June 2, 2000 at 4 p.m. The Court will hear argument on June 6, 2000 at 4:30 p.m.

Plaintiffs’ counsel is directed promptly to serve a copy of this order on the two newspapers that have communicated with the Court on this subject, the New York Observer and the Village Voice.

SO ORDERED.

Dated: May 25, 2000

_______________________________________

Lewis A. Kaplan
United States District Judge

HTML by Cryptome.