14 June 2000. Thanks to Anonymous.
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1
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 UNIVERSAL CITY STUDIOS, INC.,
et al.,
4
Plaintiffs,
5
v. 00 Civ. 277 (LAK)
6
SHAWN C. REIMERDES, et al.,
7
Defendants.
8
------------------------------x
9
New York, N.Y.
10
June 6, 2000
11 4:40 p.m.
12 Before:
13 HON. LEWIS A. KAPLAN,
14 District Judge
15 APPEARANCES
16 PROSKAUER ROSE, LLP
Attorneys for Plaintiffs
17 CHARLES S. SIMS
NANCY KILSON
18 CARLA M. MILLER
19 FRANKFURT, GARBUS, KLEIN & SELZ
Attorneys for Defendants
20 MARTIN GARBUS
EDWARD HERNSTEAD
21
BARBARA COHEN
22 General Counsel for Intervenor Village Voice Media
23 STEPHANIE S. ABRUTYN
Corporate Counsel for Intervenor Times Mirror
24
MIKE GODWIN
25 Senior Legal Editor for E-Commerce Law Weekly
Pro Se Intervenor
2
1 THE DEPUTY CLERK: Universal v. Corley.
2 Is plaintiff ready?
3 MR. SIMS: Yes.
4 THE DEPUTY CLERK: Defendant ready?
5 MR. GARBUS: Yes, your Honor.
6 THE COURT: The first order of business here is the
7 motion to intervene.
8 Is there any objection to the motions by the Times
9 Mirror and the Village Voice?
10 MR. SIMS: The plaintiffs have no objection, your
11 Honor.
12 MR. GARBUS: Defendants have no objection.
13 THE COURT: Those two motions are granted.
14 We next have this motion to intervene by Mike Godwin
15 and Declan McCullagh. That motion is not filed by a member of
16 the bar of this court, but I will consider it as a motion by
17 Mr. Godwin to intervene pro se.
18 Is there any objection to that motion?
19 MR. SIMS: Plaintiffs have no objection.
20 MR. GARBUS: We have no objection.
21 THE COURT: Is Mr. Godwin here?
22 MR. GODWIN: Yes, sir.
23 THE COURT: Do you want to be heard on that motion,
24 on the motion to intervene, not the merits yet?
25 MR. GODWIN: No, sir.
3
1 THE COURT: Then the motion to intervene by
2 Mr. Godwin and Mr. McCullig is granted to the extent that
3 Mr. Godwin is permitted to intervene pro se, and
4 Mr. McCullig's application is denied on the ground that it is
5 not filed by a member of the bar of this court.
6 All of the motions to intervene are granted for the
7 limited purpose of opposing the plaintiffs' motion for a
8 protective order.
9 We will move to the motion for protective order, and
10 I will hear from the plaintiff.
11 MR. SIMS: Your Honor, do you care whether it is from
12 the table or from the podium?
13 THE COURT: Let's use the lectern.
14 MR. SIMS: My name is Charles Sims, and I represent
15 the plaintiff on this motion.
16 We seek relief in three forms: first, relief to bar
17 the press from attending the deposition; second, barring the
18 posting of the deposition transcripts to the Internet; and,
19 third, we would ask the court to enter the confidentiality
20 stipulation that's been signed by the parties and presented to
21 the court some days ago.
22 THE COURT: It was signed by the court yesterday
23 before I got any objection from anybody on it.
24 MR. SIMS: Oh. I don't think there is objection, so
25 I am --
4
1 THE COURT: One of the media people argued that I
2 shouldn't sign it, and I will be prepared to hear about that
3 later, but let's go ahead.
4 MR. SIMS: First, your Honor, with respect to press
5 presence in the depositions, there is no right under the First
6 Amendment or common law or otherwise of press attendance at
7 depositions. Depositions are historically nonpublic events.
8 Seattle Times makes that very clear. It says: "Pretrial
9 depositions and interrogatories are not public components of a
10 civil trial, were not open to the public under common law and
11 in general were conducted in private as a matter of modern
12 practice." I am sure the court knows that, to be sure. It
13 was the case, for example, in Jones v. Clinton -- a matter of
14 some public interest and notoriety -- when that deposition was
15 held with the press not admitted.
16 The Second Circuit has addressed generally the
17 standards in U.S. v. Amodeo and applied them twice, citing
18 that case afterward. It is clearly the controlling case, and
19 Amodeo held that "documents that play no role in the
20 performance of Article III functions, such as those that pass
21 between the parties in discovery, lie entirely beyond
22 presumption's reach."
23 I want to be clear that the motion here deals with
24 depositions to the extent that they have merely been taken and
25 not presented at trial or in connection with any motion.
5
1 Obviously those raise somewhat different issues, and the court
2 would deal with them at the appropriate time. But the point
3 now is that merely because a deposition is taking place, the
4 press has no right of access to it.
5 This court's decision in Paisley Park followed that
6 principle applied by the Supreme Court in Seattle Times and
7 Adomeo. It held that videotaped depositions should be kept
8 out of the press, which I think is really equivalent of saying
9 the press couldn't have come in, where it appeared that the
10 defendant was going to place the deposition on a Web site.
11 THE COURT: That case was a little bit different in
12 the sense that it was reasonably clear that the reason there
13 was a litigation was to generate content for the Web site.
14 MR. SIMS: Obviously the court is more familiar with
15 precisely what led to that decision than I can be, but I do
16 think it is clear from that case and the other cases we have
17 cited in briefs that the press generally has no right to
18 attend depositions, and we have cited many of those cases.
19 They include Magistrate Judge Peck's decision in Bal v. Hughes
20 and Kimberlin v. Quinlan, where Judge Harold Greene held there
21 was no right of press access to depositions and, indeed, no
22 need to apply "good cause" standard even.
23 The Times Newspaper's decision, which is cited in
24 Kimberlin and which is really the most scholarly of all the
25 decisions, is at 387 F.Supp. It is very interesting. It
6
1 notes that the First Congress, the week it adopted and
2 proposed the First Amendment, passed a statute that said that
3 depositions couldn't be used if they were open, and the
4 Supreme Court a year later had a decision, also cited in the
5 Times Newspaper case, where they affirmed the lower court
6 which had held that a deposition couldn't be used merely
7 because it had been opened.
8 There is a recent case, Amato v. City of Richmond,
9 which we cited, in the Eastern District of Virginia, which
10 also held that the press could not be admitted to discovery
11 depositions, and the court pointed out that "allowing the
12 media to attend every deposition in any case of public
13 interest would significantly hinder the discovery process and
14 burden the courts with increased litigation over discovery
15 issues."
16 I do want to point out that here the confidentiality
17 stipulation, which has now entered as an order of the court,
18 provides for a 15-day period during which a deposition can be
19 marked fully confidential to give counsel time to review it
20 with a view toward more narrow assertions of confidentiality.
21 That provision would, of course, be rendered a nullity if the
22 press were simply allowed to come into depositions.
23 The Seventh Circuit, in a case we didn't cite, In Re:
24 Associated Press, 162 F.3d 503, also recently held that there
25 is no right of access to discovery materials not yet committed
7
1 to the record.
2 Another provision which makes it clear, I think, is a
3 provision of the antitrust law, 15 U.S.C. 30, which expressly
4 provides, for antitrust cases, that those depositions are open
5 to the public. That provision of law, that statute makes no
6 sense except on the understanding that, generally speaking,
7 depositions are not public events.
8 Let me turn, if I might, then, to the question of the
9 availability of deposition transcripts or their posting to the
10 Internet. The same authorities which I have just referred to
11 and which we cite in our briefs make plain that deposition
12 transcripts not yet presented to the court on any
13 adjudication -- at trial or in connection with any motion --
14 are also not subject generally to public view, and they are
15 not presumptively public. And certainly, if the "good cause"
16 standard applies, it is rather easily met.
17 Here let me focus on the three kinds of harm and
18 three justifications for good cause which I think warrant the
19 protection we sought and seek.
20 First, there are reasonable grounds to apprehend harm
21 to individuals, representatives of the MPAA and the
22 plaintiffs, who are engaged in antipiracy efforts. We have
23 submitted to the court in connection with the Jacobsen
24 declaration just a sampling of the E-mails we have received.
25 I think many of them are chilling. Their excuses in some of
8
1 the opposing papers to sort of make light of them or to say
2 that "boys will be boys," I don't think the standards
3 applicable here require the court to take that position or to
4 impose those kinds of risks and anxieties, frankly, on the
5 prospective deponents.
6 Second of all, there are reasonable grounds for
7 apprehending harm to the MPAA's antipiracy efforts. Just as
8 methods and source of law enforcement, when undertaken
9 directly by the FBI or other law enforcement agencies, is
10 subject to some kinds of protection under the "good cause"
11 standard, so too the MPAA's and the plaintiffs' antipiracy
12 efforts, which are undertaken in conjunction with law
13 enforcement, ought to be subject to the same kinds of
14 protections, where necessary, to protect methods and sources,
15 as is present here.
16 And, third, as this morning's deposition of
17 Mr. Valenti in Washington, which I didn't attend, but I have
18 gotten a report on -- Mr. Garbus did attend -- I think makes
19 plain, and we will present the court as soon as possible with
20 a transcript, there are reasonable grounds for believing that
21 the depositions are being conducted for an improper purpose,
22 really the same purpose or a very similar purpose to that in
23 Paisley Park. That is, questions are being asked not to
24 obtain any admissible testimony or any evidence that would
25 lead to admissible testimony or evidence but to create a
9
1 transcript full of "I don't know" answers that, once posted on
2 the Internet or otherwise publicized, would be used to show
3 witnesses to be ignorant or otherwise to embarrass them. And
4 the cases make plain -- I will come to those in a moment --
5 that that is an additional ground fully warranting the
6 protection we seek.
7 Let me turn to that, because I think you have, in
8 connection with the harm to persons, the E-mails before you in
9 connection with the antipiracy efforts. Mr. Jacobsen also
10 supports that effort but, obviously, the matter of the Valenti
11 deposition and the questions that were asked today and to some
12 extent at yesterday's deposition are the ones that also
13 definitely bear some questioning.
14 Mr. Garbus asked questions along the following lines,
15 and he asked, I am told, more than 20 questions along these
16 lines. Here is one of them: If a professor provided a copy
17 of DCSS to a student for instructional purposes and a student
18 took notes and then went to a dorm room and gave the notes to
19 his roommate and the roommate then used that copy of DCSS to
20 decrypt a DVD, would that be illegal, Mr. Valenti?
21 Mr. Valenti is not a lawyer. Whether or not he is a
22 lawyer, the question is outrageous and preposterous and a
23 waste of everyone's time. A series of questions like that,
24 which I am advised took up half this morning's deposition, can
25 plainly have no other purpose -- at least we have been unable
10
1 to figure one out -- other than to simply collect a deposition
2 transcript full of "I don't know" answers, which they got, to
3 try to create some embarrassment or ridicule for an executive
4 to keep answering "I don't know." It is not Mr. Valenti's
5 reason to know the answers to those questions, and it is
6 certainly not the use of a deposition properly undertaken to
7 inquire into those matters. And certainly here they give
8 great reason to believe that there is an ulterior motive to
9 the questioning that is going on. As I say, there are over 20
10 of those kind of hypotheticals.
11 Another example, Mr. Garbus handed Mr. Valenti an
12 op-ed piece he had published in the Los Angeles Times some
13 months ago, which quoted one of the defendants in this case,
14 and that quotation from the defendant -- not from
15 Mr. Valenti -- had a reference to a burner recording device,
16 and he asked him whether --
17 THE COURT: I am sorry. To a what?
18 MR. SIMS: A burner recording device.
19 And they asked Mr. Valenti did he know what that was,
20 and he said no. And they said: You mean you wrote this
21 without knowing what it says?
22 Again, it is hard to imagine any litigation purpose
23 for any such question. I think it warrants the questions
24 raised as to whether or not these depositions are being taken
25 for a proper purpose and the relief sought, namely, barring
11
1 the posting of these to the Internet, because the purposes of
2 discovery are to further the litigation and not for other
3 purposes.
4 Seattle Times emphasizes the court's power to avoid
5 abuse of discovery by protective orders and the court's power
6 to protect privacy and reputation and other interests, whether
7 or not specified in Rule 26, and to avoid oppression, abuse
8 and injustice, and it emphasizes that no heightened or special
9 First Amendment scrutiny is applicable.
10 THE COURT: But you don't need the relief you are now
11 seeking at this stage, do you? You have an order that permits
12 you to designate, at the outset, a deposition that is
13 confidential, pending receipt of the transcript and a review
14 of the transcript, whereupon you may particularize
15 designations of confidentiality. To the extent you don't
16 designate, then you are indicating you have got no problem
17 with it.
18 What is wrong, hypothetically, with somebody
19 publicizing portions of a transcript as to which you had an
20 opportunity to object and failed to do so?
21 MR. SIMS: Your Honor, if the question implies that
22 we essentially have a right of self-help and could designate
23 as confidential any material which would, in our view,
24 reasonably be such to challenge, which would cause any of
25 those harms, then I suppose the court might be right. That
12
1 would lead to a much greater, I think, range of designations
2 than would be the case if we took a narrower view of
3 confidentiality.
4 THE COURT: Sure, but you are asking me to throw the
5 baby out with the bath water right now. You are saying that
6 because three or four questions, that you just summarized to
7 me, asked during Mr. Valenti's deposition in your view were
8 asked for the purposes of harassment -- and I would be
9 inclined to agree that the ones you summarized may well have
10 been, if they are accurately summarized -- I should,
11 therefore, prohibit perfectly appropriate questions as to
12 which there is no real issue as to confidentiality or
13 embarrassment or anything else.
14 Why should I do that?
15 MR. SIMS: Your Honor, I think the reason you should
16 is that the reasons the courts gave in the Word of God case we
17 cited and some of the others, namely --
18 THE COURT: That's even higher than the Second
19 Circuit.
20 MR. SIMS: It held the attorney general in Texas in
21 contempt, so it may be.
22 I have two responses: one, the confidentiality
23 stipulation does have a definition of "confidential" and the
24 definition does say "when the asserting person in good faith
25 believes that the material contains its trade secrets,
13
1 proprietary information or sensitive commercial, financial or
2 business information" --
3 THE COURT: Did you or did you not designate the
4 whole Schumann and Jacobsen depositions as confidential?
5 MR. SIMS: We have, but we have undertaken in-house
6 the job of narrowing those designations.
7 THE COURT: And in the same period of time that you
8 are undergoing that narrowing process, which presumably you
9 are going to do on every deposition, right, or nearly so?
10 MR. SIMS: Yes.
11 THE COURT: During that same period, if there is
12 material of the kind that you are now describing to me that
13 you think ought not to go on the Web, you are perfectly free
14 to come to me in that intervening period and tell me about it,
15 right? And then I could read it and decide whether I agree
16 with you or not, instead of just gagging everything. Isn't
17 that true?
18 MR. SIMS: Yes, but I think that places a burden on
19 us and on you that doesn't make a lot of sense, because there
20 is an enormous amount in each of these depositions -- the
21 names of all sorts of individuals, the description of all
22 sorts of antipiracy activities.
23 THE COURT: We are wandering. That part of it you
24 are going to do this for anyway.
25 MR. SIMS: Notwithstanding the definition in
14
1 paragraph 2 of the protective order, if we can deem
2 confidential and restrict accordingly material which we think
3 would be harmful to individuals or antipiracy efforts, then I
4 think I don't have a problem.
5 THE COURT: But I am suggesting to you that is in
6 fact what you are doing right now, isn't it, when you walk
7 into a deposition at 9:30 and say: Everything is confidential
8 until we tell you otherwise within 15 days?
9 MR. SIMS: But at the end of 15 days, either we
10 should be able to designate as confidential material that
11 would be harmful to individuals and antipiracy efforts, and
12 maybe in the case of things like the deposition this morning,
13 simply abusive, if we can designate as confidential, retain as
14 confidential after 15 days those materials, subject to their
15 discussing it with us and going to the court thereafter, then
16 I don't have a problem. In other words, if the definition of
17 "confidential" extends that far, so that after 15 days we
18 could protect that material, then I think the court is right
19 that we can solve the problem that way.
20 THE COURT: All right. Go ahead.
21 MR. SIMS: The court having entered the protective
22 order, I think that addresses everything I need to say.
23 I just want to be clear, if we can maintain as
24 confidential after the 15 days the material that causes these
25 harms, that we believe causes these harms, subject to the
15
1 mechanisms of the protective order --
2 THE COURT: The area which is arguably beyond, as you
3 have put it, the current confidentiality order, is stuff which
4 you concede is not trade secret kind of stuff, personal
5 security kind of stuff. It is stuff that you feel
6 uncomfortable --
7 MR. SIMS: Oh, no -- I am sorry, your Honor.
8 THE COURT: Read me the definition.
9 MR. SIMS: Personal security stuff is not now covered
10 by the definition. That's the big part of the problem here.
11 The definition reads, and maybe the easiest way is
12 just to amend it, but the definition reads: "An asserting
13 person may designate as confidential any nonpublic material
14 produced by that person or a third party in the course of
15 discovery or other proceeding when such asserting person in
16 good faith believes that the material contains its trade
17 secrets, proprietary information or sensitive commercial,
18 financial or business information." Maybe "sensitive business
19 information" already encompasses all of that. I will be glad
20 to undertake our designations on that understanding. And if
21 the court's view is that we really have the keys to our
22 protection in our own pocket, we will exercise the designation
23 of the confidentiality in that way.
24 I guess the one other thing that is not necessarily
25 covered would be I know that under the circumstances and given
16
1 the harms threatened and some of the harms laid out in the
2 Jacobsen declaration, there are certainly some prospective
3 deponents who believe that having their name simply posted on
4 the Net would cause them harm in the sense that they would get
5 flamed, they would get lots and lots of obnoxious or
6 anti-Semitic or threatening E-mails, that as this happened to
7 MDAA personnel in the past, their credit records might get
8 hacked into.
9 So the other problem, and the reason we asked for
10 this protection, in addition to the other matters, which maybe
11 we can undertake self-help for under the confidentiality
12 order, is the designation of certain nonpublic people's names,
13 that is, people who are not widely known, whose names aren't
14 otherwise out there and who really do believe and are very
15 anxious about drawing the kinds of responses that this case
16 seems to have drawn so far.
17 THE COURT: "Flamed" in this context has nothing to
18 do with fire, right?
19 MR. SIMS: Nothing to do with fire. It's a Net term.
20 THE COURT: Mr. Garbus.
21 MR. GARBUS: I think the amicus would like to argue,
22 if the court gives them permission to do so.
23 THE COURT: I would like to hear from you first.
24 MR. GARBUS: I agree with the court. I think that
25 there is a confidentiality document, that the confidentiality
17
1 document gives them anything that they need.
2 THE COURT: Do you have any objection to making clear
3 that they would have the right to designate as confidential
4 information which they have a reasonable belief may compromise
5 the personal safety of individuals or which reflects
6 questioning that they assert was conducted for an abusive or
7 improper purpose?
8 MR. GARBUS: Not in those terms.
9 We have already offered that the names and addresses,
10 and that was our offer when the deposition started, the names
11 and addresses -- pardon me, the addresses of all of the people
12 be taken out of the deposition. That was at our suggestion.
13 THE COURT: I understand that.
14 MR. GARBUS: I think that if you were to read the
15 depositions, and I really do think one thing I agree with my
16 friend, and your Honor knows this, the relationship over
17 pretrial discovery has been awful, and I think that --
18 THE COURT: It is setting a new world record for
19 awful.
20 MR. GARBUS: I think so, I think so. And I think for
21 the court to read these depositions would be a less than
22 gratifying experience. I would ask, if I may, that a
23 magistrate be appointed to supervise discovery and to deal
24 with the depositions as much as anything else. I think if you
25 were to read the depositions --
18
1 THE COURT: Mr. Garbus, I am not appointing any
2 magistrate because I know absolutely full well that the result
3 of appointing a magistrate is that first the magistrate will
4 do it, then whoever is unhappy will appeal to me, and I will
5 do it again. I may as well do it in the first place.
6 MR. GARBUS: I would take the magistrate's decision
7 as binding.
8 THE COURT: Let's go ahead. That's not your best
9 point. I have almost never referred anything to a magistrate
10 in the discovery area in six years, and I am not going to
11 start now.
12 MR. GARBUS: OK. Let's talk about what this case is,
13 if I can, and how it is different from the other cases, and I
14 will just talk briefly. I think your analysis in Paisley,
15 along with Agent Orange, really deals with many of the issues
16 in this case.
17 In this particular case, the plaintiffs bring a
18 lawsuit and the plaintiffs -- the MPAA and the motion picture
19 studios -- start a barrage of publicity, and this publicity
20 goes against these defendants and other people. And, in fact,
21 Mr. Valenti, in the article that he refers to, the L.A. Times
22 article -- and, by the way, he was not at the deposition. His
23 interpretation of what happened at the deposition is totally
24 wrong. There were two very competent lawyers -- one from
25 Proskauer and one from the MPAA -- who had every opportunity
19
1 to make objections.
2 THE COURT: That is one of the reasons. The fact
3 that I wasn't there and that Mr. Sims wasn't there is
4 certainly one of the reasons I am very reluctant, on the basis
5 of an oral report, to adopt a blanket rule governing this for
6 all time.
7 MR. GARBUS: We have given you the first three days
8 of depositions and which you will find in those depositions --
9 THE COURT: The only one that I have actually laid
10 eyes on is Ms. Gronich. I think it was just handed down as I
11 came in.
12 MR. GARBUS: You were given three before, I think.
13 It is hard for me, given the flow of papers to this court, and
14 I am sure it is harder for the court --
15 THE COURT: It has been referred to as having been
16 given to me in several communications from your office, but I
17 am not sure that it has actually ever arrived, not that I am
18 inviting it. We have a rule barring the filing of discovery
19 material in this court absent leave, and I would tend to
20 adhere to it here.
21 MR. GARBUS: No, we filed these documents solely with
22 you, and we would file those solely with you.
23 I should point out that the Schumann deposition, they
24 have pages of it in documents that they have filed in court
25 already on a motion before you with respect to the injunction.
20
1 What has happened here thus far is you have, let's
2 say, the Schumann affidavit, and the Schumann affidavit says
3 A, B, C, D, E and F, and that affidavit is released by MPAA in
4 press releases, and then you have the deposition which
5 contradicts the Schumann affidavit line by line by line.
6 What this case is really about is about
7 embarrassment, and all these "I don't knows" is about
8 embarrassment. Your Honor knows enough about the case at this
9 point that the questions that were asked of Mr. Valenti, the
10 questions that were asked of the MPA were questions such as
11 these:
12 Do you know of anyone who has ever used DECSS to
13 decrypt a DVD? Answer: No.
14 Have you ever seen a DVD movie on the computer that
15 has been decrypted by DECSS. No.
16 Do you know how much money has been lost to piracy?
17 12 billion dollars.
18 Can you tell me if one single penny has ever been
19 lost as a result of DECSS? No.
20 The answers are "no" or "I don't know."
21 They then, at the time we get back into when was
22 DECSS first posted, they say it was posted sometime in
23 October. When did Mr. Goldstein first post DECSS? We learn
24 it is three months later.
25 How many other sites posted DECSS from October to
21
1 December? There is a report. They have a report. They did a
2 report. Mr. Schumann, he is their expert. This is the man
3 who gives you affidavits. They refused to give us the report.
4 We have done our own investigation. Approximately
5 100 sites have posted DECSS before our client ever posted it.
6 Then we ask him: Do you know of one person who ever
7 took DECSS from Mr. Goldstein's site and made a copy? I do
8 not. Either "I don't know" or "I don't recall." And we have
9 asked these questions of the people from the studios. We have
10 asked these questions of the people from the MPAA.
11 Of the eight studios, seven have not given us a
12 single document. Where we stand today is, one deposition has
13 been taken --
14 THE COURT: We are talking about a protective order.
15 We will get the documents later. Let's stick to the subject.
16 MR. GARBUS: So Ms. Gronich yesterday -- and what we
17 can do is give you these three depositions, in any event.
18 Mr. Valenti, who was examined this morning, and we
19 took a deposition because the press could not be there, and
20 Mr. Valenti -- and I will read to you now from the Bal case,
21 which I think, along with your case, is very appropriate. I
22 think I will just read a few paragraphs from the Eastern
23 District of New York --
24 THE COURT: This is Judge Raggi's decision?
25 MR. GARBUS: Yes.
22
1 THE COURT: I am familiar with it.
2 MR. GARBUS: So I should not bother to read it?
3 THE COURT: I don't think you need to read cases to
4 me.
5 MR. GARBUS: OK.
6 THE COURT: You attached them to your papers. I
7 remember. I read it.
8 (Continued on next page)
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1 MR. GARBUS: Yes. And this case, like the Rogge
2 case, is a case of high public interest. As you have already
3 indicated in your decision and as Mr. Valenti has already
4 indicated, it is a case of prime importance to the public.
5 Mr. Valenti is someone who is used to being in public. He has
6 handled himself in a very sophisticated way. We both know
7 that he was President Johnson's counsel and for 34 years he
8 has been the head of the MPAA. He has testified endless times
9 before Congressional committees on the very issues that I have
10 asked him about. He has spoken endless times at college
11 campuses and law schools, if you will, on exactly these
12 issues. So the videotape of Mr. Valenti is certainly
13 appropriate for release.
14 THE COURT: Is there a videotape?
15 MR. GARBUS: Yes. Now, with respect to putting stuff
16 on the Internet, you have Mr. Carl Kaplan, who is sitting here
17 in court, from The New York Times. He does the online for The
18 New York Times. There is also another gentleman who writes
19 articles for The New York Times. So, as I understand it, I
20 can give The New York Times man who writes, the deposition,
21 but they are suggesting I can't give the man who does the
22 Internet New York Times the deposition.
23 THE COURT: I don't understand that.
24 MR. GARBUS: In other words, what I understand he is
25 saying is that he doesn't want the depositions posted on the
24
1 Internet, and what I am saying is that if you can give it to
2 one media form -- namely, the print media -- certainly you can
3 give it to the Internet.
4 THE COURT: But if the conclusion were to be that the
5 material that is designated "Confidential" doesn't go to
6 anybody --
7 MR. GARBUS: That's right.
8 THE COURT: -- and material that isn't designated
9 "Confidential" is fair game for whatever medium wants to
10 publish it, where do you stand?
11 MR. GARBUS: Oh, I agree. No, we agree. He was
12 making a distinction.
13 THE COURT: I understand that.
14 MR. GARBUS: You and I agree.
15 THE COURT: It was highly persuasive to Congress on
16 behalf of the judges last year, that distinction.
17 MR. GARBUS: Now, the MPA has a $20 million budget.
18 They have about half a dozen articles that have accused
19 Goldstein of being a liar and a thief. And I think what the
20 depositions indicate are quite to the contrary. It tells you
21 something about who he is, and it tells you something about
22 what transpired here.
23 With respect, again, to the confidentiality, I am
24 very clear that if you were to read the deposition, there
25 would be absolutely you -- or whomever you designate, and I
25
1 gather it would be you -- that there would be no concern at
2 all in your mind concerning the depositions. I think the
3 facts of this case, the public interest issues in this case,
4 require that the press be permitted to be at depositions. I
5 think that the Rogge analysis --
6 THE COURT: If the press is permitted at the
7 depositions, the confidentiality order is a dead letter, isn't
8 it?
9 MR. GARBUS: No. In other words, when they did
10 Mr. Gates, and you had confidentiality issues, what they did
11 is, they had a magistrate judge sitting nearby. Mr. Gates was
12 examined in an auditorium. The confidentiality issues in that
13 case, the secrets or the trade secrets, were as profound or
14 more profound, and the judge worked out a way of doing it.
15 You will find the order in the papers of the amicus that were
16 submitted to you. So you can have the press -- it is
17 standard -- you can have the press.
18 But I must tell you, if you go to the depositions,
19 you will see there are no trade secrets involved in this case.
20 DeCSS, if that comes out, was certainly glad to take it out of
21 the record. We are not interested in any other codes that
22 they have at all. What we are interested in is, the elements
23 of this case. And if you go through, now, four days of
24 depositions, you will conclude that there is not one thing
25 there that you can keep out of confidentiality. There is not
26
1 one thing there that should be kept out for the purpose of
2 security. It has nothing to do with delay.
3 THE COURT: And if I go through four days of
4 depositions, how do I know what is going to happen on the
5 fifth day?
6 MR. GARBUS: They have a confidentiality agreement.
7 THE COURT: There are reporters sitting there who
8 aren't bound by it.
9 MR. GARBUS: No. The way the process was worked out
10 with respect to Mr. Gates and other cases was, the assumption
11 is -- and I have an obligation to the Court -- that I am not
12 going to ask a trade secret in a question so that I blow it
13 all up. The assumption is that I am going to act responsibly
14 and they will have time to object.
15 But the fact is, if you go to the depositions here,
16 at any time you will see the path this litigation is taking.
17 The path this litigation is taking is the path that I just
18 described to you, namely, that there have been maybe a half a
19 million downloads of DeCSS. There has been not one person who
20 we know of who has ever copied from Mr. Goldstein's site.
21 There is not one person that we know of who has ever made a
22 pirated copy from Mr. Goldstein's site. There is not one
23 person that we know of who has ever made a copy of a DVD as a
24 result of a DeCSS. And that is what Mr. Valenti said and that
25 is why they don't want this out, because they have press
27
1 release after press release after press release.
2 THE COURT: That is persuasive only to a point. We
3 are now six weeks away from a trial. If they can't remotely,
4 as you suggest, prove the allegations they have made in this
5 case, embarrassment on the Internet is going to be the least
6 of their problems, because I am going to call this case, one
7 way or another. Obviously, listening to the two of you,
8 somebody is full of baloney. I won't have any hesitation
9 about saying who it is when I see the evidence. So, while I
10 understand this embarrassment notion, I understand both sides
11 are conducting as much of a public relations campaign as a
12 lawsuit, maybe more, but the game all stops next month.
13 MR. GARBUS: Your Honor, with respect to their
14 designation of confidentiality -- and this gets again to
15 discovery issues -- on May 15 they were supposed to get back
16 to us within 15 days. They have not. We have had depositions
17 now May 15, 17 and 18. They were supposed to get back to us.
18 They have not. It relates to all the other discovery issues.
19 We have no documents from the seven plaintiffs --
20 THE COURT: Let's get back to the protective order,
21 please.
22 MR. GARBUS: With respect to the protective order,
23 then, I am comfortable with the point that I have made. The
24 Second Circuit has stated its rule in the Agent Orange case
25 that there is a presumption of access that the public has,
28
1 absent a good-cause showing. I have read the Jacobsen
2 affidavit. I must tell you I have practiced law for a long
3 time in the First Amendment area; I have never seen an
4 affidavit submitted like that. It is an affidavit based on
5 E-mails of people who are angry and then it relates to an
6 incident in Malaysia, and this is the prime allegation in the
7 Jacobsen affidavit.
8 By the way, many of the same people whose name they
9 are trying to keep secure gave interviews to the press and are
10 featured in the press. Mr. Jacobsen, for example, has been in
11 the press a great deal. And if you go on to the MPA --
12 THE COURT: You are not suggesting they are trying to
13 keep his name secret, are you?
14 MR. GARBUS: He was one of the people deposed.
15 THE COURT: One of what people?
16 MR. GARBUS: One of the people deposed.
17 THE COURT: I understand, but you are not suggesting
18 they are trying to keep his name secret?
19 MR. GARBUS: No, his address secret.
20 THE COURT: And you agreed to that.
21 MR. GARBUS: Yes. I am saying he can be located.
22 The MPA web site has the names of all its officers and it
23 tells you exactly where they are. But, in any event, we have
24 agreed to take that out.
25 The sole allegation that they make here -- there is
29
1 no trade secret issue, and I think the deposition will show
2 that -- the sole allegation they make is that Mr. Jacobsen
3 makes an affidavit which says -- oh, by the way, all the
4 E-mails that they annex were in January. There have been no
5 E-mails in February, March, April or May that we know about.
6 Some of the E-mails that they have given us are redacted. The
7 E-mails apparently are of such concern to them that he did
8 nothing about it. They are just angry letters. Some people
9 support the MPA; some don't. I suspect the MPA gets this
10 many, and I suspect if you get involved in a controversial
11 case you will also get this many.
12 The key to the affidavit here is that on May 24,
13 2000, a country manager for the MPA in Malaysia was returning
14 home from dinner with a female friend when the two were
15 confronted by a man, the face was slashed, inflicting a wound
16 which required 22 stitches to close. He doesn't tell us where
17 he gets this information; he tells us nothing about it. I do
18 not suggest the defendant is responsible for this attack. I
19 believe, based on circumstances known to me, that the attacker
20 intended to hurt the MPA representative. That is the sole
21 allegation. The Seattle Times and all the other cases talk
22 about factual affidavits from a presumption that the public
23 doesn't have access. The factual papers that they have
24 submitted here with respect to injury are worthless. I have
25 never seen such a low level in an access case. With respect
30
1 to trade secrets, if you see the depositions, you will see
2 there is absolutely nothing there. Thank you.
3 THE COURT: All right. Ms. Abrutyn?
4 MS. ABRUTYN: The one thing that is clear about this
5 case and about a lot of the cases cited by both parties is
6 that there is a great deal of acrimony between the counsel for
7 the plaintiffs and the defendants. That is a perfect example
8 of the reason why we need to be here. The Second Circuit has
9 held in the Agent Orange case, and the Southern District in
10 other cases affirmed, that there is a presumption of access;
11 that Rule 26 means that deposition discovery is open to the
12 public unless there is good cause shown.
13 THE COURT: What is your answer to Amodeo?
14 MS. ABRUTYN: My answer to Amodeo is that even Amodeo
15 recognized that there was a presumption of access.
16 THE COURT: To give it substantially no weight as
17 regards material passing simply between the parties or unless
18 it becomes a subject on the basis of which Article III power
19 is exercised.
20 MS. ABRUTYN: In the Amodeo case, the Court raised a
21 couple of issues as to why some of the material in that case
22 wasn't entitled to public access. But even when the Court
23 noted the presumption was weak, it still said there was access
24 to some material, and then it said some parts of the report
25 militate against unsealing. They are hearsay, they may
31
1 contain misinformation, material which is untrustworthy or
2 simply incorrect, because in that case we were talking about a
3 report prepared by a court officer. When you are talking
4 about a deposition under oath by a witness that has a
5 potential of being trial testimony or used at trial, those
6 concerns don't exist.
7 THE COURT: Nobody is talking, at the moment anyway,
8 about testimony under oath at trial.
9 MS. ABRUTYN: No, but Mr. Valenti, as far as I know,
10 is not within the subpoena power of the Southern District of
11 New York, so it is certainly reasonable to assume that there
12 is a possibility that his deposition might serve --
13 THE COURT: Could be used as evidence at trial, in
14 which case, barring extraordinary circumstances, it would be
15 fair game; right?
16 MS. ABRUTYN: True. And at this point what the
17 Southern District has held, and Amodeo recognizes it, is that
18 sometimes material that is discovery material is not open to
19 the public and sometimes it is.
20 THE COURT: Isn't part of the balance here that I
21 have to consider the practical reality of getting this case
22 ready for trial and resolved in some reasonable span of time?
23 What I mean by that is that I would estimate that already this
24 case has consumed more of my time in refereeing discovery
25 disputes in the year 2000 than the entire balance of my docket
32
1 for the last two years combined. And it is going downhill
2 fast. I am prepared to spend that time, but I have a feeling
3 that if you folks are sitting at depositions and Mr. Garbus
4 asks a question and Mr. Gold or Mr. Sims says, "That's an
5 outrageous question, I want to exclude the press here, because
6 we are going to the judge to get that answer sealed," you are
7 then going to be carrying on that you don't think it is so
8 outrageous, and we are going to be in a circumstance in which
9 I may be spending most of every day refereeing these fights
10 about access on a question-by-question basis. Then, come
11 July, instead of a trial, what we will have is Mr. Garbus
12 saying, with considerably more justification than he is saying
13 now, "I haven't yet gotten any discovery."
14 MS. ABRUTYN: Well, two responses. On the practical
15 front, in fact the way things stand now without the press
16 present at the depositions, your Honor is in a position where
17 he is going to have to review every deposition transcript in
18 the case.
19 THE COURT: Don't count on it.
20 MS. ABRUTYN: If you look at what happened in the
21 Agent Orange case, what you had there was a practical
22 situation created by the very kind of confidentiality and
23 protective order that we are trying to avoid in this case. If
24 you look at what happened in the Microsoft case, the way that
25 proceeded was that the depositions of Bill Gates and some
33
1 other people were taken in a public forum. Journalists were
2 permitted to be present. The party taking the deposition was
3 requested to keep all of their questions that were likely to
4 elicit legitimate confidential information -- we recognize
5 that there is some information clearly that is going to be
6 legitimate confidential -- they were requested to keep all of
7 those questions to the end. At the same time, counsel for the
8 witness and the other parties were required, at any point if a
9 question was inadvertently going to elicit confidential
10 information, to speak up and ask the opposing counsel to save
11 that until the end. Once the public part of the deposition
12 was completed, counsel got together, advised the members of
13 the media what the general subject matters were of the areas
14 that they believed were going to be confidential. At that
15 point the media had an opportunity to object, involve the
16 judge, or not involve the judge, whatever the case may be,
17 based on their judgment, and the rest of the deposition
18 proceeded without the presence of the media.
19 THE COURT: But aren't there two rather salient
20 differences between Microsoft and this case? Difference
21 number one is that there is an Act of Congress that says that
22 Microsoft was governed by different law, in that Congress
23 prescribed that the deposition be public, a statute that does
24 not apply here.
25 MS. ABRUTYN: Agreed.
34
1 THE COURT: The second difference is that I have had
2 the pleasure of presiding over this case for a period of time
3 with these lawyers, and I have an insight into what is going
4 on in this case. I am able to reach an informed judgment as
5 to just how successful that sort of effort at cooperation
6 between these lawyers would be likely to be.
7 MS. ABRUTYN: That is also correct. But at the same
8 time, your Honor, the public has a significant interest in
9 this case. The public has been invited to pay attention to it
10 by both the plaintiffs and the defendants. You said they are
11 waging a PR battle. The public has expressed concern through
12 the E-mails attached to the plaintiffs' motion that the
13 judicial process is not going to work the way it should work
14 in this case. As a result, it is even more important here
15 that whatever takes place --
16 THE COURT: I have every reason to suppose that all
17 these E-mails that I have been the happy beneficiary or
18 recipient of were generated by one side or the other, or at
19 least most of them.
20 MS. ABRUTYN: I have no reason to suppose anything
21 regarding those E-mails, other than that they exist and were
22 attached to a pleading in this case.
23 THE COURT: I keep getting amicus briefs that say
24 they are submitted by people who have no connections to either
25 side in this case, and they come on Mr. Garbus's letterhead.
35
1 MS. ABRUTYN: I have no knowledge of that and I can't
2 speak to it.
3 THE COURT: I have at least one, maybe two.
4 MS. ABRUTYN: What we have here is -- I will go
5 back -- this case is different than Amodeo because in this
6 case the plaintiffs are the ones who filed the case, they came
7 to the court voluntarily, they have generated publicity about
8 the case, they have sought to invite the public's interest in
9 the case. We have Agent Orange, which predates Amodeo, but
10 wasn't overruled by it, which says that, in the Second
11 Circuit, depositions are presumptively open to the public,
12 absent a showing of good cause, and the burden is on the party
13 seeking a protective order to show good cause.
14 THE COURT: Nobody denies that there is a public
15 interest. Why isn't the public interest served adequately by
16 releasing the nonconfidential portions of the transcripts,
17 maybe even more quickly than the parties' agreement
18 contemplates?
19 MS. ABRUTYN: Obviously, that is, short of attendance
20 at the depositions, clearly something that we think would be
21 required. But, frankly, we think the Supreme Court has
22 recognized in a number of access cases that if you delay
23 access you are essentially denying the right of access, in one
24 sense or another. In this particular case, if there was a
25 need to exclude the public, if a good cause was shown for
36
1 excluding the public and the press from the deposition, then
2 obviously that would be the appropriate remedy. But in this
3 case there are other remedies, short of excluding the public
4 and short of excluding the press, that take care of the
5 concerns raised by the plaintiffs for confidentiality, that
6 take care of these issues. What the Second Circuit has ruled
7 is that when there is a presumption of access, there has to be
8 some showing that the closure or exclusion of the press
9 outweighs the public's interest and the press's interest in
10 attending these depositions.
11 We respectfully believe that, given the significance
12 of this case, given the fact that the plaintiffs have invited
13 public scrutiny and press scrutiny, that countervailing
14 factors do exist. This is not all that different from the
15 Rosenbaum case. In that case the subject matter of litigation
16 was of high public interest. The logistical issues were able
17 to be remedied by less restrictive needs, which is exactly
18 what we are suggesting here. I think that the Microsoft case,
19 legal distinctions aside, does demonstrate that even in the
20 most extraordinary circumstances there are less restrictive
21 means to deal with issues of confidentiality and trade
22 secrets.
23 THE COURT: Your comment about "legal distinctions
24 aside" reminds me of the crack about the person who said to
25 Mary Todd Lincoln, after the show at Ford's Theater: "Aside
37
1 from that, Mrs. Lincoln, how did you like the show?"
2 MS. ABRUTYN: Let me rephrase that. The fact that
3 the access was granted in that case, federal dealings with
4 antitrust cases aside, the Second Circuit has spoken on the
5 subject of press access. There is a presumption. Seattle
6 Times doesn't overrule that. The Seattle Times just said that
7 an appropriate protective order --
8 THE COURT: But Amodeo then says what weight the
9 presumption has in different circumstances, and it says that,
10 in a case like this, at this stage, at this time, it is darn
11 little.
12 MS. ABRUTYN: Even in Amodeo, where it says the
13 presumption was weak and where you didn't have a plaintiff who
14 was seeking to block access and where you didn't have a
15 plaintiff who invited public scrutiny and invited the press,
16 and where you arguably had a case that was of less public
17 interest than this one, that involves a lawyer's conduct. In
18 this case we have the seminal issues relating to the Digital
19 Millennium Copyright Act; we have all of the major motion
20 picture studios in the country. We clearly have a much
21 greater public interest here. We have the public invited to
22 pay attention to the case by the very party that is trying to
23 prevent public access. We have evidence, which can be taken
24 or not taken at face value, that the public is concerned about
25 the judicial process in this case. On the other side of that,
38
1 we have plaintiffs, as I said, who have invited scrutiny.
2 So I think that, even if you apply the Amodeo
3 balancing test, starting with the weak presumption, which I
4 think isn't necessarily accurate here --
5 THE COURT: Weak or not, nonexistent at this stage.
6 Am I not accurate in that?
7 MS. ABRUTYN: I don't believe that depositions taken
8 under oath ever qualify as nonexistent, based on the fact that
9 the materials are obviously relevant to the lawsuit. We are
10 dealing with parties that designated --
11 THE COURT: You say "obviously relevant," but no
12 determination to that effect has yet been made. That is the
13 whole point about depositions.
14 MS. ABRUTYN: True, but if these people didn't have
15 something relevant to say, I would presume that the plaintiffs
16 would not be voluntarily offering them up in deposition.
17 THE COURT: My understanding of what is going on here
18 is that basically they are not voluntarily offering them up
19 and the whole thrust of one of them here in a few minutes is
20 their contention that they have little, if anything, relevant
21 to say and that Mr. Garbus is off on a giant fishing
22 expedition as part of his PR campaign. I am not endorsing
23 that view; I am simply reporting it to you.
24 MS. ABRUTYN: Even if that is the case, there are two
25 possible remedies. The first one is that your Honor could
39
1 rule the depositions shouldn't go forward in the first place,
2 in which case there would be nothing to have access to, if
3 Mr. Garbus is off on a fishing expedition.
4 THE COURT: I am not accusing him alone.
5 MS. ABRUTYN: Or if both sides are --
6 THE COURT: This is a bass tournament.
7 MS. ABRUTYN: If it is, that alone has got public
8 interest. That alone, the way it is being conducted, is of
9 public interest. If the depositions are not being conducted
10 in a proper way, that also is of public interest. This is a
11 significant, important case. If it is being conducted by the
12 lawyers in such a way that perhaps it is not going to result
13 in straightforward responses to relevant questions, then that
14 is why the press needs to be there, to essentially be able to
15 report on what is going on here and to have it reported in a
16 way that provides the public who is going to be judging the
17 outcome with an accurate view of how we got to that outcome.
18 THE COURT: Thank you. Ms. Cohen?
19 MS. COHEN: Good afternoon, your Honor. I am going
20 to try to keep my comments brief and rely on previous
21 counsel's argument as much as possible to avoid duplication.
22 But, as far as your questions about Amodeo go, I do want to
23 point out that in In Re Agent Orange the Court was discussing
24 Rule 5(d), which, of course, was supplanted in the Southern
25 District because of the overwhelming volume of discovery. But
40
1 it is my understanding it is solely because of that.
2 Otherwise the presumption, in terms of filing and accessing
3 discovery, still stands. In In Re Agent Orange, the Court
4 stated, citing the Chairman of the Advisory Committee on Civil
5 Rules: A judge would not be expected to excuse parties from
6 filing materials in any case in which the public or the press
7 has an interest. The Court discussed that the general public
8 should be afforded access to discovery materials whenever
9 possible, noting that access is particularly appropriate when
10 the subject matter of the litigation is of especial public
11 interest.
12 Here, for the reasons that several courts in this
13 district and elsewhere have noted, the plaintiffs have gone to
14 great lengths to publicize this matter and to raise the
15 public's awareness of grave concerns. They say that all
16 consumers should be concerned and should watch this case
17 closely. But now, apparently when it no longer behooves them,
18 they want to select what the public should have access to.
19 The public seems to already have a concern that the
20 judicial process is going to be lost and distorted in this
21 tug-of-war.
22 THE COURT: Where does that manifest itself?
23 MS. COHEN: Among other places, in the submissions by
24 the plaintiff. There is an E-mail in which somebody says
25 exactly that.
41
1 THE COURT: Is that the one that said he was going to
2 kill all the lawyers and judges?
3 MS. COHEN: No, it is a different one. Also, as far
4 as the responses to your questions about Amodeo go, there is
5 the possibility that this case may be settled before trial.
6 As the Court noted in Coster, which is at 93 Federal Rules
7 471, given this possibility that many civil cases are settled
8 before trial, that fact needs to be considered in terms of
9 making determinations in terms of access.
10 THE COURT: If it were sealed before trial, there
11 would be nothing to stop you from coming in and applying to
12 unseal it; right?
13 MS. COHEN: This does go to my additional point
14 having to do with the confidentiality agreement and, you are
15 correct, but, as Ms. Abrutyn has pointed out, the Supreme
16 Court has noted in access cases that any delay has some
17 bearing on the press and the public's rights, the rights that
18 are at stake in access motions, and need to be considered.
19 The other point that I would --
20 THE COURT: Let me ask you something. Is the Village
21 Voice publicly held?
22 MS. COHEN: No, it is not, your Honor.
23 THE COURT: If you were in litigation with the
24 Internal Revenue Service over your tax returns, do you think
25 that the public has a right of access to the Village Voice's
42
1 tax returns and the schedules of salaries it paid to its
2 employees and bonuses it paid to its employees?
3 MS. COHEN: There is a presumption that there was
4 access. So, to that extent, the parties trying to seal that
5 would have to show good cause. Having said that, I do think
6 that there are circumstances in which there is good cause to
7 protect information, and I think that there is good cause in
8 this case to protect limited categories of information. We
9 don't object to that extent. However, as to broad ranges of
10 information that would be shielded from public view, not just
11 during the discovery but even once the documents are filed
12 with the Court, and then thereafter, under the parties'
13 confidentiality agreement, the public would be barred access.
14 THE COURT: Let's get down to cases. There have been
15 concerns expressed about information that might conceivably
16 pose a threat to the personal safety of some individuals. Do
17 you have any problem about that?
18 MS. COHEN: No, we have no problem with that.
19 THE COURT: There have been concerns expressed about
20 technical information relating to encryption methods and
21 things of that nature that the MPAA is involved in or others
22 involved in this case may be involved in, to protect
23 copyrighted material. Do you have any problem with that being
24 confidential?
25 MS. COHEN: To the extent that what the plaintiffs
43
1 are trying to protect here is that very code, to the extent
2 that the information that would be in discovery would go to
3 the very thing they are trying to protect, no, I wouldn't
4 object during the course of discovery. However, once the case
5 goes to trial and then thereafter, I believe even that
6 information should be available to the public, to the extent
7 that, depending on --
8 THE COURT: So you think if they bring a lawsuit here
9 in which, by hypothesis, they establish the proposition that
10 this DVD code and the manner in which they encrypt the
11 copyright materials is in fact legally protected, the price of
12 establishing that right is that they have to disclose it?
13 MS. COHEN: No, I am sorry, I didn't mean to give you
14 that impression. I am saying that if in this case it is
15 determined that this is not protectable information, then I
16 think the public has a right to it. However, under the
17 confidentiality agreement that the parties have agreed to, my
18 understanding is that there would still be a protective shield
19 to public view. So I think the very reason the court in Tyson
20 and the court in Texaco and the court in Rosenbaum --
21 THE COURT: Let me go to the next category of
22 information. They suggest various kinds of anti-piracy
23 efforts, just as the New York City Police Department
24 presumably has undercover drug operations going on. Do you
25 think there is a right of public access to what those methods
44
1 are and who is involved in them?
2 MS. COHEN: I don't quite understand what they are
3 referring to there, how broad their category would be.
4 THE COURT: Neither do I.
5 MS. COHEN: There is plenty of information on the MPA
6 web site itself going right to the heart of that. They speak
7 about that. Jack Valenti testified in front of Congress about
8 that.
9 THE COURT: Saying they are doing it.
10 MS. COHEN: Saying they are doing it and describing
11 some of the steps that they are taking.
12 THE COURT: Suppose they have undercovers out there
13 trying to buy counterfeit material or pirated material.
14 MS. COHEN: I don't think their identities should be
15 revealed.
16 THE COURT: Do you think the fact that they have
17 undercovers out there should be revealed?
18 MS. COHEN: That is public knowledge. I have read
19 that myself.
20 THE COURT: All right. I don't know that, but I am
21 just using examples. The basic point is that you agree that,
22 as to confidential information about specific methods and
23 identities of people involved in combating piracy, there is
24 good cause for protecting that. Right?
25 MS. COHEN: It appears to be so.
45
1 THE COURT: All right.
2 MS. COHEN: My concern about the confidentiality
3 agreement is its breadth and its reach in terms of time as
4 well.
5 THE COURT: I understand that. Now, please come to
6 the point that I addressed to your colleague, Ms. Abrutyn.
7 There is a practical concern here about moving this case from
8 point A to point B. How am I supposed to deal with that under
9 your view of life? Doesn't it mean that I or at least some
10 judicial officer has to sit there minute by minute with these
11 people and with you to resolve, in an extremely expedited
12 circumstance, disputes about what is and what isn't precisely
13 within one of these categories that you and I agree ought to
14 be protected?
15 MS. COHEN: Your Honor, there are several cases in
16 which the parties have been able to live with just such
17 protocols. In Microsoft, the questions that would be most
18 likely to elicit confidential information were held to the
19 end. There were directions in terms of: If a witness's
20 answer looked like it was going to elicit information that
21 would be under the confidentiality agreement, the lawyer for
22 the witness could choose either to have that question held to
23 the non-public portion of the deposition or to have the press
24 excused from the room at that point. I would say that, given
25 what I have seen so far, the counsel's ability to work things
46
1 out together here, the existing protocol in terms of
2 deposition transcripts being designated in good faith is
3 equally problematic, if not more, from my view.
4 THE COURT: Why so? Actually, it cuts the other way,
5 doesn't it? Because here the likelihood that these scorpions
6 in a bottle are ever going to agree between them that anything
7 should be confidential may approach zero, unlike a lot of
8 other cases where everybody simply agrees that they draw a
9 white sheet over everything and that's it. Now, why aren't
10 you better protected in this circumstance?
11 MS. COHEN: Well, I start from the presumption in
12 favor of access. Given that presumption, and given the time
13 constraints, for example, my understanding is that the parties
14 have 15 days --
15 THE COURT: Suppose that were shortened.
16 MS. COHEN: That may satisfy some of the concerns.
17 THE COURT: Suppose it were five days.
18 MS. COHEN: That may satisfy a number of our
19 concerns. I start from the proposition --
20 THE COURT: What percentage of them?
21 MS. COHEN: Not in numbers.
22 THE COURT: Try. I am serious.
23 MS. COHEN: Well, there are certain depositions --
24 one of which has already taken place, Mr. Valenti's, and there
25 is also Michael Eisner -- of individuals who have been at the
47
1 forefront of publicizing these matters and who have made
2 accusations against the defendants. I think that their
3 depositions are particularly susceptible to being viewed,
4 under the cases like Tyson and In Re Texaco and Rosenbaum,
5 where the press should actually be allowed to attend. Putting
6 those to the side, we don't have a list of all the deponents,
7 or any of them, actually, for that matter, but assuming --
8 THE COURT: It wouldn't fit in your Classified.
9 MS. COHEN: I think that an expedited method of the
10 parties' designating things as confidential or otherwise, and
11 then those things to which one party or the other object being
12 put before your Honor, may solve a lot of the issues having to
13 do with most of the deponents that I can imagine. Of the two
14 that I know of, where I don't think that would be the case, as
15 to one we are too late -- Mr. Valenti's deposition -- and the
16 other is Mr. Eisner's deposition, and there may be other
17 witnesses of whom I am unaware who may fall into that same
18 category. In fact, I do believe, at least according to what I
19 read in the defendants' brief, that a deposition of somebody
20 named Attaway is scheduled and that Mr. Attaway, like
21 Mr. Eisner and Mr. Valenti, has been at the forefront of the
22 publicity of this case and testified before Congress. He too
23 may be somebody where the press should have a right to access
24 the deposition itself.
25 The only other thing that I would add is that I do
48
1 think that a reasonable protocol could be worked out in terms
2 of certain depositions to which press attendance is
3 particularly, I think, appropriate, and I would request that
4 your Honor consider that. I would also request that your
5 Honor consider our motion that the confidentiality agreement,
6 as written, not be so ordered. Thank you.
7 THE COURT: That one you are late on.
8 MS. ABRUTYN: May I address your Honor's alternative
9 suggestion for a few moments?
10 THE COURT: Yes.
11 MS. ABRUTYN: With respect to the five days, that is
12 obviously a significant improvement over 15. The concern that
13 I would have about that is twofold. The first one is, Mr.
14 Sims up here noted that there were "enormous amounts of
15 information," and assuming that that is the case and that you
16 are correct that the parties are not likely to bring on
17 anything, there are some concerns about the length of time,
18 frankly, that your Honor would need in order to appropriately
19 do your job of refereeing between the two parties. With
20 respect to other information, if the parties were in fact to
21 agree on confidentiality, then there is no provision
22 whatsoever for us to even know that it exists or what the
23 topic might be; whereas if we were at the deposition and the
24 question were asked, we would at least have the knowledge that
25 we need in order to come in and challenge it if we felt that
49
1 that was appropriate.
2 The Procter & Gamble case specifically said that
3 parties should not be able to adjudicate their own case based
4 on their own self-interest by having a broad-based
5 confidentiality order and being able to designate what they
6 think is confidential. I think that when you are dealing with
7 depositions in this case of individuals who are in fact hot
8 competitors of their co-plaintiffs, the chances that sensitive
9 confidential information is likely to be elicited in
10 deposition is low enough.
11 THE COURT: With all due respect, Ms. Abrutyn, that
12 is really a naive argument. They are hot competitors. The
13 one area in which they are not hot competitors -- there may be
14 others -- surely is the mutual interest they all share in
15 protecting the copyright that they all have in their work
16 product. For that purpose they have a trade association, and
17 I suppose that DVD copy control association, and they are not
18 competing with each other on this score, unless to find better
19 ways to keep it away from you and everybody else.
20 MS. ABRUTYN: I don't even purport to understand how
21 this technology works, so I am not likely to be a risk for
22 them, but I do think that there is a lot of information that
23 is going to come out in these depositions that is not
24 protectable and is not trade secrets.
25 THE COURT: You may well be right about that.
50
1 MS. ABRUTYN: And I think that logic dictates that is
2 more likely than not. As a result, the best result, taking
3 into consideration the Second Circuit's presumption toward
4 public access, is to do what was done in the Microsoft case
5 and in the Rosenbaum case, which is let the press be there,
6 let the parties hold their confidential questions until the
7 end, and exclude the press only for the very limited areas
8 where there is legitimately good cause. Thank you.
9 THE COURT: Thank you. Mr. Godwin.
10 MR. GODWIN: I am here primarily as a reporter, your
11 Honor, and I will try to be brief. I want to expand on some
12 of the reasons that I think that this case is particularly
13 important socially and particularly deserving of as much of
14 press coverage as you are willing to give it and are willing
15 to allow to occur.
16 I think part of it is associated with the amount of
17 acrimony that you see between the parties, between the
18 counsel. I mean, I think you look at what the root of that
19 anger is and you see a kind of a social collision between two
20 very giant groups of people.
21 THE COURT: That is one way to look at it. You
22 should read the papers on the disqualification motion; you
23 would get a brand new view.
24 MR. GODWIN: I did read the papers on the
25 disqualification motion, and I will say that I understand
51
1 there was personal acrimony of counsel.
2 THE COURT: It didn't have to do with the collision
3 of social forces, I assure you.
4 MR. GODWIN: I will make the argument this way. I
5 will say at least some of the acrimony is attributable to the
6 collision of social forces, and I will drop that metaphor in
7 the rest of my argument.
8 Obviously, this case is important legally because it
9 raises a lot of issues of first impression, and it also is one
10 that affects ordinary citizens in a lot of unusual ways,
11 because the technology that is at issue here is something that
12 is potentially in the hands of a lot of sides. I cover this
13 technology for a number of journals, and one of the things
14 that I have written about also in a book is the fact that when
15 you have a kind of a radical adoption of new technology, there
16 is also a social panic that is involved.
17 By example, ten years ago there were a number of
18 cases, particularly federal cases, that involved prosecution
19 of so-called hackers. One of the things that we discovered,
20 if you went to groups of law enforcement people talking about
21 computer crime, is that they talked about these issues in a
22 fundamentally different way from the way, if you went to a
23 computer hobbyists' meeting, you would hear them talk about
24 it. The ways that they each talked about it demonized the
25 other faction. So that if you went and talked to groups of
52
1 federal agents -- and I have done that -- you would hear that
2 they were hackers, they were malicious thugs, they had no
3 respect for property rights, and so on. In many ways, some of
4 the rhetoric in this case resonates a little bit with what my
5 experience was ten years ago. If you went to the computer
6 hobbyists, you would see phrases like jack-booted thugs, and
7 you have an idea of the kind of invective that was involved.
8 But the thing that calmed down the social panic that
9 I think was happening then with regard to the onset of cheap
10 computers and cheap access to networking was press coverage.
11 In other words, a lot of independent journalists would go to
12 the meetings, they would talk to people, they would bring the
13 people together, they would do a lot of interviews, and they
14 published in a lot of mainstream journals what the facts
15 really were and whether it was fair for each group to
16 characterize the groups the way they had.
17 I think that one of the things I have discovered in
18 covering this case, and one of the things that fascinates me
19 about it, is the extent to which there is this immense gulf
20 between the way the issues, legal and technical and factual,
21 are described. Obviously, this is not unusual in any
22 litigation, but in this particular case the gulf is so great
23 and it is so widely shared and it is so filled with invective
24 that I think it is a particularly important role for the press
25 to play to step up and try to clear the air. I know the Court
53
1 has a certain fact-finding function to do there as well, but
2 that is limited, I think, to the scope of the issues raised by
3 the litigation.
4 There is a larger set of issues that I think makes
5 this case worth covering and deserving of a lot of access, and
6 that is how society comes to terms with the fact that
7 individuals now have technologies that call into question the
8 legal framework that is being used to protect intellectual
9 property.
10 I know from reading some of the papers in this
11 case -- I am not a technologist to any great degree -- but I
12 know that some of the factual claims are wrong. I have a lot
13 of sympathy for the plaintiffs' witnesses, sometimes for the
14 plaintiffs' concerns about witnesses embarrassing themselves
15 for lack of knowledge in response to pointed questions. I
16 certainly can be equally embarrassed in the right
17 circumstances.
18 THE COURT: It does occur to me that if you ask the
19 chairman of the board of Goldman Sachs to identify somebody
20 who bought General Motors stock on the New York Stock Exchange
21 today, he would have a very hard time and look very stupid,
22 but there is no reason he ought to know that.
23 MR. GODWIN: I think you can ask a lot of unfair
24 questions. But I also think that, given the kind of public
25 prominence Mr. Valenti has chosen in taking the forefront in
54
1 talking about this issue in public, it is appropriate for the
2 press to know sometimes he has embarrassing answers in the
3 deposition. Assuming for the sake of argument he does have
4 some embarrassing answers, he might not be entirely happy with
5 them.
6 In the context of this case, where you have a very
7 accelerated procedure, where we are moving towards trial very
8 quickly, access to the contents of the depositions or access
9 to the substantive contents of the depositions within a
10 reasonable time is pretty important. I think if it were just
11 a matter of pure reporting --
12 THE COURT: A reasonable time doesn't mean you have
13 to be there; right?
14 MR. GODWIN: I am not going to argue you have to be
15 there.
16 THE COURT: All right.
17 MR. GODWIN: But I do think 15 days is a very long
18 period of time. I think five days is nicer than 15, but I
19 would prefer it were shorter. Once again, I just want to
20 say -- I will wind up my remarks here -- I think that the
21 potential remedy to the kind of acrimony between the parties
22 that the lawyers are reflecting here is going to come from
23 clearing the air and from letting all of the issues out and
24 from making sure there is pretty vigorous independent press
25 coverage.
55
1 THE COURT: Thank you, Mr. Godwin. Mr. Sims?
2 MR. SIMS: Thank you. Your Honor, since everyone
3 else has wrapped themselves up in the First Amendment, let me
4 let you know I am a First Amendment lawyer too and spent ten
5 years at the ACLU.
6 THE COURT: First Amendment lawyer or not, let's go
7 forward.
8 MR. SIMS: And there is an enormous amount of public
9 access that exists in this case. The notion that this is
10 somehow about shutting off the whole spigot is preposterous.
11 Whatever public interest there exists is met by the
12 publication and the availability of the pleadings, of
13 everything filed in courts, of the file --
14 THE COURT: It is not literally everything filed in
15 court, because an order permits us to designate certain
16 materials that incorporate confidential discovery material as
17 confidential. Right?
18 MR. SIMS: That's true. But nothing has been filed
19 under seal. I don't think there are going to be summary
20 judgment motions, at least I don't expect them, or that kind
21 of motion practice, given the schedule set. Therefore, the
22 point I want to make is that there is an enormous amount,
23 within twenty-four hours, of papers I filed on this motion
24 that were on three different web sites operated by the
25 defendants or their colleagues, and that is fine. But there
56
1 is an enormous amount there. In less than five or six weeks
2 there will be a trial and the trial will be a public event.
3 There is no presumption of access after Amodeo.
4 Amodeo couldn't be clearer. It simply says documents that
5 play no role in the performance of Article III functions, such
6 as that pass between the parties in discovery, lie entirely
7 beyond the presumption's reach. That is why a number of
8 cases -- I think five or six -- have held that there is no
9 ability of the press to attend depositions, and the deposition
10 transcripts are either not public at all or are easily met
11 under the Rule 26 standard. And a case like the Paisley Park
12 case, the Word of Faith case, totally suppress videotapes and
13 other transcripts, I believe, certainly videotapes. I think
14 the same result ought to happen here. The cases couldn't be
15 clearer that the kinds of harms we have shown are sufficient.
16 Let me address the point that has been raised about
17 the supposed length of the 15-day period and how it should be
18 shorter. There are a lot of lawyers for us working on this
19 case, as you might imagine, an enormous number in fact, and we
20 are extraordinarily pressed by Mr. Garbus's tactics and
21 efforts on depositions and discovery and constant daily
22 complaints. The fact is, I don't think it is humanly
23 possible, I really don't, to get deposition transcripts
24 reviewed properly and carefully in five days. I think 15 days
25 is required. I can't imagine doing with less than a weekend,
57
1 and five days doesn't give a weekend.
2 So I really think, if you consider shortening it, ten
3 days has to be -- after all, we are heading for trial, and
4 there is the more important work to be done, namely, preparing
5 this case for trial.
6 Our proposal, which was to say that deposition
7 transcripts can't be posted to the Internet, in my mind is a
8 recipe for eliminating or reducing the amount of controversy
9 before your Honor. It makes us grow more comfortable, more
10 able to designate less as confidential, and does not present
11 the notion of --
12 THE COURT: We have been around the block on this
13 posting on the Internet thing, Mr. Sims. After all, you know
14 what the whole Judicial Conference business this year was.
15 This is just for illustrative purposes as to how it is that
16 you are asking rivers to flow uphill. We judges have to file
17 financial statements in Washington. The law says nobody can
18 see them unless they go in and they sign and notice is given
19 to the judge, so in case he gives, you know, a child's school
20 or something, you can delete security information. For years,
21 individual reporters went in, signed up, and asked for the
22 statements, and there was no problem. Then somebody walked in
23 and asked for all the statements, and said, "We are going to
24 put them on the Internet." Somebody went berserk and said no,
25 until it was pointed out that they were already on the
58
1 Internet because some of those reporters had given them to
2 somebody else who put them on the Internet. It is ridiculous.
3 If Mr. Garbus can take the transcript and stand out on City
4 Hall steps -- or maybe that was several years ago -- on the
5 courthouse steps and read them to a video camera, or a
6 stenographer who transcribes his reading, it is on the
7 Internet. You can't stop it and neither can I.
8 MR. SIMS: I think what the Court could do is simply
9 tell Mr. Garbus he can't release the transcript to somebody
10 without prior agreement under a protective order and not to
11 post to the Internet. If the Court prefers to go the other
12 route, we will go the other route and undertake the
13 designations. I am just suggesting it sounds as if you will
14 be presented with more disputes than you can resolve, I regret
15 to say.
16 THE COURT: Let me tell you what I am going to do
17 about that. That may happen once and it may happen twice, but
18 nobody is going to want to have it happen a third time,
19 neither you nor Mr. Garbus, I promise you that, because what
20 you have at stake is the continued duration of the protective
21 order, the confidentiality order. What you both need to bear
22 in mind is that there is a statute in the U.S. Code and it
23 says that any lawyer who needlessly multiplies or engages in
24 vexatious litigation is personally liable for the expense thus
25 created. I will not have any hesitation to land on anybody
59
1 who continues what is going on in this case up to now with
2 both feet under that statute. And I don't care who it is.
3 MR. SIMS: Your Honor, we understand that absolutely.
4 As was said in the Paisley Park decision, depositions are not
5 intended to be content for broadcast and other media. And the
6 reference to the Eisner deposition as if it is a reality when
7 in fact we informed them that Mr. Eisner knows nothing about
8 these matters and that the appropriate witness, if they want
9 one, is Mr. Litvack -- they want Mr. Eisner for the publicity
10 purposes, and we will deal with that at such time -- but I
11 think it makes plain that these depositions are being taken
12 for the same kinds of improper purposes at issue in the Word
13 of Faith case and in the Paisley Park case.
14 THE COURT: We all have remedies for that if it turns
15 out to be true.
16 MR. SIMS: I understand that. But that is why, if
17 the Court determines to leave us with the protective order
18 allowing us to designate with respect to those matters that
19 would, in our reasonable view, harm or lead to harm to
20 witnesses or sources or methods and the like -- I am sorry, I
21 lost my train of thought.
22 In any event, just to wind up here, we do think that
23 the cases do not make depositions open to the public or
24 available to the press. We think there is more pressing
25 business to prepare this case for trial. We would seek the
60
1 relief we sought, and we would strongly urge you, if you are
2 thinking of shortening the time at all, not to go below ten
3 days. I think it would dispose of the insuperable problems.
4 The shorter the time, the more people will have to err on the
5 side of caution, and I think it is a reality of the situation.
6 Thank you, your Honor.
7 THE COURT: The resolution of this matter is as
8 follows:
9 I think the question of whether there is a
10 presumption or not is ultimately not critical to the decision.
11 If there is a presumption, which I am clear at one point there
12 was under Agent Orange, it is overcome by a showing of good
13 cause. Amodeo, it seems to me, given the particular type of
14 material we are talking about and the stage of the litigation
15 we are talking about -- that is, discovery material between
16 the parties -- either eliminated any presumption at this stage
17 or, in any case, reduced it very greatly. But I would come to
18 exactly the same result on any view of Amodeo and Agent
19 Orange.
20 The first question is barring publication on the
21 Internet of portions of depositions that are not subject to
22 the confidentiality order. I see no justification for that at
23 all. If the material hasn't been designated "Confidential,"
24 by definition there isn't any argument for good cause for
25 attempting to suppress it upon the Internet. I don't see why,
61
1 in that respect, the Internet is any different from any other
2 medium of communication. So, to that extent, the motion for a
3 protective order is denied.
4 We then come to the next question, which in major
5 respect is subsumed by the fact that the parties have agreed
6 to this confidentiality order, but even if I were to
7 reconsider it de novo in response to the media intervenors'
8 position, I would also come to the same result. There is not,
9 in my mind, any serious question that there is good cause to
10 protect certain relatively narrow kinds of information in this
11 case. The identities of persons not otherwise well known who
12 are engaged in anti-piracy efforts, the specifics of
13 methodologies involved in attempts to combat piracy, technical
14 details regarding encryption and other technological means of
15 protecting the plaintiffs' copyrighted material, future plans
16 for encryption and protecting copyrighted material,
17 investigative techniques and ongoing investigations, without
18 attempting to be encyclopedic, are all matters as to which, in
19 my judgment, the plaintiffs have shown good cause to prevent
20 public dissemination, at least at this stage of the
21 litigation. That good cause overcomes, at this stage and in
22 this context, whatever First Amendment interest there is in
23 publicity as to that material.
24 We then have the question of the means that the
25 parties have chosen, with some encouragement from me, I am
62
1 frank to confess, to protect that kind of information. I
2 think it is critically important to understand that the means
3 here are vital to the whole process.
4 As a theoretical matter, one could assert that each
5 time a request is made during discovery for a particular item
6 of information -- that is to say, a particular document, an
7 answer to a particular question or, for that matter, perhaps
8 other modes of discovery -- there is, technically speaking, an
9 opportunity for the party of whom the request is made to lodge
10 an objection and for the parties then to litigate the question
11 of whether there is good cause for confidential treatment of
12 that particular piece of information.
13 In a litigation of this scope -- particularly in view
14 of the fact that for a variety of reasons, not least of all
15 the First Amendment interest in limiting the duration of the
16 preliminary injunction to the shortest possible period --
17 litigation of the right to confidentiality on an item-by-item
18 basis, at least in the absence of a dispute between the
19 parties as to a particular item, would threaten to bog this
20 litigation down hopelessly. The process of fact-gathering
21 with respect to particular pieces of information and the
22 degree of sensitivity they involve, the degree of harm their
23 disclosure might involve, the extent to which they had or had
24 not been held in confidence previously, would be enormously
25 time-consuming, and it is thoroughly impractical in this case.
63
1 It is clear that there are genuine items as to which
2 there really is good cause. So the process the parties have
3 agreed to, and that I have approved and encouraged, given the
4 public interest in getting this case over as fast as is
5 possible, consistent with justice, is to give the parties the
6 right to designate material confidential when there is good
7 faith to believe there is good cause for that designation, and
8 then to provide a mechanism for quick review by me in the
9 event there is any disagreement about it. That limits the
10 matters as to which I have to make individualized judgments
11 only to those as to which there is really a dispute, and to
12 avoid any need for litigating the existence of good cause as
13 to matters as to which there is no dispute.
14 There is nothing novel about this method. It has
15 been used in this court and others for many, many years by
16 lots of judges and lots of lawyers. It works. At least, it
17 works so often that I am not prepared to assume that it won't
18 work here, absent a demonstration that it doesn't work --
19 which is not an invitation to the lawyers. I am ready to
20 reconsider it if it breaks down, but I don't think it is going
21 to break down.
22 So I have signed the confidentiality order. I think
23 it was right to do so. Even if I were considering it afresh
24 right now in response to the media's concerns, I would come
25 out in exactly the same place for that reason.
64
1 Then we have the matter of access by the press to the
2 depositions. I have considered very carefully what the Times
3 Mirror and the Village Voice have said about the possibility
4 of developing some kind of a protocol for their attendance
5 that would enable the press to be present without compromising
6 the interests that the confidentiality order is designed to
7 serve. It is conceivable that in another case, on a different
8 timetable, where there was not a preliminary injunction
9 barring publication and where there wasn't such a clearly
10 demonstrated record of acrimony among the lawyers, it might
11 work.
12 Unfortunately, those circumstances do not apply here.
13 I have every reason to believe that the presence of the press
14 would, at best, engender disputes and difficulty over when
15 they are entitled to be in the room and when they are not,
16 and, at worst, encourage even more grandstanding than has gone
17 on up to now.
18 So I am not going to permit the press to be present
19 at the depositions. Under all of the circumstances, I find
20 good cause to excuse them. I find that the First Amendment
21 interest, if there is one, is outweighed by the risks.
22 I do think, however, that there are respects in which
23 the confidentiality order can be modified to accommodate some
24 of the points raised by the press. In my understanding of
25 what has passed here before me, it is clear that the primary
65
1 interest of the media is in the depositions of Mr. Eisner,
2 Mr. Valenti and, to a somewhat lesser extent perhaps,
3 Mr. Attaway -- who probably now wishes he had stayed on Mount
4 Everest, which is where, I was told the last time his
5 deposition was in issue, he was. In the case of those three
6 depositions, confidentiality designations ought to be made by
7 the plaintiffs within three days; as to all others, within ten
8 days. I would entertain applications from the media to
9 shorten the ten-day period as to other witnesses. In
10 considering such applications, I would consider, among other
11 things, the extent to which any witness as to whom such an
12 application is made has put him- or herself in the public eye
13 on this issue, the practicalities of getting this case ready,
14 which includes at some point the burden on the plaintiffs,
15 although I am very mindful of just how many horsepower are
16 under that hood, including probably 60 summer clerks who would
17 love to work on this case. Maybe I misstate the number.
18 It seems to me that that goes very far toward
19 accommodating the interests of the media, whether it be
20 characterized as a First Amendment interest or not. I have
21 heard no dispute from the media that there are, in fact,
22 subjects in this case as to which there is good cause for
23 confidential protection at this point. The core of what the
24 media is interested in is the substance. I don't mean to
25 demean style altogether, but the core of it is the substance.
66
1 In this way they will get the substance, they will get it
2 reasonably promptly, and it will largely, if not entirely,
3 serve their interests.
4 I realize that I am not addressing the point that I
5 believe Ms. Cohen made that she didn't know yet who all the
6 witnesses were who might be deposed. I haven't the slightest
7 doubt, Ms. Cohen, that you are going to find that out in very
8 short order. I can think of two lawyers who would be happy to
9 answer your phone calls very promptly. They seem to answer
10 all the others' phone calls, and they will answer yours. If
11 there is a problem about that, I am here.
12 I think I have covered all the bases, probably to
13 nobody's entire satisfaction. Have I left anything out?
14 MR. SIMS: Your Honor, I am unclear whether your
15 ruling deals with the question of release of the videotapes,
16 for example, of the Valenti deposition or these other few, and
17 in that connection with the point we have raised that where it
18 appears, having sat through the deposition, that the purpose
19 is merely to provide that kind of --
20 THE COURT: I certainly didn't deal with those
21 points. It was not, in the second case, inadvertent. I am
22 not going to expand the protective order at this point to
23 allow you to designate as confidential solely on the ground
24 that you think particular bits of testimony are too
25 embarrassing or were taken for some abusive purpose. I think
67
1 people like Mr. Valenti and Mr. Eisner can take care of
2 themselves.
3 But I will say to you what you know already, and that
4 is that Rule 26 provides that I have the power in an
5 appropriate case, if it appears to me that depositions are
6 being conducted for harassment or inappropriate purposes, to
7 prevent them. If I see a record, should you present it, that
8 demonstrates that that is what is going on, I am prepared to
9 consider cutting down this discovery program, maybe
10 dramatically, but I am not prepared to do it simply on what I
11 have before me. I think that, given the nature of the case,
12 given the extent to which you folks have gone out and
13 solicited publicity, if you can't stand the heat, get out of
14 the kitchen, to a point.
15 MR. SIMS: Your Honor, I understand that. Just as
16 with a House un-American Activities Committee that was abusive
17 in asking people to come up and have to answer in public. I
18 agree that it has to be done on a concrete, after-the-fact
19 basis. But if there is a transcript or a videotape that shows
20 that kind of activity, I take it that your Honor has said we
21 could come to you for relief.
22 THE COURT: I have said what I have to say about
23 that.
24 As to the videotape, what reason is there for
25 blocking the release of those portions of tapes that are not
68
1 subject to a confidentiality designation?
2 MR. SIMS: The reason, your Honor, as has been made
3 plain in some of these cases, is that if the purpose of the
4 videotape is to just get the executive to say, "I don't know,
5 I don't know, I don't know," that is not embarrassment in the
6 sense of some particular fact that they would rather not have
7 public; it is a transcript, a videotape, created for the
8 purpose of showing ignorance about matters as to which there
9 is no reason to expect knowledge and as to which there is no
10 litigation purpose for doing that. There is simply a question
11 of increasing the noneconomic costs of the litigation, and
12 that is abusive, and I think we are entitled to relief. As I
13 say, the three cases that we have cited have precluded the
14 showing of videotapes where there was some reason to believe
15 that that was underway.
16 THE COURT: Mr. Garbus, on that point?
17 MR. GARBUS: I think the deposition will indicate
18 that that was not what happened; that Mr. Valenti has been
19 testifying, as I said, for years and years. We put into the
20 record about twenty public statements that he had made with
21 respect to his understanding in the Betamax case, his
22 understanding of the DMCA, his understanding of what is legal
23 and illegal. We also discussed with him at great length the
24 antitrust issue, namely, the extent to which these licenses go
25 to only certain hardware manufacturers, only to certain
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1 replicators and only to certain studios. So I think that the
2 deposition was in no way abusive.
3 THE COURT: What did it have to do with this case, if
4 that is what you spent all this time on?
5 MR. GARBUS: What did what have to do with this case?
6 THE COURT: What you have just described to me is
7 essentially that you sat there asking a lay person for his
8 understanding of the law on a whole series of issues in
9 circumstances where what is really at issue is what the DVD
10 encryption is, what DeCSS is, and the legal question of how it
11 all is under the Digital Millennium Copyright Act. How is
12 that information that you need to try this case?
13 MR. GARBUS: Mr. Valenti has testified that he is
14 part of the legislative history, he has testified before
15 Congress, and these people from the MPA have testified before
16 the Congress that Betamax, for example, is not overruled by
17 1201. He has testified at great length before groups, before
18 these organizations. He has been advised by the lawyers and
19 has spoken and has testified both publicly and also with
20 respect to this particular case. He was asked whether in fact
21 one of the things you are dealing with is the whole question
22 of legislative history and what position the MPA placed before
23 Congress.
24 THE COURT: And that appears in the printed record of
25 the Congressional hearings; right?
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1 MR. GARBUS: First of all, this is a small part of
2 the deposition. Secondly, what appears --
3 THE COURT: A minute ago you said it was at length.
4 MR. GARBUS: No, I said everything else was at
5 length. I think that what happened with respect to that
6 aspect which we are now talking about is that he testified as
7 to certain things before the Congressional hearing, and he
8 testified as to his interpretation, as I said, of a variety of
9 legal propositions, whether fair use is read out of the 1201,
10 whether fair use is a part of 1201. I asked him questions
11 with respect to his public statements about fair use and the
12 public statements about Betamax, testimony that he had given
13 before Congress, to further articulate some of the things he
14 had testified to before Congress which contradict the position
15 taken, I think, in these legal papers. We asked him whether
16 or not, for example, DeCSS can be used with respect to fair
17 use. Can you encrypt DVD with DeCSS so you can take fair use
18 items? What are the differences? Can you edit it, can you
19 fast forward it? Can you take out materials? One of the
20 areas that was discussed at great length in Congress and at
21 great length by the librarians and historians was the extent
22 to which you can preserve the fair use issue. That was a very
23 significant thing for the MPAA, and Mr. Valenti was the man
24 who testified about those things.
25 THE COURT: Maybe so, but what you are telling me is
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1 that you had, on the one hand, the papers that were filed in
2 this case, and, on the other hand, the existing record of what
3 he said to Congress, and what you spent the deposition doing
4 is trying to make debater's points off what you perceive to be
5 inconsistencies, and which may indeed be inconsistencies, but
6 none of which sounds like it has much to do with gathering
7 evidence for this trial. It sounds like, frankly, you took
8 the opportunity to take a few shots at Mr. Valenti, which he
9 may richly have deserved and maybe didn't deserve, but which
10 don't sound like what discovery is normally involved in.
11 MR. GARBUS: I also asked him whether he or anyone at
12 the MPAA, as I said before, knew of any single instance where
13 DeCSS was used to download the DVD. We asked him whether or
14 not it was his position that if you used a DVD that was
15 encrypted in an instrument, a Linux instrument, that did not
16 have a license, whether or not that violated his understanding
17 or the MPAA's understanding of the DMCA. In other words, we
18 asked him whether he had ever seen a diffux. That is one of
19 the things that is allegedly caused by the DeCSS. We asked
20 him if he had ever seen it personally or anyone at the MPA had
21 ever seen a DVD movie on the Internet that had been encrypted
22 with DeCSS. He said he had not. So we spent a good deal of
23 time with that. You will see the deposition, and I think it
24 is appropriate.
25 THE COURT: You give me some pause, let me tell you,
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1 as to some part of it anyway.
2 Does anybody want to be heard on this videotape
3 issue? Since you are all print media, you probably don't
4 care; right?
5 MS. ABRUTYN: Technically, we do have a lot of
6 television stations and, as a matter of principle, don't think
7 the videotape is any different than the transcript as long as
8 it was taken by an official videographer and is part of the
9 official record.
10 THE COURT: There is the catch. There are no
11 official videographers and it isn't part of any official
12 record. how about that?
13 MS. ABRUTYN: I am thinking of Local Rules, sorry. I
14 still think the videotape is the same as the written
15 transcript. We are talking about good cause here and what
16 should be confidential for purposes of trade secrets. Either
17 the subject matter of the testimony is protected under the
18 good cause standard or the subject matter of the testimony is
19 not protected under the good cause standard, and that doesn't
20 change whether it is videotape or transcript.
21 MS. COHEN: The only point I would like to make is
22 that the Court in Tyson specifically referred to the
23 possibility that your Honor and the plaintiffs have alluded to
24 that the existence of the videotape would maybe encourage
25 grandstanding, as I think you put it. The Court made clear
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1 that the solution in that case would be for the Court, as I
2 think you referred to, to either shut down the deposition
3 altogether or to shut off access to those portions of the
4 transcript. I think that that would be the appropriate
5 remedy, as opposed to shutting off access to the videotapes
6 altogether.
7 THE COURT: Let's leave it this way: the
8 nonconfidential portions of the videotapes, the nondesignated
9 portions, will become public at the end of the period we are
10 designating "Confidential" under the protective order, three
11 days in the case of Attaway, Eisner and Valenti, ten days in
12 the case of others, unless an application is made to me within
13 that time period as to a nonconfidential portion of the
14 videotape, in which case it remains nonpublic until I rule,
15 which will be promptly.
16 MR. SIMS: Your Honor, I take it those time periods
17 reflect from our receipt of the transcript or tape? Not from
18 the deposition itself.
19 THE COURT: From receipt. But I assume you are
20 ordering daily.
21 MR. SIMS: I am not sure, but whenever it comes in.
22 MR. GARBUS: We have been, your Honor.
23 THE COURT: You should be ordering daily. You are
24 not slowing this down by not paying the court reporter's
25 premium.
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1 MS. ABRUTYN: Your Honor, just a brief request. Mr.
2 Sims mentioned that Mr. Litvack might be substituted for
3 Mr. Eisner as the witness. We would suggest the three days
4 apply to him if the substitution is in fact made.
5 THE COURT: Which Mr. Litvack is this?
6 MR. SIMS: The senior Mr. Litvack. Mr. Mark Litvack,
7 the son, will be testifying, but they have sought Michael
8 Eisner, and in that connection we have said --
9 THE COURT: You would rather give them Sandy Litvack.
10 MR. SIMS: Yes, because Mr. Eisner is not involved in
11 this case stuff; Sandy Litvack is.
12 THE COURT: If Sandy Litvack is substituted for
13 Michael Eisner, the three-day period applies to him. He can
14 take care of himself too. He did it for a long time in this
15 court.
16 Anything else on this part of the festivities? All
17 right, we are going to take a brief break, and we can then
18 deal with your wonderful discovery battles. I will be back
19 within ten minutes, maybe five.
20 MR. GARBUS: We are not prepared to deal with that
21 tonight.
22 THE COURT: You would rather do it another time?
23 MR. GARBUS: Yes. I don't have any documents with me
24 at this time. I thought we were dealing with motions.
25 THE COURT: Then Anna will be in touch with you
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1 tomorrow about another date, soon.
2 MR. GARBUS: Thank you.
3 THE COURT: Are you ready to pick a date now? Friday
4 at 4:30?
5 MR. GARBUS: Your Honor, Friday I am going to fly to
6 attend my son's graduation. Can we do it Thursday at 4:30?
7 THE COURT: All right. You are allowed. Thursday at
8 4:30.
9 MR. GARBUS: Thank you, your Honor.
10 THE COURT: You got it. All right, folks. I will
11 probably enter a written order but you should regard the oral
12 remarks to the court reporter as an order of the Court on this
13 matter.
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