14 June 2000. Thanks to Anonymous.

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   2   ------------------------------x

       et al.,
                  v.                           00 Civ. 277 (LAK)
       SHAWN C. REIMERDES, et al.,
                                               New York, N.Y.
                                               June 6, 2000
  11                                           4:40 p.m.

  12   Before:

  13                       HON. LEWIS A. KAPLAN,

  14                                           District Judge

  15                            APPEARANCES

            Attorneys for Plaintiffs

            Attorneys for Defendants
  22        General Counsel for Intervenor Village Voice Media

            Corporate Counsel for Intervenor Times Mirror
  25        Senior Legal Editor for E-Commerce Law Weekly
            Pro Se Intervenor


   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.


   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 --


   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.


   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


   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


   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


   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


   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


   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


   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


   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,


   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


   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


   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


   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


   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 --


   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


   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.


   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


   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.


   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)



















   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


   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


   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


   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


   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,


   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


   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


   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


   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


   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


   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.


   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.


   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


   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


   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,


   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


   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


   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.


   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


   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


   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


   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.


   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


   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


   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


   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


   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.


   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


   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


   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


   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


   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.


   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


   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,


   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


   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


   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


   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,


   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


   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.


   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.


   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


   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.


   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


   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


   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


   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?


   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


   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,


   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


   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.


   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


   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.

  14                              -  -  -