1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 3 UNIVERSAL CITY STUDIOS, INC., et al., 4 Plaintiffs, 5 v. 00 Civil 277 (LAK) 6 ERIC CORLEY, et al., 7 Defendants. 8 ------------------------------x 9 May 11, 2000 10 9:40 a.m. 11 Before: 12 HON. LEWIS A. KAPLAN, 13 District Judge 14 15 APPEARANCES 16 PROSKAUER ROSE LLP Attorneys for Plaintiffs 17 1585 Broadway New York, New York 18 NANCY KILSON, ESQ., CARLA M. MILLER, ESQ., 19 Of counsel 20 FRANKFURT GARBUS KELIN & SELZ, P.C. 21 Attorneys for Defendants 488 Madison Avenue 22 New York, New York MARTIN GARBUS, ESQ., 23 EDWARD HERNSTADT, ESQ., Of counsel 24 25 2 1 THE CLERK: Universal City versus Corley. 2 Is the plaintiff ready? 3 MS. KILSON: Yes. 4 THE CLERK: Defendants ready? 5 MR. GARBUS: Yes. 6 THE COURT: Good morning. 7 Ms. Kilson, you are here from Proskauer. I got it. 8 MS. KILSON: Yes. 9 THE COURT: Okay. 10 Fine. 11 Mr. Garbus, it is your motion. 12 MR. GARBUS: Has your Honor received the amicus brief 13 filed by Professor Nesson? 14 THE COURT: Yes. 15 MR. GARBUS: On April 4, two-and-a-half months after 16 this court's decision, the case that the court primarily 17 relied upon and becomes the basis as I look at the analysis of 18 the court's decision was reversed by the Sixth Circuit. 19 The court also referred throughout the decision to 20 Lemley and Volkah, 48 Duke Law Journal at 246-37. And the 21 basic issue in that case and the Junger case, and the court 22 mentioned it as it tried to evolve a balancing test for this 23 particular case and to try and decide the balance between 24 expressive speech, what is expressive speech, copyright law 25 and the First Amendment, relied, cited Junger several times 3 1 and talked about in referring to Junger the computer code at 2 issue in this case does little to serve these goals. 3 Although this court has assumed that DeCSS has at 4 least some expressive content, the expressive aspect appears 5 to be minimal when compared to its functional component. 6 Then the court cited the lower court decision in 7 Junger which has been reversed unanimously by the Sixth 8 Circuit. 9 We bring that to your attention in our brief. 10 THE COURT: What brief is that? 11 MR. GARBUS: In the brief we submitted on the motion 12 to vacate the restraining order. 13 THE COURT: That is not the motion we are here to 14 argue today. 15 MR. GARBUS: I am here today to argue a motion to 16 vacate a restraining order and what I am trying to do is to 17 bring to the court's attention that since the decision of the 18 court, there has been a reversal of the case that the court 19 primarily relied upon. 20 THE COURT: Mr. Garbus, what was the date of the 21 motion that you think you are hear to argue here today? 22 MR. GARBUS: I think we filed it on the 8th. 23 THE COURT: That is a motion brought on by the order 24 to show cause, right? 25 MR. GARBUS: That is the motion that is brought on by 4 1 the order to show cause and it is a motion to dismiss the 2 complaint. 3 THE COURT: As a discovery sanction? 4 MR. GARBUS: As a discovery sanction. 5 If you don't feel, given the fact that there is a 6 restraining order in effect based on your decision in a case 7 that has now been reversed which was not brought to your 8 attention by my adversaries, then I will stop this right now. 9 THE COURT: Mr. Garbus, you have until 10:00 o'clock 10 to say whatever you want to say. It is now 9:40. 11 MR. GARBUS: The court then said in its original 12 decision, "The court offered and defendants thus far have 13 declined a virtually immediate trial on the merits thus 14 insuring the duration of the prior restraint prior to a final 15 determination will be as brief as defendant wishes." 16 That was the court order. 17 The court repeatedly cited Junger in its decision, 18 Lemley and Volkah, 48, for the same proposition. It referred 19 to Lemley again and it referred to Lemley again at notes 31 20 and 30. 21 It then refers -- then it refers again to that at 22 note 76. 23 The underpinning of the court's decision basically as 24 I understand it is, how do you balance the need to stop this 25 kind of DeCSS and what is the values involved in the 5 1 expressive speech involved. 2 I think there are, getting now to the discovery 3 motion, we noticed eight plaintiffs to come to appear in New 4 York for depositions. Not one of those depositions have gone 5 forward, not one of those depositions have been scheduled. 6 They have offered to give us people in California and 7 Washington. The plaintiffs came to New York and they brought 8 this lawsuit. We had a discussion with this court last week. 9 The court then issued an order. As of this date, not one 10 document has been produced, not one witness has been examined. 11 The notices of depositions were served some six weeks 12 prior to the return date of those depositions. Our 13 adversaries also in this application ask for further extension 14 of time to deal with the prior restraint. 15 The claim that they came in in order to get the prior 16 restraint, and this is how it all relates to discovery, it's 17 all interrelated, deals with the question of piracy. The 18 relationship between piracy and expressive content and 19 discovery are all related and they are all the issues before 20 this court, and they said repeatedly, in your decision, it is 21 your decision and you are aware of it, that the interests 22 served by prohibiting means to facilitate such piracy -- you 23 said that five or six times in your decision -- based on the 24 information that had been furnished to you. 25 Last week and the week before the representatives 6 1 from the MPAA were asked since you went before, basically 2 since you went before Judge Kaplan and talked about piracy, 3 how many examples of piracy have there been? 4 And this was the answer (indicating). 5 The allegation that was made before you that the sky 6 was going to fall, that the DVD business was going to end was 7 absolute nonsense and known by the plaintiffs to be absolute 8 nonsense. 9 I'm then asking very clearly for two things today: 10 One, I don't think I am in a position to ask that the 11 complaint be dismissed as a matter of law. We had a 12 discussion about that in chambers and I think that would be 13 inappropriate. 14 I do ask as we said in the papers that we have given 15 to you that this injunction be vacated immediately, that the 16 legal underpinning for your decision has now been reversed. 17 It was the law when you wrote it, it was the law when the DMCA 18 was passed; it is no longer the law. It was a unanimous 19 decision of the Sixth Circuit. 20 With respect to the question -- one of the things the 21 court did not consider, and this relates, again, to discovery, 22 the relationship between the language and piracy and discovery 23 are all intertwined, and you have the affidavit of Pamela 24 Samuelson who talks about the relevance of the Betamax case to 25 this particular case and because of the way you balanced 7 1 piracy, the First Amendment and the various copyright 2 opponents you gave less attention to Betamax than I think is 3 required as a result of the Junger case. 4 I will be very brief and I will do three more minutes 5 because I see that's about all the time I have. 6 THE COURT: It is 9:45. You have 15 more minutes. 7 MR. GARBUS: I can even do it more quickly, Judge. 8 Professor Samuelson says in her affidavit, basically, 9 that the decision that came down in this court eviscerates 10 fair use, that Betamax has to be read into the DMCA and is 11 part of the DMCA, and that because of the information that the 12 plaintiffs gave you and the way this litigation has thus far 13 gone there has been a confusion between interoperability of 14 computer programs with other programs and the distinction 15 between programs and data. 16 I think Charles Nesson's affidavit, in talking about 17 what has happened here, is as succinct as I could possibly be. 18 He says, looking, again, at your decision, since the Junger 19 case came down, that the DMCA creates a novel right of access 20 control for holders of copyright -- I will draw the court to 21 Professor Nesson's affidavit, Professor Moglen's affidavit and 22 Professor Samuelson's affidavit. 23 In short, I ask that the injunction be immediately 24 lifted. I ask that the conduct of the plaintiffs in 25 discovery, here we are today, not one document, not one 8 1 deposition scheduled in New York, not one plaintiff prepared 2 to come to New York but, instead, what they do is they set up 3 depositions in Washington, depositions in California, they 4 don't discuss them with me, they tell me this is where you 5 have to be and this is where you have to appear. 6 With Weil Gotshal on the DVD worked out a totally 7 different arrangement with respect to confidentiality 8 documents and such. 9 They give me last night at about five or six or 4:00 10 o'clock a confidentiality agreement for the first time 11 relating to document discovery, and then subsequently I'm told 12 later on in a conversation that they are going to send me a 13 different confidentiality because they don't agree with it. 14 With respect to the DVD, we have agreed they are 15 going to furnish me with nonconfidential documents and they 16 will do that and when they get to the question of confidential 17 documents we will sit down and see whether or not we can go 18 through some kind of discussion or perhaps require the 19 involvement of the court to deal with the question of 20 confidentiality. 21 In other words, we are not going to permit, with the 22 courts permission, certainly, the DVDA and I have agreed that 23 we will not permit the discovery to be stopped merely because 24 they refuse and try to tie it all into a confidentiality 25 agreement which they gave me last night. 9 1 I think the responsive affidavit that we served upon 2 you this morning -- 3 THE COURT: Have you read their confidentiality 4 agreement? 5 MR. GARBUS: Yes. 6 THE COURT: Do you have a problem with it? 7 MR. GARBUS: Absolutely. 8 THE COURT: What is the problem? 9 MR. GARBUS: I can't do that now. I have it in my 10 office. I disagree with the definition of terminology, I 11 disagree with what is confidential or what is not 12 confidential. 13 I am prepared to sit down at an appropriate time and 14 deal with it. I see no reason why I shouldn't start the 15 deposition, I see no reason why there is no confidentiality 16 documents to start the deposition. 17 They say if you start the deposition with A and you 18 get documents later on you can't go back and examine A, that 19 is the condition of the deposition. I reject it. They say we 20 don't start depositions without a confidentiality agreement. 21 I reject it. They served me last night. I served the notice 22 of deposition six weeks ago. 23 What is now happening in this case, and this is the 24 final thing I have to say, is they acknowledge, they are aware 25 that this prior restraint is legally defective and factual 10 1 defective. What they submitted to you in the affidavits and 2 what you hung your hat on, because that's what they told you, 3 was that by the end of the year there would be -- and this is 4 from the affidavit of Mr. Schumann -- by the way, if your 5 Honor doesn't dismiss the restraining order, we are prepared 6 to start the depositions tomorrow morning, and if your Honor 7 doesn't impose sanctions, and this is not what I want to do 8 but it is my last, the fallback position, I will start with 9 Mr. Schumann tomorrow morning at 10:00 o'clock here. They 10 offered him in Washington. I will take my witnesses here, 11 which is what the law requires. 12 When Mr. Schumann says, and this is what the court 13 hung fundamentally its entire hook of piracy was is expected 14 before the end of the calendar year the course of this capable 15 of recording and storing a full length feature movie will be 16 available to the general public for less than the cost of a 17 prerecorded disk. 18 So the imminent irreparable injury that was going to 19 fall out of the ski according to their affidavits doesn't 20 happen until the end of the year, and I can tell you that's 21 false based on the testimony that I know and anticipate 22 proving. 23 I don't want to get into and I want to get back to 24 what the court said at its previous decision when the court 25 recognized that it was dealing with a prior restraint in the 11 1 First Amendment case the likes of which I have never seen 2 before. But then again, my experience is limited. It says 3 the court offered and defendants thus far have declined a 4 virtually immediate trial on the merits thus ensuing that the 5 duration of the prior restraint to a final determination will 6 be as brief as defendant wishes. 7 We wish that the restraining order be vacated now. 8 We wish to take several depositions. We are prepared to move 9 the date of the trial up from December 5 and we would like to 10 communicate that to the court as soon as we finish five 11 depositions. 12 If I have five depositions and I can get the 13 information that I think is there, we would be prepared 14 probably to go to trial this summer consistent with the 15 court's schedule. 16 THE COURT: Who are the five depositions? 17 MR. GARBUS: Mr. Eisner, Mr. Valenti, Mr. Schumann. 18 I can then give you the other two names, I don't have them 19 here with me, but I will certainly communicate to you by the 20 end of the day. 21 I will start with Schumann tomorrow. At this point 22 in time because I haven't seen a document in a First Amendment 23 case with a prior restraint, I don't know who the people are 24 who have the information. I need at least one deposition, 25 since they are not giving me documents, to find out who these 12 1 people are. 2 Thank you. 3 MS. KILSON: Good morning, Judge Kaplan. 4 THE COURT: I am not ready. I have a question for 5 Mr. Garbus. 6 Your remarks have blended together two different 7 subjects. You made a cross-motion some time ago to vacate the 8 preliminary injunction on a variety of grounds, legal and 9 factual. A schedule was established, the plaintiff has not 10 yet responded to that motion, and when I inquired of you in 11 the telephone conference we had a few days ago whether you 12 needed discovery for that motion or were prepared to have that 13 motion decided on the record that was then before me, plus the 14 defendant's answering papers and your reply, you said you 15 needed the discovery for that motion. 16 You have also made a motion which is the motion now 17 before me to vacate the preliminary injunction on the entirely 18 separate ground that the plaintiffs have engaged in discovery 19 abuse. 20 Now, the argument you have made for vacating this 21 morning, which, in theory, is directed to the discovery 22 sanctions motion, is that the legal underpinning of the 23 preliminary injunction is gone. You haven't had too much to 24 say, you have had some but not too much to say on the 25 discovery abuse issue. 13 1 My question to you is, are you now prepared to have 2 me decide the cross-motion without your having any further 3 discovery with respect to the cross-motion as soon as the 4 plaintiffs submit their answering papers and you reply? 5 That's the question. 6 MR. GARBUS: I'm sorry, I'm not sure I understand the 7 question. 8 I think the answer is yes. 9 THE COURT: Do you need -- 10 MR. GARBUS: Is the question do I need further -- I 11 think there is -- let me see if I can try to respond to it. 12 Do I need further discovery at this time on the 13 motion? 14 Not on this motion. 15 THE COURT: On the other motion, the cross-motion to 16 vacate the injunction? 17 MR. GARBUS: I am prepared to have the court now 18 decide the cross-motion on the injunction. I am prepared to 19 go ahead with discovery immediately, and I'm also prepared to 20 have the court decide the linking motion. 21 I have one further affidavit from the New York Times 22 in the event that this is the court's decision that you have 23 just made will be made concerning -- we are serving our 24 adversary -- concerning the question of linking. 25 So that will constitute our record on the motion -- 14 1 THE COURT: If I conclude that there are issues of 2 fact on the cross-motion due to the fact that the plaintiffs' 3 affidavits and yours at least possibly and, indeed, probably, 4 are in direct conflict on the issues of significance, are you 5 prepared to have me decide those issues on the papers? 6 MR. GARBUS: Rather than -- I'm sorry, Judge. 7 THE COURT: Rather than an evidentiary hearing? 8 MR. GARBUS: No, no, no, I'm not giving up an 9 evidentiary hearing. 10 I don't see a motion -- I see three things, and maybe 11 that's the confusion: 12 I see a motion, I see an evidentiary hearing, I see a 13 trial. 14 Now, I am not saying that we are prepared to have 15 this resolved without a trial. I haven't said anything like 16 that at all. 17 THE COURT: Neither have I. 18 MR. GARBUS: Okay. 19 What I'm saying is that I am prepared now to have the 20 court deal with our motion to vacate the injunction based on 21 what we now have. 22 It is my judgment that if the court were to deny our 23 application, we would take five or six or seven witnesses and 24 come back and seek to reopen that motion based on additional 25 evidence. 15 1 THE COURT: Yet again? 2 MR. GARBUS: Yet again. 3 THE COURT: So you would like three shots at that 4 motion? 5 MR. GARBUS: Oh, no. I think what you have here -- 6 and I don't know why -- this is a First Amendment case with a 7 prior restraint. I won't say that again. We have made a 8 motion to vacate the injunction. I think -- and then we have 9 made a motion to vacate the injunction on the grounds of 10 discovery abuse, and we have made a motion to vacate the 11 complaint on the grounds of discovery abuse. So those are the 12 motions presently before the court. 13 If you are asking me whether or not we are prepared 14 to have the court decide those motions on which you now have 15 before you, the answer is yes. 16 If you are asking me whether the court can decide the 17 cross-motions on the papers, the answer is yes. 18 We are happy to present live witnesses at a hearing 19 for the court's benefit on the motion. We also expect to 20 develop discovery for the purposes of a trial. 21 THE COURT: All right. 22 Now, if all of that is so, then the position you 23 articulated nine days ago, namely, that you needed this 24 discovery and you needed it urgently for the purpose of 25 developing a record for your motion to vacate has changed? 16 1 MR. GARBUS: Absolutely not. Absolutely not. 2 What I have said is that given the fact that there is 3 a prior restraint with the underlying decision that the court 4 relied upon has been reversed, that I think this court ought 5 to vacate and given the record that you have vacate the 6 injunction. 7 What I said to you was that I have doubts about 8 whether you would do that given the previous decision and 9 given your clear awareness over the last months of the Junger 10 case and any analysis that you have made about it. 11 So what I had said, I thought, we can go back to the 12 record, was, and if there is any lack of clarity this is a 13 good time to clear it up, what I had said was it is my 14 judgment -- well, I don't know whether or not the court will, 15 on the basis of the record before it, vacate the injunction. 16 I want discovery both for the trial and both to come 17 back to get evidence to persuade the court prior to trial to 18 dismiss the case as a matter of law and to vacate the 19 injunction. 20 When we first met in conference on March 24, I think, 21 the Junger case has not come down. I think that the Junger 22 case and the authority which the plaintiffs gave you in this 23 case have seriously affected the balancing that is required in 24 a First Amendment case. I don't see how you can say 25 otherwise. And if, in fact, this is the amount of piracy that 17 1 has thus occurred and if they are talking about a potential of 2 piracy at the end of the year, which I understand is totally 3 false, I think I should be able to get that, I would hope to 4 be able to get that from Mr. Eisner, Mr. Valenti and three 5 technical witnesses in New York, not with me running around 6 the country. And I would like the documents that relate to 7 those issues. 8 Have I been clear? 9 THE COURT: No. I'm sorry, you haven't. 10 You have been clear about what you want, but with all 11 due respect, you have not answered my question in any way that 12 I can understand. 13 MR. GARBUS: I try. 14 THE COURT: But that's okay. 15 MR. GARBUS: No, no, let me try further. 16 There is a prior restraint in effect. I have an 17 obligation to try and get rid of that prior restraint as 18 quickly as I can as efficiently as I can. 19 It may well be that given the documents before you 20 and given the change in the law the prior restraint, even on 21 the court's own motion, should be disposed of now. It may be 22 that you will feel that factually there is not enough before 23 you to vacate a preliminary injunction that you entered. 24 I was before Judge Kimba Wood recently and she had 25 rendered a decision in a First Amendment case. I came in 18 1 before her. She reversed her opinion. I don't think that is 2 an easy thing for a district court judge to do. 3 I think you have a situation here where you were 4 misled factually given the way this litigation was presented 5 to you. 6 I have an obligation to try to get rid of the 7 injunction today, tomorrow. I have an obligation to, if the 8 court denies my motions, to then take additional testimony and 9 then move to vacate the cross-motion -- vacate the injunction 10 and the prior restraint, and the court may choose at that 11 point to deny it, and if the court does, then we have a trial 12 on the hearing. 13 I would like to be, frankly, in the Second Circuit as 14 quickly and as efficiently as I can and I would like to be, if 15 that's where the case goes, to the Supreme Court as quickly 16 and as efficiently as I can. 17 It is very clear to me the statute is defective. It 18 is very clear to me that there is no piracy coming up within 19 the next nine months. 20 I'm less interested, your Honor, and I say this with 21 all due respect, I'm less interested -- well, I won't say 22 that. I was going to say the fundamental issue here is that 23 there is a statute out there which I think has a great many 24 problems, there is a decision out there which has a great many 25 problems and we have given you affidavits which have talked 19 1 about the chilling effect of both the decision and the statute 2 today. 3 You are the first judge who has given this kind of 4 interpretation of that statute, and what you have in the 5 affidavits that we have submitted to you from scientists, 6 cryptographers, librarians, is the effect of the DMCA and your 7 interpretation of it, and I think if you were standing here as 8 a lawyer you would be answering, with all due respect, because 9 I know your reputation as a lawyer, in a First Amendment case 10 in exactly the same way I am answering it. 11 I want to vacate it, I want to have as good a record 12 as I can. I don't want to be pushed without a record, and I'm 13 not suggesting in any way that you have pushed because you 14 haven't, you have given me every opportunity to present my 15 positions, you signed the order to show cause, we worked out a 16 schedule which was consistent with the position that we then 17 took. 18 Since then the Junger case came down. Since then we 19 have learned that that is the number of piracy that the 20 plaintiffs complain about. 21 THE COURT: All right. Thank you, counsel. 22 Your turn, Ms. Kilson. 23 MS. KILSON: Good morning, Judge Kaplan. 24 As I believe you are aware, we are not here today to 25 argue the motion to vacate the injunction, except to the 20 1 extent that it was brought in the context of alleged discovery 2 violations. 3 I am confident that the court has reviewed our 4 submission of yesterday and from that I believe the court 5 should have been able to conclude that there have been no 6 discovery violations. Instead, we have all been standing on 7 our heads trying to make witnesses available as promptly as we 8 can. In fact, Mr. Gold is not here today because he is in 9 Washington preparing a witness who is going to be deposed next 10 week, assuming that Mr. Garbus will accept the schedule that 11 we proposed and we can work out an appropriate confidentiality 12 stipulation. 13 The entire premise behind the order to show cause 14 is -- 15 THE COURT: One minor subject. 16 Why shouldn't employees and officers of your clients, 17 who chose to sue in New York, come to New York for their 18 depositions? 19 MS. KILSON: Well, first of all, the witnesses whose 20 depositions have been arranged to date are not employees and 21 officers of the plaintiffs, they are employees and officers of 22 the MPAA which the plaintiffs have designated to appear on 23 their behalf, to testify on their behalf pursuant to the 24 30(b)(6) notices that were served and, of course, under Rule 25 30(b)(6) the plaintiffs are at liberty to designate anyone 21 1 they choose to testify on their behalf. 2 We have proposed the depositions should proceed where 3 the witnesses are, your Honor. We are not flying people 4 around to discombobulate Mr. Garbus, but -- 5 THE COURT: You are trying to fly him around. 6 MS. KILSON: We have also been flying around 7 ourselves. Mr. Gold flew yesterday from Los Angeles to 8 Washington. He has been meeting with these people and 9 preparing them to be deposed. 10 What we have here is a situation where Mr. Garbus has 11 been hurling accusations around with absolutely no basis. He 12 complains that he hasn't been allowed to depose Mr. Eisner of 13 the Disney Company. He hasn't noticed Mr. Eisner's 14 deposition. 15 He has, however, issued a press release yesterday 16 informing the world that he is here today to compel us to 17 produce Mr. Eisner whose deposition he has not noticed to 18 appear. 19 The entire premise behind this order to show cause, 20 your Honor, is fraudulent. We have been doing everything 21 possible to facilitate getting this discovery over and done 22 with. No one is more desirous than we of getting this matter 23 resolved and up to the Second Circuit if that's where it has 24 to go. 25 And, your Honor, just so bring some rationality and 22 1 order to this process, if that's possible, perhaps it would be 2 appropriate for the court to set a trial date, and if there is 3 going to be an evidentiary hearing in connection with the 4 motion to vacate why on earth shouldn't that be consolidated 5 on the trial on the merits. 6 THE COURT: I raised that issue before. 7 MS. KILSON: And why on earth should we have 8 successive motions to vacate this injunction? 9 We are ready to go to trial, your Honor, just as soon 10 as your calendar will permit. 11 THE COURT: How long a trial would this been? 12 MS. KILSON: Ten days possibly. 13 THE COURT: What do you think, Mr. Garbus? 14 MR. GARBUS: I think that's -- I think you are 15 talking about a very different sized trial. I think that the 16 trial depends to some extent on the discovery and how the 17 discovery winnows down the issues. 18 I think that there is just one think I like to clear 19 up. I issued no press release. 20 THE COURT: Let's not get into that squabble. 21 You told me a few minutes ago that you are willing to 22 go to trial as soon as you have five depositions, Eisner, 23 Valenti, Schulmann and two other names which you will provide 24 to me today. Is that true? And assuming that's so, how long 25 a trial would it be? 23 1 MR. GARBUS: May I hear the question again? I'm 2 sorry, your Honor. 3 THE COURT: You told me earlier today that you were 4 ready to go to trial as soon as you had five depositions, 5 Eisner, Valenti, Schumann and two other names you would 6 provide to me today. 7 Is that true, and if we go to trial on that basis how 8 long a trial would it be? 9 MR. GARBUS: I think what I said was that at this 10 present time I do not know the people who are dealing -- and 11 let me be very clear because I'm, I'm, I'm concerned about 12 this -- that I said, as I understood it, that if I had those 13 five witnesses, I would know whether or not I had enough. 14 I don't know who created CSS as I speak to you now 20 15 days after discovery documents were served and six weeks after 16 depositions were served. 17 I don't know who has the documents I have asked for 18 in discovery. 19 I am not prepared to go to trial until such time as I 20 conclude that I have enough evidence to go to trial. 21 What I am saying is I may have enough evidence to go 22 to trial after five depositions if they give me the 23 appropriate information. I may have enough evidence -- I 24 could have had enough evidence to go to trial three weeks ago 25 had I gotten all this discovery. I can't tell you when I am 24 1 going to get that. I have nothing at this moment, nothing. I 2 don't know what Mr. Eisner is going to say. I have seen his 3 public statements. I don't know who the technical people are 4 at each of these companies concerning piracy. 5 I do know that the CSS 2, which has already been 6 prepared in case CSS 1 fails, I started this argument under 7 the assumption, I'm sure correct, that the court had read the 8 papers that we had submitted where we discussed all this at 9 great length. I don't know anything about the plaintiffs' 10 case. All I do know is that everything that they have said 11 thus far on the papers appears to be false. 12 I have my witnesses who tell me their version of 13 reality. I am too experienced a lawyer to go to trial without 14 doing discovery in a case like this, which is the first case 15 interpreting the DMCA, and where on one side you have the 16 claim of an industry which has been operating since 1996, and 17 I think that's what led to the preliminary injunction here and 18 you saw millions and millions of dollars in an industry being 19 ruined. 20 I hope that's being responsive. 21 MS. KILSON: Your Honor, I think we need a trial 22 date. 23 THE COURT: There is currently a December 5 trial 24 date and it was put off that far because Mr. Garbus asked for 25 it. 25 1 MR. GARBUS: Yes, absolutely. 2 MS. KILSON: We need a sooner trial date or we are 3 going to incessantly be relitigating the preliminary 4 injunction motion. 5 THE COURT: It sounds that way to me. 6 MS. KILSON: Of course, the court is aware the 7 standard forgetting a preliminary injunction motion vacated in 8 the procedural posture of this case is very high and it is, I 9 think, even opposing counsel recognizes, unlikely that this 10 court is going to see fit to vacate the preliminary 11 injunction. We may have to go through this process three or 12 four times. 13 I think if we have a sooner trial date it will 14 perhaps mitigate the frustration that everyone in my firm is 15 experiencing because as you have seen here this morning 16 Mr. Garbus does not know what he wants and he changes 17 direction constantly, which is one of the reasons why we 18 haven't been able to resolve these discovery issues. 19 For the record, your Honor, we already informed him 20 that we will begin producing documents this week. We have 21 scheduled a date for Mr. Eisner's deposition. He has 22 complained that -- 23 MR. GARBUS: What is the date for -- 24 THE COURT: Don't interrupt. 25 MS. KILSON: I'm sorry, Mr. Valenti's deposition. He 26 1 hasn't noticed Mr. Eisner. Although he represented to you 2 this morning he needs five depositions, he served subpoenas 3 yesterday on nine individuals who are, I believe, all or 4 predominantly representatives of the MPAA. He has now got 5 under subpoena five percent of the employees of the MPAA. 6 We need a sooner trial date, your Honor, so that this 7 will not go on too far, and we are ready to go to trial just 8 as soon as the court can accommodate us. 9 MR. GARBUS: May I make a suggestion? 10 THE COURT: Yes. 11 MR. GARBUS: May I suggest that I take depositions 12 daily for the next two weeks, that we come back before the 13 court, that we tell you what we have gotten through that 14 discovery and let me tell you if I can at that point whether 15 we feel that there is enough evidence in a case like this that 16 we can go to trial immediately or whether we would agree to 17 move up the dates until, let's say, October 1, take out 18 December 5. In other words, I will know much more in two 19 weeks after I see the documents and after I see witnesses. 20 MS. KILSON: Your Honor, the witnesses can't appear 21 daily for the next two weeks. They have their own lives to 22 live. 23 We have given Mr. Garbus dates when the witnesses are 24 available and the lawyers are available. They are before May 25 20, which is what he wanted a few days ago. Now he wants 27 1 something different. 2 We can't obviously juggle all of this repeatedly on a 3 daily basis. We are prepared to go forward very 4 expeditiously. 5 Mr. Schumann is going to appear on the 12th, that is 6 next week -- tomorrow. 7 MR. GARBUS: In New York, I assume. 8 MS. KILSON: Mr. Jacobsen is going to appear on May 9 16 and 17th. 10 THE COURT: Let me get the dates. 11 Schumann on the 12th, Jacobsen -- 12 MS. KILSON: Tomorrow. 13 THE COURT: Should on the 12. Jacobsen? 14 MS. KILSON: On the 16th and 17. 15 THE COURT: And where do you propose to produce 16 Jacobsen? 17 MS. KILSON: Los Angeles. 18 THE COURT: Who does he work for? 19 MS. KILSON: The MPAA. 20 THE COURT: What else has been scheduled? 21 MS. KILSON: In addition, we expect to produce Mr. 22 Attaway at MPAA. 23 THE COURT: The one who is climbing Mount Everest. 24 MS. KILSON: Yes. 25 We have offered to produce Mr. Valenti on June 6 in 28 1 Washington. Mr. Valenti, as I'm sure Mr. Garbus is well 2 aware, is not currently available because he is at the Cannes 3 Film Festival which happens every year about this time. 4 MR. GARBUS: It ends at the end of this week. 5 MS. KILSON: And we have received subpoenas, as I 6 mentioned before, last night for nine additional witnesses and 7 notwithstanding the contention that all of this discovery 8 urgently had to be done by May 20 or within the next two 9 weeks, these subpoenas all have June dates in them. 10 So, your Honor, I think that this case really 11 shouldn't be treated any differently than any other case. The 12 parties should have a finite amount of time in which to get 13 their discovery done and given the looming threat of incessant 14 relitigation of the preliminary injunction motion, a sooner 15 trial date is probably in everyone's interest. 16 In addition, your Honor, the defendants would like an 17 opportunity to get the same benefit which Mr. Garbus has now 18 obtained to have a little discovery before all of the briefs 19 are submitted on the pending motions. We have received in 20 recent days a raft of declarations. The plaintiffs would like 21 an opportunity to depose some of those declarants before we 22 submit or file briefs, so we propose the deadline for the 23 submission of those briefs be put back by a few weeks, so that 24 we can have an chance to take discovery, too. 25 Mr. Garbus has declined to accede to that. 29 1 I believe the date that we requested in our 2 submission to you yesterday was June 14 and the deadline for 3 our final submissions on the pending motions so that we, too, 4 can try to get some discovery done. 5 THE COURT: Thank you. 6 MR. GARBUS: Your Honor, may I be heard very briefly? 7 THE COURT: Yes. 8 MR. GARBUS: I will try not to be repetitive. We set 9 up notices of depositions starting this month. I wanted to 10 finish all the plaintiffs this month. I told the court, when 11 we were before you on March 24, that there would be three 12 months of discovery. 13 My plan was to do New York in May, except for 14 Mr. Valenti, and then do California the next month if the MPAA 15 dragged me out there. Mr. Schumann is designated as a witness 16 for the plaintiffs, for each of the plaintiffs. 17 They have taken the position that after I'm through 18 with Schumann I'm finished. I understand they have backed 19 away from that position. 20 They originally took the position -- the only reason, 21 by the way, that we have dates is we served the order to show 22 cause between now and Monday all this has happened. So there 23 is some effect to a court's order occasionally. 24 What I would like to do is to take the depositions 25 for the rest of this month of the plaintiffs. I would like to 30 1 start with the five that I gave you. It may well be that the 2 five are enough. I don't want to delay the case. There is a 3 prior restraint in effect. I want the case to get done as 4 quickly as I can. 5 The court recognized in its previous decision that 6 the defendants should try and get this case done as quickly as 7 it can. 8 MS. KILSON: Your Honor, I'm sorry, Mr. Garbus served 9 30(b)(6) notices. If he wanted to notice the depositions of 10 specific representatives of the plaintiffs, he could have done 11 that. He didn't. 12 We can't change our minds every day about what 13 discovery is going to go forward. 14 MR. GARBUS: I'm not changing my mind at all. I will 15 be very specific. I have been very specific all along. I 16 have spoken to Ms. Miller, Ms. Heart, Mr. Gold. I have been 17 very, very specific. I said these are the witnesses I want 18 and these are the witnesses -- and these are the subjects I 19 want. 20 THE COURT: Mr. Garbus, why shouldn't I consolidate 21 the motion to vacate with the trial on the merits and advance 22 the trial date substantially and give you a finite period of 23 time, both sides, to do whatever discovery you can fit in and 24 go to trial? 25 MR. GARBUS: Because I have nothing at the moment and 31 1 I don't know how long they are going to run me around, and 2 they can run me around. 3 THE COURT: They are not going to run you around, 4 Mr. Garbus, as long I sit here. 5 MR. GARBUS: Pardon? 6 THE COURT: They are not going to run you around as 7 long as I sit here. 8 MR. GARBUS: They have been, Judge. Judge, they have 9 been. 10 We had a ruling last Tuesday and you said the 11 disqualification motion does not stay discovery, go ahead. 12 Since then nothing happened. 13 Then we filed the order to show cause. They now give 14 me dates putting me in Washington in one date, Los Angeles in 15 another, Washington in another day. 16 THE COURT: Look, Mr. Garbus, without resolving that 17 particular issue at this moment, I think that you and I both 18 know the following things, and I think almost any litigating 19 lawyer in New York knows them to be true: 20 Barring exceptional circumstances, an employee of a 21 named defendant is deposed where the employee resides and an 22 employee of a named plaintiff comes to the city where the 23 plaintiff chose to bring the action. 24 The MPAA, though they are obviously deeply interested 25 in this case, is not a named plaintiff, they are a nonparty. 32 1 Now, you may well be right in arguing that they are 2 so closely identified with the parties that I ought to require 3 them to come to New York and I may do that. But to suggest 4 that it is irresponsible for the plaintiffs' lawyers and the 5 lawyers for those witnesses to take the position that they are 6 technically nonparties and should be deposed where they live, 7 is not exactly appropriate. 8 It may be -- strike maybe. It is perfectly 9 reasonable for you to argue given the MPAA's interest in the 10 case that that's the sort of technicality that ought not to be 11 honored here, but simply to say you are being run around on 12 that basis I have a little trouble with. 13 MR. GARBUS: May I respond -- 14 THE COURT: No, no, no, no. 15 The point about the confidentiality order is similar. 16 We all know that it is absolutely routine in cases involving 17 sensitive business information for parties to agree to 18 confidentiality orders most of the time. They are agreed in 19 advance. They let either side designate as confidential 20 anything they think is confidential and then produce the 21 documents, and if after the documents are seen by the side 22 that asked for them the asking party has a quarrel with the 23 designation of some particular document as confidential you 24 then go to the judge and the judge decides, and it either gets 25 made public or it doesn't. 33 1 Now, it may be that you are right in saying that 2 Proskauer has been tardy in getting you a draft of such an 3 order, maybe it isn't. But it is not prima facie unreasonable 4 for them to say that there may be information in this case of 5 a nature that ought to be protected and before they hand it to 6 you and, therefore, potentially make it public they ought to 7 have some protection, just as it would not be unreasonable for 8 you to say that to them. 9 How exactly that gets resolved I'm not saying right 10 now. But the fact remains that reasonable lawyers can and do 11 debate these points all the time and they usually resolve them 12 without involving federal judges. It is very rare that they 13 don't. This obviously is a case where they don't. That's too 14 bad, but it's the fact that there are such differences is 15 nothing out of the ordinary. 16 MR. GARBUS: Can I respond briefly, because I was 17 doing exactly what you just said, namely, before yesterday I 18 said I want two MPAA witnesses, I am prepared to go to 19 California for the two MPA witnesses. That's not an issue. I 20 understand that. 21 They are designating people as MPA witnesses and 22 representatives of the plaintiff. So they say if you want to 23 examine Universal, who brings an action here, you take the 24 witness out there. 25 I am prepared to go to California and have always 34 1 been and I set up schedules and I setup deposition dates. 2 I am prepared to go to the MPA in California at their 3 convenience. I am prepared to go to Washington at their 4 convenience consistent with the rest of the schedule. I want 5 to examine the eight plaintiffs in New York. 6 I can give names of people. I could have designated 7 it. They know the issues. 8 My assumption will be, and this also happens here, is 9 you designate, you say an officer so-and-so, they either 10 produce the right person or they don't. From what I have 11 understood about the people they offered to produce now, they 12 are the wrong people. That's my understanding. 13 I suggested Mr. Attaway when they told me Valenti 14 couldn't make it. When they told me Valenti couldn't make it 15 I said take Mr. Gotner. Mr. Gotner was here for a few days. 16 He was up in Yale. I sent in a reply to them I will take him 17 anywhere. 18 So I understand Rule 37, I understand that if I want 19 to examine a witness I have to go elsewhere who is not a 20 party. I understand the relationship between -- 21 THE COURT: I know you do. 22 MR. GARBUS: Surely. So what I want to do in New 23 York where I am today where these plaintiffs filed the lawsuit 24 I want to start their depositions now. 25 These notices were served, you say we are quarreling, 35 1 these notices were served six weeks ago with a prior 2 restraint. It's exactly -- what we asked in the notices that, 3 take the deposition of plaintiff Columbia Pictures, and this 4 is the same one that was sent to all of them, by one or more 5 officers, directors or managing agents. The people that they 6 have offered are none of those. 7 THE COURT: Yes, but your notice doesn't exactly 8 track the rule and they have a right to follow the law, not 9 your amended version of it. It goes on to say "or other 10 person who consents to testify on its behalf," doesn't it? 11 And when you serve a 30(b)(6) motion notice rather than 12 designating as you had the right to do who you wanted in the 13 first instance, you took your chance that they would designate 14 some person who maybe wasn't the one you wanted. 15 MR. GARBUS: Exactly, there was that possibility and 16 I now recognize that through that loophole they think they can 17 take these depositions and make them forever because they have 18 designated people who are that fourth group of people. 19 Therefore, I will start with the deposition which they have 20 chosen, learn very quickly that he is inappropriate and then 21 come back and examine somebody else. 22 I did what any other lawyer would do in a situation 23 like this since I don't know Universal, I don't know Sony, I 24 gave them the first choice. They have come in with the 25 people. Those people are not people who can respond. 36 1 THE COURT: I don't know who knows what so I 2 certainly have no informed judgment about which are the right 3 witnesses and I can't possibly resolve that now and I don't 4 intend to. 5 The only thing I intend to resolve right now is that 6 the MPAA people, other than those in Washington, are coming to 7 New York because, in my perception, this is an MPAA lawsuit, 8 whether they are technically a party or not. They are totally 9 identifiable with the plaintiffs and they are coming to New 10 York. 11 So far as D.C. is concerned, it is virtually a suburb 12 and Mr. Garbus can get on the shuttle. If I have to go to 13 D.C. for budget committee meetings, Mr. Garbus can go to take 14 a deposition. 15 MR. GARBUS: I will take the train. 16 THE COURT: You are probably wiser for doing so. 17 Okay. 18 Now, I am seriously considering advancing this trial 19 to the summer, probably the early part of the summer, and 20 consolidating everything with the trial. 21 If anybody wants to be heard on that any further, 22 this is the time. 23 MS. KILSON: Your Honor, nothing could please us 24 more. But in addition, I think we need to resolve today 25 somehow the issues related to the confidentiality stipulation, 37 1 because we do have a problem giving Mr. Garbus information 2 that is highly sensitive, particularly in this case, 3 particularly in a situation where he is prepared to come 4 before the court and misrepresent the facts, particularly -- 5 THE COURT: Let's try to avoid the ad homonim attacks 6 both ways. 7 MS. KILSON: Particularly in a situation who 8 represents clients who feel that absolutely anything and 9 everything should be on the Internet. I cannot give him the 10 kind of information that he is asking for without a 11 confidentiality order approved. 12 THE COURT: I understand that point. We are going to 13 talk about that in a minute. Let's talk about trial date. 14 MR. GARBUS: I think that after I have these 15 depositions of the plaintiffs, and I am telling this -- this 16 is now May 11. I would like, with your permission, to do what 17 I said at the very beginning, namely, come back to you after I 18 have had two weeks of solid depositions. 19 I want this trial as quickly as possible. I want 20 this injunction lifted. I have a responsibility to my client. 21 If I think at that point in time that I am prepared to go 22 ahead June, July, August, I will tell you. If I feel I am 23 not, I will tell you and you will decide. 24 THE COURT: I am disinclined to do that, Mr. Garbus, 25 and I am disinclined to do it for a number of reasons, only 38 1 one of which is your comments before indicating that if I 2 don't grant your motion to vacate now you are going to keep 3 making them until this case gets tried. 4 Now, we can do this either of two ways: 5 Either we will leave the trial date where it is and 6 you can have all the discovery that you want within reason 7 under the schedule we set to accommodate you in the first 8 place and I will decide the current motion when it is fully 9 submitted, and if I need to I will hold a short evidentiary 10 hearing, not a full trial on the merits, but that will be the 11 end of motions to vacate unless you win, or I am going, in all 12 likelihood, to move it all up so that the whole thing will get 13 done at once and be done quickly. 14 What is your pleasure? 15 MR. GARBUS: My pleasure is I exactly agree with you. 16 I would look for an October 1 trial date to make sure that I 17 can finish my discovery. If I can finish my discovery 18 quickly, in the next two or three weeks, I will tell you. 19 I think also as I said before, given the change in 20 the law that I think was the basis of a good deal of your 21 decision, I would ask that the injunction and the prior 22 restraint be vacated now. 23 THE COURT: Look, I heard that. I see no reason why 24 I couldn't accommodate an October trial. But I will consider 25 doing that if and only if I have your assurance that once the 39 1 current motion to vacate is decided, win or lose, there won't 2 be any more pending trial. 3 MR. GARBUS: Can I make a suggestion? 4 You have the papers before you now. I would ask as 5 follows: 6 That given the change in the law, which has nothing 7 to do with the facts, that you decide the motion to vacate the 8 injunction on the papers before you now; that if additional 9 discovery comes in, and it will come in -- it's really close 10 to a Rule 12 motion given the fact that the law has changed 11 without quibbling about whether or not it is or is not a Rule 12 12 motion -- and then if we have additional discovery that I 13 think is persuasive, I would ask you in a nice letter to 14 consider the reargument of the motion if you were to deny it. 15 THE COURT: The essence of your position is that I 16 relied on Junger for the proposition that there was limited 17 expressive value to a computer program, and you say the law 18 has now changed because the Sixth Circuit overturned that, 19 right? 20 MR. GARBUS: Yes -- no, no, it's much more than that. 21 It's much more than that. 22 THE COURT: What? 23 MR. GARBUS: You wrote a 20 page decision which dealt 24 with some very sophisticated First Amendment issues and you 25 were dealing with balancing tests and you were considering and 40 1 you talked about Professor Nimmer and you talked about the 2 different values at stake, and you then, as you weighed the 3 balance with respect to copyright, First Amendment, fair use, 4 you said what is the value of the speech in this particular 5 case, and you said you heard Bernstein, you said there is 6 disagreement in the courts, and I don't know before or after 7 your decision the circuit court in Bernstein pulled back its 8 decision for a variety of reasons. So the fundamental 9 underpinning, the analytical reasoning that went into your 10 decision was correct at the time if Junger was the law. 11 Junger is not the law. That means -- pardon me, Junger is the 12 law, Sixth Circuit law. That means the entire balancing is 13 different. The value and the protection that has to be given 14 to this speech is totally different. That requires -- 15 THE COURT: Why? 16 MR. GARBUS: Why? 17 THE COURT: Yes, why? I hadn't read the Sixth 18 Circuit opinion in Junger because the first time I found out 19 about it was when you spoke about it about 20 minutes ago. 20 MR. GARBUS: It's in our brief. There is nothing I 21 can do about that. It's in our brief. 22 THE COURT: In your brief? 23 MR. GARBUS: It's in the brief that we submitted last 24 week. 25 THE COURT: On a motion that is not yet ready for 41 1 decision, right? On a motion that the defendants haven't 2 answered; right? You certainly didn't mention it in the 3 papers on this motion today. 4 MR. GARBUS: Judge, I don't know what to say. It's a 5 Sixth Circuit decision. You sit as a federal court judge. 6 The Sixth Circuit decision comes down. It was a decision 7 directly on point. They get an injunction, they don't bring 8 it to your attention. I'm somehow remiss because I only tell 9 you about it two weeks ago there is a prior restraint and I'm 10 somehow not supposed to discuss Junger. 11 THE COURT: Nobody said that, Mr. Garbus. 12 MR. GARBUS: It's impossible. 13 THE COURT: Nobody said that. I have tried to get 14 you to tell me what the basis of the decision is and you are 15 more interested in making a speech. 16 MR. GARBUS: No, I'm telling you what the basis of 17 the decision is. 18 THE COURT: What is it? 19 MR. GARBUS: Which decision, your decision or -- 20 THE COURT: Junger in the Sixth Circuit. 21 MR. GARBUS: Junger says that source code or object 22 code is expressive First Amendment speech, protected speech. 23 It says the opposite of what you said, basically, when you 24 took a look at the value of what is source code or object code 25 speech. 42 1 It may be a decision that is hard to understand, but 2 we both know that expressive -- the codes that are involved 3 here are things like this which have no meaning to you or to 4 me and -- to me and nobody in this room would understand it 5 and you might not feel that that expresses anything, and the 6 court expressed as it balanced the right of the speech being 7 suppressed that this was of very, very little, very very 8 little value. That's what the lower court decision said in 9 Junger, this is not gobbledegook, but it is certainly not 10 First Amendment -- 11 THE COURT: Believe me, I know the difference between 12 source and object code. 13 MR. GARBUS: What the court said in Junger and we 14 cite on page 28 of our brief and they relied on the same 15 affidavits that we have submitted to you -- pardon -- the same 16 affiant. 17 THE COURT: Was this on a motion for summary judgment 18 or after trial? 19 MR. GARBUS: I don't know the answer to that. 20 THE COURT: Do you think it might make a difference? 21 MR. GARBUS: I don't know the answer to that and I 22 don't know whether it would make a difference because I don't 23 know the answer to that. 24 THE COURT: I don't yet have a record before me even 25 to know whether there is a triable issue of fact on the extent 43 1 to which this is expressive or not, do I? 2 MR. GARBUS: Here is what the court said in Junger, 3 and this is page 28 of our brief, and I apologize for not 4 having brought it to your attention here. It says, because 5 computer source code is an expressive means for the exchange 6 of information and ideas about computer programming, we hold 7 that it is protected by the First Amendment. The court there 8 explained -- that's the end of the quote. Now I'm writing my 9 brief. 10 The court there explained after observing that the 11 Supreme Court has expressed the versatile scope of the First 12 Amendment by labeling as unquestionably shielded the artwork 13 of Jackson Pollack the music by Arnold Schoenberg -- this is 14 in my brief. 15 This is what the court says. The functional 16 capability of source code and particularly those of encryption 17 source code should be considered when analyzing the 18 governmental interest in regulating the exchange of this form 19 of speech. In Turner Broadcasting, the Supreme Court noted 20 that although asserted governmental interest may be important 21 when the government defends restriction on speech, it must do 22 more than simply posit the existence of the disease sought to 23 be cured. 24 This is the government, the government must 25 demonstrate that the recited harms are real, not merely 44 1 conjectural and that the relation -- regulation will, in fact, 2 alleviate those harms in a direct and material way. 3 It seems to me that as I look at your analysis, 4 correct at the time perhaps, that you were trying to say, and 5 this is not -- and it goes to the entire decision -- that this 6 is very minimally protected First Amendment speech if it is 7 protected speech at all. 8 I have to balance that, you say in your decision, 9 against the potential for extraordinary harm and damage. And 10 in a copyright case it's not just the immediate harm, it's the 11 harm that can come down tomorrow or whether you call it the 12 foreseeable harm, whatever that language might be. 13 I think once you change the balance and once the 14 language becomes protected speech, then all the definitions 15 change of what you have to find on the other side. 16 THE COURT: Look, you may ultimately persuade me, but 17 what you have told me thus far doesn't get me very far and it 18 doesn't get me very far because the portion of Junger that you 19 read to me posits as a premise that it is protected -- that it 20 is expressive speech, and my decision posits as a premise, 21 although dubitante, that is expressive speech and, therefore, 22 while there may be other things in the decision which I'm 23 frank to say I haven't yet seen that suggest a different 24 analysis, the portion you have quoted to me doesn't yet do it. 25 This isn't the time to argue that, we will obviously 45 1 go to that, and I am extremely mindful of the importance of 2 the issues in this case, as I think ought to have been clear 3 from what I have said already. 4 Nonetheless, we got off the track. The track is 5 accelerating the trial. 6 MS. KILSON: Your Honor, again, I would urge you to 7 accelerate it even further than October 1. There haven't been 8 any discovery violations in this case and if you set a sooner 9 trial date we will do everything possible to make sure that 10 the plaintiff's get whatever discovery they need just as 11 quickly as we can make it available, subject to an appropriate 12 confidentiality stipulation. 13 THE COURT: Your position is clear. 14 What about you, Mr. Garbus? 15 MR. GARBUS: I will not make another motion to vacate 16 the injunction except that after the close of all discovery if 17 appropriate I will make a motion for summary judgment, if not 18 I won't make it. 19 THE COURT: All right. I will consider all of that. 20 Now let's deal with this confidentiality order issue. 21 I don't want to get into the line by line squabbling 22 over the order if it can be avoided and I understand that 23 Mr. Garbus isn't quite ready to do that any way. 24 MR. GARBUS: I haven't seen their latest order. 25 THE COURT: Whatever. You will have the opportunity. 46 1 Let me just offer you these words of guidance: 2 This issue has come before me quite a few times in 3 six years. When the parties have been unable to work it out 4 between themselves and I have been forced to do it, I have, I 5 think, invariably and certainly almost invariably done 6 essentially this: 7 Either party has the right to designate as 8 confidential any documents, testimony or other materials which 9 it in good faith believes requires that protection. The 10 documents are produced. The recipient may use the information 11 only for purposes of the litigation and may not disclose it. 12 In the event the recipient believes that material has 13 been designated as confidential which ought not to be treated 14 in that manner, the recipient then must bring that to the 15 attention of the party who designated it as confidential and 16 if they can't agree on the treatment of the particular 17 information in question can then raise the question with the 18 court, but only after exhausting attempts to agree. At that 19 point the burden will be on the party who seeks confidential 20 treatment to persuade me that there is good cause for keeping 21 the material confidential. Any confidential information that 22 is filed with the court will be filed under seal and available 23 only to the counsel in the case. 24 Sometimes these orders have had two levels of 25 confidentiality, counsel's eyes only and a broader category 47 1 that allows clients to see it. I don't know in the first 2 instance whether that is appropriate here or not. 3 MS. KILSON: We need that, your Honor. In fact, in 4 this case we need a third category. 5 THE COURT: And what might that be? 6 MS. KILSON: We are concerned that there may be 7 certain information that simply cannot be disclosed in this 8 case unless the court orders otherwise even to counsel. 9 For example, your Honor, to the extent that the movie 10 studios are working on new encryption technologies, certainly 11 Mr. Garbus, the defendants are entitled to learn in general 12 the contours of those technologies, but there may be specific 13 details regarding them that simply should not be disclosed and 14 don't need to be disclosed in this case. 15 THE COURT: If Mr. Garbus asks for it and if you 16 can't work it out, I will deal with it. But for now, 17 Mr. Garbus, you should go back to your office, read their 18 proposal and sit down together and get this resolved today, 19 and if you can't get it resolved today I will resolve it if 20 need be tomorrow. 21 MR. GARBUS: I am prepared to sit 24 hours and go 22 through every document they show me today. 23 THE COURT: The first thing you have to sit 24 hours 24 doing, and I trust it won't take more than an hour, is working 25 out the terms of this order so they can start giving you the 48 1 documents. 2 And if there are materials that you wouldn't in any 3 case designate as confidential, Ms. Kilson, you should start 4 producing them. 5 MR. GARBUS: That's what I asked for. 6 MS. KILSON: We already committed to start producing 7 documents this week. 8 MR. GARBUS: When? 9 THE COURT: Let's not have any cross talk. 10 MS. KILSON: We need attorneys' eyes only protection. 11 THE COURT: If you can agree on it, I don't have to 12 deal with it. If you can't agree, you will explain why. 13 MS. KILSON: Documents have already been requested 14 that we feel we can't produce under any circumstance. 15 THE COURT: Work out the order, and as to that, see 16 if you can work that out. I just don't need to decide things 17 that you can work out and I don't want to be the place of 18 first resort to the exclusion of talking to each other. 19 MS. KILSON: Understood. 20 THE COURT: Is there anything else? 21 MR. GARBUS: Absolutely. 22 We now have to deal with discovery, we have to deal 23 with depositions. I am prepared to start tomorrow morning at 24 10:00 o'clock in New York with the plaintiffs' witnesses. 25 THE COURT: As I understand it, you have been offered 49 1 Schumann tomorrow morning in Washington. If he is one of the 2 people you want, why don't you get on the shuttle and go take 3 him. 4 MR. GARBUS: I will. Then next Monday, Tuesday, 5 Wednesday, Thursday, Friday, I would like a witnesses from 6 each of the plaintiffs. 7 MS. KILSON: Your Honor, he hasn't noticed a witness 8 from each of the plaintiffs for every day next week. It's 9 not -- 10 MR. GARBUS: No, I started -- 11 THE COURT: Don't interrupt. 12 MS. KILSON: It's just not feasible, your Honor, even 13 if we wanted to do it. We can only deal with the discovery 14 requests that are served. 15 I have partners of mine who have been in Los Angeles 16 all week getting Mr. Jacobsen ready to testify on the 16th and 17 the 17th. 18 THE COURT: Nobody, I think, has given me copies of 19 the deposition notices, but what I understand -- 20 MR. GARBUS: I have given that. Exhibit D to 21 Ms. Miller's affidavit. 22 THE COURT: Are these the same things that are 23 summarized, Mr. Garbus, in your letter of May 1 to me? 24 MR. GARBUS: If the second page of that letter is a 25 list -- 50 1 THE COURT: It is. 2 MR. GARBUS: That's it. 3 MS. KILSON: They are all 30(b)(6) notices. 4 THE COURT: So what? 5 MS. KILSON: And we have chosen to designate 6 Mr. Schumann and Mr. Jacobsen. 7 THE COURT: And they are designees of MPAA? 8 MS. KILSON: They are employees of MPAA, they are 9 designees of the plaintiffs. 10 THE COURT: Which plaintiffs? 11 MS. KILSON: All of them, with the exception of Time 12 Warner. 13 MR. GARBUS: They did that yesterday evening, your 14 Honor. They originally were witnesses of the MPA, then we 15 said we want plaintiffs, they said they are both MPA and 16 plaintiffs. 17 MS. KILSON: I think that we ought to have the 18 testimony taken before we come to the conclusion that these 19 witnesses are not fully knowledgeable about the issues. 20 THE COURT: It sounds like to me, Mr. Garbus. Why 21 not? 22 MR. GARBUS: I am prepared to take them in New York, 23 then. If they are -- I mean, I will go to Washington 24 tomorrow, Monday and Tuesday in New York of the plaintiff's 25 witnesses. I am prepared to do that. 51 1 THE COURT: How about Tuesday and Wednesday? 2 MR. GARBUS: Fine. 3 THE COURT: Okay. 4 MR. GARBUS: In New York. 5 THE COURT: In New York. 6 MS. KILSON: I have just been advised, I apologize, I 7 have been involved in this case for about three days and I am 8 covering for Mr. Gold. I misspoke. Mr. Schumann is not an 9 employee of the MPAA. 10 THE COURT: Who does he work for? It doesn't matter. 11 MR. GARBUS: I can tell you -- 12 MS. KILSON: An independent consultant, your Honor. 13 MR. GARBUS: He has his own company called Cingaa, 14 LLC. He is a man in the street. 15 MS. KILSON: Your Honor, he has been designated to 16 appear on behalf of the plaintiffs pursuant to the deposition 17 notices that we got. 18 THE COURT: I got it. I got it a long time ago. 19 So you are going to have Schumann in Washington 20 tomorrow, Jacobsen in New York Tuesday and Wednesday. I 21 understand you have Valenti scheduled for June 6. You are 22 going to have Attaway when he gets down off the mountain. 23 MS. KILSON: Correct. 24 THE COURT: If there are other specific individuals 25 you want, Mr. Garbus, talk to Ms. Kilson about it and try to 52 1 be a little reasonable with each other. This kind of blanket 2 demand that they just produce people day after day after day 3 without even names and without regard to which the depositions 4 have been noticed is not the way it ought to be done. 5 MR. GARBUS: I must say, and I won't say anything 6 again, we gave them the courtesy of making the first selection 7 on the assumption that they would be reasonable about it. 8 I would ask that that be done of me and maybe -- 9 THE COURT: Maybe they have been reasonable about it. 10 Until you see what these people have to say you don't quite 11 know. They may be the most knowledgeable people. 12 MR. GARBUS: I know they are not. 13 THE COURT: Then you should have picked the ones who 14 were. 15 MR. GARBUS: I don't know who the ones are. I don't 16 know who the people are within the companies that deal with 17 CSS and -- 18 THE COURT: Do you want me to designate Woody 19 Woodpecker and Donald Duck? I don't know them, either. 20 MR. GARBUS: I will give you a list at the end of the 21 day of those witnesses. 22 THE COURT: Fine, give me a list. 23 MS. KILSON: I respectfully ask the relief requested 24 in the order to show cause be denied. 25 THE COURT: I am taking the order to show cause under 53 1 advisement. 2 MS. KILSON: There is one additional thing. I did 3 ask you if we could have the return date on the pending 4 motions adjourned until the 15th of June -- rather, the date 5 for the submission of plaintiffs' papers adjourned so we can 6 have a crack at some discovery -- 7 THE COURT: When are your papers now due? 8 MS. KILSON: May 17, your Honor. 9 Obviously, the defendants are getting some discovery 10 that they can use in their submissions to the court. It ought 11 to be a two-way street. 12 THE COURT: Mr. Garbus? 13 MR. GARBUS: I object. The motion is due, it is 14 returnable May 17. There is a defective prior restraint order 15 that is now in effect that is factually incorrect. They have 16 already been given -- I object to it. There is no reason why. 17 I ask that the motion be decided now. I understand the 18 court's reluctance to do so. I don't think there should be 19 any time beyond May 17. 20 MS. KILSON: Your Honor, we have been given 18 21 declarations. We would like an opportunity to depose at least 22 the most important of the declarants. 23 There has been a lot of pressure put on the 24 plaintiffs to advance discovery to the defendants and the 25 result is that that discovery is available to the defendants 54 1 for use in their reply submissions and should be a two-way 2 street. 3 MR. GARBUS: Two-way street? They have an order to 4 show cause here in 24 hours where the man didn't have a lawyer 5 where he didn't submit any papers. 6 THE COURT: There were papers, it wasn't 24 hours, he 7 did have a lawyer. I mean, you know, I was here. There was a 8 record. 9 MR. GARBUS: I saw the record. 10 THE COURT: I will take that under advisement as 11 well, Ms. Kilson. 12 MS. KILSON: Thank you. 13 14 - - - 15 16 17 18 19 20 21 22 23 24 25