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[FYI] (Fwd) Decision on MPAA Motion to Close Depostions

------- Forwarded message follows -------
Date sent:      	Tue, 6 Jun 2000 22:38:27 -0400
Send reply to:  	Law & Policy of Computer Communications
From:           	John Young <jya@PIPELINE.COM>
Subject:        	Decision on MPAA Motion to Close Depostions

At a hearing today in SDNY on the MPAA motion to bar
public and press access to depositions, after arguments
by MPAA, 2600, the Times Mirror for Newsday, the Village
Voice and Mike Godwin (for himself only, Declan McCullagh
was not granted leave to intervene), Judge Lewis Kaplan ruled:

1. Because he had approved the confidentiality stipulation
between parties yesterday that was no longer an issue for the

2. Stipulated confidential information includes: that which could lead
to harm of a depondent; trade or business secrets; information on
present or future encryption protection measures. Excluded is
information or testimony that is embarrassing to depondents.

3. Judge Kaplan emphasized that protection of encryption information
is limited to the discovery phase since such information is the heart
of the suit and is therefore likely to become public during trial.

4. As a result of today's arguments, the terms of the stipulation will
be modified in lieu of a blanket protective order, as follows:

5. Publicly released material can be posted to the Internet as
with any other medium.

6. The press and public will not be allowed to sit in on depositions.

7. Depositions of "prominent" depondents such as Jack Valenti,
Michael Eisner (or his substitute) and Fritz Attaway (head of
DVD CCA) shall be excised of stipulated confidential information
and released to the public within three (3) days. (Jack Valenti was
deposed this morning in Washington D.C. and that material shall be
treated as set forth by today's ruling.)

8. Parties may propose additional "prominent" depondents to the Court
for consideration.

9. Videotape of depositions shall be treated the same as text.
(The Valenti deposition was videotaped.)

10. Depositions of "non-prominent" depondents shall be excised of
confidential information and released to the pulbic within ten (10)

11. Judge Kaplan will be available to promptly adjudicate disputes on
designation of confidentiality, but said that plaintiffs and
defendants will be subject to harshest sanctions if he finds that
there is a deliberate effort to abuse designation of confidentiality
or to otherwise inhibit speedy trial preparation.

A hearing on discovery is scheduled for Thursday, June 8, 2000.


The courtroom had more people than previous hearings I have
attended. In addition to the five legal teams, in attendance was Wendy
Seltzer of OpenLaw, Declan McCullagh of Wired, Cark Kaplan of the New
York Times, Jeff Howe of the Village Voice, Rita Ciolli of Newsday,
Dave Buchwald and John Katz and Mollie X,  Deborah Natsios (my
partner), 3 or 4 observers from Proskauer and a half dozen other
scribblers and secret agents of unknown identity.

Judge Kaplan was marginally less hostile to the defense but regularly
admonished Marty Garbus who as ever was unfazed. (These exchanges are
quite admirable swordplay.) Kaplan was genial and even humorous for a
change and threatened the lawyers only once with fire and brimstone
for refusing to ease up on harassing each other (applying the metaphor
of two scorpions in a bottle fighting to the death). He thundered that
there is rule which allows him to personally charge a miscreant with
the financial cost of delay which he will invoke with pleasure if

Proskauer complained that their filings appear on the Internet within
a day or two of submission. Kaplan said get used to it, that's the way
the world now works, that now even judge's financial statements are on
the Internet. (He didn't say that the judicial conference arranged
APB's insolvency with the wiseguys at Gambino's across the park.)
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