FITUG e.V. Förderverein Informationstechnik und Gesellschaft

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 <CYBERIA-L@LISTSERV.AOL.COM> From: John Young <jya@PIPELINE.COM> Subject: Decision on MPAA Motion to Close Depostions To: CYBERIA-L@LISTSERV.AOL.COM

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 hearing.

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) days.

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.

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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 required.

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.) ------- End of forwarded message -------

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