1 United States District Court 2 For the northern district of California 3 San Jose division 4 5 Religious Technology Center, ) Case No. C-96-20271 RMW A California non-profit ) 6 organization, ) San Jose, California ) 7 Plaintiff, ) May 22, 1998 ) 8 vs. ) Pages 1-57 ) 9 H. Keith Henson, an ) Individual, ) 10 ) Defendants. ) 11 _____________________________) 12 13 Transcript of proceedings Before the honorable Ronald M. Whyte 14 United States District Judge 15 appearances 16 for the plaintiff Paul, Hastings, Janofsky & Walker By: Samuel D. Rosen 17 399 Park Avenue New York, New York 10022 18 Rabinowitz, Boudin, Standard 19 Krinsky & Lieberman By: Eric M. Lieberman 20 740 Broadway - fifth floor New York, New York 10003 21 22 23 reported by: Lee-Anne Shortridge, csr #9595 24 Appearances continued on next page 25 Computerized transcription by Stenocat 1 1 appearances (con't) 2 for the plaintiff Law offices of Moxon & Kobrin By: Helena K. Kobrin 3 6255 Sunset Boulevard, Suite 2000 Los Angeles, California 90028 4 5 for the defendant Berry, Lewis, Scali & Stojkovic H. Keith Henson By: Graham E. Berry 6 One Wilshire Boulevard, 21st floor Los Angeles, California 90017 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 1 Friday, May 22, 1998 2 The Clerk: Case number C-96-20271, Religious 3 Technology Center versus Keith Henson. 4 Counsel, if you'll come forward and state your 5 appearances. 6 Mr. Rosen: Good morning, your Honor. Samuel Rosen, 7 Paul, Hastings, Janofsky & Walker for RTC. 8 Mr. Berry: Good morning, your Honor. Graham Berry 9 of Berry, Lewis, Scali & Stojkovic for defendant Mr. Henson. 10 The Court: All right. There are two matters on 11 this morning. One was the order to show cause as to why the 12 transcript from the trial proceedings should not be unsealed, 13 and the issue of whether Mr. Henson should be held in contempt 14 for the alleged posting of the sealed transcript. 15 Let me make a couple of preliminary comments so that 16 I make sure everybody is on the same wavelength with me. 17 Although these are set for the same day, they're really not 18 directly related to one another. 19 The reason that I issued the order to show cause 20 with respect to the unsealing of the transcript was that it 21 seemed to me that at least a substantial portion of the sealed 22 transcript did not need to be sealed because there was nothing 23 confidential that was disclosed in it. 24 And frankly, I have some substantial question as to 25 whether anything that actually ended up being discussed in the 3 1 closed session is such that sealing was necessary. 2 And I think what I'm going to do with respect to 3 that, but I'll hear you out if you have anything you want to 4 say, is to ask RTC to file a brief, and it can be under seal if 5 they wish, to specifically identify those portions, if any, in 6 the sealed transcript that they feel need to be sealed for some 7 reason. 8 It seemed to me, and I haven't gone back and done a 9 complete comparison, but that much, if not all, of the types of 10 things that were discussed in the sealed portion of the 11 transcript were things that I have read in, for example, the two 12 cases that were cited during the course of the trial, and it 13 really didn't get into a disclosure of those things that seemed 14 to be particularly sensitive to Scientology as far as their 15 confidential religious documents, or what they considered their 16 confidential religious documents. 17 So that's the reason for that order. It did not 18 have anything to do with the alleged action by Mr. Henson. 19 The order to show cause as to Mr. Henson was issued 20 because there was a clear order made, in his presence, which 21 indicated that the transcript was to be sealed. 22 Then there was presented to me evidence from which 23 it appeared that despite that sealing, that the night that the 24 sealing took place, the transcript was published on the 25 internet, and certainly that gives rise to a question as to 4 1 whether or not there was a violation of the court's order. 2 The application by RTC requested an order to show 3 cause as to both civil and criminal contempt as I recall. 4 It seemed to me, and I'd like to hear from RTC on 5 this issue, that we were really talking about potential criminal 6 contempt because it seemed to be a situation where, if action 7 were taken by the court, it would be punishment rather than an 8 attempt to coerce compliance with a court order, because 9 there's -- I don't know what could be coerced at this point. 10 If there's another basis for considering civil 11 contempt, the court would be willing to at least consider that, 12 but whether it'll have an effect or not, I don't know. 13 But there is clearly a difference in the burden of 14 proof, both as to the standard and what's required between civil 15 and criminal contempt. 16 So with that, let's take the first issue first, and 17 that is the OSC with respect to unsealing the transcript. 18 Mr. Rosen, do you want to be heard on that? 19 Mr. Rosen: Yes, your Honor, just briefly. 20 As the submission that we made to the court this 21 past Wednesday indicates, the critical portion of our request to 22 continue the seal is simply that the -- whatever is on that 23 transcript, although it has been out earlier, was out illegally. 24 Your Honor -- 25 The Court: Well, that's not -- that's not what I'm 5 1 clear on, because -- and that's why I made the point I did of 2 needing to know specifically what it is in that transcript that 3 you think is confidential, because certainly, for example, 4 there's discussion of e-meters in the cases that were cited. 5 Mr. Rosen: Sure. 6 The Court: And there's a large portion of that 7 transcript that has nothing to do -- not a large portion, but 8 there's a significant portion that really has nothing to do 9 directly with the contents of NOTs 34, and that shouldn't be, in 10 my view, sealed. 11 So what I wanted to see was a specification by RTC 12 of exactly which pages and lines it felt potentially revealed 13 something that was confidential and why it should remain sealed, 14 and then I could make a decision on whether to do that. 15 Mr. Rosen: I fully understand, and your Honor 16 indicated you'd like us to brief that. If it would be 17 acceptable to the court, may we have until next Friday to do 18 that? And we will give you page and line numbers. 19 The Court: That seems reasonable to me. 20 Mr. Rosen: Okay. Now, the point I was making is 21 this: I completely agree that there are lines and sections of 22 the transcript having nothing to do with NOTs 34, and indeed, 23 having to do in an oblique way with material that is already 24 public information, for example, the e-meter example that your 25 honor used. 6 1 And we do not -- if what your Honor is going to do 2 is now move from a blanket seal of the entirety of it to a more 3 specific and refined seal as to those portions, we are not going 4 to ask your Honor to seal any of that material, anything that is 5 unrelated to NOTs 34 or anything which is already properly 6 public information, for example, the e-meter. 7 So what our brief will present is just those 8 portions which are not properly, and have not properly been 9 placed by us in the public domain. 10 The Court: Well, that's what I'm asking for, and I 11 don't want to make any representations to you that I'll 12 necessarily agree with you, but that's what my concern is, and 13 that's why the OSC at this point specifically said I'm not 14 considering, at this point, unsealing NOTs 34, which was sealed. 15 I'm still open for somebody, at some point, to make that 16 application if they wish to do so. But that's not the basis of 17 my OSC. 18 The basis for my OSC was looking over the transcript 19 and saying, you know, I think I have an obligation to keep as 20 much public as I can, and there's a lot in here that doesn't 21 seem to me that needs to be sealed. In fact, there may not be 22 any part. 23 And I want to have a specification of what it is 24 that RTC feels, given what was testified to, they feel should 25 still be sealed and I'll take a look at it. 7 1 Mr. Rosen: Okay. And we agree with that, and as I 2 say, we will not ask you to seal, to retain the seal on anything 3 other than those particular things, and it will be a finite 4 portion of the transcript, that do disclose, in the context of 5 reference to NOTs 34, certain materials which we believe were 6 never properly put, by us, into the public domain. 7 So we will do that and I appreciate your Honor 8 giving us the opportunity to move from what I think is the 9 general seal order into a more specific and refined one. 10 And we have no objection to your Honor's thinking in 11 terms of whatever can -- whatever is properly disclosable should 12 be excluded from the seal. 13 The Court: Okay. 14 Mr. Berry: Your Honor, may we have until the 15 following Friday to respond? 16 The Court: Yes. 17 Mr. Rosen: Your Honor, just one quick comment on 18 the civil versus criminal contempt issue. 19 The Court: Okay. Are we both done with the first 20 issue, the unsealing issue? 21 Mr. Berry: As far as the defense is concerned, yes, 22 your Honor. 23 Mr. Rosen: Yes. 24 The Court: Okay. So then the matter will be 25 submitted as of -- 8 1 The Clerk: June 5, your Honor. 2 The Court: That's correct. 3 Mr. Rosen: Will your Honor want an appearance on 4 June 5? 5 The Court: No. I was planning just to do it on the 6 papers. 7 Mr. Rosen: Okay. 8 The Court: If there's an issue that arises because 9 of what's been filed, I'll certainly let you know. But I was 10 planning on submitting it without argument. 11 Mr. Rosen: And just a preliminary comment on the 12 civil versus criminal. The reason that we did ask for both 13 goes, as your Honor indicated, not only to the burden of proof, 14 but -- and the differences, but there are essential elements of 15 Mr. Henson's conduct that fit quite well within the contours of 16 civil contempt. 17 It is the injury, the reparation of the injury to us 18 by his conduct, and it is also coercive in the sense of not 19 merely coercing further compliance with the sealing order, but 20 coercing further compliance with all the orders of this court, 21 and I think that is a proper ground for the coercive nature of 22 civil contempt. 23 When you get up to hearing the contempt motion in a 24 minute or so, on the criminal side, obviously this has been 25 initiated by your Honor's order, but we have a significant 9 1 amount of evidence to present on the issue of Mr. Henson's state 2 of mind and his intentional misconduct in doing that that your 3 honor may not be aware of from his postings and newspaper 4 articles and the like and, of course, Mr. Berry's statements 5 there were in writing as well, which confirm our view as to the 6 conduct and how it came about. 7 But there is a substantial difference, and I think 8 that -- 9 The Court: There clearly is. The question I had, 10 though, was let's assume that there were a finding, for the 11 moment, that he knew of the order and he posted the sealed 12 portion in violation of that order. What would be a civil 13 contempt remedy? 14 Mr. Rosen: Well, the criminal -- let me start with 15 what it is not. The criminal contempt remedy addresses 16 punishment for an offense to the integrity of the court and its 17 orders. 18 So as your Honor's order to show cause indicates, 19 quite correctly, the remedies available are incarceration, fine, 20 or both, and that does nothing in terms of remedy for 21 prospective coercion, except to the extent that one believes 22 incarceration has that capability. 23 Nor does it do anything to, in the nature of 24 reparation for our injury. 25 On the civil contempt side -- and the two are not 10 1 mutually exclusive. 2 The Court: Clearly. 3 Mr. Rosen: Mr. Henson will be held in violation of 4 both. 5 On the civil contempt side, there are two aspects 6 which are important to us. The first is the reparation of the 7 injury to us, and this is almost like a replay of the trial in 8 terms of willful infringement. 9 We have to -- if there is injury to us, we don't 10 have to quantify it, but the fact that there is injury to the 11 private parties on whose behalf the court's orders have been 12 entered is something which is classically remedied by civil 13 contempt, including a fine paid to us as opposed to the clerk of 14 the court, including attorney's fees in bringing the matter to 15 the court's attention, and most important, it seems to me the 16 essence of civil contempt being coercion for further compliance. 17 The point I was making earlier is I do not read the 18 cases on the subject of coercion of future compliance as limited 19 to this particular order. I think there's a broader basis of 20 coercion of compliance with the court's order, particularly in 21 view of what I think your Honor is going to see as extreme 22 conduct by Mr. -- By Mr. Henson and his counsel which reflects 23 very, very badly on the court, and it is clear that there is no 24 intention by Mr. Henson, or his counsel for that matter, to 25 comply with any order of this court. 11 1 The Court: Let's forget for the moment, just for 2 the purposes of discussion, compensation for injury to RTC. 3 What would be a coercive remedy? 4 Mr. Rosen: A prospective -- a coercive remedy would 5 be an order of civil contempt providing prospective penalties 6 now for any future violation of an order of this court, whether 7 it be in connection with this case, of course; whether it be the 8 order of the sealing; the permanent injunction which the court 9 has entered; any of that is -- it's classically civil contempt 10 on the coercion aspect of the order that is entered, and "from 11 this point forward, Mr. Henson, if you violate it, you shall be 12 fined x number of dollars a day in addition to any other 13 remedies," whatever it may be. 14 That's the nature of the coercion respectively, 15 which would -- 16 The Court: So you're not suggesting that there 17 could be a monetary award to accomplish -- for coercion 18 purposes, a monetary award in civil contempt would be 19 compensatory, and then there would be a future monetary amount 20 set for any future violations? 21 Mr. Rosen: That's correct. The only compensatory 22 award your Honor can issue in our favor, as opposed to directing 23 payment to the United States treasury, on a civil contempt 24 motion would be an amount that your Honor determines to, to be 25 sufficient to compensate us for the injury and our attorney's 12 1 fees. 2 Anything beyond that I believe is what your Honor 3 would ordinarily be considering in the nature of a punitive 4 action, like a fine payable to the clerk of the court. 5 The Court: All right, thank you. 6 Mr. Berry, let me make a couple of comments. One, 7 obviously criminal contempt is a criminal charge and Mr. Henson 8 is entitled to be represented, as he is, by you in that 9 proceeding, and it should be perceived as a criminal proceeding. 10 Mr. Berry: With the right to jury? 11 The Court: Only if it is, involves a potential fine 12 of over $5,000, I think it's $5,000 or six months incarceration. 13 I think if the penalty is limited to something less than that, I 14 don't believe there's a right to a jury. 15 But let me go on and finish and then I'll hear you 16 out. 17 But he certainly has a right to present evidence, 18 and he has a right to remain silent if he wishes. He has 19 basically the rights of a criminal defendant, and I do intend to 20 proceed on a criminal contempt proceeding. 21 I'm not suggesting in any way what the outcome would 22 be, obviously, but I do think there's enough that's been 23 presented to justify going forward on that. 24 With respect to civil contempt, I, frankly, would 25 like to see some briefing on whether or not civil contempt 13 1 procedure is appropriate under the circumstances of this case. 2 Some of what Mr. Rosen says, talking purely from a 3 legal standpoint, makes some sense to me, but I have not 4 specifically read cases that deal with the compensatory aspect 5 of civil contempt. I've seen that term used. 6 And I also have some question about the court's 7 ability, if it should find someone in civil contempt, to set up 8 a procedure whereby there is a monetary penalty set in advance 9 for future violations. So I need to have some briefing. 10 Mr. Berry: Your Honor, might I ask -- 11 The Court: May I finish, and then I'll hear you 12 out. 13 What I need to know from you is, one, whether you 14 are prepared to go forward with a criminal contempt hearing 15 today or you want additional time to prepare; and then, two, 16 what your position is with respect to the law on civil contempt, 17 not so much how you feel it applies to Mr. Henson specifically. 18 Mr. Berry: First of all, your Honor, might I ask 19 what papers are before this court since we're now precluded from 20 even speaking to the court? We're hearing references to papers 21 filed on a day which I have no papers for. We don't know what's 22 going on in this court because this court has precluded us from 23 making communication other than, other than in writing. We 24 don't know what's been issued. 25 The Court: You know why I made that order? Because 14 1 I have a real problem in this case with people misquoting, at 2 least apparently misquoting what's been told to them by the 3 court, and I'm not singling out anybody in particular in that, 4 but I just figured that as long as we're going to have 5 situations where people come in and say "the clerk said this, 6 the court reporter said this," or "I understand that this side 7 talked to somebody on your staff, how come we weren't included," 8 those kinds of things, it's just better to say, "okay, as a 9 blanket order, let's have everything addressed in writing so 10 there's no misunderstanding on anybody's part as to who's saying 11 what to whom." 12 Mr. Berry: We don't even know whether a judgment 13 has been issued yet, has been entered yet. We haven't got a 14 copy of any brief filed last, this past Wednesday that counsel 15 referred to. We can't call up and find out. 16 The Court: You can call the clerk's office. 17 Mr. Berry: We're precluded by the order from 18 calling the clerk's office. 19 The Court: I suppose technically you are, although 20 what I meant by "staff" was my courtroom deputy, but -- 21 Mr. Berry: What is before the court? 22 The Court: Let me ask you a question. 23 Mr. Berry: What is there -- 24 The Court: Let me ask you a question. What would 25 you do if you were me and you had the problem where people were 15 1 coming in and saying "your clerk said x, your court reporter 2 said x, your clerk did this, your court reporter did this," and 3 it's used in a proceeding and they are precluded from responding? 4 Mr. Berry: We didn't even call -- we haven't even 5 called the court. 6 The Court: I'm not talking about that. I'm not 7 talking about right now. There were certainly -- there were 8 certainly questions asked this court and staff of this court, 9 "who did what?" 10 And we always run the risk, particularly in this 11 case, of people, maybe innocently, misunderstanding what's said, 12 and one way to avoid that is to say "let's deal with everything 13 in writing." Is that hard? 14 Mr. Berry: Is there a brief that was filed on last 15 Wednesday, your Honor, that counsel referred to what we haven't 16 received? 17 Mr. Rosen: Your Honor, may I be heard? Here is a 18 proof of service. We filed a brief on the 14th of May. This 19 was our application for contempt. We filed it on the 14th of 20 May. Here's a proof of service on Mr. Berry, filed with the 21 court, mailed to him on the 14th. If he says he hasn't received 22 it -- 23 Mr. Berry: I have that, your Honor. 24 Mr. Rosen: Here is his address, properly addressed 25 to him. 16 1 Mr. Berry: He said this past Wednesday. That's two 2 days ago in my book. 3 Mr. Rosen: If that's what Mr. Berry is referring 4 to, we filed on Wednesday, timely in response to your Honor's 5 order that we file by May 20th, a response to the order to show 6 cause on the unsealing issue, and we filed it on Wednesday and 7 we served it upon Mr. Berry, and if he hasn't got it, I'm sorry. 8 Mr. Berry: Hasn't been served on me. I would have 9 thought, your Honor, under the circumstances, personal service 10 or fax service might have been appropriate. 11 The Court: Are you telling me you don't have it? 12 Mr. Berry: I don't have it, your Honor. And it 13 looks to be a substantial document, so I'm somewhat prejudiced. 14 The Court: What was the first question I asked 15 you? Are you prepared to go forward? The reason I asked you 16 that question is I thought maybe you'd say, "Judge, I need more 17 time." 18 Mr. Berry: I clearly do, your Honor. 19 The Court: Why don't you just tell me that and I'll 20 give it to you? Why do you have to be -- 21 Mr. Berry: Your Honor, I didn't even know the 22 document was filed until counsel just advised me. I was trying 23 to find out what this court had before it so I could know 24 whether I could respond today or ask, and request, a 25 continuance. 17 1 Mr. Rosen: Your Honor, can I be heard for a moment 2 just to clarify it? 3 The Court: No. Let's go one at a time. 4 (Pause in proceedings.) 5 Mr. Rosen: The document Mr. Berry is referring to 6 that was filed yesterday has nothing to do with the contempt. 7 It's the unsealing issue which your Honor has already resolved 8 by the briefing schedule. 9 The only document we have filed with this court 10 relative to the contempt is the document we filed on May 14th, 11 our application for contempt which Mr. Berry has acknowledged 12 that he has. 13 I will represent to the court and to Mr. Berry that 14 other than the filing made on the 14th of May, we have filed 15 nothing with this court relative to the issue of contempt, civil 16 or criminal. 17 The brief that we filed on the 20th of May, this 18 past Wednesday, had nothing to do with contempt. It had to do 19 with the sealing issue. So Mr. Berry has everything that the 20 court has. 21 The Court: Okay. With respect to your question, 22 Mr. Berry, as to whether a final judgment has been entered, 23 there is a final judgment that was filed on May 14th, 1998. It 24 shows mailing to Mr. Hogan's office on May 14th and to your 25 office on May 14th. 18 1 Mr. Berry: A final judgment entered? 2 The Court: Yes. 3 Mr. Berry: It hasn't been received, your Honor. 4 The Court: Did you receive it? 5 Mr. Rosen: Yes, your Honor. 6 Mr. Berry: Hasn't been received by my office, in 7 which case I'd ask for further time to file -- 8 Mr. Rosen: Your Honor, in fact, when we did -- if 9 your Honor will recall, before submitting it to the court, we 10 sent the proposed order, the final judgment, to Mr. Berry. 11 The Court: I didn't sign the one you sent in. I 12 did my own. 13 Mr. Rosen: I didn't say that. We put Mr. Berry on 14 notice with the one we were presenting. That's the one we were 15 going to submit to the court the following day. If he wanted to 16 meet and confer, if he had any problems with the form of the 17 order -- but we gave him notice we were presenting it the 18 following day and Mr. Berry did not give us any comments, 19 objections, no response to the order. 20 So we proceeded to submit our form of order, and as 21 your Honor said, you drafted your own. But Mr. Berry was on 22 notice it was being submitted to the court. 23 Mr. Berry: We had no objection to plaintiff's form, 24 but we have not received any alternate form, and I'd ask for 25 additional time to file the post-trial motions since we haven't 19 1 received it. 2 And we've been precluded from calling this court to 3 find out whether -- 4 The Court: Mr. Berry, would you just keep your 5 mouth shut for a minute? I have heard that several times. I've 6 explained to you why I did it. Maybe there's some modification 7 that needs to be made. 8 But there's something about your attitude, like you 9 just come in with the assumption that I'm trying to do 10 something, or we're trying to do something, to be unfair to you. 11 And I've tried, maybe you don't see it that way, but 12 I've tried to bend over backwards to be fair to both sides in 13 this case, and I'm going to continue to try to be so. 14 But some of your comments and the way you say them 15 make it very hard not to get angry. 16 (Pause in proceedings.) 17 The Court: I will show you a copy of the order and 18 we'll get you a copy right away. 19 There is apparently -- my clerk just advised me that 20 a notice of entry of judgment that was, at least it was filed 21 with this court and reflects a proof of service to you on May 22 20th by RTC. 23 Mr. Berry: I have not received that either, your 24 honor. I notice that the proofs of service are not putting my 25 firm name on them. I don't think that should affect that, but 20 1 it may. At least the court's proof of service. 2 The Court: What I'm looking for, Mr. Berry, and 3 maybe you can tell me off the top of your head, is what the time 4 limit is on motions following entry of judgment. 5 Mr. Berry: Ten days from entry of judgment, your 6 honor, is my understanding, and 30 days for the notice of 7 appeal. 8 Mr. Rosen: Your Honor, may I propose something on 9 this? We were going to ask for an additional seven days. We 10 have the same ten days for filing a bill of costs and 11 application for counsel fees. By our record counting, that date 12 would be next Thursday, the 28th of May. 13 We were going to ask for an additional seven days to 14 file both of those items, the bill of costs and attorney fee 15 application. 16 If Mr. Berry will consent to that, I, of course, 17 will have no objection and will consent to his additional seven 18 days then to file any post-judgment motions he cares to. 19 Mr. Berry: So stipulated. 20 The Court: All right. Is that sufficient for both 21 sides? 22 Mr. Rosen: Yes. 23 Mr. Berry: Ten days? 24 Mr. Rosen: Seven days from May 28th would be June 25 4th, I believe. 21 1 The Court: Let's take a look at a calendar. The 2 entry -- June 4th is Thursday. Shall we make it June 5th? 3 Mr. Rosen: That's fine. 4 Mr. Berry: Two weeks. 5 Mr. Rosen: June 5th is fine, your Honor. 6 The Court: June 5th? 7 Mr. Berry: No problem, your Honor. 8 The Court: All right. Let's get back to the other 9 question that I asked, Mr. Berry. Do you wish more time before 10 we proceed with -- 11 Mr. Berry: Yes, I do, your Honor. And perhaps I 12 might just indicate why the defense seems so outraged by what's 13 going on here in two minutes. 14 We have -- we have addressed the court before on 15 plaintiff's Fair Game policies, which involved the use of 16 litigation to harass litigants, and that is still going on here 17 today through of use of this criminal contempt process against 18 Mr. Henson. 19 Now, when Mr. Henson testifies, he will tell the 20 court that he did not get a copy of that transcript until 21 Tuesday afternoon, after the jury had returned; that the day 22 before that, the preceding evening, plaintiffs were understood 23 to have obtained a copy of the transcript. 24 And how did the transcript look? It did not have 25 any indication that it was sealed on the cover. It did not have 22 1 the sealed portion separate. It did not have a separate 2 diskette. 3 And plaintiff and their 11 attorneys from four 4 different New York law firms had that diskette a full 24 hours 5 before the defendant, and they combed it, presumably closely, 6 because they referred to it in testimony and in argument to this 7 court the next day. 8 And Mr. Rosen, I was standing beside him when he 9 went to the staff of this court and asked the next morning, 10 having received that very same transcript and having had it for 11 12 hours, "who else is receiving this transcript," he said. 12 He was told Mr. Henson was the only person. 13 The plaintiff had the document for a full 12, 24 14 hours before the defendant. They had the opportunity to note 15 that their pressure, presumably, upon the court's staff to turn 16 that document out so fast had led to the failure to properly 17 note on the document that it contained sealed portions other 18 than in the middle. 19 In those circumstances, your Honor, it is hardly 20 Mr. Henson's fault that the transcript did not properly alert 21 the world, on its cover, with a separate section, sealed, to 22 indicate the court's order. 23 The plaintiff had it for a full 24 hours before 24 Mr. Henson even got it. 25 And two nights later, not the same night, two nights 23 1 after the courtroom was cleared, it was posted not by 2 Mr. Henson, but by someone else. 3 And all of this talk of criminal conduct by 4 Mr. Henson is at variance with the facts and is the thing that 5 is stunning the press of this world. My phone is ringing off 6 the hook. People are unable to believe that this is happening 7 in this courtroom. 8 This defendant is being Fair Gamed continually, and 9 we're being asked to attend hearings, to file briefs at great 10 expense and inconvenience in circumstances which should be laid, 11 if at any door, the plaintiff's door, and that is what 12 Mr. Henson's evidence will show. 13 The Court: Are you contending that the plaintiffs 14 posted the, caused the document to be posted on the internet? 15 Mr. Berry: I'm not, your Honor. But this is 16 classic comparative fault. 11 Lawyers from four major law firms 17 billing about $30,000 a day had this document and failed to note 18 that it did not clearly indicate that it was a sealed 19 transcript. 20 The Court: So when a reporter provides dailies to 21 just the two participants in a lawsuit, it's supposed to 22 designate on the outside that a portion of it is sealed even 23 though they were there when it was sealed and the transcript 24 itself reflects at that point in time that it's ordered sealed? 25 Mr. Berry: Custom and practice. 24 1 The Court: All right. Well -- 2 Mr. Berry: All my experience in 25 years has 3 indicated -- the sealed transcript has a stamp on it. Certainly 4 the diskette, which is all Mr. Henson got, a diskette which he 5 gave to a friend, did not indicate on its cover that it 6 contained the sealed portion. It did not have a separate 7 diskette containing that sealed portion. 8 In these circumstances, your Honor, where the 9 plaintiff had the ability, instead of asking the court the next 10 morning "who's getting it," this transcript needs to have 11 stamped on it "sealed." This transcript needs to somehow 12 indicate it's sealed. 13 They did not do that. They allowed the horse to 14 escape from the barn, and in those circumstances, it is 15 outrageous that we are being put to the expense of criminal and 16 civil contempt. 17 The Court: What date do you want for a hearing? 18 Mr. Berry: 30 Days hence, your Honor. 19 The Court: Do you really need that much time? 20 Mr. Berry: We have to call witnesses. We have 21 other things to do, such as briefs. 22 The Court: Who do you wish to call as witnesses? 23 Mr. Berry: I wish to call Mr. Henson; I wish to 24 call Mr. Rosen as to his conversations with the court staff; I 25 wish to call the court reporter. 25 1 The Court: And now you're saying that my order 2 suggesting that correspondence with the court be in writing 3 doesn't make sense and you want to call the court reporter? 4 Mr. Berry: Well, how else, your Honor, are we going 5 to validate and authenticate? 6 The Court: That just proves my point as to why we 7 need to have correspondence, communication was this court in 8 writing. You want to know what Mr. Rosen talked to the court 9 reporter about. 10 Mr. Berry: I think we're entitled to, your Honor. 11 The Court: If that were in writing, we wouldn't 12 have this problem, right? 13 Mr. Berry: I think we're entitled -- if Mr. Henson 14 is being placed, in effect, on trial for criminal contempt in 15 these outrageous circumstances, he's entitled to call anyone who 16 has percipient knowledge as to the material facts. 17 The Court: Add to your brief whether or not it is 18 authorized under the evidence code to call a member of the court 19 staff, and look specifically at the code section that deals with 20 a Judge being a witness in a matter before him and the cases 21 under that and whether, what that says with respect to calling a 22 member of the court staff. I don't know the answer. 23 All right. Let's pick a date. 24 Mr. Berry: How long is the court allocating for the 25 hearing, your Honor? 26 1 The Court: How much time do you need? 2 Mr. Berry: Is potential penalty being kept at six 3 months? 4 The Court: Yes. That's what the -- 5 Mr. Rosen: Your Honor, I'm going to want to be 6 heard on that at some point, just to let you know. 7 Mr. Berry: 30 Days then, your Honor. Maybe June -- 8 The Court: How much time do you need, because that 9 affects when I set it. 10 Mr. Berry: Five hours. Four or five hours, max. 11 The Court: Mr. Rosen, how much -- 12 Mr. Berry: I'm factoring them in as well. 13 The Court: How much time do you think it would 14 take? 15 Mr. Rosen: Do we go first? 16 The Court: Well, one thing that I'm going to have 17 to decide is whether -- we're going to have one proceeding, but 18 whether it's going to consider both criminal and civil I'm going 19 to have to decide. 20 But yeah, I think that you would necessarily have to 21 go first because you're -- you've got the evidence that leads to 22 the -- 23 Mr. Rosen: If Mr. Berry -- 24 The Court: -- Charge. 25 Mr. Rosen: At this point, not knowing what 27 1 Mr. Berry is going to put in and who he's going to be allowed to 2 call, I can only guess and say if the defense is contemplating 3 five hours, then we would contemplate something less, maybe four 4 hours, in the presentation of our case-in-chief. 5 The Court: Well -- 6 Mr. Rosen: Probably less than that, your Honor. I 7 don't think we'd necessarily be calling Mr. Henson. 8 The Court: Well, you can't -- 9 Mr. Rosen: Rather than putting in his postings. 10 The Court: You can't in criminal contempt. 11 Mr. Rosen: I understand that, but I can put in his 12 postings. 13 The Court: And as long as criminal contempt is 14 considered, he can't testify unless he elects to. 15 Mr. Rosen: Well, the reason I rose when Mr. Berry 16 asked your Honor the question about what the limitations on the 17 remedies are, my intention was to put before your Honor today 18 just briefly the evidence that we have which bears upon 19 Mr. Henson's conduct, knowing that the criminal contempt 20 standard is either willfulness or reckless disregard. Either 21 one is sufficient for criminal conduct, because your Honor -- 22 The Court: I would like to see something that says 23 that. 24 Mr. Rosen: Oh, yeah. We've got several cases on 25 that. Reckless disregard of a court's order is criminal 28 1 contempt. 2 But beyond that, my intention was to put before your 3 honor materials that I think your Honor has not seen, because 4 it's -- it's then going to be your Honor's call, not mine, and 5 I'm not going to make any suggestion, as to whether or not your 6 honor does want to hold to the maximum penalty when you see the 7 evidence which I'll present in three minutes of what Mr. Henson 8 did on the criminal contempt side. 9 Your Honor may decide that you're not going to give 10 Mr. Henson the limitation of remedy that is set forth in your 11 order to show cause, and you may say, "okay, there is no 12 limitation of remedy and I'll have the United States attorney 13 prosecute it, and you can have your jury, Mr. Berry." 14 But that's a call your Honor makes and I'm not 15 taking a position. As far as I'm concerned, your Honor's order 16 to show cause on the criminal sanctions is okay with us. 17 I just don't want to be in a position of not having 18 done my duty to inform the court -- obviously when your Honor 19 issued that order and inherently placed a maximum criminal 20 sanction on Mr. Henson for his conduct, your Honor was not aware 21 of the evidence that we have. 22 If your Honor wants to consider that evidence and 23 maintain the position of maximum penalty so there's no jury, 24 that's fine with us. 25 And if your Honor wants to consider it and say "this 29 1 is more serious than I thought. I'm taking the cap off the 2 criminal sanction. Let's bring in the U.S. Attorney to 3 prosecute it with your jury," that's fine with us too. 4 I'm not going to intrude myself into what I consider 5 to be a remedy for the offense to the honor and dignity of the 6 court. That's not the issue. 7 But I think I do have an obligation to tell your 8 honor what the evidence is, and then your Honor will decide 9 whether you want to maintain the limitations of penalty set 10 forth in your order. 11 The Court: Well, it would seem -- Mr. Berry, you're 12 certainly welcome to speak on this -- that regardless of 13 consideration of what the maximum penalty would be, it does seem 14 to me that your client has got a right to know what the evidence 15 is with respect to his alleged criminal contempt, so it might 16 make sense to have Mr. Rosen present that evidence to us today, 17 and then set the hearing over for 30 days. 18 Mr. Berry: In other words, the court is proposing 19 that petitioner, as I think he now is, present its case and 20 respondent have 30 days to put on his defense? 21 The Court: Well, I'm really more suggesting that 22 there be a disclosure of what that evidence is and then have the 23 hearing 30 days from now. 24 Mr. Berry: That would be an efficient manner in 25 which to proceed, your Honor. 30 1 The Court: All right. 2 Mr. Berry: Mr. Henson would also like to be heard 3 for a second, himself. I think he wants to say something to the 4 court, politely. 5 The Court: Mr. Henson, you know, there's -- 6 Mr. Henson has not been impolite to the court. 7 The only thing, Mr. Berry, is that have you advised 8 Mr. Henson with respect to his rights? 9 And Mr. Henson, do you know -- 10 Mr. Berry: He's not going to speak on the merits of 11 the matter, your Honor. 12 The Court: -- Since there are potential criminal 13 proceedings that could take place, that you have an absolute 14 right to remain silent? 15 Mr. Henson: I understand that, your Honor. 16 I would like to apologize to the court and to the 17 plaintiffs for what I did. It was inadvertent, and there was no 18 intent behind it, and I'm very sorry that I caused any damage to 19 people. 20 The Court: Okay, thank you. 21 Mr. Rosen, do you want to just describe the evidence 22 that you have? 23 Mr. Rosen: Let me give you three or four minutes 24 worth, and I have documents which I'll give to opposing counsel, 25 so this is in the nature of disclosure. 31 1 The Court: All right. 2 Mr. Rosen: Your Honor ordered, of course, in this 3 court, with Mr. Henson present, the sealing of that portion of 4 the transcript consistent with the exclusion, the closing of the 5 courtroom. 6 That testimony was presented on the 11th of May. 7 That was a Monday. That evening, at approximately 10:00 P.M., 8 We got a transcript delivered to us, or picked it up here, from 9 the court reporter. 10 I saw the transcript the following morning at 7 11 a.M., And we were here in court a few minutes early before the 12 jury was expected, and as we had done in the past during the 13 trial, we notified your courtroom staff, in this case it was -- 14 I apologize, I don't remember Lee-Anne's last name -- 15 The Court: Shortridge. 16 Mr. Rosen: -- Ms. Shortridge that there was a 17 matter upon which we thought we needed to see your Honor, and it 18 had to do with the transcript that was delivered to us the 19 evening before. 20 The only question that we had, and Mr. Berry, in 21 fact, was standing right here next to me and participated in 22 this conversation, I said "you know, I got a copy of this 23 transcript last evening and it has the confidential portion in 24 it." 25 And the -- I said, "now, this is only going to the 32 1 parties, right?" 2 And Ms. Shortridge said "yes. I discussed it with 3 the Judge, and of course the parties are entitled to the 4 confidential transcript." 5 And she told us that you had -- the court had given 6 her specific instructions with respect to any other copies of 7 the transcript that were being filed or that may be asked for by 8 anybody else, that that portion was to be deleted and instead a 9 page was going to be inserted, which I believe she said would 10 indicate that the missing portions were placed under seal by the 11 court. 12 Mr. Berry was standing right here. I even asked -- 13 Mr. Berry: May I comment, your Honor? 14 The Court: Let him finish. 15 Mr. Berry: This is outrageous. 16 Mr. Rosen: When I asked Ms. Shortridge at that 17 point, "has anybody other than the plaintiff and us," excuse me, 18 "the plaintiff and the defendant asked you or placed an order 19 for any copy of this transcript of the entire," I'm not talking 20 just that day, because the copies of the transcript from prior 21 days of the trial had been circulated. 22 And she said "no. The only ones who, so far, have 23 requested copies have been the parties themselves." 24 At that point, I said, "okay, that's fine. As long 25 as you've got it under control and the parties, of course, get 33 1 the copy with the sealed portion in it because they're entitled 2 to it, but that all other copies, clerk's office and anybody who 3 buys it, will not have it." 4 That was it. And as a result of the information 5 provided by Ms. Shortridge, we had no need to impose upon your 6 honor. 7 So that was resolved. As long as we were 8 comfortable that that was what was happening and that was the 9 procedure that the court was using, that was fine. That was on 10 the morning of May 12th. 11 That afternoon, Mr. Berry delegated to his client 12 picking up a transcript in the form of a diskette. His client 13 then posted it that evening, I believe. It was posted on the 14 internet Tuesday evening or Wednesday morning, depending on what 15 time zone you're in. 16 We immediately wrote to Mr. Berry and we said, 17 "look, this is an outrage that this was posted." 18 Mr. Berry, who by the way, I should tell you, 19 Mr. Berry may very well be a witness and may have a conflict 20 here in terms of the representation of Mr. Henson, either on the 21 civil or the criminal side. 22 Mr. Berry wrote back to us and he said, "it is your 23 fault. You were negligent," number one. 24 And number two, he said, "i've conferred with my 25 client and Mr. Henson did not post it. We don't know where this 34 1 came from, but Mr. Henson is not the contemnor. He's not the 2 one who posted it." That's what Mr. Berry said in writing. 3 Now, that indicates that he had a conversation with 4 Mr. Henson and Mr. Henson denied to his own attorney he had 5 posted it. 6 Thereafter, Mr. Henson went on the internet and, 7 both by way of postings and in a chat room, there are the 8 following -- the following events occurred: Somebody in a 9 chat room, and I think this is called i.R.C., Said the person 10 who posted it is mirele, m-i-r-e-l-e, on the following day, the 11 13th of May. 12 And the question posed was "where did mirele get the 13 transcript?" 14 Mr. Henson's response? "Mirele has her sources." 15 That was his answer to that. 16 Mr. Henson then admitted, on the 15th of May, 17 contrary to representations by Mr. Berry in a posting, "I posted 18 it. I posted the transcript." 19 And I'm going to hand up a series of these 20 highlighted postings for your Honor and I have a set for 21 Mr. Berry. 22 He admitted it. Mr. Henson also took, contrary to 23 his, to his act of penancy before the court today, Mr. Henson 24 took glee in posting it. 25 Mr. Henson's comments were as follows, this is on 35 1 the 15th of May in a chat room: "It looks like the clams," 2 meaning us, that's a derogatory reference to Scientologists, 3 "really got to him over the release of the sealed testimony." 4 There is a discussion in a chat room in which 5 Mr. Henson is gloating. "They seem to have been somewhat upset 6 at how much got out of the transcript." 7 This is totally inconsistent with what I understand 8 to be the defense, which is, "I did it inadvertently." 9 And by the way, Judge, I'm terribly sorry for it, 10 but in that same chat room, Mr. Henson said, "holy mackerel. I 11 just got an order to show up for contempt proceedings before 12 Judge Whyte" and this thing so much mockery. 13 Mr. Henson goes on to describe to his friends on ARS 14 and in this chat room, "Judge says he can do it without a jury, 15 5k fine, six months in the slammer" and everybody is kidding and 16 "we'll come visit you in the slammer." 17 This is a continuation of everything you heard in 18 this trial. Not only the posting, but your Honor's order was 19 treated as a joke by Mr. Henson. 20 There is a question raised by somebody in Pittsburgh 21 in the chat room as follows, May 13th: "So what would happen" -- 22 this is somebody identified as D.S.T. "So what would happen if 23 I put the transcript up on a web page here in Pittsburgh?" 24 And here's Mr. Henson, "you get another clam 25 cluster." 36 1 A clam cluster is an award. Your Honor heard about 2 the SP levels and how every time you know you offend the church, 3 you get an increase in stature and Mr. Henson is an SP 5. 4 Part of that, the ingrate declarations, if you will, 5 are called clam clusters. 6 So Mr. Henson is now encouraging somebody else, 7 D.S.T. In Pittsburgh, who's asking "what happens if I post it," 8 and Mr. Henson says "you get an award. You get a clam cluster." 9 Mr. Henson is quoted in an article which appeared in 10 the metro, a silicon valley weekly newspaper, May 21, that's 11 yesterday. 12 In contrast to the statements he made to you a 13 moment ago about his apology to us and to the court, this is 14 what Mr. Henson said in an article. In fact, it features a 15 picture of him. 16 "'once something is on the net, there's no way to 17 Recall it or get it back,' chuckles Henson. He's 18 Referring to this transcript, "who views the 19 Publicity the trial received as some solace for his 20 Defeat. 'That's worth an imaginary $75,000 to me.'" 21 And throughout this, every statement, once something 22 is on the net, that's too bad. One after another, Mr. Henson 23 has not only admitted that he did it, but has been gloating 24 about doing it and has been gloating about the court's order, 25 making a mockery of this court's order. 37 1 Now, Mr. Berry, apart from writing to us and denying 2 that Mr. Henson had any responsibility for this, Mr. Berry has 3 gone the next step, and that is Mr. Berry has, and with all due 4 respect to opposing counsel, I've won some and lost some in the 5 federal District Courts and I've certainly disagreed with 6 Judges, but I've never seen an attorney do this. 7 Mr. Berry posted on the internet a statement of the 8 motions he's going to make to this court, including for the 9 court to release the names and the telephone numbers of the 10 jurors so he can prove that we tampered with the jury, an 11 allegation of jury tampering in this case before your Honor. 12 Mr. Henson posted -- excuse me. Mr. Berry posted on 13 the internet on the 13th of May, "I direct my criticism at the 14 court, which totally gutted Mr. Henson's ability to provide an 15 effective defense." 16 It goes on for two pages. I'm not going to read 17 this into the record. I'm going to hand it up. 18 Mr. Berry, if anything, was involved in the 19 following way: As an attorney and officer of the court, he has a 20 responsibility to explain to his client, if there is any doubt 21 in his client's mind, his client's responsibilities with respect 22 to a transcript which is under seal. 23 Mr. Berry not only apparently did not do that, he 24 abdictated the responsibility by allowing the transcript into 25 the hands of his client knowing that what was going to happen 38 1 was his client was posting it, just as his client posted the 2 transcript of the week before, of the first week of the trial. 3 Mr. Berry then denied in writing to us, after 4 consultation with his client, that his client posted it, 5 something his client now admits. 6 And in the face of this, for Mr. Berry to have 7 written both to us and posted to the internet these comments, 8 which I just find astounding, by way of criticism of a federal 9 district Judge is just mind boggling to me. 10 The Court: He's entitled to say what he wants to 11 about me. 12 Mr. Rosen: You know, I tell you something, Judge. 13 The First Amendment says you're entitled to say what you want, 14 but the profession has a different view of it. 15 And unfortunately, or fortunately, the California 16 grievance committee does not take the view of most states which 17 I'm familiar with, which is criticism of a Judge of this kind, I 18 mean, salacious comments about a Judge, that may be first 19 amendment, but when you get a license to practice law, you give 20 up that right. 21 This is an outrage, and I -- I duly respect the 22 sovereignty of the state of California to extend that privilege, 23 if you will, to attorneys who are members of that bar. 24 Having had the privilege of being, of trying cases 25 in over 50 District Courts in this country and 11 circuit courts 39 1 of appeal, I am offended by this language. This is not language 2 and not commentary that would be acceptable in most 3 jurisdictions. 4 In any event, that is the evidence. I hand to 5 Mr. Berry a copy with highlighted portions of the various 6 postings I've just referred to (handing). 7 If I may hand a copy to the court (handing). 8 And as I said at the beginning of the presentation, 9 I leave it to the court and I take no position as to whether or 10 not the limitation, if you will, on the criminal sanctions set 11 forth in the court's order, the court will or will not adhere to 12 it. 13 I do wish to just reiterate one point, and that is 14 if the court sees these documents particularly, I'm not talking 15 Mr. Berry's gratuitous comments and criticism of your Honor, but 16 the comments that go directly to this issue of what his client 17 did and what his client didn't do, I think the court is going to 18 see that Mr. Berry is a witness, is going to be a witness 19 against his client. 20 His client, if Mr. Berry is to be believed, his 21 client lied to him. When first asked about the posting, 22 according to Mr. Berry's letter to us, his client lied to him 23 and said he didn't post it. 24 And I think Mr. Berry ought to consider that in 25 terms of his position here as counsel representing a criminal 40 1 defendant on charges of both civil and criminal contempt. 2 Mr. Berry: Your Honor, may I be heard for a second? 3 There is nothing I said about this court which was salacious. 4 The Court: Let me stop you for a moment. The 5 purpose of having Mr. Rosen lay out the evidence was to give you 6 notice, and Mr. Henson notice, of what he felt the evidence was. 7 I'm not expecting you to necessarily respond. If 8 there's something you want to briefly say, to respond to, 9 something you want to briefly say, I'm not going to preclude you 10 from saying that. 11 Mr. Berry: I was counsel to the United States 12 District Court disciplinary committee for the central district 13 and its prosecution of stephen yagman for impugning the 14 integrity of the court. 15 Nothing which I said publically about this court's 16 evidentiary rulings was intended to be impugning the integrity 17 of the court, and I said so in that press statement. 18 I said -- I told in -- I said in this statement that 19 I had respect for this court as being a good and decent court. 20 Nothing was salacious, and it is an entire misrepresentation for 21 counsel to stand there and say that, as it is also for him to 22 misrepresent to this court that I participated in a 23 conversation. 24 I overheard the words "who else is receiving the 25 document." That is all. I did not participate in the 41 1 conversation, and counsel knows that. 2 And like the misrepresentation that was made about 3 him threatening to smash me in the face, when he said, "no, I 4 said I'd be in his face," it is a blatant misrepresentation, and 5 I'm outraged to be constantly subjected to it. 6 My client continues to deny that he posted this 7 document to the internet, and in those circumstances, I don't 8 believe I have a conflict and I'll put it right on the record 9 before this court today that Mr. Henson tells me it was not him. 10 Mr. Henson: Let me -- 11 Mr. Berry: And there's nothing inconsistent. 12 You don't have to offer evidence at this point. 13 Mr. Henson: I might as well. 14 Can I explain it to your Honor? 15 The Court: I recommend you follow the advice of 16 your attorney. 17 Mr. Berry: Unless the court is going to summarily 18 dispose of the matter today? 19 The Court: I'm not. 20 Mr. Henson: Please let me, because there's a 21 technical thing about it. 22 Posting is where you put it in a news group. What I 23 did on it was exactly the same thing as I had done with the 24 previous three days of testimony. I uploaded it to my ftp site 25 on netcom and mirele pulled it off of there and put it on her 42 1 web site in utah because she had a count on it and we were 2 curious as to how many people were downloading it. Otherwise I 3 would have put it on my site in netcom and let it go from there. 4 I did not post it. Posting involves putting it on 5 the internet, on the use net. 6 That piece of the thing was pulled out and posted by 7 a guy in Germany by the name of Tilman hauser, and that -- my -- 8 I didn't find out about it until around noon the following day 9 when it hit, when it hit on a chat room where I was watching, 10 and I have created a declaration which I gave to the court on 11 this matter. 12 Mr. Berry: Now, picking up, your Honor, on the 13 misrepresentation to this court that I participated, in other 14 words, was part of a conversation where counsel expressed his 15 concerns about the transcript not clearly indicating it had been 16 sealed, I think -- 17 The Court: Didn't he just say -- 18 Mr. Berry: -- It is unreasonable to require us to 19 continue with this evidentiary hearing. 20 The Court: Didn't he say you were standing there? 21 Mr. Berry: I was standing here, he was standing 22 there (indicating). 23 The Court: I don't think he said -- we can look 24 back if somebody is concerned, but I don't think Mr. Rosen said 25 you participated in the conversation. 43 1 Mr. Berry: Yes, he did, your Honor. I heard that 2 expressly. 3 The Court: He said you were present. 4 Mr. Rosen: Your Honor, if I said -- I don't believe 5 I said "participated," but if I did, I apologize. Mr. Berry was 6 standing there listening to it. He was not a conversant. He 7 was not participating in the sense of speaking. 8 Mr. Berry: I didn't even hear it other than "who 9 else is ordering it." 10 In those circumstances, your Honor, when counsel 11 spoke to the court staff that there was a problem, I would 12 submit he had an obligation to bring his concerns to the 13 attention of the defendant and his counsel to ensure, since he 14 knew it was being posted by someone, to ensure that it wasn't 15 posted. No such warning was given, and that is what's making 16 such an outrageous mockery of the contempt process. 17 The Court: Well, I'm not satisfied that we 18 shouldn't hear this out, so I'm going to set a hearing. Your 19 points may be well taken, some of them, but I think this 20 deserves a hearing, and so I'm going to set a hearing. 21 Mr. Berry: June 30th. Is that right, your Honor? 22 The Court: Well, I'm -- 23 (pause in proceedings.) 24 Mr. Berry: Perhaps a Friday, your Honor. I can 25 combine it with a social visit for a change. 44 1 (pause in proceedings.) 2 The Court: We could do it Friday afternoon, July 3 10th -- 4 Mr. Berry: That would be -- 5 The Court: -- If that works for everybody. 6 Mr. Berry: That would be convenient to the 7 respondent, your Honor. 8 Mr. Rosen: That's fine, your Honor, except for 9 Mr. Berry's -- Mr. Berry has indicated his case is going to be 10 five hours. 11 The Court: Well, I'm assuming we can do it in an 12 afternoon, can't we? 13 Mr. Berry: Yes, your Honor. 14 Mr. Rosen: Then Friday, July 10th. 15 The Court: Friday, July 10th at 1:30. 16 Mr. Berry: 1:30. 17 The Court: And let's review what did we -- 18 Mr. Rosen: Excuse me, your Honor. Can I just have 19 a moment? 20 (pause in proceedings.) 21 Mr. Rosen: Your Honor, Mr. Lieberman is not 22 available that weekend. He may very well be -- he may have a 23 significant role in trying this if I'm going to be a witness. 24 He's out the week of July -- the 4th through the 18th. Might we 25 do it the week before, your Honor? 45 1 The Court: That would be fine, except that's a 2 holiday. The 3rd is a holiday. 3 Mr. Rosen: Any other day that week, the week of the 4 29th of June? 5 Mr. Berry: I'd ask for the 17th perhaps, your 6 honor. 7 The Court: It really looks like, if we can't do it 8 the 10th, that the 17th is about as good as we can do. Working 9 the other way is a problem. 10 Mr. Rosen: Mr. Lieberman is going to be out until 11 the 18th. Is there any day in the week of either June 22nd or 12 June 29th that the court can do it? 13 Mr. Berry: I'd ask for July 24 then, your Honor. 14 Mr. Rosen: That's two months. 15 The Court: That's getting a little far out. How 16 about -- 17 Mr. Berry: Perhaps a Monday then, your Honor, after 18 July, after June 25. 19 The Court: When is Mr. Lieberman going? 20 Mr. Lieberman: I'm gone, your Honor, from July 3rd 21 or 4th to the 18th, I think it is. 22 Mr. Berry: June 29 would work, your Honor. 23 The Court: The problem with June 29th is I have two 24 criminal cases I have to start that day. In fact, I may have to 25 run them side by side because of time problems, so I can't do it 46 1 then. 2 Mr. Rosen: Mr. Berry asked for 30 days. Today is 3 May 22. Is there any day in the week of June 22? 4 The Court: That's what I'm looking at. I'm gone 5 the first part of the week. 6 Mr. Berry: And I'm tied up the rest, the last part 7 of that week, your Honor. 8 The Court: You're not available that Friday? 9 Mr. Berry: No, no. Your Honor, I have my family 10 arriving from abroad and I need to be there. 11 Mr. Rosen: May I ask of the availability of the 12 court for the week prior, June 18th or 19th? 13 The Court: Looks like I could probably do it on the 14 19th. Does that work for you, Mr. Berry? 15 Mr. Berry: I have a calendar, your Honor, which 16 leads me to really need it later rather than sooner, your Honor. 17 The Court: Pushing it out that far is really -- I'd 18 like to get all this wrapped up for both sides so that everybody 19 knows where they stand. 20 I'm wondering, as I sit here thinking, does it make 21 sense to -- you have a motion for, that you're going to be 22 making for attorney's fees. Do you have any other post-trial 23 motions? 24 Mr. Rosen: Just the -- no. We're just going to be 25 moving for entry of a bill of costs. 47 1 The Court: That's done through the clerk's office 2 only. 3 Mr. Rosen: Right, that's the clerk's office, 4 unless there's an objection which the clerk then sends up to 5 your Honor. 6 The Court: And that would be done presumably 7 without argument. 8 Mr. Berry, what post-trial motions do you intend to 9 file? 10 Mr. Berry: New trial, jnov, and for jurors' names 11 and addresses, but not quite for the purpose that counsel 12 stated. 13 The Court: Okay. 14 Mr. Berry: I never -- I never actually -- it's for 15 the purpose of inquiry into what went on. 16 The Court: Okay. 17 Mr. Berry: But I would suggest perhaps all the 18 motions be brought on the 24th of July, your Honor, for the 19 hearing and everything, and be put out two months which gives us 20 time to handle everything. 21 The Court: I guess I'd really have to see the 22 motions to see which ones I would want to have a hearing on. 23 Mr. Berry: Perhaps we could file our motions -- 24 The Court: Is the 19th really a problem for you if 25 we just limited it to the contempt proceedings? I mean, it 48 1 seems to me that although there are some issues, the issues are 2 pretty straightforward and we could get it done. 3 Mr. Berry: I'll work with that, your Honor. 4 The Court: Okay. Let's do it on the 19th. 5 Mr. Rosen: Your Honor, one other thing. 6 Mr. Henson -- I believe Mr. Henson indicated that, or Mr. Berry 7 indicated that Mr. Henson had filed some affidavit with the 8 court on the contempt. 9 We not only have not been served with anything, but 10 when we checked the clerk's office file yesterday, there was 11 nothing. I don't want to argue necessarily for a technical 12 default, but we filed our motion on the 14th of May, an ex parte 13 motion for civil contempt and for reference for criminal 14 contempt. 15 It's now May 22nd. We haven't gotten any responsive 16 papers. We have nothing, not an affidavit, not a brief. 17 The Court: I know there was a declaration filed, at 18 least that I have seen, from Mr. Henson. I assume it was filed. 19 Mr. Rosen: Not served on us, and not filed in the 20 clerk's office. As of yesterday morning, the clerk's office, 21 the clerk's file has no record of any declaration being filed. 22 The Court: Mr. Berry, was that declaration filed 23 with the clerk's office? 24 Mr. Berry: I haven't seen it, your Honor, but I 25 understand from my client that it was just filed with the court. 49 1 And my understanding of the court's order was that 2 anyone who wished to file something before today was at liberty 3 to do so, but was not required to do so. 4 The Court: That's correct. 5 Mr. Berry: Therefore, to take that and leap on it 6 and say there's been a technical default -- 7 The Court: I'm not going to default anybody. I'm 8 just trying to figure out, to make sure everybody sees 9 everybody's papers. 10 Mr. Berry: Yes, your Honor. I don't think it was 11 even filed stamped. 12 Mr. Henson: The question I have is, is this between 13 me and them or between me and the court, or are all people -- 14 The Court: All papers that are filed with the court 15 in this case have to be filed with the other side. 16 Mr. Henson: Is the contempt case part of their 17 thing? 18 The Court: Yeah. Everything filed by either side 19 needs to be filed -- I mean -- yeah, by either side needs to be 20 filed with the court. 21 Mr. Berry: I think his misunderstanding is he saw 22 the contempt order as coming from the court. 23 The Court: What I'm going to ask you to do, and it 24 may be asking for something that's impossible, but we'll have 25 the hearing on the 19th and I would like Mr. Berry and Mr. Rosen 50 1 at least to stay in court and work out and write out the dates 2 due for the various briefing that we've talked about. And then 3 I'll come back and we'll put it on the record, and if there's 4 any dispute as to dates, we'll resolve it now. 5 And let's also resolve what documents anybody 6 doesn't have. My understanding is Mr. Berry doesn't have a copy 7 of the final judgment, doesn't have a copy of the notice of 8 entry of final judgment, and does not, or did not have a copy of 9 what Mr. Rosen, or RTC, filed on Wednesday. 10 And what Mr. Rosen doesn't have is a copy of the 11 affidavit that Mr. Henson delivered to the court. 12 So let's make sure, when you talk and confirm the 13 dates, that you exchange and show each other those documents so 14 there's no misunderstanding as to who's got what documents. 15 I do think our discussion this morning has proved 16 the need for the order I made that suggested that all 17 communications with the court should be in writing. 18 Let me exclude from that -- if you call the main 19 clerk's office, I don't intend to include that. 20 But if you want to correspond with the court 21 reporter, I think you should do that in writing. If you want to 22 correspond with the courtroom deputy, I think you ought to do 23 that in writing. And if you want to correspond with me, it 24 should be done by a formal filing. 25 All right. Any questions? 51 1 Mr. Rosen: You want -- from what your Honor has 2 said, you want pretrial briefs. 3 The Court: Right. And what I want you and 4 Mr. Berry to do is sit here right now, I'm going to go out, and 5 then you can tell the clerk when you have reduced to writing the 6 dates on which various things are due so there's no 7 misunderstanding. Then we'll come back and put it on the record 8 so we won't have any future misunderstanding. 9 The Clerk: Please rise. 10 (Recess.) 11 The Court: All right. You want to give me the dates? 12 Mr. Rosen: Your Honor, subject to your Honor's 13 approval, counsel have agreed on the following schedule: 14 We have, as I've indicated earlier, already given, a 15 few minutes ago to Mr. Berry and to your Honor, our presently 16 intended trial exhibits. 17 By Friday, May 29th, we will provide any additional 18 trial exhibits to both Mr. Berry and the court, and Mr. Berry 19 will provide the defendant's trial exhibits to us and to the 20 court. That's May 29th. 21 By June -- on May 29th as well, we will exchange 22 lists of intended trial witnesses, and I would suspect that your 23 honor might want to have just a paragraph of what each witness 24 is intended to testify to. 25 The Court: That would be -- yes. 52 1 Mr. Rosen: Okay. By June 5 then, both sides will 2 file and serve any objections to the trial exhibits designated 3 by the other party, as well as any objections to the witnesses, 4 which would be objections in the form of an in limine or 5 objection to relevance or whatever it may be. So your Honor 6 will have the positions on trial exhibits, all trial exhibits 7 and witnesses by June 5. 8 June 12, the parties will both file pretrial briefs 9 on the issues, addressing the issues to be tried. 10 June 16th, any responses to the other parties 11 pretrial briefs. 12 And given the logistics that Mr. Berry is in los 13 Angeles, we have agreed that service of all of these documents, 14 so as to facilitate responses, will be made between Mr. Berry's 15 office and Mrs. Kobrin's office, both of them being in los 16 Angeles, either by hand or by fax, and that would be sufficient 17 and that ensures everybody will have the filings on the very 18 day, the date that I've indicated as the, as the date for 19 filing. 20 Just one or two other items, and that is I will 21 assume that unless we hear differently from your Honor, your 22 honor will proceed on the basis of the maximum penalties set 23 forth in your order, and therefore, that the hearing on Friday 24 the 19th of June will be as your Honor has previously indicated, 25 non-jury. 53 1 And to the extent that Mr. Berry intends to put on 2 his list of trial witnesses on the 29th of May, any person, for 3 example, me, or we put Mr. Berry on or Mr. Berry puts on the 4 court reporter, we're obviously going to be filing in limine 5 motions in addition to just objections on the 5th of June. 6 The Court: And that would cover whether or not 7 someone could be a witness? 8 Mr. Rosen: Yes. We said objections, but I wanted 9 to make it clear that the objections would also take the form of 10 an in limine order, of an in limine motion were there people 11 who, by statute or otherwise, should not be testifying, 12 irrespective of the relevance, or claimed relevance of their 13 testimony. 14 The Court: All right. And let's add to the list 15 the dates by which you are to file your motions. 16 You were going to file a motion for attorney's fees, 17 and Mr. Berry was going to file any new trial motion or motion 18 for judgment as a matter of law or motion to obtain jurors' 19 names and addresses. 20 Mr. Rosen: And I believe we had agreed earlier that 21 all of those motions, the time for filing all those motions 22 would be extended to Friday, the 5th of June. 23 The Court: That's correct, but let's -- I believe. 24 Is that agreed, Mr. Berry? 25 Mr. Berry: It is agreeable, your Honor, except for 54 1 one further matter. I've been advised that plaintiff is seeking 2 pervading costs and attorney's fees against me personally, so 3 that's going to obviously give rise to some other motions as 4 well. 5 The Court: Your motion is going to include -- 6 Mr. Rosen: As a matter of courtesy, we advised 7 Mr. Berry that the application -- we're making one motion for 8 attorney's fees rather than give your Honor seriatim motions. 9 Part of that motion will be attorney's fees against 10 Mr. Henson as the defendant under the copyright act. Part of it 11 will be for, for the taxation of attorney's fees against 12 Mr. Berry and/or Mr. Henson under other provisions, including 28 13 U.S.C. 1927. 14 So in the course of discussing the briefing on that, 15 we thought it advisable to advise Mr. Berry, and obviously he'll 16 want to respond to that, both on behalf of himself as well as on 17 behalf of Mr. Henson. 18 The Court: When -- let's set a response date for 19 response papers to the motions. Obviously you're going to be 20 responding to the motions Mr. Berry is going to be filing and 21 he's going to be responding to your motions. Shall we have the 22 responses due two weeks thereafter, by the 19th? 23 Mr. Rosen: That's fine, your Honor. 24 Mr. Berry: Your Honor, since I am being brought 25 into this litigation, and I'll be filing rule 11 motions I guess 55 1 myself since this is a most unregular procedure of bringing me 2 in as a relief defendant and seeking attorney's fees and 3 prevailing costs against me personally, I'm going to request the 4 longest possible time. 5 This is Fair Game in play, and I want to go back 6 into July if they're going to be seeking briefing from me on my 7 personal exposure in the case. 8 The Court: Well, I'm going to set -- 9 Mr. Berry: And if the court is going to even allow 10 them to file without an amendment to the pleadings. 11 The Court: They can file motions as they see fit. 12 Whether it's frivolous or not is something that I will have to 13 determine. 14 I will ask for the responses by the 19th. 15 Mr. Berry, if, on seeing their motion if it's 16 directed as to you personally and you need more time, make an 17 application. It's kind of hard to see, to make any 18 determination as to whether additional time would be needed 19 until such time as I see and you see what that motion says. 20 Mr. Berry: Thank you, your Honor. 21 Mr. Rosen: And we would then have until the 19th to 22 respond to Mr. Berry's motion? 23 The Court: Yes, you would have until the 19th. 24 And then each side could reply by the 28th, and they 25 would be all submitted as of that date. 56 1 If I feel argument is necessary on any of them, I 2 will set a hearing date. Otherwise they'll be submitted on the 3 papers as of that date. 4 Mr. Rosen: Okay. I think -- does that cover 5 everything in terms of calendaring? 6 The Court: I hope so. 7 Mr. Rosen: Thank you, Judge. 8 The Court: Is there anything else, Mr. Berry, that 9 you can think of? 10 Mr. Berry: There's a lot I can think of, your 11 honor, but there's nothing else that I'm going to bring up at 12 this time. 13 The Court: Okay. 14 Mr. Rosen: Thank you, your Honor. 15 (Proceedings concluded.) 16 17 18 19 20 21 22 23 24 25 57