Harry's trial transcripts

00001 {12:14:03pm}

01 IN THE UNITED STATES DISTRICT COURT

02 FOR THE WESTERN DISTRICT OF OKLAHOMA

04 MICHAEL FOUNDATION, INC.,

05 Plaintiff,

06 vs. CASE NO. CV-00-0885-W

07 URANTIA FOUNDATION, et al.,

08 Defendants.

12 REPORTER'S TRANSCRIPT OF PROCEEDINGS

12 HAD MONDAY, JUNE 11, 2001

13 BEFORE THE HONORABLE LEE R. WEST, SENIOR JUDGE PRESIDING

14 PRETRIAL HEARING

19 A P P E A R A N C E S

20 FOR THE PLAINTIFF: MR. ROSS A. PLOURDE

20 MR. MURRAY E. ABOWITZ

21 Attorneys at Law

21 Oklahoma City, Oklahoma

23 FOR THE DEFENDANTS: MR. STEVEN G. HILL

23 MR. PETER SCHOENTHALER

24 MR. ERIC MAURER

24 Attorneys at Law

25 Atlanta, Georgia

00002 {12:14:03pm}

01 PROCEEDINGS:

02 ---------------------------------------------------------------

03 THE COURT: We'll go on the record and I suppose to

04 do that we better note the appearances first. For the

05 plaintiff?

06 MR. PLOURDE: Your Honor, Ross Plourde and Murray

07 Abowitz.

08 THE COURT: And for the defendants?

09 MR. HILL: Steve Hill, Peter Schoenthaler, and Eric

10 Maurer, M-A-U-R-E-R.

11 THE COURT: Okay. Anyone else need to note their

12 appearances?

13 Okay.

14 MR. ABOWITZ: Could we show who is also present,

15 Judge?

16 MR. HILL: Also present are Tonia Baney and Mindy

17 Williams from Urantia Foundation.

18 THE COURT: All right. Your motions in limine first,

19 I believe.

20 MR. PLOURDE: Okay, Your Honor.

21 THE COURT: No, I believe they're Steven's, aren't

22 they?

23 MR. PLOURDE: We've got motions in limine on --

24 THE COURT: Both sides? All right. Let's start with

25 exhibit 67. That's Steve's.

00003 {12:14:04pm}

01 MR. HILL: Okay. Those are the believer affidavits,

02 Judge, if I recall correctly.

03 MR. PLOURDE: Maybe I can short circuit that one.

04 THE COURT: I was going to say, isn't that moot now?

05 MR. PLOURDE: Well, not necessarily, Judge. Let me

06 address that just to perhaps head off a problem. Part of the

07 issue with respect to the anti-cybersquatting act case is the

08 strength of their mark, the distinctiveness. That's one of the

09 issues that goes into determining whether or not Michael

10 Foundation and McMullan acted in bad faith, is the

11 distinctiveness of their mark. So evidence that would

12 establish that it was generic would go to the distinctiveness

13 of the mark and rebut the bad faith allegation by establishing

14 -- if we were able to establish that it was a religion, then

15 that would establish the mark as generic for those purposes and

16 rebut the distinctiveness.

17 Just as a matter of procedure at trial, we have decided at

18 this point not to argue that the name Urantia is the name of a

19 religion or that Urantia denotes someone that adheres to the

20 Urantia beliefs, and so I think that does moot that particular

21 issue.

22 I would expect Mr. McMullan to testify that he believes

23 that The Urantia Book forms a basis of his religion but I don't

24 think that goes to necessarily the genericness of the mark in

25 that particular instance. Do you agree?

00004 {12:14:10pm}

01 MR. ABOWITZ: May I add something?

02 THE COURT: Sure.

03 MR. ABOWITZ: I believe that there will also be

04 testimony elicited that there is a recognition that there are

05 those that recognize The Urantia Book as the basis of a

06 religion but it won't go any further than that and we do not

07 intend to use these exhibits unless in rebuttal.

08 THE COURT: All right. Go ahead. Do you want to

09 respond to what they've suggested or conceded?

10 As I understand it now, you're saying, yes, the exhibit

11 should be excludable, but that you all may refer to this issue

12 somewhat in establishing infringement or the good or bad

13 faith --

14 MR. ABOWITZ: Correct.

15 THE COURT: -- issue on that point. Does that

16 summarize what your position is?

17 MR. PLOURDE: Yes, sir.

18 MR. ABOWITZ: Yes, sir.

19 THE COURT: All right. Steven, how do you feel about

20 that?

21 MR. HILL: Well, as I read the Court's instructions,

22 it looks like the distinctiveness issue is resolved by the

23 incontestability, so I don't think that they're probative in

24 terms of showing the distinctiveness or nondistinctiveness of

25 the mark for the cybersquatting purposes. That's relatively

00005 {12:14:13pm}

01 established in what case law does exist on the cybersquatting

02 act. We have a fundamental problem, Your Honor, with the

03 nature of the exhibits themselves, the quality of the exhibits.

04 None of the declarants were listed.

05 THE COURT: Are you talking about 67 itself now?

06 MR. HILL: Yeah, yeah. The quality of the exhibit.

07 None of the declarants on the exhibits were named as

08 witnesses. There's been no opportunity to cross-examine.

09 About as probative as the statements get is to say that they

10 believe the contents of the Urantia Book form the basis of

11 their personal religion. They don't combine -- my concern, in

12 part, is the combination of 100 things saying this is my

13 personal religion.

14 THE COURT: We may be dancing around an issue here.

15 My understanding is that I will sustain a motion in limine to

16 exclude exhibit number 67. You're attempting to avoid that

17 ruling running afoul of offering some testimony; is that

18 correct?

19 MR. ABOWITZ: That's correct.

20 THE COURT: Now, let's spell out so the record and

21 Steve and you and I can understand what that concern is and as

22 precisely as possible so that when I get through here and say,

23 "The motion in limine is sustained as to exhibit 67," you will

24 understand what you can or cannot testify about.

25 MR. ABOWITZ: Well, if you grant the motion, we won't

00006 {12:14:15pm}

01 use any of exhibit 67, but I don't view that order of the court

02 as precluding us from addressing the issue of Mr. McMullan's

03 religion or from anybody else --

04 THE COURT: Now, his won't be 67. His will be live

05 testimony; am I correct about that?

06 MR. ABOWITZ: Correct.

07 THE COURT: And yours as well, Ross? Are we talking

08 about separate --

09 MR. ABOWITZ: We're talking about the same thing

10 here.

11 THE COURT: And you say the exhibit itself is

12 excluded but his ability will be to testify to what now? Let's

13 spell that out and get some examples of it so we can find

14 out so I can rule on it in advance or whether I need to just

15 rule on it at the time.

16 MR. ABOWITZ: Well, it has nothing to do with the

17 exhibit. Howard McMullan will testify that The Urantia Book is

18 the basis of his religion. I anticipate that if there are

19 witnesses called by Urantia Foundation, that on cross-examine

20 they will say that they acknowledge they are people that base

21 their religion on The Urantia Book. End of story.

22 THE COURT: That's testimony, not the exhibit?

23 MR. ABOWITZ: Right.

24 THE COURT: What's your concern?

25 MR. HILL: We'll take it as it comes.

00007 {12:14:17pm}

01 THE COURT: Okay.

02 MR. HILL: We'll take it as it comes, Judge.

03 THE COURT: All right. Everybody understand the

04 Court's ruling then? I'm sustaining a motion in limine with

05 regard to exhibit number 67.

06 All right. Let's move on to motion to exclude evidence

07 relating to settlement and compromise. That's your motion, I

08 believe.

09 MR. HILL: Yes, Judge.

10 Our position is that there have been some settlement

11 negotiations relating to the cybersquatting claims. I envision

12 that what they're going to try to do is characterize those

13 negotiations as they offered us a free ride so why are we

14 here. The problem with that, Judge, is that while Rule 408

15 does have some exceptions, you can't bring in the settlement

16 negotiations to negative the liability or negate the damages at

17 issue. And the only thing that that testimony is probative on

18 is negativing bad faith, which is an element of proving the

19 claim, and negativing the amount of damages that the jury ought

20 to consider. So, I see it as going directly to the merits.

21 There are cases in the insurance bad faith arena where

22 settlement negotiations have been excluded. I'll cite you one

23 on the record, Clemco Industries v. Commercial Union, 665

24 F.Supp, 816, where bad faith is the issue for liability. The

25 existence of what might be characterized as a great settlement

00008 {12:14:21pm}

01 offer can't come in for proof of the existence or nonexistence

02 of bad faith.

03 THE COURT: Who wants to respond?

04 MR. PLOURDE: Judge, I think it's clear that the

05 standard is if it's offered for another purpose other than

06 establishing or rebutting liability, that it can come in.

07 And I think the purpose --

08 THE COURT: Well, the general rule is that you can't

09 offer it, and you understand that. Negotiations, compromise

10 offers and so forth are not admissible in any form, unless

11 what?

12 MR. PLOURDE: Unless --

13 THE COURT: Spell out to me what exception you're

14 going to offer what evidence so that --

15 MR. PLOURDE: Unless they're --

16 THE COURT: Okay. Now, spell it out in some detail,

17 Ross.

18 MR. PLOURDE: Unless they're offered for another

19 purpose. The rule excludes -- I mean, it isn't a matter of

20 excluding them all --

21 THE COURT: You're going to say to them, "Look, we

22 offered to settle this thing or give them almost a free ride."

23 What --

24 MR. ABOWITZ: We offered to give them back.

25 THE COURT: Offered to give it back.

00009 {12:14:24pm}

01 MR. ABOWITZ: First at my cost of getting them, and

02 that didn't work, so then I said, "Well, you can have them and

03 I'll eat that cost."

04 THE COURT: Have what? Now, spell that out.

05 MR. PLOURDE: Domain names.

06 MR. ABOWITZ: The three domain names.

07 THE COURT: The three names: Urantia, Urantian, and

08 so forth?

09 MR. PLOURDE: Right.

10 THE COURT: And you said you'll take -- first, your

11 offer was we'll take what and give them back to you?

12 MR. PLOURDE: The $30 -- the domain name was the

13 cost, give or take, was the cost of registering.

14 THE COURT: Now, who's going to be testifying to

15 this?

16 MR. ABOWITZ: Mr. McMullan.

17 THE COURT: Mr. McMullan. He said, "We got them, it

18 cost us 30-something dollars, and we said if you'll give us

19 that, we'll give them back to you."

20 Now, what are you offering that evidence for, the

21 testimony for?

22 MR. PLOURDE: The statute says that they have to

23 prove that we registered those or used them with a bad faith

24 intent to profit. So the question is: Did we have a bad faith

25 intent to profit? And if we're offering them to just give it

00010 {12:14:26pm}

01 to them, I think that rebuts the bad faith intent to profit.

02 THE COURT: We seem to have a dispute that --

03 MR. PLOURDE: We don't have any -- I'm sorry.

04 THE COURT: We seem to have a dispute because he says

05 the fact it does not -- that it is offered to rebut bad faith

06 is not an exception to the rule that they can't be offered.

07 MR. HILL: Not when bad faith is a part of the

08 elements of the claim.

09 THE COURT: Now, do we have an argument about what

10 the law is in that regard?

11 MR. ABOWITZ: We do.

12 MR. PLOURDE: I think we do, Judge. I mean,

13 unfortunately he didn't share his case with me before I came

14 over, so I can't respond to that specific case.

15 THE COURT: Let me ask you this: Do you have any

16 cases that say no, that it is not -- that it can be used where

17 bad faith is an issue?

18 MR. PLOURDE: No, Your Honor, but --

19 THE COURT: Okay. Let me get Steve's case and then

20 we'll just have to -- and give you an opportunity to cite any

21 cases to the contrary and we'll get it ruled on.

22 Do you have --

23 MR. HILL: I've already cited it on the record, Your

24 Honor.

25 May I add one more statement?

00011 {12:14:28pm}

01 THE COURT: Sure.

02 MR. HILL: And it's just exactly what has happened

03 here, these discussions occurred once the litigation was

04 already underway, once the claims had been filed in court.

05 There is a tremendous disagreement over these conversations and

06 they exclusively occurred between counsel. Mr. McMullan is

07 going to get up there and he's going to say he offered them for

08 $30. That's not my take at all, Judge. I'd be happy -- it's

09 back in my hotel but I would be happy to show the Court the

10 letter that I sent confirming that there was an abstract offer

11 made that we would pay something.

12 THE COURT: Let me tell you where I'm operating

13 from. I'm operating from the basis that none of this is going

14 to be admissible because it is an offer of compromise,

15 settlement, so forth, clearly not admissible unless you can

16 show me, contrary to his authority, and some authority that

17 this fits the bad-faith exception and so forth, fits clearly

18 within this. And I'm going to give you an opportunity to do

19 that, a very brief opportunity, but as of right now I'm ruling

20 that none of that testimony is admissible until you all present

21 me some authority to the contrary.

22 MR. PLOURDE: What's the case cite again?

23 MR. HILL: I would also like to cite Rule 408 itself,

24 Judge, because the exceptions that follow follow from the

25 fact that you cannot --

00012 {12:14:30pm}

01 THE COURT: You better note very quickly what you're

02 relying on because my clerk over here is making a note of

03 that.

04 MR. HILL: The specific --

05 THE COURT: 408 and the cite? What's the case cite?

06 MR. HILL: The specific language of 408 says that it

07 can't go to invalidity of the claim or its amount.

08 THE COURT: Now, was that cited in your underlying

09 brief here? I looked through these yesterday. Did you cite

10 that or not?

11 MR. HILL: We cited the rule, Judge, in our opening

12 brief. The case is a case that I just pulled off last night.

13 THE COURT: Give us that cite.

14 MR. HILL: 665 F.Supp. 816.

15 MR. ABOWITZ: 816?

16 MR. HILL: Uh-huh.

17 THE COURT: All we need to do is you need to notify

18 your shop at the first break or something to run that and be

19 working on that and we'll get it done sometime before we start

20 this case, get it ruled on. Okay?

21 Now then, ready to go to the next one?

22 MR. PLOURDE: Yes, sir. Which is --

23 THE COURT: Michael Foundation and Harry McMullan's

24 exhibits 23, 37, 63, 97, 99 and 131 filed under seal. That's

25 your motion, I believe, Steve.

00013 {12:14:32pm}

01 MR. HILL: Yeah. I'm going to defer to co-counsel

02 here.

03 MR. SCHOENTHALER: Your Honor, each of these exhibits

04 for various reasons independently are either irrelevant and/or

05 even if there is some minor relevancy in the exhibit, then

06 they're prejudicial.

07 Let's take each exhibit individually.

08 THE COURT: 23 first.

09 MR. SCHOENTHALER: Sure. Exhibit 23, they want to

10 bring it in to show that Mo Siegel wants his mail service

11 restored because he's getting negative e-mails from people that

12 favor McMullan and he says he needs good vibes and

13 reenforcement. I don't see what relevance that possibly could

14 have.

15 THE COURT: Mo Siegel is not a witness in this case;

16 is that correct?

17 MR. SCHOENTHALER: He is not.

18 THE COURT: And the document that you're objecting to

19 is a document -- an exhibit itself in which he states what

20 precisely?

21 MR. SCHOENTHALER: He says, "What is happening with

22 the Fellowship letter? When will it go out and what will it

23 say? PS, I am still cut off. The CC and IUA list period.

24 Please restore my mail service. I am getting so many negative

25 e-mails from people who favor Harry. I need some good vibes

00014 {12:14:34pm}

01 and reinforcement from the CC and IUA list."

02 THE COURT: Your objection to that is based upon what

03 again?

04 MR. SCHOENTHALER: It has absolutely no relevance.

05 What does Mo Siegel having negative e-mails from other people

06 who support Harry have anything to do with the case that we're

07 here for today?

08 THE COURT: All right. Is this being offered as

09 evidence or as rebuttal evidence and, if so, what purpose would

10 you be offering it for?

11 MR. PLOURDE: Your Honor, for instance, they have

12 survey evidence. They have --

13 THE COURT: Well, they haven't got it yet. They're

14 going to attempt to offer it. We haven't got it in yet. Tell

15 me what their survey --

16 MR. HILL: I appreciate that vote of confidence,

17 Judge.

18 THE COURT: Are you agreeing the survey evidence

19 should come in, Ross, or not?

20 MR. PLOURDE: No, but if it does, what we've got is

21 Mr. Siegel out there basically trying to drum up support for

22 his position.

23 THE COURT: That's what I mean. Is this something

24 that you're going to offer regardless of what happens or is it

25 only in rebuttal to the survey evidence now?

00015 {12:14:35pm}

01 MR. ABOWITZ: We don't know in the case in chief.

02 THE COURT: Okay. Now then, if they don't get the

03 survey evidence in, then it will not be offered; am I correct

04 in that regard?

05 MR. ABOWITZ: (COUNSEL NODS HEAD)

06 THE COURT: All right. Now, do you all want to argue

07 the survey evidence now or a little bit later on?

08 MR. HILL: I would just say that -- I mean, can they

09 explain what the relationship that popularity has to a survey?

10 THE COURT: Well, if they're not going to offer it,

11 I'm not interested in it unless and until --

12 MR. SCHOENTHALER: If I may --

13 THE COURT: Listen, I'm not too crazy about doing a

14 bunch of pretrial rulings that prohibit or proscribe evidence

15 when there's all this speculation about whether it's ever going

16 to be offered or under what circumstance, and me sitting in

17 this chambers here trying to envision how this case is going to

18 develop. Consequently, I'm not all that crazy about motions in

19 limine, and I started the damned things 30 years ago in this

20 part of the world, but I'm not going to get all that hemmed in

21 by motions in limine unless they're pretty damned clearly not

22 going to be admissible under any circumstances, I'm not going

23 to sustain them.

24 Now, having said that, let's leave this the way it is. If

25 you don't get your survey evidence in, then if you do, they'll

00016 {12:14:37pm}

01 offer them as rebuttal as opposed to that and then we'll have a

02 hearing if we need to, or over your objection we'll determine

03 what relevance they have, and I can better understand whether

04 or not they're relevant at that time. So I guess the thing I'm

05 saying is that the motion in limine is sustained with regard to

06 these to the extent that they will not be offered in their

07 evidence in chief and then we'll take up their admissibility if

08 and when the survey evidence is met. Fair enough? Everybody

09 hear and understand that?

10 MR. ABOWITZ: Yes, sir.

11 THE COURT: All right. Is that true of all these

12 exhibits now 23, 37, 39 --

13 MR. SCHOENTHALER: 37, they've withdrawn from their

14 case in chief; is that correct?

15 THE COURT: 37, withdrawn?

16 MR. PLOURDE: Yes, sir.

17 THE COURT: Okay. What about 63, 97?

18 MR. PLOURDE: We skipped 39.

19 THE COURT: Oh, I did. Okay. How about 39, is that

20 the same ruling?

21 MR. PLOURDE: No, sir.

22 THE COURT: Huh?

23 MR. PLOURDE: No, sir.

24 THE COURT: All right. Tell me about 39.

25 MR. SCHOENTHALER: 39?

00017 {12:14:39pm}

01 MR. HILL: What is 39

02 THE COURT: "E-mail from trustee Siegel to show that

03 trustee disagreed about the possible separate printing of part

04 IV of The Urantia Book."

05 MR. PLOURDE: I have no idea, Judge. My mistake.

06 You're right. 39 is not --

07 MR. SCHOENTHALER: 63.

08 MR. PLOURDE: 63?

09 THE COURT: So 39 is not going to be offered unless

10 and until the survey is admissible?

11 MR. PLOURDE: No, sir, 39 is not covered by this

12 motion. I have it in my notes that it was and I'm just

13 incorrect.

14 MR. ABOWITZ: That's a different motion, isn't it?

15 MR. PLOURDE: I think it is.

16 THE COURT: That's right. Well, I don't have it

17 either. 23, 37, 63, 97 and 99, and then we have a 39 down

18 here.

19 MR. SCHOENTHALER: 139.

20 THE COURT: Huh? Is it 139?

21 MR. SCHOENTHALER: The last exhibit in that motion is

22 139, Your Honor.

23 MR. PLOURDE: Judge, if you could just forgive me for

24 that.

25 THE COURT: Huh?

00018 {12:14:40pm}

01 MR. PLOURDE: It was just an outright mistake. The

02 next one on this motion is number 63.

03 THE COURT: 53?

04 MR. PLOURDE: 63, Judge.

05 THE COURT: 63. All right. You're going to offer

06 that for what purpose?

07 MR. PLOURDE: In that --

08 THE COURT: If they get the survey evidence in?

09 MR. PLOURDE: No, sir, it doesn't relate to the

10 survey evidence at all.

11 THE COURT: Okay.

12 MR. PLOURDE: What this is is a letter from

13 Mr. Siegel to Richard Keeler, who is the president of Urantia

14 Foundation, and basically it does two things. The relevance

15 from our standpoint relates to the Asoka Foundation which was a

16 foundation that was established by Mr. McMullan some years ago

17 to assist in publishing certain Urantia-related material. Part

18 of their evidence, we believe, is to establish that

19 Mr. McMullan has just created all of these front organizations

20 that serve no purpose other than to advance his ultimate goal

21 of depriving them of their copyright.

22 Mr. Siegel's letter says something to the effect that he's

23 talking about circumstances that existed at Urantia Foundation

24 and he says this is why organizations like Asoka Foundation

25 have been founded. We believe it indicates that Asoka

00019 {12:14:44pm}

01 Foundation did serve a legitimate purpose other than to act as

02 a front for Mr. McMullan and we think it's admissible for that

03 purpose.

04 THE COURT: And your objection?

05 MR. SCHOENTHALER: Your Honor, it's hearsay and they

06 can't --

07 THE COURT: Pardon?

08 MR. SCHOENTHALER: It's hearsay. It's inadmissible

09 hearsay. It's from Mo Siegel who is not going to testify.

10 MR. PLOURDE: It's a document that they produced to

11 us. It's written by --

12 THE COURT: A Urantia Foundation trustee?

13 MR. PLOURDE: He is now a trustee. I think he was

14 not --

15 THE COURT: You've made that argument -- huh?

16 MR. PLOURDE: I think he was not a trustee at the

17 time that --

18 THE COURT: Well, that wouldn't fall within the rules

19 of admission then, statements he made outside the court, unless

20 he was somehow a representative of the --

21 MR. ABOWITZ: Harry can testify to that.

22 MR. PLOURDE: We would have to put it on through

23 Mr. McMullan or Mr. Keeler.

24 THE COURT: Pardon?

25 MR. PLOURDE: We would have to put it on through

00020 {12:14:45pm}

01 Mr. McMullan or Mr. Keeler.

02 THE COURT: Okay. I'm going to sustain the motion

03 with regard to 63 then. It appears to be classic hearsay.

04 MR. ABOWITZ: But, Your Honor, a recipient of the

05 document will be here as a witness.

06 THE COURT: Well, that wouldn't allow him to testify.

07 MR. ABOWITZ: That he got it?

08 THE COURT: Well, he can testify he got it but he

09 couldn't testify as to what it said if you're introducing it

10 for the purpose of proving the truth. It's a classic hearsay

11 deal.

12 MR. ABOWITZ: Yeah, but we can prove that he got it.

13 It's being offered for a purpose other than the truth of what

14 it says. He got it and he was aware of what it says.

15 THE COURT: Now, that's a boot strap that doesn't

16 make any sense. You say, "Look, we're not offering it for the

17 proof of the truth of the statement therein but he got it and

18 he believed it and so forth."

19 MR. ABOWITZ: I didn't say he believed it. I said he

20 got it and was aware of what it said.

21 THE COURT: And then don't say what it says. You

22 can't put that in. That's what you're trying to convey to the

23 jury is what it said. You can tell him he got an e-mail dated

24 so and so and so and so but you can't recite the hearsay

25 statements made in that, Murray.

00021 {12:14:47pm}

01 MR. ABOWITZ: What if he reacted to it?

02 THE COURT: Huh?

03 MR. ABOWITZ: What if he reacted to it?

04 THE COURT: What kind of reaction are you talking

05 about? "I got it, I read it, and then I called so and so and I

06 said so and so."

07 MR. ABOWITZ: That's admissible.

08 THE COURT: He can testify to that. He can testify

09 to that. There isn't anything wrong with him -- as long as who

10 he was talking to is somebody in the opposing party. There's

11 nothing wrong with that. He's testifying about what he did and

12 what he said. Now, it may have been based upon something but

13 you can't recite what they told him, ergo, I called him. He

14 just said, "I got an e-mail and I called them and said so and

15 so." All right?

16 MR. PLOURDE: Your Honor, if, for instance, they call

17 Mr. Siegel, you wouldn't preclude us -- because he is listed as

18 a witness, and if they call him, you wouldn't preclude us from

19 using it in cross-examination?

20 THE COURT: What he said?

21 MR. PLOURDE: Right.

22 THE COURT: If it's inconsistent or something with

23 what he now says, you can use a previous -- a prior

24 inconsistent statement as you could with any witness. If he

25 said something in writing in an e-mail that's inconsistent with

00022 {12:14:49pm}

01 what his testimony is, certainly you can use that.

02 Okay. Do we need anything further on 39 -- or 63?

03 97?

04 MR. PLOURDE: Your Honor, one of their witnesses is

05 Carolyn Kendall. Excuse me. This is an e-mail from Kwan Choi

06 to another person. Kwan Choi is a trustee.

07 THE COURT: Kwan Choi said she fudges the facts and

08 she's not always complete and her statements are often partial

09 and she fudges facts.

10 MR. PLOURDE: And she's going to be a witness.

11 THE COURT: And she's going to be a witness. Now,

12 are you using -- are you attempting to use Kwan Choi's

13 testimony or statement in here to affect her credibility?

14 MR. PLOURDE: Yes, sir.

15 THE COURT: All right. Now, Kwan Choi is not going

16 to be a witness to this -- you're offering a statement made by

17 Kwan Choi out of court to prove the truth of the statement made

18 therein that she's partial and fudges facts. Why is that not a

19 classic --

20 MR. ABOWITZ: He's a trustee.

21 MR. PLOURDE: He's a trustee. He was a trustee --

22 THE COURT: Okay. Now, that's back to the issue of

23 whether he was in such a representative position that it would

24 be an admission against interest.

25 MR. ABOWITZ: Exactly.

00023 {12:14:51pm}

01 MR. SCHOENTHALER: Your Honor, they got this

02 document -- the two people in this conversation are Kwan Choi,

03 a trustee, and Bud Kagan, who is an individual -- who is their

04 witness who they have not called as a witness in this case.

05 The document itself says "Printed for Bud." They didn't get

06 this document from us. I don't know where it is. I don't know

07 if they went and printed it and typed it up themselves.

08 MR. ABOWITZ: Come on.

09 MR. SCHOENTHALER: I have no idea. And they're not

10 going to be able to prove that to the Court.

11 THE COURT: In other words, you're saying the

12 statement, you can't even establish the authenticity or

13 validity of the statement as being Choi's; is that correct?

14 MR. SCHOENTHALER: Yes.

15 MR. ABOWITZ: Subject to that, that's our problem if

16 that's going to be -- if there's an objection to authenticity.

17 THE COURT: You're not going to have Kwan Choi

18 testify?

19 MR. ABOWITZ: No, but Mr. Kagan can testify to the

20 authenticity of it.

21 MR. SCHOENTHALER: He's not --

22 THE COURT: Whoa, we're getting off into some weird

23 deals. So and so said -- you're trying to attack the

24 credibility of Kendall's testimony, aren't you?

25 MR. ABOWITZ: "Did you get this from Mr. Kwan Choi?"

00024 {12:14:53pm}

01 "Yes, I did."

02 THE COURT: Who are you going to ask that?

03 MR. ABOWITZ: Mr. Kagan.

04 THE COURT: Mr. Kendall?

05 MR. ABOWITZ: Kagan. Kagan.

06 MR. PLOURDE: The person to whom it was sent.

07 THE COURT: Is he going to testify?

08 MR. ABOWITZ: We have taken his deposition.

09 THE COURT: Was it testified to in the deposition?

10 MR. PLOURDE: I don't know, Judge.

11 MR. HILL: I don't believe it was, Judge. On top of

12 that, he's not on the witness list. This is a conversation

13 between a trustee --

14 THE COURT: Well, I'm really really having difficulty

15 understanding the admissibility of this.

16 MR. SCHOENTHALER: Your Honor, the worst part about

17 it is this is the last part of the e-mail from which -- and I'm

18 going to -- the earlier e-mail from Bud Kagan, which Kwan is

19 responding to, has some very negative things about Richard

20 Keeler. He calls Richard Kyler a scum bag, illegitimate, et

21 cetera.

22 To put this in context, we're going to have to read this

23 into the record. It's prejudicial.

24 MR. ABOWITZ: Most evidence is.

25 THE COURT: Almost all evidence is.

00025 {12:14:55pm}

01 MR. HILL: Too probative, you would say.

02 THE COURT: I'm not worried about the prejudicial

03 effect of it but I am worried about the hearsay aspect of it.

04 MR. PLOURDE: Judge, you know, I understand your

05 point. If we can't properly identify it, then you're not going

06 to let it in.

07 THE COURT: Well, here's what I'm going to do: I'm

08 going to sustain the motion in limine with regard to that

09 exhibit without prejudice to you out of the hearing of the jury

10 and at sidebar conference, if you believe you all can

11 establish -- or that other testimony and so forth has now

12 established some basis for admitting it, I'll let you reoffer

13 it at sidebar. You don't make any reference to it, arguments

14 or anything else and don't make any reference to the jury about

15 it until you've presented it at sidebar and the Court has

16 admitted it. Okay?

17 MR. ABOWITZ: Okay.

18 MR. SCHOENTHALER: Your Honor, next is plaintiff's

19 exhibit 98. 98 is also -- also an e-mail from Kwan Choi --

20 between Kwan Choi and Bud Kagan, back and forth. I don't --

21 again, I think if they're willing to stipulate to the same

22 ruling, we can do that.

23 MR. PLOURDE: I think 97, 98 and 99 are all --

24 THE COURT: All in the same category?

25 MR. SCHOENTHALER: You withdrew 99.

00026 {12:14:57pm}

01 MR. PLOURDE: We withdrew 99. That's right.

02 THE COURT: All right. 97 and 98, subject to the

03 same ruling, without prejudice to your reoffering them at

04 sidebar, but they're sustained.

05 31 -- 131.

06 MR. SCHOENTHALER: Your Honor, this is a long letter

07 dated in '97 from Mo Siegel to trustees at Urantia Foundation.

08 It talks about a lot of things. It talks about -- this

09 occurred -- to put this in context -- during the Maaherra case,

10 right after The Foundation had lost the copyright at the

11 district court level. What it is basically saying is Mo Siegel

12 is saying things such as, "Here I have some great ideas on how

13 maybe we can handle the marks going forward and the

14 copyright." Okay? Unfortunately, he wasn't a trustee at the

15 time.

16 THE COURT: Siegel is not going to be a witness

17 again. Let me get reoriented here. Not going to be a

18 witness. And he's written a letter of some kind that you

19 contend is hearsay and you say he was not in any representative

20 capacity --

21 MR. HILL: No, he was with Mr. McMullan.

22 THE COURT: -- at the time. What is your kind of

23 exception to the classic hearsay situation? Is it being

24 offered to prove the truth of the statement made?

25 MR. PLOURDE: We have withdrawn Siegel as a witness

00027 {12:14:59pm}

01 just recently in our case in chief. Judge, you know, again, I

02 assume that if we exclude it, it's going to be excluded for

03 purposes of our case in chief. And if they call Mr. Siegel,

04 we're going to be able to cross-examine him on it.

05 THE COURT: Well, I mean, I'm not going to get into

06 that. It depends on what he testifies to and so forth. But

07 I'll just, again, make the same ruling, that it will not be

08 admissible, referred to in any way, exhibit 131, until and

09 unless you approach sidebar and say, "Judge, this is now -- we

10 ought to be able to admit this and refer to it simply because

11 of the testimony that has been brought out on direct." Is that

12 fair enough? Everybody understand it?

13 MR. PLOURDE: Yes.

14 THE COURT: All right. Lay testimony. This is

15 your -- again, your motion.

16 MR. HILL: Right, Your Honor.

17 THE COURT: Outline what it is so we'll have a little

18 understanding.

19 MR. HILL: Sure. Sure.

20 During his deposition, Mr. McMullan testified that he had

21 received advice of counsel regarding the copyright matters in

22 the case but that he was not going to waive the attorney/client

23 privilege. He took that position both in his deposition as a

24 representative of Michael and --

25 THE COURT: He received and relied upon

00028 {12:15:00pm}

01 attorney/client -- or attorney's advice?

02 MR. HILL: Yes, Your Honor. Those pages were

03 attached to the motion.

04 THE COURT: And would not specify what that advice

05 was or who it was from?

06 MR. HILL: Exactly. Exactly. Now, he did testify as

07 to certain, you know, bases that he had for not liking the

08 Maaherra decision, for disagreeing with portions of the

09 Maaherra decision. I think he said that he -- he said, you

10 know, "How could you have a copyright just because questions

11 were asked," sort of things. And that's fine. Those were

12 disclosed in discovery. But when you get to him coming out and

13 dotting all the i's and crossing all the t's for the jury by

14 drawing a legal conclusion as to what the implications of

15 certain facts are and things like that, those can't come in

16 because -- those are conclusions that for someone who has

17 testified in his deposition that he's --

18 THE COURT: You're trying to exclude the live

19 testimony of a party to this lawsuit or basically a party to

20 this lawsuit; right?

21 MR. HILL: Portions.

22 THE COURT: To say that he can't testify as to what

23 reasoning he had for taking certain positions, even if that

24 includes his analysis and conclusions with regard to the law?

25 MR. HILL: Yes. The law is pretty well established

00029 {12:15:01pm}

01 in willful infringement cases, Your Honor, that if you rely on

02 an opinion of counsel but you're not willing to disclose the

03 opinion during discovery, you can't then -- you can't then

04 testify as to all of the things that you learned about

05 copyright or patent or trademark law, and that's exactly what

06 he would be doing.

07 THE COURT: And what would he be saying? Give me

08 some examples of what he'd be saying that you want me to order

09 and exclude him or prevent him from saying right now.

10 MR. HILL: Right. I'll give you one example that

11 came up in the deposition, for example, is that he claims

12 copyright on Jesus - A New Revelation. I asked him what the

13 purpose for that was and he said, "My lawyers told me to do

14 it." Other than that, he could not give a response.

15 THE COURT: What do you mean? What did you ask him

16 other than that?

17 MR. HILL: I think what he said was, "I don't know.

18 My lawyers told me to do it," in response to my question of,

19 "Why do you claim copyright on this?" I don't now want to hear

20 him testify on direct to the effect of, you know, the

21 intricacies of why he claimed copyright.

22 THE COURT: This is on deposition that he told you

23 this?

24 MR. HILL: Yes.

25 THE COURT: And he's now saying -- in other words,

00030 {12:15:03pm}

01 you would have his inconsistent statement, wouldn't you, that

02 he said, "I can't remember what it was; he just told me that,"

03 but you don't want him now to come in and say, "A, B, C and D

04 was told me by attorney"; is that correct?

05 MR. HILL: That's right, because --

06 THE COURT: Why couldn't you rely on his previous

07 inconsistent statement?

08 MR. HILL: I could, Your Honor, but he would be --

09 but what he would be doing is he would be telling the jury

10 things that he has learned through conversations with his

11 counsel that he was unwilling to disclose during discovery. My

12 understanding of the sword/shield rule regarding waiver of

13 attorney/client privilege is that that's impermissible.

14 MR. PLOURDE: Your Honor, this is one of the more

15 dangerous ones that they filed because it is extremely vague.

16 I mean, it just says, "We don't want Mr. McMullan testifying

17 about opinions that he has formed becaused upon his

18 conversations with lawyers." You know, I mean, it really is a

19 difficult --

20 THE COURT: Counselor, I don't think there's any way

21 I can do that. Now, you'll be given an opportunity to cross-

22 examine, and you'll be given an opportunity to show his

23 previous inconsistent statements, but I don't think there's any

24 way this Court could advance -- in advance of trial, issue any

25 kind of a ruling that would prohibit him from attempting to do

00031 {12:15:05pm}

01 that that wouldn't might not unduly hamper his ability to do

02 it. I just don't think it's a proper motion for -- a proper

03 motion in limine. It's just not a pretrial ruling. You may

04 object at the time he starts to testify, and if there's some

05 basis about determining -- I'm still not sure I can prevent him

06 from so testifying but certainly it would be premature to do it

07 at this time in a preliminary motion. So I'm going to deny

08 that motion in limine and we'll just see how it plays out in

09 court.

10 Motion to exclude testimony that the scope of copyright

11 does not extend to papers consecutively.

12 MR. HILL: We're withdrawing that.

13 THE COURT: Withdraw? Okay.

14 MR. HILL: Yeah, we'll withdraw that, in light of the

15 Court's summary judgment ruling.

16 THE COURT: Okay. Motion to exclude Michael

17 Foundation exhibit 145. Tell me about that now.

18 MR. HILL: Judge, that's a letter that we showed the

19 Court from Thomas Kendall written when he was either the vice

20 president or president of Urantia Foundation. Mr. Kendall is

21 not testifying. What the letter says, what the letter goes on

22 to talk about, is --

23 THE COURT: Who's the letter to?

24 MR. HILL: Oh, it was a standard type of reader --

25 THE COURT: Advisory letter? Okay.

00032 {12:15:08pm}

01 MR. HILL: -- correspondence to somebody who had

02 probably written a letter to Urantia Foundation.

03 THE COURT: Okay. Okay.

04 MR. HILL: It's maintained in our reader

05 correspondence files in Chicago.

06 But the objection is that the contents of the letter are

07 Mr. Kendall talking about the book being a divine revelation,

08 talking about the book being exactly as the revelators wanted

09 us to have it, or words to that effect, and it creates the

10 impression -- it creates the impression that it's factual in

11 nature when, in reality, it's clearly based upon nothing more

12 than his spiritual beliefs. And he has -- I don't think

13 anybody believes he has any personal knowledge one way or

14 another as to what happened regarding the formation of this

15 book. They certainly haven't deposed him, and he's not on

16 anybody's witness list.

17 My understanding of the intersection of Rule 602 and the

18 hearsay rule is that if you're going to take an out-of-court

19 statement and attempt to tie it to a party as an admission of a

20 party opponent, then you still have to be able to meet -- lay

21 the foundation that the declarant who you're saying represents

22 the party had personal knowledge to make the statements that

23 are contained in the letter, and that's the threshold that I

24 don't think they can meet because Mr. Kendall is not here to

25 testify.

00033 {12:15:10pm}

01 MR. PLOURDE: Your Honor, this wasn't just met --

02 this wasn't just sent by Thomas Kendall. This was sent by

03 Thomas Kendall, president of Urantia Foundation on behalf of

04 Urantia Foundation.

05 One of the assertions that they make is that the -- and

06 one of the things that we're going to be trying tomorrow is

07 whether the patient was a mere conduit for, you know,

08 revelations by spiritual beings or whether he should be treated

09 as the author. I'm kind of wondering how they proved he's a

10 mere conduit. I mean, if there's no testimony by the patient,

11 we don't even know -- they don't even disclose who the patient

12 was. And they haven't listed any spiritual beings as

13 witnesses, so I don't suspect that there's anybody with

14 personal knowledge about whether or not this was a pure

15 revelation or whether it was written by the patient is going to

16 be able to testify. There isn't anybody with personal

17 knowledge about that.

18 So, it's apparent that they intend to prove, you know,

19 that it's a revelation and that the patient was just a conduit

20 through documents like the history of the Urantia movement that

21 they contend was written by Dr. Sadler who didn't have personal

22 knowledge of whether or not it was actually written by

23 spiritual beings. I mean, who is going to have knowledge of

24 spiritual beings writing something like that. There's just no

25 way to tell whether the patient placed the words on the

00034 {12:15:12pm}

01 paper -- placed his own words on the paper or whether they were

02 words given to him by spiritual beings.

03 So, they want to pick and choose which of their

04 representatives without personal knowledge they're going to

05 have, in effect, testify, either in person or through

06 documents, as to how these words came to be placed on paper.

07 Thomas Kendall was the president of the organization when

08 he wrote it. He wrote it on behalf of Urantia Foundation.

09 It's a statement by Urantia Foundation. It contains things

10 that are clearly relevant to that issue of whether or not --

11 THE COURT: The patient was the author?

12 MR. PLOURDE: -- whether or not the patient was the

13 author. And, you know, I think it's clearly relevant and

14 admissible for that purpose and I don't think it's hearsay

15 because it's a statement of a party. And 801(d)(2) says a

16 statement offered against a party, that is, the party's own

17 statement, is not hearsay.

18 THE COURT: I'm strongly inclined to agree with you.

19 Do you all want to offer any kind of rebuttal or

20 response?

21 As I say, I'm inclined to decline the motion in limine.

22 You can object to it at the time of trial, of course.

23 MR. HILL: That's fine.

24 THE COURT: Okay. Motion in limine is denied with

25 regard to that -- to those -- to 145.

00035 {12:15:13pm}

01 Okay. Inflammatory statements regarding prior

02 litigation. Who wants --

03 MR. HILL: Oh, yes. Your Honor recognized in the

04 order last week that came down granting and denying in part the

05 summary judgment motions that although there is evidence that

06 can clearly come in to show the jury that Urantia Foundation

07 took the position in the Burton litigation or at least did not

08 deny Mr. Burton's position in the litigation that the conduit

09 had written the final versions of all 196 papers, or at least

10 that they were in his handwriting, the Court also recognized

11 that Urantia Foundation did not take the position that the

12 conduit was the legal author of those papers in that case.

13 And our motion is simply -- is not directed to proscribe them

14 from bringing in evidence of what Urantia Foundation did or did

15 not do provided that they could meet the rules for previous --

16 in its previous litigation, but I am concerned in opening

17 statements and we'll see where it goes from there about telling

18 the jury that Urantia Foundation has contradicted itself by

19 taking the position in Burton that the conduit is the author

20 and then taking the position in Maaherra that the patient was

21 not the author. And that is -- that's what I'm directing this

22 motion to.

23 THE COURT: I have some difficulty understanding

24 precisely what you're going to -- you want this Court to order

25 them to do, but let me hear from you. It doesn't sound like

00036 {12:15:16pm}

01 you're specific enough, and then underlying that it doesn't

02 sound to me like you should be prevented from pointing out what

03 you perceive and arguing to be inconsistent positions.

04 MR. ABOWITZ: That's the issue --

05 THE COURT: Everybody is nodding so I assume you

06 agree with the Court's postion.

07 MR. HILL: I thought we had a fighting chance reading

08 your summary judgment order, Judge, but I see --

09 THE COURT: Now, do you unwisely wish to make any

10 additional argument?

11 All right. The Court will deny the motion in limine with

12 regard to statements regarding prior litigation. That's not to

13 authorize or endorse you to make some inappropriate remarks

14 with regard to that but only what you can in good faith contend

15 is an inconsistent position to this with all the inflammatory

16 language you can muster in support of it.

17 All right. I'm being facetious now.

18 I'll just deny the motion in limine with regard to the

19 inflammatory statements motion.

20 All right. Motion to exclude 42, 75, 79, 81 and 85. Who

21 wants to argue that or those?

22 MR. PLOURDE: Those are Benitez; is that right?

23 MR. HILL: Yeah.

24 THE COURT: You withdrew some of those, didn't you?

25 MR. HILL: Yeah.

00037 {12:15:18pm}

01 MR. PLOURDE: We've withdrawn them, Judge.

02 THE COURT: Okay.

03 MR. HILL: Did you withdraw all of those?

04 MR. PLOURDE: 42, 75, 79, 81 and 89, yes.

05 MR. HILL: 42, 75, 79, 81 and 89 is what I show.

06 MR. PLOURDE: That's right. We may need to use them

07 on cross-examination or direct to the extent that they reflect

08 generic use, but as far as listing them as exhibits, we

09 withdraw them.

10 MR. SCHOENTHALER: Your Honor, we would request the

11 same sort of sidebar authentication.

12 THE COURT: Do you have any problem with that, Ross?

13 MR. PLOURDE: No.

14 THE COURT: Okay. That will be the ruling then, that

15 the motion in limine is denied based on the withdrawal of those

16 exhibits but with the plaintiff's right to offer the exhibits

17 at sidebar conference without reference to the jury until such

18 time as they have been admitted. All right?

19 Motion to exclude portions of the deposition of Bernard

20 Dietz. And that's been withdrawn, hasn't it?

21 MR. PLOURDE: Yes.

22 THE COURT: That's moot.

23 Motion to maintain confidential designation of certain

24 documents.

25 MR. HILL: Oh, goodness.

00038 {12:15:20pm}

01 THE COURT: Your motion.

02 MR. HILL: Only because of the way the protective

03 order reads in this case, Judge.

04 I think, you know, reading their response, this is like

05 two ships passing in the night. The protective order you

06 entered, Judge, says that confidential or attorneys-eyes-only

07 documents may be used at trial pursuant to further direction

08 from the Court.

09 The Maaherra protective order, when we facilitated the

10 transfer of certain documents from Maaherra counsel to the

11 other side, we indicated in the protective order that nothing

12 in that protective order would preclude them from using the

13 exhibits at trial, but that was, at least my understanding, was

14 that that would be pursuant to further direction from the Court

15 and that those documents would not lose their confidential or

16 attorneys-eyes-only designation pursuant to Judge Urbom's

17 order, and I don't think anybody's understanding was really to

18 the contrary of that.

19 We put in -- there are two issues here. There is the

20 document-by-document issue. There is also the concern over

21 removing the confidential and attorneys-eyes-only designation

22 on a massive amount of Urantia Foundation's historical files

23 and thereby -- and the implication being that Mr. McMullan

24 would thereby have rights to disseminate those or put those

25 into the public domain.

00039 {12:15:21pm}

01 I litigate trade secrets cases in Georgia and other

02 states, Your Honor, and we frequently have issues regarding how

03 to use confidential exhibits in jury trials. And there are any

04 number of ways to approach this problem. The easiest being

05 that when a confiden- -- that if and when a confidential

06 exhibit comes in, the Court can simply -- can -- or the party

07 who's seeking protection of the confidentiality of the

08 attorneys-eyes-only document can bring it to the Court's

09 attention and the Court can review the document at that time

10 and decide whether or not any measures need to be taken in

11 order to permit that document to be shown to the jury or

12 brought into evidence, or -- and that's not even the main

13 problem. The main problem is when you have a witness who wants

14 to testify about the contents of a protective document and at

15 that point in time we can take it up on a case-by-case basis

16 rather than trying to make a sweeping ruling.

17 THE COURT: Well, that concerns me from a time

18 standpoint. I don't want to get into 100 different arguments

19 and lawsuits about a pro forma order. I'm going to be real

20 frank with you. I sign confidential orders presented by

21 agreement of the parties frequently. Now, if either party

22 wants to withdraw that confidentiality, if they can give me

23 some reason for doing so, I'm inclined since they agreed to it

24 in the beginning, and I won't sign them hardly -- I have to

25 have a dad-gum good reason to sign them over objection of the

00040 {12:15:23pm}

01 parties.

02 This was a confidentiality order signed by agreement -- I

03 mean presented by agreement of the parties. Now, what -- I

04 want to see what you want to withdraw the confidentiality on

05 and for what purpose and what reasons the confidentiality, if

06 any, would hurt either of the parties.

07 As a general rule, rather than try to deal with it --

08 hell, this damn lawsuit threatens to go longer than I want to

09 go with it as it is, let alone having 50 issues a day on

10 whether or not this document ought to be unsealed.

11 Now, tell me generally what you don't want them to unseal

12 and then I'll ask them why they want to do that and whether I

13 should do that or not. Just tell me generally. You don't want

14 them to unseal any of it, do you, or to admit any of it; right?

15 MR. HILL: We didn't have -- we didn't have

16 objections to some, and I think those we can set aside.

17 They're asking --

18 THE COURT: Certainly you all can sit down and agree

19 to those that you don't have objections to?

20 MR. HILL: Right. We've already agreed that --

21 THE COURT: Okay. Now, tell me the ones that you're

22 objecting to here.

23 MR. HILL: We are opposed -- We are opposed to the

24 correspondence with -- the private correspondence that Urantia

25 Foundation has had with its readers/customers over the years

00041 {12:15:25pm}

01 because, in toto, releasing those documents provides a very

02 valuable service to someone who is marketing a book that is in

03 competition with The Urantia Book.

04 THE COURT: Explain that to me.

05 MR. HILL: Because the identities of all of the

06 persons who have purchased The Urantia Book are included in

07 these files.

08 THE COURT: In other words, you just want them to

09 have a buyers list then; is that correct?

10 MR. HILL: Well, they have a de facto buyers list in

11 their possession right now if they wanted to combine -- if they

12 want to go to the trouble of taking the information off.

13 THE COURT: You all then agree that this was

14 confidential to begin with?

15 MR. PLOURDE: No, Your Honor. Let me clear that up.

16 We agreed to the entry of the confidentiality order. The

17 confidentiality order says that they can just designate

18 anything they want to as -- provided in their opinion it falls

19 within certain guidelines. They can designate whatever they

20 want to as confidential. So we don't participate in the

21 designation of it as confidential. And then our remedy is to

22 say, "We don't think that's confidential," and they have to

23 come to you to get it determined to be confidential.

24 Now, within that framework, what they're talking about

25 here are -- what they believe is confidential are the names of

00042 {12:15:27pm}

01 the people that they sent letters to, and we don't particularly

02 care to use the names. We'll be happy to, you know, obliterate

03 the name from the exhibit. It's the person who sent it that's

04 important to us and what they're saying in the letter as

05 opposed to the person to whom they sent it. So, if that's all

06 they're concerned about, we'll be happy to take a black -- they

07 did it in most cases anyway -- take a black magic marker and

08 mark through the name and address of the person to whom it was

09 sent.

10 THE COURT: Would that moot the problem? Are you

11 concerned about the statements being made as being used against

12 your interests and so forth? Is that what your main concern

13 is, as opposed to some business reason for confidentiality?

14 MR. HILL: No. Our main concern, Judge, to be frank,

15 is that if the confidentiality is listed -- is lifted off of

16 these documents, that we're going to see them en masse on the

17 Internet tomorrow, the whole history of everything that Urantia

18 Foundation has ever said or done in its course of business.

19 They agreed that --

20 THE COURT: I may have misunderstood the mechanics of

21 this, but you're agreeing that the names of the people

22 receiving this can remain confidential --

23 MR. PLOURDE: Sure.

24 THE COURT: -- but you want the information that was

25 sent out to no longer be treated as confidential?

00043 {12:15:28pm}

01 MR. PLOURDE: That's right, Judge. The letters

02 saying, you know, stuff like, "No human being authored The

03 Urantia Book." Well, you know, I've got them here, Judge. We

04 asked to file them under seal because until you rule that

05 they're not confidential, we've got to do that. I haven't

06 gotten an order back authorizing --

07 THE COURT: Well, can we unseal them in every respect

08 except the recepient's -- the name and address of the

09 recipient?

10 MR. HILL: Judge, do you have the motion that we

11 filed, or the declaration?

12 MR. PLOURDE: I had my legal assistant bring it over.

13 MR. SCHOENTHALER: Your Honor, one of the reasons

14 they have been so protective is Maaherra, the plaintiff in that

15 case, Maaherra, chose to take all -- we gave her open discovery

16 to take with these documents and she posted them all on the

17 Internet. You know, these are -- a lot of these are old

18 documents.

19 THE COURT: I understand that. What I'm trying --

20 listen, I'm not an authority on the Internet but I'm attempting

21 to get an understanding or an agreement here that they won't or

22 can't do it, and if they do, if they do, with that is a concern

23 that if somebody else does it for you, you're liable to be in

24 trouble with the Court.

25 MR. PLOURDE: We're talking about the names? The

00044 {12:15:30pm}

01 names of the people?

02 THE COURT: Let me understand that. Yeah, the names.

03 MR. PLOURDE: Yeah, that isn't going to help.

04 MR. HILL: Judge, there are a number, now that I have

05 the motion in front of me, there are a number of categories of

06 objections that we had to different exhibits and I've got them

07 broken down, and this will make it a lot easier.

08 There is also the -- in terms of the -- what we're mainly

09 talking about here are the client correspondence largely

10 protected under the terms of the Maaherra protective order. We

11 think that the contents -- We think that the contents of the

12 documents are related to our business. We think that that's

13 consistent with the provision that we agreed to at the

14 beginning that said that proprietary and business contents

15 would be able to be designated as confidential with more

16 financial information being confidential attorneys-eyes-only.

17 When I agreed to permit or facilitate the exchange of

18 documents from Mr. Lewis, Ms. Maaherra's attorney, to

19 Mr. Plourde, those documents are protected under an entirely

20 different agreement and by an entirely different order. Judge

21 Urbom's order was different. It was negotiated differently. I

22 certainly believe that it was broader and I think that we can

23 agree on that based on how difficult it was to negotiate the

24 protective order.

25 THE COURT: Well, I understood there was some

00045 {12:15:32pm}

01 argument as to whether or not this would be undermining Judge

02 Urbom's orders.

03 MR. HILL: Yeah, we're not saying the documents can't

04 be used, Your Honor, and certainly we appreciated the

05 willingness to redact, but the story remains the same on our

06 side, which is that the contents of these documents -- you take

07 like their exhibit 53, it's not just a letter, Judge. Exhibit

08 53 is 100 letters that say -- that contain the contents of

09 things that Urantia Foundation representatives have discreetly

10 said in private correspondence with either a reader or customer

11 of Urantia Foundation over a span of 50 years.

12 Essentially, what they're asking, Judge, is that in asking

13 you to lift -- essentially lift the Maaherra protective order

14 is let -- I mean, when this is all over, their client has a

15 complete set of our correspondence files and our reader

16 correspondence. And with or without the specific names, it

17 still tracks a history. And we will see on the Internet, I

18 assure you, a breakdown at some point of everything every

19 Urantia Foundation representative has said about one thing or

20 another and noting every single inconsistency that's ever been

21 out there. That's just the way this goes.

22 THE COURT: Well, --

23 MR. HILL: So, in terms of the reader correspondence,

24 we're --

25 MR. ABOWITZ: I hope that will be in the public

00046 {12:15:33pm}

01 record of this case, Judge.

02 THE COURT: Let me hear a response from --

03 MR. HILL: That's the nature of organizations.

04 THE COURT: Nothing he says scares me all that much.

05 I'll be real frank.