00001 {12:14:03pm}
01 IN THE UNITED STATES DISTRICT COURT
02 FOR THE WESTERN DISTRICT OF OKLAHOMA
03
04 MICHAEL FOUNDATION, INC.,
04
05 Plaintiff,
05
06 vs. CASE NO. CV-00-0885-W
06
07 URANTIA FOUNDATION, et al.,
07
08 Defendants.
08
09
09
10
10
11
11
12 REPORTER'S TRANSCRIPT OF PROCEEDINGS
12 HAD MONDAY, JUNE 11, 2001
13 BEFORE THE HONORABLE LEE R. WEST, SENIOR JUDGE PRESIDING
13
14 PRETRIAL HEARING
15
15
16
16
17
17
18
18
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
22
22
23 FOR THE DEFENDANTS: MR. STEVEN G. HILL
23 MR. PETER SCHOENTHALER
24 MR. ERIC MAURER
24 Attorneys at Law
25 Atlanta, Georgia
25
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.