From: Charlotte L. Kates Newsgroups: alt.religion.scientology Subject: Erlich Pretrial Reports (from IRC) Date: 23 Apr 1999 08:23:41 -0700 -------- I see no one who was there has to date posted a report of the Erlich pretrial hearing yesterday; this is the information I received on IRC from those who were there: * Whyte made a ruling of the 19th that the OT materials could no longer be considered 'trade secrets' and would have to be refiled openly, which means they would be available for public view, but not copying, which effectively destroys CoS' attempt to define those levels as 'trade secrets.' * An argument relating to threads in newsgroups and how this affects the principle of fair use will be allowed to be presented by Morrison and Foerster. * Whyte was observed to be displeased in sidebar when Rosen attempted to use the Henson case as a precedent. * Claims and counter-claims will be split. There will be a bench trial on the copyright claims--Scientology is no longer seeking statutory damages. There will be a jury trial on Dennis' counterclaims. * The trial is currently scheduled to proceed for May 4; however, Whyte is also presiding over a major criminal trial at this time, and so he intends to limit both sides to a total of 16 hours of presentation each, including cross-examination, but not including closing arguments, in the copyright claims. * Whyte tentatively approved RTC's motion for Helena Kobrin to testify, and said that the cross-examination of Kobrin will not be stopped should it venture into attorney-client issues. He stated that Morrison and Foerster's witness list was, in his opinion, too long, and dealt too much with what is wrong with Scientology, rather than the immediate issue. * The trial will be open to the public, and will not be closed should "secret material" be discussed. Whyte apparently intends to allow arguments that the numerous filings of portions of one whole amount to fewer actual different pieces of copyrighted material than Scientology alleges. Overall, it seemed like a pretty good day for the good guys! The newsgroup thread fair use argument is important, and it's very good that Whyte is recognizing that the nature of discussion on the Internet includes broad fair use. The open trial and denial of trade secrets were also victories for Dennis' side; neither side was happy with the 16 hour limitations. RTC and its representatives were judged to be very unhappy by those who attended the hearing. Charlotte Charlotte L. Kates CLKates@aol.com http://www.offlines.org/ OFFLINESonline: Freedom from Scientology ======== From: lindsay@best.com (Donald C. Lindsay) Newsgroups: alt.religion.scientology Subject: Re: Erlich Pretrial Reports (from IRC) Date: 23 Apr 1999 10:32:55 -0700 -------- In article <7fq39t$3fe@drn.newsguy.com>, Charlotte L. Kates wrote: >I see no one who was there has to date posted a report of the Erlich >pretrial hearing yesterday; this is the information I received on IRC >from those who were there: I was there. I happened to have the time off, and it was a chance to meet Dennis for the first time. Sorry not to post sooner: I thought Keith might. I don't claim to understand all the legal things that I heard. Proceedings were scheduled for 2pm and started at 3. This was partly because Whyte had a jury ask him questions. Also, we got to watch a couple protest that they hadn't responded to some document because their ex-lawyer sent it to their ex-address. Whyte didn't buy the excuse and ruled that they'd lost. RTC then fielded 5 people. Dennis sat with 4 MoFo people. About 16 people stayed in the pews, including moi, Keith Henson, a few other SPs, and Helena Kobrin. Keith wore a brown suit jacket over a "Scientology Kills" T-shirt, but Dennis successfully went for a more judge-pleasing look. Whyte then gave a long, partly rambling speech to the lawyers. He pointed out that MoFo had provided a document about the facts as they saw them, and he wanted a matching one from RTC. (IANAL, but I assume the idea is to reduce the number of points that have to be argued.) He wanted a 16 hour limit for each side. He would allow improperly seized evidence, since disallowing it was not the remedy he favored. He didn't want the worth of Scientology to be an issue. He wanted to hear the context of Dennis' postings as being relevant to purpose (ie intent). He used the word "thread" several times when saying this. He explained his other time committments, and apologised about the scheduling compromises that might happen. Rosen then spoke for RTC. He turns out to be tall, with a white beard over what might be a double chin. He spoke at length: I got the impression he always speaks at length. He didn't want context to be relevant. He claimed at length that the OT documents are numerous tiny documents, not one big document (thus making any tiny quote into a major quote). He wanted to know if he'd have to spend 3-4 of his 16 hours showing the chain of custody of his copies of Dennis' postings. He said that RTC had refiled some details of the copyright status of various Church documents, and that Helena would testify that the refiling was simply because she'd misread the certificates. Whyte argued with Rosen's claim that context didn't matter, and refused to change his mind. He's allowing the size of OT documents to be a point of dispute. As for chain of custody, he told Rosen to talk to MoFo about what they'd concede. He asked if cross examination of Helena would risk getting into privileged communications between lawyer and client. Rosen said it wouldn't because it was all Helena's fault. (I didn't see Helena speak a word all day.) Then it was MoFo's turn. Their man had less to say. He too thought 16 hours was too little, and suggested 25. (Whyte might go for that.) He briefly defended the length of his witness list. He got into the question of courtroom paraphernalia. He said he was asking for the usual stuff. Rosen jumped in to complain about displays that could be seen by the audience. Whyte didn't buy it and told Rosen it was still MoFo's turn. Whyte made a comment - I forget when - that if a lawyer made too many objections, the extra time would be counted as his time, not the other guy's time. A slightly unshaven RTC lawyer (Hart?) kept looking over at the SPs, as if he wanted to see our reactions. We smiled. It came out that RTC hadn't seen an order by Whyte that was only a day or so old. MoFo handed them a copy. I think this concerned the trade secret status, and such, but I didn't get a clear picture. Keith -?? In any case, Whyte said it was an order, and he didn't want to hear complaints about it. Things broke about 5. Keith left to chat with the world. Elvis, Dennis and I had a nice meal together and Dennis flew home. >* Whyte was observed to be displeased in sidebar when Rosen attempted >to use the Henson case as a precedent. Well, Whyte didn't buy the point. I had trouble following the details. >Overall, it seemed like a pretty good day for the good guys! I thought so, and Keith and Elvis were tickled. Dennis tries not to set himself up for disappointment. -- Don Donald C. Lindsay www.best.com/~dlindsay ======== From: me@primenet.com (kEvin) Newsgroups: alt.religion.scientology Subject: Re: Erlich Pretrial Reports (from IRC) Date: 23 Apr 1999 21:40:32 GMT -------- In article <7fqas7$4rf$1@localhost.best.com>, Donald C. Lindsay wrote: >In article <7fq39t$3fe@drn.newsguy.com>, >Charlotte L. Kates wrote: Much thanks to Charlotte who did a pretty darn good report from the irc session. Don saw things much as I saw them, except for the exceptions I'm excerpting below: >Proceedings were scheduled for 2pm and started at 3. This was partly >because Whyte had a jury ask him questions. Also, we got to watch a >couple protest that they hadn't responded to some document because >their ex-lawyer sent it to their ex-address. Whyte didn't buy the >excuse and ruled that they'd lost. Default judgement entered against them. nasty. >He didn't want the worth of Scientology to be an issue. Hart, Rosen and Co. were all smiles for this. Whyte made a comment which Keith wrote down that went something like "notwithstanding the alleged criminal acts of the plaintiffs, this is about copyright" [-badly paraphrased from memory] It got short shrift in all the hearing reports, but Whyte went on in this vein for several minutes. He came back to this line when talking about MoFo's witness list. >to MoFo about what they'd concede. He asked if cross examination of >Helena would risk getting into privileged communications between >lawyer and client. Rosen said it wouldn't because it was all Helena's >fault. (I didn't see Helena speak a word all day.) Actually, Whyte said that cross examination almost certainly would lead into areas of attorney/client privilege and that was a problem because having a witness who the defense wasn't allowed to cross examine freely was unfair. Rosen stated on the record that RTC waived objections to cross examination that strayed into attorney client privilege. (The issue is that in response to MoFo's request for admissions, Helena signed and sent in one set of admissions that stated one set of facts about two of the works at issue, then sent in a revised admission that stated something different. Those sharp people at MoFo caught the significance and were able to show inconsistencies. RTC needs to get Helena on the stand or else they have to concede on those works because they can't enter additional evidence at this point. >Then it was MoFo's turn. Their man had less to say. He too thought 16 >hours was too little, and suggested 25. (Whyte might go for that.) He that's 25 hours for each side plus the closing speeches. Whyte responded to the request for 25 hours with, "So about two weeks then?" and McIlhenny said, "yes." >briefly defended the length of his witness list. He got into the >question of courtroom paraphernalia. He said he was asking for the >usual stuff. Rosen jumped in to complain about displays that could be >seen by the audience. This was where Keith was having trouble containing his snickers. Rosen hadn't seen the ruling that removed trade secret protection for all this stuff or the order to refile everything without seal. Rosen did make the claim that MoFo had copies of some stuff that hasn't hit the net yet, but I'm at a loss to imagine what that could be. >>* Whyte was observed to be displeased in sidebar when Rosen attempted >>to use the Henson case as a precedent. I'm sorry I used the word sidebar. It wasn't a legal sidebar, it was in open court. My mention of it was as a sidebar to my report. The specific ruling Rosen was citing was the admission of material from the net without/with authentication. (Lieberman pulled a fast one to get some unauthenticated irc logs into the case. Rosen's now trying to use that as precedent. Whyte made a mistake letting that stuff in in Henson and I suspect the 9th circuit has let him know it. He made the sourest face I've seen on him yet at the mention of this ruling and the Henson case. Rosen was certainly on good legal ground trying to get the judge to repeat a favorable ruling, but it had a powerful and negative effect on Whyte.) >Well, Whyte didn't buy the point. I had trouble following the details. You had to be there for the original to understand why the mention brought back a bad taste. >>Overall, it seemed like a pretty good day for the good guys! As Dennis said, this isn't so much a win as a chance to fight on level ground. That's big win as far as it goes, but there's still a fight ahead. >I thought so, and Keith and Elvis were tickled. Dennis tries not to >set himself up for disappointment. Level ground is better than anything I've seen so far. Grady and Keith both had to fight uphill. kEvin me@primenet.com ======== Newsgroups: alt.religion.scientology Subject: Erlich - pretrial From: inFormer@informer.org (Rev Dennis Erlich) Date: 23 Apr 1999 10:59:32 PDT -------- Faithful Reader, Yesterday was my pretrial conference in San Jose. Federal judge Ronald Whyte presided. It was scheduled for 2pm but didn't begin until after 3 because a jury was deliberating a criminal case in Whyte's court and needed questions answered by the judge. Whyte had issued 2 rulings on which my lawyers briefed me in the corridor outside the courtroom, beforehand. The scienos didn't find out about the rulings until the very end of the pretrial, and so had not yet turned a whiter shade of pale. Before Whyte were both sides' motions in limine (requests to prevent certain types of evidence and witnesses from being presented at trial). The scienos wanted all my witnesses removed. They wanted any discussion of ars, of scn history, doctrine, practice and beliefs to be prevented. We had asked that material they had collected to Dead Agent and Black PR me and my witnesses from a confessional setting be banned from trial. Whyte first talked four about a half hour straight. He said he had not carefully and completely read all the motions before him, but in the interest of forewarning the attorneys about how he was thinking the trial would go, he would go over the motions and tell us his preliminary thoughts on each of them. He implied that he might be able to rule on some of the motions before the trial, but would use the first day of trial to sort out the details of who and what would be admitted in evidence and how the trial would go. The scienos asked Whyte to exclude " ... any reference to the practices or beliefs of Scientology, its history, the background or meaning of the copyrighted texts, Erlich's own involvement with Scientology, and any testimony by any witness that has any relationship to Scientology." Whyte indicated he needed to know how the texts were used in scn and would welcome testimony, evidence or witnesses to that end. He made it clear that he was not going to use the trial to judge the merit or fraudulent nature of scn. "1. Evidence Relating to Consumer Fraud" Whyte said he would not be deciding if scn was fraudulent, but that he would welcome evidence and testimony regarding how the text at issue in the case is used and in what context. "2. Evidence Relating to Alt.Religion.Scientology." Whyte said he would need to see the ongoing discussions in order to determine the context of the alleged posts and the threads in which they allegedly occurred. "3. Evidence Regarding Suppression of Criticism." Since some of the material deals with Fair Game and treatment of Espees, Whyte's invitation for evidence and testimony about how the texts are used in the cult covers this. "4. Evidence of Scientology's Newsworthiness." While Whyte clearly indicated he didn't want the trial turned into a circus, he is not going to bar such evidence from trial as is required to show my purpose and use of the quoting. "Testimony regarding the Scientology policy known as Verbal Tech," Whyte will not bar evidence or testimony that shows the context and use of such a policy in the cult. Rosen then droned on for about a half hour, trying to show Whyte the errors in his thinking. Harold McElhinny from MoFo filed with the court an equipment list he would be bringing to trial, and Rosen jumped out of his seat as if to object, but Whyte made is clear that such objections would not be welcome as it was a standard form filed with the court; boilerplate text about easels, laptops, etc. Harold asked the court to set a date for when the OT material and NOTs material had to be refiled - not under seal - and bedlam ensued at the scieno table. Apparently someone had forgotten to bring the new order to their attention. Whyte had unsealed the case and ordered to refile all their sealed filings, unsealed. Whyte lifted the 1997 protective order sealing the material in this case (the court file) because it was based on the bogus trade secret claims made by the scienos at that time. He also opted to maintain an open and public courtroom throughout the trial and declare the exhibits containing the courses at issue are not confidential at trial. Since the scienos abandoned their trade secret claim in order to avoid a jury trial, those materials Whyte said " ... are not 'truly confidential ...'" and that "... defendant's evidence indicates that at least some of the materials have nonetheless entered the public domain via the Internet, and thereby probably lost any trade secret or confidential status." Whyte said "... it has become apparent that it would be very difficult for RTC to successfully claim any trade secret in the documents at issue." In another order he bifurcated the case into a court trial on the scienos' copyright claims, and a jury trial (not yet scheduled) for my counter-claims. Whyte also gave a clear indication that he wanted the case to settle before trial and ordered us to a settlement conference in front of Judge Fogel next Thursday. And he would, by that same day, be able to tell us if the trial was going to go forward on May 4th so we could inform all the witnesses that they'd be testifying. Whyte also denied the scienos' motion to close the courtroom and trial to the public. On a sadder note, based on the theory that it would have been gathered eventually in discovery anyway, Whyte intends to allow the admission of evidence allegedly gleaned during the unconstitutional 7-hour raid the scienos perpetrated on me in February 1995, despite the fact it was obtained illegally. According to Whyte illegal search and seizure prohibitions in the Bill of Rights do not apply in civil cases. So much for what they taught us in school about the law protecting us, eh kids? Rev Dennis Erlich * * the inFormer * *