Copyright 1997 Shelley Thomson; all rights reserved.
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Biased Journalism Volume 3, Number 4 June 19, 1997Contents:
The federal courthouse, which for some reason we keep wanting to call the Murrah building, has been fitted out with heavy black steel gates. They stand open during business hours, but are clearly meant to keep out a lot of angry people. We wondered about the reason. Downtown San Jose hardly lends itself to images of the rabble storming the Bastille. Do they know something we don't? --They're going to raise the bridge tolls again?
Judge Whyte is already at work a few minutes after 9 a.m. The courtroom floor is cluttered with audiovisual equipment, including two very large televisions, several small ones, an easel with a tablet on it and a large metal rack of exhibit books.
Before the bench a lawyer is droning his story. "In connection with the gender claims..." A woman attorney seated at the counsel table appears to pay no attention, but the moment he finishes she jumps up to oppose his argument.
This time all of the RTC v. Ward group is sitting on the right side of the chamber. In fact, they occupy it completely except for a single woman lawyer who has come for another case. In the far back row are Tom Hogan, dozing, and Helena Kobrin, wearing an ultramarine blue jacket. Ms Kobrin is sandwiched between Hogan and Warren McShane. Next to McShane is William Hart (another RTC lawyer) and on the far end of the bench is Roger Milgrim with a little space to himself.
In front of Milgrim sits Alan Cartright, the studious dark-haired acolyte who often brings RTC documents to the courtroom in banker's boxes. He is rumored to report directly to David Miscavige. Cartright has his notepad on his knee.
Judge Whyte's preliminary rulings are pinned to the door of the courtroom. For RTC v. Grady Ward it says, in a rounded youthful hand "motion for summary judgment is denied. Motion for summary adjudication as to the issue of validity of copyrights is granted in favor of Plaintiff. Motion for summary adjudication is granted in favor of Plaintiff as to affirmative defenses of estoppel, coyyright misuse, unclean hands and laches." [--"Those thangs in the river?" No. See the note at the end of the article.]
"...so there was always a profit sharing plan before, during and after the joint venture..." attorneys in the audience fidget.
The netizens are in the front row on the right. Grady Ward, in a nice looking gray suit, is on the aisle. Next to him is Xmudder, (net.citizen Keith Bennett), and next to Xmudder is Keith Henson. An observer from MoFo (Morrison & Foerster, the law firm defending Dennis Erlich against RTC) sits with the netizens.
The gender case drones on. Judge Whyte listens attentively. As usual, it is all about money. Evidently a female executive quit or was fired, in an episode of boardroom bloodshed somehow involving a failed joint venture. She sued and won. Now the parties are haggling about the amount she is due with reference to the retirement plan. It is really an actuarial question.
Judge Whyte looks absorbed. We have the sense that he prefers questions like this one, which could be answered by someone with a hand calculator. Notwithstanding, we note that the Judge does not want to stake his reputation on his arithmetic. He carefully hedges his remarks.
The woman attorney complains that her counterpart won't sign the stipulation with respect to court costs. The Judge looks at the male attorney, who abrasively says that he may or may not sign it once he has looked at it. Indignantly the female attorney states that she has mailed, faxed and hand delivered the stipulation to his office on various occasions. Apparently the losing attorney has chosen to be a jerk. Judge Whyte calmly says that if this goes on she will just have to file a motion. ("Serves you both right," his body language says.)
The next case is a pro per plaintiff. "You didn't file anything," Judge Whyte says. The pro per says he wants to offer oral testimony. Judge Whyte refuses to take it. And that is that. Unless we missed something, the opposing lawyer didn't say a single word. The case is over in about the time it would take to say a normal English sentence, such as "Don't let the door hit you in the ass on the way out."
Now the Ward case is called. Roger Milgrim and Helena Kobrin go forward for RTC. Helena Kobrin is wearing a black and white checked skirt and well-worn low-heeled shoes. Milgrim has a drab gray suit. Milgrim does the talking.
The Judge starts by announcing that he has a couple of questions. First, he has looked for the registration document for the Clearing Course series. He couldn't find it.
Mr. Ward, you indicated that there were certain papers not served on you, the Judge says. He wants an explanation.
Grady Ward replies that as far as he knows he received all the papers. His complaint was that he was not noticed.
Whyte: but the papers were served?
Ward: yes.
The Judge now launches into his spiel. "Basically, my thought is that the papers establish that the [Plaintiff's] papers are copyrighted" except for the Clearing Course.
"To a certain extent, Mr. Ward, I am not sure whether you are really honestly saying that you did not post what has been posted under your name." Whyte goes back and forth over the idea, leaving no doubt that he is confused and displeased.
[At the time we did not know what the Judge was talking about, but we believe the explanation had to do with the following: readers of alt.religion.scientology will know that a package of Ward's most outrageous posts was recently emailed to the elementary school attended by Ward's children. Local Arcata businesses received the same package. The sender was anonymous but the headers identified scientology.org as the source. Ward filed this material in support of his request for a protective order. Judge Whyte denied Ward's previous request for an order, saying that there was no recent evidence of misconduct by the Plaintiff.
[When deposed by RTC, Ward refused to authenticate any of the posts shown to him by the Plaintiff. In each case he stated that the item bore a resemblance to something he might have written, but that because he kept no record of his posts he could not be sure. He could have written it...but he just didn't know. RTC lawyers fumed. Now Judge Whyte complains that Ward has admitted authorship of a collection of posts which he earlier refused to acknowledge.
[By now it is obvious to everyone involved in this case that Judge Whyte is unclear on the concept of the net, and is very distressed by offensive language. RTC could not have found a better judge for its purposes.]
The Judge reiterates that he cannot undertand how Ward can both admit and refuse to authenticate his posts. With visible unhappiness he concedes that there is a triable issue of fact with reference to Scamizdat and Vorlon. Therefore he will not grant RTC a summary judgment.
With respect to the defenses, Whyte says he does not see any evidence offered to support a defense of estoppel, of failure to state a claim, laches, unclean hands or copyright misuse. Fair use is "very tenuous," but there are some comments posted along with the copyrighted material. Some fair use defense might conceivably be offered.
Whyte sums it up smartly. Summary Judgment is denied. Summary adjudication is granted regarding the existence of copyrights for the material except for the document whose registration statement could not be found. He goes on to grant Plaintiff's motion for summary adjudication of the affirmative defenses of laches, unclean hands, copyright abuse and estoppel. He sounds tired.
Milgrim is not tired. He has spent the previous day rehearsing his talk. [Grady Ward saw him practicing while Ward was reviewing documents at Tom Hogan's office.] His voice is different: he sounds youthful, energetic and precise.
"Your Honor, I'd like to address some areas." With reference to the fair use defense, which Ward has not cited but to which Whyte referred earlier, "it subsumes a knowledge of the purpose of the infringement." The Defendant [Ward] denies categorically that he posted [the Scamizdat posts], so how can he understand the purpose? He can't use a fair use defense [unless he admits being the author].
[Apparently this is a gray area. It is possible that the most the defendant has to know is that he is posting copyrighted materials. OTOH Milgrim's point is well taken. If Ward is not the author, he cannot speak to what the real author might have known.]
Judge Whyte: Isn't it theoretically possible for someone to make a fair use defense even under these circumstances?
Milgrim: No. Everything we studied goes against this. Not only is the absence of any case law notable, but one of the statutory facts is the purpose of the infringement. The testimony of [Grady Ward] would necessarily be entirely conjectural.
[This is a carefully researched and well presented argument. Whatever RTC pays Milgrim, we judged that it he earned it with this performance.]
"While one can see an argument for fair use, I don't think it really fits in," Milgrim says thoughtfully. He goes on to discuss the Rule 56 obligation of search and scrutiny, which a laywer must do "before asking you to make that hard decision."
[Rule 56 is the federal rule of civil procedure under which a party files a motion for summary judgment; case law holds that summary judgment is only to be granted only if there is no issue of material fact to be tried.]
Judge Whyte: you aren't going to try to persuade me to render a summary judgment? [He has already said that there is a triable issue of fact with regard to the authorship of Scamizdat and Vorlon. He sounds incredulous. How far will these people go?]
Milgrim: he [Ward] has admitted not once but four times that he is the poster! [of Scamizdat]
[The gallery leans forward. What's this? Henson and Xmudder sport disbelieving grins.]
In paragraph 1, and in each of his four replies, he admitted that he was the infringer. Milgrim (quoting): "I respond as follows: a general denial with the exception of jurisdiction and residency and paragraph 17 of the complaint." That's the paragraph referring to the infringement, Milgrim says with satisfaction.
"Except that Grady Ward avers that all such use was well within the guidelines of the copyright act." Now Milgrim is quoting from Ward's June 1996 deposition, lines 532-534. The deposing attorney asked, 'what you are saying is that [when] you did or caused others to infringe, it was within the fair use guidelines?' 'Ward: yes.' The attorney repeated the question, and Grady Ward again said yes. This occurred on June 27, 1996--almost a year ago.
Despite this answer, [Milgrim continues earnestly] Ward subsequently filed three answers and counterclaims, October 7, 1996, November 25, 1996 and February 3, 1997.
Gathering steam, Milgrim rolls on, working "the terrorism that we are seeing on the Internet" neatly into his argument.
Netizens snicker somewhat too loudly in the background. Without turning around, Milgrim picks up on it. He denounces the netizens for their immoral and irreverent behavior [our paraphrase of a really good rant that went faster than we would write]. "they have their chums on the Internet that they want to amuse..."
[The Judge is buying it, we notice.] Milgrim is telling Whyte that the odd glitches in the infringing posts are intentional. "They're putting enough fingerprints into their documents that they can brag to their friends later (about it)." "It's terrorism."
Now look at pages 428-430 of Ward's deposition. Ward says "I will deny any posts that are infringement."
"He's hiding behind the skirts of the Internet!"
Milgrim goes on to identify unspecified netizens--obviously Ward and Henson--as deliberate infringers for amusement. "If they are going to have the pride of being the hero, they should not be allowed to dodge the consequences," he says.
With reference to standing admissions, he cites two cases. The second is the Vien case. Clear concessions of infringement, he intones. "You don't create an issue of fact by filing a statement denying it when that is inconsistent with [what you said at] your deposition." Ward's denial of infringement does not meet Rule 56 standards for creating an issue of fact.
"Speaking to the burden of Rule 56," Milgrim says, the Plaintiff put posts into evidence. Mr. Ward acknowledges that he has made some posts. The burden shifted to him to show which ones he posted. There was no response to this burden.
It is a good argument, cogent and well expressed.
Ward finally has his turn. "Again, I'm not an attorney so I must apologize for any mistakes I may have made in protocol." Judge Whyte gives him a stony look.
Ward wants to address the authorship question. "Crucial exhibits B and C were filed under seal. I never got them," he explains.
Whyte: Didn't [Magistrate Judge] Infante rule that the documents could be provided to you at Hogan's office?
Ward agrees that Infante made this ruling. Because he lives 300 miles away, it has not been of much use to him. He got a brief chance yesterday to review some documents.
"I specifically deny those three posts which appear under my name," Ward says firmly. He says he believes the posts were done by Plaintiff's OSA.
Judge Whyte: with regard to the letter, did you write it?
Ward: Maybe. He says he doesn't keep copies.
Whyte: But you make it available on the Internet so that kids can get it.
Ward: having something on the Internet is no different than a library. Kids can check out Fanny Hill. But [Grady says firmly and seriously] I don't write porn and I don't expose my children to vulgarity.
Whyte: in your answer with regard to the postings, you denied [making them] and also asserted fair use.
Ward: the three postings were redacted. I don't know what they [RTC] were referring to. Ward explains that the RTC attorneys only showed him the headers. [!]
"To be honest, I have posted small fragments of their scripture," Ward says. He accuses RTC of trying to confuse the issue.
Whyte (rephrasing for him): you mean "I didn't make the postings under my name that they are accusing me of, but have posted a small amount under fair use."
Ward: I do not keep postings. They should under Rule 106 produce all the postings [made under my name]. They haven't done this. They knew I denied it [the infringing posts]. They knew I could not afford a transcript. I don't have the money to travel down [to see exhibits at Hogan's office in San Jose]. They are trying to steamroller me.
"The purpose of Rule 56(d) is to salvage part of a properly brought but denied Rule 56 action." The original Rule 56 action was brought in bad faith, Ward declares. And under Rule 106, they give him tiny fragments of posts which they have redacted [instead of the full posts, which Ward believes he is entitled to]. "I don't keep records," he explains.
Now Ward proceeds to a critical issue in his case. In his filings he did not intend to waive his defenses. He does not want to give up unclean hands. Acting with unclean hands is a habit of Plaintiffs, he declares. It includes having a private detective lie to get photographs of his children from his mother, posting false material [under his name on the Internet], and sending offensive material to children.
Whyte: how do you know it came from them?
Ward: the path statement has smtp.scientology.org in it.
Whyte: how is this different from what they claim you did?
Ward: the headers are a different question than the path statement. He goes on to say that RTC hasn't denied it, and he would like to see them explain away the path statement.
Judge Whyte is not in a mood to be educated about the workings of the net. "They have specifically denied that they did it," he says.
Ward: Oh, really?
Whyte: Maybe you don't have the papers yet.
Now Whyte goes into a surprising tirade. He characterizes the posts Ward admits making as "the most disgusting thing I have ever read." If the Plaintiff did it [sent the material to the children], it was "in poor taste and inappropriate." But they denied it. So I cannot make a decision about it.
Whyte lectures on: if you publish material like that on the Internet, you run the risk that people you don't intend to see it will get hold of it. I am not suggesting that it is appropriate for someone to send it to the school. But I don't think you have anyone to blame any more than you blame yourself.
You ought to look closely [at what you are writing]. You can say to yourself "I think I have a First Amendment right to publish" the material, but if it gets into the hands of people you don't intend it for-- [Whyte says that he doesn't mean to have a chilling effect on Ward's First Amendment rights, but this lecture is patently intended to do that. We surmise this is a clue to how Whyte feels about the CDA.]
[Netizens in the gallery were silent with surprise. The Judge doesn't support the First Amendment? This isn't good.]
Milgrim gets another turn. He attacks the viability of a fair use defense. Fair use is a personal infringement, he says. Ward can't argue fair use unless he admits to being the author. The issue should be summarily adjudicated.
He hasn't forgotten the missing copyright form. It is an oversight. He will look for it. [While he says this a helper hands him something, possibly the document in question. He is trying to get the court clerk's attention when Whyte makes the statement below.]
Whyte: I would ask for nothing more than something that tells me where it is. If it's there, it's there. If it's not, it's not.
Milgrim: Grady Ward was served yesterday. But the documents have been available "at all pertinent times" in Tom Hogan's office. He goes on to characterize Ward's arguments as "evasive." Ward is "trying to avoid dealing with the issues."
"Is there an end to it, short of a plenary trial?" Milgrim says plaintively. He gives the Judge a moment to savor the image of a future with no scientology trial.
A moment later he is indignant. "It really stumps me that Grady Ward would believe that a religion would post [its own sacred scriptures] and seek out someone to persecute! There is no incentive for a forgery. No reason--but [sinister theme music] here we have Grady Ward, a person "burning with animus." Did he post these infringing works?
Milgrim ends on this dramatic rhetorical question. Ward wants to reply. Judge Whyte won't allow it.
Tom Hogan steps forward. We have a trial date on January 12, he explains; but on July 18 there will be a hearing on our motion to withdraw trade secret claims. [Should the motion be granted] the case can be tried in one day. He wants to make the trial date earlier. [!]
Judge Whyte: (exasperated) This has been frustrating to me and Judge Infante. We gave everybody a trial date. We gave you one. We are not going to change it now. "We can't let this case run our court." Plus, you have your preliminary protection which will last [until trial] unless it is overturned.
And that is it. The lawyers turn away, leaving Judge Whyte bristling like an offended Siamese cat. Milgrim is wearing a detestable dark red tie with brilliant yellow stripes; it reminds us vividly of a poisonous snake. Tom Hogan is wearing his tapestry tie. It goes well with his charcoal gray suit.
The netizens bunch up near the elevator. Keith Henson shares out copies of a document just served on him. Warren McShane hurries past. He is wearing a blue chambray shirt without a tie and looks evilly pleased with himself. "Did you see what happened in Finland?" he flings over his shoulder. He is referring to the decision that Julf must turn over the true name of the Scamizdat poster. "You won't find my name in there," Ward says. He offers to bet McShane $5 that his name isn't the one.
McShane declines to take the bet.
----------------
Note:An attorney kindly supplied us with an explanation of laches. It is related to the timing of a legal action. If a plaintiff unreasonably delays in pursuing a claim, a court may rule that the plaintiff cannot pursue the claim on the equitable theory of laches. It is different than a statute of limitations, which imposes a definite period within which a plaintiff must act. The idea of laches is based on fairness -- it is unfair to allow a party to sit on its rights and then much later try to pursue a claim.
Henson's friendly and informal relationship with Hogan has made seasoned observers nervous from time to time. Numerous persons have tried to persuade the irrepressible netizen to invest more time in his pleadings, refrain from disclosing his strategy in advance, and stop trusting Tom Hogan. Coincidentally (or perhaps not) the most serious warnings came from attorneys.
"You should remember that everything you say in public can and will probably be used against you," one lawyer warned.
On June 6 Henson was served with a graphic example of the reality behind the warnings. The motion, which he posted to the net, is the RTC opposition to Henson's expedited motion for sanctions related to the last-minute legal maneuvers surrounding Miscavige's deposition.
Although the motion has been posted, we feel that no reader should be denied it. Extended exerpts follow with our comments. [We apologize for the scanning errors.]
MOTION FOR SANCTIONS RE DEPOSITION OF
DAVID MISCAVIGE..., NO. C-96.20271 RMW EAI
INTRODUCTION
Defendant Keith Henson was accorded 90 minutes of deposition
of David Miscavige, RTC's Board Chairman and the ecclesiastical leader
of the Scientology religion, by order of this Court. There were no
limits on his questioning other than time and "no harassment." Henson
took Mr. Miscavige's deposition on May 21, where he took all the time
he wanted, ran out of questions altogether, and announced that he was
"done."
Now in further pursuit of harassment of Mr. Miscavige, which
has been Henson's goal from the earliest days of this case, Henson
seeks three more hours of testimony from Mr. Miscavige despite
admitting that he has no additional questions for the witness even if
this motion were granted.
[On the basis of the maneuvers discussed in "Lawyers' Poker" Henson
asked for sanctions consisting of additional deposition hours.]
As a result, RTC is again called upon to respond to a
thoroughly senseless motion, filed in violation of Local Rule 37-1(d)
(requiring motions for sanctions to be regularly noticed rather than
expedited), and pursued for the sake of harassment by a pro se
litigant who regards litigation as amusing, jokes about bombs and
Scientologists at an airport ticket counter, and calls counsel's
office on numerous occasions threatening a "Waco" occurring at Mr.
Miscavige's deposition. Mere denials of his pointless motions have no
effect. Henson should be sanctioned for bringing this motion - the
fourth he has filed since May 2, 1997 - informed this case is over and
he lost, [and] ordered to stop harassing Mr. Miscavige, and admonished
against bringing any more frivolous motions.
[Almost all of the remarks Hogan accuses Henson of making took place
in casual conversation, sometimes as jokes. However, Henson does not
remember making jokes about bombs at the ticket counter.]
ARGUMENT
A. Henson's Admissions Reveal The Cynical, Harassing Nature Of
His Motion.
1. Henson freely admits that he has no questions in mind
to ask Mr. Miscavige even if he were to persuade the Court to permit
him the three additional hours of questioning he seeks by this motion.
[Ex. A, Declaration of Thomas R. Hogan, 3]. That admission
automatically renders Henson's motion frivolous, under any definition
of the term, because it completely negates the utility of the relief
he
******************
I Henson stubbornly refuses to accept the fact that this case
is over except for the Court's determination of the amount of damages
and attorneys' fees he owes RTC for his copyright infringement, and is
undeterred from harassing Mr. Miscavige by the permanent injunction
his conduct has richly earned. purportedly seeks and exposes his
argument as wholly meritless.2
******************
2. Henson actually had more than the 90 minutes which this
Court allotted him to depose Mr. Miscavige. Grady Ward did not use all
of his 90 minutes, ceding approximately 17 minutes of it to Henson.
[Ex. A, Hogan Dec., 2]. During the meet and confer process that
preceded this motion, Henson admitted that he had more time than he
had expected to question Mr. Miscavige and that he did not have enough
questions to fill the time available.3 [Ex. A, Hogan Dec., 3; Ex. B,
Declaration of Monique E. Yingling, 2].
3. Henson's complaint that he was unable to avail himself of
the assistance of counsel for Mr. Miscavige's deposition is equally
contrived. No such counsel were going to appear to assist him at his
deposition, and Henson knew it.4 That is illustrated by the fact that
when he arrived to take Mr. Miscavige's deposition both on May 20 and
on May 21, Henson was not accompanied by any attorney [Ex. C,
Declaration of Michael Rinder, ~4]. Nor was he accompanied by Shelley
Thompson,~ a
[After all this they misspelled our name. <sigh>]
**********************
2 "Frivolous" is defined many ways. See, e.g., Neitzke V.
Williams, 490 U.S. 319, 325, 109 S.Ct.
1827,1831, 104 L. Ed. 2d 338 (1989)("none of the legal points are
arguable on the merits," under 28 U.S.C. SS 1915 (d) and the Sixth
Amendment); Woodrum V. Woodward County, 866 F.2d 1121, 1127 (9th Cir.
1989)("[t]he key question in assessing frivolousness is whether a
complaint states an arguable claim," under Rule 11); Lopez V. Dean
Witter Reynolas, Inc., 805 F.2d 880, 885 (9th Cir. 1986)(the result is
obvious or the arguments advanced are wholly without merit, under Fed
R. App. P.38).
3 Indeed, after concluding his deposition of Mr. Miscavige and
stating that he was "done," Henson actually offered the remaining time
back to Ward. [Deposition of David Miscavige, 118:21-119:3, attached
as Ex. 2 to the Declaration of Thomas R. Hogan, attached hereto as Ex.
A]. Ward declined, and instead thanked RTC, Mr. Miscavige, and their
counsel for being so polite to Messrs. Ward andHenson. [Id.].
~ Henson's "emergency ex parte" motion sought permission for
two particular lawyers to assist him at the deposition, one of whom
made clear that he would not attend, while the other was engaged in
trial and could not attend. [Ex. A, Hogan Dec., 4]. The fact that
there was never a doubt that either attorney was going to attend
reveals that both this motion and the "emergency ex parte" motion was
filed for one reason only - to make RTC spend money to cease the
harassment of David Miscavige.
5 Thompson's absence alone creates the clear inference that
despite what he now says, Henson indeed was aware of the order
permitting the assistance of one lawyer before the deposition. Henson
was well aware that no lawyer would accompany him. In fact, Henson
demonstrated the frivolous nature of his motion when he offered to
withdraw his "emergency ex parte" motion to have attorneys attend, if
RTC would agree that Thompson, the "biased journalist," could attend
the Miscavige deposition [Ex. A, Hogan Dec. 4].
[<fweet!> Before investing in airline tickets and a hotel room we
talked with knowledgeable observers, who informed us that RTC could
bar us from the deposition. We were assured by several sources that
this would certainly happen. Rather than go on a futile journey we
reluctantly decided to drop the idea. It was a correct choice, as
later proved by Infante's order keeping us out. Any reasonable
person could have made this prediction.]
************************
'journalist" whose
presence at the deposition Henson had so strenuously argued for, but
which was denied by the Court. Moreover, just prior to the start of
Mr. Miscavige's deposition, Henson called the Court to ask for
permission to photograph RTC's lawyers but made no inquiry about his
own motion. [Ex. A, Hogan Dec., 7].
4. Nevertheless, Henson also admitted during the meet and
confer process that he was fully aware that it was his responsibility
to learn the outcome of his motion concerning counsel, and claims that
he did not so much as telephone the clerk to inquire of the status of
his emergency ex parte motion between May 15 (the day he filed it) and
May 21 (the day he deposed Mr. Miscavige). [Ex. A, Hogan Dec., 5].
Thus, Henson's contention that RTC was somehow obligated to give him
notice of the outcome of his motion is as disingenuous as it is wrong.
B. The Events In And Around The Deposition Confirm That Henson's
Arguments Are Cynical And Insincere.
1. Henson had an extra day for preparation after his portion
of the deposition was bifurcated as a result of the order granting
RTC's May 19 emergency motion based upon Ward's and Henson's ominous
remarks at the Southwest Airlines ticket counter at San Jose Airport
about "bombs" and "Scientologists." [Ex. A, Hogan Dec., 6]. As a
result, Henson's date for questioning Mr. Miscavige was moved from May
20 to May 21. When Henson arrived for the deposition on May 20
(unaware of the May 19 order), he had no counsel with him and made no
inquiry about his "emergency ex parte" motion, but left the distinct
impression that he was in touch with the Court about his effort to
gain an order regarding lawyers and Ms. Thompson.
[<fweet!> If he made no inquiry, how did he leave an impression?]
[Ex. C, Rinder Dec.,
4]. The scene repeated itself on May 21. Henson appeared without
counsel and, according to what he now claims, had no idea that the
Court had allowed him to bring one lawyer to the deposition to assist
him. [Ex. C, Rinder Dec., 8].
2. It is virtually inconceivable that Henson did not know
about the order. However, Henson has no one to blame but himself for
his ignorance, if indeed he was unaware of the Court's order regarding
counsel. Instead of calling the Court to ascertain the status of his
motion or obtaining assistance from counsel during his extra time to
prepare for the deposition, Henson - after announcing expressly that
his intention was to harass the leaders of the Scientology religion -
spent the day picketing the entrance of a Church facility in Riverside
County, where he told the security guard he was there to harass the
leaders of the religion. Thereafter, carrying picket signs demeaning
Mr. Miscavige, he set about taunting Church staff members, making
allusions to the Waco tragedy, threatening to reveal unpublished
scriptural materials to Church staff members, and otherwise forwarding
the cause of harassment to which he is singularly devoted. [Ex. D,
Declaration of Michael Norton, 3 & Exs. A & B thereto].6
3. The deposition transcript affirms Henson's admissions
during the meet and confer process discussed above. Henson had 107
minutes available to him to question Mr. Miscavige, completed his
questioning without using it all ~x. A, Hogan Dec., 2-3], announced
that he was "done," and offered the remainder of available time back
to Grady Ward, who declined. Deposition of David Miscavige,
118:21-119:3, attached as Ex. 2 to the Declaration of Thomas R. Hogan,
attached hereto as Ex. A]]. Moreover, even after having a full
opportunity to consult with a lawyer or lawyers regarding the
deposition (see point A. 3., ante), and after having devoted weeks to
soliciting deposition questions on the Internet [Ex. A, Hogan Dec.,
4], not only did Henson run out of questions to ask he squandered much
of that time on questions that were ridiculous or insulting 7 or
related to matters which this Court had previously ruled to be
irrelevant.8
[<fweet!> The Miscavige deposition is sealed to the best of our
knowledge. Here Hogan discusses what took place in it.]
The transcript also reveals that when he was supposedly
first informed of the order permitting counsel's presence, Henson made
no objection about notice or anything else. He did not even speak when
Ward stated that he did not believe that he or Henson had "seen" the
order and counsel pointed out to Ward that it was an order resulting
from one of Henson's own motions. [Deposition of ion
**********************
6 The photos of Henson's picketing reveal that harassment and
ajuvenile proclivity to demean the Scientology religion and Mr.
Miscavige. The term "wog," used on one of Henson's signs, is a
Scientology colloquialism for "non-Scientologist." Thus, Henson spent
his extra day prior to the deposition not preparing, but rather
demeaning Mr. Miscavige and picketing a church.
[Grady Ward spent the day preparing his questions. It is a difference
in style.]
7 For example, Henson devoted significant attention to a line
of questions about what he characterized as a folktale about selling
immigrants the Brooklyn Bridge, and inquiring whether Mr. Miscavige
thought L. Ron Hubbard was playing an "inside joke" on his followers.
[The deposition must have been interesting. We look forward to
further disclosures.]
[Ex. C., Miscavige Depo., 79:22-81:20]. Henson's questions further
reflect an intention to degrade and to harass and bear no relationship
to his case whatsoever.
8 Henson earlier sought documents from Mr. Miscavige, among
them documents relating to Lisa McPherson, a Scientologist who died in
Florida in 1995. This Court rejected Henson's efforts in that regard
[Ex. A, Hogan Dec., 8], and denied him any discovery into Ms.
McPherson's death as irrelevant. Nevertheless, Henson devoted
significant attention to Ms. McPherson in the deposition. [Deposition
of David Miscavige, 71:8-72:19; 75:2-76:4, attached as Ex. 2 to the
Declaration of Thomas R. Hogan, attached hereto as Ex. A].
***********************
4. To label Henson's motion as merely frivolous is to
elevate it to an undeserved plateau of dignity. There are a plethora
of other indicia that this motion is merely an exercise in harassment:
RTC has prevailed on its summary judgment motion, and
all that remains to be decided is how much Henson, an adjudicated
copyright infringer, owes RTC in statutory damages and attorneys'
fees. [Ex. A, Hogan Dec., 9].
Henson has no questions to ask Mr. Miscavige. ~x. A,
Hogan Dec., 5].
There is nothing left in the case for which Henson
could use further discovery from Mr. Miscavige or anyone else. ~x. A,
Hogan Dec., 9]. In fact, Henson filed his motion for reconsideration
of the summary judgment order ~ he took Mr. Miscavige's deposition and
then when he did take the deposition asked no relevant questions.
Henson's motion is so insincere that during a
conversation with Mr. Miscavige's counsel, Henson actually offered not
to bring it if RTC would divulge the name of the Southwest Airlines
employee who had reported his chilling remarks at the ticket counter
about bombs and killing Scientologists. ~x. B, Yingling Dec., 3].
[This exchange occurred during what Henson perceives as a harassing
telephone call from Yingling.]
Nowhere does Henson ever state that he would have
availed himself of the assistance of counsel on May 20 or 21. The
careful wording of his motion is deliberate as he knows that the two
lawyers he identified were not going to appear and that his strategy
all along was not to secure counsel but to expand RTC's costs.
CONCLUSION
Henson's motion is beyond frivolous - it is cynical. It
typifies Henson's determination to regard litigation as his toy, the
Court as his arcade, and harassment of David Miscavige as
entertainment. His motion reflects neither a legitimate litigation
purpose nor a shred of sincerity in the remedy it seeks or the grounds
it urges. Henson - an adjudicated copyright infringer - should be
denied the relief he seeks, reminded that the case is over, and
sanctioned so he will stop making ridiculous applications that waste
the Court's resources and waste RTC's money.
Dated: June 3, 1997 Respect II
Thomas R Hogan
The order consists of what appears to be standard boilerplate, written broadly enough that virtually anything having to do with the copyrighted materials is banned. OTOH, in our best nonlegal judgment, it appears to apply to persons acting in concert with Henson, or encouraging Henson to infringe, or being encouraged by Henson to infringe.
The order on the net contains no exhibits. Absent the exhibits it is impossible to know which acts would be considered infringement. (We vividly recall that the church of scientology requested Netcom to destroy an issue of Biased Journalism, claiming that a legal opinion written by Judge Leonie Brinkema was an infringement of church copyrights.)
Is this an effort to enlighten ars readers, a creative hoax, or an attempt to serve legal notice on the entire net? The expression "...who receive actual notice of this order by personal service or otherwise." sounds suspiciously broad.
Since we are not a lawyer we cannot tell whether you should take this seriously or not. If you do not wish to risk being served, we suggest that you avoid reading the document below. Just click past it to the next article.
IN THE UNITED STATES DISTRICT COURT |
FOR THE NORTHERN DISTRICT OF CALIFORNIA |
RELIGIOUS TECHNOLOGY CENTER, a | NO. C-96-20271 RMW
California non-profit corporation, |
Plaintiff. | PERMANENT INJUNCTION
v. |
|
H. KEITH HENSON, an individual, |
Defendant. |
__________________________________________|
(1) IT IS HEREBY ORDERED, ADJUDGED and DECREED that defendant H.
Keith Henson, his agents, servants, employees, and attorneys and
all persons in active concert (1) or participation with him who receive
actual notice of this order by personal service or otherwise ARE
HEREBY PERMANENTLY RESTRAINED AND ENJOINED from:
(a) directly or indirectly, in whole or in part,publishing,
reproducing, distributing, performing, or creating
derivative works based upon, the copyrighted Advanced
Technology works, including the Exhibit B works attached
hereto, (collectively the "Works") or any of them, in
____________
(1)Persons in active concert are ones who knowingly assist or
encourage the defendant in accomplishing the prohibited acts or
commit the prohibited acts with the assistance or encouragement of
the defendant.
1.
any media now known or hereafter developed in any time,
place or fashion, and in particular from engaging in
any such acts in, on, or in connection with any computer,
database, information service, electronic bulletin
board service, network, storage facility, or archives,
or other electronic or computer device, service, network
or facility, including, without limitation, the
transmitting or loading of any such materials onto, or
downloading any copies of them from any such device,
service, network or facility and that all such copies
which defendant, his agents, servants, employees, and
attorneys and those in active concert or participation
with them have caused to be copied or copied onto any
such device, service, network, or facility be removed;
(b) directly or indirectly, engaging in the unauthorized
solicitation and/or acquisition, of the Works, or
portions thereof, and specifically from soliciting,
acquiring,seeking to acquire, or otherwise downloading
any of the Works, or portions thereof, from any media
now known or hereafter developed in any time, place
or fashion, or from any computer, database,
information service, electronic bulletin board service,
network, storage facility, or archives, or other
electronic or computer device, service, network or
facility and that all such copies which defendant,
his agents, servants, employees, and attorneys and
those in active concert or participation with them
have caused to be copied or copied from any such
device, service, network, or facility be removed;
(d) causing or inducing any other person to engage in
any of the foregoing prohibited acts; and
(e) filing with the court, except under seal, any
documents that contain any of the Works.
(2) Nothing in this order shall be construed to prohibit
use of the Works to the extent use is permitted under 17
U.S.C. Sec. 107.
(3) Nothing in this order shall prevent defendant from
downloading and storing the Works for the sole purpose of
gathering information for his defense in this case.
(4) All copies of the Works in defendant's possession shall
be inventoried and maintained by defendant pending further
2.
order from this court. Within ten (1) days of this order,
defendant must file with the court and serve on plaintiff an
inventory of those Works that he is maintaining in his
possession pursuant to this order. Defendant shall file and
serve periodic updates, if necessary, such that the inventory
list on file with the court and in plaintiff's possession
remains accurate.
DATED: 6/16/97 /s/
RONALD M. WHYTE
United States District
Judge
The egress isn't always easy to find. We recently talked with a long-term scientologist who is attempting to leave the church. We will refer to him as "OT."
When he requested a refund (of money paid for unused services) he was asked if he was sure it was what he wanted to do.
As I explained to him...I solo'd a CS 53 and sorted out the previous BPC left unhandled by Flag...and did so in short order....so I really do not need his "help"...
As I explained to him...he would have to invent crimes I might be guilty of...not ones "found" in a "sec-check"
[sardonically] I have yet to see the routing form...
supposedly the KOT was having somebody do the actions for me.... but my bullshit detector went off numerous times while talking with him and the LRH Communicator
routing forms are the wonderful old-style Admin Tech.....I would guess some SO proxy for me would carry the form to each station
"Doing the actions" is not possible...routing the from through the various checkpoints is....
C/S= case supervisor....diagnoses and tells auditor which things to audit
and some at Flag pretend to be OT while operating at fear to covert hostility...
OT described it as a quitclaim from OSA.
What does this document really do?
"KNOW ALL MEN BY THESE PRESENTS: That [place fool's name here] first party, for good and valuable consideration, received from or on behalf of CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION, INC., second party, the receipt of which is hereby acknowledged, (wherever used herein the terms "first party" and "second party" shall include singular and plural, heirs, legal representatives, and assigns of individuals, and the successors and assigns of corporations, wherever the context so admits or requires), doesT. Rex responded:"HEREBY remise, release, acquit, satisfy and forever discharge the said second party, of and from all, and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever, in law or in equity, which said first party ever had, now has, or which any personal representative, successor, heir or assign of said first party, hereafter can, shall or may have, against said second party, for, upon or by reason of any Matter, cause or thing whatsoever, from the beginning of the world to the day of these presents.
"IN WITNESS WHEREOF, [etc.]"
THE FOLLOWING IS NOT LEGAL ADVICE.This document is not a quitclaim (quitclaims properly pertain only to real property). It is instead a broadly worded general release that may (or may not) be enforceable.
A general release is a contractual admission that the party being released (in this case, the CoS and its related entities) has no liability to the signer for anything the party being released may already have done to the signer. Some states will not enforce a general release executed without certain formalities (such as advice of an attorney), and a number of foreign countries will also refuse to enforce a general release.
The most amusing -- and I suppose my amusement demonstrates my sick sense of humor -- aspect of the release is that it is, by its own terms, unenforceable. A signature on a release, as a matter of equity and contract law, cannot bind all the persons this one purports to bind: "[W]hich said first party ever had, now has, or which any personal representative, successor, heir or assign of said first party, hereafter can, shall or may have, against said second party, for, upon or by reason of any Matter, cause or thing whatsoever, from the beginning of the world to the day of these presents."
By its language, the release attempts to bind persons other than the signer. This is bad enough. Carefully parsing the language, however, shows something more alarming: that it binds others for acts that were not against the signer. An example might make this clearer:
Signer is S. He is a CoS member, as is his daughter S'. On D-Day (all too appropriate considering the current calendar), S signs The Release. Unknown to S, the CoS has already committed ghastly offenses against S' on D-Day. S then dies some time after D-Day, which makes S' an heir of S. Note that the release is not limited to claims that arose from the relationship between S and CoS (in other words, that CoS "did" to S)! S' is therefore barred from making a claim against CoS, even though she didn't sign anything, even though S did not (and never did) have an interest in the claim of S'.
As a side comment, I question the ethical conduct of any attorney, even under the relaxed California standards, who would prepare this kind of release with knowledge that his client (the CoS) would probably present it to persons who had no legal counsel themselves.
Whether this whole mess could actually be enforced also depends upon another issue: Is the return of money paid consideration? Normally, it isn't. The release thus _might_ fail of consideration. There are some other technical considerations (such as the lack of a severability provision) that would make this an excellent test question in a contracts class, and further undermine enforceability.
Where does this get us? A lot of legal fees and side battles, which is exactly what the CoS has repeatedly demonstrated it wants.
One final note: Releases like this are often like the sign in the cloak room of a fancy restaurant that says "Not responsible for lost or stolen articles." The sign is there to convince people not to sue if something is indeed lost or stolen. Under some -- perhaps most -- circumstances, the restaurant is in fact liable, despite the sign.
Because I don't know where the hypothetical person who has been presented this dreck is, I don't know whether I am licensed to practice law in his/her jurisdiction. For that reason, this is not legal advice.
Maybe. It depends on which court you're talking about, whether the crime/fraud exception might void it anyway, etc. IOW, not enough data.--T. Rex
The church pursued aggressive negotiation with OT. They sent him a signed and notarized document which would take effect upon his signing the agreement above. OT supplied this to us too. Here it is:
"GENERAL RELEASET. Rex commented:"KNOW ALL MEN BY THESE PRESENTS: That Mr. Glen E. Stilo, Legal Officer for the Church of Scientology Flag Service Organization, Inc., first party, for good and valuable consideration received (a signed release for repayment of [$$deleted] 1) from or on behalf of [deleted] second party, the receipt of which is hereby acknowledged, (wherever used herein the terms 'first party' and "second party" shall include singular and plural, heirs, legal representatives, and assigns of individuals, and the successors and assigns of corporations, wherever the context so admits or requires), does
"HEREBY remise, release, acquit, satisfy and forever discharge the said second party, of and from all, and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialists, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgements, executions, claims and demands whatsoever, in law or in equity, which said first party ever had, now has, or which any personal representative, successor, heir or assign of said first party, hereafter can, shall or may have, against said second party, for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of these presents.
"IN WITNESS HEREOF, [etc.]
STATE OF FLORIDA
COUNTY OF PINELLAS [etc.]"
--Thesaurus Rex (didn't you always want to know what the "T." stood for?)
[BJ:] Judge Whyte ordered a consolidated deposition of David Miscavige by Dennis Erlich, Grady Ward and Keith Henson. This was scheduled to take place on May 20 in Palm Desert (SO California). Erlich got six hours and each of the other two defendants got 1 1/2 hours; they were all allowed to sit in on the entire deposition.
This sort of thing is quite common.
[BJ:] Ward and Henson got on the plane Monday afternoon May 19. They picked up their tickets at 1:30. On the following morning Mike Rinder met them with a court order in his hand. Plans had been changed.At 4:20 pm on Monday Magistrate Judge Infante issued a surprise ruling at the request of RTC. RTC claimed that a Southwest Airlines employee overheard Henson telling Ward about a plot to bomb the church. Infante's order excluded Ward and Henson from the Erlich part of the deposition. They would have to ask their questions without knowing what MoFo had asked on Erlich's behalf, and without the ability to follow up on anything MoFo uncovered. Infante required RTC to pay for the production of an expedited transcript. (The entire deposition is subject to a 30 day gag order.)
This is clearly within the Magistrate Judge's power, but is probably not a wise use of his authority. Given the previous acrimony between the parties, Magistrate Judge Infante SHOULD have issued an order requiring all parties to contact him, in a telephone conference call, prior to start of the dep to iron this out. But that's his call.
[BJ:] Henson and Ward had to wait until Wednesday to have their chance to depose DM. On Wednesday morning one minute before the deposition started RTC handed Henson another order signed by Judge Infante, which had been issued on Monday afternoon. This order a) barred me from the deposition
Because you are not a party (or a party's attorney), and press members do NOT have an inherent right to attend depositions. Either side may close a deposition to nonparties.
[BJ:] and b) allowed Henson to have a lawyer present [meaningless, since there was no time to get one]. When Henson got back to the Bay Area after the deposition he found that there was a third court order, issued in the batch Monday afternoon, which had not been mentioned to him. This court order forbade him to disclose the site of the deposition.
Unusual, but within the bounds of reasonability if there has been a previously expressed fear (rational or not) for the privacy of the individual(s) being deposed. (Yes, I know. That sentence did not have enough subordinate clauses for legal writing.)
[BJ:] Then Monique Yingling, who is DM's personal attorney but not an attorney of record in any of the San Jose cases, telephoned Keith Henson to threaten him & deter him from attempting to depose Miscavige again. Henson told me Yingling got abusive over the phone and he informed her that he did not appreciate this.Now, RTC was obviously trying to take advantage of Henson's pro se status. My question is, how common is this kind of behavior?
Every f***ing day in every f***ing major case involving more than $500k at issue, and unfortunately pretty common in smaller cases, too.
[BJ:] Is it sanctionable conduct?
Not directly. Since you are in California, I cannot give much of a direct opinion; however, most states require that motions, etc. not be made for the purpose of harrassment or undue "multiplication of proceedings." This ordinarily requires an _actual motion_, not just phone calls. California is not most states.
[BJ:] Hogan said they have no obligation to deliver court orders and only did so as a courtesy. [Keith thinks they withheld the order re. disclosure of the deposition site in the hope that he would reveal it, and they could then file for contempt.]
Hogan is wrong. If a party moves for an order that would restrict the activities of another party, that party cannot enforce the order prior to delivery. Thus, technically, Hogan need not have delivered his order; however, it would be worthless if he had failed to do so and Keith had revealed the site of the deposition prior to actually receiving the order.
[BJ:] Do lawyers do this all the time, or is this playing dirty?
Yes, and yes. [deleted], in fact, is notorious for this (I have been across from them in several actions myself).
[BJ:] And why did Infante, in effect, overrule a decision by Whyte and deprive the defendants of an advantage (consolidated depositions) to which Whyte said they were entitled?
Because, in all probability, he was acting (as he is required to do) on an emergency basis ex parte (no response from the opponent) based upon alleged changes in circumstances. This is a conjectural hypothetical: the CoS probably, in accordance with one of their tenets (it's ok to lie to the authorities if the CoS tells you to), had one of their members who happens to be a Southwest Airlines employee sign an affidavit concerning the alleged bomb plot. When this was presented to the Magistrate Judge, he had essentially no choice but to issue SOME order. (But see above.)
[T. Rex allowed us to publish his off-the-cuff remarks, but insisted that we delete the name of the large, well-known law firm he mentioned. Sorry. You'll just have to guess.]
A stoat dropped by with a morsel he wanted to share. "FACTNet is in settlement talks," it said, and stopped to savor our surprise. We asked how it knew, and it told us who told it. "It's a done deal," the stoat said. "It's not a question of if, but of how much [$$]. They're probably typing it up right now." "It's a *fat* settlement," the stoat gloated. Gag orders are part of the deal, as is the quietus of all the Wollersheim lawsuits and the disappearance of FACTNet. We were sandbagged. Will they really sign gag orders? And what about the people who bought shares in Wollersheim's judgment? "Wait and see," the stoat chuckled. Humming to itself, it trotted off in search of the perfect cappucino.
--Arlene Fortiori
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