4 June 2000
Source: Source: Frankfurt, Garbus, Klein & Selz for 2600.

See related plaintiff's motion for a protective order: http://cryptome.org/mpaa-v-2600-mpo.htm

See related files:

http://www.eff.org/pub/Intellectual_property/DVD/
http://eon.law.harvard.edu/openlaw/dvd/
http://www.2600.com
http://jya.com/cryptout.htm#DVD-DeCSS

CONTENTS

Defendants' Memorandum of Law in Opposition to the Motion for a Protective Order

Martin Garbus Declaration in Opposition to the Motion for a Protective Order

Weil, Gotshal Letter of Support of the Motion for a Protective Order

Village Voice Motion to Intervene

Jeff Howe (Village Voice) Declaration in Opposition to the Motion for a Protective Order

Village Voice Memorandum of Law

Newsday Motion to Intervene and Memorandum of Law

[29 pages.]

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022
(212) 826-5582

Attorneys for Defendant Eric Corley a/k/a
Emmanuel Goldstein and 2600 Enterprises, Inc.

THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------------------------X UNIVERSAL CITY STUDIOS, INC., PARAMOUNT PICTURES CORPORATION, METRO-GOLDWYN-MAYER STUDIOS INC., TRISTAR PICTURES, INC., COLUMBIA PICTURES INDUSTRIES, INC., TIME WARNER ENTERTAINMENT CO., L.P., DISNEY ENTERPRISES, INC., and TWENTIETH CENTURY FOX FILM CORPORATION, Plaintiffs, -against-                                                                                                 ERIC CORLEY a/k/a "EMMANUEL GOLDSTEIN" and 2600 ENTERPRISES, INC., Defendants. -----------------------------------------------------------------------------X		00 Civ. 0277 (LAK)

TABLE OF CONTENTS

Argument

I. Plaintiffs Are Embarrassed By The Facts Being Found In Discovery. That Is Why This Motion is Made After They Signed a Confidentiality Agreement. Plaintiffs Cannot Establish Sufficient Good Cause To Overcome The Strong Presumption Of Public Access To Discovery Materials At Issue On This Motion.

A. The Defendant And Members Of The Public Are Entitled To A Strong Presumption Of Access In Disseminating The Discovery Materials At Issue

B. Plaintiffs "Good Cause" Argument is Based on Embarrassment, Fanciful Thoughts and Pure Speculation, And Attempts To Mislead Both The Court and Defendants.

1. Speculative and conclusory allegations of harassment are not "good cause."

2. Plaintiffs' assertions that a blanket order is required to protect MPAA anti-piracy and security measures is unsubstantiated and unsupportable.

3. The Seattle Times case neither saves plaintiffs' good cause argument nor provides any other justification for granting an injunction in this case.

II. The First Amendment Is Offended By Protective Orders Granted Without Good Cause.

Conclusion.

TABLE OF AUTHORITIES

Cases

Bal v. Hughes, 1995 U.S. Dist. LEXIS 5466 (S.D.N.Y. 1995)

Cipollone v. Liggett Group, Inc., 785 F.2d 1108 (3d Cir. 1986)

Estate of Yankel Rosenbaum v. The City of New York, 1993 U.S. Dist. LEXIS 15908 (E.D.N.Y. 1993)

Gambas v. First Federal Savings and Loan Association of Roanoke, 1994 U.S. Dist. LEXIS 17305 (S. D. N. Y. 1994)

Grogan v. Osborne, 1988 U.S. Dist. LEXIS 4011 (S.D.N.Y. 1988)

Havens v. Metropolitan Life Ins. Co., 1995 U.S. Dist. LEXIS 5183, No. 94 Civ. 1402, 1995 WL 234710 (S.D.N.Y. Apr. 20, 1995)

In re San Juan Star Co., 662 F.2d 108 (1st Cir. 1981)

In re Texaco Inc., 84 BR. 14 (U.S. Bkpt. S. D. N. Y. 1988)

In re the Application of The Akron Beacon Journal, 1995 U.S. Dist. LEXIS 5183 (S.D.N.Y. 1995)

In re "Agent Orange" Product Liability Litigation, 821 F.2d 139 (2d Cir.), cert. denied, 484 U.S. 953 (1987)

Koster v. Chase Manhattan Bank, 93 F.R.D. 471 (S.D.N.Y. 1982)

Liebman & Charme v. Lanzoni, 1995 WL 152273 (N.Y.Supp.) (Civil Ct. N.Y.Co. Mar. 7, 1995)

Lisa C.-R. v. William R., 166 Misc.2d 817, 635 N.Y.S.2d 449 (Sup. Ct. 1995)

Marisol A. v. Guiliani, 1997 U.S. Dist. LEXIS 15705 (S.D.N.Y. 1997)

Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)

Sega Enterprises, Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1993)

Sony Comp. Entertainment, Inc. v. Connectix Inc., 203 F.3d 596 (9th Cir. 2000)

Sony Corp. of America v. Universal City Studios Inc., 464 U.S. 417 (1984)

U.S. v. Amadeo, 71 F.3d 1044 (2d Cir. 1995)

Westchester Radiological Association P.C. v. Blue Cross/Blue Shield of Greater New York Inc., 138 F.R.D. 33 (S.D.N.Y. 1991)

Other Authorities

Federal Rule of Civil Procedure 26(c)

Rule 5.1 (a)

Rule 5(d)

§ 1201

DEFENDANTS' MEMORANDUM OF LAW IN OPPOSITION
TO PLAINTIFFS' MOTION FOR A PROTECTIVE ORDER

Defendants submit this Memorandum of Law in Opposition to Plaintiffs' Motion for a Protective Order. Plaintiffs cannot even remotely reach the very substantial Constitutional criterea they face in a motion of this sort. It is clear that plaintiffs' over-reaching motion is designed principally to delay and to avoid engaging in discovery, to prejudice defendants, and to avoid embarrassment.

The instant motion presents important issues related to public access to discovery materials and the First Amendment. The protective order sought by plaintiffs is unsupportable as a matter of law and fact, and if granted would seriously and unfairly impair the defense of this case. This motion is part of a larger legal strategy that has been at play since the plaintiff first walked into court on January 14. The application for a quick trial and alleged agreement to participate in discovery are part of plaintiffs' strategy to forge ahead and leave inadequate opportunity to prepare a defense. Because of the suppression of the depositions and the documents, we have already been damaged and prejudiced. Defendants' prospective witnesses must have access to the facts and documents relevant to their testimony. This has of yet been impossible. Not only have plaintiffs impossibly delayed producing deposition witnesses, but they have blocked defendants from showing~our witnesses or prospective witnesses the information necessary for them to make a decision as to whether or not to testify, and if so, on what grounds this testimony will be most relevant. Many prospective witnesses may, as a result of the protective order sought, be unable to testify. This process has held us up for nearly three weeks.

Since the date of the first deposition, we have been precluded from being fully able to prepare our defense. The protective order sought will only exacerbate this fact. Defendants are also dealing with numerous amici in this case - from the media, from universities, and from academia - all of whom are intensely interested in the very important issues presented by this case. The Court has seen evidence of this. They, too, should have ready access to the information plaintiffs seek to have sealed. We have been required to delay meetings and conversations with many of them.

Based on the two existing deposition transcripts, it seems clear that plaintiffs' real objection to the release of the depositions and documents is the significant possibility of acute embarrassment. They show that plaintiffs, on insufficient knowledge, made allegations they cannot support. They show the plaintiffs, rather than being interested in copyright issues, are truly committed to monopolizing the player market for DVDs. See, Sony Comp. Entertainment, Inc. v. Connectix Inc., 203 F.3d 596 (9th Cir. 2000); Sega Enterprises, Ltd. v. Accolade Inc., 977 F.2d 1510 (9th Cir. 1993); Sony Corp. of America v. Universal City Studios. Inc., 464 U.S. 417 (1984).

Plaintiffs' third prayer for relief is totally inappropriate. Plaintiffs request this Court to issue an order "precluding defendants from publicly disclosing documents and information obtained through discovery which plaintiffs have designated, under the Confidentiality Stipulation . . . as 'CONFIDENTIAL' and "ATTORNEYS' EYES ONLY." ' By this prayer, plaintiffs appear to be stating that they expect, without presenting a shred of evidence in support of such an expectation, that defendants will breach and violate the Confidentiality Stipulation that they negotiated and executed in good faith and willingly presented to this Court to be "so ordered." On the other hand, since, as plaintiffs' suddenly reveal on page 9 of their Memorandum of in Support of the Motion for a Protective Order, they are actually only requesting in prayer (c) that the Court "So Order" the existing Confidentiality Stipulation signed by the parties and submitted to it, plaintiffs may simply be wasting this Court's time in an effort to prejudice defendants. As is evident in the two depositions taken to date, and as plaintiffs cannot deny, defendants have agreed to and executed the Confidentiality Stipulation that plaintiffs drafted and presented to them. In either case, the prayer is sanctionable.

However, even setting aside plaintiffs' presumption, the motion is still without merit. This is an extraordinarily public case dealing with big, important and publicly relevant issues such as DVDs, CSS, DeCSS, copying, piracy, intellectual property, the Copyright Act, and, above all, the First Amendment. Virtually every pleading, application, motion, declaration, and decision in this case been posted on dozens of internet sites, including those operated by academics, virtual librarians, journalists, supporters, and the defendants. See, e.g., Declaration of John Young In Opposition To Plaintiffs' Motion For A Protective Order ("Young Decl.") (More than 500,000 DVD-case-related downloads in past months). Indeed, it is very clear that interest in this case has been generated in large measure by the actions of the plaintiffs themselves by means of innumerable press releases and a veritable public relations blizzard against the defendants and their supporters, whom plaintiffs dismiss as pirates, dishonest and the like. Each part of this litigation has been highlighted by press releases and public relations people spreading negative information (or misinformation) about defendants or other issues in the case. See, e.g., Declaration of Martin Garbus In Opposition To Plaintiffs' Motion For A Protective Order ("Garbus Decl.") ¶¶ 7, 13 Exhs. A-C. Well known figures such as Jack Valenti and Michael Eisner have commented publicly on aspects of the case. Garbus Decl. ¶ 13, Exh. D. As a result, dozens of newspapers and magazines are covering the story.

This case sounds in equity; plaintiffs' conduct in reaching out to the public constitutes a waiver that now estops plaintiffs from any claim for a protective order. Defendants are entitled to present their version of the truth which now appears in court documents.

The issues presented have generated worldwide interest across a broad spectrum of people. A generation raised to consider as normal the huge amount of information and counter-information that have and are becoming available at hitherto unknown velocities on the Internet, a generation raised to consider that volume and speed of speech (and in particular, political speech) normal -- including both those who voluntarily removed DeCSS from their websites when they received a "cease and desist" letter from the MPAA and those who posted DeCSS together with a political statement of support to protest this litigation -- are watching this case to see what the internet will become. See, e.g., Young Decl. ¶¶ 2-4. Business and industries interested in the future status of intellectual property in a digital, on-line world, including the entertainment industry, intellectual property lawyers, and thousands of internet businesses, are watching this case to see the first judicial interpretation of the Digital Millenium Copyright Act. Millions of movie viewers and computer users around the world, including the consumers who buy one million DVDs per week, rent millions more, and buy and rent several million VCDs and video cassettes every week, are directly concerned with the outcome of this case, and can follow it and/or have been following on line.

Defendants have a significant interest apart from their First Amendment free speech and free press rights, in the public dissemination of non-confidential discovery, including deposition transcripts. This case is presently set for trial on July 17, some five months earlier than originally scheduled; however, plaintiffs have for all practical purposes, refused to engage in discovery and, by this motion, seek to further cripple the defense. In the three weeks since May 12, when this Court established the new trial date, reduced the discovery period by three and one-half months to some seven weeks, and directed the parties to engage in "expedited" discovery, plaintiffs have produced only two of the nearly two dozen witnesses noticed to be deposed and scheduled the depositions of only two other witnesses. Only one deposition has been finished. As of this writing, not one person from a named defendant has been produced 37 pages of document production is purely symbolic.¹ Plaintiffs decline to state whether their refusal to produce a witness is temporary or permanent, decline to identify witnesses they may produce, decline to schedule depositions, and make the instant motion for a protective order.² It is consistent with plaintiffs' strategy that they have devoted far more time to their efforts to shroud the facts of this case in obscurity by sealing the transcripts of the only two depositions that have been taken than they have in engaging in "expedited" discovery.

____________________

1 The MPAA has produced 6000 pages of non-confidential material, much of which is fodder. Defendants believe that it has produced a large number of documents to obscure the fact that it has withheld the most relevant documents.

2 On May 31, plaintiffs agreed to attempt to produce three witnesses during the week of June 12, (three weeks prior to the close of discovery), and raised the distant possibility of producing an additional witness next week.

The protective order would have many effects: it would seal the two depositions already taken of Robert W. Schumann (unfinished) and Kenneth Jacobsen and it would seal all of the depositions not yet taken, in advance of even the identification of the deponents. Both of these are deeply troublesome. First, Schumann and Jacobsen have been identified and designated by both the plaintiffs and the MPAA as persons who can answer all our questions with the most knowledge about: CSS, DeCSS, DVDs, linking/hyperlinking, efforts to halt the "proliferation" of DeCSS, DVD piracy, injury to the movie industry, persons posting DeCSS on the Internet, and the like. It is untrue. That is to say, Schumann and Jacobsen are designated by the plaintiffs and the MPAA as the persons with the most knowledge about all of the key issues central to this case. The content of their depositions, therefore, would be extremely relevant to this case and of intense interest to the press and public who are closely following it.

Because defendants have suggested that the addresses of Mssrs. Schumann and Jacobsen be designated confidential (E.g., Garbus Decl. ¶ 10), and since plaintiffs have the right to designate any sensitive business information -- including information about anti-piracy efforts -- as confidential, there is nothing in the deposition transcripts that would pose any of the problems so vividly imagined by plaintiffs. We request the Court to review the depositions, which we provided together with an earlier submission: they are devoid of risky materials. Garbus Decl. ¶ 6. More than anything else, the transcripts contain numerous admissions and acknowledgments by the witnesses that no copying has ever been traced or attributed to DeCSS.³ Defendants long ago asserted this fact, and predicted that they would prove it from the mouths of plaintiffs' own witnesses: the deposition transcripts do so.

____________________

3 Since Gregory Geockner has already admitted this publicly, defendants breach no confidentiality by repeating this admission here.

The only other depositions plaintiffs have confirmed out of the more than two dozen noticed by defendants are those of Jack Valenti on June 6 and Fritz Attaway on June 7. Attaway, like Schumann and Jacobsen, has been identified and designated by both the plaintiffs and the MPAA as the witness with the most knowledge about the plaintiffs' learning of DeCSS, requests to the MPAA to circumvent CSS, the CSS license, his testimony before Congress and other public statements on behalf of the MPAA. Not only are these important subjects of general public interest, but they are matters the MPAA has repeatedly argued, pleaded, debated and affirmatively placed before the public.

Mr. Valenti has been prominent in the press for years denouncing piracy and unauthorized copying, including on page 9 of yesterday's New York Post, where he assailed persons sharing cam-cordings of first-run movies on the internet: "They are illegally allowing our movies to be pirated and that is outrageous." So too have Mr. Jacobsen's utterances been public. These utterances, moreover, have referred to DeCSS.

tJnsurprisingly, given the MPAA's aggressive courtship of the public and press (it serves their interest to dramatize the damages and piracy and how effective they are at stopping it), press interest in the case is very strong, and defendants have received a number of requests from members of the press -- including The New Republic, Business Week, The New York Times, The Village Voice, Wired, www.feed, and The New York Observer -- and interested parties have asked for copies of the transcripts of the depositions already taken, and about Mr. Valenti's deposition.⁴

____________________

4 Various plaintiffs have search engines. Disney has Infoseek and Go. Time Warner is partners in AOL. These search engines, hit by numbers far greater than defendants, refer to DeCSS sites and to the code. The major search engines, Yahoo, Google and the like, do it more. Not one document has been produced by plaintiffs relating to this. For plaintiffs to continue to link to DeCSS and then try and stop defendants from doing so is using unclean hands.

Moreover, plaintiffs' motion attempts to establish the "good cause" required by Federal Rule of Civil Procedure 26(c) on the basis of wildly speculative allegations. They have made a mistake in this case -- spending millions and using the courts to wage a public relations campaign. As we said, they are embarrassed by this case, their testimony in this case and the testimony to come out. Plaintiffs provide 13 e-mails in support of their motion, each of which was sent to the MPAA in January 2000. Four of the e-mails (Jacobsen Decl., Exh. B) are sincere statements of consumer unhappiness; four are non-threatening insults; one appears to be an anti-Semitic slur, and three (one is repeated) are odd, possibly threatening messages sent by persons with identifiable e-mail addresses. We have no idea whether anything in these e-mails is truly reflective of anything at all.⁵ The e-mails were apparently sent to the MPAA in response to the institution by the plaintiff movie companies of this litigation in mid-January. Garbus Decl. ¶ 9. Plaintiffs also point to an attack on an MPAA employee in Malaysia by an unknown assailant.

______________________

5 These e-mails were all redacted by plaintiffs in unspecified ways.

Defendants point out the following key points:

A. First and foremost, as discussed in greater detail below, plaintiffs persist in ignoring that defendants have from the start suggested that witnesses' addresses be deemed confidential (Garbus Decl. ¶ 10); of course, plaintiffs have never suggested that the Court should seal the names of plaintiffs' witnesses - their "identities" will be a matter of record.

B. The relief sought -- preclusion of press at the depositions and sealing of all depositions -- has nothing to do with and can extend no conceivable benefit to the dangers plaintiffs have identified to their anti-piracy personnel and efforts.

C. The "proof' constituting the requisite "good cause" is speculative and has nothing to do with defendants or the blanket protective order sought, or does not support plaintiffs' claims. For example, the handful of bizarre, dated e-mails were apparently sent to the MPAA in response to its filing this lawsuit, and not any posting or other conduct by defendants. Moreover, the MPAA has had these e mails since January, and did not think them real enough to investigate the senders whose addresses were on the e-mails. This shows this motion is purely tactically designed, among other things, to distract and make the defense impossible. Plaintiffs also refer to a recent attack in Malaysia on an MPAA employee. Jacobsen Decl., ¶ 8. However, Mr. Jacobsen does not say the employee was publicly identified. Moreover, it is obvious that there is no connection whatsoever between this incident and either the defendants or the posting of deposition transcripts.

D. Plaintiffs have not identified a single harm or even the possibility of harm connected to or arising out of posting. Mr. Schumann's name and resume have been on-line for months, without repercussion. Indeed, Mr. Jacobsen, Mr. Litunck, Mr. Valenti, Mr. Attaway and many others are regularly quoted in the national press speaking out against DeCSS and the like, without harm.

Finally, and perhaps most importantly, plaintiffs continue to attempt to mislead the Court. Plaintiffs are very well aware that defendants have already addressed and, essentially, agreed to all of the colorable concerns raised by the MPAA and Plaintiffs to protect employees engaged in anti-piracy efforts and to protect witnesses against the speculation that they may be harassed: defendants first suggested making witnesses addresses confidential (Garbus Decl. ¶ 10); and the parties have signed a Confidentiality Stipulation that effectively protects against the fanciful harms imagined by the plaintiffs.

Indeed, plaintiffs' pre-emptive designation of the depositions of Robert Schumann and Kenneth Jacobsen as confidential at the commencement of each deposition was made with the express purpose of preventing the dissemination of such depositions. When defendants challenged the designations and plaintiffs defended them by stating they wanted to protect the witnesses' privacy, defendants immediately offered that all addresses by designated confidential under the Confidentiality Stipulation. Similarly, during the deposition of Mr. Jacobsen, defendants did not challenge plaintiffs' statement that it would designate as confidential, subject to a court ruling if we sought one, all discussion of sensitive or secret aspects of the MPAA's anti-piracy efforts.

Thus all of the three "categories of information" Mr. Jacobsen identified in his affidavit as "critical" that the Court protect are already protected, with the express or implicit agreement of the defendants and with the power of an executed Confidentiality Stipulation which has been submitted to this Court to be "so ordered."

In sum, plaintiffs' argument that a deponent has a "privacy" interest in blocking dissemination of a deposition is not based on any factual substance.

Argument

I. Plaintiffs Are Embarrassed By The Facts Being Found In Discovery. That Is Why This Motion is Made After They Signed a Confidentiality Agreement. Plaintiffs Cannot Establish Sufficient Good Cause To Overcome The Strong Presumption Of Public Access To Discovery Materials At Issue On This Motion.

The blanket, open-ended Protective Order Plaintiffs now seek is designed to prevent the public from learning the truth about a case that has captured the attention of the internet community, the media, and national public figures. Plaintiffs claim that in order to protect the largest movie studios in America, their powerful trade association, and certain of their wellknown representatives, from the potential of receiving "harassing" political speech, it is not sufficient for the parties to designate confidential business documents and/or testimony pursuant to the existing Confidentiality Stipulation already negotiated. What changed the plaintiffs' mind? The Confidentiality Agreement was negotiated over many days. Rather, plaintiffs would have this Court issue a protective order prohibiting in advance the public dissemination of all deposition testimony taken in this case, sealing all deposition video tapes and transcripts, and barring the media from attending any and all depositions. In essence, plaintiffs would like this Court to convert a very large, important public case, about which plaintiffs have released dozens of press releases, into a small, quiet, private affair because they fear exposure.

Plaintiff's cannot do so, however, without conclusively establishing that "good cause" exists to destroy the presumption that the press and public has an otherwise valid right of access to the depositions -- only two of which have yet been taken (only one concluded) - at issue here. This Court must deny plaintiff's requested protective order because they have failed to show the requisite good cause.

A. The Defendant And Members Of The Public Are Entitled To A Strong Presumption Of Access In Disseminating The Discovery Materials At Issue.

Under established precedent, it is presumed that the public has a right of access to pretrial depositions and interrogatories, absent good cause. In re Texaco Inc., 84 BR. 14, 17 (U.S. Bkpt. S. D. N. Y. 1988). "Rule 5(d)⁶ and Rule 26(c) provide a statutory right of access to the discovery materials in question." In re "Agent Orange" Product Liability Litigation, 821 F.2d 139, 146 (2d Cir.), cert. denied, 484 U.S. 953 (1987). Thus, there is a "general policy in favor of public access to discovery materials" in the Second Circuit. Gambas v. First Federal Savings and Loan Association of Roanoke, 1994 U.S. Dist. LEXIS 17305, *3 n.3 (S. D. N. Y. 1994). The good cause requirement embodied in Fed. R. Civ. P. 26(c) "'acts as a guardian of the public's right of access to discovery documents by requiring parties to make a threshold showing before documents will be withheld from public view."' Marisol A. v. Guiliani, 1997 U.S. Dist. LEXIS 15705, *10-11 (S.D.N.Y. 1997) (quoting Havens v. Metropolitan Life Ins. Co., 1995 U.S. Dist. LEXIS 5183, No. 94 Civ. 1402, 1995 WL 234710 at *12 (S.D.N.Y. Apr. 20, 1995).

_____________________

6 Fed. R. Civ. P. 5(d), which requires federal litigants to file discovery documents with the Court unless the local District Court orders otherwise, has been supplanted in the Southern District of New York by Local Rule 5.1 (a), which provides that discovery documents are not to be filed with the Court unless the Court orders otherwise. The Court in Agent Orange, however, facing an identical Eastern District Local Rule, nevertheless found that "Rule 5(d), . . ., embodies the [Advisory] Committee's concern that . . . the general public be afforded access to discovery materials whenever possible." Agent Orange, 821 F. 2d at 146.

The facts of this case, and the extremely powerful interests held by the public and press in these proceedings, dictates that the public's right of access is even more compelling. Access to discovery materials is "particularly appropriate when the subject matter of the litigation is of especial public interest." In re "Agent Orange" Product Liability Litigation, 821 F.2d at 146; see also, Marisol A. v. Guiliani, 1997 U.S. Dist. LEXIS at *9. As discussed above, this is certainly such a case.

Moreover, the Court should accord significant weight to the strong presumption of access present in this case when balanced against plaintiff's arguments to negate that presumption. As recently stated by the Second Circuit, the weight to be given the presumption of access must be governed by the role of the material at issue in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts." U.S. v. Amadeo, 71 F.3d 1044, 1049 (2d Cir. 1995).⁷ The instant case presents a virtual paradigm for public monitoring of the federal courts. Indeed, as described above, an extraordinary spectrum of communities are watching, from the legal community, which is anticipating a ruling of first impression on Section 1201 of the Copyright Act, to the generation of teens (and others) who have grown up on the internet, to the movie moguls involved herein and "Hollywood" in general.

____________________

7 Thus, the amount of weight given to the presumption of access in connection with a partieular document in litigation will depend where such document falls on "a continuum from matters that directly affect an adjudication to matters that come within a court's purview solely to insure their irrelevance." U.S. v. Amodeo, 71 F.3d at 1049.

The Court in Amodeo does indicate, in dictum, that in some instances, documents "passed between the parties in discovery" may lie "entirely beyond" the presumption of public aeeess. Id. at 1050. The Court offers no further explanation or guidanee as to what type of diseovery documents it considers outside of the presumption. Amadeo, it should be noted, however, neither discusses nor cites, let alone overrules, Agent Orange, which provides that the public has a statutory right of access to discovery materials pursuant to Fed. R. Civ. P. 26(c). Thus, this dictum from Amodeo directly contradicts established Second Circuit precedent. Additionally, Amodeo is a criminal case, and thus less relevant to the instant matter.

This is a case in which depositions and documents being produced will play a substantial role in developing the facts by allowing defendants to secure witnesses who now believe the case is as plaintiffs' press releases say they are. Thus, the subjects to be covered and thus far covered in these depositions should go to the essence of the matters that plaintiffs will have to prove at trial. The "information [sought to be protected] is not irrelevant matter that w[ill have been] revealed as a by-product of the liberal discovery rules . . . [i]n other words, this information is highly relevant to the issues in the lawsuit and will be revealed at a trial on the merits, assuming there is one." Grogan v. Osborne, 1988 U.S. Dist. LEXIS 4011, *4-5 (S.D.N.Y. 1988) (holding that a defendant's privacy interest in information is significantly reduced by the likelihood that the information will eventually be disclosed).

With respect to depositions yet to be scheduled, it is of course impossible to predict exactly what information will be divulged. Plaintiffs intend to depose Disney CEO Michael Eisner, and Jack Valenti, chairman of the MPAA. Both of these individuals have been outspoken on television, and in the print media about DeCSS and this case, and have, in particular, linked DeCSS to internet "piracy." E.g., Garbus Decl. ¶¶ 13-14. Of course, both internet piracy and DeCSS are issues at the very core of this case.

More troublesome, however, is that plaintiffs seek a blanket protective order prohibiting the dissemination of deposition testimony that doesn't even exist yet. Plaintiffs cannot seriously assert that none of the deposition materials to be developed in this case will sufficiently implicate this Court's judicial function so as do demand a strong presumption of public access. As discussed more specifically below, with respect to good cause, this Court has been reluctant to grant blanket protective orders against the dissemination of discovery orders that are not yet existent. See e.g., Koster v. Chase Manhattan Bank, 93 F.R.D. 471, 481 (S.D.N.Y. 1982).

In sum, "[t]he Second Circuit assumes that discovery cannot be shielded from public view without a showing of good cause." Westchester Radiological Association P.C. v. Blue Cross/Blue Shield of Greater New York, Inc., 138 F.R.D. 33, 36 (S.D.N.Y. 1991). Given the strong presumption of access in this case, defendant submits that plaintiffs do not even come close to making the necessary showing.

B. Plaintiffs "Good Cause" Argument is Based on Embarrassment, Fanciful Thoughts and Pure Speculation, And Attempts To Mislead Both The Court and Defendants.

What plaintiffs present as the factual grounds for their "good cause" is actually a mixture of fantasy, exaggeration, and fear of embarrassment. Plaintiffs' argument rests on the insults, accusations, and threats (of questionable seriousness) contained in roughly one dozen e-mails. We presume the MPAA gets tens of thousands of e-mails. These messages, which are addressed to hotmail@mpaa.org rather than any of the dozens of MPA and MPAA officers listed on the mpaa.org website, also contain clear statements of the political and social positions of their identifoed authors, as well as a sense of the writers' frustration at a perceived CSS/Windows platform monopoly over DVDs. E.g., (generally) Garbus Decl. ¶¶ 9, 11. Added to this motley collection of e-mails is the description of a recent attack in Malaysia (we know nothing about its truth) in which the friend of an MPAA employee was injured. This incident is most striking with respect to this case by its total irrelevance to either the dangers imagined by plaintiffs or the Draconian relief they seek. This is beSause, assuming (like Jacobsen) that the attack was actually directed at the MPAA employee, it is unquestionably impossible to connect it to any public identification of the MPAA employee by defendants or anyone else, or to any other actual or imagined action by defendants.⁸ Based on this fantasy of potential dangers plaintiffs claim will befall the MPAA's anti-piracy team -- none of which dangers could possibly be affected or caused by dissemination of the depositions as designated pursuant to the existing Confidentiality Stipulation, and none of which would be redressed by plaintiffs' proposed relief -- plaintiffs ask this Court to grant them the extraordinary remedy of a blanket gag order. Only suppressing every word of every deposition in this case, plaintiffs suggest, will "protect" plaintiffs and their powerful industry organization from the threats posed by the e-mails attached to the Jacobsen Declaration. Plaintiffs' hollow "good cause" argument fails because it cannot sustain the weight of its own fantasy.

_______________________

8 Again, the existing Confidentiality Agreement, which defendants have signed, contains provisions that already perrnit the plaintiffs to designate sensitive business inforrnation, such as the identity of vulnerable, undercover operatives. However, if the MPAA's unfortunate employee is publicly known to be an MPAA representative engaged in suppressing piracy, such as Kenneth Jacobsen or Chandra Lall (see Garbus Decl., Exhibits A and B (published news articles identifying the foregoing as anti-piracy personnel), then suppressing an entire deposition on the off chance plaintiffs may have failed to designate her name, address, and job functions as confidential is also irrelevant.

1. Speculative and conclusory allegations of harassment are not "good cause."

The initial inquiry in a "good cause" inquiry under Rule 26(c) is whether the moving party has shown that disclosure of discovery materials that party seeks to seal will result in a "clearly defined and very serious injury." Koster v. Chase Manhattan Bank, 93 F.R.D. 471, 480 (S.D.N.Y. 1982). "Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test." Westchester Radiological Association v. Blue Cross/Blue Shield, 138 F.R.D. at 38.

For purposes of this motion, the allegations set forth in paragraphs 7 and 8 should be summarily disregarded. "The moving party [in a Rule 26(c) motion] must show an adequate reason, by a 'particular and specific demonstration offact as distinguished from stereotyped and conclusory statements,"' to disregard the public's right of access to discovery materials. In re the Application of The Akron Beacon Journal, 1995 U.S. Dist. LEXIS 5183, *29 (S.D.N.Y. 1995) (emphasis added) (quoting Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986)). Plaintiffs are not providing the Court with facts; they are asking it to make an enormous, unsupported and even illogical deductive leap on their behalf.

Even assuming arguendo that the allegations made in paragraphs 7 and 8 are true facts with ample support, they are nonetheless virtually meaningless for purposes of this motion because none of those allegations, as plaintiffs admit, have anything to do with defendants or are in any way related to the instant lawsuit. And plaintiffs offer neither fact nor opinion as to why the availability of non-confidential deposition materials will provoke or exacerbate this alleged behavior in the future. This Court has held that, "even if it is assumed that [injury resulting from dissemination of discovery] will reoccur and [such injuries] are sufficiently 'defined and serious,' a blanket order recusing discovery materials - particularly materials not yet created or taken - is inappropriate absent a showing that a party's rights to a fair trial are threatened. See Koster v. Chase Manhattan Bank, 93 F.R.D. at 481 (discussing the blanket order imposed in In re San Juan Star Co., 662 F.2d 108 (lSt Cir. 1981)). The Court here, however, has no reason or basis to afford plaintiffs the assumptions of either severity or recurrence. What is left is a demand for a complete gag order based upon utter conjecture that obviously cannot satisfy Rule 26(c)'s stringent requirements.

Although the allegations contained in ¶ 6 of the Jacobsen Declaration do refer to a grabbag of redacted e-mails, it can be disregarded for largely the same reasons. The handful of emails are a sampling of what the MPAA has received in response to its aggressive actions to validate its sweeping interpretation of § 1201 of the Copyright Act by pursuing this litigation. Garbus Decl. ¶¶ 9, 11.

First, as we expressly noted in our letter to the Court dated May 25, 2000, plaintiffs do not appear to have taken seriously these January "threats" by individuals whose e-mail addresses are known to them by investigating or reporting the threats.⁹ Second, notwithstanding the deplorable rhetoric, it seems clear based on their content (as well as plaintiffs' non-response) that the "threats" are not credible. For example, the e-mail from take456@aol.com that is partially quoted at page four of plaintiffs' Brief in part threatens to "kill your attorneys and judges who think internet piracy is bad." It concludes, however, as follows: ". . . bad. Also, I hope to kill at least one thousand of you! I have hired several hitmen to kill Elian when comes back into Cuban soil." Jacobsen Decl. Exh. A. Disturbed, unpleasant, but apparently not in the plaintiffs' opinion a credible threat.

____________________

9 We made this observation in our May 25, 2000 letter. If it is not true, plaintiffs had an obligation to state so in their moving papers.

More importantly, these e-mails do not satisfy the plaintiffs obligation to provide the Court with concrete substantiation of their claim that dissemination of the depositions discovery in this case will cause serious injury. None of the e-mails proferred mention, or even allude to the instant lawsuit or the defendants named herein. Only two of the e-mails even mention DeCSS, and only one mentions the "norweigan teenager" arrested for decrypting CSS. The balance of the messages decry either anti-piracy or simply the MPAA itself. In sum, plaintiffs have made no attempt to provide any evidence whatsoever that defendants herein, or this lawsuit, or dissemination of information about this lawsuit (which plaintiffs have taken an aggressive leading role in doing), or the deposition transcripts in this lawsuit, have anything to do with the proliferation of the type of e-mails they have presented in support of their motion. In fact, as demonstrated by the responses to the MPAA's filing this suit attached to the Jacobsen Declaration, it is not the dissemination of depositions that is likely to evoke a response against the MPAA, which the MPAA may call "harassment;" rather, it is the suppression of important facts in which the public has an significant interest, should the plaintiffs succeed on their motion for a protective order, that will earn commentary. Indeed, several of the e-mails, annexed to Exhibit "B" of the Jacobsen Declaration, appear to have been penned not by blathering insurrectionists, but by educated, calm commentators. One such e-mail states in part:

I am very concerned about the actions of the MPAA over the recent release of code which allowed software-reading of DVD disks, especially the recent actions taken against Jon Johanson and his father. It is my job to follow technical news quite closely, and I've kept well abreast of the news regarding this controversy.

. . . I . . . know that the code is not intended to be used as a method of copying DVD information, but simply allowing access to that information for users of the Linux operating system.

I urge you to discontinue your actions in this case and work with the community to find a way to protect the movie industry without detriment to our rights.

Jacobsen Decl. Exh. B (document bates-stamped M-2863).

Accordingly, the e-mails simply do not constitute a "particular and specific demonstration of fact" as is required to support a Rule 26(c) protective order. E.g., In re Akron Beacon Journal, 1995 U.S. Dist. LEXIS at *29. Unsubstantiated stories of harassment and violence are insufficient for purposes of Rule 26(c); plaintiffs must provide specific examples of a "clearly defined and very serious injury" to overcome the public's right of access. Koster, 93 F.R.D. at 480. They have failed to do so.

Finally, plaintiffs' newly minted but "strenuous[]" objection to "publicizing the pretrial discovery proceedings" is almost embarrassingly disingenuous given the MPAA's relentless publicizing of its filing the case, its having succeeded on the preliminary injunction motion, its motion to expand that injunction, and numerous other public statements to the press and to Congress by Jack Valenti regarding piracy and this case. See, e.g., Garbus Decl., Exhs. C, D. Other industry figures, such as Disney CEO Michael Eisner and, just recently, Universal head Edgar Bronfman have also used their prominence as a bully pulpit to gain access to the press to attack piracy or DeCSS or defendants.

2. Plaintiffs ' assertions that a blanket order is required to protect MPAA anti-piracy and security measures is unsubstantiated and unsupportable.

The factual emptiness of plaintiffs' illogical claim that only a blanket suppression of depositions in this case can protect the MPAA's anti-piracy efforts security from compromise is further emphasized by the MPAA's own rampant public relations efforts (including prominent placement on the mpaa.org website) and self-congratulation regarding its anti-piracy and antiDeCSS efforts. As noted above, the parties have already executed a Confidentiality Stipulation, which provides plaintiffs with a means to prevent the disclosure of confidential business information, such as trade secrets.¹⁰ To the extent that any deposition testimony taken in this case necessitates the divulgence of such proprietary or confidential information, plaintiffs may, in good faith, designate such materials as "confidential" or "attorneys eyes only" to prevent dissemination. A blanket gag order is not necessary. It is simply not enough to allege, in conclusory fashion, that the public access to depositions in this case will compromise anti-piracy and security. Plaintiffs offer no examples of actual anti-piracy investigations being hampered by the dissemination of litigation materials. Plaintiffs do not even attempt to explain to the Court how this might occur in this case, given that proprietary information, privileged information, and work product will be prevented from disclosure pursuant to the Confidentiality Stipulation and common rules of discovery and evidence.

____________________

10 We seek immediate rulings on plaintiffs' and believe as we stated before that the time of this Court should not be taken with this matter. A Magistrate should be appointed.

Moreover, a blanket protective order would be extremely prejudicial to defendants in this case. Defendants are entitled to search for witnesses, experts, facts and any other information relevant to the defense of this action. Defendants' time to prepare for trial has already been compromised beyond repair by plaintiffs' persisting refusal to produce witnesses or documents. Due to the extremely public nature of this case, and the inescapable relevance of the internet and the internet community to this case (see, e.g., Young Decl. generally), defendants -- themselves members of the internet community accustomed to and dependent upon cyberspace for communication -- would be severely prejudiced by an order which would prevent them from disseminating the facts of the case against them to those who may harbor countervailing facts and information. This court, as stated herein earlier, has held that with respect to discovery not yet taken, blanket protective orders are inappropriate unless necessary to ensure a fair trial. See, Koster, 93 F.R.D. at 480-81. It is the defendants' fair trial rights, not the plaintiffs', which are implicated by such an order here. Plaintiffs' must provide more than allusions to the specter of potential harm to justify such an order.

3. The Seattle Times case neither saves plaintiffs ' good cause argument nor provides any other justification for granting an injunction in this case.

Plaintiffs claim that the United States Supreme Court, in Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) "upheld the issuance of a protective order under strikingly similar circumstances" to the instant case. The factual circumstances of this case, however, makes it easy to distinguish and dispose of plaintiffs' unavailing reliance on Seattle Times. First, the movants (respondents) in Seattle Times submitted a wealth of detailed information to the trial court in addition to providing, as plaintiffs imply, limited descriptions "of incidents at [respondents'] headquarters involving attacks, threats and assaults directed at [their] members . . ." Plaintiffs' Br., p. 6. Indeed, the Seattle Times movants provided the court with exactly that which plaintiffs here cannot produce:

Respondents filed a motion for reconsideration in which they renewed their motion for a protective order. They submitted affidavits of several Foundation members to support their request. The affidavits detailed a series of letters and telephone calls defaming the Foundation, its members, and Rhinehart . . .

Seattle Times, 476 U.S. at 26. Plaintiffs here have provided nothing of the kind. Instead, unlike Seattle, they have waged a relentless public relation battle. In Seattle Times, numerous, individual affiants were able to describe events that took place at their place of work. U.S. at 26. By contrast, none of the e-mails proferred by plaintiffs as "evidence" of harassment in this case are directed towards any individual, but only to the organization's general e-mail address.

Finally, plaintiffs' suggestion that conducting depositions in this case without the protection of a complete gag order would somehow "inevitably have a chilling effect on the deponents and lead to misuse of the court's processes . . ." (see plaintiff's Brief at p. 6) distorts Seattle Times. Jack Valenti, Michael Eisner and Edgar Bronfman have already "gone to market" to sell their goods on this case to the public, and the public is now buying and waiting in line for more. This did not occur in Seattle Times. Neither the MPAA nor its member plaintiffs can now claim in good faith that defendants' potential dissemination of discovery materials -- most of which is yet to exist -- will have any more of a chilling effect than their own preemptive media blitz. And, again, plaintiffs conveniently forget the Confidentiality Stipulation (not in the Seattle case (already signed by both sides; any potential "misuse" of this Court's processes can be prevented by good faith application and use of the stipulation. Indeed, "gagging" pretrial discovery without good cause presents a more compelling case for misusing court processes than does disseminating materials subject to the stipulation.

Seattle Times, moreover, grounded its discussion of the potentially chilling effect of disseminating discovery on a finding that, under the facts of that case, dissemination potentially threatened rights of constitutional dimension. Movants there, the Acquarian Foundation church and its founder Rhinehart, successfully argued that their First Amendment rights to religious association and their privacy rights were threatened by the dissemination of discovery. See, Seattle Times, 467 U.S. at 37 n.24 ("[r]espondents, in requesting the protective order, relied upon the rights of privacy and religious association"); see also, Marisol A. v. Guiliani, 1997 U.S. Dist. LEXIS at *16-17 ("Seattle Times is illustrative in that provides an example of what constitutes good cause for a protective order. It is distinguishable from the case at bar in that it involved substantial government interests.... [s]pecifically, ... the rights of privacy and religious association"). Any claim by the MPAA or plaintiffs, after their media blitz, that they now enjoy a constitutional right to privacy greater than the public's right of access to materials in this case is, at absolute best, specious.¹¹ Plaintiffs have already used the Constitution as a sword by exercising their free speech rights to publicize their spin on this case; they cannot now, with the other hand, use it as a shield to prevent further public access to this important case and to prevent defendants' legitimate fact finding efforts.

____________________

11 Moreover, many of the potential deponents in this case, such as Michael Eisner and Jack Valenti, could be considered "public figures" and thus be afforded a lower right of privacy in constitutional analysis. Since both Eisner and Valenti have injected themselves into the public fray for purposes of this case, they should enjoy attenuated privacy rights at least for this purpose.

II. The First Amendment Is Offended By Protective Orders Granted Without Good Cause.

A protective order which is issued in the absence of good cause necessarily violates the First Amendment. Plaintiffs have the burden of establishing good cause. See, e.g., Koster v. Chase Manhattan Bank, 93 F.R.D. at 480. Thus plaintiffs' assertion that defendants' possess no First Amendment "or other right" to post deposition materials on the internet (see plaintiffs' Memorandum of Law at p. 8) is misleading. It is not that defendants lack the right to post, or otherwise disseminate, discovery materials, but that a movant may prevent such dissemination only by establishing good cause. Absent a showing of good cause, which plaintiffs have failed to make in this case~ the defendants and the press do have presumptive First Amendment rights. Moreover, in the Second Circuit, Fed. R. Civ. P. 26(c) creates a statutory right of access to discovery materials. See In re Agent Orange, 821 F.2d at 146. Accordingly, given the total absence of good cause, the protective order sought by plaintiffs would offend First Amendment and federal statutory rights possessed by defendants, as well as the right of the public to access discovery materials, and should not issue.

Plaintiffs' analysis with respect to preventing the press access to depositions suffers from the same flaw. Plaintiffs assert that the press has no First Amendment right to be present at depositions, but this is an incorrect statement of the law in the Second Circuit. Plaintiffs cite Bal v. Hughes, 1995 U.S. Dist. LEXIS 5466 (S.D.N.Y. 1995) for this proposition, but the statement in Bal regarding no First Amendment rights is quoted from a New York State case, Liebman & Charme v. Lanzoni, 1995 WL 152273 at *2 (N.Y. Supp.) (Civil Ct. N.Y. Co. Mar. 7, 1995) and should not be binding on this Court. Moreover, the court in Bal granted a protective order preventing press attendance, but noting the press had not moved to intervene, specifically granted members of the press the right to move for reconsideration to attend. 1995 U.S. Dist. LEXIS at * 1.

To the extent that the court in Bal issued a protective order preventing press attendance at depositions without a showing of good cause, however, it directly conflicts with an Eastern District case, Estate of Yankel Rosenbaum v. The City of New York, 1993 U.S. Dist. LEXIS 15908 (E.D.N.Y. 1993). There, the court expressly stated that the press could not be kept away without a showing of good cause:

Moreover, I'll note that the case that seems most relevant to the Court's consideration of the issue is the Second Circuit's decision in In re Agent Orange litigation in which the Circuit made plain that if good cause is not shown, then discovery materials would not receive judicial protection and would be open to the public.

Estate of Yankel Rosenbaum, 1993 U.S. Dist. LEXIS at *4.¹²

____________________

12 The remaining cases cited by plaintiffs are factually distinguishable from the instant case; notably, none of these cases originate in the Southern District of New York, or in any other judicial district in the Second Circuit. The one New York case, Lisa C.-R. v. William R., 166 Misc.2d 817, 635 N.Y.S.2d 449 (Sup. Ct. 1995), is a state-court matrimonial case involving issues of extreme marital confidentiality not present in the case at bar. The remaining federal district court cases arise in remote districts and are of little precedential value.

As set forth above, plaintiffs have failed to show good cause for issuance of a blanket protective order. Thus, such a blanket order cannot be issued in this case.

Conclusion

Here, no protective order is necessary, and its issuance would not only burden defendants' ability to prepare its defense,¹³ but will significantly constrict the information about this trial available to the press and public.

____________________

13 This case is not just one of first impression regarding the Digital Millenium Copyright Act, but it is also ground-breaking in terms of the importance of the internet to the parties' ability to find and interact with witnesses and potential witnesses, and to disseminate information.

Dated: New York, New York            June 1, 2000
		FRANKFURT, GARBUS, KLEIN & SELZ, P.C. By: ___________________________ Martin Garbus (MG 6261) Edward Hernstadt (EH 9569) 488 Madison Avenue New York, New York 10022 (212) 826-5582 Attorneys for Defendants Eric Corley a/k/a Emmanuel Goldstein and 2600 Enterprises, Inc.

PROSKAUER ROSE LLP
1585 Broadway
New York, New York 10036
(212) 969-3000

Attorneys for Plaintiffs

[5-page declaration; Exhibits omitted here: A, 10 pp.; B, 4 pp.; C 60 pp.; D, 15 pp.]

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022
(212) 826-5582

Attorneys for Defendant Eric Corley a/k/a
Emmanuel Goldstein and 2600 Enterprises, Inc.

THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------------------------X UNIVERSAL CITY STUDIOS, INC., PARAMOUNT PICTURES CORPORATION, METRO-GOLDWYN-MAYER STUDIOS INC., TRISTAR PICTURES, INC., COLUMBIA PICTURES INDUSTRIES, INC., TIME WARNER ENTERTAINMENT CO., L.P., DISNEY ENTERPRISES, INC., and TWENTIETH CENTURY FOX FILM CORPORATION, Plaintiffs, -against-                                                                                                 ERIC CORLEY a/k/a "EMMANUEL GOLDSTEIN" and 2600 ENTERPRISES, INC., Defendants. -----------------------------------------------------------------------------X		00 Civ. 0277 (LAK) DECLARATION OF MARTIN GARBUS IN OPPOSITION TO PLAINTIFFS' MOTION FOR A PROTECTIVE ORDER

I, MARTIN GARBUS, hereby declare under penalty of perjury that the foregoing is true and correct.

1. I am associated with Frankfurt, Garbus, Klein & Selz, P.C. I have personal knowledge of the matters to which I attest herein, except where otherwise stated.

2. The instant motion presents important issues related to public access to discovery materials and the First Amendment. Furthermore, the protective order sought by plaintiffs in this motion is unsupportable, and if granted would seriously and unfairly impair the defense of this case.

3. This motion is part of plaintiffs' overall legal strategy: to ensure that defendant cannot adequately prepare its defense. Because of plaintiffs' suppression of the depositions, and their continued refusal to produce documents, we have already been damaged and prejudiced. This protective order would only exacerbate such prejudice. Defendants' prospective witnesses must have access to the facts and documents relevant to their testimony. Not only have plaintiffs impossibly delayed producing deposition witnesses, but they have blocked defendants from showing our witnesses or prospective witnesses the information necessary for them to make a decision as to whether or not to testify, and if so, on what grounds this testimony will be most relevant. Many prospective witnesses may, as a result of the protective order sought, be unable to testify. This process has held us up for nearly three weeks.

4. Defendants' witnesses live and work throughout the country, many in California. Since the date of the first deposition, we have been precluded from being fully able to prepare our defense. The protective order sought will only exacerbate this fact.

5. Defendants are also dealing with numerous amici in this case - from the media, from universities, and from academia -- all of whom are intensely interested in the very important issues presented by this case. The Court has seen evidence of this. They, too, should have ready access to the information plaintiffs seek to have sealed. We have been required to delay meetings and conversations with many of them.

6. I was present at the depositions of Robert Schumann and Kenneth Jacobsen. At no time during either of those depositions, and I refer the Court to the transcripts of such depositions for the matters discussed thereat, did Mr. Jacobsen discuss any of the sensitive anti piracy techniques, investigations or investigatory personnel discussed at all identified by Mr. Jacobsen in his Declaration as needing protection, in a non-confidential context, if at all.

7. With respect to ¶ 2 of the Declaration of Kenneth Jacobsen dated May 30, 2000, I respectfully direct the Court's attention to the MPAA's website, on which the anti-piracy efforts of the MPA and MPAA are prominently discussed, Exhibit A hereto, which is an article published on May 4, 2000 in the Toronto Star and an article published on May 10, 2000 on MSNBC.com; and Exhibit B hereto, which is an article published on MSNI3C.com on May 11, 2000 regarding an anti-piracy operation conducted by the MPAA under the direction of Chandra Lall. The articles attached in Exhibit A quote Mr. Jacobsen regarding anti-piracy efforts and the threats posed by DeCSS. The article attached to Exhibit B discusses in detail an anti-piracy operation in India, identifying by name and p,icture the MPAA outside attorney who ran the operation. Together, these articles demonstrate conclusively that the MPAA has, in general, a significant interest in publicizing their anti-piracy interests to inform the world at large of their activities. This serves the dual functions of reassuring those who own intellectual property, and putting those who would infringe on copyrights held by MPAA members that they are under scrutiny.

8. To the extent that the MPAA is not a party to this action, which at this point they are not, defendants are prepared to enter into the same Confidentiality Stipulation it is about to execute with the DVD CCA, another non-party. In any event, defendants have agreed that any portions of the Jacobsen deposition designated confidential will be treated as confidential until the plaintiffs or the Court removes such designation. Accordingly, those aspects of the MPAA's anti-piracy efforts it wishes to shield from the public are already protected.

9. With respect to ¶¶ 3 and 6 of the Jacobsen Declaration, it must be noted that the e-mails attached to Exhibits A and B of the Jacobsen Declaration are all dated in mid-late January of this year, or within weeks or days of this case being filed and the preliminary injunction being issued. Accordingly, they are not "harassing" e-mails sent apropos of nothing, but direct responses to what many perceive to be the movie industry's heavy-handed attempts to control the public's legitimate uses of DVD's they have purchased, and to control the Internet. While this does not justify foul language or threats of any kind, it is expressive political speech. In this regard, it is also clear that the e-mails had nothing to do with any posting or other public expression by defendants, but were solely in response to plaintiffs' own actions.

10. With respect to ¶ 4 of the Jacobsen Declaration, Mr. Hernstadt was the first person on either side of this case to suggest—in a direct offer to the Proskauer firm—that all addresses be designated confidential. And it is clear that the protections described by Mr. Jacobsen as "critical" sub-sections (b) and (c) of this paragraph are both amply provided for in the Confidentiality Stipulation by means of plaintiff's right to designate.

11. The harms proposed or described in ¶¶ 5 and 7 of the Jacobsen Declaration are fanciful. They are not based on any evidence whatsoever, and run counter to the facts before the Court. First, the e-mails submitted by plaintiffs appear, based on their dates, to be responses to plaintiffs' filing of this lawsuit and plaintiffs' and the MPAA's public statements about it and nothing done by defendants. And second, the security of plaintiffs' anti-piracy efforts is already ensured by the ConEdentiality Stipulation drafted and proposed by plaintiffs themselves.

12. Defendants are offended by ¶ 8 of the Jacobsen Declaration. It is unarguably clear that neither defendants nor any of the documents posted by them or other members of the press or other persons or organizations interested in this case and anything at all to do with this case. Rather, plaintiffs are attempting to use this alleged incident to mislead the Court into believing that there is any connection whatsoever between the incident and the relief sought in plaintiffs' motion, which there is not.

13. Finally, Exhibit C hereto contains numerous MPAA press releases announcing, for example, the filing by plaintiffs of this lawsuit, the issuance by this Court of a preliminary injunction in this case, and the filing by plaintiffs of their motion to expand the injunction. These press releases, many of which quote Jack Valenti and other MPAA officers at length about the allegedly illegal conduct of the defendants, is conclusive proof of the plaintiffs desire to publicize this case to the world, when it suits their purposes.

14. Attached hereto as Exhibit D are examples of Jack Valenti's testimony before Congress.

Dated: New York, New York
            May 31, 2000

[Signature]

MARTIN GARBUS

[3 pages.]

WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE - NEW YORK, NY 10153-0119
(212) 310-8000
FAX: (212) 310-8007

ROBERT G. SUGARMAN
DIRECT LINE (212) 310-8184

June 2, 2000

BY HAND

The Honorable Lewis A. Kaplan
United States District Judge
Southern District of New York
500 Pearl Street
Room 870
New York, New York 10007

Re: Universal City Studios, Inc., et al. v, Reimerdes, et al.
      00 Civ. 0271 (LAK)

Dear Judge Kaplan:

On behalf of DVD Copy Control Association, Inc. ("DVD CCA"), we write in support of the application of Plaintiffs in this action for a protective order and urge the Court to grant the relief sought by Plaintiffs, as set forth in the letters of Plaintiffs' counsel to the Court, dated May 12, 2000 and May 24, 2000.

The interest of DVD CCA in this matter is twofold:

First, DVD CCA has been served with a Third-Party Subpoena from Defendants Eric Corley, a/k/a "Emmanuel Goldstein," and 2600 Enterprises, Inc. Upon the execution of a Confidentiality Stipulation with the defendants in this action, DVD CCA will produce documents and will make John Hoy, the President and Chief Operating Officer of DVD CCA, available for a deposition in this action on June 21 and 22, 2000 in California. As a third-patty witness in this case which will produce a substantial amount of documents in response to Defendants' Subpoena, DVD CCA will be affected by the ruling of this Court on this matter.

Second, as you know, DVD CCA has commenced an action in California state court alleging that the computer program known as DeCSS, among others, is a misappropriation of the trade secrets included in the Content Scramble System ("CSS") proprietary technology which DVD CCA licenses.¹ On January 21, 2000, the Court in the California action granted DVD CCA's application for a preliminary injunction prohibiting the named defendants from "[p]osting or otherwise disclosing or distributing, on their websites or elsewhere, the DeCSS program, the master keys or algorithms of the Content Scrambl[e] system ("CSS"), or any other information derived from this proprietary information."²

____________________

1  DVD Copy Control Association, Inc. v. McLaughlin, et al. (Santa Clara Superior Court, State of California, CV 786804).

2 A copy of the Order Granting Preliminary Injunction, dated January 21, 2000, is attached hereto as Exhibit A. [Not provided.]

A substantial number of the documents which DVD CCA will produce in this action will be designated either as "Confidential" or "Highly Confidential -- Attorneys' Eyes Only," as they constitute or involve the trade secrets which DVD CCA licenses. These documents invariably will be discussed at DVD CCA's deposition, thus causing DVD CCA to designate those portions of the deposition transcript to be either "Confidential" or"Highly Confidential." Even apart from the discussion of DVD CCA's proprietary documents, DVD CCA anticipates that a significant part of its deposition testimony will involve "Confidential" or "Highly Confidential" information.

Should any "confidential" or"highly confidential" information be made available to the public (via the Internet) or to the press, the trade secret status of the technology which DVD CCA licenses will be seriously undermined. This will not only undercut DVD CCA's legal position in its California trade secret case, but also will compromise the proprietary nature of the CSS licensing regime adopted by the motion picture studios and the information technology and consumer electronics companies involved in the DVD industry. In short, the public release of such information will have disastrous consequences.

If members of the press or the public are allowed to attend the deposition of DVD CCA, the Confidentiality Stipulation that will be entered into between DVD CCA and defendants will be meaningless. Allowing members of the press or public to attend only "non confidential" portions of DVD CCA's deposition is not practicable. For one thing, it is impossible to predict at the outset which questions might elicit confidential testimony or testimony that could reveal information relating to the CSS trade secrets. Furthermore, the attendance of the press or the public at DVD CCA's deposition will require counsel continually to ask those present to leave the room.

DVD CCA also urges the Court to prohibit the publication of deposition transcripts on the Internet or otherwise. As stated above, DVD CCA anticipates that it will designate a significant portion of its documents and the testimony given at its deposition to be ''Confidential" or "Highly Confidential." Under the proposed Confidentiality Stipulation, a deponent has a continuing right to designate testimony or documents as "Confidential" or "Highly Confidential." The publication of the transcript of DVD CCA's deposition could thus thwart the protections granted in the Confidentiality Stipulation.

As a final matter, DVD CCA also notes one additional factor that weighs in favor of granting Plaintiffs' application. The publication of information, even if it has not been designated as "Confidential" or "Highly Confidential," will unnecessarily subject additional individuals and companies to the barrage of Internet hate mail that appears to have become commonplace in this and DVD CCA's California case. Like the plaintiffs in this action, DVD CCA has received a stream of vicious and obscene e-mails since the time it commenced its action in California. The identity of additional individuals or companies through the discovery process will only serve to fuel these tactics.

For these reasons, DVD CCA respectfully urges the Court to grant the protective order sought by Plaintiffs in this action in their letters of May 12 and 24, 2000 and thanks the Court for its review of this letter.

Respectfully,

[Signature]

Robert G. Sugarman

cc: BY FACSIMILE

Leon P. Gold, Esq.
Jon A. Baumgarten, Esq.
Nancy Kilson, Esq.
Martin Garbus, Esq.
Allonn E. Levy, Esq.
Robin D. Gross, Esq.

[2 pages.]

Barbara Gratch Cohen (BC 1306)
VILLAGE VOICE MEDIA, INC.
36 Cooper Square
New York, New York 10003
(212) 475-3300 ext. 5059 (telephone)
(212) 505-1698 (facsimile)

Attorneys for Non-Party
Village Voice Media, Inc.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
___________________________________________________ UNIVERSAL CITY STUDIOS, INC., et al, Plaintiffs, -against-                                                                                                 SHAWN C. REIMERDES, et al. Defendants. ___________________________________________________	: : : : : : : : : : :	00 Civ. 0277 (LAK) NOTICE OF CROSS-MOTION

PLEASE TAKE NOTICE that, upon all prior proceedings had herein, non-party Village Voice Media, Inc. will move this Court at the United States Courthouse for the Southern District of New York, Foley Square, New York, New York for an Order allowina it to intervene in this action for the motion for a (1) seeks to exclude limited purpose of opposing plaintiffs' protective order insofar as that motion the press from attending depositions of individual representatives of plaintiffs or the Motion Picture Association of America in this matter and would bar access to transcripts of depositions that have already been held, and (2) requests that the Court "so order" a Confidentialitv Stisulation between the parties.

PLEASE TAKE FURTHER NOTICE that, pursuant to Judge Kaplan's individual rules and the Court's May 25, 2000 Order in this matter, reply papers, if any, are to be filed no later than June 2, 2000 at 4:00 p.m.

Dated: New York, New York            June 1, 2000
		Respectfully submitted, VILLAGE VOICE MEDIA, INC. LEGAL DEPARTMENT By: [Signature] Barbara Gratch Cohen (BC 1306) 36 Cooper Square New York, New York 10003 212) 475-3300 ext. 5059 Attorneys for Non-Party Village Voice Media, Inc.

TO:
Leon P. Gold, Esq.
William M. Hart, Esq.
Proskauer Rose LLP
1585 Broadway
New York. NY 10036

Martin Garbus, Esq.
Edward Hernstadt, Esq.
Frankfurt Garbus Klein & Selz, PC
488 Madison Avenue
New York, NY 10022

[5-page declaration; 35 pages of 6 exhibits omitted here.]

Barbara Gratch Cohen (BC 1306)
VILLAGE VOICE MEDIA, INC.
36 Cooper Square
New York, New York 10003
(212) 475-3300 ext. 5059 (telephone)
(212) 505-1698 (facsimile)

Attorneys for Non-Party
Village Voice Media, Inc.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
___________________________________________________ UNIVERSAL CITY STUDIOS, INC., et al, Plaintiffs, -against-                                                                                                 SHAWN C. REIMERDES, et al. Defendants. ___________________________________________________	: : : : : : : : : : :	00 Civ. 0277 (LAK) DECLARATION OF JEFF HOWE

I, JEFF HOWE, hereby declare:

1. I am a freelance journalist who writes frequently for The Village Voice. In addition to contributing articles to The Voice, I have written for various news publications for the past eight years.

2. I submit this declaration in support of the motion by Village Voice Media, Inc. for an Order allowing it to intervene in this case in order to oppose plaintiffs' effort to exclude me and other members of the press from attending depositions of individual representatives of plaintiffs or the Motion Picture Association of America ("MPAA"), and in order to oppose plaintiffs' request for Court approval of the parties' broad confidentiality agreement.

3. In mid-January, Mark Boal, who was then The Voice's tech editor, and I decided to cover the DVD-DeCSS trial coming up in New York Federal Court.

4. On Thursday, January 20, I attended a preliminary injunction hearing, held in Judge Louis Kaplan's chambers. Two members of the press were in attendance, including myself. We were both allowed to sit in on the hearing.

5. In the course of the hearing, I sat next to a man who later introduced himself as Ken Frydman, a PR rep from Edelman, the PR firm representing the studios and the MPAA. We exchanged some friendly conversation.

6. After the hearing, Ken approached me and some others to hand us a prepared press release (a copy of which is attached as Exhibit 1, along with an actual key. The premise was that CSS is the lock providing security to copyrighted works, and DeCSS is the lock pick that illicitly enables access to those works. "You have a right to protect your property," reads the release. "That's why you don't give away copies of your keys."

7. I viewed this as a publicity stunt, a step above and beyond the standard press release, intended to increase the chance of their information being read. (In the course of my work as a journalist, I, like other members of the press, am f looded with press releases, so it's not unheard of for a PR firm to come up with a clever, or not so clever, idea to set their information apart from the flood.) The MPAA and its president Jack Valenti had already been very vocal on the subject of DeCSS in the media.

8. Since January, I have conducted interviews or spoken informally with Ken Frydman of Edelman; Greg Goeckner, Sarah Kutner and Mark Litvak of the MPAA; and Leon Gold, Esq., of the firm Proskauer, Rose. In general, I have found all of the representatives of both parties and the MPAA to be very helpful and forthcoming. It is my opinion, based on what I have seen, that both sides are very concerned with the media coverage of the case, which is not surprising given the import of the outcome of this case.

9. Following the January preliminary injunction hearing, I wrote an article about the case, which was published in The Voice's "Machine Age" column, a copy of which is attached hereto as Exhibit 2 [http://villagevoice.com/issues/0005/howe.shtml].

10. I followed up with a Voice cover story about the case, "Down by Law," a copy of which is attached hereto as Exhibit 3 [http://villagevoice.com/issues/0018/howe.shtml]. The public's intense interest in this case is demonstrated by the fact that this article is among the top five stories ever posted on The Voice's website in terms of the number of "hits" it has received.

11. In my experience, it is fairly uncommon for a party engaged in active litigation to court the press so brazenly, but it was clear to me that the MPAA, on behalf of the studios, hoped to win their case in the courts of both law and public opinion. Nowhere, perhaps, was this more clear thsn in the article Mr. Valenti wrote, which was published in the January 30, 2000 edition of the Los Angeles Times (a copy of which is attached as Exhibit 4). In that article, he sounds the alarm that all consumers should follow this case, because "if you cannot protect that which you own, you own nothing." He also uses dramatic language to paint a picture of the defendants as evil doers, whose only intent in posting the DeCSS code, he says, was to give "cyber thieves" (his term) the ability to steal the copyrighted works they "tarqet." He ends with a chest-thumping call to the public to closely follow this litigation: "Those who passionately believe in freedom of expression and consumers who value creative storytelling have a lot on the line as the judge considerS this matter."

12. The MPAA, on behalf of itself and the studios, has actively publicized its actions in this case not only by courting the "old-fashioned" press, but also by use of its website, the URL for which is http://www.mpaa.org/, on which the MPAA posts press releases, correspondence and court documents relating to this case and "Q and As" about some of the issues at stake. (Copies of relevant pages of the MPAA's website are attached as Exhibit 5.)

13. Defendants have also courted the press, as illustrated by the copy of the article attached hereto as Exhibit 6 [http://www.feedmag.com/re/re340.2.html].

14. Having gone to such lengths to engage the public's concern about this case, I am troubled by the fact that plaintiffs (and defendants, to the extent they signed the Confidentiality Agreement) now seek to bar the public from access to critical information about this case.

15. But I respect plaintiffs' concern for their employees and those of the MPAA who work on anti-piracy measures, and therefore do not object to plaintiffs' request for protection against the unfettered dissemination of information that would endanger the well-being of those employees. This is in keeping with my own practices (and the practices of The Voice and journalists generally) of protecting the identities of sources and the subjects of articles where disclosure of their identities would put them in harm's way.

16.  Similarly, I respect plaintiffs' desire to prevent the further dissemination of DeCSS pending the determination of this case.

Pursuant to 28 U.S.C. § 1746, I hereby declare under penalty of perjury that the foregoing is true and correct.

Dated: New York, New York            June 1, 2000
		[Signature] Jeff Howe

[17-page memorandum; 33 pages of exhibits omitted here.]

Barbara Gratch Cohen (BC 1306)
VILLAGE VOICE MEDIA, INC.
36 Cooper Square
New York, New York 10003
(212) 475-3300 ext. 5059 (telephone)
(212) 505-1698 (facsimile)

Attorneys for Non-Party
Village Voice Media, Inc.

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
___________________________________________________ UNIVERSAL CITY STUDIOS, INC., et al, Plaintiffs, -against-                                                                                                 SHAWN C. REIMERDES, et al. Defendants. ___________________________________________________	: : : : : : : : : : :	00 Civ. 0277 (LAK)

MEMORANDUM OF LAW IN SUPPORT OF
THE MOTION OF VILLAGE VOICE MEDIA, INC.
TO INTERVENE AND TO OPPOSE PLAINTIFFS'
MOTION FOR A PROTECTIVE ORDER

TABLE OF CONTENTS

INTRODUCTION

ARGUMENT

I. VVM IS ENTITLED TO INTERVENE

II. THE DEPOSITIONS SHOULD BE OPEN TO THE PRESS

III. THE CONFIDENTIALITY AGREEMENT SHOULD NOT BE "SO ORDERED"

CONCLUSION

TABLE OF AUTHORITIES

Cases

In re Aqent Oranqe Product Liability Litigation, 821 F.2d 139 (2d Cir. 1987), cert. denied sub nom Dow Chemical Corp. v. Ryan, 484 U.S. 953, 108 S.Ct. 344 (1987)

Amato v. City of Richmond, 157 F.R.D. 26 (E.D. Va. 1994) n.1

Avirgan v. Hull, 118 F.R.D. 252 (D.D.C. 1987)

Bal v. Hughes, 1995 WL 244757 (S.D.N Y. 1995)

Drake v. Benedek Broadcasting Corp., 2000 WL 156825 (D. Kan. 2000)

Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S Ct. 2613 (1982)

Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898 (1979)

Katzman v. Victoria's Secret Catalogue, 923 F. Supp. 580 (S.D.N.Y. 1996)

Kimberlin v. Quinlan, 145 F.R.D. 1 (D.D.C. 1992) n.1

Lisa C.-R v. William R, 166 Misc.2d 817, 635 N.Y.S.2d 449 (Sup. Ct. 1995) n.1

In re NASDAO Market-Makers Antitrust Litig., 164 F.R.D. 346 (S.D.N.Y. 1996)

Paisley Park Enterprises v. Uptown Productions, 54 F. Supp. 2d 347 (S.D.N.Y. 1999)

Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219 (6th Cir. 1996)

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S Ct. 2814 (1980)

Estate of Rosenbaum v. New York City, 21 Med. L. Rptr. (BNA) 1987 (E.D.N.Y. 1993)

Seattle times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199 (1984)

In re Texaco, Inc., 84 B.R. 14 (Bankr. S.D.N.Y. 1988)

Texaco, Inc. v. Icahn, 88 Civ. 3065 (S.D.N.Y. 1988)

Tyson v. William Cayton, 88 Civ. 8398 (S.D.N.Y. 1989)

U.S. v. Didrichsons, 15 Med. L. Rptr. (BNA) 1869 (W.D. Wash. 1988)

U.S. v. Microsoft Corp., 165 F.3d 952 (D.C. Cir. 1999)

U.S. v. Microsoft Corp., 98 Civ. 1232 (D.C. Cir. Apr. 1, 1999)

U.S. v. Poindexter, 732 F. Supp. 165 (D.D.C. 1990)

U.S. v. Yonkers Bd. of Educ., 587 F. Supp. 51 (S.D.N.Y.), aff'd, 747 F.2d 111 (2d Cir. 1984)

Rules

Fed. R. Civ. Pro. 24(a)(2)

Fed. R. Civ. Pro. 26(c) n.1

Village Voice Media, Inc. ("VVM"), publisher of The Villaqe Voice ("The Voice"), respectfully submits this memorandum of law in support of its motion to intervene for the limited purpose of opposing plaintiffs' motion for a protective order insofar as plaintiffs seek to: (a) bar the press from attending depositions in this matter; and (b) obtain the Court's approval of a broad confidentiality stipulation between the parties.

INTRODUCTION

As Voice Senior Editor Laura Conaway first notified the Court by letter dated May 16, 2000, one of The Voice's contributors, Jeff Howe, seeks to attend the depositions to be held in this matter.

Claiming to "object strenuously" to publicizing the pretrial discovery proceedings in this matter, plaintiffs have moved for a protective order seeking, among other things, to exclude the press from depositions. Plaintiffs' position is, among other flaws, hypocritical given the lengths to which they have gone to heighten public concern about this case, including a call to the public to watch the progress of the litigation closely. (See Declaration of Jeff Howe ("Howe Decl.") ¶¶ 6-8, 11-12 and Exs. 1, 4-5) Among other things, plaintiffs have issued several press releases, some of which are posted on the MPAA's website, in which they breathlessly advocate their view of the law and this case, describing the defendants as "pirates" whose only goal in posting DeCSS is to help "cyber-thieves." (Howe Decl. Exs. 1 and 5) The MPAA also posts on its website selected pleadings, correspondence, transcripts and orders in this case. (Howe Decl. Ex. 5) Defendants, for their part, have used the Internet and the traditional media to paint a diametrically opposed view. (Howe Decl. Exs. 3 and 6)

In keeping with the old adage, the truth probably lies somewhere in between, leaving members of the public to worry whether the judicial process will get distorted in the push and pull between the parties and their advocates. See, e.g., Declaration of Kenneth A. Jacobsen ("Jacobsen Decl."), Ex. A ( [t]he lies [plaintiffs are] telling to the ignorant courts will come back to haunt [plaintiffs] when the public catches on"). Based on this and in light of the dramatic effects this case is predicted to have, the public is intensely interested in following the case, step by step. (Howe Decl. ¶ 10; Jacobsen Decl., Exs. A and B)

Thus, what VVM seeks goes to the core of the interests that the media's access rights are intended to address. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 588-89, 100 S.Ct. 2814 (1980) ("what is crucial in individual cases is whether access to a particular government process is important in terms of that very process["]).

VVM makes this motion pursuant to the Court's May 25, 2000 Order directing that motions to intervene and for substantive relief be made by members of the media wishing to be heard on the questions of whether they should be permitted to attend depositions and whether discovery materials in this case should be subject to a protective order.

VVM seeks leave to intervene in this matter to oppose plaintiffs' motion insofar as it seeks to exclude the press from the depositions of representatives of plaintiffs or the MPAA (and to the extent it would bar access to the transcripts of those depositions that have already been held and which may be held pending the Court's decision on this motion).

VVM also seeks leave to intervene to oppose plaintiffs' motion insofar as the Court is being requested to approve a sweeping Confidentiality Stipulation entered into by the parties on May 12, 2000.

VVM does not oppose plaintiffs' motion insofar as plaintiffs seek to bar defendants from posting to the Internet entire transcripts of depositions of individual representatives of plaintiffs or the MPAA. Specifically, VVM does not oppose plaintiffs' request for an order barring the dissemination of those portions of the depositions identifying: (a) home addresses of the deponents and others; and (b) names of employees and representatives of plaintiffs or the MPAA who are engaged in anti-piracy work whose identities are not already publicly known. (See Jacobsen Decl. ¶ 4) Nor, pending the outcome of this case, does WM oppose plaintiffs' motion to the extent that they seek to limit the disclosure of any copies of DeCSS that may be produced in discovery.

ARGUMENT

I.

VVM IS ENTITLED TO INTERVENE

"[R]epresentatives of the press and general public 'must be given an opportunity to be heard on the question of their exclusion.'" Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n. 24, 102 S.Ct. 2613, 2621 n. 24 (1982) (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401, 99 S.Ct. 2898, 2916, (1979) (Powell, J., concurring)). Rule 24(a)(2) of the Federal Rules of Civil Procedure provides that intervention shall be granted as of right when an applicant:

claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

VVM clearly has an interest in this matter. The Voice regularly covers the astonishing growth of the Internet and the seemingly endless changes it is causing, worldwide. In this connection, The Voice has been at the forefront of press coverage of this lawsuit, which is predicted to have far-reaching implications on many aspects of the "new media revolution." The fact that reporter Jeff Howe's feature article about this case is among The Voice's top website postings in terms of the number of "hits" it has received (Howe Decl. ¶ 10) underscores that our readers are intensely interested in what both sides in this case have to say.

Indeed, both parties have drummed up the public's already heightened concern, peppering their comments with inflammatory rhetoric. Counsel for defendants, for example, urges that "persecution of hackers is, in many respects, analogous to the Communist red-baiting of yore." (Howe Decl. Ex. 6) For his part, MPAA President and Chief Executive Officer Jack Valenti states that "[t]hose who passionately believe in freedom of expression and consumers who value creative storytelling have a lot on the line as the judge considers this matter." (Howe Decl. ¶ 11; Ex. 4)

Apparently, however, the parties, each for themselves, would prefer to determine the specifics of what the public may learn from and about the case. Thus, as plaintiffs' effort to exclude the press and the parties' broad confidentiality agreement demonstrate, the existing parties do not adequately represent The Voice's interest.

Courts routinely grant press motions to intervene in connection with access motions. Katzman v. Victoria's Secret Catalogue, 923 F. Supp. 580, 583 (S.D.N.Y. 1996); In re NASDAO Market-Makers Antitrust Litig., 164 F.R.D. 346, 351 (S.D.N.Y. 1996); United States v. Yonkers Bd. of Educ., 587 F. Supp. 51, 52 (S.D.N.Y.), aff'd, 747 F.2d 111 (2d Cir. 1984). Such leave should be granted in this case.

II.

THE DEPOSITIONS SHOULD BE OPEN TO THE PRESS

Under Rule 26(c) of the Federal Rules of Civil Procedure, depositions, like all civil discovery, are presumptively open to the public and the party seeking a protective order has the burden of showing that good cause exists for the issuance of that order. In re Agent Oranqe Product Liability Litigation, 821 F.2d 139, 145(2d Cir. 1987), cert. denied sub nom Dow Chemical Corp. v. Ryan, 484 U.S. 953, 108 S.Ct. 344 (1987).

Courts in this and other districts have not hesitated to deny protective orders aimed at precluding the press from attending depositions where the required "good cause" showing has not been made. See, e.g., Tyson v. William Cayton, 88 Civ. 8398 (S.D.N.Y. 1989) (Ex. 1 hereto); In re Texaco, Inc., 84 B.R. 14 (Bankr. S.D.N.Y. 1988); Texaco, Inc. v. Icahn, 88 Civ. 3065 (S.D.N.Y. 1988) (Ex. 2 hereto); Estate of Rosenbaum v. New York City, 21 Med. L. Rptr. (BNA) 1987 (E.D.N.Y. 1993) (Ex. 3 hereto); Avirgan v. Hull, 118 F.R.D. 252 (D.D.C. 1987); U.S. v. Didrichsons, 15 Med. L. Rptr. (BNA) 1869 (W.D. Wash. 1988). Cf. Bal v. Hughes, 1995 WL 244757, *1 (S.D.N.Y. 1995) (cited by plaintiffs) (granting protective order but noting that press had not sought leave to attend depositions and emphasizing that decision was without prejudice to reconsideration if press were to do so).¹

____________________

1 Lisa C.-R v. William R, 166 Misc.2d 817, 635 N.Y.S.2d 449 (Sup. Ct. 1995), Kimberlin v. Quinlan, 145 F.R.D. 1 (D.D.C. 1992), and Amato v City of Richmond, 157 F.R.D. 26 (E.D. Va. 1994), on which plaintiffs rely, are inapposite. In the first of these cases, Lisa C.-R, the court expressly distinguished the federal system from New York procedure in matrimonial cases, finding that, opposite to the federal system, the burden in New York matrimonial cases is on the party seeking disclosure to show that special circumstances warrant an exception to the presumption in that limited context that pre-trial depositions should not be disclosed to the media. 635 N.Y.S.2d at 452. The courts in both Kimberlin and Amato noted that they may have reached different results had the moving parties in those cases been seeking protective orders under Rule 26(c) (as plaintiffs do in this case), in which event the more demanding "good cause' standard would have applied.

In several of these cases, publicity by the party seeking to exclude the press was viewed by the court as a key factor weighing in favor of press access. For example, in Tyson v. William Cayton, supra, the court emphasized that it was the plaintiff "who chose to conduct [the] litigation in the public forum," noting that, simultaneously with the filing of the lawsuit, his counsel gave interviews to the press about the claims in the lawsuit and the reasons it was brought. Ex. 1, at 5. Similarly, plaintiffs in this case issued a press release immediately following a preliminary hearing at the outset of this case, inviting press interviews on the spot. (Howe Decl. ¶ 6; Ex. 1) In Tyson, the court rejected the plaintiff's motion for reconsideration of orders denying his request that the press not be allowed to attend his deposition and that the deposition be sealed, noting that the deposition would be a forum at which defendant could probe into the accusations the plaintiff had made about him in the press. According to the court:

When a litigant seeks to conduct his litigation in part in the press, he cannot properly pick and choose to have public disclosure of declarations favoring him but protective orders of privacy for revelations that may be helpful to his adversary's cause. I can find no basis once such publicity-seeking action has been taken to bar public access to plaintiff's deposition.

Ex. 1, at 4. See also Estate of Rosenbaum v. New York City, supra, 21 Med. L. Rptr. at 1989 (access is particularly appropriate where deposition is of party "experienced in dealing with the media" who has "already spoken out on a number of occasions to members of the press"); Avirgan v. Hull, supra, 118 F.R.D. 252. Cf. In re Texaco, Inc., supra, 84 B.R. 14 (denying motion for protective order precluding public disclosure of deposition transcripts, noting widespread press attention in case).

One of the two concerns plaintiffs raise in support of their motion -- a desire to protect employees of plaintiffs and the MPAA -- appears to be a makeweight. In defendants' counsel's May 25, 2000 letter to the Court in response to plaintiffs' counsel's May 24, 2000 letter requesting entry of a protective order, defendants' counsel emphasized that

[m]ost importantly, plaintiffs well know, although they neglect to inform Your Honor, that I immediately offered to designate the addresses and any other personal information regarding the witnesses as Highly Confidential, the first time counsel for plaintiffs informed me they wished to maintain indefinitely the "blanket" designations confidential.

(Howe Decl. Ex. 5) Plaintiffs have yet to acknowledge that the mainstay of their argument has, thus, already been addressed.

In any event, The Voice does not object to properly tailored restrictions that would address plaintiffs' need to protect their employees and the employees of the MPAA who are engaged in anti-piracy activities, while still allowing public access to critical information about the case. Cf. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199 (1984) (affirming issuance of protective order based in part on safety concerns where opposing party specifically sought disclosure of personally identifying information).

To address the type of concerns plaintiffs raise, while safeguarding First Amendment interests, courts have crafted tailored restrictions regarding the uses to which discovery may be put. For example, in Estate of Rosenbaum v. New York City, supra, the court reversed the denial of a press request to attend a deposition, concluding that the stated concerns underlying the defendant's argument that the press was properly denied permission to attend the deposition were "all easily remediable and [did] not warrant barring total access." 21 Med. L. Rptr. at 1989.

Similarly, in Paisley Park Enterprises v. Uptown Productions, 54 F. Supp. 2d 347 (S.D.N.Y. 1999)(Kaplan, J.), this Court rejected the plaintiffas effort to altogether prohibit the videotaping of a deposition and, instead, issued a narrower order restricting the use of that videotape. 54 F. Supp. At 349-50. See also U.S. v. Microsoft Corp., 98 Civ. 1232(D.C. Cir. April 1, 1999) (Ex. 4 hereto); Tyson v. Cayton, supra, Ex. 1; Drake v. Benedek Broadcasting Corp., 2000 WL 156825, *2 (D. Kan. 2000) (cited Cf. U.S. v. Poindexter, 732 F. Supp. 165, by plaintiffs) 170 (D.D.C. 1990) (cited by plaintiffs) ([i]mmediate post-editing disclosure of the videotape [deposition] will give assurances of fairness to both the public and the accused, -- but it will do so without jeopardizing sensitive national security information").

Casting doubt on their professed "passion" for the First Amendment (Howe Decl. Ex. 4), plaintiffs casually assert that it would not be "appropriate to complicate these depositions for the witnesses by subjecting them to concern and worry about whether counsel will be able to eject the press representatives from the deposition room each time any discussion of confidential matters is imminent." (Pltffs. Mem., at 9) Plaintiffs professed concern is specious, as it ignores the variety of ways by which courts can create manageable procedures to ensure the proper balance between the First Amendment and the interests of litigants and the courts in fair and efficient proceedings, as the above-cited cases reflect.

III.

THE CONFIDENTIALITY AGREEMENT SHOULD NOT BE "SO ORDERED"

If plaintiffs' request for Court approval of the parties' Confidentiality Stipulation were granted, not only would the press be barred from attending depositions in this case; the press and public would be denied access to an enormous range of documents and information about this case, simply by means of one or the other of the parties, in their own self-interest, deeming particular information "Confidential" or "Highly Confidential." As plaintiffs demonstrated by making blanket designations at the outset of the two depositions that have already been held, this arrangement is readily subject to abuse.

In the leading case on protective orders under Rule 26(c), Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996), the court held improper an order under which "the parties were allowed to adjudicate their own case based upon their own self-interest" by designating anything they wished to keep secret as "Confidential Information." And yet, if the Confidentiality Agreement were to be approved, both parties would be permitted to do just that. Cf. In re Agent Oranqe Product Liability Litigation, supra, 821 F.2d 139 (holding that trial court properly lifted its own protective order given "exceptionally pervasive protection granted appellants in the pretrial stages of the litigation," including the ability to designate as confidential "any records that, in their estimation" should be kept secret, along with "the fact that appellants were never required to show good cause as mandated by Rule 26(c)").

Lying at the heart of plaintiffs' request for "so ordering" of the parties' Stipulation is the second of the two bases for their motion -- their desire to prevent public access to whatever they deem "sensitive business information" and "other non-public information." However, putting aside the unacceptable breadth of this description, insofar as plaintiffs intended merely to refer to trade secrets, the desire to hide trade secrets does not automatically constitute "good cause." Thus, courts have rejected the argument that a protective order should be granted simply to protect trade secrets. See, e.g., U.S. v. Microsoft Corp., 165 F.3d 952 (D.C. Cir. 1999) (noting that trade secrets are not automatically immune from disclosure but must be viewed on a case-by-case basis).

And, while plaintiffs' concern about protecting their anti-privacy strategy may justify limited restrictions on a narrow category of information, it does not constitute "good cause" for sealing off discovery altogether, particularly given that plaintiffs have directed the spotlight on the very information they now seek to hide from view. VVM does not however, obiect to plaintiffs' request for protection against dissemination of DeCSS, in the event that copies are produced during discovery.

CONCLUSION

While plaintiffs have offered reasonable bases for narrow restrictions with respect to limited categories of information that may be revealed in depositions and elsewhere during discovery, they have clearly not made the requisite "good cause" showing to prevent public access to anything and everything the parties would rather keep hidden from view. VVM should therefore be permitted to intervene for the limited purpose of opposing plaintiffs' efforts to bar public scrutiny of discovery in this case.

Dated: New York, New York            June 1, 2000
		Respectfully submitted, VILLAGE VOICE MEDIA, INC. LEGAL DEPARTMENT By: [Signature] Barbara Gratch Cohen (BC 1306) 36 Cooper Square New York, New York 10003 212) 475-3300 ext. 5059 Attorneys for Non-Party Village Voice Media, Inc.

[14 pages.]

Stephanie S. Abrutyn (SA 3249)
The Times Mirror Company
Two Park Avenue, 18thFloor
New York, NY 10016
Phone: 212-448-2944
Fax: 212-448-2992

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------------x UNIVERSAL CITY STUDIOS, INC., et al, Plaintiffs, -against-                                                                                                 SHAWN C. REIMERDES, et al. Defendants. --------------------------------------------------------------------x		00 Civ. 0277 (LAK)

NOTICE OF MOTION TO INTERVENE

PLEASE TAKE NOTICE that, based on Federal Rule of Civil Procedure 24 and the grounds cited in the accompanying Motion, Newsday, Inc. will move this Court on Friday June 2, 2000 at 4:00 p.m., or as soon thereafter as counsel may be heard, at the United States District Court, Southern District of New York, 500 Pearl Street, New York, New York, to intervene in this proceeding for the purpose of asserting its rights, under the Federal Rules of Civil Procedure, the United States Constitution, the New York State Constitution, and the common law, to oppose plaintiffs' Motion for Protective Order to the extent that it seeks to exclude the press from the depositions and/or seal the depositions of representatives of plaintiffs or the MPAA and to the extent that it requests that the Court enter an extraordinarily broad confidentiality stipulation, and for the Court to consider the accompanying Memorandum of Law in opposition to plaintiffs' motion; and for any other such relief as the Court deems just and proper.

Dated: June 2, 2000
		[Signature] Stephanie S. Abrutyn (SA 3249) The Times Mirror Company Two Park Avenue 18th Floor NewYork, NY 10016 Phone: 212-448-2944 Fax: 212-448-2992 Attorney for Newsday

TO:

Leon P. Gold
William M. Hart
Charles S. Sims
Proskauer Rose LLP
1585 Broadway
New York, NY 10036
Fax: 212-969-2900

Martin Garbus
Edward Hernstadt
Frankfurt Garbus Klein & Selz, PC
488 Madison Ave.
New York, NY 10022
Fax: 212-593-9175

Barbara Gratch Cohen
Village Voice Media, Inc.
36 Cooper Square
New York, NY 10003
Fax: 212-505-1698

Mike Goodwin
Senior Legal Editor
E-Commercc Law Weekly
1730 M Street, NW
Suite 802
Washington, DC 20036
Fax: 202-835-3362

Stephanie S. Abrutyn (SA 3249)
The Times Mirror Company
Two Park Avenue, 18thFloor
New York, NY 10016
Phone: 212-448-2944
Fax: 212-448-2992

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------------x UNIVERSAL CITY STUDIOS, INC., et al, Plaintiffs, -against-                                                                                                 SHAWN C. REIMERDES, et al. Defendants. --------------------------------------------------------------------x		00 Civ. 0277 (LAK)

MOTION TO INTERVENE FOR PURPOSES OF OPPOSING
MOTION FOR PROTECTIVE ORDER AND TO EXCLUDE
MEMBERS OF THE NEWS MEDIA FROM DEPOSITIONS

Newsday, Inc. ("Newsday"), by its undersigned attomey, hereby moves to intervene in this proceeding for the purpose of asserting its rights, under the Federal Rules of Civil Procedure, the United States Constitution, the New York State Constitution, and the common law, to oppose plaintiffs' Motion for Protective Order to the extent that it seeks to exclude the press from the depositions and/or seal the depositions of representatives of plaintiffs or the MPAA, and to the extent that it requests that the Court enter an extraordinarily broad confidentiality stipulation. As grounds for this motion, Newsday relies on Federal Rule of Civi1 Procedure 24 and the following:

1. Newsday is a domestic corporation organized and existing under the laws of the State of New York, with its principal place of business at 235 Pinelawn Road, Melville, New York 11747. Newsday is the publisher of Newsday, one of this State's leading daily newspapers that is published throughout Long Island and New York City.

2. This case is newsworthy and is of significant public interest. Newday has covered copyright issues as they relate to the Internet extensively, and has reported and plans to continue to report on these proceedings.

3. Defendant Eric Corley is a resident of Setauket, New York, located in Suffolk County on Long Island. He is well-known locally because of, among other things, the radio programs that he hosts on WUSB and WBAI, and has been mentioned in the past in numerous articles in Newsday.

4. Plaintiffs in this case have taken multiple steps to publicize the case and to encourage news coverage by members of the media.

5. On June 1, 2000, Newsday obtained a copy of the Court' s May 25, 2000, order referencing a dispute as to whether materials in this case should be subject to a protective order and requesting interested mesnbers of the news media to file motions to intervene no later than June 2, 2000, at 4 p.m.

6. Newsday believes that entry of a protective order in this case under these circumstances would be inconsistent with the Federal Rules of Civil Procedure and violate the rights of Newsday and the general public under the First Amendment to the United States Constitution. See accompanying Newsday, Inc.'s Memorandum of Law Opposing Motion for Protective Order and to Exclude Members of the News Media from Depositions.

7. As a result, Newsday respectfully requests the opportunity to be heard in opposition before this Court enters any protective order covering proceedings in this case. See Globe Newspaper Co v Superior Court, 457 U.S. 596, 609 n. 24 (1989) ("representatives of the press and general public 'must be given an opportunity to be heard on the question of their exclusion' ") (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring)), Katzman v. Victoria's Secret Catalogue, 923 F Supp. 580, 583 (S.D.N.Y 1996); In re NASDAQ Market-Makers Antrust Litig., 164 F.R.D. 346, 350-51 (S.D.N.Y. 1996).

WHEREFORE, Newsday, Inc. respectfully requests that this Court permit Newsday to intervene in this proceeding for the limited purpose of asserting its right of access under the Federal Rules and the United States and New York Constitutions; consider the accompanying Memorandum of Law in opposition to plaintiffs' motion; deny plaintiffs' motion to the extent that it seeks to exclude the press from the depositions and/or seal the depositions of representatives of plaintiffs or the MPAA and to the extent that it requests that the Court enter an extraordinarily broad confidentiality stipulation; and grant other such relief as the Court deems just and proper.

		Respectfully submitted,
		[Signature] Stephanie S. Abrutyn (SA 3249) The Times Mirror Company Two Park Avenue 18th Floor NewYork, NY 10016 Phone: 212-448-2944 Fax: 212-448-2992 Counsel for Newsday, Inc.

CERTIFICATE OF SERVICE

I hereby certify that on this 2nd day of June, 2000, a true copy of the foregoing Motion to Intervene for Purposes of Opposing Motion for Protective Order with accompanying Memorandum of Law was sent by facsimile and United States Mail, first-class postage pre-paid, to:

Leon P. Gold
William M. Hart
Charles S. Sims
Proskauer Rose LLP
1585 Broadway
New York, NY 10036
Fax: 212-969-2900

Martin Garbus
Edward Hernstadt
Frankfurt Garbus Klein & Selz, PC
488 Madison Ave.
New York, NY 10022
Fax: 212-593-9175

Barbara Gratch Cohen
Village Voice Media, Inc.
36 Cooper Square
New York, NY 10003
Fax: 212-505-1698

Mike Goodwin
Senior Legal Editor
E-Commercc Law Weekly
1730 M Street, NW
Suite 802
Washington, DC 20036
Fax: 202-835-3362

[Signature] Stephanie S. Abrutyn

Stephanie S. Abrutyn (SA 3249)
The Times Mirror Company
Two Park Avenue
18th Floor
New York, NY 10016
Phone: 212-448-2944
Fax: 212-448-2992

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------------x UNIVERSAL CITY STUDIOS, INC., et al, Plaintiffs, -against-                                                                                                 SHAWN C. REIMERDES, et al. Defendants. --------------------------------------------------------------------x		00 Civ. 0277 (LAK)

NEWSDAY, INC.'S MEMORANDUM OF LAW OPPOSING
MOTION FOR PROTECTIVE ORDER AND TO EXCLUDE
MEMBERS OF THE NEWS MEDIA FROM DEPOSITIONS

Newsday, Inc. ("Newsday"), by its undersigned attomey, hereby submits the following Memorandum in opposition to Plaintiffs' Motion for Protective Order to the extent that it seeks to exclude the press from the depositions and/or seal the depositions of representatives of plaintiffs or the MPAA, and to the extent that it requests that the Court enter an extraordinarily broad confidentiality stipulation.

A. The Public and the Press Have a Presumptive Right of Access to Depositions

1. Rule 26(c) of the Federal Rules of Civil Procedure provides that depositions, like all civil discovery, are presumptively open to the public. As a result, the party seeking a protective order -- in this case plaintiffs -- has the burden of showing that good cause exists for the issuance of that order. In re Agent Orange Product Liability Litigation, 821 F 2d 139, 145 (2d Cir. 1987), cert. denied sub nom Dow Chemical Corp. v. Ryan, 484 U.S. 953 (1987).

2. Plaintiffs here have not even come close to producing sufficient evidence to meet their burden under the Federal Rules of Civil Procedure for each and every deposition of each and every person for whom they seek protection, or to overcoming the consiitutional and common law rights of access to courts and court proceedings See Westmorelend v. C.B.S., Inc., 752 F 2d 16 (2d Cir. 1984) ("the First Amendment does secure to the public and to the press a right of access to civil proceedings . . .["]).

B. Good Cause Does Not Exist for Wholesale Closure of the Depositions.

3. Courts have left no doubt that general assertions of "good cause" to support wholesale closure or broad protective orders fail to meet a party's burden under Rule 26(c). See In re Agent Orange Product Liability Litigation, 821 F 2d at 148 (under Rule 26(c), "good cause" must be shown for each individual document); Avirgan v. Hull, 118 F.R.D. 252, 253 (D.D.C. 1987) ("[t]o show good cause, a movant for a protective order must articulate specific facts" demonstating injury); Rosenbaum v. The City of New York, 1993 U.S. Dist. Lexis 15908, *6-7, 21 Media L. Rep. (BNA) 1987 (E.D.N Y. 1993) (denying motion to exclude press due to sufficiency of other remedies).

4. Plaintiffs have pointed to two general reasons which they claim support the need to exclude members of the news media and the public from all depositions in this case: (1) a desire to protect employees of plainiiffs and the MPAA who are engaged in anti-piracy efforts, and (2) a desire to protect sensitive business information. First, assuming arguendo that protecting all officers and employees of a corporation from too much public scrutiny after that organization has instituted a lawsuit and sought publicity for the case would qualify as good cause in the abstract, far narrower alternatives are available for protecting that interest than wholesale sealing of depositions. For example, designating specific information such as home addresses and personal iniformation of witnesses as "confidential"or "highly confidential" would protect those witnesses while at the same time allowing access to the significant elements of their testimony. Similar steps could be taken with respect to protecting the identify of MPAA employees engaged in anti-piracy activities who are not already known to the public. See In re Agent Orange, 821 F.2d at 148 (even when dealing with extraordinarily volumous discovery materials, document-by-document assessment is required for protective order); Rosenbaum, 1993 U.S. Dist. Lexis 15908 at * 6-7 (granting access because concerns raised are remediable by other means). And, of course, such concerns carry far less weight when applied to public figures such as Mr. Valenti and Mr. Eisner, whose names are already widely known and who often seek out publicity and attempt to influence public debate on matters relating to their businesses.¹ See Rosenbaum, 1993 U.S. Dist. Lexis 15908 at *7 (concerns about press presence are vitiated when witnesses and parties are experienced in dealing with the media). Cf. Curtis Pub. Co. v. Butts, 388 U.S. 130, 154 (1967) ("public figures" have a far lesser need or right to call upon the court for protection).

____________________

1 The MPAA's web site, for example, which is located at http://www.mpaa.org, has an entire section devoted exclusively to Mr. Valenti's press releases. It has another section, entitled "Protecting Copyright in the Courts: DVD-DeCSS," which includes multiple press releases about this case that quote Mr. Valenti, as well as other documents. Similarly, an attempt to conduct a Nexis search in the "All News" database for "Michael Eisner" is interrupted by a prompt stating that the search has been stopped because it will retrieve more than 1,000 documents.

5. Along the same lines, to the extent that the Court determines that it is truly necessary to shield some information, such information can be protected through narrow confidentiality designations. Given that plaintiffs themselves -- through their attorney and their trade association -- have been voluntarily discussing the issues in the public arena and given that they are competitors, it seems highly urlikely that significant time in depositions will be spent on issues that are truly worthy of protection. Moreover, by taking the affirmative step to file a lawsuit which seeks relief in a public forum and then seeking out publicity for that lawsuit, plaintiffs' ability to keep "sensitive" and "non-public" business information under wraps necessarily becomes severly limited. See, e.g., U.S. v. Microsoft Corp., 165 F.3d 952 (D.C. Cir. 1999) (noting that even genuine trade secrets are not automatically immne from disclosure but must be viewed on a case-by-case basis); Estate of Rosenbaum v. New York City, 21 Med. L. Rep. at 1989 (access is particularly appropriate where deposition is of party who has "already spoken out on a number of occasions to members of the press").²

____________________

2 Concerns raised by plaintiffs in their motion about publication of information relating to their anti-piracy efforts appear overblown given the presence of a section on the MPAA web site devoted to "Antio-piracy."

6. Plaintiffs' attempt to meet their burden of showing good cause boils down to listing alleged threats made to the safety of anti-piracy workers and attaching some apparently threatening e-mail messages received by the MPAA This effort, however, suffers from a fundamental problem -- there has been no showing, nor could there be, that permitting responsible members of the news media to attend the depositions will either exacerbate the concerns or that barring access will eliminate them. Indeed, plaintiffs concede in their papers, as they must because the e-mails attached to Mr. Jacobsen's Declaration are abundantly clear, that the act giving rise to the complaints is the mere filing and prosecution of this lawsuit, which presumably is going to continue regardless of whether or not the media attend depositions.

C. The Confidentiality Stipulation Violates Rule 26(c).

7. The confidentiality stipulation suffers from similar fatal flaws. Permitting the parties in a case "to adjudicate their own case based upon their own self-interest" by designating anything they wish to keep secret as "Confidential Information" violates both the spirit and the letter of Rule 26(c). See Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996) (requiring vacature of protective order which "allows the parties to control public access to court papers"). Yet, such a result is exactly what plaintiffs are seeking here.

8. As this Court has previously pointed out, "There is no denying the possible significance of this case.") See Order dated May 12, 2000, at 6. Plaintiffs have been "largely responsible for the development of the American film industry. Their products reach hundreds of millions of viewers internationally and doubtless are responsible for a substantial portion of the revenue in the international film industry each year." See Memorandum Opinion dated February 2, 2000, at 21. That the proceedings, and in particular in the deposition testimony of plaintiffs' employees, directors, officers and the president of their trade assocladon on what appear to be potentially ground-breaking issues under the new Digital Millennium Copyright Act are of enormous public interest and concern also is undeniable. See Rosenbaum, 1993 U.S Dist. Lexis 15908 at *4-5 ("requirement of a showing of good cause [is] particularly appropriate when the subject matter of the litigation [is] of a special public interest").

9. Litigatlon is, by definition, a public event. Both the Federal Rules of Civil Procedure and the Constitution recognize that public faith in the judicial systein depends on the ability of the public -- and the news media as a surrogate for the public -- to observe every step of the proceedings. See Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508 (1984) ("The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed ...."); Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559-60 (1976) ("The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting . . judicial processes to extensive public scrutiny and criticism") (quoting Sheppard v. Maxwell, 384 U.S. 333, 350 (1966)). These principles carry particular weight in the context of cases, like this one, that may have a significant impact beyond the particular parties involved in the dispute. The Rules do not permit parties in a litigation to decide for themselves to shroud certain parts of the proceeding in secrecy simply because they would prefer to keep them secret.

WHEREFORE, Newsday, Inc. respectfully requests that this Court deny plaintiffs' motion to the extent that it seeks to exclude the press from the depositions and/or seal the depositions of representatives of plaintiffs or the MPAA and to the extent that it requests that the Court enter an extraordinarily broad confidentiality stipulation, and grant other such relief as the Cout deems just and proper.

		Respectfully submitted,
		[Signature] Stephanie S. Abrutyn (SA 3249) The Times Mirror Company Two Park Avenue 18th Floor NewYork, NY 10016 Phone: 212-448-2944 Fax: 212-448-2992 Counsel for Newsday, Inc.

Stephanie S. Abrutyn (SA 3249)
The Times Mirror Company
Two Park Avenue, 18th Floor
New York, NY 10016
Phone: 212-448-2944
Fax: 212-448-2992

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------------x UNIVERSAL CITY STUDIOS, INC., et al, Plaintiffs, -against-                                                                                                 SHAWN C. REIMERDES, et al. Defendants. --------------------------------------------------------------------x		00 Civ. 0277 (LAK)

DISCLOSURE PURSUANT TO LOCAL RULE 1.9

The ultunate parent company of Newsday, Inc. is The Times Miror Company, which is a publicly traded company. On June 12, 2000, a pending merger between The Times Mirror Company and Tribune Company, also a publicly traded company, is scheduled to close.

		[Signature] Stephanie S. Abrutyn (SA 3249) The Times Mirror Company Two Park Avenue 18th Floor NewYork, NY 10016 Phone: 212-448-2944 Fax: 212-448-2992 Counsel for Newsday, Inc.