Date: Sat, 16 Sep 1995 07:49:53 -0700 From: jostp@netcom.com (Patrick Jost) Subject: My Day in Judge Brinkema's Court Here it is...read, enjoy, copy, distribute, put on webpages, whatever... ---------------- Report on the September 15, 1995 hearing in the case of RTC v. Lerma; US District Court for the Eastern District of Virginia, Alexandria, VA by Patrick Jost (jostp@netcom.com) This is based on notes I took; there may be some inaccuracies in the spellings of names etc.; if you want to know what "really" happened, get the official transcript, this is the best I can do! Background: I arrived at the courthouse at about 10:00 as I thought there was a preliminary hearing. There wasn't, so I sat in the foyer and read. At about 11:30, I entered the courtroom, and heard the final portion of a sentencing hearing in a tax evasion case. I was very impressed with the way that Judge Brinkema handled the sentencing. Court was recessed, and I left to get a drink of water. I went back into the courtroom, and sat in the back (so I would not distract others with my note taking). A woman approached me, and introduced herself as Arnie Lerma's mother; she had come out from Georgetown to attend the hearing, and Arnie told her I would be there. The Scientology "team" was seated at the front: I recognized Warren McShane and Earle Cooley. I am going to try to "report" this as accurately as possible, so I am using the following abbreviations for participants: JB: Judge Brinkema EC: Earle Cooley (Scientology lawyer) WC: William Cook (Scientology lawyer) HK: Helena Kobrin (Scientology lawyer) MG: Michael Groh (DGS lawyer) RH: R. A. Hager (DGS lawyer) JH: Jack Hawkins (Washington Post lawyer) CS: Carl Symmes (Washington Post lawyer) LL: Lee Levine (Lerma lawyer) MS: Michael Sullivan (Lerma lawyer) MH: Merrill Hirsh (Lerma lawyer) When I have to add explanatory remarks, they will be between [square brackets]. Court was called to order at about 1200: JB summarized the contents of the hearing: 1) Plaintiff's motion for TRO against the Post; 2) Plaintiff's preliminary motion for injunctive relief; 3) Defendant's motion to vacate the seizure JB stated that she didn't want to spend time revisiting the TRO, would allow some time for argument; she also mentioned that there was a lot of overlap between the motion for the TRO and motion for preliminary injunction, and that there was a lot of redundancy in the paperwork. EC stated that he was reading today's New York Times, there was a story about a case in the US District (Ohio), a decision by Judge Fakins. The case is Proctor and Gamble v. Bankers trust. Apparently sealed financial information about the sale of derivatives was leaked to Business Week, Judge Fakins enjoined publication. EC said "all I know is what is in the NYT" and noted that the Washington Post did not report the story. EC said that they [Scientology lawyers?] missed a case...Urantia Foundation v. Kristin Mahera, dated June 27, 1995 in the US District of Arizona. In this case, the Urantia Foundation asserted that neither free speech or fair use allowed trademark infringement. [EC talked about other points that needed to be addressed because of the Lerma/Post response] JB said she did not want to hear Mr. Cooley's feelings on Scientology. She said she has already ruled, and was not happy that EC had shifted gears/changed focus in his argument. EC said he had brought witnesses. JB said she did not want to hear them, but that some limited use might be permitted. EC disagreed, spoke about how the Scientology materials were the writings of L. Ron Hubbard and that they had to be used/read/studied on a scale of spiritual awareness, that this is an article of faith for Scientologists. He said he had affidavits from his witnesses on this. EC spoke of the offensive nature of comments made about Scientology, that they were spiteful. He said "past things" [maybe this is Snow White?] were history, that if things were not clean that the Church of Scientology would not have been given 501(c) [tax exempt] status. JB told Mr. Cooley to "tone it down". EC said that he would not be allowed to see the materials in question, that that is how strong the belief is in the need to restrict access. JB said that she wondered how the actual documents could be compared to Mr. Lerma's postings; she also said that if he would not look at them, she would not either. She asked him how he could pursue something he had not investigated himself. EC responded by discussing the Fishman case/documents. JB said she had heard enough, asked to hear from the Washington Post. CS said that EC had shown nothing new, that the Washington Post had not intended to insult [etc.] the Church of Scientology. He said that the Post's case could be distinguished from the case discussed in the NYT as those documents were sealed. EC said he wanted the Scientologists [witnesses] to discuss the harm that had been done to them. He said he wanted to discuss the contents of Arnie Lerma's affidavit. He said the OT8 materials [referring to Jesus Christ as a pedophile] are phony, but that the rest are real. He said that what the Washington Post had done was repugnant to the Constitution. LB stated that the notion of free comment was important. EC disagreed, he mentioned complaints about him to Boston University, where he has been on the board for 20 years, he mentioned an insulting nickname given to Helena Kobrin on the Internet. JB said her mind is not changed, she is not convinced, she denied their request for a TRO. EC says he wants to appeal to the 4th circuit, and asked for a stay. JB said she is leaving her ruling in place, no stay. [topic is now injunction against Arnie Lerma] EC said he had Mr. Rinder, the head of OSA here to testify, that he wants to call the "public Scientologists" to testify. LL objected to the witnesses, wants time for discovery. He said EC had sent him a letter saying that he [EC] did not know which witnesses would be called. [the two witnesses that were discussed were Warren McShane, head of the RTC and Jim Settle of I-NET] JB said she would not referee attacks. EC said Mr. Rinder would testify as to what the attacks and exposure mean to Scientology. He said that the OSA and Guardian Office are not the same thing. JB told him not to talk about criticism [of Scientology] that criticism is part of the doctrine of fair use. EC said that Arnie Lerma acted as an agent of FACTNET and that the documents came from Larry Wollersheim. JB said an individual gets protection but that verbatim quotation is beyond fair use. LL said that wholesale copying had not taken place, that this could be shown by counting the number of pages. He said there were actually very few matches between documents seized and allegedly copyrighted materials. He said that there is no question that copying [an entire document] can be fair use, as is shown in the Sony case. He cited the Bellmore case, in which an entire letter was quoted and the Rothbard case, where the transcript of an entire lecture was used. He talked about authenticity and reflection of beliefs, and referred to the OT8 documents, he said Arnie Lerma posted them to foster discussion. He said the Supreme Court says accurate quotation is important, referred to the case Campbell v. Acock-Rose. He said amount taken is but one of four fair use tests, and it is not the exclusive test, but admitted that his [Lerma's] situation is not as strong as the Washington Post's. JB asked about the materials in Colorado [Wollersheim] case. LL said that they are identical. LL asked for the same type of order as the Washington Post and Colorado, that Arnie Lerma can do fair use quotation and that he wants the materials seized from Arnie Lerma to be returned. EC said that Arnie Lerma is not entitled to this, that he did not engage in fair use. EC said that Arnie Lerma says that the materials [Fishman affidavit and attachments] came from Larry Wollersheim, Wollersheim says they did not, he thinks conflicted testimony is a big issue. EC says [he thinks] Larry Wollersheim wanted the materials posted under the cover of Arnie Lerma's name. He said various things about alt.religion.scientology and fair use, and that he wanted Warren McShane to testify. LL says that Arnie Lerma claims that the materials were sent to him in the US mail by an unknown source, and that Larry Wollersheim claims they came from the FACTNET archive. LL said that there is no such thing as "fair use of a trade secret" in Virginia and that the case CBS v. Davis denies exactly what the plaintiffs want, a preliminary injunction on a trade secret matter. He objected to McShane's testimony, said he [McShane] had already submitted a declaration and had been deposed for 1.5 days. He said that they had received McShane's materials [some sort of charts?] at 10:00 in the morning, had not had time to go through them. EC said everything was provided in a timely manner. JB says she wanted to look at the materials [a thick black binder]. EC says it needs to be sealed because it contains the writings of L. Ron Hubbard. JB said she saw copies of handwriting on one side, typing on another, the typing is supposedly from Arnie Lerma's computer. LL/EC argued about who had asked for and seen what [issue is that Arnie Lerma's lawyers claim to have asked for details on infringement, they claim what Scientology's lawyers provided was inadequate; Scientology's lawyers claim the opposite]. JB called for a recess to examine the documents, and asked LL and EC to show what had been requested and provided. [during the recess, Helena Kobrin arrived] LL says that the request was made in two places, in the declaration of Merill Hirsh, August 30 1995, asking for a parallel analysis. JB asked what answer was received. LL said they received some printouts with no explanatory information, that they wrote a letter asking for an explanation. They did not get one, they wrote another letter [deadline was approaching]. As their materials were going out the door, they got an answer that they felt was inadequate. They said that they got another document at 10:00 today [probably the same thing JB went to look at] and that it is contradictory. JB wanted to know what was wrong with it. LL says it is deceptive as it does not really show how many documents were involved, they can't tell what is going on. He said that some things previously represented as non-infringing were included. EC says the initial submission was sufficient. He said everything had been returned to Arnie Lerma except the infringing materials, and that I-NET had been replaced. MH said that only the "C" hard drive had been returned, and that they are keeping more than they say, that they have his [Lerma's] "D" drive as well. JB says it looks like most of OT3 is quoted but is confused by the lack of context, says that Arnie Lerma's situation is not the same as the Washington Post's. LL says that the Fishman exhibits are extracts from Scientology documents, but that some of the Scientology documents are very long. Some of them [he mentioned OT2 and OT3] are 200-300 pages long, and that Arnie Lerma did not post the entire documents. LL discussed the four factors in fair use, one of them is public debate, said that the Internet is a forum for public debate. LL says injunctive relief is not the way to go, that the 9th circuit has ruled that OT1-3 are widely available. He also talked about Scientology's misuse of court orders and says that Arnie Lerma is willing to accept a decision like that in the Colorado/Washington Post cases. EC says the only issue is infringement, he does not like the Internet issue and that he wants Warren McShane to talk. JB asked why "only" the copyrighted stuff couldn't be copied? EC says it is sanitizing, that it could be done. JB says she has to balance things: She is concerned about the scope of the seizure, that the only materials at issue are copyrighted documents, not names, addresses, business correspondence, etc. She is concerned about the volume of verbatim duplication in Arnie Lerma's postings. JB says she'll take it under advisement for a week, will look through Cooley's presentation. [topic is now motion to vacate writ of seizure] MS says they were asked [in a previous hearing?] to review search, see if it was successive. He talked about how "broad" a search was that used "Hubbard" as a search term. He said a very broad search was conducted by Jim Settle, that 2/3 more stuff was reviewed than copied. MS said that Warren McShane would "scroll through" messages when a hit was found, and that they [Lerma defense team] will never know what exactly was done. They say that Cooley called in Moxon, a Scientology lawyer qualified/permitted to look at the materials. He mentioned that McShane identified OT8 as an infringement in his deposition. MS says Moxon says he doesn't know which documents are which. MS says they are shooting at a moving target. MS says many of the disks retained do not contain any of the search terms. [search terms were THETAN-OT COURSE-HUBBARD] [MS says] JB told them not to continue searching on August 25th, she said the search and seizure was dirty, that they conducted an exploratory search, possibly violating Arnie Lerma's 4th amendment rights. WC is going to talk about the searches... JB asked what other words were searched for. WC talked about the "3 word" search as done by I-NET and McShane, but that additional searches were done, but not after they were told not to do any more. JB says she only remembers authorizing a search for the three words. WC talked about doing "directory searches" [not sure what this means]. JB said a "search for evidence" was not authorized. WC said they tried to comply. JB said it was her understanding in ex parte discussions of how the search was to be done that I-NET was to be the reviewing authority. [a clerk of the court read from a document-maybe from another hearing- about the terms of this search] JB said that the search that had been done was not clean. WC talked about having Moxon look at stuff, said that Settle was not allowed to explain what searches were done and how they were done. EC said it was no one's intent to use any other material. He said Settle mentioned the [additional?] search but not the search terms. He talked about the lack of sufficiency of the initial search terms. JB [gives ruling] is concerned about how the seizure was conducted. She talked about 4th amendment rights. She says ex parte arrangements must be done in good faith, that the search should have been narrow. She says it was not conduced in the spirit intended. JB said things got out of control, she is concerned about the Church of Scientology's "lack of clean hands" in the matter. JB does not give the preliminary injunction, vacates the seizure, says that Arnie Lerma may only quote for "fair use" (as in W. Post/Colorado). EC asked for a stay. JB said no, that the 4th circuit is still open. HK said she was concerned about representations of things not done in good faith, that things were done in good faith. JB said she had ruled, that Helena Kobrin's remarks had been recorded. [court adjourns] [aftermath] PJ: Patrick Jost (author of this document) WM: Warren McShane (RTC) JS: Jim Settle (I-NET) GL: Gora Lerma (Arnie Lerma's mother) PJ said [to McShane, as he exited the courtroom] that he [McShane] should get another computer guru. PJ said he could have done a much better job than I-NET did on the disk search. [I said this because it was obvious that they were having trouble doing a simple keyword search] WM asked Patrick Jost who he was, and if he really thought he could have done a better job. PJ replied I'm me [this is basically what one of the Scientologists present at the raid on Arnie Lerma's house said]. WM asked why Patrick Jost would not identify himself. PJ replied "I'm Patrick Jost...jostp@netcom.com". WM indicated that he knew who that was. PJ said he knew who Warren McShane was. JS interjected saying something like "I did the search, talk to me". PJ said you did a bad job on the search, and you should not have taken the job anyway, you have a moral responsibility... JS interrupted saying that they [I-NET] had raised issues, but that he [Settle] had not been allowed to speak. PJ asked what would Ken Bajaj [I-NET management] think about this? JS replied if all you know is what's on the Internet, you don't know it all. PJ said "you don't know what I know". WC [Scientology lawyer] tried to get Jim Settle to leave... GL [partial, to Helena Kobrin] You were at my son's house... [there was dialogue between GL and HK but I did not hear it] HK said I'm not going to talk [after this, Helena Kobrin left very quickly] WC told Jim Settle they had to go [they left] [end of report]