00001 {12:14:03pm} 01 IN THE UNITED STATES DISTRICT COURT 02 FOR THE WESTERN DISTRICT OF OKLAHOMA 03 04 MICHAEL FOUNDATION, INC., 04 05 Plaintiff, 05 06 vs. CASE NO. CV-00-0885-W 06 07 URANTIA FOUNDATION, et al., 07 08 Defendants. 08 09 09 10 10 11 11 12 REPORTER'S TRANSCRIPT OF PROCEEDINGS 12 HAD MONDAY, JUNE 11, 2001 13 BEFORE THE HONORABLE LEE R. WEST, SENIOR JUDGE PRESIDING 13 14 PRETRIAL HEARING 15 15 16 16 17 17 18 18 19 A P P E A R A N C E S 20 FOR THE PLAINTIFF: MR. ROSS A. PLOURDE 20 MR. MURRAY E. ABOWITZ 21 Attorneys at Law 21 Oklahoma City, Oklahoma 22 22 23 FOR THE DEFENDANTS: MR. STEVEN G. HILL 23 MR. PETER SCHOENTHALER 24 MR. ERIC MAURER 24 Attorneys at Law 25 Atlanta, Georgia 25 00002 {12:14:03pm} 01 PROCEEDINGS: 02 --------------------------------------------------------------- 03 THE COURT: We'll go on the record and I suppose to 04 do that we better note the appearances first. For the 05 plaintiff? 06 MR. PLOURDE: Your Honor, Ross Plourde and Murray 07 Abowitz. 08 THE COURT: And for the defendants? 09 MR. HILL: Steve Hill, Peter Schoenthaler, and Eric 10 Maurer, M-A-U-R-E-R. 11 THE COURT: Okay. Anyone else need to note their 12 appearances? 13 Okay. 14 MR. ABOWITZ: Could we show who is also present, 15 Judge? 16 MR. HILL: Also present are Tonia Baney and Mindy 17 Williams from Urantia Foundation. 18 THE COURT: All right. Your motions in limine first, 19 I believe. 20 MR. PLOURDE: Okay, Your Honor. 21 THE COURT: No, I believe they're Steven's, aren't 22 they? 23 MR. PLOURDE: We've got motions in limine on -- 24 THE COURT: Both sides? All right. Let's start with 25 exhibit 67. That's Steve's. 00003 {12:14:04pm} 01 MR. HILL: Okay. Those are the believer affidavits, 02 Judge, if I recall correctly. 03 MR. PLOURDE: Maybe I can short circuit that one. 04 THE COURT: I was going to say, isn't that moot now? 05 MR. PLOURDE: Well, not necessarily, Judge. Let me 06 address that just to perhaps head off a problem. Part of the 07 issue with respect to the anti-cybersquatting act case is the 08 strength of their mark, the distinctiveness. That's one of the 09 issues that goes into determining whether or not Michael 10 Foundation and McMullan acted in bad faith, is the 11 distinctiveness of their mark. So evidence that would 12 establish that it was generic would go to the distinctiveness 13 of the mark and rebut the bad faith allegation by establishing 14 -- if we were able to establish that it was a religion, then 15 that would establish the mark as generic for those purposes and 16 rebut the distinctiveness. 17 Just as a matter of procedure at trial, we have decided at 18 this point not to argue that the name Urantia is the name of a 19 religion or that Urantia denotes someone that adheres to the 20 Urantia beliefs, and so I think that does moot that particular 21 issue. 22 I would expect Mr. McMullan to testify that he believes 23 that The Urantia Book forms a basis of his religion but I don't 24 think that goes to necessarily the genericness of the mark in 25 that particular instance. Do you agree? 00004 {12:14:10pm} 01 MR. ABOWITZ: May I add something? 02 THE COURT: Sure. 03 MR. ABOWITZ: I believe that there will also be 04 testimony elicited that there is a recognition that there are 05 those that recognize The Urantia Book as the basis of a 06 religion but it won't go any further than that and we do not 07 intend to use these exhibits unless in rebuttal. 08 THE COURT: All right. Go ahead. Do you want to 09 respond to what they've suggested or conceded? 10 As I understand it now, you're saying, yes, the exhibit 11 should be excludable, but that you all may refer to this issue 12 somewhat in establishing infringement or the good or bad 13 faith -- 14 MR. ABOWITZ: Correct. 15 THE COURT: -- issue on that point. Does that 16 summarize what your position is? 17 MR. PLOURDE: Yes, sir. 18 MR. ABOWITZ: Yes, sir. 19 THE COURT: All right. Steven, how do you feel about 20 that? 21 MR. HILL: Well, as I read the Court's instructions, 22 it looks like the distinctiveness issue is resolved by the 23 incontestability, so I don't think that they're probative in 24 terms of showing the distinctiveness or nondistinctiveness of 25 the mark for the cybersquatting purposes. That's relatively 00005 {12:14:13pm} 01 established in what case law does exist on the cybersquatting 02 act. We have a fundamental problem, Your Honor, with the 03 nature of the exhibits themselves, the quality of the exhibits. 04 None of the declarants were listed. 05 THE COURT: Are you talking about 67 itself now? 06 MR. HILL: Yeah, yeah. The quality of the exhibit. 07 None of the declarants on the exhibits were named as 08 witnesses. There's been no opportunity to cross-examine. 09 About as probative as the statements get is to say that they 10 believe the contents of the Urantia Book form the basis of 11 their personal religion. They don't combine -- my concern, in 12 part, is the combination of 100 things saying this is my 13 personal religion. 14 THE COURT: We may be dancing around an issue here. 15 My understanding is that I will sustain a motion in limine to 16 exclude exhibit number 67. You're attempting to avoid that 17 ruling running afoul of offering some testimony; is that 18 correct? 19 MR. ABOWITZ: That's correct. 20 THE COURT: Now, let's spell out so the record and 21 Steve and you and I can understand what that concern is and as 22 precisely as possible so that when I get through here and say, 23 "The motion in limine is sustained as to exhibit 67," you will 24 understand what you can or cannot testify about. 25 MR. ABOWITZ: Well, if you grant the motion, we won't 00006 {12:14:15pm} 01 use any of exhibit 67, but I don't view that order of the court 02 as precluding us from addressing the issue of Mr. McMullan's 03 religion or from anybody else -- 04 THE COURT: Now, his won't be 67. His will be live 05 testimony; am I correct about that? 06 MR. ABOWITZ: Correct. 07 THE COURT: And yours as well, Ross? Are we talking 08 about separate -- 09 MR. ABOWITZ: We're talking about the same thing 10 here. 11 THE COURT: And you say the exhibit itself is 12 excluded but his ability will be to testify to what now? Let's 13 spell that out and get some examples of it so we can find 14 out so I can rule on it in advance or whether I need to just 15 rule on it at the time. 16 MR. ABOWITZ: Well, it has nothing to do with the 17 exhibit. Howard McMullan will testify that The Urantia Book is 18 the basis of his religion. I anticipate that if there are 19 witnesses called by Urantia Foundation, that on cross-examine 20 they will say that they acknowledge they are people that base 21 their religion on The Urantia Book. End of story. 22 THE COURT: That's testimony, not the exhibit? 23 MR. ABOWITZ: Right. 24 THE COURT: What's your concern? 25 MR. HILL: We'll take it as it comes. 00007 {12:14:17pm} 01 THE COURT: Okay. 02 MR. HILL: We'll take it as it comes, Judge. 03 THE COURT: All right. Everybody understand the 04 Court's ruling then? I'm sustaining a motion in limine with 05 regard to exhibit number 67. 06 All right. Let's move on to motion to exclude evidence 07 relating to settlement and compromise. That's your motion, I 08 believe. 09 MR. HILL: Yes, Judge. 10 Our position is that there have been some settlement 11 negotiations relating to the cybersquatting claims. I envision 12 that what they're going to try to do is characterize those 13 negotiations as they offered us a free ride so why are we 14 here. The problem with that, Judge, is that while Rule 408 15 does have some exceptions, you can't bring in the settlement 16 negotiations to negative the liability or negate the damages at 17 issue. And the only thing that that testimony is probative on 18 is negativing bad faith, which is an element of proving the 19 claim, and negativing the amount of damages that the jury ought 20 to consider. So, I see it as going directly to the merits. 21 There are cases in the insurance bad faith arena where 22 settlement negotiations have been excluded. I'll cite you one 23 on the record, Clemco Industries v. Commercial Union, 665 24 F.Supp, 816, where bad faith is the issue for liability. The 25 existence of what might be characterized as a great settlement 00008 {12:14:21pm} 01 offer can't come in for proof of the existence or nonexistence 02 of bad faith. 03 THE COURT: Who wants to respond? 04 MR. PLOURDE: Judge, I think it's clear that the 05 standard is if it's offered for another purpose other than 06 establishing or rebutting liability, that it can come in. 07 And I think the purpose -- 08 THE COURT: Well, the general rule is that you can't 09 offer it, and you understand that. Negotiations, compromise 10 offers and so forth are not admissible in any form, unless 11 what? 12 MR. PLOURDE: Unless -- 13 THE COURT: Spell out to me what exception you're 14 going to offer what evidence so that -- 15 MR. PLOURDE: Unless they're -- 16 THE COURT: Okay. Now, spell it out in some detail, 17 Ross. 18 MR. PLOURDE: Unless they're offered for another 19 purpose. The rule excludes -- I mean, it isn't a matter of 20 excluding them all -- 21 THE COURT: You're going to say to them, "Look, we 22 offered to settle this thing or give them almost a free ride." 23 What -- 24 MR. ABOWITZ: We offered to give them back. 25 THE COURT: Offered to give it back. 00009 {12:14:24pm} 01 MR. ABOWITZ: First at my cost of getting them, and 02 that didn't work, so then I said, "Well, you can have them and 03 I'll eat that cost." 04 THE COURT: Have what? Now, spell that out. 05 MR. PLOURDE: Domain names. 06 MR. ABOWITZ: The three domain names. 07 THE COURT: The three names: Urantia, Urantian, and 08 so forth? 09 MR. PLOURDE: Right. 10 THE COURT: And you said you'll take -- first, your 11 offer was we'll take what and give them back to you? 12 MR. PLOURDE: The $30 -- the domain name was the 13 cost, give or take, was the cost of registering. 14 THE COURT: Now, who's going to be testifying to 15 this? 16 MR. ABOWITZ: Mr. McMullan. 17 THE COURT: Mr. McMullan. He said, "We got them, it 18 cost us 30-something dollars, and we said if you'll give us 19 that, we'll give them back to you." 20 Now, what are you offering that evidence for, the 21 testimony for? 22 MR. PLOURDE: The statute says that they have to 23 prove that we registered those or used them with a bad faith 24 intent to profit. So the question is: Did we have a bad faith 25 intent to profit? And if we're offering them to just give it 00010 {12:14:26pm} 01 to them, I think that rebuts the bad faith intent to profit. 02 THE COURT: We seem to have a dispute that -- 03 MR. PLOURDE: We don't have any -- I'm sorry. 04 THE COURT: We seem to have a dispute because he says 05 the fact it does not -- that it is offered to rebut bad faith 06 is not an exception to the rule that they can't be offered. 07 MR. HILL: Not when bad faith is a part of the 08 elements of the claim. 09 THE COURT: Now, do we have an argument about what 10 the law is in that regard? 11 MR. ABOWITZ: We do. 12 MR. PLOURDE: I think we do, Judge. I mean, 13 unfortunately he didn't share his case with me before I came 14 over, so I can't respond to that specific case. 15 THE COURT: Let me ask you this: Do you have any 16 cases that say no, that it is not -- that it can be used where 17 bad faith is an issue? 18 MR. PLOURDE: No, Your Honor, but -- 19 THE COURT: Okay. Let me get Steve's case and then 20 we'll just have to -- and give you an opportunity to cite any 21 cases to the contrary and we'll get it ruled on. 22 Do you have -- 23 MR. HILL: I've already cited it on the record, Your 24 Honor. 25 May I add one more statement? 00011 {12:14:28pm} 01 THE COURT: Sure. 02 MR. HILL: And it's just exactly what has happened 03 here, these discussions occurred once the litigation was 04 already underway, once the claims had been filed in court. 05 There is a tremendous disagreement over these conversations and 06 they exclusively occurred between counsel. Mr. McMullan is 07 going to get up there and he's going to say he offered them for 08 $30. That's not my take at all, Judge. I'd be happy -- it's 09 back in my hotel but I would be happy to show the Court the 10 letter that I sent confirming that there was an abstract offer 11 made that we would pay something. 12 THE COURT: Let me tell you where I'm operating 13 from. I'm operating from the basis that none of this is going 14 to be admissible because it is an offer of compromise, 15 settlement, so forth, clearly not admissible unless you can 16 show me, contrary to his authority, and some authority that 17 this fits the bad-faith exception and so forth, fits clearly 18 within this. And I'm going to give you an opportunity to do 19 that, a very brief opportunity, but as of right now I'm ruling 20 that none of that testimony is admissible until you all present 21 me some authority to the contrary. 22 MR. PLOURDE: What's the case cite again? 23 MR. HILL: I would also like to cite Rule 408 itself, 24 Judge, because the exceptions that follow follow from the 25 fact that you cannot -- 00012 {12:14:30pm} 01 THE COURT: You better note very quickly what you're 02 relying on because my clerk over here is making a note of 03 that. 04 MR. HILL: The specific -- 05 THE COURT: 408 and the cite? What's the case cite? 06 MR. HILL: The specific language of 408 says that it 07 can't go to invalidity of the claim or its amount. 08 THE COURT: Now, was that cited in your underlying 09 brief here? I looked through these yesterday. Did you cite 10 that or not? 11 MR. HILL: We cited the rule, Judge, in our opening 12 brief. The case is a case that I just pulled off last night. 13 THE COURT: Give us that cite. 14 MR. HILL: 665 F.Supp. 816. 15 MR. ABOWITZ: 816? 16 MR. HILL: Uh-huh. 17 THE COURT: All we need to do is you need to notify 18 your shop at the first break or something to run that and be 19 working on that and we'll get it done sometime before we start 20 this case, get it ruled on. Okay? 21 Now then, ready to go to the next one? 22 MR. PLOURDE: Yes, sir. Which is -- 23 THE COURT: Michael Foundation and Harry McMullan's 24 exhibits 23, 37, 63, 97, 99 and 131 filed under seal. That's 25 your motion, I believe, Steve. 00013 {12:14:32pm} 01 MR. HILL: Yeah. I'm going to defer to co-counsel 02 here. 03 MR. SCHOENTHALER: Your Honor, each of these exhibits 04 for various reasons independently are either irrelevant and/or 05 even if there is some minor relevancy in the exhibit, then 06 they're prejudicial. 07 Let's take each exhibit individually. 08 THE COURT: 23 first. 09 MR. SCHOENTHALER: Sure. Exhibit 23, they want to 10 bring it in to show that Mo Siegel wants his mail service 11 restored because he's getting negative e-mails from people that 12 favor McMullan and he says he needs good vibes and 13 reenforcement. I don't see what relevance that possibly could 14 have. 15 THE COURT: Mo Siegel is not a witness in this case; 16 is that correct? 17 MR. SCHOENTHALER: He is not. 18 THE COURT: And the document that you're objecting to 19 is a document -- an exhibit itself in which he states what 20 precisely? 21 MR. SCHOENTHALER: He says, "What is happening with 22 the Fellowship letter? When will it go out and what will it 23 say? PS, I am still cut off. The CC and IUA list period. 24 Please restore my mail service. I am getting so many negative 25 e-mails from people who favor Harry. I need some good vibes 00014 {12:14:34pm} 01 and reinforcement from the CC and IUA list." 02 THE COURT: Your objection to that is based upon what 03 again? 04 MR. SCHOENTHALER: It has absolutely no relevance. 05 What does Mo Siegel having negative e-mails from other people 06 who support Harry have anything to do with the case that we're 07 here for today? 08 THE COURT: All right. Is this being offered as 09 evidence or as rebuttal evidence and, if so, what purpose would 10 you be offering it for? 11 MR. PLOURDE: Your Honor, for instance, they have 12 survey evidence. They have -- 13 THE COURT: Well, they haven't got it yet. They're 14 going to attempt to offer it. We haven't got it in yet. Tell 15 me what their survey -- 16 MR. HILL: I appreciate that vote of confidence, 17 Judge. 18 THE COURT: Are you agreeing the survey evidence 19 should come in, Ross, or not? 20 MR. PLOURDE: No, but if it does, what we've got is 21 Mr. Siegel out there basically trying to drum up support for 22 his position. 23 THE COURT: That's what I mean. Is this something 24 that you're going to offer regardless of what happens or is it 25 only in rebuttal to the survey evidence now? 00015 {12:14:35pm} 01 MR. ABOWITZ: We don't know in the case in chief. 02 THE COURT: Okay. Now then, if they don't get the 03 survey evidence in, then it will not be offered; am I correct 04 in that regard? 05 MR. ABOWITZ: (COUNSEL NODS HEAD) 06 THE COURT: All right. Now, do you all want to argue 07 the survey evidence now or a little bit later on? 08 MR. HILL: I would just say that -- I mean, can they 09 explain what the relationship that popularity has to a survey? 10 THE COURT: Well, if they're not going to offer it, 11 I'm not interested in it unless and until -- 12 MR. SCHOENTHALER: If I may -- 13 THE COURT: Listen, I'm not too crazy about doing a 14 bunch of pretrial rulings that prohibit or proscribe evidence 15 when there's all this speculation about whether it's ever going 16 to be offered or under what circumstance, and me sitting in 17 this chambers here trying to envision how this case is going to 18 develop. Consequently, I'm not all that crazy about motions in 19 limine, and I started the damned things 30 years ago in this 20 part of the world, but I'm not going to get all that hemmed in 21 by motions in limine unless they're pretty damned clearly not 22 going to be admissible under any circumstances, I'm not going 23 to sustain them. 24 Now, having said that, let's leave this the way it is. If 25 you don't get your survey evidence in, then if you do, they'll 00016 {12:14:37pm} 01 offer them as rebuttal as opposed to that and then we'll have a 02 hearing if we need to, or over your objection we'll determine 03 what relevance they have, and I can better understand whether 04 or not they're relevant at that time. So I guess the thing I'm 05 saying is that the motion in limine is sustained with regard to 06 these to the extent that they will not be offered in their 07 evidence in chief and then we'll take up their admissibility if 08 and when the survey evidence is met. Fair enough? Everybody 09 hear and understand that? 10 MR. ABOWITZ: Yes, sir. 11 THE COURT: All right. Is that true of all these 12 exhibits now 23, 37, 39 -- 13 MR. SCHOENTHALER: 37, they've withdrawn from their 14 case in chief; is that correct? 15 THE COURT: 37, withdrawn? 16 MR. PLOURDE: Yes, sir. 17 THE COURT: Okay. What about 63, 97? 18 MR. PLOURDE: We skipped 39. 19 THE COURT: Oh, I did. Okay. How about 39, is that 20 the same ruling? 21 MR. PLOURDE: No, sir. 22 THE COURT: Huh? 23 MR. PLOURDE: No, sir. 24 THE COURT: All right. Tell me about 39. 25 MR. SCHOENTHALER: 39? 00017 {12:14:39pm} 01 MR. HILL: What is 39 02 THE COURT: "E-mail from trustee Siegel to show that 03 trustee disagreed about the possible separate printing of part 04 IV of The Urantia Book." 05 MR. PLOURDE: I have no idea, Judge. My mistake. 06 You're right. 39 is not -- 07 MR. SCHOENTHALER: 63. 08 MR. PLOURDE: 63? 09 THE COURT: So 39 is not going to be offered unless 10 and until the survey is admissible? 11 MR. PLOURDE: No, sir, 39 is not covered by this 12 motion. I have it in my notes that it was and I'm just 13 incorrect. 14 MR. ABOWITZ: That's a different motion, isn't it? 15 MR. PLOURDE: I think it is. 16 THE COURT: That's right. Well, I don't have it 17 either. 23, 37, 63, 97 and 99, and then we have a 39 down 18 here. 19 MR. SCHOENTHALER: 139. 20 THE COURT: Huh? Is it 139? 21 MR. SCHOENTHALER: The last exhibit in that motion is 22 139, Your Honor. 23 MR. PLOURDE: Judge, if you could just forgive me for 24 that. 25 THE COURT: Huh? 00018 {12:14:40pm} 01 MR. PLOURDE: It was just an outright mistake. The 02 next one on this motion is number 63. 03 THE COURT: 53? 04 MR. PLOURDE: 63, Judge. 05 THE COURT: 63. All right. You're going to offer 06 that for what purpose? 07 MR. PLOURDE: In that -- 08 THE COURT: If they get the survey evidence in? 09 MR. PLOURDE: No, sir, it doesn't relate to the 10 survey evidence at all. 11 THE COURT: Okay. 12 MR. PLOURDE: What this is is a letter from 13 Mr. Siegel to Richard Keeler, who is the president of Urantia 14 Foundation, and basically it does two things. The relevance 15 from our standpoint relates to the Asoka Foundation which was a 16 foundation that was established by Mr. McMullan some years ago 17 to assist in publishing certain Urantia-related material. Part 18 of their evidence, we believe, is to establish that 19 Mr. McMullan has just created all of these front organizations 20 that serve no purpose other than to advance his ultimate goal 21 of depriving them of their copyright. 22 Mr. Siegel's letter says something to the effect that he's 23 talking about circumstances that existed at Urantia Foundation 24 and he says this is why organizations like Asoka Foundation 25 have been founded. We believe it indicates that Asoka 00019 {12:14:44pm} 01 Foundation did serve a legitimate purpose other than to act as 02 a front for Mr. McMullan and we think it's admissible for that 03 purpose. 04 THE COURT: And your objection? 05 MR. SCHOENTHALER: Your Honor, it's hearsay and they 06 can't -- 07 THE COURT: Pardon? 08 MR. SCHOENTHALER: It's hearsay. It's inadmissible 09 hearsay. It's from Mo Siegel who is not going to testify. 10 MR. PLOURDE: It's a document that they produced to 11 us. It's written by -- 12 THE COURT: A Urantia Foundation trustee? 13 MR. PLOURDE: He is now a trustee. I think he was 14 not -- 15 THE COURT: You've made that argument -- huh? 16 MR. PLOURDE: I think he was not a trustee at the 17 time that -- 18 THE COURT: Well, that wouldn't fall within the rules 19 of admission then, statements he made outside the court, unless 20 he was somehow a representative of the -- 21 MR. ABOWITZ: Harry can testify to that. 22 MR. PLOURDE: We would have to put it on through 23 Mr. McMullan or Mr. Keeler. 24 THE COURT: Pardon? 25 MR. PLOURDE: We would have to put it on through 00020 {12:14:45pm} 01 Mr. McMullan or Mr. Keeler. 02 THE COURT: Okay. I'm going to sustain the motion 03 with regard to 63 then. It appears to be classic hearsay. 04 MR. ABOWITZ: But, Your Honor, a recipient of the 05 document will be here as a witness. 06 THE COURT: Well, that wouldn't allow him to testify. 07 MR. ABOWITZ: That he got it? 08 THE COURT: Well, he can testify he got it but he 09 couldn't testify as to what it said if you're introducing it 10 for the purpose of proving the truth. It's a classic hearsay 11 deal. 12 MR. ABOWITZ: Yeah, but we can prove that he got it. 13 It's being offered for a purpose other than the truth of what 14 it says. He got it and he was aware of what it says. 15 THE COURT: Now, that's a boot strap that doesn't 16 make any sense. You say, "Look, we're not offering it for the 17 proof of the truth of the statement therein but he got it and 18 he believed it and so forth." 19 MR. ABOWITZ: I didn't say he believed it. I said he 20 got it and was aware of what it said. 21 THE COURT: And then don't say what it says. You 22 can't put that in. That's what you're trying to convey to the 23 jury is what it said. You can tell him he got an e-mail dated 24 so and so and so and so but you can't recite the hearsay 25 statements made in that, Murray. 00021 {12:14:47pm} 01 MR. ABOWITZ: What if he reacted to it? 02 THE COURT: Huh? 03 MR. ABOWITZ: What if he reacted to it? 04 THE COURT: What kind of reaction are you talking 05 about? "I got it, I read it, and then I called so and so and I 06 said so and so." 07 MR. ABOWITZ: That's admissible. 08 THE COURT: He can testify to that. He can testify 09 to that. There isn't anything wrong with him -- as long as who 10 he was talking to is somebody in the opposing party. There's 11 nothing wrong with that. He's testifying about what he did and 12 what he said. Now, it may have been based upon something but 13 you can't recite what they told him, ergo, I called him. He 14 just said, "I got an e-mail and I called them and said so and 15 so." All right? 16 MR. PLOURDE: Your Honor, if, for instance, they call 17 Mr. Siegel, you wouldn't preclude us -- because he is listed as 18 a witness, and if they call him, you wouldn't preclude us from 19 using it in cross-examination? 20 THE COURT: What he said? 21 MR. PLOURDE: Right. 22 THE COURT: If it's inconsistent or something with 23 what he now says, you can use a previous -- a prior 24 inconsistent statement as you could with any witness. If he 25 said something in writing in an e-mail that's inconsistent with 00022 {12:14:49pm} 01 what his testimony is, certainly you can use that. 02 Okay. Do we need anything further on 39 -- or 63? 03 97? 04 MR. PLOURDE: Your Honor, one of their witnesses is 05 Carolyn Kendall. Excuse me. This is an e-mail from Kwan Choi 06 to another person. Kwan Choi is a trustee. 07 THE COURT: Kwan Choi said she fudges the facts and 08 she's not always complete and her statements are often partial 09 and she fudges facts. 10 MR. PLOURDE: And she's going to be a witness. 11 THE COURT: And she's going to be a witness. Now, 12 are you using -- are you attempting to use Kwan Choi's 13 testimony or statement in here to affect her credibility? 14 MR. PLOURDE: Yes, sir. 15 THE COURT: All right. Now, Kwan Choi is not going 16 to be a witness to this -- you're offering a statement made by 17 Kwan Choi out of court to prove the truth of the statement made 18 therein that she's partial and fudges facts. Why is that not a 19 classic -- 20 MR. ABOWITZ: He's a trustee. 21 MR. PLOURDE: He's a trustee. He was a trustee -- 22 THE COURT: Okay. Now, that's back to the issue of 23 whether he was in such a representative position that it would 24 be an admission against interest. 25 MR. ABOWITZ: Exactly. 00023 {12:14:51pm} 01 MR. SCHOENTHALER: Your Honor, they got this 02 document -- the two people in this conversation are Kwan Choi, 03 a trustee, and Bud Kagan, who is an individual -- who is their 04 witness who they have not called as a witness in this case. 05 The document itself says "Printed for Bud." They didn't get 06 this document from us. I don't know where it is. I don't know 07 if they went and printed it and typed it up themselves. 08 MR. ABOWITZ: Come on. 09 MR. SCHOENTHALER: I have no idea. And they're not 10 going to be able to prove that to the Court. 11 THE COURT: In other words, you're saying the 12 statement, you can't even establish the authenticity or 13 validity of the statement as being Choi's; is that correct? 14 MR. SCHOENTHALER: Yes. 15 MR. ABOWITZ: Subject to that, that's our problem if 16 that's going to be -- if there's an objection to authenticity. 17 THE COURT: You're not going to have Kwan Choi 18 testify? 19 MR. ABOWITZ: No, but Mr. Kagan can testify to the 20 authenticity of it. 21 MR. SCHOENTHALER: He's not -- 22 THE COURT: Whoa, we're getting off into some weird 23 deals. So and so said -- you're trying to attack the 24 credibility of Kendall's testimony, aren't you? 25 MR. ABOWITZ: "Did you get this from Mr. Kwan Choi?" 00024 {12:14:53pm} 01 "Yes, I did." 02 THE COURT: Who are you going to ask that? 03 MR. ABOWITZ: Mr. Kagan. 04 THE COURT: Mr. Kendall? 05 MR. ABOWITZ: Kagan. Kagan. 06 MR. PLOURDE: The person to whom it was sent. 07 THE COURT: Is he going to testify? 08 MR. ABOWITZ: We have taken his deposition. 09 THE COURT: Was it testified to in the deposition? 10 MR. PLOURDE: I don't know, Judge. 11 MR. HILL: I don't believe it was, Judge. On top of 12 that, he's not on the witness list. This is a conversation 13 between a trustee -- 14 THE COURT: Well, I'm really really having difficulty 15 understanding the admissibility of this. 16 MR. SCHOENTHALER: Your Honor, the worst part about 17 it is this is the last part of the e-mail from which -- and I'm 18 going to -- the earlier e-mail from Bud Kagan, which Kwan is 19 responding to, has some very negative things about Richard 20 Keeler. He calls Richard Kyler a scum bag, illegitimate, et 21 cetera. 22 To put this in context, we're going to have to read this 23 into the record. It's prejudicial. 24 MR. ABOWITZ: Most evidence is. 25 THE COURT: Almost all evidence is. 00025 {12:14:55pm} 01 MR. HILL: Too probative, you would say. 02 THE COURT: I'm not worried about the prejudicial 03 effect of it but I am worried about the hearsay aspect of it. 04 MR. PLOURDE: Judge, you know, I understand your 05 point. If we can't properly identify it, then you're not going 06 to let it in. 07 THE COURT: Well, here's what I'm going to do: I'm 08 going to sustain the motion in limine with regard to that 09 exhibit without prejudice to you out of the hearing of the jury 10 and at sidebar conference, if you believe you all can 11 establish -- or that other testimony and so forth has now 12 established some basis for admitting it, I'll let you reoffer 13 it at sidebar. You don't make any reference to it, arguments 14 or anything else and don't make any reference to the jury about 15 it until you've presented it at sidebar and the Court has 16 admitted it. Okay? 17 MR. ABOWITZ: Okay. 18 MR. SCHOENTHALER: Your Honor, next is plaintiff's 19 exhibit 98. 98 is also -- also an e-mail from Kwan Choi -- 20 between Kwan Choi and Bud Kagan, back and forth. I don't -- 21 again, I think if they're willing to stipulate to the same 22 ruling, we can do that. 23 MR. PLOURDE: I think 97, 98 and 99 are all -- 24 THE COURT: All in the same category? 25 MR. SCHOENTHALER: You withdrew 99. 00026 {12:14:57pm} 01 MR. PLOURDE: We withdrew 99. That's right. 02 THE COURT: All right. 97 and 98, subject to the 03 same ruling, without prejudice to your reoffering them at 04 sidebar, but they're sustained. 05 31 -- 131. 06 MR. SCHOENTHALER: Your Honor, this is a long letter 07 dated in '97 from Mo Siegel to trustees at Urantia Foundation. 08 It talks about a lot of things. It talks about -- this 09 occurred -- to put this in context -- during the Maaherra case, 10 right after The Foundation had lost the copyright at the 11 district court level. What it is basically saying is Mo Siegel 12 is saying things such as, "Here I have some great ideas on how 13 maybe we can handle the marks going forward and the 14 copyright." Okay? Unfortunately, he wasn't a trustee at the 15 time. 16 THE COURT: Siegel is not going to be a witness 17 again. Let me get reoriented here. Not going to be a 18 witness. And he's written a letter of some kind that you 19 contend is hearsay and you say he was not in any representative 20 capacity -- 21 MR. HILL: No, he was with Mr. McMullan. 22 THE COURT: -- at the time. What is your kind of 23 exception to the classic hearsay situation? Is it being 24 offered to prove the truth of the statement made? 25 MR. PLOURDE: We have withdrawn Siegel as a witness 00027 {12:14:59pm} 01 just recently in our case in chief. Judge, you know, again, I 02 assume that if we exclude it, it's going to be excluded for 03 purposes of our case in chief. And if they call Mr. Siegel, 04 we're going to be able to cross-examine him on it. 05 THE COURT: Well, I mean, I'm not going to get into 06 that. It depends on what he testifies to and so forth. But 07 I'll just, again, make the same ruling, that it will not be 08 admissible, referred to in any way, exhibit 131, until and 09 unless you approach sidebar and say, "Judge, this is now -- we 10 ought to be able to admit this and refer to it simply because 11 of the testimony that has been brought out on direct." Is that 12 fair enough? Everybody understand it? 13 MR. PLOURDE: Yes. 14 THE COURT: All right. Lay testimony. This is 15 your -- again, your motion. 16 MR. HILL: Right, Your Honor. 17 THE COURT: Outline what it is so we'll have a little 18 understanding. 19 MR. HILL: Sure. Sure. 20 During his deposition, Mr. McMullan testified that he had 21 received advice of counsel regarding the copyright matters in 22 the case but that he was not going to waive the attorney/client 23 privilege. He took that position both in his deposition as a 24 representative of Michael and -- 25 THE COURT: He received and relied upon 00028 {12:15:00pm} 01 attorney/client -- or attorney's advice? 02 MR. HILL: Yes, Your Honor. Those pages were 03 attached to the motion. 04 THE COURT: And would not specify what that advice 05 was or who it was from? 06 MR. HILL: Exactly. Exactly. Now, he did testify as 07 to certain, you know, bases that he had for not liking the 08 Maaherra decision, for disagreeing with portions of the 09 Maaherra decision. I think he said that he -- he said, you 10 know, "How could you have a copyright just because questions 11 were asked," sort of things. And that's fine. Those were 12 disclosed in discovery. But when you get to him coming out and 13 dotting all the i's and crossing all the t's for the jury by 14 drawing a legal conclusion as to what the implications of 15 certain facts are and things like that, those can't come in 16 because -- those are conclusions that for someone who has 17 testified in his deposition that he's -- 18 THE COURT: You're trying to exclude the live 19 testimony of a party to this lawsuit or basically a party to 20 this lawsuit; right? 21 MR. HILL: Portions. 22 THE COURT: To say that he can't testify as to what 23 reasoning he had for taking certain positions, even if that 24 includes his analysis and conclusions with regard to the law? 25 MR. HILL: Yes. The law is pretty well established 00029 {12:15:01pm} 01 in willful infringement cases, Your Honor, that if you rely on 02 an opinion of counsel but you're not willing to disclose the 03 opinion during discovery, you can't then -- you can't then 04 testify as to all of the things that you learned about 05 copyright or patent or trademark law, and that's exactly what 06 he would be doing. 07 THE COURT: And what would he be saying? Give me 08 some examples of what he'd be saying that you want me to order 09 and exclude him or prevent him from saying right now. 10 MR. HILL: Right. I'll give you one example that 11 came up in the deposition, for example, is that he claims 12 copyright on Jesus - A New Revelation. I asked him what the 13 purpose for that was and he said, "My lawyers told me to do 14 it." Other than that, he could not give a response. 15 THE COURT: What do you mean? What did you ask him 16 other than that? 17 MR. HILL: I think what he said was, "I don't know. 18 My lawyers told me to do it," in response to my question of, 19 "Why do you claim copyright on this?" I don't now want to hear 20 him testify on direct to the effect of, you know, the 21 intricacies of why he claimed copyright. 22 THE COURT: This is on deposition that he told you 23 this? 24 MR. HILL: Yes. 25 THE COURT: And he's now saying -- in other words, 00030 {12:15:03pm} 01 you would have his inconsistent statement, wouldn't you, that 02 he said, "I can't remember what it was; he just told me that," 03 but you don't want him now to come in and say, "A, B, C and D 04 was told me by attorney"; is that correct? 05 MR. HILL: That's right, because -- 06 THE COURT: Why couldn't you rely on his previous 07 inconsistent statement? 08 MR. HILL: I could, Your Honor, but he would be -- 09 but what he would be doing is he would be telling the jury 10 things that he has learned through conversations with his 11 counsel that he was unwilling to disclose during discovery. My 12 understanding of the sword/shield rule regarding waiver of 13 attorney/client privilege is that that's impermissible. 14 MR. PLOURDE: Your Honor, this is one of the more 15 dangerous ones that they filed because it is extremely vague. 16 I mean, it just says, "We don't want Mr. McMullan testifying 17 about opinions that he has formed becaused upon his 18 conversations with lawyers." You know, I mean, it really is a 19 difficult -- 20 THE COURT: Counselor, I don't think there's any way 21 I can do that. Now, you'll be given an opportunity to cross- 22 examine, and you'll be given an opportunity to show his 23 previous inconsistent statements, but I don't think there's any 24 way this Court could advance -- in advance of trial, issue any 25 kind of a ruling that would prohibit him from attempting to do 00031 {12:15:05pm} 01 that that wouldn't might not unduly hamper his ability to do 02 it. I just don't think it's a proper motion for -- a proper 03 motion in limine. It's just not a pretrial ruling. You may 04 object at the time he starts to testify, and if there's some 05 basis about determining -- I'm still not sure I can prevent him 06 from so testifying but certainly it would be premature to do it 07 at this time in a preliminary motion. So I'm going to deny 08 that motion in limine and we'll just see how it plays out in 09 court. 10 Motion to exclude testimony that the scope of copyright 11 does not extend to papers consecutively. 12 MR. HILL: We're withdrawing that. 13 THE COURT: Withdraw? Okay. 14 MR. HILL: Yeah, we'll withdraw that, in light of the 15 Court's summary judgment ruling. 16 THE COURT: Okay. Motion to exclude Michael 17 Foundation exhibit 145. Tell me about that now. 18 MR. HILL: Judge, that's a letter that we showed the 19 Court from Thomas Kendall written when he was either the vice 20 president or president of Urantia Foundation. Mr. Kendall is 21 not testifying. What the letter says, what the letter goes on 22 to talk about, is -- 23 THE COURT: Who's the letter to? 24 MR. HILL: Oh, it was a standard type of reader -- 25 THE COURT: Advisory letter? Okay. 00032 {12:15:08pm} 01 MR. HILL: -- correspondence to somebody who had 02 probably written a letter to Urantia Foundation. 03 THE COURT: Okay. Okay. 04 MR. HILL: It's maintained in our reader 05 correspondence files in Chicago. 06 But the objection is that the contents of the letter are 07 Mr. Kendall talking about the book being a divine revelation, 08 talking about the book being exactly as the revelators wanted 09 us to have it, or words to that effect, and it creates the 10 impression -- it creates the impression that it's factual in 11 nature when, in reality, it's clearly based upon nothing more 12 than his spiritual beliefs. And he has -- I don't think 13 anybody believes he has any personal knowledge one way or 14 another as to what happened regarding the formation of this 15 book. They certainly haven't deposed him, and he's not on 16 anybody's witness list. 17 My understanding of the intersection of Rule 602 and the 18 hearsay rule is that if you're going to take an out-of-court 19 statement and attempt to tie it to a party as an admission of a 20 party opponent, then you still have to be able to meet -- lay 21 the foundation that the declarant who you're saying represents 22 the party had personal knowledge to make the statements that 23 are contained in the letter, and that's the threshold that I 24 don't think they can meet because Mr. Kendall is not here to 25 testify. 00033 {12:15:10pm} 01 MR. PLOURDE: Your Honor, this wasn't just met -- 02 this wasn't just sent by Thomas Kendall. This was sent by 03 Thomas Kendall, president of Urantia Foundation on behalf of 04 Urantia Foundation. 05 One of the assertions that they make is that the -- and 06 one of the things that we're going to be trying tomorrow is 07 whether the patient was a mere conduit for, you know, 08 revelations by spiritual beings or whether he should be treated 09 as the author. I'm kind of wondering how they proved he's a 10 mere conduit. I mean, if there's no testimony by the patient, 11 we don't even know -- they don't even disclose who the patient 12 was. And they haven't listed any spiritual beings as 13 witnesses, so I don't suspect that there's anybody with 14 personal knowledge about whether or not this was a pure 15 revelation or whether it was written by the patient is going to 16 be able to testify. There isn't anybody with personal 17 knowledge about that. 18 So, it's apparent that they intend to prove, you know, 19 that it's a revelation and that the patient was just a conduit 20 through documents like the history of the Urantia movement that 21 they contend was written by Dr. Sadler who didn't have personal 22 knowledge of whether or not it was actually written by 23 spiritual beings. I mean, who is going to have knowledge of 24 spiritual beings writing something like that. There's just no 25 way to tell whether the patient placed the words on the 00034 {12:15:12pm} 01 paper -- placed his own words on the paper or whether they were 02 words given to him by spiritual beings. 03 So, they want to pick and choose which of their 04 representatives without personal knowledge they're going to 05 have, in effect, testify, either in person or through 06 documents, as to how these words came to be placed on paper. 07 Thomas Kendall was the president of the organization when 08 he wrote it. He wrote it on behalf of Urantia Foundation. 09 It's a statement by Urantia Foundation. It contains things 10 that are clearly relevant to that issue of whether or not -- 11 THE COURT: The patient was the author? 12 MR. PLOURDE: -- whether or not the patient was the 13 author. And, you know, I think it's clearly relevant and 14 admissible for that purpose and I don't think it's hearsay 15 because it's a statement of a party. And 801(d)(2) says a 16 statement offered against a party, that is, the party's own 17 statement, is not hearsay. 18 THE COURT: I'm strongly inclined to agree with you. 19 Do you all want to offer any kind of rebuttal or 20 response? 21 As I say, I'm inclined to decline the motion in limine. 22 You can object to it at the time of trial, of course. 23 MR. HILL: That's fine. 24 THE COURT: Okay. Motion in limine is denied with 25 regard to that -- to those -- to 145. 00035 {12:15:13pm} 01 Okay. Inflammatory statements regarding prior 02 litigation. Who wants -- 03 MR. HILL: Oh, yes. Your Honor recognized in the 04 order last week that came down granting and denying in part the 05 summary judgment motions that although there is evidence that 06 can clearly come in to show the jury that Urantia Foundation 07 took the position in the Burton litigation or at least did not 08 deny Mr. Burton's position in the litigation that the conduit 09 had written the final versions of all 196 papers, or at least 10 that they were in his handwriting, the Court also recognized 11 that Urantia Foundation did not take the position that the 12 conduit was the legal author of those papers in that case. 13 And our motion is simply -- is not directed to proscribe them 14 from bringing in evidence of what Urantia Foundation did or did 15 not do provided that they could meet the rules for previous -- 16 in its previous litigation, but I am concerned in opening 17 statements and we'll see where it goes from there about telling 18 the jury that Urantia Foundation has contradicted itself by 19 taking the position in Burton that the conduit is the author 20 and then taking the position in Maaherra that the patient was 21 not the author. And that is -- that's what I'm directing this 22 motion to. 23 THE COURT: I have some difficulty understanding 24 precisely what you're going to -- you want this Court to order 25 them to do, but let me hear from you. It doesn't sound like 00036 {12:15:16pm} 01 you're specific enough, and then underlying that it doesn't 02 sound to me like you should be prevented from pointing out what 03 you perceive and arguing to be inconsistent positions. 04 MR. ABOWITZ: That's the issue -- 05 THE COURT: Everybody is nodding so I assume you 06 agree with the Court's postion. 07 MR. HILL: I thought we had a fighting chance reading 08 your summary judgment order, Judge, but I see -- 09 THE COURT: Now, do you unwisely wish to make any 10 additional argument? 11 All right. The Court will deny the motion in limine with 12 regard to statements regarding prior litigation. That's not to 13 authorize or endorse you to make some inappropriate remarks 14 with regard to that but only what you can in good faith contend 15 is an inconsistent position to this with all the inflammatory 16 language you can muster in support of it. 17 All right. I'm being facetious now. 18 I'll just deny the motion in limine with regard to the 19 inflammatory statements motion. 20 All right. Motion to exclude 42, 75, 79, 81 and 85. Who 21 wants to argue that or those? 22 MR. PLOURDE: Those are Benitez; is that right? 23 MR. HILL: Yeah. 24 THE COURT: You withdrew some of those, didn't you? 25 MR. HILL: Yeah. 00037 {12:15:18pm} 01 MR. PLOURDE: We've withdrawn them, Judge. 02 THE COURT: Okay. 03 MR. HILL: Did you withdraw all of those? 04 MR. PLOURDE: 42, 75, 79, 81 and 89, yes. 05 MR. HILL: 42, 75, 79, 81 and 89 is what I show. 06 MR. PLOURDE: That's right. We may need to use them 07 on cross-examination or direct to the extent that they reflect 08 generic use, but as far as listing them as exhibits, we 09 withdraw them. 10 MR. SCHOENTHALER: Your Honor, we would request the 11 same sort of sidebar authentication. 12 THE COURT: Do you have any problem with that, Ross? 13 MR. PLOURDE: No. 14 THE COURT: Okay. That will be the ruling then, that 15 the motion in limine is denied based on the withdrawal of those 16 exhibits but with the plaintiff's right to offer the exhibits 17 at sidebar conference without reference to the jury until such 18 time as they have been admitted. All right? 19 Motion to exclude portions of the deposition of Bernard 20 Dietz. And that's been withdrawn, hasn't it? 21 MR. PLOURDE: Yes. 22 THE COURT: That's moot. 23 Motion to maintain confidential designation of certain 24 documents. 25 MR. HILL: Oh, goodness. 00038 {12:15:20pm} 01 THE COURT: Your motion. 02 MR. HILL: Only because of the way the protective 03 order reads in this case, Judge. 04 I think, you know, reading their response, this is like 05 two ships passing in the night. The protective order you 06 entered, Judge, says that confidential or attorneys-eyes-only 07 documents may be used at trial pursuant to further direction 08 from the Court. 09 The Maaherra protective order, when we facilitated the 10 transfer of certain documents from Maaherra counsel to the 11 other side, we indicated in the protective order that nothing 12 in that protective order would preclude them from using the 13 exhibits at trial, but that was, at least my understanding, was 14 that that would be pursuant to further direction from the Court 15 and that those documents would not lose their confidential or 16 attorneys-eyes-only designation pursuant to Judge Urbom's 17 order, and I don't think anybody's understanding was really to 18 the contrary of that. 19 We put in -- there are two issues here. There is the 20 document-by-document issue. There is also the concern over 21 removing the confidential and attorneys-eyes-only designation 22 on a massive amount of Urantia Foundation's historical files 23 and thereby -- and the implication being that Mr. McMullan 24 would thereby have rights to disseminate those or put those 25 into the public domain. 00039 {12:15:21pm} 01 I litigate trade secrets cases in Georgia and other 02 states, Your Honor, and we frequently have issues regarding how 03 to use confidential exhibits in jury trials. And there are any 04 number of ways to approach this problem. The easiest being 05 that when a confiden- -- that if and when a confidential 06 exhibit comes in, the Court can simply -- can -- or the party 07 who's seeking protection of the confidentiality of the 08 attorneys-eyes-only document can bring it to the Court's 09 attention and the Court can review the document at that time 10 and decide whether or not any measures need to be taken in 11 order to permit that document to be shown to the jury or 12 brought into evidence, or -- and that's not even the main 13 problem. The main problem is when you have a witness who wants 14 to testify about the contents of a protective document and at 15 that point in time we can take it up on a case-by-case basis 16 rather than trying to make a sweeping ruling. 17 THE COURT: Well, that concerns me from a time 18 standpoint. I don't want to get into 100 different arguments 19 and lawsuits about a pro forma order. I'm going to be real 20 frank with you. I sign confidential orders presented by 21 agreement of the parties frequently. Now, if either party 22 wants to withdraw that confidentiality, if they can give me 23 some reason for doing so, I'm inclined since they agreed to it 24 in the beginning, and I won't sign them hardly -- I have to 25 have a dad-gum good reason to sign them over objection of the 00040 {12:15:23pm} 01 parties. 02 This was a confidentiality order signed by agreement -- I 03 mean presented by agreement of the parties. Now, what -- I 04 want to see what you want to withdraw the confidentiality on 05 and for what purpose and what reasons the confidentiality, if 06 any, would hurt either of the parties. 07 As a general rule, rather than try to deal with it -- 08 hell, this damn lawsuit threatens to go longer than I want to 09 go with it as it is, let alone having 50 issues a day on 10 whether or not this document ought to be unsealed. 11 Now, tell me generally what you don't want them to unseal 12 and then I'll ask them why they want to do that and whether I 13 should do that or not. Just tell me generally. You don't want 14 them to unseal any of it, do you, or to admit any of it; right? 15 MR. HILL: We didn't have -- we didn't have 16 objections to some, and I think those we can set aside. 17 They're asking -- 18 THE COURT: Certainly you all can sit down and agree 19 to those that you don't have objections to? 20 MR. HILL: Right. We've already agreed that -- 21 THE COURT: Okay. Now, tell me the ones that you're 22 objecting to here. 23 MR. HILL: We are opposed -- We are opposed to the 24 correspondence with -- the private correspondence that Urantia 25 Foundation has had with its readers/customers over the years 00041 {12:15:25pm} 01 because, in toto, releasing those documents provides a very 02 valuable service to someone who is marketing a book that is in 03 competition with The Urantia Book. 04 THE COURT: Explain that to me. 05 MR. HILL: Because the identities of all of the 06 persons who have purchased The Urantia Book are included in 07 these files. 08 THE COURT: In other words, you just want them to 09 have a buyers list then; is that correct? 10 MR. HILL: Well, they have a de facto buyers list in 11 their possession right now if they wanted to combine -- if they 12 want to go to the trouble of taking the information off. 13 THE COURT: You all then agree that this was 14 confidential to begin with? 15 MR. PLOURDE: No, Your Honor. Let me clear that up. 16 We agreed to the entry of the confidentiality order. The 17 confidentiality order says that they can just designate 18 anything they want to as -- provided in their opinion it falls 19 within certain guidelines. They can designate whatever they 20 want to as confidential. So we don't participate in the 21 designation of it as confidential. And then our remedy is to 22 say, "We don't think that's confidential," and they have to 23 come to you to get it determined to be confidential. 24 Now, within that framework, what they're talking about 25 here are -- what they believe is confidential are the names of 00042 {12:15:27pm} 01 the people that they sent letters to, and we don't particularly 02 care to use the names. We'll be happy to, you know, obliterate 03 the name from the exhibit. It's the person who sent it that's 04 important to us and what they're saying in the letter as 05 opposed to the person to whom they sent it. So, if that's all 06 they're concerned about, we'll be happy to take a black -- they 07 did it in most cases anyway -- take a black magic marker and 08 mark through the name and address of the person to whom it was 09 sent. 10 THE COURT: Would that moot the problem? Are you 11 concerned about the statements being made as being used against 12 your interests and so forth? Is that what your main concern 13 is, as opposed to some business reason for confidentiality? 14 MR. HILL: No. Our main concern, Judge, to be frank, 15 is that if the confidentiality is listed -- is lifted off of 16 these documents, that we're going to see them en masse on the 17 Internet tomorrow, the whole history of everything that Urantia 18 Foundation has ever said or done in its course of business. 19 They agreed that -- 20 THE COURT: I may have misunderstood the mechanics of 21 this, but you're agreeing that the names of the people 22 receiving this can remain confidential -- 23 MR. PLOURDE: Sure. 24 THE COURT: -- but you want the information that was 25 sent out to no longer be treated as confidential? 00043 {12:15:28pm} 01 MR. PLOURDE: That's right, Judge. The letters 02 saying, you know, stuff like, "No human being authored The 03 Urantia Book." Well, you know, I've got them here, Judge. We 04 asked to file them under seal because until you rule that 05 they're not confidential, we've got to do that. I haven't 06 gotten an order back authorizing -- 07 THE COURT: Well, can we unseal them in every respect 08 except the recepient's -- the name and address of the 09 recipient? 10 MR. HILL: Judge, do you have the motion that we 11 filed, or the declaration? 12 MR. PLOURDE: I had my legal assistant bring it over. 13 MR. SCHOENTHALER: Your Honor, one of the reasons 14 they have been so protective is Maaherra, the plaintiff in that 15 case, Maaherra, chose to take all -- we gave her open discovery 16 to take with these documents and she posted them all on the 17 Internet. You know, these are -- a lot of these are old 18 documents. 19 THE COURT: I understand that. What I'm trying -- 20 listen, I'm not an authority on the Internet but I'm attempting 21 to get an understanding or an agreement here that they won't or 22 can't do it, and if they do, if they do, with that is a concern 23 that if somebody else does it for you, you're liable to be in 24 trouble with the Court. 25 MR. PLOURDE: We're talking about the names? The 00044 {12:15:30pm} 01 names of the people? 02 THE COURT: Let me understand that. Yeah, the names. 03 MR. PLOURDE: Yeah, that isn't going to help. 04 MR. HILL: Judge, there are a number, now that I have 05 the motion in front of me, there are a number of categories of 06 objections that we had to different exhibits and I've got them 07 broken down, and this will make it a lot easier. 08 There is also the -- in terms of the -- what we're mainly 09 talking about here are the client correspondence largely 10 protected under the terms of the Maaherra protective order. We 11 think that the contents -- We think that the contents of the 12 documents are related to our business. We think that that's 13 consistent with the provision that we agreed to at the 14 beginning that said that proprietary and business contents 15 would be able to be designated as confidential with more 16 financial information being confidential attorneys-eyes-only. 17 When I agreed to permit or facilitate the exchange of 18 documents from Mr. Lewis, Ms. Maaherra's attorney, to 19 Mr. Plourde, those documents are protected under an entirely 20 different agreement and by an entirely different order. Judge 21 Urbom's order was different. It was negotiated differently. I 22 certainly believe that it was broader and I think that we can 23 agree on that based on how difficult it was to negotiate the 24 protective order. 25 THE COURT: Well, I understood there was some 00045 {12:15:32pm} 01 argument as to whether or not this would be undermining Judge 02 Urbom's orders. 03 MR. HILL: Yeah, we're not saying the documents can't 04 be used, Your Honor, and certainly we appreciated the 05 willingness to redact, but the story remains the same on our 06 side, which is that the contents of these documents -- you take 07 like their exhibit 53, it's not just a letter, Judge. Exhibit 08 53 is 100 letters that say -- that contain the contents of 09 things that Urantia Foundation representatives have discreetly 10 said in private correspondence with either a reader or customer 11 of Urantia Foundation over a span of 50 years. 12 Essentially, what they're asking, Judge, is that in asking 13 you to lift -- essentially lift the Maaherra protective order 14 is let -- I mean, when this is all over, their client has a 15 complete set of our correspondence files and our reader 16 correspondence. And with or without the specific names, it 17 still tracks a history. And we will see on the Internet, I 18 assure you, a breakdown at some point of everything every 19 Urantia Foundation representative has said about one thing or 20 another and noting every single inconsistency that's ever been 21 out there. That's just the way this goes. 22 THE COURT: Well, -- 23 MR. HILL: So, in terms of the reader correspondence, 24 we're -- 25 MR. ABOWITZ: I hope that will be in the public 00046 {12:15:33pm} 01 record of this case, Judge. 02 THE COURT: Let me hear a response from -- 03 MR. HILL: That's the nature of organizations. 04 THE COURT: Nothing he says scares me all that much. 05 I'll be real frank. Maybe I'm not as concerned as I should be 06 about confidentiality and about the adverse impact of 07 correspondence that was completely within your control. In 08 other words, there may be some admissions or relevant state- 09 ments therein that bears on this case, and I can understand why 10 you might think it's detrimental to your business but it isn't 11 apparent to me, what it is. 12 MR. SCHOENTHALER: Your Honor, if this was Dowe 13 Chemical and Dowe Chemical was sending letters to their 14 purchasers or suppliers and they were done in the ordinary 15 source of business and they sent them all the time over a 16 period of years and Dowe Chemical was sitting here saying, 17 "Your Honor, these are confidential documents and we take steps 18 to protect them and we consider them integral to our business," 19 would you look at this any differently? 20 THE COURT: Well, I'm not sure I would. That's my 21 problem, that I may not be as respectful as what ought to be or 22 allowed to be protected as confidential. 23 MR. ABOWITZ: Judge, with respect to that argument -- 24 THE COURT: And this is not Dowe Chemical, aside and 25 apart from that. 00047 {12:15:35pm} 01 MR. ABOWITZ: All the asbestos documents, all the 02 tobacco documents, all the fen-phen documents, all the Agent 03 Orange documents went through that same argument and they were 04 rejected universally. 05 MR. HILL: Well, could we agree, Judge, that the 06 documents could retain their designation for purposes outside 07 the presentation of the documents during the course of the jury 08 trial? Because that -- because I'll tell you my one concern is 09 there's an ulterior motive to this, that it's not just about 10 trying the case. That they agree to the protective order, they 11 agree that our business information can be designated 12 confidential, we get into a jury trial and they then ask the 13 Court to lift the confidentiality designations because they 14 need to use it in the litigation but in reality they have 15 ulterior motives in mind as well. And I think if we can agree 16 if they can bring it up, they can use it freely during the 17 course of the trial, but that otherwise those documents retain 18 their designation so that -- 19 THE COURT: Let me put it this way: You all agreed 20 to the confidentiality agreement to begin with; right? 21 MR. PLOURDE: Sure, we did. And -- I'm sorry. 22 THE COURT: But now you come in and say, "We want it 23 lifted for purposes of this litigation." 24 MR. PLOURDE: We want it lifted for these documents. 25 THE COURT: For these documents. For the purpose of 00048 {12:15:37pm} 01 using some of them in the litigation. Why would you have any 02 objection to restricting any further use of them? 03 MR. PLOURDE: Your Honor, the only objection that I 04 have to that is that these documents are going to be offered as 05 evidence, they're going to be part of the public record, 06 they're going to be used -- if the case is appealed, they'll be 07 used on appeal. People can certainly go to the public record 08 and get it and I just don't want Mr. McMullan exposed to the 09 argument that, "You did it," when, you know -- 10 THE COURT: Well, if I lift the confidentiality for 11 the purposes of this litigation and then it gets into the 12 public record as a part of the transcript or anything else, 13 there isn't any -- you can't possibly have any complaint to 14 that. I think we've got -- 15 MR. HILL: That's true. We can always come back and 16 file a motion to seal if there's anything from an exhibit 17 standpoint that wasn't -- 18 THE COURT: I think that we've got a basis for an 19 accommodation here. I'm not too protective of their concerns, 20 and I think you can detect that. But, by the same token, in 21 view of the fact that we have a confidentiality order and I'm 22 going to lift it to some degree, if we can get an accommodation 23 in that regard, I don't mind imposing some restriction. 24 Now, I think it's just this, that my order will say the 25 confidential designation is lifted insofar as this litigation 00049 {12:15:40pm} 01 is concerned but that it is not lifted for any other purposes. 02 MR. HILL: Your Honor, can I make some arguments 03 regarding some specific documents that are more sensitive than 04 just the reader correspondence? 05 THE COURT: Okay. Let's hear them. 06 MR. HILL: Because, you know, we have identified the 07 reader correspondence but I want to talk about some specific 08 intra-Foundation memos and some specific Foundation business 09 dealings that -- 10 THE COURT: Let me get a framework. You're saying 11 some of these documents should remain confidential even for 12 purposes of using them in this litigation; is that what you're 13 saying? 14 MR. HILL: Yes. 15 THE COURT: All right. Make your case, because 16 you've got an uphill climb, counselor. 17 MR. HILL: I appreciate your candor, Judge. 18 There is -- exhibit 7 is an e-mail between two trustees 19 who are -- 20 THE COURT: Could I have a copy? 21 MR. HILL: It might be helpful if I just showed you 22 that. 23 THE COURT: Go ahead. 24 MR. HILL: This is a detailed e-mail between two 25 disagreeing trustees who are infighting with one another over 00050 {12:15:41pm} 01 one matter or another, or probably more likely has something to 02 do with a philosophical outlook on life. It's expressed 03 between two trustees and possibly CC'd to others on the board. 04 There's no reason to put political information into the 05 public record even for the purposes of this trial. And I would 06 suggest that in the event that they do want to use that, we 07 ought to take exhibit 7 up at that time and look at the 08 confidentiality. 09 THE COURT: What's the relevance of 7 and what is 10 your purpose for asking that the confidentiality be removed and 11 your using of it, if any? 12 MR. PLOURDE: Your Honor, I don't think -- I don't 13 mean to be disrespectful, and I guess I'm explaining why I'm 14 not going to be very capable of going into, in detail, the 15 relevance at this point. It hasn't been put at issue at this 16 point. You know, generally, based on what Mr. Hill is -- 17 Murray is going to help me with the reference -- 18 MR. HILL: I disagree with that, Judge. It's in 19 section 8 of the declaration of Mindy Williams that we filed 20 along with this that specifically outlines this as an e-mail 21 between two disagreeing trustees that falls within category 1 22 protection, which is intra-Foundation business communications, 23 under the protective order. 24 MR. PLOURDE: I understood that the issue presented 25 by their motion in limine on confidentiality was the 00051 {12:15:44pm} 01 confidentiality of it as opposed to the relevance of it. 02 That's what I was trying to be prepared to address. 03 Judge, you know, I don't think there's anything in there. 04 I mean, the fact that they are disagreeing about how you 05 approach this, I think, is, in and of itself, irrelevant. As 06 far as whether that kind of a disagreement is confidential, I 07 mean, that's exactly the kind of stuff that you want to be able 08 to present at trial. 09 MR. HILL: Whoa, whoa, whoa, whoa. They're not 10 disagreeing over anything about this lawsuit. They're just 11 disagreeing about the running of the business of Urantia 12 Foundation. If this was a memo between two board of 13 directors (sic) -- 14 THE COURT: What you're arguing now then is an 15 objection to the relevancy of this? 16 MR. HILL: Well, I'm saying, I mean, we ought to look 17 at this on a little bit of a sliding scale given the protective 18 order's provisions are specifically cover matters pertaining to 19 business which is not generally known and which the designating 20 party would not voluntarily reveal the third party. Somebody 21 would have to give us a subpoena to get that, and they would 22 only get it under a protective order at that. So, given that 23 that's the standard, I mean, why do they need to use it? The 24 reason why they're saying that they ought to be exempt from the 25 agreement that they made from us is that they want to use it at 00052 {12:15:46pm} 01 trial. So I think for the more sensitive information that we 02 don't want leaking out, we ought to be entitled to an 03 explanation of exactly how they are going to use it before the 04 Court enters an order that just slap, you know, removes -- 05 pulls the sticker of confidential off the document. 06 THE COURT: Murray? 07 MR. ABOWITZ: It addresses The Urantia Book which is 08 an issue here. It also addresses the publication of this book 09 in parts, which is also a critical issue in this case, whether 10 it is a work that is unitary in nature or it can be separated, 11 and we think that's relevant. 12 Insofar as the protective order is concerned, if they want 13 a protective order, they can have it, but we ought to be 14 allowed to show it to the jury at the appropriate time. 15 THE COURT: Okay. Here's my ruling: I'm going to 16 deny the motion to maintain confidential designation of the 17 documents that they've listed here but with the caveat that the 18 names and addresses of the recipients will be redacted or in 19 some way protected from public use, and you all can work on the 20 details of that. 21 MR. HILL: Can we also get the understanding that it 22 can't be used for purposes other than this litigation by their 23 clients? 24 THE COURT: Do you have any problem with that? 25 MR. ABOWITZ: Well, it's the same problem that 00053 {12:15:48pm} 01 Mr. Plourde disclosed to the Court earlier. We have no control 02 over it. We don't want the ire coming back to us that we did 03 it when it's in some public realm that somebody can get hold of 04 it and do it. 05 MR. HILL: Well, Judge, with all due respect, I mean, 06 I'm going to be at the trial and I'm going to see what actually 07 comes into the public record and what doesn't and we can always 08 come in after the trial and file a motion to seal any exhibits 09 that are -- that are introduced. 10 MR. ABOWITZ: Then that's the way to handle it, 11 Judge. 12 MR. HILL: Well, I agree with that, but in the 13 interim, motions to seal take time and have to be ruled upon. 14 In the interim, you distribute a copy of everything that's in 15 the public domain for a brief window of time and then, you 16 know, -- 17 THE COURT: All right. Now, I don't know how to 18 limit from interim use and so forth. Can that be done 19 effectively? 20 MR. HILL: Judge, I think it ought to be that they 21 can use it for the -- I think the order ought to be that they 22 can use it for the purposes of the trial only and that 23 otherwise you're not impacting either Judge Urbom's ruling in 24 the Maaherra case or the confidential designation that's placed 25 on the -- 00054 {12:15:50pm} 01 THE COURT: Is that growing out of the fact that it's 02 now confidential by an agreed judgment, order to that effect, 03 or what? 04 MR. HILL: Well, respecting Judge Urbom's order which 05 remains in effect is a part of it, Judge. And the other part 06 of it is the prevention of any ulterior motive. We don't know 07 and I suspect, when push comes to shove, that they are not 08 going to use every one of these. I mean, this is 1,000-plus 09 pages of document. I pray they're not going to use them all. 10 MR. ABOWITZ: We're not. 11 MR. HILL: Yeah. And so what this order 12 accomplishes, Judge, is that those things that are really 13 essential to their case that they really do need to use, they 14 get in. But, otherwise, there's no reason to lift these 15 designations and thereby create a Pandora's Box issue for The 16 Foundation. 17 THE COURT: All right. Let me express my general 18 skepticism down through the ages about confidentiality 19 provisions and settlement conferences and everything else. It 20 has been my experience that they're almost impossible to 21 enforce. It just doesn't happen. I don't mind attempting to 22 restrict this and ordering the attorneys not to use them or 23 release them for any purposes other than their use in this 24 litigation but, in all fairness, I don't know what kind of a 25 sanction or a problem that I could ever use to enforce it in 00055 {12:15:52pm} 01 the event that they do get out in the interim. 02 Now, -- 03 MR. HILL: Well, if we see all our documents on an 04 organizational web site in two weeks that's related to 05 Mr. McMullan, I will concede that we might be on stronger 06 footing than if -- 07 THE COURT: I can't think of anything I would enjoy 08 more than the possibility of sentencing both Ross and Murray to 09 some sort of severe sanction but I -- 10 MR. ABOWITZ: Could we get good behavior? 11 THE COURT: I'm being facetious here. 12 I really don't know how to handle this. Quite frankly, 13 I'm inclined to just lift the confidentiality for the purposes 14 of this trial with the agreement of counsel that they'll redact 15 the attorneys -- I mean the addressees and addresses and so 16 forth and let it go at that. And then you can move for 17 reimposition of anything, and it may be after the horse is out, 18 but -- now, do you have any suggestion how you can even 19 partially or the Court can partially accommodate him on this? 20 MR. PLOURDE: Judge, you know, we certainly -- I 21 think -- 22 MR. ABOWITZ: I can tell the Court, as an officer of 23 the court, that I will use my best efforts to restrict the 24 document. I want to use it for the purposes of the trial, if 25 it's used. I have no desire or intention to hold a press 00056 {12:15:53pm} 01 conference out here with these documents. 02 THE COURT: Well, of course, there's some ill feeling 03 and some litigation history here between your clients and them 04 but I don't know how we can restrict them from using them. 05 MR. HILL: Well, Judge, can I -- let me bring one 06 more. They have, among other things, Urantia Foundation's 07 internal files regarding an author that we've brought to the 08 Court's attention, a J. J. Benitez. In those files, it 09 contains some analysis and some internal memoranda between 10 employees of Urantia Foundation regarding things like whether 11 they view this as copyright infringing or things like -- or 12 things like that. 13 Can we at least go through some of these sensitive things 14 -- there's maybe just a handful -- and see whether or not they 15 really -- I mean, they've backed down on the Benitez exhibits 16 that they had and I don't see what -- you know, what the point 17 is in doing a blanket lifting of this protective order. I 18 mean, in some sense, for them to file this -- or force me to 19 file this right before trial, I don't get the opportunity to do 20 a detailed breakdown for the Court of all the exhibits. 21 THE COURT: Benitez wrote a couple of books, didn't 22 he? 23 MR. HILL: Right, a handful of books. And we have a 24 file on him. 25 THE COURT: You have a file on him? 00057 {12:15:55pm} 01 MR. HILL: It's exhibit 42. 02 THE COURT: He was kind of a little bit in the same 03 position that your client is in; is that right? 04 MR. PLOURDE: If I could suggest this, Judge. If we 05 don't use it at trial, we'll keep it confidential. You know, 06 if it's not offered and admitted at trial, we'll continue to 07 maintain their confidentiality. That would cover Benitez. 08 THE COURT: All right. I think the way I want to do 09 it is have that understanding and when we get to a particular 10 document that they intend to offer, I'll give you an 11 opportunity to object to the lifting of the confidentiality 12 with regard to that one. 13 How many are you going to offer? Do you have any idea? I 14 may get into a ton of these things. 15 MR. PLOURDE: We've pared it down quite a bit. 16 MR. ABOWITZ: We've pared down substantially. 17 THE COURT: That would be in your case in chief, 18 wouldn't it? 19 MR. ABOWITZ: Yes, sir. 20 MR. PLOURDE: There are a couple that Steve 21 graciously pointed out that -- 22 THE COURT: All right. I'm not going to maintain the 23 confidentiality of any document that they want to use for them 24 to offer. 25 Now then, what about the -- will you agree not to refer to 00058 {12:15:57pm} 01 them in opening statement and all that sort of thing until the 02 Court has admitted them and so forth? That would give you the 03 right to use it in closing argument but not in the opening 04 statement. 05 MR. HILL: Let me make a proposal that I hope will be 06 acceptable because I think when push comes to shove, you're far 07 more interested in the reader correspondence. 08 MR. ABOWITZ: I like some of this other stuff. I 09 think a jury will too. 10 MR. HILL: All right. Then my suggestion -- 11 MR. ABOWITZ: Let me hear the suggestion. 12 MR. HILL: What I was going to suggest was that we 13 wouldn't have any objection to the characterization of things 14 that have been said in letters or correspondence between 15 Urantia Foundation and third parties. 16 MR. ABOWITZ: That's fair. 17 THE COURT: That's probably a pretty good idea, that 18 we intend to offer evidence rather than to specify exactly 19 because you haven't got that evidence admitted yet, but just to 20 say, "We hope and expect to offer testimony or evidence, such 21 and such," rather than going into great detail. 22 Okay. Are we pretty well set now? Even on the ones you 23 offer, it won't contain the names of the recipients and 24 addresses, and they can object to the lifting of 25 confidentiality on those particular ones. 00059 {12:15:58pm} 01 MR. PLOURDE: (COUNSEL NODS HEAD) 02 THE COURT: And they'll not be characterized in 03 opening statements other than we've mentioned right here. Fair 04 enough? 05 MR. ABOWITZ: Yes. 06 THE COURT: Well, maybe we have stumbled through 07 that. 08 All right. Michael Foundation's motions in limine. 09 Motion to bifurcate. I'm pretty inclined to not allow that. 10 I'll hear you briefly on it though but I probably won't pay too 11 much attention. 12 MR. PLOURDE: I'm sorry. Tell me again. 13 THE COURT: Motion to bifurcate. 14 MR. PLOURDE: Motion to bifurcate. That's Murray's. 15 THE COURT: Damages are not a big issue. They're 16 going to be hard to instruct on maybe and it might be simpler 17 for the jury -- and I am concerned about the complexity of this 18 case as far as the jury instructions and everything is 19 concerned. But the evidence with regard to damages is not 20 going to be very extensive, is it? What will it amount to? 21 MR. HILL: A couple hundred books, I think, have been 22 put out there before the -- before -- 23 THE COURT: I mean, how much evidence, how much time 24 are we talking about? 25 MR. HILL: We're talking infinitesimally small. We 00060 {12:15:59pm} 01 have no damages witnesses, per se. You know, I mean, 02 Mr. McMullan will probably -- I would imagine that in his 03 direct he'll put in most of the evidence that we're going to 04 use to rely upon for our damages case. 05 MR. ABOWITZ: I thought they had a guy that was going 06 to come in here and say that we deprived them of billions of 07 dollars of sales in this book. 08 MR. HILL: If you're referring to Dr. Rushing, my 09 economist who is lecturing in Cairo right now, I think the 10 Court has pretty much already taken care of him. 11 THE COURT: What did we do to him? 12 MR. HILL: Well, I mean, he may come but he is not a 13 damages -- he's not a damages -- he's going to testify as to 14 the quantification of damages. Judge, I really anticipate that 15 when we get to the point where it's time to instruct the jury, 16 we're probably going to elect for statutory damages, which is 17 purely within the discretion of the Court. 18 THE COURT: Okay. I'll deny the motion to bifurcate 19 at this time. Of course, if we're going to bifurcate, we'll 20 have to do it before the trial starts. But there won't be much 21 argument in opening statements with regard to damages, will 22 there? 23 MR. HILL: We're also amenable, Judge -- I mean, in a 24 complex case like this, if the Court wants to -- I noticed in 25 reading the special interrogatories and verdict form and 00061 {12:16:02pm} 01 proposed instructions of the Court, we have no objection to 02 segmenting the instructions and asking the jury to deliberate 03 in phases. 04 THE COURT: We'll consider doing some things like 05 that as we go along. We don't have to decide that before the 06 trial starts. 07 But I'll just deny the motion to bifurcate at this time. 08 We'll start with that. 09 Okay. The next one is trial depositions taken in these 10 other cases. What's your position with regard to those? Not 11 the same lawsuit? 12 MR. PLOURDE: Not the same lawsuit. 13 THE COURT: Not res judicata, not collateral 14 estoppal, not anything, and you don't want them read? 15 MR. PLOURDE: Right. 16 THE COURT: Just a separate lawsuit and so forth? 17 MR. PLOURDE: That's right. 18 THE COURT: And your argument is? 19 MR. SCHOENTHALER: Our argument is a little more 20 complicated than that. We look at the rules. 21 THE COURT: That's a dangerous thing to do. 22 MR. SCHOENTHALER: We're withdrawing the Schrader 23 deposition, so this is only going to be on Helen Carlson. 24 Helen Carlson, just to give you a flavor of her testimony, 25 was a Forum member. She died after giving a deposition in 00062 {12:16:04pm} 01 Maaherra. I believe it was in '94 she gave the deposition. 02 They state -- I mean, basically this falls under 804, former 03 testimony. Now, for 804, former testimony, you have to have 04 three things. You have to have that the witness is 05 unavailable. Well, Helen Carlson is deceased. The deposition 06 has to be in compliance with the law. I don't think there's 07 any problem that the deposition was in compliance with the 08 law. It comes down to one issue, and that is the third factor 09 of 804, which is it has to be a predecessor in interest, having 10 opportunity and similar motive to develop testimony. But the 11 case law is clear; predecessor in interest is not a privity 12 issue. It is someone who had -- they collapsed the two. 13 There's cases in the Sixth Circuit and the Eighth Circuit that 14 have basically -- and they're the leading cases -- the Tenth 15 Circuit cites those cases for the proposition that the two 16 factors, predecessor in interest and similar motive and 17 opportunity to develop testimony are collapsed into similar 18 motive and opportunity to develop testimony. It's not 19 identical motive but a similar motive. 20 Now, to say that in Maaherra, where she was seeking to 21 have the copyright invalidated and this case where they're 22 seeking to have the copyright invalidated, if there's not a 23 similar motive to cross-examine then I don't know what is. 24 They argue that they're diametric- -- that their positions are 25 diametrically opposite of Maaherra. Well, that's not true. 00063 {12:16:06pm} 01 Maaherra argued that the conduit was the author during the 02 trial. She also -- now, there's another position: the common 03 law assignment. They are saying there was no common law 04 assignment. Maaherra said there was no common law assignment. 05 I mean, how similar do we have to get? 06 MR. HILL: Judge, I was involved in the Maaherra case 07 and I will tell you that Mr. Lewis played every angle in the 08 discovery phase and we did not know what position Ms. Maaherra 09 was taking on specifically why the renewal copyright was 10 invalid until we saw his summary judgment motion. If the Court 11 reviews Judge Urbom's order granting that motion below, the 12 Court will see that Judge Urbom was looking very closely at the 13 evidence that Mr. Lewis surmised about the conduit and his role 14 in this process in denying both the composite work and the 15 work-for-hire theories in that case. 16 I think in the Helen Carlson deposition, Mr. Lewis's 17 questions were about twice as long and exhausting as the 18 questions that she was asked from Urantia Foundation which 19 primarily had to do with the custody of the papers on the 20 premises of Dr. Sadler's residence and offices and the role of 21 the questions. 22 We would be significantly prejudiced, I believe, if we're 23 not able to read the deposition to the jury. 24 THE COURT: Let me ask y'all. Is your main objection 25 that it was in a different lawsuit as opposed to her being 00064 {12:16:08pm} 01 unavailable? I mean, if she had given the deposition, 02 identical deposition in this case, and then died, you wouldn't 03 have any problem with her deposition being used? 04 MR. PLOURDE: No. 05 THE COURT: All right. Why not in that other case 06 then? 07 MR. PLOURDE: Well, Judge, they say it's the same 08 case. It really isn't. I mean, as the Court has noted, what 09 was placed at issue there was -- and I don't know what Mr. Hill 10 thinks Mr. Lewis was thinking but I think it's pretty clear 11 from Mr. Lewis's perspective that Kristen Maaherra was not 12 going to let Mr. Lewis argue that the patient was the author. 13 She firmly believed that these were spiritual revelations 14 written by spiritual beings and that was the entire thrust of 15 her case. That's exactly the opposite. I mean, that's what 16 they're arguing here, is that the spiritual beings were the 17 authors of this and they helped compile that but the author -- 18 but the patient had nothing to do with that. 19 To stick us with the deposition that was defended by a 20 lawyer who was trying a different case from what we're trying, 21 not just a different litigation but trying a different case 22 from the case that we're trying, I think it's just unfair and I 23 don't think it's permitted under the law. 24 MR. SCHOENTHALER: Your Honor, if what Mr. Plourde is 25 saying is true, it ought to help their case. If Mr. Lewis was 00065 {12:16:10pm} 01 arguing that -- I mean, if we were arguing it was the author, 02 they ought to be able to use our direct. 03 THE COURT: I reviewed some of her deposition 04 testimony. How much are we talking about? 05 MR. SCHOENTHALER: 48 pages. 06 MR. HILL: 10 minutes. 07 MR. SCHOENTHALER: Oh, yeah. 08 THE COURT: Are you going to read all of it -- 09 MR. SCHOENTHALER: No. 10 THE COURT: -- or just portions of it? 11 Have you designated portions of it? 12 MR. HILL: We need to take that up today, Your Honor. 13 Neither side has designated. 14 THE COURT: I'll tell you what I'm going to do, I'm 15 going to take this under consideration, keep it under 16 consideration. It will be -- Will it be in your -- 17 MR. HILL: Case in chief? 18 THE COURT: It wouldn't be in the case in chief to 19 begin with. 20 MR. HILL: Right. 21 THE COURT: I'm going to take this one, the 22 deposition matter, under consideration. You all designate or 23 attempt to designate what portions you're going to use and then 24 give me any additional authority that you haven't already 25 provided with regard to this that you want to, if you can, 00066 {12:16:11pm} 01 overnight, and then I'll take another look at it. Okay? 02 MR. HILL: Thanks, Judge. 03 THE COURT: All right. Now, we've got the expert 04 testimony, I believe. Now, there were two of those, wasn't 05 there, previous unrelated actions? Wasn't there two 06 depositions? 07 MR. HILL: We're not going to offer Schrader. 08 THE COURT: Okay. It's moot then. 09 MR. HILL: Yeah, at least for now. We don't 10 anticipate doing it. 11 THE COURT: The only one then that I've got under 12 consideration is the one -- 13 MR. SCHOENTHALER: Helen Carlson. 14 THE COURT: What was her name? Kendall? 15 MR. HILL: Helen Carlson, right, the deposition. 16 THE COURT: Okay. Carlson, Helen Carlson. You all 17 designate, and if they look at that, they may or may not want 18 to object. If they do, I'll make a ruling on it. 19 MR. HILL: Your Honor, can we designate -- can we 20 agree -- do you all have any issue with agreeing to go ahead 21 and designate all portions of all depositions that you might 22 offer and that we might offer so that each side can have a 23 little bit of advance notice in case you want to take advantage 24 of the contents? 25 MR. ABOWITZ: Sure, sure. 00067 {12:16:13pm} 01 THE COURT: Okay. Motion to exclude testimony from 02 expert witness Elizabeth Engstrom. 03 MR. HILL: Judge, Ms. Engstrom -- Mr. McMullan -- 04 THE COURT: She is a literary analyst; is that 05 correct? 06 MR. PLOURDE: Well, she's an author. 07 THE COURT: I mean, that's the, quote, expert being 08 offered. What is a literary analyst? 09 MR. HILL: Somebody who analyzes writing style. 10 THE COURT: Somebody that can read writing? 11 Nobody mentioned Daubert or anything else but I really am 12 concerned about what my gatekeeping role is in this area and 13 why -- I'll be real frank with you, until Daubert and Khumo 14 came along, we were pretty liberal about letting almost anybody 15 who came in here and said they could read and write give their 16 opinions but obviously the gatekeeping role has risen somewhat 17 dramatically. I'm no expert on Daubert and Khumo but I do know 18 this, that you can't just let anybody come in here with a, 19 quote, junk scientist theory and say, "I believe, I believe, I 20 believe." It seems to me that someone -- You want her to 21 testify that she can tell whether one or five people or 10 22 people or 70 people contributed to a literary work; is that 23 correct? 24 MR. HILL: Well, that's what her opinions were. I 25 think what we're -- 00068 {12:16:14pm} 01 THE COURT: That's what you want her to testify to. 02 You want her to give her opinion that more than one person -- 03 well, tell me what testimony you're going to -- 04 MR. HILL: That there's evidence -- That there's 05 evidence in the book itself that there's multiple authorship. 06 THE COURT: That's her opinion then? 07 MR. HILL: Yes. 08 THE COURT: And tell me what she's relying upon to 09 determine -- to form that opinion and whether it has any 10 credence or acceptability in any kind of a body or if it's 11 just -- could I come in there and say, "I've read this thing 12 and I really believe there's more than one person"? 13 MR. HILL: Okay, Judge. She's relying on standard 14 accepted principles of literary style which says that you look 15 at -- 16 THE COURT: Outline a few of those for me. 17 MR. HILL: Language choice, idiom; considerations of 18 regional dialect; considerations of spelling; considerations of 19 consistency; consideration of perspective, point of view; and 20 consideration of -- 21 THE COURT: Now, let me interrupt you just a little. 22 That's what she does when she makes a literary analysis, isn't 23 it, is look at all those various things? 24 MR. HILL: Yes, Your Honor. 25 THE COURT: And then she forms a conclusion that it 00069 {12:16:16pm} 01 was more than one person that did it; is that right? 02 MR. HILL: Yes, Your Honor. Can I address the 03 standard? 04 THE COURT: Are there any other group of, quote, 05 experts that does this sort of thing and who would have an 06 opportunity to examine her methodology and so forth and 07 determine whether she's doing it right? And is she accepted, 08 has she written or has she been accepted by any of her peer 09 groups? 10 MR. HILL: There's no formal organization that I'm 11 aware of in what I guess we would have to call the literary 12 forensics that we're talking about. 13 THE COURT: There's no association of literary 14 analysts? 15 MR. HILL: There's no -- well, I don't think there 16 probably is a formal association of literary analysts, Judge. 17 However, there are books that have been written that identify 18 this as a reliable method. I'll give you an example. The 19 movie Primary Colors, perhaps you've seen the movie. 20 THE COURT: I've seen it. 21 MR. HILL: You remember the book, -- 22 THE COURT: Read it. Read the book. 23 MR. HILL: -- the book that preceded it was written 24 anonymously and a professor of English at Vassor College -- 25 THE COURT: Kline wrote it. 00070 {12:16:17pm} 01 MR. HILL: Yeah, but the only reason Kline had to 02 come out and admit it is because Don Foster analyzed the 03 writing of George Stephanopolis and everybody else who was on 04 the train and -- 05 THE COURT: And eliminated everybody but him? 06 MR. HILL: Yeah, by using the same or very similar 07 approach, the approach of any competent literary analyst. The 08 people who do this are the people that judge writing 09 competitions, who evaluate the writings of students, who are 10 intent on being writers, who are either -- 11 THE COURT: Let me ask you this: Have you had -- 12 have you found any cases where a court has allowed a literary 13 analyst to testify in his opinion, his or her opinion, with 14 regard to just exactly what you're doing here? Have you got 15 some cases? 16 MR. HILL: To exactly what we're doing here? I've 17 seen cases -- 18 THE COURT: Well, say, more than one. 19 MR. HILL: There are cases in the copyright arena 20 that are cited in our brief, Your Honor, where literary 21 analysts are used, and there's a specific reference to one 22 Southern District of New York case, I believe, to the fact that 23 expert literary analysts did testify to their competing 24 interpretations of a work. In that copyright case, the issue 25 was literary analysis to show parity or nonparity. And that's 00071 {12:16:19pm} 01 the same -- that issue is actually going on right now in 02 Atlanta regarding the so-called sequel to Gone With The Wind. 03 THE COURT: Have you had any cases with regard to 04 this sort of an expert where Daubert or Khumo has raised its 05 ugly head yet? 06 MR. HILL: Just the case last month in Atlanta. 07 THE COURT: Huh? 08 MR. HILL: Just the case last month in Atlanta, 09 Judge, where you had a professor of African-American studies 10 who was an influential black writer, a professor of English at 11 Emory University and one other eastern school testifying as 12 experts on literary analysis over the content of Wind Done 13 Gone, which is the sequence to Gone With The Wind. 14 THE COURT: Oh, that's right. The Gone With The Wind 15 deal? 16 MR. HILL: It's debatable whether it's a sequel. 17 THE COURT: Well, there was not a copyright 18 infringement there, or there was? 19 MR. HILL: They held both, actually. The district 20 court entered a preliminary injunction and the 11th Circuit 21 just reversed it on emergency appeal. 22 THE COURT: Wind Done Gone is going to come out, 23 isn't it? 24 MR. HILL: Well, it is but the litigation is ongoing. 25 THE COURT: Oh, it is? They're going to the Supreme 00072 {12:16:21pm} 01 Court on that? 02 MR. HILL: No. It was just on a preliminary 03 injunction, Judge, so it has gone back down to the district 04 court. 05 THE COURT: Okay. What do y'all think about it? Let 06 me hear from y'all about this expert here. 07 MR. ABOWITZ: It's remote, Judge, in the terms of 08 whether or not this Court can consider that technique to be 09 reliable enough to allow the jury to consider it. None of what 10 counsel has said here specifically relates to what this expert 11 is going to do in this case. The identification of who wrote 12 Primary Colors, the dispute about -- and the expertise these 13 people utilize to teach and analyze student writing have 14 nothing to do with testifying to an ultimate opinion in this 15 case that will affect the outcome that based upon these various 16 techniques that I have available to me by virtue of my 17 education and the fact I can write, I'm going to explain to 18 them that, in my opinion, this is 70 different -- 20 different, 19 10 different people that wrote this." And, if you take their 20 view of it, they say this is not human writing. So, that's an 21 interesting question. Has this woman ever seen writing from 22 celestial beings that she can stand as an expert and determine 23 whether all those things apply? 24 THE COURT: If you'll get her a job as an expert, I 25 bet you she'll come up with one. 00073 {12:16:24pm} 01 I'm being facetious. 02 Both of these experts can come up with whatever -- 03 MR. ABOWITZ: And they do, Judge. 04 THE COURT: All right. I tell you what, this is an 05 interesting question and it's not just because of my interest 06 in it but I'm going to take this one under consideration and 07 get you all to give me any additional authorities or analysis 08 with this. This is not going to be offered until later in -- 09 MR. HILL: Right. Probably won't come up until next 10 week. 11 THE COURT: Well, give them to me and my very able 12 law clerk as quickly as you can and we'll rag it around a 13 little bit. 14 MR. HILL: We would like, Your Honor, however, if you 15 rule in advance on the motion, we still would like to reserve 16 the right to make an offer of proof -- 17 THE COURT: Oh, you'll get -- 18 MR. HILL: -- outside the presence of the jury. 19 THE COURT: You'll obviously get an opportunity to do 20 that. If I deny it, you'll get an opportunity to make an offer 21 of proof. 22 MR. HILL: And I just want to raise a point of 23 clarification, that Mr. McMullan has made a number of 24 statements and characterizations regarding The Urantia Book and 25 Ms. Engstrom is also a -- has read The Urantia Book cover to 00074 {12:16:26pm} 01 cover and her perceptions from having read it may not be the 02 same as his. In the event that Your Honor grants the motion in 03 limine, I'm assuming that that's not going to prevent her from 04 testifying about her perception about the case the same way I 05 anticipate Mr. McMullan is going to do as he has done in his 06 declarations. It may not be conclusionary but -- 07 THE COURT: The way I understood it, she was going to 08 offer her opinion that it was written by more than one person 09 and that's -- 10 MR. HILL: That's what we're seeking to have her 11 qualified as an expert for. 12 THE COURT: Now then, aside and apart from that, you 13 intend to offer her as a witness as to what she understands the 14 book to mean or what? 15 MR. HILL: No. As to her perception about the way 16 that the book is put together, the way that concepts are 17 discussed. I mean, they're advocating this theory that this 18 is a -- that this is a -- I guess they call it a unified 19 literary work and have advanced several contentions towards 20 that end dealing with everything from the way that the papers 21 are organized to the internal contents of each of the papers, 22 and Mr. McMullan certainly has no more credentials than 23 Ms. Engstrom to offer that kind of lay opinion testimony. 24 THE COURT: Okay. But those are conclusions -- it 25 would be her opinion or, quote, conclusions, would it not? 00075 {12:16:33pm} 01 MR. HILL: It would not be -- well, it may be lay 02 opinion, Judge, the same way that Mr. McMullan's testimony 03 about his perceptions of the book from having read it would be 04 lay opinions. I just want to make sure that what's good for 05 the goose is good for the gander. 06 THE COURT: You intend to object if he gets in there 07 and starts saying, "In my opinion, it was done so and so," and 08 you're going to object to his opinion being offered in that 09 regard? 10 MR. HILL: If he gets up there and he starts 11 testifying that, you know, "Well, you know, the reason why I 12 think this is a unified literary work is because, you know, it 13 has a beginning and a middle and an end and it follows 14 through -- there's places in the book where it's all 15 chronological," and starts advancing this towards his -- 16 towards the conclusion that best meets his own end, I want to 17 make sure that I have a right to call a witness who may bring 18 out things from the book that don't particularly comport with 19 that. 20 THE COURT: Murray is squirming over here. Let me 21 see what he has to say. 22 MR. ABOWITZ: I think Mr. McMullan stands much higher 23 on the threshold than a lay witness. The testimony will be 24 that he has developed a comprehensive index of this book, that 25 he's read it hundreds of times, has developed the derivative 00076 {12:16:35pm} 01 works, has authored derivative works on the book, and he is 02 accepted in that community as an expert. 03 THE COURT: You want to offer his opinion but you 04 don't want -- 05 MR. ABOWITZ: Well, if she can qualify on that basis, 06 yeah. 07 MR. HILL: Well, all you have -- I mean, all you'd 08 have to do is -- 09 MR. ABOWITZ: She read it once. 10 MR. HILL: That's not true. You don't know how many 11 times she's read the book at this point. 12 The point of it is is that this is either lay opinion 13 testimony or it's not, Judge. And if it's lay opinion 14 testimony, under the rule, it has to be based on rational 15 perceptions of the witness. Presumably the witness would have 16 to have some experience in having read the book. And once that 17 threshold is crossed, provided that the Court thinks that the 18 conclusion has relevance, which I think the Court's summary 19 judgment order speaks to the fact that it does, -- 20 THE COURT: I don't have a motion before me with 21 regard to his testimony right now. 22 MR. ABOWITZ: Correct. 23 THE COURT: And I'm taking this other one into 24 consideration. And then I suppose what we'll have to do is 25 just object to his, when it's offered, if you have an objection 00077 {12:16:36pm} 01 to his testimony. And then you would further have, if I permit 02 it when you object to it, then you would reissue or reiterate 03 your support for her being allowed to express opinions. Let's 04 leave it at that. 05 MR. HILL: That's fine. 06 THE COURT: Okay. Scott Wharton. 07 MR. HILL: I'm not sure that -- I'm not sure but that 08 we might be able to reach an agreement regarding Mr. Wharton's 09 testimony as an expert witness given the Judge's summary 10 judgment order. 11 Are you all intending to criticize the original 12 registration certificate, specifically the listing of Urantia 13 Foundation as author on the original registration certificate? 14 Because I think that's probably the only expert opinion that we 15 would bring Mr. Wharton in on. 16 THE COURT: They're objecting on the basis of legal 17 conclusions, and you're attempting to get him to testify as to, 18 quote, procedures. Is that a dichotomy that makes any sense or 19 not? 20 MR. HILL: Well, I think there is a standard of 21 practice about listing organizations as author on an 22 application for copyright and I certainly think that it's 23 acceptable for Mr. Wharton to testify as to what that standard 24 is and what copyright practitioners would look to in that 25 standard without drawing the ultimate -- without drawing any 00078 {12:16:39pm} 01 ultimate conclusions about the nature of the work which are the 02 conclusions that are in this case. 03 THE COURT: Well, let me tell you, I can't issue a 04 ruling in advance on this other than a generalized ruling that 05 we all know that a witness cannot invade the province of the 06 court or the jury in testifying with regard to legal 07 conclusions. I reiterate that, and then we're just going to 08 have to kind of analyze those as the questions come about as to 09 whether it falls under that prohibition or not. 10 MR. HILL: That's fine, Judge. 11 THE COURT: Now then, Katharine Harries and Arden 12 Schilb (sp). 13 MR. SCHOENTHALER: Yes, Your Honor. Katharine 14 Harries was a Forum member. She began going to what is now 15 Urantia Foundation headquarters at the age of -- she's not 16 sure -- 7, 8 or 9. That was in 1934. She was born in 1925. 17 She began to read papers in '38 and '39 and she joined the 18 Forum in 1941. 19 Now, they say that she shouldn't be allowed to testify 20 because either it's hearsay and not based on her personal 21 knowledge regarding the Forum, the Contact Commission, and the 22 question-and-answer process, etc., or it's irrelevant because 23 she joined after the questions had stopped, after the papers 24 had been complete. They cite, for the proposition that the 25 papers are complete, the book itself. They say that certain 00079 {12:16:40pm} 01 parts ended in certain times but they state they were -- that 02 the book was certainly complete by 1936. 03 Well, you know, they haven't taken her deposition. They 04 don't know what she's going to say. I'm going to tell you 05 she's going to say that it wasn't complete at that time; there 06 were still questions being asked and still responses being 07 received. Now, that makes it relevant, and also, since she has 08 observed this, it makes it not hearsay. 09 THE COURT: I think he's got a right to call her -- 10 MR. PLOURDE: You know, Judge -- 11 THE COURT: -- and testify as to what she saw and did 12 at that time. Not what had necessarily taken place previous to 13 that. But I think -- I don't think there's any question that 14 she can testify -- and it also occurs to me that that might be 15 relevant, what they did at the time she was there might be 16 relevant as to what they had done. In other words, the jury 17 could draw some conclusions from what she said about their 18 activities as to what did take place. But she can't testify 19 that it took place but simply about what she did as she was 20 there. 21 MR. PLOURDE: Honestly, Judge, you know, the evidence 22 I think is so fairly complete, that it was done -- that the 23 book was done by 1936, that anything that she says is just 24 not -- 25 MR. SCHOENTHALER: Well, -- 00080 {12:16:42pm} 01 MR. PLOURDE: -- not credible. Let me finish. 02 MR. SCHOENTHALER: I apologize. 03 MR. PLOURDE: Not credible. I mean, the history of 04 the Urantia movement that they rely on -- I mean, all the 05 evidence. 06 MR. HILL: It says -- 07 THE COURT: That would be argument. 08 MR. PLOURDE: If I could finish the sentence without 09 being interrupted, I think we might be able to get to the 10 bottom of this. 11 You know, to the extent that there's that limited thread 12 of proof that they may be able to offer to contradict all the 13 evidence that's before the Court to the contrary, you know, I 14 suppose it is relevant. 15 Schilb, they don't make any argument and I think the 16 argument is pertinent to that. All they say that she'll 17 testify to is regarding the formation of the Urantia Foundation 18 in 1950 and that's not relevant to any issue. 19 MR. SCHOENTHALER: Your Honor, she joined The Forum 20 in 1949. The book was published in '55. The Urantia 21 Foundation was formed in 1950. 22 THE COURT: Yeah, I'm going to deny the motion with 23 regard to her. 24 MR. SCHOENTHALER: Okay. 25 THE COURT: Arden Schilb. Tell me about that. 00081 {12:16:43pm} 01 MR. SCHOENTHALER: That's what I was talking about. 02 THE COURT: Okay. Who is Katharine Harries? 03 MR. HILL: That's who we have been talking about. 04 THE COURT: Okay. All right. Two different people? 05 MR. SCHOENTHALER: Yes. 06 THE COURT: You're going to offer the testimony of 07 two different people? 08 MR. PLOURDE: On Schilb, what they say Schilb will 09 testify to is regarding the formation of Urantia Foundation in 10 1950. As they just said, she didn't join the Forum until 1949, 11 long after the book was complete. The formation -- 12 THE COURT: I think -- and I'm interrupting you again 13 -- but I think that's argument. I think you can point that out 14 and it's argument that it's her credibility in that regard or 15 her knowledge or the impact or value of it. But I'm going to 16 deny the motion in limine. 17 All right. Does that finish it all on the motions in 18 limine? Have we got any more? 19 MR. PLOURDE: That's it. 20 THE COURT: Okay. Let's talk about -- what else? Do 21 you all have copies of the proposed instructions and the 22 verdict form and interrogatories and all that sort of stuff? 23 MR. ABOWITZ: Judge, may I just address a question on 24 the Court's procedures on voir dire? Are you going to 25 permit -- How are you going to handle that? 00082 {12:16:45pm} 01 THE COURT: Well, I wanted to talk about that some. 02 I don't know whether we ought to get into -- maybe we ought to 03 take a luncheon break now and then I'll have another session 04 with you. Certainly, I want to turn you over to the tender 05 mercies of Anil and Cindy, if she wants to participate, with 06 regard to an instructions conference this afternoon. Let's see 07 what we need to do. I don't think we can do it before we take 08 a luncheon break. 09 We need to talk about preliminary statements. Have you 10 all had a hand at doing that yet, preliminary statements by the 11 Court to the jury outlining the simplicities of this little 12 jewel? 13 MR. HILL: I like the preliminary statement in the 14 instructions just fine. 15 THE COURT: Okay. Well, let me ask you this -- 16 MR. HILL: There may be a little more advance preview 17 to that. 18 THE COURT: To tell you the truth, I haven't read -- 19 I read the proposed instructions but I didn't remember the 20 preliminary statement in that regard. But I do need a good 21 preliminary statement. 22 And then let's discuss just for a minute what you all 23 would suggest with regard to the voir dire examination. I can 24 do what I normally do. What I normally do is ask them 25 questions, and certainly ask them how many copyright lawsuits 00083 {12:16:46pm} 01 they've been involved in and how many have they decided and how 02 many of their family members have been sued for copyright 03 violations and all that sort of thing. But, quite seriously, 04 then I ask them if they could be fair and impartial to all the 05 parties and their previous experience as jurors, and so forth. 06 And then I let them stand up, each one of the people that are 07 under consideration, and make a brief statement with regard to 08 their background, education, interests and so forth, academic 09 and otherwise. 10 Normally, I don't permit the attorneys to ask any specific 11 questions simply in the interest of time. I think I'd be 12 willing to consider doing that if I could get some idea what 13 you wanted to ask. I usually let the attorneys then submit any 14 questions that they have to me to ask of any individual juror. 15 Something may have peaked your interest or concern and I 16 usually do that. I might even deviate that a little and let 17 you all participate. How do all you feel about it? I never 18 knew a lawyer that didn't want to participate in voir dire, so 19 I assume you all do. How can I put some kind of a handle on it 20 and let you get to the main things you want to get at? 21 MR. ABOWITZ: Well, if the Court were to follow the 22 procedure that has been outlined here and give us a little bit 23 of time, I don't know, 20 minutes or so, to follow up on that, 24 and anything more than that that comes up, I think that would 25 be helpful. 00084 {12:16:48pm} 01 THE COURT: Do all of y'all agree with that? 02 MR. HILL: I don't have a problem with your 03 suggestion. You take it first, let them talk, and then give 04 Murray and I or Ross and I -- 05 THE COURT: With the normal caveats of no hugging and 06 kissing of the jurors and all that sort of thing when you're 07 conducting the voir dire. 08 MR. HILL: No characterization of the evidence. 09 MR. ABOWITZ: Do we have the Layn Phillips rule in 10 effect? 11 THE COURT: What's that? 12 MR. ABOWITZ: Tethered to the podium. 13 THE COURT: All right. Let's do that. I'm going to 14 let you all have -- after I have a hand at it and before we 15 start passing for cause and so forth, I'm going to let you all 16 have about -- let's say 15 minutes to the side. Can you both 17 do it in 15 minutes? 18 MR. ABOWITZ: Well, can we agree to the 15 and then 19 if we get into something that creates a problem, we can -- 20 THE COURT: You can ask for some additional time, and 21 so forth. But try to limit it to 15 minutes so you get the 22 ones that you're really interested in. I think I'll do that in 23 this case. So we'll take -- normally, we only allow about 15 24 minutes in opening statement in these cases per side but I 25 think we're going to deviate from that in this case. But in 00085 {12:16:50pm} 01 the voir dire, I'll try to do it, get them to stand up and make 02 some statements, and then give you about 15 minutes to the side 03 and we'll just go from there. 04 All right. Have you got all your proposed -- your voir 05 dire questions submitted? 06 MR. ABOWITZ: Yes. 07 THE COURT: Are they all in? 08 MR. HILL: Yes, Judge. 09 THE COURT: I haven't seen those yet. 10 I'm going to turn you over this afternoon -- 11 Anil, when do you want to start meeting with these 12 gentlemen? 1:30? Do you all want to get back after lunch 13 and -- 14 THE LAW CLERK: Do you all need some additional time 15 to prepare? 16 MR. HILL: I actually have a couple of questions, 17 Judge, since I have never tried a case in your courtroom 18 before. 19 THE COURT: Fire away. 20 MR. HILL: If you don't mind. 21 First of all, there is an issue, we're filing a motion 22 this afternoon to quash a subpoena that was served at the 23 settlement conference last week upon Richard Keeler, the 24 president of Urantia Foundation. He resides in Evanston, 25 Wyoming but was here pursuant to the Court's order that someone 00086 {12:16:51pm} 01 with the authority to settle the case be present at the 02 settlement conference. I accepted service for him at the 03 settlement conference from Mr. Abowitz. 04 The argument is they have two of his deposition 05 transcripts that I believe they already were prepared to read 06 to the jury. That's 1,200 miles away. I think it's pretty 07 clear under the law that they can't require -- they can't 08 require that subpoena -- that subpoenaed witness to travel 09 1,200 miles and make himself available for the duration of the 10 trial. 11 THE COURT: Have you filed a motion to quash on that? 12 MR. HILL: We're filing it this afternoon. 13 MR. SCHOENTHALER: It has been filed. We have the 14 service copies here. 15 MR. HILL: I haven't signed the service copies yet. 16 THE COURT: Why don't you furnish a copy to them and 17 I'll give them an opportunity to respond. 18 MR. HILL: Sure. I just wanted to make sure the 19 Court was aware of that issue. 20 MR. ABOWITZ: I'd like the record to reflect, Judge, 21 that I did not attempt to serve Mr. Keeler. I first asked 22 counsel if he would accept the subpoena and he agreed that he 23 would. 24 MR. HILL: Acceptance of service doesn't resolve the 25 jurisdiction. 00087 {12:16:53pm} 01 THE COURT: I mean, the record will so reflect what 02 you've said. 03 How much time do you need to respond to this? 04 MR. ABOWITZ: I haven't seen it, Judge. 05 THE COURT: Well, time is kind of the essence. 06 MR. ABOWITZ: It is for us too. 07 THE COURT: Yeah. 08 MR. HILL: These trustees of Urantia Foundation are 09 volunteers. They don't get paid. They have jobs. They've got 10 not one but two deposition transcripts. 11 THE COURT: I'd rather get their response to the 12 legal aspect of it before we get into the equities of it and so 13 forth. Can you all put someone to work on it during the noon 14 hour -- 15 MR. ABOWITZ: I will. 16 THE COURT: -- and try to get it in by 4:00 or 4:30 17 this afternoon? If you can't, get it in first thing in the 18 morning and I'll take a look at it. 19 MR. HILL: Can we -- Can we go ahead and agree as to 20 how long the Court is going to give us for opening statements? 21 THE COURT: 15 minutes unless more is needed. Oh, 22 opening statements? 23 MR. HILL: Opening. 24 THE COURT: I thought you meant voir dire. 25 MR. HILL: I'm curious. 00088 {12:16:54pm} 01 THE COURT: Oh, I don't know. What do you suggest? 02 MR. HILL: Either 30 or 45 minutes, depending upon -- 03 I'm agreeable with -- 04 THE COURT: What do you all suggest? Are you going 05 to divide it or each one -- 06 MR. PLOURDE: Murray is going to take it. 07 MR. ABOWITZ: 30. 08 THE COURT: If we can get Murray to shut up in 30 09 minutes, it would be a miracle. We'll try. 30 minutes. 10 MR. HILL: An hour on closing? 11 THE COURT: Let me wait for -- at our final 12 instructions conference, I'll make a decision. That depends a 13 little bit on how long the evidence has taken. 14 Now, one thing I am going to consider doing, and I haven't 15 decided to do this yet, is maybe let you use in closing 16 argument outlines of the interrogatories and the verdict forms 17 for educational purposes, not to go with the jury to the jury 18 box -- or to the jury deliberation room. So, in your closing 19 argument you can say, "If you find this, this and this, this is 20 the interrogatory you'll mark and this is so and so." 21 MR. HILL: Like having the verdict form blown up? 22 THE COURT: Kind of blown up and demonstrated to them 23 but I wanted you to understand that I'm not going to let them 24 take them down into the jury room with them but let you use it 25 in your closing. 00089 {12:16:56pm} 01 Let's see. That's all I can think of. There'll be a lot 02 of other things. I'll see you all -- why don't you come back 03 at 1:30. Is that a sufficient break? 04 MR. HILL: Should be fine. 05 MR. PLOURDE: Judge, are you going to be here this 06 afternoon at all? 07 THE COURT: I'll be here all afternoon. I'm going to 08 be tied up in some other matters though. 09 MR. PLOURDE: There was one issue in the instructions 10 that we were hoping to take up. I don't think it's a big deal. 11 It's use of the term "conduit" in the instructions and we were 12 hoping to get you to consider -- 13 THE COURT: All right. I'll be here. When my law 14 clerk thinks it's an appropriate time, if you all want to come 15 in, I'll take a look at that after you all have had an 16 opportunity to hash it out. I don't want to be a part of all 17 the preliminary negotiations on them but you want that done, I 18 assume, before opening statements and so forth? 19 MR. PLOURDE: Yeah. Yes, Judge. I mean, I think it 20 will only take a second to resolve. 21 THE COURT: I'll be here and Anil will start meeting 22 with you all at 1:30, gentlemen. Thank you very kindly. 23 (PROCEEDINGS CLOSED) 24 00090 {00:00:00PM} 01 REPORTER'S CERTIFICATION 02 I CERTIFY THAT THE FOREGOING IS A TRUE AND CORRECT 03 TRANSCRIPT OF THE PROCEEDINGS IN THE ABOVE-ENTITLED MATTER. 03 04 04 05 05 Date Greg Bloxom 06 07 08 09