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2 ------------------------------x
4 al.,
5 Plaintiffs, New York, N.Y.
6 v. 07 Civ. 3582 (LLS)
7 YOUTUBE, INC., et al.,
8 Defendants.
9 ------------------------------x
10 March 26, 2010
10 11:15 a.m.
11 Before:
13 District Judge
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2 Attorneys for Class Plaintiffs
5 Attorneys for Class Plaintiffs
7 Attorneys for Plaintiff The Football Association
8 Premier League Limited
10 Attorney for Plaintiff Robert Tur
11 Attorneys for Defendants YouTube and Google
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1 (In open court)
2 THE COURT: Because I didn't want to take anyone by
3 surprise, my first question is why should any of this be
4 confidential to any degree except, perhaps, for the actual text
5 of what was supposed to be confidential and not disclosed?
6 MR. SCHAPIRO: Your Honor, for the defendants, we have
7 looked over the papers and we don't see anything that we would
8 argue needs to remain confidential.
9 MR. FAGAN: Your Honor, I am Mr. Seymour Fagan. I am
10 the new face here. I came from Los Angeles for the purpose of
11 this hearing.
12 MR. SNELL: Excuse me, your Honor. I am sorry to
13 interrupt, but for procedural clarity I think it is necessary
14 to move Mr. Fagan's admission pro hac vice, and I would like to
15 do that by oral application, if I may, at this time. The
16 paperwork is going to be submitted in short order with the
17 clerk's office.
18 THE COURT: I am perfectly willing to address that.
19 Before we turn to that, are you speaking for a plaintiff?
20 MR. SNELL: Yes, your Honor.
21 THE COURT: Can you give me your position on the
22 confidentiality question I asked.
23 MR. SNELL: Sure, your Honor. I am representing the
24 class plaintiffs. At this time we don't have a position
25 because it is not our material that is at the core of the
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1 subject here. However, in light of the accusations, that in
2 our view have not been proven, we are concerned about this
3 entire matter becoming open to the public. But we don't press
4 the issue as to the protective order covering if defendants are
5 relaxing their stand on it.
6 THE COURT: Frankly, I don't understand what that
7 answer means. In every criminal case and many civil cases
8 there are accusations made which are not proved and not proved
9 yet. Nevertheless, the papers and proceedings with respect to
10 those charges are fully public. How is this case different?
11 MR. SNELL: Well, your Honor, I think Mr. Fagan was
12 starting to address that.
13 THE COURT: Yes, but in the meantime I would like your
14 answer on behalf of your clients.
15 MR. SNELL: My answer, Judge, is that on behalf of my
16 client, the class, that we do not oppose the unsealing or the
17 lifting of the confidentiality provision.
18 THE COURT: Thank you.
19 Who is representing the non-class plaintiffs?
20 Mr. Solomon.
21 MR. SOLOMON: Good morning, your Honor. Lou Solomon.
22 We do not object to unsealing the material.
23 THE COURT: Very well. All of those papers relating
24 to this matter from its beginning some months ago are unsealed.
25 I will ask counsel to take care of whatever needs to be done
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1 with respect to the filings already made in court and any other
2 documents that have been filed in that connection. They should
3 all be in the public record.
4 Now, sir, you had an oral pro hac vice application.
5 MR. SNELL: Yes, your Honor. Seymour Fagan is an
6 attorney in good standing in California. He is not admitted to
7 this court to practice. For purposes of this proceeding, he is
8 representing Robert Tur, who is one of the plaintiffs, and I am
9 moving his admission for purposes of this proceeding. As I
10 mentioned, the paperwork is being filed in short order with the
11 court clerk.
12 THE COURT: Is there any objection?
13 MR. SCHAPIRO: No objection, your Honor.
14 THE COURT: I have, perhaps not an objection, but I
15 have reservations, and I think in an earlier order I referred
16 to some of them. The one I will mention first is Mr. Fagan is
17 clearly a character witness and also a fact witness with
18 respect to the issues respecting Mr. Tur. Usually in this
19 court we do not have a lawyer in the roles of both witness and
20 counsel. There are some reasons for that.
21 One is the inherent conflict with respect to the fact
22 matter, and to some unarticulated degree, with respect to the
23 status as a character witness, I think there lurks a problem,
24 probably not a decisive one, not one that would tilt this
25 question one way or the other, but I mention it only because it
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1 is present and it is better to face things that are present,
2 and that is that extremely close personal relations between a
3 lawyer and his or her client may blur the objectivity of the
4 lawyer on which a good portion of that lawyer's value of his
5 services to the court rest. They may not depend on it, but
6 they are a serious factor.
7 One of the best values that the trial lawyer brings to
8 his client and represents in his representation of that client
9 to the court is his objectivity. However, clearly the more
10 serious questions are his capacity with which his papers are
11 field as a witness. Why should I admit him as counsel?
12 MR. SNELL: Your Honor, I think your Honor was correct
13 in identifying the witness issue as something that is possibly
14 going to come to the floor. However, in terms of fulfilling
15 the requirements of this court to be admitted in a proceeding
16 to represent a client, I don't think we are at the stage yet
17 where Mr. Fagan's relationship with Mr. Tur and the evidence
18 that he has alluded to in his papers would be disqualifying to
19 be admitted pro hac vice.
20 What I would submit is --
21 THE COURT: He is a participant in what he offers as
22 an alibi for Mr. Tur that at least at one point appeared to be
23 a critical time.
24 MR. SNELL: Your Honor, I understand that. That is
25 true. However, I don't understand that particular statement to
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1 have been contested or put at issue, certainly not by anything
2 I have seen from the defendants at this point.
3 THE COURT: It would be much less relevant in the
4 light of Marika's testimony, but it is not yet abandoned as far
5 as I am concerned.
6 MR. SNELL: Yes, your Honor. What I would suggest,
7 though, is that since the defendants don't seem to be making an
8 issue of it, I don't think we get into the credibility question
9 of whether Mr. Fagan's account of his meeting with Mr. Tur on
10 the date in question is going to become a credibility question
11 for the court to determine. So I don't think it would be
12 disqualifying here for his admission to proceed with the larger
13 questions before the court.
14 If we get to that stage, your Honor, of course, the
15 rules are clear and we will have to address that, but I suggest
16 that we can go forward at least for the time being with paying
17 very careful attention and being sensitive to the issues that
18 your Honor has appropriately raised. I think we can get
19 through this, though, without them becoming an insurmountable
20 obstacle.
21 THE COURT: Decision is reserved on the application
22 and I will hear Mr. Fagan today for whatever he wishes to say
23 on Mr. Tur's behalf. This does not indicate any further ruling
24 one way or the other as to his acceptance as a member of the
25 bar of this court pro hac vice.
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1 MR. SNELL: Understood, your Honor.
2 THE COURT: I think counsel and Mr. Tur would be
3 well-advised to look elsewhere, but that is a decision for him
4 to make.
5 Mr. Fagan, you wish to speak?
6 MR. FAGAN: Yes.
7 THE COURT: If you are speaking as his lawyer, I would
8 be interested in whatever you have to say.
9 MR. FAGAN: Yes. With respect to the issue that the
10 court raised, I am in accord with the court's comments about
11 whether I should or should not represent him as an attorney
12 should the issue of character or the issue related to the
13 events at which I was involved in really are determinative,
14 which I believe they will not be.
15 THE COURT: Well, you have injected his character in
16 almost every communication you have made to the court.
17 MR. FAGAN: I think it was required in terms of the
18 response to the accusations that were made by the plaintiff.
19 But if I may, the issue that is here, as to whether or
20 not Mr. Tur leaked the transcripts, is one that can be totally
21 determined by technology. It has nothing to do with his
22 character, it has nothing to do with the other events that
23 occurred that have been brought up by the defendants to which
24 we have respond.
25 THE COURT: At the moment, are you authorized to
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1 respond on behalf of Mr. Tur to the question I raised about the
2 confidentiality of the material?
3 MR. FAGAN: I was going to address it, your Honor.
4 THE COURT: Please do.
5 MR. FAGAN: But based upon the comment of the court, I
6 would accede to the court's judgment.
7 THE COURT: Good. I won't entertain reargument at
8 this point.
9 MR. FAGAN: But if I may, if I may take the time now
10 of the court, when we were first introduced to this matter, I
11 was introduced to hundreds of pages of transcripts.
12 THE COURT: Please.
13 MR. FAGAN: If I may.
14 THE COURT: What relief are you seeking?
15 MR. FAGAN: The relief we are seeking is a decision of
16 the court that Mr. Tur did not leak any information to
17 Mr. Sandoval and that he did not violate the protective order
18 and, therefore, there should be no sanctions against Mr. Tur
19 for any acts on his part because he did not participate in the
20 leak to Mr. Sandoval.
21 THE COURT: OK. Before we get to that point, is there
22 anything else on anybody's agenda for this morning?
23 Mr. Snell.
24 MR. SNELL: Yes, your Honor.
25 THE COURT: Your letter of March 23, which I just
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1 received this morning -- I'm sorry. It is March 25, I think --
2 ends with the request that I give permission for you to be
3 appointed to fill Mr. Underwood's role in ensuring Proskauer's
4 strict compliance with the operative protective orders and so
5 forth.
6 I take it, it would be useful for that to be ruled on
7 forthwith.
8 I did not appoint Mr. Underwood. Why should I appoint
9 his successor?
10 MR. SNELL: Your Honor, we made the application only
11 because the stipulation that was entered into between the
12 defendants and the class plaintiffs on November 16th was so
13 ordered and as part of that stipulation Mr. Underwood was
14 appointed to fill the role that is described.
15 THE COURT: Show me.
16 MR. SNELL: It is Exhibit C. If your Honor turns to
17 Exhibit C to our letter, which is the stipulation and order, on
18 page 2, the Section 1, steps concerning securing confidential
19 materials, etc., paragraph 6 says: Henceforth, if Proskauer
20 wishes to provide confidential or highly confidential materials
21 to any of its clients, it will do so electronically only after
22 complying with the first undertaking contained in Proskauer's
23 letter to the court of November 16th.
24 Now, that is attached as Exhibit A to the stip.
25 THE COURT: This appears to give you a vote,
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1 Mr. Schapiro, under the construction of it that Mr. Snell is
2 offering.
3 MR. SCHAPIRO: Your Honor, as long as someone is
4 fulfilling that role, certainly we would have no objection to
5 it being Mr. Snell or to it being Mr. Underwood. Whatever the
6 various lawyers for the various permutations and pieces of the
7 class agree upon is OK with us. I know Mr. Snell and he is
8 certainly a lawyer of integrity.
9 THE COURT: The paragraph 6 to which Mr. Snell refers
10 states in full text: "Henceforth, if Proskauer wishes to
11 provide confidential or highly confidential materials to any of
12 its clients, it will do so electronically only after complying
13 with the first undertaking contained in Proskauer's letter to
14 the court of November 16, 2009, attached hereto as Exhibit
15 A."That is a stipulation and order which I signed.
16 The letter, starting at page 4, a November 16 letter,
17 describes the system which is being contemporaneously installed
18 at Proskauer for the addition of a separate layer of protection
19 for the defendants' materials, and it includes the designation
20 of a senior litigating partner who has been advised of the
21 seriousness of the matter and given the necessary materials and
22 who will personally inspect the materials to ensure strict
23 compliance with the operative protective orders and have other
24 duties related.
25 I regard my approval in that respect as being of the
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1 general system set up in the letter and not as a mandatory
2 direction issued by the court about how that should be done,
3 and there are a variety of administrative and policy reasons
4 for that distinction. For example, if there were to be a
5 breakdown in the system, I would not expect the court's prior
6 approval of it to be taken as a warranting. Nor does the court
7 approve or disapprove of the particular individual appointed to
8 perform the functions. That is not part of my
9 responsibilities. I have not been able to conduct any
10 interviews of people in that respect. I leave it entirely to
11 the lawyers involved.
12 Certainly in the first instance the total
13 responsibility of Proskauer, a responsibility which cannot be
14 shifted, and under this paragraph perhaps modified to have the
15 input of the defendants' counsel, I take no part in.
16 MR. SNELL: Thank you, your Honor.
17 THE COURT: I think the next item is probably the
18 question of -- we are doing the small stuff first -- the
19 request for an extension of the class motion. Have you
20 received an answer from the defendants yet?
21 MR. BROWNE: Your Honor, I am John Browne, from
22 Bernstein Litowitz, and no, I have not.
23 THE COURT: Let's see if I can elicit one.
24 MR. SCHAPIRO: Your Honor, I think here initially we
25 are seeking a little more information from the class, but it is
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1 somewhat problematic for us. While of course one always wants
2 to accede to a reasonable request for an extension, on first
3 blush this does not appear reasonable to us.
4 The class certification motion, the brief on that
5 topic was originally due today, and there were extensive
6 negotiations about the schedule, and these focused in many ways
7 on how the schedule for class certification briefing would
8 overlap with and impact the schedule for summary judgment
9 briefing, which is going on at the same time.
10 A week ago, when Mr. Solomon and some of his
11 colleagues announced their move from the Proskauer firm to the
12 Cadwalader firm, Mr. Browne reached out to us and asked for a
13 one-week adjustment of the schedule to account for that. We
14 said fine. We worked out an agreement. It was entered as a
15 stipulation. So as of yesterday our understanding was that we
16 would be getting the brief next week.
17 I should note that in some of the discussions that
18 went on with the class in this regard, the class undertook to
19 inform us as soon as they knew whether their proposed class
20 definition was going to differ in any significant way from what
21 had been proffered in earlier papers. So we were surprised, to
22 say the least, to hear yesterday that the class is asking for
23 an additional three weeks. So it is not three weeks from
24 today. It is three weeks on top of the one week that we
25 already said fine to, basically making their brief due a month
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1 later than we thought we would get it.
2 We were troubled by the references in their submission
3 to the court and some of their conversations with us to the
4 need to make certain determinations about subclasses. I would
5 have thought that since the brief -- until a week ago we
6 thought that was going to be filed today, that issues about
7 what subclasses they were proposing and related topics like
8 that would have been decided long ago. They have had three
9 years to work on their proposal for class certification.
10 So I think we would like to understand -- reading
11 between the lines, I think what they are also saying is that
12 there are still discussions going on between Proskauer and
13 Cadwalader about who is going to represent who or who will be
14 lead plaintiffs. While I acknowledge the reality of issues
15 like that, we feel that kicking the whole briefing schedule
16 back as far as they propose is unreasonable. It would
17 prejudice us in a couple of regards.
18 First of all, the schedule as proposed would have us
19 working on our opposition to class cert. filed right at the
20 same time we are doing reply briefs and summary judgment.
21 Beyond that, we and our client are eager to have this case
22 resolved. I don't know in what order the court is planning to
23 rule on the issues or decide the issues. To the extent that
24 the class certification briefing now doesn't get completed
25 until mid-July, if that ends up slowing down decisions on
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1 summary judgment or on class cert. itself, that is a problem to
2 us as well.
3 I guess in summary we would at least like to hear
4 more. We are happy to try and be reasonable and accommodate
5 them. I would have thought that the brief would have basically
6 been done a week ago, since they were due today, when
7 Mr. Solomon and his crew decided to leave. I certainly would
8 have expected that issues about what subclasses they are going
9 to propose would have been finished. As of this juncture, the
10 request for an extension just seems far too long, in addition
11 to the one week that we already agreed to.
12 THE COURT: Mr. Browne, Mr. Schapiro's questions seem
13 to me to be reasonable. Nobody wants to pry into affairs under
14 way between cocounsel in this situation, but I must say from
15 your letter I have one question which I think approaches what
16 he was saying from a slightly different perspective, and that
17 is, with the two firms, Cadwalader and Proskauer, in the same
18 city and both of them equipped with telephones, why does
19 Mr. Solomon's and his colleagues' shift to Cadwalader make the
20 discussions about the points about what you call the structure
21 of the class -- I suppose until some structure is imposed on
22 it, it is a mob, but I frankly don't know what the structure of
23 the class means. It seems to have something to do with
24 subclasses. But why can't these matters be discussed just as
25 efficiently as though they were in adjoining rooms in one
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1 office?
2 MR. BROWNE: Your Honor, I believe Mr. Schapiro's
3 questions are reasonable, too, and I actually endeavored to
4 answer them in several lengthy e-mails to Mr. Schapiro
5 yesterday and I put some of it in the papers, but let me
6 directly answer your question.
7 It is a very short-term disruption here. Mr. Solomon
8 and Mr. Shaftel, who were, as you know, the lead lawyers from
9 Proskauer litigating the case.
10 THE COURT: I am sure you are leading up to the answer
11 to my question.
12 MR. BROWNE: I am, your Honor. The reason is because
13 there are certain clients with certain interests who are more
14 closely linked to certain lawyers, and all of these decisions
15 about how the class is going to be structured -- for instance,
16 if there was a subclass, there will be a proposed
17 representative for that subclass who will be one of our 15
18 current named plaintiffs, one or more, and all of that has to
19 be finally approved not only by co-interim counsel, which right
20 now is Bernstein Litowitz and Proskauer, but also by the
21 clients who will be in those categories.
22 There have been, as I said, some short-term
23 disruptions in that. It is not as simple, as I said to
24 Mr. Schapiro yesterday, as rerouting a phone call or changing
25 an e-mail address. It may not be too far from that, but as it
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1 turns out, we are trying to sort through these issues and we
2 respectfully need a little more time than the one week -- I
3 actually asked for two weeks. The defendants said no. I
4 agreed to shorten our time to reply. As it turns out, we need
5 a little bit more than the one week I asked for. I am
6 confident it will be resolved in that time.
7 THE COURT: What about Mr. Schapiro's reference to
8 these matters being of long standing and having been under the
9 fairly recent schedule that were due to have been reconciled
10 and incorporated in papers to have been filed today?
11 MR. BROWNE: It is a perfectly fair point, your Honor,
12 and these matters are very close to being finished. I am not
13 saying we are starting going back three years and have to
14 rewrite our brief and restructure our class. We are almost
15 there.
16 THE COURT: I will give you another week.
17 MR. BROWNE: OK. Will that carry through with the
18 rest of the schedule, one week, additional week for them to
19 oppose?
20 THE COURT: Not unless it is needed. If it turns out
21 to be needed, I will probably give it to them.
22 MR. BROWNE: OK. Thank you.
23 MR. SCHAPIRO: Your Honor, just to make sure that we
24 are all on the same page, I think as of yesterday morning,
25 under the stipulation, the classes' opening brief on class
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1 cert. would have been due April 2.
2 Is that right, Mr. Browne?
3 MR. BROWNE: That is right.
4 MR. SCHAPIRO: So it will now make it due April 9.
6 MR. SCHAPIRO: Our opposition was due May 14th. That
7 would now be due --
8 THE COURT: May 14th, unless you need more time.
9 MR. SCHAPIRO: I can tell you right now I think we are
10 going to need the time, your Honor. Could we make it May 21st
11 unless we find ourselves with extra time, in which case it is
12 May 14th?
13 THE COURT: I know what a big hurry your client was in
14 to get this matter resolved. But of course I will give it to
15 you if you need it.
16 MR. SCHAPIRO: Thank you, Judge, because we are doing
17 the summary judgment briefing at the same time.
18 Then under the schedule, under the stipulation, the
19 reply brief was due June 11. I will leave it to Mr. Browne to
20 decide.
21 THE COURT: I think that will remain June 11. The
22 distance between May 21 and June 11 is still not unreasonable
23 for a reply brief on a pretty well-known argument --
24 MR. SCHAPIRO: Thank you, Judge.
25 THE COURT: -- in which extensions have already been
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1 granted before the motion was even made.
2 MR. BROWNE: Thank you.
3 THE COURT: By the way, before I forget, I will
4 receive and welcome written submissions from any counsel with
5 respect to the question before the court on the pro hac vice
6 admission vel non of Mr. Fagan.
7 Now, who wishes to speak on the application for a
8 motion? Is there any other agenda that we should be getting
9 out of the way now?
10 MR. SNELL: I don't believe so, your Honor.
11 THE COURT: Who wishes to speak with respect to the
12 matter that brings us together, a premotion conference?
13 Mr. Fagan.
14 MR. FAGAN: Yes. Every time I look at one of these
15 matters, I do try to put myself in the position of the other
16 party that is reading this for the first time and how would I
17 be reacting.
18 THE COURT: Let me put a potential reaction before
19 you.
20 MR. FAGAN: Yes.
21 THE COURT: It may be a useful step in bringing us all
22 to a conclusion.
23 Doesn't this require a separate trial under Rule 42(b)
24 before a jury? And if so, when should we conduct it? Is there
25 any problem that the jury will probably not be the same jury
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1 that decides the case as a whole, and who will represent
2 Mr. Tur? Those are my questions.
3 MR. FAGAN: I must say I am not totally familiar and
4 conversant with the procedures with respect to the aspect. I
5 have been doing federal trial work for quite a while. Maybe
6 other people here are more knowledgeable about that issue.
7 THE COURT: It is very simple. The jury would
8 determine the matters of fact, I would rule on the remedy, and
9 if it reaches that point, there will be a short jury trial,
10 like a separate trial on the issue of statute of limitations.
11 The main question being, was there a breach of my order by
12 Mr. Tur or the former Mrs. Tur.
13 MR. FAGAN: The judge may answer this question for me,
14 and that is, is that a matter to be determined by the court as
15 to whether or not it would be tried before a separate jury or
16 whether the court can decide that the court itself, having
17 received the evidence that was put before it, will make that
18 decision.
19 THE COURT: I think we ought to start with Rule 42(b).
20 MR. FAGAN: I'm not familiar with the rule, your
21 Honor. I can't address that.
22 THE COURT: Let me read it to you. It is quite short.
23 Rule 42(b) is called Separate Trials. It states:
24 "For convenience, to avoid prejudice or to expedite and
25 economize, the court may order a separate trial of one or more
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1 separate issues, claims, cross-claims, counterclaims or
2 third-party claims. When ordering a separate trial, the court
3 must preserve any federal right to a jury trial."
4 MR. FAGAN: Your Honor, I believe that answered the
5 question that I posed to the court, and that is, it appears
6 from the rule you just read to me that is a determination to be
7 made by you based upon the information that is before you. As
8 I understand it, you can in some way limit what is being
9 presented for trial. That is how I understand the rule. So
10 that judgment is one to be made by you based upon the
11 information that is before you and giving consideration to the
12 matters that are set forth in the rule as to whether or not you
13 should do that.
14 THE COURT: Thank you, Mr. Fagan. I will do my best.
15 Anybody else?
16 MR. SCHAPIRO: Your Honor, we have at least two strong
17 interests here and I think the court and the judicial system
18 also are as much an aggrieved party as our client. One
19 interest we have is getting to the bottom of this and making
20 sure it doesn't recur. A second issue is making sure that we
21 are able to devote our attention and our resources to the
22 merits of the case and that we are not distracted.
23 I believe that the facts that have been developed thus
24 far, my opinion if I were the fact finder, and I'm not, are
25 enough to justify terminating sanctions against Robert Tur
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1 doing business as Los Angeles News Service.
2 THE COURT: You have no direct evidence of
3 transmission, do you?
4 MR. SCHAPIRO: No, your Honor, and I think that is
5 because -- and unfortunately, all of Mr. Tur's hard drive was
6 erased. But I said that I am not the fact finder for a reason.
7 I am hesitant even to be standing here as an advocate or a
8 prosecutor saying Mr. Tur did it. I can give you my reaction
9 to the evidence and marshal the evidence.
10 It strikes me that he is not. But we have presented
11 the evidence to the court. If there were to be a separate
12 trial, and I take it from your invocation of 42(b) and the jury
13 provision the reason you mention that is because you are
14 envisioning this as possibly a trial for criminal contempt and
15 that is why the jury becomes relevant.
16 THE COURT: Partly that. Perhaps more fundamentally
17 that ultimately the question on the present record seems to me
18 to be one of inference, whether Mr. Tur or Marika transmitted
19 the information to Mr. Sandoval. That would be a breach of my
20 order and that would involve a contempt of court.
21 Questions of inference, motive -- motive is debated --
22 are normally and usefully left to juries. I think a jury is
23 particularly appropriate in this area, to see the people on the
24 direct and cross-examination, to weigh their motive and their
25 actions in this respect and the inferences that should be drawn
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1 from them after argument by counsel. It is a perfect jury
2 trial, and it could be very short.
3 I have done this with statute of limitations, for
4 instance, where the application of the statute turned on really
5 a question of credibility. It is a short trial on a finite
6 issue and that gives a jury's evaluation.
7 MR. SCHAPIRO: So, your Honor, against that backdrop,
8 let me marshal the evidence as we see it now and suggest to you
9 that no reasonable jury could find that this violation was not
10 caused by either Mr. Tur or Marika Tur, because I think if the
11 court agrees with that, then that might obviate this question.
12 If the court thinks it should be tried to a jury, that
13 is fine, we would have no objection. My initial concern,
14 though, is if the court is envisioning us as the lawyers
15 questioning Mr. Tur, I would have some hesitation because that
16 imposes additional expense, distraction, and expenditure of
17 resources on us. I would at least want to look at when that
18 would happen in the middle of --
19 THE COURT: Mr. Schapiro, you are asking for his claim
20 to be dismissed. You could hardly grumble at the burden of
21 being required to examine him on the charges that you brought
22 against him.
23 MR. SCHAPIRO: Your Honor uses the phrase charges that
24 we had brought against him. We have, as I think we said in our
25 letter, followed the evidence where it leads.
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1 THE COURT: You want to make a motion for dismissal of
2 his claim, right?
3 MR. SCHAPIRO: Correct.
4 THE COURT: Maybe your motion should include the
5 argument that the case is so clear that there is no question to
6 submit to a jury in a separate trial.
7 MR. SCHAPIRO: As I said a moment ago, I think that is
8 the case and here is why. Here is what we know. We know that
9 on September 8th Mr. Tur was provided by his lawyers with a set
10 of transcripts that were not redacted properly. We also know
11 that within hours someone using his computer unredacted the
12 transcripts, password protected them, and saved them in a
13 documents folder. We know that six days later Mr. Tur had a
14 conversation with the reporter Sandoval in which he learned of
15 this Veoh case, the Veoh case, for the first time, and then had
16 an e-mail exchange with Mr. Sandoval.
17 We know that late that night Mr. Tur stopped using the
18 profile on his computer, the original profile on his computer,
19 rendering that old profile invisible to other users. It
20 actually became invisible a couple of weeks later when he
21 created a new profile. We know that the next day Mr. Sandoval
22 started calling parties telling them that he was in possession
23 of highly confidential material.
24 We know that on September 18th, Mr. Tur was questioned
25 by some lawyers from Proskauer. He denied being the source,
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1 but never mentioned his communications with Sandoval from
2 September 14th.
3 On October 6th, the Sandoval stories were published.
4 On October 8th, we know -- this is undisputed -- that Mr. Tur
5 told Mr. Shaftel, a lawyer from Proskauer, that he had not
6 spoken with Mr. Sandoval for four or five months, despite the
7 fact that there is proof that he spoke with him just a few
8 weeks earlier.
9 We know that on October 22nd, when he was told to hand
10 over his computer, Mr. Tur handed over a computer that was not
11 the computer he had been using but a different computer. We
12 know that when on November 9th the issue this being the wrong
13 computer was discovered and brought to Mr. Tur's attention or
14 its discovery was brought to his attention, that same day
15 someone undertook what is called a 7-pass wipe of the hard
16 drive, which, according to the forensic service retained by
17 Proskauer, takes about five and a half hours to do and wipes
18 out all information on the computer. We know then that the
19 computer was then turned over to the forensic service.
20 Now, if all of these things are coincidence, then Bob
21 Tur is the unluckiest man in the world.
22 As this court well knows, circumstantial evidence is
23 evidence upon which decisions can be made. They are made every
24 day, by both judges and juries. And the circumstantial
25 evidence in this case and the inferences to be drawn from it
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1 are overwhelming, and that is the case regardless of whether
2 one credits the alibi as to which Mr. Fagan is a witness.
3 On that question, when we stated that we have no
4 objection to the pro hac motion, that was not intended, and I
5 would have jumped ahead in my outline, to be a comment on the
6 witness issue. It was on the assumption that Mr. Fagan could
7 stand up today and speak. But I think the only way to go
8 forward with Mr. Fagan as counsel for Mr. Tur, our position
9 would be to have the purported alibi disregarded entirely. I
10 don't see any circumstance in which the alibi can be put
11 forward and Mr. Fagan can act as a lawyer, because he would
12 have to be cross-examined on the alibi. In any event, I don't
13 think the alibi really does much for him.
14 The evidence that I outlined just now I think is
15 undisputed and undisputable. He receives the documents. They
16 are unredacted. They are hidden in his computer. They are
17 password protected. He gives them the wrong computer. When
18 the real computer is requested, someone wipes out the contents
19 of the hard drive.
20 I personally think that the Marika story is not
21 credible, but I think at the end of the day it doesn't matter.
22 The Marika story doesn't explain why the transcript was found
23 in a mail download folder, it doesn't explain why Mr. Tur
24 failed to disclose his September 14th conversations to his
25 lawyers when they asked about it, it doesn't explain why he
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1 created a new profile. Marika in her deposition said she
2 didn't do that. It doesn't explain why he allowed Marika to
3 access his machine knowing there was an ongoing court-mandated
4 investigation. It doesn't explain how her testimony could be
5 squared with Mr. Tur's deposition testimony that he never
6 allowed anyone access to his computer.
7 We are left with no explanation for Marika's statement
8 that when Mr. Tur returned from New York after his deposition
9 he supposedly expressed surprise to her that the redactions
10 could be removed, despite the fact that we know from
11 declarations from Proskauer that he had been told about that
12 sometime ago.
13 At a minimum, we know that evidence was destroyed,
14 that the hard drive of a computer that was the subject of an
15 investigation ordered by this court was wiped out. Whether it
16 was wiped out by Bob Tur, as I think is overwhelmingly likely,
17 or somehow by Marika Tur, I think that alone would support
18 strong sanctions from this court.
19 So at the end of the day, yes, if the way to resolve
20 this is to seat a jury and ask Mr. Tur questions, great, we
21 will do that. We would like to talk about the timing of it
22 because we are in the middle of a heavy briefing schedule right
23 now. But we will follow the evidence where it leads. I think
24 the evidence is clear enough now that the court can decide
25 without that.
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1 THE COURT: To answer your concern about the timing,
2 any time starting next week. From there on it is at the
3 convenience of counsel. I will make time available.
4 Anybody else wish to be heard on this?
5 Mr. Fagan.
6 MR. FAGAN: Yes, your Honor. I don't think it is at
7 all necessary in this matter --
8 THE COURT: Excuse me?
9 MR. FAGAN: I don't think it is at all necessary in
10 this matter to be concerned with circumstantial evidence. The
11 responses which I gave to letters at the time I did with
12 respect to character were based upon the accusations that were
13 being made before an appropriate, proper investigation could be
14 made as to whether Mr. Tur was the source of the leak. In this
15 day and age of new technology, the technology by itself can be
16 dispositive of whether or not Mr. Tur leaked the transcript to
17 Mr. Sandoval. For example, recently the Supreme Court set
18 aside a stay -- issued a stay of execution, I believe, for
19 someone who was about to be executed because DNA evidence,
20 which is now available, could prove that he was not the
21 culprit.
22 Now, how does the technology work today in this
23 particular matter? Mr. Tur received the transcripts by e-mail.
24 So we must understand how e-mails are transmitted, how they are
25 kept, who are they kept by, and what can anybody do about
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1 destroying them.
2 There are two issues that were raised by the
3 defendants here for which they requested information. One was
4 his telephone records, and in some way the e-mail transmissions
5 are analogous to using your telephone. You don't buy a
6 telephone, pick up the dial, and call anybody throughout the
7 world. It requires power to transmit it. So who you use to
8 transmit that power is your telephone company, whether it is
9 AT&T, Verizon, whoever it may be. When you call -- a little
10 different from e-mails -- your calls are not recorded on your
11 telephone, that is, the numbers you called, necessarily. They
12 go through a transmission line through a telephone provider.
13 It could be AT&T. AT&T keeps a record on its equipment of
14 every single number that you call and every single number that
15 you receive.
16 One of the questions raised by the defendants was did
17 Mr. Tur have any more conversations with Mr. Sandoval other
18 than the one call on September 14th. Mr. Tur -- and you
19 recall, everything requested was given voluntarily by Mr. Tur.
20 Mr. Tur voluntarily consented to the release of his telephone
21 records requested by the defendants that went directly to the
22 evidence. It didn't go to any intermediate provider. They
23 have received that information. Copies were given to me and
24 Mr. Proskauer. It is the technology, the technology, the
25 information retained by AT&T that can prove there was one phone
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1 call. No circumstantial evidence can prove that there is
2 anything else.
3 Now, how does the e-mail providers work in an
4 analogous way. You don't get a computer, put in your own
5 address, and start sending e-mails all over the place. That
6 too, that transmission, requires the use of power, and that use
7 is by people that we call e-mail providers. Apple is one. You
8 don't own that number, that e-mail. It is provided to you by
9 the provider of the transmission of those e-mails. So when you
10 get this e-mail address that you put on your computer and you
11 send an e-mail, it goes to the e-mail provider in the same way
12 that your telephone call goes to your telephone company. That
13 e-mail provider has that information stored on its equipment,
14 which in today's technology is called a server. That is on the
15 equipment of the e-mail provider. Different from a telephone.
16 That information also stays through what they call the use of
17 hard drives, on your own personal computer.
18 So there are two places where every e-mail that is
19 sent out or received remains. One is in your own computer and
20 one is on this equipment of the e-mail service provider.
21 Here's the difference with the telephones. The
22 e-mail, when they go to the e-mail service provider, is sent
23 with an image, like a photo. It doesn't just show the name of
24 the person to whom you sent it, it shows the actual photo of
25 the transmission. That photo is on the server that is not
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1 owned by Mr. Tur or controlled by Mr. Tur or over which he has
2 any control. So that e-mail would be there.
3 THE COURT: You mean the text.
4 MR. FAGAN: Pardon me?
5 THE COURT: The full text.
6 MR. FAGAN: The full text. Attachments, you can show
7 the attachments, you can show the text, you can show everything
8 on that provider.
9 There are two issues here, and I want to cover them
10 both so they are not left out. How could Mr. Tur have
11 transmitted the document to Mr. Sandoval. He could have done
12 it in two ways. He could have printed a hard copy and he could
13 have delivered the hard copy to Mr. Sandoval. So now the
14 question is, what would have been the appropriate way. Instead
15 of going through all of these letters back and forth before
16 anything happened, all these accusations, before my having to
17 respond to circumstantial evidence before all of this is done,
18 it would have been very simple to cut all that out and do --
19 some of which they started, and then completed it before this
20 was presented to the court. That is the following.
21 Forensic images were taken on two computers that
22 Mr. Tur was using. I am not going to refer to the allegations
23 that were made. They were answered in my letters. I can
24 answer them again if you need to. I don't think they are
25 necessary.
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1 The point of fact is that the forensic study done of
2 Mr. Tur's computers ruled out one possibility -- that he
3 printed a hard copy at all. That is an entirely different
4 procedure from this 7-pass wipe. It is done by entirely
5 different technology by the forensic people, and they can tell
6 whether or not it was ever sent to a printer. The evidence of
7 forensic study is it was never sent to a printer. So there was
8 no hard copy ever made of the transfer.
9 The question now becomes, well, here's what the report
10 said. The report said there is no evidence of any transmission
11 of the transcripts to anyone else. However, the report did say
12 there was a missing area in that computer that had been
13 removed. As we have said in our letters, what happens when you
14 do these wipes, it takes things out, and what it takes out is a
15 lot of unused space.
16 So the question is, what could Mrs. Gerrard have done
17 and what did she do and what did she say she did. She said she
18 was trying to get rid of personal information, things that had
19 to do with her personal life, because she knew this computer,
20 one computer was going to go to her daughter and she didn't
21 want her daughter to see.
22 If you recall, after she did what they call the 7-pass
23 wipe, the forensic study could still find these unredacted
24 materials. She wasn't going after that. If she knew how to do
25 this and went after it, it would have been gone. The way they
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1 were able to find the fact that it had been unredacted is
2 because she never made an attempt to remove them.
3 Now the question is, well, suppose she did or suppose
4 she accidentally erased the transmission to Mr. Sandoval. How
5 do you find that out? Well, the defendants knew how to do it.
6 They asked for Mr. Tur to sign the consent to get all of the
7 records and images that are on the server of the internet
8 providers. Mr. Tur voluntarily consented to it on the terms
9 and conditions that were suggested by the defendants. Mr. Tur
10 obviously didn't want all of his personal information to go
11 out, so the defendants coded certain things or certain words
12 that should be sought.
13 Now, how do you do that? We didn't want those to go
14 directly to the defendants because they would have all the
15 records. So the defendants chose a company called FTI, who
16 does all this technological work, and all -- all -- of
17 Mr. Tur's images on the computer -- personal, other business,
18 anything that he ever had on his computers -- were sent to FTI
19 during the period requested by the defendants. FTI then used
20 the protocol that was provided by the defendants to seep
21 through the various items there. I understand there were like
22 25,000 entries on one of them. They came up with five, six or
23 seven hundred, something like that, of things that might, for
24 example, refer to -- and I will give you an example. One is
25 GS. That would be Greg Sandoval. There were numerous GSs that
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1 showed up on these computers. It happened to be somebody
2 else's name GS that had to do with news letters that Mr. Tur
3 received. So anything that related to the protocol that they
4 outlined came to Proskauer and myself and to the defendants.
5 And then we first went through them to see there wasn't
6 anything privileged, things like that. We gave them a
7 privilege log. Everything else was sent to the defendants.
8 When they wrote their letter of February 17th, as
9 Proskauer's letter pointed out today, they had already received
10 the telephone records, they already knew that there was only
11 one phone call from Mr. Tur to Mr. Sandoval, the one on the
12 14th that we had told them about. They knew that FTI at that
13 time had all of the service providers information in their
14 hands. They knew they were about to get them in a week, and
15 yet they sent this other letter again, as they had done before
16 on many occasions, making the accusations before a fact came
17 out. Of the one of them was personally disturbing. It was a
18 letter December 23rd, just before the holidays, when all of us
19 were leaving, and here comes this letter with all these
20 accusations. They have done that a number of times.
21 The important thing is what happened with the images.
22 Here is the technology. There is nothing that Mrs. Gerrard did
23 on a 7-pass wipe on her computer that could wipe out the
24 information of the original transmissions through the provider
25 to Mr. Sandoval. As a matter of fact, just as an aside, when
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1 he mentions it took five hours to do this, it doesn't take five
2 hours. It takes about 35 seconds to start the procedure. It
3 is the machine itself that takes five hours to do it. It
4 doesn't take a lot of personal time to do all of this.
5 The point is that nothing that Mrs. Gerrard did could
6 possibly wipe out the transmission to Sandoval. The images --
7 and they are becoming little pictures, and we open it up and
8 the whole thing shows up. They send a disk. You put the disk
9 in the computer, you show it online. There are hundreds of
10 these little images. You put in the dates where they are and
11 you can see the photos.
12 All of the images of the September 8th transmission
13 from Proskauer to Mr. Tur were there. All of the e-mails on
14 the 14th of September between Mr. Sandoval and Mr. Tur were
15 there on the internet service provider's machine. There was no
16 transmission on those transcripts to anyone. It wasn't sent
17 directly to Mr. Sandoval and there was none sent to some
18 stranger who could have given it to Mr. Sandoval.
19 So it is technology. In my day we used to talk about
20 fingerprints. Remember we took fingerprints. So you found
21 somebody's fingerprints, guilty is the guy. They use that word
22 fingerprints. It is a word that is used for what is put on the
23 equipment of the service provider. Each of those images that
24 goes out of Mr. Tur's computer through his e-mail service
25 provider is a fingerprint, and if Mr. Tur had sent that
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1 transcript to Mr. Sandoval, his fingerprint would be there.
2 You don't use circumstantial evidence. You don't need
3 any circumstantial evidence. This all came in because of the
4 accusations. I can understand at the very beginning of the
5 concern. Yes, there is a leak, you have a concern. But anyone
6 with any knowledge of the technology today would have known if
7 it is an e-mail, there is no way you can hide it.
8 So in terms of needing to know his character and the
9 rest of this, which, as you said, on a personal basis I have
10 some concern and consideration, you don't need any of that to
11 be objective. I have nothing to do on a personal or objective
12 basis to determine whether he did or he didn't. That is all
13 technology. No different than DNA, no different than
14 fingerprints, no different than blood samples, no different
15 from any kind of forensic information that is used today.
16 So to one degree I agree with Mr. Schapiro. You have
17 everything you need here. All of these other letters, they are
18 meaningless. They don't mean a thing in terms of did Mr. Tur
19 violate the protective order by leaking this information to
20 Mr. Sandoval. The answer is there is none. It cannot be
21 proved because it didn't happen. It is kind of saying to
22 somebody -- the strange position we are in is how do we prove a
23 negative. How in the world do you prove that something hasn't
24 been done. I am accused of killing Mr. Jones. I have all the
25 circumstantial evidence that I killed Mr. Jones and we suddenly
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1 find out Mr. Jones never existed. He wasn't alive. That is,
2 in fact, the matter of this case. Mr. Jones was a transmission
3 of this information of the transmit to Mr. Sandoval. It does
4 not exist.
5 All that is happening here is that defendants have
6 continued to do what they did in the California case. If you
7 read Judge Cooper's order, which you did, I'm sure, of the
8 harassment and accusations against Mr. Tur personally and
9 against his attorney during that action, they continue here.
10 They continue here. The court is absolutely right in the
11 comment it made to Mr. Schapiro. Why don't you want to spend
12 time and money on this. You are trying to win this case, you
13 are trying to get rid of him as a plaintiff. A perfectly good
14 comment by the court. Where Mr. Tur is concerned and the
15 Proskauer firm is concerned, who did a good deal of the
16 investigation, they are the ones and I and Mr. Tur who are
17 spending the money on getting this done or having the concern
18 of going to trial.
19 I can argue all the things about motivation. I think
20 it is obfuscation. It is hiding the real issues. It is
21 creating smoke where no fire exists. So I suggest the court
22 direct itself to the most recent letter, which we just got
23 today because we just recently got that information from the
24 service providers. It is not there. I haven't heard from the
25 defendants that they found anything else. And even
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1 Mr. Schapiro in his argument today, what is he arguing?
2 Circumstantial evidence. He doesn't argue that anything on the
3 service provider was there, because it wasn't.
4 THE COURT: Let's give him a chance.
5 MR. FAGAN: Thank you.
6 MR. SCHAPIRO: Your Honor, there is a lot to address
7 so let me start with the issue about the service provider. To
8 be clear, and I don't think Mr. Fagan will dispute this, when
9 my e-mail or Bob Tur's e-mail is hosted by a service that is
10 somewhere out there in the world, if I hit delete and simply
11 delete an e-mail, which I expect Mr. Tur, having gone to the
12 trouble of wiping out his whole hard drive, certainly would
13 have done, it is not going to appear on the service provider's
14 computer.
15 We asked for all those records before we even learned
16 about the 7-pass wipe. But there is nothing at all
17 inconsistent about the absence of a smoking gun e-mail on the
18 service provider's computer and the strong evidence that
19 Mr. Tur sent that e-mail. Anyone who did something like this,
20 who sent an e-mail with attachments to Sandoval, once he
21 learned that there was going to be an investigation would have
22 gone in and just deleted the e-mail, and that is not going to
23 be on the computer. So I would put that aside as a red
24 herring.
25 The suggestion that we have some vendetta against Bob
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1 Tur I think hardly warrants a response. We don't need to knock
2 Bob Tur out of this case to win the case. We are going to win
3 the case on summary judgment, we are going to win the case on
4 the class certification motions. The reason we are asking for
5 terminating sanctions against Bob Tur is not because we think
6 we need to do that to win the case, but because we think there
7 ought to be appropriate punishment and that this is taken
8 seriously.
9 I should have mentioned earlier that Kevin Lacavera,
10 the senior litigation counsel from Google in California, is
11 here today. I think your Honor has noted in prior hearings on
12 this matter that we have had representatives of the company
13 here.
14 We take it absolutely seriously, but we have simply
15 followed the evidence where it leads. While I heard fine prose
16 from Mr. Fagan, I didn't hear answers to the points that I
17 raised when I first stood up, which is that it is indisputable
18 that someone with access to Bob Tur's computer, the same day he
19 received these transcripts, unredacted them. Someone within
20 hours put them in a password protected file on that computer.
21 Mr. Tur six days later spoke to Sandoval. That night -- I
22 don't want to burden the court by repeating the points. I will
23 just state that none of them have been answered.
24 What Mr. Fagan has said is, well, it didn't show up on
25 the server of the third party -- that is true, it didn't show
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1 up -- and we are out to get Bob Tur. I don't think either of
2 those things are pertinent here.
3 As to how the court should proceed, one thing that I
4 think the court could appropriately do, and it would be
5 appropriate here, will be to first find that spoliation of
6 evidence has occurred. Even on Mr. Fagan's account, Marika
7 went in the night before this computer was supposed to be
8 turned over and erased much of the hard drive.
9 Once there is a finding of spoliation, this court can,
10 as courts do everyday, make an evidentiary inference against
11 the party that spoliated. So this court could find spoliation
12 and then enter an evidentiary or find an evidentiary inference
13 of transmission to Sandoval. That would be one appropriate
14 way, I think, to proceed. It doesn't require a credibility
15 determination. So I think that the court could proceed that
16 way.
17 I think it is also important to bear in mind that --
18 THE COURT: The trouble with that is it ducks the
19 issue and it runs the risk that an innocent party with a former
20 wife is put in the position of spoliating evidence that he
21 either didn't do, if Marika's story is credited. She said she
22 wasn't doing it for any purpose, and that could be the case,
23 but for a private purpose.
24 MR. SCHAPIRO: So she is not just, as we have pointed
25 out in our papers, a disinterested third party. I won't burden
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1 the court by going over the details, but they are --
2 THE COURT: I think your argument that her actions
3 should be attributed to Mr. Tur has considerable power and
4 hasn't been addressed.
5 MR. SCHAPIRO: So let's imagine, if we want to, I
6 believe almost unreasonably, credit every argument of
7 Mr. Fagan, we are still left with the following. Again, I
8 think this doesn't pass the straight-face test. But if it is
9 simply the case that Mr. Tur, who has signed the protective
10 order and is obligated to keep confidential material careful,
11 has a business partner, the same way if there were two
12 employees at the Premier League or at Viacom, and allows, one
13 way or another, whether it is by negligence, malice, or
14 something else, Mr. Tur allows -- his employee comes in and
15 destroys evidence that Mr. Tur at least, one important member
16 of this business entity that we think is the plaintiff, Mr. Tur
17 fails to safeguard his material, fails to inform her that his
18 computer needs to be turned over for a forensic examination,
19 and instead has told her some story about giving a brand new
20 computer to his daughter, he still has not taken appropriate
21 care of the confidential information, and a party or the
22 functional equivalent of a party has gone in and destroyed it.
23 Even if it was negligent, it was gross negligence, and the
24 evidentiary inference and sanctions can be imposed.
25 MR. FAGAN: Throughout the proceeding the defendants
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1 have made comments of things that Mr. Tur did that we respond
2 that he didn't do. I don't want to take the time of the court
3 now because I don't think I need to respond to things that are
4 not dispositive. Mr. Schapiro's statement that simply deleting
5 it on the computer deletes it from the service provider is just
6 not true.
7 THE COURT: Well, I sitting here am not in a position
8 to decide.
9 MR. FAGAN: I understand. I say that if that were
10 true, why in the world would somebody ever have to deal with a
11 7-pass wipe. Why would they have to go through that kind of
12 procedure to wipe out or take everything off the whole computer
13 for the purpose of destroying one e-mail, when all they had to
14 do was delete that one e-mail.
15 THE COURT: While you are here, Mr. Fagan, let me get
16 the benefit of your answer to one question. As I listen to
17 your argument, it rests entirely on the proposition that any
18 communication between Mr. Tur and Mr. Sandoval would have been
19 by computer.
20 MR. FAGAN: In terms of turning over copies of the
21 transcript, which were published from Mr. --
22 THE COURT: My recollection is dim on this, I must
23 say, but my general impression was that the secret stuff was
24 simply one question and answer, or perhaps two, maybe four, but
25 it was very short.
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1 MR. FAGAN: I understand. Whether it is a half a
2 page, one page, or the full transcript, it would have to be
3 printed. It would have to be printed.
4 THE COURT: It could be written down on a notepad.
5 MR. FAGAN: But what was in Mr. Sandoval's article --
6 THE COURT: Excuse me?
7 MR. FAGAN: What was in Mr. Sandoval's article was a
8 printed copy of the actual page of the transcript. It wasn't
9 just a reporting of words.
10 THE COURT: I see.
11 MR. FAGAN: I have limited my discussion today to get
12 to what I think is the real point of the matter.
13 THE COURT: I am glad I asked.
14 MR. FAGAN: Could I respond to all of Mr. Schapiro's
15 other things? All it does is confuse what the real issue is.
16 You raise all these other issues, all this other smoke, just
17 throw all stuff at the wall, and you take everybody's attention
18 away from what the real matter is. If it ever gets to the
19 point that those things need to be considered, they would be
20 addressed. We have in most of the letters we have written
21 addressed them.
22 I don't think it was necessary, again, for me to
23 answer the questions that Mr. Schapiro raised. Some of these
24 things actually happened. We don't deny that they happened.
25 We don't deny there was a redaction. It is not a denial. We
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1 don't deny that it was hidden by Mrs. Gerrard from Mr. Tur.
2 That is in her depositions. That is there.
3 Again, I am trying to be very careful not to get into
4 the whole question of intent and the other stuff. Nobody
5 decided to take those transcripts and give them to
6 Mr. Sandoval, and we gave all the reason why if they were going
7 to reveal anything, it would be something to do with the
8 substance of the case. In the letter which I just sent to you
9 today, what I did point out is, and I ask a number of times in
10 the letter, where are the defendants' investigations, where are
11 their e-mails.
12 THE COURT: What is the status of that, Mr. Schapiro?
13 MR. FAGAN: It never happened. They never did
14 anything.
15 MR. SCHAPIRO: Your Honor, we completed our
16 investigation. We stopped once we learned about the Tur issue.
17 The one thing that we have not done, but I can
18 represent as an officer to the court the answer to this, we
19 gathered and submitted over 70 affidavits and declarations.
20 Those have been given to the other side. The one thing they
21 have complained about on occasion is that we didn't submit the
22 declaration from the general counsel, at least of our firm,
23 Mayer Brown, stating that all phone records and e-mails have
24 been searched and that nothing was found.
25 That had been done. I will tell you as an officer of
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1 the court they have been searched. Nothing was found. But we
2 stopped because we were spending everyone's time and money
3 going down a rabbit hole when we then found out that there were
4 unredacted transcripts on Mr. Tur's computer.
5 So there are a couple of things that Mr. Fagan has
6 said that I really think merit a response.
7 MR. FAGAN: I am not finished yet.
8 MR. SCHAPIRO: Finish.
9 MR. FAGAN: One of the issues it gets down to what is
10 the probability of where did this information come from. The
11 information or the request of the leak to Mr. Sandoval had to
12 do with a comment of the chairman of the board of Google. That
13 by itself is a question of why would Mr. Tur be concerned
14 about. There was nothing in there of benefit to him
15 whatsoever.
16 Now what happened recently, which I pointed out in the
17 letter I gave to the court now, there was another article about
18 Google coming from the inside of Google, and that is Mr. Eun,
19 another member of Google. It is attached as the article we
20 gave to the court. That is an article by Mr. Eun, who was a
21 Google employee, I guess. I don't know what his title was. It
22 said he recommended that they do not buy YouTube. That was
23 leaked. Not by Mr. Tur. Where would he get that kind of
24 information?
25 What does it lead me to believe? It leads me to
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1 believe that the same person who leaked the information about
2 the current Sandoval article, about statements of a Google
3 employee, was the same person who leaked the information about
4 Mr. Schmidt's deposition, because they had something to gain.
5 They had been a stockholder. I don't know who it is.
6 Obviously someone had an interest in leaking the recent
7 statement by a Google person. I say to myself, it seems to me
8 it is probably the same source that leaked the information
9 about Mr. Schmidt.
10 THE COURT: Let me just ask as a matter of
11 information, and I am sure it is an idiotic question, has
12 anybody asked Mr. Sandoval?
13 MR. SCHAPIRO: Yes, your Honor. When Mr. Sandoval
14 called for a comment, right when this whole thing blew up, I
15 think after he called Mr. Baskin -- I don't want to be held to
16 the chronology because this is just off the top of my head --
17 he also called someone at Google seeking comment saying, I have
18 the Schmidt transcript, what do you have to say about it.
19 I believe at that point someone said, we can't comment
20 on that, where did you get it, and he said no. I would
21 certainly be interested, although we get into other
22 complications, about hearing from Mr. Sandoval if there were
23 going to be a trial.
24 Could I respond, before Mr. Solomon speaks, to a
25 couple of things Mr. Fagan said? I will keep this as brief as
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1 I can.
2 Mr. Fagan just said, well, it looks like the person
3 who leaked information about Mr. Eun -- it is actually
4 pronounced Eun, E-U-N -- probably was the same person who
5 leaked the Schmidt transcript. He should be careful about
6 saying that because if your Honor looks at the exhibits to our
7 earlier letters, an unredacted copy of the Eun transcript was
8 found on Mr. Tur's laptop. So I think don't the Eun issue
9 helps him whatsoever.
10 Now, we aren't sure what Sandoval is referring to with
11 regards to Eun's beliefs about whether Google should buy
12 YouTube. Sometimes people mangle things. He has the
13 unredacted Eun transcript on his computer, number one. Number
14 two, the reproduction of the Schmidt transcript in the SeaNet
15 article was not a reproduction of the actual transcript, a
16 photocopy. It is Exhibit 2 to the October 6 letter. It is
17 just printed out, typed in the article, with a statement that
18 it has been edited. So that does not mean that he had to have
19 had a printed copy.
20 Your Honor, without belaboring it, there are dozens of
21 ways in which the transcript could have been transmitted to
22 Mr. Sandoval without leaving a trail. The relevant passages
23 could have been read to him on the phone, on the September 14th
24 phone call; they could have been put on what is called a thumb
25 drive and handed to him; they could have been sent by some
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1 other web mail service; it could have been sent by the ordinary
2 mail and deleted. I will dispute Mr. Fagan's statement on
3 that. If you delete something from your Yahoo account, it
4 won't show up on the type of documents that we have requested
5 from them. It is probably somewhere in the computer system, if
6 you wanted to have a forensic service go digging around in
7 Yahoo, but no one has done that. I could list others.
8 Number three, we did discover one troubling thing when
9 we received the information from the third-party host. We
10 didn't raise it immediately, but the e-mail with the
11 transcripts is still on the server. So anyone who wanted to,
12 including Mr. Tur, if he wanted to right now, could go onto his
13 own e-mail, sign in as himself, and the e-mail with the
14 ineffectually redacted transcripts, remove it. It is still
15 there. We had been told by Mr. Tur's lawyers that they had
16 taken care, as they are required to do under paragraphs 10 and
17 16 of the order, to make sure that he destroyed everything. It
18 is still there on his e-mail. Again, if I had his password, I
19 could go in right now, take the transcript, unredact it.
20 Number four, I want to reiterate because we have heard
21 no answer, Marika's actions are attributable to Tur, they are
22 imputable to him. So hiding behind her doesn't help.
23 Actually, I think my number four should have been my
24 number five because those are the points to which I wanted to
25 respond.
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1 THE COURT: Mr. Solomon.
2 MR. SOLOMON: Your Honor, I wanted to answer the
3 court's question whether anyone asked Mr. Sandoval. I did on
4 two occasions. He called me after we got Mr. Schapiro's letter
5 back in September. When I told him I couldn't talk to him
6 about anything, I said, in substance, I want to know whether
7 anybody on our side leaked this information to you. He
8 declined to answer that. It was a similar conversation with
9 him, which we reported within the last couple of weeks. When
10 this article came out, it said: Last fall sources close to the
11 case told SeaNet that Viacom had found information. It was at
12 that point I asked him again and he declined to answer.
13 It was for that reason that we asked the defendants,
14 when we were trying to find out the source of the leak, we
15 asked them to go to the people at Google who had communications
16 with Mr. Sandoval. That has never been done.
17 This is not about accepting the representation of
18 Mr. Schapiro, which I do with respect to the general counsel of
19 the Mayer Brown firm. He can't give a representation because
20 he's told us that although they have checked with people who
21 got copies of the transcript, they never checked with people
22 who have communications with Mr. Sandoval.
23 If the suggestion is that Mr. Tur apparently picked up
24 the phone, although there is no phone record, picked up the
25 phone and read this to Mr. Sandoval, then I think that is why
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1 we asked, well, did anybody at Google have communications with
2 him or Viacom, and that is what we haven't had an answer to.
3 I hope that answers the court's question.
4 MR. SCHAPIRO: I think there must have been a
5 miscommunication between Mr. Solomon and myself. We checked
6 with and submitted declarations from all of the in-house people
7 at Google who had the Schmidt transcript. There are too many
8 people who didn't have the Schmidt transcript, and that would
9 seem like a waste of time.
10 Each of those people detailed, in a far more
11 forthcoming way than Mr. Tur, for example, did in his
12 declaration or certain lawyers at Proskauer did in their
13 declarations, any past dealings with Sandoval. Those have all
14 been made available. Each person who was in-house at Google
15 who had the Schmidt transcript submitted a declaration saying,
16 here are my dealings, if any, that I have ever had in my life
17 with Sandoval and I didn't transmit this, I haven't talked to
18 the guy for a year, or whatever the case may be.
19 So I think there might have been a miscommunication.
20 If Mr. Solomon is asking that we go through our whole press
21 department and quiz anyone who has ever dealt with Sandoval but
22 who didn't have the Schmidt transcript, we are not going to do
23 that unless the court orders us to. It is an additional waste
24 of time.
25 MR. SOLOMON: I did report to the court in my
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1 affidavit, and I won't belabor the fact, that Mr. Sandoval did
2 tell me he had multiple sources. His article says that.
3 THE COURT: Has what Mr. Schapiro just said answered
4 your question, or not?
5 MR. SOLOMON: It did not, your Honor.
6 THE COURT: Because you do want the information from
7 people who dealt with Sandoval in the past regardless of
8 whether they received this transcript. Is that correct?
9 MR. SOLOMON: Yes, your Honor.
10 THE COURT: That turns, really, on a matter of
11 recollection about what I said way back then when I was
12 suggesting steps to be taken, and I simply don't remember. My
13 guess was my words included those in the press department who
14 had relations, dealings of any sort with Sandoval even if they
15 did not receive the transcript. I think we should all be
16 guided by what I said then.
17 MR. SCHAPIRO: Your Honor, I believe that your
18 Honor --
19 THE COURT: I don't want to revisit it now.
20 MR. SCHAPIRO: I just want to add one fact. I think
21 your Honor said something along those lines. Your Honor also
22 said that you would leave it to us to work out the protocol.
23 THE COURT: I think that is quite true. I thought I
24 was making suggestions, not issuing orders.
25 MR. SCHAPIRO: When we spoke as well with counsel for
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1 Viacom, I believe -- I don't want to misrepresent -- both the
2 defendants and Viacom felt that it would be an undue imposition
3 and wouldn't make much sense to have to go in-house to people
4 who had never received the Schmidt transcript. So I think in
5 the negotiations that followed about the protocol, you had at
6 least two of the three parties who said let's at least do this
7 initially and see what we find before we dig any deeper. That
8 was where we ended up.
9 Mr. Solomon, I think you will see, in a
10 transmission -- it is even in some of the filings here. When
11 we transmitted the protocol, I think my first sentence in my
12 e-mail was, subject to Lou's objections, this is what we are
13 going to do going forward. Noting Lou's objections, this is
14 what we are going to do going forward for now. So that was an
15 open issue.
16 I think now especially, given what we have seen, it
17 really it would make sense.
18 THE COURT: It seems to be still to some extent an
19 open issue. It is in the coda of every letter I get from
20 Proskauer. It is like ending with the words "Carthage should
21 be destroyed." I would miss it if it weren't there.
22 I think it is time it was addressed by counsel and
23 laid to rest one way or the other. I don't want to proceed
24 with it any further at this point because I would feel
25 uncertain that I was ruling correctly, but it ought to be
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1 addressed and cleared up.
2 Anything else anybody wants to say? OK.
3 We met on the purpose of a premotion conference, and
4 the defendants have permission to make the motion that they are
5 entitled to make under the Federal Rules of Civil Procedure and
6 the general law.
7 At the end of hearing what you all had to say, if
8 anything, it reinforced my suspicion that the proper way to
9 dispose of this is by a short, simple jury separate trial under
10 Rule 42(b) which will determine the rights and wrongs of the
11 situation. Your views are polar opposites. Maybe it is all
12 disposed of by someone who knows whether redaction removes it
13 from the files of the server or does not. But I am certainly
14 not one of those persons.
15 So go ahead with your motion asking for the
16 appropriate relief and work out a time to respond. I know you
17 have other things to do, but this is an important question, not
18 a trivial one. It has got to be dealt with seriously and
19 proper.
20 Thank you all very much.
21 (Adjourned)
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