Motion of defendants FACTNet and Lawrence Wollersheim to amend pretrial order to add witnesses

[December 11, 1998]

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO


Civil Action No. 95-K-2143


BRIDGE PUBLICATIONS, a California non-profit corporation,

    Plaintiffs,

V.

F.A.C.T.NET, INC., a Colorado nonprofit corporation; LAWRENCE WOLLERSHEIM, an individual; and ROBERT PENNY, an individual,

    Defendants.



MOTION OF DEFENDANTS F.A.C.T.NET AND LAWRENCE WOLLERSHEIM TO AMEND PRETRIAL ORDER TO ADD WITNESSES PRUSUANT TO F.R.C.P. RULE 16(e) (WITH INCORPORATED D.C. COLO L.R. 7.1A CERTIFICATE OF COMPLIANCE)



I.    INTRODUCTION

    Defendants F.A.C.T.Net, Inc., a Colorado non- profit corporation and Lawrence Wollersheim, move this court for permission to amend the pretrial order submitted herein pursuant to F.R.C.P. rule 16(e) in order to prevent manifest injustice.

    Defendants have submitted herewith as Exhibit "A," the original pre-trial order of January 1998, and the proposed language amending and adding to the pretrial order as Exhibit "B."

    The proposed changes in the pretrial order will serve to "prevent manifest injustice" in that the defendants have just recently discovered solid evidence that a significant number of the deposit copies submitted to the copyright office differ significantly from the form in which these same documents were originally published. (See Exhibits to Defendants' motion to reopen discovery filed concurrently herewith.) The evidence in question was only located and became available to the defendants since mid-October of 1998. (See Declaration of Daniel A. Leipold)

    The evidence in question goes to the heart of this case. Specifically, it supports the recent testimony of Jesse Prince that many of the documents at issue herein have in fact fallen into the public domain. (See Memorandum Opinion and Order on Further Pending Motions dated November 5, 1998, pages 7 and 14-17.) Each of the witnesses identified in the proposed amendment to the pretrial order have been selected because they can give specific testimony regarding whether the deposit copies of the documents were materially altered prior to their registration with the copyright office. For example, some recently discovered "true originals" indicate the altering of documents before registration with the copyright office by adding a "backdated copyright notice" to a document that had already been published. Other "true originals" indicate that previously published documents that had "gone public domain" were slightly altered from the form in which they were originally published and then registered with the copyright office. Yet, BPI claims the entire registered document is validly copyrighted rather than the changes to the originals.

II. ALLOWING THE AMENDMENT OF THE PRETRIAL ORDER WILL PREVENT A MANIFEST INJUSTICE FROM OCCURING

    Once formulated, pretrial orders should not be changed lightly, but total inflexibility is undesirable. Clark v. Pennsylvania R. R. Co 328 F2d 59 (2nd Cir. 1964). Amendment of pretrial orders should be allowed in order to "prevent manifest injustice." F.R.C.P. Rule 16(e).

    In a case that is extremely similar to the case at bar, this court allowed amendment of a pretrial order. Computer Associates Intern v. American Hardware 831 F. Supp. 1516 (D. Colo. 1993). "Whether to allow amendment of the pretrial order is a matter in my discretion. See Joseph Mfg. Co. v. Olympic Fire Corp. 986 F. 2d 416, 418 (10th Cir. 1983). Modification should be permitted 'when the danger of surprise is small and a failure to amend might result in an injustice to the moving party.' GA Charles A. Wright, et al. Federal Practice and Procedure section 1527 at 287 (1990); see also Hull v. Chevron U.S.A., inc. 812 F. 2d 584, 588 (10th Cir. 1987)." Supra at pg. 1526.

III.    PLAINTIFFS WILL SUFFER NO PREJUDICE BY ALLOWING AMENDMENT OF THE PRETRIAL ORDER TO ALLOW ADDITIONAL WITNESSES TO TESTIFY

Plaintiffs will be given a timely opportunity to examine the documents in question and to depose the witnesses included in the amendment to the pretrial order. The necessary additional discovery should be easily accomplished long prior to the April dates currently set for the reference in this case.

    Further, if in fact the deposit copies of the documents at issue have not been altered, the amendment to the pretrial order will allow this issue to be put to rest forever and remove a persistent question involving some of plaintiff's valuable copyrights. It should be noted that plaintiff's witness, Mr. Norman Starkey, in fact, has little knowledge as to the origin of the documents for which he signed the copyright registrations. (Memorandum Opinion and Order on Further Pending Motions dated November 5, 1998, at pg. 11.)

    No danger of surprise to the plaintiff exists in this case as they have known since November 5, 1998, that plaintiff BPI's presumption of copyright validity had been pierced and that the validity of their claimed copyrights would have to be proved up in court.

Plaintiff will suffer no more prejudice than any other copyright claimant whom the court has ruled is not entitled to the presumption of copyright validity.

IV.    DEFENDANTS WILL SUFFER SIGNIFICANT PREJUDICE IF IN FACT DEFENDANTS ARE NOT ALLOWED TO PROVE THAT PLAINTIFF'S HAVE ENGAGED IN A MASSIVE CAMPAIGN TO DECIEVE THE COPYRIGHT OFFICE AND THIS COURT.

Defendants are being sued in what plaintiff has characterized as the largest copyright case in the United States. Plaintiffs seek to impose statutory damages on defendants of up to $100,000 a piece for 1,900 alleged copyright violations. This, despite the fact that defendants have never even published any of the 1,900 copyrights in question.

From the beginning of this case, defendants have questioned whether the alleged copyrighted documents in fact constituted actual originals. To allow the plaintiff's to foist on the court and defendants altered deposit copies of documents that have fallen into the public domain would be to allow this court to be used in aid of a fraud.

Defendants have never been able to challenge specific exhibits offered by plaintiff until they recently discovered large collections of original documents that predate the copyright registrations in question. Plaintiffs have controlled all the cards with reference to the registration of the copyrights and the authenticity of these documents. Defendants request that this court examine the exhibits submitted in support of defendants' motion to reopen discovery. These documents raise serious questions as to whether the plaintiff has attempted to deceive the defendants, this court and the copyright office on a potentially massive scale. Clearly, the substantial, prima fascia evidence of copyright fraud presented to the court herewith warrants a careful examination that can only be accomplished by a reopening of discovery and an amendment to the pretrial order. Plaintiff should hardly be rewarded for having been successful in carrying out a plan of misdirection, deceit and fraud that has only recently started to unravel.

No danger of surprise exists in this case as plaintiff BPI has known since November 5, 1998, that it would not receive the benefit of a presumption of copyright validity and that the validity of the copyright registrations would be subject to challenge. (See Memorandum Opinion and Order on Further Pending Motions dated November 5, 1998, at pg. 19.)

V.    CONCLUSION

This court has an opportunity to step back at this point in this hotly contested and massively over litigated case to take stock of how this case should proceed so as to serve the interests of justice. It is respectfully submitted that this court should allow the pretrial order to be amended so that a manifest injustice will not occur. Since the denial of BPI's summary judgment motion on November 5, 1998, and the piercing of BPI's presumption of copyright the landscape and scope of this case has changed drastically. The pretrial order of January 1998, no longer accurately reflects the case as it stands today and should be altered to reflect the new circumstances of this case.

The court should exercise its discretion and allow amendment of the pretrial order.


DATED:

BEEM & MANN

(signed) CLIFFORD BEEM