IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 95-K-2143
BRIDGE PUBLICATIONS, INC., a California non-profit corporation,
Plaintiff,
v.
F.A.C.T.NET., INC., a Colorado corporation; LAWRENCE WOLLERSHEIM,
an individual; and ROBERT PENNY, an individual,
Defendants.
PRETRIAL ORDER
I. DATE OF PRETRIAL CONFERENCE
January 29, 1998.
II. JURISDICTION
This Court has subject matter jurisdiction over this action
pursuant to 28 U.S.C. 1331 and 1338(a), in that this is an
action for copyright infringement under 17 U.S.C. 501.
III. CLAIMS AND DEFENSES
A. Plaintiff's Statement Of Its Claims
Plaintiff Bridge Publications, Inc. ("BPI") seeks a judgment
of copyright infringement against defendants F.A.C.T.Net, Inc.
("F.A.C.T.Net"), Lawrence Wollersheim ("Wollersheim") and Robert
Penny ("Penny").1 BPI alleges that: (1) it is the exclusive
licensee of the copyrights in 1,914 copyrighted works2 authored
by L. Ron Hubbard; (2) defendants made unauthorized, verbatim
copies of these works in both hard copy and computer readable
form (stored on hard drives, back-up tapes, floppy disks and
CD-ROMs ("CDs")); and (3) defendants offered for sale to the
public and, in fact, sold CDs containing computer readable copies
of the vast majority of these works, all in violation of BPI's
exclusive rights under 17 U.S.C. 106.
BPI seeks the entry of a permanent injunction prohibiting
defendants from any unauthorized reproduction, adaptation,
distribution, publication, performance, or display, including but
not limited to any so-called archiving, in any media, of any of
the works of L. Ron Hubbard, including but not limited to those
works identified in Plaintiff's Exhibit List. BPI also seeks all
remedies under the Copyright Act, including but not limited to
statutory damages and attorneys' fees for defendants'
infringements, pursuant to 17 U.S.C. 504(c) and 505, as well
as impoundment and destruction of all infringing copies and the
means for making such copies, pursuant to 17 U.S.C. 503.
Furthermore, BPI alleges that defendants' infringements were
willful and that BPI is therefore entitled to the enhanced
statutory damages, pursuant to 17 U.S.C. 504(c)(2), in the
amount of $100,000 per work.
B. Defendants' Statement of Case:
Defendants FACTNet, Inc., a Colorado non-profit corporation,
Lawrence Wollersheim and Robert Penny deny the allegations of the
plaintiff and respond as follows:
1. Defendants allege that there are only 13 works at issue
herein.
2. One or more defendants may or may not have made copies
of portions of the 13 works.
3. All of the works copied were copied for scholarship,
research and backup purposes against ongoing and threatened
attacks by Scientology, and fell within the doctrine of fair use.
4. Defendants did not publish any of the works, nor did
they offer them for sale or sell any of the works in violation of
BPI's license in the works.
5. Defendants deny that any copying of portions of the 13
works was willful and, in fact, allege that it was entirely
privileged.
6. Defendants deny that the plaintiff has any right to
recovery herein and seek an award of attorneys' fees because of
the malicious prosecution of this action by BPI (hereinafter
Scientology).
C. Defendants' Statement Of Their Affirmative Defenses
1. Laches.
Many of the documents at issue herein are necessary for the
prosecution of the plaintiff's action against Scientology in
Wollersheim v. CSC (1989) 212 Cal.App.3d 872, and the defense of
actions brought by Scientology against Wollersheim; RTC and CSI
v. Wollersheim, 9th Cir. 1992, 971 F.2d 364; CSC, et al. v.
Superior Court, et al., U.S.D.C. (Central Dist. of California)
CV86-1362; and CSC v. Wollersheim (1996) 42 Cal.App.4th 628.
Defendants allege that plaintiff BPI and former plaintiff RTC are
part of the overall enterprise of Scientology and have no
separate corporate existence. Defendants further allege that
this suit was initiated when it became apparent to Scientology
that it was going to suffer a loss in the Wollersheim IV case
(CSC v. Wollersheim (1996) 42 Cal.App.4th 628).
2. Collateral Estoppel.
Defendants' right to use copyrighted Scientology documents
for litigation purposes against Scientology was previously
determined in RTC and CSI v. Wollersheim (9th Cir. 1992) 971 F.2d
364. BPI is an aligned party with RTC and CSI and is therefore
bound by these findings.
3. Res Judicata.
Defendant Wollersheim's right to use copyrighted Scientology
documents for litigation purposes with Scientology was previously
determined in RTC and CSI v. Wollersheim (9th Cir. 1992) 971 F.2d
364. BPI is an aligned party with RTC and CSI and is therefore
bound by these findings.
4. Unclean Hands.
Scientology (including BPI, plaintiff herein) is judicially
declared to have subjected Lawrence Wollersheim and Robert Penny
to fair game. Wollersheim v. CSC (1989) 212 Cal.App.3d 872.
Additionally, they have been judicially declared to use
litigation to bludgeon Mr. Wollersheim into submission. CSC v.
Lawrence Wollersheim (1996) 42 Cal.App.4th 628. Pursuant to the
written policy of Scientology, BPI has brought and maintained
this litigation:
(a) In order to silence defendants;
(b) In order to make an example of
defendants that no one can stand up to
Scientology;
(c) In order to prevent Wollersheim from
collecting the outstanding $6 million judgment
against CSI, RTC and CSC;
(d) Pursuant to Scientology's written policy
to use litigation to "utterly destroy" its
enemies, defendants.
Scientology is judicially estopped from denying that it uses
tactics of over-litigation and abusive litigation against its
declared enemies, including Wollersheim. RTC, et al. v. Robin
Scott, et al., Civil Action 85-711-MRP. (Consolidated with RTC
and CSI v. Wollersheim (9th Cir. 1992) 971 F.2d 364).
5. Copyright Misuse.
Scientology (including BPI, plaintiff herein) is judicially
declared as subjecting Lawrence Wollersheim and Robert Penny to
fair game. Wollersheim v. CSC (1989) 212 Cal.App.3d 872.
Additionally, they have been judicially declared to use
litigation to bludgeon Mr. Wollersheim into submission. CSC v.
Lawrence Wollersheim (1996) 42 Cal.App.4th 628. Pursuant to the
written policy of Scientology, BPI has brought and maintained
this litigation:
(a) In order to silence defendants;
(b) In order to make an example of
defendants that no one can stand up to
Scientology;
(c) In order to prevent Wollersheim from
collecting the outstanding $6 million judgment
against CSI, RTC and CSC;
(d) Pursuant to Scientology's written policy
to use litigation to "utterly destroy" its
enemies.
Scientology is judicially estopped from denying that it uses
tactics of over-litigation and abusive litigation against its
declared enemies, including Wollersheim. RTC, et al. v. Robin
Scott, et al., Civil Action 85-711-MRP. (Consolidated with RTC
and CSI v. Wollersheim (9th Cir. 1992) 971 F.2d 364).
6. Plaintiff Enforces the Alleged Copyrights Unlawfully.
Defendants have never published any of the copyrighted
material at issue herein. All evidence of the purported
copyright violations are the product of an illegal search and
seizure barred by the Fourth Amendment of the Constitution.
BPI was not an original party to this action. While
alleging that it is a separate corporation from RTC, it is in
fact a party to the same common enterprise of Scientology and is
controlled by the "Sea Org" organization run by David Miscavige,
the Chairman of the Board of RTC and the head of the "Sea Org."
RTC's officers, attorneys and agents obtained a writ of seizure
allowing them to search for documents that they knew were
licensed to BPI, rather than to RTC, and then unlawfully shared
this information with BPI, allowing BPI access to documents which
it could never have lawfully obtained a writ of seizure to
obtain.
7. Public Domain.
Examination of the copyright history reveals that numerous
works went into the public domain before being registered.
8. Fair Use.
The works in question are portions of compilations and only
13 copyrights are at issue. Defendants allege there has been no
duplication of these documents in their entirety and the only
copies made were made for purposes of archiving the material
against anticipated Scientology attempts to destroy the FACTNet
database, and for use in ongoing research and litigation with
Scientology. Defendants allege that there was no sale at any
time of the alleged works.
9. Librarian Archive Exception of Section 108 of the
Copyright Act.
The need for, and the practice of, making a backup copy of
computer applications, and especially data, is universally
recognized in the computer and information system industry and
field. This is done in order to assure the user that in the
event of mechanical, electrical or physical damage to the
software program or disk, a functional backup copy is available
for use. The creation of backup copies of computer software is
codified in 17 U.S.C. 117.
Further, a library archive's need for making backup copies
of copyrighted works is so well recognized as to enjoy
codification in 17 U.S.C. 108. Section 108 authorizes libraries
and their employees to make and distribute copies of copyrighted
works as long as:
(a) The copies are made without direct or
indirect commercial motivations;
(b) The libraries are open to the public or
available to researchers in a specialized field;
(c) The copies made include a copyright
notice.
Even where the copying does not fit squarely within
statutory fair use exceptions, courts apply the policies
underlying such statutory exceptions in a fair use analysis under
17 U.S.C. Section 107.
Under the circumstances of this case, FACTNet acted
reasonably to make multiple backup copies which were not
published or sold. Defendants did so in light of the ongoing
litigation policy of Scientology and a real fear that defendants
were subject to the fair game policy of Scientology and that
FACTNet's computer archives would be penetrated and destroyed.
10. Plaintiff's claims are barred in that it is not the
actual owner of the alleged copyrights and that the alleged
copyrights were obtained by fraud, duress, undue influence, or
illegal procedures.
Plaintiff's contention that the probate judgment proceedings
regarding the transfer of copyrights are conclusive as to the
"whole world" and cannot be challenged by anyone is a fiction.
There were a number of unusual occurrences in the probate
proceedings, and serious questions exist as to whether the chain
of title for BPI's license rights are valid, and thus, whether
BPI has standing to bring this action.
11. Statute of Limitations.
BPI is asking for damages as well as injunctive relief for
any actions that BPI alleges constitute a copyright infringement
which occurred well before the three years prior to BPI filing
the complaint in this action.
12. Abuse of Process.
Plaintiff BPI has not brought this action to vindicate any
legitimate copyright violations but rather to silence critics,
punish enemies of Scientology, and prevent legitimate First
Amendment discussion of Scientology's practices. BPI is
participating in a plan of serial litigation against Lawrence
Wollersheim as part of Scientology's fair game policy and as part
of its policy of "Not One Thin Dime for Wollersheim." BPI's
actions and RTC's actions herein, as well as in Wollersheim I,
II, II and IV, constitute acts of litigation terrorism and thus
bar plaintiff's claims herein.
Defendants have never published any of the copyrighted
material at issue herein. All evidence of the purported
copyright violations are the product of an illegal search and
seizure barred by the Fourth Amendment of the Constitution.
BPI was not an original party to this action. While
alleging that it is a separate corporation from RTC, it is in
fact a party to the same common enterprise of Scientology and is
controlled by the "Sea Org" organization run by David Miscavige,
the Chairman of the Board of RTC and the head of the "Sea Org" of
Scientology. RTC's officers, attorneys and agents obtained a
writ of seizure allowing them to search for documents that they
knew were licensed to BPI, rather than RTC, and then unlawfully
shared this information with BPI, thus giving BPI a basis to join
in this action as an additional party plaintiff by filing an
amended complaint herein.
13. Judicial Fair Use.
Defendants' copying of Scientology's works in connection
with Wollersheim's long litigation history with Scientology and
Wollersheim and FACTNet's role as expert witnesses against
Scientology was protected fair use. Reproduction of a work, even
in its entirety, in connection with a judicial proceeding, is
fair use because "it serves a qualatively different function and
does not satisfy the reader demand for the original."
14. Set Off
In Wollersheim v. CSC (1989) 212 Cal.App.3d 872, defendant
Lawrence Wollersheim was awarded damages against the Church of
Scientology of California. By order of October 29, 1997, that
judgment was amended to add CSI and RTC as judgment debtors and
real parties in interest. BPI is a "Sea Org" organization which
is entirely controlled by the head of the "Sea Org", an
unincorporated association. The head of the Sea Org is David
Miscavige, the Chairman of the Board of RTC.
15. Defendants' actions are barred by a release.
The law firm of Lewis, D'Amato, Brisbois & Bisgaard settled
claims with Scientology. Scientology entered into a release
with Lewis, D'Amato, Brisbois & Bisgaard pertaining to all claims
and rights releasing that law firm and its agents, including
defendants, from all liability on January 18, 1995, thus barring
the claims herein.
D. Plaintiff's Response To Defendants' Statement Of
Their Affirmative Defenses
Each and every one of defendants' affirmative defenses is
insufficient, in fact, in law or both. Presently pending before
this Court are BPI's Motion for Summary Judgment, filed on July
29, 1997 and BPI's Motion for Rule 11 Sanctions against FACTNet
and Wollersheim and their counsel, filed on September 30, 1997.
Together, these motions seek to strike or dismiss each and every
affirmative defense asserted by defendants herein.
IV. STIPULATIONS
The parties have not agreed upon any stipulations.
V. PENDING MOTIONS
The following motions have been fully briefed and are
pending before either this Court or Magistrate Judge Abram:
1. BPI's motion for summary judgment against all
Defendants was filed on July 29, 1997. Defendants Wollersheim
and F.A.C.T.Net responded by filing a Rule 56(f) motion on August
19, 1997 (see paragraph V(4), infra), and have filed no
substantive opposition. Defendant Penny filed his opposition
papers, as well as a cross-motion for summary judgment, on August
21, 1997. BPI's papers in response to Penny's opposition and
cross-motion were filed on January 14, 1998.
2. BPI's motion for Rule 11 sanctions against defendants
F.A.C.T.Net and Wollersheim and their counsel, which seeks, inter
alia, the striking of twenty-two of the affirmative defenses set
forth in defendants' Second Amended Answer, was filed on
September 30, 1997. Defendants' opposition papers were filed on
November 7, 1997, and BPI's reply papers were filed on November
21, 1997. This motion is pending before the Court.
3. The motion of defendants F.A.C.T.Net and Wollersheim to
reopen discovery under Fed. R. Civ. P. 16(b) was filed on
September 2, 1997. BPI's opposition papers were filed on
September 30, 1997, and movants' reply papers were filed on
October 15, 1997. This motion is pending before Magistrate Judge
Abram.
4. The motion of defendants F.A.C.T.Net and Wollersheim
for discovery pursuant to Rule 56(f) was filed on September 2,
1997. BPI filed opposition papers, as well as a cross-motion for
sanctions under Rule 56(g), on September 30, 1997. Movants'
reply papers were filed on October 15, 1997. The motion and
cross-motion are pending before the Court.
5. On January 12, 1998, defendants filed a Motion for Stay
Pending Outcome of Appeal in California State Second District
Court of Appeal. On January 13, 1998, the Court ordered BPI to
file a response to defendants' Motion by February 4, 1998. This
motion is pending before the Court.
VI. WITNESSES
A. Non-Expert Witnesses To Be Called By Plaintiff
1. Witnesses Who Will Testify At Trial
a. Ryland Hawkins
Los Angeles, California
Testifying in Person
Mr. Hawkins will testify concerning the chain of title for,
BPI's ownership interest in, and the registration of, the
copyrights in the works infringed by defendants. In addition,
Mr. Hawkins will testify concerning the revenues received by BPI
from marketing the works infringed by defendants and the
potential market harm posed by defendants' infringements, as well
as the marketability and marketing of the works.
b. Cathy Greenspan
Los Angeles, California
Testifying in Person
Ms. Greenspan will testify concerning copyright registration
and filing procedures of plaintiff and/or plaintiff's predecessor
in interest.
c. Thomas Small, Esq.
Small, Larkin, & Kidd‚
Eighteenth Floor
10940 Wilshire Blvd.
Los Angeles, CA 90024-3945
Testifying in Person
Mr. Small will testify concerning copyright registration and
filing procedures of plaintiff and/or plaintiff's predecessor in
interest.
d. Lawrence Wollersheim
Ignacio, COlorado
Testifying in Person and by Deposition
Mr. Wollersheim will testify concerning defendants' copying
and commercial distribution of BPI's copyrighted works, as well
as other matters bearing on the scope and willfulness of
defendants' infringements. In addition, Mr. Wollersheim's
testimony will demonstrate the absence of any factual basis for
defendants' affirmative defenses.
e. Robert Penny
Longmont, Colorado
Testifying in Person and/or by Deposition
Mr. Penny will testify concerning defendants' copying and
commercial distribution of BPI's copyrighted works, as well as
other matters bearing on the scope and willfulness of defendants'
infringements. In addition, Mr. Penny's testimony will
demonstrate the absence of any factual basis for defendants'
affirmative defenses.
f. Ann Weber
Ignacio, COlorado
Testifying in Person
Ms. Ann Weber will testify concerning acts of misconduct of
the various defendants and/or their agents evidencing defendants'
willful infringement.
g. Graham Berry
Musick, Peeler & Garrett
One Wilshire Boulevard
Los Angeles, CA 90017
Testifying in Person
Mr. Berry will testify concerning acts of misconduct of the
various defendants and/or their agents evidencing defendants'
willful infringement.
h. Arnaldo Lerma Arlington, Virginia
Testifying by Deposition
Mr. Lerma will testify concerning defendants' copying and
commercial distribution of BPI's copyrighted works, as well as
other matters bearing on the scope and willfulness of defendants'
infringements. In addition, Mr. Lerma's testimony will
demonstrate the absence of any factual basis for defendants'
affirmative defenses.
i. Jeffrey Jacobsen
Scottsdale, Arizona
Testifying by Deposition
Mr. Jacobsen will testify concerning his purchase from
defendants of CDs which contained unauthorized computer readable
copies of the majority of the works sued upon by BPI, as well as
other matters bearing on the scope and willfulness of defendants'
infringements.
2. Witnesses Who May Testify At Trial If The Need
Arises
j. Helena Kobrin
Burbank, California
Testifying in Person
Ms. Kobrin may testify concerning the chain of custody for
the CDs purchased by Jeffrey Jacobsen from defendants. Ms.
Kobrin may also testify concerning certain Internet postings by
defendants and their agents and co-conspirators that bear on the
scope and willfulness of defendants' infringements. Ms. Kobrin
may also testify concerning the execution of the Writ of Seizure
at Mr. Penny's residence.
k. Ronald Tencati
Oakton, Virginia
Testifying in Person
Mr. Tencati may testify concerning the unauthorized copies
of BPI's works that were found on defendants' computer media, as
well as the manner in which BPI discovered these unauthorized
copies.
l. Robert Dillon
Aspen, Colorado
Testifying in Person
Mr. Dillon may testify concerning the unauthorized copies of
BPI's works that were found on defendants' computer media, as
well as the manner in which BPI discovered these unauthorized
copies.
m. Albert Lane
Fairfax, Virginia
Testifying in Person
Mr. Lane may testify concerning the unauthorized copies of
BPI's works that were found on defendants' computer media, as
well as the manner in which BPI discovered these unauthorized
copies.
n. James Settle
Springfield, Virginia
Testifying in Person
Mr. Settle may testify concerning the unauthorized copies of
BPI's works that were found on defendants' computer media, as
well as the manner in which BPI discovered these unauthorized
copies.
o. Maier Salfiti
Westminister, Colorado
Testifying in Person
Mr. Salfiti may testify concerning the unauthorized copies
of BPI's works that were found on defendants' computer media, as
well as the manner in which BPI discovered these unauthorized
copies.
p. Pouran Rajkumar
Virginia
Testifying in Person
Mr. Rajkumar may testify concerning the unauthorized copies
of BPI's works that were found on defendants' computer media, as
well as the manner in which BPI discovered these unauthorized
copies.
q. Andrew Pleszrun
Ignacio, COlorado
Testifying in Person
Mr. Pleszrun may testify concerning the unauthorized copies
of BPI's works that were found on defendants' computer media, as
well as the manner in which BPI discovered these unauthorized
copies.
r. Ben Litoff
Denver, Colorado
Testifying in Person
Mr. Litoff may testify concerning the unauthorized copies of
BPI's works that were found on defendants' computer media, as
well as the manner in which BPI discovered these unauthorized
copies.
s. Bob Pazden
Gold Hill, Colorado
Testifying in Person
Mr. Pazden may testify concerning the unauthorized copies of
BPI's works that were found on defendants' computer media, as
well as the manner in which BPI discovered these unauthorized
copies.
t. Brian Anderson
Berthard, Colorado
Testifying in Person
Mr. Anderson may testify concerning the unauthorized copies
of BPI's works that were found on defendants' computer media, as
well as the manner in which BPI discovered these unauthorized
copies.
u. Brad Artman
Golden, Colorado
Testifying in Person
Mr. Artman may testify concerning the unauthorized copies of
BPI's works that were found on defendants' computer media, as
well as the manner in which BPI discovered these unauthorized
copies.
v. Chris Argo
Ignacio, COlorado
Testifying in Person
Mr. Chris Argo may testify concerning the unauthorized
copies of BPI's works that were found on defendants' computer
media, as well as the manner in which BPI discovered these
unauthorized copies.
w. Chris Marsh
Ignacio, COlorado
Testifying in Person
Mr. Chris Marsh may testify concerning the unauthorized
copies of BPI's works that were found on defendants' computer
media, as well as the manner in which BPI discovered these
unauthorized copies.
x. Dudley Emmert
Ignacio, COlorado
Testifying in Person
Mr. Emmert may testify concerning the unauthorized copies of
BPI's works that were found on defendants' computer media, as
well as the manner in which BPI discovered these unauthorized
copies.
y. Dave Roekel
Ignacio, COlorado
Testifying in Person
Mr. Roekel may testify concerning the unauthorized copies of
BPI's works that were found on defendants' computer media, as
well as the manner in which BPI discovered these unauthorized
copies.
z. Dan Siff
Ignacio, COlorado
Testifying in Person
Mr. Siff may testify concerning the unauthorized copies of
BPI's works that were found on defendants' computer media, as
well as the manner in which BPI discovered these unauthorized
copies.
aa. Elizabeth Argo
Loveland, Colorado
Testifying in Person
Ms. Argo may testify concerning the unauthorized copies of
BPI's works that were found on defendants' computer media, as
well as the manner in which BPI discovered these unauthorized
copies.
bb. Greg Achilles
Denver, Colorado
Testifying in Person
Mr. Achilles may testify concerning the unauthorized copies
of BPI's works that were found on defendants' computer media, as
well as the manner in which BPI discovered these unauthorized
copies.
cc. Jeff Butters
Denver, Colorado
Testifying in Person
Mr. Butters may testify concerning the unauthorized copies
of BPI's works that were found on defendants' computer media, as
well as the manner in which BPI discovered these unauthorized
copies.
dd. Jeff Dawson
Ignacio, COlorado
Testifying in Person
Mr. Dawson may testify concerning the unauthorized copies of
BPI's works that were found on defendants' computer media, as
well as the manner in which BPI discovered these unauthorized
copies.
ee. John Maddux
Lafayette, Colorado
Testifying in Person
Mr. Maddux may testify concerning the unauthorized copies of
BPI's works that were found on defendants' computer media, as
well as the manner in which BPI discovered these unauthorized
copies.
ff. Kurt Gregory
Ignacio, COlorado
Testifying in Person
Mr. Gregory may testify concerning the unauthorized copies
of BPI's works that were found on defendants' computer media, as
well as the manner in which BPI discovered these unauthorized
copies.
gg. Mark Manning
Ignacio, COlorado
Testifying in Person
Mr. Manning may testify concerning the unauthorized copies
of BPI's works that were found on defendants' computer media, as
well as the manner in which BPI discovered these unauthorized
copies.
hh. Ryan Wolfrun
Ignacio, COlorado
Testifying in Person
Mr. Wolfrun may testify concerning the unauthorized copies
of BPI's works that were found on defendants' computer media, as
well as the manner in which BPI discovered these unauthorized
copies.
ii. Stephen Farrar
Ignacio, COlorado
Testifying in Person
Mr. Farrar may testify concerning the unauthorized copies of
BPI's works that were found on defendants' computer media, as
well as the manner in which BPI discovered these unauthorized
copies.
jj. Stuart Ambler
Ignacio, COlorado
Testifying in Person
Mr. Ambler may testify concerning the unauthorized copies of
BPI's works that were found on defendants' computer media, as
well as the manner in which BPI discovered these unauthorized
copies.
kk. Will Thornbury
Ignacio, COlorado
Testifying in Person
Mr. Thornbury may testify concerning the unauthorized copies
of BPI's works that were found on defendants' computer media, as
well as the manner in which BPI discovered these unauthorized
copies.
ll. T. Mark Bowen
Ignacio, COlorado
Testifying in Person
Mr. Bowen may testify concerning the unauthorized copies of
BPI's works that were found on defendants' computer media, as
well as the manner in which BPI discovered these unauthorized
copies.
mm. Dan Pino
Denver, Colorado
Testifying in Person
Mr. Pino may testify concerning the hard copies of BPI
works, most of which were unauthorized, that were found in
defendants' possession.
nn. Jane Allen
Denver, Colorado
Testifying in Person
Ms. Allen may testify concerning the hard copies of BPI
works, most of which were unauthorized, that were found in
defendants' possession.
oo. Cooper Rounds
Denver, Colorado
Testifying in Person
Mr. Rounds may testify concerning the hard copies of BPI
works, most of which were unauthorized, that were found in
defendants' possession.
pp. Allan Cartwright
Los Angeles, California
Testifying in Person
Mr. Cartwright may testify concerning the hard copies of BPI
works, most of which were unauthorized, that were found in
defendants' possession.
qq. Howard Gutfeld
Los Angeles, California
Testifying in Person
Mr. Gutfeld may testify concerning the hard copies of BPI
works, most of which were unauthorized, that were found in
defendants' possession.
rr. Julie McClintock
Clearwater, Florida
Testifying in Person
Ms. McClintock may testify concerning the hard copies of BPI
works, most of which were unauthorized, that were found in
defendants' possession.
ss. Karen Rounds
Denver, Colorado
Testifying in Person
Ms. Rounds may testify concerning the hard copies of BPI
works, most of which were unauthorized, that were found in
defendants' possession.
tt. Janet Brabanec
Denver, Colorado
Testifying in Person
Ms. Brabanec may testify concerning the hard copies of BPI
works, most of which were unauthorized, that were found in
defendants' possession.
uu. Caroline Groff
Denver, Colorado
Testifying in Person
Ms. Groff may testify concerning the hard copies of BPI
works, most of which were unauthorized, that were found in
defendants' possession.
vv. Ingrid Smith
Denver, Colorado
Testifying in Person
Ms. Smith may testify concerning the hard copies of BPI
works, most of which were unauthorized, that were found in
defendants' possession.
ww. Doug Hoisington
Denver, Colorado
Testifying in Person
Mr. Hoisington may testify concerning the hard copies of BPI
works, most of which were unauthorized, that were found in
defendants' possession.
xx. Pat Werner
Denver, Colorado
Testifying in Person
Pat Werner may testify concerning the hard copies of BPI
works, most of which were unauthorized, that were found in
defendants' possession.
yy. Larry Vogt
Denver, Colorado
Testifying in Person
Mr. Vogt may testify concerning the hard copies of BPI
works, most of which were unauthorized, that were found in
defendants' possession.
zz. Tim Hancock
Ignacio, COlorado
Testifying in Person
Mr. Hancock may testify concerning certain still photographs
that he took during the execution of the Writ of Seizure at Mr.
Penny's residence.
aaa. Paul Williams
Ignacio, COlorado
Testifying in Person
Mr. Williams may testify concerning certain videotape
recordings that he made during the execution of the Writ of
Seizure at Mr. Penny's residence.
bbb. Tom Howard
Ignacio, COlorado
Testifying in Person
Mr. Howard may testify concerning certain still photographs
that he took during the execution of the Writ of Seizure at Mr.
Wollersheim's residence.
ccc. Jack Keenan
Ignacio, COlorado
Testifying in Person
Mr. Keenan may testify concerning certain videotape
recordings that he made during the execution of the Writ of
Seizure at Mr. Wollersheim's residence.
ddd. Warren McShane
Los Angeles, California
Testifying in Person
Mr. McShane may testify concerning the execution of the Writ
of Seizure at Mr. Wollersheim's residence.
eee. Robert Brunelli
Denver, Colorado
Testifying in Person
Mr. Brunelli may testify concerning the execution of the
Writ of Seizure at Mr. Penny's residence. Mr. Brunelli may also
testify concerning his law firm's temporary custody of the
computer readable and hard copies of BPI works that were found in
defendants' possession.
fff. David Keil
Denver, Colorado
Testifying in Person
Mr. Keil may testify concerning the execution of the Writ of
Seizure at Mr. Penny's residence.
ggg. Joe Duncanson
Clearwater, Florida
Testifying in Person
Mr. Duncanson may testify concerning the execution of the
Writ of Seizure at Mr. Penny's residence.
hhh. Paul Figlia
Denver, Colorado
Testifying in Person
Mr. Figlia may testify concerning the execution of the Writ
of Seizure at Mr. Wollersheim's residence.
iii. Michael Berger
Waldbaum Corn Koff Berger Cohen P.C.
303 East 17th Avenue, Suite 940
Denver, CO 80203-1262
Testifying in Person
Mr. Berger will testify concerning acts of misconduct of the
various defendants and/or their agents evidencing defendants'
willful infringement. It would only be in the most extraordinary
circumstances that BPI would ever think of calling Mr. Berger as
a trial witness. He is listed here only in the interest of full
and complete disclosure.
* * * *
BPI reserves the right to call additional witnesses, if
necessary, in rebuttal to defendants' case-in-defense.
B. Non-Expert Witnesses To Be Called By Defendants
1. Witnesses who will testify at trial
(a) Lawrence Wollersheim, Boulder, Colorado;
testifying in person.
Mr. Wollersheim will testify as to the litigation history
between himself and Scientology; Scientology's practice of fair
game; the purpose of making archival copies of the works in
question; that the works in question were never sold or
published; and that the works in question were copied only for
archival/research/litigation purposes.
(b) Robert Penny, Longmont, Colorado; testifying in
person and/or by deposition. (Mr. Penny will be called to
testify in person only if his physical and emotional state is
such as to allow testimony.)
Mr. Penny will testify concerning the fact that there was no
commercial distribution of BPI's copyrighted works and that any
preparation of these works was for archival and research
purposes. Mr. Penny will also testify concerning his own actions
with respect to FACTNet in the alleged infringements. In
addition, Mr. Penny will testify as to his knowledge of the fair
game policy of the Church of Scientology, including BPI. Mr.
Penny will also testify concerning his own actions with respect
to FACTNet and the alleged infringements.
(c) Ann Weber, Longmont, Colorado; testifying in
person.
Ms. Weber will testify as to the contents of FACTNet's hard
drive prior to the seizure of FACTNet's computer by RTC.
(d) Arnaldo Lerma , Arlington, Virginia; testifying in
person and/or by deposition.
Mr. Lerma will testify concerning defendants' use of the
works in question and the fact that they were not commercially
distributed. In addition, Mr. Lerma will testify as to the fair
game policy of the Church of Scientology and the misuse of
copyright litigation pursuant to the policy of L. Ron Hubbard to
silence critics of Scientology.
(e) Jeff Jacobson, Scottsdale, Arizona; testifying in
person and/or by deposition.
Mr. Jacobson will testify concerning the contributions in
order to have archival copies of CDs made; the fair game policy
of Scientology and storage of the CDs with the works in question
for archival purposes for defendants.
(f) Priscilla Coates, Glendale, California; testifying
in person.
Ms. Coates will testify as to the fair game policy of the
Church of Scientology practiced against its "enemies."
(g) Cynthia Kisser, Wonder Lake, Illinois; testifying
in person.
Ms. Kisser will testify as to the fair game policy of the
Church of Scientology, including but not limited to, the use of
serial litigation to destroy an enemy of the Church.
(h) Charles O'Reilly, Esq., Marina del Rey,
California; testifying in person.
Mr. O'Reilly will testify to the fair game policy of the
Church of Scientology; its unfair and abusive litigation tactics;
and its use of serial litigation against Lawrence Wollersheim.
(i) Dennis Erlich, Glendale, California; testifying in
person.
Mr. Erlich will testify as to his personal knowledge with
reference to the fair game policy of the Church of Scientology;
its policy for use of litigation to destroy its enemies and its
specific policy with reference to use of copyright litigation as
denominated by the source of Scientology, L. Ron Hubbard.
(j) Justine La Rose, Ignacio, COlorado; testifying in
person.
Ms. La Rose will be called to testify to the fair game
policy of the Church of Scientology as practiced against herself
and FACTNet, Inc.
(k) Vaughn Young, Seattle, Washington; testifying in
person.
Mr. Young will testify as to the policies and practices of
Scientology as known to him, including the fair game policy of
Scientology; misuse and abuse of litigation by Scientology; BPI's
place in the Scientology hierarchy and control over all
Scientology by the Sea Org and David Miscavige. Mr. Young will
testify as to his examination of the works and comparison to
copyright .
(l) Stacy Young, Seattle, Washington; testifying in
person.
Ms. Young will testify as to the policies and practices of
Scientology as known to her, including the fair game policy of
Scientology; misuse and abuse of litigation by Scientology; BPI's
place in the Scientology hierarchy and control over all
Scientology by the Sea Org and David Miscavige.
(m) Leta Schlosser, Encino, California, testifying in
person.
Ms. Schlosser will testify to the fair game policy of the
Church of Scientology; its unfair and abusive litigation tactics;
and its use of serial litigation against Lawrence Wollersheim.
(n) Warren McShane, Los Angeles, California;
testifying in person and/or by deposition.
Mr. McShane will testify as to the corporate structure of
Scientology; the relationship between RTC and BPI; the execution
of the writ of seizure at Mr. Wollersheim's residence; issuance
of the writ of seizure and the purpose for seizing some of the
documents seized.
2. Witnesses who may be called at trial if the need
arises:
(o) David Miscavige, Hemet, California; testifying by
deposition.
Mr. Miscavige will be called to testify with reference to
his position within the Church of Scientology; the fair game
policy of the Church of Scientology; the use, abuse, and misuse
of litigation by Scientology; and his involvement in the
registration and transfer of the works in question. (Defendants
currently have pending a request to open discovery so as to
depose Mr. Miscavige.)
(p) Norman Starkey, Los Angeles, California;
testifying by deposition.
Mr. Starkey will be called to testify as to the ownership
and transfer of the copyrights to the works in question.
(This is subject to the granting of defendants' motion to
amend the scheduling order currently pending before the Court.)
(q) Mary Sue Hubbard, Beverly Hills, California;
testifying by deposition.
Ms. Hubbard will testify as to fair game policy of the
Church of Scientology; the Church's policy as to enemies; the
position of David Miscavige within the Church of Scientology and
his ability to control all segments of Scientology; and the
ownership and transfer of certain of the works in question.
(This is subject to the granting of defendants' motion to
amend the scheduling order currently pending before the Court.)
(r) Patricia Bryce, Los Angeles, California;
testifying by deposition.
Ms. Bryce will be called to testify with reference to the
ownership and registration of the works in question.
(This is subject to the granting of defendants' motion to
amend the scheduling order currently pending before the Court.)
(s) Pat Broeker, Wyoming; testifying by deposition.
Mr. Broeker will testify as to the ownership and transfer of
certain of the works in question. In addition, he will testify
as to the control of Scientology by David Miscavige.
(This is subject to the granting of defendants' motion to
amend the scheduling order currently pending before the Court.)
(t) Robert F. Lewis, Esq., Los Angeles, California;
testifying by deposition.
Mr. Lewis will testify as to negotiations and issues
concerning a release entered into between Lewis, D'Amato,
Brisbois & Bisgaard and Scientology.
(This is subject to the granting of defendants' motion to
amend the scheduling order currently pending before the Court.)
(u) Janna Lubert, Los Angeles, California; testifying
by deposition.
(This is subject to the granting of defendants' motion to
amend the scheduling order currently pending before the Court.)
Ms. Lubert will testify as to negotiations and issues
concerning a release entered into between Lewis, D'Amato,
Brisbois & Bisgaard and Scientology.
C. Expert Witnesses To Be Called By Plaintiff
None.
D. Expert Witnesses To Be Called By Defendants
1. Steven Kent, Doctor of Sociology, University of
Alberta, Canada. Dr. Kent will testify in person.
Dr. Kent will testify as to the litigation history of
Scientology including, but not limited to, its practice of serial
litigation to destroy its enemies; and the fair game policy of
the Church of Scientology.
2. Jon Atack, Grinstead, West Suffex, Great Britain. Mr.
Atack will testify in person.
Mr. Atack will testify as to the policies of the Church of
Scientology, including its policies toward enemies, suppressive
persons and potential trouble sources; application of the fair
game policy; and application of the policies with reference to
litigation with reference to Lawrence Wollersheim and FACTNet.
Mr. Atack is the author of the book "A Piece of Blue Sky," an
exhaustive study as to the policies of the Church of Scientology.
3. Vaughn Young, Seattle, Washington. Mr. Young will
testify in person.
Mr. Young is a former public relations officer for the
Church of Scientology. Mr. Young will testify as to the policies
and practices of Scientology as known to him, including the fair
game policy of Scientology; misuse and abuse of litigation by
Scientology; BPI's place in the Scientology hierarchy; and
control over all Scientology by the Sea Org and David Miscavige.
Mr. Young will testify as to his familiarity with Scientology
documents and his examination of the works at issue herein.
4. Richard Cleek, Professor at University of Wisconsin.
Dr. Cleek will testify as to the custom and practice of posting
on the Internet; as well as all issues concerning postings on
alt.religion.scientology; attempts to cancel
alt.religion.scientology; issues pertaining to suppression of
free speech; and issues pertaining to the controversial nature of
Scientology on the Internet.
5. M. Patricia Fisher, Fisher Associated Question Document
Examiners, Inc., Oakland, California. Ms. Fisher will testify as
to the authenticity of signatures on Hubbard's asset transfers to
Scientology.
Plaintiff will object to the offer of testimony by any of
defendants' listed expert witnesses - see Section VII.
V. EXHIBITS
A. Plaintiff's Exhibits:
A list of the exhibits BPI may offer at trial is annexed
hereto as Appendix A. BPI reserves the right to offer or not
offer any listed exhibit, and to offer in evidence at trial
exhibits that are not listed, but which BPI reasonably believes
will only be used for purposes of impeachment or to refresh
recollection. In addition, BPI reserves the right to supplement
its exhibit list in order to respond to any exhibits listed by
defendants or to add exhibits which may be needed at trial to
rebut defendants' evidence.
B. Defendants' Exhibits:
A list of defendants' exhibits to be offered at trial is
annexed as Appendix B. Defendants reserve the right to offer or
not to offer any listed exhibit, and to offer in evidence at
trial exhibits that are not listed, but which defendants
reasonably believe will be used only for the purposes of
impeachment or to refresh recollection. In addition, defendants
reserve the right to supplement their exhibit list in order to
respond to the exhibits recently identified by BPI or to add
exhibits which may be needed at trial to rebut BPI's evidence.
Copies of listed exhibits must be provided to opposing
counsel no later than five days before the Final Trial
Preparation Conference. The objections contemplated by
Fed.R.Civ.P. 26(a)(3) shall be filed with the clerk and served
(by hand delivery or facsimile) no later than eleven days after
exhibits are provided.
VI. DISCOVERY
Pursuant to the Scheduling Order dated November 17, 1995,
discovery was closed on May 1, 1996. As noted in Section V,
supra, defendants F.A.C.T.Net and Wollersheim have moved,
pursuant to Fed. R. Civ. P. 16(d), to reopen discovery, and have
also filed a motion for additional discovery under
Fed. R. Civ. P. 56(f) in response to BPI's pending motion for
summary judgment against all defendants. The Rule 16(d) motion
is pending before Magistrate Judge Abram and the Rule 56(f)
motion is pending before this Court.
VII. SPECIAL ISSUES
1. BPI intends to move in limine to preclude defendants
from presenting any of defendants' experts identified in Section
VI D. above. Motions will be predicated on several grounds,
including but not limited to, defendants' noncompliance with the
Scheduling Order entered by the Court in this action, defendants'
noncompliance with Rule 26(a)(2)(B), and on the grounds that
defendants' proffered experts and their testimony do not qualify
under Rules 701 and 702, Fed.R.Evid.
2. BPI intends to move in limine to preclude defendants
from presenting a number of the fact witnesses listed by
defendants in Section VI B. above.
VIII. EFFECT OF PRETRIAL ORDER
Hereafter, this Pretrial Order will control the subsequent
course of this action and the trial, and may not be amended
except by consent of the parties and approval by the Court or by
Order of the Court to prevent manifest injustice. The pleadings
are deemed merged herein. This Pretrial Order supersedes the
Scheduling and Discovery Order and all prior pleadings herein.
As to any of plaintiff's copyrights not included in the list of
plaintiff's Trial Exhibits appended hereto, plaintiff's claim of
infringement of them shall be deemed withdrawn. Any Affirmative
Defense or Counterclaim not specifically identified in this
Pretrial Order as being asserted by one or more of the defendants
shall also be deemed withdrawn either in whole or as to that
defendant(s) who did not specifically assert it herein, as the
case may be. In the event of ambiguity in any provision of this
Pretrial Order, reference may be made to the record of the
pretrial conference to the extent reported by stenographic notes
and to the pleadings.
IX. TRIAL AND ESTIMATED TRIAL TIME/TRIAL PREPARATION CONFERENCE
1. BPI estimates that, absent appropriate evidentiary
stipulations by defendants, trial time will be at least eight
weeks. Defendants estimate that trial time will be six weeks.
The situs of the trial will be Denver, Colorado.
2. Trial Date: _______________________
3. Final Trial Preparation Conference Date:
________________________
DATED this ____ day of ________________ 1998.
BY THE COURT:
_________________________________
JOHN L. KANE, JR.
Senior U.S. District Judge
FINAL PRETRIAL ORDER APPROVED:
PLAINTIFF BRIDGE PUBLICATIONS, DEFENDANT ROBERT PENNY
INC.
By:_____________________________
By:_____________________________ ___
___ Michael H. Berger
SHERIDAN ROSS P.C. Scot Peterson
Todd P. Blakely WALDBAUM CORN KOFF
Robert R. Brunelli BERGER & COHEN P.C.
1700 Lincoln Street, Suite 303 East 17th Avenue, Suite 940
3500 Denver, CO 80203-1262
Denver, CO 80203 (303) 861-1166
(303) 863-9700
Dated:__________________________
Dated:__________________________ ____
____
PAUL, HASTINGS, JANOFSKY & DEFENDANT LAWRENCE WOLLERSHEIM
WALKER LLP
Samuel D. Rosen
399 Park Avenue, 31st Floor
New York, NY 10022-4697 By:_____________________________
(212) 318-6000 ___
Daniel Leipold
JACOBS CHASE FRICK HAGENBAUGH & MURPHY
KLEINKOPF & KELLY 701 South Parker Street, Suite
Jeffrey A. Chase 8200
1050 17th Street, Suite 1500 Orange, CA 92868
Denver, CO 80265 (714) 835-5406
(303) 685-4800
Dated:__________________________
Helena K. Kobrin ____
859 Hollywood Way, Suite 139
Burbank, CA 91505
DEFENDANTS LAWRENCE
WOLLERSHEIM and F.A.C.T.Net,
Inc.
By:_____________________________
___
Clifford L. Beem
BEEM & MANN, P.C.
One Norwest Center
1700 Lincoln Street, Suite 3901
Denver, CO 80203
(303) 894-8100
Dated:__________________________
____
_______________________________
1Because BPI seeks the same relief as to all defendants, the
collective term "defendants" will be used herein to include all
of the defendants.
2Each of the 1,914 works is identified by its title in
plaintiff's pretrial exhibit list, which is annexed hereto as
Appendix A. See Plaintiff's Exhibits 1 through 1,914.
A
