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From: noring@netcom.com (Jon Noring)
Subject: Scientology's "Dirty Hands" in Recent Seizures - Devastating Ruling (Arnaldo Lerma.)
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[Notice the discussion follow-up newsgroups. And REPOST this, where
appropriate, far and wide. Do not let the Church of Scientology rest on this
matter until they publicly apologize for these ill-conceived and unnecessary
attacks against the Internet community.]
Following are the final arguments in the September 15 hearing before Federal
Judge Leona Brinkema by Michael Sullivan, counsel for the defense of Arnaldo
Lerma. Judge Brinkema's final verbal ruling, at the end of this document
(and to be followed by a detailed written ruling which should be out within a
couple of weeks) is, in my opinion, devastating to the Church of Scientology,
and will have grave repercusions against them in related cases, including the
Erlich, Wollersheim, and Penny cases, and may destroy, according to Capricorn,
CoS' quixotic dream of a RICO lawsuit against its critics in the Internet
community.
SOME BACKGROUND: The Church of Scientology, represented by its affiliated
organization, the Religious Technology Center, has four times used the
provision of Copyright Law, allowing, under certain conditions, the plaintiff
to seize allegedly infringing materials pending a final trial. The first
seizure was against Dennis Erlich earlier this year. Recently, Larry
Wollersheim, Bob Penny, and Arnaldo Lerma were also subject to a similar
seizure.
In all four cases, there were many irregularities, and, in my opinion, gross
abuses of the Writ of Seizure by RTC/CoS. It is also my belief, and brought
up not only below but in another court ruling relating to the other mentioned
seizures, that the use of the Writ of Seizure in copyright infringement cases
regarding the Internet is not only unnecessary, but may be unconstitutional,
and greatly exceeds the original intent of Congress in allowing such seizures
in the first place (see below in Mr. Sullivan's arguments for a further
elaboration.)
These abuses are finally becoming public knowledge. For example, in the case
of Wollersheim and Penny, the search terms used by the Church were
ridiculously broad and clearly exceeded the requirements of the Writ of
Seizure. In the case of Arnaldo Lerma, the following document outlines
some of the abuses RTC may have perpetrated. There may have been other gross
abuses in the Lerma case, but we'll have to wait for those details to come
out, if ever. Methinks CoS/RTC ought to drop all charges against Erlich,
Wollersheim, Penny, Lerma and other net.entities if they know what's good
for them. Their cases are only going to crumble and will lead to the Federal
Courts sanctioning them for misuse and abuse of the Federal Court system.
Enjoy reading the following document. And for further information on the
attack on freedoms of speech, expression and religion on the Internet by the
Church of Scientology, refer to the newsgroup alt.religion.scientology, and
Ron Newman's excellent Web page summarizing everything and with links to many
related Web pages, including ones for the Church of Scientology (which they
don't reciprocate, as expected, since they have absolutely ZERO tolerance
towards any criticism of them):
http://www.cybercom.net/~rnewman/scientology/home.html
Jon Noring
*****************************************************************************
[Note from JN: Reformatted from the original to aid readability with
spelling/scanning errors corrected as best as I could.]
The original taken from: http://www.lightlink.com/factnet1/pages/brink.html
The final arguments in the Sept. 15th hearing made by Michael Sullivan,
counsel for the defense of Arnaldo Lerma, before Federal Judge Leona Brinkema.
*****************************************************************************
MR. SULLIVAN: The last time we were before this Court on August 25th, you
[Judge Brinkema] directed us to get a sense of what it was that was within
the scope of our client's materials that the Scientologists had reviewed. We
have now done that review. You also said to us -- that was on August 25th --
you said, "Look, you come back to me if it appears to you upon conducting
that review that it was excessive," and that is why we are here before Your
Honor this afternoon. At that last hearing, you were informed, the Court was
informed by the plaintiff that they conducted three key-word searches, as you
may recall, Your Honor, 'OT course', 'Hubbard' and 'thetan'.
The Court inquired upon hearing that, you said 'Hubbard', quote, "That would
encompass almost the entire universe of scientology documents, and in a
search you try to narrow what you are searching for, not expand it." --
That's what you said, Your Honor.
We have now had an opportunity to take a little discovery and find out what's
gone on. Your Honor hit the nail on the head. What has gone on here is they
conducted an extremely broad search, which revealed much more than was
pertinent in this litigation. Mr. Settles testified in his deposition that,
in fact, these hits that we keep hearing about, the 139-some odd disks that
we hear about, there there were two-third more disks that they reviewed that
they never copied so we don't know fully what they saw.
You say, well, why is that troubling? Why does that trouble you?
It troubles us for this reason, Your Honor. Mr. McShane testified in his
deposition that that's how they learned that Mr. Lerma was acting as a,
quote, "Net researcher" for the Washington Post. How did they learn that?
That didn't come up in any hit. What they did was they got a hit, an E-Mail
that did contain, for example, the search word 'Hubbard'. He purports to
have scrolled up and scrolled down to see the messages that preceded and
succeeded the message containing the hit.
And oh, that Net Researcher business, that just, quote, "happened to catch
his attention." Your Honor, Mr. Lerma will never know, he will never know
what else happened to catch Mr. McShane's attention.
What they did when they determined something was a hit, they then copied it
onto a floppy disk for further, quote, "in-depth" review. Then they started
their secondary process which commenced after the Court on August 25th said,
look, we are going to get this thing straightened out here, and you directed
them to distinguish what it was this case was all about.
In response to your direction, they then called in what Mr. Cooley
represented was a very highly placed Scientology attorney, a gentleman by the
name of Mr. Moxon, an attorney from Los Angeles, who we were told had
obtained the requisite spiritual level to review these materials.
Now, we got back 58 disks that allegedly contained the infringing materials.
We went through those disks. We went through three of those disks. We
printed out some of the shorter ones and went through them in the 30(b)6
deposition that we conducted, and the plaintiffs designated Mr. McShane, the
President of the RTC, as its 30(b)6 witness.
We went through three of these documents, presented to him in their entirety.
What did we find out? One that they designated as an infringement was this
OT 8 document that Mr. Cooley speaks of with great passion, that it's a
forgery. It's an outrageous slander against Jesus Christ.' They designated
that and impounded it, Your Honor. They seized it from Mr. Lerma and they
impounded it, the same document this they lambast the Washington Post for
printing excerpts of.
Now, what's the explanation that we are offered in response when we
questioned them at the deposition? Well, we are told that obviously Mr.
Moxon does not know which documents are which.
We submit to this Court that if Mr. Moxon, a highly placed church attorney,
could not make the distinction between which is which, how can Mr. Lerma be
expected to act at his peril?
Now, there are other examples, Your Honor. In these 58 disks that have been
seized and impounded from Mr. Lerma, they have things like disk 34, Appellant
Baynes' opening brief filed in the Ninth Circuit. That's been seized,
impounded, designated as infringing. The Washington Post December 25th
article, it's disk 3, Your Honor, it was seized and impounded, and yet when
they go to drag the Washington Post into this thing, they attach the article
to their own first amended complaint.
Now, we said looking at this, we said, well, how are we supposed to figure
out what's infringing? We asked them in that interrogatory. What we got
back, and we were hard pressed to figure what it actually was, but we counted
up the pages. It's 427 pages as near as we can figure out of roughly 3,100
contain what we are told is offending material.
We get this morning served upon us a brief in response to my motion here
where they now tell us that there are 20 disks. So now they have admitted
that their designation was overbroad by a full two-thirds. We have looked
through that in the quickest way we could. We see that stuff that they
didn't say was infringing when they did their interrogatory answer they now
say is infringing and conversely stuff that wasn't -- we are hard pressed.
We are shooting at a moving target here.
Then we look at the disks 59 through 139, which were also taken and wiped off
of Mr. Lerma's hard drive. They now concede in the letter that was produced
when we got those disks on August 26th, they concede that these materials
were seized for their evidentiary value. Even more disturbing than that,
Your Honor, is that a review of many of those disks reveals that they don't
contain any of the three search terms.
If you look at disk 61, you will see an E-Mail there for Mr. Leiby,
Washington Post reporter, to Mr. Lerma. They discuss Wako, and they discuss
Ruby Ridge. You will look in vain to find the words 'OT course', 'thetan' or
'Hubbard' in that E-Mail.
Disk 37, there are other files, 37 files all together, 37 computer disks that
contained no search terms, no 'thetan', no 'OT course', no 'Hubbard'. So you
ask yourself, Your Honor, how did they get these disks? How did they get
access to this, all right? We find out, lo and behold, we find out this
morning they file their opposition and they say the following. They say,
"Lerma attempts to create considerable confusion and concern over disks which
allegedly do not contain any of the search terms on them or any infringing
language."
I will agree with one thing. We are concerned. Then they go on to say,
"What Lerma does not say which he would have learned in the depositions he
cites if his counsel had asked additional questions is that an additional
search was done in certain segments of the directory where the titles of the
directories suggested that they could be repositories for the intellectual
property violations."
Well, Your Honor, I would submit to you that you perhaps are guilty of the
same failing as us because at the hearing on August 25th when you asked these
folks, how did you, what searches did you perform, you, too, didn't get the
answer
THE COURT: (Interposing) What pleading are you reading from right now?
MR. SULLIVAN: This, Your Honor, is their opposition to our motion for, to
vacate the writ of seizure. We sent a messenger over to get this out of the
court this morning when it was filed. It is file stamped today.
THE COURT: That's why we didn't see it.
MR. SULLIVAN: If you would like to see my copy, I would be happy to share it.
THE COURT: No, we have it in Chambers. I have been on the Bench all day.
They said there was a fourth search term or concept used.
MR. SULLIVAN: Your Honor, they say if we had asked additional questions, we
would have found out that there was an additional search was done in certain
segments of the directory where the titles of the directories suggested they
could be repositories for the intellectual property violations.
You were not told that on August 25th. I was not told that on August 25th.
We deposed these fellows. We didn't find that out. We find that out this
morning. This is a dirty search, Your Honor. It's a dirty seizure.
Now, what does the law have to say about all this? The copyright statute
authorizes no search of any premises. All that it authorizes is a seizure.
What is the purpose of the seizure? The seizure is to impound the offending
goods for their eventual destruction should it turn out that after a full
trial they are determined to be infringing.
Why is that? The reason is is because it was never intended that these
seizure orders would be used the way these plaintiffs are using them in these
Internet seizure cases.
Your Honor, what this was all set up for is you go in and you find some guy
knocking off Louie Vuitton bags. You go in and you find out he is working
out of some warehouse. You go in there with a seizure order marshal. You
say, okay, here is the offending bag. I see here is the equipment they are
using to make these bags. Lock those up. Let's get this decided after
trial, and if it turns out that, indeed, they are infringements, we burn
them, we destroy them, we do whatever.
We don't do that in this country with expressive materials, but what do they
do? They converted the writ of seizure issued by this Court into a general
warrant, and then they went and they conducted an exploratory search of Mr.
Lerma's home from attic to basement, all right.
What they do in this brief that they have just filed, they come back and they
focus all their attention on, oh, well, the search was okay. The search was
okay. It wasn't that egregious.
Your Honor, the egregious violation of Mr. Lerma's Fourth-Amendment rights,
it wasn't just what they did when they searched his house top to bottom. The
violation continued when they took this material back and then went through
it, looked at his E-Mails, opened E-Mail after E-Mail after E-Mail.
Now, is that proper? Not at all. The mandate of the Fourth Amendment is
clear, and that says that you cannot place the scope of the search nor the
decision whether to seize and impound these materials in the hands of the
plaintiff.
The other thing, Your Honor, is where a seizure order involves expressive
materials, the Fourth-Amendment protections are at their zenith because of
the danger of a prior restraint.
The best thing we can look at for an analogy is the Supreme Court's obscenity
jurisprudence. It makes plain that because of the risk of prior restraint,
you can't do what the plaintiffs did here. You cannot proceed ex parte. The
law requires that there be an adversary hearing. Now, if that is clear in
the context of obscenity, material which the Supreme Court has said is so low
on the hierarchy of First-Amendment values that if, indeed, it is, in fact,
found to be obscene, it is deemed to have no value.
If that's true there, then it's clearly here, Your Honor, where this material
has and involves a matter of public concern, it has First-Amendment value.
Now, given the conduct that the plaintiff has engaged in here, what remedies
are appropriate? We submit that this Court as an initial matter should
vacate the writ and order that all the materials, the copies, what have you,
wherever they have disseminated them to, whoever they have shared them with,
they need to come back, and they need to come back right now.
Secondly, under the unclean-hands doctrine, we submit that plaintiff by its
conduct has clearly forfeited any right it might have otherwise had to
proceed in equity. The law on that is clear. You can't come into a court
and act inequitably and expect the Court to use its good offices under its
powers of equity in your behalf. You simply cannot.
Now, the third thing we have argued, Your Honor, is that the exclusionary
rule should be applied in this instance. The RTC must be barred from any use
directly or indirectly of any evidence obtained from this unconstitutional
search and seizure.
THE COURT: Has the exclusionary rule ever been applied in a civil context?
MR. SULLIVAN: Not to my knowledge, Your Honor. I don't have a case that I
can cite you. But I will say this. In the criminal area, it is deemed
necessary to do two primary things.
One is to insure that our citizens get what the Constitution guarantees to
them. Secondly, it's to insure that courts -- it's to preserve judicial
integrity so you are not acting, Your Honor, on bad evidence. Now, if we as
a society are prepared to do that in the criminal area, and we have cited you
cases, and I'm sure Your Honor is well aware, who suffers when you apply the
exclusionary rule in the criminal context? We, the citizens, suffer because
a criminal may go free because the constable has blundered.
Think about the application here. Who suffers? The only person who suffers
is the RTC. Why did they suffer? They suffer because of their own misdeeds.
That is imminently fair. What better way for them to finally get the message
thou shalt not proceed ex parte to obtain a warrant to seize expressive
materials based on a showing that is less than forthright.
We submit that it's appropriate at this instance, Your Honor, to send them a
strong message, both to vindicate the Constitutional rights of Mr. Lerma and
to deter them in the future from doing this very same thing to some other
citizen. It's entirely appropriate.
THE COURT: All right. I am going to rule. To take the words out of Mr.
Cooley's mouth, the same thing that happened in Colorado, I am going to do
the same thing here.
I have listened carefully, and I am very concerned about how the seizure was
conducted. Coming out of the practice of criminal law myself, I am very much
aware about the concept of the general warrant and how the Fourth Amendment
has always been significantly opposed to that kind of warrant use.
When a party does come to the Court and ask the Court for the extraordinary
remedy of giving such a -- giving a right to enter a person's residence and
seize materials and when that is done in an ex parte fashion, it's got to be
done in complete good faith, and it's got to be narrow.
I thought I had sufficient safeguards in place so that this seizure could be
properly authorized within the scope of Fourth-Amendment sensitivity. I am
concerned that it was not conducted in certainly the spirit of what had been
intended, and it certainly was not the Court's intention to turn that seizure
warrant into a wholesale license to literally go through Mr. Lerma's
residence and possessions willy nilly and with a fine-tooth comb. This is
a case that has gotten somewhat out of control, and I need to put it into
control.
I am concerned about the plaintiff having sufficiently clean hands to
actually come into a court of equity. And, as I said, I have already found
in balancing the four factors in the context of the Washington Post that I
felt that there were -- the plaintiff could not make out its case
sufficiently at this state of the proceedings to justify injunctive relief.
Although Mr. Lerma's situation is different from the Post's in that the
copying may be more of a problem, I don't feel at this point there is any
reason to continue any kind of injunctive authority over him in part because
I am not at all convinced the plaintiff has proceeded in good faith in this
matter.
And therefore, I am going to go ahead, and I am going to deny the plaintiff's
request for a preliminary injunction as to Mr. Lerma, and Digital has not
said anything in this case but you all have sort of been the silent partner,
but clearly, any liability you have got is - directly -- you are on the
coattails of Mr. Lerma.
Both the defendants would be absolved of any obligation under previous
restraining orders of this Court. I am going to direct that all materials
that were seized -- I am going to vacate the seizure warrant and direct that
all materials seized, including hard drives, floppy disks, et cetera, be
returned forthwith to Mr. Lerma. Mr. Lerma will be under the order of the
Court that those materials are to only be, they are limited to fair use, and,
furthermore, since Mr. Lerma has counsel, I feel that there are additional
safeguards in terms of the rights of the plaintiff, because counsel, as
officers of the Court, are to make sure, as have counsel for the Post, by the
way, very responsibly, handled these materials sensitive to the issues that
have yet to be litigated in this lawsuit.
I am going to prepare a memorandum opinion, but I think you all need to know
the ruling of the Court so I have given it to you in summary. I will
elucidate some of these reasons in writing.
In terms of applying the exclusionary rule in a civil context, it's a very
interesting concept. Versions of that happen in terms of the Court
sanctioning parties in a civil suit for discovery abuses, of course, and that
sort of thing.
The Fourth Amendment itself, the pure exclusionary rule arises out of
concepts of limitations on the power of the Government, and so to that
extent, this would be an inappropriate party against which to apply that
doctrine. However, there is this interesting issue about a private party
using the power of the Government, i.e., an order of this Court, to intrude
upon the Fourth-Amendment rights of Mr. Lerma.
I am going to think about that issue. I am not at all sure I am going to
grant that, but it's certainly one worth thinking about.
And that is the ruling of the Court. All right.
MR. COOLEY: Your Honor, I respectfully move the Court to stay the effect of
that order to give us an opportunity to seek a stay, or if the Court stays
it, we won't have to, because we are going to appeal to the Court of Appeals
for the Fourth Circuit; and I would ask that the effect of the Court's order
be stayed pending appeal.
0 R D E R For the reasons stated in open Court, to be further developed
in a written opinion to be issued, Plaintiff Religious Technology Center
("RTC")'s Motion for Reconsideration and Rehearing and Motion for a
Preliminary Injunction Against Defendant Lerma are DENIED. Defendant
Lerma's Motion to Vacate the Writ of Seizure and Order for Impoundment
is GRANTED and it is hereby ORDERED that RTC shall immediately return
and restore to Defendant Lerma all seized materials in their exact original
condition. This includes both Lerma's hard drives and all floppy discs; and
it is further ORDERED that Defendant Lerma shall maintain the status quo as
to possession of all the allegedly copyrighted materials at issue in this
case and is restricted to employing them only in a fair use capacity.
Lerma and his counsel are specifically prohibited from making any
additional copies of the materials or transferring them in any manner or
publicizing them other than in the context of fair use. This action moots
the issue of increased bond relating to the seizure, so Defendant Lerma's
Motion to Increase Bond is DENIED. Plaintiff RTC's Motions for Provisional
Stays Pending Appeal to the Fourth Circuit are DENIED. The Clerk is directed
to forward copies of this order to counsel of record. Entered this 15th
day of September, 1995.
************** end of transcript of the Court record ***************
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