388 1 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
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Civil Action No. 95B2143
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RELIGIOUS TECHNOLOGY CENTER,
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Plaintiff,
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vs.
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F.A.C.T.NET, INC., et al.,
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Defendants.
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REPORTER'S TRANSCRIPT
10 MOTION FOR PRELIMINARY INJUNCTION
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13 Proceedings before the HONORABLE JOHN L. KANE, JR.,
14 Judge, United States District Court for the District of
15 Colorado, commencing at 9:30 p.m., on the 12th day of
16 September, 1995, in Courtroom C401, United States Courthouse,
17 Denver, Colorado.
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DEBORAH A. STAFFORD, Official Reporter
23 P.O. Box 3592
Denver, Colorado, 80294
24 (303) 5710530
25 Proceedings Reported by Mechanical Stenography
Transcription Produced via Computer
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21 THE COURT: Go back to the box, please.
22 (Lawrence Wollersheim was sworn previously.)
23 CROSSEXAMINATION
24 BY MR. COOLEY:
25 Q Mr. Wollersheim, as I understand the testimony you gave in
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1 your deposition, you got O.T. I through VII from the
2 Fishman from the Louis D'Amato firm in connection with your
3 consulting work for that firm; is that correct?
4 A I got it originally from my attorney.
5 Q I understand that, but I am talking about the
6 FishmanGeertz affidavit which attached that
7 A Yes.
8 Q And they were sent to you as I understand in packs for the
9 consulting work?
10 A In large cases we had they would send us a case or so
11 of material at a time.
12 Q Can you tell us when you started that consulting work?
13 A It was started sometime at the beginning of the
14 FishmanGeertz case. I believe late 1993.
15 Q Were you consulting on that case at the time that Judge
16 Hupp transferred it to Florida?
17 A I wasn't aware of that even going on, so I wouldn't be
18 able to answer.
19 Q In any event, when you say when was F.A.C.T.Net formed,
20 can you tell us?
21 A The pilot phases were going to be we were registered as
22 a corporation. We had been in existence including the pilot f
23 almost three years now.
24 Q So that would take you back to '92?
25 A Late '92, something like that.
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1 Q When you say late '93 when you started consulting for
2 Louis D'Amato, can you give us a more specific date, was it
3 December, November?
4 A I'm sorry. I would have to look at my record to do that.
5 Q In any event, at that point in time, in late '93, they
6 sent you these packs which included the material that was in
7 the FishmanGeertz affidavit?
8 A I didn't say that they sent it in late '93. They sent it
9 sometime from the time that I started consulting to the time
10 that the case ended. I was receiving a steady stream of cases
11 and files and express mails.
12 Q That is from the time you got it until the time the case
13 was dismissed?
14 A Yes, sir.
15 Q Do you know when that case was dismissed?
16 A It's when Scientology backed out and had a prejudicial
17 dismissal. I don't know the date on it. You would know that
18 better than I.
19 Q Whatever date, that was the period that your consulting
20 work ended on the case and there was and there was some
21 followup for, say, a month or two after that.
22 A It was more making sure that loose ends were tied up.
23 Q Now, the clerk's stamp on that affidavit bears a date of
24 April 9, 1993. And was that stamp on the papers that you got?
25 A I would have to see what ones we had.
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1 Q As I understand your testimony, when you got those papers,
2 you did not load them into your computer?
3 A No, we didn't.
4 Q You kept them in your hard copy archive, correct?
5 A To the best of my belief.
6 Q And that applies to F.A.C.T.Net's computers, right?
7 A They are volunteer staff. There are other computers
8 besides at my location. So I could not speak to if a
9 volunteer picked up a pack or they were done by someone else
10 without my knowledge. I can only speak to the policy of
11 F.A.C.T.Net and my knowledge.
12 Q And the policy of F.A.C.T.Net was not to load those into
13 the computer?
14 A Absolutely.
15 Q If they did it would get loaded, it was in violation of
16 policy?
17 A Of our strategic policy, yes.
18 Q Incidentally, one of your volunteers, is that the fellow
19 Jacobson that you mentioned yesterday in connection with
20 Mr. Lerma?
21 A He is a volunteer.
22 Q How long did he serve as a volunteer?
23 A He has been with us for about a year and a half.
24 Q Over that year and a half period, one of the volunteer
25 services he has performed is scanning documents into your hard
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1 drive, correct?
2 A I don't believe so.
3 Q What volunteer services did he provide?
4 A He has done database research for people who don't have
5 computers. His number is listed in our main number, and they
6 call in and they call him, and what he does, he helps them,
7 individuals, helps us take care of our backlog and answers our
8 phone questions and may send him some of his material, some of
9 our material, some of our cult awareness materials. He
10 volunteers for numerous organizations.
11 Q And does he, for example, when one of these backward
12 lawyers, who doesn't know how to handle computers calls in, is
13 he one of the ones who does the research for them?
14 A No. He handles the general public. I generally have
15 handled the lawyers because I have had 15 years of working
16 court cases surrounding Scientology.
17 Q Now, incidentally, when Mr. Lerma posted those materials
18 to the Internet, when did you learn that the church that
19 R.T.C. had brought an action against Mr. Lerma in the Eastern
20 District of Virginia?
21 A When Arnie called me back and said that he had been
22 raided.
23 Q There was at that point there was no suit against
24 F.A.C.T.Net or against you, was there?
25 A No, sir, there wasn't.
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1 Q There was no suit filed against you or against F.A.C.T.Net
2 or against Mr. Penny until after you had made a posting on
3 August 15 to the Internet, saying that Lerma acted as your
4 director and was acting pursuant to the policy of F.A.C.T.Net;
5 isn't that right?
6 A That's not correct. I had said according to the
7 guidelines, not policy. The statement says what it says.
8 Q In any event, you made a posting to the F.A.C.T.Net on
9 August 15, whatever it says, it says, but it wasn't until
10 after that posting that you were sued?
11 A I made no posting to the Internet, sir.
12 Q ARS to be precise.
13 A Yes, sir.
14 Q It wasn't until after that, that this litigation was
15 instituted against you?
16 A Yes, sir.
17 Q Yesterday you testified that this was all a kind of
18 strategy on the part of R.T.C. to put you out of business.
19 Do you have any evidence that R.T.C. knew anything
20 about your involvement until you posted on the Internet on
21 15th of August?
22 A Scientology has an intelligence agency, according to the
23 FBI, that rivals their own, and having dealt with them for 15
24 years and their operatives that have tried to break through
25 our security prior to the raid, Scientology knew of our
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1 financial situation, they knew of our court documents or our
2 court filings. They knew more about us you probably have
3 more in your files than I know about myself.
4 Q But your court filings are public record, aren't they?
5 A Right.
6 Q Those aren't hard find?
7 A My position is Scientology and R.T.C. deliberately and
8 knowingly staged that raid as an intelligence raid to gain
9 information about court litigation and are using copyrights as
10 a coverup.
11 Q To stage the raid on you?
12 A The raid on our organization. You looked at this as an
13 opportunity to gather up all your adversaries and all their
14 information in one fell swoop, and that's what you did.
15 Q You are aware, aren't you, that about 6,000 infringements
16 were found on your on your hard drive and in your hard
17 copies?
18 A I am not aware of that.
19 MR. KELLEY: That assumes the basic issue in this
20 case.
21 THE COURT: He answered he wasn't aware of that.
22 BY MR. COOLEY:
23 Q Let me ask you this: In addition to the to the
24 copyrighted unpublished materials, that is the upper level
25 we'll call them the upper level materials, the advanced
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1 technology you had vast quantities of copyrighted,
2 published materials scanned into your hard drive, didn't you?
3 A Performing our functions as a library and archive, we
4 would be no different than the Denver Library or any other
5 library and archive having millions of pieces of copyrighted
6 material in their possession.
7 Q Now, when you when somebody comes into your files,
8 looking for copies of copyrighted material, you permit them to
9 download it unless it's in your secret file, right?
10 A Unless I would have to see the exact document to know
11 what you are talking about. Do you have a specific document?
12 Q I am asking. You told us that you got two sides or two
13 kinds of data, data that is publicly available to anyone who
14 comes in and asks for it from you and that includes anyone,
15 does it not?
16 A Providing they sign a library card holder's agreement
17 where they specify that they will abide by the various
18 regulations that libraries and archives exist under. They
19 sign and date an actual contract saying that they are using it
20 for scholarly research and only in the specifications as
21 delineated by their eightpage contract.
22 Q And I suppose if I called you, you would give me access to
23 that database just like any other member of the public, right?
24 A If you didn't have possession of right now, any member
25 of Scientology we don't discriminate against any public
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1 person as long as you signed the contract and followed the
2 regulations, the fair use regulations, you could use it.
3 Q What would you charge me for that?
4 A There is no charge.
5 Q Incidentally, you received back you received a computer
6 with a computer has been furnished to Mr. Penny with the
7 material other than the infringing material on it and that
8 which we are still searching; is that correct?
9 A I believe so.
10 Q And that's in that's in F.A.C.T.Net's possession?
11 A Yes, sir.
12 Q You are back on line using that?
13 A No, we are not on line. Our library isn't up. Our BBS
14 isn't up, our Email is not functioning. We don't have use of
15 our own software, $10,000 worth of specialty software, that
16 this man is incapable of reproducing in his current condition,
17 that this was nothing more than a token gesture for the court.
18 Q Are you telling me that you cannot use the computer that
19 you have?
20 A It's a computer with no software, and it's nonfunctional
21 for F.A.C.T.Net's purposes.
22 Q Did you yourself refuse a computer?
23 A Yes, I refused a computer.
24 Q Did you get back all of your floppies?
25 A I don't believe that we have.
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1 Q How many floppies were returned to you?
2 A Hundreds, but I still believe there is quite a bit of
3 material, hard copies and floppies, that you are still in
4 possession of.
5 MR. COOLEY: I would offer Exhibits 96, 97, and 98
6 that were filed this morning, sir, which are letters to
7 Mr. Kelley returning material for Mr. Wollersheim.
8 THE COURT: 96, 97 and 98.
9 MR. KELLEY: Your Honor, I will not object on the
10 basis that the letters were sent. As far as what's in them
11 and what it means, I cannot say one way or the other. I think
12 the witness has to say that.
13 THE COURT: All right. The exhibits are admitted.
14 BY MR. COOLEY:
15 Q Were you aware of these deliveries to Mr. Kelley on August
16 29, September 1, and September 5, Mr. Wollersheim?
17 A The only one that I was aware of and read was Exhibit 97.
18 Q 97, which is the delivery to Mr. Kelley of September 1?
19 A Yes, sir.
20 Q And have you gone over all of those materials that are
21 listed there?
22 A It's impossible to go over all of the materials, one
23 person preparing for court. You had nine people going for
24 three weeks, and you can't get through them.
25 Q Except they were your materials, sir, not ours. Did you
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1 get back the 555 disks referred to in Exhibit 98?
2 A I just saw this when you handed it to my attorney a few
3 minutes ago. I have no knowledge if we get those back or not.
4 Q Now, libraries have permission from copyright owners. Do
5 you?
6 A In many cases we do.
7 Q Do you have any permission whatsoever from the Religious
8 Technology Center bridge publications or any own other area of
9 Scientology copyright of published or unpublished materials to
10 have them?
11 A No, sir, we don't.
12 Q Now, going back to the O.T. I through VII in the
13 FishmanGeertz affidavit, F.A.C.T.Net as I understand your
14 testimony, whatever Lerma may have testified to, did not have
15 those materials on its optical archive, correct?
16 A To the best of my knowledge.
17 Q As a matter of fact, you never told Arnie Lerma that you
18 did, as I understand your testimony?
19 A I said that I didn't believe that we had those on, and I
20 was surprised. I was asking him where Jeff Jacobson got them,
21 and I was asking, do you think he got them from your image
22 files, and I was speaking in a sense this couldn't happen.
23 Q So whatever that situation was, as far as you knew, that
24 would be strange for you to have them on your optical archive
25 because if you had them in image form, why would you need
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1 anyone to scan them, correct?
2 A It would be illogical. Volunteers are like gold to us.
3 We have so much work to do and so few people, that the last
4 thing we would want to do is give them busy work and have them
5 duplicate something that's already done.
6 Q Are you aware that Lerma spent 18 hours at least scanning
7 those materials into his hard drive?
8 A I would have estimated a lot more.
9 Q I thought you something like maybe 35 was your
10 estimate?
11 A To scan it and correct all of those pages and to do it
12 right, the formatting, it could take longer than that,
13 depending upon the OCS software and how good he is.
14 Q Is it fair to say then as far as you know that F.A.C.T.Net
15 did not have in its computer any electronic copy of that
16 material until Mr. Lerma scanned it into his hard drive and
17 sent it to you in Email on July 30, 31, 1995?
18 A That was my most sincere belief.
19 Q Did you at the time Mr. Lerma sent you the Emails of July
20 30 and 31, containing the material, the FishmanGeertz
21 affidavit, did you have in your file in Colorado the hard copy
22 that you had stored in your hard copy archive?
23 A To the best of my knowledge, I didn't have any copies of
24 it.
25 Q You didn't have the one you got from
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1 A I have
2 Q the Louis D'Amato firm?
3 A You are talking about in hard copy?
4 Q Yes, sir.
5 A I did have. Actually it was stored up at Bob's place in
6 his garage at that time.
7 Q Let's see if I understand you correctly. You had the
8 FishmanGeertz affidavit with the exhibits containing those
9 portions of O.T. I through VII stored in a hard copy archive
10 which at the time that Lerma posted to the Internet was in Bob
11 Penny's garage?
12 A The case was over. As we normally do, we take all the
13 boxes and put them into the archive if we are not using them.
14 Q I understand, and they were in the hard copy archive which
15 was stored in Bob Penny's garage?
16 A Right.
17 Q And was that excuse me. Was that hard copy that was in
18 the hard copy archives seized in the seizure?
19 A Yes, it was. At least it was returned. A copy was
20 returned to us in the things that you returned, so I assume
21 that you picked it up out of Bob's garage.
22 Q Was that the only copy that you had?
23 A There may have been another one.
24 Q Do you know?
25 A I am not certain. We got a lot of stuff sent to us in the
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1 mail and somebody could have sent us another copy because that
2 was a very hot document.
3 Q One thing is certain that after Mr. Lerma posted to the
4 Internet Strike that.
5 After Mr. Lerma sent you Emails of July 30 and 31,
6 Sunday and Monday, you had copies in your hard drive or rather
7 in your computer system?
8 A I don't know that to be a fact, sir.
9 Q You don't know that he sent you twofifths of O.T. III and
10 the other threefifths of O.T. III?
11 A You weren't being specific. I had different another
12 copy or his Email. If you are asking me if I had his Email?
13 The day that I looked at the Email was after the raid, so at
14 that date I could tell you that Arnie's Email was there, but
15 prior to that if you have ever download EMail, it just goes
16 automatically. You don't see what you are getting.
17 Q It got downloaded and loaded into your hard drive, didn't
18 it?
19 A Yes, but I wasn't aware of it until after the raid.
20 Q Who loaded it into your hard drive, do you know, you or
21 Penny?
22 A I did my normal download.
23 Q After that material was sent to you, you now had received
24 it by Email, loaded it into your hard drive, so you had it,
25 you had it electronically, and in addition you had a hard copy
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1 in Bob Penny's garage; is that it?
2 A To the best of my knowledge, sir.
3 Q Have you testified to ten disks that you have prepared and
4 sent to various locations, CDs, correct?
5 A Yes, sir.
6 Q Where are those?
7 A I am not going to give up the locations of them, sir.
8 MR. COOLEY: I would respectfully ask the court to
9 require the witness to answer the question.
10 MR. KELLEY: Your Honor, we are going assert the
11 privilege recognized in the Silkwood v. Kerr McGee case in the
12 Tenth Circuit as to the federal claims and the Colorado
13 newsperson's shield laws to the state claims.
14 THE COURT: Request is denied. Go ahead.
15 BY MR. COOLEY:
16 Q What is on those CDs?
17 A Copies of our BBS. It's a complete backup of the library
18 in case of sabotage and a bombing or fires, so that these
19 things could be gotten back and an effort by an organization
20 to destroy us through terrorism would not be successful.
21 Q Are you saying that you have on those CDs a complete
22 backup of everything that was seized in the seizure?
23 A No, sir. I am not saying that.
24 Q What's not on it?
25 A It's a copy of the BBS. It's a copy of a 14,000 page
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1 Scientology application to the IRS for nonreligious status.
2 It's a copy of three disks that were sent to us by the Louis
3 D'Amato firm, three CDs.
4 Q Did you say nonreligious status?
5 A That must have been a they got a religious after 20
6 years they got a religious status from the IRS and this is the
7 14,000 page application. It's a public document in
8 Washington.
9 Q That's the materials submitted in support of their 501
10 (c)(3) application, correct?
11 A Yes, sir, that's what it is.
12 Q And that's not on the disk or it's on the disk?
13 A It's on the disk.
14 Q I am interested not so much you said it doesn't include
15 everything you had?
16 A You are right, sir.
17 Q I want to know what it doesn't include.
18 A Well, I can only tell you that by telling you what it does
19 include.
20 Q Go ahead.
21 A It includes three CDs that were sent to us by the Louis
22 D'Amato firm that contain 17,000 pages of news articles on
23 Scientology in German, French, Spanish, English from around
24 the world. It's a 40year compilation of all of the press
25 that they have had. It includes the suicide investigation,
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1 the confidential names of the families who have lost their
2 kids, who have killed themselves in these secret initiations.
3 It includes information from Scientology's own intelligence
4 operatives who have defected, on criminals inside of the
5 organization. It includes huge amounts of attorneyclient
6 privilege work, some for the German government, some for other
7 parties. That the work is irreplaceable.
8 Q Does it include any copyrighted materials of the Church of
9 Scientology?
10 A The only place that nothing of this issue in this
11 case nothing of issue in this case.
12 Q When you say nothing of this issue in this case, perhaps
13 the court ought to decide that. What copyrighted material of
14 Scientology materials is in there?
15 A When I discovered the 14,000 page application to the IRS,
16 Scientology had submitted some of its own booklets. When we
17 scanned that application, because we were looking at that for
18 fraud, and we have been working with tax groups because they
19 are trying to overturn Scientology's religious status because
20 they believe it was fraud or some kind of intimidation of IRS
21 people. When we looked through it, we found they had put some
22 of their own copyrighted materials in it. When I saw that, I
23 ordered that taken off all of our computers and put into the
24 backup CD disks because as an archive it was important to
25 preserve the exact records but not make that accessible to
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1 anyone.
2 Q Does it contain the OEC volumes?
3 A I do not believe so.
4 Q Did you scan the OEC volumes into your hard drive?
5 A No, we didn't.
6 Q Did you scan any Scientology books that are published and
7 copyrighted into your hard drive?
8 A To the best of my knowledge, no, we received an anonymous
9 package some women who lost their kids in Scientology went
10 through all of these volumes and paraphrased and took quotes
11 and the pack was about yeah thick and there were disks
12 included, and we may have scanned a lot of her commentary on
13 these OEC volumes. It shows up as hits in the database
14 search.
15 Q Tell me, sir, what copyrighted Scientology materials did
16 you and Mr. Penny address when you set about to delete them
17 from your hard drive?
18 A I would do regular due diligence searches, and I would
19 make sure that nothing in our archive, nothing that was
20 copyrighted of Scientology's would be downloadable, and it
21 would be strictly in our preservational archive to prevent
22 alteration or Scientology removing these through theft or some
23 other way in the future from public record.
24 Q But have those materials now been placed on these CDs and
25 disbursed at these various locations you have told us about?
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1 A No, sir, to the best of my knowledge, they haven't.
2 Q Am I to understand nothing that was on your archive, as
3 you have described it, went on the CD on the CDs?
4 A The CD was designed to cover the most critical
5 Q Could you answer my question. My question was anything in
6 the archive put on the CDs?
7 A Well, I just said to you that the 14,000 page IRS
8 application by Scientology was on the CDs.
9 Q Was that in the archive?
10 A That's what I said.
11 Q You have indicated that you marked some you would go
12 through, do your due diligence, find copyrighted Scientology
13 materials and put them in your archive; is that your
14 testimony?
15 A That's not my testimony.
16 Q What did you do to find these copyrighted materials and
17 what did you do with the copyrighted materials when you found
18 them?
19 A You are not being specific as to archive. There is the CD
20 archive. There is the archive that we had on hand at our
21 place. Which archive are we talking about?
22 Q I am talking about what you described as your
23 nondownloadable archive.
24 A And that's what's the question about that?
25 Q The question is you have testified that you and Penny
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1 pursuant to due diligence would search out, find copyrighted
2 Scientology materials and put them into that nondownloadable
3 archive, correct?
4 A Right.
5 Q What copyrighted materials are you talking about, number
6 one? And No. 2
7 A One question at time because it's confusing the way you
8 are adding everything together. It's not addable.
9 Q All I want to know, sir, did you locate copyrighted
10 Scientology materials and put them in your nondownloadable
11 archive, yes or no?
12 A You can't answer that yes or no because there are multiple
13 archives.
14 Q Did you put them in any archive?
15 A Yes, they went into the tape backup archives which is
16 QEC80 tapes, and they were to be removed from the bulletin
17 board and public access and we put them into QEC80.
18 Q These are the tapes for which you will not furnish a
19 password, correct, you have refused to furnish the password?
20 A Yes, sir, because they also contain information on victims
21 and former Scientology defectors.
22 Q You have also refused to allow that search to be done on a
23 counsel only basis with your counsel present, correct?
24 A Yes, sir.
25 Q But there are copyrighted materials in there, correct?
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1 A Nothing of issue in this case.
2 Q That's your determination, right?
3 A As I read the Complaint, you are talking about your secret
4 O.T. materials.
5 Q Did you read the seizure order that referred to all copy
6 writings of L. Ron Hubbard?
7 A That is an issue of dispute. We are a library and
8 archive, and you are saying that libraries and archives can't
9 handle Scientology materials unless you give them permission.
10 Q I am saying that the court and not you will make that
11 legal decision, sir, that's all I am saying.
12 A Eventually they will.
13 Q And there are copyrighted materials written by L. Ron
14 Hubbard that are on those CDs; isn't that a fact?
15 A That we obtained as evidence in public records, yes, sir.
16 Not on the CD in our backup archive. You threw the CD thing
17 in at the end, and that's not what I meant to say. So we need
18 to be real specific which archive.
19 Q When you made those CDs, you put on them your downloadable
20 as well as your nondownloadable material, didn't you?
21 A Some of each, yes, sir.
22 Q And that included copyrighted materials of Scientology,
23 did it not?
24 A If they were
25 MR. KELLEY: Asked and answered, Your Honor.
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1 THE COURT: Sustained.
2 BY MR. COOLEY:
3 Q You back in July of 1994 received an infringement notice
4 from Tom Small on behalf of the Church of Scientology, didn't
5 you, or bridge publications rather?
6 A I believe I remember four letters from four different law
7 firms from Scientology.
8 Q I asked you specifically about Tom Small.
9 A I believe so. I would have to see it to confirm it
10 though.
11 Q Were you informed by Tom Small that you would infringe
12 certain HCO policy letters and HCO bulletins as well as
13 several issues of the freedom journal, which were protected by
14 copyrights held by various churches?
15 A I would have to see that. That was a long time ago. If
16 you have a copy, I would like to read that.
17 Q Did you respond to any letter from Mr. Small, cease and
18 desist from an infringement that he gave to you,
19 infringement notice?
20 A I remember a letter from him and I treated it as we
21 weren't infringing on anything, I didn't do anything
22 different, and the due diligence we did prior to his letters,
23 and I kept doing what we did according to our own internal
24 policy. I have seen lots of Scientology lawyer letters that
25 are general intimidation, a form of critics, so it was nothing
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1 new to me.
2 MR. COOLEY: May I approach the witness, Your Honor?
3 THE COURT: Yes.
4 MR. COOLEY: I am just going to show him this to
5 refresh his recollection.
6 Does this refresh your recollection as to whether you
7 received a letter from Tom Small on the first on or about
8 the first of July 1994 putting you on notice of infringement?
9 A This is a letter he sent claiming that we had infringed
10 with no specific just a general you are infringing kind of
11 letter and the freedom journal notice, but saying that the
12 policy letters and bulletins are being infringed.
13 Q Have you posted any freedom issues to the printed
14 magazine issues to the Internet at that time?
15 A I am not aware of it. Because, one, I don't do a lot of
16 the postings to the Internet. Bob does most of the postings
17 to the Internet.
18 Q Incidentally, you, F.A.C.T.Net, did not post very often to
19 the Internet, did it?
20 A No, sir, we didn't.
21 Q As a matter of fact, until this litigation ensued, your
22 posting to the Internet was very rare, wasn't it?
23 A I probably personally posted about ten times to the
24 Internet. We were exceedingly busy with internal matters.
25 Q After that letter, did you post any freedoms to the
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1 Internet?
2 A I wasn't aware that we posted them before.
3 MR. KELLEY: I object to this line. We are dealing
4 with materials that aren't in issue in this injunction
5 proceeding.
6 THE COURT: Sustained.
7 BY MR. COOLEY:
8 Q Did you in order to obtain your 501(c)(3) status, you
9 informed the IRS that you were a lending library, correct?
10 A We informed them of a long list of functions that we were
11 performing and that was one of probably 12.
12 Q What were the other 11 things that you told them you
13 were
14 A I would have to look at our F.A.C.T. guidelines and
15 policies because that was submitted as part of our 501(c).
16 That spells out news wire functions, news letter functions,
17 public advocacy functions, victim support functions, working
18 with governments, professionals, there is if I had the
19 exhibit, I could go down. It's a huge list of functions
20 probably over 12.
21 Q And did you list that you were a newspaper?
22 A Yes, in the sense of providing news services, yes.
23 Q Did you list that you were putting out a newspaper or
24 newsletter of any kind?
25 A Yes, that's included in the language.
413
1 Q And that is in your application for 501(3) status?
2 A It's in the five principles and seven guidelines which was
3 submitted in the application, and we went through extensive
4 questioning about the whole process. I think there were four
5 versions back and forth amended and questioned by the IRS. We
6 set the parameters exceedingly broad because we educate and
7 promote dialogue.
8 Q Did you inform the IRS that you were an archive
9 preservation operation?
10 A Yes, it's in that material.
11 Q Now, in your deposition you have described yourself or
12 F.A.C.T.Net as an electronic lending library and an archive,
13 archive preservation operation; isn't that right?
14 A That was one of the descriptions.
15 Q Do you find anywhere in your deposition that you told us
16 that you were a newspaper?
17 MR. KELLEY: Your Honor, that's not a fair question.
18 THE COURT: Sustained.
19 BY MR. COOLEY:
20 Q How much did you charge how much do you charge for your
21 library service?
22 A We haven't charged for a year and a half. We piloted some
23 fees and it was more work keeping track of the small amounts
24 than it was just to let people we basically wanted people
25 to use the library. Use was more important than income, so we
414
1 opened the library to anyone and that means anyone. Anyone
2 can call that library 24 hours a day our worst adversaries,
3 any cult, and they can post anything they want to challenge
4 what we put up about them. They have a free space to express
5 their views.
6 Q Wasn't that offered by you subject to your right once that
7 was done to contradict it before it got posted?
8 A I don't understand what you are asking.
9 Q This concept of the people that you attack on your on
10 your computer material and in your database being free to post
11 themselves and tell their own story, that was subject to you
12 being able to have the last words and make comments on the
13 story that they published, wasn't it?
14 A It wasn't so. They could post anything they wanted.
15 Absolutely anything they wanted. It would not be edited or
16 censored in any form. We could put what they call
17 hyperlinks a hyperlink is to promote dialogue and
18 discussion. If they would make a statement and there was a
19 fact in it that would be disputed by other information, you
20 put a little button link and the person can click on the link
21 and it would automatically shoot them over to contrary
22 information, so that dialogue could take place. This is the
23 function of this new technology of promoting rational
24 discussion and viewpoint and counterpoint and dialogue.
25 Q How much did you charge for your library cards?
415
1 A What we did for the first six months the basic library
2 card was about $19. A professional card was about I think 100
3 and something, but we probably got in the whole period about
4 30 registrations, and then we abandoned it as too much labor
5 for a pilot idea. That wasn't a good idea and never worked
6 out, so we dropped it.
7 Q And when did you last receive any money for a library
8 card?
9 A I think about a month or two ago somebody who got some of
10 our old literature sent us off the money for a library card.
11 Q And did you issue a card?
12 A He didn't have to have one because he could have just
13 logged on for me.
14 Q Now, after the library the $19 library card, did you go
15 to another method of generating attempting to generate
16 income for the use of your facilities?
17 A No, sir, we didn't.
18 Q Didn't you go to a time charge?
19 A That was included in the pilot project with the library
20 card.
21 Q Was that before or after the library card?
22 A That was at the same time. They are one and the same.
23 Q How much did you charge per hour?
24 A We never actually billed anyone, to the best of my
25 knowledge. It was a pilot idea that if they were on blocking
416
1 the system for ten hours, because we were afraid of cult
2 members blocking all access, that we could have a nominal fee
3 after so many hours on the system or 40 minutes or something.
4 But it turned out that we never billed anybody for it. We
5 never used it. In the beginning of the electronic library
6 there was a lot of piloting of software and ideas. This was
7 all revolutionary. There has never been anything like a
8 complete electronic library and archive trying to get global
9 through the Internet. All through telecommunication. So we
10 have abandoned a lot of software. I think we went through 10
11 or 12 different software programs that wouldn't work, had to
12 write some of our own. We abandoned ideas of trying to
13 translate the library paradigm of what we normally expect
14 through this electronic world through computers. Some of it
15 works and some doesn't translate so well. But we have been
16 trying in the best faith effort we can to try to bring this
17 technology so what you can do with libraries and dialogue. We
18 are not perfect.
19 Q Anybody with a computer that stores materials, makes it
20 available to others could call themselves a library, couldn't
21 they?
22 A I don't know. I don't know about the law in that. I know
23 we had to go through elaborate corporate filings, corporate
24 structure, 501(c) regulations. It took us a year to establish
25 the library. And a year and a half to develop the software to
417
1 do what we are doing.
2 Q If you don't issue library cards any more, and users don't
3 need library cards, they can just log on and off without
4 getting your rules, can't they?
5 A No.
6 Q Tell me how that works.
7 A When a person calls up on a computer, the first screen
8 that comes up is an introduction that says type in your name
9 and password. And if they are not registered with a name, if
10 the computer doesn't recognize their name and password,
11 automatically this eightpage contract comes up. And they
12 have to slowly scroll through it and initial it at different
13 places, and at the end they have to sign it, and they have to
14 sign it a second time to verify that they are really who they
15 are and they are signing this on line contract, and they
16 understand that they have to abide by the fair use regulations
17 of that eightpage contract which are extensive. So even
18 though it's free, every person, whether they call in on their
19 telephones with computers or whether they mail in have to sign
20 a very clear fair use disclaimer that they are going to
21 recognize that we are a library and archive, we are trying to
22 offer information for dialogue, and it's given to them under
23 explicit restriction, and that's the best we have been able to
24 do to protect individual rights and copy holders and at the
25 same time allow the public to access critical court records
418
1 and information using this new technology.
2 People in Russia or people in Albania or people that
3 can't get to the Los Angeles courthouse where this stuff is
4 and it's not perfect but this technology they call it
5 electronic frontier. We are out on a frontier trying to
6 interpret as best we can the intent and spirit of the laws and
7 of the procedures and put them in this new technology, and
8 it's very difficult, Your Honor. You will see when this goes
9 to trial, the translation.
10 MR. COOLEY: Could we at some point I have lost
11 track of the question. Could we ask for responsive answers,
12 Your Honor.
13 THE COURT: Yes.
14 BY MR. COOLEY:
15 Q Will you try to contain yourself and answer the questions
16 that I ask and nothing more, please.
17 When you in that last presentation that you made,
18 you differ markedly from the New York Public Library or any
19 other library in that when you send the stuff out there or
20 allow somebody to take it out there, it never comes back, does
21 it?
22 A Technically, it doesn't, but they have a destroy clause in
23 the contract and they agree that they will not use it.
24 Q So that you try to make up for that situation, whereas in
25 the New York Public Library or the Denver Public Library lends
419
1 you a book and gets it back, you would say what you do, you
2 send it out there, it never comes back, you have got some
3 contract that they promise that they will destroy it?
4 A In the Internet paradigm, that's about the best we could
5 think of.
6 Q What do you understand you have to do to enforce that
7 contract?
8 A Do probably what every library does to enforce their
9 library cards, as much as you can, in electronic communication
10 in these distances. We take people at their honor and that we
11 figure who use libraries are not
12 Q If you use the library, you can't be a thief, you start
13 with the premise?
14 A We try to believe in people, that they are going to be
15 basically decent, and we trust that they will they sign a
16 contract that's exceedingly explicit, and they understand that
17 they are not being charged for this stuff, that we are trying
18 to do a service, that they at least won't abuse the service,
19 so we would wind up in court in an action like this.
20 Q If one of these decent people were to take some of the
21 material that you sent and decide he was going to violate
22 copyrights, notwithstanding your contract that thou shalt not,
23 and post it anonymously, you wouldn't have any way of
24 enforcing your contract, would you?
25 A I would be no different than any other library that
420
1 provides fair use and somebody takes it out of the library and
2 abuses it. I would be in the same situation as every library
3 in the world.
4 Q Except that you would be in a position whereby the
5 anonymity that is so common on the Internet, that it would
6 make it impossible for you to enforce that contract with that
7 person; isn't that right?
8 A They could be just as anonymous, taking materials out of
9 the Denver Public Library and misusing that. Anonymity wasn't
10 invented on the Internet.
11 Q No, but it was brought to a very high level on the
12 Internet.
13 A I don't know how to answer that.
14 Q You know what remailers are, don't you?
15 A Yes, sir, I do.
16 Q You know one of the most common tools on the ARS newsgroup
17 is the use of remailers to take the headers off the
18 communications, so that you can't tell who originated them and
19 who that person is?
20 A I don't know it to be one of the most common, but I know a
21 large number of people are in fear of your organization.
22 Q Please would you answer my question and never mind that
23 answer.
24 You know that remailers are a common factor on the
25 Internet, don't you?
421
1 A I don't know that, sir. I know that they are used, but I
2 don't know in the sense of common. Is it 50 percent or every
3 one using remailers? I have no idea.
4 Q In any event, a remailer or other anonymous means adopted
5 on the Internet makes it impossible to find out who the
6 copyright infringer is; you know that, don't you?
7 A I don't know that because the professor testified that
8 they were able to find out that Scientology was using
9 remailers.
10 Q You heard Professor Cleek testify to that?
11 A Basically he said that the rabbit patrol had found that
12 these anonymous cancellations
13 Q He never testified that that was Scientology, sir, did he?
14 A Well, he just about came as long close to saying it as you
15 could say it.
16 Q He never was able to say that that had anything to do with
17 Scientology, and he was your expert, wasn't he?
18 MR. KELLEY: Which question should he answer, Your
19 Honor?
20 A I can't answer two.
21 BY MR. COOLEY:
22 Q You were here when he testified, weren't you?
23 A Yes.
24 Q You heard me ask him whether he was able to identify who
25 the canceller was.
422
1 A I heard him say that he tracked it all of the way back to
2 the final remailer, and you didn't ask him was Scientology
3 involved in the final
4 Q I most certainly did. So you weren't
5 MR. KELLEY: Argumentative.
6 THE COURT: Sustained.
7 BY MR. COOLEY:
8 Q In any event, sir, you are aware of the difficulties of
9 policing this agreement that you have erected here as being
10 the protection of copy from copyright infringement, right?
11 A As it a parallels any library problems, yes, sir, I am.
12 MR. KELLEY: I object to this line because it
13 pertains to materials not in issue in this case.
14 THE COURT: Sustained.
15 MR. COOLEY: I haven't heard him say that give
16 that testimony, Your Honor.
17 THE COURT: I have ruled.
18 MR. COOLEY: That it doesn't apply to the materials
19 in this case.
20 THE COURT: I have ruled. Next question.
21 BY MR. COOLEY:
22 Q Now, with respect to the materials that are
23 nondownloadable that you have in your in archives, are people
24 allowed in there to scan those, although not to make copies?
25 A No, sir, the only people that are accessed to our
423
1 nondownloadable archives are Bob Penny and myself. We were
2 the only ones that have adequate password security clearance
3 and physiologic security clearance to see those, and I have to
4 make a determination because Bob doesn't work in that area.
5 Q So that I am correct then that no outsider who wants
6 access to your nondownloadable files is permitted to look
7 at at them?
8 A They have no direct access except through me.
9 Q What kind of access is that? Do you get stuff out of
10 there for them?
11 A If in a court action a piece of information that we have
12 in our nondownloadable say is evidence, court exhibit from
13 the FBI is relevant in a Canadian court case involving
14 Scientology or South African or English or German, we may go
15 to our hard copy archives, answer, okay, it's evidence
16 submission from another court and state, create an
17 authorization that this is an affidavit that says this is a
18 true copy of the evidence submitted in such and such case
19 against Scientology. And then we would send that to the
20 litigation in maybe another part of the United States or
21 another country.
22 Q Do you give them access to any copyrighted materials of
23 Scientology?
24 A If that was part of the evidence exhibit in a court case
25 and you guys have either stolen or destroyed or somehow sealed
424
1 or removed the record, and we obtained it while it was public
2 record, we make those court records available anywhere in the
3 world.
4 MR. COOLEY: I object. Move that the answer be
5 stricken.
6 THE COURT: Sustained. The answer stricken.
7 BY MR. COOLEY:
8 Q Do you give them access to the O.T. I through VII levels?
9 A No, sir, we don't.
10 Q You don't do that to anyone I understand?
11 A No, sir, I don't.
12 Q Now, how does when were the downloading charges in
13 effect, sir?
14 A The beginning pilots of the bulletin board for maybe six,
15 nine months.
16 Q How much were they?
17 A They were so much per hour, and we never collected any
18 money or used them, so I don't even remember.
19 Q All right. So for a considerable period of time, there
20 has been no income realized by F.A.C.T.Net from its library
21 operation; is that right?
22 A That's true, sir.
23 Q That is, there has been no library card fee, no
24 downloading charges, correct?
25 A It's a free library to everyone.
425
1 Q The only thing you charge for if the person is not quite
2 computer literate enough to do an effective search, you will
3 have somebody do it for them and charge them?
4 A If they can't do it themselves and they need the
5 information, we'll ask somebody in our organization to do it.
6 Q What do you charge for that service?
7 A We sometimes give it away if they have no money, and
8 sometimes if it's a powerful law firm or corporation or
9 government, we'll charge them $60 an hour.
10 Q About how much income have you yielded from that source?
11 A I would have to look at our books over the past couple
12 years, but I don't handle the books, so I don't have the
13 figures on that.
14 Q So it would be basically very little?
15 A We run on very little so so everything we get is very
16 little.
17 Q How do you support yourselves?
18 A I receive some money from some outside consulting, and I
19 live on hardly any money at all. I live very conservatively.
20 Q Is it fair to say that far and away the greatest amount of
21 money received by F.A.C.T.Net has resulted from consulting
22 services far lawyers in Scientology litigation?
23 A No, sir. I would say that families and people who
24 understand the dangers of Scientology have donated the most
25 money.
426
1 Q I am not talking about charitable donations. I am coming
2 to that. I am talking about money received in exchange for
3 the use of the database.
4 A I couldn't answer that without looking at the books, but
5 my belief is that it hasn't been our absolute major funding
6 source. It has been a significant funding source.
7 Q I am not saying your funding source. I will get to your
8 charitability in a minute. I mean for services rendered,
9 income for services rendered has been primarily the consulting
10 work done either by you, using the database or by F.A.C.T.Net
11 directly, isn't that right, for lawyers?
12 A And other people, yes, sir.
13 Q In fact that in fact these fees come to somewhere
14 between $20,000 and $30,000?
15 A I would say 20 is probably more accurate.
16 Q I remember you saying it was probably another five or ten
17 on top of that 20 at your deposition?
18 A Yes, sir, but I also don't handle the books. You had me
19 guestimating.
20 Q Now, in addition, though, you have received charitable
21 contributions, don't you?
22 A Yes, sir, we do.
23 Q And before this month nobody at your operation received a
24 salary, correct?
25 A That's correct, sir.
427
1 Q And commencing this month you went on a salary of $1,300 a
2 month?
3 A That isn't a monthly it was $1,300.
4 Q You got $1,300. Is that going to be periodic
5 compensation?
6 A I don't know if F.A.C.T.Net is going to survive. Haven't
7 been able to pay salaries after three years, so I have no
8 reason to believe that that will be a steady salary.
9 Q For the first time in your history after this litigation
10 was instituted you were able to take a salary, weren't you?
11 MR. KELLEY: Irrelevant, Your Honor.
12 THE COURT: Overruled. It's salary. The problem is
13 he has answered that he doesn't take a salary.
14 BY MR. COOLEY:
15 Q The first payment that you were able to take out of this
16 corporation was this month, wasn't it?
17 A Yes, sir, it was.
18 Q And did you take that out of money that you have been
19 soliciting for your defense fund?
20 A No, sir.
21 MR. KELLEY: Irrelevant, Your Honor.
22 THE COURT: Overruled.
23 A No, sir, it was given to me by the treasury secretary out
24 of the general funds of F.A.C.T.Net.
25 BY MR. COOLEY:
428
1 Q And who is that?
2 A Jan Merrill.
3 Q In the past you couldn't take any money because there was
4 no money to take; isn't that a fair statement?
5 A That's a very fair statement.
6 Q Now, there is money to take. Where is it coming from?
7 A It's coming from donations. It's coming from I would
8 have to look at all the sources, but some money is coming in
9 from the defense fund, some is coming in from donations, some
10 is coming in from people who are outraged about what you guys
11 did to us.
12 Q So the shoe string on which you operate got a little
13 stronger after Scientology sued you, didn't it?
14 MR. KELLEY: Irrelevant, Your Honor.
15 THE COURT: Sustained.
16 THE WITNESS: Do I need to answer?
17 MR. COOLEY: No, the Judge has sustained the
18 objection, Mr. Wollersheim.
19 BY MR. COOLEY:
20 Q Did you tell the IRS or have you reported to the IRS that
21 you are earning between $12,000 and $24,000 per year out of
22 this operation?
23 A We had to put projections on the IRS forms based on what
24 we thought we would raise in money. Those were the were
25 the projections that we put there, but that isn't anything
429
1 other than financial projections.
2 Q In fact, you projected that strike that. When did you
3 make those projections?
4 A About two years ago. When we first started assembling the
5 documentation for a 501(c). It took us almost a year to get
6 our 501(c).
7 Q And you applied for it when and when did it come through?
8 A We applied I think we got it in July of 1994. I am not
9 real certain of it, but we had started applying back in '93.
10 Arent Fox law firm. And we started writing the documents, and
11 501(c) is an enormous application. It takes a lot of work.
12 Took a lot of time.
13 MR. KELLEY: Your Honor, I am going to object because
14 it's all in the deposition that was tendered as part of the
15 plaintiff's case. It's repetitive.
16 THE COURT: Overruled. Next question.
17 MR. COOLEY: Thank you.
18 BY MR. COOLEY:
19 Q Was the Fishman affidavit with the O.T. I through VII
20 materials at both Penny's place and your place at the time of
21 the seizure; do you know?
22 A To the best of my knowledge, I transferred all of the
23 GeertzFishman documents that were used in the consulting up
24 to his garage. We finished the case, except a couple of
25 pieces that I had down at my place in a corner, and to best of
430
1 my knowledge, it was not the FishmanGeertz affidavit because
2 that was just in with the stuff we did on the suicide
3 evaluations and that was with all of the other stuff.
4 Q Now, with respect to the upper level materials of
5 Scientology copyrighted which are involved here, the O.T. I
6 through O.T. VII, are these documents in your either your
7 hard copy archive or your computer archive open to the public?
8 A According to our policy, they shouldn't be in any way.
9 Q Are they made available by F.A.C.T.Net to researchers?
10 A No, sir, at this point they have been used exclusively for
11 the suicide research and in preparation for submitting that to
12 the government in a Grand Jury investigation.
13 Q Who is doing that research?
14 A I prefer not to mention their names because of retaliation
15 or security problems.
16 MR. COOLEY: This deals directly with the requirement
17 of Section 108 of the Copyright Act, Your Honor, and I really
18 have to be able to get this material.
19 THE COURT: All right.
20 MR. LIEBMAN: We don't contend that we have a defense
21 under Section 108, the library exemption. We contend it's
22 fair use, events under 107, so I don't think
23 THE COURT: Wait a minute. You are not contending
24 you have any sort of 108 protection.
25 MR. LIEBMAN: In our brief we indicated it's
431
1 consistent with 108 and the principle of 108 could be applied
2 with respect to the fair use analysis. We don't contend that
3 it is technically.
4 MR. COOLEY: I move for the entry of a preliminary
5 injunction right now on that basis and on the basis
6 yesterday that this man testified that under no circumstances
7 is he being injured by not having our upper level materials,
8 so why have we been here for three days?
9 THE COURT: Mr. Kelley.
10 MR. KELLEY: We have been here for three days because
11 this man has testified and will testify that the ability to
12 discuss the rights, rituals, and procedures of this
13 organization which he thinks are highly pernicious is
14 essential to his work and ability of the public to deal with
15 this issue.
16 MR. COOLEY: There is not a shred of case law that
17 supports that proposition, Your Honor.
18 MR. KELLEY: Counsel, as you know, the copyright laws
19 forbid copying of documents but do not forbid the discussion
20 of the ideas contained in them.
21 THE COURT: What are you trying to do?
22 Direct your remarks to the court, Mr. Kelley.
23 MR. KELLEY: I apologize. What the plaintiff is
24 trying to do is to seal off such discussion.
25 THE COURT: Well, in view of the stipulation of
432
1 counsel, you need not give the names. Next question.
2 MR. COOLEY: I think, Your Honor, I don't have any
3 further questions.
4 THE COURT: Redirect.
5 MR. KELLEY: Just so that it is very clear. The
6 library exemption is something that may well be an issue in
7 the ultimate trial of this case.
8 THE COURT: I'm not concerned about that.
9 MR. KELLEY: We are not raising it at this hearing.
10 THE COURT: Do you have any questions now?
11 MR. KELLEY: Just a couple of questions.
12 REDIRECT EXAMINATION
13 BY MR. KELLEY:
14 Q Mr. Wollersheim, one of the things that I think you
15 mentioned was the fact that the plaintiffs still have your
16 hard drive.
17 Could you explain to the court what that is and what
18 the significance of it is?
19 A Bob spent months configuring the setting up is
20 setting up all of this sophisticated scanning equipment, CD
21 creation equipment, ultra high tech OCR software and other
22 packages which are still experimental, plus a bulletin board.
23 He has done things with software nobody not even the
24 manufacturers could do. I need F.A.C.T.Net's equipment back
25 in order to run the operation, to run F.A.C.T.Net and to do
433
1 our defense. Inside our hard drive are also all kinds of
2 workinprogress files, stuff that you raided in our daily
3 work. You have no idea what's going on. Our mailing lists
4 that were incorrect, all of our information to function is all
5 configured in the original configuration that, frankly, he
6 isn't able to reduplicate due to his condition. If that stuff
7 doesn't come back together exactly the way it was taken out of
8 our place, we are on the edge. We could go out of business.
9 We could go out of function as a library totally because there
10 is no one else to duplicate it.
11 So they can't give me one of the reasons I turned
12 the computer down, they can't give me an offtheshelve
13 computer for when a professional programmer who owns a
14 software company has worked two and a half years on, I have to
15 have what he built. He has to have what he built. Somehow,
16 hopefully, we can keep it running with somebody new coming on.
17 So it's very important that our original equipment exactly as
18 they took it out the door of our place is returned in complete
19 functioning order, nothing changed, nothing deleted.
20 Q Now, I think you testified that the upper levels materials
21 in issue in this case, O.T. I through VII, are essential to
22 your suicide investigation?
23 A Are absolutely critical.
24 Q Let me ask you to stop there, please.
25 Now, I take it it's fair to summarize your personal
434
1 views and the views of your organization to be that the
2 assumptions and the methods and the rituals and procedures of
3 these materials are the instruments that have destroyed a
4 number of lives?
5 A Yes, sir.
6 MR. COOLEY: I object.
7 A And drive in many, many people.
8 MR. COOLEY: I object, and move that the answer be
9 stricken.
10 THE COURT: Overruled. Motion denied. Next
11 question.
12 BY MR. KELLEY:
13 Q Would you also agree that there is a significant public
14 controversy over this very issue raging at the present time?
15 A There is a tremendous controversy about it. Time magazine
16 wrote about the suicides in Scientology.
17 Q Mr. Wollersheim, just answer my question.
18 Do you think it's important to you and others who
19 would want to be involved in the resolution of that debate to
20 know about and to be able to use the ideas and concepts that
21 are involved in the O.T. materials I through VII?
22 A It's absolutely a life and death matter.
23 MR. KELLEY: That's all, Your Honor. Thank you.
24 RECROSSEXAMINATION
25 BY MR. COOLEY:
435
1 Q Are you aware that the central practice of Scientology is
2 auditing?
3 A I don't believe that, but you claim it.
4 Q Well, auditing O.T. III, O.T. I those are all auditing
5 processes, upper level auditing processes, are they not?
6 A Yes, sir, they are.
7 Q Are they not, yes or no?
8 A That's what you claim, sir.
9 Q And let me see if I understand you correctly, those
10 copyrighted upper level materials you want to be able to
11 discuss and bring out and expose to the public, so that you
12 can take the position in your research that the adherence to
13 those religious practices lead to suicide; is that your
14 testimony?
15 A It's already fact.
16 Q Is that whether you think it's fact or not is that
17 what you want to do with these materials?
18 A You will have to ask the question again.
19 Q Is that what you want to do with these materials?
20 A The question you asked before.
21 Q You want to use them in public debate and discussion to
22 establish your premise and substantiate your research? That
23 suicides result from this religious practice; is that your
24 testimony?
25 A We want to dialogue on the methodologies.
436
1 Q Can you answer my question, please?
2 A Yes, sir.
3 Q Just once.
4 A Yes, we want to dialogue on it.
5 Q And that is why you have got them lurking in your archive
6 waiting to do it, right?
7 MR. KELLEY: Argumentative, Your Honor.
8 THE COURT: Sustained.
9 BY MR. COOLEY:
10 Q You also want them to see if a politically well connected
11 law firm can't get the church indicted; isn't that right?
12 A That's not correct, sir.
13 Q Didn't yesterday you say you had yourself a nice
14 politcally connected law firm that you were hoping would get
15 the church indicted?
16 A I didn't say that, sir. I said a Washington law firm was
17 assisting us in preparing these, so they were suitable for the
18 standard of a Grand Jury investigation.
19 MR. COOLEY: You cleaned that up. I have no further
20 questions.
21 THE COURT: Anything else?
22 MR. KELLEY: No, Your Honor. Thank you.
23 THE COURT: You may stand down. Next witness,
24 please.
25 MR. KELLEY: That will be all of our witnesses. We
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1 just have some exhibits to offer.
2 THE COURT: Go ahead.
3 MR. KELLEY: At this point, first is exhibit double N
4 which are excerpts from the deposition of Warren McShane. N
5 as in Nancy, excuse me. Double O are plaintiff's answers to
6 interrogatory No. 13 of interrogatories propounded. Mr. Case
7 reminded me he has to get the originals. Thank you, Your
8 Honor. Finally, double P which is the deposit, copyright
9 office deposit for O.T. III, as we understand it. And we
10 would offer all of our exhibits which are on the exhibit list
11 A through double M, many of which have already been received,
12 but we would like to make sure that all are received now. And
13 with that, I think we are prepared to rest. Let me just
14 confer.
15 THE COURT: All right.
16 MR. COOLEY: We would ask that the upper level
17 materials in those exhibits as well as in ours be maintained
18 in the same confidential basis they have been, and with
19 respect to that Exhibit R of the defendants' which is that
20 screen play on which intervention was sought by Galaxy, that's
21 a copyrighted, unpublished work that I would ask and I think
22 Mr. Kelley has agreed that be sealed permanently. Perhaps
23 that wouldn't require Galaxy to come back here.
24 MR. KELLEY: It would be first time in my life I have
25 ever agreed to the sealing of any record, but I am not going
438
1 to object. We have no interest.
2 THE COURT: I will keep it with these other materials
3 that you want protected for the time being. I am not going to
4 go any further than that at this time point.
5 MR. COOLEY: Your Honor, I have three rebuttal
6 witnesses, but I would like to have some time in view of that
7 stipulation that was entered into it and see whether it's
8 really necessary.
9 THE COURT: I received this morning, a motion to
10 exclude expert testimony, as the to law, and I am granting
11 that motion. If you have any other rebuttal witnesses.
12 MR. COOLEY: I would merely say that Mr. Jaeger is
13 the leading authority and author in the country on trade
14 secrets and has had enormous experience with all the
15 permutations of the uniform act as it exists in the various
16 statements and I thought his views on what is or what is not
17 generally known as a person who surveyed that material
18 throughout the country as well as the other elements of trade
19 secret would be of assistance to the court.
20 THE COURT: You can include that in your summation
21 but not as a matter of testimony.
22 MR. COOLEY: That being so, then I have two rebuttal,
23 possibly three rebuttal three witnesses. I meant to say I
24 have four. That will eliminate Mr. Jaeger, and I would like
25 to consult with my clients in view of the stipulation.
439
1 THE COURT: Let's take a 15minute recess. And you
2 can let me know. We'll be in recess.
3 (Recess at 10:55.)
4 THE COURT: Thank you. Be seated, please.
5 MR. COOLEY: Your Honor, I have two and maybe three.
6 The Internet expert, I haven't seen yet. Is he here? I have
7 three rebuttal witnesses.
8 THE COURT: All right.
9 MR. COOLEY: Let me say to the court that we are
10 fully prepared to redeliver to Mr. Wollersheim his original
11 equipment and his hard drive sanitized of the hits that came
12 up on the search, so that he will be back in business except
13 for the materials that remain in issue for adjudication on the
14 merits here. In view of that wipe out of the library
15 provision under the Copyright Act, and Mr. Wollersheim's
16 testimony that he is not harmed in any way by not having the
17 upper level materials because he doesn't use them and doesn't
18 plan to use them except to try to get us indicted, it seems to
19 me that there ought to be a stipulated injunction here, but
20 certainly a preliminary injunction to fight out the matters
21 that have been reserved for the merits would be appropriate at
22 this time without the necessity for rebuttal, but if Your
23 Honor feels you want to hear the complete matter
24 THE COURT: I am not going to do anything without
25 getting the summation of counsel, which I hope you'll consider
440
1 to be brief, but I want those, so I think you had better go
2 ahead and call your witnesses.