From: tomklem@netcom.com (Tom Klemesrud) Subject: Re: ATTACKS ON REMAILERS IMMINENT! Message-ID: References: Date: Sun, 12 May 1996 09:35:12 GMT henry (henri@netcom.com) wrote: : -----BEGIN PGP SIGNED MESSAGE----- : NEWS FROM GRADY'S CASE: : from criminal cult of scientology's letter to judge infante: : "Anonymous remailers are another potential source of information : regarding SCAMIZDAT and may corroborate Ward's identity, or at : least association, with SCAMIZDAT. Plaintiff seeks to depose : the anonymous remailers through which the SCAMIZDAT postings : have been made. In his deposition, Ward testified that it was : possible that the anonymous remailers have records which could : show who was involved in SCAMIZDAT. (Ex. A, Deposition of : Grady Ward, at 234:1-4.) He also stated that he did not : object to plaintiff subpoenaing anonymous remailers through : which the SCAMIZDAT postings had been made. (Id., at 234:17-235:20.)" : now of course grady wouldn't mind. i'm sure he's just : as eager to find out who SCAMIZDAT is, and why the criminal : cult still can't find SCAMIZDAT, or stop their NUTS materials : from being posted. : but this portends ugly times for remailers everywhere. I just got the order: RELIGIOUS TECHNOLOGY CENTER'S EXPEDITED MOTION FOR EXPEDITED DISCOVERY OF DOCUMENT HELD BY THIRD PARTIES TO DEFENDANT GRADY WARD: PLEASE TAKE NOTICE that as soon as the matter may be heard by the above-entitled Court, located at 280 South First Street, San Jose, California, plaintiff Religious Technology Center ("RTC") will, and it herebydoes, move the Court for leave to take expedited discovery of certain third parties who may have additional information regarding the Internet postings at issue in this case. The grounds for this motion are that: (1) the testimony of the defendant in his deposition to date has been evasive and contradictory, and it is important to obtain evidence from third parties who may have essential information concerning Internet Posting of Defendant; and (2) it is crucial that this information be obtained rapidly in light of the potential for the massive threatening posting of plaintiff's unpublished, copyrighted works to the Internet which was the basis of this lawsuit, and per prior rulings of this Court, could result in the destruction of RTC's trade secrets in those works. There is, therefore, good cause for hearing this motion as an expedited motion. This motion is based on this Notice of Motion, the accompanying Memorandum of Points and Authorities, all pleading and papers on file in this action, and such other matters as may be presented to the Court at the time of the hearing. CERTIFICATE OF COMPLIANCE On Tuesday afternoon, May 7, 1996, Mr. Hogan left a message on the voice mail of defendant Grady Ward that plaintiff RTC would file an expedited motion concerning documents held by third parties. Mr. Hogan advised Mr. Ward that he would request that this motion be considered in the same fashion as the motion concerning further deposition time and related matters. Mr. Hogan also advised Mr. Ward that the motion and any transmittal letter to the court would be E-mailed to him on Tuesday, May 7, 1996 and provided to the court on Friday, May 10, 1996. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Religious Technology Center ("RTC") seeks to take a limited amount of focused, expedited discovery of third parties in this copyright infringement and trade secret misappropriation case. The case relates to posting, and solicitations and threatening posting, by defendant and by an anonymous poster referring to itself as "SCAMIZDAT," of certain unpublished, confidential works which are part of plaintiff's "Advanced Technology." On April 1, 1996, this Court entered an order of preliminary injunction prohibiting defendant Grady Ward from violating plaintiff's copyrights and destroying its trade secrets in those works. The Court also ordered expedited discovery, including the production of documents and deposition of defendant. Plaintiff therefore seeks to take depositions of the custodians of records of Netcom On-line Communications Services, Inc., Northcoast Internet, and Humboldt Internet (Ex A, Deposition of Grady Ward at 89.91-16), Ward's Internet access providers, as well as certain anonymous remailers through which SCAMIZDAT posting were made, in order to obtain records and information^1 concerning Ward's access to and participation on the Internet and its correlation with any of the infringing posting made from his account under his own name of SCAMIZDAT'S. ----- Footnote 1 Plaintiff will request records, including logs and correspondence, of defendant's usage, as well as testimony regarding such usage and how records are kept. [end footnote] RTC supported its motion for preliminary injunction with substantial evidence that Ward either is SCAMIZDAT or works closely with SCAMIZDAT, as set forth in the supporting declaration of Warren McShane and attachments thereto. In deposition, however, Ward admitted to coining the term and to deliberately taking repeated steps to taunt plaintiff into believing he was SCAMIZDAT, including several dozen postings soliciting for Scientology materials to be sent to him. Some of those postings predicted the content of the next, yet-to-be-posted SCAMIZDAT. But Ward denied that he was or was involved with SCAMIZDAT, when shown infringing posting made under his own name, Ward equivocated, claiming they might be forgeries^2 -------- Footnote 2 Plaintiff does not wish to burden the Court with repetition. It therefore incorporates RTC's Motion for Further Expedited Deposition of Grady Ward, Production of Documents and Things, and Appointment of a Special Master ("Deposition Motion"), files on May 2, 1996 and the Declaration of Thomas R. Hogan ("Hogan Declaration") and the Exhibits files in support thereof. [end footnote] Ward's access providers may keep records of his activities on the Internet, which will provide pertinent information, including Ward's use of their system, billing, and time records of Ward's access to the Internet. [E.g. Deposition Motion at 9:1-10:13; Hogan Dec. P 15, and Ex E thereto.] Compared with the posting that Ward now claims may be forgeries, the access provider evidence may enable RTC to demonstrate the incredibility of Ward's denials, by demonstrating that he had the ability and access to make the posting at the times that they were made. Further, the records may demonstrate his relationship with (if not identity of) SCAMIZDAT. Anonymous remailers^3 are another potential source f information regarding SCAMIZDAT an may corroborate Ward's identity, or at least association, with SCAMIZDAT. Plaintiff seeks to depose the anonymous remailers through which the SCAMIZDAT postings have been made. In his deposition, Ward testified that it was possible that the anonymous remailers have records which could show who was involved in SCAMIZDAT. (Ex. A Deposition of Grady Ward, at 234:1-4) He also stated that he did not object to plaintiff subpeonaing anonymous remailers through which the SCAMIZDAT posting had been made. (id., at 234:17-235:20) II. FURTHER EXPEDITED DISCOVERY SHOULD BE PERMITTED At the hearing on March 29, the court authorized to taking of Ward's deposition before the case management conference, which is not set to occur until July 26, 1996, and then stated, "[a]nd then if anybody wants to do any further discovery pending the case management conference, you can make application to me with notice to the other side." [EX. B, Transcript of Hearing, 20:4-6] "Expedited discovery should be granted when some unusual circumstances or conditions exist that would likely prejudice the party if he were required to wait the normal time." _Fimab-Finanziaria Maglificio Biellese Fratelli Fila V. Kitchen_, 548 F.Supp 248, 250 (1982). Such unusual circumstances are certainly present here. Ward and SCAMIZDAT have threatened to publish a broad spectrum of RTC's unpublished works for which it clams trade secret protection. In order to ensure that its interests are not harmed or lost forever, RTC must ascertain the scope of Ward's activities and his cohorts. The requested records are an important step in that process. ----- Footnote 3 An anonymous remailer is a server which permits Internet users to send messages anonymously. The messages goes to the remailer, which strips off the identifying marks from the sender and continues the message on its routing anonymously. [ MY NOTE: Many of these remailers are out of the country--out of Hon. Ron Whyte's jurisdiction; therefore are not subject to restrictive fourth amendment raiding procedures that RTC may have had to follow in the Erlich raid. Interpol will no doubt help again perhaps with LAPD help in conducting the required foreign raids.] This Court's order and the local rules require that plaintiff obtain permission before undertaking the ordinary discovery requested, prior to the case management conference. Because the stakes are plaintiff's rights to unpublished copyrighted works and the maintenance of its trade secrets, and their threatened imminent disclosure, rapid discovery is necessary and imperative. Plaintiff therefore requests that the Court grant permission for RTC to serve subpeonas on Ward's three access providers and on the two anonymous remaiers located in the United States through which SCAMIZDAT postings have been made. Dated May _blank_ 1996 Respectfully submitted, Thomas R. Hogan [...] Signed Tiffany P. Scarbourough for Thomas R. Hogan [end citation] Isn't this a great document in argument for Common Law Courts? Tom Klemesrud SP5 KoX