1 UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 SAN JOSE DIVISION 4 5 RELIGIOUS TECHNOLOGY CENTER, ) CASE NOS. C-96-20271 RMW (a.k.a Scientology - ed) ) A CALIFORNIA NON-PROFIT ) 6 ORGANIZATION, ) ) SAN JOSE, CALIFORNIA 7 PLAINTIFF, ) ) MAY 11, 1998 8 VS. ) ) PAGES 409-537 9 H. KEITH HENSON, AN ) INDIVIDUAL, ) VOLUME 4 10 ) DEFENDANTS. ) 11 _____________________________) 12 13 TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE RONALD M. WHYTE 14 UNITED STATES DISTRICT JUDGE 15 APPEARANCES 16 FOR THE PLAINTIFF PAUL, HASTINGS, JANOFSKY & WALKER BY: SAMUEL D. ROSEN, MICHAEL MERVIS 17 399 PARK AVENUE NEW YORK, NEW YORK 10022 18 LAW OFFICES OF THOMAS R. HOGAN 19 BY: THOMAS R. HOGAN 60 SOUTH MARKET STREET, SUITE 1125 20 SAN JOSE, CALIFORNIA 95113 21 22 REPORTED BY: LEE-ANNE SHORTRIDGE OFFICIAL COURT REPORTER, USDC 23 24 APPEARANCES CONTINUED ON NEXT PAGE 25 COMPUTERIZED TRANSCRIPTION BY STENOCAT Page 409 1 APPEARANCES (CON'T) 2 FOR THE PLAINTIFF LAW OFFICES OF MOXON & KOBRIN BY: HELENA K. KOBRIN 3 6255 SUNSET BOULEVARD, SUITE 2000 LOS ANGELES, CALIFORNIA 90028 4 5 FOR THE DEFENDANT BERRY, LEWIS, SCALI & STOJKOVIC H. KEITH HENSON BY: GRAHAM E. BERRY 6 ONE WILSHIRE BOULEVARD, 21ST FLOOR LOS ANGELES, CALIFORNIA 90017 Page 410 1 INDEX OF WITNESSES 2 PAGE 3 H. KEITH HENSON 4 DIRECT BY MR. BERRY 436 10 INDEX OF EXHIBITS 11 MARKED 12 DEFENDANT'S EXHIBIT A 470 Page 411 1 MONDAY, MAY 11, 1998 2 (WHEREUPON, THE FOLLOWING PROCEEDINGS WERE HELD OUT 3 OF THE PRESENCE OF THE JURY.) 4 MR. BERRY: FIRST OF ALL, YOUR HONOR, I'D LIKE TO 5 APOLOGIZE FOR MY LATENESS. THE PLANES WERE DELAYED. 6 THE COURT: I'LL ACCEPT THAT. 7 I'M NOT VERY HAPPY WITH THE TIME I RECEIVED YOUR 8 BRIEF, WHICH WAS AFTER NOON TODAY, WHEN I ASKED FOR IT LAST 9 WEEK. 10 IN ANY EVENT, LET'S GO OVER THINGS QUICKLY BEFORE WE 11 BRING THE JURY IN. 12 I HAVE READ MR. BERRY'S TRIAL BRIEF ON ISSUES 13 REGARDING THE ADMISSIBILITY OF EVIDENCE AND RELATED MATTERS. I 14 BELIEVE THAT THE FIRST PARAGRAPH OF THE INTRODUCTION MISSTATES 15 SOMEWHAT WHAT I HAD INDICATED BEFORE WITH RESPECT TO WHAT IS 16 ADMISSIBLE AND WHAT IS NOT. HOWEVER, THE RECORD SPEAKS FOR 17 ITSELF. 18 I'D LIKE TO COVER NOW THE SPECIFIC PARAGRAPHS IN THE 19 OFFER OF PROOF. LET ME START OFF BY SAYING WHAT IS RELEVANT IS 20 MR. HENSON'S STATE OF MIND AT THE TIME OF HIS POSTING AS TO 21 WHETHER OR NOT HE WAS INFRINGING THE COPYRIGHT OWNER'S RIGHTS. 22 THE RELEVANT FACTORS ARE WHETHER HE HAD FACTS 23 SUGGESTING THAT THE MATERIAL WAS NOT COPYRIGHTED. THIS COULD 24 INCLUDE, FOR EXAMPLE, INFORMATION ABOUT THE COPYRIGHT ITSELF, 25 SUCH AS IT HAD EXPIRED, IT BELONGED TO SOMEONE ELSE AND THEY HAD Page 412 1 GIVEN A LICENSE TO SOMEONE, OR, AS WE'VE DISCUSSED BEFORE, IF 2 MR. HENSON, IN BOTH SUBJECTIVE GOOD FAITH AND OBJECTIVE 3 REASONABLE BELIEF, BELIEVED THAT NOTS 34 CONSTITUTED THE ILLEGAL 4 PRACTICE OF MEDICINE, AND THAT IF IT DID, IT IN SOME WAY TRUMPED 5 OR OVERRODE COPYRIGHT LAW, HE CAN PRESENT THOSE FACTS. 6 WHETHER MR. HENSON HAD INFORMATION OR THOUGHT THAT 7 SCIENTOLOGY IS OR WAS A CRIMINAL CULT GUILTY OF OTHER CRIMES, OR 8 THE LIKE, IS IRRELEVANT AND HIGHLY PREJUDICIAL. 9 SPECIFICALLY WITH RESPECT TO PARAGRAPH A, THE 10 MATERIAL CONTAINED IN PARAGRAPH A IS IRRELEVANT. 11 PARAGRAPH B, IT'S IRRELEVANT EXCEPT TO THE EXTENT 12 THAT MR. HENSON HAD FACTS THAT SHOWED THAT MR. MAYO OWNED THE 13 COPYRIGHT. THIS WOULD BE INFORMATION HE HAD AT THE TIME HE 14 POSTED. 15 WHAT ACTION SCIENTOLOGY MAY OR MAY NOT HAVE TAKEN 16 AGAINST MR. MAYO IS IRRELEVANT. 17 PARAGRAPH C IS IRRELEVANT. 18 PARAGRAPH D IS IRRELEVANT. 19 PARAGRAPH E IS IRRELEVANT. 20 PARAGRAPH F IS IRRELEVANT. 21 PARAGRAPH G IS IRRELEVANT EXCEPT TO THE EXTENT THAT 22 MR. HENSON WAS AWARE, AT THE TIME OF THE POSTING, THAT NOTS 34 23 HAD ACTUALLY BEEN FOLLOWED IN THE TREATMENT OF A PARTICULAR 24 PATIENT. 25 PARAGRAPH H IS IRRELEVANT. Page 413 1 PARAGRAPH I IS IRRELEVANT. 2 PARAGRAPH J IS IRRELEVANT. 3 PARAGRAPH K IS IRRELEVANT. 4 PARAGRAPH L IS RELEVANT TO THE EXTENT THAT 5 MR. HENSON READ SOMETHING THAT SUGGESTED NOTS 34 CONSTITUTED THE 6 ILLEGAL PRACTICE OF MEDICINE PRIOR TO THE TIME THAT HE DID HIS 7 MARCH 30TH POSTING. 8 PARAGRAPH M IS IRRELEVANT. 9 PARAGRAPH N IS IRRELEVANT. 10 PARAGRAPH O IS IRRELEVANT. 11 PARAGRAPH P IS IRRELEVANT. 12 PARAGRAPH Q IS IRRELEVANT. 13 PARAGRAPH R IS IRRELEVANT. 14 PARAGRAPH S IS IRRELEVANT. 15 PARAGRAPH T -- 16 MR. BERRY: YOUR HONOR, I THINK THERE'S REFERENCE IN 17 THE ACTUAL POSTING ITSELF TO SOME OF THE THESE THINGS THAT ARE 18 IN S, FOR EXAMPLE. 19 THE COURT: IT'S IRRELEVANT TO THE ISSUES IN THIS 20 CASE. MR. HENSON IS NOT BEING SUED BECAUSE OF ANYTHING OTHER 21 THAN THE POSTING OF NOTS 34. 22 PARAGRAPH T IS IRRELEVANT. 23 PARAGRAPH U IS IRRELEVANT. 24 PARAGRAPH V IS IRRELEVANT. 25 PARAGRAPH W IS IRRELEVANT EXCEPT AS TO FACTS Page 414 1 MR. HENSON HAD THAT SHOWED THAT DAVID MAYO MAY HAVE AUTHORED 2 NOTS 34 AND THAT ANY COPYRIGHT PROTECTION NO LONGER EXISTS. 3 AND X, SAME COMMENT. IT'S IRRELEVANT EXCEPT AS TO 4 WHAT MR. HENSON KNEW PRIOR TO THE POSTING REGARDING THE 5 AUTHORSHIP OF NOTS 34 AND ANY COPYRIGHT RESULTING THEREFROM. 6 PARAGRAPH Y IS IRRELEVANT EXCEPT AS I'VE PREVIOUSLY 7 INDICATED. 8 AND I WANT TO MAKE IT CLEAR THAT I DO NOT WANT 9 TESTIMONY PERTAINING TO THOSE MATTERS THAT I'VE SAID ARE 10 IRRELEVANT COMING OUT DURING THE COURSE OF EXAMINATION. 11 WITH RESPECT TO EXHIBITS, I INDICATED, OR AT LEAST 12 IMPLIED, THAT I WOULD ALLOW THE DEFENSE TO OFFER THE POSTING 13 THAT WAS MADE BY MR. HENSON ON MARCH 30TH, AND I WILL ALLOW 14 THAT, AND I HAVE MADE COPIES SHOULD THE DEFENSE NEED A COPY. 15 I AM NOT GOING TO PERMIT, AT LEAST AT THIS POINT, 16 THE INTRODUCTION OF ANY OTHER EXHIBITS FROM THE DEFENSE. I 17 THINK A REVIEW OF THE HISTORY OF THIS CASE WILL SHOW THAT THE 18 DEFENSE HAD MORE THAN AMPLE OPPORTUNITY TO LIST EXHIBITS BUT DID 19 NOT DO SO. 20 NOVEMBER 14TH, 1998 (SIC), THE ORIGINAL PRETRIAL 21 CONFERENCE STATEMENT WAS FILED, THERE WAS NO EXHIBIT LIST FROM 22 MR. HENSON. 23 FEBRUARY 5TH, 1997 PRETRIAL CONFERENCE, THERE WAS NO 24 EXHIBIT LIST FROM MR. HENSON. 25 APRIL 22ND, 1998 PRETRIAL CONFERENCE, MR. HENSON Page 415 1 INDICATED HE HADN'T FILED ANY LISTS YET. THE PARTIES WERE GIVEN 2 UNTIL APRIL 24TH TO FILE SUPPLEMENTAL EXHIBITS AND NONE WERE 3 FILED BY MR. HENSON. 4 AND ALTHOUGH I DON'T HAVE ALL THE TRANSCRIPTS OR 5 RECORDS BEFORE ME, I BELIEVE THERE WAS AN ACKNOWLEDGMENT AT SOME 6 POINT AFTER THE 28TH THAT MR. HENSON, ON OR AFTER THE 28TH, THAT 7 MR. HENSON DID NOT HAVE ANY EXHIBITS. 8 I HAVE HANDED OUT TO YOU THE PROPOSED JURY 9 INSTRUCTIONS WHICH WE CAN DISCUSS AFTER THE TESTIMONY IS 10 CONCLUDED THIS AFTERNOON. 11 ALL RIGHT. IS EVERYBODY READY TO GO? 12 MR. ROSEN: ONE OR TWO QUICK THINGS. NUMBER ONE, I 13 WOULD ASK THAT YOUR HONOR AGAIN INQUIRE OF THE JURY BEFORE WE 14 START AS TO WHETHER THEY HAVE HAD ANY EXPOSURE OR SEEN OR HEARD 15 ANYTHING RESPECTING THIS CASE OR ANY OF THE PARTIES IN THIS CASE 16 OVER THE LONG WEEKEND. 17 THE COURT: I DON'T THINK THERE WAS ANYTHING IN THE 18 PAPER THAT HAD ANY, AT LEAST I DIDN'T SEE ANYTHING THAT HAD 19 ANYTHING TO DO WITH SCIENTOLOGY OR MR. HENSON OR ANYTHING ELSE. 20 MR. ROSEN: MY CONCERN IS THAT THE LAST DAY WE WERE 21 HERE WAS LAST THURSDAY, AND IT WAS IN THAT DAY'S SAN JOSE PAPER, 22 AND IT MAY BE THAT WHEN THE JURORS WENT HOME THAT EVENING, THEY 23 MAY HAVE HAD THE PAPER AT HOME. 24 I THINK IF YOUR HONOR WOULD INQUIRE SIMPLY WHETHER 25 THEY'VE SEEN OR HEARD ANYTHING, I WOULD APPRECIATE THAT. Page 416 1 THE SECOND THING IS WE HAD FILED A SHORT DOCUMENT 2 THIS MORNING, YOUR HONOR, ON THE CONFIDENTIALITY OF NOTS 34. 3 AS YOU CAN SEE, WE HAVE A ROOM FULL OF PEOPLE TODAY. 4 IF, AS MR. BERRY I BELIEVE HAS INDICATED, HE'S JUST GOING TO PUT 5 IT IN AND SHOW IT TO THE JURY SO THAT NOBODY BEHIND THE RAILING 6 IS GOING TO SEE IT, THEN I DON'T HAVE ANY PROBLEM. 7 BUT IF MR. HENSON IS GOING TO BE QUOTING OR 8 PARAPHRASING PARTS OF IT OR EXPLAINING IT, THEN I WOULD ASK THAT 9 THE TRANSCRIPT NOT ONLY BE SEALED, BUT THAT THE COURTROOM BE 10 CLEARED. 11 THE LAST ITEM IS -- 12 THE COURT: I DID NOT SEE THAT MEMO. 13 MR. BERRY: I OBJECT TO THAT, YOUR HONOR. I CAN'T 14 CONDUCT THIS EXAMINATION WITHOUT GOING THROUGH THE DOCUMENT 15 ITSELF. 16 THE COURT: GO AHEAD MR. ROSEN. 17 MR. ROSEN: WE ARE -- WITH RESPECT TO THE DOCUMENTS 18 THAT WE HAD SUBPOENAED, I UNDERSTAND MR. HENSON HAS GIVEN YOUR 19 HONOR SOME OF THEM. 20 HOW HAS YOUR HONOR PLANNED ON PROCEEDING? ARE YOU 21 GOING TO TAKE A BREAK AFTER THE DIRECT AND THEN DETERMINE WHAT 22 TO GIVE ME? 23 THE COURT: I HAVE NOT SEEN THE DOCUMENTS. 24 SO I WOULD ASK AT THIS TIME, MR. BERRY, DID YOU FILE 25 THOSE, OR WHAT'S THE STORY WITH THE DOCUMENTS? Page 417 1 (PAUSE IN PROCEEDINGS.) 2 MR. BERRY: THE WITNESS TELLS ME, YOUR HONOR, THAT 3 HE FORGOT TO BRING THEM, BUT HE CAN BRING THEM TOMORROW MORNING. 4 HE HAS THE TAX RECORDS, ONLY THE TAX RECORDS THAT HE HAS. 5 THE COURT: WITH HIM OR NOT? 6 MR. BERRY: NOT WITH HIM. 7 MR. ROSEN: YOUR HONOR, IN THAT CASE I'M GOING TO 8 MOVE TO PRECLUDE THE DEFENSE OF INABILITY TO PAY. 9 THERE WAS NO TIMELY OBJECTION TO THE SUBPOENA, 10 THERE WAS NO MOTION TO QUASH THE SUBPOENA, AND I BELIEVE YOUR 11 HONOR BENT OVER BACKWARDS IN TERMS OF ACCOMMODATING AND ASKING 12 THAT THE DOCUMENTS BE SUBMITTED IN CAMERA SO AS TO PROTECT 13 WHATEVER CONFIDENTIALITY WOULD NOT BE RELEVANT TO A CLAIM OF 14 INABILITY TO PAY. 15 THERE HAS BEEN NO COMPLIANCE. MR. HENSON STANDS 16 GUILTY OF CONTEMPT OF THE SUBPOENA. 17 MR. BERRY: YOUR HONOR, WE BRIEFED THE ISSUE OF THE 18 SUBPOENA BEING UNTIMELY AND IMPROPER. 19 THE COURT: I'VE READ YOUR BRIEF. LET ME READ THIS 20 OTHER MEMO. 21 ANYTHING ELSE? 22 MR. ROSEN: YOUR HONOR, ONE OTHER THING. I DID HEAR 23 THAT YOU INSTRUCTED MR. HENSON, OR YOU INSTRUCTED COUNSEL I 24 GUESS, RESPECTING OUTBURSTS. 25 AS WE WENT OVER THE TRANSCRIPTS OF LAST WEDNESDAY Page 418 1 AND THURSDAY, THERE WERE 50 INSTANCES IN WHICH EITHER MR. BERRY, 2 IN HIS QUESTIONS OR HIS OPENING STATEMENT, OR MR. HENSON HAD 3 GRATUITOUSLY VOLUNTEERED LARGELY NONRESPONSIVE ANSWERS TO 4 QUESTIONS THAT GOT INTO SCIENTOLOGY AND THE ATTACKS UPON 5 SCIENTOLOGY. 6 IF THIS HAPPENS AGAIN, AND I WOULD HOPE THAT IT DOES 7 NOT, YOUR HONOR, WE HAVE A BRIEF TO HAND UP ON WHY THE 8 APPROPRIATE REMEDY SHOULD BE "THE DEFENSE HAS FINISHED, THE 9 DEFENDANT'S JUST RESTED" IF THAT'S THE CASE. 10 YOUR HONOR HAS TOLD MR. HENSON ABOUT THIS AT LEAST 11 TWICE LAST WEEK. 12 IN VIEW OF THE RULINGS TODAY -- I DON'T EXPECT THAT 13 THERE WILL BE COMPLIANCE. I HOPE THAT THERE IS, BUT I DON'T 14 EXPECT IT, AND I WOULD ASK YOUR HONOR TO NOTE, AND THIS IS WHAT 15 REALLY GETS US UPSET, YOU HELD PARAGRAPH H OF MR. BERRY'S OFFER 16 OF PROOF TO BE IRRELEVANT. 17 I JUST WANT TO POINT OUT THAT MR. HENSON, ACCORDING 18 TO MR. BERRY, IS GOING TO TESTIFY THAT THE MURDER OF ATTORNEY 19 FORD GREEN AND SCIENTOLOGY CRITIC CYNTHIA KISSER HAD BEEN 20 DISCUSSED IN THE KENDRICK MOXON LAW FIRM, OF WHICH MRS. KOBRIN 21 IS A PARTNER. 22 MR. BERRY HAS ACCUSED TWO ATTORNEYS OF DISCUSSING, I 23 GUESS CONSPIRING TO COMMIT A MURDER, TWO MURDERS. 24 MR. FORD GREEN IS AN ATTORNEY IN MARIN COUNTY WHO, 25 UNLESS HE DIED WITHIN THE LAST HOUR OR SO, IS ALIVE AND WELL, Page 419 1 AND INDEED, WAS ON MR. HENSON'S ORIGINAL WITNESS LIST. 2 THE OTHER PERSON NAMED, MS. KISSER, IS, AS FAR AS WE 3 KNOW, ALIVE AND WELL. 4 AND THIS IS JUST SIMPLY AN OUTRAGE AND IT PORTENDS A 5 CONTINUATION OF WHAT HAPPENED LAST WEEK. 6 SO I WOULD ASK YOUR HONOR TO MAKE THE ADMONITION 7 CLEAR TO MR. HENSON IN TERMS OF THE CONSEQUENCES OF HIM BLURTING 8 OUT GRATUITOUS COMMENTS THAT ARE NOT, THAT YOUR HONOR HAS RULED 9 ARE NOT RELEVANT. 10 MR. BERRY: YOUR HONOR, FIRST OF ALL, THE COURT HAS 11 ALREADY SAID IT'S IRRELEVANT AND CAN'T BE ADMITTED AND WE 12 SHOULDN'T BE REFERRING TO IT. 13 SECONDLY, I HAVEN'T ACCUSED ANYONE OF ANYTHING. 14 MR. GARRY SCARFF TESTIFIED ABOUT THAT, SO THAT MISREPRESENTS 15 WHAT'S IN THAT RECORD. 16 BUT THE COURT HAS INDICATED THAT WE CAN'T GO INTO 17 IT, SO WE WON'T BE GOING INTO IT. 18 AND I'M REQUESTING THE COURT THAT WE HAVE FIVE 19 MINUTES NOW SO I CAN GO OVER THIS WITH MR. HENSON. 20 THE COURT: I WILL GIVE YOU THOSE FIVE MINUTES 21 BECAUSE I THINK IT'S IMPORTANT. 22 MR. ROSEN: YOUR HONOR, RESPECTING THE DOCUMENT YOU 23 ARE READING THAT I REFERRED TO A MOMENT AGO, YOUR HONOR, I 24 THINK, ALREADY KNOWS THIS FROM THE HISTORY OF THESE CASES. 25 A SUBSTANTIAL AMOUNT OF RTC'S COPYRIGHTED Page 420 1 CONFIDENTIAL WORKS WERE ORIGINALLY RELEASED BY MR. BERRY IN A 2 FILING OF AN AFFIDAVIT IN AN OPEN COURT FILE IN THE FISHMAN 3 CASE. 4 I WOULD HOPE THAT, BY THE EXAMINATION ON NOTS 34 IN 5 THIS COURTROOM, THAT THE PEOPLE IN THIS COURTROOM, INCLUDING I 6 SEE MR. WARD SITTING HERE, ARE NOT GOING TO SAY, "AH-HAH, IT HAS 7 NOW BEEN PLACED ON A PUBLIC RECORD." 8 I UNDERSTAND THAT IT IS NOT TRADE SECRET IN THE 9 SENSE OF HAVING THE PROTECTION, BECAUSE OF WHAT OCCURRED, AND 10 BEING ENTITLED TO TRADE SECRET PROTECTION, BUT THAT DOES NOT 11 MEAN THAT IT IS NOT SUBJECT TO CONFIDENTIALITY PROTECTION UNDER 12 RULE 26. 13 MR. BERRY: YOUR HONOR, IT GETS A LITTLE TIRESOME 14 HAVING TO CORRECT THE RECORD, BUT I WAS NOT THE PERSON WHO FILED 15 THE FISHMAN DECLARATION. IT WAS MR. FISHMAN. HE WAS PRO PER 16 AT THE TIME AND MY STAFF ACCOMMODATED HIM BY ACTUALLY TAKING IT 17 DOWN TO THE COURTHOUSE, AND THAT WAS THE EXTENT IT OF. HE WROTE 18 IT. 19 (PAUSE IN PROCEEDINGS.) 20 MR. ROSEN: YOUR HONOR, WE HAVE ANOTHER PROBLEM. 21 THE NOTS 34 WHICH MR. BERRY INTENDS TO PUT IN IS FOUND IN THE 22 LETTER TO YOUR HONOR. IF THE PURPOSE IS TO PUT IN NOTS 34 TO 23 DEMONSTRATE THAT MR. HENSON BELIEVED IT WAS THE ILLEGAL PRACTICE 24 OF MEDICINE, THAT'S ONE THING. 25 THE COMMENTARY IN THE LETTER TO YOUR HONOR DOES NOT Page 421 1 BELONG IN THE EXHIBIT. 2 THE COURT: THIS IS THE POSTING OF MARCH 30TH; 3 RIGHT? 4 MR. ROSEN: THAT'S CORRECT. 5 MR. BERRY: YOUR HONOR, THIS IS BECOMING ABSURD. 6 THE COURT: LET'S DO ONE AT A TIME, PLEASE. 7 MR. ROSEN: THE POSTING IS IN THE FORM OF AN OPEN 8 LETTER TO YOUR HONOR WHICH HAS A LOT OF COMMENTARY, INCLUDING 9 THINGS THAT YOUR HONOR HAS JUST RULED ARE NOT EVEN RELEVANT. 10 BUT THE POINT IS, IT WOULD INVOLVE THIS COURT IN THE 11 SENSE OF MR. HENSON'S NEGATIVE OPTION THAT I, "IF YOU DISAGREE 12 WITH ME, JUDGE, THEN PLEASE LET ME KNOW." 13 THE COURT: THAT'S NOT WHAT THIS LETTER SAYS. THIS 14 IS AN OPEN -- THE ONE THAT I BELIEVE IS THE MARCH 30 POSTING IS 15 PURPORTEDLY AN OPEN LETTER TO ME THAT OBVIOUSLY DIDN'T COME 16 UNTIL AFTER THE POSTING BECAUSE IT'S AN OPEN LETTER TO ME. 17 MR. ROSEN: NO. THIS IS A POSTING OF A COPY OF THE 18 LETTER. 19 IF I UNDERSTAND MR. HENSON'S DEPOSITION TESTIMONY 20 AND HIS POSITION IN THIS CASE, THIS IS A MARCH 30TH POSTING OF A 21 COPY OF A LETTER HE HAD PREVIOUSLY ATTEMPTED TO DELIVER TO 22 CHAMBERS OR TO YOUR LAW CLERK. 23 AND YOU'LL SEE AT THE END OF IT, THIS LETTER, THIS 24 PURPORTS TO BE A COPY OF THE LETTER GIVEN TO YOUR HONOR, AND THE 25 LETTER HAS MANY, MANY THINGS IN HERE WHICH SHOULD NOT BE BEFORE Page 422 1 THE JURY. 2 THE ISSUE IS WHETHER OR NOT MR. HENSON THOUGHT NOTS 3 34 WAS THE ILLEGAL PRACTICE OF MEDICINE AND PUT UP NOTS 34. 4 BUT TO SAY -- TO PUT IN THIS LETTER WITH ALL OF ITS 5 OTHER COMMENTARY, INCLUDING THE LAST SENTENCE ADDRESSED TO YOUR 6 HONOR, "IF YOU FEEL THAT T.R.O. DOES PRECLUDE EXAMPLES, PLEASE 7 LET ME KNOW," I THINK THAT IT JUST UNNECESSARILY AND IMPROPERLY 8 INVOLVES THE COURT IN A DISPUTE THAT IS NOT RELEVANT TO THIS 9 CASE. 10 MR. BERRY: YOUR HONOR, THE PLAINTIFF CONTINUES TO 11 TRY AND MAKE A FARCE OF THIS TRIAL AND AN INTERNATIONAL MOCKERY 12 OF THIS COURT. 13 THIS COURT -- THERE IS NO BETTER INDICATION OF HIS 14 STATE OF MIND THAN WHAT HE POSTED AT THE TIME AND WHAT HE GAVE 15 TO THIS COURT, WHICH WAS THE SAME AS WHAT HE POSTED AT THE TIME, 16 AND THE COURT HAS ALWAYS INDICATED THROUGHOUT, DURING THIS 17 TRIAL, THAT WE CAN PUT THIS DOCUMENT IN IN ITS ENTIRETY BECAUSE 18 IN ITS ENTIRETY, IT IS THE CONTEXT OF HIS STATE OF MIND AT THE 19 TIME. 20 THE COURT: I WILL ALLOW, AS I SAID BEFORE, THE 21 POSTING THAT WAS MADE ON MARCH 30TH TO BE ADMITTED. 22 DEPENDING ON WHAT'S TESTIFIED TO, I MAY ALSO GIVE AN 23 INSTRUCTION THAT EXPLAINS THAT THE COURT IS NOT ALLOWED TO GIVE 24 LEGAL ADVICE. 25 MR. BERRY: I WOULD HAVE NO OBJECTION TO THAT, YOUR Page 423 1 HONOR. I THINK IT'S HIGHLY APPROPRIATE. 2 THE COURT: WITH RESPECT TO TESTIMONY CONCERNING 3 NOTS 34, MR. BERRY, YOU PREVIOUSLY SAID THAT YOU HAD NO 4 OBJECTION TO THE JURY BEING GIVEN A COPY OF THE POSTING, AND 5 THAT YOU WOULD NOT ATTEMPT, I BELIEVE, TO READ NOTS 34 OUT LOUD 6 DURING THE COURSE OF THE PROCEEDINGS. 7 THE DOCUMENT IS, ACCORDING TO PLAINTIFFS, 8 CONFIDENTIAL, AT LEAST TO THE EXTENT THAT IT HAS NOT BEEN, 9 ACCORDING TO THEM, PUBLISHED BY ITS AUTHOR OR ITS -- BY RTC, ITS 10 OWNER. 11 IF YOU NEED TO REFER TO A PARTICULAR POINT, FOR 12 EXAMPLE -- WHY DON'T YOU BOTH APPROACH THE BENCH FOR A MINUTE? 13 MR. BERRY: CAN THIS BE ON THE RECORD, YOUR HONOR? 14 THE COURT: YES. 15 (SIDEBAR DISCUSSION ON THE RECORD.) 16 THE COURT: MR. HENSON'S POSTING SAYS, OR 17 REFERENCES, THE TERM "BLOWING BT'S." 18 MR. BERRY: IF I MAY ASSIST -- 19 THE COURT: IF YOU WERE GOING -- I'M SORRY. GO 20 AHEAD. 21 MR. BERRY: IF I MAY ASSIST THE COURT, THIS DOCUMENT 22 IS SO CONFIDENTIAL, PLAINTIFF INTRODUCED EVIDENCE OF IT BEING 23 POSTED NUMEROUS TIMES LAST WEEK WORLDWIDE. 24 THE COURT: THAT'S NOT THE POINT. 25 MR. BERRY: SECONDLY, MR. HENSON'S EXTREMELY LIMITED Page 424 1 DEFENSE REQUIRES ME TO GO THROUGH THIS IN MINUTE DETAIL AS TO 2 WHAT HE READ, WHAT HE KNEW AT THE TIME, AND WHAT HE CONCLUDED 3 THIS DOCUMENT MEANT ON THE BASIS OF WHAT HE KNEW. 4 SO WE WILL BE TALKING ABOUT BT'S, CLUSTERS, BLOWING 5 BT'S, AND ALL SORTS OF OTHER THINGS THAT APPEAR ON THE FACE OF 6 THIS DOCUMENT. 7 THE COURT: WHAT OTHER THINGS, BECAUSE YOUR 8 POSTING -- MY UNDERSTANDING FROM THE POSTING IS THE ONLY THING 9 HE HAD A PROBLEM WITH, OR WHAT HE WAS CONCERNED ABOUT, WAS THE 10 EXPRESSION "BLOWING BT'S," AND THE PHRASES "CEASE TO READ" AND 11 "NO LONGER READ," AND THAT THEY REFER TO, "CEASE TO READ" AND 12 "NO LONGER READ" REFER TO AUDITING WITH AN E-METER. 13 MR. BERRY: THAT'S NOT THE ONLY THING. THERE'S 14 REFERENCES ON EVERY OTHER LINE ALMOST. 15 THE COURT: BUT WHAT ARE YOU GOING TO ASK HIM OTHER 16 THAN "WHAT DOES AUDITING MEAN AS USED IN NOTS 34?" 17 MR. BERRY: IT'S GOING TO BE TIED TO THE E-METER, 18 JUDGE GESELL'S DECISION, AN INJUNCTION WHICH IS EVERY BIT AS 19 SERIOUS AS THIS INJUNCTION, AS THE INJUNCTION ISSUED BY THIS 20 COURT. I'LL BE TALKING ABOUT HANDLING, CLUSTERS, BT'S, CEASING 21 TO READ ITEMS, RUNNING SYSTEMS AGAIN, ENGRAMS, VALENCE, 22 AUDITORS, LINE BY LINE. 23 THERE IS REFERENCE TO THE THINGS THAT LED MR. HENSON 24 TO DECIDE THAT THIS WAS NOTHING MORE THAN THE PRACTICE OF 25 MEDICINE WITHOUT ONE SINGLE REFERENCE TO SEEKING MEDICAL ADVICE Page 425 1 IF THE PROCESS DOESN'T WORK, LEADING HIM TO CONCLUDE IT WAS 2 CONTRIBUTING TO THE DEATHS OF PEOPLE WHO HE KNEW HAD DIED, SUCH 3 AS ROXANNE FRINN. 4 THE COURT: BUT WHAT IS IT THAT YOU NEED TO QUOTE 5 OUT OF NOTS 34 IN YOUR EXAMINATION THAT YOU CAN'T JUST SAY 6 "WHAT" -- 7 MR. BERRY: "MR. HENSON, TURNING YOUR ATTENTION, 8 MR. HENSON, TO THE SECOND PAGE, SEVERAL LINES DOWN, IT TALKS OF 9 THE ITEM BEING HANDLED BY BLOWING OFF BT'S AND CLUSTERS. WHEN 10 YOU READ THAT, WHAT DID YOU UNDERSTAND THAT TO MEAN?" 11 FOR EXAMPLE, FURTHER DOWN IT SAYS, "THE ITEM SAYS 12 'CEASE TO READ.' WHEN YOU READ THAT, WHAT DID YOU UNDERSTAND 13 THAT TO MEAN?" 14 "CEASED TO READ ON THE E-METER." 15 "DID THAT LEAD YOU TO CONCLUDE -- DID YOU REACH SOME 16 CONCLUSION IN CONNECTION WITH JUDGE GESELL'S DECISION?" 17 "YES." 18 "WHAT WAS THAT CONCLUSION?" 19 "THAT THE E-METER WAS BEING USED TO TREAT A MEDICAL 20 CONDITION." 21 "HOW DO BT'S IN THE BODY PART, WHAT DOES THAT REFER 22 TO?" 23 "IT REFERS TO A PROBLEM YOU'RE HAVING WITH LUNG 24 CANCER, WHETHER IT'S A CANCEROUS CYST OR A BROKEN LEG." 25 "WHAT ABOUT BT'S AND CLUSTERS BEING HANDLED?" Page 426 1 "THAT INVOLVES THE USE OF THE E-METER TO INQUIRE 2 INTO THE BT'S AND, FOR EXAMPLE, THE VALENCE DOWN HERE, THAT 3 REFERS TO PAST LIVES GOING BACK THROUGH PAST LIVES AS TO THEIR, 4 AS TO THE CONDITIONS THEY'VE HAD IN THEIR PAST LIVES." 5 IT'S RIGHT HERE IN THE DOCUMENT. 6 THE COURT: ALL RIGHT. THAT'S WHAT YOU'RE GOING TO 7 DO. ALL RIGHT. MR. BERRY, STAY HERE. 8 MR. BERRY: ALL RIGHT. 9 THE COURT: THERE'S NO REASON YOU CANNOT CONFINE 10 THIS TO A SPECIFIC PORTION OF HIS TESTIMONY, SO THAT IF WE 11 DECIDE THAT WE SHOULD CLEAR THE COURTROOM FOR THAT PORTION, YOU 12 CAN DO IT IN THAT TIME? 13 MR. BERRY: YES, I CAN DO THAT. 14 THE COURT: MR. ROSEN? 15 MR. ROSEN: THAT'S FINE. 16 I JUST WANT TO SAY ONE THING, AND I DON'T MAKE THIS 17 ALLEGATION LIGHTLY. I WANT TO TELL YOU WHAT IS COMING. 18 MR. HENSON HAS TESTIFIED THAT HE NEVER READ ANYTHING 19 ABOUT SCIENTOLOGY IN 1995 WHEN HE GOT INVOLVED. THE VERY FIRST 20 TIME HE READ NOTS 34 WAS AFTER YOUR HONOR ENJOINED MR. WARD ON, 21 I BELIEVE, THE 27TH OF MARCH, THE FIRST TIME HE EVER READ IT. 22 EVERYTHING THAT MR., THAT MR. BERRY INTENDS TO 23 ELICIT FROM MR. HENSON AS TO WHAT HE KNEW OR UNDERSTOOD THESE 24 TERMS TO MEAN, HE GOT FROM MR. BERRY AFTERWARDS. 25 MR. BERRY: NOT SO, YOUR HONOR. Page 427 1 MR. ROSEN: EXCUSE ME. AFTER THE POSTING, 2 MR. BERRY, EXCUSE ME, MR. HENSON TOLD YOUR HONOR, IN FILING A 3 DECLARATION, THAT THE ONLY THING HE HAD READ WAS NOTS 34. HE 4 STARTED TO READ NOTS 35, PUT IT DOWN, IT WASN'T OF INTEREST TO 5 HIM, THAT'S IT. 6 EVERYTHING IN HERE EXPLAINING THESE TERMS, THIS IS, 7 THIS IS VERBATIM AFFIDAVITS MR. BERRY HAS FILED IN OTHER COURTS 8 FOR OTHER CLIENTS ATTACKING SCIENTOLOGY. 9 THE EVIDENCE IS GOING TO BE -- UNLESS MR. HENSON IS 10 GOING TO LIE, THE EVIDENCE IS GOING TO BE THAT HE TOLD YOUR 11 HONOR AFTER MARCH 30TH, IN A PRELIMINARY INJUNCTION HEARING, HE 12 HAD NOT READ ANYTHING EXCEPT NOTS 34 AND A PART OF NOTS 35 WHICH 13 HAS NOTHING TO DO WITH THIS. 14 AND NOW MR. BERRY IS GOING TO ELICIT THAT HE KNEW AT 15 THE TIME HE POSTED IT WHAT BODY THETANS WERE. 16 MR. BERRY: YOUR HONOR, THIS IS ONCE AGAIN A 17 MISREPRESENTATION OF THE RECORD AND I'D LIKE TO CORRECT IT. 18 THE COURT: I'M NOT GOING TO GET INTO THAT. 19 MR. BERRY: I THINK I'M ENTITLED TO AT LEAST EXPLAIN 20 THAT IS NOT TRUE. 21 THE COURT: MR. BERRY, YOU HAVE DONE NOTHING BUT 22 FOUL UP THIS COURT BY BEING LATE. 23 I'M GOING TO LET YOU DO WHAT YOU WANT TO DO. I'M 24 GOING TO LET YOU ASK HIM ABOUT THOSE. I'M JUST ASKING YOU TO 25 CONFINE IT TO A PARTICULAR PORTION. Page 428 1 I'M GOING TO CLEAR THE COURTROOM, EXCEPT FOR 2 PARTIES, AND I'M SPECIFICALLY MAKING, STATING THAT I AM NOT 3 MAKING A FINDING AS TO WHETHER OR NOT THIS DOCUMENT IS TRADE 4 SECRET OR CONFIDENTIAL, BUT FINDING THAT THERE IS ENOUGH OF AN 5 ISSUE ABOUT IT THAT I AM GOING TO TEMPORARILY CLEAR THE 6 COURTROOM AND SEAL THE RECORD. IF ANY PARTY WANTS TO MAKE A 7 MOTION TO UNSEAL, THEY CAN DO SO AFTER PROPER BRIEFING. SO 8 THAT'S WHAT I'M GOING TO DO. 9 ALL I CAN SAY IS, WITHOUT GETTING INTO IT, I'M NOT 10 SUGGESTING IN ANY WAY THE TRUTH OR LACK OF TRUTH OF EITHER 11 SIDE'S POSITION, I AM HOPEFUL, AND MR. HENSON TO A LARGE EXTENT, 12 I SHOULDN'T EVEN SAY TO A LARGE EXTENT, MR. HENSON, TO MY 13 KNOWLEDGE, HAS NOT MADE AN UNTRUTHFUL REPRESENTATION TO THIS 14 COURT, AND I HOPE THAT REMAINS ON BOTH SIDE'S PART. 15 MR. BERRY: AND I WOULD ADD, YOUR HONOR, THAT THE 16 CONTENTS OF MUCH OF WHAT WE'RE GOING TO DO IS CONTAINED IN HIS 17 FIRST AMENDED ANSWER AND HIS DEPOSITION. 18 THE COURT: BUT THE ISSUE IS AS OF MARCH 30TH, WHAT 19 WAS HIS STATE OF MIND. 20 MR. BERRY: YES, YES. BUT HE'LL TESTIFY TO THAT. 21 THE COURT: OKAY. 22 (IN OPEN COURT.) 23 THE COURT: MR. BERRY, WHEN WE GET TO THE PORTION OF 24 YOUR EXAMINATION WHERE YOU'RE GOING TO DISCUSS SPECIFICALLY THE 25 WORDING AND THE CONTENTS OF NOTS 34, I WANT YOU TO ALERT ME Page 429 1 BEFORE YOU START. 2 MR. BERRY: VERY GOOD, YOUR HONOR. 3 THE COURT: OKAY. ANYTHING ELSE? 4 MR. ROSEN: NO, YOUR HONOR. 5 THE COURT: OKAY. READY? 6 MR. BERRY, YOU WANTED FIVE MINUTES WITH YOUR CLIENT? 7 MR. BERRY: PLEASE, YOUR HONOR. 8 THE COURT: ALL RIGHT. THEN WE'LL START. 9 (RECESS.) 10 (WHEREUPON, THE FOLLOWING PROCEEDINGS WERE HELD OUT 11 OF THE PRESENCE OF THE JURY.) 12 THE COURT: WITH -- 13 MR. BERRY: THERE IS ONE ISSUE, YOUR HONOR, ON THE 14 BRIEFING, AND THAT WOULD BE RELATING TO THE TESTIMONIAL 15 FLIP-FLOPS THAT I REFER TO ANEW AS BEING PART OF HIS STATE OF 16 MIND THAT MS. KOBRIN'S E-MAIL CLAIMING A VALID COPYRIGHT WAS NOT 17 NECESSARILY DEFINITIVE. 18 THE COURT: I'M NOT GOING TO ALLOW THAT. 19 MR. BERRY: IT GOES TO HIS STATE OF MIND AS TO -- 20 THE COURT: I'VE MADE MY RULING. 21 MR. BERRY: -- PRIMA FACIE -- 22 THE COURT: I'VE MADE MY RULING. 23 THERE'S A COUPLE MATTERS THAT I DIDN'T SPECIFICALLY 24 ADDRESS BEFORE WE BROKE. 25 ONE IS WITH RESPECT TO THE DOCUMENTS MR. HENSON WAS Page 430 1 SUPPOSED TO SUPPLY TO THE COURT. I AM GOING TO ALLOW THE 2 EXAMINATION AS TO MR. HENSON'S FINANCIAL CONDITION IF MR. BERRY 3 WANTS TO PRESENT IT, WITH THE UNDERSTANDING THAT DOCUMENTS WILL 4 BE PROVIDED -- 5 HOW FAR -- MR. BERRY, HOW FAR DOES MR. HENSON LIVE 6 FROM THE COURT? MR. BERRY? 7 MR. BERRY: ONE MOMENT. 8 (PAUSE IN PROCEEDINGS.) 9 MR. BERRY: AT THIS POINT, YOUR HONOR, WITHOUT 10 FURTHER ADVISING THE COURT, WE'RE GOING TO STAY AWAY FROM 11 FINANCES. 12 THE COURT: ALL RIGHT, FINE. THEN I'LL UNDERSTAND 13 THAT IS WHAT YOU'RE GOING TO DO. YOU'RE NOT GOING TO GET INTO 14 THAT ISSUE. 15 MR. BERRY: NOT WITHOUT ALERTING THE COURT AND 16 GIVING MR. ROSEN TIME TO RESPOND ADEQUATELY, AND I DON'T BELIEVE 17 WE'RE GOING TO CHANGE OUR POSITION ON THIS REGARD. 18 THE COURT: I'M GOING TO ACCEPT THAT AS YOU'RE NOT 19 GOING TO GET INTO IT, AND YOU'D HAVE TO MAKE AN AWFULLY 20 PERSUASIVE SHOWING, BECAUSE AT THIS POINT, I WAS GOING TO TRY TO 21 DO SOME CURATIVE THING THAT DEALT WITH THE PRODUCTION OF 22 RECORDS, BUT IF YOU'RE NOT GOING TO GET INTO IT, IT MAKES IT ALL 23 ACADEMIC. 24 MR. BERRY: RIGHT. 25 THIS DOCUMENT HERE, YOUR HONOR (INDICATING), IS A Page 431 1 PRINTOUT OF ALL THE REFERENCES TO THE ORGANIZATION'S CRIMINAL 2 CONDUCT OF THAT MR. HENSON HAD IN HIS POSSESSION BEFORE HE 3 POSTED NOTS 34. CAN WE AT LEAST REFER TO THIS? 4 THE COURT: BUT THE CRIMINAL CONDUCT IS WHAT I'VE 5 RULED IS IRRELEVANT EXCEPT WITH RESPECT TO THE ISSUE THAT I 6 SPECIFICALLY ADDRESSED, AND THAT WAS THE ALLEGED ILLEGAL 7 PRACTICE OF MEDICINE. 8 MR. BERRY: I THINK WE EXPLAINED IN OUR BRIEF, YOUR 9 HONOR, THAT IT WAS A STATE OF MIND THAT ENCOMPASSED HIS BELIEF 10 THAT THE ENTIRE ORGANIZATION -- 11 THE COURT: BUT DIDN'T YOU HEAR ME BEFORE SAY THAT 12 THAT WAS IRRELEVANT? 13 MR. BERRY: I DID, YOUR HONOR. THAT'S WHY I'M 14 RAISING IT AGAIN, YOUR HONOR, ESPECIALLY IN LIGHT OF THE TIME 15 MAGAZINE ARTICLE THAT HE READ. 16 THE COURT: BUT THAT GOES TO SHOW THAT HE HAD FACTS 17 IN HIS MIND THAT SCIENTOLOGY WAS A CRIMINAL ORGANIZATION, OR RTC 18 OR SOMEONE ASSOCIATED WITH THEM WAS A CRIMINAL ORGANIZATION. 19 THAT IS NOT RELEVANT TO THE ISSUE OF WHETHER NOTS 34 20 WAS COPYRIGHTED AND WHETHER OR NOT THERE WAS AN INFRINGEMENT OF 21 THE COPYRIGHT BY THE POSTING OF NOTS 34. 22 MR. BERRY: IN ONE FINAL EFFORT, YOUR HONOR, I'D 23 SUBMIT IT'S RELEVANT TO HIS USE OF COPYRIGHT DEFENSE. 24 THE COURT: I'VE MADE MY RULING. 25 IF YOU HAVE SOMETHING THAT HE SPECIFICALLY WANTS TO Page 432 1 SAY, "DR. SMITH -- I READ ON MARCH 1ST, 1996, AN ARTICLE BY 2 DR. SMITH THAT INDICATED THAT NOTS 34 WAS THE ILLEGAL PRACTICE 3 OF MEDICINE AND THAT FORMED MY, HELPED FORM MY BELIEF AS TO 4 THAT," THAT IS SOMETHING THAT HE COULD GET INTO. 5 BUT IT'S THE ALLEGED ILLEGAL PRACTICE OF MEDICINE 6 THAT I'VE INDICATED IS A RELEVANT AREA. 7 OR "I LEARNED FROM X, FROM A POSTING THAT WAS ON 8 THE INTERNET, THAT THE NOTS 34 WAS COPYRIGHTED IN SUCH-AND-SUCH 9 A DATE AND THE COPYRIGHT HAD EXPIRED." 10 SOMETHING ALONG THAT LINE, IF THERE WERE EVIDENCE TO 11 THAT, WOULD BE A RELEVANT THING THAT WOULD GO TO THE STATE OF 12 MIND THAT'S AT ISSUE IN THIS CASE. 13 MR. BERRY: THANK YOU, YOUR HONOR. 14 THE COURT: OKAY? OH, WITH RESPECT TO THE LETTER 15 THAT IS THE SUBJECT OF THE MARCH 30TH POSTING, I JUST WANT TO 16 MAKE SURE PEOPLE ARE CLEAR. 17 I UNDERSTOOD, AND MAYBE I WAS MISTAKEN, THAT 18 MR. HENSON WAS REFERRING TO SOME LETTER THAT WAS WRITTEN PRIOR 19 TO -- OR EARLIER HE REFERENCED SOME LETTER PRIOR TO THE ONE 20 THAT'S THE SUBJECT OF THE POSTING WHICH SAYS, ACCORDING TO 21 MR. ROSEN'S CHARACTERIZATION OF IT, SOMETHING THAT'S A LITTLE 22 DIFFERENT THAN WHAT'S IN THE MARCH 30TH POSTING. 23 SO JUST TO MAKE CLEAR, I UNDERSTOOD THAT MR. BERRY 24 WAS NOT GOING TO OFFER, AND I'VE ALREADY INDICATED I WOULDN'T 25 ALLOW, EVIDENCE OTHER THAN WHAT WAS LISTED TO BE OFFERED TO TRY Page 433 1 TO ADMIT A LETTER THAT WAS WRITTEN PRIOR TO THE MARCH 30 2 POSTING. BUT IT WAS -- 3 MR. BERRY: I'M SORRY. I MISSED THE -- WOULD NOT 4 TRY TO WHAT? 5 THE COURT: YOU HAD TOLD ME EARLIER THAT YOU DID NOT 6 HAVE A LETTER THAT WAS WRITTEN PRIOR TO THE MARCH 30 POSTING, 7 AND UNLESS YOU'VE FOUND SUCH LETTER, YOU WEREN'T GOING TO SEEK, 8 OBVIOUSLY, TO OFFER IT. 9 I HAVE ALWAYS -- AND I THOUGHT THAT WAS SOMETHING 10 DIFFERENT THAN THE LETTER THAT'S IN THE MARCH 30 POSTING. I'VE 11 ALWAYS SAID YOU COULD INTRODUCE THE MARCH 30 POSTING. 12 MR. BERRY: BECAUSE THE MARCH 30 POSTING CONTAINS 13 THE PRIOR LETTER TO THIS COURT WRITTEN ON APRIL 26TH. 14 THE COURT: WELL, I DON'T -- THAT'S WHERE I WAS 15 CONFUSED. THE APRIL 26TH -- 16 MR. ROSEN: MARCH 26TH. 17 THE COURT: MARCH 26TH. 18 MR. BERRY: MARCH 26TH. 19 MR. ROSEN: I DON'T THINK MR. BERRY INTENDED TO SAY 20 APRIL, YOUR HONOR. 21 THE COURT: MARCH 26TH, IF THAT'S ONE AND THE SAME 22 LETTER, I WILL ALLOW THE MARCH 30TH POSTING TO COME IN. 23 MR. BERRY: YES, BECAUSE THAT REPEATS THE MARCH 26TH 24 LETTER IN TOTO. 25 THE COURT: I THOUGHT THAT WAS SOMETHING DIFFERENT, Page 434 1 BECAUSE THE MARCH 30 LETTER DOES NOT SAY EXACTLY WHAT IT WAS 2 REPRESENTED TO SAY. 3 IT DOESN'T, AS I RECALL, GIVE SOME SORT OF 4 ALTERNATIVE THAT IF I DON'T RESPOND WITHIN A CERTAIN NUMBER OF 5 DAYS, MR. HENSON WILL TAKE PARTICULAR ACTION. I DON'T THINK IT 6 SAYS SOMETHING LIKE THAT. 7 MR. BERRY: IT MERELY MENTIONS THAT HE WILL BE IN 8 THE COURT, YOUR HONOR. 9 THE COURT: OKAY. WELL, IT SAYS WHAT IT SAYS. 10 MR. BERRY: YEAH. 11 THE COURT: ALL RIGHT. LET'S GET STARTED. 12 BRING THE JURY IN. 13 (WHEREUPON, THE FOLLOWING PROCEEDINGS WERE HELD IN 14 THE PRESENCE OF THE JURY.) 15 THE COURT: GOOD AFTERNOON EVERYONE. I APOLOGIZE 16 FOR THE DELAY, BUT WE HAD AN UNEXPECTED DELAY BECAUSE OF AIRLINE 17 FLIGHTS, AND THEN A COUPLE OF ISSUES CAME UP THAT I DIDN'T 18 ANTICIPATE AND I HAD TO DEAL WITH THOSE BEFORE WE WERE ABLE TO 19 START THIS AFTERNOON. 20 I THINK EVERYBODY IS READY TO GO. 21 BEFORE WE START, LET ME JUST CONFIRM, I ASSUME 22 NOBODY HAS SEEN OR READ ANY ARTICLES PERTAINING TO THIS CASE OR 23 ANY OF THE PARTIES TO IT OVER THE WEEKEND? 24 JURORS: (SHAKE HEADS BACK AND FORTH.) 25 THE COURT: OKAY. MR. BERRY, DID YOU WANT TO Page 435 1 PROCEED? 2 MR. BERRY: YES, YOUR HONOR, BY CALLING MR. HENSON 3 TO THE STAND. 4 THE COURT: ALL RIGHT. 5 H. KEITH HENSON, DEFENSE WITNESS, RESUMES THE STAND 6 THE COURT: MR. HENSON, JUST TO REMIND YOU, YOU'RE 7 STILL UNDER OATH. 8 THE WITNESS: YES, YOUR HONOR. 9 DIRECT EXAMINATION BY MR. BERRY 10 Q GOOD AFTERNOON, MR. HENSON. 11 A GOOD AFTERNOON, MR. BERRY. 12 Q WHAT IS YOUR OCCUPATION? 13 A I'M A CONSULTING ENGINEER. I SPLIT MY TIME ROUGHLY 14 IN HALF ACROSS THE HARDWARE-SOFTWARE BOUNDARY. 15 Q WHAT DO YOU MEAN BY HARDWARE SOFTWARE BOUNDARY? 16 A I DO PROGRAMMING, SYSTEMS ANALYSIS, AND THEN I DO 17 CIRCUIT DESIGN AS WELL. 18 Q ARE YOU EMPLOYED BY ANY COMPANY, OR DO YOU WORK BY 19 YOURSELF? 20 A BEING A CONSULTANT, I WORK FOR A VARIETY OF 21 COMPANIES. SOME YEARS IT HAS BEEN AS MANY AS SIX, AND SOME AS 22 FEW AS TWO COMPANIES FOR THE LAST TEN YEARS, ROUGHLY. 23 Q AND JUST BY WAY OF THUMBNAIL SKETCH, COULD YOU 24 INDICATE YOUR EDUCATIONAL AND JOB HISTORY? 25 A SURE. BACHELOR OF SCIENCE DEGREE IN ELECTRICAL Page 436 1 ENGINEERING FROM THE UNIVERSITY OF ARIZONA IN 1969; I WORKED FOR 2 A COMPANY DOING ANALOG DESIGN WORK IN THE EARLY DAYS; I THEN 3 BROKE OFF AND RAN MY OWN COMPANY FOR AWHILE; EVENTUALLY, I SOLD 4 THAT AND MOVED TO THE SILICON VALLEY AREA IN 1985, AND I'VE BEEN 5 DOING CONSULTING WORK EVER SINCE. 6 Q ARE YOU MARRIED? 7 A YES. 8 Q CHILDREN? 9 A YES. 10 Q HOW MANY? 11 A FIVE ALTOGETHER. 12 Q NOW, THROUGHOUT -- HAVE YOU HAD INVOLVEMENT IN 13 FREEDOM OF SPEECH TYPE CAUSES BEFORE? 14 A YES. 15 Q WHAT SORT OF INVOLVEMENT? 16 MR. ROSEN: OBJECTION, YOUR HONOR. THAT'S NOT 17 RELEVANT. 18 THE COURT: OVERRULED. GO AHEAD. 19 THE WITNESS: A NUMBER OF THEM. I'VE BEEN ACTIVELY 20 INVOLVED IN THINGS LIKE THE CYBER PUNKS, WHICH IS A GROUP OF 21 PEOPLE THAT ARE CONCERNED WITH ANONYMITY AND THE ABILITY TO POST 22 ON THE NET WITHOUT NECESSARILY BEING TRACKED DOWN. 23 I'VE BEEN INVOLVED WITH REPORTING A NUMBER OF 24 DIFFERENT CASES, PARTICULARLY ONE INVOLVING A COUPLE IN MILPITAS 25 THAT WAS ENTRAPPED, IN MY ESTIMATION, BY A POSTAL INSPECTOR IN Page 437 1 MEMPHIS. I REPORTED THAT ONE FOR THE NET SHORTLY BEFORE I GOT 2 INVOLVED WITH THIS SCIENTOLOGY BUSINESS. 3 AND THEN AFTER THIS GOT STARTED, FOR MORE THAN A 4 YEAR, I WOULD REPORT OCCASIONALLY THE ACTIVITIES OF THIS COURT 5 IN THE GRADY WARD EXCUSE ME, IN THE ERLICH CASE, AND THEN 6 FOLLOWING THAT, I STARTED TO REPORT ON THE GRADY WARD CASE. 7 Q HAVE YOU TESTIFIED TO CONGRESS? 8 A YES. 9 MR. ROSEN: OBJECTION, YOUR HONOR. 10 THE COURT: I THINK WE'RE GETTING A LITTLE FAR 11 AFIELD. I ALLOWED THE OTHER BECAUSE I THOUGHT IT WAS RELEVANT 12 TO HIS STATE OF MIND AND UNDERSTANDING OF COPYRIGHT LAW. 13 IF IT'S SOMETHING THAT RELATES TO HIS UNDERSTANDING 14 OF COPYRIGHT LAW PRIOR TO HIS MARCH 30 POSTING, I WILL ALLOW IT. 15 OTHERWISE I THINK IT'S IRRELEVANT. 16 THE WITNESS: YOUR HONOR, IT'S A FREEDOM OF 17 SPEECH -- 18 THE COURT: THERE'S NOT A QUESTION PENDING. 19 BY MR. BERRY: 20 Q HAVE YOU BEEN INVOLVED IN THE FORMATION OF AND 21 PRACTICE OF CERTAIN ORGANIZATIONS? 22 A YES. 23 Q WHICH ORGANIZATIONS HAVE YOU BEEN INVOLVED WITH? 24 A I WAS A FOUNDER OF THE L-5 SOCIETY. 25 Q AND WHAT IS THE L-5 SOCIETY? Page 438 1 A IT WAS IN -- IT WAS AN ORGANIZATION TO PROMOTE THE 2 SETTLEMENT OF SPACE. THIS WAS 1975. IT WAS BASED AROUND THE 3 IDEAS OF GERARD K. O'NEILL OF PRINCETON. 4 Q DOES IT STILL EXIST? 5 A IT MERGED INTO ANOTHER SIMILAR ORGANIZATION CALLED 6 THE NATIONAL SPACE INSTITUTE, FORMING AN ORGANIZATION CALLED THE 7 NATIONAL SPACE SOCIETY. I'M STILL ON THE BOARD OF THAT ONE. 8 Q AND HAVE YOU BEEN INVOLVED WITH THE DEVELOPMENT OF 9 CRYONICS? 10 A YES, QUITE A BIT. I'VE BEEN INVOLVED WITH THAT. 11 ALTHOUGH I'M NOT CURRENTLY ON THE BOARD, I'M VERY ACTIVE IN IT. 12 Q AND LAST WEEK, MR. HENSON, MR. ROSEN READ YOU A 13 LITTLE POEM. WAS THAT A CORRECT RENDITION OF THAT POEM? 14 MR. ROSEN: OBJECTION. I DIDN'T READ THE POEM. THE 15 WITNESS RECITED IT. 16 THE WITNESS: THAT'S TRUE. 17 THE COURT: WAIT A MINUTE. I THINK THERE IS AN 18 OBJECTION THAT, IN ESSENCE, THE QUESTION MISSTATES THE PRIOR 19 TESTIMONY. 20 I WOULD ASK YOU TO PUT YOUR -- 21 MR. BERRY: I STAND CORRECTED. 22 THE COURT: -- OBJECTIONS IN LEGAL TERMS, MR. ROSEN. 23 THE OBJECTION ON THE LEGAL BASIS THAT IT MISSTATES 24 THE EVIDENCE IS SUSTAINED. 25 REPHRASE THE QUESTION, PLEASE. Page 439 1 BY MR. BERRY: 2 Q WHO WROTE THAT POEM THAT YOU READ? 3 A IT IS CREDITED IN THE BOOK GREAT MAMBO CHICKEN AS 4 BEING WRITTEN BY CURTIS HENDERSON. I'M NOT ABSOLUTELY CERTAIN 5 THAT THAT'S TRUE, AND I DID MANAGE TO FLUFF ONE LINE IN IT 6 SLIGHTLY. 7 Q AND FOR THE SAKE OF ACCURACY, WOULD YOU PLEASE 8 REQUOTE IT? 9 A HUM? 10 Q FOR THE SAKE OF INCLUDING ALL THE LINES, WHICH MAKE 11 IT MORE IN CONTEXT, WOULD YOU PLEASE -- 12 A THE LINE I FLUFFED WAS -- 13 MR. ROSEN: YOUR HONOR -- 14 THE COURT: WAIT A MINUTE, PLEASE. 15 STRIKE THE COMMENT ABOUT MAKING IT MORE COMPLETE. 16 HE CAN READ THE WHOLE THING. 17 I THINK WE'RE GETTING OFF THE POINT OF THIS CASE. I 18 WONDERED WHY IT CAME UP BEFORE. I'M WONDERING WHY IT COMES UP 19 AGAIN. 20 SINCE IT CAME UP BEFORE, IF YOU WANT TO READ IT TO 21 PUT IT IN COMPLETE CONTEXT, WHAT YOU FEEL IS, I'LL LET YOU READ 22 IT. WHETHER THAT PUTS IT IN CONTEXT OR NOT, I DON'T KNOW. 23 MR. BERRY: I WITHDRAW, YOUR HONOR. 24 Q HAVE YOU DONE WRITING ON TECHNICAL AREAS? 25 A A NUMBER OF THEM. Page 440 1 Q CAN YOU PLEASE EXPLAIN TO THE JURY WHAT AREAS YOU'VE 2 WRITTEN IN? 3 A IT'S AN ECLECTIC BUNCH OF THINGS. I'VE WRITTEN 4 EXTENSIVELY IN SUPPORT OF PATENTS AND ELECTRONICS, ANTI-LOG 5 MULTIPLIERS. 6 WHEN I GOT IN THE SPACE BUSINESS, MY FIRST PATENT 7 THERE WAS ON THE DESIGN OF SPACE AGRICULTURE. 8 I ALSO WROTE PATENTS ON CONSTRUCTION OF ENORMOUS 9 STRUCTURES IN SPACE, ONE CALLED, "IN VAPOR PHASE FABRICATION," 10 AND ANOTHER ONE ON USING A PSEUDO-FLUID MADE -- IT'S OF A MIX 11 OF DUST AND A LITTLE BIT OF GAS IN ORDER TO USE IT AS A HEAT 12 TRANSFER FLUID. 13 I'VE THEN WRITTEN EXTENSIVELY ON THE FIELD OF 14 MEMETICS, M-E-M-E-T-I-C-S, MY WIFE ACTUALLY NAMED THE FIELD. IT 15 IS A -- IT IS THE STUDY OF INFORMATION PATTERNS WHICH INFEST 16 HUMAN BEINGS, KIND OF THE WAY COMPUTER VIRUSES INFEST COMPUTERS. 17 Q ANY OTHER AREAS IN WHICH YOU'VE WRITTEN? 18 A PROBABLY. I'VE WRITTEN A LOT. MUCH OF IT HAS BEEN 19 PUBLISHED. 20 Q ANY OTHER PATENTS YOU'VE BEEN GRANTED? 21 MR. ROSEN: OBJECTION, YOUR HONOR. THIS IS A 22 COPYRIGHT CASE. NO RELEVANCE. 23 THE COURT: WELL, I THINK WE'RE GETTING A LITTLE OFF 24 POINT. 25 IF YOU WANT TO EXPLAIN THAT HE HAS APPLIED FOR AND Page 441 1 OBTAINED PATENTS, THAT'S FINE. BUT TO GET INTO DETAILS OF THEM 2 I THINK IS BEYOND THE SCOPE OF THIS CASE. 3 THE WITNESS: SIX PATENTS IN A VARIETY OF FIELDS. 4 BY MR. BERRY: 5 Q NOW, HAVE YOU BEEN INVOLVED IN THE ESTABLISHMENT, 6 DEVELOPMENT AND EXPANSION OF THE INTERNET? 7 A TO A MINOR DEGREE. MY INTEREST IN THE INTERNET HAS 8 BEEN PRIMARILY ISSUES OF FREE SPEECH, WHICH IS CONSISTENT WITH 9 MY PRIOR INTEREST. 10 Q AND HOW HAS THIS INTEREST IN FREE SPEECH ON THE 11 INTERNET MANIFESTED ITSELF? 12 A WELL, AMONG OTHER THINGS, WITH POSTING OF NOTS 34. 13 Q WELL, WHY -- BEFORE YOU GOT INVOLVED WITH ARS -- 14 A WELL, I WAS INVOLVED, AS I MENTIONED BEFORE, WITH 15 THE CYBER PUNKS AND THEIR ANONYMOUS RE-MAILER NETWORKS AND 16 REPORTING OF VARIOUS FREE SPEECH ISSUES ON THE NET. 17 Q NOW, DID THERE COME A POINT IN TIME WHEN YOU BECAME 18 AWARE OF AN INTERNET USE GROUP CALLED ALT.RELIGION SCIENTOLOGY, 19 OR ARS? 20 A YES. 21 Q AND WHEN WAS THAT? 22 A I BELIEVE THAT IT WAS JANUARY 11TH, 1995. 23 Q WHY DOES THAT DATE -- SORRY, WITHDRAWN. 24 WHY DO YOU RECALL THAT DATE SO, SO CLEARLY? 25 A BECAUSE AFTERWARDS, ALTHOUGH I'M NOT VERY GOOD AT Page 442 1 RECALLING DATES, AFTERWARDS, I REMEMBER HAVING READ A NUMBER OF 2 TIMES, THE POSTING, OR RATHER, THE CONTROL MESSAGE, WHICH WAS AN 3 ATTEMPT AS, I BELIEVE, WAS AN ATTEMPT TO DESTROY ARS AND, OF 4 COURSE, CUT OFF THE FREE SPEECH RIGHTS OF ANYBODY WHO WANTED TO 5 DISCUSS THAT PARTICULAR TOPIC. 6 Q WAS THAT AN ISSUE THAT DISTURBED YOU? 7 A OH, YES. 8 Q AND WHY DID IT DISTURB YOU? 9 A IT WAS A SUPREMELY UNFRIENDLY KIND OF AN, OF A 10 GESTURE FOR SOMEBODY TO MAKE. I USE THE WORD "GESTURE" 11 BECAUSE -- 12 MR. ROSEN: YOUR HONOR, THIS IS REDUNDANT. WE'VE 13 HAD THIS EXACT TESTIMONY BEFORE. 14 THE COURT: OVERRULED, BUT THE JURY CAN CONSIDER IT 15 FOR THE PURPOSES OF EXPLAINING WHY HE REMEMBERS THE DATE AND WHY 16 HE STARTED MONITORING OR PARTICIPATING IN ARS. 17 WHETHER OR NOT THE ACTION ACTUALLY TOOK PLACE OR WHO 18 DID IT, IT'S NOT OFFERED FOR THAT PURPOSE. 19 BY MR. BERRY: 20 Q HOW DID YOU BECOME AWARE OF THE SO-CALLED REMOVE 21 COMMAND? 22 A THE INFORMATION ABOUT IT HAVING HAPPENED SPILLED 23 INTO A NUMBER OF OTHER GROUPS. I'M FAIRLY SURE THAT THE GROUP I 24 WAS MONITORING AT THAT TIME WAS ONE CALLED COM.ORG.EFF.TALK. 25 BUT I WAS ALSO WATCHING MISCELLANEOUS.LEGAL, AND IT MAY HAVE HIT Page 443 1 THERE AS WELL. 2 Q AND AS A RESULT OF BECOMING AWARE OF THE REMOVE 3 GROUP COMMAND, DID YOU MONITOR ANY OTHER NEWS GROUPS? 4 A NO. AT LEAST, I DON'T BELIEVE THAT I STARTED 5 WATCHING ANY OTHER GROUPS AS A RESULT OF THAT. 6 Q THERE CAME A POINT IN TIME WHERE YOU BECAME AWARE OF 7 THE REMOVE GROUP COMMAND? 8 A YES. 9 Q DID THAT LEAD YOU TO INVESTIGATE OTHER NEWS GROUPS? 10 MR. ROSEN: OBJECTION, LEADING. 11 THE COURT: OVERRULED. 12 THE WITNESS: IT'S ACTUALLY POSSIBLE THAT I LOOKED 13 AT NEWS ADMIN, BECAUSE IT WAS, THAT WAS ONE OF THE GROUPS WHERE 14 THINGS LIKE THIS GET DISCUSSED. IN FACT, ACTUALLY, IF I THINK 15 BACK, I PROBABLY DID LOOK AT THAT GROUP. 16 BY MR. BERRY: 17 Q HOW DID YOU COME TO BECOME AWARE OF ARS? 18 A BY THIS ACT, ACTION. 19 Q AND HAVING BECOME AWARE OF ARS, DID YOU PROCEED TO 20 READ ANY OF THE ARS POSTINGS? 21 A TENS OF THOUSANDS OF THEM. 22 Q WHEN DID YOU START READING ARS? 23 A ROUGHLY THE SAME TIME, WITHIN A DAY OF THAT DATE. 24 Q WERE THERE, FOR THE SAKE OF A BETTER WORD, 25 AFFILIATED NEWS GROUPS AND INTERNET SITES TO ARS? Page 444 1 A I DO NOT REMEMBER IF THERE WERE ANY WEB SITES AT 2 THAT TIME. BUT THERE WERE, THERE WAS, AND STILL IS, AN 3 ASSOCIATED NEWS GROUP CALLED ALT.CLEARING TECHNOLOGY. 4 Q AND HAVE YOU FOLLOWED AND PARTICIPATED IN THAT NEWS 5 GROUP? 6 A NOT TO ANY EXTENT WHATSOEVER. THERE ARE 7 OCCASIONALLY MESSAGES CROSS-POSTED INTO THERE FROM ALT.CLEARING 8 TECHNOLOGY TO ALT.RELIGION SCIENTOLOGY, BUT OTHER THAN THOSE, I 9 DON'T BELIEVE THAT I HAVE EVER LOOKED IN ALT.CLEARING TECHNOLOGY 10 TO SPEAK OF. 11 Q HAVE YOU -- HOW WOULD YOU DESCRIBE ARS? 12 A RAUCOUS. 13 Q AND WHAT DO YOU MEAN BY RAUCOUS? 14 A IT IS ONE OF THE MORE INTENSE GROUPS THAT YOU WILL 15 FIND AROUND IN TERMS OF MANY PEOPLE POSTING ON BOTH SIDES OF 16 THE, OF THE ISSUES, AND SOME OF THEM WHO ARE HARD TO EVEN 17 CLASSIFY. IT'S -- IT EVEN GOES TO FAR AS TO SAY THAT THE GROUP 18 GETS VICIOUS AT TIMES. 19 THERE ARE A NUMBER OF PEOPLE THAT I WON'T READ AT 20 ALL IN THAT PARTICULAR NEWS GROUP, AND BECAUSE OF A NUMBER OF 21 DIFFERENT REASONS, PARTICULARLY THOSE THAT POST STUFF WHICH IS 22 JUST BAD ENOUGH, I DON'T WANT TO SEE IT AT ALL. 23 Q WHAT HAPPENS -- SORRY, WITHDRAWN. 24 ARE YOU FAMILIAR WITH A TERM CALLED KILL FILE? 25 A OH, YES. KILL FILE, OR AS I USUALLY REFER TO IT, Page 445 1 TWIT FILE. 2 Q AND WHAT DO YOU MEAN BY KILL FILE? 3 MR. ROSEN: YOUR HONOR, I OBJECT. WE'RE GOING VERY 4 FAR AFIELD. THIS HAS NOTHING TO DO WITH THE POSTING OR THE 5 ISSUES THAT ARE BEING TRIED. 6 THE COURT: IT APPEARS THAT WE ARE GOING PRETTY FAR 7 AFIELD, MR. BERRY, SO I'LL SUSTAIN THE OBJECTION. 8 BY MR. BERRY: 9 Q YOU REFERRED TO ISSUES IN CONNECTION WITH ARS. WHAT 10 DO YOU MEAN BY ISSUES ON ARS? 11 A WELL, USUALLY IT STARTS OUT AS THREADS IN ARS, WHICH 12 ARE LONG SERIES OF POSTINGS, AND A TYPICAL THREAD MIGHT START BY 13 SOMEONE POSTING AN AFFIDAVIT. 14 I WON'T GIVE A SPECIFIC EXAMPLE, BECAUSE -- ANYWAY, 15 BUT THEN PEOPLE WILL FOLLOW UP ON THAT, AND PEOPLE WILL SAY, "I 16 HAD A VERY SIMILAR EXPERIENCE TO THAT," AND WILL GIVE TIMES AND 17 DATES. MANY OF THESE STORIES ARE PRETTY GRUESOME. 18 THE OTHER THINGS THAT WILL BE POSTED TYPICALLY IS 19 TRANSCRIPTS OF TELEVISION AND RADIO SHOWS, COURT PAPERS. THERE 20 ARE THOUSANDS OF COURT PAPERS THAT HAVE BEEN POSTED ON IT. THE 21 PROCEEDINGS OF THIS COURT, FOR EXAMPLE, HAVE BEEN EXTRACTED AND 22 POSTED ON IT. 23 MR. ROSEN: YOUR HONOR, I'M GOING TO OBJECT TO THIS 24 AND MOVE TO STRIKE IT. THE BEST EVIDENCE OF WHAT WAS POSTED ARE 25 COPIES OF THE POSTINGS. Page 446 1 THE COURT: OVERRULED. GO AHEAD. 2 BY MR. BERRY: 3 Q AND ONCE POSTED, DO THESE MATERIALS SOMETIMES REMAIN 4 ELSEWHERE ON THE INTERNET? 5 A VERY OFTEN THEY REMAIN FOR A CONSIDERABLE LENGTH OF 6 TIME. THERE'S A SERVICE CALLED DEJA NEWS THAT COLLECTS POSTINGS 7 AND INDEXES THEM FOR PEOPLE TO BE ABLE TO SEARCH LATER, AND YOU 8 CAN SEARCH BACK A LONG WAY, SIX MONTHS TYPICALLY, AND SOMETIMES 9 INTO YEARS BACK FOR THINGS WHICH HAVE BEEN POSTED ON THE NET 10 BEFORE. 11 Q IS THAT SOMETHING YOU'VE DONE FROM TIME TO TIME? 12 A I'VE OCCASIONALLY SEARCHED BACK INTO THAT. I'VE 13 DONE IT RELATIVELY SELDOM, BUT I HAVE DONE IT. 14 Q AND DO SOME OF THE PARTICIPANTS IN ARS HAVE THEIR 15 OWN INTERNET SITES? 16 MR. ROSEN: OBJECTION, NO FOUNDATION. 17 THE COURT: OVERRULED. I THINK HE CAN TESTIFY AS TO 18 THAT. 19 THE WITNESS: YES. I BELIEVE -- I'M SURE THAT IS 20 TRUE. A NUMBER OF PEOPLE ARE ACTUALLY LIKE THE SYS OPS OR 21 OWNED, OR OWN THE SYSTEMS ON WHICH THEY'RE POSTING FROM. 22 BY MR. BERRY: 23 Q AND ARE SOME OF THE DOCUMENTS THAT YOU HAVE READ ON 24 ARS AVAILABLE ON OTHER SITES OR WEB SITES OR WEB PAGES? 25 A A FAIRLY LARGE NUMBER OF THEM. ALMOST EVERYTHING Page 447 1 THAT'S, THAT HAS LONG-TERM SIGNIFICANCE, COURT FILES, FBI FILES, 2 FIRST PERSON STORIES OF THEIR EXPERIENCES, ALL THOSE THINGS TEND 3 TO GET WEBBED. THEY TEND TO GET EXTRACTED FROM ARS AND WIND UP 4 ON LONG-TERM STORAGE ON WEB SITES. 5 THERE'S A VAST AMOUNT OF MATERIAL OUT THERE. IT IS 6 IN THE -- IT'S IN THE EQUIVALENT OF TENS OF THOUSANDS OF BOOKS. 7 Q NOW, IN BETWEEN JANUARY 11, 1995, AND MARCH 30, 1996 8 WHEN YOU POSTED THE NOTS 34 DOCUMENT, HOW FREQUENTLY WOULD YOU 9 SAY THAT YOU ACCESSED ARS? 10 A SOMETIMES MORE THAN DAILY. I WOULD SOMETIMES SIGN 11 ON TWICE A DAY. I SELDOM SPENT LESS THAN, SAY, 45 MINUTES ON 12 IT. 13 Q AND WHAT SORT OF THINGS DID YOU LEARN WHEN YOU 14 ACCESSED ARS DURING THAT INTERVAL BETWEEN JANUARY 11TH, 1995, 15 AND MARCH 30, 1996, WITHOUT GOING TO SOME OF THE THINGS WE'VE 16 TALKED ABOUT BEFORE? 17 MR. ROSEN: OBJECTION. 18 THE COURT: COULD YOU NARROW THAT QUESTION A LITTLE 19 BIT, PLEASE? I'M NOT SURE WHAT YOU'RE GETTING AT. 20 BY MR. BERRY: 21 Q DID YOU REVIEW POSTS THAT DEALT WITH THE ALLEGED 22 UNLAWFUL PRACTICE OF MEDICINE BY THE CHURCH OF SCIENTOLOGY ON 23 THE INTERNET BETWEEN JANUARY 11, 1995, AND MARCH 30, 1996? 24 A MANY OF THEM. 25 Q CAN YOU RECALL SOME OF THESE POSTS? Page 448 1 MR. ROSEN: YOUR HONOR, I OBJECT TO THE QUESTION TO 2 THE EXTENT WE'RE GOING BEYOND NOTS 34. IF HE WANTS TO TALK 3 ABOUT WHAT HE READ -- 4 THE COURT: ALL RIGHT. YOU'VE MADE YOUR OBJECTION. 5 BY MR. BERRY: 6 Q DID SOME OF THESE POSTINGS -- 7 THE COURT: WAIT A MINUTE. YOU'VE GOT TO WAIT FOR A 8 RULING. 9 LET'S LIMIT THE QUESTION AT THIS POINT TO NOTS 34. 10 BY MR. BERRY: 11 Q DURING THAT 14-MONTH PERIOD OF TIME, DID YOU SEE 12 REFERENCES TO NOTS 34 ON ARS? 13 A YES, CERTAINLY. IN FACT, NOTS 34 ITSELF WAS POSTED 14 MANY TIMES. 15 Q AND HOW WERE YOU -- 16 MR. ROSEN: OBJECTION, YOUR HONOR. I MOVE TO STRIKE 17 THAT. 18 THE COURT: OVERRULED. GO AHEAD. 19 BY MR. BERRY: 20 Q AND HOW WERE YOU AWARE OF THAT? 21 A THIS IS A LITTLE BIT -- THIS WILL TAKE A LITTLE BIT 22 OF EXPLANATION. 23 I READ REALLY FAST, WHICH IS THE ONLY WAY YOU CAN 24 KEEP UP WITH READING SOMETHING WHICH RUNS TO THE EQUIVALENT OF A 25 NOVEL OR TWO PER DAY, AND I SKIPPED THROUGH A LOT OF THIS Page 449 1 MATERIAL. 2 OCCASIONALLY WHEN I RUN ACROSS SOMETHING WHICH LOOKS 3 REASONABLY INTERESTING, BUT IS TOO LONG TO BE INTERESTING WHILE 4 READING IT ON THE SCREEN, I WILL SNAG IT INTO A BUFFER AND SAVE 5 IT. 6 THE SCIENTOLOGY STUFF THAT'S POSTED FOR A VERY LONG 7 TIME, THOUGH I SNAGGED IT, SNAGGED NOTS 34 INTO A BUFFER SEVERAL 8 TIMES AS IT WAS POSTED AS PIECES OF OTHER MATERIAL, AND I SAW IT 9 OBVIOUSLY AS IT WENT BY, IT DIDN'T MAKE A LOT OF SENSE BECAUSE 10 IT TAKES AN ENORMOUS AMOUNT OF CONTEXT IN ORDER TO HAVE ANY IDEA 11 OF WHAT SOME HIGHLY ESOTERIC KIND OF A DOCUMENT LIKE NOTS 34 12 WOULD MEAN. 13 SO I DON'T KNOW WHETHER THAT REALLY ANSWERS THE 14 QUESTION OR NOT, BUT IT GIVES YOU THE BACKGROUND FOR WHAT I HAD, 15 I DID. 16 Q DID YOU BECOME AWARE OF SOMETHING CALLED AN E-METER? 17 A OH, YES. E-METERS ARE FUNDAMENTAL TO THE 18 SCIENTOLOGY PROCESSING, AND FOR THAT MATTER, DIANETICS 19 PROCESSING. 20 Q AND WOULD YOU EXPLAIN YOUR UNDERSTANDING OF WHAT AN 21 E-METER IS AND HOW IT IS USED? 22 MR. ROSEN: OBJECTION. 23 THE COURT: ALL RIGHT. SUSTAINED. HE'D HAVE TO 24 HAVE SOME FOUNDATION FOR HIS UNDERSTANDING. 25 WHAT WE'RE INTERESTED IN IS WHAT FACTS, OR PURPORTED Page 450 1 FACTS, HE LEARNED PRIOR TO HIS POSTING. 2 BY MR. BERRY: 3 Q IN CONNECTION WITH THE E-METER, DID YOU LEARN WHAT 4 IT IS FROM READING THE NEWS GROUP ARS? 5 A YES. 6 Q AND WHAT DID YOU LEARN IN THAT REGARD? 7 A THE E-METER IS A RESISTANCE METER. 8 Q AND WHAT DO YOU MEAN BY THAT? 9 A IT IS THE KIND OF THING THAT ENGINEERS WOULD USE IN 10 ORDER TO MEASURE WHETHER A LIGHT BULB HAD BEEN BURNED OUT OR THE 11 VALUE OF A RESISTOR. YOU CAN DO YOUR OWN E-METER BY GRABBING -- 12 YOU CAN MAKE YOUR OWN E-METER BY GRABBING THE LEADS AN ON 13 O-METER AND SQUEEZING THEM. IT'S -- IT WILL DEFLECT THE NEEDLE 14 WHEN YOU DO THIS. 15 Q WHEN YOU SAY IT'LL DEFLECT THE NEEDLE, WHAT DO YOU 16 MEAN BY THAT? 17 A CURRENT FLOWS THROUGH YOUR BODY. HUMAN BODIES ARE 18 SOMEWHAT CONDUCTIVE, ESPECIALLY WHEN YOUR HANDS ARE SWEATY. 19 AND YOU CAN, BY SQUEEZING THEM AT VARIOUS AMOUNTS, 20 YOU CAN DO VARIOUS -- VARY THE AMOUNT OF CONDUCTION THAT THE 21 METER SEES AND REDUCE THE RESISTANCE FROM, OH, IF YOU'RE 22 TOUCHING THEM LIGHTLY, SAY 100,000 OHMS DOWN TO MAYBE 20,000 OR 23 10,000 OHMS IF YOU SQUEEZE THEM SLIGHTLY. 24 Q FROM WHAT YOU READ ON ARS ABOUT THE E-METER, CAN YOU 25 DESCRIBE IN ESSENCE WHAT IT IS? Page 451 1 A WELL, TOTAL HOCUM. 2 Q BEYOND THAT -- 3 MR. ROSEN: YOUR HONOR, I OBJECT TO THAT. 4 THE COURT: SUSTAINED, STRICKEN. 5 HE CAN TELL US WHAT SPECIFICALLY HE READ SO THAT WE 6 CAN KNOW WHAT HIS STATE OF MIND WAS, BUT HIS CHARACTERIZATION OF 7 SOMETHING AS HOCUM OR NOT HOCUM IS REALLY NOT HELPFUL. 8 BY MR. BERRY: 9 Q ARE YOU ABLE -- FROM WHAT YOU READ ON ARS, DID YOU 10 FORM A CONCLUSION AS TO WHAT AN E-METER IS? 11 A YES, I DID. 12 Q AND IN YOUR MIND, WHAT IS IT? 13 A IT'S A DEVICE -- 14 Q I'M SORRY. IN YOUR MIND, PRIOR TO MARCH 30TH, 1996, 15 WHAT WAS IT? 16 A IT'S BASICALLY AN O-METER THAT HAS, THAT THEY USE A 17 COUPLE OF SOUP CANS ON AS CONTACT POINTS FOR PEOPLE TO HEAL 18 THEM. 19 Q AND WHAT IS AN O-METER? 20 A AN O-METER? 21 Q YEAH. 22 A IT'S JUST -- SORRY. IT'S JUST A THING TO MEASURE. 23 IT'S ALSO KNOWN AS A WHEAT STONE BRIDGE, BUT IT'S A MECHANISM 24 THAT MEASURES RESISTANCE. AND THAT'S REALLY ALL THAT AN E-METER 25 DOES TO PEOPLE. Page 452 1 Q NOW, FROM YOUR REVIEW OF ARS POSTINGS, DID YOU FORM 2 A BELIEF AS TO WHETHER THE E-METER HAD SOME PLACE IN THE CHURCH 3 OF SCIENTOLOGY? 4 A YES. IT IS ABSOLUTELY CENTRAL TO THE PRACTICE IN 5 SCIENTOLOGY CALLED AUDITING. 6 MR. ROSEN: OBJECTION, NO FOUNDATION. AND TO THE 7 EXTENT IT IS BEING OFFERED AS TRUTHFUL, THERE IS NO BASIS FOR 8 THIS. 9 THE COURT: ALL RIGHT. LET ME INSTRUCT THE JURY. 10 WHAT MR. HENSON IS TESTIFYING TO NOW IS WHAT HE 11 INDICATES HE LEARNED FROM READING MATERIAL ON THIS ARS NEWS 12 GROUP. 13 WHETHER OR NOT WHAT HE LEARNED IS TRUE OR NOT TRUE, 14 WHAT HE SAYS IS NOT EVIDENCE OF THAT. AND WHETHER AN E-METER IS 15 OR IS NOT WHAT HE SAYS IT IS IS NOT REALLY A RELEVANT ISSUE IN 16 THIS CASE. 17 THE RELEVANT ISSUE IN THIS CASE IS MR. HENSON'S GOOD 18 FAITH AND REASONABLE BELIEF AT THE TIME HE POSTED NOTS 34. 19 SO MR. HENSON'S DESCRIPTION OF WHAT AN E-METER IS 20 CANNOT BE CONSIDERED FOR THE TRUTH OF THE STATEMENT AS TO WHAT 21 AN E-METER IS. IN OTHER WORDS, IS THAT, IN FACT, WHAT AN 22 E-METER IS. IT CAN ONLY BE CONSIDERED FOR DETERMINING WHAT 23 MR. HENSON'S GOOD FAITH, REASONABLE BELIEF WAS AT THE TIME HE 24 POSTED IT. 25 BY MR. BERRY: Page 453 1 Q AND AT THE TIME YOU POSTED NOTS 34, MR. HENSON, WHAT 2 WAS YOUR BELIEF REGARDING THE PLACE AND USE OF THE E-METER BY 3 THE CHURCH OF SCIENTOLOGY? 4 A IT IS USED -- IT IS WIDELY USED FOR A NUMBER OF 5 THINGS IN SCIENTOLOGY. IT IS USED FOR, FOR AUDITING, AND IT IS 6 USED FOR SOMETHING THAT'S CALLED SECURITY CHECKS, OR SEC CHECKS. 7 Q WHAT ARE -- SORRY. AT THE TIME YOU POSTED NOTS 34, 8 WHAT WAS YOUR UNDERSTANDING OF A SEC CHECK? 9 MR. ROSEN: OBJECTION. MAY WE APPROACH? 10 THE COURT: ALL RIGHT. 11 (SIDEBAR DISCUSSION OFF THE RECORD.) 12 BY MR. BERRY: 13 Q NOW, ON MARCH 30, 1996, WHAT WAS YOUR UNDERSTANDING 14 OF A SEC CHECK IN THE CHURCH OF SCIENTOLOGY? 15 A IT'S A -- IT'S -- WELL, I HAVE TO BE VERY 16 CONSTRAINED ABOUT WHAT I SAY. 17 BUT WHEN SOMEBODY IS BELIEVED TO HAVE COMMITTED A 18 CRIME AGAINST SCIENTOLOGY, THEY ARE SUBJECTED TO SEC CHECKING IN 19 ORDER TO -- THE E-METER ITSELF IS ONE COMPONENT OF LIE 20 DETECTORS, AND THEY TEND TO USE IT IN THE DIRECTION OF USING IT 21 TO FIND OUT WHETHER OR NOT SOMEONE IS TELLING THE TRUTH ABOUT 22 THE MONEY THAT DISAPPEARED FROM THE PETTY CASH FUND. 23 MR. ROSEN: YOUR HONOR, I MOVE TO STRIKE THIS. THIS 24 HAS NOTHING TO DO WITH NOTS 34, AND THIS IS SCURRILOUS, HIS 25 TESTIMONY. Page 454 1 THE COURT: PLEASE MAKE YOUR OBJECTIONS JUST IN THE 2 LEGAL FORM. 3 WHETHER OR NOT MR. HENSON IS ACCURATELY DESCRIBING 4 THE PRACTICES OF SCIENTOLOGY IS NOT THE ISSUE IN THIS CASE. 5 AGAIN, WE'RE DEALING WITH THE ISSUE OF HIS STATE OF 6 MIND AT THE TIME HE POSTED NOTS 34. DID HE BELIEVE THAT HE WAS 7 POSTING SOMEONE'S COPYRIGHTED WORK, OR DID HE POST IN RECKLESS 8 DISREGARD OF FINDING OUT WHETHER THE WORK WAS COPYRIGHTED? DID 9 HE REASONABLY BELIEVE THAT IT WAS NOT COPYRIGHTED? DID HE HAVE 10 A GOOD FAITH BELIEF THAT IF IT WERE COPYRIGHTED, A GOOD FAITH 11 AND REASONABLE BELIEF THAT HE HAD A DEFENSE TO A COPYRIGHT 12 INFRINGEMENT ACTION IF, IN FACT, THE DOCUMENT HE POSTED WAS 13 COPYRIGHTED AS OF THE DATE HE POSTED IT. THOSE ARE THE ISSUES. 14 THE BELIEFS OF SCIENTOLOGY ARE NOT RELEVANT TO THE 15 ISSUES IN THIS CASE, OTHER THAN THE BELIEFS THAT MR. HENSON HAD 16 IN HIS MIND AS TO WHAT SCIENTOLOGY, OR WHAT NOTS 34 MEANT AT THE 17 TIME HE POSTED IT, AND WHETHER OR NOT IT MEANT WHAT HE THOUGHT 18 IT DID, THAT PROVIDED ANY SORT OF TRUMPING OR DEFENSE TO A 19 COPYRIGHT INFRINGEMENT ACTION IF HE BELIEVED THE MATERIAL WAS 20 COPYRIGHTED AND HE RECKLESSLY DISREGARDED WHETHER IT WAS 21 COPYRIGHTED. 22 GO AHEAD. 23 BY MR. BERRY: 24 Q NOW, AS OF MARCH 30, 1996, WHAT HAD YOU LEARNED FROM 25 ARS REGARDING THE PROCESS KNOWN AS AUDITING? Page 455 1 A A VAST AMOUNT BY THAT POINT. 2 Q WELL, FIRST OF ALL, ON MARCH 30, 1996, WHAT WAS YOUR 3 UNDERSTANDING OF AUDITING ITSELF? 4 THE COURT: AS RELATED TO NOTS 34? 5 MR. BERRY: WELL, I'M GOING FROM THE GENERAL TO THE 6 SPECIFIC, YOUR HONOR. 7 THE COURT: WELL, IT REALLY DOESN'T HAVE ANY BEARING 8 ON THE ISSUES IN THIS CASE UNLESS WE'RE RELATING IT TO NOTS 34. 9 THE WITNESS: IT DOES. 10 MR. BERRY: I MEAN -- 11 THE COURT: CAN'T YOU NARROW THE QUESTION AND GET 12 WHAT YOU'RE AFTER? 13 MR. BERRY: NOT REALLY, YOUR HONOR. IT'S -- IT'S 14 CLOSELY INTERTWINED. 15 THE COURT: ALL RIGHT, GO AHEAD. BUT I'M GOING TO 16 STRIKE IT IF IT'S NOT RELEVANT TO OUR ISSUES. 17 BY MR. BERRY: 18 Q WHAT IS YOUR UNDERSTANDING OF WHAT AUDITING IS? 19 A AUDITING IS A PROCESS WHERE SOMEBODY IS -- THE 20 PERSON WHO'S BEING AUDITED SITS HOLDING THE TWO CANS FROM THE 21 E-METER AND IS TYPICALLY ASKED A LONG SERIES OF QUESTIONS, MANY 22 OF WHICH HAVE BEEN POSTED AD NAUSEAM ON ALT.RELIGION 23 SCIENTOLOGY. THEY ASK QUESTIONS, "HAVE YOU EVER ENSLAVED A 24 RACE? HAVE YOU" -- 25 MR. ROSEN: YOUR HONOR, I OBJECT TO THIS. THIS HAS Page 456 1 NOTHING TO DO WITH NOTS 34. 2 THE COURT: SUSTAINED. 3 THE WITNESS: IT'S A LONG -- IT'S A PROCESS. 4 MR. ROSEN: YOUR HONOR, THERE'S NO QUESTION PENDING. 5 THE COURT: I THINK THERE IS. THE QUESTION IS WHAT 6 IS THE AUDITING PROCESS? 7 THE WITNESS: AUDITING TYPICALLY IS THIS PROCESS 8 WHERE YOU SIT THERE HOLDING THESE CANS AND SOMEBODY ASKS YOU A 9 VERY LONG SERIES OF QUESTIONS. IT INVOLVES INTENSE FOCUS OF 10 ATTENTION BETWEEN TWO PEOPLE, AND THAT ITSELF HAS STRANGE 11 PSYCHOLOGICAL EFFECTS ON PEOPLE THAT I COULD GO INTO -- 12 MR. ROSEN: OBJECTION. 13 THE WITNESS: -- IF I COULD. 14 THE COURT: ALL RIGHT. THAT LAST PART OF THE ANSWER 15 IS STRICKEN. THERE'S NO FOUNDATION FOR THAT COMMENT. 16 BY MR. BERRY: 17 Q NOW, AS OF MARCH 30, 1996, HAD YOU LEARNED OF A 18 COURT DECISION DELIVERED BY A JUDGE GESELL FROM YOUR READING OF 19 THE POSTINGS ON ARS? 20 A YES. 21 Q AND FIRST OF ALL, WHO IS JUDGE GESELL? 22 A HE WAS A FEDERAL JUDGE, AND I SAY "WAS" BECAUSE HE'S 23 BEEN DEAD FOR SOME YEARS NOW, WHO WAS INVOLVED WITH RULINGS WHEN 24 THE FOOD AND DRUG ADMINISTRATION FILED A SUIT AGAINST 25 SCIENTOLOGY IN THE LATE '60'S. Page 457 1 Q AND FROM YOUR READINGS PRIOR TO MARCH 30, 1996, WHAT 2 WAS YOUR UNDERSTANDING OF WHAT THAT CASE WAS ALL ABOUT AND HOW 3 IT CONCLUDED? 4 THE COURT: LET ME JUST MAKE CLEAR THAT THIS IS HIS 5 UNDERSTANDING. THIS SHOULD NOT BE CONSIDERED FOR WHETHER OR NOT 6 THAT'S WHAT THE RULING SAID. THIS IS JUST HIS UNDERSTANDING. 7 THE WITNESS: MY UNDERSTANDING OF THE RULING, WHICH 8 I HAD READ BEFORE THAT POINT IN TIME, BEFORE MARCH 30, WAS THAT 9 SCIENTOLOGY HAD AGREED, WHATEVER ORGANIZATIONS, WHATEVER PARTS 10 OF SCIENTOLOGY WERE BEING PARTIES TO THIS LAWSUIT, THEY HAD 11 AGREED TO PUT A STICKER ON THE E-METERS SAYING SPECIFICALLY THAT 12 THEY HAVE NO CURATIVE OR OTHERWISE POWERS INVOLVING PRACTICING 13 OF MEDICINE. 14 AND THAT ALSO THEY WERE FORBIDDEN, SCIENTOLOGY AND 15 ALL RELATED KINDS OF ORGANIZATIONS, WERE FORBIDDEN FOREVER IN 16 MAKING CLAIMS THAT THEY, THAT AUDITING COULD CURE PHYSICAL 17 ILLNESSES. 18 BY MR. BERRY: 19 Q WHAT WAS YOUR UNDERSTANDING AS TO WHO BROUGHT THIS 20 LAWSUIT? 21 A THE FOOD AND DRUG ADMINISTRATION. 22 Q WHAT WAS YOUR UNDERSTANDING AS TO HOW SCIENTOLOGY 23 WAS FORBIDDEN FROM MAKING CURATIVE CLAIMS IN CONNECTION WITH THE 24 E-METER? 25 A THEY WERE, AS FAR AS I COULD TELL, COMPLETELY Page 458 1 FORBIDDEN FROM MAKING SUCH CLAIMS. 2 Q AND IN WHAT MANNER DID THE COURT FORBID THEM? 3 A I DO NOT REMEMBER THE EXACT DETAILS OF THE WORDING 4 THAT THE JUDGE USED IN THAT CASE, BUT THE GIST OF IT WAS THAT 5 THEY WERE FORBIDDEN FROM MAKING SUCH CLAIMS. 6 Q WAS THERE AN INJUNCTION IN THAT CASE? 7 A OH, YES. IT WAS IN THE FORM OF A PERMANENT 8 INJUNCTION. 9 Q WAS IT YOUR UNDERSTANDING, IN MARCH, ON MARCH 30, 10 1996, THAT THE JUDGE'S INJUNCTION IN THAT CASE WAS EVERY BIT AS 11 CONSTRAINING AS THE JUDGE'S INJUNCTION ON YOU IN THIS CASE? 12 MR. ROSEN: OBJECTION, FORM. 13 THE COURT: SUSTAINED. 14 REPHRASE THE QUESTION. 15 BY MR. BERRY: 16 Q ON MARCH 30, 1996, WAS IT YOUR UNDERSTANDING THAT 17 THAT INJUNCTION CARRIED WITH IT POSSIBLE CRIMINAL AND FINANCIAL 18 AND CIVIL PENALTIES? 19 A AS FAR AS I KNOW, ALL INJUNCTIONS DO THAT. 20 Q NOW -- 21 A I DID ACTUALLY MENTION THAT -- 22 THE COURT: THERE'S NO QUESTION PENDING. 23 THE WITNESS: OKAY. 24 BY MR. BERRY: 25 Q PRIOR TO MARCH 30, 1996, FROM YOUR REVIEW OF ARS AND Page 459 1 OTHER DOCUMENTS AND SITES, HAD YOU BECOME AWARE OF SOMETHING 2 KNOWN AS SCIENTOLOGY'S UPPER LEVEL, OR ADVANCED MATERIALS? 3 A OH, YES. 4 Q AND WITHOUT DESCRIBING THEIR CONTENTS, COULD YOU 5 INDICATE BRIEFLY WHAT YOUR UNDERSTANDING IN THAT REGARD WAS? 6 MR. ROSEN: OBJECTION TO THE EXTENT IT'S BEYOND NOTS 7 34. 8 THE COURT: I'LL ALLOW THE QUESTION IN VERY GENERAL 9 TERMS, BUT THIS CASE OBVIOUSLY DOESN'T CONCERN ANYTHING OTHER 10 THAN NOTS 34. 11 SO JUST GIVE A VERY BASIC DESCRIPTION. 12 THE WITNESS: THE MATERIAL WHICH WAS -- THE REASON I 13 KNEW ABOUT THE MATERIAL WAS BECAUSE IT HAD BEEN POSTED WIDELY 14 UPON THE INTERNET MANY TIMES BY -- 15 THE COURT: THAT'S NOT THE QUESTION, MR. HENSON. 16 ANSWER THE QUESTION, PLEASE. 17 THE WITNESS: MY UNDERSTANDING OF THE MATERIAL? IT 18 HAS TO DO WITH SCIENTOLOGY'S WORLD VIEW, WHICH YOU ABSOLUTELY 19 HAVE TO HAVE IN ORDER TO HAVE ANY UNDERSTANDING OF WHAT NOTS 34 20 IS ABOUT. 21 BY MR. BERRY: 22 Q HAD YOU, FOR EXAMPLE, HEARD OF SOME DOCUMENTS CALLED 23 OT I THROUGH OT VIII? 24 A YES, I HAD. 25 Q AND DID YOU ACQUIRE AN UNDERSTANDING, PRIOR TO MARCH Page 460 1 30, 1996, THAT THE E-METER AND AUDITING PROCESS, PROCESSES, WERE 2 INVOLVED WITH THOSE LEVELS? 3 A YES, I HAD. 4 Q AND PRIOR TO MARCH 30, 1996, HAD YOU BECOME AWARE OF 5 SOME DOCUMENTS CALLED NOTS? 6 A I HAD BEEN VAGUELY AWARE OF THEM BACK AS FAR AS 7 ALMOST A YEAR BEFORE THAT BECAUSE THEY HAD BEEN POSTED ON THE 8 NET AS PART OF SCAMIZDAT 3, WHICH WAS DATED AROUND APRIL OF '95. 9 Q AND WHAT WAS SCAMIZDAT 3, SPELLED S-C-A-M-I-Z-D-A-T? 10 A IT WAS ONE OF A SERIES, A LONG SERIES, I THINK IT 11 WENT UP TO 11, OF DOCUMENTS THAT WERE POSTED BY PARTIES UNKNOWN 12 ON THE NET THROUGH THE ANONYMOUS RE-MAILER NETWORK. 13 Q AND WITHOUT DESCRIBING THE CONTENTS OF THE NOTS 14 SERIES, DID YOU HAVE ANY UNDERSTANDING AS TO WHETHER THEY WERE 15 PART OF THE SCIENTOLOGY UPPER LEVELS? 16 A YES, THEY WERE. 17 Q AND -- 18 A THAT WAS MY UNDERSTANDING, RATHER. 19 Q AND HAD YOU BECOME AWARE OF THE USE OF THE E-METER 20 AND AUDITING IN CONNECTION WITH THE NOTS PORTION OF THE UPPER 21 LEVELS? 22 MR. ROSEN: OBJECTION, YOUR HONOR. NO FOUNDATION 23 THAT THIS RELATES TO NOTS 34. WE KEEP -- OH, I'LL SAVE THE 24 COMMENTARY. 25 MR. BERRY: I'LL WITHDRAW THE QUESTION, YOUR HONOR. Page 461 1 THE COURT: ALL RIGHT. 2 BY MR. BERRY: 3 Q HAD YOU -- WAS IT YOUR UNDERSTANDING AS OF MARCH 30, 4 1996, THAT NOTS 34 WAS PART OF THE NOTS PORTION OF THE UPPER 5 LEVELS, OT I THROUGH OT VIII? 6 A IT IS ACTUALLY MUCH MORE COMPLICATED THAN THAT. 7 Q COULD YOU EXPLAIN WHY? 8 A THIS IS, AGAIN, MY BELIEF, WHICH IT MAY NOT BE 9 ACCURATE. BUT IF I, IF I UNDERSTAND THIS CORRECTLY, THE 10 OPERATING THETAN, OR OT LEVELS, ORIGINALLY WENT UP TO VIII. THE 11 LEVELS ABOVE III WERE WITHDRAWN AND REPLACED BY NOTS, AND I 12 REALLY DON'T KNOW EXACTLY WHERE, HOW THE VARIOUS NOTS DOCUMENTS 13 REPLACE, WHAT SECTIONS OF THE 50 SOME ODD NOTS DOCUMENTS REPLACE 14 WHAT SECTIONS OF THE OT LEVELS. 15 IT'S SUFFICIENTLY COMPLICATED THAT I'M NOT SURE THAT 16 THERE ARE TOO MANY PEOPLE WHO ARE NOT SCIENTOLOGISTS WHO 17 UNDERSTAND IT, AND I'M NOT SURE THAT THEY ALL DO. 18 Q WAS IT YOUR UNDERSTANDING THAT AUDITING AND THE 19 E-METER WAS USED IN CONNECTION WITH THE NOTS SERIES OF 20 MATERIALS? 21 MR. ROSEN: OBJECTION, BOTH LEADING, AS WELL AS NO 22 RELATIONSHIP TO NOTS 34. 23 THE COURT: OVERRULED. 24 GO AHEAD. 25 THE WITNESS: I'M SORRY. COULD YOU REPEAT? Page 462 1 BY MR. BERRY: 2 Q WAS IT YOUR UNDERSTANDING, PRIOR TO MARCH 30, 1996, 3 THAT PROPER USE OF THE NOTS MATERIALS INVOLVED AUDITING WITH AN 4 E-METER? 5 A YES. IT HAS TO DO WITH THE WORDING THAT IS IN NOTS 6 34. 7 Q WE'LL COME TO THAT LATER. 8 HOW MANY PEOPLE GENERALLY ARE USED -- SORRY, 9 WITHDRAWN. 10 EXPLAIN AUDIT FOR A MOMENT FOR THE JURY A LITTLE 11 MORE. DOES AUDITING INVOLVE ONE OR TWO PEOPLE? 12 MR. ROSEN: OBJECTION. NO FOUNDATION THIS WITNESS 13 KNOWS ANYTHING ABOUT IT. 14 THE COURT: AGAIN, IT CAN BE OFFERED SOLELY FOR HIS 15 STATE OF MIND. 16 I WOULD ASK YOU TO REPHRASE THE QUESTION AS TO HIS 17 UNDERSTANDING PRIOR TO THE TIME THAT HE POSTED ON MARCH 30TH. 18 AND AGAIN, IT'S OFFERED FOR HIS UNDERSTANDING, NOT 19 WHETHER IT'S TRUE OR WHETHER IT'S AN ACCURATE STATEMENT OF WHAT 20 GOES ON IN AUDITING IN THE SCIENTOLOGY RELIGION OR NOT. 21 THE WITNESS: AS I UNDERSTAND, THERE ARE TWO 22 VARIETIES OF AUDITING, ONE OF THEM WHICH USES WHAT WAS CALLED AN 23 AUDITOR, A PERSON SUPPOSEDLY TRAINED IN THIS BUSINESS, AND THE 24 OTHER ONE WHICH IS CALLED SOLO AUDITING WHERE A PERSON WATCHES 25 THE E-METER BY THEMSELVES. Page 463 1 BY MR. BERRY: 2 Q NOW, WHEN ONE IS USING AN AUDITOR, HOW MANY PEOPLE 3 ARE INVOLVED IN THAT PROCESS? 4 A TWO. 5 Q IS AN AUDITOR -- WAS IT YOUR UNDERSTANDING THAT JUST 6 ANYONE COULD BE AN AUDITOR? 7 THE COURT: AGAIN, THIS REFERS TO BEFORE MARCH 30TH, 8 1996, YOUR UNDERSTANDING. 9 THE WITNESS: THERE ARE -- I UNDERSTOOD THIS AS WELL 10 AS I COULD. THERE ARE MANY LEVELS OF AUDITORS, AS WELL AS MANY 11 LEVELS OF OPERATING THETANS WITHIN THE SCIENTOLOGY. 12 AND WHETHER SOMEBODY CAN, IN THEORY, AUDIT SOMEONE 13 ON THE VARIOUS LEVELS DEPENDS ON THEIR, THE LEVEL THE PERSON WHO 14 IS AUDITING IS TO THE BEST OF MY UNDERSTANDING OF THE MATTER. 15 BY MR. BERRY: 16 Q PRIOR TO MARCH 30, 1996, HAD YOU ACQUIRED ANY 17 KNOWLEDGE AS TO WHETHER THE E-METER COULD BE USED IN CONNECTION 18 WITH CLAIMS OF MEDICAL CURES AND PROCESSES AND TREATMENTS? 19 A SCIENTOLOGY IS SIMPLY FULL OF THIS, AND YES, I HAD 20 SEEN -- 21 MR. ROSEN: OBJECTION, YOUR HONOR. 22 THE WITNESS: -- HUNDREDS -- 23 MR. ROSEN: I MOVE TO STRIKE THIS. 24 THE WITNESS: THE ANSWER IS YES. 25 THE COURT: THE LEGAL OBJECTION IS? Page 464 1 MR. ROSEN: NO RELEVANCE TO NOTS 34. 2 THE COURT: SUSTAINED. 3 YOU'LL HAVE TO TIE IT INTO NOTS 34. 4 BY MR. BERRY: 5 Q WE'RE GOING TO COME TO NOTS 34 IN DETAIL LATER, BUT 6 AS OF MARCH 30, 1996, WAS IT YOUR UNDERSTANDING THAT NOTS 34 7 INVOLVED THE PRACTICE OF MEDICINE? 8 A YES. 9 Q WAS IT YOUR UNDERSTANDING, AS OF MARCH 30, 1996, 10 THAT NOTS 34 INVOLVED THE USE OF THE E-METER IN THE AUDITING 11 PROCESS? 12 A YES. 13 Q WAS IT YOUR UNDERSTANDING THAT THERE WERE OTHER 14 DOCUMENTS, IN ADDITION TO NOTS 34, THAT DEALT WITH MEDICAL 15 CLAIMS AND PRACTICES OF SCIENTOLOGY? 16 MR. ROSEN: OBJECTION. 17 THE COURT: ANSWER THAT YES OR NO. 18 THE WITNESS: YES. 19 BY MR. BERRY: 20 Q DID YOU ACQUIRE ANY KNOWLEDGE PRIOR TO MARCH 30, 21 1996, AS TO WHAT OTHER SCIENTOLOGY DOCUMENTS MIGHT RELATE TO THE 22 UNLAWFUL PRACTICE OF MEDICINE? 23 MR. ROSEN: OBJECTION. 24 THE WITNESS: YES. 25 THE COURT: SUSTAINED. WE'RE TALKING ABOUT NOTS 34. Page 465 1 BY MR. BERRY: 2 Q PRIOR TO MARCH 30, 1996, HAD YOU ACQUIRED ANY 3 KNOWLEDGE AS TO WHETHER THE E-METER AND AUDITING PROCESS COULD 4 BE DANGEROUS? 5 A YES. 6 Q AND HOW DID YOU ACQUIRE THAT KNOWLEDGE? 7 A HUNDREDS TO THOUSANDS OF POSTINGS THAT I READ. 8 Q AND FROM THOSE POSTINGS, WHAT DID YOU LEARN IN THAT 9 REGARD? 10 MR. ROSEN: OBJECTION, NOT LIMITED TO NOTS 34. 11 THE COURT: I THINK HE'S TESTIFIED THAT HE 12 UNDERSTOOD THAT NOTS 34 INVOLVED THE USE OF THE E-METER IN 13 AUDITING. 14 I WOULD ASK YOU TO BREAK DOWN THE QUESTION AS TO 15 WHAT HE LEARNED, IF ANYTHING, WITH RESPECT TO WHETHER THE USE OF 16 AN E-METER IN AUDITING AND IN CONNECTION WITH NOTS 34 WAS 17 DANGEROUS. 18 BY MR. BERRY: 19 Q PRIOR TO MARCH 30, 1996, DID YOU ACQUIRE ANY 20 INFORMATION LEADING YOU TO BELIEVE THAT THE USE OF THE E-METER 21 IN MEDICAL TREATMENT, SUCH AS NOTS 34, COULD BE DANGEROUS? 22 MR. ROSEN: OBJECTION. 23 THE COURT: SUSTAINED. 24 REPHRASE THE QUESTION, PLEASE. 25 BY MR. BERRY: Page 466 1 Q PRIOR TO MARCH 30, 1996, DID YOU BELIEVE THAT THE 2 USE OF THE E-METER IN CONNECTION WITH NOTS 34 COULD BE 3 DANGEROUS. 4 A YES. 5 Q AND WHAT DID YOU LEARN IN THAT REGARD? 6 THE WITNESS: YOUR HONOR, COULD I BRIEFLY TALK TO MY 7 LAWYER ON THIS, BECAUSE I -- IF I ANSWER THIS QUESTION, I'M 8 AFRAID I'LL VIOLATE -- 9 MR. BERRY: MAY I APPROACH, YOUR HONOR? MAY I 10 APPROACH THE WITNESS, YOUR HONOR, AND FIND OUT WHAT HIS PROBLEM 11 IS? 12 THE COURT: WHY DON'T WE TAKE A SHORT BREAK AT THIS 13 TIME. WE'LL BE IN RECESS FOR TEN MINUTES. 14 (RECESS.) 15 THE COURT: ALL RIGHT. MR. BERRY, YOU MAY PROCEED. 16 MR. BERRY: I THINK AT THIS POINT, YOUR HONOR, I 17 WANT THE JURY TO GET THE UNEXPURGATED VERSION OF NOTS 34 AND 18 COMMENCE THE EXAMINATION OF THE ACTUAL CONTENTS OF THE DOCUMENT. 19 AND I HAVE COPIES FOR THE JURY. 20 THE COURT: COULD I SEE WHAT YOU HAVE, PLEASE? 21 MR. BERRY: YEAH (HANDING). 22 THE COURT: MR. ROSEN? 23 (SIDEBAR DISCUSSION ON THE RECORD.) 24 THE COURT: MR. BERRY? 25 MR. BERRY: YES. Page 467 1 THE COURT: WHAT YOU'VE HANDED ME IS NOT MY 2 UNDERSTANDING OF WHAT WAS POSTED ON MARCH 30TH. THIS IS WHAT I 3 UNDERSTAND WAS POSTED (HANDING). 4 THIS IS WHAT HE HANDED TO ME (HANDING). 5 MR. BERRY: OKAY. OKAY. THAT'S FINE BY ME, YOUR 6 HONOR. I CAN WORK WITH THAT. 7 THE COURT: DO YOU DISAGREE? THAT'S THE -- 8 MR. BERRY: YES, THAT'S CERTAINLY WHAT IT SAYS. 9 THE COURT: THAT'S THE POSTING THAT WAS THE BASIS OF 10 THE SUMMARY JUDGMENT MOTION, I BELIEVE. 11 MR. ROSEN: HOW MANY COPIES DOES THE COURT HAVE? 12 THE COURT: I MADE ENOUGH FOR EVERYONE. 13 MR. BERRY: OKAY. NICELY THREE-HOLE PUNCHED. I 14 WOULD ENVISION WE'D CALL IT DEFENDANT'S EXHIBIT. 15 THE COURT: THAT'S NOT WHAT HE'S OFFERING. DO YOU 16 AGREE, MR. ROSEN, THAT THIS IS THE POSTING? THAT WAS TAKEN 17 FROM, JUST SO BOTH SIDES WILL KNOW, FROM THE SUMMARY JUDGMENT 18 MOTION IS MY UNDERSTANDING. 19 MR. ROSEN: YES, THIS IS WHAT WAS POSTED ON MARCH 20 30TH. 21 THE COURT: OKAY. 22 MR. ROSEN: I DO -- JUST FOR THE RECORD, I THINK I'M 23 PROBABLY REDUNDANT, I THINK I'VE NOTED MY OBJECTIONS, BOTH TO 24 NOTS 34 PER SE, BUT ALSO TO POSTING OF THE MATERIAL SURROUNDING 25 IT, WHICH IS THE, WITH MR. HENSON'S COMMENTS AND HIS LETTER TO Page 468 1 THE COURT. 2 THE COURT: I UNDERSTAND. 3 MR. ROSEN: I SAID I THINK I'M BEING REDUNDANT. 4 THE COURT: I APPRECIATE YOUR OBJECTION. 5 MR. BERRY (HANDING)? 6 (IN OPEN COURT.) 7 THE COURT: ALL RIGHT. AT THIS TIME I WOULD ASK 8 THAT EXCEPT FOR THE PARTIES TO THIS ACTION, THE COURTROOM BE 9 CLEARED. 10 AND JUST TO MAKE CLEAR THE REASON I'M DOING IT IS 11 THAT THERE'S GOING TO BE SOME DISCUSSION OF NOTS 34, WHICH THE 12 PLAINTIFF, RTC, CONSIDERS A CONFIDENTIAL, UNPUBLISHED DOCUMENT. 13 OBVIOUSLY MR. BERRY AND HIS CLIENT, MR. HENSON, 14 DISAGREE WITH WHETHER IT'S A CONFIDENTIAL DOCUMENT. 15 I AM MAKING NO DETERMINATION OF THAT ISSUE, BUT IN 16 LIGHT OF THE CONTENTION OF THE PARTIES AND INFORMATION THAT HAS 17 BEEN PRESENTED TO ME, I THINK THERE IS A BASIS FOR CLEARING THE 18 COURTROOM WITHOUT PREJUDICE TO ANYONE SEEKING TO PETITION THE 19 COURT FOR A COPY OF ANY INFORMATION THAT HAS BEEN FILED IN THIS 20 CASE OR TO REVIEW ANY SEALED PORTION OF THE TRANSCRIPT. 21 BUT AT THIS TIME I WOULD ASK THOSE, OTHER THAN 22 PARTIES TO THE ACTION, TO PLEASE STEP OUT OF THE COURTROOM. 23 (COURTROOM CLEARED, ONLY PARTIES PRESENT.) 24 MR. BERRY: YOUR HONOR, CAN MR. HENSON'S WIFE 25 REMAIN? Page 469 1 THE WITNESS: IT'S OKAY. 2 THE COURT: NO, EVERYBODY. I THINK IT APPLIES TO 3 EVERYONE. OR RATHER, IT DOES APPLY TO EVERYONE. 4 MR. BERRY: IS THERE ONE EXTRA, YOUR HONOR, SO I 5 MAKE SURE I WORK OFF THE SAME CHART HERE? 6 THE COURT: YES (HANDING). 7 ALL RIGHT. WE'LL MARK THAT DEFENDANT'S EXHIBIT A. 8 I DON'T THINK WE WROTE ON THAT. IT'S DEFENDANT'S 9 EXHIBIT A. IF YOU WANT TO WRITE THAT ON IT, YOU MAY. 10 (DEFENDANT'S EXHIBIT A WAS MARKED FOR IDENTIFICATION.) 11 12 BY MR. BERRY: 13 Q MR. HENSON, I HAVE PLACED BEFORE YOU, AND THE JURY 14 NOW HAS BEFORE IT, A DOCUMENT THAT HAS BEEN IDENTIFIED AS 15 DEFENDANT'S EXHIBIT A. 16 IS DEFENDANT'S EXHIBIT A A TRUE AND CORRECT COPY, AS 17 FAR AS YOU CAN TELL, OF THE INTERNET POSTING REGARDING NOTS 34 18 THAT YOU MADE INITIALLY ON MARCH 30, 1996? 19 A WELL, AGAIN, WITH THE FACT THAT THIS HAS BEEN OUT OF 20 MY HANDS AND I CAN'T REALLY AUTHENTICATE IT WITHOUT A 21 CHARACTER-BY-CHARACTER COMPARISON, FOR THE PURPOSES OF THIS, I 22 WOULD SAY IT ALMOST CERTAINLY IS. IT LOOKS -- I DON'T SEE 23 ANYTHING OUT OF PLACE ON IT. 24 Q NOW, WHEN YOU POSTED NOTS 34 TO THE INTERNET ON 25 MARCH 30, 1996, HAD SOMETHING OCCURRED WHICH PROMPTED YOU TO DO Page 470 1 SO? 2 A YES. 3 Q AND WHAT WAS THAT? 4 A I HAD TALKED -- I HAD DELIVERED A LETTER TO THE 5 COURT SOME, I GUESS, FOUR DAYS BEFORE THAT, AND THEN HAD TALKED 6 TO THE, TO JUDGE WHYTE'S CLERK AFTER THE, AFTER A HEARING WITH 7 GRADY WARD. IT SPECIFICALLY SAID, "AFTER TALKING TO THE COURT 8 TODAY, I FEEL SAFE IN POSTING THIS LETTER." 9 Q NOW, WHAT HAD OCCURRED IN CONNECTION WITH GRADY WARD 10 THAT LED YOU TO EVENTUALLY POST NOTS 34? 11 A WELL, IT'S WRITTEN INTO THE LETTER ITSELF. THE 12 CHURCH OF SCIENTOLOGY HAD SUED GRADY WARD AND A TEMPORARY 13 RESTRAINING ORDER HAD BEEN ISSUED AGAINST GRADY WARD AND ALL 14 PERSONS IN ACTIVE CONCERT, AND I WAS -- I WROTE THE LETTER 15 ORIGINALLY IN THE INTEREST OF ASKING FOR A CLARIFICATION ON IT. 16 Q HAD -- PRIOR TO POSTING NOTS 34, DID YOU ATTEND A 17 HEARING IN THE WARD CASE? 18 A YES, I DID. 19 Q AND WHAT OCCURRED DURING THAT HEARING? 20 A TO THE BEST OF MY UNDERSTANDING OF IT, MR. WARD WAS 21 ENJOINED FROM POSTING NOTS 34 AND ALL OTHER BITS AND PIECES OF 22 SCIENTOLOGY'S UPPER LEVEL MATERIALS. 23 Q AND HAD THE EXTENT OF THAT INJUNCTION BECOME PART OF 24 THE COURT RECORD? 25 A I BELIEVE IT DID. AND IT HAD ALSO -- MORE IMPORTANT Page 471 1 FOR MY PURPOSES, IT HAD BECOME PART OF THE RECORD ON 2 ALT.RELIGION SCIENTOLOGY BECAUSE IT IS MY RECOLLECTION, ALTHOUGH 3 I MAY BE WRONG ON THIS, THAT MS. KOBRIN POSTED, POSTED THIS 4 MATERIAL ONTO ALT.RELIGION SCIENTOLOGY, SORT OF AS A BLANKET 5 NOTIFICATION. 6 Q NOW, DID YOU COPY ANY PORTION OF THE COURT'S FILES 7 IN THE WARD CASE? 8 A I MIGHT HAVE, BUT I DON'T -- I KNOW I DID LATER, BUT 9 I DON'T BELIEVE I HAD DONE SO AT THAT TIME. 10 Q DID SOMETHING CAUSE YOU TO DOWNLOAD NOTS 34 FROM THE 11 INTERNET? 12 A ACTUALLY, IT'S DESCRIBED IN HERE WHAT I DID IN THE, 13 WHAT, THE SECOND PARAGRAPH ON THE SECOND PAGE. 14 Q SO WHEN YOU SAY IT'S DESCRIBED IN HERE, REFERRING TO 15 DEFENDANT'S EXHIBIT A? 16 A RIGHT. 17 Q DOES THE LAST PARAGRAPH OF THE FIRST PAGE AND THE 18 FIRST TWO PARAGRAPHS OF THE SECOND PAGE DESCRIBE WHAT YOU DID, 19 WHY AND HOW? 20 A RIGHT. IT SPECIFICALLY SAYS, IT WAS -- THE LETTER 21 WAS ADDRESSED, OF COURSE, TO JUDGE WHYTE, AND UPON READING IT, I 22 SORTED THE LIST OF DOCUMENTS ATTACHED AND RAN A TEXT SEARCH. 23 THIS IS MUCH LIKE YOU WOULD DO IF YOU HAD A WORD 24 PROCESSOR OPEN AND YOU WANTED TO FIND ALL THE CASES OF SOME WORD 25 THAT SHOWED UP IN A DOCUMENT THAT YOU WERE WORKING ON. Page 472 1 SO I RAN A SIMILAR KIND OF A CHARACTER ON WHAT'S 2 CALLED THE NEWS SPOOL ON NETCOM. NETCOM HAS THE MATERIAL WHICH 3 IS IN THE NEWS SPOOL IN A PARTICULAR PLACE. IT'S IN -- I DON'T 4 REMEMBER THE EXACT THING, BUT IT'S IN 5 /NEWS/ALT/RELIGION/SCIENTOLOGY, AND WHEN YOU GET DOWN TO THAT 6 FINAL DIRECTORY, INSIDE OF THAT DIRECTORY, THERE'S A THING WHICH 7 IS EQUIVALENT TO A THING WHICH IS EQUIVALENT TO A TEXT SEARCH 8 ACROSS LARGE NUMBER OF DOCUMENTS, AND IT'S CALLED GREP. 9 IT'S SHORT FOR "GET REGULAR EXPRESSION," AND I RAN 10 THAT PARTICULAR COMMAND IN THERE WITH SOME SET OF KEY WORDS THAT 11 HAD SHOWED UP IN THE T.R.O. ITSELF IN ORDER TO SEE IF THE 12 MATERIAL THAT HAD BEEN, THAT GRADY WARD HAD BEEN ENJOINED FROM 13 POSTING WAS STILL ON THE NEWS SPOOL AT NETCOM. 14 IT WAS VERY OFTEN NOT THERE BECAUSE IT HAD EITHER 15 EXPIRED OR SOMEBODY HAD CANCELED IT. BUT IT WAS IN THIS CASE. 16 I FOUND ACTUALLY, IF I REMEMBER, TWO, THERE WERE TWO 17 POSTINGS TO ALT.RELIGION SCIENTOLOGY THAT CONTAINED NOTS 34 AND 18 SEVERAL OTHER OF THE NOTS SERIES DOCUMENTS. 19 Q NOW, IN PARAGRAPH 1, YOU REFER TO 100,000 PEOPLE 20 PERHAPS READING IT. WHERE DID YOU GET THAT FIGURE FROM? 21 A IT'S, AS THEY SAY, A WILD GUESS. IT WAS -- IT 22 WAS -- JUDGE WHYTE'S, OR RATHER -- YES, JUDGE WHYTE'S T.R.O. WAS 23 POSTED ACROSS FOUR NEWS GROUPS THAT ARE PRETTY BIG, ACTIVE NEWS 24 GROUPS. COMP.ORG.EFF.TALK, C-O-M-P DOT O-R-G DOT E-F-F DOT 25 T-A-L-K, FOR EXAMPLE, HAS A, AN ESTIMATED READERSHIP THAT'S IN Page 473 1 THE TENS OF THOUSANDS. 2 Q AND THIS INJUNCTION, AMONG OTHER THINGS, ENJOINED 3 ALL PERSONS IN ACTIVE CONCERT, AS YOU STATE IN PARAGRAPH 1; 4 CORRECT? 5 A THAT'S THE WAY IT READ. 6 Q NOW, DID THAT LEAD YOU TO DO SOMETHING? 7 A WELL, YES. I GOT -- I WROTE THIS LETTER TO 8 JUDGE WHYTE. 9 Q NOW, WHY DID YOU WRITE THIS LETTER TO JUDGE WHYTE? 10 A WELL, IT'S PRETTY MUCH SELF-EXPLANATORY, BUT I WAS 11 CURIOUS, BECAUSE IT SEEMS TO ME THAT THE WAY IT WAS BEING 12 PRESENTED ON THE INTERNET, BY BEING POSTED ON THE INTERNET, IT 13 SEEMED TO ME THAT IT WAS AT LEAST IMPLYING THAT IT WAS, IT WAS 14 TO APPLY TO ALL PEOPLE ON THE NET. AT LEAST, THAT WAS THE WAY 15 THAT MANY -- THAT I INTERPRETED IT. THE EXPLANATION AROUND IT 16 WHICH HAD BEEN WRITTEN BY MS. KOBRIN -- 17 MR. ROSEN: OBJECTION, YOUR HONOR. 18 THE WITNESS: THAT'S THE WAY I INTERPRETED IT. I'M 19 SORRY. 20 THE COURT: GO AHEAD. WAIT FOR THE QUESTION. 21 BY MR. BERRY: 22 Q YOU WROTE TO JUDGE WHYTE. WHAT DID YOU DO WITH THE 23 LETTER? 24 A I PRINTED THE LETTER OFF AND I BROUGHT IT DOWN TO 25 THE COURT AND I TURNED IT IN AT THE CLERK'S OFFICE. Page 474 1 Q AND WHEN WAS THAT? 2 A I BELIEVE IT WAS THE 26TH. 3 Q AND WHAT WAS YOUR INTENT -- SORRY. 4 WAS YOUR INTENT IN DOING THAT SET FORTH IN THE 5 LETTER, DEFENDANT'S EXHIBIT A? 6 A I BELIEVE IT IS. IT WAS PRIMARILY A CLARIFICATION 7 THAT I WAS REQUESTING. AT THE TIME I DID NOT UNDERSTAND THAT 8 YOU REALLY CAN'T ASK A JUDGE A QUESTION LIKE THAT. 9 Q AND -- 10 THE COURT: THIS IS PROBABLY AN APPROPRIATE TIME TO 11 INSTRUCT THE JURY. 12 A JUDGE IS NOT PERMITTED TO GIVE LEGAL ADVICE; 13 THEREFORE, IT IS INAPPROPRIATE FOR A JUDGE TO ADVISE A PERSON 14 WHO IS NOT A PARTY IN A CASE AS TO THE AFFECT OR INTERPRETATION 15 OF A COURT ORDER. 16 BY MR. BERRY: 17 Q AND ON MARCH 30, 1996, HAD YOU RECEIVED A RESPONSE 18 FROM JUDGE WHYTE TO YOUR LETTER? 19 A NO, AND I NOW UNDERSTAND WHY. 20 Q HAD YOU SPOKEN TO ANYONE AT THE COURT REGARDING THE 21 LETTER YOU SENT TO JUDGE WHYTE? 22 A YES, I DID. IT WOULD HAVE BEEN ON THE 29TH. THERE 23 WAS A HEARING BEFORE JUDGE WHYTE ON GRADY WARD'S CASE, AND I 24 ASKED THE -- I ASKED HIS CLERK ABOUT THE LETTER, AND THE LETTER 25 ITSELF PROMISES, WITHIN THE LETTER, PROMISES THAT I WOULD, Page 475 1 FRIDAY I WILL PROVIDE TO YOU A LETTER FROM MR. ARNIE LERMA, FROM 2 MR. ARNIE LERMA ABOUT THE STOCKS BELONGING TO MR. LERMA IN A 3 RELATED CASE. 4 AND I PRINTED THAT LETTER OUT, WHICH IF I REMEMBER 5 CORRECTLY WAS QUITE A PAIN BECAUSE IT DIDN'T COME THROUGH VERY 6 WELL, AND I GAVE THAT LETTER TO THE JUDGE'S CLERK. 7 AND I ALSO ASKED HER IF THE JUDGE HAD READ MY 8 LETTER, AND I DIDN'T GET A DEFINITIVE ANSWER ON THAT, BUT THE 9 ONLY THING I DID GET FROM THE CLERK WAS THE OBVIOUS OBSERVATION 10 THAT I WAS NOT A PARTY TO THE CASE. 11 Q NOW, FROM BEING TOLD THAT YOU WEREN'T A PARTY TO THE 12 CASE, DID YOU FORM ANY CONCLUSION IN YOUR OWN MIND AS TO WHETHER 13 THE JUDGE'S INJUNCTION APPLIED TO YOU? 14 A WELL, IT SAYS ON THE VERY FIRST -- RIGHT AFTER IT 15 SAYS SHELLEY THOMSON POSTED, AFTER TALKING TO THE COURT TODAY, I 16 FEEL SAFE IN POSTING THIS LETTER, BECAUSE I WAS NOT IDENTIFIED 17 AS A PARTY TO THE ACTION. 18 Q AND ON MARCH 30, 1996, WAS IT YOUR STATE OF MIND 19 THAT IF THE COURT HAD DISAGREED WITH YOUR POSITION, YOU WOULD 20 HAVE HEARD FROM THE COURT? 21 A I FULLY ADMIT THAT I WAS WRONG IN THAT OPINION AT 22 THE TIME, BUT THAT WAS MY OPINION AT THE TIME. WHAT CAN I SAY? 23 I'M WRONG. 24 Q SO YOU HAD PROVIDED THE COURT WITH NOTS 34 IN THE 25 ERRONEOUS BELIEF THAT IF YOU COULDN'T POST IT, YOU WOULD BE Page 476 1 HEARING FROM THE COURT TELLING YOU THAT; CORRECT? 2 MR. ROSEN: YOUR HONOR, I THINK WE'RE GETTING TO THE 3 POINT -- 4 THE COURT: WELL -- 5 MR. ROSEN: LEADING QUESTIONS. 6 THE COURT: I THINK IT'S LEADING, SO I'LL SUSTAIN 7 IT. 8 BY MR. BERRY: 9 Q ON MARCH 30, 1996, NOT HAVING RECEIVED A RESPONSE 10 FROM JUDGE WHYTE -- 11 MR. ROSEN: OBJECTION, MISSTATES THE TESTIMONY. THE 12 WITNESS JUST SAID HE GOT A RESPONSE FROM YOUR LAW CLERK ON MARCH 13 29TH. 14 THE COURT: I DON'T THINK THAT'S WHAT HE -- I THINK 15 YOU SAID LAW CLERK. I DON'T THINK HE SAID LAW CLERK. THERE'S A 16 DISTINCTION BETWEEN THE TWO. 17 MR. ROSEN: CLERK. 18 THE COURT: CLERK. 19 MR. ROSEN: I'M SORRY. CLERK. 20 BY MR. BERRY: 21 Q ON MARCH 30, 1996, HAVING SPOKEN TO THE COURT CLERK, 22 NOT HAVING RECEIVED AN ACTUAL RESPONSE FROM JUDGE WHYTE, DID YOU 23 REACH A CONCLUSION IN YOUR OWN MIND AS TO WHETHER OR NOT YOU 24 COULD POST NOTS 34 TO THE INTERNET? 25 A YES, I DID. Page 477 1 Q AND WHAT WAS THAT CONCLUSION? 2 A MY CONCLUSION WAS THAT IT, IT LOOKED LIKE I COULD 3 SAFELY POST IT TO THE INTERNET UNDER MY OWN NAME, POINTING OUT 4 WHAT IT WAS ABOUT. 5 Q NOW, TURNING YOUR ATTENTION -- SORRY, WITHDRAWN. 6 BETWEEN JANUARY 11, 1995, AND MARCH 30, 1996, HAD 7 YOU ENCOUNTERED NOTS 34 ON THE INTERNET? 8 A YES, I HAD. 9 Q ON ABOUT HOW MANY OCCASIONS? 10 A OH, 20 MAYBE. 11 Q AND HAD YOU BECOME AWARE OF ANYONE BEING SUED FOR 12 POSTING NOTS 34? 13 MR. ROSEN: OBJECTION. WHAT RELEVANCE DOES THAT 14 HAVE TO THIS CASE? 15 MR. BERRY: TO HIS STATE OF MIND, YOUR HONOR. 16 THE COURT: I THINK IT ARGUABLY GOES TO HIS STATE OF 17 MINUTE. I'LL ALLOW IT. 18 THE WITNESS: I DON'T BELIEVE THAT ANYONE HAD BEEN 19 SUED DURING THAT TIME, WITH THE EXCEPTION OF GRADY WARD. THERE 20 WERE CERTAINLY OTHER LAWSUITS GOING AT THAT TIME -- 21 BY MR. BERRY: 22 Q AND HAD -- 23 A -- OVER OTHER MATERIALS. 24 Q AND DURING YOUR VIEW OF NOTS 34 DURING THAT 25 INTERVENING 14 MONTHS, HAD YOU FORMED ANY CONCLUSIONS IN YOUR Page 478 1 OWN MIND REGARDING THE NATURE OF NOTS 34? 2 A ACTUALLY, NOT. MY -- I HAD -- I HAD OBVIOUSLY SEEN 3 IT, COME ACROSS IT A NUMBER OF TIMES, AND IT HAD NOT MADE ANY 4 SENSE TO ME WITHOUT THE EXTENSIVE CONTEXT THAT YOU NEED TO 5 UNDERSTAND A DOCUMENT LIKE THIS. 6 AND SO MY ACTUAL -- MY ACTUAL POINT AT WHICH I 7 UNDERSTOOD WHAT IT WAS ABOUT WAS ACTUALLY PROBABLY ON THE 20, 8 SOMEWHERE AFTER THE 20TH, BECAUSE I DON'T THINK I -- I THINK I 9 WROTE THIS LETTER OVER MAYBE ONE OR TWO DAYS. 10 SO THE GRADY WARD T.R.O. HAD BEEN POSTED, I WENT 11 LOOKING FOR THE VARIOUS THINGS WHICH WERE ON IT TO SEE WHAT THEY 12 WERE ABOUT, AND I LOOKED AT IT AT THAT POINT. ALTHOUGH I HAD 13 SEEN IT BEFORE, IT HAD JUST GONE BY ON MY SCREEN AND I HAD NEVER 14 REALLY PAID MUCH ATTENTION TO IT. 15 Q AND REFERRING TO PARAGRAPH TWO OF YOUR LETTER, 16 EXHIBIT, DEFENDANT'S EXHIBIT A, THE SECOND PARAGRAPH ON THE 17 SECOND PAGE, NOTS 34 WAS THE FIRST DOCUMENT THAT TURNED UP? 18 A YES, IT WAS. 19 Q AND YOU SAID THAT IT DIDN'T MAKE ANY SENSE DURING 20 THE PRECEDING YEAR OR SO THAT YOU HAD BECOME FAMILIAR WITH IT ON 21 THE INTERNET. COULD YOU BRIEFLY EXPLAIN WHY THAT WAS? 22 A WELL, THERE'S A LOT OF STUFF IN HERE THAT DOESN'T 23 MAKE A LOT OF SENSE. I MEAN, BLOW ALL THESE OFF, FOR EXAMPLE. 24 WHAT ON EARTH WOULD THAT MEAN? HANDLE ALL SUCH BT'S AND 25 CLUSTERS BY BLOWING THEM OFF? Page 479 1 IT WASN'T UNTIL I HAD READ OT III AND A BUNCH OF 2 OTHER PEOPLE'S EXPLANATION OF THIS MATERIAL THAT I HAD ANY IDEA 3 OF WHAT, OF WHAT IT WAS. I PROBABLY COULD HAVE UNDERSTOOD NOTS 4 34 A LOT EARLIER THAN I DID, PERHAPS SIX OR EIGHT MONTHS 5 EARLIER. BUT LIKE I SAY, I WAS NOT INSPIRED TO DO SO UNTIL THE 6 GRADY WARD T.R.O. 7 Q AND WHY DID THAT INSPIRE YOU TO DO SO? 8 A WELL, I BECAME CURIOUS. ALTHOUGH IN ACTUALITY, THE 9 SAME MATERIAL HAD BEEN ENJOINED IN THE ERLICH CASE AND I 10 PROBABLY HAD SEEN IT MUCH, MUCH -- WELL, I KNOW I HAD SEEN IT AT 11 LEAST IN APRIL OF '95, BUT AT THAT POINT, IT DIDN'T MAKE A LOT 12 OF SENSE. 13 BUT THE REASON I WAS INSPIRED WAS BECAUSE HERE WAS 14 SOMEBODY WHO, TO THE BEST OF MY KNOWLEDGE, WAS -- THE ONLY THING 15 THAT HE'D BEEN DOING WAS FAIRLY VICIOUS CRITICISM OF 16 SCIENTOLOGY, AND HERE HE WAS BEING SUED FOR AN AMOUNT FOR -- 17 MR. ROSEN: OBJECTION, YOUR HONOR. THIS IS THE WARD 18 CASE THAT THE WITNESS IS TESTIFYING TO NOW? 19 THE COURT: WHAT'S THE RELEVANCE OF THAT? 20 MR. BERRY: THE -- WHAT LED HIM TO POST IT, YOUR 21 HONOR. AND I THINK IT'S PROBABLY ON HERE THAT HE FELT IT 22 CONSTRAINED HIS FIRST AMENDMENT. 23 THE COURT: WELL, LET'S LET HIM TESTIFY, NOT YOU. 24 I'LL ALLOW THE QUESTION. 25 GO AHEAD. Page 480 1 BY MR. BERRY: 2 Q DID YOU POST -- DID YOU HAVE ANY INTENTION OF MAKING 3 MONEY FROM POSTING NOTS 34? 4 A NO. 5 Q DID YOU HAVE ANY INTENTION OF USING NOTS 34 AS PART 6 OF SCIENTOLOGY PROCESSING ON YOUR OWN? 7 A DEFINITELY NOT. 8 Q WHAT WAS YOUR INTENT IN POSTING NOTS 34 ON MARCH 30, 9 1996? 10 A IT'S PRETTY MUCH WRITTEN INTO IT. IT WAS A 11 QUESTION, "WAS IT YOUR INTENT," SPEAKING TO JUDGE WHYTE, "FOR 12 THIS ORDER TO APPLY TO RANDOM PERSONS ON THE INTERNET SUCH AS 13 MYSELF?" 14 AND THEN, "IF SO, I BELIEVE THE T.R.O. IS A 15 VIOLATION OF MY FIRST AMENDMENT RIGHTS TO DISCUSS THE CRIMINAL 16 ACTIVITIES OF THE CULT OF SCIENTOLOGY." 17 Q NOW, AS OF MARCH 30, 1996, YOU HAD BEGUN TO 18 UNDERSTAND WHAT NOTS 34 WAS ALL ABOUT? IS THAT FAIR TO SAY? 19 A ABSOLUTELY. 20 Q LET'S TURN NOW TO NOTS 34 AS CONTAINED IN YOUR 21 LETTER, DEFENDANT'S EXHIBIT A. AND IT STARTS OFF, "HUBBORD 22 COMMUNICATIONS OFFICE, SAINT HILL MANOR. 23 DID YOU HAVE ANY UNDERSTANDING AS TO WHAT HUBBORD 24 COMMUNICATIONS OFFICE AT SAINT HILL MANOR WAS? 25 A OH, YES. Page 481 1 Q AND WHAT WAS THAT UNDERSTANDING? 2 MR. ROSEN: CAN WE HAVE THE BASIS OF THIS 3 UNDERSTANDING, YOUR HONOR, AND AGAIN A LIMITING INSTRUCTION THAT 4 THIS IS NOT -- 5 THE COURT: OBVIOUSLY HIS UNDERSTANDING OF THIS NOTS 6 34 AND INFORMATION ON IT, THERE'S NO FOUNDATION THAT HE HAS A 7 BASIS FOR KNOWING THAT. 8 AS A MATTER OF FACT, THE QUESTION IS, WHAT 9 INFORMATION HAD HE BEEN PROVIDED THAT LED HIM TO HAVE A GOOD 10 FAITH AND REASONABLE BELIEF TO WHATEVER WAS IN HIS MIND AT THE 11 TIME OF THE POSTING? 12 LET ME SEE IF I CAN GIVE YOU AN EXAMPLE TO EXPLAIN 13 THAT FURTHER. IF YOUR CHILD CAME HOME FROM SCHOOL AND SAID -- 14 OR MAYBE I SHOULDN'T SAY YOUR CHILD, BECAUSE THAT KIND OF COLORS 15 IT A LITTLE BIT. 16 IF SOMEBODY COMES UP TO YOU ON THE STREET AND SAID, 17 "I SAW THE BANK ROBBED NEXT, TWO STREETS OVER," WELL, YOU COULD 18 CONSIDER THAT EVIDENCE FOR DETERMINING WHETHER THE PERSON THAT 19 HEARD THAT HAD A GOOD FAITH BELIEF THAT THE BANK TWO STREETS 20 OVER GOT ROBBED. 21 BUT THE PERSON WHO HEARD THAT COMMENT WOULD NOT BE 22 IN A POSITION TO TESTIFY AS TO WHETHER OR NOT, IN FACT, THE BANK 23 GOT ROBBED, BECAUSE ALL HE'S LEARNED IS WHAT SOMEBODY ELSE HAS 24 TOLD HIM. HE HAS NO PERSONAL KNOWLEDGE HIMSELF. 25 SO WHAT MR. HENSON IS TESTIFYING TO IS WHAT HE Page 482 1 LEARNED FROM OTHERS THAT, WHO APPARENTLY, ACCORDING TO HIM, TOLD 2 HIM CERTAIN THINGS, AND WHAT HE MAY HAVE READ THAT SOMEBODY 3 IDENTIFIED AS SOME DOCUMENTS RELATED TO SCIENTOLOGY. 4 WHETHER OR NOT, WHAT THOSE PERSONS TOLD HIM IS 5 ACCURATE OR NOT OR WHETHER WHAT HE READ WERE ACTUALLY 6 SCIENTOLOGY DOCUMENTS, YOU CANNOT CONSIDER HIS TESTIMONY FOR 7 THAT PURPOSE. 8 BY MR. BERRY: 9 Q NOW, ALL THESE QUESTIONS I'M GOING TO ASK YOU ARE AS 10 OF MARCH 30, 1996. 11 A UNDERSTOOD. 12 Q OKAY. WHAT WAS YOUR UNDERSTANDING IN CONNECTION 13 WITH HUBBORD COMMUNICATIONS OFFICE, SAINT HILL MANOR? 14 A IT WAS THE PLACE THAT HUBBORD WAS LIVING, OR AT 15 LEAST RUNNING THE BUSINESS THAT HE WAS RUNNING AT THAT, OR 16 RATHER, RUNNING SCIENTOLOGY OUT OF AT THAT POINT IN ENGLAND. 17 Q AND WHAT WAS YOUR UNDERSTANDING OF WHAT AN HCO 18 BULLETIN OF 14 NOVEMBER 1978 WAS? 19 A THESE THINGS ARE SPECIFIED BY DATES. THEY WERE 20 ACTUALLY PRODUCED OVER A PERIOD OF TIME AND DISTRIBUTED VERY 21 OFTEN BY TELEX AND OTHER KIND OF MEANS. THEY WERE SORT OF A 22 CONTINUOUS STREAM OF THIS MATERIAL WHICH CAME OUT OVER AN 23 EXTENDED PERIOD OF TIME, A COUPLE OR THREE YEARS. 24 AND THEY -- THEY'RE DATED AND THERE'S A BUNCH OF 25 STANDARD KINDS OF FORMAT ON THEM LIKE THIS. THIS IS ONE OF -- Page 483 1 THIS IS THE 34TH ONE IN THE SEQUENCE. 2 MOST OF THEM -- I'VE ACTUALLY HAVE SEEN ALL OF THEM 3 BY NOW, BUT MOST OF THEM -- 4 MR. ROSEN: YOUR HONOR, I'M GOING TO OBJECT TO 5 ANYTHING THAT THE WITNESS IS GOING TO GRATUITOUSLY OFFER AS TO 6 WHAT HE LEARNED AFTER NOVEMBER 30, EXCUSE ME, AFTER MARCH 30TH. 7 THE COURT: CONFINE YOUR ANSWER TO MARCH 30TH AND 8 BEFORE. 9 THE WITNESS: THIS IS 34 OUT OF ABOUT 50 OF THEM. 10 BY MR. BERRY: 11 Q IT ACTUALLY SAID NED FOR OTS, OTS SERIES 34; CORRECT? 12 A YEAH. THAT EXPANDED MEANS NEW ERA DIANETICS FOR 13 OPERATING THETANS. 14 Q WHAT IS AN OPERATING THETAN, ACCORDING TO YOUR 15 UNDERSTANDING? 16 A NOTHING. 17 Q WHAT IS YOUR UNDERSTANDING OF ITS MEANING IN 18 SCIENTOLOGY? 19 A OPERATING THETAN IS A LEVEL SO, WHEN YOU REACH IT, 20 YOU'RE SUPPOSED TO HAVE VARIOUS POWERS. 21 Q AND ON THE BASIS OF YOUR UNDERSTANDING, WHAT IS A 22 THETAN IN SCIENTOLOGY? 23 MR. ROSEN: YOUR HONOR, I'M GOING TO OBJECT TO THIS. 24 THIS HAS NOTHING TO DO WITH THE ISSUE OF WHETHER NOTS 34 IS A, 25 AS THE WITNESS HAS NOW -- Page 484 1 THE COURT: LET'S CONFINE THE QUESTIONS TO WHAT IN 2 THIS, IF ANYTHING, HE BELIEVED AT THE TIME HE POSTED IT WAS 3 ILLEGAL OR UNAUTHORIZED PRACTICE OF MEDICINE. 4 MR. BERRY: I'D SUBMIT IT'S FOUNDATIONAL, YOUR 5 HONOR, BUT I'LL MOVE ON. 6 Q ON THE LEFT OF THIS DOCUMENT DATED 14 NOVEMBER 1978, 7 THERE'S THREE LINES. DO YOU SEE THAT? 8 A YES. 9 Q DO YOU HAVE ANY UNDERSTANDING AS TO WHAT THOSE THREE 10 LINES MEANT? 11 A I CANNOT SWEAR TO THAT. IT WAS OBVIOUSLY ADDRESSED 12 TO VARIOUS PEOPLE BY CATEGORIES IN VARIOUS ORGANIZATIONS. THERE 13 WERE A NUMBER OF ORGANIZATIONS, A NUMBER OF PLACES WHERE THIS 14 MATERIAL WAS MADE AVAILABLE TO MEMBERS OF SCIENTOLOGY. 15 Q AND THERE'S A REFERENCE TO AUDITORS IN THAT GROUP 16 OF, THAT THREE LINES THERE? 17 A YES. 18 Q WHEN YOU READ IT, DID YOU REACH ANY CONCLUSION AS TO 19 WHAT THAT MEANT? 20 A WELL, IT WAS OBVIOUSLY ADDRESSED TO AUDITORS THAT 21 HAD A CERTAIN FAIRLY HIGH LEVEL IN THIS, IN THIS BUSINESS. 22 Q NOW, UNDERNEATH "NED FOR OTS SERIES 34" ARE THE 23 WORDS "THE SEQUENCE FOR HANDLING A PHYSICAL CONDITION." 24 A THAT'S RIGHT. 25 Q DID THAT -- DID THOSE WORDS LEAD YOU TO A Page 485 1 CONCLUSION? 2 MR. ROSEN: OBJECTION, YOUR HONOR. THIS IS LEADING. 3 THE WITNESS: YES. 4 THE COURT: I DON'T THINK THAT QUESTION IS 5 OBJECTIONABLE ON THE BASIS OF LEADING. THERE'S A FINE LINE ON 6 THAT ISSUE, BUT I THINK IT'S JUST DIRECTING HIM TO PARTICULAR 7 LANGUAGE. 8 GO AHEAD. BUT -- YEAH, GO AHEAD. 9 THE WITNESS: REPEAT ON THERE WHAT -- 10 BY MR. BERRY: 11 Q HAVING READ THOSE WORDS, DID YOU REACH A CONCLUSION? 12 A NOT JUST FROM THE WORDS, ALTHOUGH YOU HAVE TO KIND 13 OF HAVE A LITTLE BIT OF A FEELING FOR THE SPECIFIC WORD FOR 14 HANDLING, FOR EXAMPLE. 15 MANY, MANY THINGS IN SCIENTOLOGY HAVE TO BE HANDLED, 16 AND IT'S A WORD OF GREAT IMPORTANCE FOR THEM. YOU HAVE TO -- IT 17 IMPLIES THAT YOU HAVE TO DEAL WITH SOMETHING. 18 Q SO AS -- WELL, ALL THESE QUESTIONS ARE AS OF MARCH 19 30, 1996. 20 SO WHAT WAS YOUR UNDERSTANDING OF THE WORD 21 "HANDLING" AS IT APPLIED IN SCIENTOLOGY? 22 MR. ROSEN: YOUR HONOR, I OBJECT. I THOUGHT THE -- 23 THE COURT: WE'VE GOT TO HAVE SOME BASIS FOR WHERE 24 THIS COMES FROM. WHAT HE JUST READ AND UNDERSTOOD -- 25 MR. BERRY: WELL, LET ME TRY AND SHORTCUT THIS, YOUR Page 486 1 HONOR. 2 MR. ROSEN: YOUR HONOR, MY OBJECTION WENT TO AN 3 ADDITIONAL POINT. THE RULING YOU MADE A FEW MOMENTS AGO, AND 4 THAT IS WHAT IS THERE IN THIS DOCUMENT THAT MR. HENSON BELIEVED 5 WAS ILLEGAL? 6 MR. BERRY: WELL, WE'RE GETTING TO THAT, COUNSEL. 7 THE COURT: WELL, ADDRESS ME, PLEASE, NOT EACH 8 OTHER. 9 I WOULD LIKE TO FOCUS ON THAT ISSUE, BECAUSE I THINK 10 THAT'S ONE OF THE ISSUES THAT YOU RAISED IN THIS CASE, AND I 11 DON'T WANT TO GET SIDETRACKED INTO CONSIDERING OTHER ASPECTS OF 12 SCIENTOLOGY THAT DON'T HAVE ANY RELATIONSHIP TO WHAT'S AT ISSUE 13 IN YOUR MIND WITH RESPECT TO NOTS 34. 14 MR. BERRY: WELL, YOUR HONOR, WITH ALL DUE RESPECT, 15 IT'S -- I NEED TO GO SEQUENTIALLY IN ORDER TO BRING OUT THE -- 16 THE COURT: ALL RIGHT. GO AHEAD, BUT JUST KEEP THE 17 FOCUS, PLEASE. 18 BY MR. BERRY: 19 Q IN CONNECTION WITH YOUR KNOWLEDGE ON MARCH 30, 1996, 20 WHERE HAD YOU ACQUIRED THAT KNOWLEDGE REGARDING NOTS 34? 21 A WELL, FROM READING THOUSANDS OF POSTINGS ON THE NET, 22 WHICH GOT YOU INTO THE JARGON OF SCIENTOLOGY, "HANDLE" AND 23 "FULLY HANDLE" AND THOSE ARE THE KINDS OF WORDS. 24 BUT YOU CAN'T REALLY READ THIS THING A BIT AT A TIME 25 AND REALLY -- I DON'T BELIEVE YOU CAN READ IT BIT AT A TIME AND Page 487 1 UNDERSTAND IT VERY WELL. IT'S A GESTALT, IF YOU WILL. 2 Q AND WHAT IS A GESTALT? 3 A IT'S A -- IT'S AN OVERALL UNDERSTANDING OF WHAT'S 4 INVOLVED HERE. 5 Q AND FROM THE OVERALL DOCUMENT, DID YOU REACH A 6 CONCLUSION AS TO WHAT ITS PURPOSE AND FUNCTION WAS? 7 A YES. 8 Q AND WHAT WAS THAT CONCLUSION? 9 A WELL, IN THE INTERVENING TIME, IN FACT, SHORTLY 10 BEFORE THAT, I HAD READ THE GESELL, JUDGE GESELL'S DECISION ON 11 THIS, AND IT DAWNED ON ME THAT I HAD A SMOKING GUN, BECAUSE THIS 12 IS THE SEQUENCE FOR HANDLING A PHYSICAL CONDITION. AND THEN 13 IT'S, YOU KNOW, FOR HANDLING, "ALL STEPS MUST BE DONE IN THE 14 SEQUENCE TO FULLY HANDLE THE CONDITION." 15 A LOT OF THIS IS JUST REDUNDANT IN THE STYLE OF THE 16 AUTHOR, BUT YOU START READING DOWN INTO CURES FOR ILLNESS, AND 17 PROTESTS FOR CURES OF THE ILLNESS, THE BODY PARTS, SUCH LIKE 18 THAT, THE ITEM PRODUCING THE PHYSICAL CONDITION, DUST AND 19 IRRITANTS, THE ITEM IS HANDED BY FINDING AND BLOWING OFF BTS AND 20 CLUSTERS. 21 ALL OF A SUDDEN, BLOWING OFF BT'S AND CLUSTERS IS A 22 PROCEDURE WHICH YOU REALLY NEED TO UNDERSTAND WITHIN THE CONTEXT 23 OF AUDITING, AND NOT JUST DIANETICS KIND OF AUDITING WHERE 24 THEY'RE TRYING TO GET RID OF THE REACTIVE MIND, BUT YOU HAVE TO 25 UNDERSTAND IT IN THE CONTEXT OF OT III AND ABOVE WHERE YOU'RE Page 488 1 DEALING WITH, IF YOU WILL, INFESTATIONS OF SPACE COOTIES. 2 MR. ROSEN: YOUR HONOR, I MOVE TO STRIKE THAT. THIS 3 IS BECOMING -- 4 THE COURT: WHAT TROUBLES ME IS I WANT TO KNOW -- I 5 WANT YOU TO POINT OUT SPECIFICALLY WHAT IT IS THAT HE SAW OR 6 READ OR HEARD ON THE INTERNET THAT CAUSED HIM TO COME TO 7 SPECIFIC CONCLUSIONS. THE FACT THAT HE MAY -- 8 MR. BERRY: OKAY. 9 THE COURT: THAT'S WHAT WE NEED TO KNOW. 10 MR. BERRY: OKAY. 11 THE COURT: WHETHER OR NOT THERE WAS A REASONABLE 12 BELIEF ON HIS PART AT THE TIME HE POSTED AND WHAT THAT 13 REASONABLE BELIEF WAS AND HOW THAT AFFECTED HIS BELIEF AS TO 14 WHETHER THERE WAS A DEFENSE TO COPYRIGHT INFRINGEMENT. 15 BY MR. BERRY: 16 Q WHAT HAD YOU LEARNED ABOUT BT'S AND CLUSTERS? 17 MR. ROSEN: OBJECTION. 18 THE COURT: LEGAL BASIS? 19 MR. ROSEN: OBJECTION, NOT ONLY NOT LIMITED TO MARCH 20 30TH, BUT ALSO WHAT IS IT ABOUT THIS DOCUMENT WHICH THE WITNESS 21 THINKS IS ILLEGAL? 22 THE COURT: ALL RIGHT. 23 MR. BERRY: FIRST OF ALL -- 24 THE COURT: I WOULD ASK YOU TO CONFINE THE QUESTION 25 TO BEFORE MARCH 30TH, 1996. I'M ASSUMING THAT YOU'RE GOING TO Page 489 1 TIE THAT UP. I'LL ALLOW THE QUESTION. 2 MR. BERRY: AND BY WAY OF EXPLANATION, YOUR HONOR, 3 WE HAVE ALREADY ESTABLISHED -- 4 THE COURT: LET'S NOT HAVE AN EXPLANATION. LET'S 5 HEAR FROM THE WITNESS. 6 MR. BERRY: -- ALL QUESTIONS ARE BEFORE MARCH 30. 7 Q SO ONCE AGAIN, ALL YOUR ANSWERS ARE TO BE PRIOR TO 8 MARCH 30, 1996. 9 A WELL, I OBVIOUSLY HAD A FAIR DEGREE OF UNDERSTANDING 10 OF THE DOCUMENT, BECAUSE IF YOU GO THROUGH TO THE END OF THE 11 THING, YOU READ THAT, "PLEASE NOTE THAT POINT 4 STATES THAT THIS 12 PROCESS OF 'BLOWING BT'S' CURES ILLNESS. 13 THE PHRASES 'CEASE TO READ' AND 'NO LONGER READ' 14 REFER TO 'AUDITING' WITH AN E-METER. THE 'CHURCH' 15 OF SCIENTOLOGY IS UNDER COURT ORDER STEMMING FROM 16 F.D.A. ACTIONS IN THE EARLY 1970'S," ACTUALLY, IT 17 WOULD HAVE BEEN LATE 19 -- OR LATE '60'S OR EARLY '70'S, 18 "AGAINST MAKING SUCH CLAIMS INVOLVING THE USE OF 19 E-METERS. THIS BULLETIN (ASSUMING IT IS REAL) IS 20 WRITTEN EVIDENCE OF A LEVEL OF CONTEMPT THE 'CHURCH' 21 OF SCIENTOLOGY HAS FOR THE COURTS." 22 AND I HAD AN UNDERSTANDING OF THE MATERIAL WHICH WAS 23 IN HERE, IN THIS, THAT THIS WAS USED AND IT HAD, IT HAD, OF 24 COURSE, DAWNED ON ME AS WELL THAT ALTHOUGH I CAN'T GET INTO IT, 25 I HAD OTHER EVIDENCE AVAILABLE THAT -- Page 490 1 MR. ROSEN: I OBJECT, YOUR HONOR. 2 THE COURT: SUSTAINED. LET'S NOT GET INTO THINGS 3 THAT YOU'RE NOT SUPPOSED TO GET INTO IF, IN YOUR MIND, YOU'VE 4 BEEN INSTRUCTED NOT TO GET INTO. 5 THE WITNESS: I HAD EXTREMELY GOOD REASON TO BELIEVE 6 THAT THIS MATERIAL COULD BE LETHAL. 7 MR. ROSEN: YOUR HONOR, I MOVE TO STRIKE THIS. 8 THE COURT: WELL, THE QUESTION IS, AGAIN, WHAT IT IS 9 IN NOTS 34 THAT REFLECTED THE ILLEGAL PRACTICE OF MEDICINE. 10 AND AGAIN, THAT'S NOT THE ULTIMATE ISSUE. THE 11 ULTIMATE ISSUE IS, EVEN IF IT WERE, DOES THAT IN SOME WAY 12 PROVIDE A DEFENSE IF HE UNDERSTOOD THAT THE MATERIAL WAS 13 COPYRIGHTED OR WAS IN RECKLESS DISREGARD OF A COPYRIGHT? 14 MR. BERRY: I'M GOING TO HANDLE THAT AREA WHEN THE 15 COURTROOM, WHEN THE PUBLIC COMES BACK. 16 Q BUT WHAT IS IT IN THIS DOCUMENT THAT LED YOU TO 17 BELIEVE THAT IT INVOLVED THE USE OF THE E-METER? 18 A THE WORDS IN THERE HANDLE ALL SUCH BT'S AND CLUSTERS 19 BY BLOWING THEM OFF. THERE'S MANY OTHER PLACES IN HERE THAT IT 20 DOES -- 21 Q LET'S TAKE THEM ONE BY ONE. LET'S GO THROUGH THE 22 ENTIRE DOCUMENT, NOTS 34, AND POINT OUT EACH REFERENCE THAT YOU 23 REFERRED WAS TO THE AUDITING PROCESS AND THE E-METER. 24 A THE -- WELL -- 25 Q EXPLAINING, IF YOU WISH, HOW YOU CONCLUDED THAT. Page 491 1 A IN STEP ONE, FOR EXAMPLE, THE ITEMS HANDLED BY 2 FINDING AND BLOWING OFF BT'S IN CLUSTER, WHO ARE BEING THE ITEM, 3 RESISTING THE ITEM, THE ITEM WILL THEN CEASE TO READ. READING 4 IS SOMETHING WHICH REFERS DIRECTLY TO THE E-METER. 5 Q AND WHAT WAS YOUR KNOWLEDGE IN THAT REGARD? 6 A THE E-METER WAS USED IN THIS PARTICULAR CASE. 7 Q AND WHAT IS IT ABOUT CEASE TO READ THAT CONNECTS 8 THAT PHRASE TO THE E-METER? 9 A IT IS A PROCESS WHEREBY TYPICALLY SOMETHING IS 10 REPEATED AND MANY, MANY TIMES UNTIL THE PERSON QUITS FLINCHING 11 AND GRABBING AND TENSING UP ON THE CANS WHEN THEY'RE READING IT. 12 THAT'S WHAT IT MEANS. 13 IT MEANS BASICALLY THAT, FOR EXAMPLE, YOU COULD -- 14 IF IT WERE A POLYGRAPH, IT WOULD MEAN THAT YOU COULD TELL A LIE 15 WITHOUT IT SHOWING ON THE POLYGRAPH. 16 Q IS THERE SOMETHING ON THE E-METER THAT YOU WERE 17 AWARE OF THAT SOMEONE CAN READ? 18 MR. ROSEN: YOUR HONOR, THERE'S NO FOUNDATION THAT 19 THIS WITNESS EVER EVEN SAW AN E-METER. 20 THE COURT: YOU CAN ASK THAT ON CROSS EXAMINATION, 21 BUT I DO THINK THE QUESTION AS TO WHERE HE GOT HIS UNDERSTANDING 22 WOULD BE HELPFUL. 23 BY MR. BERRY: 24 Q HOW DID -- 25 I THOUGHT WE'VE BEEN THROUGH THIS, YOUR HONOR. Page 492 1 WHERE DID YOU ACQUIRE YOUR UNDERSTANDING IN 2 CONNECTION WITH NOTS 34 BEING THE UNLAWFUL PRACTICE OF 3 MEDICINE? 4 A WELL, THAT I ACQUIRED ALMOST EXCLUSIVELY OUT OF NOTS 5 34 ITSELF. BUT THE UNDERSTANDING OF THIS MATERIAL WAS FROM 6 THOUSANDS OF OTHER POSTINGS. 7 Q AND WHERE DID YOU OBTAIN YOUR UNDERSTANDING ABOUT 8 THE NATURE AND FUNCTION OF THE E-METER? 9 A THERE WERE HUNDREDS OF DISCUSSIONS AND DESCRIPTIONS 10 OF THE E-METER, INCLUDING WITH PEOPLE SUCH AS KEN LONG, WHO 11 INSISTED THAT THOUGHTS HAD MASS AND OTHER KIND OF THINGS. I 12 ENGAGED IN MANY OF THOSE DISCUSSIONS OVER AN EXTENDED PERIOD OF 13 TIME. 14 THE COURT: THIS WAS PRIOR TO MARCH 30TH? 15 THE WITNESS: WAY PRIOR. 16 BY MR. BERRY: 17 Q WHY IS KEN LONG'S NAME SIGNIFICANT TO YOU? 18 A HE WAS ONE OF THE -- THIS IS NOT THE KEN LONG WE 19 HAVE HERE. THIS IS ANOTHER KEN LONG THAT WAS ON ALT.RELIGION 20 SCIENTOLOGY IN THE EARLY DAYS. 21 AND THERE WERE QUITE EXTENDED DISCUSSIONS OF 22 E-METERS AND HOW THEY WORKED AND KEN LONG'S GRIPES WITH 23 SCIENTOLOGY. 24 Q WELL, WHAT IS IT ABOUT BLOWING OFF BT'S AND CLUSTERS 25 THAT, IN YOUR MIND, INVOLVES THE E-METER? Page 493 1 A THAT'S -- THAT'S -- THERE IS EXTENSIVE DESCRIPTION 2 OF THIS MATERIAL ON ALT.RELIGION SCIENTOLOGY. THERE WAS VAST 3 AMOUNTS OF MATERIAL ABOUT THESE PROCESSES, THESE AUDITING 4 PROCESSES, IF YOU WILL, OF GETTING RID OF THE BODY THETANS AND 5 SUCH THINGS. 6 Q DID YOU HAVE AN UNDERSTANDING OF BODY THETANS? 7 A YES. 8 Q WHAT WAS THAT UNDERSTANDING? 9 MR. ROSEN: OBJECTION, YOUR HONOR. UNLESS IT GOES 10 TO THE ILLEGALITY, OR ALLEGED ILLEGALITY, THAT THIS WITNESS 11 PERCEIVED OF NOTS 34, IT'S NOT RELEVANT. 12 THE COURT: OVERRULED. 13 GO AHEAD. 14 THE WITNESS: I CAN'T REALLY GET INTO BODY THETANS 15 WITHOUT EXPLAINING THEIR ORIGIN. 16 THE COURT: I THINK YOU CAN IF IT HAS SOMETHING TO 17 DO WITH THE PROCESS THAT YOU THINK IS DESCRIBED IN NOTS 34 THAT 18 IS THE ILLEGAL PRACTICE OF MEDICINE IN YOUR MIND. 19 THE WITNESS: OKAY. BODY THETANS ARE, IF YOU WILL, 20 PARASITIC SPIRITS FROM AN EVENT 75 MILLION YEARS AGO THAT 21 SCIENTOLOGISTS BELIEVE IN. 22 AND THE POINT TO THESE BODY THETANS AND THE REASON 23 THAT THEY ARE RELATED TO NOTS 34 IS THAT SCIENTOLOGISTS, IN 24 GENERAL, IT IS MY UNDERSTANDING THAT SCIENTOLOGISTS BELIEVE THAT 25 THEIR PROBLEMS, MEDICAL AND PSYCHOLOGICAL, ARE ALL THE RESULTS Page 494 1 OF INCIDENTS WHICH OCCURRED IN THE REMOTE PAST. 2 MR. ROSEN: YOUR HONOR, I'M GOING TO OBJECT TO THIS. 3 IT HAS NOTHING TO DO WITH ILLEGALITY. THE WITNESS IS -- 4 THE COURT: ALL RIGHT, YOU'VE MADE YOUR OBJECTION. 5 THE OBJECTION IS OVERRULED. IT HAS TO DO WITH HIS 6 STATE OF MIND, PLUS THE ISSUE OF THIS CASE IS STATUTORY DAMAGES, 7 AND I THINK HIS REASONS FOR POSTING HAVE SOME RELEVANCE TO THAT 8 CONSIDERATION. 9 GO AHEAD. 10 THE WITNESS: UNDER ANY CIRCUMSTANCES, I HAD A -- I 11 HAD AN UNDERSTANDING OF THIS MATERIAL AS TO WHAT IT WAS, WHAT 12 THEY WERE DOING. 13 THESE ARE PEOPLE -- THE PEOPLE THAT THIS WAS BEING 14 APPLIED TO ARE PEOPLE WHO ARE CONVINCED THAT THEY ARE, IF YOU 15 WILL, INFESTED WITH LARGE NUMBERS OF THESE PARASITIC SPIRITS, 16 AND THE PROCESS OF BLOWING OFF, AND SUCH THINGS, IS GETTING IN 17 CONTACT WITH THESE SPIRITS TELEPATHICALLY AND CONVINCING THEM TO 18 LEAVE. 19 IT ISN'T -- IT WOULD BE VERY FAMILIAR, A FAMILIAR 20 TERM WOULD BE EXORCISING IN THE CHRISTIAN TRADITION. 21 Q TURN YOUR ATTENTION TO STEPS TWO, THREE, FOUR, FIVE 22 AND BEYOND. WHAT IS IT ABOUT THOSE STEPS, THE E-METER, THE BODY 23 THETANS, THAT LED YOU TO CONCLUSION THAT THIS DOCUMENT DEALS 24 WITH THE PRACTICE OF MEDICINE? 25 THE COURT: ALL RIGHT. LET'S REPHRASE THE QUESTION. Page 495 1 IF THE STEPS THAT YOU'RE LOOKING AT ARE THE SAME ONES I'M 2 LOOKING AT, THEY DO NOT SPECIFICALLY USE THE TERM E-METER. ARE 3 YOU ASKING HIM WHAT ABOUT STEPS ONE THROUGH EIGHT? 4 MR. BERRY: YES. 5 THE COURT: OKAY. 6 BY MR. BERRY: 7 Q WHAT STATES THAT THE E-METER IS BEING USED IN 8 CONNECTION WITH PRACTICE OF MEDICINE OR THE CURING OF PHYSICAL 9 AILMENTS? 10 THE COURT: IF ANYTHING. 11 THE WITNESS: WELL, FOR EXAMPLE, TAKE STEP, THE TOP 12 OF THE SECOND PAGE. HANDLE BT'S, BEING THE BODY PART, HANDLE 13 BT'S ESSENTIALLY MEANS WITH AN E-METER. IN THESE AUDITING 14 SESSIONS, GET IN CONTACT WITH, AND WHICH THE CONTACT WITH IS, 15 MEANS THAT WHEN THEY ASK QUESTIONS ABOUT THESE, ABOUT THESE BODY 16 THETANS, THESE SPIRITS, THIS STUFF. IT MEANS THAT WHEN YOU GET 17 IN CONTACT WITH THESE, YOU THEN CONVINCE THEM TO WAKE UP AND 18 LEAVE. 19 AND SO LET'S SEE. AGAIN, THE NEXT LINE DOWN 20 INCLUDES THE NEGATIVE OF BT'S BEING NO BODY PART. THAT ONE 21 MYSTIFIES ME TO SOME EXTENT. 22 BT'S STUCK IN AND ON THE BODY PART, AREA OF THE 23 BODY. FOR EXAMPLE, IN ANOTHER ONE, WHICH I HAD READ ABOUT THE 24 SAME TIME, THAT'S -- THAT IS EXPLAINED. AFFECTING THE BODY PART 25 OR AREA. Page 496 1 IN OTHER WORDS, IF YOU HAVE PAIN IN AN AREA, IT'S 2 BECAUSE THERE'S BODY THETANS STUCK THERE. 3 AND SO THE POINT OF ALL THIS IS TO GET 4 TELEPATHICALLY IN CONTACT WITH THESE, WITH THESE BODY THETANS 5 AND CONVINCE THEM THAT IT'S TIME FOR THEM TO BLOW, OR TO LEAVE. 6 WHEN YOU HAVE MANAGED TO DO THIS, THE LAST PART OF 7 THIS ONE, ALL SUCH BODY THETANS AND CLUSTERS ARE HANDLED. THIS 8 IS "HANDLED" MEANING DEALT WITH BY THIS TELEPATHIC AUDITING WITH 9 THE AID OF THE E-METER. THE BODY PART WILL NO LONGER READ, 10 WHICH REFERS TO THE NEEDLE SWINGING BACK AND FORTH WHEN THEY'RE 11 ASKED QUESTIONS. 12 Q WAS IT YOUR UNDERSTANDING THAT THERE WAS A NEEDLE ON 13 THE E-METER? 14 A OH, YES. IT'S A METER. AN E-METER HAS GOT A METER, 15 A MOVEMENT ON IT THAT IS BASICALLY A, LIKE A VOLT METER ON IT, 16 OR AN O-METER IN THIS PARTICULAR CASE, AND THAT'S WHAT "READ" 17 MEANS IN CONTEXT HERE. 18 STEP THREE, THE NEXT ACTION, TO HANDLE ILLNESSES OF 19 THE BODY PART. YOU KNOW, HOW CAN YOU -- ILLNESS OF A BODY PART? 20 THIS MEANS -- TO ME, THIS HAS THE CONNOTATION OF IT BEING 21 SUBSTITUTION FOR A MEDICAL PRACTICE, I.E., BODY THETANS AND 22 CLUSTERS BEING SICK LUNGS OR BEING A CONDITION OF THE ILLNESS OR 23 DISEASE OF THE BODY PART. 24 THE JARGON IS REALLY DENSE ON THIS STUFF, AND IF THE 25 MEMBERS OF THE JURY ARE HAVING A BIT OF A PROBLEM WITH IT, I'M Page 497 1 NOT A BIT SURPRISED. 2 MR. ROSEN: YOUR HONOR, MAY WE SPARE, THE WITNESS 3 SPARE THE COMMENTARY TO THE JURY? 4 THE COURT: YES, PLEASE. JUST ANSWER THE QUESTIONS, 5 MR. HENSON. 6 THE WITNESS: THE NEXT STEP, FOUR, IS CURES FOR 7 ILLNESS. 8 NOW, HOW CAN ANYBODY -- YOU'RE DEALING WITH 9 ILLNESSES AND CURES FOR ILLNESSES. HOW CAN ANYBODY READ 10 ILLNESSES AND CURES FOR ILLNESSES AND NOT SAY THIS IS MEDICAL? 11 THE COURT: OKAY. YOU'RE ARGUING, MR. HENSON. 12 THE WITNESS: I'M SORRY. 13 THE COURT: TELL US WHAT YOUR BELIEF WAS AND WHAT'S 14 THE BASIS FOR IT. 15 THE WITNESS: MY BELIEF WAS THAT THIS STUFF, WHEN I 16 READ THIS THING WITH THE NEW LEVEL OF UNDERSTANDING THAT I HAD 17 ACQUIRED OVER A PERIOD OF A GOOD NUMBER OF MONTHS, SOME OF IT 18 GETS A BIT DIFFICULT TO UNDERSTAND EVEN AT THIS REMOVE, BUT I 19 HAVEN'T REALLY DONE A WHOLE LOT OF STUDY ON THIS. 20 BUT TO ME, IT LOOKS TO ME, PROTEST OF CURES FOR 21 ILLNESS, BODY PART, NOW FIND THE ORIGINAL PART, NOW TO BE 22 READING AGAIN, READING IS INDICATIVE OF USING THE E-METER. 23 HANDLE ALL THE BT'S AND CLUSTERS. 24 AND THE NEXT LINE DOWN THERE, THIS IS ON STEP SIX, 25 UNTIL THEY'RE HANDLED AND THE BODY PART JUST F/NS. THAT MEANS Page 498 1 FLOATING NEEDLE. 2 BY MR. BERRY: 3 Q AND DOES THAT INDICATE THE USE OF THE E-METER? 4 A OH, ABSOLUTELY. THAT'S ONE OF THE, ONE OF THE 5 E-METER, ONE OF THE DEFINITIONS OF WHAT IT IS. 6 IN FACT, THERE'S PROBABLY A -- YOU HAD A SCIENTOLOGY 7 DEFINITION, AND FLOATING NEEDLE IS PROBABLY DEFINED IN THERE. 8 AND AGAIN, IT JUST -- WHEN I READ IT, IT'S -- WHEN I 9 READ IT, IT IS, YOU KNOW, TO ME THIS IS, THIS IS THE USE OF 10 AUDITING IN HERE, BECAUSE I READ IT UNDERSTANDING ALL THESE 11 WORDS WHICH MEAN, WHICH ARE ESSENTIALLY CANNOT BE DONE WITHOUT 12 THE USE OF THE E-METER AND AUDITING IN HERE. 13 WHEN I READ ALL THIS STUFF, TO ME IT'S QUITE CLEAR 14 THAT THIS IS A, THIS IS A DOCUMENT THAT IS USED FOR THE 15 SUBSTITUTION OF MEDICAL -- IT'S SUBSTITUTING SCIENTOLOGY'S 16 AUDITING PRACTICE FOR PROPER MEDICAL CARE. 17 Q WAS IT YOUR BELIEF, THEN, THAT NOTS 34 DEALT WITH 18 PHYSICAL ILLNESSES AND CONDITIONS? 19 A WELL, THE VERY TITLE OF IT, THE SEQUENCE FOR 20 HANDLING OF PHYSICAL CONDITION, YES, INDEED. 21 Q AND DID YOU, ANYWHERE WITHIN NOTS 34, SEE ANY 22 REFERENCE TO SEEKING MEDICAL ATTENTION IN CONNECTION WITH THE 23 HANDLING OF A PHYSICAL CONDITION? 24 A NOT WITHIN THIS DOCUMENT. 25 Q DID YOU SEE ANY REFERENCE WITHIN THE DOCUMENT, NOTS Page 499 1 34, TO SEEKING MEDICAL ATTENTION IF THE PROCESS HAD NOT BEEN 2 EFFECTIVE? 3 A NO. 4 Q DID YOU ACQUIRE -- HAD YOU ACQUIRED INFORMATION THAT 5 HAD LED YOU TO CONCLUDE THAT SCIENTOLOGY PROCESSING, IF NOT 6 EFFECTIVE, COULD LEAD TO DANGEROUS PHYSICAL CONDITIONS? 7 A MANY SUCH CASES. 8 Q WHAT SORT OF DANGEROUS CONDITIONS COULD THIS LEAD 9 TO? 10 MR. ROSEN: OBJECTION. 11 THE COURT: SUSTAINED. 12 YOU'RE GOING TO HAVE TO ASK HIM ABOUT SOME SPECIFIC 13 INFORMATION HE HAD RATHER THAN JUST SOME CONCLUSION OR HEARSAY 14 STATEMENT HE MAY HAVE HEARD. 15 BY MR. BERRY: 16 Q PRIOR TO MARCH 30, 1997, 1996, HAD YOU HEARD OF A 17 WOMAN BY THE NAME OF ROXANNE FRINN? 18 MR. ROSEN: OBJECTION. 19 THE COURT: SUSTAINED. MR. BERRY, LEADING. 20 BY MR. BERRY: 21 Q HAD YOU HEARD OF ANYONE WHO HAD SUFFERED AS A RESULT 22 OF E-METER PROCESSING PRIOR TO MARCH 30, 1996? 23 MR. ROSEN: OBJECTION. 24 THE COURT: YOU CAN ANSWER THAT YES OR NO. 25 MR. ROSEN: THE QUESTION -- Page 500 1 THE WITNESS: YES. 2 MR. ROSEN: -- IS ABOUT NOTS 34. 3 THE COURT: OKAY. GO AHEAD. 4 BY MR. BERRY: 5 Q AND IN CONNECTION WITH THAT KNOWLEDGE, WAS IT YOUR 6 BELIEF THAT NOTS 34 HAD, AT LEAST IN PART, BEEN RESPONSIBLE FOR 7 THAT CONDITION? 8 MR. ROSEN: OBJECTION. 9 THE COURT: SUSTAINED. 10 YOU'RE GOING TO HAVE TO HAVE SOME SPECIFICS FOR WHAT 11 IT WAS AND A BASIS FOR THE BELIEF THAT IT WAS AS A RESULT OF AN 12 E-METER AND NOTS 34, NOT JUST SOMETHING THAT SOMEBODY READ ON 13 THE INTERNET WHERE SOMEBODY MADE THAT ACCUSATION. 14 WE'VE GOT TO HAVE SOME DEGREE OF -- IT'S GOT TO BE 15 SOMETHING THAT WOULD BE REASONABLE TO A PERSON IN, WITH THE 16 KNOWLEDGE AVAILABLE TO SOMEONE LIKE MR. HENSON AT THE TIME. 17 BY MR. BERRY: 18 Q WHAT KNOWLEDGE DID YOU HAVE THAT NOTS 34 COULD BE 19 DANGEROUS? 20 MR. ROSEN: WELL, YOUR HONOR, I'M GOING TO OBJECT 21 BECAUSE I THINK THE QUESTION NEEDS TO BE FOCUSSED AS TO WHETHER 22 HE HAD ANY SPECIFIC KNOWLEDGE, NOT WHAT HE READ ON THE INTERNET, 23 BUT DID HE HAVE ANY SPECIFIC KNOWLEDGE. 24 THE COURT: WHAT SPECIFIC KNOWLEDGE DID YOU HAVE 25 THAT SOMEONE HAD BEEN INJURED BY THE USE OF THE PROCEDURE Page 501 1 OUTLINED IN NOTS 34? 2 THE WITNESS: I HAD WATCHED A TAPE. 3 BY MR. BERRY: 4 Q AND WHAT WAS THE TAPE THAT YOU HAD WATCHED? 5 A IT WAS A TAPE OF THE SALLY JESSIE RAPHAEL SHOW. 6 Q AND WHAT -- AND DID THAT FORM PART OF YOUR BELIEF 7 THAT NOTS 34 COULD BE A DANGEROUS PRACTICE? 8 MR. ROSEN: OBJECTION. MAY WE APPROACH? 9 THE COURT: YES. 10 (SIDEBAR DISCUSSION OFF THE RECORD.) 11 BY MR. BERRY: 12 Q WHAT ELSE -- WHAT ELSE ABOUT NOTS 34 LED YOU TO 13 CONCLUDE THAT IT INVOLVED THE E-METER IN THE PRACTICE OF 14 MEDICINE? 15 A IT'S -- THE EASIEST THING TO DO IS TO JUST LET THEM 16 READ IT WITH THE UNDERSTANDING THAT, OF SOME OF THE SCIENTOLOGY 17 JARGON THAT'S INVOLVED IN IT. 18 PRE-OT, FOR EXAMPLE, ON POINT, ON LIKE THE THIRD 19 PAGE IN, ONE TWO, LET'S SEE, ONE, TWO, THREE, FOURTH PARAGRAPH 20 DOWN, FIRST LINE, THE STEP ONE IS FOUND BY ASKING THE PRE-OT, 21 THIS IS ASKING THEM WHEN THEY'RE ON THE E-METER, THEY'RE HOLDING 22 THE CANS, WHAT CAUSED OR PRODUCED THE CONDITION WHAT WOULD MOST 23 LIKELY BE THE FIRST ITEM GIVEN BY THE PRE-OT. 24 THAT MEANS WHEN THEY COME UP WITH SOME ANSWER, BE 25 ALERT FOR GETTING INTO LISTING OR GETTING AN OUT-LIST. LISTING Page 502 1 IS A BIG FACTOR INVOLVED WITH AUDITING. 2 THERE'S -- LISTS HAVE BEEN POSTED AD NAUSEAM TO THE 3 NET. I GENERALLY LOOK AT A PAGE OR SO OF THEM AND SKIP THE 4 THING. 5 INVALIDATED, THIS ITEM WAS INVALIDATED BY GOING PAST 6 IT, OR OVER-LISTING PAST IT, WHERE THE ITEM WAS FOUND AND 7 AUDITED PREVIOUSLY, BUT NOT FULLY HANDLED, AGAIN RESULTING IN 8 THE ITEM BEING SUPPRESSED OR INVALIDATED. 9 ALL THESE ARE TECHNICAL TERMS INVOLVING E-METER KIND 10 OF STUFF. 11 Q WELL, AT THE END OF THE DOCUMENT, IT STATES "THE 12 STEPS ARE REPEATED HERE IN SHORT FORM FOR AUDITOR USE." 13 A RIGHT. 14 Q DID THE PHRASE "AUDITOR USE" LEAD YOU TO CONCLUDE 15 ANYTHING IN CONNECTION WITH AN E-METER? 16 MR. ROSEN: I COULD SAY LEADING, BUT COUNSEL HAS 17 BEEN TESTIFYING THE WHOLE TIME. 18 THE COURT: MR. ROSEN, JUST MAKE YOUR COMMENTS. 19 MR. ROSEN: I OBJECT, YOUR HONOR. 20 THE WITNESS: WELL, OBVIOUSLY -- 21 THE COURT: YOU CAN ANSWER THE QUESTION. 22 PLEASE WATCH YOUR QUESTIONS, MR. HENSON, I MEAN 23 MR. BERRY, AND ASK HIM QUESTIONS. DON'T ASK HIM TO CONFIRM WHAT 24 YOUR STATE OF MIND IS. 25 MR. BERRY: THE QUESTION IS WITHDRAWN. Page 503 1 Q ALMOST AT THE END OF THE DOCUMENT, THERE IS A PHRASE 2 ABOVE A LIST OF EIGHT THINGS WHICH INCLUDES AUDITOR USE. DO YOU 3 SEE THAT, MR. HENSON? 4 A YES. 5 Q DID YOU READ THAT AT THE TIME YOU, OR PRIOR TO YOUR 6 POSTING OF THE DOCUMENT? 7 A OH, ABSOLUTELY. 8 Q AND HAVING READ THAT, THOSE TWO WORDS, DID YOU REACH 9 ANY CONCLUSION AS TO WHAT THEY WERE REFERRING TO? 10 A YES. 11 Q AND WHAT WAS THAT CONCLUSION? 12 A AUDITING IS DONE WITH AN E-METER, SO MY CONCLUSION 13 WAS THAT THE AUDITOR USE MEANS THAT THIS IS AN, A LIST, AN 14 INSTRUCTION MANUAL, IF YOU WILL, FOR AN AUDITING PROCESS ON A 15 PRE-OT. 16 ALTHOUGH ACTUALLY, THAT DOESN'T MAKE ENTIRE SENSE TO 17 ME EITHER BECAUSE NORMALLY BY THE TIME SOMEONE IS AT THIS LEVEL, 18 THEY WILL ALREADY BE AT MORE THAN THE OT III LEVEL. I THINK 19 THIS FITS IN AFTER OT III. 20 Q DO YOU HAVE ANY BELIEF IN WHETHER OR NOT HANDLING 21 PHYSICAL CONDITIONS INVOLVES THE PRACTICE OF MEDICINE? 22 A THAT WOULD BE MY ANALYSIS OF IT. 23 Q SO YOUR ANSWER WOULD BE YES? 24 A YES. 25 MR. BERRY: I THINK WE'VE BEEN -- WE CAN REOPEN THE Page 504 1 COURTROOM, YOUR HONOR. 2 THE COURT: OKAY. WOULD YOU TELL ANYBODY THAT'S 3 OUTSIDE THAT WANTS TO COME IN THAT THEY'RE WELCOME TO, PLEASE? 4 (COURTROOM OPEN.) 5 THE COURT: HOW MUCH LONGER DO YOU HAVE, MR. BERRY? 6 MR. ROSEN: THAT'S WHAT I JUST ASKED. 7 MR. BERRY: HALF AN HOUR TO AN HOUR. 8 THE COURT: WELL, WE'RE RUNNING OUT OF TIME. SO YOU 9 CAN -- WE'LL GO ANOTHER 20 MINUTES TODAY, BUT I'LL CHECK TIMES, 10 BUT I THINK BOTH SIDES WILL HAVE ABOUT USED THEIR TIME. 11 MR. ROSEN HAS A LITTLE LEFT FOR CROSS EXAMINATION. 12 BY MR. BERRY: 13 Q NOW, MR. HENSON, AS A RESULT OF REVIEWING NOTS 34 AS 14 YOU HAVE JUST EXPLAINED, DID YOU REACH ANY CONCLUSION IN 15 CONNECTION WITH YOUR UNDERSTANDING OF JUDGE GESELL'S 16 INJUNCTION? 17 A I BELIEVE I MENTIONED THIS SOMEWHERE IN IT, THAT I'M 18 FAIRLY SURE THAT I MENTIONED -- LET'S SEE. SOMEWHERE I THOUGHT 19 THERE WAS MENTION IN THERE, IN THIS THING, OF THE -- YES. 20 "THE 'CHURCH' OF SCIENTOLOGY IS UNDER COURT ORDERS 21 STEMMING FROM THE F.D.A. ACTIONS IN THE EARLY 1970'S 22 AGAINST MAKING SUCH CLAIMS INVOLVING THE USE OF 23 E-METERS." 24 Q AND YOU'RE REFERRING TO THE PARAGRAPH IMMEDIATELY 25 AFTER THE NOTS 34 TEXT; IS THAT CORRECT? Page 505 1 A RIGHT. THAT WAS MY REFERENCE. I MAY NOT HAVE 2 REMEMBERED IT BY NAME AT THAT TIME, BUT I -- I BELIEVE THE 3 SUBSEQUENT POSTING THAT I MADE IN RESPONSE TO HELENA KOBRIN'S 4 POSTED MENTIONED IT BY NAME, SO I HAD IT ON THE TIP OF MY TONGUE 5 AT THAT POINT. 6 Q SO WAS IT -- SO DID YOU REACH ANY CONCLUSION IN 7 CONNECTION WITH CRIMINAL ACTIVITY? 8 A WELL, MY CONCLUSION -- 9 Q YES OR NO? 10 A YES. 11 Q AND WHAT WAS THAT CONCLUSION? 12 A MY CONCLUSION WAS THAT NOTS 34 WAS A DIRECT 13 VIOLATION OF JUDGE GESELL'S ORDERS. 14 Q AND DID YOU CONSIDER THAT TO BE CRIMINAL CONDUCT? 15 A I REALLY DON'T KNOW WHETHER I REACHED A CONCLUSION 16 ON THAT PARTICULAR MATTER OR NOT. THERE WAS ENOUGH OTHER -- 17 Q WELL, DO YOU RECALL FILING AN ANSWER SHORTLY AFTER 18 -- SORRY, WITHDRAWN. 19 AFTER YOU POSTED NOTS 34, DID THE CHURCH OF 20 SCIENTOLOGY FILE A LAWSUIT AGAINST YOU? 21 A THEY SURE DID. 22 Q AND AFTER THEY FILED THAT LAWSUIT, DID YOU FILE AN 23 ANSWER TO THAT LAWSUIT? 24 A YES, I DID. 25 Q AND DID YOU LATER FILE A FIRST AMENDED ANSWER? Page 506 1 A YES, I DID. 2 Q AND IN THAT, THOSE ANSWERS, DO YOU RECALL SAYING 3 ANYTHING ABOUT YOUR BELIEF AS TO CRIMINAL CONDUCT? 4 MR. ROSEN: OBJECTION. 5 THE COURT: THE QUESTION IS WHAT HE BELIEVED AT THE 6 TIME THAT HE POSTED, NOT WHAT HE MAY HAVE SAID LATER. IT MAY OR 7 MAY NOT BE, BUT THE QUESTION WAS WHAT HIS BELIEF WAS AT THE TIME 8 HE MADE THE POSTING. 9 BY MR. BERRY: 10 Q WAS YOUR BELIEF AT THE TIME OF THE POSTING 11 CONSISTENT WITH THE MATTERS YOU SET FORTH IN THE FIRST AMENDED 12 ANSWER? 13 MR. ROSEN: OBJECTION, YOUR HONOR. 14 THE COURT: SUSTAINED. 15 YOU CAN JUST ASK HIM WHAT HIS BELIEF WAS AT THE TIME 16 HE POSTED. 17 BY MR. BERRY: 18 Q MR. HENSON, WHAT WAS YOUR BELIEF AT THE TIME YOU 19 POSTED NOTS 34 CONCERNING MEDICAL PRACTICE, THE E-METER AND WHAT 20 THAT CONSTITUTED? 21 A WELL, I BELIEVED IT WAS ONE -- I BELIEVED IT WAS AN 22 EXAMPLE OF CRIMINAL ACTIVITY ON THE PART OF SCIENTOLOGY. 23 Q NOW, YOU KNEW THAT SCIENTOLOGY CLAIMED A COPYRIGHT 24 OVER THIS DOCUMENT; CORRECT? 25 A ACTUALLY, I -- Page 507 1 Q YES OR NO? 2 A NO. 3 Q HAD YOU -- AFTER YOU POSTED THAT DOCUMENT, DID YOU 4 RECEIVE AN E-MAIL FROM MS. KOBRIN? 5 A FROM THE HKK ACCOUNT AT NETCOM. 6 Q DID YOU BELIEVE THAT -- SORRY. 7 DID THAT E-MAIL CONTAIN A COPYRIGHT CLAIM? 8 A YES, IT DID. 9 Q DID YOU HAVE ANY BELIEF AS TO WHETHER THAT COPYRIGHT 10 CLAIM WAS PROPER OR NOT? YES OR NO? 11 A NO. 12 Q DID YOU -- DID YOU -- WHAT WAS YOUR REACTION TO 13 RECEIVING THAT, THAT LETTER? 14 A SURPRISE AS MUCH AS ANYTHING ELSE BECAUSE I HAD 15 CONCLUDED THAT THIS THING WAS A SMOKING GUN, A MATTER OF 16 CRIMINAL ACTIVITY, AND IT SURPRISED ME TO SOME EXTENT THAT IT 17 WOULD, THAT I WOULD EVEN GET A RESPONSE FROM SCIENTOLOGY. 18 Q DID YOU HAVE A BELIEF AS TO ANY PUBLIC DUTY THAT YOU 19 MIGHT HAVE THAT WAS GREATER THAN YOUR OBLIGATIONS TO COPYRIGHT 20 LAW? 21 MR. ROSEN: YOUR HONOR, I OBJECT. 22 THE COURT: SUSTAINED. 23 MR. ROSEN: COUNSEL IS TESTIFYING. 24 THE COURT: WELL, I DON'T KNOW THAT HE'S -- YES, 25 THAT QUESTION IS VERY LEADING. Page 508 1 BUT THE QUESTION IS, DID HE HAVE ANY UNDERSTANDING 2 WITH RESPECT TO COPYRIGHT LAW AT THE TIME HE POSTED, AND WHAT 3 AFFECT DID THAT LAW HAVE WITH RESPECT TO ANY LEGAL OBLIGATIONS 4 HE HAD AT THE TIME HE POSTED. 5 THE WITNESS: MAY I ANSWER THAT QUESTION? 6 MR. BERRY: YES. I THINK THE JUDGE HAS PUT IT 7 BETTER THAN I CAN. 8 THE WITNESS: MY -- MY UNDERSTANDING OF COPYRIGHT 9 LAW IS HEAVILY PREDICATED ON MY, ON MY EXPERIENCES WITH THE 10 INTERNET. 11 AND THE INTERNET ITSELF TAKES COPYRIGHT VERY 12 SERIOUSLY. INDEED, PEOPLE, CUSTOMERS ON THE INTERNET TAKE 13 COPYRIGHT VERY SERIOUSLY. 14 BUT IT'S PRIMARILY TAKEN VERY SERIOUSLY IN TERMS OF 15 CREDITING WHERE CREDIT IS DUE, RATHER THAN -- THE INTERNET 16 PROVIDES A FORUM IN WHICH IT IS ASSUMED THAT MATERIAL WHICH HAS 17 BEEN POSTED ON THE INTERNET WILL BE COMMENTED UPON AND LARGE 18 PIECES OF IT BROUGHT INTO YOUR OWN POSTING AND THEN ADDITIONAL 19 MATERIAL ADDED TO THAT. 20 WITH THE PARTICULAR EXAMPLE HERE, I BELIEVED THAT 21 THERE WAS AN OVERRIDING INTEREST IN EXPOSING NOT MERELY THE 22 DOCUMENT ITSELF, BECAUSE IT WAS WIDELY AVAILABLE ON THE 23 INTERNET, BUT EXPOSING MY UNDERSTANDING OF THE DOCUMENT AS TO 24 WHAT IT MEANT AND WHAT THE CONSEQUENCES OF IT WERE, BOTH WITH 25 RESPECT TO IT BEING A DANGEROUS PIECE OF MATERIAL IF CARRIED Page 509 1 OUT, PERHAPS EVEN LETHAL, AND IT BEING A VERY BAD PRECEDENT TO 2 USE COPYRIGHT LAW TO SUPPRESS THE PUBLIC DISCUSSION OF WHAT I 3 VIEW, TO THIS DAY, AS CRIMINAL ACTIVITY. 4 THE COURT: THE QUESTION, THOUGH, MR. HENSON WAS DID 5 YOU BELIEVE THAT THERE WAS SOMETHING ABOUT COPYRIGHT LAW THAT 6 TRUMPED OR PREEMPTED, OR THAT WAS TRUMPED OR PREEMPTED IF THE 7 PERSON WHO POSTED THOUGHT THAT THE DOCUMENT REFLECTED THE 8 ILLEGAL PRACTICE OF MEDICINE? 9 THE WITNESS: YES, I DID. 10 THE COURT: AND WHERE -- GO AHEAD. 11 BY MR. BERRY: 12 Q WHAT WAS THAT BELIEF? 13 A MY BELIEF IN THIS WAS BASED, AT LEAST TO SOME 14 EXTENT, ON THE ACTIONS WHICH WERE GOING ON AT THE SAME TIME WITH 15 RESPECT TO THE VAST AMOUNTS OF DOCUMENTS THAT HAD BEEN EXPOSED 16 IN THE TOBACCO LITIGATION. 17 Q AND HOW DID THAT IMPACT UPON YOUR BELIEF IN 18 CONNECTION WITH NOTS 34? 19 A THE TOBACCO LITIGATION WAS THE EXPOSURE OF TRADE 20 SECRET, AND IF NOT CRIMINAL, VERY CLOSE TO IT, ACTIVITIES GOING 21 ON INSIDE THE TOBACCO COMPANIES. 22 AND IN MY ESTIMATION, NOTS 34, AND MY EXPOSING OF 23 IT, WAS THE EXPOSURE OF WHAT I CONSIDERED TO BE CRIMINAL 24 ACTIVITY GOING ON INSIDE OF SCIENTOLOGY. 25 MR. ROSEN: YOUR HONOR -- Page 510 1 THE COURT: THAT DOESN'T REALLY ANSWER THE QUESTION. 2 WHAT DID THAT HAVE TO DO WITH COPYRIGHT LAW? 3 THE WITNESS: I BELIEVED, YOUR HONOR, THAT COPYRIGHT 4 LAW HAD TO FALL IN THE FACE OF MORE IMPORTANT THINGS LIKE PUBLIC 5 SAFETY. 6 THE COURT: THE TOBACCO LITIGATION DID NOT INVOLVE 7 COPYRIGHT LAW TO YOUR UNDERSTANDING, DID IT? I JUST WANT TO 8 UNDERSTAND WHAT YOU'RE SAYING. 9 THE WITNESS: OF COURSE IT DID, YOUR HONOR. 10 MR. ROSEN: I DIDN'T HEAR THAT. 11 THE COURT: DID IT -- 12 THE WITNESS: EVERYTHING IS COPYRIGHTED THE MINUTE 13 IT IS CREATED. THAT'S THE WAY -- THAT'S THE NATURE OF THE 19 -- 14 OF THE LAW THAT WENT INTO EFFECT IN 1978. 15 SO THE TOBACCO -- ALL THESE INTERNAL PAPERS ON THE 16 TOBACCO LITIGATION WERE COPYRIGHTED. THEY JUST NEVER HAD THE 17 CHUTZPAH, OR HOWEVER IT'S PRONOUNCED, TO CLAIM COPYRIGHT AND TO 18 TRY TO SUPPRESS THE DOCUMENTS ON THE BASIS OF COPYRIGHT. 19 MR. ROSEN: YOUR HONOR, I MOVE TO STRIKE THIS. 20 THE COURT: I THINK WE'RE GETTING PRETTY IRRELEVANT 21 AT THIS POINT. 22 MR. BERRY: IT'S ONE OF THE FACTORS, YOUR HONOR, 23 THAT -- 24 THE COURT: GO ON TO YOUR NEXT QUESTION, PLEASE. 25 BY MR. BERRY: Page 511 1 Q NOW, IN YOUR ANSWER, YOU REFERRED TO ROSCO POUND; 2 CORRECT? 3 MR. ROSEN: OBJECTION. 4 THE COURT: SUSTAINED. 5 BY MR. BERRY: 6 Q DID YOU READ ANY LEARNED -- 7 THE COURT: YOU CAN ASK HIM ABOUT WHAT HIS BELIEF 8 WAS AT THE TIME HE POSTED AND WHY HE FELT THAT IF IT WEREN'T, 9 WERE AN ILLEGAL PRACTICE OF MEDICINE, WHICH I THINK HE'S 10 DISCUSSED, IT WAS NOT COVERED BY COPYRIGHT LAW. HE CAN ANSWER 11 THAT QUESTION. 12 I DON'T WANT YOU TO JUST ASK HIM, "WAS THIS PART OF 13 YOUR BELIEF? WAS THIS PART OF YOUR BELIEF?" 14 HE CAN TELL US WHAT HIS BELIEF WAS AT THE TIME HE 15 POSTED AND THE JURY CAN DRAW CONCLUSIONS FROM THAT. 16 THE WITNESS: OKAY. WELL PUT, YOUR HONOR. 17 MY BELIEF AT THE TIME I POSTED THIS WAS THAT LAWS 18 ARE NOT ABSOLUTE, EVEN LAWS FOR SUCH THINGS AS MURDER, BECAUSE I 19 CAN REMEMBER, FOR EXAMPLE, A NUMBER O TELEVISION PRODUCTIONS AND 20 SUCH THINGS THAT, WHERE SOMEBODY WAS ACQUITTED OF MURDER FOR 21 SOMEONE THROWING A PERSON OUT OF A LIFEBOAT IN A SITUATION 22 WHERE, HAD THEY BEEN, HAD THEY STAYED IN THE LIFEBOAT, IT WOULD 23 HAVE KILLED THEM ALL. 24 AND THE POINT IS THAT LAWS ARE NOT ABSOLUTE. 25 THEY -- IF, FOR EXAMPLE, IT IS, FOR EXAMPLE, EXPECTED THAT A -- Page 512 1 IF AN AMBULANCE PULLED UP BEHIND YOU AT A STOP LIGHT, THAT YOU 2 WILL GO THROUGH THE STOP LIGHT AWAY FROM THE AMBULANCE, EVEN 3 THOUGH GOING THROUGH A STOP LIGHT IS A MATTER OF BREAKING THE 4 LAW. 5 IN THIS PARTICULAR CASE, I FIGURED THAT THERE WAS A 6 VERY FAIR PROBABILITY THAT I WAS BREAKING A COPYRIGHT LAW ON IT, 7 BUT IN MY PARTICULAR FEELING AT THE TIME, AND FOR THAT MATTER, 8 TO THIS DAY, I FEEL THAT THE EXPOSURE OF MUCH MORE SERIOUS, 9 POTENTIALLY LETHAL, PUBLIC SAFETY PROBLEMS IS MORE IMPORTANT 10 THAN THE COPYRIGHT LAWS. 11 AND IF THAT IS NOT THE CASE, I SUFFER FOR IT. 12 BY MR. BERRY: 13 Q HAD YOU REACHED -- DID YOU HAVE ANY BELIEF AS TO 14 WHETHER THE COPYRIGHT LAWS COULD BE USED TO CONCEAL CRIMINAL 15 CONDUCT? 16 THE COURT: I'M SORRY. WOULD YOU REPEAT THAT 17 QUESTION? 18 BY MR. BERRY: 19 Q DID YOU HAVE ANY BELIEF AS TO WHETHER THE COPYRIGHT 20 LAWS COULD BE USED TO CONCEAL CRIMINAL CONDUCT? 21 MR. ROSEN: YOUR HONOR, CONTINUING TO LEAD. 22 THE COURT: SUSTAINED. 23 BY MR. BERRY: 24 Q WHAT WAS YOUR BELIEF IN TERMS OF THE PROPER SCOPE OF 25 COPYRIGHT LAW? Page 513 1 A ACTUALLY, I AM ONE OF THE PEOPLE WHO HAS READ THE 2 CONSTITUTION, AND EVEN THE PIECE ON, THE LITTLE TINY FRAGMENT ON 3 COPYRIGHT, AND THE PURPOSE OF COPYRIGHT ITSELF IS TO SECURE, TO 4 LIMIT, FOR A LIMITED TIME, TO THE INVENTORS IN PATENT AND THE 5 WRITERS IN COPYRIGHT, THE BENEFITS OF THEIR WORK. 6 IN PARTICULAR, I REMEMBER THE WORDS, SOMETHING LIKE 7 "TO ADVANCE THE USEFUL ARTS AND SCIENCES." 8 WELL, THE USE OF COPYRIGHT LAW TO COVER UP, IN MY 9 ESTIMATION, OR TO TRY TO PREVENT THE DISCUSSION OF CRIMINAL 10 ACTIVITY GOING ON INSIDE OF SCIENTOLOGY, IN MY ESTIMATION, IS AN 11 IMPROPER USE OF THE LAW. 12 Q DID YOU HAVE ANY KNOWLEDGE AS TO WHETHER COPYRIGHTS 13 EXIST FOR ALL TIME? 14 A IT'S A COMPLICATED SUBJECT, BUT IT WAS DISCUSSED 15 EXTENSIVELY ON ARS, AND THE ANSWER IS YES. 16 Q AND WHAT WAS THAT KNOWLEDGE? ONCE AGAIN, AS OF 17 MARCH 30, 1996. 18 A THE COPYRIGHT LAWS CHANGED RIGHT AROUND THE POINT 19 WHERE NOTS 34 WAS WRITTEN, AND AT THE TIME I POSTED IT ON, IN 20 MARCH 30TH OF 1996, I'M NOT SURE WHETHER I KNEW WHICH OF THE 21 COPYRIGHT LAW SECTIONS IT FELL UNDER. 22 Q DID YOU HAVE ANY UNDERSTANDING ON MARCH 30, 1996, AS 23 TO WHETHER COPYRIGHTS EXPIRED? 24 A YES. 25 MR. ROSEN: YOUR HONOR, AGAIN, MORE LEADING. MAY I Page 514 1 OBJECT ON FORM BASIS? 2 THE COURT: PLEASE STAY AWAY FROM LEADING QUESTIONS. 3 BY MR. BERRY: 4 Q WHAT WAS YOUR UNDERSTANDING ON MARCH 30, 1996, AS TO 5 WHETHER NOTS 34 WAS VALIDLY COPYRIGHTED? 6 MR. ROSEN: OBJECTION. 7 THE COURT: OVERRULED. 8 GO AHEAD. 9 THE WITNESS: THERE WAS CONSIDERABLE QUESTION IN MY 10 MIND ABOUT THAT BECAUSE THERE -- ABOUT THE CONCEPT OF WHETHER 11 THIS WAS A VALID COPYRIGHT ON NOTS 34, AND THERE STILL IS IN MY 12 ESTIMATION, AND IT -- 13 THE COURT: WE'RE TALKING ABOUT AS OF MARCH 30TH, 14 1996. 15 THE WITNESS: AS OF THAT DATE, THERE HAD BEEN 16 EXTENSIVE DISCUSSIONS OF IRREGULARITIES IN THE COPYRIGHT 17 PROCEDURES ON ARS. 18 BY MR. BERRY: 19 Q AND WHAT WERE THOSE DISCUSSIONS? 20 A DISCUSSIONS PRIMARILY AROUND THE MATTERS OF TRYING 21 TO RENEW COPYRIGHTS AFTER THEY HAD EXPIRED. 22 Q AND WERE THOSE DISCUSSIONS IN RELATION TO ANY 23 PARTICULAR WORKS OR BODY OF WORKS? 24 A YES. 25 Q WHAT WORKS OR PARTICULAR BODY OF WORKS DID THOSE Page 515 1 DISCUSSIONS INVOLVE? 2 A VARIOUS ADVANCED TECHNOLOGIES. IT'S CALLED 3 MATERIALS INSIDE SCIENTOLOGY. 4 Q AND WAS THE NOTS 34 DOCUMENT, IN YOUR MIND, PART OF 5 THOSE MATERIALS? 6 MR. ROSEN: OBJECTION, YOUR HONOR, STILL LEADING. 7 THE COURT: OVERRULED. 8 GO AHEAD. 9 THE WITNESS: I BELIEVE THAT IT WAS, ALTHOUGH I 10 BELIEVE THERE WAS LESS QUESTION ABOUT NOTS 34 THAN THERE WAS 11 ABOUT MANY OTHER DOCUMENTS. 12 BY MR. BERRY: 13 Q AND WHAT SORT OF INFORMATION -- WITHDRAWN. 14 WHAT INFORMATION DID YOU ACQUIRE IN CONNECTION WITH 15 THIS COPYRIGHT DISCUSSION REGARDING SCIENTOLOGY'S MATERIALS? 16 THE COURT: WITH RESPECT TO NOTS 34? YOU JUST SAID 17 THERE WAS A DISTINCTION BETWEEN NOTS 34 AND OTHERS. LET'S LIMIT 18 IT TO NOTS 34. 19 BY MR. BERRY: 20 Q DID YOUR KNOWLEDGE OF THE DISCUSSION ABOUT OTHER 21 DOCUMENTS IMPACT UPON YOUR BELIEF IN CONNECTION WITH THE 22 COPYRIGHT OF NOTS 34? 23 MR. ROSEN: I OBJECT. 24 THE COURT: SUSTAINED. 25 BY MR. BERRY: Page 516 1 Q WHAT WAS YOUR BELIEF IN CONNECTION WITH THE 2 COPYRIGHT OF NOTS 34 ON MARCH 30, 1996? 3 A I FELT THAT IT WAS PROBABLY VALID. 4 Q DID YOU BELIEVE IT WAS PROPER? 5 A I DON'T BELIEVE THAT IT IS AT ALL PROPER TO 6 COPYRIGHT CRIMINAL INSTRUCTION MANUALS. 7 THE COURT: OKAY. LET'S BREAK FOR TODAY. 8 LADIES AND GENTLEMEN, WE'LL SEE YOU TOMORROW AT 8:00 9 O'CLOCK. I STILL ANTICIPATE THE CASE WILL BE SUBMITTED TO YOU 10 TOMORROW. 11 SO YOU'RE EXCUSED FOR THE DAY. 12 COUNSEL, I'LL MEET WITH YOU IN ABOUT FIVE MINUTES. 13 MR. ROSEN: DID YOU SAY FIVE MINUTES? 14 THE COURT: FIVE MINUTES. 15 (RECESS.) 16 (WHEREUPON, THE FOLLOWING PROCEEDINGS WERE HELD OUT 17 OF THE PRESENCE OF THE JURY.) 18 MR. BERRY: YOUR HONOR, BEFORE THE COURT CONTINUES, 19 I'D LIKE TO PUT SOMETHING ON THE RECORD. 20 THE COURT: ALL RIGHT. 21 MR. BERRY: WE HAD A SIDEBAR AT WHICH THE COURT 22 COMMENTED, WITH RESPECT TO THE SALLY JESSIE RAPHAEL SHOW, THAT 23 MR. HENSON COULD NOT REASONABLY BASE A BELIEF ON NOTS 34 AND 24 SCIENTOLOGY PRACTICES LEADING TO THIS BY SOMETHING HE SAW ON THE 25 SALLY JESSIE RAPHAEL SHOW, AND I SAID I HAD, I DIDN'T -- I Page 517 1 HADN'T BEEN ALIVE DURING THE HOLOCAUST, BUT I'D READ ABOUT IT 2 AND BELIEVED IT HAPPENED. 3 AS THE JURY WAS LEAVING THE COURTROOM AND THE JUDGE 4 WAS LEAVING THE COURTROOM, MR. ROSEN CAME OVER TO ME AND AUDIBLY 5 SAID, "IF YOU MENTION THE HOLOCAUST ONCE MORE AT SIDEBAR, I'M 6 GOING TO SMASH YOUR HEAD." 7 MR. ROSEN: ABSOLUTELY FALSE. 8 MR. BERRY: THEN YOU SAID YOU'D BREAK MY HEAD, 9 MR. ROSEN. 10 AND I CONSIDER THAT A HIGHLY OFFENSIVE THING TO BE 11 SAID IN THIS COURTROOM. 12 THE COURT: WELL, I -- I'LL START ONE AT A TIME. 13 I THINK I MADE SOME COMMENT TO THE EFFECT AT SIDEBAR 14 THAT I DIDN'T THINK A PERSON COULD COME TO A REASONABLE BELIEF 15 ABOUT A SUBJECT MERELY FROM INFORMATION THEY HEARD ON SOME SHOW 16 LIKE THE SALLY JESSIE RAPHAEL SHOW. 17 YOU INDICATED AT THAT POINT IN TIME, ALTHOUGH YOU 18 WEREN'T THERE, YOU BELIEVED THE HOLOCAUST HAPPENED, OR WORDS TO 19 THAT EFFECT, BECAUSE YOU'D READ ABOUT IT. 20 I THINK THAT, IN ESSENCE, WAS THE SIDEBAR, WAS IT 21 NOT, MR. BERRY? 22 MR. BERRY: YES, YOUR HONOR. 23 BUT MY GREATER COMPLAINT IS TO COUNSEL TELLING ME 24 I'M GOING TO HAVE MY FACE SMASHED IN, IN THIS COURTROOM. 25 THE COURT: WELL, MR. ROSEN, DO YOU WANT RESPOND? Page 518 1 MR. ROSEN: YES. IT'S NOT TRUE. 2 MR. BERRY: FORTUNATELY, THEY HEARD IT. BRING THEM 3 UP ONE AT A TIME AND LET THEM TESTIFY. 4 THE COURT: WOULD YOU BE QUIET AND LET MR. ROSEN 5 HAVE HIS SAY? I HAD HIM BE QUIET WHILE YOU HAD YOURS. 6 MR. ROSEN: I SAID TO MR. BERRY, QUIETLY AFTER THE 7 JURY AND YOUR HONOR WERE OUT, I SAID "AT SIDEBAR TODAY IS THE 8 SECOND TIME YOU HAVE MADE A JOKE OR AN INAPPROPRIATE COMMENT 9 ABOUT THE HOLOCAUST. I AM JEWISH. I TAKE THAT OFFENSIVELY. IF 10 YOU DO IT AGAIN, I WILL BE IN YOUR FACE." 11 THAT'S WHAT I SAID TO HIM, AND I MEAN IT. 12 WE HAVE A HISTORY WITH MR. BERRY. HE IS AS MUCH AN 13 ANTI-SEMITE AS HIS CLIENT IS AN ANTI-SCIENTOLOGIST, AND I'VE 14 JUST HAD ENOUGH OF IT. I DON'T HAVE TO BE INSULTED AND HAVE 15 THIS -- 16 THE COURT: ALL RIGHT. I'VE HAD ENOUGH. 17 MR. BERRY: WELL, YOUR HONOR, I HAVE BEEN ACCUSED -- 18 THE COURT: I'VE HAD ENOUGH. FROM THIS DAY FORWARD, 19 IF YOU ARE GOING TO SPEAK TO ONE ANOTHER, I'LL JUST ORDER YOU 20 NOT TO SPEAK TO ONE ANOTHER EXCEPT SPECIFICALLY WITH REFERENCE 21 TO ISSUES IN THIS CASE. 22 AND IF YOU WANT TO TALK WITH THE OTHER ONE ABOUT 23 SOMETHING ELSE, YOU CAN MAKE AN ARRANGEMENT AND DO IT IN MY 24 PRESENCE. 25 THIS IS THE KIND OF CONDUCT THAT SHOULD NOT GO ON Page 519 1 BETWEEN COUNSEL. 2 I WASN'T THERE. I'M NOT GOING TO MAKE A JUDGMENT ON 3 WHO SAID WHAT TO WHOM. 4 I DO THINK THAT YOU OUGHT TO BE ABLE TO ACT AS 5 PROFESSIONALS IN THIS COURT, WHETHER I'M IN HERE OR NOT. IF I 6 HEAR ANYTHING MORE, MAYBE I WILL CONDUCT A HEARING AND TRY AND 7 GET TO THE BOTTOM OF THINGS. 8 I'M NOT GOING TO DO IT WITH RESPECT TO THIS MATTER 9 BECAUSE I THINK WE'VE GOT TO GET ON WITH MORE IMPORTANT THINGS 10 AT THE MOMENT. 11 BUT LET'S KEEP THE EMOTIONS IN CHECK. IT'S A VERY 12 EMOTIONAL CASE ON BOTH SIDES. LET'S LEAVE IT AT THAT. 13 WHAT I WANT TO DO, BEFORE WE LEAVE THIS EVENING, IS 14 TWO THINGS. 15 ONE, MR. BERRY, YOU CAN HAVE ABOUT 40 MORE MINUTES 16 OF EXAMINATION. 17 MR. ROSEN, YOU CAN HAVE APPROXIMATELY 55 MINUTES 18 FURTHER OF EXAMINATION, AND THEN THE CASE IS CONCLUDED. 19 MR. ROSEN: YOUR HONOR, YOU TOLD US AT THE BEGINNING 20 THAT WE HAD FIVE HOURS, INCLUDING OPENING STATEMENT, AND WE HAVE 21 BEEN CLOCKING IT. SO FAR I HAVE USED THREE HOURS AND 35 22 MINUTES, EXCLUDING THE BREAK TIMES. 23 THE COURT: I WILL CHECK MY CALCULATIONS. I THOUGHT 24 I WAS DOING IT ACCURATELY. 25 MR. ROSEN: WE CAN GIVE IT TO YOU FOR EACH DAY, YOUR Page 520 1 HONOR, FROM THE OPENING TO THE LAST MORNING OF EXAMINATION, 2 MINUS THE BREAKS AND SUCH. 3 THE COURT: WHAT DO YOU HAVE FOR MR. BERRY? 4 MR. ROSEN: WE HAVEN'T BEEN KEEPING SCORE ON 5 MR. BERRY. WE WERE ONLY CONCERNED ABOUT OUR BEING ABLE TO 6 COMPLY WITH YOUR FIVE HOURS. 7 THE COURT: I WILL DOUBLE CHECK MY TIME. 8 MR. BERRY, HAVE YOU KEPT TRACK OF TIME? 9 MR. BERRY: NO, YOUR HONOR. BUT I THINK I'VE SAID 10 LESS THAN MR. ROSEN AND CONDUCTED LESS EXAMINATION. 11 THE COURT: IT'S IMPOSSIBLE THAT YOU BOTH COULD BE 12 RIGHT, BECAUSE COUNTING THE HOURS FROM WHEN WE STARTED TO WHERE 13 WE ARE NOW, THERE HAS TO HAVE BEEN MORE TIME. I WILL DOUBLE 14 CHECK MY CALCULATIONS. 15 FRANKLY, IT STRIKES ME THAT, WHETHER MY CALCULATION 16 IS RIGHT OR WRONG, AND I WILL DOUBLE CHECK IT BEFORE YOU LEAVE 17 TONIGHT, THAT THAT SHOULD BE MORE THAN ADEQUATE FOR BOTH SIDES 18 TO COMPLETE THEIR PRESENTATIONS IN THIS CASE. 19 BUT LET'S TURN TO THE JURY INSTRUCTIONS NOW. 20 ONE THING THAT I WILL MENTION, BECAUSE IT CAME UP A 21 LITTLE BIT IN OPENINGS, I DON'T WANT ANYONE ARGUING THEIR 22 PERSONAL OPINION IN CLOSING ARGUMENT. IF YOU DO THAT, I WILL 23 STOP YOU. 24 YOU CAN ARGUE WHAT YOU FEEL THE EVIDENCE SHOWS, BUT 25 YOU CAN'T SAY SOMETHING LIKE, "I BELIEVE THAT MR. HENSON DID Page 521 1 THIS, OR I BELIEVE MR. HENSON DID THAT." 2 YOU CAN ARGUE WHAT THE EVIDENCE SHOWS, BUT ATTORNEYS 3 AREN'T WITNESSES, AND I DON'T WANT THEM EITHER VOUCHING FOR THE 4 BELIEVABILITY OR THE LACK OF BELIEVABILITY OR THE CHARACTER OF 5 THE PARTIES. 6 ALL RIGHT. MR. ROSEN, DO YOU HAVE ANY OBJECTIONS TO 7 THE INSTRUCTIONS THE COURT INTENDS TO GIVE? 8 MR. ROSEN: YES, YOUR HONOR. SHOULD I GO THROUGH 9 EACH ONE AND INDICATE WHICH ONES I DON'T HAVE OBJECTIONS TO, SO 10 WE CAN DO IT ALL AT ONCE? 11 THE COURT: SURE. 12 MR. ROSEN: WOULD THAT BE HELPFUL? 13 THE COURT: SURE. 14 MR. ROSEN: OKAY. I DON'T HAVE ANY OBJECTION TO 15 INSTRUCTION NUMBER 1; NO OBJECTION TO NUMBER 2; NO OBJECTION TO 16 NUMBER 3; NO OBJECTION TO NUMBER 4 OR 5; NO OBJECTION TO 6. 17 7, I BELIEVE, IS AS YOUR HONOR GAVE AT THE BEGINNING 18 OF THE CASE, BUT I HAVEN'T HAD A CHANCE, SINCE WE GOT THIS WHEN 19 WE CAME IN -- 20 THE COURT: NO. 7 IS -- IT'S VERY SIMILAR TO WHAT I 21 GAVE AT THE BEGINNING OF THE CASE, AND IT'S VERY SIMILAR TO YOUR 22 PROPOSED INSTRUCTIONS WHICH MR. BERRY SAID HE HAD NO OBJECTION 23 TO. 24 I CHANGED A COUPLE OF VERY SMALL ITEMS, I BELIEVE. 25 I THINK I DROPPED OUT A REFERENCE TO THE DIANETICS BOOK AND IT Page 522 1 BEING A BEST SELLER BECAUSE I THOUGHT THAT WENT BEYOND WHAT THE 2 JURY NEEDED TO KNOW. 3 I PUT IN THE LANGUAGE I HAD IN MY PREINSTRUCTION 4 WITH RESPECT TO FAIR USE DEFENSE, AND I BELIEVE THAT I CHANGED 5 THE REFERENCES THAT YOU HAD TO "I" TO "THE COURT" FEELING THAT 6 IT WAS INAPPROPRIATE TO TRY AND PERSONALIZE SOMETHING TO ME. 7 I THINK THOSE ARE BASICALLY THE CHANGES THAT ARE 8 MADE. I CAN'T IMAGINE -- WELL, I SHOULDN'T SAY THAT. 9 I WOULDN'T THINK EITHER SIDE WOULD HAVE ANY 10 OBJECTION TO THE INSTRUCTION AS GIVEN, GIVEN THAT YOU DIDN'T 11 HAVE AN OBJECTION TO THE ONE THAT WAS PROPOSED BY RTC, BUT I'LL 12 TAKE A LOOK AT THAT. 13 MR. ROSEN: YOUR HONOR, I'M NOT SAYING I DO. I WAS 14 ONLY INDICATING I HAD NOT HAD -- SINCE WE GOT IT WHEN I CAME IN, 15 I HAD NOT HAD A CHANCE TO REVIEW IT AS AGAINST THE ORIGINAL. 16 NUMBER 8 IS FINE. 17 NUMBER 9 RAISES A CONCEPTUAL QUESTION, AND THAT IS 18 YOUR HONOR HAS COMBINED, WITHIN ONE INSTRUCTION, THE SUBJECT OF 19 WILLFUL INFRINGEMENT AND, IN THE PROCESS, HAS PUT IN BOTH THE 20 CLAIMS, AS WELL AS THE DEFENSE. 21 SINCE MR. HENSON BEARS THE BURDEN OF PROOF ON THE 22 DEFENSE TO WILLFULNESS, IN OTHER WORDS, WE MAKE OUT A PRIMA 23 FACIE CASE BY SHOWING THAT MR. HENSON KNEW OR SHOULD HAVE KNOWN 24 THAT THE WORK HE INFRINGED WAS COPYRIGHTED, PERIOD, END OF MY 25 CASE. Page 523 1 AND WHAT WE'RE TRYING NOW IS HIS DEFENSES TO WHICH 2 HE HAS HIS BURDEN OF PROOF, AND THEREFORE, YOUR HONOR, WE ASK 3 THAT YOU GIVE OUR 2A AND 3, WHICH ARE THE TWO INSTRUCTIONS ON 4 THE TEST FOR FINDING WILLFUL INFRINGEMENT, WHICH GO TO WHAT OUR 5 BURDENS ARE. 6 AND THEN SO THE JURY WOULD NOT BE CONFUSED, WE 7 DRAFTED THESE IN ANTICIPATION OF WHAT THE CASE WOULD BE AS 8 PRESENTED BY THE DEFENSE, AND NOW THAT THE DEFENSE HAS PUT IN 9 THE CASE, IF I MAY HAND UP OUR REQUESTS NUMBER 11 THROUGH 14? 10 THE ONE THAT IS MOST PERTINENT HERE, YOUR HONOR, IS 11 NUMBER 13, BECAUSE WHAT 13 DOES IS IT BREAKS OUT SEPARATELY THE 12 DEFENDANT'S BURDEN TO OVERCOME A CASE OF WILLFUL INFRINGEMENT, 13 AND MAKES IT CLEAR THAT THE DEFENDANT BEARS THE BURDEN OF PROOF 14 BY A PREPONDERANCE OF THE EVIDENCE ON EACH OF THE FOUR ELEMENTS, 15 THE TWO REASONABLE, THE TWO SUBJECTIVE TESTS AND THE TWO 16 OBJECTIVE TESTS (HANDING). 17 THE COURT: I JUST WANT TO FIND OUT FOR THE MOMENT 18 WHAT OBJECTIONS YOU HAVE TO THE INSTRUCTIONS I PROPOSE TO GIVE. 19 MR. ROSEN: OKAY. WE OBJECT TO 19. 20 THE COURT: TO 9 YOU MEAN? 21 MR. ROSEN: I MEAN TO 9. I APOLOGIZE, YOUR HONOR. 22 WE OBJECT TO 9 AND ASK THAT YOUR HONOR WOULD GIVE 23 2A, 3 AND 13. 24 THE COURT: INSTEAD OF? 25 MR. ROSEN: SAY AGAIN. Page 524 1 THE COURT: INSTEAD OF? 2 MR. ROSEN: INSTEAD OF, THAT'S CORRECT. 3 THE COURT: OKAY. 4 MR. ROSEN: WITH RESPECT TO 10 -- 5 MR. BERRY: I'M SORRY. WHICH ONE INSTEAD OF? 6 THE COURT: HE'S SAYING THAT INSTEAD OF 9, RTC WANTS 7 2A, 3 AND 13. 8 MR. ROSEN: WE HAVE NO OBJECTION TO 10, YOUR HONOR; 9 WE HAVE NO OBJECTION TO 11; WE HAVE NO OBJECTION TO 12; WE HAVE 10 NO OBJECTION TO 13. 11 AND I WILL -- WE HAVE OTHER ONES WE WANT YOU TO 12 GIVE, BUT AS I UNDERSTOOD, YOU WANT ME TO HOLD THAT UNTIL WE GET 13 TO THOSE. 14 THE COURT: RIGHT. 15 MR. ROSEN: OKAY. 16 THE COURT: SO THE SHORTCUT OF WHAT YOU JUST SAID IS 17 THAT INSTEAD OF NUMBER -- 18 MR. ROSEN: 9. 19 THE COURT: -- 9, YOU WANT 2A, 3 AND 13? 20 MR. ROSEN: THAT'S CORRECT. 21 THE COURT: ALL RIGHT. BEFORE WE GET TO ADDITIONS, 22 MR. BERRY, ARE THERE ANY INSTRUCTIONS THAT THE COURT INTENDS TO 23 GIVE THAT YOU HAVE OBJECTION TO? 24 MR. BERRY: NO. NO, YOUR HONOR. 25 AND WE'D OBJECT TO THE SUBSTITUTION THAT HAS BEEN Page 525 1 REQUESTED. 2 THE COURT: OKAY. AND THE BASIS OF THE OBJECTION 3 IS? 4 MR. BERRY: I THINK WE SET IT FORTH IN OUR BRIEF ON 5 FRIDAY. I NEED TO FIND MY COPY OF 2A AND 3. 6 MR. ROSEN: THEY'RE IN THE BOOK, MR. BERRY, THE 7 BINDER. 8 MR. BERRY: I'M HAVING SOME DIFFICULTY IN FINDING 9 THEM, YOUR HONOR. I THOUGHT I HAD THEM WITH ME. 10 (PAUSE IN PROCEEDINGS.) 11 THE COURT: MR. BERRY, IF YOU CAN'T FIND IT, I CAN 12 GO GET MY COPY AND LET YOU LOOK AT IT. 13 MR. BERRY: I MIGHT HAVE TO IMPOSE UPON THE COURT IN 14 THAT REGARD, YOUR HONOR. 15 THE COURT: ALL RIGHT. 16 MR. ROSEN: IS THE ISSUE 2A, YOUR HONOR? 17 THE COURT: YEAH. 18 MR. ROSEN: HE WANTED TO SEE 2A? 19 THE COURT: YEAH. 20 MR. BERRY: THE REQUESTED SUBSTITUTE INSTRUCTIONS. 21 THE COURT: 2A AND 3 AND 13. 22 MR. ROSEN: 13 IS RIGHT THERE (INDICATING). 23 MR. BERRY: FIRST OF ALL, YOUR HONOR, I THINK IN OUR 24 BRIEF SUBMITTED TODAY, WE POINT OUT THAT THE AUTHORITIES ARE 25 THAT THE BURDEN OF PROOF ON WILLFULNESS IS ON RTC. Page 526 1 THE COURT: OKAY. SO YOU OBJECT TO THE PLACEMENT OF 2 THE BURDEN OF PROOF IN THEIR 2A AND 3 INSTRUCTIONS. 3 ANYTHING ELSE? 4 MR. BERRY: I WAS REFERRING TO 13 THEN, YOUR HONOR. 5 I OBJECT TO 2A, YOUR HONOR. 6 THE COURT: BASIS? 7 MR. BERRY: THE BASIS IS THAT IT'S REPETITIVE, IT'S 8 BELATED, AND IT FAILS TO -- AND IT'S INCOMPLETE. 9 IN OTHER WORDS, IT'S SLANTED IN FAVOR OF RTC WITHOUT 10 PUTTING THE ADDITIONAL ELEMENTS AS TO MR. HENSON. 11 THE COURT: OKAY. AND 3? 12 MR. BERRY: I THINK 3, YOUR HONOR, WE STATED ON 13 FRIDAY. WE HAD ADDITIONAL LANGUAGE THAT SHOULD BE PUT IN TO 14 INDICATE THAT IT IS BASICALLY THE SUBJECTIVE AND THE OBJECTIVE 15 ELEMENTS THAT ARE AT ISSUE, WHAT HE BELIEVED HIMSELF AND WHETHER 16 THAT BELIEF WAS REASONABLE ON THE BASIS OF THE INFORMATION THAT 17 WAS KNOWN AT THE TIME TO SOMEONE IN MR. HENSON'S POSITION. 18 THE COURT: OKAY, THANK YOU. 19 ALL RIGHT. WHAT ADDITIONAL INSTRUCTIONS DO YOU 20 WANT, MR. ROSEN, OTHER THAN WHAT YOU INDICATED WITH RESPECT TO 21 13, 2A AND 3? 22 MR. ROSEN: YES, YOUR HONOR. WE ASK THAT YOU, THAT 23 YOUR HONOR GIVE INSTRUCTION NUMBER 5, NO FINANCIAL BENEFIT 24 NECESSARY TO FINDING OF WILLFUL INFRINGEMENT, PARTICULARLY IN 25 VIEW OF THE DIRECT EXAMINATION ALREADY OF MR. BERRY ELICITING Page 527 1 FROM MR. HENSON. 2 THE COURT: ELICITING WHAT? 3 MR. ROSEN: HE SAID, "DID YOU GET ANY FINANCIAL 4 BENEFIT FROM POSTING NOTS 34?" 5 THE COURT: OKAY, I'M SORRY. 6 MR. ROSEN: AND "DID YOU EXPECT ANY?" 7 6A, THE ADDITIONAL FACTORS IN DETERMINING THE AMOUNT 8 OF STATUTORY DAMAGES. 9 7 -- 10 THE COURT: OKAY, SLOW DOWN JUST A SECOND. 11 MR. ROSEN: SORRY. 12 THE COURT: 6A. 13 MR. BERRY: I DON'T HAVE THOSE IN FRONT OF ME 14 EITHER, YOUR HONOR. 15 MR. ROSEN: YOUR HONOR, THEY'RE IN THE BOOK WE 16 HANDED MR. BERRY IN THE COURT AWHILE AGO. 17 MR. BERRY: SOME DAYS AGO, AND I CAN TAKE MY TIME 18 AND I'LL FIND THEM, BUT -- 19 MR. MERVIS: THERE YOU GO, MR. BERRY (HANDING). 20 MR. BERRY: THANK YOU. 21 THE COURT: 6A AND WHAT ELSE? 22 MR. ROSEN: 7, YOUR HONOR, ESSENTIALLY STATUTORY 23 DAMAGES AVAILABLE WHERE NO PROOF OF ACTUAL DAMAGE. 24 THE COURT: OKAY. ANYTHING ELSE? 25 MR. ROSEN: 8. Page 528 1 MR. ROSEN: 8 REALLY GOES WITH 13, YOUR HONOR. 13 2 IS AN EXPANSION OF 8, AND THAT IS AN UNREASONABLE BELIEF IS NOT 3 A DEFENSE TO WILLFULNESS. 4 10, POST HOC DEFENSES, AND I THINK WE'VE HAD 5 EVIDENCE OF THAT, YOUR HONOR, AND WE'RE CERTAINLY GOING TO HAVE 6 EVIDENCE TOMORROW IN THE CROSS EXAMINATION. 7 NEXT IS 11, 12, 14. 8 THE COURT: THOSE ARE THE ONES YOU JUST HANDED UP; 9 RIGHT? 10 MR. ROSEN: YES, YOUR HONOR, BASED ON THE TESTIMONY 11 TODAY. 12 THE COURT: OKAY. DOES THAT COVER IT? 13 MR. ROSEN: NO. THERE ARE A COUPLE MORE. 14 WE'RE GOING TO ASK FOR THE CHARGE THAT IT IS 15 UNREASONABLE AS A MATTER OF LAW TO RELY ON WHAT YOU HEAR ON A 16 TELEVISION TALK SHOW. 17 WE'RE GOING TO ASK FOR -- AND THIS JUST CAME UP, 18 YOUR HONOR, I'M SORRY, I DON'T HAVE A CHARGE PREPARED FOR IT. 19 WE'RE GOING TO ASK FOR A CHARGE BASED ON A STATEMENT 20 MR. HENSON, IN MR. HENSON'S TESTIMONY THAT THERE IS A CERTAIN 21 WAY OF DOING THINGS ON THE INTERNET AND THE SUGGESTION THAT THE 22 INTERNET SOMEHOW OVERRIDES COPYRIGHT LAW, AND WE WANT A CHARGE 23 THAT THE INTERNET DOES NOT OVERRIDE COPYRIGHT LAW, OR WHATEVER 24 PEOPLE DO ON THE INTERNET IS NOT AN EXCUSE OR DEFENSE TO 25 COPYRIGHT INFRINGEMENT. Page 529 1 THE COURT: OKAY. YOU'RE GOING TO HAVE TO PROPOSE 2 TO ME SPECIFIC INSTRUCTIONS ON THOSE. 3 MR. ROSEN: AS I SAID, THEY JUST CAME UP TODAY ON 4 THE DIRECT, YOUR HONOR, AND I'VE BEEN OBVIOUSLY SITTING HERE. I 5 HAVEN'T HAD A CHANCE TO DRAFT THEM. BUT THOSE ARE THE TWO THAT 6 WE WILL BE ASKING FOR. 7 THE COURT: OKAY. IS THAT IT? 8 MR. ROSEN: I THINK SO, SUBJECT TO WHATEVER -- OH, 9 I'M SORRY. THERE'S ANOTHER ONE WHICH GOES, WHICH IS AKIN TO THE 10 SALLY JESSIE RAPHAEL ONE. 11 IT IS UNREASONABLE, AS A MATTER OF LAW, TO RELY ON 12 WHAT, ON WHAT PEOPLE POST TO THE INTERNET AS A FACTUAL PREDICATE 13 FOR BELIEVING SOMETHING. 14 AND THAT IS, IN MR. HENSON'S TESTIMONY, HIS RELIANCE 15 IS ENTIRELY UPON THE INTERNET POSTINGS. 16 AND YOUR HONOR, UNLESS THERE IS SOMETHING THAT COMES 17 UP TOMORROW IN MR. HENSON'S, THE COMPLETION OF MR. HENSON'S 18 EXAMINATION, I THINK THAT THAT'S IT. 19 THE COURT: OKAY. MR. HENSON OR MR. BERRY, ANYTHING 20 FURTHER THAT YOU WANT TO OFFER? 21 MR. BERRY: A LOT, YOUR HONOR. 22 THE COURT: EXCUSE ME? 23 MR. BERRY: A LOT. FIRST OF ALL -- 24 THE COURT: I WOULD TELL BOTH SIDES THAT THE TIME 25 FOR SUBMITTING INSTRUCTIONS WAS SOME TIME AGO. I SAID I WOULD Page 530 1 ALLOW SOME LATE, WHICH I DID AND I GOT TODAY. 2 IT'S HARD FOR ME TO BELIEVE THAT ANYTHING THAT'S 3 BEING BROUGHT UP NOW WASN'T SOMETHING THAT WAS FULLY 4 ANTICIPATED. 5 BUT GO AHEAD, MR. BERRY. 6 MR. BERRY: THAT SAYS, IN PART, WHAT I WAS ABOUT TO 7 SAY, THAT WE ARE SOMEWHAT BLIND SIDED. THE COURT MADE IT CLEAR 8 TO THE DEFENSE THAT WE HAD FAILED TO SUBMIT TIMELY JURY 9 INSTRUCTIONS AND THAT WE HAD VERY LIMITED OPPORTUNITY TO REVIEW 10 AND COMMENT UPON THOSE WHICH HAD BEEN SUBMITTED. 11 NOW WE ARE, DAY AFTER DAY, RECEIVING MOUNTAINS OF 12 JURY INSTRUCTIONS FROM THE PLAINTIFF. SAUCE FOR THE GOOSE, 13 APPARENTLY IN THEIR MIND, IS NOT SAUCE FOR THE GANDER. 14 NOT ONLY ARE WE RECEIVING MOUNTAINS OF THEM, BUT 15 THEY ARE CONTAINING COMPLEX ISSUES AND CASES WHICH I HAVEN'T HAD 16 AN OPPORTUNITY TO REVIEW. 17 THE COURT: THE QUESTION WAS, WHAT ADDITIONAL 18 INSTRUCTIONS, IF ANY, DO YOU HAVE THAT YOU WISH TO OFFER? 19 MR. BERRY: I TOOK THE COURT AT ITS WORD, YOUR 20 HONOR, THAT WE WOULD BE WASTING OUR TIME IN SPINNING OUR WHEELS 21 DRAFTING INSTRUCTIONS. 22 THE COURT: SO THE ANSWER -- 23 MR. BERRY: SO WE HAVE NONE BECAUSE WE RELIED ON THE 24 COURT'S CONSISTENCY AND EVEN-HANDED APPROACH TO BOTH SIDES. 25 THE COURT: WOULD YOU TELL ME, IN ADDITION TO YOUR Page 531 1 OBJECTION TO THE LATENESS OF THE RECENT SUBMISSIONS, WHAT OTHER 2 OBJECTIONS, IF ANY, YOU HAVE TO THE INSTRUCTIONS HE'S PROPOSING? 3 MR. BERRY: 11, YOUR HONOR, I SUBMIT IS PLAIN WRONG 4 AND SHOULD NOT BE OFFERED IN ANY MANNER. 5 12 I WILL HAVE TO RESEARCH, BUT I DON'T BELIEVE THAT 6 THE BUSINESS AND PROFESSIONS CODE EXEMPTS THE CHURCH OF 7 SCIENTOLOGY FROM PRACTICING MEDICINE WITHOUT A LICENSE, WHICH IS 8 WHAT IT IMPLIES. 9 MR. HENSON HAS NOT MADE AN ARGUMENT THAT THE 10 INTERNET IS REMOVED FROM THE COPYRIGHT LAW. HE HAS NOT 11 SUGGESTED THAT THE COPYRIGHT LAW DOES NOT APPLY TO THE INTERNET. 12 AND ALL OF THESE INSTRUCTIONS ARE BELATED, UNTIMELY, 13 AND ATTEMPT TO UNFAIRLY INFLUENCE THE JURY WITHOUT THE DEFENSE 14 BEING GIVEN THE TIME, THE OPPORTUNITY TO DO LIKEWISE. 15 THE COURT: ALL RIGHT. I WILL TAKE A LOOK AT WHAT'S 16 BEEN OFFERED. I WILL -- 17 MR. BERRY: AND ONE ADDITIONAL MATTER, YOUR HONOR. 18 IF WE'RE GOING TO GET INTO THE SALLY JESSIE RAPHAEL SHOW, HERE 19 IS THE TAPE CUED TO THE POINT (INDICATING). 20 AND I SUBMIT, YOUR HONOR, THAT IT IS NOT THE LAW 21 THAT YOU CANNOT RELY REASONABLY ON WHAT YOU READ AS THE BASIS 22 FOR YOUR STATE OF MIND. 23 THE COURT: I NEVER SAID THAT. 24 MR. BERRY: I'M NOT COMMENTING IT TO THE COURT'S 25 STATEMENT. I'M COMMENTING TO THE ARGUMENTS OF COUNSEL. Page 532 1 THE COURT: YOU'LL BOTH HAVE YOUR OPPORTUNITY TO 2 ARGUE WHAT IS REASONABLE AND WHAT IS NOT REASONABLE. 3 ALL RIGHT. I WILL LOOK OVER THE ADDITIONAL 4 INSTRUCTIONS, KEEPING IN MIND THE TIME THEY'RE SUBMITTED, AND I 5 WILL HAVE IN THE MORNING WHAT I INTEND TO GIVE. 6 WE'LL TAKE A SHORT BREAK AT THE CONCLUSION OF THE 7 EVIDENCE AND LET YOU PUT ON THE RECORD ANY ADDITIONAL, OR ANY, I 8 SHOULDN'T SAY ADDITIONAL, ANY OBJECTIONS THAT YOU STILL HAVE 9 AFTER I MAKE WHATEVER CHANGES, IF ANY, I MAKE TO WHAT I PROPOSE. 10 BUT I DO INTEND TO CONCLUDE THE EVIDENCE TOMORROW 11 AND GO FORWARD WITH ARGUMENTS AND INSTRUCTIONS. 12 I WILL GO RIGHT NOW AND CHECK TIME SO THAT WE'LL 13 HAVE AN UNDERSTANDING AS TO TIME REMAINING FOR EACH SIDE. 14 IT SEEMS TO ME THAT YOU OUGHT TO BE ABLE TO KEEP 15 YOUR ARGUMENTS AT 45 MINUTES OR LESS. PLAINTIFF HAS AN OPEN AND 16 CLOSE, AND IT CAN DIVIDE IT WITH SOME IN THE OPENING AND SOME IN 17 THE CLOSING, BUT CERTAINLY THE BULK SHOULD BE IN THE OPENING, 18 AND 45 MINUTES A SIDE IT SEEMS IS MORE THAN REASONABLE TO ME. 19 MR. ROSEN: ACCEPTABLE, YOUR HONOR. 20 THE COURT: OKAY. BUT WHAT THAT BASICALLY MEANS IS 21 THAT I WOULD EXPECT YOUR REBUTTAL NOT TO BE MORE THAN 15 22 MINUTES. SO YOU CAN USE LESS THAN THAT IF YOU WISH, AND MORE IN 23 YOUR OPENING, OR LESS OVERALL. 24 MR. ROSEN: I UNDERSTAND. IT'S NOT UNLIKE THE 25 ARGUMENT IN THE NINTH CIRCUIT. Page 533 1 THE COURT: WELL -- 2 MR. ROSEN: MAKE A CHOICE IN ADVANCE AS TO HOW MUCH 3 TIME YOU WANT TO SAVE. 4 I UNDERSTAND, YOUR HONOR. 45 MINUTES IS ACCEPTABLE. 5 THE COURT: ALL RIGHT. MR. BERRY? 6 MR. BERRY: THAT'S ACCEPTABLE TO THE DEFENSE, YOUR 7 HONOR. 8 THE COURT: OKAY. LET ME GO CHECK ON TIME, AND THEN 9 I'LL BE RIGHT BACK. 10 (RECESS.) 11 (WHEREUPON, THE FOLLOWING PROCEEDINGS WERE HELD OUT 12 OF THE PRESENCE OF THE JURY.) 13 THE COURT: ALL RIGHT. LOOKING OVER MY 14 CALCULATIONS, AND YOU KNOW, IT'S ALWAYS POSSIBLE I'VE MADE A 15 MISTAKE, BUT I SHOW -- AND THIS IS NOT ATTRIBUTING, BASICALLY, 16 ANY TIME FOR DELAYS THAT NORMALLY I ATTRIBUTE TO THE PARTIES, 17 AND I THINK IN THIS CASE WE'VE NOT BEEN USING SOME OF THE JURY 18 TIME FOR MATTERS THAT WE SHOULD HAVE BEEN USING IT FOR, BUT EVEN 19 NOT ATTRIBUTING TIME TO YOUR, TO YOU FOR THAT, I SHOW RTC WITH 20 ACTUALLY 60, APPROXIMATELY 60 MINUTES LEFT, AND MR. HENSON WITH 21 45 MINUTES LEFT. 22 MR. ROSEN: YOUR HONOR, I CAN GIVE YOU THE RUN DOWN 23 FROM THE FIRST AND -- FROM FIRST DAY, MY OPENING STATEMENT -- 24 THE COURT: I'LL COMPARE WITH MY NOTES. GO AHEAD. 25 MR. ROSEN: FIRST DAY, MY OPENING STATEMENT WAS 45 Page 534 1 MINUTES; I THEN STARTED MY DIRECT EXAMINATION OF MR. HENSON AT 2 11:05, WE BROKE AT 12:05. THAT'S ONE HOUR, SO RUNNING COUNT IS 3 AN HOUR AND 45 MINUTES. 4 I RESUMED AT 12:15 AND WE WENT UNTIL 1:05, WHICH IS 5 ANOTHER 50 MINUTES. THAT BRINGS IT TO TWO HOURS AND 35 MINUTES. 6 AND ON THURSDAY, WE STARTED AT 8:10, MY EXAMINATION 7 CONCLUDED AT 9:10, WHICH IS ONE HOUR, SO THAT'S THREE HOURS AND 8 35 MINUTES. 9 AND I WOULD, YOUR HONOR -- I WOULD NOT BE RAISING 10 THE POINT, EXCEPT I WILL NEED AN HOUR AND 25 MINUTES OF CROSS 11 EXAMINATION, AND THAT TOTALS FIVE HOURS. 12 THE COURT: YOU HAVE YOUR TIME, I'M SORRY, ON DAY 13 TWO AS WHAT? 14 MR. ROSEN: 8:10 TO 9:10. THAT WAS LAST THURSDAY. 15 (PAUSE IN PROCEEDINGS.) 16 THE COURT: DIDN'T YOU EXAMINE FROM ABOUT 10:50 TO 17 11:20? 18 MR. ROSEN: I'LL TELL YOU IN A SECOND. WE HAVE THE 19 TRANSCRIPT. 20 (PAUSE IN PROCEEDINGS.) 21 MR. ROSEN: YOUR HONOR, ARE YOU TALKING ABOUT 22 WEDNESDAY OR THURSDAY? 23 THE COURT: THIS WOULD HAVE BEEN THURSDAY. MY -- 24 MR. ROSEN: NO. WE STOPPED AT 12:00 O'CLOCK ON 25 THURSDAY, YOUR HONOR. Page 535 1 THE COURT: YEAH. I'M TALKING ABOUT 10:50 TO 11:20. 2 MR. ROSEN: YOUR HONOR, I CAN'T TELL FROM THE 3 TRANSCRIPT. I'M THUMBING THROUGH THE PAGES, WHICH DON'T HAVE 4 TIMES ON THEM OBVIOUSLY. 5 THE COURT: WELL, BUT YOU FINISHED YOUR CALLING HIM 6 AS AN ADVERSE WITNESS; THEN MR. BERRY QUESTIONED MR. HENSON AT 7 SOME LENGTH; THEN YOU WENT BACK AND YOU QUESTIONED HIM SOME 8 MORE, AND I THINK THERE MAY HAVE BEEN A COUPLE OF BACK AND 9 FORTHS. 10 YOU HAVE NOT INCLUDED ANY OF THAT TIME AFTER YOU 11 CONCLUDED YOUR ORIGINAL EXAMINATION OF HIM, I DON'T BELIEVE. 12 MR. ROSEN: IS THAT -- OH, IS THAT PART -- IS THAT 13 ON THURSDAY, YOUR HONOR? 14 THE COURT: YES. SO IN ANY -- 15 MR. ROSEN: OKAY. AND WHAT DOES YOUR HONOR HAVE FOR 16 THAT TIME? 17 THE COURT: MY TOTAL TIME FOR YOU ACTUALLY WAS 227 18 MINUTES, WHICH I ROUNDED OFF TO 230. I'M SORRY. SO THAT WOULD 19 GIVE YOU 70 MINUTES. 20 MR. ROSEN: I'LL TAKE IT, JUDGE. THAT'S FINE. 21 THE COURT: AND MR. HENSON'S SIDE I HAVE AT 253, 22 WHICH I ROUNDED OFF TO 255, SO THAT GIVES THEM 45. 23 MR. BERRY: I HAVE NO PROBLEM, YOUR HONOR, WITH 24 REDIRECT, WITH FINISHING DIRECT AND REDIRECT IN 45 MINUTES. 25 THE COURT: OKAY, AND I APPRECIATE THAT. Page 536 1 WE'LL SEE YOU TOMORROW. 2 MR. ROSEN: YOUR HONOR, THE ADDITIONAL CHARGES THAT 3 AROSE TODAY WHICH I INDICATED WE HAVE NOT YET HAD A CHANCE TO 4 DRAFT, CAN WE SEND THEM OVER? 5 THE COURT: YOU CAN SEND THEM OVER. WHETHER I WILL 6 GIVE THEM OR NOT IS ANOTHER QUESTION. 7 AND I WANT MR. BERRY TO RECEIVE A COPY AT OR BEFORE 8 THE SAME TIME I DO. 9 MR. ROSEN: SURE. WE ALWAYS DO THAT, JUDGE. 10 THE COURT: DO YOU HAVE A FAX NUMBER? 11 MR. ROSEN: YES. THE FAX TO THE COURT? 12 THE COURT: THE CHAMBERS FAX? 13 MR. ROSEN: YES, WE HAVE THAT. 14 THE COURT: OKAY. SAME ONE. MR. BERRY, I KNOW YOU 15 HAVE IT. 16 MR. BERRY: YES, I DO, YOUR HONOR. 17 THE COURT: OKAY. 18 MR. BERRY: BUT I'LL BE AT MY HOTEL TONIGHT. 19 THE COURT: I DON'T EXPECT, FROM WHAT YOU SAID, 20 YOU'RE GOING TO FAX ANYTHING FURTHER. 21 OKAY. SEE YOU IN THE MORNING. 22 (WHEREUPON, THE PROCEEDINGS WERE CONCLUDED FOR THE 23 DAY.) Page 537