1 Pages 1-25 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 BEFORE THE HONORABLE RONALD M. WHYTE, JUDGE 5 6 RELIGIOUS TECHNOLOGY CENTER, ) a California non-profit ) 7 organization, ) ) 8 Plaintiff, ) Case No. C-96-20207 RMW ) 9 vs. ) ) 10 H. KEITH HENSEN, ) ) 11 Defendant. ) _____________________________) 12 Friday, April 12, 1996 13 San Jose, California 14 Reporter's Transcript of Proceedings 15 APPEARANCES 16 For the Plaintiff Law Offices of Thomas R. Hogan 17 Thomas R. Hogan, Attorney at Law 60 South Market Street, Suite 1125 18 San Jose, California 95113 19 For the Defendant H. Keith Hensen, In Propria Persona 20 799 Coffey Court San Jose, California 95123 21 22 23 Reported By Lee-Anne Shortridge Official Court Reporter #9595 24 25 Computerized Transcription by StenoCat 2 1 Friday, April 12, 1996 2 THE CLERK: Calling case C-96-20261, Religious 3 Technology Center versus Keith Hensen, on for order to show 4 cause re preliminary injunction. 5 MR. HOGAN: Good morning, Your Honor. Thomas R. 6 Hogan for the plaintiffs, Religious Technology Center. And with 7 me, Your Honor, this morning, if I may, are three lawyers that I 8 would like to move for their admission pro hoc vice. Mr. Roger 9 Milgrim and Mr. Bill Hart are both partners in the Paul, 10 Hastings firm in New York. Mr. Eric Lieberman is a partner in 11 the Rabinowitz law firm in New York. 12 THE COURT: Have you filed applications? 13 MR. HOGAN: I have, Your Honor, with respect to all 14 three of those individuals. 15 THE COURT: All right. 16 MR. HENSEN: Keith Hensen, pro per. 17 THE COURT: Okay. Mr. Hensen. 18 MR. HOGAN: The only other thing I would like to 19 address to the Court very briefly, Your Honor, before we start, 20 is that Mr. Hensen came to my office on Wednesday of this past 21 week and delivered his motion. I asked him who would be 22 representing him this morning and he advised me that four 23 separate lawyers had offered their services pro bono. He 24 believed, however, he was going to represent himself. I asked 25 him to let me know if any of those lawyers where chosen by him 3 1 to represent him in this matter, and I have not heard. 2 THE COURT: Okay. Mr. Hensen, let me take up two 3 preliminary matters with you. One is you filed what you labeled 4 as a motion to dismiss asking me to disqualify myself under 28 5 U.S.C. Section 455(a). 6 Frankly, I know of no reason that I should 7 disqualify myself. The papers that you filed do not suggest to 8 me any basis, so at this point, I'm going to deny your motion. 9 With respect to your appearance in this matter, is 10 it your intent to have counsel, or what is the story on that? 11 MR. HENSEN: Not at this time. 12 THE COURT: Okay. 13 MR. HENSEN: By the way, I would mention that there 14 were four law firms who might be interested, and it's not that 15 any of them have agreed to do it. 16 THE COURT: I understand. What I wanted to just 17 find out is whether you want to be represented, because that is 18 important to me for me to know for a variety of reasons, 19 including scheduling. 20 MR. HENSEN: At this point, I simply don't know. 21 THE COURT: All right. Are you prepared -- oh, with 22 respect to the applications pro hoc vice, I will grant those. 23 MR. HOGAN: Thank you. 24 THE COURT: Are you prepared to proceed? 25 MR. HOGAN: Yes, Your Honor. 4 1 MR. HENSEN: Yes. 2 THE COURT: All right. I've read the application. 3 I'm not aware of anything further having been filed by either 4 side other than, Mr. Hensen, you filed the motion. 5 MR. HENSEN: I filed an additional response this 6 morning, Your Honor, it should be in the file by now, and I just 7 served the opposition. 8 THE COURT: I have not -- who did you file that 9 with? 10 MR. HENSEN: I filed it at 9:00 o'clock this 11 morning. 12 THE COURT: Downstairs? 13 MR. HENSEN: Yeah. 14 THE COURT: Okay. I have not seen it. Do you have 15 a copy? 16 MR. HENSEN: I have one additional copy, unless I 17 can borrow one from the three that I gave them. 18 Your Honor, are any of these carafes full of water? 19 THE CLERK: That has water in it. 20 MR. HENSEN: Thank you. 21 THE COURT: All right. Let me make a couple of 22 comments to you Mr. Hensen. Number one, you indicate that the 23 Clerk of the Court told you that you were not covered by the 24 T.R.O. issued against Grady Ward. 25 MR. HENSEN: The words exactly were that I was not 5 1 a defendant in the case. 2 THE COURT: That's a big difference. And 3 furthermore, you cannot rely on what a Court Clerk says, if they 4 say anything, and I think mine is very careful not to give legal 5 advice and undoubtedly told you, as she usually does if somebody 6 asks a question about an order, she indicates that they should 7 get legal advice. So I just caution you about that. 8 MR. HENSEN: I much appreciate -- 9 THE COURT: That doesn't make any sense to suggest 10 that the Clerk authorized something. What she said is that you 11 weren't a defendant. You're not. You weren't a defendant in 12 that case. You weren't named as a defendant. That order said 13 people -- I've forgotten the exact wording of it -- 14 MR. HENSEN: Acting in concert. 15 THE COURT: In concert, and whether you were or were 16 not, certainly the Clerk has no knowledge. Frankly, I have no 17 knowledge, and that's something that you have to decide for 18 yourself or get, or get representation on. So I just want to 19 make clear that that purported conversation carries no weight. 20 MR. HENSEN: I understand. 21 THE COURT: But what you also need to know is that 22 in this reply, and I can't be a lawyer for you, but I can tell 23 you that you've said a lot of things in this reply, but it's 24 just in a brief. If you want to present evidence to the Court, 25 you've got to do it in the form of a declaration or an affidavit 6 1 from someone who has personal knowledge of the facts contained 2 in the declaration. 3 Now, you may have that personal information 4 yourself, and if so, you can put it in a declaration form or in 5 an affidavit form, and then the Court can consider it as 6 evidence. 7 If you want to offer evidence from somebody else who 8 has the personal knowledge and all you know is what they've told 9 you, then you have to get a declaration or an affidavit from 10 that person. 11 But I can't -- there's a lot in this case and other 12 cases that I have that involve Religious Technology Center. 13 There are some strong accusations made on both sides of the 14 cases, and I have to limit my consideration to that which is 15 admissible evidence. I can't make decisions based on rumor or 16 hearsay or someone's unsworn statement. That's not saying that 17 those things aren't true, but they are not evidence that I can 18 consider. 19 MR. HENSEN: Your Honor, I could swear to that at 20 this point and sign it under the direction of the Court here if 21 you would like and turn it into an affidavit. But the material 22 to which I am referring in there is entirely contained within 23 the pleadings of the plaintiff. 24 THE COURT: Some of this I'm having trouble 25 following to be honest with you. 7 1 MR. HENSEN: It was done rather quickly, Your Honor. 2 THE COURT: I didn't bring one file in with me. 3 I'll go get it and be right back. 4 (Recess.) 5 THE COURT: Mr. Hensen, let me just make sure you 6 understand what the current temporary restraining order prevents 7 you from doing, and what a proposed preliminary injunction would 8 prevent you from doing. 9 It would prevent you from publishing, putting on the 10 Internet or downloading the documents that are listed in Exhibit 11 B. It would not prevent you from making fair comment or fair 12 use on documents 1, 24, 34, 35, 36 and 42. It's a quite narrow 13 order. What is it that you feel is a problem with that order? 14 MR. HENSEN: I think the whole case against me is 15 silly, Your Honor. 16 THE COURT: All right. It may be. It may prove to 17 be. But what is it that concerns you about the proposed order 18 and the current order, pending a determination after a hearing 19 as to whether or not there is a trade secret in the documents, 20 and whether or not the documents are in fact protected by 21 copyright? 22 MR. HENSEN: I have no problem with being restrained 23 by the T.R.O. as it's stated, except, of course, my objection 24 that I feel it's an unconstitutional interference with my rights 25 of free speech. 8 1 THE COURT: What -- free speech involves some 2 balancing. 3 MR. HENSEN: I'm only putting this on the record as 4 an objection. I will be glad to accept the T.R.O. as it is. 5 I'll abide by it, but I am objecting to it under those grounds. 6 THE COURT: Okay. You realize there will be a 7 hearing later to determine whether or not R.T.C. has a 8 protectable interest in these documents? Do you understand 9 that? 10 MR. HENSEN: I understand that. 11 THE COURT: And do you contest that these documents, 12 the ones that are named in this order, are subject to copyright? 13 MR. HENSEN: Not in the slightest, Your Honor. 14 THE COURT: Okay. 15 MR. HENSEN: Furthermore, I'm not even, even 16 slightly interested in receiving or seeing or commenting on or 17 posting any of those documents, any documents of R.T.C., which 18 are non -- which are examples of noncriminal sort of behavior. 19 THE COURT: And for the documents other than -- 20 well, have you seen any portion of any of the documents other 21 than 1, 24, 34, 35, 36 and 42? 22 MR. HENSEN: In fact, Your Honor, the only one I've 23 really looked at in any depth is 34. I started to look at 35, 24 but I actually didn't get very far with it. 25 THE COURT: So you have no idea as to whether those 9 1 other documents have anything in them that are, in your view, 2 criminal; correct? 3 MR. HENSEN: No, Your Honor. 4 THE COURT: And with respect to 34 and 35, which you 5 have seen, you're entitled to make fair use of those documents; 6 correct? 7 MR. HENSEN: That's, Your Honor, what I think I did. 8 THE COURT: Okay. Mr. Hogan, anything further on 9 the injunction request? 10 MR. HOGAN: Very briefly, Your Honor. 11 I do want the Court to understand, and Mr. Hensen to 12 understand, that what brings us here is not the fact that Mr. 13 Hensen, for well over a year, has been posting to the Alt 14 Religious Scientology Newsgroup. Indeed, those postings are 15 probably a foot in height if you stacked them on counsel table. 16 Most of the postings, if not all of them, demonstrate his animus 17 towards the Church of Scientology and its officers and its 18 lawyers and its principals. We have no quarrel with that. 19 What happened and what is put forth in the 20 declaration of Warren McShane is, of course, first he posted the 21 entirety of NOTs series 34. Then he said directly in these 22 postings that he was soliciting, whether legal or illegal, NOTs 23 postings because he wanted to post them, or all the NOTs 24 issues. 25 MR. HENSEN: No. 10 1 MR. HOGAN: That's what brought us here. 2 MR. HENSEN: I object, Your Honor. 3 THE COURT: Let him finish. 4 MR. HOGAN: That's what he said in his postings, and 5 those are Exhibits 1, 2 and 3 of the McShane declaration. 6 That's why we had to bring this lawsuit. 7 Mr. Hensen claims to be surprised in one of those 8 postings, which again is part of the exhibits I just referenced. 9 Mr. Hensen said, "I'm going to do this. I have a right to do 10 this. I'm the one who decides whether this is criminal or not. 11 I'm going to put this out there. If you want to sue me, I'll 12 accept service. Call me and I'll come to your office." 13 So I can't understand why he would be surprised. 14 This is his statement that he is challenging the authority of 15 this Court to give us what we've sought, namely a protective 16 order or injunction with respect to these copyrighted and trade 17 secret proprietary material. 18 THE COURT: I understood your request, and that's 19 why I was trying to ask him were the problem was. 20 Because you did post 34, right? 21 MR. HENSEN: Absolutely, Your Honor. And I 22 represent that that is not only criminal in nature, but a direct 23 violation of the court order which I have a copy of, I believe. 24 THE COURT: Well, again, it's not my court order. 25 MR. HENSEN: No. It's Judge Gesell's. 11 1 THE COURT: I have not seen that court order. 2 MR. HENSEN: I will be glad to either point you to 3 it, or I think I have a copy with me. 4 THE COURT: If you have a copy, I'd be curious to 5 see it. But what I hear, frankly, is there doesn't appear to be 6 any disagreement. The reason that you're here is because I did 7 view, based on the showing made by R.T.C., what you said as a 8 threat to post. 9 MR. HENSEN: Specifically, Your Honor -- 10 THE COURT: These documents -- 11 MR. HENSEN: Specifically, Your Honor, only 12 documents showing criminal intent or fraud in them. 13 THE COURT: But that was going to be on, at least 14 the way I read it, some unilateral decision by you, and you've 15 admitted to me this morning that these other documents, you 16 never even have seen them. 17 MR. HENSEN: Absolutely, Your Honor. I'm not saying 18 that I want any of them -- 19 THE COURT: Okay. 20 MR. HENSEN: -- that are noncriminal in nature. If 21 somebody has one that they view as being criminal in nature and 22 they send it to me and I decide that it's criminal in nature, 23 I'll take the risk of posting it. 24 THE COURT: And if you post it in violation of this 25 order, you're going to be in big trouble. 12 1 MR. HENSEN: I understand that, Your Honor. That is 2 what I would have done before this order. Obviously I'm not 3 going to post any of them now, even if they discuss murder. 4 THE COURT: Okay. All right. If you want to submit 5 that order, Mr. Hensen, I will certainly look at it. But I 6 think it's clear that I will enter the, as a preliminary 7 injunction, the order that I have entered as a T.R.O. on the 8 conditions of a bond as required. 9 So that there's no misunderstanding, I do want, 10 obviously, a bond posted. 11 All right. You have a request for early discovery, 12 right? 13 MR. HOGAN: We do, Your Honor. This is a request 14 that we be allowed to take Mr. Hensen's deposition some time 15 between now and May 15. I would speak to Mr. Hensen, or if he 16 gets counsel, his counsel, to work out a convenient time for him 17 to do that. Mr. Hensen, of course, lives here in San Jose. 18 THE COURT: Mr. Hensen, do you know what a 19 deposition is? 20 MR. HENSEN: Yes, Your Honor. 21 THE COURT: All right. Normally in a case when a 22 lawsuit has been filed, depositions, or what is called 23 discovery, which is depositions or what are called 24 interrogatories, sending written questions to the other side, 25 there's also a right to request documents from each other that 13 1 are relevant to the lawsuit, normally that does not occur until 2 the first, what's called case management conference, and I don't 3 know what date one was set in your case. 4 What R.T.C. is requesting is that before that they 5 be allowed to question you under oath pertaining to the issues 6 that are raised by this lawsuit. What I need to know is, one, 7 whether you have objection to that, and if you do, what it is; 8 and two, whether or not there's any request for discovery you 9 want to take of them before the case management conference. 10 Also, I would suggest to you that representation 11 might be in your best interest, but that's a call for you to 12 make. 13 MR. HENSEN: Your Honor, I might well get 14 representation, but it is not my opinion that a, than an 15 articulate person should be required to get representation for 16 something which is a clear violation of the constitutional 17 rights. 18 THE COURT: What's a violation of your 19 constitutional rights? 20 MR. HENSEN: I'm under, essentially, a restraint 21 where I don't dare, because of the chilling effect of this 22 order, quote any NOTs documents that anybody sends me, whether 23 they are criminal or not. 24 THE COURT: Well, that's a call you've got to make. 25 MR. HENSEN: I agree with Your Honor. Could I ask a 14 1 few procedural questions? 2 THE COURT: Quickly. But again, I can't act as your 3 lawyer. 4 MR. HENSEN: I'm not. This is not lawyer kind of 5 questions. 6 THE COURT: Okay. Go ahead. 7 MR. HENSEN: If I file in response to a suit against 8 the R.T.C. and relate it to the Erlich and Ward cases, am I 9 required to give notice to the related parties in the related 10 cases? 11 THE COURT: You asked the question, and that's a 12 good one, and I have not double checked. It may be that the 13 notice of related case that was filed by the R.T.C. was not 14 served on all the parties it should have been. 15 Did you, in the notice of related case, serve all 16 the parties in the Erlich-Netcom case? 17 MR. HOGAN: We just did that yesterday, Your Honor, 18 so we're late. Absolutely. 19 THE COURT: Okay. What the procedure is on that is 20 that whether the cases are related, after they file the proper 21 notice with notice to the parties, any parties can file an 22 objection. I believe under the Local Rules it's ten days 23 thereafter, and then since I have the lowest numbered case, I'll 24 make a decision as to whether the cases are related. 25 All related means is that they're assigned to the 15 1 same judge, and the purpose for that is so that not more than 2 one judge has to relearn the same facts and issues. 3 That's a different thing than the cases being 4 consolidated. If they're consolidated, they're all made as one 5 and the whole, and they proceed as one case. There has been no 6 request to consolidate this case with the Ward case or with, 7 I'll call it the Netcom case. They are not consolidated. There 8 will have to be a determination by me after I hear from the 9 others, or any parties that choose to respond to the notice, as 10 to whether or not the cases will be related. 11 MR. HENSEN: So there's some chance you won't be the 12 judge in this case after all? 13 THE COURT: There's some chance, but I, you know, I 14 haven't seen anything. I don't know who will file what. 15 MR. HENSEN: Okay. 16 THE COURT: I will say, just so you're clear, that I 17 initially I believe I did sign an order indicating that I 18 thought the cases should be related. However, I realized after 19 that that proper notice may not have been given, and I will -- I 20 was going to make sure that notice was given. 21 When Mr. Hogan raised it, he answered the question. 22 He's checked something I hadn't, and that is whether there was 23 proper notice sent. So there does need to be proper notice 24 sent, and it's been sent. I will check. 25 And then, as I say, the parties have ten days after 16 1 that to file an objection to the cases being related. Then 2 since I have, of the three cases that, at least I'm aware of, 3 since I have the lowest number in the district, the lowest case 4 number, I'm the one that makes the determination as to whether 5 the cases will be related, and I will make that determination. 6 MR. HENSEN: Okay. Second question is, assuming 7 that I'm deposed on this, do I get to depose the R.T.C.? 8 THE COURT: You have the same rights they do. 9 MR. HENSEN: If I claim that I'm too busy or some 10 similar excuse to show up, and if I refuse to show up at the 11 deposition, what would happen to me? 12 THE COURT: Well, now you're asking me to give you 13 legal advice, but basically each side has a right to take 14 depositions. If somebody doesn't show up for a deposition, they 15 can be sanctioned. 16 The way people professionally work is that 17 depositions are hopefully scheduled at a time when each side can 18 reasonably fit it in. That doesn't mean you can delay something 19 for days or weeks -- well, weeks or even days, but it does, 20 usually, mean that things can be scheduled to get around 21 problems. And I would expect Mr. Hogan, as he has in other 22 cases that I've had with him, to be willing to cooperate in that 23 type of activity. 24 MR. HOGAN: I'll represent to Mr. Hensen and the 25 Court that what the proposed order says is that once you and I 17 1 try to schedule a date, if we are unable to for any reason, or 2 if any dispute arises concerning any discovery, we then present 3 it to Magistrate Judge Infante and he resolves it. 4 And I should also mention, Your Honor, we've been 5 talking about the deposition. We also are going to request some 6 documents of Mr. Hensen prior to the deposition about that, and 7 I just wanted to be sure that was on the record. It's in the 8 proposed order. 9 MR. HENSEN: I have no problem with that. The 10 reason I'm actually asking this question is that the Scientology 11 group of people is rather known for it's, for certain David 12 Miscavige, for not showing up at all for depositions, and I was 13 wondering if I was going to be sanctioned, what sanctions I 14 would get. I was wondering if the same sort of laws apply to 15 them and they would get sanctioned if I can establish a reason 16 to -- 17 THE COURT: I think you know the answer to that. 18 MR. HENSEN: I would hope so. 19 THE COURT: And I will also say, to my knowledge, in 20 none of the cases in front of me has anybody brought to my 21 attention a claim that somebody that was associated with R.T.C. 22 failed to appear for a deposition. At least, as I sit here now, 23 I don't recall any such allegation being made, and I believe in 24 Mr. Erlich's case, and I don't know if Mr. Hogan knows or not, 25 but I think some depositions have been taken. 18 1 MR. HOGAN: Yes. 2 MR. HENSEN: Your Honor, can I get accelerated 3 depositions as well? 4 THE COURT: Who do you want to take the deposition 5 of and why? 6 MR. HENSEN: Well, I'm not exactly sure. I want to 7 be sure that I depose the right person, and for just the 8 procedural reasons here, could I get you to ask the R.T.C. 9 lawyers to provide me with a comprehensive list of the persons 10 who were on the other end of the faxes and phone calls for Mr. 11 Ward's deposition? In particular, I'd like to know if David 12 Miscavige was among that group of people. 13 THE COURT: Well, you can talk to Mr. Hogan, but I'm 14 not going to get into ordering either side to provide any 15 particular information right now. 16 If you want to take somebody's deposition, or you 17 want a request for -- it sounds like what you want to do is have 18 the right to send out some written questions to the R.T.C. that 19 they have to answer under oath, and if you want permission to do 20 that, I might well give you that permission. 21 MR. HENSEN: Since Mr. Miscavige seems particularly 22 difficult to serve, he's in fact managed to evade service for 23 more than a year, can I have the Court's permission to serve him 24 through his lawyers, through these lawyers? 25 THE COURT: I don't even know who he is. 19 1 MR. HENSEN: He's the power behind R.T.C., Your 2 Honor. 3 THE COURT: Well -- 4 MR. HENSEN: Or at least so is my informed belief. 5 THE COURT: But there's no claim against him. I 6 don't even know who you're talking about as far as why you want 7 him or who he is. 8 If you're telling me you want to file a lawsuit 9 against him and you have a basis for doing so, then do it. 10 If you're saying that you want to take his 11 deposition, then you can ask me to allow you to notice his 12 deposition. 13 If you want to do something else, I'm not going to 14 make orders here that I don't understand what's even being 15 requested. 16 MR. HENSEN: Okay. Thank you very much. That's the 17 only thing I have on the procedures, but would you be willing 18 perhaps to clear up a couple of points about this which I find 19 very confusing? 20 THE COURT: Again, I can't give you legal advice, 21 but what do you want? 22 MR. HENSEN: Did Your Honor read my letter of March 23 26th before the T.R.O. to Mr. Ward was issued? 24 THE COURT: I'm not going to sit here and answer 25 your questions about what I've done and not done. I try and do 20 1 a conscientious job. I think I do a conscientious job. I 2 generally read all papers that are submitted to me in legal 3 pleadings and letters that are addressed to me. Outside 4 pleadings, frankly, I generally do not read. So -- 5 MR. HENSEN: But you have read it by this point, I 6 guess, since it was part of the exhibits within the pleadings? 7 THE COURT: Mr. Hensen, I read the papers that are 8 submitted. I try to be conscientious. I believe I have read 9 that, but -- I don't know what more I can tell you. 10 MR. HENSEN: Thank you, Your Honor. 11 THE COURT: All right. So what is there -- all 12 right. As I understand it, Mr. Hensen does not object to his 13 deposition and a records request provided there's a means where 14 he can object to the records that are being requested. And if 15 you can't work it out between the two parties, then it can go to 16 Magistrate Judge Infante for determination. 17 MR. HENSEN: Your Honor, could I also get a limit on 18 that? 19 THE COURT: Okay. 20 MR. HENSEN: And as well as the same stipulations 21 that you made in the Grady Ward case, no abuse? 22 THE COURT: That goes to both sides without saying. 23 MR. HENSEN: Thank you. 24 THE COURT: By what date -- when do you want your 25 deposition taken by, Mr. Hensen? 21 1 MR. HENSEN: I, frankly, don't care. 2 MR. HOGAN: We simply ask for it between now and the 3 15th of May. 4 THE COURT: Is that agreeable? 5 MR. HENSEN: I would prefer that it be done sooner 6 than later. I'll work out a date with them, but within the next 7 five or ten days would be fine by me. 8 THE COURT: All right. And I'm going to do the same 9 thing I did with Mr. Ward, and that is limit it to one day 10 absent an application for addition time. 11 When can you get the document request that you want 12 from Mr. Hensen to Mr. Hensen? 13 MR. HOGAN: We'll certainly do it as promptly as 14 possible, Your Honor. 15 THE COURT: Let's do the same thing we did last 16 time. Why don't the two of you step out? What I want is a date 17 by which you're going to request the documents, a date by when 18 you have a right to object, a date by which you can go to 19 Magistrate Judge Infante for resolution, and a date by which the 20 deposition will be taken. The deposition will be limited to a 21 day absent a court order allowing a longer time, and I will send 22 out an order consistent with that. 23 MR. HENSEN: Okay. Your Honor, this will be 24 particularly easy for me to respond to because I have never even 25 seen a piece of this material in hard copy, and anything that I 22 1 have seen on it has been stuff which crossed the Internet. 2 THE COURT: You go talk to Mr. Hogan and work it out 3 and I will sign an order to that effect and everybody will be 4 clear. 5 MR. HENSEN: Thank you, Your Honor. 6 MR. HOGAN: Your Honor, before we conclude, I would 7 like to submit to Your Honor a second declaration of Mr. 8 McShane. Mr. Hensen mentioned the Gesell opinion or whatever it 9 is. I haven't seen it, and I would appreciate it if Mr. Hensen 10 would send me or provide me copies, whatever he's providing to 11 the Court. 12 THE COURT: That's one thing. Anything you send to 13 me -- 14 MR. HENSEN: It's in the Federal Supplement. 15 THE COURT: Excuse me? 16 MR. HENSEN: It's in the Federal Supplement. 17 THE COURT: Do you have a cite? 18 MR. HENSEN: Yes. It's cited in there, in that 19 thing I gave you. I believe Your Honor. 20 THE COURT: Yeah, 333 FSup 357. 21 MR. HENSEN: Yes. 22 MR. HOGAN: And then I have a proposed order and a 23 disc to give to your clerk, Your Honor. 24 THE COURT: The disc being? 25 MR. HOGAN: For the preliminary injunction if that 23 1 would be helpful. 2 THE COURT: Okay. Yeah, you can hand it in. 3 What I'm going to do is, because Mr. Hensen knows 4 basically what it is, it's essentially the same order as with 5 respect to the Mr. Ward exhibits. The exhibit numbers are 6 different. 7 MR. HOGAN: Exactly. 8 THE COURT: Okay. Thank you. 9 MR. HOGAN: Thank you Your Honor. 10 THE COURT: Thank you. 11 MS. BURKE: My name is Melissa Burke. I'm from 12 Pillsbury and we represent Netcom. I wanted to seek 13 clarification on whether R.T.C. should be giving notice to the 14 other parties regarding discovery. It sounds like the Hensen 15 deposition may take place prior to the time that the related 16 case order is ruled upon. 17 THE COURT: I don't think, and you can correct me if 18 I'm wrong, there's anything in the related case rules that 19 suggests that a party in a related case gets noticings of 20 discovery. You can correct me if I'm wrong, but I don't think 21 that's the case. 22 MS. BURKE: I guess our concern -- 23 THE COURT: If you want to have notice, I will ask 24 R.T.C. to give you notice. Now, that does not necessarily mean 25 you have any right to appear. 24 1 MS. BURKE: I understand that, Your Honor. 2 THE COURT: But if you want to know -- 3 You don't have any problem with that? 4 MR. HOGAN: None whatsoever, Your Honor, as long as 5 it's understood -- 6 THE COURT: If you look, maybe I should look right 7 now, but I don't think there's anything in the related case 8 rules that suggests that the fact that a case is related means 9 everybody in the related cases gets notice of everything. 10 MS. BURKE: I agree it's not clear on that. I 11 guess our concern is if at a later date these cases are 12 consolidated, we would like to be aware of what discovery -- 13 THE COURT: It can't be consolidated without a 14 motion to you. 15 MS. BURKE: At that point, the discovery may have 16 long since been conducted, and so if we could just have notice 17 of what's going on, we'd appreciate that. 18 MR. HOGAN: I have not talked to Melissa Burke 19 before this morning actually except on the phone yesterday, and 20 we have talked about this subject, but I have talked to at least 21 one of defense counsel and have said that I will put them on 22 notice of discovery that's going forward, and I will do that, 23 Your Honor. 24 MR. HENSEN: Your Honor, I'm going to be in a room 25 with six hostile lawyers having listened to somewhat of the 25 1 Grady Ward deposition. Does Your Honor have any problem with my 2 having someone of my choosing there with me? 3 THE COURT: They can't represent you unless they're 4 a lawyer. I mean, this is a public meeting. 5 MR. HENSEN: Thank you, Your Honor. 6 MR. HOGAN: One last thing, Your Honor, just so you 7 know. That declaration that I submitted this morning does deal 8 with the issue that Mr. Hensen raised about the criminal 9 activities or his assertions in the earlier postings about 10 criminal activities. I just wanted Your Honor to have that in 11 the file. 12 THE COURT: All right. Thank you. 13 MR. HOGAN: Thank you, Your Honor. 14 MR. HENSEN: Here's a copy of that. 15 THE COURT: Thank you. 16 MR. HOGAN: Thank you, Your Honor. 17 (Proceedings concluded.) 18 19 20 21 22 23 24 25 1 STATE OF CALIFORNIA ) ) ss. 2 COUNTY OF SANTA CLARA ) 3 4 I, the undersigned, a Certified Shorthand Reporter of 5 the State of California, hereby certify that the above 6 proceedings were held at the time and place herein stated; that 7 the statements by Counsel, The Court and other parties were 8 reported by me, a Certified Shorthand Reporter and disinterested 9 person, and were thereafter transcribed under my direction into 10 typewriting, and that the foregoing is a full, complete and true 11 record of said proceedings. 12 13 I further certify that I am not of counsel or attorney 14 for either or any of the parties in the foregoing proceedings 15 and caption named, nor am I in any way interested in the outcome 16 of the cause named in said caption. 17 18 IN WITNESS WHEREOF, I have hereunto set my hand this 19 26th day of April 1996. 20 21 22 ______________________________ LEE-ANNE SHORTRIDGE, CSR #9595 23 24 25