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over the Unpublished Ellen White Writings Lawsuit. This covers the time between November and December, 2012. For earlier correspondence between August and November, 2012, please see: http://www.scribd.com/doc/112303226/White-Estate-Lawsuit-Negotiation-Correspondence
TO: EMAIL: OUR REF: DATE: RE:
Brendan Knudson firstname.lastname@example.org SVB:AW:120622 9 November 2012
REPLY TO: YOUR REF: OUR EMAIL:
ELLEN G WHITE ESTATE INC v BRENDAN KNUDSON WITHOUT PREJUDICE SAVE AS TO COSTS
Dear Mr Knudson We refer to the above proceedings and previous correspondence. Our client is interested in continuing to negotiate with you to resolve the above proceedings amicably. We are instructed to present the following settlement offer to you: 1. 2. Our client will discontinue the above proceedings with no order as to costs once you attend to the below; You provide the names and contact details of the individuals from SDAnonymous who are either employees, contractors or volunteers with the Ellen G White Estate and or the Seventh Day Adventist Church. Please note that by way of compromise our client is not requesting the names of any individuals who are associated with SDAnonymous who are not either employees, contractors or volunteers with the Ellen G White Estate and or the Seventh Day Adventist Church; You destroy all original files you have stolen from our client and provide proof of such destruction, including the use of scrubbing software on relevant computers once the files have been destroyed; and You provide an undertaking in the form of a Deed not to copy, publish and or distribute any works of our client in the future.
We are instructed to remind you our client has already released Ellen White's writings to the public and they are currently available for free at different locations around the World so any effort to manipulate our client to release them in some proscribed format is unnecessary. The release of these Works was approved by the Board of our client well before you hacked our client's database and stole copies, but was delayed because of our client's efforts to ensure the Works were released properly, i.e., with annotations. Any delay that has resulted is due to the amount of time and work involved in preparing the Works, nothing more. With that said, our client is not willing to be manipulated or threatened by any deadlines created by SDAnonymous. The
2 Brendan Knudson 9 November 2012
Board of our client will consider this issue further but there will be no offer to immediately release these materials. The above offer remains open for acceptance by you for a period of seven days after which time it will lapse. Please revert to us as soon as possible. We are hopeful that you will recognise that the above offer is fair and reasonable and that it will be accepted so that this matter can come to an end. Please note that if SDAnonymous disseminates material in the fashion foreshadowed by you in recent correspondence, this will result in our client negotiating no further with you. Finally we are instructed to retract the recent statement made by our office in relation to bankrupting you in Australia. Please be advised that we do not currently hold and have not held in the past any instructions to bankrupt you. We apologise for any confusion caused in this regard. Yours faithfully FERGUSON CANNON
PERSONAL ASSISTANT: ANGELA WILSON
November 12 Dear Samuel, I am sending our response. The terms of your clients offer are mostly acceptable with slight clarification and modification, conditional on your client taking a few additional steps towards the middle. We are very happy to be so close to a resolution which is acceptable to us. I hope to hear from you soon. Regards -Brendan Knudson
November 12, 2012 Dear Mr Barber, Thank you for the letter from your client in re-entering negotiations. I am happy to hear that despite the appearances of your email from last week your client has stated they have no intention of seeking to bankrupt me. I hope this continues to be so. On behalf of SDAnonymous, I want to say that we are glad that your client has started to dialogue. There are several points to clarify, but there is much about your client's offer that is acceptable to us. I hope we can take the last steps towards finding a mutually acceptable middle ground. Regarding point 1, I am very pleased to hear of the continued willingness of your Client to discontinue proceedings if an agreement can be reached. As a point of clarity, are they also willing to discontinue proceedings in the United States? It would be an odd situation if the settlement offer only arranged to discontinue proceedings in Australia, yet continued to pursue matters in the United States. Please let me know how far this term extends. Regarding point 3, I am happy to destroy all original files I possess that have been copied digitally from your client and provide as much proof as possible of such destruction. Please note that I am making two distinctions here: (1) I will not be promising to destroy any files that were obtained from research at the Ellen G. White Research Center at Avondale College; (2) I am rejecting the portrayal of the act SDAnonymous engaged in while copying the digital writings as "stealing", for it does not fit the legal definition of the act by either human or divine law. Furthermore, I am happy to accept point 4 of your client to take a written undertaking not to copy, publish or distribute any copyrighted works of your client in the future, however I would like to make a point of clarity. I would expect as part of this that I would not face restrictions above and beyond any other member of the public, including the ability to copy, publish and distribute out-of-copyright works (such as Desire of Ages, etc.), and the ability to make fair use of quotations from protected works in research. Also, I would expect that I would not face restrictions on visiting Ellen White Research Centers, including at Avondale College, to conduct research in the future. Regarding point 2, I understand your Client's concerns in making the request. However this is not a point on which I can compromise. It was stated in the August 11 counter-offer that this was not negotiable. However I do want to do everything I can to allay the concerns behind this stipulation. I can provide, as part of the undertaking of point 4, a written assurance that SDAnonymous has disbanded and all activities will cease. The only list of names I am able to provide are not those of co-conspirators, but of the more than 600 people who have already signed an online petition for the White Estate to release the unpublished writings. Members of SDAnonymous have chosen not to sign this form so as to preserve their anonymity. Regarding the statement that your Client has already approved the release of the writings, we are aware that this happened in the 1990's. Your client went on the record to members of the public that this release would be as soon as the CD-Rom was completed, which happened, according to your client's affidavit evidence in 2002. The first volume of the annotation project was announced in 2005 as being close to completion in that year. I hope your client can see from these statements and their lack of release at this point in 2012 that there is good reason for the public to be disappointed in their progress.
I understand that your client doesn't wish to be seen making decisions based upon threats or manipulation by SDAnonymous. I see this as the reason they do not wish to give assurance of immanent release of the writings. Still, we would like to see the White Estate commit to a publically accessible timetable of release. This could be done not as a reaction to SDAnonymous, but in response to the public interest in such a project independent of the actions of SDAnonymous. SDAnonymous have never been against the annotation project. We believe, though, that the writings do not have to wait for this to be released. From the evidence we have from pre2003, including emails from agents of your client, it appears that your client agreed with this before embarking on the annotation project. Having read among the unpublished writings since we acquired them, I cannot see anything that would require annotation before release. Therefore if your client could agree to produce, before the end of the year, a publicly viewable timetable for the release of the unpublished writings both digitally and in print in response to the wider public interest, we would be appeased on this point. SDAnonymous could have released everything months ago when our online ministry was shut down. We prayerfully decided that the most Christ-like thing to do would be to allow your client the opportunity to do the right thing by releasing these writings in a speedy manner. We have responded promptly and in detail to every communication from your office which required attention. We applaud the progress in this latest offer, and with clarifications and modifications that have been suggested, I will be happy to accept within the seven days outlined in the offer, provided that your office can mediate negotiations between now and Friday. In summary, we are asking for: 1. Clarification on points 1, 3 and 4 of your offer regarding the matters raised; 2. The acceptance of your client regarding modification to point 2 of the offer regarding disbanding of SDAnonymous, rather than disclosure of identities; and 3. The agreement of your client to provide to the public on their website a timetable of release in response to the public interest in the unpublished writings. We continue to hope and pray that your client will sieze the opportunity to resolve this matter in the most peaceful manner. Kind regards Brendan Knudson
November 15 Dear Samuel, Please advise whether you received my response on Tuesday and whether you anticipate ease of negotiations, or whether the time of your clients offer will expire due to time zone delays. Regards, -Brendan Knudson
November 15 Dear Brendan Knudson We refer to your below correspondence. We are waiting on instructions from our client. As soon as we have instructions we will revert to you. Yours faithfully
Dear Samuel, Failure of your client to attend promptly to the requests for clarifications and further steps towards a middle ground has now eaten up the time your client allotted for acceptance of the offer. Without the clarifications and further steps to answer to our concerns regarding the release of the writings, we cannot accept the offer as it was presented a week ago, but with the modifications that were suggested, we would be ready to settle. Please let me know if the tenor of your client's discussions with your office are towards taking further steps or whether the last offer was as far as they were willing to go. Kind Regards Brendan
TO: EMAIL: OUR REF: DATE: RE:
Brendan Knudson email@example.com SVB:DJ:120622 21 November 2012
REPLY TO: YOUR REF: OUR EMAIL:
ELLEN G WHITE ESTATE INC v BRENDAN KNUDSON
Dear Mr Knudson We refer to the above proceedings and your most recent "settlement" correspondence. We are instructed to respond as follows: 1. Our client will only withdraw the proceedings in the US once a settlement is reached in the above named proceedings; 2. Our client will not entertain any settlement that does not involve the disclosure of the leaders of SDAnonymous, as well as those insiders who are employed by the Church, or who are contractors or volunteers. Such disclosure is necessary to protect the interests of our client into the future; 3. To date, you and your SDAnonymous co-conspirators have stolen from our client and were subsequently ordered by the Federal Court of Australia not to disseminate the relevant stolen material. Yet, even after such order, you reposted the stolen material until the site was shut down through our efforts, and then threatened to release more materials should our client not meet your unreasonable demands. Such behaviour is illegal and obviously outside the beliefs of the Seventh Day Adventist Church; 4. Our client's Counsel in the US will, in the immediate future, move to amend the Complaint in the US and identify ____________ as a "John Doe" defendant should an agreeable settlement not be reached. Based on the evidence obtained and your utter lack of cooperation in revealing your SDAnonymous accomplices, our client is left with no choice but to identify your co-conspirator, unless you can immediately provide authentic, reliable information to negates her involvement and present a sensible settlement proposal to our client; 5. As for the issuing of a timetable for releasing the writings of Ellen G White, the Board of our client will consider this issue at its upcoming Board meeting in early 2013. As you know the holidays are approaching and the attendance of every Board member will be necessary before a decision of this magnitude can be made. Please respect our client's process for making decisions; 6. Your email of 12 November 2012, mentions that "The terms of your clients offer are … conditional on your client taking a few additional steps towards the middle." You fail to address any concessions you have been willing to make. The only concessions you have made and any significant actions you have taken thus far have been a result of the orders of the Federal Court of Australia, not of your own
2 Brendan Knudson 21 November 2012
fruition. Instead, SDAnonymous has shown a lack of cooperation, especially on the part of identifying all the materials they've acquired and the names of key the members of SDAnonymous and Church insider cohorts; 7. The recent postings on www.scribd.com of the communications between you and our office, as well as your blog entries and commentary on websites, cannot be viewed as an affirmative effort to settle the matter as you claim. Instead, these actions demonstrate your lack of good faith and an effort to incite discord within the Church. Your efforts to use social media to garner support are fueling the litigation and must cease immediately. Before negotiations can fruitfully continue, any commentary or other postings must be removed from public view. Please revert to us in relation to the above as soon as possible.
Yours faithfully FERGUSON CANNON
PERSONAL ASSISTANT: ANGELA WILSON
November 22 Dear Samuel, Attached here is my reply to your most recent communication. I would appreciate an acknowledgement of receipt. I have been encouraged by the more regular correspondence in these negotiations and would hope to see that continue. The status of the correspondence which has been posted on scribd depends on how negotiations go from here. It will be removed if more positive steps are taken. Regards,
November 22, 2012 Dear Mr Barber, Thank you for getting back to me regarding our response to negotiations. Regarding your first point, the most recent offer of your client contained no such assurances regarding withdrawal of the proceedings in the US. Thank you for clarifying this. I would hope to see this stated clearly if we could come to a final settlement. Moreover, the wording of other terms was so large in scope that without clarification, I cannot accept them. They are so broad that the acceptance of the offer could conceivably restrict me from even quoting from works of your client in research. Your communication does nothing to clarify those points. You say in point 2, regarding disclosure of the identities of SDAnonymous members or contacts with employment within the Seventh-day Adventist Church, "Such disclosure is necessary to protect the interests of our client in the future." The only thing that will protect the interests of your client is their full transparency and the release of the writings of Ellen White. Unless your client wishes to give the impression that the un-annotated reading of the unpublished Ellen White's writings would not be good for your client's interests. We have made every concession possible in this regard and I have even offered to enter into a written undertaking as to the disbanding of SDAnonymous as soon as your client commits to a release timetable which this latest response indicates they are willing to discuss at the next board meeting. I see from point 3 that you and your client are determined to continue to use volatile and inaccurate language in these negotiations. I refer to terms such as "co-conspirators", "stolen", "threatened", "unreasonable demands". This language does nothing to further peaceful and amicable resolution. We have, to date, abstained from discussing on that level. I have already addressed your use of "stolen" as legally inaccurate in the past. The legal definition of theft would require that your client was permanently deprived of the writings. This is not the case. Your client still holds both paper and digital copies of the writings, so there has been no "theft" that has occurred. You state incorrectly that I "reposted" the material after the order from the Federal Court. That is not at all what happened. All I did was respond to the DMCA take down notifications issued by your client's attorneys in the United States. The material was reposted automatically by the internet service providers when we filed those responses. Moreover, you give the impression that the "threat" of SDAnonymous making the material freely available occurred immediately after the material was reposted, before your client took further action in the U.S. No "threat" of the release was passed onto your office until MONTHS of silence from your client on the matter of negotiations. Now that negotiation correspondence has recommenced, the release of any material is on hold in hope of becoming redundant. You characterise our attempts to negotiate as "unreasonable demands". I find this very ironic in view of the fact that your client's first offer of settlement came across as overbearing and without consideration for the predicament they were in by rushing to legal discourse without having their facts straight, not even knowing I was not resident in Australia. My communications with your office have been most cordial and responses have always been swiftly sent whenever they have been necessary.
I found it interesting that your client still seeks to take a high moral ground by saying, "Such behaviour is illegal and obviously outside the beliefs of the Seventh Day Adventist Church." The SDA Church also has beliefs about lawsuits with other believers, regarding these as a last course. The action of your client is contrary to the directions of the Church Manual in the sense that legal action was their first option, not their last resort. Moreover, the SDA Church teaches that our duty for God must come before our duty to civil law, anticipating that some day the governments of the world will legislate agains Saturday Sabbath observance and demand that Christians worship on Sunday. In such instances, the Church upholds the Bible teaching that it is better "to obey God rather than men" (Acts 5:29). As such, our acquisition of the messages of God to Ellen White for the purpose of making them available for public release is a higher duty which we obeyed and do not at all see your client's attempts to colour this as "illegal" as a stain upon our consciences. Your client appears less interested in "beliefs of the Seventh Day Adventist Church" and more interested in winning a legal settlement, even if it means acting contrary to the teachings in the writings they claim to protect. Regarding point 4, I take the threatened inclusion of my wife in the legal proceedings as a further threat against my family. You have already threatened that your client wished to bankrupt me in Australia if third parties in SDAnonymous took further initiatives in the release of the writings (though you backed down from this more recently), and now you appear to think that by threatening my wife, I and others will back down and give in to what I see as "unreasonable demands". Any "evidence" your client may have against her will be as circumstantial as your "evidence" against me. I will take responsibility for the creation of any accounts that involve similar aliases to the ones my wife uses. All accounts on "hackforums" created in the SDAnonymous campaign to acquire the writings were used by multiple anonymous users, so your client will never be able to prove who the actual users were at any time. This is my testimony and as such counts as "authentic, reliable information". My wife's only involvement in this matter has been moral support for my participation in this worthy endeavor to acquire and make available the writings your client has withheld from the people of the SDA Church. Regarding point 5, and your request to "Please respect our client's process for making decisions", I would like to ask where is your client's respect for timeliness and the integrity of these proceedings? Or for the public demand that the writings be made available? We do not live in an age where geographical absence prevents the ability to hold board meetings. Many of the agents of your client live or work within close proximity to Silver Springs, Maryland. Those who do not could attend a meeting in person could do so via phone or online video conferencing. Before taking a legal path, they should have been prepared for extra meetings that would have resulted. These are choices your client has made. We respect your client's choices and even their right to such negligence, but are not bound by these things. Regarding point 6, I am baffled that you and your client seem to have completely overlooked the concessions that have been repeatedly offered in our attempts to resolve this matter at the least cost to your client, both financially and publically. I do not deny that SDAnonymous are not willing to cooperate in the identification of its key members or those who are employees of the Church. These are the concessions we have been willing to make in our settlement offers from the time negotiations began until now:
- (August 11 counter-offer) "Provide a copy of all information obtained from the https://egwwritings.org database..." (this is contrary to your accusation of a "lack of cooperation... on the part of identifying all the materials... acquired") - (August 11 counter-offer) "Provide a detailed explanation of the measures used to gain access to the database for the purposes of future protection, as well as other vulnerabilities we know of." - (August 11 counter-offer) "Disband SDAnonymous and cease all online activity promoting the independent release and sale of the complete letters and manuscripts of Ellen White." - (August 11 counter-offer) "Promote, as one final act, to all our supporters so far, the projects of the Ellen G. WhiteEstate, Inc. to release the complete letters and manuscripts of Ellen White and to digitise other holdings relating to Adventist Heritage." - (August 11 counter-offer) "Make an online apology on http://egwletters.webs.com to the Ellen G. White Estate, Inc. for working independently of the official channel of the Church." - (August 11 counter-offer) "Channel existing funds received by SDAnonymous into the Ellen G. White Estate, Inc translation work as well as the project outlined in point “C” of the expectations of the White Estate below." - (August 11 counter-offer) "Provide details for the online location of the infringing copies of the 7Volume Daniel and Revelation Committee Series, if it hasn’t already been located." - (August 11 counter-offer) "Make a transfer gift of the following domain names to the Ellen G. White Estate, Inc. (ellenwhiteletters.com, ellenwhitemanuscripts.com, unpublishedellenwhite.com, ellenwhiteunpublished.com)" - (November 12 communication) "I am happy to destroy all original files I possess that have been copied digitally from your client and provide as much proof as possible of such destruction." - (November 12 communication) "I am happy to accept point 4 of your client to take a written undertaking not to copy, publish or distribute any copyrighted works of your client in the future..." - (November 12 communication) "I can provide, as part of the undertaking of point 4, a written assurance that SDAnonymous has disbanded and all activities will cease." I implore your client to engage with this point especially as it is also our wish to have a peaceful and honourable resolution to this matter upon which we would no longer have need of SDAnonymous. These concessions have been of our volition without prompting by the Federal Court of Australia. The additional concessions of the August 11 counter-offer we are still willing to include in negotiations. As well as all current additional concessions. From a personal perspective, I understand that in this situation, your client feels offended that their perceived "rights" have been breached, even if they aren't looking at the perspective of other people's rights that they themselves have continually breached through the restrictions placed upon the unpublished writings. Your client's hasty reaction in initiating lawsuits without taking genuine steps suggests that they are interested in some form of satisfaction over the matter. I also understand that your client wishes to "save face" in the public and doesn't want to be seen as releasing the writings because of prompting by SDAnonymous who it sees as rebels. We have tried to accommodate your client's unspoken concerns by offering to apologise publically, and showing that the support for the release of the writings is much larger than SDAnonymous through our petition campaign, suggesting how they could act so that it didn't look like giving in to the pressure of a small group. We have attempted to alleviate the concerns regarding members and employees of the SDA Church who participated because they felt duty bound in their consciences to
see these writings in the hands of the people. We have offered to disband and cease all subversive activities. We have only stopped short of supplying names as we fear this may facilitate retribution that your client might wish to take. Others have faced employment termination in the past for similar "unauthorised" release of these writings, such as Claude Holmes and Ron Graybill. If your client is closing their eyes to the concessions we have made above and the conciliatory approach I have endeavoured to take to these negotiations, it is out of our control. We cannot control the attitude your client takes towards us or these proceedings. I repeat that the only time that it was suggested that your client's refusal to attend to discussions could result in the free public release of the writings was after months of silence from your office. In retaliation, your office has within two weeks made threats against my wife and my financial standing. Such communications are not conducive to healthy negotiations. Even in the earlier stages, we avoided releasing any public press statement in response to inquiries until your client missed a reasonable deadline in negotiations (if your client can expect responses in 7 days, we consider that it accepts such a length of time as reasonable). We have communicated promptly and cordially. We have made every concession our consciences would allow in bringing this to a satisfactory end. My only hesitation in accepting the remaining broad terms of the last offer is a fear of an attempt to entrap me into contractual commitments restricting my use of Ellen White's writings for the duration of my life while leaving your client open to continue further action in other countries. As you can see from this repetition of some of the history of our communications, which are freely available for everyone to see, your recent communication does not accurately represent either the timeline or the facts. The caricature you present of our actions in these negotiations is a disheartening suggestion your client is unwilling to move beyond seeing SDAnonymous as rebels and themselves as the only ones "wronged" and that even our good faith attempts to make every concession to resolve this peacefully are either ignored or maligned. I am truly sorry that your client has chosen to dig their heels in with this last reply. My wife and I have been praying that this would be resolved peacefully and she has been an ardent supporter of trying to make every effort to allow your client to do the right thing. Our hope is a return to negotiations with a humble and Christian attitude around the table. In hope Kind regards Brendan Knudson
November 27 Dear Samuel, I never received an acknowledgement of receipt for this email... Has there been any response to this? Regards Brendan
November 28 Dear Brendan I acknowledge receipt of the correspondence. I am waiting on instructions in relation to a response. Regards
Dear Brendan Knudson We refer to the above proceedings and previous correspondence. As you are aware, a defence was due to be filed on 28 November 2012. Despite this, you have not served us with a defence. In addition, a search of the court record indicates that a defence has not been filed. Although, in our view, the late provision of the particulars would not have impacted in any way on your ability to prepare a defence by the due date, my client is prepared to allow you until 5 December 2012 to file and serve the defence. Yours faithfully
Dear Samuel, I do not see how your Client can itself ignore deadlines and be responsible for delays both in the proceedings and in negotiations and maintain a reasonable expectation of punctuality on our part. In your "further and better particulars" of November 7, three small paragraphs referenced a document, not initially sent to me, which I had to request. This document, it appears, is an existing document of your Client's records and therefore there is no justification for the fortnight delay. The paragraph 21 contained no "further and better particulars", but maintained the sufficiency, contrary to the orders of October 17, of the original statement of claim. The reason that you do not believe that the 14-day late provision of the meagre "further and better particulars" would have "impacted in any way" my ability to prepare a defence is that you are only thinking of your Client's "view". I am representing myself, with a team of amateur researchers from among SDAnonymous and friends not connected to SDAnonymous. The annexure you sent contains over 8000 references of manuscripts and letters which we need to verify from the data we have obtained. I will endeavour to have my affidavits, defence and notification of address for service filed this week, which would still be ahead of the fortnight over deadline it took your office of professional legal officers and a Client which employs numerous staff members worldwide to submit a few lines of "further and better particulars" based on a pre-existing document. I am very sorry for that you and your Client are having to experience the delays and waiting which has been standard for us since your office initiated these proceedings. Perhaps you could secure a commitment together with your Client to make these proceedings which they have initiated (together with all related communication) more of a priority and there will be no further cause for delays. Regards, Brendan Knudson
*Note* The documents, available here and here were not filed as hoped by Brendan due to personal illness, but were filed with the same delay as the White Estate had taken – 14 days.
Dear Samuel, Could you please let me know what happened at the Friday hearing and whether any orders were made, etc, and what took place at that time. Also, what is the progress of negotiations on your client's end? The last communication towards settlement was our response (dated November 22) to your email of November 21 in which certain threats were made as well as refusal to engage with certain points of our proposals. Could you please let us know if a response will be forthcoming and what might be causing such long delays? I am waiting on a more positive dialogue from your client before removing the postings on scribd.com. We still do desire to find a peaceful resolution to this whole situation. Kind regards, -Brendan Knudson
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