1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Ira P. Rothken, Esq. (State Bar. No. 160029) ROTHKEN LAW FIRM 1050 Northgate Dr., Suite 520 San Rafael, CA 94903 Telephone: (415) 924-4250 Facsimile: (415) 924-2905 Cindy A. Cohn, Esq. (State Bar No. 145997) Fred von Lohmann, Esq. (State Bar No. 192657) Robin D. Gross, Esq. (State Bar No. 200701) ELECTRONIC FRONTIER FOUNDATION 454 Shotwell Street San Francisco, CA 94110 415-436-9333 x108 (Phone) 415-436-9993 (Fax) Attorney for Plaintiffs Craig Newmark, Shawn Hughes, Keith Ogden, Glenn Fleishman and Phil Wright UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA PARAMOUNT PICTURES, CORPORATION, et al., Plaintiff, vs. REPLAYTV, INC., et al., Defendant AND CONSOLIDATED ACTIONS Case No.: CASE NO. CV 01-09358 FMC (Ex) (Consolidated with Case No. CV 02-04445 FMC Ex)) SUPPLEMENTAL MEMORANDUM IN SUPPORT OF NEWMARK PLAINTIFFS' OPPOSITION TO ENTERTAINMENT COMPANIES' MOTION FOR PROTECTIVE ORDER

1 SUPPLEMENTAL MEMORANDUM IN SUPPORT OF NEWMARK PLAINTIFFS' OPPOSITION TO ENTERTAINMENT COMPANIES' MOTION FOR PROTECTIVE ORDER 1

CASE NO. CV 01-09358 FMC (Ex) &CONSOLIDATED ACTIONS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

I. INTRODUCTION

The Newmark Plaintiffs hereby provide the Court with the following supplemental information in support of their contentions in the Joint Stipulation: 1. Revised information about the proportion of documents produced by the Entertainment Companies to which EFF would be precluded from access under the Entertainment Companies’ request. Based upon these new figures, it appears that EFF would be precluded from an even greater percentage of the total documents than the earlier estimate of 78%; 2. 3. Declarations of four of the Newmark consumer plaintiffs expressing Argument that the Entertainment Companies' request does not even their concern about the possible effective disqualification of EFF Attorneys; and meet the test for a protective order for commercial competitors.
II. THE PROPOSED RESTRICTION ON EFF ATTORNEYS’ ACCESS TO DOCUMENTS IS NOT “NARROWLY TAILORED” AND IS GREATER THAN PREVIOUSLY ADVISED.

Based on information provided to Newmark Plaintiffs since filing of the Joint Stipulation, it appears that the proportion of documents to which EFF Attorneys would be precluded is greater than the 78% estimate previously indicated in Newmark Plaintiffs’ portion of the Joint Stipulation. Decln. of Nancy Meeks, senior litigation paralegal at Fenwick & West, Exh. A. That figure was based on a very rough, informal review of the documents by the Newmark Plaintiffs’ fourth counsel of record, Mr. Ira Rothken on September 25, 2002, supplemented informally by personnel at Fenwick & West LLP. Subsequently Fenwick & West has advised that additional documents have been produced to it by the Columbia Plaintiffs and Fenwick personnel have had the opportunity to conduct a more thorough review. Based on the revised information, it appears that a total of 708,000 pages have now been produced. Meeks Decln.¶6.
2 SUPPLEMENTAL MEMORANDUM IN SUPPORT OF NEWMARK PLAINTIFFS' OPPOSITION TO ENTERTAINMENT COMPANIES' MOTION FOR PROTECTIVE ORDER 2 CASE NO. CV 01-09358 FMC (Ex) &CONSOLIDATED ACTIONS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Although no figures are currently available for the total proportion of documents that would be excluded in the five categories of documents the subject of the Entertainment Companies’ request, based on the figures available for the “Department of Justice” (“DoJ”) category of documents, it appears that EFF would be excluded from a greater proportion of documents than previously advised. The DoJ documents category by itself constitutes approximately 65% of the total documents produced, Meeks Decln ¶8. The Entertainment Companies’ counsel originally made a “blanket designation” that all documents produced to the Department of Justice were designated “Highly Restricted”. Despite some recent downgrading of the confidentiality of some of those documents, it appears that EFF Attorneys would be precluded from accessing over 95% of that category of documents, if the Entertainment Companies’ request were granted. Meeks’ Decln.¶ 9 -11. Along with the Entertainment Companies’ financial information and business plans (past and present), these documents are likely to be the most probative for the fair use claims in the Newmark Plaintiffs’ case.
III. THE PROPOSED ORDER WOULD MATERIALLY PREJUDICE THE NEWMARK PLAINTIFFS BY EFFECTIVELY REMOVING THEIR CHOSEN COUNSEL, THE EFF ATTORNEYS

Filed herewith are declarations from four of the five ReplayTV owner plaintiffs, Craig Newmark, Phil Wright, Glenn Fleishman and Keith Ogden (Exhibits B, C, D and E respectively), attesting to their concerns should EFF effectively be removed as their chosen counsel of record. As the declarations confirm, the Plaintiffs explicitly chose EFF to be counsel because of EFF’s public statements and advocacy on these and related issues.

3 SUPPLEMENTAL MEMORANDUM IN SUPPORT OF NEWMARK PLAINTIFFS' OPPOSITION TO ENTERTAINMENT COMPANIES' MOTION FOR PROTECTIVE ORDER 3

CASE NO. CV 01-09358 FMC (Ex) &CONSOLIDATED ACTIONS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

IV. THE ENTERTAINMENT COMPANIES' CLAIMS DO NOT EVEN MEET THE BASIC STANDARD FOR LIMITING ATTORNEY ACCESS IN A COMMERCIAL COMPETITION CONTEXT, MUCH LESS EXTENDING THAT STANDARD TO REACH A NON-COMMERCIAL COMPETITOR, EFF.

The Newmark Plaintiffs’ contentions in the Joint Stipulation explain why EFF should not be considered a business competitor of the Entertainment Companies, and EFF Attorneys are not engaged in “competitive decisionmaking” and are not “in-house counsel.” Yet even under the legal test for excluding commercial competitors, the Entertainment Companies’ arguments fail. Purely having the status of competitive in-house counsel is not a sufficient basis for restricting access, since courts have explicitly rejected the notion of a blanket exclusion of in-house counsel. U.S. Steel v. U.S., 730 F. 2d. 1469. Courts apply a three-factor balancing test to weigh up the competing interests of parties seeking discovery who are entitled to all information reasonably calculated to lead to the discovery of admissible evidence with the need to protect parties from the misuse of trade secrets by competitors: 1. the nature and complexity of the litigation; 2. whether alternative discovery measures exist which would assist the in-house counsel to develop the litigation; and 3. whether in-house counsel is engaged in competitive decisionmaking on behalf of a business competitor. Volvo Penta of the Americas, Inc. v. Brunswick Corporation, 187 F.R.D. 240 (E.D Va. 1999). The key determinative factor is whether in-house counsel is engaged in competitive decision-making. Brown Bag Software, 960 F. 2d 1465, 1470; Amgen, Inc., v. Elanex Pharmacy, Inc., 160 F. R.D. 134, 137-138 (W.D.Wash. 1994); Fluke Corporation v. Fine Instruments Corp et al, 1994 WL 739705 (W.D. Wa. 1994). The request here fails on all three tests. First, the complexity of the claims in the present case support EFF Attorneys’ involvement. In U.S. v. Sungard Data
4 SUPPLEMENTAL MEMORANDUM IN SUPPORT OF NEWMARK PLAINTIFFS' OPPOSITION TO ENTERTAINMENT COMPANIES' MOTION FOR PROTECTIVE ORDER 4 CASE NO. CV 01-09358 FMC (Ex) &CONSOLIDATED ACTIONS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Systems, Inc., 173 F. Supp.2d 20, the court declined to exclude access of in-house counsel on the basis of the tight litigation schedule, the complexity of the claims, and because in-house counsel’s significant knowledge about the industry gave them a “much deeper and complete understanding of the documents being produced," Id, at 21. In the present case, the complexity of the claims in issue, the 700,000 pages produced so far, the tight discovery schedule where depositions are already underway and the EFF Attorneys’ long experience with these issues all suggest that it would “create an extreme and unnecessary hardship,” (U.S. Steel Corp, 730 F. 2d. at 1468) to exclude EFF Attorneys. Second, no alternate discovery is readily available to assist Newmark Plaintiffs’ counsel in determining what the likely effect on the market will be from the Newmark Plaintiffs’ use of the ReplayTV. The Entertainment Companies’ own analyses of current and potential markets for their works is not only the best, but also potentially the only data available on the future markets, as well as the most authoritative source for base data about the current and past markets for their works.1 Finally, in considering whether to restrict access to in-house counsel, courts have generally relied on the terms of the existing protective orders in place, the in-house counsel’s professional and ethical obligations as a member of the Bar and the possibility of attorney sanctions, together with individual attorney liability, as the appropriate means of containing the risk of inadvertent disclosure, rather than blindfolding counsel. See U.S. V. Sungard, supra, at 21-22; Volvo, at 245: “The Court re-affirms its belief that, as the U.S. Steel Corp. decision reasoned, the all-important codes and model rules of professional conduct,
1

The Entertainment Companies’ claims of the extreme sensitivity of the documents produced do not, by themselves, increase the risk of inadvertent disclosure or change that analysis. Volvo Penta at 244 (“[T]he Court hesitates to resolve a discovery dispute based on the uncertain calculus of how sensitive a litigant perceives its confidential data is; attempting to objectively gauge that sensitivity at this preliminary stage of litigation would not lend itself to efficient or predictable judicial decision-making”).
CASE NO. CV 01-09358 FMC (Ex) &CONSOLIDATED ACTIONS

5 SUPPLEMENTAL MEMORANDUM IN SUPPORT OF NEWMARK PLAINTIFFS' OPPOSITION TO ENTERTAINMENT COMPANIES' MOTION FOR PROTECTIVE ORDER 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

coupled with the specter of attorney sanctions or even disbarment, should also allay many of [the].. concerns of intentional or unintentional disclosure of its information.” The Entertainment Companies have failed to demonstrate that these mechanisms would not be sufficient to prevent EFF Attorneys from revealing confidential information in this case.
CONCLUSION

Based upon the foregoing, the Newmark Plaintiffs respectfully request that the Entertainment Companies’ request for a further protective order be denied and that the EFF Attorneys be ordered to enter into the existing Protective Order dated May 29, 2002, and thereafter be granted immediate access to all documents produced to date in this litigation.
Dated this 7th day of October, 2002

Cindy Cohn on behalf of all Attorneys for Newmark Plaintiffs ELECTRONIC FRONTIER FOUNDATION Cindy A. Cohn, Esq. (State Bar No. 145997) Fred von Lohmann, Esq. (State Bar No. 192657) Robin D. Gross, Esq. (State Bar No. 200701)

ROTHKEN LAW FIRM Ira P. Rothken, Esq (State Bar. No. 160029)

6 SUPPLEMENTAL MEMORANDUM IN SUPPORT OF NEWMARK PLAINTIFFS' OPPOSITION TO ENTERTAINMENT COMPANIES' MOTION FOR PROTECTIVE ORDER 6

CASE NO. CV 01-09358 FMC (Ex) &CONSOLIDATED ACTIONS

Exhibit A – To Supplemental Memorandum

Oct-3-0214:11;

Page 3/3

1 600,000pagesthat the entertainmentcompanieshave produced so far, to prove
!

2 my case.

3

I

I declare underpenaltyof perjuryunderthe lawsof the UnitedStates

4 Ithat the foregoing is true and correct and that this declaration is executedin

5 SanFrancisco. California.on October3, 2002. 6
i

7
8 10 12 13 14
.5
~

~'&A~
Craig Newmark

"--

16

17 18
19

20 21 22

23
24

2S 26 27 28
2
DECLARATION OF CRAIG NEWMARK IN SUPPORT0.. FMC NEWMARK rLAlNT1FFS' STIPULATION FOR DOCUMENT ACCESS

A CONSOLIDATED

Exhibit C – To Supplemental Memorandum

lefe~/2ee2

11:32

7&686457&4

C.It£F~

p~

a~

Ira P. Rothken,Esq.(StateBar No. 160029) 2 ROTHKEN LA W FIRM 1050NorthgateDrive, Suite520 3 SanRafael,CA 94903 4 Telephone: (415) 924-4250 Facsimile: (415) 924-2905
5

I

6 Cindy A. Cohn, Esq. (State Bar No. 145997)
Fred yon Lohmann, Esq. (State Bar No. 192657) !Robin D. Gross, Esq. (State BarNo. 200701) 8 ELECTRONIC FRON11ER FOUNDAllON

7
9

i

454 ShotwellStreet
SanFrancisco, CA 94110

10 Telephone: (415) 436-9333 xlO8 1 racsimile: (415) 436-9993 12 14 15 16 17 8
UNITED STA YES DISTRICT COURT

Attorneysfor Plaintiffs Craig Newmark,Shawn 13 Hughes,Keith Ogden, GletUl Fleishman and Phil Wright
I

CENTRAL DISTRICT OF CALIFORNIA

19 20
21
22
I

PARAMOUNT PICTURES CORPORAllON. et. aI."

CASE NO. CV 01 -09358 FMC (Ex) (Consolidated with CaseNo. CV 02-04445 FMC (Ex) DECLARATION OF PHIL WRIGHT IN SUPPORT OF NEWMARK PLAlNTIF'FS' OPPOSITION TO COPYRIGHT OWNER PLAINTlFl"S' MOTION FOR PROTECTIVE ORDER

Plaintiffs,

v.

23 REPLA YTV, INC., et. a/.,

24 25
26 27 28

Defendants. AND CONSOLIDA TED ACnONS.

DECLARATION OF PHIL WRIGHT IN SUPPORTor NEWMARK PLAINTIFFS' OPPOSITION

-

CASE NO. CV 01.9358FMC & CONSOLffiATED ACTIONS

18/84/2802 11:;32

7608045764

Clt£FC9I

p~

82

1 It Phil Wrightt herebydeclare: 2 4
5 6

. 2.

I am an engineer working on video editing technology) specializing I own a ReplayTV4000unit andam oneof the plaintiffs in the case

3 in Personal Media Synthesis, based Carlsbad, in California.
entitledNewmarket al v. Turner,case CV 02-0444(now consolidated no. with the caseentitledParamount PicturesCorporation ReplayTV,case CV 01v. no.
9358), which seeksa declaration that use of my ReplayTV to record television programs and skip commercials is legal.

7 8 9

10
11 12 13 5

3.

I have heard from my lawyers, the Electronic Frontier Foundation

(EFF),that the attorneys representing entertainment the companyplaintiffs are attempting preventthe EFF lawyersfrom viewing andusingthe majority of to documents the entertainment that companies haveproducedto Replayrv, Inc.,

14 which the EFF lawyers believe are important to proving my case.

4.

I approachedEFF to seeif it would representme after the Court

16 made an.order requiring ReplayTV to modify ReplayTV units to monitor and
17 I~apturepersonal infonnation about ReplayTV users' use of the ReplayTV , I 18 includingwhat programs record.

9

5.

I chose EFF asmy counselbecause its expertise copyrightand of in

20 technologylaw, andits long-heldcommitment protectingthe rights of to 21 consumers relationto digital technology. I decidedto askEFF to represent in
22 me because knew from readingtheir public statements they were I that 23 committedto the principlesof fair use,andwould vigorouslyrepresent in my me 24 actionto obtaina declaration my useof my ReplayTVunit is legal. that 6. I believethat my casewill be materiallyharmedif the EFF

25
26 27

attorneys are prevented from accessingand using the majority of the over

28
DECLARATION OF PHIL WRIGHT IN SUPPORTOF ~"EWMARK PLAINTIFFS' OPPOSmON CASE NO. CV 01-9358FMC & CONSOLIDATED ACTIONS

10/84/ 260c2

ll~32

7&08045704

Clr£F~

p~

03

1 600,000 pagesthat the entertainmentcompanieshave produced so far, in order
2 to prove my case. 3 I declareunder penalty of perjury under the laws of the United States
,

4 5

i

that the foregoing is true and COlTect that this declaration is executedin and Carlsbad, California, on October 4, 2002

6 7
8

9
10

Phil Wright

11
12 13
14

15 16 17 18
9

20 21 22 23 24

25
26
27 28

2
\

-CASE NO. CV 01-9358FMC & CONSOLmA TED ACTIONS

DECLARATION OF PHIL WRIGHT IN SUPPORTOF NEWMARK PL~'TIFFS' OPPOSITION

Exhibit D – To Supplemental Memorandum

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Ira P. Rothken, Esq. (State Bar No. 160029) ROTHKEN LAW FIRM 1050 Northgate Drive, Suite 520 San Rafael, CA 94903 Telephone: (415) 924-4250 Facsimile: (415) 924-2905 Cindy A. Cohn, Esq. (State Bar No. 145997) Fred von Lohmann, Esq. (State Bar No. 192657) Robin D. Gross, Esq. (State Bar No. 200701) ELECTRONIC FRONTIER FOUNDATION 454 Shotwell Street San Francisco, CA 94110 Telephone: (415) 436-9333 x108 Facsimile: (415) 436-9993 Attorneys for Plaintiffs Craig Newmark, Shawn Hughes, Keith Ogden, Glenn Fleishman and Phil Wright

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

PARAMOUNT PICTURES CORPORATION, et. al.,, Plaintiffs, v. REPLAYTV, INC., et. al., Defendants. AND CONSOLIDATED ACTIONS.

CASE NO. CV 01 -09358 FMC (Ex)
(Consolidated with Case No. CV 02-04445 FMC (Ex))

DECLARATION OF GLENN FLEISHMAN IN SUPPORT OF NEWMARK PLAINTIFFS’ OPPOSITION TO COPYRIGHT OWNER PLAINTIFFS’ MOTION FOR PROTECTIVE ORDER

1
DECLARATION OF GLENN FLEISHMAN IN SUPPORT OF NEWMARK PLAINTIFFS’ OPPOSITION

-CASE NO. CV 01-9358 FMC & CONSOLIDATED ACTIONS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

I, Glenn Fleishman, hereby declare: 1. 2. I am a freelance journalist, based in Seattle, Washington. I own a ReplayTV 4000 unit and am one of the plaintiffs in the case

entitled Newmark et al v. Turner, case no. CV 02-0444 (now consolidated with the case entitled Paramount Pictures Corporation v. ReplayTV, case no. CV 019358), which seeks a declaration that use of my ReplayTV to record television programs and skip commercials is legal. 3. I have heard from my lawyers, the Electronic Frontier Foundation (EFF), that the attorneys representing the entertainment company plaintiffs are attempting to prevent the EFF lawyers from viewing and using the majority of documents that the entertainment companies have produced to ReplayTV, Inc., which the EFF lawyers believe are important to proving my case. 4. I approached EFF to see if it would represent me after the Court made an order requiring ReplayTV to modify ReplayTV units to monitor and capture personal information about ReplayTV users’ use of the ReplayTV, including what programs I record. 5. I chose EFF as my counsel because of its expertise in copyright and technology law, and its long-held commitment to protecting the rights of consumers in relation to digital technology. I decided to ask EFF to represent me because I knew from reading their public statements that they were committed to the principles of fair use, and would vigorously represent me in my action to obtain a declaration that my use of my ReplayTV unit is legal. 6. I believe that my case will be materially harmed if the EFF attorneys are prevented from accessing and using the majority of the over 600,000 pages that the entertainment companies have produced so far, in order to prove my case. 1
DECLARATION OF GLENN FLEISHMAN IN SUPPORT OF NEWMARK PLAINTIFFS’ OPPOSITION

-CASE NO. CV 01-9358 FMC & CONSOLIDATED ACTIONS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct and that this declaration is executed in Seattle, Washington, on October 5, 2002.

Glenn Fleishman

2
DECLARATION OF GLENN FLEISHMAN IN SUPPORT OF NEWMARK PLAINTIFFS’ OPPOSITION

-CASE NO. CV 01-9358 FMC & CONSOLIDATED ACTIONS

Exhibit E – To Supplemental Memorandum

se":~ ~y: ClpRoCkService"

Ll8itadj

210 348 0490;

Oct.7-0211:08AUj

Page 1

1 IIra P. Rothken,Esq.(S~

,

,

Bar No. 160029)

2 IROTHKEN LAW ARM ) 1050NorthgateDrive, Su,itc 520 3 I SanRafael,CA 94903 ; 4 I Telephone: (415) 924-4~50 Facsimile: (415) 924-2~O5 5
I

6 Cindy A. Cohn. Esq. (S,,~ Bar No. 145997)
Fred YonLohmann, Esq~ (State Bar No. 192657) Robin D. Gross, Esq. (s,i4tc Bar No. 200701) 8 ELECfRONIC FRON"1ilBR FOUNDAnON 454 Shotwell Street: . 9 SanFrKncisco,CA 941 ~Q 10 Telephone: (415) 436-9~33 xl08 Facsimile: (415) 436-<)<jJ3

;

7

,

;

12
I

Attorneysfor Plaintiffs draig Newmark, Shawn

13 Hughes, Keith Ogden. Glenn ¥Ieishmanand Phil Wright
14 15 16 7 18 19 20
CASE NO. CV 01 -09358 PMC (Ex)
(Consolidated with CaseNo. CV 02-04445 FMC (Ex»

UNITED STATES DISTRICT COURT CE~RAL DISTRICT OF CALIFORNIA

2
22

23
24
2~

DECLARA nON OF KEIrn OGDEN IN SUPPORT OF NEWMARK PLAINTIFFS' OPPOSITION TO COPYRIGHT OWNER PLAINnFFS'

MonON

FOR PROTEC'.'IVE ORDER

26 27 28
1
DECLARATION OF KElT1IOGDEN IN SUPPORT OF NKWMARK PLAINTIFFS' OppoSmON CASE NO. CV 01.~358 FMC &. CONSOLmATED ACTIONS

Se~~,8y: ~pAock ServJ.ces Lillitedj

210 348 0490;

Oct 7-0~ 1

06AUj

Page 2/3

I

It Keith Ogden, hereby d~lare

2

1

am a licen~~dsecuritiesbroker-dealer and the owner of a small

3 financialbroker-dealer doescapitalintroduction~.This broker-dealer ~~t is 4 Ibased SanFrancisco. in C~omia. have never owned or shorted Sonicblue.
~ the manufacturerof the R~playTV'4000 in any account own or control.

6
7

2.

I own a R~~yTV 4000unit andamoneof the plaintiffs in the case
I

entitledNewmarket al v: rumer, case CV 02-0444(now consolidated no. with
the caseentitled Paramow~t PicturesCorporation v. ReplayTV, caseno. CV 01: !

8 9

10
1 12

9358).which seeks deql~tion that useof my ReplayTVto recordtelevi~ion a programs skip co~cia1s and is 1egai

3.

I have heard from my lawyerst the Electronic Frontier Foundation

13
I

(EFF).that the attorneys ~presentingthe entertainment company plaintiffs are

14 attempting to prevent the-~FF lawyers from viewing and using the majority of

15 documcntsthat the entert$n~nt companieshave produced to ReplayTV, Inc.,
16 which the EFF lawyers ~~ieve are important to proving my case.

17
.8

4.

I approached JEFFto seeif it would represent~

after the Court and

made an order requiring ~eplayTV to modify ReplayTV units to ~nitor

19 capture personal informa~on about ReplayTV users' use of the ReplayTV ,
20 including what programS~ record,

2 I chose EFF ~ my counsel becauseof its expertise in copyright and 5 22 :tcchnologylaw, andits long-heldco11Dni~nt to protectingthe rights of
23 con~umersin relation to ;<figitaltechnology. I decided to ask EFF to represcnt , 24 I me becauseI knew from reading their public statementsthat they were 25
26 committed to the principl~s of fair use, and would vigorously representme in my action to obtain a declaration that my use of my ReplayTV unit is legal
I

;

27 28

Sent "

By: CapAockServices. Liaitedj

210 348 0490;

Oct.7.0211:07AM;

Page 3/3

1
!

6.

I believetl)~ my casewill be materiallyharmed the EFF if

2 attorneys are prevented~~m accessingand using the majority of the over

3
4

[ 600,000 pages that the ~~ertainment companies have produced so far, in order

to prove my case.

5
I

I declareunderpe~ty of perjuryunderthe laws ot'the United States
San Francisco~ Califomi~J on October 4, 2002.

6 that the foregoing is b"Ue COITect that this declaration is executedin ~d and 7 .
8

9 10

11
12
13

/'

Keith Ogden

14 5

16
17
18

19

20
21
22

23 24 25 26
27

28
.,
DECIARA nON OF KEITH O~DEN IN SUPPORT OF NEWMARK PLAINTlFt.S' OPl-OSn'10N

CASE NO. CV 01.9358FMC & CONSOLmA TED ACTIONS