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Transcript Of Conference Call For Depositin Of Dr. Thomas Osdene (4/29/97)
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION - - - - - - - - - - - - - - - - - - In re: : : Subpoena for video deposition : April 29, 1997 of Thomas Osdene : : Misc. No. : 3:97MC05 - - - - - - - - - - - - - - - - - - TRANSCRIPT OF CONFERENCE CALL BEFORE THE HONORABLE ROBERT E. PAYNE UNITED STATES DISTRICT JUDGE APPEARANCES:
SANDRA M. BEVERLY, RPR OFFICIAL COURT REPORTER UNITED STATES DISTRICT COURT
2 1 THE COURT: All right. I have a court reporter. 2 Please identify yourselves for the record now and when you 3 speak. 4 MR. WESTBROOK: Judge, from down in Charleston, South 5 Carolina for the plaintiff, Ed Westbrook. I'm here with Alex 6 Wagner. 7 MR. NUNES: Good afternoon, Your Honor, Gary Nunes 8 from Howrey & Simon, representing Dr. Thomas Osdene. 9 MR. BROOKE: Good afternoon, Your Honor, Rob Brooke 10 from Mays & Valentine. I'm local counsel for Doctor Osdene. 11 THE COURT: All right. 12 MR. NUNES: Judge Payne, Gary Nunes speaking. Todd 13 had called me last week and said it was appropriate to have a 14 status conference at the time to apprise the court of what is 15 occurring with respect to this deposition. 16 As Your Honor will recall, we were last before you on 17 April 3rd, and at that time, we informed you that the state of 18 Minnesota had refused to participate jointly with the state of 19 Texas in one deposition of Doctor Osdene to be conducted 20 consistent with your orders in the Texas matter. 21 And at that time, we also agreed with Texas, they were 22 kind enough to agree with us to postpone or adjourn the 23 deposition until May 13th to allow us the opportunity to go to 24 the Virginia state court on a motion for protective order 25 regarding the Minnesota subpoena.
3 1 THE COURT: Right. 2 MR. NUNES: We did do that. We filed a motion for 3 protective order in the Circuit Court of Richmond, the court 4 from which the subpoena issued, and a hearing had been scheduled 5 for tomorrow at three o'clock before Judge Hughes. 6 On April 25th, we received a copy of a letter from the 7 lawyers for the state of Minnesota to Donna Lithgow, I guess the 8 deputy clerk of the Richmond Circuit Court, advising the 9 Richmond Circuit Court that they were withdrawing their 10 subpoena, and that they claim that they're withdrawal of the 11 subpoena is based on the fact that issues that have arisen with 12 respect to Doctor Osdene's deposition they believe are more 13 appropriately resolved by the trial judge in Minnesota. 14 We are perplexed by their actions, and we just believe 15 that what they are doing is trying to thwart our interest in 16 having one deposition. So, in any event, that's where it stands 17 with respect to Minnesota. 18 There was also, Your Honor, another matter, a 19 sensitive matter, which I thought it would be appropriate to 20 discuss with the court at this time, which I think makes it all 21 the more reasonable to try to have these depositions together 22 and which may obviate at least the need for Texas, the lawyers 23 for Texas, to spend four hours with Doctor Osdene. 24 And I would just ask that, consistent with Your 25 Honor's April 3rd ruling regarding the contents of the
4 1 deposition, that this discussion be maintained under seal. 2 THE COURT: Well, do you have any objection to that? 3 MR. WESTBROOK: Your Honor, this is Ed Westbrook. Not 4 knowing what counsel is about to say, I don't object. I don't 5 have any objection right now. 6 THE COURT: It's kind of hard to object in the blind, 7 isn't it? 8 MR. NUNES: Yes, Your Honor. I understand that. I 9 wanted to preface my comments. I will go ahead. I think Mr. 10 Westbrook would understand. 11 THE COURT: All right. Well, Mr. Nunes, wait one 12 minute. As I understand it then there is no proceeding in front 13 of the Circuit Court of the City of Richmond anymore; is that 14 right? 15 MR. NUNES: Your Honor, the hearing has not been 16 canceled. 17 THE COURT: Oh, okay. 18 MR. NUNES: As of now, I believe it will be probably 19 likely that we will be appearing in the Circuit Court of 20 Richmond. 21 MR. WESTBROOK: Gary, didn't you say that Minnesota 22 had withdrawn their subpoena? 23 MR. NUNES: They have indicated they have withdrawn 24 it, but the hearing -- as I understand, there has been no 25 postponement of the hearing.
5 1 MR. WESTBROOK: Well, the judge I used to clerk for 2 said, when you win, sit down. 3 MR. NUNES: Well, I understand that. 4 THE COURT: I will leave that to you, but that's 5 fine. As I understand it, you all have agreed to reschedule the 6 dates in May. The reason I had Mr. Greenberg call you was 7 because I wanted to make sure that if I was still, as was the 8 original plan, either supposed, myself, to be available to deal 9 with any difficulties during the deposition or to have a 10 magistrate judge available, that I could make those plans. And 11 it was very important to us because we are one judge down right 12 now. 13 So we were trying to -- I was trying to get my 14 logistics straightened out. I'm glad to have this report, and I 15 understand you are still going forward on May 12th or 13th, or 16 whatever it is. Is that right, Mr. Nunes, or not? 17 MR. NUNES: I believe it's the 13th. 18 THE COURT: All right. Whatever dates they were, are 19 you still going forward then? 20 MR. WESTBROOK: Your Honor, Ed Westbrook. We 21 discussed this morning the dates, and that's our intention to go 22 forward beginning on Tuesday the 13th. 23 THE COURT: All right. Then there will be somebody 24 from here available to handle any problems that arise should 25 that be necessary. You can just call Ms. Hooper. She will know
6 1 what to do. 2 Now, Mr. Nunes, you had something else that you want 3 to raise, and what is it now? 4 MR. NUNES: Your Honor, as the court may know, there 5 is a parallel criminal investigation that's being conducted into 6 the tobacco industry by the Department of Justice. We recently 7 met with the Department of Justice to ascertain Doctor Osdene's 8 status with respect to that investigation, especially in light 9 of the fact that there were these pending civil depositions. 10 The Department of Justice made it clear to us that at 11 this point in time, Doctor Osdene's role, as the former Director 12 of Research for Philip Morris, is within the scope of their 13 investigation. 14 We advised them of the pending civil depositions and 15 asked whether he would be immunized, given his age, his health, 16 his position in the company, etcetera. And while Justice agreed 17 that he may be a candidate for immunity, they would not immunize 18 him at this time. 19 So in light of that situation, with respect to the 20 criminal investigation, it is our intention to advise Doctor 21 Osdene to assert his Fifth Amendment privilege in any civil 22 deposition to be held until this investigation is concluded or 23 he is immunized. 24 And that's why I'm asking that this be placed under 25 seal, and I thought that, in light of that disclosure, that the
7 1 State of Texas may not need their four hours with Doctor Osdene, 2 and perhaps we can have a shorter time period. 3 MR. WESTBROOK: Well, this is Ed Westbrook, Your 4 Honor. Certainly, until we get there and start asking the 5 questions, I don't know if we will touch on anything that Doctor 6 Osdene will find potentially a concern or not. 7 But as the court is to be concerned over the last two 8 hearings, we are concerned that Doctor Osdene, like all of us, 9 isn't getting any younger. So I think it's our preference to go 10 ahead and let's see where we go. This is the first I've heard 11 about there particular situation. I guess until we get to that 12 bridge, we won't know whether it's a problem or not. 13 THE COURT: Well, it seems to me that the usual 14 practice is to require a witness to assert the privilege 15 question by question, because only then can you really determine 16 anything. Isn't that the way it's usually done, Mr. Nunes? 17 MR. NUNES: Your Honor, I understand that. But I'm 18 just stating for the benefit I thought this might help the 19 plaintiffs in terms of -- in light of the fact that his role as 20 the former Director of Research, which is I believe the 21 questions that they are going to be asking him about, that any 22 question of that nature is going to prompt that response, given 23 this investigation. 24 THE COURT: Well, it might. I don't know. I 25 certainly don't know that, and I would assume if he claims the
8 1 Fifth Amendment, there is not much we can do about it, is there, 2 Mr. Westbrook? 3 MR. WESTBROOK: Well, I guess a number of things could 4 happen between now and then. DOJ may decide something one way 5 or the other. Doctor Osdene may feel that it's his privilege to 6 assert if he wants, but he may feel that the questions we are 7 asking him are not areas he has any concerns about and answer 8 them freely. I'm like Your Honor, I don't really know until we 9 get to it what Doctor Osdene's responses are going to be. 10 THE COURT: Well, your plan would still be to continue 11 with the deposition, Mr. Westbrook? 12 MR. WESTBROOK: Yes, Your Honor. 13 THE COURT: All right. Well, then we go forward with 14 the deposition. Where is it going to be? 15 MR. NUNES: It will be at Mays & Valentine, Your 16 Honor. 17 THE COURT: Have you all worked out the videotaping 18 arrangements and so forth? 19 MR. WESTBROOK: This is Ed Westbrook. I think we 20 have. 21 THE COURT: As long as you are happy with them, that's 22 fine. 23 MR. WESTBROOK: While we are on the phone, Your Honor, 24 I did want to inquire of counsel. We had an agreement on some 25 documents to be sent to counsel that would be used in Doctor
9 1 Osdene's deposition from the Philip Morris files. We had sent 2 those over there. 3 I believe the former counsel for Doctor Osdene said he 4 didn't see there should be any questioning of Doctor Osdene 5 about the authenticity of documents. He thought Philip Morris 6 should agree to the authentication. The documents came from 7 their files. 8 Although Doctor Osdene has now different counsel, we 9 are assuming that we are still operating under that theory, and 10 I am not planning on taking time with Doctor Osdene to 11 authenticate the Philip Morris documents. 12 THE COURT: All right. Mr. Nunes, where do you stand 13 on that? 14 MR. NUNES: I'm sorry, what was the agreement you had 15 with the former counsel? 16 MR. WESTBROOK: Part of the agreement was, we are 17 going to send forty Philip Morris documents that we choose with 18 Doctor Osdene in advance so he can have a chance to discuss this 19 with Doctor Osdene. 20 MR. NUNES: Right. 21 MR. WESTBROOK: And that the question that came up is 22 whether we could send more than forty, and counsel said, no, he 23 didn't think any more than forty would be necessary, especially 24 since he didn't see there was any need to take time with Doctor 25 Osdene on authentication because Philip Morris should be
10 1 expected to agree to the authentication of documents that come 2 from its files. 3 I understand you can't bind Philip Morris, but we are 4 operating under the ground rules that we had with the former 5 counsel, that is that we are not going to ask Doctor Osdene 6 about authentication of documents and take up part of our 7 precious four hours under that assumption. 8 MR. NUNES: Are you asking me to stipulate to their 9 authenticity? 10 MR. WESTBROOK: No, I don't think you can do that. 11 But are you aware of that correspondence? 12 MR. NUNES: I'm not -- well, I looked at the 13 correspondence, and while that, in particular, does not stand 14 out, I will contact Williams & Connolly with regard to that, and 15 I'm willing to try to work something out with you on that. 16 MR. WESTBROOK: Okay. 17 THE COURT: The other way to solve the problem, of 18 course, is for you to tender written questions on matters of 19 authenticity and ask those if you can't work this out. 20 MR. WESTBROOK: Okay. 21 THE COURT: In other words, if you have any questions 22 of Doctor Osdene about authenticity, you can ask him whatever 23 you need to ask by way of written questions. 24 MR. WESTBROOK: I understand, Your Honor. I think we 25 should be able to work it out among counsel for the company and
11 1 counsel for the witness ourselves. 2 THE COURT: Yes. But have you given everybody who is 3 involved copies of the forty or so documents as to which you 4 wish to use in the questioning? 5 MR. WESTBROOK: Your Honor, I believe we sent them to 6 Doctor Osdene's counsel. I have to check to see whether counsel 7 has been -- all other counsel has received copies of those 8 documents. 9 THE COURT: I think you ought to do that, 10 particularly -- It's Philip Morris documents you say? 11 MR. WESTBROOK: Yes, the forty are Philip Morris 12 documents. That was a related matter. I wanted to be sure 13 everybody was clear on the record. We would intend to ask 14 Doctor Osdene about publicly available reports that everybody is 15 familiar with, like the Surgeon General's report, etcetera, and 16 we haven't sent copies of those voluminous documents in 17 advance. But we have sent the Philip Morris documents that 18 Doctor Osdene was personally involved in. 19 THE COURT: Yes. But I think it would be helpful to 20 your deposition, Mr. Westbrook, if you give him all the 21 documents you are going to ask him about so that you won't spend 22 any of your time with him reading documents. 23 I mean, they may be voluminous. I don't know how big 24 these reports are, but I think that it would be to your 25 advantage to give them all the documents you are going to ask
12 1 him about so he won't spend any time with him sitting there 2 having to read documents. You can't ask a witness a question 3 about the document unless the witness has seen the document. 4 MR. WESTBROOK: Your Honor, I think your suggestion is 5 well-taken and there probably won't be a large number of those. 6 I think that might speed things along. I would hope then -- 7 and, of course, we can't predict in advance that when we hand 8 Doctor Osdene the Surgeon General's report from 1964 that he 9 won't take thirty of our first sixty minutes saying he had to 10 read the document. 11 THE COURT: Well, he better not because if he does, 12 he'll be facing some additional time. That's the purpose of 13 requiring you to give these documents ahead of time. 14 MR. WESTBROOK: I think your suggestion is well-taken, 15 and we will set about to do that and work that out with counsel. 16 THE COURT: I don't think you will see Mr. Nunes pull 17 a stunt like that. 18 MR. NUNES: No. But, Your Honor, I should say, even 19 with respect to documents, that may implicate the Fifth 20 Amendment as well. 21 THE COURT: Mr. Nunes, if it does, it does. That I 22 cannot deal with. 23 MR. NUNES: Okay. 24 THE COURT: That's a matter between you and your 25 client. But I'm just talking about having him sitting there
13 1 reading documents after they have given them to you ahead of 2 time. 3 MR. NUNES: I understand that, Your Honor. 4 THE COURT: All right. Thank you all very much for 5 the report, and I will assume that there is no need to have a 6 telephone call tomorrow as you had planned to do following that 7 state court hearing because it sounds to me like there may not 8 be one. If for some reason you need a telephone call, I will be 9 around tomorrow afternoon. 10 MR. NUNES: Your Honor, there is one additional issue, 11 and again it goes back to this sealing point. 12 THE COURT: That was the next thing I was going to 13 raise. Is there any need to seal this now? He's going to be in 14 a deposition. He's going to claim the Fifth Amendment. 15 MR. NUNES: Well, yes, Your Honor, because, Your 16 Honor, on April 3rd, at our urging, because of the fact there 17 has been information disclosed from depositions in the past, and 18 to decrease the stress on Doctor Osdene, you entered an order 19 saying the contents of the deposition should not be disclosed to 20 anyone other than the litigants until such time as that 21 application is made to the Texas court. If the Texas court sees 22 fit at that time to disclose it, then so be it. 23 So in order to effectuate that, Your Honor, we would 24 just ask that the deposition be sealed so that if the plaintiffs 25 do apply to the Texas court that any pleading they file would
14 1 not mention what went on at the deposition, including the 2 assertion of the Fifth and, likewise, that there be no mention 3 of this conference, that this be under seal as well. 4 MR. WESTBROOK: Your Honor, Ed Westbrook for the 5 plaintiff. We have some significant concern about sealing this 6 deposition. Even in these conferences have gone on with the 7 court, and there have been numerous depositions that have been 8 taken, and they have generally been normal depositions. 9 I've been at a number of them, except for when counsel 10 for the defense designate some trade secret information -- and I 11 do acknowledge, Your Honor, that you had issued an order I think 12 before the last hearing on sealing the deposition, but we don't 13 see that there is judicial cause for it to be done, and we do on 14 the record oppose that. 15 MR. NUNES: Your Honor, we would disagree, given the 16 health situation of Doctor Osdene, that anything to hit the 17 press -- and we see that everything is hitting the press with 18 respect to tobacco litigation -- is like to increase the stress 19 on Doctor Osdene. 20 Your Honor has already entered into an order or 21 entered an order for that purpose in this litigation. I think 22 it's appropriate, and Your Honor was seeking to preserve the 23 status quo until otherwise directed by the United States 24 District Court for the Eastern District of Texas. So we think 25 it is highly appropriate, given Doctor Osdene's health, that
15 1 this matter be kept under seal until such time that the Texas 2 judge rules otherwise. 3 THE COURT: Well, as I understand it, basically, I 4 have held -- well, I don't have my April 3rd order here. What 5 does it say? 6 MR. NUNES: Your Honor, I can read it for you. 7 Specifically, paragraph five of your order states: The 8 deposition of Mr. Osdene shall be used solely for purposes of 9 this litigation only. Neither the deposition nor its contents 10 may be released to or made available to anyone other than 11 counsel in this litigation and the staff of counsel. 12 This provision of this order shall remain in effect 13 unless and until it is otherwise directed by the United States 14 District Court for the Eastern District of Texas, Texarkana 15 Division, in which this action is pending. It being the 16 intention of this court to preserve for that court the decision 17 respecting the disclosure of the deposition or its contents. 18 Any person found to have violated this provision shall be 19 prosecuted to the full extent of the law. 20 Your Honor, that was entered after we had discussion 21 about Doctor Osdene's health and an incident that occurred with 22 respect to a deposition taken by the plaintiffs in Richmond that 23 ended up in the Richmond Times. 24 MR. WESTBROOK: Your Honor, Ed Westbrook. We don't 25 see any basis for sealing the deposition, other than on the
16 1 ground traditionally used, that is, sensitive trade secrets 2 should be redacted from the deposition, something along those 3 lines. 4 Doctor Osdene is a citizen, bound like any other 5 citizen to give evidence in a public form. There is no grounds 6 for sealing this deposition. 7 THE COURT: Well, that's really going to be a matter 8 for the Texas court to deal with. I kept it under seal or I 9 kept it confidential so the court can decide what it wants to do 10 with it. That's not within my province, I don't think. 11 The only thing I'm concerned about is causing problems 12 that slow down this deposition or that impair in any way the 13 health of the deponent, given the record that's been submitted 14 to me. If I recall correctly, there was -- and I'm not sure 15 about this, but by recollection is there was no objection to my 16 doing what's in paragraph five of the order. 17 MR. NUNES: That is my recollection, too, Your Honor. 18 In fact, it was I believe Mr. Motley who was on at the time. I 19 believe Alice Wagner was present during that conference as well. 20 THE COURT: Well, whatever. That transcript will 21 reflect whatever it is that is in there. My recollection is far 22 from perfect. And if it is the plaintiff's desire that they 23 wish some revisitation of that, that provision of the order, 24 then they are going to have to file a motion and deal with it in 25 the ordinary course of things because there is already an order
17 1 that's been entered. 2 Now, with respect to this transcript, I don't see 3 there is any need to seal this transcript. Why is there a need 4 to seal this transcript? 5 MR. NUNES: Well, Your Honor, I think because it 6 involves what will take place at the deposition, and, therefore, 7 it would serve the same purpose in terms of Doctor Osdene is 8 going to be asserting the Fifth, that should likewise be kept 9 confidential and sealed at this time because it deals with what 10 is going on in that deposition. It would defeat, I think, the 11 purpose of Your Honor's order in paragraph five. 12 MR. WESTBROOK: Your Honor, Ed Westbrook. We 13 certainly disagree with that. Now to go back and seal the court 14 orders about how depositions are to be conducted, I've never 15 heard -- I've been in practice twenty years, but I've never 16 heard of that. 17 THE COURT: Mr. Westbrook, I don't think he's asking 18 for sealing the court order. 19 MR. WESTBROOK: I think he's asking to seal the 20 transcript of this hearing in which the court has made the 21 ruling. 22 THE COURT: I haven't made a ruling yet, but I'm going 23 to, but I haven't made one yet. So I assume, Mr. Nunes, that 24 what you want sealed is only that part of the transcript which 25 deals with the information you gave that he's going to claim the
18 1 privilege. 2 MR. NUNES: That is correct, Your Honor. 3 THE COURT: All right. Now that you know what he's 4 talking about, Mr. Westbrook, what's your objection to sealing 5 that part of it? 6 MR. WESTBROOK: Your Honor, we object to that because 7 if someone is invoking a constitutional privilege, it's the 8 constitutional privilege that you invoke such a privilege in 9 secret -- or he hasn't even invoked it yet. Counsel has said 10 it's his intention to invoke it if some questions are asked that 11 he feels may somehow implicate some sensitive interest of his. 12 I don't think there is any ground for sealing 13 counsel's statement about what his client may do if something 14 else happens hypothetically when the privilege is a 15 constitutional right. 16 MR. NUNES: Your Honor, I find this argument difficult 17 in the sense that Mr. Motley agreed to it. And, further, I was 18 making this disclosure here for the convenience of the 19 plaintiffs so that they would not be taken by surprise. I could 20 have waited until such time as the deposition. 21 And it seems to me, to preserve the status quo and to 22 be consistent with Your Honor's order as in paragraph five, and 23 I don't understand what possibly the plaintiffs could do with 24 this transcript and why they would object unless their objective 25 is to immediately run to the press with this.
19 1 MR. WESTBROOK: No, Your Honor. First of all, let me 2 correct the record. This is Ed Westbrook. I don't think Mr. 3 Motley ever agreed to anything concerning the Fifth Amendment. 4 I think the first we heard about it was a few minutes ago. And, 5 second, Your Honor -- 6 THE COURT: Now, wait a minute, Mr. Westbrook. He 7 wasn't saying that. He was saying that Mr. Motley agreed to the 8 provision of the order of April 3rd that is in paragraph five 9 saying that this matter respecting disclosure of the deposition 10 contents should be preserved for the district court in Texas, 11 not here. 12 MR. WESTBROOK: Yes, sir, Your Honor. I understand 13 the court's ruling on that. Certainly, we respect the court and 14 adhere to its ruling. 15 THE COURT: Just get the transcript and see what Mr. 16 Motley agreed to. I don't remember one way or the other. I 17 cannot imagine that I would have put that provision in there sua 18 sponte however. I have a recollection in general terms that it 19 was something as to which the parties agreed at the time or I 20 wouldn't have put it in there. 21 Certainly, I would have required a hearing on it if I 22 had thought it was a matter in dispute. So now we are only 23 talking about the fact that -- about giving part of this 24 transcript the same treatment, Mr. Westbrook, I believe is what 25 we are talking about.
20 1 MR. WESTBROOK: Yes, sir, Your Honor. I understand 2 that that's what we are talking about now. For the reasons that 3 I expressed before, that is, that the intention or hypothetical 4 basis to perhaps assert a privilege if certain questions are 5 asked does not implicate any interest that bars sealing of a 6 transcript of a court hearing, which is normally a public 7 proceeding. But for the fact that we are on the phone, we would 8 normally be in the courtroom. 9 MR. NUNES: Your Honor, I actually have a copy of the 10 transcript, and I can play back to you Mr. Motley's response at 11 that time. 12 MR. WESTBROOK: Your Honor, I think we are beyond Mr. 13 Motley. 14 THE COURT: I think we are, too. His only argument, 15 Mr. Westbrook, is that this is simply an extension of that to 16 which Motley agreed. It seems to me that the thing to do is for 17 you to go read the transcript. And now you know what it is that 18 the issue is, and then decide in a deliberate fashion what 19 arguments you have to take a position on sealing, one way or the 20 other. Okay. 21 MR. WESTBROOK: Yes, Your Honor. 22 THE COURT: I will give you an opportunity to brief it 23 if that's what you want to do. That's all right. 24 MR. NUNES: Your Honor -- 25 THE COURT: Yes.
21 1 MR. NUNES: I'm sorry, Gary Nunes. I didn't mean to 2 interrupt you. 3 THE COURT: That's all right. 4 MR. NUNES: I was just going to say, if they are 5 permitted to -- the one thing I would not want to occur is for 6 them to brief it and to include what went on at the hearing in 7 their brief filed with the clerk's office. 8 THE COURT: Well, let me say this, Mr. Nunes. To a 9 certain extent, you are the author of your own misfortune by 10 articulating this sensitive issue, and it is in a public record, 11 and I have no -- if this were in court, I wouldn't have closed 12 court without a showing of a need to close court. 13 Now, depositions are a different animal. Depositions 14 are taken in the privacy of the office of the counsel for the 15 deponent here. So they are not matters open to the public. The 16 press could not come in and sit in on a deposition. 17 It may be that the district court in which this case 18 is pending wants to release this transcript. I believe that 19 that is the prerogative of that district court. All I was 20 trying to do in paragraph five was to preserve the status quo so 21 that the court could do it. 22 I don't believe Mr. Westbrook is going to go around 23 talking about this anyway. I'd be distressed to hear that he's 24 out trumpeting all this to the press. But there is a way to 25 deal with this in the ordinary course of things.
22 1 What I'm going to do right now because there is a 2 contention that this somehow relates to what Mr. Motley agreed 3 to, I'm going to order that the part of the transcript where you 4 said what you said about the grand jury and claiming the Fifth 5 Amendment is temporarily sealed until Mr. Westbrook can read the 6 transcript of the April 3rd hearing or the April whatever 7 hearing it was. I have forgotten when it was. 8 MR. NUNES: March 28th. 9 THE COURT: Then if he wants to file a brief, he can 10 file a brief. I don't have any reason to make him file that 11 under seal. I can't do that. I don't like sealing court 12 records. There is a far different issue in sealing a court 13 record than keeping a deposition confidential. So that's I 14 think how we will proceed, Mr. Nunes. 15 MR. NUNES: Very well, Your Honor. 16 THE COURT: Well, thank you all very much. But, Mr. 17 Westbrook, this is a temporary sealing. I'm doing it only to 18 give you a chance to take time to read what you need to read and 19 file what you need to file. If you need to file it, file it 20 quickly. Then give him a chance to respond, and I will decide 21 it, because I really do not like sealing court proceedings and 22 court records unless there is an absolute necessity to do so. 23 And the only reason I'm doing it now on this temporary basis is 24 to preserve the tension that may exist between the deposition, 25 the keeping of the deposition sealed and this argument.
23 1 Mr. Nunes, I urge you to go study it. You might 2 eliminate the need for briefing because I believe that Mr. 3 Westbrook, as to this transcript, has the better side of the 4 argument. Okay. But I'm not ruling on anything until I get 5 something from you. If you want it kept under seal, then you 6 can keep it -- you can move to keep it under seal if you file 7 something within ten days. 8 MR. NUNES: Thank you, Your Honor. 9 MR. WESTBROOK: Thank you, Your Honor. 10 THE COURT: I mean just for the purpose of ruling on 11 it. That's the only reason I'm doing this. So let's get about 12 it and do whatever you've got to do. I think the best thing for 13 you to do is do a little research. I think you will find there 14 probably is no need to keep it under seal. You can so advise 15 me, and then that will be eliminated. 16 MR. WESTBROOK: Your Honor, just for clarification, as 17 to the last date in terms of, I can file a motion within ten 18 days or for what purpose that was -- 19 THE COURT: I'm going to put a suspense date on the 20 deposition. I think -- let me start again, not the deposition. 21 I think I'm going to reverse the procedure here. It is you who 22 thinks that this ought to be under seal. 23 I'm going to release this transcript from seal within 24 ten days unless I receive a brief you from and a motion to keep 25 it under seal, with supporting authority. I will then hear five
24 1 days after that from the defendants. Then I will decide it. If 2 you want me to decide it on the argument, I'll decide it on the 3 argument. You can have one day after that for a reply brief. 4 MR. WESTBROOK: Your Honor, Ed Westbrook. You said 5 five days from the defendants. You mean from the plaintiffs in 6 this case, Your Honor, opposing the motion? 7 THE COURT: Yes. After the defendants file -- after 8 Mr. Osdene files, the plaintiffs have five days to oppose his 9 motion to keep this under seal. He then has, I said one, but 10 probably two, you ought to do it in two days, to file any reply 11 that you have, Mr. Nunes, on behalf of Doctor Osdene. 12 If you want to have a hearing, then I will hear the 13 matter. If you don't, I'll consider it on the papers. That way 14 it's you, who wants to keep it sealed, who has the burden of 15 showing that it ought to be sealed. 16 MR. NUNES: Your Honor, will the opposition be filed 17 under seal until such time as the court ultimately makes its 18 ruling on this issue? 19 MR. WESTBROOK: Your Honor, Ed Westbrook. You 20 previously ruled our briefs would not be under seal. 21 THE COURT: I don't think I ruled anything on that. 22 MR. BROOKE: Your Honor, this is Rob Brooke. Maybe I 23 can jump in here and help out. It sounds like the legal 24 arguments don't need to be under seal and reference would be to 25 the transcript that is under seal. So it sounds to me like
25 1 there doesn't have to be any concern about that. 2 THE COURT: I think you can write your briefs in such 3 a way as you don't need to have them under seal. But if you 4 can't, then file it under seal. And if you file yours under 5 seal, then you file -- both sides do. 6 But let me tell you something, Mr. Nunes. You are 7 playing with fire when you are dealing with sealing documents in 8 a court proceeding. The presumption is they are not to be 9 sealed, and I think you have made way too much of this. You 10 made the decision to disclose what it was that you had in mind. 11 I commend you on telling him that, but maybe the thing to have 12 been done is to tell him in a private telephone call, and then 13 to seal the public record is another animal, you see. 14 I urge you to think about it and to file something in 15 ten days that says you don't really have any problem with 16 unsealing this record of this telephone call. But you do what 17 you are advised to do. 18 MR. NUNES: I understand, Your Honor. 19 THE COURT: All right, folks. Mr. Westbrook, don't go 20 out and make a press release over all this stuff. 21 MR. WESTBROOK: Your Honor, with everything that's 22 going on, I don't think this could get on page 20. 23 THE COURT: I know. 24 MR. WESTBROOK: I'll spell your name right. 25 THE COURT: I don't want my name in it. The way
26 1 things are, it may not even make the fold on the back page of 2 the back page, would it? 3 MR. WESTBROOK: I believe that's right, at least in 4 the present environment, Your Honor. 5 THE COURT: That's good. Thank you all. 6 7 (The proceedings were adjourned) 8 9 I, Sandra M. Beverly, certify that the foregoing 10 transcript is a correct record of the proceedings taken and 11 transcribed by me to the best of my ability. 12 13 SANDRA M. BEVERLY, RPR Date 14 15 16 17 18 19 20 21 22 23 24 25
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