HELENA K. KOBRIN Attorney at Law 7629 Fulton Avenue North Hollywood, California 91605 (213) 960-1933 March 14, 1995 VIA TELEFAX Hon. Ronald M. Whyte District Judge United States District Court for the Northern District of California 280 S. 1st Street, #2112 San Jose, California 95113-3008 Re: Religious Technology Center, et al. v. Netcom Online Communication Services, Inc., et al., No. C-95-20091 RMW Dear Judge Whyte: This letter responds to the letter sent you by Mr. Klemesrud's counsel, Richard Allan Horning, as well as the second ex parte application by Mr. Horning requesting additional time to respond to the complaint. In its order, the Court granted Mr. Horning until April 7, 1995 to respond to the complaint. Plaintiffs believe that the Court's order moots the second ex parte application, and that no further extension is necessary. My co-counsel, Andrew Wilson, contacted Mr. Horning to confirm that he would be withdrawing the second application, and Mr. Horning stated that he would not. Plaintiffs were amazed to learn that Mr. Horning intended to further burden the Court even after it had already expressed its intention on the extension. Even more astonishing, Mr. Horning is merely reiterating his request for the same 60 days extension which the court already considered and denied. Plaintiffs, therefore, express here their opposition to the granting of that application, which was mailed to their counsel and only received on March 13. As to the question raised by Mr. Horning's March 13 letter, of the supposed need to delay all matters pending in the case until after a scheduling conference is held, plaintiffs must disagree with that request. Netcom's counsel timely filed a notion to dismiss yesterday. They had no confusion as to the applicable deadlines and have had no trouble meeting them. Mr. Horning has represented Mr. Klemesrud since the initial hearing held in the case. His repeated requests for more time can only be viewed as attempts to delay these proceedings unnecessarily. The Court's existing orders are perfectly clear on schedules to be followed. Obviously, the Court will set whatever scheduling conferences are appropriate under the Federal Rules of Civil Procedure, but there is no need to delay anything for that to be done. With respect to Mr. Horninq's suggestion that the preliminary injunction hearing be consolidated with the trial, this case is simply not appropriate for such a consolidation. The preliminary injunction issues need rapid resolution which should not wait for full discovery to be taken and a trial hold. The request to put everything on hold until a scheduling conference is held is also inconsistent with the rapid resolution of issues in this case. Mr. Klemesrud is both forwarding all postings by Mr. Erlich, including his violation of the TRO, and engaging in direct infringement by storing copier, of Mr. Erlich's infringing postings for several days for access by his paid subscribers. The issues related to his activities need to be dealt with now on plaintiffs' preliminary injunction motion. Plaintiffs therefore request that the Court deny the second application for an extension of time and also deny the delays requested in Mr. Horning's March 13 letter. Respectfully yours, /s/ Helena K. Kobrin Counsel for Plaintiffs HKK:mfh cc: Carla B. Oakley Randolf J. Rice Richard Allen Horning Andrew R. Wilson Thomas M. Small (all via telefax) HELENA K. KOBRIN Attorney at Law 7629 Fulton Avenue North Hollywood, California 91605 (213) 960-1933 March 14, 1995 VIA TELEFAX Hon. Ronald M. Whyte District Judge United States District Court for the Northern District of California 280 S. 1st Street, #2112 San Jose, California 95113-3008 Re: Religious Technology Center, et al. v. Netcom Qnline Communication Services, Inc., et al., No. C-95-20091 RMW Dear Judge Whyte: Counsel for plaintiffs have received letter from counsel for Dennis Erlich, requesting that we stipulate to a continuance of the contempt hearing. counsel Andrew Wilson called Erlich's attorney, Carla Oakley, who stated that the partner on the case, Mr. McElhinny, has a trial starting next Tuesday, four days after the hearing is set, and has not been able to look at the issues. Morrison & Foerster has many attorneys, and Mr. McElhinny can claim no special expertise regarding this case which is needed to deal with the contempt motion. In addition, per Me. Oakley's statement, he does not have a conflict with the hearing which the Court has set. In fact, the issues in the contempt motion are simple, as Mr. Erlich has already admitted in both his posting and his subsequent letter to the Court that he intentionally posted the infringing material, which was explicitly covered by the TRO. The Court obviously recognized this fact when it not only granted plaintiffs ex parte application to shorten time, but ordered Mr. Erlich to show cause at the accelerated hearing as to why he should not be hold in contempt. The contempt motion was filed On February 28, 1995. Plaintiffs submit that there should be no further delay in hearing the order to show cause. Assuming that Ms. Oakley will now be filing an ex parte application for a continuance in light of the lack of agreement by plaintiffs to an extension, plaintiffs request that the Court deny a application. Respectfully yours, /s/ Helena K. Kobrin Counsel for Plaintiffs HKK:mfh cc: Carla B. Oakley Randolf J. Rice Richard Allen Horning Andrew R. Wilson Thomas M. Small (all via telefax) HELENA K. KOBRIN Attorney at Law 7629 Fulton Avenue North Hollywood, California 91605 (213) 960-1933 March 14, 1995 VIA TELEFAX Hon. Ronald M. Whyte District Judge United States District Court for the Northern District of California 280 S. 1st Street, #2112 San Jose, California 95113-3008 Re: Religious Technology Center, et al. v. Netcom Qnline Communication Services, Inc., et al., No. C-95-20091 RMW Dear Judge Whyte: Mr. Erlich's new counsel, Carla Oakley of Morrison Foerster, has now filed an ex parte application requesting extensions of time for various filings. Ma. Oakley filed the application within a couple of hours after leaving a voice mail message for plaintiffs, attorney, Andrew Wilson, and faxing a letter to plaintiffs' counsel requesting the same relief sought in the application, thereby leaving no time to respond. Plaintiffs' attorney, Andrew Wilson, did speak with ma. Oakley by telephone this morning, March 14, to go over her requests. As a result of their conversations, agreement has been reached as to the following points: 1. With respect to the request for an extension of time to file a response to the first amended complaint, Mr. Erlich has already sought and received one extension on the basis that he was looking for counsel. Nevertheless, plaintiffs have stipulated with Ms. Oakley to an extension of time until April 7, 1995, the same extension which the Court granted mr. Klemesrud, subject to the condition stated in number 2 below. 2. Ms. Oakley has agreed that the extension to respond be conditioned on the continuation of the TRO until such time as a preliminary injunction against Mr. Erlich has been issued by the Court. In addition, Ms. Oakley has agreed in principle to the argumentation of the TRO, but wanted to consult with her client as to what should be included. Plaintiffs believe the TRO should be enlarged to prohibit any postings by Mr. Erlich of any materials by L. Ron Hubbard, until the preliminary injunction issues are resolved. This change to the TRO is appropriate in view of Mr. Erlich's post-restraining order conduct, which will be addressed this coming Friday at the order to show cause hearing. 3. Agreement has also been reached that plaintiffs will produce the documents seized to Ms. Oakley subject to the terms of a protective order entered by the Court. Me. Oakley has agreed to stipulate to entry of a protective order, but had not yet seen the proposed order. A copy of the proposed order, the original of which should be in the Court's files as of February 8, 1994, has been faxed to Ma. Oakley for her review. Plaintiffs do not anticipate any difficulty with reaching an agreement as to the terms of the order. The other parties have had the proposed order since the summons and complaint and other initial papers were served on them and have never objected to its entry. The materials seized consist of the works produced in the February 24 filing and the unpublished confidential works which were not produced, which are available as hard copies printed from the computer tape downloaded from Mr. Erlich's computer. There are also additional computer materials, which were intermixed with the copyrighted materials and were downloaded from the computer at Mr. Erlich's direction. These materials constitute a large volume of downloadings by Mr. Erlich from the alt.religion.scientology newsgroup which are irrelevant to this case, but were part of the same documents in which the infringements were contained, and which Mr. Erlich indicated were the documents to be copied as responsive to the Writ of Seizure. Thus, Mr. Erlich has already had the bulk of what his counsel are requesting since February 24, 1995, and any delay of his response to plaintiffs' filing on that basis is unnecessary. Plaintiffs will provide Mr. Erlich's counsel with a copy of the computer tape and one floppy disk containing all of the soft copy materials seized within three days after receiving the order signed by the Court, as well as hard copies of the infringing works, the copies to be paid for by Mr. Erlich. At that time, plaintiffs will also arrange for copying by a copy service of the hard copy books which were seized, also at Mr. Erlich's expense. Ms. Oakley requested of Mr. Wilson that they be copied, rather than made available for inspection. With respect to the time needed to respond to the filing made by plaintiffs in response to the Court's February 21 order and Mr. Erlich's new counsel request for the production of materials seized, no agreement was reached with Ma. Oakley. she in requesting thirty from receipt of the documents, with which plaintiffs cannot agree. Plaintiffs already served on Mr. Erlich, on February 24, 1995, copies of all of the seized materials which infringe L. Ron Hubbard copyrighted works, other than those which are unpublished confidential works. Plaintiffs therefore propose that counsel be afforded the same one week originally given to Mr. Erlich when he was pro**se, to file Mr. Erlich's response after receiving the production of all documents seized. because plaintiffs were only given three days to prepare their filing, and because Mr. Erlich has already had the bulk of the documents in question for two and one half weeks, this seems entirely fair. In addition, if, as paragraphs 3 and 5 of Ms. Oakley's declaration suggest, she is contemplating attacking the seizure, that is a separate motion, and should not be the basis of delay in issuing the preliminary injunction. Plaintiffs believe that this proposal will accommodate the concerns of Mr. Erlich's now counsel regarding time, without providing them the unfair advantage of excessive additional time not afforded to other litigants involved in this case. Finally, in Mr. Erlich's application, Ms. Oakley makes a pejorative reference to the Scientology religion as a "cult." such a remark indicative only of gratuitous religious prejudice, is unseemly and undignified, as would be such a slur against any religious faith. It is also a violation of the California Business and Professions Code, governing the conduct of lawyers, which creates an affirmative duty: To abstain from all offensive personality, and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he or she is charged. (Cal. Bus. & Prof. Code  6068(f)). As a violation of this statute, it also violates Local Rule 110-3, which requires attorneys practicing in this Court to abide by the State Bar Rules and applicable statutes. This is purely an intellectual property,case, having nothing to do with religious issues. No other lawyer has injected religion into it, and certainly until now, no lawyer has engaged in name calling based upon religious intolerance. Plaintiffs submit that Ms. Oakley should be admonished to retrain from such expressions of prejudice hereafter. They have no place in this proceeding. Respectfully yours, /s/ Helena K. Kobrin Counsel for Plaintiffs HKK:mfh cc: Carla B. Oakley Randolf J. Rice Richard Allen Horning Andrew R. Wilson Thomas M. Small (all via telefax)