[PROSKAUER ROSE LLP Letterhead]
June 23, 2000
BY HAND
The Honorable Lewis A. Kaplan
United States District Judge
United States District Court for the Southern District of New York
500 Pearl Street, Room 870
New York, New York 10007
Re: Universal Studios, Inc. v. Reimerdes, No. 00 Civ. 277 (LAK)(RLE)
Dear Judge Kaplan:
We represent the plaintiffs in this action, and write to request a ruling relating to a discovery dispute. The issue concerns defendants’ insistence on taking the deposition of Michael Eisner, Chairman and Chief Executive Officer of The Walt Disney Company. Having attempted and failed to resolve the dispute, we seek a protective order barring the deposition.
Given Mr. Eisner’s position and extremely busy schedule, much of which is planned long in advance, it is inappropriate to depose him absent a compelling need to do so. See, e. g., Thomas v. IBM, 48 F. 3d 478 (10th Cir. 2000) (affirming motion to quash deposition of executive without personal knowledge); Lewelling v. Farmers Ins. of Columbus, Inc., 879 F. 2d 212,218 (6th Cir. 1989) (upholding district court’s exercise of discretion in granting protective order to bar plaintiffs from deposing their employer’s chief executive officer, who lacked knowledge about any pertinent facts); Salter v. Upjohn Co., 593 F. 2d 649,651 (5th Cir. 1979) (upholding protective order in a wrongful death action against a drug manufacturer that barred the deposition of the defendant’s president because he was extremely busy and lacked direct knowledge of facts in dispute, and other employees had more direct knowledge).
There is no need whatever for Mr. Eisner’s deposition here, compelling or otherwise. As we have repeatedly advised defendants’ counsel, after checking with counsel and senior executives at Disney, Mr. Eisner has no personal knowledge of the facts at issue in this dispute, and whatever knowledge he has is possessed by others whom we have offered to produce in Mr. Eisner’s place. (We would present this representation by declaration if the Court believes that doing so would be useful.)
As the Court knows, the issues in this litigation concern whether defendants have violated the anticircumvention provisions of 17 U.S.C. § 1201, not Mr. Eisner’s views on the need for protection of digital content. We have advised them that plaintiffs will not call Mr. Eisner as a witness at the forthcoming trial. In addition, in an attempt to resolve this dispute without court intervention, we offered to produce either Preston Padden, the Walt Disney Company’s Executive Vice President, Government relations, or Sanford Litvack, Vice-Chairman of The Walt Disney Company, each of whom has more knowledge than Mr. Eisner on the subjects about which defendants seem to want Mr. Eisner to testify. Notably, Mr. Litvack is President of Disney Enterprises, Inc., plaintiff in this case; Mr. Eisner is neither a member of its Board nor one of its officers.
Defendant’s Asserted Justification
The justification offered by counsel for taking Mr. Eisner’s deposition is an April 20, 2000, letter Mr. Eisner sent to Disney employees and unspecified "public comments quoted in, among other news sources, Variety." (Mr. Garbus’s justifications are set forth in letters of May 22 and May 24, annexed below with the Eisner letter to which they refer.) Mr. Eisner’s letter does not contain, or suggest his possession of, personal knowledge of any information either relevant to the subject matter involved in this case or reasonably calculated to lead to the discovery of admissible evidence. Indeed, Mr. Garbus’s reliance on the April 20 letter (in his May 22 letter) reflects the absence of any basis for deposing Mr. Eisner: Mr. Garbus says only that he needs to know "what Mr. Eisner meant by his words," but the April 20 letter can be searched in vain for any words that have any relevance to the forthcoming trial, much less any that need elucidation.
It is, of course, true that Mr. Eisner has been quoted in the press as speaking for Disney on the general subject of piracy of intellectual property, and has given speeches and presented testimony to Congress on that topic. Testimony on broad issues of public policy, however -- which Mr. Eisner did not personally draft, and on which Mr. Padden and Mr. Litvack have greater knowledge and familiarity than Mr. Eisner has -- affords no basis for deposing him in the context of this lawsuit, with its § 1201 claims and the defenses asserted by defendants.
The weightlessness of Mr. Garbus’ proffered justifications only increases our concern that the real purpose for the deposition is precisely what we forecast in argument on June 6 -- namely, that the real (and only) purpose of the deposition is to create a media circus and an occasion for public attack. Depositions are not "intended to be a vehicle for generating content for broadcast and other media," and "courts must be vigilant ensure that their processes are not used improperly for purposes unrelated to their role. "Paisley Park Enterprises v. Uptown Productions, 54 F. Supp.2d 347 (S.D.N.Y. 1999) (Kaplan, J.).
Suspicion of improper purpose in the defendants’ pursuit of Mr. Eisner’s deposition is justified by defendants’ use of the Valenti deposition on the Internet and the press to attempt to pillory Mr. Valenti as being ignorant of facts and legal issues which, in reality, he has no need to know. The Valenti deposition and others after it have been focused intently on questions whose foreseeable answers were "I don’t know." Mr. Garbus presages the same approach to Mr. Eisner by stating, in his May 24 letter, that he is "prepared to risk Mr. Eisner’s informing us that he knows nothing about the preparation of and background to, for example, his letter to Disney employees" and that the public will consider the Eisner deposition "illuminating" if he lacks answers to the questions Mr. Garbus plans to propound. The facts as to Mr. Eisner’s role in the preparation of his letter are clearly irrelevant to the issues in this case: manufacturing fodder for press and Internet consumption is not a legitimate function of discovery under the Federal Rules.
Added basis for believing that the deposition is being undertaken for improper purposes is the commentary set forth below in the margin, which accompanied defendant 2600's posting of the Valenti transcript within hours of its receipt by Mr. Garbus, and a public statement that Frankfurt, Garbus is "working with noted online archivist John Young to make this information [the Valenti transcript] widely available." See <http://www.politechbot.com/p-01220.html>.
In short, if ever there were a deposition of a chief executive that should be quashed as completely unwarranted, Mr. Eisner’s is it. I appreciate Your Honor’s attention to this matter and regret the necessity for the Court’s involvement.
Very truly yours,
Charles S. Sims
cc: Martin Garbus, Esq. (by hand delivery)
Edward Hemstadt, Esq. (by hand delivery)