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Garbus Affidavit in support of Motion for Recusal

NY; July 14, 2000

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
488 Madison Avenue
New York, New York 10022
(212) 826-5582

Attorneys for Defendant Eric Corley a/k/a


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PICTURES INDUSTRIES, INC.,               :
                                         :      OF MARTIN GARBUS

           Defendants.                   :

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MARTIN GARBUS, being duly sworn and deposes and says:

1.   I have moved as expeditiously as possible, bringing this matter before the Court within 48 hours of being apprised of the factual basis for the recusal motion. Attached as Exhibit A is the transcript of July 11, 2000. The transcript of the court proceeding of July 12 will be provided as soon as it is received.

2.   On July 11, I advised the Court that during a deposition taken the previous night, one of my associates learned that Judge Kaplan was still a member of the firm of Paul Weiss, at a time when that firm was advising Time-Warner on "DVD matters." I was not in the deposition and could not be more specific. I understood that it is in the antitrust intellectual property litigation areas of Paul Weiss' practice that the "DVD matters" was being discussed and that Judge Kaplan, while at Paul Weiss, had antitrust as his area of interest. The only lawyer thus far described was Stuart Robinowitz. The deposition was conducted for different reasons and no substantial inquiry was made concerning the matters raised here. (Appended hereto as Exhibit B is a portion of the transcript of the King Deposition.) Introduced during the deposition was a memo addressed to Judge Kaplan's associate at Paul Weiss dated 1996. (See Exhibit C appended hereto). In other words, Paul Weiss' involvement with a named plaintiff concerning DVDs was not a casual matter since Paul Weiss had been advising them on DVDs since early 1993. Also, according to the witness, Mr. Robinowitz, Judge Kaplan's associate at Paul Weiss, is now currently employed by plaintiff Warner Brothers in an advisory capacity. Mr. Cooper of Proskauer Rose asserted an attorney-client privilege objection. I had no foreknowledge of Paul Weiss's involvement in the DVD issues or with Warner Brothers. I did deal adversely with Time Warner when they were represented by Cravath and Williams and Connelly.

3.   We believe that encrypting a DVD product that could only be played on qualified machines was the antitrust issue that Paul Weiss was advising Warner Brothers on, and that is precisely one of the issues in this case.

4.   It was only after I learned of the matters in the preceding paragraphs that I became aware of the issue addressed in Mr. Kurnit's affidavit. It immediately became evident to me that extrajudicial comments evidencing a personal bias against me had been made by the Court. The statements that Judge Kaplan made are, in each and every aspect, totally untrue. (See Exhibit D, Declaration of Richard Kurnit, attached hereto). Clearly, Judge Kaplan believed it and his behavior towards me in this case and towards my representation of my client leads me to believe he still does.

5.   The transcript of July 11 (Exhibit A) confirms that Judge Kaplan had heard "the story" about me, "probably from Morris Abram," his partner. While acknowledging that much, the Court fails to deny what is explicitly clear in the Kurnit affidavit: that he had advised a colleague in the firm to avoid an association with me on the strength of "the story." Kurnit's allegations remain unrefuted in this record. We do not know how many other people the Court may have recounted this false story and how recently he had repeated it. And, again, while the Court indicates it hadn't passed judgment on the truth of the story, the fact remains that Judge Kaplan advised his colleague to avoid a planned career change because of the serious and negative inferences to be drawn from that false story. Clearly, Judge Kaplan believed it - and evidently still does, despite his denials - as evidenced by the antagonism he manifests against me.

6.   Certainly the significance the Court placed on the alleged event, the context in which it was raised, and the extraordinary uniqueness of the allegation against me make it clear that Judge Kaplan remembers the event today. His associate, Morris Abram, Esq., advised the Trial Court of the incident, and said he was going to file an application with the Disciplinary Committee. I know enough about Morris Abram, Esq. to know that if he says in open court that he will do something, he will do it. The Disciplinary Committee did nothing. I have attempted in the short time available to get the files of the proceeding involving this incident. My recollection is that Morris Abram, Esq., for a variety of reasons sought a mistrial and sought to have the trial of the matter delayed pending an investigation of my conduct. My recollection is that the trial court, aware of what was going on, ordered Morris Abrams, Esq. to proceed. After the incident, I never heard one single thing about it from any court or judge. The only time it was ever discussed with me after the event was when Morris Abram, Esq. apologized to me. It is clear that Judge Kaplan knew of this incident and had formed conclusions about my ethics, integrity and manner of practice from it.

7.   As I reflect on the Court's antagonism toward me, it becomes clear that Judge Kaplan, has not recovered from the frustration (I do not know if there was a financial loss) over the Black Watch litigation, a case in which my client did well, and which spawned the false allegation against me.

8.   The accusation Judge Kaplan has leveled could be a disbarable offense. I am concerned that it was meant to do me damage. My client and I should not have been exposed to this. Needless to say, I never raised with my client Judge Kaplan's attitude toward me, for I did not know of it. Had I known of it, I might have recommended they seek counsel elsewhere.

9.   I have litigated in many unfriendly and hostile atmospheres in a number of jurisdictions. Whether it be civil rights cases, murder cases or representing the media in areas where the media was disfavored, in no place that I can think of have I been treated as disrespectfully by any other court or judge. Even my adversaries have commented on the Court's contemptuous attitude towards me. Speaking with clear animosity on a number of occasions, the Court had accused me of misleading the Court, misstating facts and engaging in conduct that should lead to Disciplinary Committee consideration. Members of the press and public, as well as members of the Bar, including my partners, who have attended court proceedings have been appalled and remarked to me that they have never seen or heard such animus directed against an attorney.

10.   The Court's animus has also been reflected in the way Judge Kaplan evaluates my credibility and in his view of my integrity, in his specific rulings, primarily with respect to the discovery process, our alleged abuse of it, our alleged use of it for improper purposes, our alleged attempts to delay the discovery process and the trial, our allegedly improper involvement with the media, our allegedly improper deposition techniques, our allegedly improper seeking of what the Court perceived to be irrelevant, discovery, our allegedly improper legal arguments and the improper way we presented them.

11.   Although we have received over 21,000 documents since July 5, the Court has refused to consider a continuance. We have pointed out in correspondence other Copyright cases relating to similar issues where the damage is immediate but the matter is proceeding under a rational schedule. There is an agenda in this case that previously appeared to me to be explicable. The trial date in this case, originally set for December 5, 2000, was moved forward at plaintiffs' request. Time Warner had made a motion to disqualify me and the Court pointed out, in a written decision, the tactical use of the disqualification motion. The Court, while denying the disqualification motion, has kept to the trial schedule, even though neither plaintiffs nor defendant could possibly finish scheduled depositions on time. The last deposition takes place on this Saturday, with the trial scheduled to begin on Monday. We repeatedly requested a magistrate to supervise the discovery to expedite the case in an orderly manner. The Court refused to do this.

12.   There are numerous examples of the Court's bias against the defendants. For example, the Court responded to defendants' complaint that plaintiffs were engaging in delaying tactics in not producing documents or witnesses by dramatically truncating the discovery period by three and one-half months. That decision was justified by stating repeatedly that I assured the Court I could try the case with the depositions of only five witnesses, a misrepresentation of my intended remarks, which I explained several times to no avail. The Court also condoned plaintiffs' continued delays in producing documents or witnesses - plaintiffs effectively began producing documents several weeks after the date of production directed by the Court, and have produced more than 21,000 pages of documents since the July 5 close of discovery, a date set by the Judge on May 12, and extended on June 27 (before thousands of documents were produced) until the commencement of trial on July 17. Almost 20 depositions have been (or will be) taken since June 23, when plaintiffs noticed their first deposition of a witness other than Mr. Goldstein, with the last one scheduled for July 15.

13.   Even beyond the public and professional humiliation of counsel is the very real physical brutalization of counsel of which the Court must be aware. Judge Kaplan has repeatedly been told of the harm to myself and my associates due to the extraordinary pressure of preparing a July 17 trial date, but to no avail. Whenever the Proskauer Rose firm needs time (as, for example, with respect to the delay they requested for discovery), they get it. The Court is aware of the disparity in size and resources of the two firms which are appearing in this litigation and knows that my firm cannot match those of plaintiffs' counsel. I have pled with the Court not to allow the respective resources of counsel to determine the outcome of this case. Neither I nor any lawyer I discussed my dilemma with has ever encountered such a situation. The lawyers in my office are working beyond their physical capability and I fear the legal work we have accomplished might reflect this. Until recently, this has been a merely inexplicable phenomenon. Now it no longer is.

14.   Moreover, the Court has made veiled threats to me and my firm with professional consequences that add another dimension to the unseemly context in which we are working. Neither I nor any member of my firm has ever been cited for contempt. In order to avoid the peril that is being suggested, we have been driven to the point of sheer exhaustion.

15.   The Court has stated that defendants are more concerned with publicizing the case, including stating its belief that defendants' counsel sought publicity for their own benefit, than trying the case. Even the Court's transcripts do not reflect the change in the judge's tone. This flies in the face of the facts: plaintiffs unleashed a virtual barrage of publicity - engaging a PR firm to assist them in these efforts - while defendants wrote letter after letter to plaintiffs' counsel and the Court begging for plaintiffs to commence discovery. The Howe affidavits clearly indicate both sides spoke to the press. Finally, the Court in its decision not to disqualify my firm related, in dicta, the unnecessary and, in light of the present situation, striking, statement that my firm's conduct should be referred to the Disciplinary Committee. It was wrong and gratuitous.

16.   The defendants have been ordered to stop posting and they have. There is a preliminary injunction in place that defendants are prepared to live with if necessary to have the opportunity properly to prepare a defense. There is a motion before the Court ordering them to stop linking and if the Court grants the motion there would be no linking. Plaintiffs would have, without a trial the relief they want. The Court's original decision made clear the defendants had some control over the Court's date and all agreed to December 2000. There are many other sites that are still carry DeCSS in Europe beyond the Court's reach. There are at present many Linux users using DeCSS. For good or bad, DeCSS is now available, had been available and the Court recognized that when it originally set a December date. Nothing has truly changed.

17.   The defendants have been forced to change their trial strategy because of Judge Kaplan's attitude toward me. I have attempted to step back. I normally would argue every court appearance. The Court's hostility made that impossible. My associate, Ed Hernstadt, has taken over the responsibility for much of the discovery because I believed my involvement would injure my client. I also gave over court arguments to my young associate, Mr. Hernstadt, and to David Atlas (new to the case) even as they argued against at least three sophisticated senior partners at Proskauer. These are arguments I would have made and I did not. Because the Court so severely criticized my taking of the Valenti deposition, I did not take the Eisner deposition. I was forced to give up lines of questions with other witnesses questions I should have asked, especially in view of the plaintiffs expansion of their witnesses from two to, at last count, nine. I have even attempted to create a trial plan that minimizes my involvement - an involvement the client specifically wanted.

18.   In my nearly four decades as a practicing attorney, I have never been required to file an affidavit of this nature with respect to any judge before whom I was appearing. However, I cannot refrain from stating what is now palpably obvious: there is a deep-seated bias, relentless criticism, and prejudice by the Court against me personally and it is having a serious impact on the case. Already, the Court's bias and prejudice toward me has prevented my client from being able to prepare an adequate defense. The Court is aware of our views; I have said so in writing to the Court. Now, I believe I know some factual motivation behind the Court's bias.

19.   The Court is familiar with each of these issues which have been the subject of letters, transcripts and motions sent to the Court by my firm and me. I ask that these be incorporated herewith. If this Court feels that we should identify each and every letter and every transcript for the purposes of this application, we shall. We sought to issue the motion as quickly as possible.

20.   Nearly all, if not all of the facts, or of facts leading to the events concerning the allegations are within this Court's knowledge and control. I have requested that the Court review its own records regarding the issues raised herein. Given the amount of time involved, and given the gravity of it, it seemed to me appropriate for the Court to have responded to these questions, clarifying the record. Thus far, the Court has refused to do so.

21.   There are documents that the Court may have concerning both basis for recusal. We ask that if they exist that they should be produced. They may be in the files of his former office for which we have no access. I am attaching as Exhibit C a document which was disclosed at the deposition on July 10 relating to Paul Weiss' advice to Warner Brothers. This may assist the Court in its recollection and search for relevant documents. Since the lawyer designated in the document is with an adversary, it is inappropriate of me to contact him.

22.   This is a case with widespread public interest. It is a non-jury trial with the Court sitting as the fact-finder. The Supreme Court and the Congress have spoken about the objective standard to promote public confidence in the impartiality of the judicial process by instructing a judge, when confronted with circumstances in which his impartiality could reasonably be doubted, to disqualify himself.

23.   Litigation should not proceed under such a cloud of suspicion concerning the neutrality of the fact finder. This is precisely what both the Congress and the Courts have consistently counseled against. I trust this Court will do the right thing and step aside so that a new judge may be appointed to hear this matter.

24.   Finally, as counsel of record, I hereby certify that this motion is made in good faith.



Sworn to before me this
___ day of July, 2000

Notary Public