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Defendants Memorandum of Law Supporting Motion for
Recusal and/or Disqualification of Judge Kaplan

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.,               :
                                         : FOR RECUSAL AND/OR DISQUALIFICATION
           Plaintiffs,           PURSUANT TO 18 U.S.C. ¤ 455(a) and (b)(2)
                                         : AND 18 U.S.C. ¤ 144

           Defendants.                   :

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   This is a combined motion pursuant to 28 U.S.C. ¤ 144 and 28 U.S.C. ¤ 455 (a) and (b)(2). It is based upon the Trial Court's extrajudicial accusation of a personal and professional nature made against Martin Garbus, lead counsel for the defendants, now manifest in the Court's deep-seated antagonism toward counsel during pretrial proceedings; as well as the Trial Court's past association in private practice with a law firm which represented one of the named plaintiffs in a matter related to the subject matter of this suit.

   The combination of these two factors - virulent bias and hostility toward counsel stemming from an extrajudicial episode involving an associate while in private practice and association with a party through his law firm while in private practice - clearly satisfy the standards of both statutes since any reasonable person, apprised of these circumstances, would reasonably question the Court's impartiality. See Liteky v. United States, 510 U.S. 540, 114 S.Ct. 1147, 127 L.Ed. 2d 474 (1994). Moreover, the explicit provisions of 28 U.S.C. ¤ 455 (b)(2) have been satisfied.


   This case involves a civil suit brought by the eight major motion picture companies in the United States against several named defendants for alleged violation of Section 1201(a)(2) of the Digital Millennium Copyright Act ("DMCA"). The subject matter involves one of the fastest growing consumer product lines on the market: motion picture DVD's. It also directly implicates the interests of the worldwide Internet community and the expanding software development industry. Moreover, this is one of the first civil actions brought under the newly passed DMCA and will undoubtedly test the reach and limits of that statute.

   Needless to say, the public has followed this matter with great interest. Substantial published accounts of the litigation have appeared in major media outlets as well as on the Internet. Court proceedings have been attended by representatives of both domestic and international news media.

   The Honorable Lewis A. Kaplan has been assigned as the presiding judge. The trial is set to commence July 17, 2000. This will be a non-jury trial, with the Court making findings of fact and determinations of law which will decide whether or not an Internet site, and key personnel attached to it, will be permanently enjoined and compelled to pay damages for displaying software that allegedly violates the provision of DMCA.

   Less than one week prior to trial, on July 10, 2000, an executive vice president of Warner Brothers, one of the named plaintiffs, revealed during depositions that the firm of Paul Weiss Rifkind Wharton and Garrison represented and advised Warner Brothers over an extended period of time, beginning in 1993, with respect to "DVD matters" when DVD technology was in its infancy and prior to being brought to market (See, Exhibit __ attached to the initial Affidavit of Martin Garbus, being a portion of the transcript of the King Deposition). At that time Judge Kaplan was a member of the Paul Weiss firm. Moreover, he worked in the antitrust unit of the firm, on information and belief. Paul Weiss was then advising Warner Brothers on antitrust issues respecting DVDs, an issue in this litigation.

   That revelation, coming at approximately 8:00 p.m. on July 10, prompted a review by counsel of the approprietness of Judge Kaplan continuing to sit as the preceding judge. It was during that review that an even more startling revelation came to light: that Judge Kaplan, while still at Paul Weiss, had cautioned a colleague against associating with Mr. Garbus, the lead counsel for these defendants, falsely accusing Mr. Garbus of engaging in a singularly odious violation of professional ethics by surreptitiously reading Judge Kaplan's partner's files during a court recess.

   Upon being informed of these reports, Mr. Garbus became concerned that not only had the Court an inappropriate relationship with one of the named plaintiffs, but harbored a deep-seated animosity towards him personally, a belief already held, but whose origins were now understood. He immediately contacted the Court and sought a telephone conference call with the Court on that very day, July 11. During that conference call, Judge Kaplan confirmed that he had, in fact, known of "the story", but declined to say whether or not he had adopted it as true, leaving unrebutted Mr. Kurnit's clear recollection that he used it in advising a colleague against associating with Mr. Garbus (See, transcript of telephone proceeding of July 11, 2000 attached hereto as Exhibit __).

   The very next day, on July 12, 2000 during a pre-trial conference before Judge Kaplan, Mr. Garbus presented the Court with two affidavits, one from himself and one from Mr. Kurnit, essentially incorporating the above facts and proffered an oral motion for recusal based on the provisions of 28 U.S.C. ¤ 455(a) and (b)(2) and 29 U.S.C. ¤ 144. The court refused to consider the oral application and advised counsel to file a formal written motion to that effect.

On July 14, the within Motion for Recusal was filed.


1.   Where an extrajudicial false accusation of a deeply personal and profession nature has been made by the Court against counsel prior to his ascending the bench, but manifests itself in his current hostile and antagonistic frame of mind in a matter over which he is currently presiding, Section 455 (a) of Title 28 mandates that the Court "shall disqualify himself" since his impartiality might reasonably be questioned.

Added to the clear language of Section 445, which requires disqualification where the court's impartiality might reasonably be questioned, is the forceful holding of the U.S. Supreme Court in Liteky v. U.S., 510 U.S. 540, 557 (1994), clearly requiring disqualification under the circumstances presented here:
"Section 455(a) provides that a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." For present purposes, it should suffice to say that Section 455 (a) is triggered by an attitude or state of mind so resistant to fair and dispassionate inquiry as to cause a party, the public, or a reviewing court to have reasonable grounds to question the neutral and objective character of a judge's rulings or finding" on P. __.

The Second Circuit and the Southern District have repeatedly invoked these objective standards in defining the basis for recusal. Gil Enterprises, Inc. v. Delvy, 79 F.2d 241 (2d Cir. 1996); U.S. v. Occhipinti, 851 F. Supp. 523 (SDNY, 1993). As acknowledged in Grodin v. Random House, Inc., 61 F. 3d. 1045 at 1053, citing appropriate language in Liteky: "deep seated antagonism makes fair judgment impossible."

The basis for recusal here is premised on an extraordinary false accusation leveled against counsel while the judge was still in private practice. It was, and is, a personal attack that is extrajudicial. See U.S. v. Serrano, 607 F.2d 1145 (5th Cir. 1979) and U.S. v. Zagaire, 419 F. Supp. 494 (N. Dist. Cal. 1976), where specific note is taken that extrajudicial attacks of a personal nature are the strongest basis for granting relief.

Nor does it matter that the Court fails to recall the specifics of the event in question:
"The goal of section 455(a) is to avoid even the appearance of partiality. If it would appear to a reasonable person that a judge has knowledge of facts that would give him an interest in the litigation then an appearance of partiality is created even though no actual partiality exists because the judge does not recall the facts, because the judge actually has no interest in the case or because the judge is pure in heart and incorruptible. The judge's forgetfulness, however, is not the sort of objectively ascertainable fact that can avoid the appearance of partiality." Lilyeberg v. Health Services Acquisition Corp., 486 U.S. 847, 871 (1988).

2.   Where the law firm of a judge advised a named party respecting their marketing of DVDs over a period of years, and the instant litigation involves that party's interest in DVDs, the judge must disqualify himself pursuant to 28 U.S.C.(b)(2)

The plain language of 28 U.S.C. 455(b)(2) is clear:

(a)   Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b)   He shall also disqualify himself in the following circumstances:

(2)   Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it.

In discussing the import of ¤ 455(b), Chief Justice Rehnquist noted, in his dissent, in Lilyeberg v. Health Services Acquisition Corp., 486 U.S. 847, 871 (1988) that:
"Subsection (b) of ¤ 455 sets forth more particularized situations in which a judge must disqualify himself. Congress intended the provisions of ¤ 455 (b) to remove any doubt about recusal in cases where a judge's interest is too closely connected with the litigation to allow his participation."

It is undisputed that the Paul Weiss firm advised Warner Brothers about its marketing of DVDs, presumably on antitrust issues, for a number of years. It is also clear that Judge Kaplan was a member of the firm during part of this.

28 U.S.C. ¤455(b)(2) does not require that Judge Kaplan, himself, serve as counsel to a named party, it merely requires a showing that his associates did. That fact is undisputed on this record.

Moreover, the advise centered on "DVD matters" as testified to by the client, leaving no doubt that Judge Kaplan must disqualify himself.

3.   Where two separate factors involving a past association with a party and personal animus toward counsel combine to establish the personal bias and prejudice of the judge, as set forth in a timely and sufficient affidavit, the allegations must be accepted as true and the Court is required to recuse itself pursuant to 28 U.S.C. ¤ 144."

The recusal motion has been filed "at the earliest possible moment after obtaining the facts demonstrating a basis for recusal." See U.S. v. Occhipinti, 851 F. Supp. 523, 567 (So. Dist., NY 1993).

It sets forth the origins of the Court's bias: an extrajudicial episode and prior association. U.S. v. Zagaire, 419 F. Supp. 494 (No. Dist. Cal. 1976), and documents with particularity the manifestation of bias as reflected in the current proceeding.

As such, and for purposes of Section 144 of Title 28, the allegations of a certified affidavit must be accepted by the Court as true, and the Court must act in accordance with the mandate of ¤ 144 and recuse itself. U.S. v. Sykes, 7 F. 3d 1331 (7th Cir. 1993).

Dated: New York, New York
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

1585 Broadway
New York, New York 10036
(212) 969-3000
Attorneys for Plaintiffs