Sater Unsealed

Case 10-2905, Document 55, 02/03/2011, 200440, Page1 of 192 ; U. S • v. Doe Docket No. 10-2905 Filed Under Seal SM0001 docket 55-000001 Case 10-2905, Document 55, 02/03/2011, 200440, Page2 of 192 UNDER SEAL UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse at Foley Square 40 Centre Street, New York, NY 10007 Telephone: 212-857-8500 MOTION INFORMATION STATEMENT Caption: U.S. v. Doe Docket Number: 10-2905 Motion For: Leave to file supplemental memorandum oflaw. Set forth below precise, complete statement of relief sought: The government requests leave to file a supplemental memorandum of law. Moving Party: Appellee Opposing Party: Non-Party Respondent Moving Attorney: Opposing Attorney: ,!!y: LORETT A E. LYNCH United States Attorney Eastern District of New York 271 Cadman Plaza East Brooklyn, New York 11201 Todd Kaminsky, AUSA 718-254-6367 Todd.Kaminsky@usdoj .gov Court-Judge/Agency appealed from: RICHARD E. LERNER. ESO. Wilson Elser Moskowitz Edelman & Dicker LLP 150 E. 42nd Street New York, New York 10604 212-490-3000 See Attached The Honorable I. Leo Glasser, U.S.D.J., E.D.N.Y. Please check appropriate boxes Has movant notified opposing counsel (required by Local Rule 27.1): l&l Yes D No (explain): - - - - - - - - - - - - - - - Opposing counsel's position on motion: D Unopposed l&l Opposed Takes No Position Does opposing counsel intend to file a response: D Unopposed D Opposed l&l Don't Know FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND INJUNCTIONS PENDING APPEAL Has request for relief been made below? D Yes X No Has this relief been previously sought in this Court? D Yes X No Requested return date and explanation of emergency: We request that the docket remained sealed during the pendency of this appeal. Is oral argument on motion requested? Yes x No (requests for oral argument will not necessarily be granted) Has argument date of appeal been set? Yes x No If yes, enter d a t e : - - - - - - - - - - - - - - - - - - - - - Signature of Moving Attorney: Isl Date: 212111 Has service been effected? l&l Ye,s D No [Attach proofofservice] ORDER IT IS HEREBY ORDERED THAT the motion is GRANTED DENIED FOR THE COURT: CATHERINE O'HAGAN WOLFE, Clerk of Court Date: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ FORM T-1080 SM0002 docket 55-000002 Case 10-2905, Document 55, 02/03/2011, 200440, Page3 of 192 Attachment: Kelly Anne Moore Morgan Lewis & Bockius LLP 101 Park Avenue New York NY 10178 212-309-6001 RICHARD E. LERNER, ESQ. Wilson Elser Moskowitz Edelman & Dicker LLP 150 E. 42nd Street New York, New York 10604 212-490-3000 SM0003 docket 55-000003 Case 10-2905, Document 55, 02/03/2011, 200440, Page4 of 192 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT - - - - - - - - - - - - - - - - - - - -x DECLARATION IN SUPPORT OF MOTION FOR LEAVE TO FILE A SUPPLEMENTAL MEMORANDUM OF LAW USA v. DOE No. 10 - 2905 - - - - - - - - - - - - - - - - - - - -x TODD KAMINSKY hereby declares the following under 28 u.s.c. § 1746: 1. I am an Assistant U.S. Attorney in the United States Attorney's Office for the Eastern District of New York. I make this declaration in support of the government's motion for leave to file a supplemental memorandum of law in support of our motion to seal the docket in the above-captioned case 2. This motion arises from the filing of a notice of appeal from an order in the United States District Court for the Eastern District of New York (Glasser, J.), commanding Richard Roe, Esq. to return the Presentence Investigation Report (the "PSR") pertaining to John Doe and prohibiting Roe from disseminating the PSR. While the docket in the district court has been sealed and the proceedings in this Court have been sealed to date, we have been informed that the docket in this Court will be unsealed, and, by motion dated January 24, 2011, we moved for a temporary stay pending briefing with respect to the issue of a more permanent stay. We did not file a memorandum of SM0004 docket 55-000004 Case 10-2905, Document 55, 02/03/2011, 200440, Page5 of 192 law with respect to the more permanent stay in order to more expeditiously secure a temporary stay and because we anticipated, erroneously, that a briefing schedule would be set for our motion for a permanent order. By order dated January 28, 2011, the Court granted our motion for a temporary stay and calendared the matter for submission on February 15, 2011, without ordering further briefing. We therefore seek to file the attached memorandum of law addressing the issue of a stay beyond the temporary stay granted in the January 28 order. 3. For this reason, we ask that this Court grant leave to submit the attached memorandum of law in support of maintaining the docket under seal. s Todd Kaminsky Brooklyn, New York February 2, 2011 SM0005 docket 55-000005 Case 10-2905, Document 55, 02/03/2011, 200440, Page6 of 192 A T T A C H M E N T SM0006 docket 55-000006 Case 10-2905, Document 55, 02/03/2011, 200440, Page7 of 192 FILED UNDER SEAL UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Docket No. 10-2905 FREDERICK M. OBERLANDER, Respondent-Appellant, UNITED STATES OF AMERICA, Appellee, -againstJOHN DOE, Defendant-Appellee. MEMORANDUM OF LAW IN SUPPORT OF MOTION TO SEAL DOCKET LORETTA E. LYNCH, United States Attorney, Eastern District of New York. ELIZABETH J. KRAMER, TODD KAMINSKY, Assistant United States Att.orneys, (Of Counsel) . SM0007 docket 55-000007 Case 10-2905, Document 55, 02/03/2011, 200440, Page8 of 192 TABLE OF CONTENTS PRELIMINARY STATEMENT 1 STATEMENT OF FACTS 2 I. John Doe's Conviction and Cooperation 2 II. Sealing History . . 4 III. Disclosure of Doe's Cooperation 5 IV. Richard Roe, Esq.'s Public Filing of Sealed Documents . . . . . . . . . . . . . . 6 ARGUMENT DOE'S COMPELLING INTEREST IN HIS AND HIS FAMILY'S SAFETY OUTWEIGHS THE PUBLIC'S QUALIFIED RIGHT OF ACCESS TO THE APPELLATE DOCKET AND FILINGS CONCLUSION 10 19 SM0008 docket 55-000008 Case 10-2905, Document 55, 02/03/2011, 200440, Page9 of 192 1 PRELIMINARY STATEMENT The United States hereby supplements its motion for a temporary stay of the unsealing of the appellate docket in the above-captioned case and further requests the continued sealing of This motion arises from the filing of a notice of such docket. appeal from an order in the United States District Court for the Eastern District of New York (Glasser, J.), commanding Richard Roe, Esq., to return the Presentence Investigation Report pertaining to defendant disseminating the PSR. John Doe and prohibiting (the "PSR") Roe from For the reasons set forth below, the docket should remain sealed at least while this appeal is pending. SM0009 docket 55-000009 Case 10-2905, Document 55, 02/03/2011, 200440, Page10 of 192 2 STATEMENT OF FACTS I. John Doe's Conviction and Cooperation On December 10, 1998, John Doe pleaded guilty pursuant to a cooperation agreement to participating in a enterprise, in violation of 18 U.S.C. acts consisted fraudulent of securities offerings and § fraud 1962. racketeering The RICO predicate in . connection after-market manipulation with the of the securities of multiple entities and the unlawful laundering of the proceeds of these schemes. Following his guilty plea, the defendant worked with prosecutors from the United State Attorney's Offices in the Eastern and Southern Districts of New York and law enforcement agents for over 10 years, providing information crucial to the conviction of over 20 individuals, including those responsible for committing massive financial fraud, international United States members of La Cosa Nostra cyber-criminals. intelligence Additionally, community with ( "LCN") and Doe provided the highly sensitive information concerning various terrorists and rogue states. In part based on information provided by SM0010 docket 55-000010 Case 10-2905, Document 55, 02/03/2011, 200440, Page11 of 192 3 Doe, in March 2000 a federal grand jury in the Eastern District of New York returned a RICO, indictment against 19 securities fraud and money laundering of extensive fraud schemes, the most important participants in all of whom eventually pleaded guilty. Several of the individuals against whom Doe cooperated -- both in that case and subsequent cases -- occupied high-ranking positions in the Gambino, Genovese and Bonanno Organized Crime Families. With specific, respect detailed to foreign information to intelligence, several Doe U.S. relayed intelligence agencies that he learned from sources in the Middle East. Doe traveled the to that intelligence region himself. on In several 1998, occasions for to instance, collect he passed on information regarding a willingness by leaders in Afghanistan to sell Stinger missiles. During the same period, he passed on specific information about key leaders in Al Qaeda and affiliated groups, including information that could help the United State locate those individuals. Following September 11, 2001, at the direction of the FBI, Doe traveled back to the Middle East and gathered valuable intelligence regarding, inter alia, Al Qaeda and affiliated groups. In addition, Doe cooperated in a number of other areas, including Russian organized SM0011 docket 55-000011 Case 10-2905, Document 55, 02/03/2011, 200440, Page12 of 192 4 On October 23, 2009, probation and a $25,000 fine. Judge Glasser sentenced Doe to Prior to sentencing, the government submitted a letter pursuant to Section 5Kl.1 of the United States Sentencing Guidelines. Doe completed his cooperation without testifying at any criminal proceeding. II. Sealing History Since the case's inception in 1998, the docket sheet, along with all of the documents filed therein, have been sealed. The docket is listed as United States v. John Doe, and the first entries on the docket reflect the government's notice of intent to proceed under Federal Rule of Criminal Procedure 7(b) Doe's December 10, 1998 guilty plea to an information. as well as Although the docket does not reflect any letter filed in support of sealing or any written order sealing the case, it appears likely that one of the parties made an oral application to seal the docket at the time of the guilty plea, one of the first events in the case, which application was orally granted. 1 A copy of the transcript of the guilty plea cannot be obtained because the court reporter has since died and his notes cannot be located. The district court acknowledged at oral argument on July 20, 2010 that it had not found an application to seal the docket or an order signed by the court directing that the docket be sealed, see Exhibit A, Transcript of Hearing dated July 20, 2010 at 17, further suggesting that the application and order were made orally at the time of the guilty plea. 1 SM0012 docket 55-000012 Case 10-2905, Document 55, 02/03/2011, 200440, Page13 of 192 5 With respect to the October 23, 2009 sentencing, the case was listed on the court calendar as United States v. John Doe, but the courtroom was open for the proceeding. III. Disclosure of Doe's Cooperation Since 1998, there have been a limited number of instances in which rumors of Doe's criminal case and cooperation have In a surfaced. November 1998 Businessweek article, the author, who had obtained a copy of the sealed complaint in Doe's case, implicated Doe in a stock fraud and money laundering scheme. Additionally, that Doe a 2007 New York Times article about Doe suggested had been indicted government cooperator. co-conspirator in a for securities fraud and was a The article identified Doe as an unindicted March 2000 indictment that led convictions of 19 people, including members of the Mafia . to the A former alleged co-conspirator of Doe's stated in the article that Doe obtained information for the United States about a set of missiles on the black market. The Times, however, was unable to confirm many of these assertions. There government has anticipation of have also been acknowledged trial, the Doe's two occasions cooperation. government provided on which In one the 2001, of in the defendants against whom Doe cooperated with material pertaining to Doe pursuant to 18 U.S.C. on the eve of trial. § 3500. That defendant then pled guilty The government has no information to suggest SM0013 docket 55-000013 Case 10-2905, Document 55, 02/03/2011, 200440, Page14 of 192 6 that Doe's§ 3500 material was disseminated to individuals outside of that defendant's legal team. In addition, in 2009, the government unsealed the docket of a co-conspirator of Doe's without realizing that a docketed letter filed by the government in that case mentioned Doe's cooperation. After this oversight was brought to the government's attention, on December 2, 2010, it requested that Judge Glasser reseal the letter, which request was granted. See United States v. Salvatore Lauria, 98 CR 1102 (ILG), Docket Entry No. 25. IV. Richard Roe, Esq.'s Public Filing of Sealed Documents On May 10, 2010, Richard Roe, Esq., filed a civil RICO complaint against Doe in the United States District Court for the Southern District of New York (the "SDNY Complaint"), attached to which were exhibits that related to Doe's criminal case. Specifically, the exhibits included (1) excerpts from a Presentence Investigation Report (2) ("PSR") that was prepared for Doe in 2004, two proffer agreements dated October 2, 1998 and October 29, 1998, and (3) Doe's cooperation agreement dated December 10, 1998. (Exhibit B, Tr. of June 21, 2010 Hearing at 28). On May 18, 2010, upon Doe's application, the Honorable I. Leo Glasser issued an Order to Show Cause Injunction and Temporary Restraining Order as should not be issued requiring Roe to return for Preliminary to why an order the sealed and SM0014 docket 55-000014 Case 10-2905, Document 55, 02/03/2011, 200440, Page15 of 192 7 confidential documents to Doe. The district court held a hearing on June 21, 2010, at which both Roe and Doe testified. At the hearing, Roe testified that a client of his, a former employee (Exhibit B, of Tr. Doe's, of June 21, gave Roe the documents 2010 Hearing at 8-11, at 23, issue. 2 96). He further testified that he originally tried to file the complaint under seal but that after his sealing motion was denied by a Southern District judge, he filed it without any sealing request. (Id. at 49-50, 61). However, Roe was unable to state clearly whether his sealing motion informed the court that he was attaching the PSR and other documents concerning Doe's criminal case to his complaint or whether instead he based his request to seal on other material in the complaint. 3 (Id. at 53-55, 60-61). Roe acknowledged that in the SDNY Complaint he ref erred to some of the documents at issue as having been "sealed," but he refused, on the basis of the "work product" privilege, to suspected that the documents had been stolen. answer whether he (Id. at 22, 34-35). Doe testified that he kept the documents at issue in a desk drawer inside of his office. (Exhibit B, Tr. of June 21, 2010 Roe also testified that in addition to the documents mentioned above, he was reasonably certain that his client also provided him with Doe's criminal complaint, information and complete 2004 PSR. (Exhibit B, Tr. of June 21, 2010 Hearing at 1013 80-81) , I The actual request made by Roe, attached hereto, does not mention Doe or his cooperation in support of sealing the SDNY Complaint. See Exhibit C, March 10, 2010 Ex Parte Motion to File Complaint Under Seal. SM0015 docket 55-000015 Case 10-2905, Document 55, 02/03/2011, 200440, Page16 of 192 8 Hearing at 95-97). (Id. at 95). The drawer was kept locked most of the time. Doe further testified that he did not give Roe's client or anyone else permission to access the documents. (Id. at 96-97). At the hearing, the district court ordered a permanent injunction against the dissemination of the PSR and the information contained therein and directed the PSR to be returned to the United States Attorney's Office. 4 (Id. at 88-92). At oral argument held on July 20, 2010, the district court concluded that Roe knew the documents at issue were sealed prior to his public filing of them. at 18-19). (Tr. of July 20, 2010 Hearing The court also found that Roe's client had wrongfully obtained the documents. (Id. at 18-20). Roe maintained that he had a right to disseminate copies of the PSR and further argued that the permanent injunction was illegal. that because he could not examine a sealing order in the case was defective. Specifically, he argued signed sealing order, (Id. at 10-12). any Further, Roe argued, among other things, that the sealing order itself only applied to the documents in the court's file and that since he did not improperly remove the documents from the file, he was entitled to do whatever he wished with the sealed documents once they came 4 The district court has yet to decide whether injunction applies to the other documents at issue. approximately August through November 2010 Doe parties to a stand-still agreement essentially litigation in hopes of resolving the civil suit and return of the documents. I the permanent Notably, from and Roe were halting the negotiating a SM0016 docket 55-000016 Case 10-2905, Document 55, 02/03/2011, 200440, Page17 of 192 9 into his possession. (Id. at 13). Despite Roe's objections, the district court maintained its previous ruling, ordering Roe to return prohibiting the PSR, dissemination. including any copies, and its (Id. at 26-27). SM0017 docket 55-000017 Case 10-2905, Document 55, 02/03/2011, 200440, Page18 of 192 10 ARGUMENT DOE'S COMPELLING INTEREST IN HIS AND HIS FAMILY'S SAFETY OUTWEIGHS THE PUBLIC'S QUALIFIED RIGHT OF ACCESS TO THE APPELLATE DOCKET AND FILINGS This Court has recognized that the First Amendment grants the public and the press a "qualified right of access" to criminal court proceedings. Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 91 (2d Cir. 2004) Virginia, 448 U.S. 555, 580 (citing Richmond Newspapers, Inc. v. (1980)); see also Lugosch v. Pyramid Co. of Onondaga, 435 F. 3d 100, 120 (2d Cir. 2006) ("[I] t is well established that the public and the press have a qualified First Amendment right to attend judicial and to access This right extends to court docket certain judicial documents.") . sheets. proceedings See Hartford Courant, 380 F.3d at 96. The Court has established a four-part test for deciding motions for closure. First, the district court must determine if there is "a substantial probability of prejudice to a compelling interest of the defendant, closure would prevent." Cir. among 1995) or Compelling interests things, "danger to persons omitted) . Second, if a prejudice is found, third party, which United States v. Doe, 63 F.3d 121, 128 (2d (citations omitted). other (citations government, or include, property." Id . substantial probability of the court must consider whether "'reasonable alternatives to closure cannot adequately protect' the compelling interest that would be prejudiced by public access." Id. SM0018 docket 55-000018 Case 10-2905, Document 55, 02/03/2011, 200440, Page19 of 192 11 (citations omitted) . inadequate, Third, if such alternatives are found to be court the determine must whether, under the circumstances of the case, the prejudice to the compelling interest "override[s] the qualified First Amendment right of access." (citations omitted) . warranted, it Id. Finally, if the court finds that closure is should devise a closure order that, "while not necessarily the least restrictive means available to protect the endangered interest, is narrowly tailored to that purpose." Id. An analysis of these factors demonstrates (citations omitted) . that the appellate docket should remain sealed. With respect test, there is a to the first "substantial component of the closure probability of compelling interest of the defendant prevent." Doe, 63 F.3d at 128. multiple violent criminal to a which closure would Here, that compelling interest is the safety of Doe and his family. of prejudice Doe cooperated against members organizations, including several families of LCN, that have a demonstrated record of harming those who assist law enforcement. 2008 WL 2884397, family's at *2 willingness particularly by to See, United States v. Mancuso, (E.D.N.Y. July 23, interfere perpetrating witnesses, is well-documented."). with violence 2008) (" [T]he Bonanno the judicial against process, cooperating Indeed, some of the individuals whom Doe helped to convict held leadership positions within their re spec ti ve criminal organizations. Moreover, Doe's cooperation may SM0019 docket 55-000019 Case 10-2905, Document 55, 02/03/2011, 200440, Page20 of 192 12 be seen as especially offensive by members of these organizations because it led to the conviction of numerous persons and shut down a lucrative money-making scheme. States with important world's most Doe also provided the United intelligence about Al Qaeda, dangerous criminal one of organizations. Both the this organization and · its leader have proven that they will advance their agenda and protect their interests at any cost. In light of the violent nature of the organizations against wnich Doe cooperated, as well as the far-reaching effects of his cooperation, there is a substantial probability of prejudice to his safety and that of his family should his cooperation be revealed. Furthermore, the government has a compelling interest in encouraging cooperation by other individuals in future cases. The second component of the closure test - whether reasonable alternatives to closure cannot adequately protect the compelling interest of Doe's security - is also met here. There is no alternative to sealing the appellate docket if the Court is to preserve Doe's safety. discussion Doe's of To cooperation unconfirmed speculation. 5 appeal would the government's to date knowledge, has been Unsealing the docket sheet essentially provide official public based for confirmation of on this his While several parties to the Southern District suit were provided with the documents at issue (or the SDNY Complaint in which they were discussed), see Exhibit A to January 28, 2001 submission of Appellant, the government has no information that the documents have been distributed beyond those individuals, including to those against whom Doe cooperated. SM0020 docket 55-000020 Case 10-2905, Document 55, 02/03/2011, 200440, Page21 of 192 13 cooperation. 6 Any viewer of an unsealed appellate docket sheet in this case would quickly determine that Doe had a criminal case in the Eastern District of New York, district court docket and a would reveal that quick perusal of Doe's entire the case is sealed, proof to any experienced observer that Doe cooperated with the government. Moreover, the anticipated future submissions in this case that would be reflected on the appellate docket would likely provide significant detail about Doe's cooperation. With respect to those defendants who were convicted subsequent to their interactions with Doe, or those individuals who interacted with Doe in the Middle East and elsewhere after September 11, 2001, these facts would Therefore, certainly the be continued sufficient sealing of to the provoke retaliation. appellate docket is required to protect Doe's security. The third component of the closure test asks whether, under the circumstances of this case, the prejudice to Doe's safety Courts have recognized a difference in kind between media reports asserting a fact and government documents confirming that fact. See, United States v. Aref, 533 F.3d 72, 76-78, 81-83 (2d Cir. 2008) (denying media request to unseal order related to allegedly illegal government surveillance despite anonymous statements regarding that surveillance in a New York Times article); Wilner v. National Security Agency, 592 F.3d 60, 2009 U.S. App. LEXIS 28610, *16, *23 (2d Cir. 2009) (government is permitted to respond to Freedom of Information Act requests by neither confirming nor denying the existence of the requested information, as long as the information has not been "officially and publicly" disclosed); Afshar v. Department of State, 702 F.2d 1125, 1130-31 (D.C. Cir. 1983) ("[E]ven if a fact . is the subject of widespread media and public speculation, its official acknowledgment by an authoritative source might well be new information that could cause damage to the national security."). 6 SM0021 docket 55-000021 Case 10-2905, Document 55, 02/03/2011, 200440, Page22 of 192 14 overrides the qualified First Amendment right of access to Doe's This Court has made clear that, although the appellate docket. public has a qualified right of access to court proceedings and transcripts, that right is not absolute and can be outweighed under certain circumstances by other compelling interests. F.3d at 128. See Doe, 63 Such compelling interests include "danger to persons or property." Id.; see also In re Application of the Herald Co., 734 F.2d 93, 100 (2d Cir. 1984) . This Court plainly stated in Doe, 63 F.3d at 128, and earlier in In re Herald, 734 F.2d at 100, that danger to persons or property can outweigh the public's qualified right of access to court proceedings or transcripts. Indeed, both cases contemplated that there are circumstances in which danger to persons will outweigh the qualified right of access. F.3d at 129-31; In re Herald, 734 F.2d at 100. See Doe, 63 Moreover, this Court has actually found in other cases that danger to persons has justified closing court proceedings. 996 F.2d 1404, 1408 (2d Cir. 1993) See United States v. Cojab, (closure proper "where publicity might put at risk the lives or safety of government agents engaged in undercover activities"); United States v. F.2d 1137, 1142 (2d Cir. 1978) Arroyo-Angulo, 580 (closure upheld to protect safety of codefendants who had signed cooperation agreements); United States ex rel. (partial Bruno v . Herold, closure of trial 408 F.2d 125, 126-29 upheld to prevent (2d Cir. 1969) intimidation of a witness). SM0022 docket 55-000022 Case 10-2905, Document 55, 02/03/2011, 200440, Page23 of 192 15 Here, the primary compelling interest at issue - Doe's is safety highly significant. extraordinary both in terms of Doe's cooperation its depth and breadth . was As an initial matter, he provided evidence against several of the most powerful families of LCN, which resulted in a large number of convictions . Doe traveled internationally to hostile regions on the government's behalf to gather information about extreme antiAmerican groups. In light of these facts, the threat to Doe's safety is First, the qangerous organizations against which Doe cooperated continue to operate. provide helpful organization, it Second, while cooperators often information against is find rare to a one type of criminal cooperator who provides information about organizations as varied as the ones here. result, the potential for harm to Doe and exponentially greater than in the average case. fact his As a family is Third, given the that some of the organizations against which Doe provided information primarily operate overseas, it is difficult for law enforcement to assess or monitor the threat these organizations pose to Doe. With respect to the public's qualified right of access, the public has an interest in knowing of Doe's cooperation and SM0023 docket 55-000023 Case 10-2905, Document 55, 02/03/2011, 200440, Page24 of 192 16 And sentencing. the press might take an interest However, cooperation if it were made public. in Doe's these rights are outweighed by the real threat to Doe's safety that would result if the docket were unsealed. In addition, in weighing the competing factors at issue, the Court should consider the manner in which this issue has come before the Court. The events precipitating this appeal began when Roe, a member of the Bar, publicly filed documents that he received under highly questionable circumstances and that he knew were sealed. The district court issued its permanent injunction only after Roe argued that his actions were justified and that he was not obligated to follow the district court's orders. Exhibit D, Letter by Roe, June 11, See Whatever can be said 2010. about Roe's actions, they certainly do not represent the preferred method by which one should challenge a sealing in a criminal case. Notably, Roe, to this day, has not moved to unseal the underlying docket or any of the filings in the district court. Were he to do so, the district court could hold hearings with respect to whether any such unsealing was appropriate. held, If such hearings were the government would be prepared to present evidence about the threats to Doe's safety. The lack of such a motion by Roe suggests that he and his clients are not interested in vindicating the public's First Amendment rights that they discuss in their filings before this Court. See January 28, 2011 submission of SM0024 docket 55-000024 Case 10-2905, Document 55, 02/03/2011, 200440, Page25 of 192 17 Appellant at 2-3, 6. Rather, they simply wish to maintain control of the documents at issue in order to use them to their advantage in their civil suit against Doe. Should this Court agree to unseal any portion of the docket, it would essentially be rewarding Roe's indefensible conduct. In short, weighing the compelling interest in Doe's safety against the public's qualified First Amendment interest militates against unsealing the appellate docket in this case. 7 Given that some form of closure is warranted, the fourth component of the closure test requires that a closure order be devised that "while not necessarily the least restrictive means available to protect the endangered interest, is narrowly tailored to that purpose." Doe, 63 F.3d at 128 (citations omitted). Here, because unsealing any part of the docket would reveal facts that would prejudice Doe's safety, the docket should. remain sealed. The revelation of Doe's conviction itself, an unavoidable consequence of a publicly-accessible docket, jeopardy. Moreover, would place Doe's security in any documents filed in this appeal would 7 In light of the fact that the docket in the district court remains under seal, any unsealing by this Court of its own docket would call attention to the sealed docket in the lower court. This would raise the awkward specter of this Court's ruling on the appropriateness of the continued sealing of the district court's docket without the district court's having had an opportunity to conduct any proceedings on that issue in the first instance. Should this Court be inclined to unseal any portion of this docket, it should first allow the district court the opportunity to hold hearings on the issue and determine the appropriateness of the continued sealing of its own docket. SM0025 docket 55-000025 Case 10-2905, Document 55, 02/03/2011, 200440, Page26 of 192 18 likely mention Doe's cooperation so often that any attempted redaction of those documents would prove difficult at best. In short, while this Court decides whether the district court's order with respect to the PSR was proper, the Court should not unseal the appellate docket. SM0026 docket 55-000026 Case 10-2905, Document 55, 02/03/2011, 200440, Page27 of 192 19 CONCLUSION For the reasons set forth above, the Court should seal the appellate docket during the pendency of this appeal. This submission should also be sealed . Dated: February 2, 2011 Brooklyn, New York Respectfully submitted, LORETTA E. LYNCH United States Attorney, Eastern District of New York. By: s Todd Kaminsky ELIZABETH J. KRAMER, TODD KAMINSKY, Assistant U.S. Attorneys, (Of Counsel) . SM0027 docket 55-000027 Case 10-2905, Document 55, 02/03/2011, 200440, Page28 of 192 E X H I B I T A SM0028 docket 55-000028 Case 10-2905, Document 55, 02/03/2011, 200440, Page29 of 192 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK 1 2 - - - - - - - - - - - - - - x 3 4 5 IN RE: JOHN DOE, CV 98-1101 6 7 United States Courthouse 8 Brooklyn, New York, 9 10 - - - - x 11 July 20, 2010 10:30 o'clock a.m. TRANSCRIPT OF ORAL ARGUMENT BEFORE THE HONORABLE I. LEO GLASSER UNITED STATES DISTRICT JUDGE 12 13 14 APPEARANCES: 15 For the Plaintiff: MORGAN LEWIS & BOCKIOS, LLP 101 Park Avenue New York, N. Y. BY: KELLY MOORE, ESQ. LESLIE R. CALDWELL, ESQ. DAVID A. SNIDER, ESQ. BRIAN A. HERMAN, ESQ. For the Defendant: WILSON ELSER MOSKOWITZ EDELMAN & DICKER, LLP 150 East 42nd Street New York, N. Y. 10017 BY: RICHARD LERNER, ESQ. LAUREN J. ROCKLIN, ESQ . Court Reporter: Henry R. Shapiro 225 Cadman Plaza East Brooklyn, New York 718-613-2509 16 17 18 19 20 21 22 23 24 25 Proceedings recorded by mechanical stenography, transcript produced by computer. TTr.11\lf")'\T OTT7\ nTnr\ SM0029 docket 55-000029 Case 10-2905, Document 55, 02/03/2011, 200440, Page30 of 192 2 1 THE CLERK: 2 3 Criminal cause for oral arguments, CR 1101, United States versus John Doe. 4 State your names for the record 5 MS. MOORE: 6 Kelly Moore, Leslie Caldwell, Brian Herman and David Snider for John Doe MS. LERNER: 7 Richard Lerner of Wilson, Elser, 8 Moskowitz, Edelman & Dicker for respondent Frederick M. 9 Oberlander MS. MOORE: 10 Your Honor, with respect to the relief 11 we seek, we rely on our brief, the arguments contained 12 therein and the authority contained therein. 13 14 '98 Specifically Judge Jones' decision in the Visa case and Judge Weinstein's decision in the Zyprexa case. 15 If anything, the facts of this case are more 16 compelling than those cases. 17 sealed documents in civil litigation, which involved possible 18 commercial or economic harm to a business entity. 19 Visa and Zyprexa involved This case, as the Court is aware, involves potential 20 physical harm or death to an individual. With respect to the 21 First Amendment arguments, at the last court appearance the 22 Court did not ask us to specifically address that in our 23 briefs. 24 with more detailed First Amendment analysis if that is okay 25 with the Court. We would like the opportunity to supplement our brief Tlr.1l\ln \1 0TT7\ rlTT) r\ SM0030 docket 55-000030 Case 10-2905, Document 55, 02/03/2011, 200440, Page31 of 192 3 1 In the meantime, I would just note that the first 2 amendment is not absolute. 3 support the conduct of the respondent and the respondent's 4 First Amendment protection. 5 media, they are not a news gathering organization seeking to 6 write articles and publish them 7 The facts of this case in no way The respondents are not the Mr. Oberlander is an attorney. As such, he has 8 additional ethical obligations to not disseminate or use 9 information that is secret, private and confidential, that 10 11 comes into his possession. Moreover, in this case, the documents at issue were 12 clearly stolen and Mr. Oberlander, who represented the thief, 13 knew that they were stolen. 14 As the agent of a thief, receiving those stolen . 15 documents, he doesn't deserve any greater protection-- First 16 Amendment protection-- than the thief himself would. 17 Additionally, the respondent knew that some of the 18 documents were sealed, as is clearly evident from paragraph 19 95 of the complaint in the Southern District. 20 As an attorney, once again, Mr. Oberlander knew what 21 that meant. He knew that documents don't seal themselves, 22 they are sealed only pursuant to court order. 23 also unsealed only pursuant to court order. 24 25 And there are He was also aware of the Southern District electronic filing rules, which compelled him to exercise TTDl\Tn "\T C" TT7\ nTn rl nr.r.iT,......TnT r-.r"'\rinm nr.inr'lnrnr.n SM0031 docket 55-000031 Case 10-2905, Document 55, 02/03/2011, 200440, Page32 of 192 4 1 caution and care with respect to disseminating information 2 about cooperators. 3 even those who testify publicly. 4 cooperation and the cooperation agreement were sealed. 5 Oberlander certainly should have exercised greater care. 6 That rule applies to all cooperators, In this case the Mr. The intended use of it in this case doesn't support 7 compelling First Amendment interest. I don't know if the 8 Court had the opportunity to review the Southern District 9 Civil RICO complaint. But the information about my client's 10 criminal case in no way supports any claims contained in that 11 c ase, and it's clearly being used to harass, embarrass, 12 intimidate and coerce my client. 13 Finally, as I mentioned before, this case unlike any 14 of the cases cited by the respondents involving potential 15 danger to human life. 16 Amendment simply possess no bar to the imposition of the 17 relief we're seeking. 18 Under the facts of this case the First With respect to Mr. Oberlander's declaration filed 19 last Friday, I would note that the respondents throughout 20 this proceeding have engaged in a number of dubious 21 litigation tactics, that are arranged in an intentional 22 misinterpretation of the Court's order, without seeking 23 clarification along the lines of claiming that they didn't 24 know. 25 they didn't know the lawyers could review the documents in He contacted Mr. Bernstein for an affidavit that said TTT:"'l.:Tn .... T C"TT7\ nTnf"'\ SM0032 docket 55-000032 Case 10-2905, Document 55, 02/03/2011, 200440, Page33 of 192 5 1 2 question in connection with representing the clients. And a previous meritless allegation of misconduct 3 against me. 4 was intended clearly to get me to do something that would 5 have been unethical, to put my own interests ahead of my 6 client's by accepting a settlement that wouldn't have been 7 favorable to my client, just to get the unpleasant 8 allegations against myself withdrawn. 9 It was withdrawn, but nevertheless made and it The declaration of Mr. Oberlander, in which he 10 accuses this Court of unconstitutional conduct and makes 11 application for recusal, is clearly in the same vain of that 12 litigation at that particular time. 13 to get the Court to do one of two things: 14 itself on the basis of a completely meritless application or 15 in the alternatively to get the Court to pull its punches, to 16 bend over backwards, to demonstrate a lack of bias, to issue 17 a ruling that would be favorable to the respondents than if 18 they had not made such a meritless unsupported application. 19 It is clearly intended To either recuse Those litigation tactics should be seen for what 20 they are and respondents and litigants engaging in them 21 should not be rewarded. 22 I thought long and hard about responding to some of 23 the other allegations and arguments contained in this 24 Oberlander declaration, the allegation that this Court has no 25 decency, that somehow it is beyond the authority of a federal SM0033 docket 55-000033 Case 10-2905, Document 55, 02/03/2011, 200440, Page34 of 192 6 1 judge, upon application of United States Attorney's office, 2 to seal documents or files when doing so is in the interest 3 of protecting human life or national security, or that 4 somehow has a greater First Amendment right to put a man's 5 life in danger by publishing stolen and sealed confidential 6 documents then if he walked into a crowded theatre and 7 shouted fire. 8 9 In rereading Mr. Oberlander's declaration, however, I was reminded of a comment that a former colleague of mine 10 used to make from time to time, which is that there really is 11 n6 percentage in arguing with crazy people, and so upon the 12 advise of another wise man I once got, I think, 13 discretion be the greater part of valor and not dignify that 14 declaration or the rants contained therein with a response. 15 I will let If the Court has no additional questions for us, we 16 will rest on our papers, but we would like to supplement them 17 with an additional First amendment analysis. 18 THE COURT: 19 Let me hear from Mr . Lerner. 20 MS. LERNER: 21 to read the case law 22 I will come back to you. THE COURT: Your Honor has now had an opportunity Before we get to that, I am not 23 altogether clear as to what Mr. Oberlander's notice of appeal 24 is all about. 25 I do not quite understand what is it. MS. LERNER: TTT:"'l\Tn , , C" TT 7\ n T n" It's a protective notice of appeal. He SM0034 docket 55-000034 Case 10-2905, Document 55, 02/03/2011, 200440, Page35 of 192 7 1 reserve his right to argue. 2 permanent injunction or that a TRO 3 period where it could be argued that the TRO lapsed and 4 became a permanent injunction. THE COURT: 5 6 there is possibly a gap It's merely protective. What does that mean, a protective notice of appeal? MS. LERNER: 7 8 There is yet to be a formal If the TRO could be deemed converted to a permanent injunction, we will appeal from that. THE COURT: 9 Is not that kind of premature? Is there 10 anything that prevents him from filing a notice of appeal 11 when that event occurs? 12 13 MS. LERNER: shall file a further notice of appeal. 14 THE COURT: 15 notice of appeal? 16 period? What's the purpose of a protective Is that to preserve some limitation 17 MS. LERNER: 18 THE COURT: 19 MS. LERNER: 20 21 If a permanent injunction is issued we Frankly, your Honor, the case law -To be perfectly candid -Candidly the TRO itself is appealable because it restrains Mr. Oberlander's free speech rights. THE COURT: Then he could file a notice of appeal 22 with respect to what he believes is an order, which is 23 properly appealable. 24 MS. LERNER: 25 THE COURT: Yes . . I don't understand what a protective SM0035 docket 55-000035 Case 10-2905, Document 55, 02/03/2011, 200440, Page36 of 192 8 1 notice of appeal is. 2 encountered it before. 3 4 I'm frank to say, I have never It may be that my knowledge of this process is a . little wanting, but I do not understand what it is. MS. LERNER: 5 First of all, on June 21st" your Honor 6 stated that there was a permanent injunction vis-a-vis the 7 PSR and ordered it returned. That is appealable. 8 of appeal refers to that. 9 The notice But since your Honor stated further evidence would 10 be taken after it was stated that it's our position it could 11 fairly be argued that the Court did not actually render a 12 final determination as to that document. THE COURT: 13 If it did -- The reason I am asking, Mr. Lerner, is 14 that it is very clearly established law that it may be that a 15 filing of a notice of appeal deprives this Court of 16 jurisdiction with respect to 17 in a matter. I do not know whether a notice of appeal, if filed, 18 would have that effect here with respect to injunctive 19 relief. 20 I think that is something that is questionable. But, in any event, it was that issue which caused me 21 to wonder what is this document about, is it in some way 22 affecting my continuing exercise of jurisdiction in this 23 matter? 24 25 MS. LERNER: As we stated in the notice of appeal itself, we reserve all of our rights. TTT':'1l\ln\T OTT7\ nTnr\ SM0036 docket 55-000036 Case 10-2905, Document 55, 02/03/2011, 200440, Page37 of 192 9 1 THE COURT: 2 Go ahead. 3 MS. LERNER: Neither here nor there. Your Honor has read the case law, I 4 presume, that was cited in our papers and would perhaps now 5 agree that the arguments that we have been making are not 6 specious, which is the word that your Honor used at the first 7 hearing. 8 agree that the analogy to a misdirected check is inapt. Perhaps your Honor having now read Bartnicki will 9 In Bartnicki the Court stated quite clearly that 10 while the interceptor of the phone call maybe guilty of a 11 crime, it by know means follows from that that punishing 12 disclosures lawfully obtained and in the public interest by 13 one not involved in the initial illegality is an acceptable 14 means of serving those ends. 15 You cannot punish someone who merely receives 16 allegedly stolen information. 17 if the United States 18 by a law-abiding possessor of information can be suppressed 19 in order to deter conduct of a non-law-abiding third-party, 20 thus if Mr. Bernstein broke the law, you cannot punish 21 Mr. Oberlander for that. 22 It would be quite remarkable Court continued to hold speech Mr. Oberlander has independent free speak rights. 23 Your Honor, sealing the court file, 24 unconstitutional in this case, because there is no signed 25 court order. TlT;'ll\lf") 'V C""TT7\ n T n r \ I submit, was SM0037 docket 55-000037 Case 10-2905, Document 55, 02/03/2011, 200440, Page38 of 192 10 1 Hartford says there must be a court order. If your 2 Honor did sign an order, there is nothing in the docket 3 sheet, as far as we can tell, to indicate that prior notice 4 appearing was given prior to the sealing of the court file. 5 We have not had an opportunity to see that docket 6 sheet, therefore, we cannot note whether this case was 7 properly sealed. If notice was given -- 8 THE COURT: Excuse me. 9 If you went to the docket you would find that this 10 case is under seal, correct? 11 MS. LERNER: 12 THE COURT: Yes. And in order to obtain documents, which 13 are part and parcel of that case, you would have to make an 14 application to a court to unseal that file. 15 sealing order says. 16 MS. LERNER: That is what the And if the sealing order was not signed 17 by your Honor and the requisite findings were not made, is 18 unconstitutional, and we have been deprived of the 19 opportunity to see the docket sheet and the United States 20 Supreme Court in Amidao held we cannot presume what is in the 21 docket sheet if we can't see it. 22 can't know that because the Court has declined to allow us to 23 see the docket sheet as stated in Hartford. We cannot make 24 any presumption about what it says. 25 make no presumption and we cannot. If notice was given, we The appellate court can Therefore, we cannot SM0038 docket 55-000038 Case 10-2905, Document 55, 02/03/2011, 200440, Page39 of 192 11 1 presume the documents were properly sealed, your Honor. 2 There was nothing on the record that the sealing 3 THE COURT: Excuse me. Just a minute. Is there 4 some presumption that an order -- assuming that there is an 5 order and you do not know whether the order was or was not 6 signed -- what you do know by looking at the docket sheet is 7 this is a sealed file, 8 9 sealed by order of the court. Is there some presumption that the order is invalid because it not signed, 10 MS. LERNER: 11 THE COURT: is that what I'm hearing? I'm referring to the Hartford case--. Mr. Lerner, I am asking you what I am 12 understanding, is there is a presumption of the invalidity of 13 an order? 14 MS. LERNER: I think, your Honor stated on the 15 record that this is just matter of factly and indicated as I 16 recall it wasn't even signed, 17 there is a signed order, let us see it, because without a 18 signed order this proceeding is unconstitutional. THE COURT: 19 20 21 correct. it's docket said is sealed. If It may be, Mr. Lerner, that you are You are not answering the question. MS. LERNER: I don't have to make any presumption. 22 The United States Supreme Court has held the appellate courts 23 do not have to presume there is a signed order in the file 24 when there is--. 25 THE COURT: If there is an order or docket entry SM0039 docket 55-000039 Case 10-2905, Document 55, 02/03/2011, 200440, Page40 of 192 12 1 that says this has been sealed by order of the court, any 2 person is free to ignore that order and if by some chance, 3 some document in that file becomes available to any person, 4 that person is free to assume that the order has no efficacy? 5 MS. LERNER: First of all, the docket here is 6 sealed, therefore, Mr. Oberlander could not see any order in 7 the file and the answer to your question is, yes, anybody may 8 do it, whatever he wants with that document. 9 be distributed, 10 11 12 13 It is free to if it's a public of interest, criminal proceeding are per se of public interest. THE COURT: It's true that criminal proceeding are a matter of public interest. Doesn't follow that every document that has been 14 created in the course of a criminal proceeding is a matter of 15 public interest available to the public upon request. 16 17 18 That is particularly true, as I'm sure you know Mr. Lerner -MS. LERNER: I apologize for that interruption. ) 19 20 THE COURT: I understand your passion in connection with this matter. 21 Let us talk one at a time. 22 I take it you read Charmer Industries. 23 MS. LERNER: 24 THE COURT: 25 Okay. Yes. And I take it that having read Charmer Industries, you would agree that a presentence report is a SM0040 docket 55-000040 Case 10-2905, Document 55, 02/03/2011, 200440, Page41 of 192 13 1 document which has some very specific confidentiality 2 concerns. MS. LERNER:· 3 Your Honor, of course, I agree with 4 that. But the premise, you have asked whether a document 5 could be used for any purpose -- if it's from a criminal 6 trial 7 question is was it stolen from the court file. 8 or inappropriately unauthorized taken from the Court file as 9 in Charmer? criminal proceeding even if it's sealed, the Was it stolen The answer is, the Court can order its return. 10 If 11 it's obtained from other means, your Honor, has no 12 jurisdiction to stop it. You can not issue a prior restraint 13 order. 14 If I may continue? 15 THE COURT: 16 MS. LERNER: Please. There is nothing in the record, that we 17 are aware of, because we cannot see the docket sheet or the 18 sealing order. 19 fundamental interest in the First Amendment would be served 20 by sealing this court file. 21 finding this was the least restrictive alternative. 22 There is nothing on the order finding a more There is nothing on the record Your Honor, granting -- now we turn to the TRO 23 itself, as the Court granted a TRO, which constitutes a prior 24 restraint on speech without conducting any inquiry as to 25 whether the respondent's First Amendment rights would be TTT:"'l\Tn'T C"TT7\ nTnr\ r"'\r.ir.1Tr"T7\T rtr\r1nrn nr.nnnrnr.in SM0041 docket 55-000041 Case 10-2905, Document 55, 02/03/2011, 200440, Page42 of 192 14 1 infringed. 2 Now, your Honor, ordered -- the order itself signed 3 by your Honor incorporates Ms. Moore's arguments and it says 4 for the reasons stated, but that is constitutionally 5 insufficient according to Amadao, you must make independent 6 findings to support a prior restraint. 7 It must be the order itself. The TRO is a nullity. 8 Failing to make the requisite findings in the order to show 9 cause, in as much it constitutes a prior restraint, renders 10 11 that prior restraint unconstitutional. Your Honor failed to disclose to us on the docket 12 sheet that we requested, we cannot know whether these 13 documents are properly sealed 14 THE COURT: 15 MS. LERNER: 16 THE COURT: Have you made application to the Court? We requested it. Have you made application to me to 17 unseal whatever document you wanted? 18 indicated there were, 19 dockets -- docket entries which were sealed which were 20 unsealed and, 21 I think, That docket sheet four or five numbered I think, made available to you. MS. LERNER: They were not. They were not. Having 22 a dual docket sheet, your Honor stated at the second 23 appearance that there were thirteen items on the docket sheet 24 and six were sealed. 25 Your Honor, that is improper. TTT':'1ll.ln'\T C"'TT7\ nTnA SM0042 docket 55-000042 Case 10-2905, Document 55, 02/03/2011, 200440, Page43 of 192 15 1 THE COURT: 2 MS. LERNER: What was improper? Your Honor, you sealed the entire 3 docket, yet you indicated there are thirteen items in the 4 docket, six of which are sealed, which means there are others 5 which are not sealed and yet the entire file has been sealed. Your Honor, if the Court goes beyond the relief 6 7 sought in the order to show cause there will be a further 8 violation of Mr. Oberlander's constitutional rights for the 9 order to show cause did not seek permanent injunction, did 10 not seek a gag order, there is no basis for such leave. 11 cannot be gagged. 12 13 14 He He returned, your honor, the original document that he obtained from Mr. Bernstein. Now, it may not be so clear in the record that he -- 15 those were actually the originals obtained from Mr. 16 Bernstein. 17 Oberlanqer to that effect, I would ask that he give it. But 18 those were the originals. 19 If the Court would iike a representation from Mr. Your Honor can do nothing to stop the dissemination 20 of photocopies or electronic copies and the selective 21 enforcement or selective gag order directed only at Mr. 22 Oberlander and not, for example, Business Week, which as we 23 noted in our papers, has on its website an article which 24 states that it has a copy of the criminal -- the sealed 25 criminal complaint in this matter. TTT':"ll.Tn\T 0TT7\ nTnr'\ SM0043 docket 55-000043 Case 10-2905, Document 55, 02/03/2011, 200440, Page44 of 192 16 1 Your Honor, cannot selectively enforce a gag order 2 against Mr. Oberlander. 3 Business Week. 4 You cannot gag him and not gag If you're going to take on a little guy you have to 5 take on a big guy. He'll not sit here and accept that, 6 neither will I. 7 injunction cannot be granted. We will fight this to the end. A permanent 8 Thank you, your Honor. 9 THE COURT: Do you want to respond? 10 MS. MOORE: Yes, your Honor. 11 I would note we'd like to sort of supplement our 12 brief with an additional Fifth Amendment analysis. 13 THE COURT: 14 supplemental brief. 15 Your application is granted to file a There are a number of things, which are troublesome Going back to the original order to show 16 in this case. 17 cause, that document was troublesome because it just said 18 that there was a significant breach in the processes of this 19 Court with respect to criminal dockets. 20 There was, as I think, indicated on that occasion, 21 was very concerned about the integrity of the record of this 22 Court and that file. 23 that docket sheet is a notification by an assistant United 24 States attorney of the filing of an information, which 25 eventually evolved into an indictment. TTT:"1l\1n\T C'Tl7\ nTnr\ I It turns out that the first document on SM0044 docket 55-000044 Case 10-2905, Document 55, 02/03/2011, 200440, Page45 of 192 17 1 There is no indication, that is docket number one, 2 which I obtained or had the clerk obtain from Kansas City or 3 wherever these files are shipped, because it was no longer 4 available in the courthouse. 5 that document or in a subsequent document that an application 6 was made or request was made in that document to seal that 7 file. 8 which directed that this file be sealed. There is not any indication in Nor have I been able to find any order signed by me, 9 Criminal cases such as the John Doe case and cases 10 in which by virtue of cooperation agreements and variety of 11 other matters either national interest, security interest, or 12 significant interest that one may have in his own safety, 13 which may be at risk. 14 is a significant consideration. 15 Criminal files are sealed where that Let us assume for the moment that an order was 16 signed by me somewhere along the line, as it may have been, 17 directing that the file in this case be sealed. 18 is directed to whom? 19 would appear, is directed to the clerk of the court who is 20 informed that this document or this file is sealed and is not 21 to be made available, except upon an order of the Court 22 unsealing it. 23 Who is bound by it? That order That order, it When the order to show cause was first brought into 24 this Court, it was a very serious concern as to whether 25 somebody in this courthouse unsealed that file or made f\r.ir.Tr-TnT r-onrrnrn nT.'1nr'\nrnr.n SM0045 docket 55-000045 Case 10-2905, Document 55, 02/03/2011, 200440, Page46 of 192 18 1 document which were sealed available to third parties. 2 was a very significant concern. 3 That A hearing, which we held some weeks ago, makes it 4 plain and, 5 were not removed by John Doe, he properly had them. The 6 cooperation agreement was a document which was in the 7 possession of his then attorney. 8 right, as did John Doe, to have a copy of that cooperation 9 agreement, had a perfect right to have whatever document 10 I think, it is beyond dispute that these documents His attorney had a perfect pertained to his case, which may have been part of the file. 11 Assume that John Doe decided to make the cooperation 12 agreement, 13 would an order have been violated? 14 no. 15 far revealed, Mr. Bernstein has not submitted an affidavit 16 nor has he testified. 17 serving the subpoena. 18 the proffer agreement available to a third-party, John Doe had these documents, The answer is clearly, so the testimony has thus You cannot find him for the purpose of What we have on the record is the testimony by John 19 Doe that he did not give those documents to Mr. Bernstein, 20 which gives rise to the legitimate inference that Mr. 21 Bernstein may have stolen them, may have improperly obtained 22 those documents. 23 What order of the Court was violated by that event? 24 Those documents then came into the hands of Mr. Oberlander. 25 Mr. Oberlander knew that those documents were sealed SM0046 docket 55-000046 Case 10-2905, Document 55, 02/03/2011, 200440, Page47 of 192 19 1 documents, contained very, very serious information and his 2 assertion or testimony that, well, it wasn't his words, it 3 was his client's words, is remarkable for it's disingenuous. 4 To say that I am not a criminal lawyer and I don't know what 5 it meant, I have a sealed document, is preposterous. 6 Particularly, since he had the electronic filing information 7 from the Southern District that said if it's a cooperation 8 agreement, be very, very careful before you use it. 9 Now, what happened, assuming that the documents were 10 in John Doe's cabinet or in his desk, as they had a perfect 11 right to be, they were his documents, and the documents were ·12 then wrongfully taken by Mr. Bernstein. 13 converter, Mr. Bernstein has no title to those documents, no 14 legal right to those documents, to that tangible document 15 whether it would be a piece of paper, whether it be a gold 16 ring or whatever it is, it was a tangible item which was 17 converted, given the testimony that I have by Mr. 18 Bernstein -MS. LERNER: 19 20 21 Mr. Bernstein is a John Doe, I believe. Bernstein did hot testify. THE COURT: I am saying based on the testimony. Mr. 22 Bernstein then analogizing these events to the fundamental 23 principle of conversion, or larceny, if you will, past it 24 onto Mr. Oberlander. 25 Mr. Oberlander had no better right to those Tlr.111.Tn\T C'T17\ nTnr\ SM0047 docket 55-000047 Case 10-2905, Document 55, 02/03/2011, 200440, Page48 of 192 20 If we were to describe 1 documents than Mr. Bernstein had. 2 this change of events in terms of property rights, title, Mr. 3 Bernstein had no title and he had no title to give . to Mr. 4 Oberlander. 5 Mr. Oberlander even if he were an innocent purchaser 6 for value, would not have acquired title to those documents, 7 because Mr. Bernstein had no title to give him. If requests 8 were made of Mr. Oberlander to return those documents and Mr. 9 Oberlander refused, it may be that an action for conversion 10 may be available against Mr. Oberlander. 11 It may be that there is some disciplinary rule, 12 which might be applicable to Mr. Oberlander, who had 13 documents which he knew or perhaps should have known may have 14 been improperly obtained by Bernstein and passed onto him. 15 It may be that there is ethical principle, 16 which should have precluded Mr. Oberlander from using those 17 documents. 18 have been apparent to any reasonable person, particularly one 19 who is trained in the law ostensibly. 20 Because the sensitivity of those documents would So the question is, yes, something bad was done, 21 something very bad and perhaps despicable was done by the use 22 of those documents annexed to a complaint in the Southern 23 District, in a civil case, but the question is what order was 24 violated? 25 You can certainty submit briefs on the First TTT:'ll\lnT..T C"TT7\ nTnr\ SM0048 docket 55-000048 Case 10-2905, Document 55, 02/03/2011, 200440, Page49 of 192 21 1 Amendment issue. I have some question about whether the 2 First Amendment is applicable here. 3 Judge Kahn in the Western District-- I did not bring my file 4 down. I thought this was on for 11:30. 5 the town -- I will be more than happy to give it to you. There was an opinion by What is the name of 6 LAW CLERK: It was a Northern district case. 7 THE COURT: Yes, it was by Judge Kahn, in which he 8 has a very interesting discussion in a case, which is not 9 this, but analogous in the sense that it involved a 10 confidentiality order that was part of a potential settlement 11 stipulation and that the documents in that confidentiality 12 agreement became available or was sought to be made available 13 to a newspaper upstate by the reporter of that newspaper and 14 the First Amendment argument was made in that case as well. 15 Judge Kahn didn't think it was applicable for a 16 variety of reasons. I think, his reasoning might be quite 17 persuasive when dealing with a presentence report and 18 certainly Charmer, I think, leaves very little doubt that a 19 presentence report has a very, very special status. 20 we are. , So there 21 You want an opportunity to submit the supplemental 22 brief and I will give you that opportunity. I just received 23 Mr. Lerner's document this morning. 24 four something last night. You don't request an adjournment 25 at 4:00 o'clock on the eve of a hearing. TTT':ll\Tn'\T C""Tl7\ nTnr\ It was FAX'D or ECF'd at If you look at my SM0049 docket 55-000049 Case 10-2905, Document 55, 02/03/2011, 200440, Page50 of 192 22 1 local rules it require 48 hours notice for purposes of 2 adjourning a schedule hearing or a conference. 3 4 So I didn't get around to reading it because I left before that document arrived and I looked at it this morning. 5 Ms. Moore called, I think, shortly after that 6 document was received, so my law clerk tells me, and asked 7 for an adjournment to respond to that letter. 8 to respond to that because I was not here. 9 her this morning and I asked her if she wanted to adjourn. I was not able But I did call 10 You indicated that you saw no purpose for this conference as 11 well, but she preferred to go ahead and make application for 12 a supplemental brief. 13 What I have just declared is not to be understood at 14 this moment as a determination that injunctive relief may not 15 be appropriate, but I am troubled by the issues as I have 16 outlined them as to whether an order signed by a judge on one 17 of those sealing envelopes, which says, not to be unsealed 18 except by order of the Court, is binding upon any third-party 19 person, is binding or is the procedure, which is intended by 20 that procedure, which informs any 21 or will have notice by looking at a docket sheet, looking at 22 the ECF, this is a case under seal -- under sealed or filed 23 under seal-- make application to the Court to unseal the 24 document. 25 who has notice Whether having knowledge that the case was one, Tlr.11\in'\T C"TT7\ nTnr\ SM0050 docket 55-000050 Case 10-2905, Document 55, 02/03/2011, 200440, Page51 of 192 23 1 which has been filed under seal, whether an order was issued 2 or not, it is a case which is filed under seal, and clearly 3 indicates the content of that sealed file is not to be 4 disclosed, except upon order of the Court, whether that can 5 be ignored, whether that is presumptively meaningless and has 6 no binding effect upon anybody. It is an interesting question, Mr. Lerner. 7 Judge 8 Kennedy who I think you were quoting with all due respect, 9 may not have faced this specific issue at any given time, but 10 it is obviously an issue which is quite troublesome. 11 quite troublesome in so far as Mr. Oberlander's use of that 12 document, which he knew was sealed, knew contained very 13 sensitive information. 14 available against Mr . Oberlander. 15 I t is It may be some other relief may be I am not sure. In so far as injunctions are concerned, there is an 16 interesting observation in Charmer as well, if you read it 17 carefully, Mr. Lerner, and I'm sure that you have. 18 was is required, and Ms. Moore indicates what is normally 19 required before injunctive relief is obtained-- and by the 20 way in so far as the TRO is concerned-- I do not recall there 21 was any objection ever raised by you to the issuance of the 22 TRO. 23 Normally It is my sense that you were consenting to it at 24 every stage of the TRO as it was initially issued and 25 renewed. We will leave that go for the moment. TTT71l\Tn'\T C"TT7\ nTnf""\ f""\T:'lT:"1T0T7\T r-.nr1nrn nr:inr\nrnr.n SM0051 docket 55-000051 Case 10-2905, Document 55, 02/03/2011, 200440, Page52 of 192 24 1 MS. LERNER: 2 THE COURT: I can respond -I said, leave that go for the moment. 3 But normally, before a TRO-- injunctive relief, more 4 specifically should be issued, there are three prerequisites. 5 The leading case in this circuit is Jackson Dairy versus H.B. 6 Hood, I think, it is 570 2d or there abouts. 7 show irreparable alarm, likelihood of irreparable harm, 8 likelihood of success on the merits, or reasonable issues 9 going to the merits with the balance of hardships tipping in 10 You have to favor of the movant. 11 In Charmer, you may recall-- it may be Judge Kearse 12 who said that the burden should not be on the person seeking 13 the injunctive relief, where the presentence report is the 14 document at issue, the burden should be upon the Attorney 15 General, the person who has that presentence report to 16 establish an overriding need for the use or possession of 17 that document. 18 19 The burden should be on the other side, not on the but the person seeking to be enjoined. 20 Having said all of that I will await further 21 briefing. 22 want to submit, Mr. Lerner. 23 24 25 I do not think there is anything further that you MS. LERNER: There are two · cases I would like to cite and just -THE COURT: Why don't y ou submit them to me. SM0052 docket 55-000052 Case 10-2905, Document 55, 02/03/2011, 200440, Page53 of 192 25 1 MS. LERNER: 2 THE COURT: 3 When I say submit them, submit the citations to them. MR. LERNER: 4 5 I don't have copies for -- DiPietro against the United States of America. 6 THE COURT: 7 MS. LERNER: 8 It is a Le xus cite, 2009, U.S. District -- 9 THE COURT: What are the names of the parties? DiPietro against the United States of America. 12 THE COURT: 13 MS. LERNER: 14 D I P I E T R 0. MS ·. LERNER: 10 11 I'm sorry -- Court file. DiPietro is the plaintiff? Petitioner for the unsealing of the 2009, US District, Lexus 30010. 15 THE COURT: 16 MS. LERNER: 17 And the second case is Nycomeds against Glen Parker 18 19 20 What court was it. Southern District. Generics, 2110 U.S. district, Lexus 20 788. It is a magistrate decision , Eastern District of New York, Magistrate Mann. 21 THE COURT: You want a week? 22 MS. MOORE: Yes, your Honor. 23 THE COURT: You are responding to Mr. Lerner's last 24 submission and I don't think any further submissions are 25 necessary. TTT7'l\ln'\T C"TT7\ nTnf"'\ SM0053 docket 55-000053 Case 10-2905, Document 55, 02/03/2011, 200440, Page54 of 192 26 MS. MOORE: 1 Your Honor, in light of Mr. Lerner's 2 last submission, I would seek clarification with respect to 3 the PSR that it's clear -THE COURT: 4 Before you get to that. Am I correct 5 that the documents, at least Mr. Lerner's last submission 6 says this whole proceeding now is moot because the documents 7 have been surrendered, turned over to you, is that correct? MS. MOORE: 8 9 Not that I know of. I think, as I understand his position, which I don't agree with, he's 10 entitled to keep all copies of the documents, as long as he 11 returned the originals, so, 12 states that if at the court proceeding he marked as exhibits 13 the original versions of those documents, but his client has 14 maintained both electronic and hard copies, so clearly the 15 intent was not to give back, as Judge Jones ordered in Visa, 16 all copies as well. 17 are free to disseminating copies. THE COURT: 18 I believe, in his letter he It doesn't get the originals back and I think, I indicated Mr. Oberlander 19 should not do that. I think it was in the form of an order 20 and that order, 21 it now and if you want it in writing until I resolve this 22 issue. I believe, if I have not done so, I am doing 23 MR. LERNER: 24 THE COURT: 25 I'm issuing a further TRO for the reasons that I TTPl\Tn"V C"TT7\ You are issuing a further TRO? Yes, I am. nTnf'\ SM0054 docket 55-000054 Case 10-2905, Document 55, 02/03/2011, 200440, Page55 of 192 27 1 2 have indicated. I think there is irreparable harm, which is imminent 3 to Mr. John Doe, those documents contained information which 4 is highly, highly sensitive and if disseminated it is 5 discriminatively to a person that should not get the 6 information. 7 I think, it would put Mr. John Doe's safety at risk. 8 The likelihood of success is or is not present. Again, if 9 Charmer Industies is being read correctly by me and, I think, 10 it is, I think, the burden with respect to whether or not 11 there is some need to maintain those documents or to keep 12 them should be shifted to you. 13 Until next week; okay. I do not think we need any further hearing. You will 14 submit the briefs and I will make my determination. The TRO 15 is continued for another ten days. 16 Is there anything further? 17 MS. MOORE: No, your Honor. 18 THE COURT: Thank you. 19 MS. MOORE: I do have one last application. With 20 respect to the transcript to have my client's name replaced 21 with John Doe. 22 THE COURT: Yes. 23 MS. MOORE: Thank you. 24 ****** * 25 SM0055 docket 55-000055 Case 10-2905, Document 55, 02/03/2011, 200440, Page56 of 192 All Word I '98 [1) - 2:2 1 10017(1)-1 :20 additionally [1) - 3: 17 address [11 - 2:22 101 [1) - 1:15 10:30 [1] - 1:11 1101 [1]-2 :3 11:30 [1) - 21 :4 adjourn [1J - 22:9 adjourning [11- 22:2 adjournment [2J - 21 :24, 22:7 150 [1) - 1:20 2 20 [1) - 1:10 2009 [2) - 25:8, 25:14 2010 [1) - 1:10 20788 [1) - 25: 18 2110 [1)- 25:18 advise [1) - 6:12 affecting [1J - 8:22 affidavit [21- 4:24, 18:15 agent [11 - 3:14 ago [1) - 18:3 agree [SJ- 9:5, 9:8, 12:25, 13:3, 26:9 agreement[7] - 4:4, 18:6, 18:9, 18:12, 19:8, 21 :12 agreements [1J - 17: 10 ahead [3) - 5:5, 9:2, 22:11 21st [1J - 8:5 225 [1) - 1 :23 2d [1)- 24:6 3 30010[1}-25:14 4 42nd [1J - 1:20 48 [1) - 22:1 4:00 [1) - 21 :25 5 570 [1) - 24:6 7 718-613-2509 [1) - 1:24 9 alarm [1) - 24:7 allegation [2J - 5:2, 5:24 allegations [21- 5:8, 5:23 allegedly [1J - 9: 16 allow [11 - 10:22 alternative [1J - 13:21 alternatively [1) - 5: 15 altogether [11 - 6:23 Amadao [11 - 14:5 Amendment [1 3) 2:21 , 2:24, 3:4, 3: 16, 4:7, 4:16, 6:4, 13:19, 13:25, 16:12, 21 :1, 21 :2, 21 :14 amendment [2) - 3:2, 6:17 America [21 - 25:5, 25:11 Amidao [1) - 10:20 analogizing [1J - 19:22 analogous [1J - 21:9 analogy [11 - 9:8 analysis [3J- 2:24, 6:17, 16: 12 annexed [1) - 20:22 answer[3J - 12:7, 13:10, 18:13 answering [1) - 11 :20 apologize [1) - 12:18 apparent [1J- 20:18 appeal [1 3) - 6:23, 6:25, 7:6 , 7 :8, 7:1 0, 7 :13, 7:15, 7:21, 8:1, 8:8, 8:15, 8:17, 8 :24 appealable [3J - 7: 19, 7: 23, 8:7 95 [1) - 3:19 98-1101 [1) - 1 :5 A a.m [11 - 1: 11 abiding r21- 9:18, 9:19 able [2) - 17:7, 22:7 abouts r11 - 24:6 absolute [1) - 3:2 accept [1 ) - 16:5 acceptable [11 - 9:13 accepting [1J - 5:6 according [1J - 14:5 accuses [1} - 5:1 0 acquired [1} - 20:6 action [1) - 20:9 additional [4)- 3:8, 6: 15, 6:17, 16:12 appearr11 - 17:19 appearance [2) - 2:21 , 14:23 APPEARANCES [1) - 1:14 appearing [11 - 10:4 appellate [2) - 10:24, 11 :22 applicable[3J- 20:12, 21 :2, 21:15 application r121- 5:11, 5:14, 5: 18, 6:1, 10:14, 14:14, 14:16, 16: 13, 17:5, 22: 11 , 22:23, 27:19 applies [1) - 4:2 appropriate [1) - 22:15 argue [1J - 7:1 argued [2} - 7:3, 8:11 arguing [1J - 6:11 argumentpJ- 21 :14 ARGUMENT[1J -1 :12 arguments [6) - 2:2, 2:11 , 2:21, 5:23, 9:5, 14:3 arranged [11- 4:21 arrived [1J- 22:4 article [1) - 15:23 articles [11- 3:6 assertion [1J - 19:2 assistant [1J - 16:23 assume [3) - 12:4, 17:15, 18:11 assuming [2) - 11 :4, 19:9 Attorney [11 - 24:14 attorneyrs1-3:7, 3:20, 16:24, 18:7 Attorney's [11 - 6:1 authority [2J- 2:12, 5 :25 available[11J - 12:3, 12:1 5, 14:20 , 17:4, 17:21 , 18:1, 18:12, 20:10, 21 :12, 23:14 Avenue[1J-1 :15 await [1) - 24:20 aware [3J- 2:19, 3:24, 13:17 B backwards [1J - 5:16 bad r21 - 20:20, 20:21 balance [1) - 24:9 bar[1J- 4:16 Bartnicki [2J - 9:7, 9:9 based [1) - 19:21 basis [21 - 5:14, 15:10 became [2J - 7:4, 21 : 12 becomes [11 - 12:3 BEFORE[1J- 1:12 believes [11 - 7:22 bend [11 - 5:16 Bernstein [17] - 4:24, 9:20, 15:13, 15:16, 18:15, 18:19, 18:21, 19:12, 19:13, 19:18, 19:19, 19:22, 20:1, 20:3, 20:7, 20:14 better [1J - 19:25 beyond [3) - 5:25, 15:6, 18:4 bias [1J - 5:1 6 big [1) - 16:5 binding [3J- 22:18, 22:19, 23:6 BOCKIUS [1J- 1:15 bound [1}- 17:18 breach [1) - 16:18 BRIAN [1J - 1:18 Brian r11 - 2:5 brief[6J-2:11, 2:23 , 16:12, 16:14, 21:22, 22:12 HENRY SHAPIRO Official Court Reporter SM0056 docket 55-000056 Case 10-2905, Document 55, 02/03/2011, 200440, Page57 of 192 All Word briefing 111 - 24:21 briefs l3J- 2:23, 20:25, 27:14 bring l1J- 21 :3 broke 111 - 9:20 Brooklyn 121 - 1:8, 1:23 brought 111 - 17:23 burden 141 - 24:12, 24:14, 24:18, 27:10 business 111 - 2:18 Business 121-15:22,16:3 BY121-1:16, 1:21 c cabinet(1J-19:10 Cadman 111 - 1:23 CALDWELL 111 - 1:17 Caldwell 111 - 2:5 candid 111 - 7:18 candidly 111 - 7:19 cannot114J- 9:15, 9:20, 10:6, 10:20, 10:23, 10:25, 13:17, 14:12, 15:11, 16:1, 16:2, 16:7, 18:16 care 121 - 4:1, 4:5 careful 111 - 19:8 carefully 111 - 23:17 casel33J - 2:13, 2:14, 2:15, 2:19, 3:2, 3:11, 4:3, 4:6, 4:10, 4:11, 4:13, 4:15, 6:21, 7:17, 9:3, 9:24, 10:6, 10:10, 10:13, 11 :10, 16:16, 17:9, 17:17, 18:10, 20:23, 21 :6, 21 :8, 21 :14, 22:22, 22:25, 23:2, 24:5, 25:17 cases 15] - 2:16, 4:14, 17:9, 24:23 caused 11] - 8:20 caution (11 - 4:1 certainly 121 - 4:5, 21 :18 certainty 111 - 20:25 chance 111 - 12:2 ·change 111 - 20:2 Charmer111-12:22, 12:24, 13:9, 21:18, 23:16, 24:11, 27:9 check 111 - 9:8 circuit 111 - 24:5 citations 111 - 25:3 cite 121 - 24:24, 25:8 cited 121 - 4:14, 9:4 City 111 - 17:2 civil 121 - 2:17, 20:23 Civil 111 - 4:9 claiming (1] - 4:23 claims 111 - 4:1O clarification 121- 4:23, 26:2 clear[3J - 6:23, 15:14, 26:3 clearly 111) - 3:12, 3:18, 4:11, 5:4, 5:1 1, 5:12, 8:14, 9:9, 18:13, 23:2, 26:14 CLERK 121 - 2:2, 21 :6 clerk 131 - 17:2, 17:19, 22:6 clientl3J - 4:12, 5:7, 26:13 client's 141 - 4:9, 5:6, 19:3, 27:20 clients 111 - 5:1 coerce 111 - 4: 12 colleague 111 - 6:9 comment 111 - 6:9 commercial 111 - 2:18 compelled 111 - 3:25 compelling 121 - 2:16, 4:7 complaintl4J- 3:19, 4:9, 15:25, 20:2 2 completely 111 - 5:14 computeri11 - 1:25 concern 121 - 17:24, 18:2 concerned 13)-16:21, 23:15, 23:20 concerns 111 - 13:2 conduct 131 - 3:3, 5:1O, 9:19 conducting 111 - 13:24 conference 121 - 22:2, 22:1o confidential 121 - 3:9, 6:5 confidentialityl3J-13:1, 21:10, 21: 11 connection 121 - 5: 1, 12:19 consenting 111 - 23:23 consideration 11)- 17:14 constitutes 12J-13:23, 14:9 constitutional 111 - 15:8 constitutionally 111 - 14:4 contacted (11 - 4:24 contained lBJ - 2:11, 2:12, 4:10, 5:23 , 6:14, 19:1, 23:12, 27:3 content 111 - 23:3 continue 111 - 13:14 continued 121- 9:17, 27:15 continuing 121 - 8:16, 8:22 conversion 121 - 19:23, 20:9 converted 121 - 7:7, 19:17 converter (11 - 19: 13 cooperation 17)- 4:4, 17:10, 18:6, 18:8, 18:11, 19:7 cooperators 121 - 4:2 copies 161 - 15:20, 25:1, 26:10, 26: 14 , 26:1 6, 26:17 copy 121 - 15:24, 18:8 correct 141 - 10: 10, 11 :20, 26:4, 26:-7 correctly 111 - 27:9 course 12)- 12:14, 13:3 COURT 142) - 1:1 , 6:18, 6:22, 7:5, 7:9, 7:14, 7:18, 7:21 , 7:25, 8:13, 9:1, 10:8, 10:12, 11:3, 11:11, 11 :19, 11 :25, 12:11, 12:19, 12:24, 13:15, 14:14, 14:16, 15:1, 16:9, 16:13, 19:21 , 21 :7, 24:2, 24:25, 25:2, 25:6, 25:9, 25:12, 25:15, 25:21 , 25:23, 26:4, 26:18, 26:24, 27:18, 27:22 Court1321-1:22, 2:19, 2:22, 2:25, 4:8, 5:10, 5:13, 5:15, 5:24, 6:15, 8:11, 8:15, 9:9, 9:17, 10:20, 10:22, 11:22, 13:8, 13:10, 13:23, 14:14, 15:6, 15:16, 16:19, 16:22, 17:21, 17:24, 18:23, 22:18, 22:23, 23:4, 25:14 court 116) - 2:21, 3:22, 3:23, 9:23, 9:25 , 10:1, 10:4, 10:14, 10:24, 11 :7, 12:1, 13:7, 13:20, 17:19, 25:15, 26:12 2 Court's 111 - 4:22 courthouse 121 - 17:4, 17:25 Courthouse 111- 1:7 courts 111 - 11 :22 CR111- 2:3 crazy 111 - 6: 11 created 111 - 12:14 crime 111 - 9: 11 criminall13J- 2:2, 4:10, 12:9, 12:11 , 12:14, 13:5, 13:6, 15:24, 15:25, 16:19, 17:9, 17:13, 19:4 crowded 111 - 6:6 CV111-1:5 D Dairy 111 - 24:5 danger 121 - 4: 15, 6:5 David 111 - 2:6 DAVID111-1 :17 days 111 - 27:15 dealing 111 - 21 :17 death 111 - 2:20 decency 111 - 5:25 decided 111 - 18: 11 decision 13J - 2:13, 2:14, 25:1 9 declaration 15J- 4:18, 5:9, 5:24, 6:8, 6:14 declared 111 - 22:13 declined 111 - 10:22 deemed 111 - 7:7 Defendant 111 - 1:19 demonstrate 111 - 5: 16 deprived 111 - 10:18 deprives 111 - 8:15 describe 111 - 20: 1 deserve 111 - 3: 15 desk111-19:10 despicable 111 - 20:21 detailed 111 - 2:24 deter (11 - 9:19 determination (31 - 8:12, 22 :14, 27:14 Dicker 111 - 2:8 DICKER111 -1 :19 dignify 111 - 6:13 Di Pietro (3J - 25:4, 25:1o, 25:12 directed 14)- 15:21, 17:8, 17:18, 17 :19 directing 111 - 17:17 disciplinary 111 - 20:11 disclose 111 - 14:11 disclosed 111 - 23:4 disclosures 111 - 9:12 discretion 111 - 6:13 discriminatively 111 - 27:5 discussion 111 - 21 :8 disingenuous 111 - 19:3 dispute 111 - 18:4 disseminate111 - 3:8 HENRY SHAPIRO Official Court Reporter SM0057 docket 55-000057 Case 10-2905, Document 55, 02/03/2011, 200440, Page58 of 192 All Word disseminated [1) - 27:4 disseminating 121 - 4:1, 26:17 dissemination 111- 15:19 distributed 111 - 12:9 DISTRICTl3J-1 :1, 1:1, 1:13 district121-21 :6, 25:18 District(101- 3:19, 3:24, 4:8, 19:7, 20:23, 21 :3, 25:8, 25:14, 25:16, 25:19 docket 1211 - 10:2, 10:5, 10:9, 10:19, 10:21, 10:23, 11 :6, 11 :16, 11 :25, 12:5, 13:17, 14:11, 14:17, 14:19, 14:22, 14:23, 15:3, 15:4, 16:23, 17:1, 22:21 dockets[2J-14:19, 16:19 document[27J- 8:12, 8:21, 12:3, 12:8, 12:13, 13:1, 13:4, 14:17, 15:12, 16:17, 16:22, 17:5, 17:6, 17:20, 18:1, 18:6, 18:9, 19:5, 19:14, 21 :23, 22:4, 22:6, 22:24, 23:12, 24:14, 24:17 documents(37J-2:17, 3:11 , 3:15, 3:18, 3:21, 4:25, 6:2, 6:6, 10:12, 11 :1, 14:13, 18:4, 18:14, 18:19, 18:22, 18:24, 18:25, 19:1, 19:9, 19:11, 19:13, 19:14, 20:1, 20:6, 20:8, 20:13, 20:17, 20:22, 21 :11, 26:5, 26:6, 26:10, 26:13, 27:3, 27:11 DOE111-1 :5 Doe[11J-2:3, 2:6, 17:9, 18:5, 18:8, 18:11, 18:14, 18:19, 19:19, 27:3, 27:21 Doe's 121-19:10, 27:7 done [3] - 20:20, 20:21, 26:20 engaged [1) - 4:20 engaging 111 - 5:20 enjoined 111 - 24: 19 entire 121-15:2,15:5 entitled 111- 26:10 entity111- 2:18 entries 111 -14:19 entry 111 - 11 :25 envelopes (1J - 22:17 ES016J-1:16, 1:17, 1:17, 1:18, 1:21, 1:21 establish [1J - 24: 16 established [11 - 8:14 ethical 121- 3:8, 20:15 eve 111 - 21 :25 event[3J- 7:11, 8:20, 18:23 events 121 - 19:22, 20:2 eventually [1) - 16:25 evidence [1) - 8:9 evident[1J - 3:18 evolved 111 - 16:25 example [1) - 15:22 except[3J -17:21, 22 :18, 23 :4 excuse 121 - 10:8, 11 :3 exercise 121- 3:25, 8:22 exercised 111 - 4:5 exhibits 111 - 26:12 F faced [1J - 23:9 factly 111 - 11 :15 facts (3) - 2:15, 3:2, 4:15 doubt 111 - 21 :18 down [1J - 21 :4 dual 111 - 14:22 dubious 111 - 4:20 due [11 - 23:8 E East 121 - 1 :20, 1 :23 Eastern 111 - 25: 19 EASTERN (1) - 1:1 ECF [1J - 22:22 ECF'd (1) - 21 :23 economic [1] - 2:18 Edelman [1) - 2:8 EDELMAN [1) - 1: 19 effect[3J - 8:18, 15:17, 23:6 efficacy 111 - 12:4 either[2J- 5:13, 17:11 electronic(4J- 3:25, 15:20, 19:6, 26:14 ELSER[1J-1 :19 Elser 111 - 2:7 embarrass 111 - 4: 11 encountered 111 - 8:2 end 111 - 16:6 ends 111 - 9:14 enforce 111 - 16: 1 enforcement [1J - 15:21 failed 111 - 14:11 failing 111 - 14:8 fairly 111 - 8:11 far[5)-10 :3, 18:15, 23:11, 23:15, 23:20 favor111 - 24:10 favorable 121 - 5:7, 5:17 FAX'D 111- 21 :23 federal 111 - 5:25 Fifth 111 -16:12 fight [1] - 16:6 file [24] - 7:13, 7:21, 9:23, 10:4, 10:14, 11 :7, 11 :23, 12:3, 12:7, 13:7, 13:8, 13:20, 15:5, 16:13, 16:22, 17:7, 17:8, 17:17, 17:20, 17:25, 18:10, 21 :3, 23:3, 25:14 filed (5J - 4:18, 8:17, 22:22, 23:1, 23:2 files (3) - 6:2, 17:3, 17: 13 filing [5J - 3:25, 7:10, 8:15, 16:24, 19:6 final 111 - 8:12 finally [1J - 4:13 findings [3)- 10:17, 14:6, 14:8 fire 111- 6:7 First[13J-2:21, 2:24, 3:4, 3:15, 4:7, 4:15, 6:4, 6:17, 13:19, 13:25, 20:25, 21 :2, 21 :1 4 first[6J- 3:1, 8:5, 9:6, 12:5, 16:22, 3 17:23 five 111 - 14:18 follow 111 - 12:13 follows 111 - 9:11 form 111 - 26:19 formal 111 - 7:1 former 111 - 6:9 foUr[2J-14:18, 21 :24 frank 111 - 8:1 frankly111- 7:17 Frederick [1) - 2:8 free [6J - 7:20, 9:22, 12:2, 12:4, 12:8, 26:17 Friday [11 - 4 : 19 fundamental 121-13:19,19:22 G gag [5)-15 :10, 15:21 , 16:1, 16:2 gagged 111 - 15:11 gap 111- 7:2 gathering [1J - 3:5 General [11 - 24:15 Generics 111 - 25: 18 given [5J-10:4, 10:7, 10:21, 19:17, 23 :9 GLASSER[1J-1 :12 Glen 111- 25:17 . gold 111 -19:15 granted [3] - 13:23, 16:7, 16:13 granting 111 - 13:22 greater[4J- 3:15, 4:5, 6:4 , 6:13 guilty 111 - 9:10 guy121- 16:4, 16:5 H H.B (1J - 24:5 hands 111 - 18:24 happy[1J- 21 :5 harass [1) - 4 :11 hard 121- 5:22, 26 :14 hardships 111 - 24:9 harm (4) - 2:18, 2:20, 24:7, 27:2 Hartford [3)-10 :1, 10:23, 11 :10 hear111 - 6:19 hearing [6J- 9:7, 11:9, 18:3, 21 :25, 22:2, 27:13 held (3) - 10:20, 11 :22, 18:3 Henry 111 - 1:22 HERMAN [1J - 1:18 Herman [1J - 2:6 highly (2) - 27:4 himself111- 3:16 hold [1J - 9:17 honor(1J-15:12 Honor[30J - 2:10, 6:20, 7 :17, 8:5, 8:9, 9:3, 9:6, 9:7, 9:23, 10:2, 10:17, 11 :1, 11:14, 13:3, 13:11, 13:22, 14:2, 14:3, HENRY SHAPIRO Official Court Reporter SM0058 docket 55-000058 Case 10-2905, Document 55, 02/03/2011, 200440, Page59 of 192 All Word 14:11, 14:22, 14:25, 15:2, 15:6, 15:19, 16:1, 16:8, 16:1 0, 25:22, 26:1, 27:17 HONORABLE [1J - 1:12 Hood [1] - 24:6 involved [4]- 2: 16, 2:17, 9:13, 21 :9 lawfully [1J - 9:12 involves [1J - 2: 19 involving [1] - 4:1 4 irreparable [3J- 24:7, 27:2 lawyer [1] - 19:4 lawyers 111 - 4:25 leading [1] - 24:5 least [2J - 13:21 , 26:5 leave [3] - 15:10, 23:25, 24:2 issuance [1J - 23:21 issue(9J-3:11, 5:16, 8:20, 13:12, 21 :1, 23:9, 23:10, 24:14, 26:22 issued [4J - 7:12, 23:1, 23:24, 24:4 hours 111 - 22:1 human [2J- 4:15, 6:3 issues [2J- 22:15, 24:8 issuing [2J- 26:23, 26:25 ignore 111 - 12:2 ignored 111 - 23:5 illegality 111 - 9:13 imminent 111 - 27:2 imposition [1J - 4:16 improper[2J - 14:25, 15: 1 improperly [2] - 18:21 , 20:14 IN 111- 1:5 inappropriately 111- 13:8 item 111 - 19:16 items [2]- 14:23, 15:3 itself1e1- 5:14, 7:19, 8:25, 13:23, 14:2, 14:7 J ·, inapt [1J - 9:8 incorporates [1] - 14:3 independent12J - 9:22, 14:5 indicate 111 - 10:3 indicated [7J- 11 :15, 14:18, 15:3, 16:20, 22:10, 26:18, 27:1 indicates 121 - 23:3, 23:18 indication 121 - 17:1, 17:4 indictment 111 - 16:25 individual 111 - 2:20 lndusties 111 - 27:9 Industries 121 - 12:22 , 12:25 inference [1] - 18:20 information [11] - 3:9 , 4:1, 4:9, 9:16, 9:18, 16:24, 19:1, 19:6, 23:13, 27:3, 27:6 informed 111- 17:20 informs 111 - 22:20 infringed 111- 14:1 initial 111 - 9: 13 injunction [7] - 7:2, 7:4, 7:8, 7:12, 8:6, 15:9, 16:7 injunctions [1J - 23:15 injunctive1s1- 8:18, 22:14, 23:19, 24:3, 24:13 innocent 111 - 20:5 inqui ry 111 - 13:24 insufficient[1J - 14:5 integrity [1J - 16:21 intended [4J - 4:6, 5:4, 5: 12, 22: 19 intent[1J - 26:15 intentional 111 - 4:21 interceptor [1] - 9:10 interest[11J- 4:7, 6:2, 9:12, 12:9, 12:10, 12:12, 12:15, 13:19, 17:11 , 17:12 interesting [3J - 21 :8, 23:7, 23:16 interests [1] - 5:5 interruption [1] - 12:18 intimidate [1] - 4:12 invalid [1] - 11 :8 invalidity111-11 :12 4 Jackson [1J - 24:5 JOHN 111 -1 :5 John [1 3J- 2:3, 2:6, 17:9, 18:5, 18:8, 18:11, 18:14, 18:18, 19:10, 19:19, 27:3, 27:7, 27:21 Jones [1J- 26:15 Jones' 111- 2:13 judge[3J-6:1, 21 :15, 22:16 Judge[7J- 2:13, 2:14, 21:3, 21 :7, 23:7, leaves 111 - 21 :18 left 111 - 22:3 legal 111- 19:14 legitimate 111 - 18:20 LE0 [1J-1 :12 LERNER [35J - 1:21 , 2:7, 6:20, 6:25, 7:7 , 7:12, 7:17, 7:19, 7:24, 8: 5, 8:24, 9:3, 10:11, 10:16, 11 :10, 11 :14, 11 :21 , 12:5, 12:18, 12:23, 13:3, 13:16, 14:15, 14:21, 15:2, 19:19, 24:1, 24:23, 25:1, 25:4, 25:7, 25:10, 25:13, 25:16, 26:23 lerner[2J- 11:19, 23:17 Lerner[7J- 2:7, 6:19, 8:13, 11 :11, 12:17, 23:7, 24:22 lerner's [4J - 21 :23, 25:23, 26:1, 26:5 LESLIE [1J - 1:17 Leslie 111 - 2:5 letter[2J -22:7, 26:11 LEWIS111-1:15 Lexus [3J- 25:8, 25:14, 25:18 24:11 , 26:15 JUDGE 111-1 :13 life [3J- 4 : 15, 6:3, 6:5 light [1] - 26:1 likelihood [3] - 24:7, 24:8, 27:8 July111-1 :10 June 111 - 8:5 jurisdiction [3J- 8:16, 8:22, 13:12 limitation 111 - 7:15 line 111 - 17:16 lines [1] - 4:23 K 1------------------1 Kahn [3]-21 :3, 21:7, 21 :15 Kansas [1J - 17:2 Kearse 111 - 24:11 keep 121- 26: 1O, 27: 11 KELLY111 - 1:16 Kelly [1J - 2:5 Kennedy 111 - 23:8 kind [1J - 7:9 knowledge [2J - 8:3, 22:25 known [1J - 20:13 L 1------------------1 lack[1J- 5:16 lapsed 111 - 7:3 larceny [1J - 19:23 last 17J - 2:21, 4:19, 21 :24, 25:23, 26:2, 26:5, 27:19 LAUREN [1] - 1:21 laW[9] - 6:21 , 7:17, 8:14, 9:3, 9:18, 9:19, 9:20, 20:19, 22:6 LAW [1J - 21 :6 law-abiding [1] - 9:18 litigants 111 - 5:20 litigation [4J- 2:17, 4:21, 5:12, 5:19 LLP 121-1 :15, 1:19 local [1] - 22: 1 look11J- 21 :25 looked [1] - 22:4 looking [3J- 11 :6, 22:21 M magistrate11J - 25 :19 Magistrate [1] - 25 :20 maintain [1J - 27:11 maintained 111 - 26:14 man [1J - 6:12 man's 111 - 6:4 Mann 111 - 25:20 marked 111- 26:12 matter[7J- 8:16, 8:23, 11 :15, 12:12, 12:14, 12:20, 15:25 matters [1] - 17:11 mean 111 - 7:5 meaningless 111- 23:5 means[4J - 9:11 , 9:14, 13:11, 15:4 meant [2] - 3:21, 19:5 meantime [1] - 3: 1 mechanical [1J - 1:25 HENRY SHAPIRO Official Court Reporter SM0059 docket 55-000059 Case 10-2905, Document 55, 02/03/2011, 200440, Page60 of 192 All Word media [1J - 3:5 mentioned [1] - 4: 13 merely [2] - 7:4, 9: 15 meritless [3J - 5:2, 5: 14, 5: 18 merits [2J - 24:8, 24:9 might[2J - 20 :12, 21 :16 mine [1J - 6:9 minute [1J - 11 :3 misconduct (1] - 5:2 misdirected [1] - 9:8 misinterpretation [1] - 4:22 moment [4J - 17:15, 22:14, 23:25, 24:2 MOORE[10J-1 :16, 2:5, 2:10, 16:10, 25:22, 26:1, 26:8, 27:17, 27:19, 27:23 Moore 11J - 2:5 moore 121 - 22:5, 23:18 Moore's 111 - 14:3 moot 111 - 26:6 moreoverr11 - 3:11 MORGAN 111 - 1:15 morning [31 - 21 :23, 22:4, 22:9 Moskowitz 111 - 2:8 MOSKOWITZ [1J - 1: 19 movant121-24:10, 24:19 must[3J - 10:1, 14:5, 14:7 N name (2J - 21 :4, 27:20 names [2] - 2:4, 25:9 national (2] - 6:3, 17: 11 necessary 111 - 25:25 need [31 - 24:16, 27:11 , 27:13 never (1J - 8:1 nevertheless 111 - 5:3 NEW111-1 :1 New [SJ- 1:8, 1:16, 1:20, 1 :23, 25:20 news 11J - 3:5 newspaperr2J - 21 :13 next[1J - 27:12 night (1J - 21 :24 non [1J - 9:19 non-law-abiding [1J- 9:19 normally (3)- 23:17, 23:18, 24:3 Northern [1J - 21 :6 note(4J- 3:1, 4:19, 10:6, 16:11 noted [1] - 15:23 nothing [6J- 10:2, 11 :2, 13: 16, 13: 18, 13:20, 15: 19 notice11 a1- 6:23, 6:25, 7:5, 7:10, 7:13, 7:15, 7:21, 8:1 , 8:7, 8:15, 8:17, 8:24, 10:3 , 10:7, 10:21, 22:1, 22:20, 22 :21 0 o'clock12J-1 :11 , 21:25 Oberlander[26J - 2:9, 3:7, 3:12, 3:20, 4:5, 5:9, 5:24, 9:21, 9:22, 12:6, 15:17, 15:22, 16:2, 18:24, 18:25, 19:24, 19:25, 20:4, 20:5, 20:8, 20:9, 20:10, 20:12, 20:16, 23:14, 26:18 oberlander's [6J - 4: 18, 6:8, 6:23, 7:20, 15:8, 23:11 objection 111- 23:21 obligations [1] - 3:8 observation 111 - 23:16 obtain (2J - 1O:12, 17:2 obtained(BJ - 9:12, 13:11 , 15:13, 15:15, 17:2, 18:21, 20:14, 23:19 obviously (1J - 23:1O occasion 111 - 16:20 occurs [1J - 7:11 0f[2]-1 :1, 1:12 office [1] - 6: 1 once [2] - 3:20, 6:12 one(9J-5:13, 9:13, 12:21 , 17:1, 17:12, 20:18, 22:16, 22:25, 27:19 opinion 111 - 21:2 opportunity [7J - 2:23, 4:8, 6:20, 10:5, 10:19, 21 :21, 21 :22 ORAL(1J-1 :12 oral [1J - 2:2 order[S4J - 3:22, 3:23, 4:22, 7:22, 9:19, 9:25, 10:1, 10:2, 10:12, 10:15, 10:16, 11 :4, 11:5, 11 :7, 11:8, 11 :13, 11 :17, 11 :18, 11 :23, 11 :25, 12:1, 12:2, 12:4, 12:6, 13:10, 13:13, 13:18, 14:2, 14:7, 14:8, 15:7, 15:9, 15:10, 15:21, 16:1, 16:16, 17:7, 17:15, 17:17, 17:18, 17:21 , 17:23, 18:13, 18:23, 20:23, 21 :10, 22:16, 22:18, 23:1, 23:4, 26:19, 26:20 ordered [3] - 8:7, 14:2, 26:15 organization [1J - 3:5 original [3]- 15:12, 16:16, 26:13 originals(4J-15:15, 15:18, 26:1 1, 26:1 6 ostensibly 111 - 20: 19 outlined [1J - 22: 16 overriding [1J - 24:16 own [21 - 5:5, 17:12 p notification 111 - 16:23 paper11J - 19:15 papers [3J- 6:16, 9:4, 15:23 nullity 111 - 14:7 number[3J - 4:20, 16:15, 17:1 paragraph (1J - 3: 18 parcel (1] - 10:13 numbered[1J-14:18 Nycomeds 111 - 25:17 Park 111 - 1:15 Parker [1J - 25:17 part[4J- 6:13, 10:13, 18:10, 21:10 5 particular[1J- 5:12 particularly [3] - 12:16, 19:6 , 20:18 parties [2] - 18:1, 25:9 party [4J - 9:19, 18:12, 22:18, 22:20 passed [1J - 20:14 passion [1J - 12:19 past [1J - 19:23 people (1J - 6: 11 perr1J- 12:10 percentage [1] - 6: 11 perfect(3J-18:7, 18:9, 19:10 perfectly (1J - 7: 18 perhaps [4J- 9:4, 9:7, 20:13, 20:21 period [2] - 7:3, 7:16 permanent [7J - 7:2, 7:4, 7:8, 7: 12, 8:6, 15:9, 16:6 person [9]-12:2, 12:3, 12:4, 20:18, 22:19, 24:12, 24:15, 24:19, 27:5 persuasive.111 - 21 :17 pertained [1] - 18: 1O petitioner (1] - 25: 13 phone 11J - 9:10 photocopies (1] - 15:20 physical 111 - 2:20 piece (1J -19:15 plain (1] - 18:4 Plaintiff [1J - 1: 15 plaintiff111- 25:12 Plaza (1] - 1:23 position [2] - 8:10, 26:9 possess [1] - 4:16 possession [3] - 3: 10, 18:7, 24: 16 possessor (1] - 9: 18 possible (1] - 2:17 possibly (1J - 7:2 potential (3J - 2:19, 4:14, 21 :1O precluded 111 - 20: 16 preferred (1J - 22 :11 premature111- 7:9 premise [1] - 13:4 preposterous (1J - 19:5 prerequisites 111 - 24:4 present [1] - 27:8 presentence[S]-12:25, 21 :17, 21:19, 24:13, 24:15 preserve [1] - 7: 15 presume [4] - 9:4, 10:20, 11 : 1, 11 :23 presumption (6J - 10:24, 10:25, 11 :4, 11 :8, 11 :12, 11 :21 presumptively [1J - 23:5 prevents 111 - 7: 1O previous 111 - 5:2 principle[2J-19 :23, 20:15 private [1J - 3:9 procedure 121 - 22:19, 22:20 proceeding1s1-4:20, 11:18, 12:10, 12:1 1, 12:14, 13:6, 26:6, 26:12 Proceedings 11J - 1:25 process (1] - 8:3 . HENRY SHAPIRO Official Court Reporter SM0060 docket 55-000060 Case 10-2905, Document 55, 02/03/2011, 200440, Page61 of 192 All Word processes (1J - 16: 18 produced [1J - 1:25 proffer[1J - 18:12 properly [5J - 7:23, 10:7, 11 :1, 14:13, 18:5 property 11J - 20:2 protecting [1J - 6:3 protection (3J - 3:4, 3:15, 3:16 protective [5J - 6:25, 7:4, 7:5, 7: 14, 7:25 PSR [2J - 8:7 , 26:3 publiC(6J- 9:12, 12:9, 12:10, 12:12, 12:15 publicly 111 - 4:3 publish (1J - 3:6 publishing [1J - 6:5 pull [1J - 5:15 punches [1J - 5: 15 punish (2J - 9:15, 9:20 punishing [1J - 9:11 purchaser 111 - 20:5 purpose [4J- 7:14, 13:5, 18:16, 22:10 purposes [1J - 22:1 pursuant 121 - 3:22, 3:23 put (31- 5:5, 6:4, 27:7 Q questionable 111 - 8: 19 questions 111 - 6: 15 quite (SJ - 6:24, 9:9, 9:16, 21 :1 6, 23:10, 23:11 quoting (1J - 23:8 R raised [1J - 23:21 rants 111 - 6:14 RE(1J-1 :5 read [7] - 6:21, 9:3, 9:7, 12:22, 12:24, 23:16, 27:9 reading 111- 22 :3 really 111- 6:10 reason 11J - 8:13 reasonable 121- 20:18, 24:8 reasoning 111- 21 :16 reasons [3J - 14:4, 21 :16, 26:25 received [2J - 21 :22, 22:6 receives [1J - 9: 15 receiving [1J - 3:14 record (BJ- 2:4, 11 :2, 11 :15, 13:16, 13:20, 15:14, 16:21, 18:18 recorded (1J - 1:25 recusal [1J - 5: 11 recuse 111 - 5: 13 referring 111 - 11 : 1O refers [1J - 8:8 refused 111 - 20:9 relief[9J-2:1 0, 4:17, 8:19, 15:6, 22:14, 6 s 23:13, 23:19, 24:3, 24:13 rely (1J - 2:11 remarkable (2J - 9: 16, 19:3 reminded 11J - 6:9 removed [1J - 18:5 render (1J - 8:11 renders (1J - 14:9 renewed (1J - 23:25 replaced [1J - 27:20 report(5J - 12:25, 21 :17, 21 :19, 24:13, 24:15 reporter [1J - 21 :13 Reporter[1J - 1:22 representation (1J - 15: 16 represented 11J - 3: 12 representing 11J - 5:1 request[3J - 12:15, 17:6, 21 :24 requested (2J- 14:12, 14:15 requests (1J - 20:7 require (1J - 22:1 required 12J - 23:18, 23:19 requisite 121- 10:17, 14:8 rereading 111- 6:8 reserve [2J - 7: 1, 8:25 resolve 111- 26:21 respect1121- 2:10, 2:20, 4:1 , 4:18, 7:22, 8:16, 8:18, 16:19, 23:8, 26:2, 27:10, 27:20 respond [4J- 16:9, 22:7, 22:8, 24:1 respondent (3J- 2:8, 3:3, 3:17 respondent's [2J - 3:3, 13:25 respondents (5J - 3:4, 4:14, 4:19, 5:17, 5:20 responding (2J - 5:22, 25:23 response 111 - 6:14 rest 111 - 6:16 restrains [1J - 7:20 restraint [5] - 13:12, 13:24, 14:6, 14:9, 14:10 restrictive 111 - 13:21 return (2J - 13:10, 20:8 returned (3J - 8:7, 15:12, 26:11 revealed (1J - 18: 15 review [2J - 4:8, 4:25 rewarded (1J - 5:21 RICHARD [1J - 1:21 Richard [1J - 2:7 RICO (11 - 4:9 rightS[6J- 7:20, 8:25, 9:22, 13:25, 15:8, 20:2 ring [1J- 19:16 rise (1J - 18:20 risk (2J - 17:13, 27:7 ROCKLIN [1J - 1:21 rule [2J- 4:2, 20:11 rules [2J - 3:25, 22: 1 ruling 111 - 5: 17 safety 121- 17: 12, 27:7 saw11J- 22:10 schedule [1J - 22:2 se [1J-12 :10 seal [BJ - 3:21, 6 :2, 1O:1O, 17:6, 22:22, 22:23, 23: 1, 23:2 sealed (31J - 2:17, 3:18, 3:22, 4:4, 6:5, 10:7, 11:1, 11 :7, 11 :16, 12:1, 12:6, 13:6, 14:13, 14:19, 14:24, 15:2, 15:4, 15:5, 15:24, 17:8, 17:13, 17:17, 17:20, 18:1, 18:25, 19:5, 22:22, 23:3, 23:12 sealing [BJ - 9:23, 10:4, 1O:15, 1O:16, 11 :2, 13:18, 13:20, 22:17 second (2J - 14:22, 25:17 secret 11J - 3:9 security (2J - 6:3, 17:11 see(7J-10:5, 10:19, 10:21, 10:23, 11 :17, 12:6, 13:17 seek [4] - 2:11, 15:9, 15:10, 26:2 seeking (5] - 3:5, 4:17, 4:22, 24:12, 24:19 selective (2J - 15:20, 15:21 selectively [1J - 16:1 sense [2J - 21 :9, 23:23 sensitive 121- 23:13, 27:4 sensitivity [1J - 20:17 serious 121- 17:24, 19: 1 served 11J- 13:19 serving (2J - 9:14, 18:17 settlement [2J - 5:6, 21 :1 O shall (1J - 7:13 Shapiro (1J - 1:22 sheet[13J-10:3, 10:6, 10:19, 10:21, 10:23, 11 :6, 13:17, 14:12, 14:17, 14:22, 14:23, 16:23, 22:21 shifted 111- 27:12 shipped 111 - 17:3 shortly 11J - 22:5 shouted (1J- 6:7 show[sJ-14:8, 15:7, 15:9, 16:16, 17:23, 24:7 side (1J - 24: 18 sign (1J - 10:2 signed 1121- 9 :24, 10:16, 11 :6, 11 :9, 11 :16, 11 :17, 11 :18, 11 :23, 14:2, 17:7 , 17:16, 22:16 significant(4J - 16:18, 17:12, 17:14, 18:2 simply [1J - 4:16 sit [1J - 16:5 six (2J - 14:24, 15:4 Snider(1J - 2:6 SNIDER11J-1:17 someone 111 - 9: 15 somewhere 111-17:16 sorry 111 - 25:6 sort 111- 16:11 HENRY SHAPIRO Official Court Reporter SM0061 docket 55-000061 Case 10-2905, Document 55, 02/03/2011, 200440, Page62 of 192 All Word 7 sought121- 15:7, 21 :12 Southern [6J- 3:19, 3:24, 4:8, 19:7 , thief[3J- 3:12, 3:14, 3:16 third [5J- 9:19, 18:1, 18:12, 22:18, violation 111 - 15:8 virtue [11 - 17:1 O 20:22, 25:16 special 111- 21 :19 specific 121- 13:1 , 23:9 specifically [3] • 2:13, 2:22, 24:4 22:20 third-party [4] • 9:19, 18:12, 22:18, vis 121 - 8:6 vis-a-vis 111 - 8:6 Visa [3J - 2:13, 2:16, 26:15 specious 111 - 9:6 speech [3J - 7:20, 9:17, 13:24 three 111 - 24:4 throughout 111 - 4: 19 tipping 111 - 24:9 title[6J - 19:13, 20:2, 20 :3, 20:6, 20:7 stage 111- 23:24 state 111·- 2:4 states 121 - 15:24, 26: 12 STATES121-1 :1, 1:13 States[9J· 1:7, 2:3, 6:1 , 9:17, 10:19, 11 :22, 16:24, 25:4, 25:10 22:20 thirteen 121- 14:23, 15:3 town 111 • 21 :5 trained 111- 20:19 TRANSCRIPT [1] • 1:12 transcript 121 - 1:25, 27:20 13:7, 18:21 stop121-13:12,15:19 trial 111 - 13:6 TRO [14) • 7:2, 7:3, 7:7, 7:19, 13:22, 13:23, 14:7, 23:20, 23:22, 23:24, 24:3, 26:23, 26:25, 27:14 troubled 111 - 22: 15 troublesome[4J -16:15, 16:17, 23:10, Street 111 - 1:20 submission [3J - 25:24, 26:2, 26:5 23:11 true 121- 12:11, 12:16 submissions 111 - 25:24 submit [8) - 9:23, 20:25, 21 :21, 24:22, turn 111 - 13:22 turned 111 - 26:7 turns 111 - 16:22 two 121 - 5:13, 24:23 status 111 - 21 :19 stenography 111 - 1 :25 stipulation 111 - 21 :11 stolen [8) - 3:12, 3:13, 3:14, 6:5, 9:16, 24:25, 25:2, 27:14 submitted 111 - 18:15 subpoena 111 - 18:17 subsequent 111 - 17:5 success 121 - 24:8, 27:8 supplement [3J - 2:23, 6:16, 16:11 supplemental [3J -16:14, 21 :21, 22:12 u supports 111 - 4:10 suppressed 111 - 9:18 Supreme [3J • 9:17, 10:20, 11 :22 11 :18, 14:10 under[?]· 4:15, 10:10, 22:22, 22:23, tactics 121- 4:21 , 5:19 tangible121-19:14, 19:16 ten 111- 27:15 terms 111 - 20:2 testified 111 - 18:16 testify 121- 4:3, 19:20 testimony[5J-18 :14, 18:18, 19:2, 19:17, 19:21 THE[43J - 1:12, 2:2, 6:18, 6:22, 7:5, 7:9, 7:14, 7:18, 7:21 , 7:25, 8:13, 9:1, 10:8, 10:12, 11 :3, 11 :11, 11 :19, 11 :25, 12:11 , 12:19, 12:24, 13:15, 14:14, 14:16, 15:1, 16:9, 16:13, 19:21 , 21 :7, 24:2, 24:25, 25:2, 25:6, 25:9, 25:12, 25:15, 25:21 , 25:23, 26:4, 26:18, 26:24, 27:18, 27:22 theatre 111 - 6:6 themselves 111 - 3:21 therefore [3J- 10:6, 10:25, 12:6 therein [3J - 2: 12, 6:14 wonder111- 8:21 word 111 • 9:6 words 121- 19:2, 19:3 write 111 - 3:6 writing 111 - 26:21 wrongfully 111 - 19:12 y unauthorized 111 - 13:8 unconstitutional [5J - 5:10, 9:24, 10:18, T walked 111 - 6:6 wants 111 - 12:8 website 111- 15:23 week 121- 25:21, 27: 12 Week 121- 15:22, 16:3 weeks 111 - 18:3 Weinstein's 111 - 2:14 Western 111 - 21 :3 whole 111 - 26:6 WILSON111-1 :19 Wilson 111 - 2:7 wise111-6 :12 withdrawn 121- 5:3, 5:8 u.s [2). 25:8, 25:18 support[3J• 3:3, 4:6 , 14:6 surrendered 111 - 26 :7 w 23:1, 23:2 understood 111 - 22:13 unethical 111- 5:5 UNITED 121- 1:1, 1:13 United [9J-1 :7, 2:3, 6:1, 9:17, 10:19, 11 :22, 16:23, 25:4, 25: 10 YORK[1J-1 :1 York [5]- 1 :8, 1:16, 1:20, 1:23, 25:20 z Zyprexa121-2:14, 2:16 unlike 111 • 4: 13 unpleasant 111 - 5:7 unseal [3J- 10:14, 14:17, 22 :23 unsealed [4] - 3:23, 14:20, 17:25, 22:17 unsealing 121- 17:22, 25: 13 unsupported 111 - 5:18 upstate [1] • 21 :13 us [1) . 25:14 v vain 111 - 5:11 valor 111 - 6: 13 value 111 - 20:6 variety 121- 17:10, 21 :16 versions 111 - 26:13 versus 121• 2:3, 24:5 violated [3] - 18:13, 18:23 , 20:24 HENRY SHAPIRO Official Court Reporter SM0062 docket 55-000062 Case 10-2905, Document 55, 02/03/2011, 200440, Page63 of 192 E X H I B I T B SM0063 docket 55-000063 Case 10-2905, Document 55, 02/03/2011, 200440, Page64 of 192 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK 1 2 --- - ----------------------- - ------x 3 UNITED STATES OF AMERICA, CR-98 - 1101 4 v. U.S. Courthouse Brooklyn, New York 5 JOHN DOE, 6 Defendant. 7 ----------------------------------X TRANSCRIPT OF HEARING June 21, 2010 10:30 a.m. 8 BEFORE: HONORABLE I. LEO GLASSER, U.S.D.J. 9 10 APPEARANCES: 11 For the Movant: 12 13 BY: 14 15 For the Respondent: 16 BY: 17 MORGAN LEWIS & BOCKIUS LLP 101 Park Avenue New York, New York 10178 - 0060 KELLY A. MOORE, ESQ. BRIAN A. HERMAN, ESQ. DAVID A. SNIDER, ESQ. WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP 150 East 42nd Street New York, New York 10017-5639 RICHARD LERNER, ESQ. LAUREN J. ROCKLIN, . ESQ. 18 19 BY: 20 STAMOULIS & WEINBLATT LLC 6 Denny Road - Suite 307 Wilmington, DE 19809 STAMATIOS STAMOULIS, ESQ. 21 Court Reporter: 22 23 24 25 Mickey Brymer, RPR Official Court Reporter United States District Court 225 Cadman Plaza East Brooklyn, New York 11201 (718) 613-2255 Proceedings recorded by mechanical stenography. Transcript produced by Computer-Assisted Transcription. SM0064 M. BRYMER, RPR, OCR docket 55-000064 Case 10-2905, Document 55, 02/03/2011, 200440, Page65 of 192 2 1 THE CLERK: This is criminal cause for order to show 2 cause in docket number 98-CR-1101, U.S.A. versus Doe. 3 Counsel, please state your name for the record. 4 5 6 Kelly Moore and Brian Herman from Morgan MS. MOORE: Lewis for movant John Doe. Richard E. Lerner of Wilson Elser MR. LERNER: 7 Moskowitz Edelman and Dicker for nonparty respondent Frederick 8 M. Oberlander. 9 10 MR. STAMOULIS: Stam Stamoulis on behalf of nonparty respondents Jody Kriss and Michael Ejekam. 11 THE COURT: Everybody is ready to proceed? 12 MS. MOORE: Yes, your Honor. 13 Could I ask who the gentlemen in the back row are? 14 MR. STAMOULIS: 15 AUDIENCE SPEAKER: 16 THE COURT: Good morning. 17 MS. MOORE: Your Honor, I would ask to proceed with 18 He's my law partner. Good morning. tile testimony of Mr. Oberlander. 19 THE COURT: I'm sorry. 20 MS. MOORE: 21 testimony of Mr. Oberlander. 22 THE COURT: I would ask we proceed with the Please. M. 23 F R E D E R I C K 0 B E R L A N D E R 24 as the witness herein, having been first duly sworn/affirmed, 25 testified as follows: I called M. BRYMER, RPR, OCR SM0065 docket 55-000065 Case 10-2905, Document 55, 02/03/2011, 200440, Page66 of 192 3 Oberlander-direct/Moore THE CLERK: 1 2 name for the record. THE WITNESS: 3 4 Could you please state and spell your Frederick M. Oberlander, 0-b-e-r-1- a-n-d-e-r. 5 THE COURT: You my be seated. 6 All right, Ms. Moore. Thank you. 7 DIRECT EXAMINATION 8 BY MS. MOORE: 9 Q. Mr. Oberlander, what do you do for a living? 10 A. I'm an attorney. 11 Q. How long have you been practicing law? 12 A. For a living, approximately seven years. 13 Q. For how long have you had a law license? 14 A. Ten years. 15 Q. And what type of law do you practice? 16 A. Mostly commercial law and primarily transactional, 17 financial and taxation, but I do general work. 18 Q. Do you handle any criminal matters? 19 A. No. 20 Q. You're admitted in the State of New York; is that right? 21 A. Yes. 22 Q. You practice in both Federal and State Court? 23 A. Recently I started practicing in Federal Court. 24 admitted a few months ago in Southern District. 25 Q. I was Are you admitted anywhere else other than New York? M. ·BRYMER, RPR, OCR SM0066 docket 55-000066 Case 10-2905, Document 55, 02/03/2011, 200440, Page67 of 192 4 Oberlander-direct/Moore 1 A. 2 don't remember whether those expired or not. 3 Q. Did that include Delaware? 4 A; At one time. 5 Q. Where is your practice located? 6 A. In Montauk, New York. 7 Q. That's where your office is located? I was admitted pro hac in a couple of jurisdictions. 8 THE COURT: 9 THE WITNESS: I Did you say Montauk? Yes, in the Hamptons. _10 Q. What is the address of your off ice? 11 A. The street address is 28 Sycamore Lane. 12 Q. And is that a solo practice? 13 A. It is. 14 Q. Do you have any employees at all? 15 A. Not full time, but I occasionally add staff depending on 16 needs. 17 Q. 18 New York captioned Jody Kriss, Michael Ejekam and Bayrock 19 Group versus Bayrock Group and various others; is that 20 correct? 21 A. Yes, I did. 22 Q. When did you file that complaint? 23 A. I'm sorry, I didn't hear you. 24 Q. When did you file that complaint? 25 A. The 10th of May. Now, you filed a complaint in the Southern District of M. BRYMER, RPR, OCR SM0067 docket 55-000067 Case 10-2905, Document 55, 02/03/2011, 200440, Page68 of 192 5 Oberlander-direct/Moore 1 Q. Around the same time you sent an email to Ron Kriss 2 attaching a copy of that complaint; is that correct? 3 A. I believe I sent that on May 12th. 4 Q. And was the version that you sent to Ron Kriss the same 5 version that you filed in the Southern District of New York? 6 A. The version of the complaint itself was. 7 Q. What was different? 8 A. The exhibits to the complaint that I filed, which was 9 physically filed in New York and not by ECF, had only limited 10 excerpts from some of the materials that you referred to in 11 the order to show cause as the sealed and confidential 12 documents, but the file attachments on email that went to Ron 13 Kriss I believe had additional pages in the PDF files on some 14 of those documents. 15 MS. MOORE: 16 THE COURT: Your Honor, may I? Sure. Mr. Oberlander, let me show you a copy of the version you 17 Q. 18 sent to Mr. Ron Kriss on May 12th. 19 to Ron Kriss? 20 A. 21 be impossible for me to tell for sure just glancing at it. 22 does appear to be. Is that the copy you sent It appears to be, but it is hundreds of pages. 23 MS. MOORE: 24 THE COURT: 25 MR. LERNER: It would It Your Honor, I offer that. Is there any objection to that? No objection. M. BRYMER, RPR, OCR SM0068 docket 55-000068 Case 10-2905, Document 55, 02/03/2011, 200440, Page69 of 192 6 Oberlander-direct/Moore THE COURT: · Thank you. 1 2 guess Plaintiff's 1. Precisely what is that? 3 4 It will be received as I Would you identify that for the record. Your Honor, Exhibit 1 is the SDNY MS. MOORE: 5 6 complaint captioned "Jody Kriss, et al. versus Bayrock 7 Group. 8 9 11 THE COURT: Is that the document that you handed up, somebody handed up to me? 10 MS. MOORE: 11 THE COURT: 12 MS. ·MOORE: 13 MR. LERNER: Yes, your Honor, that's Exhibit 1. Together with all the attachments? Correct. Your Honor, I think Ms. Moore may be 14 leading now with the topic. 15 THE COURT: 16 17 I'm having a little trouble hearing you, Mr. Lerner. MR. LERNER: I think Ms. Moore may be leading into 18 areas of work product. 19 cause, as set forth in the order to show cause, is from whom 20 Mr. Oberlander received the purportedly sealed and 21 confidential documents and to whom he gave them, so, I would 22 like to object in advance to any questioning that may go to 23 why he did certain things and simply ask that the Court limit 24 it to what he did, not why he did it. 25 THE COURT: Now, the topic of this order to show Ms. Moore. M. BRYMER, RPR, OCR SM0069 docket 55-000069 Case 10-2905, Document 55, 02/03/2011, 200440, Page70 of 192 7 Oberlander-direct/Moore Your Honor, I mean objections can be 1 MS. MOORE: 2 made to the questions asked. 3 cause -THE COURT: 4 We believe the order to show This is in the nature of a motion in 5 limine. 6 objection to what it is that Mr. Lerner is suggesting would be 7 appropriate, then we'll proceed accordingly. 8 9 10 11 To avoid constant objections and so on, if there's no MS. MOORE: Your Honor, I do intend to inquire as to what Mr. Oberlander knew and what his intent was specifically with respect to sealed documents. THE COURT: What is the relevance of that insofar as 12 this order to show cause is concerned? 13 to show cause in this proceeding is addressed to where these 14 documents came from, how he obtained it and not what his 15 intent was. 16 seems to me your concern was the unauthorized or seemingly 17 apparently unauthorized use and possession of sealed 18 documents. 19 I understand the order I don't know what the relevance of that is. MS. MOORE: That's correct, your Honor. It To the 20 extent Mr. Oberlander knew they were sealed and acted anyway, 21 we believe it is relevant to our application. 22 THE COURT: 23 MS. MOORE: What is your application beyond that? Eventually our your Honor, 24 would be probably attorney's fees and sanctions related to his 25 conduct which typically under the law follow the elements of M. BRYMER, RPR, OCR SM0070 docket 55-000070 Case 10-2905, Document 55, 02/03/2011, 200440, Page71 of 192 8 Oberlander-direct/Moore 1 whether or not there was in fact civil contempt of a court 2 order. THE COURT: 3 Well, Ms. Moore, it would be perfectly 4 proper to ask whether Mr. Oberlander was aware of the fact 5 these documents were sealed. 6 think has any relevance to this proceeding. 7 proceed. MS. MOORE: 8 9 Q. What his intent was I don't Why don't you Okay. Mr. Oberlander, attached as Exhibit A are two proffer 10 agreements, a cooperation agreement and a pretrial statement; 11 is that correct? 12 A. What you handed me you're referring to? 13 Q. Yes. 14 A. I think there's only one proffer agreement. 15 Q. Oh, two, I'm sorry, you're right. 16 pages and I didn't see that. 17 They are double-sided From whom did you obtain the documents that were 18 attached to the email you sent to Mr. Ron Kriss as Exhibits A 19 and C? 20 A. Joshua Bernstein. 21 Q. Who is Joshua Bernstein? 22 A. He was a client of mine at one time. 23 Q. In what matter did you represent him? 24 A. In an action he had against Bayrock Group LLC in White 25 Plains Supreme Court, New York. M. BRYMER, RPR, OCR SM0071 docket 55-000071 Case 10-2905, Document 55, 02/03/2011, 200440, Page72 of 192 9 Oberlander-direct/Moore 1 Q. Was there an engagement letter for that representation? 2 A. There was. 3 Q. Did he pay you for your legal services? 4 A. No, . he did not. 5 Q. Were you paid by anyone else in connection with your 6 legal services in that matter? 7 A. No. 8 Q. Did you enter an appearance on his behalf in that matter? · 9 · A .. No. 10 Q. Who entered an appearance on his behalf in that matter? 11 A. I really don't know. 12 times by a gentleman I would refer to as lead counsel. 13 no personal knowledge who put in an appearance for him. 14 Q. But you had a separate engagement letter with him? 15 A. Separate from what? 16 Q. That other individual's. 17 A. It was my own engagement letter. 18 Q. When did you stop representing Joshua Bernstein? 19 A. April this year, 2010. 20 Q. What date? 21 A. I have to check. 22 Q. And was the termination of your attorney-client 23 relationship memorialized in any way? 24 A. 25 prior or past client for purposes of rules and privileges and I know he was represented at all I had I wrote it. Towards the end of the month. There is -- there are emails that confirm that he is a M. BRYMER, RPR, OCR SM0072 docket 55-000072 Case 10-2905, Document 55, 02/03/2011, 200440, Page73 of 192 10 Oberlander-direct/Moore 1 not a current client. 2 Q. 3 civil complaint from Josh Bernstein? 4 A. 5 was after midnight of February 28th, so that would be 6 technically March 1st this year. 7 Q. And that was an overnight package? 8 A. No. 9 Q. How was it obtained? 10 A. He handed them to me. 11 Q. Where did he hand them to you? 12 A. In his office. 13 Q. Which is where? 14 A. That particular off ice was in an apartment on the Upper 15 East Side. 16 Q. 17 documents? 18 A. 19 recollection they were the only physical documents he handed 20 me. 21 Q. What were the only physical documents he handed you? 22 A. He handed me a proffer and a cooperation agreement and a 23 PSR. 24 lawyer, what he handed me had attached to the back of the 25 proffer what I understand to be or you referred to as a DOJ When did you obtain the Exhibits A and C to the SDNY It was the overnight of February 28th to March 1st. It Would the documents be part of a bigger group of He handed the documents to me in physical form and to my And for avoidance of ambiguity as I'm not a criminal M. BRYMER, RPR, OCR SM0073 docket 55-000073 Case 10-2905, Document 55, 02/03/2011, 200440, Page74 of 192 11 Oberlander-direct/Moore 1 financial statement, but I would not know that is considered 2 as part of a proffer or not. J agreement. 4 Q. 5 John Doe's criminal case? 6 A. No. 7. Q. Did he give you a complaint that was filed in that case? 8 A. Not at that time. 9 I assume you're asking what he handed me at that. time on March Maybe attached to a cooperation To me there were three documents. Did he give you any other documents relating to my client If you'll excuse me, for clarification 10 1st. 11 Q. So, he handed you nothing else on March 1st? 12 A. Not as related to the criminal matter, the CR matter, 13 what is it, 1101. 14 Q. 15 other date? 16 A. Yes, he did. 17 Q. When did he provide you with a complaint in that case? 18 A. I believe it was March 3rd. 19 Q. Was that once again in person? 20 A. No. 21 Q. In what form did he provide you -- 22 23 24 25 Did he provide you with a complaint in that case on · some MR. LERNER: I'll object to the questioning about the complaint in another unrelated matter. THE COURT: Mr. Lerner. I'm about to inquire about Complaint in what proceeding? M. BRYMER, RPR, OCR SM0074 docket 55-000074 Case 10-2905, Document 55, 02/03/2011, 200440, Page75 of 192 12 Oberlander-direct/Moore 2 United States versus John Doe, your MS. MOORE: 1 Honor, sealed complaint. MR. LERNER: 3 I 1 m sorry, I was confused. I thought 4 you were refer -- Ms. Moore is referring to a different 5 document. THE WITNESS: 6 7 I withdraw my objection. Your Honor, may I just correct one thing I said? 8 THE COURT: Sure. 9 THE WITNESS: To the best my recollection the 10 complaint was given to me-- I 1 m going on recollection -- on 11 March 3rd. 12 complaint was there. He sent me several documents and I 1 m certain the 13 THE COURT: 14 THE WITNESS: Was that received by hand as well? No, no. She asked me whether he ever 15 gave me a complaint and I 1 m saying I 1 m substantially certain 16 he did, and, if he did, it was in an email that was given to 17 me or I received on March 3rd. 18 THE COURT: 19 THE WITNESS: An email? It was attached to an email, yes. 20 Q. 21 attach any other documents related to the criminal case 22 against my client in Federal Court in Brooklyn? 23 . A. In the email you received from him on March 3rd, did he The same ones he had given me physically on the first 24 were attached to that. 25 Q. Was an indictment or information or draft information M. BRYMER, RPR, OCR SM0075 docket 55-000075 Case 10-2905, Document 55, 02/03/2011, 200440, Page76 of 192 13 Oberlander-direct/Moore 1 attached as well? 2 A. 3- It could very well have been, yes. 4 Q. 5 back and checked what was attached to that email? 6 A. No. 7 Q. So, as you sit here today, you don't know what else was 8 attached to that email? 9 A. It may well have been, but I just simply don't recall. Have you in connection with this order to show cause gone I answered you to the best of my knowledge. I feel 10 substantially certain that a complaint was and that I don't 11 have any reason to doubt that the - - what you call an 12 information, 13 Q. A draft information I referred to it as. 14 A. Draft information. 15 certain recall because those were not in the order to show 16 cause so I had no reason to check. 17 Q. How many documents were attached to the March 3rd email? 18 A. About four, 19 Q. But you don't know what they were other than the 20 complaint and the one that was attached to the SDNY 21 A. 22 were attached to that email. 23 complaint was attached to the email and I'm relatively certain 24 that the draft information was and I believe that's it, but it 25 is possible there may have been six -- four, I think, is that what you referred to it as? But I have no specific absolute five. As I continue to say, I know the same three he gave me I'm reasonably certain the five or six. M. BRYMER, RPR, OCR SM0076 docket 55-000076 Case 10-2905, Document 55, 02/03/2011, 200440, Page77 of 192 14 Oberlander-direct/Moore 1 This is the best information I can give you from 2 recollection. 3 Q. 4 Bernstein to you with attachments or was it forwarding an 5 underlying email to which those documents had been attached? 6 A. May I ask for clarification, please? 7 Q. Absolutely. 8 A. Do you mean was there any message inside or just 9 Q. No, I'm asking whether aside from the email that I certainly don't deny that it was attached. The March 3rd email, was that simply an email from Josh 10 Mr. Bernstein sent to you, whether or not he was forwarding 11 another email that had attached these documents? 12 A. You mean did I receive a forwarded email? 13 Q. Correct. 14 A. That had been primarily addressed to someone else and I 15 was getting it forwarded? 16 Q. Correct. 17 A. That's not correct. 18 Q. And, so, it was just the email to you plus the 19 attachments; is that correct? 20 A. 21 were other addressees. 22 Q. Who else was the email addressed to? 23 A. That would be Arnold Bernstein and Jerry, spelled 24 J-e-r-r-y, 25 I refer to as Josh's lead attorney in the White Plains case. It was addressed to me. It was the email was primarily addressed to me. There I don't recall the last name, who was the gentleman M. BRYMER, RPR, OCR SM0077 docket 55-000077 Case 10-2905, Document 55, 02/03/2011, 200440, Page78 of 192 15 Oberlander-direct/Moore If I may, your Honor, 1 for clarification, I'm saying I 2 didn't get forwarded somebody else's email. 3 addressed to three people and I was one of them. 4 Q. Were there any CCs on that email? 5 A. I don't recall. 6 Q. In preparation for this hearing, you didn't review it? 7 A. Probably a week or two, maybe three, when the order to 8 show cause came in to check the dates, 9 certain there were no cc's, but I will not say my memory is The email was I'm substantially 10 infallible. It would be highly unlikely there were any at all 11 other than the three of us. 12 Q. 13 lawyers say? 14 A. 15 are the Doe docs or the John docs. 16 sentence. 17 within the very limited privilege waiver that Mr. Bernstein 18 gave me, so however you want to handle that, but I can't 19 testify to what else was in there. 20 Q. 21 Mr. Bernstein's father, right, not his lawyer, correct? 22 A. 23 lawyer and always held himself out to me as his attorney and 24 Jerry as his lawyer. 25 Q. I sincerely doubt there -- What did the email to you, Mr. Bernstein and other The first sentence in the email said, as requested, here There was an additional I'm not convinced revelation of that sentence is Well, the email was addressed to Arnold Bernstein, who is No, that is not correct. He is always very much his In a recent conversation with us he did not hold himself M. BRYMER, RPR, OCR SM0078 docket 55-000078 Case 10-2905, Document 55, 02/03/2011, 200440, Page79 of 192 16 Oberlander-direct/Moore 1 out to be his lawyer, but putting that aside I don't believe 2 you can waive attorney-client privilege in a limited fashion 3 and your . recent June 14th letter, - is it your posi ti_on you are 4 not waiving it or it is not waived? 5 A. My counsel would know. I spoke to Mr. Bernstein who stated to MR. LERNER: 6 7 me he waived his privilege with respect to how Mr. Oberlander 8 received the documents. 9 waiver. MS. MOORE: 10 So, that was the scope of the Your Honor, I don't believe there can be 11 partial attorney-client privilege waiver. 12 waive with respect to certain things, it is waived. 13 what the email said is passing these documents on to 14 Mr. Oberlander falls even within the waiver that they seem to 15 have received. 16 THE WITNESS: witness but he was my former client. 18 briefly? THE COURT: 20 THE WITNESS: 21 THE COURT: believe once you Certainly Your Honor, I understand I am the 17 19 I May I address the Court Why don't you let your attorney do that. Can I consult with him for a minute? Absolutely. It is rather unorthodox to 22 have a witness represented by a lawyer also act as his own 23 attorney. THE WITNESS: 24 25 There's nothing I'm going to say that's secret. M. BRYMER, RPR, OCR SM0079 docket 55-000079 Case 10-2905, Document 55, 02/03/2011, 200440, Page80 of 192 17 Oberlander-direct/Moore THE COURT: 1 2 I don't know whether it is or isn't. I think you would be well advised to consult with your lawyer. _3 (Mr. Lerner and the witness confer.) 4 THE COURT: 5 MR. LERNER: Where were we? Your Honor, Mr. Bernstein in speaking 6 with me gave a limited waiver. 7 as a waiver for all purposes, then he gave no waiver at all, 8 so he can't -- Mr. Oberlander can't be asked further questions 9 regarding these conversations or communications with 10 If that is to be interpreted Mr. Bernstein. THE COURT: 11 Well, Ms. Moore, again, what is the 12 relevance of that question, or perhaps there's something I'm 13 missing? 14 My understanding was that the entire purpose or focus 15 of this proceeding from the very beginning that the order to 16 show cause was presented to me was a concern and a real 17 concern not only for your client but for the Court and the 18 integrity of the entire criminal proceeding as well as to how 19 documents which were clearly intended to remain sealed and 20 clearly intended not to be available for public distribution 21 or even public viewing by anybody unless by virtue of a court 22 order unsealing those documents. 23 proceeding, as I understand it, is how did those documents 24 which were sealed find its way into a complaint in a civil 25 action commenced in the Southern District of New York, how did So, the focus of this M. BRYMER, RPR, OCR SM0080 docket 55-000080 Case 10-2905, Document 55, 02/03/2011, 200440, Page81 of 192 18 Oberlander-direct/Moore 1 the persons who had possession of those documents, obviously 2 had possession of them, acquire them in some fashion because 3 they were attached to a complaint filed in the . Southern 4 District? 5 the persons who attached them to a complaint? 6 concern which . I believe was the focus of this proceeding and I 7 think that is what is at issue here. 8 from whom, and then the question will be how did that person 9 get them and from whom. 10 How did those documents come into the possession of That's the How did you get them, If those documents were obtained in some fashion 11 · other than by a voluntary delivery or disclosure of them by 12 Mr. Doe, then there is a very, very serious concern which this 13 Court has regarding that issue. 14 15 That is what is before me. With respect to counsel fees and all the rest of it, that's another matter. MS. MOORE: 16 Fair enough, your Honor. 17 Q. 18 address how Mr. Bernstein obtained the documents? 19 A. It does not. 20 Q. Now; did he when he spoke to you either in person on 21 March 1st, or any other time, advise you of how he obtained 22 those documents? 23 A. He did. 24 Q. When did he advise you of how he obtained them? 25 A. Every time, one time or you mean the first time, what? Mr. Oberlander, does the second sentence of the email M. BRYMER, RPR, OCR SM0081 docket 55-000081 Case 10-2905, Document 55, 02/03/2011, 200440, Page82 of 192 19 Oberlander-direct/Moore 1 Q. Let's start with the first time; 2 A. The first time would be March 1st. .3 Q .. What did he say to you? 4 A. He said Doe gave them to him but to be clear, the · general 5 impression, because I can't recall the exact words, the 6 general impression was that Doe gave them many documents and 7 included among the documents were these. 8 Q. 9 form or hard copy? Did he say whether or not Doe provided them in electronic 10 A. Not at that time. 11 Q. And did you credit his statement that Doe gave him these 12 documents? 13 A. 14 the preparation of his White Plains case, yes, I did. 15 Q. Why did he give you these documents? 16 A. You have to ask him that. 17 didn't say would you please give me these documents. 18 volunteered. 19 Q. 20 requested here are the documents. 21 referring to? 22 A. 23 scanner and I prefer to work with electronic records and I 24 probably March 1 or March 2 -- I mean I forgot which day it 25 was, asking if he could possibly send them to me in PDF form In the context of everything else that he told me during They were unsolicited. I He You described the first sentence of his email to be as What's the request you're Because he gave them to me physically and I have a M. BRYMER, RPR, OCR SM0082 docket 55-000082 Case 10-2905, Document 55, 02/03/2011, 200440, Page83 of 192 20 Oberlander-direct/Moore 1 and it would be easier for me. 2 PDF files. 3 Q. 4 Doe gave them to him, what other conversations have you had 5 with him describing how he obtained them? 6 A. 7 an affidavit for this proceeding, Mr. Bernstein from my 8 understanding and this, of course, is hearsay, my 9 understanding Mr. Bernstein clarified that Mr. Doe had given 10 him several disks containing files and that these were among 11 them, but, as I said, that was told to me by someone who 12 claims that he said it to him and I can't say whether or not 13 it is true. 14 Q. 15 It was here, I'm sending you And, so, beyond the first -conversation _that he _told you Indirectly through third party, during the preparation of Who was it that claims that was said to him? MR. LERNER: That would be Richard Lerner. 16 Mr. Bernstein said to me when we were having a conversation 17 that he thought he gave them to Mr. Oberlander on -- or he 18 obtained them on a computer disk from Mr. Doe. 19 Q. 20 Mr. Bernstein thinks that's how he obtained them or he knows 21 that's how he obtained them? 22 A. 23 confidence he has in his memory. 24 Q. 25 part of a disk, right, it was not part of a set of a bunch of And, so, Mr. Oberlander, is it your understanding I have absolutely no idea what relative state of And the document that was forwarded to you, it was not M. BRYMER, RPR, OCR SM0083 docket 55-000083 Case 10-2905, Document 55, 02/03/2011, 200440, Page84 of 192 21 Oberlander-direct/Moore 1 documents; what he sent to you were five documents relating to 2 a criminal matter, right? .3 A. He . sent me to be specific five separate attachments to 4 one email. Whether and what degree an attachment is a 5 document in the context of your question I'm not certain. 6 Q. 7 whole bunch of documents; is that right? 8 A. 9 following your question. But it wasn't part of a bigger disk that contained a There is no difference. He sent me an email. I'm not My understanding is through a third party, namely, 10 Q. 11 Mr. Lerner, who had a connection with this hearing and advised 12 that Mr. Bernstein claims that my client gave him three disks 13 that contained a bunch of documents including these; is that 14 right? 15 A. 16 believe we said it is a few and that's indeterminate. 17 just answered that question. 18 Mr. Bernstein has some degree of confidence, more than zero or 19 less than 100, that the physical means by which he obtained 20 them from Mr. Doe was on disks. 21 Q. 22 the disk, you obtained the individual separate documents; is 23 that right? 24 A. 25 that email? No. First of all, nobody said there were three. I Yes, I It is my understanding that But what you in turn received from Mr. Bernstein was not I received -- are we talking about ever, on the 3rd, in What specifically are we talking about? M. BRYMER, RPR, OCR SM0084 docket 55-000084 Case 10-2905, Document 55, 02/03/2011, 200440, Page85 of 192 22 Oberlander-direct/Moore We're talking about March 1st, the 3rd or any other time 1 Q. 2 you may have received these documents. 3 A. 4 1st I was given three what I call documents . . That's the way I 5 testified. 6 together. 7 3rd I got an email that had five attachments. 8 attachment is a document, it is perfectly acceptable usage, 9 but the term document there doesn't necessarily refer to 10 I only received -them twice . andas I testified on ..March They were three successive papers stapled So to me that's three documents. Then, on March You can say an document in any other context. 11 I'm telling you as honestly as I can I got four, five 12 or six attachments on that email. If you want to refer to 13 attachment as a document, that's okay with me. 14 Q. 15 those files? 16 A. Work product privilege. 17 Q. You're asserting the work product privilege to answer 18 that question as to whether or not it ever occurred to you you 19 may have been obtaining stolen documents? 20 A. 21 his case including materials given to me by anybody are work 22 product. 23 Q. 24 were obtaining stolen documents? 25 A. Did it ever occur to you that Mr. Bernstein had stolen Any thoughts I had about the preparation of his case or I'm concerned with your state of mind. Did you think you Work product exception. M. BRYMER, RPR, OCR SM0085 docket 55-000085 Case 10-2905, Document 55, 02/03/2011, 200440, Page86 of 192 23 Oberlander-direct/Moore You knew, did you not; that Mr. Bernstein upon being 1 Q. 2 fired from Bayrock had taken thousands of pages of documents 3 with him? . 4 MR. LERNER: 5 THE COURT: Objection. I will allow it. 6 A. I don't know any such thing. 7 Q. You knew he was in possession at his home of thousands of 8 pages of documents of Bayrock; is that right? 9 A. No. 10 Q. Were you aware he was in possession of Bayrock documents 11 at his home? 12 MR. LERNER: 13 MS. MOORE: At what time, Ms. Moore? After he was fired from Bayrock. 14 A. 15 of what he possessed in his home on every day since the day he 16 was hired? 17 Q. 18 was in possession of documents of Bayrock's? 19 A. 20 of Bay Rock's, are you specifically referring to documents by 21 which Bayrock would assert ownership of the intellectual 22 property of the contents. 23 Q. 24 what I mean by Bayrock documents. 25 · A. I'm sorry, I'm confused. No. You're asking me if I'm aware On any day after he was fired are you aware that he If you can define, please, for me, clarify when you say Documents taken from the premises of Bayrock's offices is So, that would include his own personal property that he M. BRYMER, RPR, OCR SM0086 docket 55-000086 Case 10-2905, Document 55, 02/03/2011, 200440, Page87 of 192 24 Oberlander-direct/Moore 1 took home with him. 2 Q. Excluding his own personal property. 3 A. Mr. Bernstein had documents in his office. 4 them, I don't know what they were. 5 information as to what he did or didn't take. 6 Q. But you knew that he was fired, 7 A. He told me that he was fired, so I assume it is true. 8 Q. As a practicing attorney, you are aware when people are 9 fired they are typically not permitted to take documents and I didn't read I certainly have no right? 10 property of their employer with them, right? 11 A. I'm sorry, I'm not aware of what's typical in the world. 12 Q. So, when you obtained these 13 agreement, proffer agreement and a PSR, you had no concern 14 these documents were stolen? 15 A. Work product. 16 Q. Are you familiar with the declaration that Thomas Hylan 17 submitted to the Court in connection with your opposition to 18 this motion? 19 A. 20 course, 21 Q. cooperation It's been a couple weeks since I've seen it, but, of I did read it. By the way, does Mr. Hylan still represent you? 22 MR. LERNER: The law firm of Wilson Elser represents 23 Mr. Oberlander in this matter. 24 Q. Did you draft the Hylan declaration? 25 A. Did I draft it? Mr. Hylan is my partner. M. BRYMER, RPR, OCR SM0087 docket 55-000087 Case 10-2905, Document 55, 02/03/2011, 200440, Page88 of 192 25 Oberlander-direct/Moore 1 Q. Yes. 2 MR. LERNER: 3 THE COURT: Objection. Sustained . 4 Q. Did you read it before it was filed? 5 A. I'm sure I did. 6 Q. Do you agree with its contents? 7 MR. LERNER: 8 THE COURT: 9 MR. LERNER: Objection. Pardon. Objection as to relevance. 10. THE COURT: Objection is sustained. 11 It would s ·e em to me if Mr. Hylan was in effect the 12 agent of Mr. Oberlander and Mr. Oberlander had seen that 13 document, 14 Federal Rules of Evidence might be applicable. 15 it seems to me 801(c) whatever subdivision in the Why don't you move on. 16 Q. 17 declaration was filed that Mr. Bernstein said he got those 18 documents voluntarily from Mr. Doe, why is a good portion of 19 that declaration committed to an inquiry as to whethe.r or not 20 my client had kept the documents under lock and key? 21 A. 22 the work product objection, if you did. 23 Q. 24 filed you had a good faith belief Mr. Bernstein obtained the 25 documents legally? Mr. Oberlander, if you knew at the time that that You would have to ask Mr. Hylan. I'm sure he would make It is your testimony at the time that declaration was M. BRYMER, RPR, OCR SM0088 L I docket 55-000088 Case 10-2905, Document 55, 02/03/2011, 200440, Page89 of 192 26 Oberlander-direct/Moore I told you that any belief or thoughts I had about the 1 A. 2 documents with respect to what he said are work product. 3 Q. 4 opposition. 5 that and in that you say that you believe that permitted to 6 contact the client, who I assume is Mr. Bernstein, he would 7 submit an affidavit that described how he obtained the 8 documents; is that correct? 9 A. Something like that. 10 Q. That motion was granted by the court; is that right? 11 A. So many words, yes. 12 Q. And did you thereafter contact Mr. Bernstein? 13 A. He There was a cross motion made in connection with your You submitted an affidavit in connection with MR. LERNER: 14 Your Honor, I contacted Mr. Bernstein. 15 I spoke with him about the issues. He agreed to a, quote, 16 unquote, limited waiver to allow Mr. Oberlander to testify as 17 to his giving the documents to Mr. Oberlander. 18 affidavit based on what he had told me and then his father 19 intervened and said speak with me only, he's not submitting 20 any affidavits to the Court, he's represented by counsel. 21 Q. 22 this matter, the other attorney, Mr. Lerner, submits a letter 23 on June 14th, and that letter very specifically says that you 24 ·obtained the documents from Mr. Bernstein and that 25 Mr. Bernstein told you he obtained them from Mr. Doe, but that I prepared an In a follow-up letter to the Court in connection with M. BRYMER, RPR, OCR SM0089 docket 55-000089 Case 10-2905, Document 55, 02/03/2011, 200440, Page90 of 192 27 Oberlander-direct/Moore 1 any statements in that letter are not yours. Specifically 2 states the statements in the letter are not yours . Why is that? 3 4 A. You would have to ask the author of that letter. 5 Q. You stand by the statements that you obtained from 6 Mr. Bernstein and Mr. Bernstein told you he obtained them MR. LERNER: 7 8 from Mr. Doe? Q. MR. LERNER: 9 10 . May I address it? May I address the Court as to why I made certain statements or should we move on? THE COURT: 11 It seems that question has been answered, 12 Ms. Moore. 13 Q. 14 the documents you were given either on March 1st or that you 15 obtained on March 3rd, 2010? 16 A. Do you know who would have been given or provided any of I'm sorry, I missed the first few words of the question. THE COURT: 17 So did I. To whom have you given or provided the documents that you 18 Q. 19 obtained on March .lst and March 3rd from Mr. Josh Bernstein? 20 A. 21 in the order to show cause as the sealed and confidential 22 documents, it is my recollection that I never gave them to 23 anyone. 24 me amend that, 25 intact to my attorneys, so my attorneys received everything As to everything other than the documents you ref erred to So, as to the sealed and confidential, actually, let I apologize. I believe I forwarded the email M. BRYMER, RPR, OCR SM0090 docket 55-000090 Case 10-2905, Document 55, 02/03/2011, 200440, Page91 of 192 28 Oberlander-direct/Moore 1 that was attached to that email. 2 Q. Who are your attorneys? 3 A. Wilson Elser. 4 Q. When did you send it to them? 5 MR. LERNER: 6 THE COURT: 7 MR. LERNER: I believe it was last Saturday. I'm sorry. I believe it was the Saturday before 8 this past Saturday. I can check my Blackberry, if the Court 9 wants to know the precise date. So, other than your attorneys, Wilson Elser, you did not 10 Q. 11 provide the March 3rd email in its entirety to anyone else; is 12 that correct? 13 A. 14 forward intact that email to anyone else. 15 of my recollection. 16 Q. To the absolute best of my recollection, I did not That's to the best I could be mistaken. Okay. Now let's take it to the other documents, even if 17 18 they are not intact, any part of them. The documents we 19 referred to as the sealed and confidential documents, to whom 20 have you provided those documents? 21 A. 22 in-take clerk, whatever her official title is who receives 23 physical filings was given the original complaint and attached 24 to there were I believe five pages from the PSR, the two 25 proffer agreements and the cooperation agreement, but not DOJ The clerk of the Southern District, the cashier, the M. BRYMER, RPR, OCR SM0091 r docket 55-000091 Case 10-2905, Document 55, 02/03/2011, 200440, Page92 of 192 29 Oberlander-direct/Moore 1 financial statement, and Mr. Kriss received those documents 2 · electronically in the same form that Mr. -- I'm sorry, this is 3 a confusing answer. Let me start it again. 4 Mr . ·Jody Kriss, my client, was given those documents 5 to the extent that they were given in the email to Ron Kriss. 6 In other 7 email to Ron Kriss had more pages in some of the sealed and 8 confidential documents, so those versions went to Ron Kriss on 9 May 12th at around 12:30 noon. as I testified, the attachments on the May 12 About an hour earlier I sent 10 the same email with slightly different text to John Elzufon, 11 who" is an attorney representing Alex Solomon, one of the 12 defendants in the case, and I sent him the same attachments 13 Ron Kriss had. 14 Jody Kriss I believe was copied on one of those 15 emails and Stam Stamouilis, who is Mr. Kriss's attorney from 16 Delaware and local counsel for the prior Delaware matter, 17 received a copy of that email, and prior to that the only 18 other thing I can recall is that a couple of weeks before 19 filing the complaint I gave extracts of those documents 20 electronically to Mr. Kriss for his use and verification of 21 the complaint because he had to verify the complaint. 22 To the best of my knowledge, that's the absolute 23 actually, no, let me just change that. 24 person. 25 attorney sometime in March. There was one other I believe I sent one or two of them to another M. BRYMER, RPR, OCR SM0092 docket 55-000092 L Case 10-2905, Document 55, 02/03/2011, 200440, Page93 of 192 30 Oberlander-direct/Moore 1 Q. Who is that attorney? 2 A. The gentleman's name is David Schlecker.- 3 Q. He is an attorney of yours? 4 A. Yes. 5 Q. Could you spell John Elzufon's last name for us, please? 6 A. E-1-z-u-f-o-n. 7 Q. And Mr. Schlecker's last name? 8 A. s-c-h-1-e-c-k-e-r. 9 Q. So, besides Jody Kriss, Ron Kriss, John Elzufon, Stam 10 Stamoulis, Wilson Elser, David Schlecker, is there anyone else 11 you know of to whom you sent any part or portion of the 12 documents we have been ref erring to as the sealed and 13 confidential documents or any other documents relating to 14 Mr. Doe's criminal file? 15 A. · 16 means. 17 else I sent them to. 18 Q. 19 other people you sent them to sent them· further to anyone 20 else? 21 A. 22 knowledge, sorry. 23 Q. Did they ever advise you that they had it? 24 A. Not specifically. 25 nobody said to me we sent these down here to somebody else. I don't know what documents related to his criminal file To the best of my recollection there isn't anybody To your knowledge, do you know whether or not any of the I have no knowledge that they did, no: -I'm not I have no .no, not specifically, M. BRYMER, RPR, OCR SM0093 docket 55-000093 II Case 10-2905, Document 55, 02/03/2011, 200440, Page94 of 192 31 Oberlander-direct/Moore 1 No. 2 Q. 3 - A. ' . Not specifically did they say they had -Mr. Elzufon, who is an attorney representing one of the 4 defendants, Alex Solomon, told me that he contacted Alex 5 Solomon's insurance carrier, CNA, to advise them of what was 6 going on. So, I suppose one could presume he sent some or all 7 up there. I really don't know. 8 unreasonable to assume he might have. 9 I never asked. It is not May I add something, your Honor? 10 THE COURT: 11 THE WITNESS: Sure. I believe it was on the 13th that Judge 12 Buchwald directed me to forward to several people who received 13 the 14 were not to disseminate it. 15 have happened by the 13th. 16 about any of this. 17 Q. 18 everyone to whom you had sent it? 19 A. Indeed I did. 20 Q. Besides providing the actual documents, the ones referred 21 to as the sealed and confidential documents, did you discuss 22 the information contained in any of those documents with 23 anyone? 24 A. Yes. 25 Q. With whom did you discuss the information contained in with the attachments an order advising them they So, presumably whatever would Nobody has spoken to me since then Did you follow Judge Buchwald's order and contact M. BRYMER, RPR, OCR SM0094 docket 55-000094 Case 10-2905, Document 55, 02/03/2011, 200440, Page95 of 192 32 Oberlander-direct/Moore 1 those documents? MR. LERNER: 2 3 Objection. This is beyond the scope of the order to · show cause. THE COURT: 4 Sustained. 5 Q. Who drafted the SDNY complaint? 6 A. I did. MR. LERNER: 7 8 Objection, that's also beyond the scope. THE COURT: 9 It is in the record. It is part of the 10 evidence in this case. 11 Q. Are you aware of who has reviewed that complaint? 12 A. Would you be more precise about the phrase reviewed? 13 Q. Read it. 14 A. Mr. Kriss read it. 15 THE COURT: 16 THE WITNESS: There are several Mr. Krisses. Referring to my client Jody Kriss. I 17 apologize. 18 A. 19 clarification -- actually, no, I will answer it directly. 20 have been told by my lawyers at Wilson Elser that two of them 21 have read it and beyond that nobody told me that they read it 22 and furthermore whether they read it -- whether they read part 23 of it, it is unclear from your question what you're asking. 24 Q. 25 Southern District of New York Mr. Doe's entire criminal case My client read it, I read it and I need to request I Did you know at the time you filed the complaint in the M. BRYMER, RPR, OCR SM0095 docket 55-000095 Case 10-2905, Document 55, 02/03/2011, 200440, Page96 of 192 33 Oberlander-direct/Moore 1 was under seal in the Eastern District of New York? 2 MR. LERNER: 3 THE COURT: Objection. I will allow that. Truthfully, I don't know it now. By that I don't mean to 4 A. 5 contradict what the Court said. 6 Court. 7 I'll get the quote later on, I apologize to your Honor, that 8 there is no order. 9 everything filed in the case sealed. I certainly respect the And last week, if I'm not mistaken, the Court said and At the beginning of the matter I had Whatever the Court's 10 exact words were, certainly I was there, I heard that, I 11 assume it is true, and if that's knowledge, that's the first 12 time I ever had such knowledge. 13 Q. That's the very first time you had knowledge? 14 A. That's the very first knowledge -- first time, if it is 15 knowledge, that is the first time I had knowledge that the 16 entire record was sealed. 17 Q. 18 complaint, did you know that some of them were sealed? 19 A. 20 believe what the Court said last week in further comment was 21 that his Honor checked the computer files, found that the 22 general files, 23 Honor said that there were six documents listed without 24 description that were under seal and that he didn't look to 25 see what they were, but could if he wanted to. How about the exhibits that were attached to the SDNY I still don't know that because when the Court said -- I if I'm not mistaken, was marked sealed and his My point being M. BRYMER, RPR, OCR SM0096 docket 55-000096 Case 10-2905, Document 55, 02/03/2011, 200440, Page97 of 192 34 Oberlander-direct/Moore 1 that I actually have no knowledge that they're sealed. 2 Q. 3 guilty plea to the criminal RICO proffer and cooperation 4 agreement were sealed. 5 knbw that they were sealed? 6 A. 7 of context to distort the meaning. 8 Q. 9 cooperation agreement were sealed, as he was aiding the Well, paragraph 96 of that complaint says because his When you drafted that portion, did you I drafted more words after that. You're moving them out Because his guilty plea to criminal RICO proffer and 10 prosecution of his Mafia and Russian organized crime 11 confederates, does that change your understanding of the 12 documents were sealed? 13 A. 14 second. 15 paragraph 96? 16 Q. Absolutely. 17 A. Please, since I'm confused, what is exactly your question 18 here? 19 Q. 20 proffer and cooperation agreement were sealed, did you know 21 that those documents were sealed? 22 A. 23 know that they're sealed. 24 Q. 25 were sealed? Well, I know what I wrote. I can Since it is not -- wait a Can you hang on while I go look at When you wrote because the guilty plea to criminal RICO, I've already testified that I never have and still don't So, what is the meaning of that sentence when you say M. BRYMER, RPR, OCR SM0097 docket 55-000097 Case 10-2905, Document 55, 02/03/2011, 200440, Page98 of 192 35 Oberlander-direct/Moore 1 A. 2 prove, should there be any fact at all, an ultimate fact that It means I'm alleging on behalf of my clients that we can 3 - they were sealed, that doesn't - mean I know it to be true nor 4 are those my words. I wrote them on behalf of my clients. 5 Q. 6 under the belief the documents were sealed? 7 A. 8 world with respect to how I represent them and what I chose to 9 aver on their behalf as work product. When you wrote that it is your testimony you were not I already testified what I believe to be the state of the This complaint is 10 Mr. Kriss' statement that he believes the following to be true 11 by the requisite level of pleading confidence. 12 mistaken, is it 13 is not an ultimate fact. 14 it. 15 isn't mine. 16 Q. It is your client's? 17 A. I said it is not judicial admission and, but, even if it 18 were, it is not mine. 19 Q. 20 complaint, the proffer and cooperation were sealed? 21 A. 22 my knowledge of whether they are sealed and I still don't know 23 whether they are sealed. 24 Q. 25 obtain any portion of the criminal file from the courthouse 11? If I'm not Whatever it is in Federal Court. It Nothing in the complaint depends on It is not judicial admission, and, even if it were, it You disagree with the statement that the criminal I couldn't very well do that because that would require Mr. Oberlander, did you yourself ever make any attempt to M. BRYMER, RPR, OCR SM0098 I r docket 55-000098 Case 10-2905, Document 55, 02/03/2011, 200440, Page99 of 192 36 Oberlander-direct/Moore 1 here in the Eastern District of New York? 2 A. Through my agent? 3 Q. Through anyone. 4 A. Yes. 5 Q. And did you try to obtain any aspect of the criminal file 6 relating to my client in the document? 7 A. 8 here. 9 Q. I ''m sorry. 10 A. It was the date of the first hearing here. 11 that is May 10th. I think it was the 10th was the date of the first hearing 12 MR. LERNER: June 11th. 13 THE WITNESS: Oh, June 11th. I believe The date of the first 14 hearing. 15 Q. 16 testimony you made no effort to actually obtain any portion of 17 the criminal case? 18 A. That's correct. 19 Q. Are you familiar with PACER? 20 A. Oh, you mean the computer system? 21 Q. Yes. 22 A. I am. 23 Q. Have you used it? But prior to filing the SDNY complaint, 24 ' A. Ever? 25 Yes. Q. it is your M. BRYMER, RPR, OCR SM0099 docket 55-000099 Case 10-2905, Document 55, 02/03/2011, 200440, Page100 of 192 37 Oberlander-direct/Moore 1 A. Yes. 2 Q. Did you attempt to use it to obtain information related -3 to the criminal case against my client in the -Eastern District 4 of New York? MR. LERNER: 5 Objection. The question is too broad. 6 If you're asking the attempted use to find out any information 7 about the case -- 8 MS. MOORE: I am. 9 MR. LERNER: Are you able to answer that? 10 THE WITNESS: Yes. 11 MR. LERNER: Okay. 12 A. Yes, I did. 13 Q. And when did you do that? 14 THE COURT: 15 MS. MOORE: Is that when or why? When. 16 A. 17 20th, 25th of May. 18 certainly easy enough to check. 19 filing the complaint. 20 Q. 21 complaint? 22 A. 23 PACER to bill long ago changed the number and I never updated 24 it .. 25 recollection of logging onto PACER for anything prior to that I would have to check. My guess would be around the I really can't be certain. It is It would be sometime after You're certain you never checked prior to filing the Virtually certain because my credit card that I gave I have no recollection of logging onto PACER. I have no M. BRYMER, RPR, OCR SM0100 docket 55-000100 Case 10-2905, Document 55, 02/03/2011, 200440, Page101 of 192 38 Oberlander-direct/Moore 1 time since 2008. 2 Q. When you logged onto PACER in late May, what you pulled 3 - up was a screen that says this case is under seali is that 4 correct? 5 A. Something like that, yes. 6 Q. But as you sit here today it is still your testimony you 7 have no knowledge this case is under seal? 8 A. I never testified to that. 9 Q. What is the state of your knowledge as to whether or not 10 this case is under seal? 11 A. 12 criminal matter, that he had all documents filed under seal 13 and I further testified that I have no knowledge that these 14 particular documents were filed under seal and I don't know 15 what the whole case under seal means, but I certainly respect 16 what the Court said a week ago and that's the sum total of my 17 knowledge. 18 are in fact filed under seal other than that I heard the Court 19 say there are six listed. 20 were. 21 Q. 22 whatsoever to verify the statement in the complaint that they 23 were under seal? 24 A. I didn't say that. 25 Q. Okay. That the Court said from the first date of the case, the I have absolutely no knowledge of what documents His Honor didn ' .t know what they So, prior to filing the SDNY . complaint you made no effort M. BRYMER, RPR, OCR SM0101 docket 55-000101 Case 10-2905, Document 55, 02/03/2011, 200440, Page102 of 192 39 Oberlander-direct/Moore 1 Did you make any attempt prior to filing the 2 complaint to verify whether the documents you were attaching 3 them to or any part of Mr. Doe's criminal case was under seal? 4 A. 5 contemporaneous press accounts from 2007 and which reputable 6 reporters list some parts as being under seal. 7 exact phrase, for example, from an article I 8 17th, 2000, in the New York Times, within a day or two of that 9 said that a federal complaint remains under seal. The basis for the allegation in the complaint are I believe the think December Based on 10 that and press coverage of Mr. Doe, it was eminently 11 reasonable to allege that at the time Mr. Kriss was hired in 12 2003 those documents were under seal, but, as I 13 an averment or allegation on behalf of Mr. Kriss, who 14 presumably had come to that conclusion from his verification 15 of the complaint and it is a reasonable complaint he had. 16 have not testified as to mine. 17 Q. 18 complaint did you make any effort to verify whether or not the 19 documents you were attaching thereto or any other part of my 20 client's criminal file were under seal? MR. LERNER: 22 THE COURT: A. 24 it. 25 Q. I My question, Mr. Oberlander, was prior to filing this 21 23 said, that's I Objection, asked and answered. Answer it again, you can answer it. referenced the press accounts. That's how I verified Anything besides press accounts that you went to to M. BRYMER, RPR, OCR SM0102 docket 55-000102 Case 10-2905, Document 55, 02/03/2011, 200440, Page103 of 192 40 Oberlander-direct/Moore 1 attempt to verify whether the documents you were attaching or 2 any part of the criminal case were under seal? 3 A. 4 Q. 5 specifically states a federal complaint brought against him, 6 meaning my client, in a 1998 money laundering stock 7 manipulation case was filed in secret and remains under seal; 8 is that right? 9 A. Anything else I did, I don't recall specijically, no. · You just referenced a New York Times article which The question is whether I referenced that article? 10 I just did. 11 Q. Did you read that article? 12 A. Many times. 13 Q. Did you read it ·with utmost care before filing the 14 complaint in the Southern District? 15 MR. LERNER: 16 THE COURT: Yes, Objection. Sustained. 17 Q. 18 Southern District? 19 A. 20 before filing the complaint. 21 Q. 22 that article was written, the complaint was still under seal; 23 is that right? 24 A. 25 don't know that and anybody that would believe necessarily Did you read it before filing the complaint in the I read it in 2007, when it first came out. That was So, you knew certainly that as of December 2007, when No. I must have testified at least six times, I still M. BRYMER, RPR, OCR SM0103 I I docket 55-000103 Case 10-2905, Document 55, 02/03/2011, 200440, Page104 of 192 41 Oberlander-direct/Moore 1 anything they would read in the newspaper like that I'm not 2 among the set of. 3 what documents are under seal, never have _known what documents 4 are under seal and the fact that the New York Times says that 5 one document is under seal is sufficient for purposes of the 6 well pled complaint, but does not make me know anything is the 7 case. THE COURT: 8 9 10 I continually told you that I do not know You testified that at some point you accessed or attempted to access the file in this case via PACER. 11 THE WITNESS: 12 THE COURT: 13 May I for purposes of clarification? That's correct . I don't recall hearing and if it was mentioned I missed it, what date was that? 14 THE WITNESS: 15 May 20 or 25. 16 10th. 17 complaint. 18 Sometime in the last few days of May, It may -- sometime between May 20 and June I would have to check. It was after filing the It was after the order to show cause was served. THE COURT: Thank you very much. 19 Q. 20 article as being under seal, you made no independent effort to 21 obtain that; is that right? 22 A. Independent of what? 23 Q. Independent of receiving it from Joshua Bernstein. 24 A. I testified that my attorneys attempted to access the 25 court file on June 11th, so presumably the answer is I did on The criminal complaint referenced in the New York Times M. BRYMER, RPR, OCR SM0104 docket 55-000104 Case 10-2905, Document 55, 02/03/2011, 200440, Page105 of 192 42 Oberlander-direct/Moore 1 June 11th. 2 Q. Any time prior to that? -3 A. No. 4 Q. You 5 A. Excuse me. 6 been there and available, I guess that would be a constructive 7 attempt. 8 other than sealed 9 Q. 10 I went onto PACER. I'm not going to mislead. complaint; is that right? THE COuRT: 12 MS. MOORE: 13 MR. LERNER: Extensively from what? The criminal complaint. Objection; This goes beyond the scope. 15 16 Since nothing shows up You quote extensively from that complaint in your SDNY 11 14 Theoretically, if it had THE COURT: Mr. Lerner, that document is in evidence. 17 MR. LERNER: 18 THE COURT: I understand, your Honor. If it is in evidence, it is in evidence 19 as to what it says and it is in evidence as to what it is that 20 may have been quoted. 21 rhetorical question. 22 quoted. 23 assumption is a correct one, he quoted it, he signed the 24 complaint. 25 Q. It is part of the record. It is a It is a rhetorical one if it has been It is Mr. Oberlander's complaint. I think the Mr. Oberlander, can you please turn to page 40 of that M. BRYMER, RPR, OCR SM0105 docket 55-000105 Case 10-2905, Document 55, 02/03/2011, 200440, Page106 of 192 43 Oberlander-direct/Moore 1 complaint, paragraph 207. 2 A. Yes. 3 Q. The quote contained in paragraph 107 that is indeed from 4 the criminal complaint I have been referring to; is that 5 right? 6 A. 7 misrepresent it. 8 to rely on what this says is right. 9 is true. The complaint says it is. I certainly wouldn't knowingly Without the complaint in front of me, I have I wrote it; I assume it 10 Q·. 11 criminal complaint? 12 A. 13 writing that paragraph 207, what day and time, no, but I must 14 have if this is in fact from the complaint. 15 me the complaint, I have to assume it speaks for itself. 16 you show me the complaint, then I will be able to tell you 17 whether I copied it. 18 Q. 19 Mr. Bernstein on March 3rd via email? 20 A. 21 fact true. 22 3rd email. 23 Q. 24 to the SDNY complaint. 25 A. Did you obtain that from the actual complaint, the I must have. I mean if you're asking me do I recall If you don't show If Did you obtain the complaint from which you quoted from Yes. This must now mean what I assume was true is in It is one of the documents attached to the March You did not attach that complaint as one of your exhibits Why not? Work product. M. BRYMER, RPR, OCR SM0106 docket 55-000106 Case 10-2905, Document 55, 02/03/2011, 200440, Page107 of 192 44 Oberlander-direct/Moore 1 2 MR. LERNER: Q. Objection. Was it because you knew it was under seal? 3 MR. LERNER: 4 THE COURT: Objection. I will allow it. 5 A. No. 6 Q. Was it because you knew it was stolen? THE COURT: 7 Sustained. 8 Q. 9 Did you read the entire presentence report before filing the Exhibit C to Movant's Exhibit 1 is a presentence report. 10 SDNY complaint? 11 A. Yes. 12 Q. Did you read the sentence on page two that reads, 13 the policy of the federal judiciary and the Department of 14 Justice that further re-disclosure of the presentence 15 investigation report is prohibited without consent of the 16 sentencing judge"? 17 A. I did. 18 Q. What did you understand it to mean? 19 A. That further disclosure by employees of the Bureau of 20 Prisons is against the policy of the judiciary and the Justice 21 Department without the consent of the sentencing judge. 22 Q. 23 disclosure of the PSR; is that your testimony? 24 A. That's correct. 25 Q. Did you make any attempt to obtain permission from the "It is So, you did not think . that that sentence applied to your M. BRYMER, RPR, OCR SM0107 docket 55-000107 Case 10-2905, Document 55, 02/03/2011, 200440, Page108 of 192 45 Oberlander-direct/Moore 1 sentencing judge before filing the SDNY complaint? 2 3 MR. LERNER: Objection. He just answered. It was unnecessary. THE COURT: 4 I think I can take judicial notice of the 5 fact, Ms. Moore, that no request was made of me by anybody 6 other than the Probation Department regarding this presentence 7 . report. 8 Q. Now, Mr. Oberlander, you cite an email to Ron Kriss on 9 May 12; is that correct? 10 A. I may have sent more than one. 11 Q. Let me show you what's been marked Movant's Exhibit 2. 12 13 MR. LERNER: of water? 14 THE WITNESS: 15 MR . LERNER: 16 Your Honor, may I bring my client a cup Apparently I'm thirsty. Can we have the last question read back? 17 MS . MOORE: I think I just handed the witness an 18 exhibit. 19 Q. Can you take a moment to review that exhibit, please? 20 A. I did. 21 Q. Is that in fact the email you sent to Ron Kriss on May 22 12? 23 A. 24 wrote it. 25 It looks like it. MR. LERNER: I don't recall every word and how I Your Honor, I object. M. BRYMER, RPR, OCR SM0108 docket 55-000108 ,- Case 10-2905, Document 55, 02/03/2011, 200440, Page109 of 192 46 Oberlander-direct/Moore 1 2 THE COURT: the email? I don't know what it is. Have you seen Do you know what is being referred to? 3 MR. LERNER: 4 THE COURT: 5 MR. LERNER: Yes. What is the objection? Objection is it has nothing to do with 6 to whom Mr. Oberlander forward the documents or . how he 7 received them. It is beyond the scope. 8 THE COURT: 9 MS. MOORE: 10 handed it up. May I see the email? I'm sorry, your Honor. I thought I It is Exhibit 2. 11 MS. MOORE: 12 THE COURT: 13 MR. LERNER: 14 THE COURT: 15 MS. MOORE: If I may, your Honor? I have it. ·There's nothing in this email ... Ms . Moore. Your Honor, the document is in fact 16 forwarding the complaint with the exhibits asking that it be 17 re-forwarded. 18 filing under seal. 19 whether or not this witness knew that the attachments were 20 under seal to begin with. 21 It mentions possibilities with respect to THE COURT: I believe it is clearly relevant to I will allow it. There are some portions 22 of it which may not have any relevance to this proceeding, but 23 certainly paragraphs A, B and C attached to the first 24 paragraph are perfectly relevant to . this proceeding and 25 perhaps the last paragraph is as well. I'll receive it as M. BRYMER, RPR, OCR SM0109 docket 55-000109 ,- Case 10-2905, Document 55, 02/03/2011, 200440, Page110 of 192 47 Oberlander-direct/Moore 1 Plaintiff's 2. You can move on. MS. MOORE: 2 Yes. Mr. Oberlander, in this email you state there are three 3 - Q. 4 objections I filed publicly today, I filed under seal. 5 arranged for an agreement with every defendant but Nixon 6 Peabody. 7 I At the time you sent him the email you had already 8 filed it publicly, had you not? 9 A. According to the court rules I had, but the -- yes. 10 According -- actually, seriously, I can't answer that only 11 because the terminology is confusing to me. 12 complaint already but it had not been public. 13 Q-. When you say you forwarded this to Julius, who is Julius? 14 A. Ron Kriss would have understood that to be Julius 15 Schwartz. 16 Q. Julius 17 A. I have no idea what he is now, but at one time he was. 18 According to various testimony he gave title as executive vice 19 president, general counsel and considered himself de facto 20 chief executive officer of the company. 21 Q. 22 right? 23 A. 24 Q. .At the firm of Ackerman? 25 A. Ackerman Senterfitt. I had filed a is a principal of Bayrock? And he's a former law partner of Ron Kriss; is that I think they called them shareholders, ·but, yes . M. BRYMER, RPR, OCR SM0110 docket 55-000110 Case 10-2905, Document 55, 02/03/2011, 200440, Page111 of 192 48 Oberlander-direct/Moore 1 Q. And in this email you basically say there's three options 2 or pay the money back now; is that right? 3 A. No. - 4 Q. Give the money back and now it is over. 5 meaning of that? 6 A. 7 other people, including Mr. Doe, stole in cash equivalent 8 about eight million dollars from my clients in terms of the 9 value of the partnership interest, they converted about What .is the It means Julius Schwartz personally in conspiracy with 10 $30 million, probably tens of millions of dollars, depending 11 on the analysis from the Treasuries of New York State, New 12 Jersey and the United States, and I don't know how many 13 millions from people they defrauded when they were buying 14 condominiums and that they had plenty of time to rectify their 15 theft, embezzlement, larceny, fraud and tax evasion. 16 Q. 17 millions of dollars you said were owed, would you have not 18 filed the complaint? 19 A. I believe I testified I already had. 20 Q. Would you have not served it? 21 it? 22 A. 23 You said if they had paid. 24 Q. Julius. 25 A. What about it? If in response to this email they agreed to pay back If all defendants settled? Would you have retracted I don't know who they is. Who is the they in your question? M. BRYMER, RPR, OCR SM0111 r docket 55-000111 Case 10-2905, Document 55, 02/03/2011, 200440, Page112 of 192 49 1 Q. · 2 me if I'm wrong, is that you're giving him three options in -- 3 or demand for money. 4 unless you pay me the money back. 5 Am I reading that wrong? Welli the way I read this email, Mr. Oberlander, correct You're saying I'll do this, - this or this . 6 A. You are. 7 Q. It was not your intent to make it a demand for money in 8 exchange for not filing it publicly? 9 A. Of course it wasn't. 10 Q. Explain to me the last paragraph. 11 possible to get this in under seal if Bayrock joins a joint 12 motion in Part One to seal the complaint pending redaction 13 agreement with the assignment judge. 14 I believe it is What did you mean by that? 15 A. 16 on a telephone conversation I had with Mr. Kriss approximately 17 30 minutes earlier and during the course of that conversation 18 I informed Mr. Kriss that the best practices dictated that I 19 attempted to file the SDNY complaint under seal, which I had 20 attempted to do ex parte, and that I followed the procedures 21 to that and that the Part One Judge I was given to whom I 22 submitted a motion along with a brief in support of a motion 23 requesting a seal -- that would be Judge Kimball Wood 24 declined without reason to seal it and because of the time it 25 took for her law clerks to go through everything and for her What I meant by that is that this email was following up M. BRYMER, RPR, OCR SM0112 docket 55-000112 Case 10-2905, Document 55, 02/03/2011, 200440, Page113 of 192 50 Oberlander-direct/Moore 1 to then decline to seal it, it ran past the closing date for 2 the time for the cashier which I had to come back and file in 3 .the morning and drop . off the copy and within 24 hours upload 4 it to PACER. So, I told Mr. Kriss that since best practices 5 6 covering me as plaintiff's attorney would indicate that I 7 attempt to file the complaint under seal and since I had 8 already been turned down by a Part One Judge that had not got 9 a spun wheel yet and an assigned judge, it was my belief that 10 if at least one defendant, ideally more than one, would join 11 with me in a stipulated motion to file under seal it would 12 then be reasonable to go to a new Part One Judge without judge 13 shopping and say, your Honor, we would like this · filed under 14 seal by stipulated agreement. 15 So, my purpose in contacting Ron Kriss was the same 16 purpose I had in contacting John Elzufon an hour earlier, at 17 10:30, I think, that morning, which was to say to them that I 18 wanted to file the complaint under seal for reasons listed in 19 the sealing motion and that I was · turned down, but that I 20 believed if someone stood next to me from the defendant's side 21 with a stipulated request to file under seal that perhaps that 22 would work. 23 Q. 24 file a civil RICO complaint under seal? 25 A. Mr. Oberlander, why did best practices dictate that you For one thing these companies of Bayrock are a M. BRYMER, RPR, OCR SM0113 docket 55-000113 Case 10-2905, Document 55, 02/03/2011, 200440, Page114 of 192 51 Oberlander-direct/Moore 1 partnership and the -- for tax purposes and the crux of the 2 complaint is that Mr. Doe, Julius Schwartz with the conspiracy 3 of professionals ran Bayrock through a pattern of rampant tax 4 evasion, tax fraud, money laundering, and when you play games 5 like that in a tax partnership you are propagating 6 consequences to every single one of the partners, including 7 the innocent minority partners, and it was my interpretation 8 that given the financial information that was in the complaint 9 even though nominally it would appear to be related to 10 Bayrock, it had sufficient impact on the tax partners of 11 Bayrock that it triggered, I think it's 21F, I'm not sure, of. 12 the ECF filing that says while you don't have to file under 13 seal information, complaint or documents that contain the 14 following, you probably should, and, if I'm not mistaken, on 15 the list of those things that the court recommends attempted 16 to be filed under seal are documents containing personal 17 financial information. 18 Q. Were there any other reasons? 19 A. Yes, there were. 20 while I am certain that they are properly used and not subject 21 to objection and the reasons for that are stated in the moving 22 papers for filing under seal, I believe that best practices 23 requires in a case of this gravity that the opposing side in 24 the interest of justice be given a chance to examine the 25 complaint and see if they had, for example, privilege That was one reason. There are emails in the complaint and M. BRYMER, RPR, OCR SM0114 docket 55-000114 Case 10-2905, Document 55, 02/03/2011, 200440, Page115 of 192 52 Oberlander-direct/Moore . 1 objections, in which case there could be a period of maybe a 2 week or two while the complaint stayed under seal pending a 3 redaction agreement. 4 Mr. Kriss, that's what I was explaining to Mr. Elzufon and 5 that's what is in my moving papers to put it under seal and in 6 fact that's what Morris and Cohen, representing Mr. Schwartz, 7 and I believe although it should be impossible conflict, also 8 representing Bayrock Group, specifically requested of me 9 within days of filing if I would agree to redaction. 10 11 That's - what I was explaining to So, apparently they have the same view of it as I do. The third reason for wanting to file under seal is 12 because this is a derivative action and while there are about 13 five or six known equity class members that are represented by 14 Mr. Kriss since Bayrock must be assuming even a fraction of 15 these complaints, claims in the complaint are true. 16 Bayrock must be and must have been for sometime insolvent, 17 there are a staggering number of creditors who have quasi 18 equity standing to participate in a derivative action as 19 beneficiaries and to the extent that filing the complaint 20 prior to giving a chance for redaction would destroy what was 21 left of the company based on public reaction to it the 22 interest of my own derivative, albeit unknown clients, the 23 better part of the - - it was to attempt to redact and preserve 24 value of the company so that people out in the world reading 25 this wouldn't shoot against it. Since M. BRYMER, RPR, OCR SM0115 docket 55-000115 Case 10-2905, Document 55, 02/03/2011, 200440, Page116 of 192 53 Oberlander-direct/Moore Were there any other reasons you made a motion to file it 1 Q. 2 under seal? 3 A. Those were the three motions. 4 Q. Does that motion exist in writing? 5 A. Of course it does. 6 Q. Do you still have a copy? 7 A. Yes, I do. 8 Q. Does that motion in any way contain any references to the 9 fact that there are sealed documents related to a criminal 10 case attached to the SDNY - complaint? 11 A. 12 fact, when you read it and it lists the documents -- rather, 13 the information which might give a reasonable attorney pause 14 to think about attempting to seal. 15 one is if your document contains information about a , 16 cooperation agreement with the government. 17 reading that mine was not the only document ever filed that 18 contained a cooperation agreement that the government had. 19 Q. 20 21F permit you to file such a document or tell you to file it 21 under seal? 22 A. 23 whatsoever against filing it under seal, but you might want to 24 think about it. 25 I'm virtually certain that it doesn't because 21F, in I believe the very last I presume from I'm sorry, I'm confused and not familiar with 21F. Neither. Does Actually, it simply says there's no restriction THE COURT: Excuse me. What is 21F? M. BRYMER, RPR, OCR SM0116 docket 55-000116 Case 10-2905, Document 55, 02/03/2011, 200440, Page117 of 192 54 Oberlander-direct/Moore 1 THE WITNESS: I apologize, your Honor .. · There are ECF 2 rules published by EDNY and SDNY, jointly electronic filing 3 rules, . and they refer to filing of all documents, not merely 4 complaints, and I'm pretty certain, it is funny 5 apologize, but there are two sets of rules, two so I'm 6 assuming it is 21E and -- whatever they are they are back to 7 back. 8 9 again I One says if your document contains any of the documents you may not file it electronically or I guess 10 without court order or court permission. 11 according to Ms. Moore's questions you are prohibited from in 12 the absence of extenuation filing. 13 21F, which contains a list of items which if your document 14 contains them you are perfectly free to file under seal, but 15 if I can paraphrase you probably ought to think about it 16 before you do that and consider attempting getting it sealed. 17 18 THE COURT: So, that would be Following that I think is Among the documents listed are cooperation agreements? 19 THE WITNESS: 20 THE COURT: 21 THE WITNESS: 22 THE COURT: 23 THE WITNESS: 24 THE COURT: 25 THE WITNESS: Indeed. Yes? Honestly, yes. Presentence reports? No. Cooperation agreements? Two-word phrase cooperation agreement, M. BRYMER, RPR, OCR SM0117 docket 55-000117 Case 10-2905, Document 55, 02/03/2011, 200440, Page118 of 192 55 1 if it doesn't say that, it says something like -- evidence in 2 cooperation with the government. 3 agreement. - Yes, it is very clear what it refers to. 4 does. THE COURT: 5 May say cooperation It _ _ Does it also refer to proffer agreements, 6 which are essentially almost synonymous with cooperation 7 agreements? 8 THE WITNESS: 9 THE COURT: No, it does not, no. You indicated earlier I believe . you had 10 no idea, if I'm paraphrasing correctly, what a sealed case is, 11 what sealing encompasses and so on. 12 THE WITNESS: 13 THE COURT: 14 THE WITNESS: Do you recall that? No, I apologize. You never said anything like that? No, no. The words are similar to what 15 I said, that I certainly would never have said more than I 16 mean to say, that I don't know what it means when a case is 17 put under seal. 18 is put under seal. 19 documents I knew to be part of the sealed -- whatever you want 20 to call it. 21 your Honor wishes to refer to it. 22 there are some documents that are sealed and some that are 23 not. 24 25 Of course, I know what it means when a case I believe Ms. Moore was asking me what There is a sealed, what is it, envelope? However Assume in an average case In this case it may be all documents. Ms. Moore has generally been asking me or in fact entirely been asking me did you know this document was sealed, M. BRYMER, RPR, OCR SM0118 docket 55-000118 Case 10-2905, Document 55, 02/03/2011, 200440, Page119 of 192 56 Oberlander-direct/Moore 1 did you know that one and I said no, but if you're asking me 2 do I know what it means when a court orders a case sealed, 3 yes, of. course I do and .I apologize for any confusi.on. 4 THE COURT: Do you understand that it means that the 5 case generically, meaning everything connected with that case, 6 is sealed? 7 8 The case is sealed, what does that mean? THE WITNESS: May I answer? to answer that. THE COURT: 9 THE WITNESS: 10 By all means. All right. In this particular case, .11 · not having seen the sealing order, I 12 I would very much like can't domment on what any . -- in general, my understanding is that when a 13 · judge orders a case sealed that the order at a minimum directs 14 court personnel to remove the documents that are subject to 15 the sealing order from the publicly available file to keep 16 them sequestered somewhere, somewhere I guess in a safe of 17 some kind, to decline to release them to any member of the 18 public or anyone ·else asking for them who doesn't have a court 19 order and that a sealing order will typically, but not 20 necessarily, also include an order of the Court in the nature 21 of an 22 from disseminating some or all of the same documents. 23 24 - 25 enjoining certain parties for that action That would be my generic understanding of what a sealing order is. It is not in rem, could not be in rem. It is directed to court personnel not to disclose and directed M. BRYMER, RPR, OCR SM0119 docket 55-000119 Case 10-2905, Document 55, 02/03/2011, 200440, Page120 of 192 57 1 sometimes but not all the times the parties not to disclose. 2 It specifically is not a gag order nor could it purport to be, 3 but again for clarity I don't know what the . order says . 4 If I may, there is one case with which I'm familiar 5 that says it probably. more . eloquently than r. can. 6 the Supreme Court of Kentucky. 7 and it says that a sealing order of the type I described, what 8 we call generic in this question, is not to be interpreted to 9 be a global gag order, not to be interpreted as any form of It is from It is in the June 14th letter 10 court order purporting to control the ability of somebody to 11 obtain the same information outside the court process. 12 THE COURT: We're talking about two different things, 13 Mr. Oberlander. 14 court personnel are instructed this case is to be kept under 15 seal, you understand that to mean that court personnel are 16 precluded from making any information pertaining to that case . 17 available to anybody. 18 was dealing with, nor do I 19 matter is that your understanding is correct, that when a case 20 is declared to be a case filed under seal it directs court 21 personnel that this case is not to be made available to 22 anybody except under court order, which means in effect that 23 it is gl9bally unavailable to anybody unless a court orders 24 it, directs it to be unsealed. 25 If a case is declared to be a sealed case and I don't know what the Kentucky court care, the fact of the So, when you went to PACER, whenever it is you did, M. BRYMER, RPR, OCR SM0120 docket 55-000120 Case 10-2905, Document 55, 02/03/2011, 200440, Page121 of 192 58 1 you saw this was a sealed case and when Mr. Lerner went to the 2 Clerk 1 s office and requested to see the file, he was told, as 3 he told me in a - letter addressed somewhere along in this case, 4 that the Court Clerk said, 5 we cannot disclose anything about this case to you. 6 what you were told or at least you told me that in the letter . MR. LERNER: 7 11 Sorry, this case is under seal and 11 That . is My letter said I went to the Clerk 1 s 8 office to obtain a copy of the sealing order. 9 obtain a copy of the sealing order. 10 THE COURT: 11 They couldn 1 t show you that? 12 MR. LERNER: 13 THE COURT: I was unable to You were told even that 1 s under seal. That is correct. Because it is the entire envelope under 14 seal in the vault of the Court together with everything else 15 that 1 s filed. 16 were also specifically marked under seal, but when the court 17 is authorized, a Judge of the court would be authorized to 18 access that sealed case, there are many entries which are 19 ministerial which the Court is told a letter has been sent or 20 whatever it is, an adjournment has been granted, but there are 21 some documents which are specifically filed under seal, so 22 even the Court can 1 t look at it unless it makes a request to 23 see what that document is and asks the clerk, Clerk of the 24 Court, to open the vault and let me see what docket number 36 25 is. Now, it is true there were six documents which M. BRYMER, RPR, OCR SM0121 r docket 55-000121 Case 10-2905, Document 55, 02/03/2011, 200440, Page122 of 192 59 Oberlander-direct/Moore 1 In the course of the proceeding it may have some 2 specific value for the Court's information but it is globally 3 sealed. 4 couldn't be. 5 that might want to look at this file. 6 is told this case is sealed and without permission of the 7 Court it shouldn't be disclosed to anybody. 8 9 It is not addressed to any particular person. It . The Court wouldn't know in advance who it is The Clerk of the Court Why don't you move on, Ms. Moore. BY MS. MOORE: Just to clarify, Mr. Oberlander, it is your understanding 10 Q. 11 when a document is under seal that doesn't happen on its own, 12 right, it is pursuant to court order? 13 understanding the court needs to order a document to be · under 14 seal? 15 A. 16 orders generally documents filed it doesn't then order each 17 individual document. 18 file it becomes sealed. 19 somebody somewhere on behalf of the court with authority to do 20 so must have written that order directly to keep some or all 21 documents under seal in order for it to be true as a statement 22 that such and such a document is sealed. 23 Q. 24 Judge Kimball Wood, you would understand it to mean you 25 couldn't further disseminate the document, could you, if it Is it your I would not technically -- because I believe once a court You just -- as a matter of course as you But generally at one time or another It is not limited to court personnel. Your order before M. BRYMER, RPR, OCR SM0122 docket 55-000122 Case 10-2905, Document 55, 02/03/2011, 200440, Page123 of 192 60 Oberlander-direct/Moore 1 had been signed? 2 A. You mean the proposed order? 3 Q. Yes. 4 A. · I hav'e to look at it. 5 time ago, but, yes, the object of the court order could 6 variably be any party over whom the Court at the time of the 7 order had personal jurisdiction sufficient to justify 8 don't need to go into a constitutional Rule 65 speech. 9 understand. I drafted the thing. quite some we You We both understand. 10 Q. 11 before Judge Wood related to the fact that you were attaching 12 documents that were under seal in the Eastern District of New 13 York? 14 A. 15 that I did that. 16 certainly that sealing order -- I mean it is easily -- you 17 know, I can find it when I get back to my office, but to the 18 best of my recollection I believe that the motion said 19 actually, it doesn't -- it could be read possibly like that 20 because it does refer to information that is privileged and 21 confidential. 22 something not in front of me. 23 But it is your testimony that no part of your application I haven't seen it in a few weeks. I truly don't recall If I did, it is my memory error, but Let's rephrase it. I will not quote from It would be impossible to read it that way. I didn't 24 necessarily intend to write it that way. I don't recall 25 specifying that there were documents in there that would be M. BRYMER, RPR, OCR SM0123 docket 55-000123 Case 10-2905, Document 55, 02/03/2011, 200440, Page124 of 192 61 Oberlander-direct/Moore 1 under seal nor could I possibly have done so in any sense of 2 reality I have because I continue to testify that I still to 3 this day have absolutely no idea what documents are and .aren't 4 under seal so I couldn't have said that, your Honor, meaning 5 whatever the Part One Judge says there are documents that are 6 under seal here because that would contradict what I'm 7 saying. 8 Q. 9 We've gone over the PACER report that says the case is under So -- Mr. Oberlander, how can you possibly still say that? 10 seal repeatedly. 11 will be under seal. 12 this day you don't know which documents are under seal or 13 aren't? 14 A. 15 your questions and those are the truthful, correct answers to 16 the way you're phrasing them. 17 what documents are or are not sealed. 18 answer. 19 Q. 20 file the SDNY complaint and its attachment under seal, you 21 filed it anyway, didn't you? 22 A. Yes. 23 Q. You did so knowing it contained information that could 24 possibly endanger my client's life, did you not? 25 It is clear that every document connected How can you still sit there and say to Because I'm a mathematician, I'm an attorney, I listen to I have no personal knowledge of That would remain my After Judge Wood denied your order, your application to MR. LERNER: Objection. M. BRYMER, RPR, OCR SM0124 docket 55-000124 Case 10-2905, Document 55, 02/03/2011, 200440, Page125 of 192 62 Oberlander-direct/Moore 1 THE COURT: Sustained. Well, based on the documents you attached you knew that 2 Q. 3 my client had cooperated against dangerous organized crime 4 is that correct? 5 A. Documents attached to what? 6 Q. To the complaint, the cooperation agreement and proffer 7 agreement attached to the complaint. 8 A. 9 know is work product and that complaint represents the I've continued to testify that anything I did or didn't 10 allegations and averments of the clients that I represent. 11 Mr. Kriss, in principal, is the most aggrieved of all 12 them. 13 It is, frankly, none of my business to believe or not 14 believe. 15 of Rule 11 foundation for pleading -- Rule 11 I think it is. 16 Q. 17 you to waive work product and attorney-client privileges to 18 defend yourself against accusation of misconduct. 19 it clear we are accusing you of misconduct in connection with 20 your actions in this case in filing these sealed documents and 21 doing so in a way that would endanger a man's life. Anything said in there cannot fairly be imputed to me. It is my business to advocate within the constraints Mr. Oberlander, the Professional Rules of Conduct permit 22 Let me make Do you wish to pursuant to the Rules of Professional 23 Conduct avail yourself of your ability to waive work product 24 to answer those questions? 25 A. No. M. BRYMER, RPR, OCR SM0125 docket 55-000125 Case 10-2905, Document 55, 02/03/2011, 200440, Page126 of 192 63 1 MR. LERNER: 2 THE WITNESS: 3 MR. LERNER: 4 Objection. Are you going to object? I object . . I t is beyond scope of this order to show cause. 5 THE COURT: 6 MR. LERNER: Overruled. If Ms. Moore wishes to refer this to a 7 disciplinary committee, as to which Mr. Oberlander is 8 admitted, that would be the proper forum for such 9 allegations. 10 Q. Mr. Oberlander, are you going to stand by your answer 11 that the answer to my question is work product privilege? 12 A. Which question? 13 Q. The question as to whether or not you knew that by 14 attaching the cooperation agreement to a civil RICO complaint 15 in the Southern District would potentially endanger my 16 client's life. 17 MR. LERNER: 18 THE COURT: Objection. I sustained an objection. 19 ·Q. 20 Exhibit A to Movant's Exhibit 1, which is in fact the 21 cooperation agreement and I would like to direct your 22 attention to paragraph ten of that agreement. 23 A. Yes . 24 Q. That paragraph references the Witness Protection 25 Program. Mr. Oberlander, if you would take a look, please, at Did you read that paragraph prior to filing this M. BRYMER, RPR, OCR SM0126 docket 55-000126 Case 10-2905, Document 55, 02/03/2011, 200440, Page127 of 192 64 Oberlander-direct/Moore 1 complaint? 2 A. 3 Q.- 4 criminal court; is that correct? 5 A. No. 6 Q. Well, do you have any understanding whatsoever of when a 7 cooperation agreement . might include provisions with respect to 8 Witness Security Program? 9 A. I did. . And you fancy yourself as somewhat of an authority in In fact, I told you I'm not a criminal lawyer. Do I have any understanding of when it would include 10 one 11 Q. Yeah. 12 A. Presumably when the parties negotiate it to include one. 13 Q. Do you have an understanding of what that program is? 14 A. From popular culture. 15 Q. And you had no concern by attaching this . cooperation 16 agreement, no concern whatsoever about doing that? 17 A. 18 hypothetically if I had my concerns it would have been limited 19 to the safety of Mr. Kriss, who Mr . Doe threatened with death, 20 would have been limited -- the answer to your question is 21 hypothetically if I had given it any thought the answer I 22 would have come up with would have been I'm not Mr. Doe's 23 guardian angel, 24 Q. 25 were represented on that telephone conversation by attorney Hypothetically I'm not waiving anything, but I'm Mr. Kriss'. When we first spoke to Judge Buchwald on May 13th, you M. BRYMER, RPR, OCR SM0127 docket 55-000127 Case 10-2905, Document 55, 02/03/2011, 200440, Page128 of 192 65 Oberlander - direct/Moore 1 named David Lewis; is that correct? 2 MR. LERNER: Objection. 3 THE -COURT : 4 that have been submitted, Mr. I think it is referred -to in the papers 5 THE WITNESS: 6 THE COURT: Does that mean answer? Yes. 7 A. Yes, I was. 8 Q. When did you retain Mr. Lewis to represent you in 9 connection with the matter before Judge Buchwald? 10 A. Mr. Lewis and I have been friendly for 45 years. 11 originally began consulting him in this matter in 2000 and 12 2009. 13 letter. 14 just can't answer that, but the point is that Mr. Lewis has 15 been with me in this matter for well over a year before that 16 phone call. 17 Q. I don't have a formal retainer agreement or engagement A relationship · of almost half a century, sporadic. · I He's not still with you, is he? THE COURT: 18 19 I Ms. Moore, we're going kind of far afield. 20 MS. MOORE: 21 THE COURT: Okay, your Honor. Excuse me. We're going a little bit far 22 afield. Not a little, perhaps a little bit more than a little 23 far afield here with respect to what this proceeding is about, 24 as I understood it when the initial order to show cause was 25 presented to me. So, why don't we just stick with that. M. BRYMER, RPR, OCR SM0128 docket 55-000128 Case 10-2905, Document 55, 02/03/2011, 200440, Page129 of 192 66 Oberlander-direct/Moore 1 2 There are inferences which the Court can draw with respect to what is specifically in the complaint and whether 3. Mr. Oberlander was aware 0£ what it is he alleged in the 4 complaint. 5 MS. MOORE: 6 THE COURT: 7 documents which were sealed. 8 understood or didn't understand what that means or whether 9 that was his words or his client's words may be something for 10 Yes, your Honor. That complaint specifically refers to Whether Mr. Oberlander me to deal with. MS. MOORE: 11 Understood, your Honor. 12 Q. Mr. Oberlander, Judge Buchwald did issue an order on May 13 13th ordering there be no further dissemination of the 14 complaint or the exhibits attached thereto. 15 Do you recall that order? do. 16 A. I 17 Q. And then the following day she issued another order, is 18 that correct, ordering that the entire complaint be placed 19 under seal and that it be redacted in a fashion to remove all 20 references to the sealed and confidential documents; is that 21 correct? 22 A. 23 . Q. Not by my recollection, no. A. That's distorted. Why don't we take a look at that order. MS. MOORE: 24 25 No. Exhibit 4, your Honor. If you're referring to sua sponte order of approximately M. BRYMER, RPR, OCR SM0129 docket 55-000129 Case 10-2905, Document 55, 02/03/2011, 200440, Page130 of 192 67 Oberlander-direct/Moore 1 three o'clock that Friday, I 2 THE COURT: 3 MS. MOORE: 4 THE COURT: 5 MS. MOORE: 6 MR. LERNER: May I have a copy? 7 MR. SNIDER: Of course. Exhibit what? Four, your Honor. Four? Yes, Judge. 8 Q. Directing your attention to the second page. 9 A. I understand. I misunderstood your original question. 10 If I can correct my answer or you can rephrase? I understand 11 what happened here. 12 Q. 13 ordered the entire complaint to be sealed and that it be 14 redacted to remove any references to the sealed documents and 15 the documents themselves? 16 A. 17 it says pending further order of the Court and a redacted 18 version . 19 I assumed originally it would refer to redacted version. 20 was confused. 21 ordered except that her sealing order is pending further 22 instruction. 23 Q. 24 that also enjoined you from disseminating the sealed and 25 confidential materials and the information therein; is that Did you understand that Judge Buchwald on the 14th To be precise, she ordered the original complaint sealed, My misunderstanding of your prior question was that I Yes, we are in agreement that's what she There was another order from Judge Glasser on May 18th M. BRYMER, RPR, OCR SM0130 docket 55-000130 Case 10-2905, Document 55, 02/03/2011, 200440, Page131 of 192 68 Oberlander-direct/Moore 1 correct? 2 A. 3 on me . personally, but I .. assume that's correct in - sum and 4 substance. 5 to that. 6 Q. 7 redacted versions of that complaint that in fact referenced 8 the information in those sealed documents; is that correct? I don't recall exactly what it said. It was not served You don't have to show it to me. I will stipulate Despite that, Mr. Oberlander, you intended to file · 9 A. I what? 10 Q. You intended to file r edacted versions of that complaint 11 that did reference the information that was in those sealed 12 materials; is that correct? 13 A. 14 the intent to file a redacted version? 15 the moment I received this order because I was told to. 16 held that intent all the way through until the time a few days 17 later when Mr. Lewis told me we may have a problem here 18 because this order may wind up in conflict with Judge 19 Glasser's order, so he would write to Judge Buchwald, which I 20 believe occurred that Tuesday or Wednesday following this and 21 he would write to Judge Buchwald and say maybe -- or maybe 22 call her and say maybe you ought to just stop any uploaded or 23 redacted version until Judge Glasser finishes what he's 24 doing. 25 and said I don't see why there would be confusion, but I I'm sorry, that's ridiculous. You mean did I ever form I formed the intent I And my recollection is that Judge Buchwald wrote back M. BRYMER, RPR, OCR SM0131 r docket 55-000131 Case 10-2905, Document 55, 02/03/2011, 200440, Page132 of 192 69 Oberlander-direct/Moore 1 certainly have no objection to extending my original 2 prohibition against uploading until Judge Glasser is done. 3 that to be absolutely clear here from the moment I received 4 notice of this order telling me to upload I had the intent to 5 do so and complying with it all the way through until the time 6 Judge Buchwald said never mind. 7 Q. 8 that Mr. Lewis actually made to Judge Buchwald stated Brian 9 Herman of Morgan Lewis in an ·email last night stated that Let me back up a second, Mr . .Oberlander. So The application 10 Judge Buchwald's and Judge Glasser's orders are much broader 11 than I understood them to be. 12 we will consider any reference to the exhibits or information . 13 14 15 Further, Mr. Herman stated that contained therein in any way to be a violation of the orders and will seek immediate relief. As a consequence, Judge Glasser's order is a change 16 in circumstances, such that complying with this court's order 17 to file a redacted complaint appears to violate a sealed order 18 of Judge Glasser. 19 The response to that, what Judge Buchwald actually 20 wrote was: While I do not understand how you could have 21 interpreted my earlier orders to permit, quote, any reference 22 to the exhibits or information contained thereini I have no 23 objection to delaying the filing of a redacted complaint until 24 Judge Glasser rules on the sealed documents issue pending 25 before him. M. BRYMER, RPR, OCR SM0132 docket 55-000132 Case 10-2905, Document 55, 02/03/2011, 200440, Page133 of 192 70 Oberlander-direct/Moore 1 My question, Mr. Oberlander, is prior to receiving 2 that letter from Judge Buchwald, it was in fact still your 3 intention to file .. a redacted version of the complaint that 4 would still reference the information that was contained in 5 the sealed documents; is that correct? 6 A. 7 if I formed the intent to violate this order. 8 Q. 9 went out after Judge Buchwald resealed this entire complaint. Of course it is not. That's offensive. You're asking me I did not ever. Mr. Oberlander, there was a courthouse news article that 10 Did you speak to the reporter who wrote that article? 11 A. 12 13 Never. THE COURT: I think the court reporter would like to rest her fingers for a few minutes. Why don't we do that. 14 (Recess taken.) 15 THE COURT: 16 MS. MOORE: 17 THE COURT: 18 (The witness resumes the stand.) 19 THE COURT: 20 MS. MOORE: 21 THE COURT:· Before you proceed, Mr. Oberlander, my 22 law clerk advises in the first place we have no rule in the 23 Eastern District which resembles 21F, we have no Rule 21. . 24 25 THE WITNESS: Are we ready to proceed? Yes, your Honor. Mr. Oberlander. Ms. Moore. Thank you, your Honor. It is not a local rule, it is an ECF rule. M. BRYMER, RPR, OCR SM0133 r docket 55-000133 Case 10-2905, Document 55, 02/03/2011, 200440, Page134 of 192 71 Oberlander-direct/Moore THE COURT: 1 2 I thought I heard you say the Southern and Eastern District Rule 21F. If I misheard, I would 3 - apologize to . you_ 4 THE WITNESS: 5 THE COURT: 6 But we have pulled down "Electronic Case Filing Rules and Instructions" -- 7 THE WITNESS: 8 THE COURT: 9 Not necessary. It should be in there. -- 11 of the United States District Court for the Southern District of New York." There is 10 · no Rule 21F. 11 THE WITNESS: 12 THE COURT: 13 I have the number wrong. Just bear with me. ·· There is a rule, it is 21.4. Certain sensitive 14 personal information should not be included, such as social 15 security number, names of minor children, dates of birth, 16 financial account numbers, home addresses. 17 Question: Is there other sensitive information that 18 I should consider redacting? 19 should be exercised when filing documents that contain the 20 following: 21 individual's cooperation with the government. 22 refer to cooperation agreement. 23 individual's cooperation with the government. 24 25 The answer is yes. Caution And among the list is information regarding an It doesn't Information regarding an There is no 21F and this is the only reference in this document which is 11 Electronic Case Filing Rules and M. BRYMER, RPR, OCR SM0134 docket 55-000134 Case 10-2905, Document 55, 02/03/2011, 200440, Page135 of 192 72 Oberlander-direct/Moore 1 Instructions of the Southern District, 2 edition and apparently we have no comparable rules here. 3 it is information regarding an 4 the government, rtot restricted to a cooperation agreement. 5 August 1st, 2008 11 But cooperation with Why don't you proceed, Ms. Moore. 6 BY MS. MOORE: 7 Q. 8 the version of the complaint that you offered, that you filed 9 in Southern District. Mr. Oberlander, let me show you as a housekeeping matter THE COURT: 10 I'm sharing this with Mr. Lerner. 11 share it with you, when he's finished. 12 want to look at this? 13 14 MR. LERNER: He'll Mr. Lerner, do you Do you have a copy of it? I will look at it after Ms;· Moore looks at it. 15 THE COURT: 16 Go ahead, Ms. Moore. It is 21.4, if it is the same document. 17 Q. Mr. Oberlander, I show you Exhibit 11, which is the 18 version of the complaint. THE COURT: 19 I think the microphone has been turned 20 off. 21 Q. 22 was actually filed in the Southern District. 23 version that you signed; is that correct? 24 A. If this is that version, I signed it. 25 Q. Why don't you take a look, Mr. Oberlander. I've handed you what is the version of the complaint that That's the M. BRYMER, RPR, OCR SM0135 r docket 55-000135 Case 10-2905, Document 55, 02/03/2011, 200440, Page136 of 192 73 Oberlander-direct/Moore 1 A. Yes. 2 I certainly signed whatever I handed in. 3 Q. 4 A. I mean enter it on a computer. 5 Q. Yes. 6 documents that were sealed? 7 A. 8 physically at the keyboard? It is illegible. If this is in, yes. . Did you personally type this document? Every word? Did I type it? Including the words relating to the You're asking me did I have anyone else other than me MR. LERNER: 9 10 It has my signature page on it. Objection, it has been asked and answered. THE COURT: 11 Sustained. 12 Q. 13 current understanding of whether or not you can or should use 14 the proffer agreements, cooperation agreement, presentence 15 report, criminal complaint, information or any other documents 16 that relate to the criminal case against my client in the 17 Eastern District of New York? 18 MR. LERNER: 19 20 Mr. Oberlander, as you sit here today, what is your Objection, your Honor. the scope of the order to show cause. MS. MOORE: It is outside It is also irrelevant. Your Honor, I believe it is directly 21 relevant to what relief the Court should grant going forward 22 and what the order needs to say for Mr. Oberlander to 23 understand that he should not be using these documents or the 24 .information contained therein. 25 MR. LERNER: The only relief that is M. BRYMER, RPR, OCR SM0136 docket 55-000136 Case 10-2905, Document 55, 02/03/2011, 200440, Page137 of 192 74 Oberlander-direct/Moore THE COURT: 1 2 I believe, Mr. Lerner, that it is very, very pertinent for the Court to know whether or not when 3 - Mr. Oberlander filed this complaint- in view of his _testimony 4 that he was familiar with the ECF filing cautionary 5 instructions, that the question is appropriate and I will 6 permit him to answer it. 7 8 Do you want the question rephrased or reread, Mr. Oberlander? THE WITNESS: 9 10 If I ask what I'm confused -- may I ask -THE COURT: 11 Why don't we have Ms. Moore put the 12 question to you again. 13 Q. 14 that you in any way used the proffer agreements, cooperation 15 agreement, presentence report, complaint, information or draft 16 information or any other documents that were filed in 17 connection with the criminal case against my client in the 18 Eastern District of New York in any way, shape or form? Mr . Oberlander, as you sit there MR. LERNER: 19 do you believe Your Honor, I would just like to 20 clarify this, that there's presently an order to show cause 21 that bars him from doing just that. 22 presupposes there's no such order, I think that question can 23 be answered. THE COURT: 24 25 form. So, if the question I'm going to sustain an objection to It is not "did you." At ·the time the complaint was M. BRYMER, RPR, OCR SM0137 docket 55-000137 Case 10-2905, Document 55, 02/03/2011, 200440, Page138 of 192 75 Oberlander-direct/Moore 1 filed. 2 Q. __3 4 Did you understand at the time the complaint was filed that you should not have used the proffer agreements, the ·cooperation agreement, the presentence report, the criminal 5 _complaint that is referenced in the complaint, did you 6 understand that you should not have used those documents in 7 connection with drafting and filing that complaint? 8 A. 9 isn't the law. Of course I wouldn't have understood that because that There is no proscription the way you said 10 there is. You're asking me if I understood that I was legally 11 prohibited from doing what I did. 12 reason I did not is to the best of my understanding in no way, Of course I did not. The 13 -- manner, shape or form were there any court orders of any kind 14 with jurisdiction over me prohibiting it at the time I filed 15 the complaint. 16 Q. 17 matter is under seal, which includes the court appearances, 18 and the documents filed in connection therewith, what is your 19 understanding as to whether or not you have a legal right or 20 ability to use any of those documents or the information in 21 those documents in any way? 22 A. 23 with the encapsulated temporary restraining order reevaporated 24 tomorrow and no other orders were issued that I'm aware of, 25 that I'm not aware of now and my understanding of my legal At this time, as you now know that the entire criminal My understanding -- assuming that the order to show cause M. BRYMER, RPR, OCR SM0138 docket 55-000138 Case 10-2905, Document 55, 02/03/2011, 200440, Page139 of 192 76 Oberlander-direct/Moore 1 right to, quote, use it, unquote -- first, for clarification, 2 may I presume by use you mean use the information, not just 3 the actual physical documents, is that what you _meant: by_ the 4 term use? - - 5 Q. Yes. 6 A. All right. 7 that I have the same right to speak or disseminate them 8 subject to any validly issued, served court order telling me 9 not to, and that I would have the right to object to such a My understanding of my legal right would be 10 court order which, of course, I would respect to the extreme, 11 that there is no order in existence of any kind under Rule 65B 12 or any constitutional standard of due process, Fourteenth 13 Amendment, that restricts me from using them, the information 14 in it, and that there is no court order with which I could 15 have possibly been charged with -- it is coming out -- let me 16 rephrase that . 17 There are no court orders nor were there nor are 18 there now other than the temporary restraining order that 19 prohibits me from using the information I obtained. 20 legal right. 21 the PSR, I stand by what I 22 intention now to request formal permission to uns·eal certain 23 other documents which I presume are there and I would prefer 24 to use them. . 25 That's my Otherwise, with respect to the information in just said, but it would be my So, if that's complex, I apologize, but my M. BRYMER, RPR, OCR SM0139 docket 55-000139 Case 10-2905, Document 55, 02/03/2011, 200440, Page140 of 192 77 Oberlander-direct/Moore l 1 understanding is that there is no nor has there ever been any 2 court order with 'any in personam effect over me regarding any 3 of those documents. 4 Q. 5 is a court order that places this entire case under seal, do 6 you not? 7 A. 8 There is no such ·thing. 9 for almost 70 years. Mr. Oberlander, you understand now, certainly, that there I understand that that court order doesn't run in rem. That has been the law in this Circuit Supreme Court upheld that court orders 10 and such things don't run in rem, they run in personam and 11 constitutionally cannot apply or restrain activities of 12 persons who are not either parties of that action or legally 13 identifiable. · 14 Amendment. Rule 65D, as · well as the First So, to the extent that I presume the Court certainly 15 16 did order the files sealed, that order and its in personam 17 effect does not touch me. 18 obtained them from the court improperly and aided and abetted 19 a court order in breaking a seal, but none of that happened. 20 Q. Doesn't the order apply to the documents themselves? 21 A. Of course not. 22 in personam court orders. 23 in the 2d Circuit. 24 Q. 25 to understand that you cannot use the documents you obtained It certainly would touch me if I There is rib in rem court order. They are I can give you cases to that effect What is it going to take in the form of an order for you M. BRYMER, RPR, OCR SM0140 docket 55-000140 Case 10-2905, Document 55, 02/03/2011, 200440, Page141 of 192 78 Oberlander-direct/Moore 1 on March 3rd from Josh Bernstein -- 2 3 MR. LERNER: Q. Objection. or the information in them? - 4 THE COURT: 5 Ms. Moore. 6 MS. MOORE: The objection is sustained. One more question, your Honor. 7 Q. 8 whether or not you can or can't use documents ordered under 9 seal the same regardless of whether or not they were stolen? Mr. Oberlander, is it your position with respect to 10 A. 11 capacity as an attorney on what the law would be? 12 would be that to the extent that the person receiving them 13 either, A, did not know that they were stolen; B, had no 14 reason to know; or, C, according to the latest Supreme Court 15 ruling actually did know, but was merely a passive recipient 16 of those documents. 17 be used certainly if they contain information in the public 18 interest. 19 to matters of criminal trials. 20 heightened respected First Amendment right of access to 21 documents in criminal charges is to documents containing plea 22 agreements and sentencing arrangements. 23 Are you asking me for a hypothetical legal opinion in my My answer There is a First Amendment and they may And my understanding of such information pertains MS. MOORE: Is that the absolute foremost Your Honor, I have no further 24 questions. I do have an application. Mr. Oberlander 25 referenced a written motion he made to Judge Wood attempting M. BRYMER, RPR, OCR SM0141 r docket 55-000141 Case 10-2905, Document 55, 02/03/2011, 200440, Page142 of 192 79 1 to seal the SDNY complaint and I would like a copy of that 2 written application. 3 4 I also question whether or not the email of Mar ch 3rd . that forwarded those -- the documents was in fact attorney-client privilege. I would ask that it perhaps be 6 provided to the Court in camera for inspection as to what that 7 sentence says and whether or not that is relevant to these 8 proceedings. THE WITNESS: 9 10 THE COURT: 11 MR. LERNER: 12 THE COURT: 13 MR. LERNER: 14 I have no problem. All right. No objection. So ordered. May we forward the motion - - we'll discuss the logistics of the in camera inspection after. 15 THE COURT: Do you want to inquire, Mr. Lerner? 16 MR. LERNER: Yes, your Honor. 17 MR. LERNER: May I approach? 18 THE COURT: Please. i9 CROSS-EXAMINATION 20 BY MR. LERNER: 21 Q. 22 attached to the email we have been discussing, the March 3rd 23 email. Mr. Oberlander, these are the documents that were 24 MS. MOORE: 25 THE WITNESS: Can I have a copy, please? You can have these. I've seen them M. BRYMER, RPR, OCR SM0142 docket 55-000142 Case 10-2905, Document 55, 02/03/2011, 200440, Page143 of 192 80 Oberlander-cross/Lerner 1 enough now. 2 my guest. 3 Q.. 4 what's in the materials? Mr. Oberlander, could you recite for the court reporter THE COURT: 5 6 At least for purposes of what's going on here, be Defendant's A. 7 MR. LERNER:· 8 THE COURT: 9 Correct, yes, your Honor . I don't know how many documents there are. 10 THE WITNESS: 11 THE COURT: 12 THE WITNESS: 13 . THE COURT: 14 THE WITNESS: 15 THE COURT: 16 Can we mark these for identification as There are three. I'm sorry. Three, your Honor. Including the cover page of the email. No, no, these are just documents. Three documents that will be marked collectively as Defendant's Exhibit A. 17 Go ahead, please, proceed. Mr . Oberlander, these documents, they include the 18 Q. 19 document labeled proffer agreement, cooperation agreement, and 20 what we have been referring to as the PSR or presentence 21 investigation report. 22 proffer agreement and qSk you simply whether there's anything 23 on that document that indicates that it is subject to a 24 sealing order of any sort? 25 A. I would like to hand you first the There is not. M. BRYMER, RPR, OCR SM0143 docket 55-000143 I Case 10-2905, Document 55, 02/03/2011, 200440, Page144 of 192 81 Oberlander-cross/Lerner 1 Q. I would like to hand to you the document that is labeled 2 cooperation agreement and pose to you the same question. 3 there anything that indicates. on that that_ it is sµbj ect to a 4 sealing order 9f any sort? 5 A. 6 Ms. Moore considers a separate document which is a DOJ 7 statement. 8 me as he gave them to me. 9 three. Is May I just clarify that attached to this is what These three documents are what Mr. Bernstein gave So, to me these will always be To her these are four. So, I should interpret your 10 question as to referring to both parts of this? 11 Q. Yes, please. 12 A. There is not, no. 13 Q. And just for clarification, Mr. Oberlander, these are the 14 documents that Mr. Bernstein handed to you rather than emailed 15 to you? 16 A. 17 identical to the ones he handed to me. 18 me I have in Mont auk and was not able to go back, but I 19 compared them before and they're identical. 20 Q. 21 investigation report, and ask you if there's anything in it 22 that indicates that it is subject to a sealing order? 23 A. No. 24 Q. I would like you to look at page two and ask you to read 25 the language of that that has been - - that Ms. Moore quoted These are the documents he emailed to me that are The ones he handed to I will hand you what we call PSR, presentence M. BRYMER, RPR, OCR SM0144 docket 55-000144 Case 10-2905, Document 55, 02/03/2011, 200440, Page145 of 192 82 Oberlander-cross/Lerner 1 previously and read it in full, 2 A. Read it all? 3 Q. Into the record, yeah. 4 A. "Restrictions on use and disclosure of presentence 5 investigation report." 6 this presentence investigation report to the Federal Bureau of 7 Prison and re-disclosure by the Bureau of Pripons is 8 authorized by the United States District Court solely to 9 assist administering the offender's prison sentence, i.e., That's bold faced. "Disclosure of 10 classification, designation, programming, sentence 11 calculation, previous planning, escape apprehension, prison 12 disturbance, response, sentence, commutation or pardon and 13 other limited purposes, including deprivation proce.edings and 14 federal investigations directly related to terrorist - 15 activitieB. 16 Bureau of Prisons upon completion of its sentence 17 administration funct.:lon the report must be returned to the 18 Bureau of Prisons or If the presentence report is re-disclosed by the It is policy of the Federal Judiciary andthe 19 20 Department of Justice that further re-disclosure of the 21 presentence investigation report is prohibited without the 22 consent of the sentencing judge. · 23 Q. 24 from the Bureau of Prison, did you? 25 A. Now, Mr. Oberlander, you did not this document No. M. BRYMER, RPR, OCR SM0145 docket 55-000145 Case 10-2905, Document 55, 02/03/2011, 200440, Page146 of 192 83 Oberlander-cross/Lerner 1 MS. MOORE: 2 THE COURT: No further questions. Anything further? 3 REDIRECT EXAMINATION 4 BY MS. MOORE: 5 Q. 6 obtained in person on March 3rd were identical to the ones 7 that you got by email March 3rd were identical to the ones on 8 March 1st? 9 A. Mr. Oberlander, you just testified that the documents you To the extent if comparing them casually would show 10 that. 11 but they appear to be in the -- 12 Q. 13 to be the March 3rd email also included a sealed criminal 14 complaint and a draft or final information; is that correct? 15 A. 16 sealed. 17 Q. 18 Times, right? 19 A. · 20 I will not testify some letter didn't change somewhere, My only question is I believe I understood your testimony No, because I never stipulated the criminal complaint was Only the New York Times seems to believe that. You never believe anything you've read in the New York Well, I believe there is a Santa Claus, but that's the Herald, isn't it? 21 Q·. I t is. 22 A. No, The Sun. 23 Q. My question, Mr. Oberlander, is I'm trying to get the 24 universe of documents that are in fact under seal in the 25 Eastern District that are in your possession. New York Sun. M. BRYMER, RPR, OCR SM0146 docket 55-000146 Case 10-2905, Document 55, 02/03/2011, 200440, Page147 of 192 84 Oberlander-redirect/Moore 1 Do you have a complaint captioned "United States 2 versus Klopsman (ph.) and Doe" in your possession? 3 A. 4 certainly have it. 5 Q. Do you have an information, either final or draft form? 6 A. Bame . answer, S'3.me comment. 7 Q. Do you have any other documents that relate to a criminal 8 case that is filed in the Eastern District? 9 A. I have .a complaint. I don't stipulate it is sealed. Define what you mean by related. I . Do you mean documents 10 the same time that might possibly be under seal as opposed to 11 an 12 Q. Yes. 13 A. Not to my knowledge, no. in the Daily News? MS. MOORE: 14 Your Honor, I ask the Court's temporary 15 retraining order be extended to include the documents we 16 previously didn't know Mr. Oberlander also had but which are 17 in fact also under seal. 18 THE WITNESS: No problem. 19 MR. LERNER: We have no objection to continuing the 20 21 TRO. THE COURT: So ordered. I'll entertain an 22 application to enjoin permanently. TROs are good for ten days 23 unless extended for another ten days. 24 application you might wish to be made is to enjoin the 25 dissemination of those documents permanently. It would seem to me an M. BRYMER, RPR, OCR SM0147 docket 55-000147 Case 10-2905, Document 55, 02/03/2011, 200440, Page148 of 192 85 Oberlander-redirect/Moore 2 We'll object to that, your Honor. MR. LERNER: 1 prefer to do it on papers. THE . COURT: 3 I conducted a hearing with respect to 4 those papers that have been filed under seal and I'm prepared 5 to entertain an application with respect to that. 6 are good for only ten days, as a general rule. 7 they could be extended continually. 8 MR. LERNER: 9 THE COURT: The TROs Of course, May I consult with my client? By all means. (Pause in proceedings.) 10 MR. LERNER: 11 Yes, we object to a permanent 12 injunction with respect to these documents. 13 shown that Mr. Oberlander came into possession of the 14 documents lawfully. 15 secured them from theft. 16 court, he obtained them from Mr. Bernstein. 17 unrebutted. 18 It is unrebutted. The evidence has There is no showing he He did not obtain them from the That's He stands in the same position as a newspaper may 19 receive confidential or privileged documents, similar 20 documents such as these. 21 Amendment protection as, for example, the New York Times or 22 the Washington Post in the reported cases involving such 23 issues. 24 25 We He is entitled to the same First I ref er the Court to Washington Post against Honorable Debra Robinson, 935 F. 2d wherein it was held M. BRYMER, RPR, OCR SM0148 docket 55-000148 Case 10-2905, Document 55, 02/03/2011, 200440, Page149 of 192 86 1 that the Washington Post which had come into possession of, 2 quote, unquote, sealed documents and came into them without 3 obtaining them unlawfully from the Court could use them as it 4 sees fit. 5 We object more specifically particularly to the 6 sealing of the cooperation agreement and the proffer 7 agreement. 8 indicate that they were under seal. 9 Alamite (ph.), where the 2d Circuit held an order which is 10 There's nothing on the documents themselves to I refer the Court to global, globally enjoins parties is of no force and effect. 11 So, your Honor, subject we have stated our 12 objections; We rely on the argument set forth in our letter 13 of May 14th -- I'm - sorry, June 14th. 14 was binding upon Mr. Oberlander. 15 to be binding on the world, it is of no force and effect. MS. MOORE: 16 There's no order that To the extent it may be read We obviously disagree. Whatever 17 Mr. Oberlander may have known or understood on May 10th, at 18 this point it couldn't be clearer that these documents are 19 under seal pursuant to court order. 20 way to impress upon the respondents the seriousness of the 21 case. 22 The Court went out of its At every stage of this proceeding they have continued 23 to assert their right to use the information and the sealed 24 documents despite now knowing in no uncertain terms that all 25 of this has been sealed and they used the attorney-client M. BRYMER, RPR, OCR SM0149 docket 55-000149 Case 10-2905, Document 55, 02/03/2011, 200440, Page150 of 192 87 1 privilege with respect to Mr. Bernstein as a shield and a 2 sword. 3 they misunderstood the court's order. 4 attorney-client privilege. 5 Bernstein represents him. 6 They initially said they couldn't contact him because He -Said it was Then they're saying Mr. Arnold When we called Arnold Bernstein he . said I don't 7 represent him, good luck to you finding him. When asked 8 whether or not Mr. Oberlander understood or believed they 9 could have been stolen, he asserted work product privilege. 10 These documents were stolen from my client and they have 11 no right to be using them, especially knowing they were 12 sealed. 13 We think a ·permanent order enjoining them from using 14 documents and the information they improperly obtained by 15 getting those documents from Josh Bernstein is entirely 16 appropriate under these circumstances. 17 MR. LERNER: Mr. Doe has not testified these 18 documents were stolen and the implication that they were 19 stolen is just about foundation. 20 characterization. 21 THE COURT: I object to the Let me clarify some things. There is no 22 evidence other than the fact that Mr. Oberlander received 23 these _documents from Mr. Bernstein. 24 to Mr. Oberlander, represented to him he got documents because 25 Mr. Doe gave them to him. Mr. Bernstein, according I haven't heard any evidence one M. BRYMER, RPR, OCR SM0150 docket 55-000150 Case 10-2905, Document 55, 02/03/2011, 200440, Page151 of 192 88 1 way or the other with respect to that information. 2 With respect to the presentence report, I am issuing 3 .a permanent ·injunction that the information contained _ in that 4 presentence report is not to be disseminated. 5 question as to whether Mr. Oberlander knew or didn't know 6 whether they were or weren't stolen . It is not a 7 Charmer Industries, in this Circuit, makes it 8 painfully clear that presentence reports are not to be 9 distributed or disseminated or disclosed to third parties. To 10 the extent Mr. Oberlander has possession of the presentence 11 report, I'm enjoining Mr. Oberlander from di_s seminating any 12 information contained in that presentence report. 13 with respect to presentence reports is not directed to any 14 individual, it is directed to the presentence report itself. 15 It is that document which from the point of view of the 16 integrity of the criminal proceeding, the veracity of the 17 information contained in presentence reports, the willingness 18 of persons to freely provide information which finds its way 19 into presentence reports and all the other reasons given by 20 the 2d Circuit in Charmer Industries which make it vital that 21 presentence reports remain in the file in terms of public 22 disclosure which is what I'm basing my injunction on. 23 The order With respect to the cooperation agreement and the 24 proffer agreement, there is no authority which I'm aware of 25 similar to Charmer Industries with respect to cooperation M. BRYMER, RPR, OCR SM0151 docket 55-000151 Case 10-2905, Document 55, 02/03/2011, 200440, Page152 of 192 89 1 agreements and presentence reports, although by implication a 2 presentence report contains an awful lot of information which 3 is gleaned from a cooperation agreement. 4 There's another significant consideration: To the .5 extent that Mr. Oberlander knew, and he obviously knew what 6 sealing the document entails and what its implications are, 7 having made an application to have a document sealed in the 8 Southern District of New York, and in addition to which there 9 was reference made to what appears to be a nonexistent Rule 10 21F, but what he was referring to quite clearly is that 11 caution should be exercised when filing documents that contain 12 information regarding an individual's cooperation with the 13 government which would clearly include a cooperation agreement 14 and would clearly include a proffer agreement. 15 It is not an order, but it is an advice to 16 attorneys. It may be that if Mr'. Oberlander continues, given 17 the information he has with respect to the significance 0£ a 18 cooperation agreement and a proffer agreement and any other 19 information pertaining to the defendant's cooperation with the 20 government and continues to ignore the advice to use caution 21 and not disseminate it, it may be some appropriate proceeding 22 with the grievance committee or some other such proceeding 23 might not be inappropriate. 24 I'm not enjoining it, but I am making it very plain 25 that to the extent that a lawyer knows that the documents in M. BRYMER, RPR, OCR SM0152 docket 55-000152 Case 10-2905, Document 55, 02/03/2011, 200440, Page153 of 192 90 1 his possession came from a file which was sealed and knows 2 that the information contained in those documents is 3 information which might place the life of 4 knows that there is a Southern District notice regarding 5 privacy and public access and advising him to exercise caution 6 in disseminating information relating to a person's 7 cooperation with the government, to the extent he will choose 8 to ignore that caution and proceed to expand on what he 9 believes is his First Amendment or Fourteenth Amendment right, at risk and 10 it is a matter which he may wish to have tested in some other 11 forum administratively or otherwise. To the extent that I haven't been asked yet, this was 12 13 a suggestion I made that an application to that extent may 14 wish to be made but it hadn't been I don't think -- maybe it 15 has been with respect to cooperation agreements and other 16 documents. 17 I am issuing an order with respect to that 18 presentence report and I'm relying on Charmer Industries with 19 respect to that. Insofar as the cooperation agreement and the rest of 20 21 it is concerned, I think I've made my position perfectly 22 plain. 23 MS. MOORE: Your Honor, a number of other documents 24 in Mr. Oberlander's and possibly his client's possession are 25 in fact under seal and I will put my client on the witness M. BRYMER, RPR, OCR SM0153 docket 55-000153 Case 10-2905, Document 55, 02/03/2011, 200440, Page154 of 192 91 and under the 1 stand and say they were stolen, but 2 circumstances I would ask the Court to reconsider having those 3 documents returned to the _Court or the U.S. Attorney's Office 4 so they can be made use of. 5 THE COURT: 6 that? MR . LERNER: 7 8 Mr. Lerner, do you want to be heard on Well, -I have no objection to Mr. Doe taking the stand. THE COURT: 9 I'm not referring to Mr. Doe taking the . 10 stand. 11 that those documents be returned to the United States 12 Attorney's Office and to the Court to the extent that those 13 documents were obtained from a file which was marked under 14 seal and they were sealed documents which were not to be 15 disclosed absent a court order disclosing them. 16 17 18 19 20 21 22 The question was an application to the Court to direct MR. LERNER: They were obtained lawfully from Mr. Bernstein, therefore, we object. MS . .MOORE: Your Honor, Mr. Bernstein did not obtain them lawfully from my client. THE COURT: Excuse me, Ms. Moore. Stop the back and forth colloquy. With respect to that I'll reserve. I will entertain 23 a memorandum with respect to that and I will give both parties 24 an opportunity to do that . 25 With respect to the presentence report I have M. BRYMER, RPR, OCR SM0154 docket 55-000154 Case 10-2905, Document 55, 02/03/2011, 200440, Page155 of 192 92 1 absolutely no hesitation in enjoining any further 2 dissemination and I'll direct the presentence report to be 3 returned. 4 possession, return it immediately To the 5 THE WITNESS: 6 THE COURT: 7 Absolutely. -- to the United States Attorney's Office. 8 9 that you have_ that in your With respect to the cooperation agreement, proffer agreement and any other document which you know was obtained 10 from a file which was marked under seal, I will entertain a 11 memorandum with respect to that and I'll reserve. Are we finished? 12 13 testify. 14 this proceeding. 15 16 Why don't you have Mr. Doe I think that issue is very, very much at the core of In view of the fact it is five after one, why don't we recess for lunch and resume at two o'clock. 17 Two o'clock. 18 (Lunch recess.) 19 20 21 22 23 24 25 M. BRYMER, RPR, OCR SM0155 docket 55-000155 Case 10-2905, Document 55, 02/03/2011, 200440, Page156 of 192 93 1 2 -3 A F T E R N 0 0 N THE COURT: MR. LERNER: S E S S I 0 N. Is everybody present? Your - Honor, with the Court's permis.sion 4 Mr. Oberlander has a correction to make in his testimony and 5 woulct he be permitted to correct something? 6 THE COURT: 7 THE WITNESS: 8 THE COURT: 9 10 By all means. Thank you. What would you like to correct, Mr. Oberlander? THE WITNESS: I don't recall the phrasing of the 11 exact question, but Ms. Moore asked me what were the grounds 12 that I put in my motion to seal when I went in front of Judge 13 Wood ·and I believe she asked me on one or two occasions did I 14 include in my motion notice that there were documents that she 15 says are sealed. 16 answer I gave was that no, I didn't, or I don't recall, and 17 that's correct, but it is incomplete, because I refreshed my 18 memory and what actually happened when I went to Judge Wood's 19 chambers was that her law clerk first read everything and then 20 he came out and asked me to show him the complaint and I 21 generally did. 22 back awhile later and said she wants to see the complaint and 23 I picked it up and showed it to him and I said would you 24 please make sure and tell Judge Wood this is a RICO case and 25 that there are allegations of extreme criminal behavior here We all understand what she means. Then he took the petition in. And the Judge Wood came M. BRYMER, RPR, OCR SM0156 r docket 55-000156 Case 10-2905, Document 55, 02/03/2011, 200440, Page157 of 192 94 1 and that there are documents in here relating to plea 2 agreements. 3 wasn't in the --moving papers, but -it was the equivalent of an 4 oral statement as to the law clerk. 5 the Court. 6 I don't remember the exact phrase I used, but it I didn't want to mislead My complete answer is the written moving papers did 7 not include to my recollection that -- one of the bases for 8 the request to seal was that there was a proffer or a 9 cooperation agreement or PSR, but it was my oral request that 10 the clerk convey to her such similar documents were there and 11 she should take that into her determination. 12 That's the only correction. THE COURT: 13 14 That was it. Did you want to inquire on - that, Ms. Moore? 15 MS. MOORE: 16 THE COURT: Are you ready? 17 MS. MOORE: I am, your Honor. Are you calling Mr. Doe? 18 J 0 H N 19 been first duly sworn/aftirmed, testified as follows: 20 21 D O E , No, your Honor. THE CLERK: called as the witness herein, having Would you please state and spell your name for the record. 22 THE WITNESS: 23 THE COURT: 24 DIRECT EXAMINATION 25 BY MS. MOORE: John Doe, J-o-h-n D-o-e. Sir, be seated. Go ahead, Ms. Moore. M. BRYMER, RPR, OCR SM0157 docket 55-000157 Case 10-2905, Document 55, 02/03/2011, 200440, Page158 of 192 95 Doe-direct/Moore Mr. Doe, did you ever keep any documents in your office 1 Q. 2 that were part of a sealed file at Eastern District of New 3 York, a . criminal case 4 A. Yes, I did. 5 Q. And did you keep them in a file? 6 A. Yes, I did. 7 Q. Was that file marked in any way? 8 A. Yes, it was. 9 Q. How was it marked? 10 A. Personal and confidential. 11 Q. Where did you keep that file in your off ice? 12 A. Bottom left-hand drawer of my desk. 13 Q. Did you keep it locked? 14 A. Most of the time, yes. 15 Q. Were there ever times it was not locked? 16 A. Yes, there were. 17 Q. Like when? 18 A. During the day, if I had to go to the restroom or if I 19 ran to a meeting in the next off ice or if I stepped out for 20 lunch. 21 sometimes during the day it would be unlocked. 22 Q. 23 proffer agreements, cooperation agreement, presentence report 24 information, criminal complaint? 25 A. I 98-CR-1101? locked my desk when I went home at night, but Did that file contain documents along the lines of Yes, it did. I did not remember how many of the items M. BRYMER, RPR, OCR SM0158 docket 55-000158 Case 10-2905, Document 55, 02/03/2011, 200440, Page159 of 192 96 Doe-direct/Moore 1 you just mentioned were in there. It is possible all of them. 2 Q. Way did you keep that file in your off ice? 3 A. I was constantly speaking to my attorneys about my case 4 and I needed to have readily available files regarding that 5 case. 6 Q. Did you also keep that file at your home? 7 A. No, I did not. 8 Q. Why not? 9 A. I didn't want my family to see it. 10 Q. Do you have children, Mr. Doe? 11 A. Yes, I do. 12 Q. Mr. Doe, who is Josh Bernstein? 13 A. Josh Bernstein was an analyst who wo"rked at Bayrock for 14 awhile. 15 Q. Was he fired? 16 A. Yes, he was. 17 Q. Why? 18 A. He kept taking time off and kept submitting personal 19 expenses as business related expenses and eventually the 20 decision was made to terminate him. 21 Q. 22 described marked personal and confidential or any of the 23 documents in it that related to the criminal case 24 9 8 - CR - 11 01 ? 25 A. I have three children. I don't remember the exact dates of employment. Did you ever give Mr. Bernstein the file you just Absolutely not. M. BRYMER, RPR, OCR SM0159 docket 55-000159 Case 10-2905, Document 55, 02/03/2011, 200440, Page160 of 192 97 Doe-direct/Moore Is there any reason you would have given Mr. Bernstein, 1 Q. 2 an analyst at Bayrock, those documents? 3 . A. Absolutely not. Did you consider those documents to be highly sensitive 4 Q. 5 and personal? 6 A. 7 family. Highly sensitive, personal and dangerous to myself and my 8 MS. MOORE: No further questions, your Honor. 9 THE COURT: Mr. Lerner, do you wish to inquire? MR. LERNER: 10 11 With the Court's permission, Mr. Starnoulis is going to question the witness. 12 THE COURT: Sure. 13 CROSS-EXAMINATION 14 BY MR. STAMOULIS: 15 Q. 16 I'm counsel to Jody Kriss and Michael Ejekarn. Good afternoon, Mr. Doe. 17 My name is Starn Starnoulis. Do you know who Michael Ejekarn is? 18 A. Yes, I do. 19 Q. What do you understand to be his relationship with 20 Bayrock? 21 A. 22 23 He's a friend of Jody's from college and he was sourcing looking for deals to introduce to ·Bayrock. THE COURT: Mr. Starnoulis, just to avoid any 24 objections which are going to be made, confine yourself to the 25 direct, okay. The only issue on direct is whether M. BRYMER, RPR, OCR SM0160 docket 55-000160 Case 10-2905, Document 55, 02/03/2011, 200440, Page161 of 192 98 Doe-cross/Stamoulis 1 or not Mr. Doe had given consent to anybody specifically. MR. STAMOULIS: 2 Yes, your Honor. I would like to 3 inquire of the . witness whether my two clients . were ever given 4 the file. 5 THE COURT: Okay. I anticipated, I saw Ms. Moore 6 about to get up and, so, I was anticipating what might be 7 unnecessary colloquy. 8 Q. 9 be, at Bayrock, did you ever have occasion to give him any In your involvement with Mr . Ejekam, whatever that may 10 aspect of that file that you described as being kept in your 11 desk draw? 12 A. No. 13 Q. In your involvement with Mr. Kriss while at Bayrock; did 14 you ever have occasion to give Mr. Kriss any aspect of that 15 file that was kept in your desk drawer? 16 A. No. 17 Q. Did Mr. Ejekam or Mr. Kriss give you any reason to 18 believe that they personally acquired the contents of that 19 file at any time? 20 A. No . 21 Q. Did you ever inquire -- let me take a step back. You said that Mr. Bernstein was an analyst? 22 23 A. I believe that was his official title. 24 Q. What did his job responsibilities entail? 25 A. Generally, to do the financial modeling when we would M. BRYMER, RPR, OCR SM0161 docket 55-000161 Case 10-2905, Document 55, 02/03/2011, 200440, Page162 of 192 99 Doe-cross/Stamoulis 1 look for a deal. He would do the financial modeling on 2 certain things, he would do some follow-up phone calls, 3 follow-up letters, things of that nature. 4 estate development shop and basically assistance to myself 5 or Jody Kriss or any of the other people employed at Bay 6 Rock. 7 Q. 8 maintenance of data of Bayrock files? 9 A. It was .a real Did any aspect of his responsibilities ever relate to He was probably the most technologically advanced of the 10 group, so from time to time I'm sure I've asked and I'm sure 11 members of the firm had asked him to do something to do with 12 their Blackberries or something to do with emails or 13 computers, yes. 14 Q. 15 that you asked Mr. Bernstein to deal with with regard to 16 data? 17 A. 18 suing Bayrock in White Plains and that same question was asked 19 of me and I believe we're speaking of the hard drive. 20 could clarify? 21 time. 22 Q. 23 nature of the -- the specific nature of the projects that 24 Mr. Bernstein would be requested to do with regard to data at 25 Bayrock? Do you remember the nature of any of those somethings I was deposed in a case where Mr. Bernstein is currently If you I may have asked him other things from time to If you'll refresh as to that? I'm not there yet. But, generally speaking, what was the M. BRYMER, RPR, OCR SM0162 docket 55-000162 Case 10-2905, Document 55, 02/03/2011, 200440, Page163 of 192 100 Doe-cross/Stamoulis 1 A. 2 server where all the emails and everybody's correspondence and 3 things of that - -- files are stored. In regard to a specific request I · made of him we have a Files are stored, things 4 . of that nature, and I asked Josh Bernstein to buy a large 5 backup hard drive to make a backup of our files in case of a 6 crash, in case of a systems crash, so we could have a copy of 7 our files. 8 Q. 9 home? Did you ask Mr. Bernstein to keep that hard drive at his 10 A. 11 being asked to leave, 12 Julius Schwartz asking him to return files and what later 13 came to be known is that there was a hard drive · he never 14 returned . 15 Q. 16 out of his own personal funds? 17 A. 18 for his own -- with his own funds. 19 and got reimbursed . 20 own funds without reimbursement. 21 reimbursement for everything, including water. 22 Q. 23 purchasing the external hard drive? Absolutely not. In fact, I -- when Mr. Bernstein was I specifically remember myself and .Do you recall Mr. Bernstein purchasing that hard qrive I don't remember the details. I doubt Mr. Bernstein paid He may have paid for it I'm sure he didn't pay for it from his Mr. Bernstein would like Do you know whether indeed he was reimbursed for 24 MS. MOORE: 25 THE COURT: Objection. You can answer. M. BRYMER, RPR, OCR SM0163 docket 55-000163 Case 10-2905, Document 55, 02/03/2011, 200440, Page164 of 192 101 Doe-cross/Stamoulis 1 A. I'm not sure. 2 Q. These documents you maintained in your desk? 3 - A. I don't remember. Yes. Did you ever have an electronic version of those 4 Q. 5 documents in your possession at any time? 6 A. 7 My previous attorney in my case lived in Florida and it is 8 possible he emailed me or I emailed him those documents with 9 the caveat that obviously any communication between me and him I may have had an electronic version of those documents. 10 was always marked privileged and confidential. 11 me and. my attorney and had nothing to do with Bayrock or any 12 type of real estate related deals. 13 Q. 14 made it onto the email server you asked Mr. Bernstein to copy 15 though this hard drive? 16 A. Possible. 17 Q. It is .your sworn testimony that you did not ask 18 Mr. Bernstein to keep personal possession of that hard drive 19 and maintain it at his home for safekeeping? 20 A. 21 for safekeeping. 22 backup and give it to me, if anything, not to keep for 23 himself. Is it possible those electronic versions of the documents - I don't believe I ever asked him to keep it at his home I remember asking him to make a hard drive MR. STAMOULIS: 24 25 It was between I have no further questions, your Honor. M. BRYMER, RPR, OCR SM0164 docket 55-000164 Case 10-2905, Document 55, 02/03/2011, 200440, Page165 of 192 102 Doe-cross/Lerner THE COURT: 1 Thank you. Mr. Lerner. 2 CROSS-EXAMINATION 3 BY MR. LERNER: 4 Q. 5 told Mr. Oberlander that he stole documents from you, do you? Mr. Doe, you have no reason to believe that Mr. Bernstein I'm sorry, I don't understand the question. 6 ·A. 7 Q. 8 Mr. Oberlander that those documents were stolen? 9 A. I don't know what he said to Mr. Oberlander. 10 Q. Now 11 A. I'm sorry, no, 12 shown the transcript of 13 when he was deposed and he actually stated there, and 14 Mr. Oberlander was his attorney there or was sitting in on all 15 of his depositions where Mr. Bernstein said that he took 16 thousands of documents and brought them home. 17 emails or servers. 18 brought home with him and kept there. Do you have any reason to believe Mr. Bernstein told I actually disagree with that. I was Mr. Bernstein's transcript from Documents, not · Physical documents he claimed he took and 19 Mr. Oberlander should have easily understood he 20 wasn't asked to use his apartment as an off-site storage 21 facility for Bayrock. 22 were stolen by Mr. Bernstein. 23 Q. 24 him holding onto the documents at your request? 25 A. Yes, he should have understood they Aren't there emails from you to Mr. Bernstein discussing I don't remember. I don't remember having those emails M. BRYMER, RPR, OCR SM0165 r docket 55-000165 Case 10-2905, Document 55, 02/03/2011, 200440, Page166 of 192 103 Doe-cross/Lerner 1 back and forth with Mr. Bernstein. 2 Q. 3 you? 4 A. 5 to make a backup. 6 times he held various documents in his possession and his 7 office. 8 personal documents of mine in his possession and I would be 9 extremely surprised if there was any emails or correspondence You would be surprised if there were such emails from Depending on what they said. I've asked Josh Bernstein I've asked Josh Bernstein. He was .an analyst. There were many I have never asked him to hold 10 between me and Mr. Bernstein asking him to hold my personal 11 privileged court documents. 12 Q. 13 description to be a techie, somebody whose responsibility it 14 was to maintain backups? 15 A. 16 from time to time. 17 Q. At your direction? 18 A. Either mine, his own or somebody else's direction. 19 Q. Among the tasks that you directed him to undertake was 20 backing up emails and hard drives; isn't that correct? 21 A. 22 server which had a whole bunch of files on them, 23 emails, yes. 24 Q. 25 isn't that correct? Yes, I would be very surprised. You said Mr. Bernstein is an analyst. Wasn't his job He did a bunch of tech related stuff around the office He was the most technically capable. I asked him to buy a large hard drive and back up our including You asked him to keep that backup drive at his home; M. BRYMER, RPR, OCR SM0166 r docket 55-000166 Case 10-2905, Document 55, 02/03/2011, 200440, Page167 of 192 104 Doe-cross/Lerner 1 A. 2 I remember when he was leaving I asked him to return 3 everything. 4 Q. 5 premises; isn't that correct? 6 A. 7 things in his office and I don't know where he kept most of 8 those things. 9 Q. I don't remember asking him to keep it at his home. If you asked him, you understood he didn't have it on the I didn't know what he has. He had an office. He had You don't know if he had a backup hard drive in his 10 off ice versus at his home? 11 A. 12 office. 13 Julius Schwartz specifically asking him to return everything 14 that was work related. 15 Q. 16 Is it a corner office? 17 during the daytime, would that person be seen by others? 18 A. 19 wouldn't know who - was inside. 20 Q. Does it have windows, external windows - - 21 A. No. 22 Q. - - so one side could be seen from a secretarial station? 23 A. No. 24 Q. So, you testified that you kept your off ice locked at 25 night. No, I didn't. He may have had it at his home or in the I don't remember which specifically. That was when he was terminated. Can you describe for us your off ice? Not necessarily. I remember How is it locked? If someone were to go into that office It was -- if the door was closed you Door and wall. M. BRYMER, RPR, OCR SM0167 docket 55-000167 Case 10-2905, Document 55, 02/03/2011, 200440, Page168 of 192 105 Doe-cross/Lerner 1 A. 2 would come onto the premises after we were all done. 3 Q. 4 the daytime; is that your testimony? 5 A. 6 stolen. 7 form. 8 Q. 9 correct? I kept my desk, not my office, because cleaning staff So, if the documents were stolen, _ they were stolen during I wouldn't know when they were stolen, if they were I know I didn't hand it to him in any way, shape or It could have been on an email server; isn't that 10 A. It is possible, but I'm not 100 percent sure. 11 Q. He was directed by you to keep backups of emails; isn't 12 that correct? 13 A. He was directed to make a backup for me, not ke-ep them. 14 Q. It was not within his job description for which he was 15 hired to keep backups; isn't that correct? 16 A. 17 assist and help the members of Bayrock and the requests they 18 made of him which may have been whatever request they were 19 making of him. 20 were in electronic form, 21 was asked to do something in a tech capacity, yes. 22 Q. You just referred to yourself as a member of -Bayrock? 23 A. I referred to myself -- yes, I was. I'm sorry. No, it was actually in his job description to In fact, many of the things he was creating 24 MS. MOORE: 25 THE COURT: so there may have been a time when he Objection, your Honor. Overruled. M. BRYMER, RPR, OCR SM0168 docket 55-000168 Case 10-2905, Document 55, 02/03/2011, 200440, Page169 of 192 106 Doe-cross/Lerner 1 Q. Please clarify, were you an owner of Bayrock? 2 A. No. 3 Q. What did you understand yourself to be when you referred 4 to yourself as a member of Bayrock? 5 A. A member is one of the people who was at the firm. 6 Q. Were you a partner? 7 A. I 8 Q. What was the purpose of putting your personal emails on · 9 the email of Bayrock; why did you do that? was a partner in deals, yes. I don't believe I did, but in the course of sending and 10 A. 11 receiving hundreds of emails that most people do in a week, is 12 it possible something may have made it in of a personal 13 nature? · Of course it is possible. 14 Bayrock as my personal email? 15 possible it made it in there. Again, I 16 Was it my habit to use No, it wasn't, but it is don't know the specifics. I don't 17 understand the specifics that you're asking about, but, yes, 18 it is possible. 19 Q. Do you know how to use a scanner? 20 A. Yes, I 21 Q. When you said you had these documents and ref erring to 22 the purportedly sealed and confidential documents -- 23 A. 24 the folder was marked personal and confidential. 25 Q. do. I didn't say they were sealed and confidential. I said Did you scan them in yourself or have someone else scan M. BRYMER, RPR, OCR SM0169 docket 55-000169 Case 10-2905, Document 55, 02/03/2011, 200440, Page170 of 192 107 Doe-cross/Lerner 1 them in? 2 A. What do you mean? 3 Q. You said you have them in electronic form? 4 A. I didn't say -- I said may. 5 in electronic form, or Mr. Stamoulis asked. 6 have been. 7 have been communicating electrically. 8 tell you I did not scan them in nor did I have anyone scan 9 them in. You said did you have them I said they may. My attorney was in Florida at the time and we may It is possible. If there was an electronic and written form, I will it 10 would have been from me printing them from an electronic form 11 but never scanning them into a scanner. 12 Q. Why didn't you keep them in a locked safe? 13 A. I did not have a safe. 14 I believed that my desk was my desk and had personal things in 15 that desk. 16 belong to me. 17 I didn't realize I had the need of a safe, especially in a 18 small office where pretty much everybody was very friendly. 19 It wasn't a large corporation with hundreds of people running 20 around. I had a desk that was · locked and I had pictures of my children which I believe I kept my desk locked as often as possible, so ( I didn't think there was a need for a safe. 21 MR. LERNER: Thank you. No further questions. 22 REDIRECT EXAMINATION 23 BY MS. MOORE: 24 Q. 25 represented in court that you had spoken to Mr. Bernstein and Mr. Doe, earlier today during the proceeding Mr. Lerner M. BRYMER, RPR, OCR SM0170 docket 55-000170 Case 10-2905, Document 55, 02/03/2011, 200440, Page171 of 192 108 Doe-direct/Moore 1 Mr. Bernstein had told him that these documents were part of 2 several disks that you had given him. Did you ever give Mr. Josh Bernstein several disks 3 4 that contained 5 A. 6 documents, electronic forms of anything to do with my case, 7 anything to do with the personal nature of my life, especially 8 things that I was afraid of, especially items and paperwork 9 which I believed to be very, very dangerous to my life and the I have never given Josh Bernstein disks, written life of my children, my wife and my family. 10 Mr. Bernstein was one of amongst a few people working 11 12 documents? at the firm and clearly he would be second-to-last person in 13 · my life who I would give copies of documents like that to. 14 MS. MOORE: No further questions. 15 THE COURT: 16 (No response.) 17 THE COURT: 18 Ms. Moore, do you have anything further? 19 MS. MOORE: Anything further? Thank you. You're excused. Your Honor, I believe respondent Jody 20 Kriss is here. I would like to inquire of him if he's given 21 the documents to anyone else or knows anyone else may have 22 them. 23 MR. STAMOULIS: 24 THE COURT: 25 J 0 D Y No objection, your Honor. Ms. Moore, it is your case. K R I S S called as the witness M. BRYMER, RPR, OCR SM0171 I I docket 55-000171 Case 10-2905, Document 55, 02/03/2011, 200440, Page172 of 192 . 109 1 herein, having been first duly sworn/affirmed, testified as 2 follows: THE CLERK: 3 4 Would . you please state and spell your name for the record. 5 THE WITNESS: 6 THE COURT: 7 .THE WITNESS: 8 DIRECT ExAMINATION 9 BY MS. MOORE: Jody Kriss, K-r-i-s-s. Is· that J-o-d-y? Yes. 10 Q. · Mr. Kr.iss, you've heard .us referring to a number of 11 documents, . ihcludirig proffer agreements, a cooperation 12 agreement and a presentence report that were attached to a 13 version of a complaint that was emailed to ·your father on May 14 12th. 15 Are you familiar with this document? 16 A. Yes. 17 Q. When did you first see those documents? 18 A. In connection with Mr. Oberlander sent them to me prior 19 to verifying the complaint. 2.Q Q. 2.1 A, Sounds right. 22 Q. Have you provided those do.cuments to anyone else? . 23 A, No. 24 ·Q. Are you aware of anyone else who is in possession of 25 those documents beyond the individuals that Mr. Oberlander · Was that roughly early May or M. BRYMER, RPR, OCR SM0172 r docket 55-000172 Case 10-2905, Document 55, 02/03/2011, 200440, Page173 of 192 110 Kriss-direct/Moore 1 mentioned earlier today? 2 A. I don't think so. 3 Q.• Earlier Mr. Oberlander testified that the statement in 4 the complaint that those documents were sealed was your 5 statement, not his. 6 realize, but you did verify it. You didn't draft that complaint I Did you know at the time the complaint was filed that 7 8 those documents were sealed? 9 A. No. 10 Q. Why did you verify a complaint that said they were sealed 11 if you had not in fact known that they were? 12 MR. STAMOULIS: u · THE COURT: Objection, your Honor. Overruled. · 14 A. 15 about it, but didn't -- never saw anything that said that they 16 were. 17 Same answer Mr. Oberlander gave. THE COURT: I read about it, heard Speak into the microphone, please. 18 A. Same answer Mr. Oberlander gave that I heard about it, 19 read about it, but hadn't personally seen anything to say they 20 were. 21 Q. 22 you believed they were sealed? 23 A. So, you had no personal knowledge they were sealed, . but I think so. 24 MS. MOORE: · No further questions, your Honor. 25 MR.· STAMOULIS: No follow-up, your Honor. M. BRYMER, RPR, OCR SM0173 docket 55-000173 Case 10-2905, Document 55, 02/03/2011, 200440, Page174 of 192 111 1 THE COURT: Mr. Lerner? 2 MR. LERNER: 3 THE COURT: 4 Anything further? 5 MS. MOORE: No questions, your Honor. You're exGused. Thank you. Your Honor, I have been working with 6 Mr. Stamoulis on obtaining an affidavit from his client who's 7 in Africa. 8 states his other client never saw the version of the 9 complaint, never saw the attachments and never possessed them I believe once I have the sworn affidavit that 10 and is not able to disseminate them any further and did not 11 know they were sealed, I believe there will be no further need 12 for his client's testimony. 13 14 15 His client is in Africa. affidavit which I believe is on its way from Africa. MR. STAMOULIS: We sent it yesterday. 16 and substance. 17 logistically getting it back. 18 I 1 m· waiting to get the He will sign it. MS. MOORE: It is .the sum It is- just a matter of Your Honor, my only other application is 19 I would ask the TRO remain in place until we can file some 20 post-hearing briefs. 21 I would also ask the TRO be extended to two other 22 documents that are under seal in this District, the criminal 23 complaint Mr. Oberlander testified he obtained and what I 24 believe is a draft copy of an information that was also in 25 Mr. Doe's personal files. M. BRYMER, RPR, OCR SM0174 docket 55-000174 Case 10-2905, Document 55, 02/03/2011, 200440, Page175 of 192 112 1 I would further ask that my client's name, John Doe, 2 or any reference to him as John or Doe be replaced with John 3 Doe in this transcript and we would like an opportunity, 4 obviously, to brief our further application for an order 5 directing the return of all the documents that were taken from 6 Mr. Doe's personal files and an injunction preventing further 7 use and dissemination of the documents and the information 8 contained therein. MR. LERNER: 9 We have no objection to continuance of 10 the TRO. 11 we're just discussing the cooperation agreement and proffer 12 agreement which are the subject of this order to show cause. 13 Subject to further briefing we will -- and the other documents 14 referred to by Ms. Moore, we would address these in further 15 briefing. 16 Court, we'll not disseminate these documents in any way. 17 I think the Court already ruled on the PSR, so now Of course, pending on the determination of the I would also like an opportunity -- your Honor, I 18 referred to in questioning Mr. Doe, I referred to some 19 emails. 20 briefings with emails that are referred to. 21 on hand, but I would ask for the opportunity to just submit 22 them to the Court . I would. like an opportunity to supplement these 23 MS. MOORE: 24 one other thing, your Honor 25 THE COURT: I don't have them No objection to that, your Honor. Excuse me. And These are emails from Mr. Doe M. BRYMER, RPR, OCR SM0175 docket 55-000175 Case 10-2905, Document 55, 02/03/2011, 200440, Page176 of 192 113 1 to Mr. Bernstein. MS. MOORE: 2 Your Honor, to the extent that we're 3_ asking the TRO be extended to the two other documents in the 4 - complaint and the information, we've had trouble serving 5 Mr. Josh Bernstein. 6 have access to him, they let him know the order has been 7 extended to those documents as well. MR. LERNER: 8 9 via email. We would ask to the extent respondents I have access to Mr. Arnold Bernstein I think I also have access -- I think the email 10 that Mr. Arnold Bernstein sent to me 11 CC'ed. 12 13 have John Bernstein That's how I could contact him. If the Court wishes to enter an order directing he be served or that I disclose the email address, I'll do that. 14 THE COURT: By all means. 15 Anything further? 16 MS . MOORE : 17 THE COURT: No. Does anybody want to be heard further 18 with respect to what has transpired here this morning and part 19 of the afternoon? 20 MS. MOORE: I do have one further inquiry. As the 21 Court knows, there was a cross motion to be able to obtain the 22 affidavit of Mr. Bernstein. 23 going to be forthcoming and there will be no evidence from 24 Mr. Bernstein. 25 MR. LERNER: I'm assuming no such affidavit is As I indicated, I spoke with M. BRYMER, RPR, OCR SM0176 docket 55-000176 Case 10-2905, Document 55, 02/03/2011, 200440, Page177 of 192 114 1 Mr. Bernstein on the telephone. I communicated by Arnold 2 Bernstein and was told by Arnold Bernstein that Joshua 3 . Bernstein isn't going to cooperate and he's represented by . 4 counsel. 5 Bernstein. 6 be cleared up I suppose when I give over Mr. Josh Bernstein's 7 email address to Ms. Moore. I assumed that meant he was represented by Arnold If I was mistaken in that regard, that would just 8 THE COURT: 9 MS. MOORE: 10 THE COURT: Anything else? No, your Honor. Just so we're clear as to what I would 11 like to have some post-hearing briefs submitted on, I've ruled 12 with respect to the presentence report. 13 other documents which were part of a file that was marked 14 sealed that was pursuant to a court order, the first question 15 is whether that order is on its face clear to the extent that 16 it says -- I'm sorry, I don't have the sealing envelope in 17 front of me -- maybe I do. 18 envelope which provides it is ordered sealed and placed in the 19 Clerk's office may not be unsealed unless ordered by the 20 Court. 21 on its face with respect to documents which are sealed would 22 be enough to inform anybody coming into possession of such· a 23 document that it is what it purports to be, namely, a sealed 24 document conveying with a very clear message that it is not to 25 be for public or general disclosure. With respect to the Document placed in a sealed Whether that order is an order which is clear enough M. BRYMER, RPR, OCR SM0177 docket 55-000177 Case 10-2905, Document 55, 02/03/2011, 200440, Page178 of 192 115 1 To the extent there's some question as to whether it 2 is an in rem or in personam order, I think the law is pretty 3 clear that an order of the Court, . assuming one is aware of the 4 . fact or should be aware of the fact that an order of the Court 5 has been issued, I believe there's authority for the 6 proposition that orders of the Court are to be obeyed and are 7 disobeyed at one's risk. 8 disobedience which needs no further elaboration. 9 matter for post-hearing briefing. 10 I think that is the essence of civil That's a Also, the extent to which .the Court does have some 11 authority to enjoin the dissemination of documents such as 12 cooperation agreements, proffer agreements is the language of 13 that Southern District 14 should be exercised, not a sufficient basis upon which one may 15 enjoin for information regarding a person's cooperation with 16 the government, and the purpose of not disseminating or 17 exercising caution need not be elaborated on. 18 If you want a briefing schedule, I will be happy to 19 provide one. 20 think you need. Give me an indication as to how much time you 21 MS. MOORE: 22 THE COURT: 23 MR. LERNER: 24 25 cite that says caution One week, your Honor. Mr. Lerner. We'll need additional time. Can we have two weeks to respond? MS. MOORE: Will there be simultaneous briefs, your M. BRYMER, RPR, OCR SM0178 docket 55-000178 Case 10-2905, Document 55, 02/03/2011, 200440, Page179 of 192 116 1 Honor? THE COURT: 2 No. I prefer you can submit your brief, 3 Mr. - Lerner w:ill be given an opportunity to reply. 4 him one week to respond. 5 to reply to. 6 7 I w_ill give I don't think there will be anything Mr. Stamoulis, I don't think that you have a dog in this fight. 8 MR. STAMOULIS: 9 THE COURT: 10 MS. MOORE: Happily not, your Honor. All right. Your Honor, if we could just receive the 11 additional email you intended to submit to the Court so we 12 have it. 13 MR . LERNER: 14 THE COURT: 15 Sure. All right . question 16 MR . LERNER: 17 proceedings today are sealed? 18 19 20 21 22 I suppose a collateral MS. MOORE: My client wishes to know whether these Your Honor, all I ask is the name be redacted to change to John Doe. THE COURT: Ms. Brymer, wherever the name of John or Doe appears substitute John Doe for John Doe. MS. MOORE: Your Honor, given the history, I would 23 also ask everyone present in the courtroom be directed that 24 they not advise anyone the John Doe referenced in the document 25 is my client. M. BRYMER, RPR, OCR SM0179 docket 55-000179 r Case 10-2905, Document 55, 02/03/2011, 200440, Page180 of 192 117 1 MR. LERNER: 2 THE COURT: That's fine. Ms. Moore, there is I think an extent 3 even to which -the broad enormous powers of Federal Courts do 4 not extend and I think the limit to which you're requesting 5 that power be extended is beyond the borders of Federal Court 6 power, which is quite enormous, but if exercised carelessly 7 can be quite inappropriate. 8 the world at large with respect to this proceeding, John Doe 9 or everybody here. 10 I'm not directing the court or It seems to me that in addition to purely legal 11 issues there are issues of professional responsibility which 12 are quite significant. 13 rule, with respect to the obligation of attorneys regarding 14 the use of documents which are marked sealed, whatever they 15 may be. 16 relief or not I don't know. 17 explored. 18 a lot of reasons why an order may or may not be issued 19 providing for injunctive or other relief. 20 last request you made it is denied. 21 Anything further? 22 (No response . ) 23 . 24 25 There may be some DR, disciplinary Whether that would provide a basis for injunctive It is a matter which may be I suppose if one thinks imaginably one may think of THE COURT: I'll see you argument -- I guess you do . With respect to the or if you want oral So, one week for a briefing from you, Ms. Moore, one week thereafter from you, and why don't we M. BRYMER, RPR, OCR SM0180 L I docket 55-000180 Case 10-2905, Document 55, 02/03/2011, 200440, Page181 of 192 118 1 set it down for further oral argument a week thereafter. 2 Whatever those dates are. 3 4 Can you give me some dates? the 28th from you. Today is the 21st. _ So, Seven days thereafter, what day is that? 5 THE CLERK: The 5th, which is a holiday. 6 THE COURT: 6th of July, that's going to spoil 7 somebody's Fourth of July weekend. 8 day or two. 10 11 ·Give me a number. MR. LERNER: 9 We can extend it another THE COURT: July 9th, Friday. You've gotten the two weeks you asked me for. 12 Do you want another week, Ms. Moore? 13 MS. MOORE: 14 THE COURT: No. Give me a date for oral argument. 28th 15 of June for Ms. Moore, July 9th for Mr. Lerner and give me an 16 oral argument date. 17 THE CLERK: Friday. 18 THE COURT: Why don't we put it down for oral What day of the week is July 9th? 19 argument the following Friday, which would be the 16th of 20 July ; 21 22 23 Okay. Am I interfering with somebody's vacation? 16th. Okay. We're finished today. MR. LERNER: July Thank you very much. Your Honor, would it be possible to 24 make the oral argument on the Tuesday of the following week, 25 which would be the 20th? M. BRYMER, RPR, OCR SM0181 docket 55-000181 Case 10-2905, Document 55, 02/03/2011, 200440, Page182 of 192 119 1 THE COURT: Is that date all right? 2 MS. MOORE: 3 THE CLERK: 4 MR. LERNER: 5 (Proceedings concluded.) Fine, your Honor. 10:30. 10:30, your Honor. Thank you. 6 7 8 9 10 11 12 13 14 15 16 17 18 19· 20 21 22 23 24 25 . M. BRYMER I RPR OCR SM0182 I docket 55-000182 Case 10-2905, Document 55, 02/03/2011, 200440, Page183 of 192 120 1 2 I N D E X F R E D E R I C K M. 0 B E R L A N D E R 3 DIRECT EXAMINATION 4 BY MS . MOORE : 5 Plaintiff's 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 6 Plaintiff's 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 7 CROSS-EXAMINATION 8 BY MR. LERNER: 9 Defendant's A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 ............................................. 3 ........................................... 79 10 REDIRECT EXAMINATION 11 BY MS . MOORE : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3 12 REDIRECT EXAMINATION 13 · BY MS. MOORE: .... ·.......................................... 83 JOHN 14 15 DIRECT EXAMINATION 16 BY MS . MOORE : 17 CROSS-EXAMINATION 18 BY MR. STAMOULIS: 19 CROSS-EXAMINATION 20 BY MR. LERNER: 21 REDIRECT EXAMINATION 22 BY MS. MOORE: DOE . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 23 ........................................ 97 102 107 J 24 DIRECT EXAMINATION 25 BY MS. MOORE: 0 D Y K R I S S 109 M. BRYMER, RPR, OCR SM0183 docket 55-000183 Case 10-2905, Document 55, 02/03/2011, 200440, Page184 of 192 E X H I B I T C SM0184 docket 55-000184 Case 10-2905, Document 55, 02/03/2011, 200440, Page185 of 192 UNITED STATES DISTRICT COURT SOUTHER..N' DISTRICT OF NY JODY KRJSS and MICifAEL EJEKAM, directly and derivatively on behalf of BA YROCK GROUP LLC, BA YROCK SPRING STREET LLC; and BA YROCK WHITESTONE LLC; Plaintiffs, v. BA YROCK GROUP LLC; TEVFIK ARIF; JULIUS SCHWARZ; FELIX SATTER; BRIAN HALBERG; SALVA TORE LAURIA; ALEX SALOMON; JERRY WEINRfCH; SALOMON & COMPANY PC; AKERMAN SENTERFITT LLP; MARTIN DOMB; CRAIG BRO\VN; DUVAL & STACHENFELD LLP; BRUCE STACHENFELD; DAVID GR.A.NIN; NIXON PEABODY LLP; ADAM GILBERT; ROBERTS & HOLLAND LLP; ELLIOT PISEM; MlCI-IAEL SAMUEL; MEL DOGAN; BA YROCK SPRING STREET LLC; JOHN DOES 1-100; BA YROCK WHITESTONE LLC; BAYROCK CAMELBACK LLC: BA YROCK MERRIMAC LLC; BA YROCK GROUP INC.; and NATIONAL UNION FIRE INSURANCE CO. OF PITTSBURGH, PA.; VERIFIED COl\IIPLAINT JURY TRIAL DEMAJ\'DED Defendants and BA YROCK GROUP LLC, BA YROCK SPRING STREET LLC, and BAYROCK WHITESTONE LLC Nominal Defendants (Derivative Plaintiffs) ORDER TO SEAL COl\tlPLAINT The Complaint, and any amendments filed thereto, are ORDERED sealed, not to be disclosed to the public physically or by any other means, electronically or otherwise, until Plaintiffs and Defendants have had opportunity to arrange for permanent orders of redaction and such other protective orders as the presiding judge shall deem just and proper. March 10, 2010 5 SM0185 docket 55-000185 Case 10-2905, Document 55, 02/03/2011, 200440, Page186 of 192 UNITED ST ATES DISTRICT COURT SOUTHERN DISTRICT OF NY JODY KRTSS and MICHAEL EJEKAM, dirccily and derivatively on behalf of BA YROCK GROUP LLC, BA YROCK SPRING STREET LLC; and BA YROCK WHITESTONE LLC; Plaintiffs, V. BA YROCK GROUP LLC; TEVFIK ARIF; JULIUS SCHWARZ; FELIX SATTER; BRIAN HALBERG; SALVATORE LAURLI\; ALEX SALOMON; JERRY WEINRJCH; SALOMON & COMPANY PC; AKERMAN SENTERFITT LLP; MARTIN DOMB; CRAIG BROW'N ; DUY AL & STACHENFELD LLP; BRUCE STACHENFELD; DA YID GRANIN; NIXON PEABODY LLP; ADAM GlLBERT; ROBERTS & HOLLAND LLP; ELLIOT PISEM; MICHAEL SAMUEL; MEL DOGAN; BAYROCK SPRING STREET LLC; JOHN DOES 1-100; BA YROCK WHITESTONE LLC; BA YROCK CAMELBACK LLC: BA YROCK MERRIMAC LLC; BA YROCK GROUP INC.; and NATIONAL UNION FIRE INSURANCE CO. OF PITTSBURGH, PA.; VERIFIED COMPLAINT JURY TRIAL DEMA_r..'DED Defendants and BA YROCK GROUP LLC, BA YROCK SPRING STREET LLC, and BA YROCK WHITESTONE LLC Nominal Defondants (Derivative Plaintiffs) Plaintiffs Jody Kriss ("Kriss") and Michael Ejekam ("Ejekam"), through their counsel, allege: EX PARTE MOTION TO FILE COMPLAINT UNDER SEAL Petitioners JODY KRJSS and MICHAEL EJEKAM ("Petitioners"), by their undersigned attorney, hereby respectfully submit this Ex Parte Motion to File Complaint Under Seal. NECESSITY OF PRIVACY The Verified Complaint asserts claims in RICO, 18 USC§ I 962(c), predicated on a great many acts of financial fraud committed through certain Defondants' operation ofBayrock SM0186 L i docket 55-000186 Case 10-2905, Document 55, 02/03/2011, 200440, Page187 of 192 Group LLC over many years. The requirements of Bell Atlantic fact pleading and this Circuit's standards for Rule 9(b) required extremely detailed allegations of the underlying facts, such allegations not suited for placement in Exhibits. The Complaint contains private and confidential information including the personal tax and financial information of innocent partners in the RICO enterprise and the enterprise ilselt: also a victim. This is in part a derivative action and the victim enterprise may be caused grave injury by the public disclosure of this information. Finally, there are emails and other communications for which Defendants may claim privilege. While Plaintiff Kriss has the standing as a member of the relevant limited liability companies to waive any privilege, both by his plenary agency authority and his Garner privileges, and Plaintiffs are confident any privilege that might have ever attached was long since waived or vitiated by, inter alia, crime fraud exception, nevertheless Defendants should have some oppo1tunity to make arrangements for the redaction of this material. Consequently, Plaintiffs request this Court order this Complaint, and any amendments thereto, be kept sealed and not disclosed to any person by any means, electronic or otherwise, until such time as both Plaintiffs and Defendants may be able to make arrangements with the presiding judge for the redaction of such private or confidential or possibly privileged material. APPLICABLE LAW While there is a presumption of public access to "judicial documents'' •• i., e. , documents filed with the court that are "relevant to the performance of the judicial function and useful in the judicial process"-- that presumption is rebuttable. United States v. Amodeo, 2 SM0187 docket 55-000187 Case 10-2905, Document 55, 02/03/2011, 200440, Page188 of 192 44 F.Jd I 4 I, 145 (2d Cir. 1995). The Second Circuit has enumerated the steps a district court must take when deciding whether documents may be removed from public access. See lugosch v. Pyramid Co. of Onondaga, 435 F.Jd 110 (2d Cir. 2006). Under the Second Circuit's framework, after dctennining that the papers at issue are, indeed, "judicial documents," the Court must assess the weight to be given to the presumption in favor of public access to such documents. Id. at 119. The Court then must balance the competing considerations supporting confidentiality against the presumption of access, which may include, inter alia, "the privacy interests of those resisting disclosure." Id. at 120 (quoting Amodeo, 71 F.3d at l 050) (internal quotation marks omitted). ARGUMENT The privacy interests of the Petitioner and Respondent should be accorded greater weight than the rebuttable presumption of open access. The Complaint contain information of a highly confidential and sensitive nature, relating, e.g., to proprietary business matters such as salaries, personal tax information of many individuals and confidential business strategies, the public dissemination of which would be detrimental to both Petitioner and Respondent. Fu1ther, many of the exhibits to the Complaint (as well as the discussion of those exhibits in the Complaint) are subject to confidentiality agreements. When considering whether to seal documents submitted in connection with a confirmation proceeding, the Second Circuit has shown deference to parties' confidentiality agreements. See, e.g., DiRussa v. Dean Wirter Reynold>, 121 F.3d 818, 825 (2d Cir. 1997) ("sealing the file" where Ha confidentiality agreement entered into by the parties during the discovery phase ofihe arbitration required that the papers ... submitted to the district court be placed under seal.") 3 SM0188 docket 55-000188 Case 10-2905, Document 55, 02/03/2011, 200440, Page189 of 192 - - - - - - - - - - - - - · - - - - - - - - - - - · - - -····-------··--- - · -- --··-- -----·---·····------·---·-· c.f Lugosch, 435 F.3d at 126. The public release of the confidential information contained in the Complaint and the attendant exhibits potentially could cause serious harm to the future business dealings of both Parties and would be contrary to their reasonable expectations of confidentiality. WHEREFORE, the Petitioner hereby moves this honorable Court to grant this Ex Parte Motion to File the Complaint Under Seal. Dated: March 10, 20 l 0 - Respectfully submitted, Frederick M. Oberlander Counsel for Plaintiffs P.O. Box 1870 Montauk, NY 11954 212.826.0357 Tel. 212.202.7624 Fax [email protected] 4 SM0189 docket 55-000189 Case 10-2905, Document 55, 02/03/2011, 200440, Page190 of 192 E X H I B I T D SM0190 docket 55-000190 Case 10-2905, Document 55, 02/03/2011, 200440, Page191 of 192 JUN. 11. 2010 3:44PM NO. 3748 P. 2/3 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 150 East 42nd Street, New York, NY 10017-5639 Tel: 212.490.3000 Fax: 212.490.3038 tllb111J)' M/11111! • •Doslo11 •ChiCllgo •Dnllas • G1D'r!e11 O(y •Houston •I.m V'll"' •London •LcsAngclcs •MdeflJf N1M York • Orln111lo • PliUnde/pli/a • Srm Diego •San Franc/s<0 •Sta111fbrd • Washingtpn, DC• IV/die Ploh11 AjJll/bJes' •Cof()gtv: •Frar.!ifurl•lif<Xko Clfy • Mu11/cl1 •Porl.r ww11·.wflsonolsor.coru June 11, 2010 VlA FACIMILE UNDER SEAL- (718) 613-2446 The Honorable I. Leo Glasser United States Distl.'ict Court Eastern District of New York 225 Cadman Plaza East Brooklyn, New York, 11201 Re: United States Case No. Our File No. of America v. Fclb: Sater 98CR1101 (ILG) 07765.00155 Dear Judge Glasser: We represent non-party respondent Frederick M. Oberlander. At today's appearance, the Court indicated that it felt that our finn's interpretation of the pending temporary restraining order was overly restrictive, and that the TRO did not bar us from contacting Mr. Oberlander's client to discuss the pending order to show cause. Given the Court's ruling that we have constl.'ued the TRO language too narrowly, we believe that the Court has now - at least implicitly- given Mr. Oberlande1· permission to show us the documents that are the subject of the order to show cause. If we are mistaken, we respectfully request that we be so advised immediately. Additionally, the Cowt indicated that it felt that Mr. Oberlander is subject to the ordel' that sealed the court file in this matter. After today's hearing, I went down to the office of the District Court Clerk and requested a copy of that order1 as I believe Mr. Oberlander has a dueprocess right to at least see an order that Your Honor feels applies to him. However, I was infonned by personnel in the Clerk's office that I could not even see the sealing order. Without the ability to review the sealing order, we are unable to ascertain which terms of the order Mr. Oberlander is alleged to have violated. We request that the Court provide us with a copy of the order. At this time, we are unaware of any order that barred Mr. Sater from disclosing the records or documents to a third-person, that barred a third-person from re-disclosing them to Mr. Oberlander, or which barred Mr. Oberlander from using them to corroborate allegations in a RICO complaint. We are also currently unaware whether the sealing 40:27719.1 SM0191 docket 55-000191 Case 10-2905, Document 55, 02/03/2011, 200440, Page192 of 192 JUN. 11. 2010 3:45PM NO. 3748 P. 3/ 3 Page2 order was some kind of global gag order, who exactly is permitted to see the order itself, and whether the order is binding upon even those who have never seen it. At today's appearance, Your Honor stated that this case was akin to United States v. Charmer Industries, 711F.2d1164 (1983). As we have not seen the sealing order in this case, we can only point out that in Charmer it was the court personnel and probation service - who were subject to the sealing order, in personam - who unauthorizedly disclosed records to the Arizona Attorney General. Here, there is nothing to suggest that the Court's sealing order which we have not seen - was binding upon anyone other than court personnel. Thank you for your attention to this matter. Respectfully yours, WILSON, ELSERi MOSKOWITZ, EDELMAN & DICKER LLP E. (}J!wv rfr!, . . Richard E. Lerner cc: VIAFACIMILE Kelly Moore, Esq. Stamatios Stamoulis, Esq. Frederick M. Oberlander, Esq. WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 4027719.1 SM0192 I.-I docket 55-000192