These notes are taken from the official Court transcripts from the hearing of June 16th 2011
Conrad Murray waived his rights to appearance Pursuant to 977, Waiver of personal appearance.
For Defense, present today was: Ed Chernoff (EC), J Flanagan, N. Gourjian (NG)
For $$ONY: Gary L. Bostwick (GB) from Bostwick and Jassy
For the People: D Walgren and D. Brazil, Deputy District Attorneys
Court: Judge announces all parties present: reviewed and considered motion to Quash filed by $ony and attachments and addenda thereto as well as the response filed by Mr Gourjian. $ony filed its motion late afternoon of the 14th Within the 10-day period; Court was informed counsel wanted to appear because they want additional time.
NG: Had inquired about possible continuance, but dates were not good, after discussions with Mr. Chernoff decided to file whatever response we have and go forward with today’s hearing. In order to provide some light of the Opposition, we have not had time to put together a reply to the Opposition, so we would move to strike Opposition that would be our first position.We are more then agreeable if $ony needs additional time to our brief and put this over. If that is what they want, we are happy to do that. As far as striking our response I think we have right to withdraw out motion, reserve it until a later date.
GB: The nature of the subpoena has changed drastically and we did not know this until Tuesday June 14th. We originally got Any and all recordings of the Rehearsals was subpoenaed, but on the Opposition page 3, it says: $ony began its production from raw footage from two personal cameras and this is all that is requested. We have spent hundreds of hours and put it all in that paper in front of you in order to be able to respond to the subpoena that we got. Now we see something different. Honestly, I can not tell you for a fact $ony has the raw footage from two personal cameras.
I think we should have a right to respond to some of their points and authorities. The Court needs to see how we would respond to things they say about Journalist Shields; both theCalifornia and First Amendment Shield.
We don’t know if we have what they are looking for. We need more time to respond to the Opposition.
Court: has no problem with any of that. The concern is the scope of the subpoenaed material and whether in essence the Defense, through its subsequent pleading, has changed the nature of the Subpoena Duces Tecum. The original subpoena wanted Everything, now they say No we don’t want everything, Don’t rely on what we say. So what is it exactly you want?
EC: It was our understanding from the Preliminary Hearing from Kenny Ortega’s testimony the Raw footage encompassed This is it Movie was taken from just two cameras, which Michael used himself. Our understanding is that was the Raw footage. So when we got $ony’s reply: We are talking about all kinds of cameras that does not comport with the testimony under oath from Kenny Ortega, so that’s where the confusion has come from. We understood the Raw footage that we requested consisted of specific items, and no MORE! We simply disagreed with $ony’s reply because it was different from what was portrayed to us. So, forgive us if the scope seems too great. We believed at the time of the subpoena those writings were consistent, now we have not had time to discuss what $ony actually has. We are not asking for everything. We don’t want all kinds of edited or enhanced and musical numbers. We just want what was filmed before there was a determination the documentary was to be produced. And, if you recall the testimony from Kenny Ortega, he explained how that was.
Court: I still don’t understand. So, this is more then what was recorded on camera?
EC: That’s for $ony to answer. I don’t know if it’s more. I don’t know if there is more then just two cameras. We thought it was just two cameras. Now $ony is saying its more, that is something we did not know.
Court: But that was in the motion to Quash. $ony made it clear there was a lot going on and Defense came back and said: We only want two cameras. So, I still don’t know what it is you want?
EC: Okay, Judge, $onys response disagreed because our understanding is that the Raw footage that we requested was the film MJ took himself, with aid of helpers and Kenny Ortega during rehearsals supposedly to be used by MJ to aid in his choreography and to help with production. That’s what we believed the raw footage consisted of so our response to $ony when they say there are 20 boxes didn’t make sense. We were told the raw footage was 100 hours, which is what Kenny Ortega said was from two cameras. Now, they tell us there is 100 hours, but from different cameras. So our response was: that’s not how we understood it from the testimony from the Preliminary Hearing. We are not asking for them taking the two cameras, creating whatever they do with it, splicing it, putting it in different digital forms, putting it in taped form. We just want what was provided to them of those cameras that were there recording MJ, essentially the period of time before his death. And if that is more then two cameras.
Court: What is that period of time, beginning of rehearsals?
EC: Yes. Now if there is more then two cameras, then obviously the footage from more than two cameras, then we want it all. But at the time we made our response we were under the assumption, as we were told by KO, there were literally two cameras: The footage came from two cameras.
Court: Mr Bostwick?
GB: There were more than two cameras! There were those two cameras, but I am not sure yet if we have those. The clients are looking. That material may have been transferred in the raw form to $ony, but several cameras were used! And now I don’t want to be insulting, but what the Defense is talking out to the both sides of his mouth. He says he wants everything, then he says he wants just the recording of the two cameras, and when he said that, he had looked at our response, so he already knew there are 20 boxes with 100 hours, so in the Opposition, which is a response to us, they say just two cameras. If we have those, we can make arrangement, but consider our concerns which I would like to go into further after this part of the discussion.But if they want everything then our motion stands the way it is, our motion is to the original subpoena.Mr Goujian and I talked on the phone when I first told him what there was. I said there is tons of material, no one until Tuesday at 2.50 said we are really looking at two cameras that MJ took to rehearsal, that we have not heard so I am confused. In fact, what they want is everything! And we are right back where we started. Now I would like to talk about the confidentiality concerns.
Court: We haven’t got there yet!
Court: What does the Defense want?
EC: If everything to $ony means all the raw footage that was filmed no matter how many cameras, then yes we want that. But my understanding when we made our response to $ony was that’s not what existed, they claim not on cameras its in H.D, CAM, S.R DEIGI, BETA CAM, DVD form!
Court: Slow down. I don’t understand.
EC: I don’t myself! This is the information they provided us, that this is vast amount of information which they say they have wasn’t downloaded from 2, 3, 5, cameras. We just know from the testimony from Kenny Ortega (assuming he was telling the truth) where this movie came from! Now they are saying it is multiple cameras taken by A.E.G. or Columbia or $ony or whomever, then obviously we need Raw footage, that’s exactly what we are asking for. In our response to their complaint it was oh so expensive for them is my understanding is they downloaded it from two cameras.Once again they haven’t had time to respond the way we did. We have to address the Prosecution that with other writings and raw footage that is possessed by
$ony! If it’s more than two cameras then we are asking for it. But right now we
haven’t been told that it is more then two cameras.
Court: Oh, I think you have been told.
EC: $ony did not take that film themselves. They did not film the procedure at the rehearsal, so I don’t know if AEG did. We don’t know yet, but yes everything would include the raw footage, 100 hours; 100 hours even in digital, high def, digital is a hard drive of a certain size, so.
Court: Just a moment everything does not include..
EC: When you download digital information, if you are making a movie, okay, you are going to take that digital information and do things with it if you are a movie maker, that’s what $ony did in This Is It. Why they did it and what they did we are not interested in that stuff. We just want the raw footage.
Court: As a lay person when I hear Raw it means footage that was taken whether it was downloaded or not? Blah blah blah….
The Subpoena is overbroad. It doesn’t say only downloaded or not. I think it just says Raw footage. I need guidance, Defense? $ony? Both sides are going to get guidance from me! As a lay person, clarifications need to be made of certain issues. Not going to strike response by Defense.Motion by $ony is well crafted raising constitutional and statutory issues and fact specific matters as well.
Defense was well crafted Motion as well. Any Motion to strike response by Defense is Denied. $ony have adequate time to address the issue, but I still don’t know the scope of the Defense subpoena.
Defense should particularize to $ony what exactly it wants. Defense should modify the subpoena. I do not know if there are only two video cameras or film cameras or some other type of cameras. I need to know what information is available about ALL cameras used at rehearsals. I am restricting the Defense as I have Prosecution to the two days before Mr Jackson’s death.
I don’t know the definition of HD. CAM, SR that is in the Motion. I need some information about data drive storage devices. I would like to know if the actual original tapes exist? $ony alleges all footage is on data drive from different cameras stored in 20 boxes. Are these boxes numbered, dated? I am amazed by what is submitted by $ony that there is no way to tell what footage is in what box. Are there indexes? indices?
Court: $ony has said I should rid myself of the idea that the materials will be the type as
when we go on a trip and take camera or video.
Is anything labeled or is it in disarray without being organized?
I am interested in this because a film was made from these materials and I would think it would be in a more organized manner than just existing out there in the Cyber Universe.
So, $ony has said the materials are on recorded media on data drives from different cameras. I don’t understand the meaning of this. If there are multiple cameras, how many more than two and can we disguish between the various cameras?
I can inform Sony of my thoughts on the First Amendment and Shield Law Issues that were raised. I am unimpressed by the allegations that the materials Subpoenaed are somehow covered and Priviledged under the Newsperson Priviledge Shield Law under the Evidence Code in California. I do not believe that is the case nor believe under these circumstances that there is a First Amendment Issue that would prohibit the Defense from receiving these materials if they are otherwise entitled to receive them.
I will hear more; however, I do not want to share with the parties my position on both of these issues. I do not see the Subpoena as implicating a Newsperson Shield Law Priviledge under California Law or under existing U.S. Supreme Court Precedence.
I think the Defense-$ony has misunderstood the U.S. Supreme Court Case in Branzburg vs. Hayes (408 U.S. 665 and California Constitution, Article 1 and 2, Sub. B and the Evidence Code, Section 1), but I am willing to listen to more, but I don’t see that as the issue in this caseI am certainly sensitive to turning over the materials that could be thought of as a fishing expedition.
I am also extremely sensitive to the Confidential issues involving $ony and the Michael Jackson Estate, as well as the possibility that if the materials are provided and out there, there could be consequences to $ony and the Michael Jackson Estate. I recognize those issues; however, if I were inclined to have $ony turn over the materials to the Defense, I would not want the Defense to be able to just do with it what it wants.
I need some additional guidance from Counsel on the issues I raised and the issues that Counsel has raised and I certainly want to give $ony the opportunity to reply to the issues raised by the Defense in response.
Court: Does $ony want to address confidentiality?
GB: What the Prosecution will be showing comes from the film that’s already been published. It’s out there. The raw footage is out scenes that can be used for the future. Example: Anniversary type production. If it becomes public record, we require and order that the Defence or Prosecution will not show it to anyone.
But if it becomes an Exhibit, we have a problem. Mr Hotz, Declaration, Page 3 talks about multiple cameras and data, we can provide what is necessary, but are concerned if it lease and goes viral on internet sites, the value will be demised to a significant extent.
Court: In this case we are dealing with criminal prosecution, not civil, copyright or trademark case. The District Attorney made a powerful argument that the Court allow them to play for the jury certain segments of the movie because it disputes here among the parties as to the mental and physical condition of the Deceased. I accepted that. If the Defense feels there is material out there that helps them, then the due process and fair trial consideration distinguishes that in this type of a case. Also extreme interest is the contractual provision that in developing any material or any films that the descendent MJ not be portrayed in a Quote: Negative LightSo, the People seek to have certain material to establish the decedent in a positive light. One would not expect that the film would show anything that might be regarded as Negative as to Mr Jackson and that is exactly the Defense’s theory. There may be Negative.
GB: I did not think that. I do not want to get into a fight between the two sides. We are aware the Defense has certain constitutional rights. In the media business we do that all the time with respect to Voir Dire and other things like that. But, there is a Gordian knot solution. I never thought I could bring it to your attention but will mention it. If the Court visits the ruling that This Is It can be shown when Mr Ortega is on the stand, this entire situation with respect to threats upon the rights that the Defendant disappearedCourt: Maybe, maybe not! I can just rule no side is permitted to show the Movie, but that may not be satisfactory under the Constitution
GB: It may not, but I did that with certain amount of difference, but it may be implicated at some point in time.
EC: Defense is sensitive to $ony’s rights as $ony is concerned about Dr Murray’s due process rights. I am concerned about their Intellectual Property. There has to be ways we can come together and protect both interests.
Court: Good. I will leave it up to you to figure it out. Please take a look at another not cited by either party. It’s very interesting. It’s from the Second Circuit Court of Appeals from January 13th, CHEVRON CORPORATION VS BERLINGER, 629 FED. 3rd 297 dealing with Production called Crude. It addresses certain allegations Shenanigans involving The Ecuadorian Government, Chevron Corporation, etc.. There is some powerful language from the Judge. I am ware and value decisions from the Federal Courts, so please take a look.
Can we address the issues at hand by next week? It seems like a short time; I am jammed with trials, blah blah blah.
GB: I have Graduation to attend Friday next week
ALL PARTIES DISCUSS WHAT DATE THEY CAN NEXT ATTEND HEARING. JUDGE ASKS MR WALGREN IF HE HAS ANYTHING TO ADD? NOTHING TO ADD OR SAY. DATE SET FOR NEXT HEARING:
JUNE 24TH 9.30 A.M..
BLOODY GREAT!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!TeamMichael note: