RationalWiki:Kitzmiller v. Dover annotated transcript/P013

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Day 3 (28 Sept 2005): Afternoon Session - Chambers discussion of reporter subpoenas

Section 1 (The following discussion occurred in chambers:) THE COURT: Let's go on the record. We are in chambers, and this is the matter of Kitzmiller, of course, versus Dover Area School District. We have assembled as planned with respect to the issue of certain subpoenas that have been issued to reporters Joseph Maldonado and Heidi Bernhard-Bubb. Present in chambers are counsel for both the plaintiffs and the defendants, and in addition to that, let me ask that you enter your appearances specially, presumably as counsel for the individuals we referred to in our orders collectively as "reporters." MR. BENN: I'm here, Niles Benn, on behalf of both of the reporters, Heidi Bernard-Bubb and Joseph Maldonado. And with me is Terance Barna, an attorney in my office, as well. THE COURT: All right. Now, previously, on September 12th, the Court entered an order which went to the motion for reconsideration. That related specifically to -- filed by the reporters. That went specifically to our August 2nd order which, in effect, said that the reporters would have to testify at certain depositions. Subsequently, the reporters were, if memory serves, approximately eight days ago, subpoenaed to testify by the plaintiffs in the case-in-chief. Yet another motion to quash or for alternative relief was filed by the reporters through Mr. Benn's office. By our order of last Thursday -- the date escapes me, I think it was Thursday -- the Court denied relief in that matter. The Court was advised that yesterday, on September the 27th, the reporters, both of them, showed up at the appointed times for their depositions as appropriately scheduled by the defendants, and I'm advised -- and I'll correct this if I'm wrong -- that both reporters cited the reporter's privilege that they consider to exist under the First Amendment so that they would not answer any questions at those depositions. We're brought here today by that, as well as the fact that I presume you're here because the reporters have been properly subpoenaed to appear in the plaintiffs' case-in-chief. Now, have I mischaracterized anything from your standpoint? MR. BENN: No, everything that you said is correct, Your Honor. THE COURT: Now, the most salient question then is, with respect to the reporters' appearance today, is it your understanding that the reporters are intending to invoke the same privilege cited by them yesterday, if called, when called, to testify by the plaintiffs? MR. BENN: Yes. THE COURT: All right. MR. BENN: But that's the reason why I had asked if we could have this conference. THE COURT: The floor is yours. MR. BENN: Thanks. I'm not here to discuss law. I think we have discussed the law ad nauseam with respect to briefs, argument. I certainly understand the opinion and orders that have been rendered by the Court, and I appreciate them. And I don't want there to be a misunderstanding in terms as to this case being wrongly focused. And what I mean by that, with regard to all of you in this room is that we've got approximately 40 people from the media that are observing this trial in the courtroom, plus outside of the courtroom. In speaking for myself, it would be my humble opinion that if these parties were called to the stand to testify and refuse to testify, as I just indicated to you, Your Honor, that I think the focus of this trial all of the sudden isn't addressed as to intelligent design, but rather the media is going to be very much concerned in terms as to these stringers, not full-time employees, not employees at all, standing up for what they think is right. And I really truly believe in my heart of hearts the focus gets misdirected. I really truly do mean that, because I don't think that should be the focus of this case. As a result of that, Mr. Barna and I have spent days in an effort to try to see if there was a means by which we could somehow ameliorate the problem so that, in a certain sense, everybody gets what they want. I clearly will not get what I want, because at the end of the day, if I agree that my reporters are going to testify predicated upon something that I want to propose here, that's more than I would want, because I stand by the fact and they stand by the fact that there's a reporter's privilege here. They refuse to testify at a deposition, and my suggestion to them was that if we were capable of resolving something as a result of this conference, that they would then attend a deposition, because I believe the defendants would have a right to cross-examine them or otherwise examine them prior to them taking the stand. And based upon that, they would then testify in court. But we have several issues. One is that when we filed our motion to quash last week, quite honestly, we thought we did it in a timely fashion because we filed it only after we were served with the subpoena. Your Honor summarily dismissed that motion to quash, so, in effect, if my reporters were to be called upon to testify today by the plaintiffs, they're undressed. They've got no protective order at all. They're just regular people. Because the order I believe that you had previously entered related to the deposition and not related to their appearance in court. So that raises an issue for us because clearly we would otherwise object to them taking the stand under the order as it currently exists or the motion that you're -- your position that the motion to quash could not stand. I interpret the order and the amended order to mean that Your Honor, in a sense, has addressed them as fact witnesses. I don't think you actually come out and use the word "fact witnesses," but as one reads the order, that's the implication. And you initially had indicated that you did not feel that the reporter's privilege stood in this kind of a case. These two newspapers respectively go to approximately 89 municipal meetings in terms of 89 different municipalities and school districts. And ironically -- in a sense, I have to commend both Mr. Maldonado and Ms. Bernard-Bubb because, again, they're paid per story. They get anywhere between $40 and $50 a story. They might make $300, $400 a week if they write X number of stories, and that's it. And the stories that they write predominantly are municipal stories. She's a full-time mom. She's breastfeeding. She has a seven-month old child, and so she works at night when her husband is at home. He's a schoolteacher. Mr. Maldonado owns a little deli in the market in York, and he home-schools his son, his youngest son who has learning disabilities. And he's been doing that for the last three years. So this is just supplemental income to them because they're not very wealthy people. But yet without a lot of education in terms of journalism, they believe that what they're standing for is the right thing. I don't have control over them as I would an employee of the Daily Record or the Dispatch because they are stringers and independent. So having said that, their fear is that because of all those municipalities that they cover and the school districts that they cover, that at least in the Middle District Court, should a matter come up similar to this case, then they are exposed as a fact witness. I've related to them, quite frankly, this is the first case we've ever had in federal court in the 15 years that I've been doing newspaper law, and most of our cases are in county courts, and so, you know, there's a different issue there. But having said that, the concern that I have is that there is a precedent being set in the counties that these people otherwise work. So how do I make it better? Well, we provided an affidavit, and that affidavit indicated that we, if called upon to testify, would validate the authenticity of the articles that were written. We did that, in effect, to offer to both sides so that we wouldn't otherwise have to testify. Accepted by the plaintiffs, not accepted by the defendants. Defendants wanted to have the right of cross-examination. And at the time when you wrote the original order and you used the words "perceived, saw, and heard," we were concerned, as you well know, with the word "perceived" in terms as to what's the thought process. And there was dialogue on the phone amongst all of us, and you made it very clear that you did not want any testimony that would otherwise relate to biases and prejudices. And, in fact, when you reviewed the notes of the reporters, you had also indicated that your review of Heidi Bubb's notes and the e-mails clearly evidence that there was no bias in the writings, those writings. The concern that we currently have is that the order reads, in effect, that they have to testify as fact witnesses, predicated upon my interpretation, as to what is otherwise unpublished material so that, for example -- just using this for example. THE COURT: That's not my intention. MR. BENN: No, no, but I -- THE COURT: Well, that's not my intention. And I wanted to let you go as far as you could, and I think I have to interject and I want to interject and I want to be clear, because I think it's important that I do that. Let me address a couple points that you made. First of all, I understand and deeply respect the position that you're in in this case. And by saying that the motion was untimely, it was not legally untimely, it was untimely in my view only in the sense that it came, as I said, on the eve of trial, when we knew that there was going to be an issue with respect to their testimony at trial. It was an attempt to bring this to a head. It was successful in that respect. It was not successful in solving the problem, but it was successful to bringing it to a head. So to that extent, I succeeded, good, bad, or indifferent. With respect to the point that you made as it relates to their testimony at trial, that is a very valid point. However, I will tell you that the sense of my opinion as it related to their deposition testimony and as reconsidered and as honed in the reconsideration, was that it was meant to apply -- the general thrust of that, the protections, if you will, in that opinion were meant to apply in the same sense to their testimony at trial, if they chose to testify, and they would be protected in every way by the Court, and they would not be questioned in the broader sense. So it would not revert back to an unprotected realm, if you will, at the time of trial. To be as clear as I can be, at issue in this case -- and I can't particularly be concerned about precedential value. I understand your concern in that regard. I have to try this case the best way that I know how. The concern in this case, and it is a vital concern by all parties, is that we have, as you well know, to restate the obvious, we have newspaper articles within which there are quotes from individuals. Those quotes go, at least in one sense, to the purpose behind the policy that was enacted by the Dover School Board. The simple issue here, because it is the Court's understanding that these individuals have denied that they made these remarks, is from the plaintiffs' standpoint how can they get something that is, in my view, on the purpose test, which clearly goes to the truth of the matter asserted, how do they get these newspaper articles into evidence? Well, they can't, in my view, without the reporters testifying. The defendants might say that even with the reporters testifying, they can't get them in. I think that's their argument. But at the very least, in my view, and I think the plaintiffs might agree with this, the reporters would have to testify. I didn't say this strictly in the opinion, perhaps, but my opinion was not meant to allow the testimony of the reporters to go in any way, in particular, outside the four corners of the affidavits rendered by the reporters. I can't say that to the word, and that's why the opinions were crafted the way that they were. The Court has to have some discretion on the questioning. But I was as clear as I could possibly be that what is at issue here would be, for example, the particular events that the reporters wrote about and questions such as -- simple questions, did they attend the meeting, did they hear them say the comments, did they write the story immediately after, did they take notes at the time of the meeting. I thought my opinion was clear in that regard, and as you appropriately characterize, no questions as to bias or motivation or reasons to misrepresent quotes would be allowed in. There I believe we would decidedly fly in the face of established case law. I did not view and do not view the law as providing that there is some exhaustion requirement, although I understand some cases have said that. In this particular fact situation -- and I do think, I will say, on the issue of precedent, you can distinguish cases of -- and I'm not so sure I would be as fearful as some might be as to precedential value. I think this case is somewhat distinguishable, and I don't know that a judge in another situation would knee-jerk allow this type of testimony. We are in a very unique situation here, and that's what we have. Finally, the last thing that I want to do -- I'm answering soliloquy with soliloquy here. I'm not sure if this is a dialogue. Finally, I am acutely cognizant of the fact that this trial has abundant media coverage, and it is surely not my intent to force a constitutional confrontation with two reporters and to create a side show that we don't need to. That's why we're meeting in chambers. But I'll tell you that if it's their persistent position that they don't want to testify, then we'll go on the record -- now, I'm not going to put them on the witness stand. I don't think it's necessary to do that. I would bring you and the reporters, I will tell you, to the bar. I will swear them in, I will have them sworn in. I will ask you the question whether they're going to testify. I will allow them to speak for themselves on that point, and then we'll decide what we're going to do at that point. I don't know what else to do, but I'm not going to go through the charade of having them take the stand and assert, you know, as articulately as they can the privilege that they believe that they can avail themselves of. MR. BENN: That's fine. THE COURT: I interrupted you, but I think it was necessary to do that. MR. BENN: Well, let me share with you why I have the issue that I have. About a week and a half ago I had a telephone dialogue with Eric because I had proposed to Eric the possibility that in light of your most current order and because you took out the issues of biases and things of that nature and because we're going to be called to trial by Eric, that maybe he should be speaking to Pat to see whether they would be willing to accept the affidavit in lieu of the testimony. THE COURT: I think we're beyond that. MR. BENN: Well, and then what happened was, we had a conference call, Eric, Pat, several others in Pat's office and myself and Terry. They indicated that they would not. And then in the course of that conversation, the defendants counsel had stated, for example, we would like the opportunity to ask if they heard Mr. So and So say something, why didn't they write that. That's what I'm concerned about with respect to -- THE COURT: I'm not going to allow that question. MR. BENN: But you weren't at the deposition, meaning you don't know that that question wouldn't be allowed and quite frankly yesterday you were in trial. THE COURT: I said, though, very clearly in the last order, I thought, in the September 12th order, that I would be available. And I thought, when I heard that the reporters, quite frankly, appeared for depositions, that when I was on a break, I was going to hear an accumulated list of questions that were objected to and that I would have to rule on those questions. Now, I don't have time to preside over a deposition at this late date. And I know that you respect that. You're experienced counsel and you know that. I do know from my private practice experience that I was extremely loathed to get a judge on the telephone in mid-deposition. That could be one of the most unhappy experiences that a lawyer would have. MR. BENN: You got it. THE COURT: Depending on the time of day and the personality of the judge. MR. BENN: Especially after your last opinion on my case, I don't want to call you at all. THE COURT: As you see, I'm far more genial than I express in writing. What I invited by that opinion, though, was that I would be available -- and I believe in an issue that is as important to the reporters and to you, as their counsel, as this, it is appropriate for you to stop a deposition on a question like that, instruct your witness not to answer, and allow the Court to rule on it. I was inviting you to do that. Now, I understand what your reasons are for not doing that, and I think you can do that. Now, if you're telling me that you have problems with certain anticipated questions but not others and if you're telling me that the reporters would not exercise the privilege if they were kept roughly within the confines of their affidavits -- MR. BENN: I go beyond that. I'm willing to have them testify as to what they wrote in the article and basically forget the affidavit. THE COURT: That's fine. MR. BENN: That means everything that's set forth in that article. THE COURT: Well, then I think we've clarified that point. Then I think you should reschedule the depositions and try to do that. MR. BENN: Well, if I can interject -- I mean, this is kind of like my last hurrah. THE COURT: We could only hope not. MR. BENN: It depends what happens next week. Because we don't have an order with respect to trial testimony -- and we don't, except for the fact that, again, they're naked. THE COURT: I'll produce that order, if necessary. MR. BENN: Well, let me share with you where I'm coming from, because I think what I've done here -- and obviously I can't do your job. But what I'm proposing here, if you could just evaluate it. THE COURT: Depending how long this trial goes, you might be my guest in terms of doing my job. MR. BENN: All I'm doing is adding something to what it is that you basically have already written. And if I could just read this. You have no idea how long it took us to write this. Because I think it does exactly what you just said. It says, Wherein an affidavit is provided in lieu of testimony to support a newspaper article or newspaper articles, the reporter shall be obligated to testify as to the facts set forth in the articles, i.e., what was seen and heard as related in the newspaper articles. By doing so, the reporters would be verbalizing the contents of said affidavit -- I think, actually, they were your words when we had the telephone conference -- by testifying as to what appears in the newspaper article or articles, unless such affidavit is otherwise accepted by all parties as validating and authenticating the contents of the newspaper article or articles in issue. Meaning if they accept it, it becomes moot. However, no testimony shall relate to unpublished material or information or to the reporters' motivations, bias, mental impressions, or other information extrinsic to what the reporter saw and heard, and the reporter shall not be obligated to reveal any confidential sources. What I've tried to do here is to say, they'll testify as to everything that appeared in those articles. And how I then distinguish this case from maybe my next case is, where an affidavit is provided and the Court or the parties don't accept the affidavit. What I've done is, it says that there's no extraneous unpublished material questioning. That's the clarity that I need. And then, quite frankly, my mindset is, if the issue of the defendants is that we were biased in our reporting because we either misquoted somebody or whatever, well, this isn't a jury trial. You're trying this case. You're either going to believe the reporters or you're going to believe Mr. Buckingham or Mr. Bonsell or whomever when they say, I didn't say that. But my concern is that I have to have some degree of certainty by your order that they can't ask any questions as to unpublished materials. THE COURT: Are you suggesting that this language should apply to both the depositions and the trial testimony? MR. BENN: Meaning if you could adapt language similar to this for the trial testimony and I agree, I have no problem in them being at a deposition prior to trial with the same kind of language relative to that. I will appear at a deposition prior to trial. I would like to do that, because of my own health conditions, maybe on Friday in terms as to a deposition, if that works within anybody's schedule, and then maybe the latter part of next week. Because what I did was, I put my surgery off until next Friday to get this done. THE COURT: Well, the problem Friday, I assume you fellows are getting out of here on Friday, but I'm not sure of that. MR. BENN: Or we could do it Monday. I mean, whatever works. THE COURT: Well, we do have Friday morning off. MR. GILLEN: Right. THE COURT: Although you may have something scheduled in terms of pretrial planning. I'm not sure. Do you know? MR. MUISE: I have a plane flight. MR. WHITE: I was not going to be here. THE COURT: Do we need the whole team? MR. WHITE: I was the one going to take the deposition. MR. BENN: Yeah, Ed was there yesterday. THE COURT: Alternatively? MR. BENN: Well, we'll do what we have to do. THE COURT: Scheduling usually isn't my pay grade, but, you know, you can figure that out. Go ahead. MR. GILLEN: Judge, if I may, there are some things here that we can agree with, but there are others that we can't. And this is why, in our opinion, Judge. You know, if our clients are believed, the reporters did talk to them but took misrepresentative statements so that they left things out to put them in a false light and in so doing have created articles that, if they were admitted for the truth of the matter asserted, would be misrepresentative. THE COURT: Well, that's what I'm not going to get into. And I understand and I respect that argument. But I think I've got to line-draw here someplace. And I understood that argument before. And what I don't want to do here is turn this into an oral argument on things that I've already decided. And I know you respect that. I think there is a privilege here, and I think the privilege sometimes gets drawn in what appears to be an ad hoc manner. But my job is to find where to put the line down in this case. To traipse into the area of why they selectively used a quote as opposed to not using other things that were said I think is to get on a very slippery slope. It really almost precipitates a bias line of questioning, and I'm not going to allow it. I am trying to narrowly draw this. I understand that that's not what the defendants want in this case, but I don't think it's called for. And, as a matter of fact, I think if I did that and I ordered that and if -- I assume that the reporters would not testify and I would predict, if it went to the Third Circuit on that basis, I would be reversed. I don't think that that's a fair area of inquiry to get into. This looks artificial when you're dealing with a fact witness, but these are fact witnesses who are also reporters, and I am straining to try to find a fair way to do this. I believe that to the extent -- and I've said this now several times -- that the reporters' testimony is necessary in order to invoke the residual hearsay exception under Rule 807, that the defendants have to have an opportunity to examine the reporters on the same topics and subjects that I would allow the plaintiffs to question them on during their case-in-chief, nothing more and nothing less. So I'm inclined to accept this language, you know, not word for word, only to the extent where it states, rather generically, "wherein an affidavit is provided," I would take that sentence and simply say that affidavits have been provided, rather than "wherein." It's somewhat artificial or a little strained as it relates to this case. The rest of it I don't have any problem because I think it does not do violence to my opinions. And this gets into a semantical exercise to some degree but one that is important, I understand, to the reporters. We have got to cut the Gordian knot here. Either -- MR. BENN: We can live with this, and they would testify if we had language similar to this. THE COURT: Well, my intention would be to enter an order that is a wrap-around order, if you will, that is, in effect, a re-reconsideration of the order on the depositions but also speaks to the trial testimony in chief. And it will be abbreviated because of the time constraints on me, but we'll issue it forthwith, and it will indicate that you're going to -- they're going to sit for depositions under those circumstances. MR. BENN: Can I ask whether that would be reported? THE COURT: In what sense? When you say "reported," what do you mean by that? MR. BENN: "Reported" meaning in the books. THE COURT: Oh, published. When you say "reported" and you're talking about reporters, then I'm thinking, I have enough work in this case. No, we wouldn't publish it, but there are reporters who can access the CM/ECF system. MR. BENN: No, the reason why I'm asking whether it would be published, I don't know whether your original opinion -- THE COURT: You're worried about the precedential value. No, it's not my intention to publish it. I have no need. However, good or bad news travels fast, and in the legal realm it will be cited by somebody someplace. MR. BENN: You have no idea. THE COURT: Oh, you'd be surprised. MR. GILLEN: Your Honor, just in an effort to avoid needless procedure or inquiry, if I could just get a sense for what you have in mind and intend by the order. If they show up for deposition and begin to testify about an article about June 14th, 2004 -- MR. ROTHSCHILD: Hypothetically? MR. GILLEN: Hypothetically. Would we be at liberty to say, did you hear anything else, did you see anything else? THE COURT: No, because -- and I know this is difficult, but it goes like this. And this is the best I can put it, other than what I tried to do in my opinion. We have articles. We have a situation where the declarants, the quoted individuals, have apparently denied -- either denied, I guess -- I'm not sure about this. This is my understanding, either denied that they said what was reported in the articles or said that they were statements taken out of context. And they can speak for themselves. And that's one of the reasons that I'm line-drawing here. They can say that, and I'll take that under consideration. But from the reporters' perspective, were they at the meeting. The obvious answer is yes, but they haven't answered that under oath. Did they hear the statement that is included in the article? Perhaps where were they standing in the room, did they utilize a tape recorder for the purpose of taking down the statement or did they use a tape recorder and did they take notes contemporaneously with the statement. How long after the meeting did they write their article, did they use the tape recorder, did they use notes as it related to that statement. Those are the types of inquiries that relate specifically to the contents of the article. To allay Mr. Benn's concerns, I think it is not fair game to talk about all the other things that they heard and why they wrote the article the way they did and why they excluded quotes. I sincerely believe that that gets into journalistic integrity, and that's problematic, and it's not my intent to allow that, nor would I allow any questioning on anything personal to the reporters. I think I spelled that out in detail in the prior orders. We are going to simply have them testify for the purpose of authenticating the contents of that article, nothing more, nothing less, because I really believe that to do more than that is to create, I think, a precedent which would have reporters called -- Mr. Benn, I think, fears that even this would do that. I don't share that fear. But to go any further than that would mean that a reporter's veracity could be questioned each and every time something like this comes up. I strain mightily not to have to do that. That's what I'm talking about. Now, I don't know if that clarifies it. MR. GILLEN: It does, Your Honor, I think in large measure. And I would ask this, with your leave, would it suffice to preserve my objection that I object here in chambers on the record? THE COURT: That's fine. And I note that, and that's why I wanted to do this on the record. And I understand that you object to that, and I understand the defendants have interposed not only this objection but they have also argued against that. And to the extent that this really clarifies and reasserts what I have in my prior orders, I think you've preserved your position as it relates to that, and I understand that position. MR. GILLEN: Thank you. THE COURT: Anything from the plaintiffs? MR. WALCZAK: We have no objection to the proposed modification, Your Honor. THE COURT: All right. So with that brief change to what is a little bit awkward in the first sentence, the "wherein" -- and I don't mean that facetiously, but just as it relates to this case, because this almost looks like it's a contracted or -- MR. BENN: I understand. I just wanted to make sure the word "affidavit" was in there. THE COURT: We will recite that. We will get a clarifying order out. Now, for the purpose of -- because this is a very public trial. What's your intention, what are your thoughts regarding how we should address this? Because it's known that this is a festering controversy. MR. BENN: That's an interesting question. I mean, if we're not called today, which we're not going to be, I don't know that it really is an issue. We just had dialogue in chambers, the judge is going to be entering an order, and after we receive the order, we'll be able to make a decision in terms of where we proceed. THE COURT: Well, I don't know about that. I think you can assume, unless you doubt my word, I'm going to issue an order -- and I'm very serious -- I'm going to issue an order and that order will be forthwith. I would prefer that -- MR. BENN: We can say that we've restricted the order in such a fashion that we believe the reporters will testify. THE COURT: If I might be so bold, that we are satisfied with the resolution. MR. BENN: Thank you. THE COURT: We expect an order that is consistent with our understanding of an agreement that we reached -- I will let it to you to address that. And my intention would not be to address this again in open court this afternoon. We would just move on. You have other witnesses, I assume, to present, and we can move through this. I'm simply saying I don't want wiggle room that we're waiting to see, because I've had that experience now before. MR. BENN: If you indicate to me as you have, that this is satisfactory to you, I will indicate that we are satisfied with the prospective order that we understand the Court is going to enter and that our clients will be testifying at deposition and at trial. THE COURT: Because I'll adopt this, but I don't want to do this again. MR. BENN: I understand. THE COURT: And you don't want to do it again, I know, I recognize. MR. WHITE: Your Honor, just one other clarification question. With regard to asking what they saw and heard with regard to all of the statements and the articles, I would assume that's statements made after the gavel banged and the meeting was over. Some of those quotes are afterwards. THE COURT: Yes. MR. WHITE: But can questions be asked as far as the context of those statements? THE COURT: Ask the question that you want to ask. MR. WHITE: When so and so said this thing, you know, it was in response to what, what question or what else was being talked about when this statement was made. THE COURT: No. That's too amorphous a question. The issue here, I'll restate, is the veracity of the articles themselves, did the reporter hear the statement as reported. If it was taken out of context, we're not going to delve into that in this examination. The individual who believes -- who was quoted and believes the statement was taken out of context or flatly that he didn't or she didn't say it and it's inaccurate will have the opportunity to say that during the defendants case-in-chief or at any other time during the trial. We're not going to side door, you know, a bias argument by going into context. Context is a dangerous thing as it relates to what we're doing here. So, no, it's -- we presume that the statement was likely given to the reporter upon a question being asked by the reporter, although it could have been volunteered. That's of no moment. The issue is, did the reporter hear the statement, was it reported adequately, not was it reported out of context, but did those words, as quoted, come out of that individual's mouth. Now, I can't be any clearer than that. All right? MR. WALCZAK: Your Honor, one thing I might ask, since it is perhaps likely that issues are going to arise during the deposition, I'm wondering if we could now attempt to schedule the deposition at a time when everybody, including Your Honor, might be available to intercede. THE COURT: Well, what's your next day that would be available if not Friday? MR. BENN: Monday. THE COURT: Well, Monday I'll be in chambers in Williamsport all day. MR. WHITE: I cannot do it Monday because I couldn't get here on Sunday. My wife is going out of town, and I have to watch all the kids. I could do it Tuesday, I could do it Wednesday. MR. BENN: Tuesday and Wednesday is a Jewish holiday for me. I can't do it. MR. WALCZAK: How about tomorrow? MR. WHITE: I'm leaving tomorrow. THE COURT: Well, look, if it's any weekday other than next Friday when I will not be available -- I'll be traveling next Friday -- I'll be available. And, you know, we'll work through that issue. And if you're otherwise taking the deposition and we're at trial, I'll tell you that we'll construct some mechanism -- and we kind of talked about this a little bit yesterday -- where you hold the thought if counsel instructs the reporters not to answer because it's a problematic question, and we can circle back and we'll deal with that later. I understand those things could come up in the course of the deposition, and I'll rule on those as I can if I'm not instantly available. So whether I'm sitting at trial or not -- and likely it will be a day when I'm sitting in trial -- we'll deal with it. MR. WALCZAK: How about later today? THE COURT: You work that out. Let's get back on the record here, because we've got people waiting and I want to get going. You'll have to work that out. But I will tell you in concluding that if it is at night, if you do it at night, I will give you my home number, and you can contact me so we get this finished. If we have to do that, we'll do it so we get it finished. I will not attend the deposition, though. I stopped doing that when I got this job. Anything else? MR. BENN: No. Thank you, Your Honor. MR. WALCZAK: Thank you, Your Honor. (The discussion in chambers was concluded.)

Section 1 notes

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