IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

DEFENDANTS' MOTION PURSUANT TO FRCP 56(f)

COME NOW the defendants, F.A.C.T.Net, Inc., and Lawrence Wollersheim, by and through their counsel of record, BEEM & MANN, P.C., and submit the following memorandum of points and authorities in support of their motion for continuance pursuant to Rule 56(f) of the Federal Rules of Civil Procedure:

I. INTRODUCTION

Plaintiff Bridge Publications, Inc.'s ("BPI") Motion For Summary Judgment Against All Defendants For Copyright Infringement (the " Motion") is still premature in that Defendants have been prevented and/or have not yet had the opportunity to discover information vital to Defendants' opposition to BPI's Motion. Specifically, Defendants have meritorious defenses to BPI's Motion including, inter alia, (i) the invalidity of BPI's copyrights; (ii) Defendants were previously discharged by BPI from any claims of copyright infringement in the instant action pursuant to a valid release obtained in a previous action; (iii) the actual number of the various works at issue in this case is only thirteen and not "1900" as alleged by BPI; and (iv) many of the works at issue in BPI's Motion were uploaded and/or "planted" on Defendants' Bulletin Board System by entities and/or individuals other than F.A.C.T.Net and without F.A.C.T.Net's knowledge and/or consent.

These defenses all create triable issues of fact which will likely preclude BPI's Motion. Without the opportunity to further discover this information, Defendants' ability to put on their case and oppose BPI's Motion is severely compromised. Accordingly, Defendants respectfully request that the Court grant them a continuance of time, to and including April 6, 1997, in which to oppose BPI's Motion.

II. STANDARD FOR OBTAINING A RULE 56(f) CONTINUANCE

Rule 56(f) of the Federal Rules of Civil Procedure provides that:

Should it appear from the affidavits of the party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

The policy behind Fed.R.Civ.P. 56(f) is straightforward: "Summary judgment should not be granted `where the non-moving party has not had the opportunity to discover information that is essential to his opposition.'" Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1521-22 (10th Cir. 1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986)). "The protection afforded by Rule 56(f) is an alternative to a response in opposition to summary judgment under 56(e) and is designed to safeguard against a premature or improvident grant of summary judgment." Pasternak v. Lear Petroleum Exploration, Inc., 790 F.2d 828, 833 (10th Cir. 1986) (quoting 10A Wright, Miller, & Kane, Federal Practice and Procedure §2740 (1983)). See, Miller v. United States Department of Transportation, 710 F.2d 656, 666 (10th Cir. 1983) ("[D]iscovery is strongly favored and generally denying the right to have full discovery on all pertinent issues before a summary judgment is granted would be error, particularly in the face of a Rule 56(f) affidavit.")

Consistent with its underlying policy, courts treat Rule 56(f) motions and affidavits liberally: "`Unless dilatory or lacking in merit, the motion should be liberally treated.'" Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1521-22 (quoting James W. Moore & Jeremy C. Wicker, Moore's Federal Practice ¶ 56.24 (1988)). See, Jensen v. Redev. Agency, 998 F.2d 1550, 1554 (10th Cir. 1993); RTC Mortgage Trust 1994-S3 v. Guadalupe Plaza, 918 F.Supp. 1441, 1448 (D.N.M. 1996).

More specifically, in order to invoke the shelter provided by Rule 56(f), a party must (1) file an affidavit, Pasternak, 790 F.2d at 832-33, (2) identifying the probable facts not available and their relevance, Committee for the First Amendment v. Campbell, 962 F.2d at 1522, (3) explaining "why facts precluding summary judgment cannot be presented...," Id., and (4) stat[ing] with specificity how the desired time would enable the non-moving party to meet its burden in opposing summary judgment...," Jensen, 998 F.2d at 1554 (citation omitted).

III. FURTHER DISCOVERY IS VITAL TO DEFENDANTS'

OPPOSITION TO BPI'S MOTION

For the reasons stated below, Defendants are entitled to further discover certain information vital to Defendants' opposition to BPI's Motion. Specifically, Defendants should be allowed to further discover information pertaining to (i) when and whether the works at issue were published; (ii) the identity of the authors of the various works; (iii) the circumstances and procedures surrounding the purported copyrighting of any of the various works at issue; and (iv) the circumstances surrounding the assignment and transfers of rights and claims by any and all persons, in connection with any of the various works at issue, including L. Ron Hubbard's purported assignment of the various works at issue; (v) BPI's previous release of Defendants from the conduct alleged in BPI's Motion; (vi) the actual number of the various works at issue; (vii) how the allegedly infringing works were uploaded on to Defendants' Bulletin Board System in the first place; and (viii) the fact of, and extent of, revisions being made to any of the various works at issue. Because this information all raises genuine issues of material fact, it is essential to justify Defendants opposition to BPI's Motion.

A. Defendants Are Entitled To Further Discover Facts Demonstrating The Invalidity Of BPI's Copyrights.

BPI alleges in its Motion that it has valid copyrights in the works at issue. In support thereof, BPI attaches certificates of registration for each of the works at issue. Although generally such certificates constitute prima facie proof of validity and ownership of the copyrights, Defendants assert that this presumption does not apply to the case at hand where there are triable issues of fact as to (i) when and whether these works were published; (ii) the identity of the author of these works; (iii) the circumstances and procedures surrounding the purported copyrighting of any of the various works at issue; and (iv) the circumstances and procedures surrounding the purported copyrighting of any of the various works at issue; and the circumstances surrounding the assignment and transfers of rights and claims by any and all persons, in connection with any of the various works at issue, including the circumstances surrounding L. Ron Hubbard's purported assignment of the works at issue. Further discovery of such facts is relevant to Defendants' showing that BPI has not met its burden of proving that it has valid copyrights and, thus, that BPI cannot maintain a claim for copyright infringement against Defendants. Gates Rubber Co. v. Bando Chemical Industries, Ltd., 9 F.3d 823, 831 (10th Cir. 1993).

1. Defendants Are Entitled To Further Discover When And Whether The Works At Issue Were Published.

In order for the statutory presumption of validity to adhere, a work must be registered within five years of its initial publication. 17 U.S.C. §410(c). Several of the copyright certificates of registrations which BPI submits with its Motion clearly demonstrate that these works were published much more than five years before, and often were published decades before, their belated registration. Insofar as the remaining registrations are concerned, however, these registrations purport to have been published within this five year period of limitations. As a result, by further inquiring into the dates of publication stated in each such registration, Defendants are likely to establish that such dates are, in fact, false, thereby invalidating BPI's copyrights in these works.

Although Defendants have requested and BPI has promised on several occasions to provide Defendants with information detailing where and when each such work was published, Defendants have failed to do so to date.

In connection with this inquiry, Defendants intend to depose, among others, David Miscavige. (Berry Decl., ¶ 8).

2. Defendants Are Entitled To Further Discover The Identity Of The Author(s) Of The Various Works At Issue.

In the case at hand, credible evidence suggests that some or all of the works at issue were not authored by L. Ron Hubbard, as avowed by BPI in its Motion, but were, in fact, authored by such other individuals as David Mayo and Gerald Armstrong. (Berry Decl., ¶ 8). For example, Vicki J. Aznaran, a former president of the Religious Technology Center ("RTC") testified in another matter that RTC made a practice of claiming that materials it submitted to the Copyright Office for registration were authored by L. Ron Hubbard when, in fact, RTC knew that those materials were authored by someone else. Since "copyright in a work ... vests initially in the author or authors of the work," 17 U.S.C. §201(a), whether L. Ron Hubbard actually authored the "1900" works at issue is again directly relevant to the validity of the copyrights in these works. This is because Mr. Hubbard would have had to have owned the works at issue in order for any assignment by Mr. Hubbard or his estate to RTC to be valid as to those works. Consequently, if Mr. Hubbard's assignment to RTC is invalid, then RTC's subsequent assignment of these works to BPI is also invalid. Thus, BPI would have no rights in and to the works at issue and no standing to bring BPI's present Motion.

F.A.C.T.Net demanded production from RTC of all documents related to David Mayo's allegations that he is the author of certain works that RTC contends were authored by L. Ron Hubbard. In Plaintiff's Response to Defendant F.A.C.T.Net's First Request for Production of Documents, RTC objected to the relevance of the request and offered to produce instead an opinion in an unspecified case concerning Mayo's claims, but otherwise failed to comply with the request. (Berry Decl., ¶ 10.)

F.A.C.T.Net also demanded the production of all documents related to the litigation in England involving Ran Lolly and works in which RTC purports to own or hold rights. Again, in the same discovery response, RTC objected to the request on the basis of relevance and has failed to produce the documents. Decl. of Berry, ¶ 10.

In connection with this inquiry, Defendants intend to depose, among others, David Mayo, Vicki Aznaran, Gerry Armstrong , Earl Cooley, Esq., Sherman Lensk, Esq., San Luis Obispo Coroner, the person most knowledgeable of the Church of Spiritual Technology, and Michael Sutter. (Berry Decl., ¶¶ 8, 9f, 9g, 9o, 9q, 9r, and 9t).

3. Defendants Are Entitled To Further Discover The Circumstances And Procedures Surrounding The Purported Copyrighting Of Any Of The Various Works At Issue.

In reviewing the copyright certificates of registration BPI attached to its Motion, it has become apparent that the circumstances and procedures surrounding the purported copyrighting of any of the various works at issue are suspect. Indeed nearly all of the certificates were filled out many years after the purported date of creation of the works. As such, Defendants are of the belief that these certificates were likely filled out by individuals who had no personal knowledge of the information contained in the certificates. Defendants should be permitted to further discover whether Defendants' hypothesis is, in fact, correct. This is because on the certificate of copyright registration itself, the individual filling out the certificate must certify at the bottom of the certificate that the statements made by him or her are true to the best of his or her knowledge. This implies that a person must have at least some personal knowledge of the facts contained in the certificate. Thus, any certificate which was executed by an individual without personal knowledge of the facts contained therein is invalid.

Defendants received these copyright certificates of registration for the first time when BPI filed its motion. Given the voluminous nature of the registrations, totalling 1900 in all, Defendants need more time to further discover into this issue.

In connection with this inquiry, Defendants intend to depose, among others, David Miscavige, Mary Sue Hubbard, Patricia Brice, Lyman Spurlock, and Paul Klopper. (Berry Decl., ¶¶ 9b, 9c, 9j, 9n, and 9s).

4. Defendants Are Entitled To Further Discover The Circumstances Surrounding The Assignment And Transfers Of Rights And Claims In Connection With Any Of The Various Works At Issue.

Even assuming, arguendo, that the works at issue were properly published, authored and copyrighted by L. Ron Hubbard, there is still evidence to suggest that the circumstances surrounding the assignment and transfers of rights and claims by any and all persons, in connection with any of the various works in issue were erroneous. With respect to L. Ron Hubbard's initial assignment of the copyrights to RTC, this is because at the time Mr. Hubbard's signature on the assignment document was notarized by David Miscavige, Mr. Hubbard was a wanted fugitive under a Federal indictment. Mr. Miscavige, by virtue of his position and affiliation with Mr. Hubbard, likely knew or had reason to know that Mr. Hubbard was a wanted fugitive.

In the State of California, as in all other states, if a notary public has prior, present or percipient knowledge that the person whose signature they are notarizing is a wanted fugitive under Federal law, the notary is duty bound to report such fugitive to authorities and not to notarize the signature of such fugitive. Thus, if borne out by further discovery, such information would presumably establish that Mr. Hubbard's assignment of copyrights to RTC is illegal, as it was improperly notarized. Consequently, any subsequent assignment by RTC to BPI of such copyrights would also be invalid, thereby precluding BPI's Motion against Defendants.

F.A.C.T.Net's First Request for Production of Documents propounded upon BPI included a request for original copies of all documents related to the transfer of any copyrights of the published works. The request specifically indicated the need for original documents so that they could be examined by an expert in the authenticity of documents and signatures.

BPI failed to produce the documentation, stating that (a) "copies" of the documents had already been produced and (b) the demand was irrelevant. See, BPI's Response to F.A.C.T.Net's First Request for Production of Documents, Exh. E; Berry Decl., ¶ 11.

In connection with this inquiry Defendants intend to depose David Miscavige, Pat Broker, Vicki Aznaran, Mary Sue Hubbard, Earl Cooley, Esq., Sherman Lensk, Esq., and the San Luis Obispo Coroner, and the person most knowledgeable of the Church of Spiritual Technology. (Berry Decl., ¶¶ 9a, 9d, 9g, 9n, 9q, and 9r).

B. Defendants Are Entitled To Further Discover Information Pertaining To BPI's Previous Release Of Defendants From The Conduct Alleged In BPI's Motion.

In settlement of a previous action entitled Church of Scientology International v. Steven Fishman and Uwe Geertz, United States District Court, Central District of California, Case No. CV 91-6426 HLH (Tx) (the "Previous Action"), the Church of Scientology International ("CSI") signed a release which arguably bars them altogether from suing Defendants for the claims alleged in the present action. Significantly, the release runs to all "agents" of Lewis, D'Amato, Brisbois & Bisgaard ("LDB&B"), the law firm which represented the Defendants in the Previous Action.

It should be emphasized that in this Previous Action, Defendants were, in fact, paid research and consulting agents to LDB&B. Indeed, to assist with Defendants' research in the Previous Action, LDB&B sent Defendants three CD's and approximately 60,000 pages of hard copy material. Notably, all purported instances of infringement that are alleged by BPI in the current action relate either directly or indirectly to the research Defendants performed for LDB&B in the Previous Action. Because the release in the Previous Action may very well bar BPI's claims against Defendants in the instant action, Defendants should be allowed to further discover information pertaining to this release including, inter alia, the circumstances surrounding the execution of the release, the enforceability of the release and its scope, and the content of the agreement between LDB&B and CSI.

In connection with this inquiry, Defendants intend to depose, among others, Elliot Abelson, Esq., William T. Drescher, Esq., Robert F. Lewis, Esq., Janet Lubert, Esq., and Gordon Calhoun, Esq. (Berry Decl., ¶ 9v).

C. Defendants Are Entitled To Further Discover The Actual Number Of Works At Issue.

BPI maintains in its Motion that Defendants have purportedly infringed the copyrights in "1900" works. Defendants, however, have reason to believe that BPI has purposefully and with the intention of deceiving the Court grossly inflated the amount of works at issue and that the actual number of works is far fewer than "1900". Defendants surmise that BPI has arrived at this "1900" number by separately registering portions of many of the published literary works as independent copyrights. Moreover, Defendants posit that the true number of works at issue in BPI's Motion is thirteen (13), consisting of 13 of 22 volumes comprising two series of Scientology "technology."

Defendants' ability to conclusively demonstrate the precise number of works at issue is directly relevant to the issue of damages in this case since BPI seeks statutory damages which are awarded per work infringed. Thus, in the unlikely event that Defendants are ultimately found liable for any acts of infringement, the difference between 13 works and 1900 works could potentially translate into hundreds of millions of dollars in damages, a result which cannot easily be ignored.

Defendants previously demanded information pertaining to the form in which the subject works are published in Request Nos. 14 and 23 of Defendant F.A.C.T.NET, Inc.'s First Set Of Interrogatories To Plaintiff Bridge Publications, Inc., which were served on BPI on or about March 1, 1996. Other than the registrations already provided, however, BPI has refused to produce additional information responsive to these requests. Moreover, such information was also promised informally by BPI in a letter from Helena Kobrin to Graham Berry. Once again, BPI has refused to provide such information to Defendants.

In connection with this inquiry, Defendants intend to depose, among others, David Miscavige, Mary Sue Hubbard, Patricia Brice, Lyman Spurlock, and Paul Klopper. (Berry Decl., ¶¶ 9b, 9c, 9j, 9n, and 9s)

D. Defendants Are Entitled To Further Discover How The Allegedly Infringing Works Were Uploaded On To Defendants' Bulletin Board System.

Defendants have reason to feel that the alleged copyright infringements were possibly uploaded on to Defendants' Bulletin Board System by the Church of Scientology themselves. In essence, Defendants believe that Scientology may have " planted" or "set up" Defendants with anonymous computer uploads. At the very least, there is a triable issue of fact here as to whether the claimed infringing documents were uploaded on to Defendants' Bulletin Board System by an entity and/or individual other than F.A.C.T.Net and without F.A.C.T.Net's knowledge and/or consent.

In connection with this inquiry, Defendants intend to depose Vicki Aznaran. (Berry Decl., ¶ 9g)

IV. CONCLUSION

For the reasons described above, Defendants respectfully request that their request for a continuance of time, up to and including April 6, 1997, in which to oppose BPI's Motion be granted.

CERTIFICATE OF SERVICE

I hereby certify that on this _____ day of February, 1997, I mailed a true and correct copy of the foregoing MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION PURSUANT TO FRCP 56(f) to counsel of record, by placing same in the United States Mail, postage prepaid, properly addressed as follows:

Todd P. Blakely, Esq. Elliot J. Abelson, Esq.

John R. Posthumus, Esq. SIMKE, CHODOS, SILBERFELD

Robert R. Brunelli, Esq. & ANTEAU, INC.

SHERIDAN ROSS, P.C. 6300 Wilshire Blvd., #9000

1700 Lincoln Street, Suite 3500 Los Angeles, California 90048

Denver, Colorado 80203

Helena K. Kobrin, Esq. Graham E. Berry, Esq.

7629 Fulton Avenue MUSICK, PEELER & GARRETT

North Hollywood, California 91605 One Wilshire Boulevard

Los Angeles, California 90017

Earle C. Cooley, Esq.

COOLEY, MANION, MOORE & JONES, P.C. Daniel A. Leipold, Esq.

21 Custom House Street HAGENBAUGH & MURPHY

Boston, Massachusetts 02110 701 South Parker Street, #8200

Orange, California 92868

Jeffrey A. Chase, Esq.

Ann B. Frick, Esq. Mr. Lawrence Wollersheim

JACOBS CHASE FRICK c/o F.A.C.T.Net, Inc.

KLEINKOPF & KELLEY LLC 999 West Moorhead Circle, B

1050 - 17th Street, Suite 1500 Boulder, Colorado 80303

Denver, Colorado 80265

Michael H. Berger, Esq.

Scot M. Peterson, Esq.

WALDBAUM, CORN, KOFF, BERGER

& COHEN, P.C.

303 East 17th Avenue, Suite 940

Denver, Colorado 80203