The text below was provided in ASCII by the court reporter. Images of the pages of a certified printed copy can be found at http://scofacts.org/Merkey-Perens-20-transcript.pdf. For more information, see http://scofacts.org/merkey.


  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  
	       IN THE UNITED STATES DISTRICT COURT

		     FOR THE DISTRICT OF UTAH

			 CENTRAL DIVISION


In re:                    )
			  )
			  )
JEFFREY VERNON MERKEY,    )
			  )
			  )
	 Plaintiff,       )
			  )
vs.                       )   Case No. 2:05-CV-521
			  )
			  )
PERENS, et al.,           )
			  )
			  )
	 Defendant.       )
			  )
________________________  )







		 BEFORE THE HONORABLE SAMUEL ALBA

			  August 17, 2005


		  Motion for Expedited Discovery







		   Laura Robinson, CSR, RPR, CP
		      350 South Main Street
		       144 U.S. Courthouse
		 Salt Lake City, Utah 84101-2180
			  (801)328-4800                     
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Appearances of Counsel:


For the Plaintiff:             Jeff V. Merkey
			       1058 East 50 South
			       Lindon, Utah 84042










































                                                            
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           Salt Lake City, Utah, August 17, 2005

                         * * * * *

      THE COURT:  All right.  Let's go on the record.  The

matter that is before me on an order of reference.  This is

in the matter of Merkey versus Yahoo, Scofacts members and a

number of individuals.

      This is a matter that is assigned to Judge Kimball.

It is before me on an order of reference from him.

      And this is the time set by the court to hear a motion

to conduct expedited discovery on this case.

      Who is here for this matter?

      MR. MERKEY:  I am here, Your Honor, Jeffrey Vernon

Merkey.

      THE COURT:  Okay.  Mr. Merkey, let me tell you what I

have done in preparation for the hearing here today.  And

give you some idea of how to proceed, if you wish, and go

from there.

      I have reviewed your ex-parte motion to conduct

discovery along with the exhibits that were appended there

to.

      Um, I have also reviewed a filing by a Mr. Petrofsky

concerning this matter.  He also appended an exhibit that I

have had an opportunity to review.  There is a reply to that

opposition that was filed by you and I have reviewed that.

That includes a portion of a transcript of the deposition of
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Mr. Bradford.  I have also had a chance to look at the

amended complaint on this case.

      MR. MERKEY:  Okay.

      THE COURT:  There was a motion filed by the Electronic

Frontier Foundation and American Civil Liberties Union to

file an amicus brief.  I granted that yesterday allowing

them to file their brief.

      MR. MERKEY:  Okay.

      THE COURT:  And I have read the position that they

have taken relative to this.  And that is their brief

concerning their opposition to your ex-parte motion.

      Those are the materials that I have received.  Is

there anything more?

      MR. MERKEY:  Yes, Your Honor.  Based upon the brief

that was filed by the Electronic Frontier Foundation, they

-- if you condense and issue spot their general arguments

that they condense, they basically argue based on existing

case law that anonymous defendants on the internet or

anonymous speakers are entitled to a protection of the court

in terms of protecting their identity from invasive

discovery.

      And they state, through all the references if you wade

through it, they feel that there is a sufficient case law to

justify that an individual would have to put on an

evidentiary hearing and achieve a standard similar to
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achieving a preliminary injunction prior to being granted an

ex-parte order.

      THE COURT:  Not necessarily.  I mean some of the cases

they cited address a preliminary injunction setting and that

is how they came up.  But that is not necessarily what

they're arguing.  I mean what they're arguing is, as I

understand it, that there are certain standards whenever

expedited discovery needs to come out, and there is a test

that needs to be met and that is what I need you to address

here today because I need to find out, you know, why you

need it.  You make certain representations that you don't

know who these people are, on the one hand.  On the other

hand, when I read the material, you identify who they are.

So you can't have it both ways.  You either know who they

are or you don't know who they are.  All right.

      MR. MERKEY:  All right.  I know who some of them are,

Your Honor.

      THE COURT:  Well, that is the point.  If you know who

some of them are, then you need to try and explore ways to

try to get them served.  Now, my clerk also brought to me a

document that was just recently filed, I guess it was

yesterday, is that correct, that dismissal?  Who does that

dismiss?

      MR. MERKEY:  Your Honor, the dismissal dismisses from

the case defendants Grendel, Pagansavage.com, John Sage,
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Finchhaven.com, Matt Merkey, Brandon Suit and Merkey.net.

The only defendants that currently remain active in the

litigation are those that -- with the exception of

Mr. Petrofsky who has answered the suit is now an active

participant.

      THE COURT:  Now, wait a minute.  Let's not go that

far, okay, because that is something else that I'm going to

address in a minute.  Now Mr. Petrofsky filed something in

here, but that is not an answer to the complaint.  He hasn't

been served with a complaint.  You cannot assume that by

filing the document that that constitutes an answer.  It

does not.

      MR. MERKEY:  Your Honor, Mr. --

      THE COURT:  It does not.

      MR. MERKEY:  Your Honor, Mr. Petrofsky --

      THE COURT:  It may place him under the jurisdiction of

the court if he tries to file some sort of a motion saying

that this court has no jurisdiction.  The fact that he

entered an appearance for that purpose, all right, it is

only for that purpose.  But he hasn't been served yet.  You

haven't -- you have an address on the material that he sent

you.  You need to serve him.

      MR. MERKEY:  I'll serve him, Your Honor.

      THE COURT:  All right.  You make some reference in

your materials that the fact that he filed that that means
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that he is in the lawsuit.  That is not the way it works,

Mr. Merkey.

      MR. MERKEY:  Your Honor, Mr. Petrofsky has a copy of

the verified petition posted on his web site.  He is making

public comments on it.  He knows about the litigation.  I am

happy to send him a waiver of service if he'll accept it.

      THE COURT:  If he doesn't --

      MR. MERKEY:  If he doesn't, I'll have him served.

I'll have him served if he doesn't.

      THE COURT:  All right.

      MR. MERKEY:  He had filed a motion opposing.  I was

waiting to see if he wanted to file an answer.  You know I

have been served in another matter with Mr. Mooney and I

properly approached the court and filed an answer.  I have

not been served.  And the reason I had not been served,

Mr. Mooney's attorney was basically using the litigation as

a lever to leverage settlement from the state.  So I just

simply answered the litigation.  But there is no question

that I'm participating in it now.

      And in the case of defendants Causey and Petrofsky, I

don't need any expedited discovery on these defendants, Your

Honor.  I know where they are and who they are and I'll get

them served.

      In the case of Mrbuttle, I don't need expedited

discovery on this defendant either.  This defendant is
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actually a participant of Mr. Causey and I believe it is the

same person.  So I'll just simply serve him.  Mr. Causey

told me if I sent the sheriff to serve him the papers, he

wouldn't answer the door.  That is fine.  They can leave

them at the front door after they visit enough times.

      In the case of members atul666, and Saltydog -- in the

case of SCOX members atul666 and Saltydogmn, I don't know

who these individuals are.  I don't know where they reside

and I don't have an address of service.  They're anonymous

internet accounts.  They post messages on Yahoo.  I'm more

than happy to go through these exhibits with you, Your

Honor, and reflect some of the statements that they have

made and some of the language they have --

      THE COURT:  I reviewed them, Mr. Merkey, and I

understand that.  What I want to know is what efforts have

you made to try and identify who they are, where -- what --

you know, that is what is required for me to even address

whether I should give you an opportunity for expedited

discovery.

      MR. MERKEY:  Your Honor --

      THE COURT:  There has got to be a basis shown to me.

      MR. MERKEY:  I'll answer.

      THE COURT:  What efforts you have made.

      MR. MERKEY:  Okay, Your Honor, I'll answer your

question then and I'll actually present exhibits and show
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you what efforts I have made.  I have filed with the court

e-mails that I have sent to Pamela Jones at Groklaw

attempting to obtain her address of service.  I have other

exhibits here that I can enter into the record.  I have made

not less than three requests to her to return me an address

of service of where she can be located.  She has not

responded to these events.  In the case of --

      THE COURT:  Hang on for a minute.  What e-mails are we

talking about?  Where did you send them?  When did you send

them?  What other efforts have you made as it relates to

that, Mr. Merkey?

      MR. MERKEY:  I was going to answer your first question

first, Your Honor.  SCOX.  If I may go down the list of

defendants.

      THE COURT:  Please.

      MR. MERKEY:  Okay.  In the case of SCOX, I have

contacted Yahoo's legal department, their civil subpoena

division, and requested information on the identities of

these individuals.  I have also made requests for the -- for

the objectionable content to be taken down off the website.

To date, what Yahoo has done is they have removed the

financial information from the eBay data base that was

stolen by these individuals and taken those postings off the

site.

      However, in their responses to me, which were
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telephonically, they have responded by stating they will not

reveal the identity of these individuals or produce any

discovery meaning any content or e-mails or postings on

their site unless they are served with a subpoena from this

court.  And they have stated that they feel these

individuals have the right to privacy and the right to

protect their privacy.

      So in the case of Yahoo, their legal department has

specifically told me that and asked me to seek discovery on

them through civil subpoena process in order to determine

their identities.

      THE COURT:  Was Yahoo served with this motion?  This

is the ex-parte motion, is that correct?

      MR. MERKEY:  They were served with the motion, Your

Honor.  I did fax them a copy and they were made aware of it

and the case of Ms. Jones --

      (Whereupon, a criminal case was heard.)

      THE COURT:  Let's go back on the Merkey matter.

      Mr. Merkey, here is the test that I'm laboring under,

okay.

      MR. MERKEY:  Okay.

      THE COURT:  Part of what I had to read and what I read

in preparation for the hearing today was the Columbia

Insurance Company versus seescandy.com case out of the

Northern District of California.
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      The test that they set forth there is this:  One, the

plaintiff is required to identify the missing party with

sufficient specificity that the court could determine

whether the defendant could be sued in federal court.  Two,

make a good faith effort to communicate with the anonymous

defendants and to provide them with notice of the suit, thus

assuring them an opportunity to defend their anonymity. And

three, demonstrate that he had viable claims against the

defendants.  That is the test that needs to be applied here

and that is what I want you to address for me this morning.

      MR. MERKEY:  Okay.  You don't want me to address the

issues of irreparable harm?

      THE COURT:  Irreparable harm in a context of a

preliminary injunction.  This is not a preliminary

injunction.  This is an actual lawsuit, Mr. Merkey, okay?

That is a separate test altogether.  That is in a different

context.

      MR. MERKEY:  I'm aware of that, Your Honor, but that

is one of the tests that was labeled in this legal brief.

      THE COURT:  Go ahead.

      MR. MERKEY:  Okay.  Going down the list, Your Honor, I

have contacted both atul666 and Saltydogmn and, in fact, I

have had e-mail dialogues with them negotiating settlement

of their claims from the suit.  I did not bring those

e-mails with me today.  If we need to continue the hearing
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in order for me to present that evidence to you I will.

      THE COURT:  That is part of the evidence that needs to

be presented.  And it needs to be in the form of an

affidavit with appended documents, if you get copies of the

e-mails, in order for me to make some sort of a decision on

this.  Absent that, I can't be, you know, laboring in a

vacuum.

      MR. MERKEY:  Well, Your Honor, since you have set the

standard on which you will now evaluate this motion, which

is very informative and helpful, I would at this point like

to move to continue the hearing to assemble the exhibits and

then return to the court with those exhibits and with those

arguments and make them.

      THE COURT:  Okay.  I'll give you that opportunity,

Mr. Merkey.

      MR. MERKEY:  And I also --

      THE COURT:  How much time do you need?

      MR. MERKEY:  One day.

      THE COURT:  Well, um, unfortunately I'm on criminal

duty and you see what happens in this trying to address

different things.

      MR. MERKEY:  As Your Honor knows, I have testified

here before.

      THE COURT:  I understand and that hearing took

three hours or however long it took.
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      MR. MERKEY:  I remember it.  In the case of most of

the defendants, Your Honor, Mr. Petrofsky, Mr. Causey they

will be served today.

      THE COURT:  All right.

      MR. MERKEY:  By waiver.  If they reject the waiver

I'll send it out to the sheriff.  In the case of --

      THE COURT:  The ones that concern me are the anonymous

ones.  And I need the information that relates to those.

All right?  And the others, you need to express to me by way

of affidavit what efforts have been made.

      MR. MERKEY:  I will.

      THE COURT:  To try and contact those individuals

because, you know, it isn't just a matter of course that

these motions are granted, but I need to be acting under

some sort of legitimate basis before I can rule one way or

the other.

      MR. MERKEY:  Well --

      THE COURT:  I'll give you an opportunity to do that.

      MR. MERKEY:  Your Honor, by way --

      THE COURT:  Hang on for a second, Mr. Merkey.

      MR. MERKEY:  Yes, Your Honor.

      THE COURT:  Look at the calendar for the week of the

29th.

      THE CLERK:  Okay.  Monday afternoon or --

      THE COURT:  What is Thursday of that week?  Actually
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the 1st.

      THE CLERK:  It looks like the morning is open until

11.

      THE COURT:  Okay.  Let's continue this matter until

September 1 at 9:00.

      MR. MERKEY:  Your Honor, I'm going to be out of town

on September 1.  Can we do it any sooner?  You know, if

necessary, Your Honor, I'm not sure we need to have a

hearing if Your Honor just simply wishes to order that I

submit the affidavits with the evidence, Your Honor can

simply rule on it without a hearing.

      THE COURT:  We can do that.  Get the affidavits to me

by no later than the 23rd of this month.  Get them to me and

then I can rule on those.

      MR. MERKEY:  Your Honor, just as a -- just to -- just

to inform the court, one of the terminated defendants,

Grendel Pagansavage.com actually retained an attorney to

negotiate this stipulation which is sealed and confidential.

But during the stipulation, I protected the individual's

anonymity.  I still to this day do not know who this person

is.  But their attorney represented them and we successfully

settled them out of the litigation.

      So, you know, the purpose of having protective orders

to protect people's confidential information is well

established.  In terms of protecting the confidentiality and
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the anonymity of these people I don't think they have a

claim to claim that they be anonymous to Your Honor.  I

think Your Honor has a right to know who they are.  If

they're part of the suit they can be shown as that.

      And in the event we do need to bring them here, I

think there are provisions that we can put in place to

protect their anonymity.  I have already done so with one of

the defendants.

      THE COURT:  Submit the material to me by Tuesday next,

the 23rd, and then I'll review it.  I'll make a

determination on whether I need any further argument.

      MR. MERKEY:  And Your Honor, I am -- okay.  And if you

do, Your Honor, I will be out of town until the 5th of

September.

      THE COURT:  Okay.  So we'll keep that in mind.  We'll

note it and keep it in mind.

      MR. MERKEY:  Okay.  Thank you very much, Your Honor.

      THE COURT:  Thank you.  We'll be in recess on this

matter.

      MR. MERKEY:  Okay.

      (Whereupon, the hearing concluded.)







                                                            
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STATE OF UTAH            )

                         )ss

COUNTY OF SALT LAKE      )



           I, Laura W. Robinson, Certified Shorthand

Reporter, Registered Professional Reporter and Notary Public

within and for the County of Salt Lake, State of Utah, do

hereby certify:

           That the foregoing proceedings were taken before

me at the time and place set forth herein and were taken

down by me in shorthand and thereafter transcribed into

typewriting under my direction and supervision;

           That the foregoing pages contain a true and

correct transcription of my said shorthand notes so taken.

           In witness whereof I have subscribed my name and

affixed my seal this 1st day of September, 2005.



                          ________________________________

                          Laura W. Robinson, CSR, RPR, CP

                          and Notary Public



MY COMMISSION EXPIRES:

December 1, 2008



                                                            
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