11 June 2014

KingCast and Mortgage Movies See Robinson-Tait and Regional Trustee Services' Deborah Kaufman Run From Video Depo and Seek TRO/Protective Order.

NOTE: It is now 24 July 2014 -- Approximately six (6) weeks have passed and they still haven't paid my goddamn appearance fees. 

 Folks, I don't have enough words to describe the disdain I feel when people with such a large impact on public matters hide from cameras. Too bad Ms. Kaufman has waived her arguments in my not so humble opinion for several reasons, as noted in the video. First of all her written Depo is already online in a similar case, hosted by my friends at Stafne Law Offices. Next, I found her job description and image on the Internet in exactly 40 seconds by simply running her name and place of employment. Third, anyone involved in mortgages who is directly or indirectly involved in the preparation of documents filed into the public record should consider themselves public enough to appear in a video deposition. 

So when the shit hits the fan I will have Amicus support for my Amicus. Wait for it... because as always, I am on the cutting edge and the mortgage oligarchy is going to push back from time to time. Read my Amicus in Scribd and with full text placed into the body of this journal entry as well. I want people to be able to use these arguments whenever they can. Open and transparent access is the Name of the Game.


10 June 2014                                                                       

I.                  Relevant Background.

Video and courtroom Depositions are conducted as a matter of course. As videographer, I was a daily news reporter and photojournalist prior to law school.  I then practiced as an Assistant State Attorney and Civil Rights attorney prior to also working in the mortgage industry as a closing attorney. No Court room has ever reprimanded me for abuse or misuse of Courtroom video and I have been taking and posting courtroom video since 1996.

Further, in the preceding two days, Northwest Trustee employees Jeff Stenman and Vonnie McElligott provided video Depositions in Lucero v. Bayview Loan Servicing, et al, 2:13-cv-006020-RSL taken 6/9 June 2014. 

This dovetails with a common sense approach to the situation because this Court should grant no quarter to any attempt to trammel the First Amendment interests in this case:

America’s foreclosure crisis is clearly a matter of substantial (read: compelling) governmental and public interest that far outweighs any unarticulated purported safety concern of this and any other Deponent, excepting perhaps rape victims who are sheltered for certain reasons pursuant to Statute.

Any restriction here would also be at once over and under-inclusive and not narrowly-tailored, even if the Deponent’s purported concerns had any merit.[1]

The fact of the matter is Ms. Kaufman has already acquired a public persona by virtue of the type of business in which she is engaged as Vice President of Operations of a huge corporation, signing documents that are filed into the Public Record.  A cursory Internet search reveals a prior Deposition online and hosted by Stafne Law Office. http://stafnetrumbull.com/exclusive-deposition-of-deborah-kaufman-of-regional-trustee-services-on-wa-foreclosure-operations/

Then too there is the ubiquitous zoom info.

Lastly, her information and picture is already online anyway alongside many of the Industry Oligarchs, including her lawyers at Robinson-Tait:
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II.                  Law and Argument.

A.                   Waiver.

Deponent’s prior Deposition Testimony has been published online for months now without challenge. See the Stafne link, supra. As such, she and her Counsel have waived that argument.  Therefore, unlike those cases, it is not the content of the Deposition that is being objected to, but merely the visual component.

B.                  The Merits.

I have seen a body of Decisional Law out of Nevada in which some of the Courts have opted to enforce a limited Restraining Order such that only portions of Deposition Testimony aired in trial may be accessible to third parties. However those disputes were interpersonal in nature and the level of public interest pales in comparison to the level of public interest involving America’s Underwater and Foreclosure Crises.  See generally Barket v. Clark, Case No. 2:12-cv-00393-JCM-GWF, U.S. Dist. LEXIS 24365 (Nevada 2013).

In the 9th Circuit a party seeking injunctive relief must demonstrate immediate threatened harm, and a court must weigh whether the public interest favors issuance of an injunction. Where the public interest is involved, it is necessary to determine whether that interest favors the moving or nonmoving party. The court must also weigh whether the public interest favors issuance of the injunction. SW Voter Registration Ed. Project v. Shelley, 344 F.3d 914, 917 (9th Cir. 2003). Where the public interest is involved, it is necessary to determine whether that interest favors the moving [**29]  or nonmoving party. Sammartano v. First Judicial District Court In & For the County of Carson City, 303 F.3d 959, 974 (9th Cir. 2002). See Requa v. Kent Sch. Dist. No. 415, 492 F. Supp. 2d 1272 (WD WA 2007). In Requa the Court found that the YouTube posting of even lewd and crude video surreptitiously taken behind an unwitting school teacher was protected speech, even though the student was ultimately found to have violated school policies relative to the creation of the video.

But of course this case is far removed from Requa because no one involved in this Deposition is sexually or otherwise harassing the Deponent. And of course should Attorney Dao’s line of questioning ever border on harassment, there are other less-intrusive ways to address the matter by way of traditional objections. Obviously, it would not bode well in terms of professionalism for Attorney Dao to be seen publicly harassing a witness in a video deposition whether it be used in the Courtroom, seen in YouTube or both.[2]

The closest case on Point in the entire Country seems to hail from Pennsylvania:
Dougherty v. Heller, 2012 Phila. Ct. Com. Pl. LEXIS 241 (Philadelphia County, July 19 2012):

3. Irreparable Loss

The special right asserted will not be irreparably lost if review is postponed. If an appellate court determines that this Court improperly compelled the video deposition of the plaintiff, plaintiff's right to redress is not irreparably lost by waiting until conclusion of the matter at trial level. At worst should the video become fodder to embarrass plaintiff, he has grounds for another lawsuit. The plaintiff does not have a right to dictate the manner in which a party may pursue a course of discovery nor may a party unilaterally limit dissemination absent some compelling  [*9] reason. Additionally, plaintiff aptly notes that there are several safeguards to prevent defense counsel—the individual from whom assurances were sought—from distributing the video prior to its placement in the public domain through the filing of a motion or presentment at trial.2

B. Plaintiff's Appeal of the Court's Denial of a Protective Order Fails To Satisfy the Collateral Order Tripartite Test

On the other side of the coin is plaintiffs request for a protective order. HN5o to the description of this Headnote."Upon motion by a party...and for good cause shown, the court may make any order which justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, burden or expense."
Pa. R.C.P. § 4012(a). HN6o to the description of this Headnote.The burden is that of the moving party, the plaintiff here, to establish that court intervention is needed to protect the plaintiff from unreasonable annoyance or embarrassment. Plaintiff failed to satisfy his burden to establish that a video deposition is an unreasonable  [*10] annoyance or embarrassment.

For plaintiff to prevail on the motion for protective order, the Court must accept the likelihood a series of events will occur. First, the Court must find that the video will capture a gesture such as a lick or other inappropriate behavior which is extraneous and/or an extreme deviation from other public appearances by the plaintiff—a public figure. Second, plaintiff wants the Court to assume that someone will gain access to this video during the litigation process.3 Third, the video will be reviewed for embarrassing content. Fourth the video will be altered by some form of cyber chicanery thereby enhancing the embarrassing tick or gesture. And lastly the Court is asked to assume the video will be published or otherwise disseminated resulting in "unreasonable embarrassment". Plaintiff acknowledges that any potential abuse of the video would not affect the merits of this case. Plaintiff admits that there are several defamatory lawsuits involving the plaintiff and the defendant's employer but fails to cite to any instance  [*11] where such an abuse as presently feared has occurred. Additionally, plaintiff conceded that a number of safe guards existed to prevent the type of harm envisioned. The Court finds that entering a protective order under these facts will erode a litigant's right to conduct a deposition vis-à-vis video, a right which has been codified in
Pa. R.C.P. § 4017.1(a).[3]

Lastly, I might add that the party noticing a video Deposition does so in an effort to capture the true essence of witness testimony, with all of the nuances appurtenant thereto.  Such nuances may prove valuable at trial and the party noticing the Deposition cannot loose that privilege on the basis of some nebulous fear of public outrage voiced by the Deponent and Counsel.

In point of fact, Apple Computer mounted such an argument last year involving my work and the Court correctly DENIED them. I have not ordered the actual transcript of the Oral argument in that matter that was conducted before the Court granted my right to run video but as one can readily infer, I won – because the video of the status hearing is indeed published on YouTube, and it indeed contains matters beyond the scope of Trial, to the extent that Defendants in this case should argue on that plane. The case settled shortly after that video aired. https://www.youtube.com/watch?v=1RJ0jSHPoqs

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3.                  Absence of Commercial Gain.

Lastly, none of these Depositions are being sold or resold. I along with all of the homeowners simply believe that the American and Word Public has a Right-to-Know how the entire underwater and foreclosure process works, and there is no better way to explain it than to show it in the Courts and in the Deposition rooms.  In point of fact, several homeowners will likely sign off on this Memorandum.

The Motion for Protective Order must be summarily DENIED.
Respectfully submitted,
/s/Christopher King
Christopher King, J.D.

[1] There has been a spate of international deaths in the banking community in the past several months in which several high-ranking members of the banking community have died in suspicious circumstances. Significantly, none of these deaths have been linked to the presence of video depositions.
[2] The Deponent advanced another purported concern regarding trade secrets or proprietary information. That argument fails for the same exact reason the harassment argument fails:  Matters of trade secrets are for the Court to decide. If there is a question as to whether a trade secret is being illegally published then that portion of the video will be carefully marked and preserved while the Court reviews the Transcript and applies the correct law.
[3] Note that the Right to run video depositions is indeed codified in Washington Law at Rule 30.

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