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1 1 35jopenf 2 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF NEW YORK 3 ------------------------------x 3 4 PENGUIN BOOKS USA., INC., FOUNDATION 4 FOR "A COURSE IN MIRACLES, INC.," AND 5 FOUNDATION FOR INNER PEACE, INC., 6 6 Plaintiffs, 7 7 v. 96 Civ. 4126 8 8 NEW CHRISTIAN CHURCH OF FULL 9 ENDEAVOR, LTD., and ENDEAVOR 9 ACADEMY, 10 10 Defendants. 11 11 ------------------------------x 12 12 May 19, 2003 13 10:05 a.m. 13 14 Before: 14 15 HON. ROBERT W. SWEET, 15 16 District Judge 16 17 APPEARANCES 17 18 EPSTEIN BECKER and GREEN, PC 18 Attorneys for Plaintiffs 19 JOHN ROSENBERG 19 CARRIE FLETCHER 20 20 LAWRENCE E. FABIAN 21 Attorney for Defendants 21 22 MONTY C. BARBER 22 Attorney for Defendants 23 23 24 24 25 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
2 1 (In open Court; case called) 2 THE DEPUTY CLERK: Please be seated. 3 THE COURT: How do we want to proceed, folks? I got 4 all the stuff about burden of proof, et cetera, et cetera. I 5 take it that, correct me if I'm wrong, the defense really has 6 the burden of proof. 7 MR. ROSENBERG: Yes, your Honor. John Rosenberg for 8 plaintiff. Mr. Fabian and I have discussed a number of these 9 issues, and with the Court's indulgence and permission, we 10 believe it is prudent to proceed in this fashion. 11 There are some issues about the tapes. The defendants 12 are going to take a shot to authenticate them. Once that has 13 taken place, we agree and concur that it is the defendant's 14 burden in another copyright case that once the prima facie is 15 established, it's up to the challenging party. 16 For purposes of a cogent presentation, and with the 17 Court's permission, we still think it makes sense, but without 18 shifting the burden for the plaintiffs, because it's our 19 witnesses who sort of tells the story of what happened here, to 20 start that way, but Mr. Fabian and the defendants have their 21 right to cross examine. They can put on any defense witnesses 22 as such, if that's okay. Again, with the understanding that 23 the burden remains on the defendants. 24 MR. FABIAN: Larry Fabian for the defendants. 25 That's perfectly fine with us, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
3 1 THE COURT: I don't think I need any opening 2 statements. My familiarity is painful and recent, so I think 3 we can start. 4 MR. FABIAN: I can ask one question of the Court that 5 Mr. Rosenberg and I had in connection with the exhibits that 6 we're going to mark. With respect to the experts, if they are 7 marked in evidence, shall they be evidence at the trial or is 8 your Honor considering them as an in limine motion? 9 THE COURT: Forget about in limine. This is a trial. 10 You can offer it and I'll hear you and deny your request and 11 then we'll go on from there. Who knows? 12 MR. ROSENBERG: We'll stipulate to that, your Honor. 13 THE COURT: I might not. You never can tell. 14 Incidentally, just a little housekeeping. How long, oh, Lord? 15 MR. ROSENBERG: The great blues song, your Honor. 16 We would think non jury we have cut it in half. I 17 think we'll be done by the end of the week. Certainly 18 Thursday. We don't predict later than Friday. 19 THE COURT: It better be Thursday because there is no 20 Friday. 21 MR. ROSENBERG: That's kind of forboding. Do you know 22 something I don't? 23 THE COURT: Yes, I do. 24 MR. FABIAN: There still may be at the end of the case 25 some deposition transcripts. We were wondering, would your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
4 1 Honor, perhaps, take them and we would each mark our objections 2 on the side? 3 MR. ROSENBERG: We don't need to read them into the 4 record? 5 THE COURT: No, they will be exhibits and you'll 6 indicate what the relevant portions are. 7 MR. ROSENBERG: In that case, I think Thursday, since 8 there is no Friday, is a realistic prediction. 9 THE COURT: Very good. 10 Well, keep that in mind. It's a graduation. Sorry 11 about that. But keep that in mind as we go along, so that if 12 we have to employ measures to get through, we can do that. 13 MR. FABIAN: One other thing, we had the question of 14 witnesses and I indicated to you we have one witness sitting 15 here, and since this is part of the trial what would you like 16 to do? 17 MR. ROSENBERG: During the tape authentication 18 portion, I have no objection to any witnesses staying in. 19 That's okay. 20 MR. FABIAN: Neither do we. 21 MR. ROSENBERG: During the case in chief I would 22 invoke the rule, I think it is 615, to sequester witnesses. 23 Let me just confer, if I might, with Mr. Fabian. 24 There is one witness who I believe is affiliated with 25 some position with the defendant. His name is -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
5 1 MR. FABIAN: Walter. 2 MR. ROSENBERG: And they requested that he be able to 3 stay. And based on the representation that he has no knowledge 4 of the events in question, we have no objection to him 5 remaining. All other witnesses on both sides, except 6 Ms. Whitson and when Mr. Wapnick arrives, the rule permits 7 designation. 8 Thank you, your Honor. 9 THE COURT: Okay. 10 THE DEPUTY CLERK: Remain standing and raise your 11 right hand. 12 ORLANDO GATTILLO, 13 a witness called by the defendant, 14 having been duly sworn, testified as follows: 15 THE DEPUTY CLERK: Please be seated. 16 DIRECT EXAMINATION 17 BY MR. FABIAN: 18 Q. Mr. Gattillo, could you tell this Court where you have your 19 business located? 20 A. 538 West 29th Street, New York City. 21 Q. What is the nature of the business that you are in, sir? 22 A. I run a forensic audio lab. 23 Q. And were you contacted by the defendants in this action, 24 New Christian Church and Endeavor Academy in connection with 25 doing certain forensic work? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
6 35jopenf Gattillo - direct 1 A. Yes, sir. 2 Q. And can you briefly describe for the Court your background, 3 your educational background and experience as it relates to the 4 forensic work that you do? 5 MR. ROSENBERG: Your Honor, we don't contest 6 Mr. Gattillo's credentials to testify. You'll hear from our 7 expert, our expert trained Mr. Gattillo. So I can assume he 8 did a good job, and we'll accept the witness's testimony for 9 purpose of authenticating these tapes. 10 MR. FABIAN: If we could, your Honor, could we submit 11 his curriculum vitae so it could be marked as Defendant's 1? 12 THE COURT: Let's do it A, if you don't mind. 13 (Defendant's Exhibit A received in evidence) 14 Q. Now, Mr. Gattillo, in connection with your work that you 15 did for the defendants, did there come a time in October of 16 2002 when certain materials were delivered to you? 17 A. Yes, sir. 18 Q. And in connection -- 19 THE COURT: Excuse me, Mr. Fabian, just tell me, just 20 give me a short offer. What is all this? 21 MR. FABIAN: This relates to the four Mazza tapes, 22 your Honor, in which your Honor had indicated your Honor wanted 23 some testimony as to the -- 24 THE COURT: I'm sorry, what tapes; which ones? 25 MR. FABIAN: In the hearing back in June, your Honor, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
7 35jopenf Gattillo - direct 1 we had given testimony concerning the Mazza tapes, Mr. Mazza. 2 THE COURT: Who is Mazza? 3 MR. FABIAN: He had recovered a reel to reel tape from 4 ARE, and he actually had the physical reel to reel, and he 5 testified concerning that. And your Honor indicated you 6 wanted -- it wasn't coming in unless there was some expert 7 testimony in terms of the tape and its integration and whether 8 there were any breaks, stops, starts and so forth in it. 9 Mr. Gattillo -- 10 THE COURT: This was a tape of -- these are various of 11 the plaintiffs? 12 MR. FABIAN: Of Judith Skutch Whitson, in which she 13 made various statements concerning handing out the materials. 14 THE COURT: And this was the one where the witness 15 testified that he could not state that -- this is the question 16 of the integrity of the tape? 17 MR. FABIAN: Yes, that's what we're getting to, your 18 Honor. 19 THE COURT: Thanks. 20 Q. Getting back to my questioning, in or about October of 21 2002, did you receive certain materials from myself on behalf 22 of the defendants? 23 A. Yes, I did. 24 Q. And do you recall what those materials were? 25 A. It was a five inch reel to reel audio tape. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
8 35jopenf Gattillo - direct 1 Q. And did you receive anything else? 2 A. I believe I received a transcript. 3 Q. And did you as well receive four audio cassettes of those 4 particular excerpts? 5 A. At a later date, yes. 6 Q. And could you please tell the Court what you did in 7 connection with the reel to reel tape and the materials that 8 were delivered to you? 9 A. The reel to reel tapes were examined, listened to under 10 extreme listening, I would say. They are examined under a 11 microscope for indicators of stops, starts, pauses and any 12 other indicator of tampering. 13 Q. And in general, Mr. Gattillo, are there particular types of 14 tests that can be made, that should be made to reel to reel 15 tapes to determine if there are any what we'll call breaks, 16 starts and so forth? 17 A. Yes, any tapes, reel to reel or standard cassettes or even 18 microcassettes. 19 Q. Is there more than one test that can be done? 20 A. Yes. 21 Q. What are the test or tests that can be done? 22 A. The first would be critical listening. Listening first to 23 the speaker repeatedly, I would emphasize, and then listening 24 to the background itself for continuity. 25 Q. Did you do the critical listening test in connection with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
9 35jopenf Gattillo - direct 1 the Mazza, what we call the Mazza tape? 2 A. Yes, sir. 3 Q. And in connection with that critical listening, did you do 4 it from the reel to reel or had you done something to the tape 5 prior to that? 6 A. I would digitize the tape, basically recording it into a 7 computer in a digital format so that sections could be played 8 over and over or fast forward, rewind quickly. And it makes a 9 truer copy rather than losing one generation by copying it to 10 something else. 11 Q. And did you do any other types of testing besides critical 12 listening? 13 A. Yes, once inside the computer, you can evaluate the audio 14 as a wave form analysis, which is a spectro representation of 15 the words spoken themselves. 16 Q. Is this a standard test that is done? 17 A. Yes. 18 Q. What kind of equipment did you have to do this? 19 A. A specialized computer program, a computer and a digitizing 20 machine. 21 Q. Besides the digitizing and the critical listening and I 22 believe you just said spectro analysis; is that correct? 23 A. Yes. 24 Q. Is there any other test? 25 A. Microscopic examination and what would be referred to as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
10 35jopenf Gattillo - direct 1 magnetic resolution. 2 Q. Can you describe what that is? 3 A. That's a procedure where the tape is exposed to a fluid 4 containing metal particles. The fluid evaporates, the metal 5 particles stick to the audio portions of the recording. Then 6 you look at it under a microscope looking for a signature of 7 the stop, start pause and/or splices or cuts. 8 Q. And did you do any other testing? I think you had 9 mentioned some wave form analysis. Can you describe what that 10 is? 11 A. That's examining again the computerized copy for indicators 12 of where the recorder was started, stopped, paused; indicators 13 of anomalies like tapping, pop clicks. 14 Q. Now, did you do this analysis in connection with the 15 excerpts in issue that had been delivered to you? 16 A. Are we talking about the reel to reel or the -- 17 Q. On the Mazza, the reel to reel or the copies that he made? 18 A. Yes. 19 Q. And how did you do that testing? How did you investigate 20 the excerpts? 21 A. Again by isolating them, listening to them deliberately 22 closely. 23 Q. Did you have the excerpts -- were they themselves subject 24 to these various tests that you discussed? 25 A. Yes, sir. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
11 35jopenf Gattillo - direct 1 Q. Now, by the way, when you looked at this reel to reel and 2 the work that you did, do you know from approximately what 3 period of time this tape was? Was it a modern tape from the 4 80s or from the 90s or 2000s? 5 A. It's reel to reel tapes that are seldom seen nowadays. 6 Q. When was it more common? 7 A. In the 80s. Certainly after Watergate, during. 8 Q. And in connection -- by the way, in connection with these 9 particular tapes, the Mazza tapes, could you please state for 10 the Court what your conclusion was after you did these various 11 tests? 12 A. My conclusion was that the excerpts in particular, there 13 was a flow of information uninterrupted with nothing that would 14 indicate tampering. 15 Q. In connection with the entire tapes themselves, did you 16 find any evidence of tampering? 17 A. No. 18 Q. Did you find any evidence of clicks, stops, starts and so 19 forth? 20 A. Oh, certainly, yes. 21 Q. And can you state generally what were the causes of some of 22 these stops and starts and so forth? 23 A. If I'm not mistaken, they was a deliberate start at the 24 beginning of the lecture or conversation and deliberate stops 25 at the end. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
12 35jopenf Gattillo - direct 1 Q. Were there stops in between? 2 A. Not that I recall. 3 Q. And in connection with the Mazza tapes, did you prepare a 4 report? 5 A. Yes, I did. 6 Q. And I'm going to ask -- 7 MR. FABIAN: Your Honor, should we go through the 8 procedure of marking for identification? 9 THE COURT: Yes, mark it so we know it's admitted. 10 MR. FABIAN: We can mark as Defendant's B for 11 identification the signed report of Mr. Gattillo dated November 12 18, 2002, which is part of his report. 13 Your Honor, just so you'll know, his curriculum vitae 14 is attached and also there is a letter from me indicating what 15 I was delivering to him. 16 THE COURT: It's admitted. 17 (Defendant's Exhibit B received in evidence) 18 MR. FABIAN: I would ask if the witness could look at 19 that document. 20 Q. Mr. Gattillo, tell me if, in fact, that's your signature at 21 the end of the report? 22 A. Yes, it is. 23 Q. Can you please review that document and tell the Court 24 whether that constitutes your entire report in connection with 25 the Mazza tape? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
13 35jopenf Gattillo - direct 1 A. Yes, it is. 2 MR. FABIAN: I would ask that that be marked as 3 Defendant's B in evidence, your Honor. 4 THE COURT: It's in. 5 Q. Now, in connection with the report, Mr. Gattillo, and your 6 previous testimony, you had talked about critical listening as 7 one of the tests that was done. 8 Can you describe for the Court when you're talking 9 about critical listening, what are you listening for? Is there 10 one thing you're listening for or more than one? 11 A. There are many things you're listening for. You're 12 listening on headphones following a transcript, looking for 13 continuity. You're also listening for obvious clicks, noises 14 that could be associated with tampering, and you're listening 15 to backgrounds, background changes to show whether they are 16 free flowing and continuous. 17 Q. In connection to your listening to the Mazza tape, did you 18 find any discrepancies with respect to background or ambient 19 noise which would indicate there was some tampering? 20 A. No. 21 Q. Did you find any discrepancies in terms of the flow of the 22 statements made by the party doing the speaking to indicate 23 there had been any tampering? 24 A. No. 25 Q. Now, Mr. Gattillo, subsequent to your listening to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
14 35jopenf Gattillo - direct 1 Mazza tape, were there some other tapes that were delivered to 2 you? 3 A. Yes, I received four standard size cassettes in May for 4 examination. 5 MR. FABIAN: Now, your Honor, just as an offer of 6 proof at this point, we're going to be talking about the four 7 ARE tapes. 8 Your Honor, again, as I understood your Honor's order, 9 we were going to present testimony concerning the integration 10 of the tape and Mr. Gattillo's examination of it for any 11 tampering. 12 Q. Now, Mr. Gattillo, in connection with the examination of 13 the ARE tapes which were delivered to you in May, could you 14 describe for the Court the nature of these tapes that were 15 delivered to you? 16 A. The nature? 17 Q. Was it again a reel to reel tape or was it different, in a 18 different format? 19 A. These were four standard size audio cassettes as opposed to 20 open reel to reel. 21 MR. FABIAN: And I will represent to the Court that 22 when it was delivered to Mr. Gattillo, in fact it was the 23 copies, your Honor, that were made by the court reporter at the 24 deposition from the copies that were in ARE's possession when 25 we took the deposition? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
15 35jopenf Gattillo - direct 1 MR. ROSENBERG: I can't stipulate to what a court 2 reporter in Virginia Beach did. And Larry and I have a 3 different recollection. I have no recollection of the court 4 reporter making copies. We took a deposition of an ARE 5 representative by telephone who was down in Virginia Beach. I 6 have no recollection of the reporter making copies of audio 7 cassettes, so I can't stipulate. That's not testimony. 8 THE COURT: Anyhow, whatever they were, you got them? 9 THE WITNESS: Yes, sir. 10 Q. And what type of analysis did you do of the ARE tapes, 11 Mr. Gattillo? 12 A. I did limited analysis due to the fact that they were 13 copies as opposed to originals. 14 Q. And what analysis did you do? 15 A. Again -- 16 THE COURT: Excuse me, how do you know they were 17 copies as opposed to originals? 18 MR. FABIAN: Your Honor, again, we may have a 19 disagreement, but as to -- 20 THE COURT: How do you know that they were copies and 21 not originals? 22 THE WITNESS: There are tests that can be done to the 23 tape to determine whether it is an original or a copy. 24 THE COURT: I see. 25 Q. And did you do that test? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
16 35jopenf Gattillo - direct 1 A. Yes, I did. 2 Q. So you determined it was a copy? 3 A. Yes. 4 MR. FABIAN: I apologize, your Honor. I misunderstood 5 what you were asking. 6 Q. In connection with this copy, I believe you said -- what 7 test did you do? 8 A. Again, critical listening is the first thing, digitizing, 9 putting it into the computer and doing wave form analysis and 10 spectrum analysis. 11 Q. And is there any other type of analysis that can be done to 12 copies of tapes, to the best of your knowledge? 13 A. Well, you can't -- you can do microscopic examinations, but 14 they are not going to be valid because they are a copy. You're 15 not going to see the heads where they actually hit the tape, 16 where they would stop or pause. 17 Q. And that you did do in connection with the Mazza tape? 18 A. Yes. 19 Q. Now, in connection with these ARE tapes, did you find any 20 breaks or stops or starts based upon your critical listening? 21 A. Yes, I did. 22 Q. And did you find any in connection with the excerpts 23 themselves that are before this Court? 24 A. Within the excerpts themselves, no. 25 Q. Did you check on both sides of the excerpts? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
17 35jopenf Gattillo - direct 1 A. Yes, sir. 2 Q. And about how far on each side did you check? 3 A. All sides, beginning to end, on all four tapes repeatedly. 4 Q. And did you find any form of tampering based upon this 5 particular type of analysis? 6 A. In the excerpts, no. 7 Q. And how about on the tape itself, each tape itself? 8 A. Well, there are obvious anomalies that occurred, which I 9 noted in my report. 10 Q. Could you describe -- 11 A. There are deliberate stops, let's say, between the lecture 12 and the question period when they took a break. There are 13 situations where the tape in the copying process wound itself 14 and played backwards, so that the recording played backwards 15 when she got to that spot, which was also reflected on the 16 opposite side as you would expect. 17 Q. And was the playing backward near the excerpts that you 18 investigated? 19 A. No, this was toward the end of the tape. 20 Q. Okay. 21 And you testified in connection with the Mazza tapes 22 that when you do this critical hearing analysis, that you check 23 both for background and the flow of the material itself; is 24 that correct? 25 A. Yes, sir. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
18 35jopenf Gattillo - direct 1 Q. And did you do that in connection with the ARE tapes? 2 A. Yes, I did. 3 Q. What did you find with respect to the ARE tapes with 4 respect to background? 5 A. It was continuous and uninterrupted. 6 Q. What would indicate to you in terms of background noise 7 that there had been some tampering or playing with the tape? 8 A. Well, you would hear abrupt changes in the background. In 9 an auditorium you have echo. Somebody could be whispering, 10 somebody could be -- you would expect all of that to be 11 continuous and nonstop. Similar to if you were listening to a 12 radio in the background, you wouldn't expect it to jump from 13 one section to another or from one song to another. 14 Q. And in connection with the ARE tapes, did you find any of 15 this jumping or anything that would indicate that there had 16 been tampering? 17 A. No, not in the excerpts. 18 Q. Did you find it in the tapes themselves? 19 A. Again, there are anomolies throughout all the tapes 20 including speed changes, breaks, pops, clicks. 21 Q. And my question is to you, did any of these anomalies based 22 upon your experience indicate to you that there had been some 23 tampering or splicing of the tapes? 24 A. Not in the excerpts. 25 Q. I'm asking on the entire tapes themselves. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
19 35jopenf Gattillo - direct 1 A. I'm sorry, repeat the question. 2 Q. Did you listen to the entire tapes? 3 A. Yes, I did. 4 Q. Did you analyze the entire tapes? 5 A. Yes. 6 Q. Each of the four ARE tapes? 7 A. Yes. 8 Q. And you indicated, I believe, that there were certain 9 anomalies thank you found? 10 A. Yes. 11 Q. And in examining each of the entire four ARE tapes, did any 12 of these anomalies indicate to you that there had been any 13 tampering with the tapes? 14 A. Not having the originals to examine, that would be hard to 15 stipulate. 16 Q. But so I'm clear, were there any anomalies around the 17 excerpts which are in issue? 18 A. No. 19 MR. FABIAN: Your Honor, I would ask to be marked into 20 evidence as Defendant's C, the signed report of Mr. Gattillo in 21 connection with the ARE tapes. 22 THE COURT: What's being marked? 23 MR. FABIAN: Mr. Gattillo's report in connection with 24 the ARE tapes as Defendant's Exhibit C. 25 (Defendant's Exhibit C received in evidence) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 |
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