COMPLETE COURT TRANSCRIPT
Ford Motor Company .vs. Robert Lane "BlueOvalNews."
1 UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
2 SOUTHERN DIVISION
3
FORD MOTOR COMPANY,
4
Plaintiff, Civil Action
5 Case No. 99-74205
vs. August 30, 1999
6
ROBERT LANE,
7
8 Defendant.
9 ___________________________________/
10
11 TRANSCRIPT OF PRELIMINARY INJUNCTION HEARING
12 BEFORE THE HONORABLE NANCY G. EDMUNDS,
13 UNITED STATES DISTRICT JUDGE
14
APPEARANCES:
15
For the Plaintiff: ERNIE BROOKS, ESQ.
16
For the Defendant: MARK PICKRELL, ESQ.
17
Court Reporter: Lawrence R. Przybysz, MA, CSR, RPR
18 707 U.S. Courthouse
Detroit, Michigan 48226
19 (313) 963-2294
20
21
22
TRANSCRIPT PRODUCED BY COMPUTER-AIDED TRANSCRIPTION
23
Page 1
1
2 T A B L E O F C O N T E N T S
3
4 WITNESSES: PAGE:
5
6 ROBERT LANE
7
8 Direct Examination by Mr. Brooks 16
9 Cross-Examination by Mr. Pickrell 25
10
11 ROGER MAY
12
13 Direct Examination by Mr. Brooks 26
14 Cross-Examination by Mr. Pickrell 28
15 Redirect Examination by Mr. Brooks 29
16 Recross-Examination by Mr. Mr. Pickrell 30
17
18 ROBERT LANE
19
20 Direct Examination by Mr. Pickrell 33
21 Cross-Examination by Mr. Brooks 55
22 Redirect Examination by Mr. Pickrell 58
23 Recross-Examination by Mr. Brooks 63
24 Redirect Examination by Mr. Pickrell 66
25
Page 2
1 E X H I B I T S
2
3 Identification Offered Received
4
5 Defendant's Exhibit 1 41 41
6 Defendant's Exhibit 3 43 43
7
8
9
10
11
Page 3
1 Detroit, Michigan
2 August 30, 1999
3 - - -
4 THE COURT CLERK: Ford Motor Company versus
5 Robert Lane, number 99-74205.
6 THE COURT: Good morning, everyone. Mr.
7 Brooks.
8 MR. BROOKS: Good morning.
9 THE COURT: And I know I just met you
10 because I just sworn you in.
11 MR. PICKRELL: Mark Pickrell, your Honor.
12 THE COURT: Mr. Pickrell. I guess I'm not
13 entirely clear what Ford suggests that we do to
14 proceed this morning. The way the Temporary
15 Restraining Order was issued, and I'm sorry I wasn't
16 here last week when this was filed to have perhaps
17 shaped these proceedings somewhat differently, but
18 that not withstanding, I understand that the only
19 issue really before me, the only issue contested by
20 the defendant is part C one of the order issued by
21 Judge Cleland in my absence, and that is the
22 restraint, the temporary restraint on defendant's
23 using, copying or disclosing any internal document of
24 Ford Motor Company including the information
25 contained therein. Is that right, Mr. Pickrell?
Page 4
1 MR. PICKRELL: That is, your Honor. There
2 is an element with regard to that that I would like
3 to discuss but it's merely a clarification and not
4 about the actual language of the order or the
5 injunction.
6 THE COURT: All right. So what we are
7 really talking about is non-copyrighted documents of
8 Ford Motor Company that they argue are trade secret
9 documents, is that right?
10 MR. PICKRELL: That's correct, your Honor.
11 Although with regard to C two in the copyrighted
12 material, the section seven of the Copyright Act, the
13 fair use exception, is something that as I read the
14 Temporary Restraining Order, it says he is not going
15 to infringe the Copyright Act which he's not going
16 to, but if he did print copyright subject matter,
17 subject to the fair use exception of the Copyright
18 Act, that, as I understand it, would not be a
19 violation of either the TRO or the Preliminary
20 Injunction.
21 And so, copyrighted subject matter may be
22 published, I believe, your Honor, under this TRO and
23 under this injunction if entered by the Court. But
24 it would be subject to the fair use exception and
25 therefore, he would not violate, even if he published
Page 5
1 copyrighted subject matter because of the fair use
2 exception.
3 THE COURT: Well, the fair use exception is
4 somewhat limited. I mean, you would have to, I would
5 think -- I mean, I'm not going to go back and argue
6 or discuss -- well, let me amend that.
7 I think it's appropriate to say that he not
8 publish copyrighted material. And I think you're
9 correct, that there is a fair use exception, but it
10 would be your burden to establish that what he is
11 publishing is under the fair use exception. You
12 know, you can publish little bits of something in a
13 review. You can, if you are writing an article and
14 you want to compare one part of a copyrighted work to
15 another part of another copyrighted work, that's fair
16 use. But I don't understand that the taking of a
17 document, a copyrighted document or blueprint in
18 whole and just disseminating it would come under the
19 fair use exception.
20 MR. PICKRELL: I respectfully, your Honor,
21 don't think that would be the law. But in this case
22 I don't think that is going to be an issue, your
23 Honor. I am quite confident during the remainder of
24 the TRO or any Preliminary Injunction, Mr. Lane is
25 not going to copy in toto any document of Ford's.
Page 6
1 THE COURT: Well, Mr. Brooks, this is your
2 complaint. And although out of the order requires
3 the defendant to show cause, why don't you tell me
4 how you envision this hearing and what you would
5 propose for it.
6 MR. BROOKS: For the record, I am Ernie
7 Brooks. I am here this morning with Roger May who is
8 the CEO of Ford Global Technologies and also general
9 counsel there, a subsidiary of Ford.
10 We were uncertain exactly how it was going
11 to go forward. We have some declarations, we have
12 some materials that we have not filed depending on
13 what issues are addressed.
14 The threshhold approach from our side was
15 the brief that we filed to learn first whether
16 copying documents as we raised only by suggestion in
17 the introduction to the brief, whether that's speech
18 at all, whether copying is an act of speech.
19 And then the copyright, if we are over that
20 hurdle, that takes a major -- that resolves the case
21 as it's existed to date. Because as far as we know
22 the acts were taking wholesale documents and just
23 posting them. And it's only been copyright
24 infringement.
25 The relief that we sought was broader in
Page 7
1 two respects -- the C one, and also we wanted to
2 revisit the trademark. Because of the change in
3 circumstances, Mr. Lane, as we have reported to the
4 Court in the factual summary that we made, Mr. Lane's
5 contempt for the TRO before retaining counsel and
6 leaving the materials posted after our repeated
7 requests to take them down.
8 In that regard, we would think it would be
9 best to collect testimony from Mr. Lane, call him as
10 a witness in respect of his conduct in response to
11 our notice and after receiving the TRO so that we
12 could establish what we think rises to the level of
13 contempt, although we have not moved for contempt.
14 THE COURT: I don't really want to jump to
15 that just yet. Let me just make a couple of
16 inquiries of you because this has come in very
17 quickly. I just got your brief and the response
18 brief this morning within the last hour. And
19 although I did have an opportunity to go through all
20 of the papers that were filed last week over the
21 weekend, it's kind of -- it's kind of difficult to
22 know exactly, you know, what hole this peg goes into.
23 So, it does seem to me that the Michigan Uniform
24 Trade Secrets Act would be an important consideration
25 here. And I assume, Mr. Pickrell, that you have a
Page 8
1 copy of that Act?
2 MR. PICKRELL: I have reviewed it, your
3 Honor.
4 THE COURT: And you're familiar with the
5 provisions of that Act? It's a new Act. It just
6 went into affect at the beginning of this year or the
7 end of last year and there is nothing reported that I
8 could find on it.
9 But that Act would permit an injunction
10 against misappropriation of trade secret materials
11 which is defined as the acquisition of a trade secret
12 of another by a person who knows or has reason to
13 know that the trade secret was acquired by improper
14 means or, two, disclosure or use of a trade secret of
15 another without expressed or implied consent by a
16 person who did one or more of the following: (a)
17 used improper means to acquire knowledge of the trade
18 secret or, (b), at the time of disclosure or use,
19 knew or had reason to know that his or her knowledge
20 of the trade secret was derived from or through a
21 person who had utilized improper means to acquire it,
22 acquired under circumstances giving rise to a duty to
23 maintain its secrecy or limit its use or derive from
24 or through a person who owed a duty to the person to
25 maintain its secrecy or limit its use.
Page 9
1 So, I guess the question that has seemed
2 important to me with respect to that Act is under
3 what circumstances did Mr. Lane obtain the documents
4 that he published? Because if he knew or had reason
5 to know of the circumstances described in the Act
6 then he would be in violation of the Act and an
7 injunction might be appropriate.
8 Mr. Pickrell is about to jump to his feet,
9 perhaps to argue that the Act is unconstitutional or
10 abridges his freedom of speech in an impermissible
11 way.
12 MR. PICKRELL: You preceded me, your Honor.
13 That's correct. Absolutely. The Michigan statute is
14 quite broad and implicates First Amendment concerns.
15 Specifically, if the Court is of the mind
16 to use the Act as a reason to restrain Mr. Lane's
17 publication of information provided to him, that
18 obviously has First Amendment implications. And if
19 this Court restrained publication of that information
20 would be a prior restraint that Mr. Lane respectfully
21 submits would be a violation of the First Amendment.
22 The First Amendment would have to pre-empt the
23 Michigan Trade Secrets Act to that extent.
24 THE COURT: Okay. And what authority do
25 you rely on to suggest that the First Amendment
Page 10
1 trumps this Act here?
2 MR. PICKRELL: Proctor and Gamble versus
3 Bankers Trust, your Honor.
4 THE COURT: Okay. Now, that didn't involve
5 trade secrets.
6 MR. PICKRELL: That's not correct, your
7 Honor.
8 THE COURT: That is correct. What it
9 involved was documents -- I just read it. It
10 involved documents that were exchanged between
11 Proctor and Gamble and Bankers Trust under a
12 protective order that was extremely broad and which
13 they designated as confidential.
14 But that is not the same, I don't think, as
15 publishing the type of documents that are at issue
16 here, all the blueprints, the powertrain documents,
17 the platform documents which have been appropriately
18 maintained as secret and confidential by Ford in
19 their business. I mean, they are competitive
20 documents which would never willingly be released to
21 competitors, as far as I can tell.
22 That's not the same as a broad protective
23 order issued between two litigating parties who want,
24 you know, their motion to amend the complaint which
25 was the document at issue in the Business Week case,
Page 11
1 the Proctor and Gamble case.
2 It seems to me that there is, first of all,
3 a difference between a document sought to be
4 protected and, second of all, a difference between a
5 publication such as Business Week being restrained
6 prior to its publication of such and a single
7 internet provider or internet user, website owner
8 deciding to disseminate trade secret information to
9 the world. I don't really see Mr. Lane as Business
10 Week.
11 MR. PICKRELL: Your Honor, respectfully,
12 let me address two points. First, regarding the
13 procedure that we're going to go through this
14 morning.
15 Mr. Lane is happy to engage in colloquy
16 with the Court on any questions the Court has. We
17 are also prepared to go forward with evidence, have
18 arguments and to state our case and let the Court
19 decide. However the Court wants to proceed, we're
20 going to do it.
21 But with regard to the substantive issue,
22 whether trade secrets are involved, the Sixth Circuit
23 specifically wrote in Proctor and Gamble versus
24 Bankers Trust, F3d 222 page 221 -- 222 of the
25 opinion, that the reason parties could designate
Page 12
1 documents as confidential pursuant to the protective
2 order was that they contained, and the Sixth Circuit
3 quotes them as saying, quote, trade secrets or other
4 confidential research, development or commercial
5 information. So, as a factual matter, the Sixth
6 Circuit in Proctor and Gamble versus Bankers Trust
7 was deciding the case based upon what Proctor and
8 Gamble and Bankers Trust said were its trade secrets
9 and confidential information just like this case.
10 And Mr. Lane would respectfully submit that
11 it is exactly that information that Proctor and
12 Gamble and Bankers Trust -- that the Court was
13 looking at, number one.
14 Number two, specifically with regard to
15 whether Robert Lane is Business Week, he's not.
16 Robert Lane is Robert Lane. He has an internet
17 website that produces a newsletter and we would be
18 happy to put on evidence about his publication, what
19 he does, his press credentials, what he has done as a
20 journalist, for this Court.
21 But the fact of the matter is, the First
22 Amendment doesn't say that Business Week has freedom
23 of the press but smaller publishers don't. And Mr.
24 Lane would respectfully submit that the First
25 Amendment applies to even the publisher of a small
Page 13
1 newsletter and not just Business Week or the New York
2 Times.
3 THE COURT: No, I wasn't suggesting that a
4 small publisher is somehow not protected in the same
5 way Business Week is protected. What I am suggesting
6 is that the internet and the availability to
7 circulate the kind of information that Mr. Lane is
8 circulating by one person with an ax to grind makes
9 some of these issues much more complex and difficult
10 to resolve. I don't see this as nearly as
11 straightforward a case as the Business Week Proctor
12 and Gamble case.
13 MR. BROOKS: Your Honor, may I?
14 THE COURT: Mr. Brooks?
15 MR. BROOKS: May I make two comments about
16 Proctor and Gamble? First, it may be difficult to
17 find an opinion because, as the Court is aware, Judge
18 Meritt wrote the opinion but it was only concurrent
19 so presumably not all of the logic was adopted, and
20 Judge Brown wrote a dissent. So I'm not sure that
21 it's as strong as if it had been an opinion of the
22 full panel.
23 The second point is that there was nothing
24 before the Sixth Circuit about trade secrets. The
25 protective order may well have referenced trade
Page 14
1 secrets but Judge Feikens, as the Court is aware, has
2 upheld and released all the materials before the
3 docket of the Sixth Circuit. And no one was
4 protesting. We do not concede that the materials
5 were not trade secrets. In fact, we strongly advance
6 the argument that it is trade secrets. So even if
7 you take Chief Judge Meritt's opinion at fact value,
8 it does not apply here.
9 THE COURT: Well, let's proceed first to
10 take evidence under the Michigan Uniform Trade
11 Secrets Act, the Copyright Act or for whatever other
12 purpose you think is appropriate, Mr. Brooks, but
13 avoiding the contempt issue for right now.
14 MR. BROOKS: Yes.
15 THE COURT: Let's stick to the issue at
16 hand and if I think we're getting too far afield,
17 I'll let you know.
18 MR. BROOKS: Very well, your Honor.
19 MR. PICKRELL: Your Honor, one question.
20 Are we going to have the opportunity to put on
21 evidence?
22 THE COURT: Yes, sure. Oh, in my court I
23 only let one side do it.
24 MR. PICKRELL: I just wanted to make sure,
25 your Honor.
Page 15
1 MR. BROOKS: Your Honor, we would call
2 Robert Lane.
3 THE COURT: Mr. Lane?
4 R O B E R T L A N E,
5 having been first called as a witness at or about
6 10:45 a.m. was duly sworn and testified upon his oath
7 as follows:
8 THE COURT: Take the stand, please. Mr.
9 Lane is being called as an adverse witness and
10 therefore I will permit cross-examination.
11 MR. BROOKS: Thank you.
12 DIRECT EXAMINATION
13 BY MR. BROOKS:
14 Q Would you state your full name for the record?
15 A Robert Lane.
16 Q Mr. Lane, regarding the materials from Ford that were
17 posted on your BlueOvalNews.com website, can you tell
18 us what volume of materials you received and posted?
19 A What volume?
20 Q Correct. How many documents?
21 A That I posted?
22 Q Yes.
23 A Maybe a hundred and twelve total over the course --
24 since it was in existence since October of '98.
25 Q And did you have additional documents from Ford that
Page 16
1 you did not post?
2 A Yes.
3 Q Including what kinds of documents?
4 A Blueprints, powertrain operations, platform,
5 emissions, CAFE ratings, safety, documents that would
6 normally be associated with automotive production.
7 Q Did you believe these documents were available from
8 any publicly accessible source?
9 A No.
10 Q Did you understand them to involve and include
11 disclosure of trade secrets of Ford Motor?
12 A Not exactly, no.
13 Q What about the blueprints? Did you understand that
14 they were blueprints of inactive use by Ford Motor?
15 A Some were. Some date back to the 1960's. Some were
16 stamped, Property of Ford Motor Company. The two
17 that we used had no markings on them whatsoever.
18 Q I'm sorry?
19 A The two that we posted on our website, the crank
20 shaft and cylinder head had no markings whatsoever.
21 Some of the blueprints do say, Property of Ford,
22 Proprietary Copyright and some don't. Some are
23 blank, just printouts.
24 Q And regarding the other documents, the non-blueprint
25 documents, did you understand that those documents,
Page 17
1 at least some of those documents contained
2 information confidential to Ford?
3 A Yes.
4 Q Did you understand that that information was relevant
5 to Ford's current business affairs?
6 A Definitely.
7 Q And did you understand that it was not accessible to
8 the public?
9 A Yes.
10 Q Did you also understand that whoever gave it to you
11 violated the duty to Ford in giving it to you?
12 A Not exactly, no.
13 Q Did you have that impression though?
14 A Some of the documents, yes, definitely.
15 Q Do you know who gave them to you?
16 A No.
17 Q Do you know who gave any of them to you?
18 A No.
19 Q Did you understand, do you understand that the Ford
20 employees have a duty to Ford regarding the operating
21 information of Ford Motor and its disclosure?
22 A From what I've been told, yes.
23 Q Were you told that during the discussions with Ford
24 representatives?
25 A No. Actually, an internal memo was sent to us which
Page 18
1 was written by Richard Parry Jones discussing this
2 leak.
3 THE COURT: Could I ask you if you would
4 please not refer to yourself as us.
5 THE WITNESS: I'm sorry.
6 A A document was mailed to me that was written by
7 Richard Parry Jones describing this, that employees
8 should not be engaging in this kind of activity. We
9 took that document --
10 THE COURT: You took that document?
11 A I took that document and put -- posted it on my
12 website.
13 Q (Continuing, by Mr. Brooks): Was that document
14 received by you before you posted the internal
15 documents of Ford?
16 A Yes.
17 Q Did you understand that that document served as your
18 notice that Ford employees were prohibited from
19 giving you the kinds of things you were posting?
20 A Not exactly, no. I wasn't certain the document was
21 actually genuine. I took it as maybe this could be
22 and couldn't be. I'm not familiar with Ford security
23 issues of that nature.
24 Q Did you have an understanding that at least from
25 Ford's side that it was their intent and belief they
Page 19
1 had the right to prohibit publication of this type of
2 document, these internal documents that you were
3 posting?
4 A They would hope it wouldn't get out, yes.
5 Q In fact, you met with Ford representative Don Aiken,
6 correct?
7 A Correct.
8 Q And you had -- you had the specific discussion with
9 him about posting confidential proprietary materials
10 at Ford, correct?
11 A Yes.
12 Q Was there a discussion at one point about you making
13 an inquiry as to whether a particular document was
14 proprietary or confidential to Ford before posting?
15 A Definitely.
16 Q Did you agree to do that?
17 A Yes.
18 Q Regarding the documents that you posted, you did not
19 make any inquiry to Ford, however, correct?
20 A Not correct.
21 Q I'm sorry?
22 A That is incorrect.
23 Q When you posted the documents last week did you get
24 Ford's approval to post them?
25 A No. We had attempted. However -- I had attempted,
Page 20
1 however, 09 July, I was instructed by Mr. Donald
2 Aiken to contact Jim Bright, Public Affairs, that --
3 in which I received -- if any document was
4 questionable to contact him. I attempted to do that
5 on July ninth. There was no response. On July
6 eleventh I did post that document.
7 Q What document was that?
8 A It was actually a document, if I may correct myself,
9 it was a discussion on 1998 Cobra's problems. But we
10 had taken -- I had taken material from those
11 documents and put them into my own language.
12 Q You did not post the document?
13 A Correct.
14 Q Regarding the EPA discussions and the long term
15 plans, you did not make any inquiry to Ford about
16 whether they claimed any confidential rights in that
17 document?
18 A Correct.
19 Q Regarding the massive documents, I think, forty some,
20 or however many were posted last -- was it Wednesday
21 that you posted them?
22 A Tuesday and Wednesday.
23 Q Tuesday, the twenty-fourth of August and Wednesday
24 the twenty-fifth, you did not make any inquiry to
25 Ford regarding any of those documents, correct?
Page 21
1 A No. Actually I never heard from them on the first
2 inquiry. I didn't bother. And they never mentioned
3 it at the meeting after that. We had a meeting on
4 maybe the thirteenth and it was never mentioned.
5 Q Are you suggesting --
6 A Go ahead.
7 Q Are you suggesting, Mr. Lane, that you thought Ford
8 had waived all of its rights and was giving you
9 permission to publish whatever you wanted to?
10 A Definitely not. I am not suggesting that at all. I
11 spoke with Mr. Aiken and give him a copy of the fax
12 we had sent to Jim Bright. And I said this is what I
13 sent to Jim Bright and never heard a response. He
14 might have copied that document from me, the fax
15 transmittal and so forth. But it never came up as,
16 don't post anything. I don't think that was ever
17 said from July thirteenth forward.
18 Q When you received -- let me start with that.
19 A Okay.
20 Q The documents you posted on Tuesday the twenty-fourth
21 and Wednesday the twenty-fifth, those were posted
22 after my law firm gave you notice that suit would be
23 filed on behalf of Ford?
24 A Correct, via phone call. A phone message was left.
25 Q Right. At that time, weren't you, did you make any
Page 22
1 inquiry of my law firm regarding what the suit was
2 about?
3 A No. We received -- I'm sorry. I had received a
4 phone call from a person identifying themselves as a
5 Ford Motor Company employee at the legal office
6 saying that there was a lawsuit coming next week.
7 This was the preceding Wednesday. And that I was to
8 be prepared for that federal lawsuit.
9 Q Didn't you receive a letter from my office on Tuesday
10 that the suit would be filed Wednesday?
11 A No, sir, it didn't come in until Thursday morning.
12 Q Were you down here Wednesday morning in the clerk's
13 office?
14 A I was.
15 MR. PICKRELL: Your Honor, this seems to be
16 about the contempt. I'm happy to go forward and
17 cross-examine but that seems to be where we are
18 going.
19 THE COURT: No, I don't think this is close
20 to the contempt. This goes, to me, it goes to his
21 awareness of Ford's position with respect to the
22 confidential nature of the documents.
23 MR. BROOKS: Yes, that's all.
24 Q (Continuing, by Mr. Brooks): Mr. Lane, so you do
25 acknowledge receiving notice that suit was going to
Page 23
1 be filed on Wednesday, that you received that notice
2 Tuesday, correct?
3 A It was a phone call I received on an answering
4 machine. That was it. There was no other -- I don't
5 think any form of media besides that.
6 Q It was sufficient to bring you down here at nine
7 o'clock Wednesday morning, correct?
8 A Yes. Because -- the reason why is because I had been
9 told the week previous by a Ford employee through a
10 phone call it was going to happen. So it just made
11 sense, correct.
12 Q And you posted the documents after notice that suit
13 would be filed, the forty some odd documents,
14 correct?
15 A Correct.
16 Q When you did that, you knew that Ford considered them
17 confidential, most, if not all, correct?
18 A Most, if not all, correct.
19 Q You did that knowing, expecting that the suit Ford
20 was going to file was directed to documents of that
21 type, correct?
22 A Correct.
23 MR. BROOKS: May have a moment to confer,
24 your Honor?
25 THE COURT: You may.
Page 24
1 MR. BROOKS: Thank you, Mr. Lane. That
2 concludes our examination of Mr. Lane.
3 THE COURT: Cross-examine, Mr. Pickrell.
4 MR. PICKRELL: Does he rest as to all
5 witnesses?
6 THE COURT: Pardon?
7 MR. PICKRELL: Does he rest as to all
8 witnesses?
9 THE COURT: I don't believe he does.
10 MR. PICKRELL: Okay. I didn't hear him.
11 Your Honor, I will be happy to procced in
12 one of two ways. Either cover his testimony that I
13 am going to cover when we get our chance to present
14 evidence -- if you want that now, or I can wait.
15 Either way.
16 THE COURT: I think you need to just cover
17 the subjects that Mr. Brooks covered right now and I
18 will see what his entire presentation is and then I
19 will let you make yours.
20 MR. PICKRELL: Thank you, your Honor.
21 CROSS-EXAMINATION
22 BY MR. PICKRELL:
23 Q I only have one question, Robert, at this point. Did
24 you post any Ford documents after you received notice
25 that this district court entered its TRO, its
Page 25
1 Temporary Restraining Order?
2 A Definitely not.
3 Q Thank you, Mr. Lane.
4 THE COURT: Mr. Brooks, anything further?
5 MR. BROOKS: No, your Honor. Thank you.
6 THE COURT: You may step down.
7
8 THE COURT: Mr. Brooks, anything further?
9 MR. BROOKS: No, your Honor, thank you.
10 THE COURT: You may step down.
11 MR. BROOKS: Your Honor, as our next
12 witness, we call Roger May.
13 R O G E R M A Y,
14 having been first called as a witness at or about
15 10:55 a.m. was duly sworn and testified upon his oath
16 as follows:
17 THE COURT: May, M-a-y?
18 THE WITNESS: M-a-y.
19 DIRECT EXAMINATION
20 BY MR. BROOKS:
21 Q Mr. May, would you state your full name for the
22 record?
23 A Roger L. May, M-a-y.
24 Q Can you tell us your present employment, Mr. May?
25 A I am the president and chief executive officer of
Page 26
1 Ford Global Technologies and I also serve as general
2 counsel in that company. It's a subsidiary of Ford
3 Motor Company.
4 Q What is the activity of Ford Global Technologies?
5 A Among other things, we manage the intellectual
6 property matters, intellectual property law matters
7 for Ford Motor Company and all its subsidiaries
8 worldwide.
9 Q In that capacity, are you familiar with the policies
10 and activities of Ford in protecting such
11 intellectual property?
12 A Yes.
13 Q Can you tell the Court, Mr. May, what the policy of
14 Ford is regarding intellectual property in the form
15 of trade secrets, in particular?
16 A All employees of Ford Motor Company sign an agreement
17 which requires that they abide by all the policies
18 and directives of the company. The company has
19 procedures which are specifically outlined in several
20 different directives including most specifically
21 directive C one ten which outlines the obligation of
22 all employees to honor the confidentiality of Ford's
23 internal documents. And I might add also, the
24 documents of others.
25 Q Mr. May, regarding blueprints, does Ford Global
Page 27
1 Technologies and Ford Motor have a position on the
2 trade secret status of such blueprints? And if so,
3 can you explain what it's based on?
4 A Ford Motor Company views all of the blueprints and
5 documents in support of those blueprints as well as
6 other documents outlining our strategic business
7 information to be confidential and a trade secret in
8 nature. And our employees are regularly advised of
9 the nature of these materials and they are admonished
10 to adhere to the provisions of the directives and
11 policies of the company.
12 MR. BROOKS: Your Honor, that concludes my
13 direct examination of Mr. May.
15 BY MR. PICKRELL:
16 Q Good morning, Mr. May. My name is Mark Pickrell.
17 A Good morning.
18 Q Are you aware who sent Mr. Lane the Ford internal
19 documents?
20 A No, I am not.
21 Q Do you know if anyone at Ford in Ford management
22 knows who sent Mr. Lane Ford's internal documents?
23 A To the best of my knowledge, no one knows.
24 Q Have you taken any efforts to find out who sent Mr.
25 Lane Ford's internal documents?
Page 28
1 A We have conducted an investigation and it's ongoing.
2 Q And you failed to find out which of your employees
3 violated your policies?
4 A We have no evidence thus far to indicate that an
5 employee did violate.
6 Q Oh. So it may be that no employee of yours handed
7 any trade secrets over to --
8 A I can't speculate, sir, on how Mr. Lane obtained and
9 received those documents. All I know is what he has
10 said.
11 Q Okay. So you can't testify here today that any of
12 your employees or any supplier or contracting agent
13 ever gave Mr. Lane any of Ford's internal documents?
14 A No, I cannot.
15 Q Thank you.
16 MR. PICKRELL: That's all, your Honor.
17 THE COURT: Redirect?
18 MR. BROOKS: Just one point, your Honor?
19 REDIRECT EXAMINATION
20 BY MR. BROOKS:
21 Q Mr. May, you indicated that you only know what Mr.
22 Lane has said. What did you have reference to with
23 that comment?
24 A I'm referring to the numerous comments on his website
25 regarding his having received information on a
Page 29
1 regular basis from Ford employees and his stating
2 that he had attended a Ford meeting surreptitiously.
3 And I am referring to his continual emphasis that
4 these documents were things that he was going to
5 publish. At one point he was encouraging Ford
6 employees to give him documents.
7 Q Thank you, Mr. May.
8 MR. PICKRELL: Recross, your Honor. Thank
9 you.
10 RECROSS-EXAMINATION
11 BY MR. PICKRELL:
12 Q Mr. May, so you're saying that you have no idea
13 whether anything Mr. Lane said on his website was
14 true, do you?
15 A I do not.
16 Q Okay. Specifically, you allege that Mr. Lane
17 surreptiously --
18 A All I would say, if I might interrupt, --
19 Q Please.
20 A -- I would say that I do know that Mr. Lane had Ford
21 documents and that he published them on his website.
22 I have reviewed the documents and I know that they
23 are documents from Ford Motor Company and they do
24 include internal trade secret confidential,
25 proprietary, strategic information.
Page 30
1 Q You allege that Mr. Lane surreptitiously went to a
2 Ford meeting?
3 A It's my understanding he bragged about that on the
4 website.
5 Q Please answer the question. Do you have any personal
6 knowledge --
7 THE COURT: Excuse me. What he testified
8 to was only that Mr. Lane made a comment on his
9 website himself that he had attended it. My
10 understanding from his testimony, from his direct was
11 not that he was making that allegation, apart from
12 what Mr. Lane himself had said.
13 MR. PICKRELL: That's correct, your Honor.
14 I was just trying to establish and I was trying to
15 get Mr. May to testify whether he has any personal
16 knowledge of whether that's true or not under the
17 circumstances that he has characterized. I strictly
18 wanted to say, he made an allegation about what's on
19 the website. I wanted to be clear that he had no
20 personal knowledge that can support the truth of the
21 matter or the characterization of what he has said on
22 the website.
23 A I read that on the website.
24 Q (Continuing, by Mr. Pickrell): But you have no
25 personal knowledge whether it's true or not?
Page 31
1 A No, I have none, other than the fact that he
2 published the agenda.
3 Q What agenda are you talking about?
4 A The agenda of the Mustang Team meeting that he
5 attended.
6 Q Do you know whether he was invited to the Mustang
7 Team meeting?
8 A No. I assume he was not because it was a meeting
9 which was internal only.
10 Q You assume he was not. But you don't know. So if he
11 comes up here and testifies and said he was invited,
12 you couldn't contradict that fact?
13 A Ford Motor Company did not invite him. And I could
14 confirm that.
15 Q No. Your personal knowledge --
16 A It was my belief that he was not invited.
17 Q I want to know your personal knowledge. Do you know
18 whether he was invited or not?
19 A I can tell you that I was told by --
20 MR. PICKRELL: Objection. Hearsay, your
21 Honor.
22 A -- that it was a confidential meeting of Team Mustang
23 and no outsiders were invited, including the press.
24 Q Okay. Just to be clear, because you're not answering
25 the question, can you testify today that Mr. Robert
Page 32
1 Lane was not actually invited to the meeting? Yes or
2 no.
3 A Not with my direct knowledge, no.
4 Q Thank you, your Honor.
5 THE COURT: Anything further?
6 MR. BROOKS: No, your Honor.
7 THE COURT: You may step down.
8 MR. BROOKS: May I have just a moment to
9 confer, your Honor?
10 THE COURT: You may.
11 MR. BROOKS: Your Honor, that's the
12 evidentiary presentation that we have for the Court.
13 We rest on this hearing regarding the trade secret
14 matter, understanding that the copyright was
15 basically undisputed.
16 THE COURT: All right. Mr.Pickrell?
17 MR. PICKRELL: Call Robert Lane to the
18 stand, your Honor.
19 (Robert Lane recalled as a witness at or
20 about eleven o'clock a.m.)
21 THE COURT: Are you still under oath, Mr.
22 Lane.
23 DIRECT EXAMINATION
24 BY MR. PICKRELL:
25 Q Please state your name for the Court.
Page 33
1 A Robert Lane.
2 Q What is your address?
3 A xxxxx
4 Q What is your occupation?
5 A Student --
6 Q Do you publish a newletter?
7 A -- and journalist.
8 Q Do you publish a newsletter?
9 A Definitely.
10 Q What newsletter do you publish?
11 A BlueOvalNews.com.
12 Q Would you spell it, Mr. Lane?
13 A B-l-u-e-o-v-a-l-n-e-w-s.c-o-m.
14 Q Mr. Lane, why do you call your publication
15 BlueOvalNews.com?
16 A Because we report the news and events that focus on
17 Ford Motor Company.
18 THE COURT: You mean, you?
19 THE WITNESS: I.
20 Q (Continuing, by Mr. Pickrell): When you say we, do
21 other people help you with your publication?
22 A No.
23 Q Does your wife help you? I'm trying to explain to
24 the Court why we keeps coming in.
25 A She might scan documents and things of that nature.
Page 34
1 She might have called to get press releases. As a
2 matter of fact, she has called Ford Public Affairs to
3 obtain press releases.
4 Q Now then, as part of the newsletter that you have
5 published, have you ever received any media
6 credentials in connection with your newsletter?
7 A Yes.
8 Q What media credentials have you received?
9 A Ford Motor Company Public Affairs, North American
10 International Auto Show, Chicago International Auto
11 Show.
12 Q How did the Ford Motor Company give you media
13 credentials? How does that work?
14 A We applied through a media website as instructed --
15 THE COURT: I need you to say I unless you
16 are speaking about you and your wife together doing
17 something.
18 THE WITNESS: We did do that. That's true.
19 So that was a we.
20 THE COURT: She has media credentials too?
21 THE WITNESS: She does not. But she was
22 the one who called Ford Public Affairs to verify that
23 our e-mail had gotten through to them.
24 Q (Continuing, by Mr. Pickrell): Do you do business as
25 Robert Warner Publications?
Page 35
1 A Correct.
2 Q Now then, so, if you would, please tell us about your
3 individual media credentials from Ford Motor Company,
4 how you got them and what you did with them.
5 A Okay. I and my wife, both of us, applied through
6 Ford's media website as instructed to fill out a
7 form, e-mail it back to them in which they would send
8 us back a password and a user ID to log into their
9 media website. This would allow us to download press
10 releases, photographs and also give us access to Ford
11 employees' phone numbers, management, things of this
12 nature.
13 Q Did -- was the website open to the public or was it
14 for the media only?
15 A For the media only.
16 Q Did you ever receive any correspondence from Ford
17 referring to you as a journalist?
18 A Definitely.
19 MR. PICKRELL: I didn't have a chance to
20 make copies, your Honor, so I only have one. I do
21 want to show this to the witness.
22 THE COURT: Pardon?
23 MR. PICKRELL: I wanted to show a document
24 to opposing counsel first. I don't have copies. I
25 apologize, your Honor. May I approach the witness,
Page 36
1 your Honor?
2 THE COURT: You may.
3 Q (Continuing, by Mr. Pickrell): Mr. Lane, I'm going
4 to hand you a document. Please look at it and see if
5 you can identify it.
6 A I can, yes.
7 Q What is that document?
8 A It's a document entitled, Ford Motor Company, Media
9 Information Center, dated twenty-five June, 1999.
10 Q Who is it addressed to?
11 A Dear journalist.
12 Q Who sent it to you?
13 A John Emmert, Director of Ford Media dot com, I
14 suppose. It doesn't really -- Director.
15 Q Okay. As part of your publication of your
16 newsletter, have you received any other privileges as
17 a member of the media?
18 A Yes.
19 Q What?
20 A We were invited, my wife and I both received media
21 credentials to attend the North American
22 International Auto Show.
23 Q As a member of the press?
24 A Definitely.
25 Q Okay. And as part of your work with your newsletter,
Page 37
1 have you ever been asked to attend any conferences by
2 any universities with regard to journalism and
3 journalism professionalism?
4 A I have, yes.
5 Q Would you please tell us about those?
6 A It was the University of Western Michigan, they
7 invited myself to bring examples of my work to their
8 university meeting to aspiring journlists who were
9 still students.
10 Q Okay. Now then, Mr. Lane, as part of your work with
11 BlueOvalNews.com you said that you provide
12 information about Ford to your customers. Do you
13 consider yourself to be a publisher?
14 A Definitely.
15 Q Do you consider yourself to be a reporter?
16 A Definitely.
17 Q Now then, as part of your work at BlueOvalNews.com,
18 what kind of information or articles do you provide
19 to your readers?
20 A Various environmental tests, upcoming models, CAFE
21 standards, collision standards, drive train data,
22 anything that would be associated with the
23 manufacturer of a vehicle and sale of a vehicle.
24 Q Is that the sort of the information that your
25 readers, you believe, want to read?
Page 38
1 A Definitely.
2 Q Okay. Mr. Lane, I'm going to hand you a copy of a
3 document that was included in the movant's papers.
4 And it is a past article from your website. And then
5 I have another one as well.
6 MR. PICKRELL: If I may approach, your
7 Honor?
8 THE COURT: You may.
9 Q (Continuing, by Mr. Pickrell): If you would, Mr.
10 Lane, please review that document and tell me if you
11 can identify it?
12 A I can.
13 Q What is that document?
14 A This was written by me on thirteen July '99 and it
15 questioned the consumers' complaints that the 1999
16 Cobra Mustang had serious quality issues.
17 Q And how did you write -- what is the format of the
18 document? If you would characterize for the Court
19 the way you wrote your piece.
20 A We had obtained through anonymous sources in the U.S.
21 mail --
22 THE COURT: I obtained? You had obtained?
23 THE WITNESS: Well --
24 THE COURT: Addressed to you and your wife?
25 THE WITNESS: Well, it was written to
Page 39
1 BlueOvalNews. I. I will change it to I.
2 Q (Continuing, by Mr. Pickrell): Do your best, Mr.
3 Lane, if you would.
4 A I obtained documents through the U.S. mail that
5 contained five documents that appeared to have been
6 documents written by Ford Motor Company engineers
7 and/or executives detailing these defects.
8 Q Okay. And what did you write in your article about
9 that Ford Cobra?
10 A Well, the article had two sides, the left and the
11 right. The left side discussed the safety issues.
12 That is, that the Mustang had a driveline or
13 driveshaft imbalance and/or vibrations. The right
14 side of the article addressed the consumers'
15 complaint that the engine is seriously down in
16 horsepower and that there might be design flaws that
17 Ford was aware of, according to the document.
18 Q And did the documents verify previously reported
19 consumer concerns about drivechain rattling and
20 vibrations?
21 A Definitely.
22 Q Did you use the information that was provided to you
23 to document allegations that your consumers and your
24 readers or that Ford's consumers and your readers
25 knew were of concern to them that affected safety?
Page 40
1 A Definitely.
2 Q Okay. And how did you use the documents that you
3 received through the mail anonomously to find that
4 out and to write your article?
5 A Right. I posted these on my website and I also
6 e-mailed other websites, their web masters to notify
7 their readers of the concerns that were claimed on
8 message boards.
9 Q And did you quote from portions of the documents that
10 someone mailed to you that you believe were Ford
11 internal documents to support the concerns that had
12 been circulating about the Cobra?
13 A Definitely.
14 Q Thank you. I would like that document back.
15 MR. PICKRELL: May I approach, your Honor?
16 THE COURT: If you're going to rely on this
17 or any of the other documents, the other documents
18 that you asked Mr. Lane to identify, you need to move
19 its admission into evidence.
20 MR. PICKRELL: I would be happy to, your
21 Honor, although the other side, I refer to them as
22 documents, I selected these but I would be happy to
23 enter them if the Court were to permit --
24 THE COURT: Well, nothing is in evidence
25 right now.
Page 41
1 MR. PICKRELL: Okay. They were filed.
2 They should be part of the record. But if I could,
3 your Honor, at this point I would move the admission
4 first of the June twenty-fifth letter, 1999 that Ford
5 sent to Mr. Lane as, Dear Journalist.
6 THE COURT CLERK: Is this an extra copy for
7 the Court?
8 MR. PICKRELL: That is the only copy I
9 have. And for the Court's record, I apologize.
10 THE COURT: Received. Any objection?
11 MR. BROOKS: No, your Honor.
12 THE COURT: Received. We will mark that
13 defendant's exhibit one.
14 MR. PICKRELL: As well, your Honor, I would
15 like to mark as exhibit two the July thirteenth, 1999
16 issue of BlueOvalNews.com discussing Cobra's problems
17 and facts supporting it from Ford's internal
18 documents.
19 Q (Continuing, by Mr. Pickrell): One more document,
20 Mr. Lane.
21 MR. PICKRELL: May I approach, your Honor?
22 THE COURT: You may.
23 Q (Continuing, by Mr. Pickrell): Mr.
24 Lane, I'm going to show you a document and ask you if
25 you can identify that.
Page 42
1 A Definitely.
2 Q What is that document?
3 A A document I posted on twenty-seven July, 1999
4 referencing Ford's emission CAFE standards.
5 Q Is that your newsletter?
6 A Yes.
7 Q That's a copy of what your newsletter looked like on
8 about what date?
9 Q Twenty-seven July.
10 Q Of what year?
11 A 1999.
12 Q If you would, please read the paragraph for the
13 Court?
14 THE COURT: Again, are we moving its
15 admission?
16 MR. PICKRELL: Once he reads the paragraph.
17 THE COURT: No. Move its admission before
18 he reads the paragraph.
19 MR. PICKRELL: I would be happy to, your
20 Honor. Your Honor, at this time I move the admission
21 of this document as defendant's exhibit three.
22 THE COURT: Received.
23 Q (Continuing, by Mr. Pickrell): Mr. Lane, if you
24 would for the Court on the record, please read the
25 paragraph that starts, Green it isn't.
Page 43
1 A Green it isn't. Black it is. Ford wants the
2 government to end mandated CAFE standards because
3 they believe that they can do a better job on a
4 voluntary basis. It's strange to learn then why one
5 of Ford's 2003 engines will be banned in three states
6 by 2007. How un-green is that?
7 Q Okay. Now then, what is a CAFE standard?
8 A Corporate average fuel economy.
9 Q And what is it? Why do we talk about it?
10 A It's a government mandated standard that Ford must
11 meet as well as other manufacturers, that their cars
12 must, combined, meet a specification.
13 Q Okay. And you note that Ford was trying to get -- to
14 your knowledge was trying to change these
15 governmental standards --
16 A Yes.
17 Q -- for its fuel economy?
18 A Yes. And it was reported out of the Detroit News and
19 the Detroit Free Press that this was what Ford was
20 lobbying for.
21 Q And they say, their lobbying effort said we would do
22 a better job on a voluntary basis of meeting fuel
23 economy standards than by having government
24 regulations. Was that your understanding?
25 A Definitely.
Page 44
1 Q And is that what you reported to your readers?
2 A Right.
3 Q Now did you ever receive any information from any
4 Ford document that was mailed to you anonymously that
5 undermined Ford's position with regard to its
6 lobbying efforts for changes for our laws?
7 A Exactly.
8 Q What documents did you receive that undermined Ford's
9 public position about its lobbying efforts?
10 A I received a document, a set of documents, I believe
11 sixteen pages, in the mail that Ford was concerned
12 that their engine, a two thousand two four point five
13 V6 Diesel would not be able to meet emission
14 standards in three states: New York, California,
15 Massachusetts. If it failed to meet that K five
16 standard, that they would lose twenty percent of
17 their volume due to sales banned from those three
18 states.
19 Q Okay. And so Ford, to your knowledge, Ford was
20 lobbying to change the CAFE standards. At the same
21 time, Ford internal documents revealed that -- and
22 the basis for the lobbying was they would do a better
23 job on a voluntary basis. And at the same time, Ford
24 is designing an engine that cannot meet the CAFE
25 standards begining in two thousand and three with
Page 45
1 production and violating the CAFE standards in two
2 thousand and seven?
3 A Yes, as I understand, yes.
4 Q Could you have reported that fact, that Ford's engine
5 would not meet the CAFE standards in three states in
6 two thousand and seven unless you had received Ford
7 internal documents anonymously through the mail?
8 A No possible way.
9 Q To your knowledge, did any member of the media
10 including Business Week ever publish the fact that
11 Ford was designing cars that didn't meet the CAFE
12 standard in twenty percent of its US market?
13 A No, I could not.
14 Q Do you know of any media who ever published that
15 fact?
16 A No.
17 Q Are you the only one to your knowledge that has ever
18 published that fact?
19 A Correct.
20 Q Okay. Why did you write the article that way? Were
21 you trying to inform your readers about Ford's
22 lobbying efforts about CAFE standards?
23 A Definitely. It's both political and newsworthy.
24 Q Did you think that was a type of information your
25 readers would be interested in?
Page 46
1 A Certainly.
2 Q Now then, sitting here today, do you believe that the
3 Court's current restraining order prevents you from
4 publishing exactly that paragraph?
5 A Definitely.
6 Q Okay. If this Court entered a permanent injunction
7 would you be prevented from publishing exactly that
8 paragraph?
9 A That paragraph and the previous.
10 Q As you understand what the permanent injunction would
11 be?
12 A Correct.
13 Q Now, let's be clear about something, Mr. Lane. Have
14 you ever solicited Ford's internal documents from any
15 Ford employee or anybody else?
16 A No.
17 Q How have you received the Ford documents that you
18 think are Ford documents?
19 A There was three different ways. One was U.S. mail.
20 The other method was we had documents rest at our
21 door step. And the third one was left in the back of
22 my personal vehicle.
23 Q Do you know who left any of those documents in your
24 possession?
25 A No.
Page 47
1 Q Now then, Mr. Lane, if you would, Mr. May testified
2 that you surreptitiously entered a Ford Mustang
3 meeting. If you would, please describe for the Court
4 the facts surrounding that meeting.
5 A Well, I was at work at Pep Boy's in Garden City,
6 Michigan, and I received a phone call from my friend,
7 acquaintance from the Mustang Club of Southeast
8 Michigan. He had asked me to bring my 1969 Mustang
9 to the show for the purpose of allowing other
10 designers and or Team Mustang to look at these older
11 Mustangs so they could incorporate some of these
12 ideas from the past into the future two thousand and
13 three models.
14 Q Who invited you?
15 A It was a member of Team -- not Team Mustang, a member
16 of the Southeast Michigan Owner's Association.
17 Q And that's the reason why you went to the Ford
18 Mustang meeting?
19 A Right. So I informed my wife, come up to Pep Boy's.
20 We'll go to lunch together and look at some of the
21 Mustangs.
22 Q And then what did you do?
23 A We arrived there and we were told there was food
24 inside the Holiday Inn, to go in and get something to
25 eat. I was on my lunch hour at this time.
Page 48
1 Q Okay.
2 A This was maybe three o'clock, three-thirty.
3 Q So what did you do?
4 A The meeting started I guess at seven. We went. My
5 wife and I went.
6 Q Where did you go?
7 A Southgate Holiday Inn.
8 Q Okay. At the Southgate Holiday Inn, what did you do?
9 Did you walk on in?
10 A We looked at some of the Mustangs, went inside where
11 we were told the food was. It wasn't there. And
12 there was a meeting going on so we just walked in.
13 Q Did anybody -- were the doors closed? Was there
14 anything to hinder or prohibit you from going to the
15 meeting?
16 A Nothing. They were open and there was no security.
17 We just walked in. We were under the impression that
18 it was kind of a clinic, consumer clinic.
19 Q For consumers?
20 A Uh-huh. We were told to bring our Mustang, that they
21 wanted to take a look at these cars, so --
22 Q Are you a consumer of the Ford Mustang?
23 A Definitely.
24 Q Do you own a Ford Mustang?
25 A Four.
Page 49
1 Q Do you own any other Ford products?
2 A Two.
3 Q What are they?
4 A Two Ford F one fifties. My wife owns a 1996, jointly
5 we do, and I own a 1991 Ford F one fifty.
6 Q You own six Ford vehicles?
7 A Correct.
8 Q Okay. So you went to this meeting. Did you get an
9 agenda while you were in the room that you had been
10 invited to go into?
11 A We received an agenda, two coffee mugs and four
12 posters, maybe six.
13 Q Did you publish the agenda on your website?
14 A Yes.
15 Q Why did you publish the agenda on your website?
16 A It was newsworthy.
17 Q It was something you thought your readers would be
18 interested in?
19 A Sure.
20 MR. PICKRELL: If I may approach, your
21 Honor.
22 THE COURT: You may.
23 Q (Continuing, by Mr. Pickrell): Now, Mr. Lane, with
24 regard to your conversation with Ford, beginning in
25 about November of 1998 when you started
Page 50
1 BlueOvalNews.com, have you provided any notices on
2 your website about Ford's policies regarding the
3 dissemination of confidential information?
4 A Yes.
5 Q If you could characterize for the Court what those
6 notices say?
7 A There were two different notices. One informed the
8 employees, subcontract employees, other employees
9 that were working on behalf of Ford Motor Company
10 that it was apparently against Ford Motor Company
11 policy to send us documents. We had, earlier on, I
12 had earlier on put a statement in there that also
13 says that if we received any documents that we would
14 return it to Ford Motor Company and/or Ford security.
15 Q Okay. And did you subsequently change that policy?
16 A Yes.
17 Q What?
18 A We received documents that were newsworthy,
19 definitely. And I say, we, your Honor, because this
20 is true. Some of the documents were left at our
21 personal doorstep and they were mailed to our post
22 office box and mailed to our residence. So I say we
23 in that case.
24 Q The reason you published them was because why?
25 A They were newsworthy and they detailed concerns the
Page 51
1 customers would need to have knowledge of.
2 Q When you provided information that you received from
3 what you believed to be Ford's internal documents,
4 what kind of information is that that you want to
5 provide to your readers?
6 A I want to arm my readers with the knowledge so they
7 can make informed decisions and have all ideas on the
8 political spectrum that Ford Motor Company is engaged
9 in.
10 Q Do your articles discuss safety issues?
11 A Yes.
12 Q Do they discuss warranty issues?
13 A Yes.
14 Q Do they discuss Ford's lobbying efforts?
15 A Yes.
16 Q Do they discuss the nation's laws on fuel efficiency?
17 A Yes.
18 Q Do your articles discuss Ford's products in the sense
19 of what your readers could be excited about coming
20 into the future in the auto industry?
21 A Yes.
22 Q And is that really the purpose of why you ever
23 publish information from Ford's documents or
24 published Ford's documents?
25 A Definitely. I have never intended or never will
Page 52
1 intend to hurt Ford Motor Company in any way. I am a
2 Ford enthusiast and I think Henry Ford -- he's my
3 hero, period.
4 Q Okay. Now, if you would describe the circumstances
5 surrounding your posting of about ninety-five Ford
6 documents on your website last Tuesday and Wednesday.
7 A How do you mean?
8 Q Well, the movants in this case said that you received
9 notice that they were going to file a lawsuit.
10 A Correct.
11 Q And then they said that they elicited from you the
12 fact that you posted ninety-five documents that
13 appeared to be Ford internal documents on your
14 website. Why did you do that?
15 A Well, several reasons, actually. One, myself,
16 compare, this may sound crazy, but I compare our
17 forefathers taking up a call to firearms to protect
18 their rights. My only way to get across my rights
19 and make it known that Ford Motor Company was trying
20 to shut me down was to post these documents. Nothing
21 maliciously intended whatsoever.
22 Q And then after you received notice of the Temporary
23 Restraining Order, did you publish any more
24 documents?
25 A No.
Page 53
1 Q Since that time have you been able to publish your
2 newsletter?
3 A No.
4 Q Why not?
5 A From what I have been told, I don't know if it was
6 Ford Motor Company or their law firm they retained,
7 they have contacted my web server company and told
8 them that we're in violation and they consequently
9 turned our operations off completely.
10 Q You are currently not able to publish any aspect of
11 your newsletter?
12 A Not only can I not publish, no one can read or view
13 anything.
14 Q As you understand the Court's current Temporary
15 Restraining Order, you can't even publish information
16 from Ford's documents involving Ford's lobbying
17 efforts for safety issues, is that correct?
18 A Consumers cannot log on to my website whatsoever.
19 Q If you can get back on line as you understand the
20 Court's restraining order, would you be able to
21 publish information such as the information with
22 regard to the CAFE standards or with regard to Cobra
23 safety issues?
24 A No.
25 Q Do you believe that that is the type of information
Page 54
1 that your readers continue to want to receive?
2 A Definitely. We receive a lot of e-mail about that
3 kind of consumer complaints, safety issues,
4 certainly.
5 MR. PICKRELL: Thank you, your Honor. No
6 more questions.
7 CROSS-EXAMINATION
8 BY MR. BROOKS:
9 Q Mr. Lane, did you post that you were invited to that
10 Mustang meeting?
11 A I was, as far as I had knowledge of, definitely, yes.
12 Q Is that what you posted?
13 A Yes.
14 Q Do you recall the posting, BlueOvalNews Crashes Into
15 Team Meeting -- Team Mustang Meeting?
16 A Crash is a way of recording the news. Definitely I
17 do remember that.
18 Q You wouldn't have to be invited?
19 A It does sound better. It sounds more mysterious. It
20 sounds like a better headline for readers to grab,
21 definitely.
22 Q Do you recall writing that BlueOvalNews was tipped
23 off that the Mustang Team would be holding a meeting
24 at the Southgate Michigan Holiday Inn this past
25 Friday?
Page 55
1 A Yes, I do. And the reason why I said that was
2 because I had thought that the Mustang Club was
3 invited. I do not belong to that Mustang Club.
4 Q Do you recall writing, naturally, we just had to find
5 a way to invite ourselves?
6 A Uh-huh, certainly.
7 Q So you invited yourself, right?
8 A No, that's incorrect.
9 Q Do you recall writing your statement was incorrect?
10 A That statement is incorrect. We did not invite
11 ourselves.
12 Q Do you recall writing, Ford didn't think inviting the
13 media would be a good idea especially since they
14 would be discussing the program structure and cycle
15 plans of two thousand one, two thousand two and two
16 thousand three models?
17 A I do.
18 Q Do you recall writing that, needless to say, that we
19 found that gaining entry in the meeting would be of
20 the utmost of importance to this site and so we did
21 just that?
22 A Correct. However, I might add --
23 Q You answered my question. Thank you.
24 A Okay. You received materials from time to time that
25 you recognized should not be posted, correct?
Page 56
1 A That's a strange word, should. I'm not sure I
2 understand how that should -- censorship, are you
3 referring to? I don't know how to answer that.
4 Q Yes, I'm referring to your posting, Loose Lips Sink
5 Tight Ships. Do you remember that quote?
6 A Yes. That was an editorial I did.
7 Q Do you recall writing this past week, we just
8 obtained documents concerning the development of the
9 two thousand two Mustang but what to do with them
10 becomes another issue in itself. Should they be
11 posted, sold off for profit or shelved? Question
12 mark?
13 A Correct.
14 Q So you recognize that these were materials that
15 others paid for, correct?
16 A We had been, I had been contacted by Mustang Monthly
17 at one time who had, in fact, wanted to buy some
18 documents, correct.
19 Q From your perspective, you even thought that
20 competitors like General Motors and Daimler-Chrysler
21 might have an interest in the things you post, in
22 particular, the ninety-five documents, correct?
23 A Oh, certainly.
24 Q So you knew they were competitive materials to Ford
25 Motor Company?
Page 57
1 A To somebody, sure.
2 Q To Ford Motor Company?
3 A Yes, and to their competitors.
4 Q You said you did these in your direct for what was
5 it? For journalistic reasons?
6 A Uh-huh, correct.
7 Q Do you recall explaining on your website, quote,
8 whoever at Ford Motor Company concocted this plan to
9 eliminate BlueOvalNews can now hold the sole
10 responsibility for the documents we have released
11 below, many of which would have never been released
12 and they know that. Maybe GM and Daimler will
13 respond some time real soon thanks to a pack of rats
14 at Ford. Do you remember writing that?
15 A Definitely.
16 Q Is that your journalistic lead in?
17 A Well, the documents would have been made public on
18 global news eventually anyway. There is no question
19 about that. The question is, would it have happened
20 at one bulk time? No, it would not have happened at
21 one time. But we would have published them in some
22 form or another through the course of a year or more.
23 Q Mr. Lane, that wasn't my question. My question was,
24 is that your journalistic lead in?
25 A I don't understand lead in.
Page 58
1 Q Did you consider that your journalistic statement or
2 is that a statement of retribution for being sued?
3 A No. Journalistic statement.
4 MR. BROOKS: Your Honor, that concludes our
5 cross-examination. Thank you, Mr. Lane.
6 REDIRECT EXAMINATION
7 BY MR. PICKRELL:
8 Q Mr. Brooks cut you off. You were trying to explain
9 one of your answers and you said, however, and he
10 said it, that's enough. If you could, do you recall
11 what that is? Would you answer it fully?
12 A Yes. After the agenda meeting, I had posted a
13 question on our website, do readers think we should
14 post this information? What's reader opinion? Is
15 the two thousand two, three, four, whatever, Mustang,
16 important to readers? What do they think? Do they
17 want us to post it? We weren't sure. I wasn't sure
18 what stance to take.
19 Q Now then, have you ever sold any of Ford's documents
20 to anyone?
21 A I wasn't finished.
22 Q I'm sorry. I apologize. I didn't mean to cut you
23 off.
24 A I had never posted anything revealed at the agenda on
25 a website. Furthermore, when I entered the agenda, I
Page 59
1 had only been there at the last fifteen closing
2 minutes of it. I had not been there the whole day
3 from seven-thirty when it started until whenever it
4 ended. I only had been there for the last fifteen
5 minutes of it. My time clock records would more than
6 validiate that.
7 Q Now, thank you for completing your answer. I
8 appreciate it. Have you ever sold any of the
9 documents that you believed were Ford internal
10 documents?
11 A Never.
12 Q Now, with regard to --
13 A Nor have I distributed them at no charge either. I
14 never released them in any format other than the web.
15 Q Other than in your newsletter?
16 A Correct.
17 Q With regard to competitors, you said previously that
18 you are a Ford enthusiast, that your consumers, your
19 readers are Ford enthusiasts. Do you publish our
20 newsletter for the purpose, even slight, of providing
21 any information to Ford's competitors?
22 A Well, that's hard to determine. I mean, should
23 competitors know that Ford knows that their Mustang
24 Cobra isn't producing three hundred twenty
25 horsepower? Should the competitors know that Ford is
Page 60
1 aware of these problems? Should the other forms of
2 the media be aware of these problems? Should the
3 media be concerned, on behalf of the media, I mean,
4 this car has drive train problems, should I be
5 concerned that consumers pay thirty thousand dollars
6 for a car and it's not performing as advertised by
7 the Ford Motor Company?
8 Q Okay, but --
9 A If the competitors get a hold of that, I don't know
10 what they would do with it. But that's a consequence
11 of journalism, I suppose.
12 Q Specifically, with regard to the horsepower of the
13 Cobra, what are you talking about?
14 A Ford Motor Company advertises the Mustang Cobra to
15 produce three hundred twenty horsepower. Since the
16 car was released, and I don't know the exact date,
17 it's been on the message board that this vehicle does
18 not produce that amount of horsepower.
19 Q Okay.
20 A That's plain. Consumers have done independent tests,
21 thousands of them, literally, thousands of them, that
22 substantiate this claim. However, they didn't have
23 the proof required to warrant, to make Ford warrant a
24 recall.
25 Q Did Ford represent that it was, that the horsepower
Page 61
1 of the Cobra was three hundred and twenty?
2 A Twenty.
3 Q They represented that Ford's horsepower, the Cobra's
4 horsepower was three hundred twenty horsepower, but
5 in reality, what was the horsepower of the Cobra?
6 A I think based on the documents, they were lucky to
7 get three hundred five out of it. They were short
8 fifteen. Maybe eleven to fifteen.
9 Q So you received documents from Ford, documents that
10 appeared to be Ford Company internal documents that
11 showed that Ford was misrepresenting the horsepower
12 of its vehicles?
13 A Definitely.
14 Q When you informed your readers of the fact that Ford
15 was misrepresenting the actual fact of the horsepower
16 of its Cobra, you were aiming at Ford consumers, not
17 at Ford's competitors, weren't you?
18 MR. BROOKS: I object to the leading
19 question.
20 THE COURT: Sustained.
21 Q (Continuing, by Mr. Pickrell): What was your purpose
22 in informing your readers that Ford's
23 misrepresentations of the horsepower of the Cobra had
24 been verified to be a misrepresentation by Ford's
25 internal documents?
Page 62
1 A I was, as a great admirer of Ford Mustangs, I was
2 hoping Ford Motor Company would halt production of
3 these cars, halt the sales of these cars and do a
4 recall, something they can do on their own. That
5 never happened though. And consequently, after we
6 did publish the article, two, three weeks, Ford did
7 acknowledge the problem and did halt the sale and/or
8 production of the Cobra Mustang.
9 Q Okay. Now then, under the Court's current Temporary
10 Restraining Order are you prevented from presenting
11 that type of factual information to your readers?
12 A Yes.
13 MR. BROOKS: I object, your Honor. I think
14 that the question of that type of factual information
15 is one that -- I will do it in cross. Sorry.
16 MR. PICKRELL: If I may restate the
17 question, your Honor.
18 Q (Continuing, by Mr. Pickrell): As you understand the
19 Court's current restraining order and the requested
20 Preliminary Injunction, would you be prohibited from
21 providing the fact that Ford misrepresented the
22 horsepower of the Mustang to your readers?
23 A Yes.
24 Q Thank you.
25 MR. PICKRELL: No more questions, your
Page 63
1 Honor.
2 RECROSS-EXAMINATION
3 BY MR. BROOKS:
4 Q Mr. Lane, in your direct and redirect you talked much
5 about the Cobra. That's all public information,
6 isn't it?
7 A It wasn't up until that time. It may or may not have
8 been. What was public information? I don't know.
9 Q That the programs were put on hold and they recalled
10 some of them and inventoried.
11 A It is now, that's true, yes.
12 Q And while you were publishing you were never sued for
13 that at all, were you?
14 A I wasn't sued, no. I was asked to take it off the
15 website.
16 Q But you didn't and nothing happened, correct?
17 A No.
18 Q It's the EPA matter, your ninety-five document
19 disclosure that forced the subject matter of this
20 lawsuit, correct?
21 A I wouldn't have knowledge of that. I'm not sure.
22 The Cobra article was in the evidence or in your
23 presentation.
24 Q Are you suggesting that if you had a website where
25 Cobra buyers gave you information that you think you
Page 64
1 would be prohibited by the Court's injunction from
2 doing that, posting comments --
3 A I'm sorry. Can you repeat that again?
4 Q What do you think -- in your examination, you
5 indicated you thought the injunction in its present
6 form would stop your serving as a public forum for
7 Cobra buyers?
8 A It certainly does.
9 Q What did you base that on?
10 A I cannot quote from any document at the current time.
11 Q Are you talking about a document that's stolen from
12 Ford?
13 A Stolen? I don't know. I have no -- I have no idea
14 how you obtain them. I don't know if, for a fact, if
15 when an employee attends a meeting he is told to
16 shred the document, turn it back in. I don't know
17 what he's told to do with it. I don't know if the
18 employee sent it. I have no knoweldge of where it
19 came from. So stolen is just a word I can't accept.
20 Q You know nothing of the source except you know the
21 materials were -- let's focus just on the Cobra issue
22 in terms of you serving as a clearinghouse for Cobra
23 customers. You could do that, correct?
24 A Currently as the TRO exists, no.
25 Q Sure. You don't think you could collect comments
Page 65
1 from Cobra customers in the marketplace and post
2 them?
3 A Well, comments are comments. Those aren't facts.
4 Q Do you do your editorial analysis?
5 A No, I do not. I can't arm consumers with comments.
6 I must arm consumers with facts.
7 MR. BROOKS: Your Honor, that's all we
8 have.
9 MR. PICKRELL: Redirect, Your Honor.
10 THE COURT: Please limit yourself to the
11 scope of the recross. This is re-redirect.
12 MR. PICKRELL: Thank you, your Honor. I
13 appreciate the opportunity.
14 REDIRECT EXAMINATION
15 BY MR. PICKRELL:
16 Q With regard to what Mr. Brooks referred to as the EPA
17 matter, the first time we discussed it in those
18 terms, what do you understand him to be referring to?
19 A I released documents or a document at that time, I
20 believe, that, if I recall, detailed Ford's truck
21 emissions through -- I don't recall what calendar
22 years. I would have to see the document.
23 THE COURT: When did you release it?
24 THE WITNESS: June is my best guess, the
25 fifteenth.
Page 66
1 Q (Continuing, by Mr. Pickrell): Can you recall what
2 the subject matter was about?
3 A So many documents. No, I can't.
4 Q Okay. Do your remember ever publishing documents
5 about Ford's relationship or Ford's production and
6 Ford's concerns about the EPA?
7 A Yes.
8 Q Okay. And so you do know that you published some
9 documents. Mr. Brooks has now represented that the
10 major reason for this lawsuit is because of the EPA.
11 Do you know what the EPA is?
12 A Yes, the government branch of the Environmental
13 Protection Agency.
14 Q And it's a branch of what government?
15 A The United States Government.
16 Q It is your understanding that you publish information
17 from Ford's internal documents that discussed the
18 Environmental Protection Agency?
19 A Sure.
20 Q And why did you do that?
21 A Several reasons, actually. One was due to the fact
22 that it was reported, like I said before, in the News
23 or the Free Press that Ford wanted to get rid of
24 mandated government CAFE standards and do it on a
25 voluntary basis. They wanted to police themselves.
Page 67
1 Q Right. So the example of the document already
2 discussed with regard to Ford Motor plans and Ford's
3 lobbying efforts to change the CAFE standard, that,
4 when Mr. Brooks refers to the EPA matter, you
5 understand him to be referring specifically to that
6 issue, do you not?
7 A Yes, correct.
8 Q Thank you.
9 MR. PICKRELL: No more questions.
10 THE COURT: Mr. Brooks?
11 MR. BROOKS: Nothing more, your Honor.
12 THE COURT: Please step down.
13 MR. PICKRELL: No more witnesses, your
14 Honor.
15 THE COURT: All right. Let's take about a
16 ten or fifteen minute break and I will hear argument
17 on the injunction.
18 (Whereupon a recess is taken.)
19
20 THE COURT: All right, let me have just
21 brief argument on the legal issues. Mr. Brooks?
22 MR. BROOKS: Your Honor, what I was going
23 to do is use the TRO language for the departure for
24 the legal argument. As I understand it, if you look
25 at subparagraph C, in particular, the C two which is
Page 68
1 about copyright -- the principle focus we had for the
2 evidentiary hearing was C one. And I think that the
3 focus on the Michigan Uniform Trade Secret Act from
4 our complaint and the evidence that we presented
5 brings us squarely within it.
6 The first thing for its weight is, is it
7 the Michigan Uniform Trade Secrets Act? It's not
8 something peculiar to the State of Michigan. To
9 attack its constitutionality has farreaching
10 implications. And a lot of folks in a lot of places
11 have presumably thought about it. Doesn't mean
12 they're right. But at least it's been thought about.
13 And I think that we have come within its provisions.
14 The disclosure use of a trade secret of another
15 without expressed or implied consent by a person who
16 did one or more of the following.
17 We don't give consent. That's clear on the
18 record. And under little roman numeral two B, at the
19 time of the disclosure Mr. Lane knew or had reason to
20 know that his knowledge of the trade secret was --
21 and it's the third alternative is the one that
22 squarely applies from his testimony, was derived from
23 or through a person who had a duty to the person to
24 maintain it's secrecy or limited use.
25 He derived it apparently from employees at
Page 69
1 Ford. We're not able to prove that conclusively but
2 he went and picked it up himself or derived it from
3 an employee or found it on the street. I think the
4 most logical and the one he suggests is that someone
5 from Ford gave it to him. And he acknowledges and he
6 knew there was a duty and he knew it was confidential
7 and trade secret information.
8 So, we are solidly within the Michigan
9 Uniform Trade Secrets Act and entitled to the
10 injunction.
11 I think subparagraph C also applies, before
12 a material change in his or her position before he
13 published most of these materials. If he had reason
14 to know that it was a trade secret and that knowledge
15 of it had been acquired by accident or mistake. So
16 even if it wasn't intentionally given to him he knew
17 it was a trade secret because he knew we were going
18 to file suit.
19 There is a discrepancy between his
20 ninety-five, I think there are ninety-five links that
21 he has and forty some documents so that reconciled
22 that he had knowledge. And so even if it were an
23 accident or mistake and not in direct derivation of
24 Ford's rights, it would come under C. I think the
25 Michigan Uniform Trade Secrets Act is a full support
Page 70
1 for relief of the scope of C one.
2 I would like to comment on subparagraphs or
3 paragraphs A and B of the order, the A being the one
4 that restrains him from destroying, etc.. We would
5 ask that it be continued during the pendency of the
6 litigation.
7 And B being the order for basically
8 expedited discovery and recognizing that if he
9 pursues his journalist's approach he may make some
10 objection to identifying sources if he knows them.
11 So far he says he doesn't know them. But this order
12 is basically for expedited discovery. And we would
13 ask that it be treated as such, continued here to
14 move the case along, A being to preserve evidence and
15 B being an expedited discovery, C being the
16 injunction.
17 Regarding -- I'd like to comment -- three,
18 I assume, is also not seriously -- C three, that is,
19 is not seriously objected to, and that is,
20 intefereing with Ford's contractual relationships
21 with its employees by soliciting Ford employees to
22 provide for trade secrets or other confidential
23 information. The factual matter of whether he
24 acknowledges he ever did that, whether we can prove
25 he did that, that's
Page 71
1 something else. So we ask that that be continued.
2 We return to the trademark injunction of C
3 four. There are a lot of websites about Ford and
4 people can open up websites that Ford doesn't even
5 like. If you go down, you don't have to look long
6 under the websites that have been described to me in
7 some detail. But that's not what this is about.
8 It's about trying to remedy the disclosure of trade
9 secrets. And we return to the trademark matter
10 because -- I'm a little reluctant to say this, but I
11 know it so I will say it -- Judge Cleland indicated
12 when he struck it that he didn't find likely
13 confusion. And that's a matter of -- it's not --
14 it's easy to see that because he said you don't have
15 to look at it long to see that it's anti-Ford and
16 therefore must not be supported by Ford.
17 And we would urge the Court to consider the
18 trademarks protect the casual observer as well as the
19 informed studied analysis. And it's the context
20 here, however, because surely -- and we don't in any
21 way dissent from Mr. Lane or anyone else opening up a
22 website since Oakland County Ford owners can make a
23 clearinghouse of information, but when you put the
24 wallpaper background which is attached to the
25 complaint, you get this impression that it's Ford
Page 72
1 with the other parameters, that you can get
2 permission from Ford to use this and use that and
3 some of the other posts that he has had. If we
4 didn't have the rest of the context, we wouldn't be
5 here on a straight trademark injunction because
6 clearly people can open up commentary sites using the
7 word Ford referring to this company. So that's not
8 the thrust of that.
9 Turning then, after those remarks about the
10 injunction paragraphs, turning to Mr. Lane's
11 journalism, we aren't even here to litigate whether
12 he's a journalist. The question has been raised. I
13 think it was suggested in the Wall Street Journal --
14 it's suggested somewhere whether a sole individual
15 operating on the internet is a journalist. I guess
16 we're all journalists today if that's the case. And
17 it certainly changes things. But we don't reach
18 that. We don't find his -- as we see this morning,
19 that as a pure journalist he is all that credible
20 because he crashed the Mustang meeting as he posted
21 and as he explained how he did it and why he did it --
22 that he was there by invitation and he gave a
23 different story. There is a problem with the lack of
24 consistency for credibility in terms of what's going
25 here vis-a-vis Ford. And so we think that there is a
Page 73
1 threshold issue of his credibility problem as a
2 journalist.
3 Second, we find the commercial speech line
4 that we presented in our brief filed this morning
5 that these comments about specific Ford transactions --
6 and there's no question that some of the other EPA
7 matters are proper for public discussion, products
8 that don't perform to spec are proper for public
9 discussion. But surely Ford has protections in
10 developing its internal site plans, product designs,
11 technology, analyses, without being subject to
12 instant disclosure on the internet. I guess I worked
13 in engineering and after an event somewhat unrelated
14 but regarding documents had been created in the past,
15 the folks said, do nothing in writing. Everything is
16 oral. Well, that's not a good world. And I don't
17 think that the First Amendment forces all businesses
18 because of the internet to operate orally only and
19 have no business records and not be able to conduct
20 their affairs with some confidence that they won't be
21 disclosed perhaps by somebody who's disgruntled or
22 someone walks thorugh and picks it up or however it
23 appears to get in the hands of the person who
24 publishes it, to use a journalist phrase.
25 THE COURT: I have a question before you
1 sit down. Did Ford contact the web server and ask
2 that this site be closed down?
3 MR. BROOKS: We did. We sent a copy of the
4 TRO and said that there was an act of concert
5 participation as noticed. We found the web server's
6 identity. We contacted them. They are in Kansas
7 City. And we did that because -- I'm sorry.
8 THE COURT: All right. Let me hear from
9 the defendant.
10 MR. PICKRELL: Thank you, your Honor.
11 Ford says that the reason that they filed
12 this lawsuit was because Robert Lane was publishing
13 information about Ford's EPA matter and Mr. Lane
14 understanding that to mean that Ford is lobbying to
15 reduce the CAFE standards established by the
16 Environmental Protection Agency saying they will do a
17 better job on a voluntary basis than if we have
18 government regulation of their industry.
19 At the same time that they are making that
20 public plea to the government, they are designing an
21 engine that specifically and on a voluntarily basis
22 will not meet the CAFE standards in the year two
23 thousand and seven in twenty percent of its market.
24 That is the reason Mr. Brooks says we have this
25 lawsuit and why Mr. Brooks came to this court and
Page 75
1 says he is entitlted to a Temporary Restraining Order
2 to keep Mr. Lane from publishing that fact which was
3 found through internal documents that were mailed to
4 him anonymously and that he published on his website.
5 That's why we're here today.
6 THE COURT: Well, let's not draw it quite
7 so narrowly. It's certainly far beyond this EPA
8 issue. I mean, I think that to be -- to be honest
9 with your case and your defense, you need to address
10 the issue of trade secrets generally and whether
11 there is protection for trade secrets that is
12 consistent with the First Amendment here. I mean,
13 and clearly you're not going to contend, I don't
14 believe, that this dumping of those however many
15 documents last Tuesday on Wednesday, all those
16 powertrain and platform documents, were in the
17 interests of, you know, public information about a
18 problem at Ford. Those were trade secret
19 confidential documents that he was -- he dumped for
20 retribution, he dumped to make a point, that he could
21 do what he wanted and thumb his nose. So, I mean,
22 you can wave the flag with, you know, the consumer
23 awareness of the EPA issue or even the Mustang, you
24 know, false advertising claims issue, but what are
25 you going to do with those other documents?
Page 76
1 MR. PICKRELL: Your Honor, the First
2 Amendment protects Mr. Lane's publication of Ford's
3 documents even if his motive in putting those
4 documents before the public was prior to receiving
5 any Temporary Restraining Order from this Court
6 telling Ford, I'm not going to be cowered by your
7 alleged soon to be filed lawsuit. And respectfully,
8 your Honor, it is exactly his motive in producing
9 information to the public does not mean that he is
10 not protected by the First Amendment.
11 THE COURT: No --
12 MR. PICKRELL: In fact, specifically, your
13 Honor -- I apologize.
14 THE COURT: So his motive is irrelevant
15 here. And his acknowledgement that he knew and
16 expected that some of this information would be
17 valuable to Ford's competitors, that some of the
18 documents that he had were saleable to Ford's
19 competitors or other sources, all of that is
20 irrelevant, that he just has a blanket right to
21 produce on the internet anything he happens to come
22 across regardless of whether he knows that it was
23 improperly taken from Ford in breach of a
24 confidentiality agreement, regardless of his
25 awareness of its trade secret value. I mean, you're
Page 77
1 taking an absolutist position on this?
2 MR. PICKRELL: Your Honor, the position
3 that Mr. Lane takes is if this Court enters a
4 Temporary Restraining Order, an injunction, it would
5 keep him from publishing information that he has in
6 his possession and that that is a prior restraint
7 that violates the First Amendment. And his motive on
8 why he publishes information to the public does not
9 affect the First Amendment analysis.
10 I will argue without conceding that if we
11 didn't have the First Amendment, this Court could
12 justify an injunction of him publishing the
13 information provided from Ford documents on the
14 Michigan Uniform Trade Secrets Act. But we have a
15 First Amendment. And that is what this case is
16 about.
17 In the Proctor and Gamble case, the Sixth
18 Circuit explicitly said that if a court prevents a
19 publisher from publishing information in its
20 possession, that is a prior restraint. And if the
21 Court is engaged in a prior restraint it must do it
22 under only the most compelling circumstances. They
23 must do it only, in the words of the Supreme Court,
24 in a condition which the interests to be protected
25 override the interests of the First Amendment itself.
Page 78
1 And it is for that reason, your Honor, that
2 this Court's Temporary Restraining Order violates the
3 First Amendement. And this Court should not convert
4 the Temporary Restraining Order, as regard to part C
5 one, into a Preliminary Injunction.
6 The First Amendment applies to the
7 internet. We know that. We know that. The American
8 Civil Liberties Union makes that clear. This is not
9 even cutting edge law. The First Amendment applies.
10 A fundamental principle of the First Amendment is
11 that the government, including the courts, shall not
12 restrain by a prior restraint the publication of
13 information by a member of the press.
14 Factually, there is no doubt that Mr. Lane
15 is a member of the press. Ford calls him a
16 journalist. Ford gives him media credentials. There
17 is no doubt factually that he is a member of the
18 press. He's entitled to the protection of the First
19 Amendment.
20 Before we began this morning, at the
21 beginning, your Honor indicated that maybe Mr. Lane
22 is not entitled to the same protections of the First
23 Amendment as Business Week.
24 THE COURT: No, I didn't say that. I said
25 he's not Business Week. And he's not Business Week.
Page 79
1 And if you will look at the opinion of Judge Martin
2 concurring in Judge Meritt's decision in the Proctor
3 and Gamble case, he questions whether even Business
4 Week is, as a substantive matter, entitled to, you
5 know, the mantle of the Constitution that you want to
6 wrap around yourself here.
7 MR. PICKRELL: Your Honor, I respectfully
8 submit that Mr. Lane isn't wrapping himself in the
9 mantle of the Constitution. He's merely affording
10 himself the protections of it. Here he has
11 published, and the reason why he published
12 information, pure speech, pure political speech
13 protected by the First Amendment that this Court has
14 prevented him from publishing as of now, implicates
15 the First Amendment. He is a publisher.
16 As a matter of law, this Court cannot enter
17 a prior restraint except under the most extreme
18 circumstances that override the interests of the
19 First Amendment itself. And furthermore, your Honor,
20 the Sixth Circuit already established that a
21 commercial interest is not sufficient to override the
22 fundamental interests of the First Amendment.
23 The Sixth Circuit said that Proctor and
24 Gamble and Business Trust, commercial interests, did
25 not justify the imposition of a TRO or a preliminary
Page 80
1 injunction -- or a permanent injunction. And so,
2 your Honor, even the question of whether the
3 interests that Ford asserts can override the First
4 Amendment has already been decided by the Sixth
5 Circuit. Ford has established no other motive for
6 trying to infringe upon Mr. Lane's revelation of
7 information provided in his possession.
8 And, your Honor, respectfully, Mr. Lane
9 submits that the Sixth Circuit already decided that
10 issue too. There is simply not a matter of law
11 controlling that would warrant a conversion of part C
12 one of the Temporary Restraining Order into a
13 Preliminary Injunction. And Mr. Lane would
14 respectfully submit that this Court should not
15 convert part C one of the Temporary Restraining Order
16 into a Preliminary Injunction. Thank you, your
17 Honor.
18 THE COURT: All right. Well, I'm not going
19 to issue a decision on the Preliminary Injunction
20 today. I need some time to absorb the material that
21 was presented to me for the first time this morning
22 before the hearing with respect to the briefs.
23 So the issue before me right now is limited
24 to understand what terms should I continue, if any,
25 the Temporary Restraining Order that was issued by
Page 81
1 Judge Cleland last week. A TRO by its terms under
2 Rule 65 runs for ten days. So, I could, under the
3 rule, extend it at least until next Tuesday which is
4 the first business day that comes within -- after
5 that ten days expires.
6 But I am a little concerned about some
7 aspects of the TRO that I want to address before I --
8 before we go forward at all.
9 One is the website needs to be put back up
10 and running. I didn't really hear anything today
11 which would convince me that the TRO has been
12 violated. I didn't really permit you to go into that
13 as an evidentiary matter, but I don't believe that --
14 Mr. Lane has testified that he did not publish or
15 post any new documents after he became aware of the
16 TRO which was issued last Wednesday. And I have no
17 reason to question that statement at this time. So,
18 while not ruling on that issue as a final matter, I'm
19 going to order that Ford contact the web server and
20 instruct them to put that site back up.
21 MR. BROOKS: May I inquire -- the only
22 reason we had an interest in the site was the posted
23 documents. The site itself we didn't take any
24 initiative to shut down. What we wanted were the
25 documents that were posted to not be accessible.
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1 THE COURT: All right. And with respect to
2 those documents that were posted last Tuesday and
3 Wednesday, that is, that list of documents that
4 appear in a couple of the exhibits, I am going to
5 continue the TRO with respect to those documents
6 under the terms of Rule 65 until I can rule on the
7 Temporary Restraining Order, I mean, on the
8 Preliminary Injunction. Mr. Pickrell?
9 MR. PICKRELL: I checked the website on
10 Friday before it was taken down. I believe they have
11 already been removed. But so I think that has been
12 taken care of. I just wanted to inform the Court of
13 that fact.
14 MR. BROOKS: There may be some disconnect
15 here in that we didn't know why the website was down.
16 It was reported in the press which we accepted as
17 perhaps true that it was the number of calls to Mr.
18 Lane. But the point is we sent the notice to the
19 website host within a time when they hadn't been
20 taken down. If they are down we don't have any
21 objection to the website per se. It's just the
22 documents. So if that's the state of affairs we can
23 work with Mr. Pickrell and get that rectified.
24 THE COURT: Again, I'm going to just, as
25 part of a separate order, and I will do it in writing
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1 after the hearing, order that Ford work with Mr. Lane
2 to get that website back up.
3 MR. BROOKS: We understand.
4 THE COURT: Okay. But that list of
5 documents will continue to be enjoined under the
6 Temporary Restraining Order. I'm not going to -- I'm
7 not going to enjoin any -- I'm not going to extend
8 the Temporary Restraining Order beyond its terms.
9 But I caution Mr. Lane that whether or not an
10 injunction is issued in this case eventually, that
11 does not end the case with respect to any damages
12 which may have accrued to Ford as a result of what --
13 your activities. So, you should be aware that even
14 if an injunction is ultimately found to be improper,
15 you may still be answerable in damages of a
16 considerable amount if you are found liable for
17 participating in some way in the theft or improper
18 use of trade secrets.
19 So, I don't mean that as a threat. I'm
20 just trying to set out the parameters of what your
21 exposure is here and urge you to caution.
22 I guess I don't have anything more right
23 now. Is there anything, any question that anybody
24 has? I will issue an opinion no later than next
25 Tuesday at the end of business day on Tuesday and the
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1 Temporary Restraining Order shall stay in affect
2 without further amplification or without being
3 broadened or narrowed.
4 All right. Any other questions? All
5 right. And we'll get that website back up. I mean,
6 I understand there may be a problem by too many hits
7 and maybe the web server can't do anything about
8 that. But, I will get this out as soon as possible.
9 I understand that there are serious questions with
10 respect to the propriety of prior restraint. And
11 this is, frankly, really a case of first impression
12 because there is no other case in which, that I could
13 find so far in which there were clearly valuable
14 competitive trade secrets which were being
15 disseminated on the web. We had those Christian
16 Science cases where it's not really trade secret
17 information. And I will do this as expeditiously as
18 possible.
19 Anything further?
20 MR. BROOKS: No, your Honor.
21 THE COURT: Thank you.
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1
2 CERTIFICATE OF COURT REPORTER
3
4 I certify that the foregoing transcript is
5 a correct recording of the proceedings in the
6 above-entitled matter.
7
8
9
10
_________________________________ ______________
11 Lawrence R. Przybysz, MA, CSR, RPR Date
Official Court Reporter
12
13
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