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10 June 2014

I. Relevant Background.

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

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

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

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

Any restriction here would also be at once over and under-inclusive and not narrowly-tailored,
even if the Deponents purported concerns had any merit.

The fact of the matter is Ms. Kaufman has already acquired a public persona by virtue of the
type of business in which she is engaged as Vice President of Operations of a huge corporation,
signing documents that are filed into the Public Record. A cursory Internet search reveals a prior
Deposition online and hosted by Stafne Law Office.

Then too there is the ubiquitous zoom info.

There has been a spate of international deaths in the banking community in the past several months in
which several high-ranking members of the banking community have died in suspicious circumstances.
Significantly, none of these deaths have been linked to the presence of video depositions.
Lastly, her information and picture is already online anyway alongside many of the Industry
Oligarchs, including her lawyers at Robinson-Tait:

II. Law and Argument.

A. Waiver.

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

B. The Merits.

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

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

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

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

3. Irreparable Loss

The Deponent advanced another purported concern regarding trade secrets or proprietary information.
That argument fails for the same exact reason the harassment argument fails: Matters of trade secrets
are for the Court to decide. If there is a question as to whether a trade secret is being illegally published
then that portion of the video will be carefully marked and preserved while the Court reviews the
Transcript and applies the correct law.
The special right asserted will not be irreparably lost if review is postponed. If an
appellate court determines that this Court improperly compelled the video deposition of
the plaintiff, plaintiff's right to redress is not irreparably lost by waiting until conclusion
of the matter at trial level. At worst should the video become fodder to embarrass
plaintiff, he has grounds for another lawsuit. The plaintiff does not have a right to
dictate the manner in which a party may pursue a course of discovery nor may a party
unilaterally limit dissemination absent some compelling [*9] reason. Additionally,
plaintiff aptly notes that there are several safeguards to prevent defense counselthe
individual from whom assurances were soughtfrom distributing the video prior to its
placement in the public domain through the filing of a motion or presentment at trial.

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

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

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

Lastly, I might add that the party noticing a video Deposition does so in an effort to capture the
true essence of witness testimony, with all of the nuances appurtenant thereto. Such nuances

Note that the Right to run video depositions is indeed codified in Washington Law at Rule 30.
may prove valuable at trial and the party noticing the Deposition cannot loose that privilege on
the basis of some nebulous fear of public outrage voiced by the Deponent and Counsel.

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

3. Absence of Commercial Gain.

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

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