1 1 2 3 4 5 Plaintiffs, 6 -against7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MARTIN E. CONNOR, ESQ. Attorney for the Defendants Charles J. Hynes and Friends of Charles J.

Hynes 61 Pierrepont, Suite 71 Brooklyn, N.Y. 11201 A P P E A R A N C E S: AARON M. RUBIN, ESQ. Attorney for the Plaintiffs 9 East 40th Street, 11th Floor New York, N.Y. 10016 B E F O R E: HONORABLE PAUL WOOTEN, Justice CHARLES J. HYNES, FRIENDS OF CHARLES J. HYNES, CBS CORP., CBS NEWS, A DIVISION OF CBS CORP., AND CBS TELEVISION NETWORK, A DIVISION OF CBS CORP., Defendants. ------------------------------------------------X Index No. 100730/13 60 Centre Street ORAL ARGUMENT New York, N.Y. May 23, 2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - CIVIL TERM - PART: 7 ------------------------------------------------X ABE GEORGE, CANDIDATE FOR KINGS COUNTY DISTRICT ATTORNEY IN 2013, AND ABE GEORGE 2013, A POLITICAL COMMITTEE,

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2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ALAN F. BOWIN, CSR, RMR, CRR Official Court Reporter LEVINE SULLIVAN KOCH & SCHULZ, LLP Attorneys for the Defendants CBS as named herein 321 West 44th Street, Suite 1000 New York, N.Y. 10036 BY: DAVID A. SCHULZ, ESQ. JULIA C. ATCHERLEY, ESQ. CBS 51 West 52nd Street New York, N.Y. 10019 BY: MARY CATHERINE TISCHLER, ESQ. Vice President and Assistant General Counsel (Appearances continued:)

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3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 time? MR. SCHULZ: THE COURT: MR. SCHULZ: I'm sorry, Judge? Were you here last time? My partner was here last time; I THE COURT: Proceedings Let me call into the record the

case of Abe George, Candidate for Kings County District Attorney in 2013, and Abe George 2013, a Political Committee, against Charles J. Hynes, Friends of Charles J. Hynes, CBS Corp., CBS News, a Division of CBS Corp., and CBS Television Network, a Division of CBS Corp., as the defendants, index No. 100730-13. Ladies and gentlemen, do we need your appearances? Please. Aaron Rubin, 9 East 40th Street,

MR. RUBIN:

New York, New York 10016, for the plaintiffs. MR. CONNOR: Martin E. Connor, 61 Pierrepont

Street, Brooklyn, New York, for the defendants Charles J. Hynes and Friends of Charles J. Hynes. MR. SCHULZ: David A. Schulz, of Levine

Sullivan Koch & Schulz, for CBS Broadcasting, Inc.; and with me today is Mary Kate Tischler and Julia Atcherley (indicating). THE COURT: Mr. Schulz, were you here last

was here the first two times. THE COURT: All right, let the record

ALAN F. BOWIN, CSR, RMR, CRR

4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Proceedings reflect, it is now 5:15 p.m. -- 5:13. First of all, I'd like to thank counsels for responding so quickly. Actually, when we met on

Tuesday, I had asked that counsel be available -- in the event that there was anything additional -- to be available today at approximately 2:00 p.m. We

contacted you today on such short notice but we appreciate the parties responding so quickly to be here so that we can address some additional matters. In addition, I'd like to thank the court reporter because we are after the hour designated to conduct the court. According to the rules of the new But because this is

court, we have to finish by 4:30.

an expedited matter, we've prevailed upon the administrative judge for additional time; but, still, that requires the voluntary action of certain parties. And if you notice, we don't have any court officer, so please don't charge the bench at one time, because we don't have sufficient security. All right. But thank you.

So, while the Court has been

struggling with some issues and while we were visiting the defendants' motion to dismiss and some additional other matters, it's come to our attention that we believe that the plaintiff has not had a hearing on the issue of preliminary injunction.

ALAN F. BOWIN, CSR, RMR, CRR

5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Proceedings On Tuesday -- I believe that was May 17th -we actually had argument on the oral application for the motions to dismiss and we had oral argument on the request for discovery. Excuse me; that was on May 21st. Now, we are going by memory, but that appears to be our recollection of the facts. Just as an aside, we have ordered the transcript for May 21st. We've spoken to the reporter,

who has consented to do it expeditiously and she states that she will be e-mailing it to you before tomorrow morning. She has the e-mail addresses of all the

parties, so you should be getting that before tomorrow morning. Given the fact that denying the plaintiff a hearing and an opportunity to be heard, we believe, raised serious issues on appeal, we are offering, or we are ordering, the plaintiff an opportunity to be heard on the application for preliminary injunction. Therefore, the Court is prepared to order a preliminary injunction hearing, commencing tomorrow at 2:00 p.m., to [sic] which the plaintiff will have an opportunity to present its case on the issue of preliminary injunction. Notwithstanding the fact that we have the

ALAN F. BOWIN, CSR, RMR, CRR

6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Proceedings 3211(a) motions -- there is a 3211(a) motion, 1, 3211(a)(7) -- by both defendants, those motions are taken on submission and we have them taken under advisement, nonetheless, we believe that the plaintiff is entitled to a hearing on preliminary injunction. We're prepared to commence the hearing tomorrow at 2:00 p.m., to go as late as we can and to continue the hearing, if necessary, on Tuesday, May 28th, at 8:30 a.m. Now, regarding the request for discovery, we are prepared to grant the application for the plaintiff to seek discovery, or seek the opportunity for discovery. I understand, by the letter that was

submitted to the Court on May 20th, there were certain documents that were requested by the plaintiff and certain witnesses that were requested by the plaintiff. Certainly, at this particular time, the plaintiff is free to either subpoena those witnesses before the Court for Friday or Tuesday. We are prepared to sign

so-ordered subpoenas so the matter can be done. I note that it seems to be a short turnaround time for discovery in this matter, but it is frequent in matters of -- election matters, where there is an expeditious turnaround, that subpoenas can be served in one day and parties are pressed to put whatever issues

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7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Proceedings they wish on the record in one or two days' notice. So are there any other issues at this time? MR. SCHULZ: THE COURT: MR. SCHULZ: Judge, may I be heard? Yes, sir. With all respect, it seems to me

that -- a bit -- that we're putting the cart before the horse here. THE COURT: speak up, Mr. Schulz. MR. SCHULZ: THE COURT: MR. SCHULZ: I'm sorry, counsel; you have to You have to speak up. Thank you. The air-conditioning is on. Sorry, Judge.

With all respect, it seems a bit that we're putting the cart before the horse on the preliminary injunction application, and I say that in this respect: From the outset of this case, in opposing the temporary restraining order, in opposing the preliminary injunction, and the motion to dismiss, defendant CBS has demonstrated, as a matter of law, that the injunction relief requested is prohibited under the Constitution. There's no discovery, no

factual dispute about the nature of the show, that will change that. Whether you characterize it as "reality

TV" or a "docudrama" or "news," it's true-newsworthy information.

ALAN F. BOWIN, CSR, RMR, CRR

8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Proceedings And the law is quite clear that plaintiff is not entitled to an injunction. remedies. He may have other

He may be entitled to an order against the

Hynes campaign, after the fact, to pay for these; he may be entitled to other sorts of remedial remedies. But, because the injunction is a constitutionally prohibited remedy, as a matter of law, it would seem to me that we're imposing on the parties an unnecessary expense, and a burden and a prejudice to us, to sort of order discovery overnight on issues where there are going to be journalist-privilege questions, the need to review documents and other things going on, that I really think that we're entitled to a ruling on our motion, on our objection, as a matter of law, as to the ability of the Court to enter that relief. And if the Court believes it can't

enter that relief, we should be able to appeal that as a pure question of law. I think the law is quite clear that that is not available; and if it's not available, then we can work out a schedule with plaintiff on what discovery is needed, if the Court feels discovery is needed, in connection with the motion to dismiss. THE COURT: MR. SCHULZ: Okay, thank you. And it just seems to be a much

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9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Proceedings more logical way to proceed. THE COURT: I appreciate your point; it's

very clear, very succinct. Plaintiff, anything in opposition? MR. RUBIN: The only thing I would add there,

your Honor, is that CBS has raised a burden issue and it's unsubstantiated. They say there's a burden.

There's always a burden with pressing a button on a computer to search for e-mails, but that doesn't necessarily outweigh the compelling interest of a local election. And they still haven't said what is so They just summarily

costly, what is so burdensome.

state that it's too burdensome to turn over e-mails, without telling us how many we're even talking about. If there's a privilege, they can put together a privilege log. We haven't even reached a point where

we know whether there are e-mails that are privileged. We're asking for e-mails about the production of the show. We're not talking about news-gathering I

sources; e-mails between Hynes's office and CBS. don't see how that can be privileged under the news-gathering exception. THE COURT: MR. CONNOR: Okay, thank you.

Your Honor, if we're talking

about the documents from the office of the district

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10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 agency. MR. CONNOR: It's a strange one, your Honor. office. THE COURT: General -Isn't the district attorney a state agency? MR. CONNOR: THE COURT: The -- it's -- this is a -It's a hybrid, but it's a state No, I thought the Attorney Proceedings attorney, they are on City-owned computers; they are not the personal -- deemed to be within the personal control of the employees or whatever. And the CPLR is very clear that in order to get that kind of third-party discovery, they (indicating) have to give notice, advance notice, to the corporation counsel if they want discovery of City documents; or they could have filed a FOIL six weeks ago. THE COURT: have to do with it? MR. CONNOR: They represent Mr. Hynes's What does the corporation counsel

The district attorney is established in the state constitution but the primary funding, except for, you know, state grants and whatever -THE COURT: objection -But, first of all, I get your

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11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 That's -THE COURT: another minute. minute. Okay. MR. SCHULZ: Could I briefly respond to the We'll deal with that issue in MR. CONNOR: corp. counsel -THE COURT: Before we go any further, I Proceedings The City budget, represented by

understand that you've raised the jurisdictional issue that you don't represent the district attorney. MR. CONNOR: I don't represent his office;

the corp. counsel does. THE COURT: Okay, I got it.

So your objection here is on behalf of the district attorney or on behalf of your client? MR. CONNOR: As long as I'm not being ordered

to produce anything from the district attorney's office -THE COURT: You haven't been asked to produce

anything, as far as I know. MR. CONNOR: Thank you, your Honor.

We'll deal with that issue in another

point about -- two very brief points. Mr. Rubin just suggested that we never explained the burden. It is in the letter that was

ALAN F. BOWIN, CSR, RMR, CRR

12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Proceedings submitted to the Court. We've identified the fact that

there are at least 25 different custodians; virtually all of them are producers or associate producers who are -- who have -- a reporter's privilege, as a matter of New York State law. We don't know how many e-mails

we're talking about but there may well be thousands and thousands. And again, we don't think that we should be -- well, two points: One is, we shouldn't be put to that burden on this tight time frame because plaintiffs sat around for six weeks before they brought this and now it's just two days, two business days, until the hearing -- till the broadcast -- and, number two, it's an irrelevant issue to the request for injunctive relief. THE COURT: Got it. I got your argument, I'm not so sure the

that you believe it's irrelevant. Court agrees.

However, if you believe it's burdensome

at this time, the Court is prepared to revisit the question of interim relief in that the Court would revisit the question as to whether or not it should enter an interim relief to enjoin the production, or showing, of the television show for a week, so that you can have time to do this and get this material to the plaintiff.

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13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MR. SCHULZ: Proceedings Judge, that's completely

unacceptable and it would be unconstitutional. And I go back to my main point -THE COURT: Well, I get the fact that you

would disagree with it, but we're prepared to revisit that portion. And if this is too burdensome, then,

should we grant the interim relief, you would have the ability to seek a stay from the First Department and we would make that available for you right away. But I'm

telling you that we are prepared to revisit that question, if you believe that this is too burdensome, in the interim. I've read the discovery requests; from what I can determine at this point, I don't believe that there's anything privileged. I'm prepared to narrow

the request for e-mails, much narrower, to relate only to issues between CBS [sic], that relates to the show, that relates to issues before the Court, such as issues regarding production, promotion or its value, in such a way that those are the issues that we believe the plaintiff would find relevant at trial. We don't

believe that that's difficult; however, should you believe it's burdensome, we have other remedies. As to the issue regarding the district attorney's office, now, we do have the transcript from

ALAN F. BOWIN, CSR, RMR, CRR

14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Proceedings the temporary restraining order and we've been reading from page 3, line 25, where it says Mr. Connor says: "Good morning, your Honor. My name is Martin

Connor, 61 Pierrepont Street, Brooklyn, New York 11201. I represent the defendants Charles J. Hynes and Friends of Charles J. Hynes." I'm informed by Mr. Connors [sic], as an officer of the court, that at that point he meant that that does not include Charles J. Hynes in his capacity as district attorney. So I ask the plaintiff, could you describe -could you tell us -- how you obtained jurisdiction over Mr. Hynes in his capacity as district attorney? MR. RUBIN: Your Honor, there's nothing I can

say about serving anyone else but Mr. Connor (indicating). I think the complaint makes out a case

against Mr. Hynes in his capacity -THE COURT: I believe the complaint --

I believe there's elements of the complaint where you've alleged elements against Mr. Hynes in his capacity as DA. MR. RUBIN: THE COURT: Yes. I've looked specifically at

paragraph 2 and paragraph 10 of the complaint. So I get the question of subject-matter

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15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Proceedings jurisdiction; however, I am concerned about the question of in personam jurisdiction. According to the

order to show cause, the parties who were here at the temporary restraining order consented to be served in court, and I believe that that's what you put in the order to show cause because the Court has a copy of it. If that's the case, it appears that you have not served Mr. Hynes as a party in his capacity as district attorney. I'm not making that finding; I'm telling you the way it appears. I'll leave it to you, how you wish

to proceed, because you're asking for discovery material from somebody who may not be a party. MR. RUBIN: Well, your Honor, in light of

that, I think we should serve the corporation counsel, if that's the correct -THE COURT: Well, you did not -My role as a

It's not for me to address.

court is to give you an opportunity to be heard for preliminary injunction, and I'm giving you an opportunity to seek discovery pursuant to that hearing which is commencing tomorrow and which will continue, if necessary, on Tuesday. How you arrive at the

material that you need is up to you. I am prepared to sign subpoenas as urgently

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16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Proceedings as possible, etcetera. I do recall that you're asking

for the production of two of the party witnesses, which the Court is prepared to order either on Tuesday or on Friday. MR. RUBIN: And, your Honor, in terms of the

documents from CBS, would the Court be ordering that here or would we be serving -THE COURT: No, I'm prepared to order, if

there is any, e-mails between CBS and Mr. Hynes, in the interim. Now, I understand there's an objection; you have your objection for the record. You also have your I get your

objection as to the hearing for the record.

arguments; I'm just not sure, at this point, as we're going through the motions to dismiss, I agree. Therefore, I prefer to err on the side of the hearing for preliminary injunction, because it's clear to me, we did not even take argument on the issue for preliminary injunction and that issue seems problematic for appeal. Any other questions? questions? So I'll see you tomorrow at 2:00 p.m. I am directing CBS to provide the material -I guess, you can do it by flash drive -- to the best of Counsel, any other

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17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Proceedings your ability, before tomorrow at 11:00 a.m. MR. SCHULZ: stay of discovery. THE COURT: MR. SCHULZ: discovery order. THE COURT: MR. SCHULZ: Based on what? Based on the fact that it's an Excuse me? I'm asking for a stay of the Judge, I'd like to ask for a

inappropriate burden, that we have insufficient time to comply, that it prejudices us in our ability to assert privilege, and that -THE COURT: MR. SCHULZ: THE COURT: MR. SCHULZ: THE COURT: To assert a privilege? Pardon me? To assert privilege? Assert reporters' privilege. What reporters' privilege is

there to a negotiation between a corporation and an office -MR. SCHULZ: I'm sorry. We're not asserting

a privilege over those elements. THE COURT: No, I'm not suggesting anything I don't

regarding reporters' privilege be provided. think that that's relevant. MR. SCHULZ: THE COURT: All right. Okay?

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18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 stay. MR. SCHULZ: THE COURT: Proceedings Okay. I'm prepared to narrow it in such

a way to the elements that are relevant to this proceeding, and I think the elements are very narrow, counsel. MR. SCHULZ: And I would -- and again I would

ask for a stay on the grounds that none of this discovery is relevant to the injunction proceeding. THE COURT: MR. SCHULZ: Um-hmm. And we would request a stay for

an opportunity to take that issue to the Appellate Division. THE COURT: Okay, I get your request for a I

Your application for a stay is denied.

believe it is overriding his (indicating) opportunity to have a preliminary injunction. Certainly, we will get the transcript as quickly as possible; you have your elements preserved for the purpose of an expedited appeal for the First Department. MR. SCHULZ: THE COURT: MR. RUBIN: THE COURT: Thank you, Judge. Anything else? No, your Honor. To the extent that there are

witnesses that you need tomorrow from CBS, do you wish

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19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Proceedings to proceed with them tomorrow at 2:00 p.m.? MR. RUBIN: If they're available, your Honor,

then -- then we will -THE COURT: Then let's get them in here and Unless I hear from the

start tomorrow at 2:00 p.m.

appellate court in the morning, I'll hear it. Counsel, please approach. (Discussion off the record at sidebar.) THE COURT: at 2:00 p.m. All right, I'll see you tomorrow

If anything comes down in the interim,

counsels, you'll let us know as quickly as possible. MR. SCHULZ: THE COURT: transcript, okay? And there is one other question, counsel -Please be seated. (Counsel complied.) THE COURT: Mr. Schulz: If we were to proceed without giving the plaintiff an opportunity to be heard on the preliminary injunction and the television show were to be broadcast on May 28th, wouldn't that effectively moot their claim under the statute? MR. SCHULZ: No, I don't believe so, Judge, -- that I wanted to ask of Thank you, Judge. You'll request the expedited

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20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ALAN F. BOWIN, CSR, RMR, CRR Official Court Reporter 2:00 p.m. Thank you. * Thank you very much. * * Proceedings because to the extent he has an Election Law claim, there are remedies under the Election Law. He's just

not entitled to an injunction, even under the Election Law, which is why -THE COURT: Okay, I get your request under

3211(a), that you don't think he has that right. But if he has a right to have a hearing on the injunction, which he may have a right and we were to not afford him that right, and we were to let the show go forward without giving him that opportunity, we may effectively have mooted his claim without giving him an opportunity to be heard. MR. SCHULZ: THE COURT: I don't believe that's -I know you disagree, but we

believe that that's an important element of his application. Okay?

So at this time, I'll see you tomorrow at

CERTIFIED to be a true and accurate transcript of the proceedings.

ALAN F. BOWIN, CSR, RMR, CRR