[James Long]

Jump ahead to posts including the transcript ...
http://www.dbstalk.com/showthread.php?p=1790554&postcount=618

 

[dgordo]

9/4 Motion Hearing transcript

 

[Herdfan]

That made little sense.

 

[Greg Bimson]

TiVo originally addressed Walker v. Birmingham in their contempt filing from 13 June:

Having passed up the opportunity to challenge the validity, scope, or specific terms of the injunction on appeal, EchoStar cannot do so now in the guise of arguing that the spirit of the injunction required something different from its literal terms. United States v. Ryan, 402 U.S. 530, 532 n.4 (1971) (citing Walker v. City of Birmingham, 388 U.S. 307 (1967)); W. Water Mgmt., Inc. v. Brown, 40 F.3d 105, 108 (5th Cir. 1994) (prohibiting defendants from arguing in a contempt proceeding that injunction was overbroad; "collateral attack on an injunction during contempt proceedings is prohibited if earlier review of the injunction was available" (citing Ryan, 42 U.S. at 532 n.4)).

Here is the text of the transcript posted by dgordo if Acrobat is not for you:

10:00 ct opens; 2 motions;
10:00 ptys provide introduction;
10:00 Chu/ argues motion for contempt;
10:09 ct/ can you site me to a case, design around;
10:09 Chu/ responds; closest case to the following proposition;
10:12 McElhinny/ responds;
10:12 ct/ why didn't you tell the court that you were attempting a design around;
10:12 McElhinny/ responds;
10:13 ct/ status of Delaware action;
10:13 McElhinny/ pending with a motion to dismiss pending;
10:16 ct/ in briefing alerted, read FCC filings to find out about the design arounds;
10:16 McElhinny/ responds;
10:17 ct/ contempt proceedings, extent of design around;
10:17 McElhinny/ there could be a middle ground; if you are going to rule to find us in contempt, we would ask that you stay it while we seek relief;
10:24 Chu/ don't need to respond but Mr. Baxter has background re: case before Judge Ward;
10:24 ct/ are you conceding that this is perhaps not an issue;
10:25 Chu/ we disagree with position taken by Echostar;
10:25 ct/ if I find no where does that leave you
10:25 Chu/ responds;
10:27 Baxter/ address' the ct;
10:27 ct/ go forward with second motion;
10:28 Byrd/ damages motion;
10:30 ct/ time period
10:30 Byrd/ 9/9/2006 through 4/18/08, as practical matter did receive design arounds before 4/18/08;
10:32 ct/ Echostar started implementing design around in October of '06;
10:32 Byrd/ responds, end of October;
10:32 ct/ damages;
10:33 Byrd/ totally unaffected;
10:33 ct/ you feel entitled if there is a contempt order or not;
10:33 Byrd/ continues with argument;
10:36 McElhinny/ responds;
10:37 ct/ damages under that;
10:37 McElhinny/ responds;
10:37 ct/ that is the very minimum
10:38 McElhinny/ no;
10:43 Byrd/ reply;
10:47 ct/ will give it all the attention I can;
10:47 Chu/ other hrg if necessary to have it;
10:48 McElhinny/ huge pending discovery fight; and would appreciate if ct would look if this is the way you want to go;
10:48 ct/ will reserve how to go forward until I do a little more looking;
10:49 adjourned;

I am unsure what TiVo counsel Chu and the reporter mean by "other hrg if necessary to have it", but I think it could mean the motion for contempt on the unadjudicated receivers was ready. It should mean "other hearing if necessary to have it", so the only outstanding hearing would be to go after the unadjudicated DVR's that are merely colorably different.

It is the only reason why I believe TiVo counsel McElhinny would have mentioned a "huge pending discovery fight".

 

[TBoneit]

There sure seemed to be lot missing from that pdf.

 

[Curtis0620]

10:12 ct/ why didn’t you tell the court that you were attempting a design around;


This line says alot.

 

[James Long]

TiVo originally addressed Walker v. Birmingham in their contempt filing from 13 June:

Thanks.

There sure seemed to be lot missing from that pdf.

Yep ... we had a "brief summary" like this for May 30th. A full transcript should be available later for all the gory details - including answers to the questions.

 

[Bidderman9]

There sure seemed to be lot missing from that pdf.

Hmmmm... Here's Something we can all agree on :lol:

 

[Greg Bimson]

10:12 ct/ why didn't you tell the court that you were attempting a design around;

This line says alot.

This was posted over at Motley Fool on the link provided by James Long:

On the timing of the workaround:

The judge asked why the court was not informed that a workaround was possible, and why they developed it in secret? Mcilhiney said that TiVo could have learned of the workaround from their SEC filings. The judge chuckled and asked Mcilhiny if he expected the court to read the SEC filings?

 

[James Long]

In summary ... what DISH failed to do (inform the court) wasn't illegal - but it may have been stupid.

 

[nobody99]

I thought this was interesting too, also from the Fool board:

Chu said that under no circumstances did E* follow the injunction. Chu was citing a case Walker vs Birmingham. He said that even if the court accepted the defendants argument on the design around rendering the product non infringing, they were not free to ignore the injunction.

The Judge asked Mcilhiny if he agreed that just because there was a design around they still could be held in contempt. Mcilhiny agreed that they could still be held in contempt.

Yikes. Your defense team says you could be held in contempt?

 

[Ergan's Toupe]

In summary ... what DISH failed to do (inform the court) wasn't illegal - but it may have been stupid.

While certainly not illegal, I think we can rule out Charlie acting in good faith.

 

[TBoneit]

I thought this was interesting too, also from the Fool board:

Yikes. Your defense team says you could be held in contempt?

Would you lie to someone that would know you were telling an untruth?

If they had said Should not could that would be different.

 

[Herdfan]

In summary ... what DISH failed to do (inform the court) wasn't illegal - but it may have been stupid.

Given they already had a judge tired of their shenanigans, very stupid.

 

[nobody99]

Would you lie to someone that would know you were telling an untruth?

If they had said Should not could that would be different.

Well, for all the other stunts they've pulled, it certainly would have made sense to say something like, "no, your honor, we can't be held in contempt because we no longer infringe."

 

[Ergan's Toupe]

Well, for all the other stunts they've pulled, it certainly would have made sense to say something like, "no, your honor, we can't be held in contempt because we no longer infringe."

I got the impression from talking to people that he has had enough of this BS and wants it over.

The walls are slowly closing around Charlie and his merry band of lawyers.

 

[scooper]

The short summary - about what we've been saying here. No further substantial action today.

 

[scooper]

While certainly not illegal, I think we can rule out Charlie acting in good faith.

No - we can't. Echostar was within their rights to develop said workaround. Nothing in the injunction NOR in case law requires them to notify the court until now. Or, the judge got said notice on the briefings for the 30 May hearing.

 

[Ergan's Toupe]

Given they already had a judge tired of their shenanigans, very stupid.

From what I was told today, Folsom is not a happy camper and literally laughed in Mciilhiny's face when he asked Folsom if he would grant a stay if he found E* in contempt.

Not a good sign. But what do I know.

 

[scooper]

I thought this was interesting too, also from the Fool board:

Yikes. Your defense team says you could be held in contempt?

Depends on what the judges ruling actually is - they can't pretend to be foreshadowing the judges decision.

I don't see it as anything more than a "yes/no" answer.