Pre-trial examinations of five adult industry witnesses began late yesterday afternoon at the Los Angeles Federal Building in Westwood, in preparation for the August 1 hearing on a proposed preliminary injunction against the government's enforcement of the new regulations under 18 U.S.C. §2257, the federal recordkeeping and labeling law, which went into effect for all non-plaintiffs on June 23.
The witnesses to be deposed included actor/plaintiff Dave Cummings, actress Nina Hartley, attorneys Jeffrey Douglas and Allan Gelbard, and Free Speech Coalition (FSC) Director of Communications Tom Hymes, who formerly was editor-in-chief of AVN Online, the adult webmaster magazine.
Due to a sequestration agreement between the parties, the particulars of the witnesses' questioning was not revealed. The examinations of both Cummings and Hartley was completed yesterday; Gelbard and Douglas are scheduled for today; and Hymes' deposition will also start either today or tomorrow, and may be continued in Washington, D.C. on Friday if necessary.
Before the examinations began on Monday, the government's Answers to Plaintiffs' Interrogatories – a list of questions seeking information about the government's claims and their factual basis – were provided to H. Louis Sirkin, FSC's attorney, as well as other attorneys involved in the case. A source close to the proceedings described the document as "very revealing," and promised to provide a copy of the document. Look for a comprehensive analysis of the government's admissions shortly thereafter.
AVN has also learned that at the August 1 hearing, which will take place before Judge Walker D. Miller in the U.S. District Court in Denver, FSC will ask that all then-current members of the Coalition be covered by whatever injunction is granted by the judge. At this point, only the individual plaintiffs and all adult industry businesses and individuals who joined FSC before 2 p.m. on June 25, 2005 are covered by the preliminary injunction that was negotiated between the plaintiffs and the U.S. Department of Justice on June 23.
While it is not known just what areas of the new 2257 regulations will be covered by Judge Miller's expected injunction, whose contents may not be known for as long as two or three weeks after the hearing, one facet almost certainly will be the invalidation of the concept of "secondary producer," since it was in the Tenth Circuit, which includes the district court in Denver, that attorneys Arthur Schwartz and Michael Gross won their landmark ruling in Sundance Associates v. Reno, which struck the "secondary producer" concept from the original 2257 regulations. The government never appealed the Sundance ruling, so it remains the law in the Tenth Circuit, and Judge Miller is duty-bound to follow that precedent.
