Your Honor, Miss Egerton is here from NBC. I would ask her to step forward. She could step forward to represent NBC's position. However, with respect to the declarations that we referred to yesterday, apparently Miss Egerton has been unable to secure any modification, however--
All right. The record should reflect now the presence of the Defendant, Mr. Simpson. We also have present counsel Anne Egerton representing NBC. Good morning, counsel.
Good morning, your Honor. I wanted to summarize very briefly for the court the history of these ten subpoenas, now eleven. We received another one late yesterday which I will come to in a minute.
Yes, I know, your Honor, but what we have on the record as of late yesterday afternoon is a statement by Ms. Clark that NBC has been, I think her phrase was, totally uncooperative in responding to the subpoenas, and therefore I would like an opportunity very briefly to summarize for the court what the history of this has been. We have received ten separate subpoenas over fourteen months. We have responded to each and every one of those subpoenas. We have produced 19 separate videotapes which constitutes about three Bekins boxes full of material. In addition to the videotapes, we have produced eight--at least eight custodian of records declarations. In order to produce those videotapes which were first requested on VHS and later on three-quarter inch tape, we were asked by the District Attorney's office to produce them on a very expedited basis. As a consequence we had videotape engineers working nights and we had videotape engineers working weekends. I personally have spent more than 50 hours responding to these subpoenas. There are countless others at NBC, videotape engineers, clerical staff, other lawyers, many in the sports division who have spent tens and tens, if not hundreds of hours, complying with the many, many requests for footage that we have received from the Prosecution in this case. So when Ms. Clark represents to this court and to the public that we have not been cooperative, I can only conclude, your Honor, that she has not yet had an opportunity to talk with her colleagues in the District Attorney's office with whom I have been in almost constant contact over the last year, including Mr. Yochelson, Patty Jo Fairbanks, ken lynch and Mr. Hodgman himself who told me as recently as last Tuesday, in essence, that he appreciated our many efforts to date. The--all of these subpoenas may well be invalid. They are issued by a California court for the appearance of a witness who works and lives in New York and for footage located in New York. As I'm sure the court is well aware there are specific provisions in the California penal code in 1334.3 for securing the attendance of witnesses in foreign jurisdictions. The District Attorney's office, for reasons that I am not privy to, your Honor, has made no effort to comply with any of those provisions here. We I believe, respectfully, would have been well within our rights to decline to respond to the subpoenas, but we have not done that. We have responded. We have responded promptly. We have knocked ourselves out to get them three boxes full of material. And the only thing that we have respectfully declined to do is to fly a witness voluntarily--in response to an essentially invalid subpoena, to fly a witness 6000 miles to testify that a piece of footage of a NFL game is what it appears to be, a piece of footage of a NFL game. Until yesterday at about 4:30 when Miss Clark mentioned the January, 1992, game, we did not even know which specific footage in those nineteen lengthy tapes in three Bekins boxes full we were being requested to produce a witness to authenticate. And the reason that there is not a person who is the person that we could bring out here to do that is because of the way these copies were made. Because the Prosecution wanted them on a very expedited basis and because we had people working literally around the clock in New York in videotape edit rooms making these dubs, there were a variety of people who worked on the dubs, many, many different videotape engineers working night shifts and so on, they were supervised by different managers of the videotape library. So my concern, which I have expressed many times to Mr. Yochelson, with whom I've had a very good relationship all these many months, and to Mr. Hodgman last week, is that my concern is that if we were to fly a witness out here, that that witness might not be able to say--that witness would not be able to say I made these copies myself. Under NBC's contracts with unions and guilds that work is done by represented employees. They may be supervised by others. So what we have repeatedly said is we don't understand, quite frankly, why the Prosecution couldn't simply say to the Defense, these are the clips we want to get in, these are NFL games at which Mr. Simpson himself was present. No one can really say that these little clips are what they appear to be, clips of games at which Mr. Simpson was present. So I have a motion to quash that I have prepared. We are not going to file it, your Honor. If--if the court wants us to bring a witness 6000 miles to testify to this simple foundational fact, we will do that. As I say, there has been no compliance with 1334.3. Why that is, I don't know. We get subpoenas everyday, sometimes three or four a day, from lots and lots of people who all think their, case federal or state or civil or criminal, is as important as this one. We try to respond to all of those. Most of those people follow the rules. Now, why some of the rules aren't being followed here, I don't know, but the bottom line is we certainly don't want to be blamed for the Prosecution's not going through the uniform act. And if the court says to me you want us to fly someone out here, that may mean we have to redub the footage because I'm not sure we can identify the person who in the middle of the night on a Tuesday last June made that little piece of tape that we understand the Prosecution now seeks to introduce, we will put that person on a plane and we will bring him out here.
Your Honor, we are spending much too much time on something that could have been handled in a perfunctory manner. Yes, NBC has provided videotapes whenever they have asked for them. What they have not provided us with is the guarantee of a live witness, if necessary, or a custodian's declaration of record which was not received until yesterday. We now have a custodian's declaration of record and we are prepared to go forward. And with respect to the specific tapes that are going to be introduced in court, at Miss Egerton's request a week and a half ago I sent her a chart detailing specifically what segments we were using, and I asked her to try to make efforts to try to ascertain who dubbed these and who would be the live witness. Those results are still not forthcoming. Regardless of any of this, the fact of the matter is we are seeking to introduce footage at this time from one football game played on January 5th, 1992. Now, I agree with counsel that this is a matter that parties could easily stipulate to, but, frankly, counsel from NBC is not trying this case, the lawyers here are trying this case, and we have asked the Defense to consider a stipulation. That has not been forthcoming. And frankly we can't force them to accept a stipulation. We are going to ask the court today to take notice of the declaration of records that has been filed. We can explain this. It covers the segment of tape that was played in court yesterday and we believe that this will suffice and this will settle the matter.
All right. What is this--is this a new declaration from the one that was submitted yesterday?
It is the same declaration, but I believe we can point out to the court that the videotape that was offered in court is videotape that came as a result of this stipulation--this declaration. That declaration refers to a pre and post game show which they were unable to locate; however, the declaration also states that the remainder of the tape was provided by NBC for the game and the half time shows. The segment of tape that we are offering is a brief segment that came at the end of the half time show and the beginning of the third quarter and it came from the three quarter-inch videotapes that NBC provided. In fact, I have them here. There does remain a matter of a second subpoena which we can take up in a moment, but let's--let's cover this. We believe that evidence code section 1560 has been fulfilled and that the foundation has been laid with respect to this one piece of video.
All right. I thought the declaration from Mr. La place yesterday indicated that he could not vouch for that particular videotape. Did I misread that?
Your Honor, Mr. La place, he did six different declarations because we received the subpoenas which were sort of oddly framed. One would call for the half time show and another would call for the pregame game and postgame. In another, subpoenas for another date, one would call for the pregame and would call for the game anyway, so we tried to frame the language of the declarations to respond to each subpoena. The one that is at issue here, as Mr. Yochelson said, called for the game, the pregame and the postgame, not including halftime. What we were unable to locate was the pregame and postgame. Even though, we, you know, had a retired person even check at his home for tapes, that is not, as I understand it, what the Prosecution seeks to introduce. So the bottom line is that we have authenticated all footage we have produced.
Needless to say, something we could not locate and did not produce, we wouldn't presume to authenticate, so the language the court may have been looking at yesterday, which is at lines 17 and 18 of that declaration, refers only to the pregame and postgame footage, which again I understand is not now at issue.
They are all dated July 5th, so it is a little hard to tell, but it is the one, if you look at line 11, it is the one that refers to the Chiefs and Bills played on January 5, 1992, and it says: "The videotapes that were produced contain a true copy of the broadcast footage of the game."
"It was prepared by NBC personnel in the ordinary course of business at or near the date," et cetera.
Yes, your Honor. As I understand it, and I think it is important that the papers that we got from NBC indicate that the first subpoena for these two football games was July 11 of 1994. I think that is relevant to the issue of whether they had adequate opportunity to prepare this issue. Nonetheless, I think what the court is being asked to do is to take some sort of notice of what NBC says is a legally invalid subpoena with a declaration that says we can't provide you everything that you subpoenaed, we don't know where the rest of it is. We object to that. The very reason why a custodian should be here to clarify that. We are not prepared to stipulate to anything and we think this is an invalid subpoena, an affidavit that tells them I can't give you what you ask for and we object to it.
Your Honor, if--we believe that the provisions of evidence code section 1560 have been complied with. If counsel is willing at this time to provide a custodian of records to fly out here, we will pay for it and we will deal with it.
But we want to use the evidence now and we are indicating that this is our good faith representation that we can establish a foundation for this tape.
Yes, exempt for there remains a second outstanding subpoena with respect to testimony from the witness yesterday, Debra Guidera.
We received yesterday, shortly before five o'clock, your Honor, an eleventh subpoena from the District Attorney. This one says that we or provide a live witness tomorrow morning at nine o'clock in this court and to bring with that witness another five or six of the big 3/4 inch tapes of now a 1993 game. Because of what we have been through on this, your Honor, frankly, I would just like to seek the court's guidance. I don't want to file the motion to quash. There are the same problems with this subpoena as with all the others, the noncompliance with 1330 and 134.3, but frankly, your Honor, we--I have spent hours and hours and hours. I want to be done with this. If the court wants us to bring a live witness tomorrow for that, we will try to do that.
Your Honor, for that we don't need a live witness; we can do that later. If we could simply have that tape, even in a VHS format, we will accept it along with an appropriate custodian's record--
--that will meet the requirement of evidence code section 1560 and the foundation that has been laid in the form of the testimony of Debra Guidera.
We can do that, your Honor. I'm just not sure we can do it by nine o'clock tomorrow morning. Typically under evidence code 1560 we get five days. We will do our best, as always.
I understand. I'm going to direct you to make your best efforts then to provide the tape and declaration of a custodian of record by the close of business tomorrow.
As to the January, `92, game, I'm going to find on the basis of the declaration to me that the declaration that is page 13 of 16 to your letter to the court dated September 11th is sufficient for the purposes of California evidence code, so the objection will be overruled.
Your Honor, as to this next videotape, we have not been provided with that. We have not been provided with three Bekins boxes either, but the one that we are talking about now is central to Mr. Rubin's testimony and I cannot cross-examine him on the Guidera picture until I see the videotape. If you will notice, the Guidera picture does not show a lot of detail. I can't cross-examine him on that without seeing this videotape.
And your Honor, we haven't seen it either and we are attempting to get it, and when we get it, we will--we'll evaluate the evidence, but the fact of the matter is we don't have it either.
Well, given the offer that it is going to take twenty minutes to direct examine Mr. Rubin, Mr. Rubin may be on and off before any of this stuff shows up.
Well, if that is the case, we will still move to present the videotape and let the jury evaluate it for themselves.
Technically I can't cross him on something when there is other evidence out there that I don't know what is in it. I have certain questions I want to ask him about that picture. I can't do it this way.
KEY QUOTEI personally have spent more than 50 hours responding to these subpoenas. There are countless others at NBC, videotape engineers, clerical staff, other lawyers, many in the sports division who have spent tens and tens, if not hundreds of hours, complying with the many, many requests for footage.
The only thing that we have respectfully declined to do is to fly a witness voluntarily--in response to an essentially invalid subpoena, to fly a witness 6000 miles to testify that a piece of footage of a NFL game is what it appears to be, a piece of footage of a NFL game.
Technically I can't cross him on something when there is other evidence out there that I don't know what is in it. I have certain questions I want to ask him about that picture. I can't do it this way.
I'm sure you can get it fed-ex'd today, Judge.