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CDA Expert Testimony in the Barbara Nitke Case

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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BARBARA NITKE, THE NATIONAL
COALITION FOR SEXUAL FREEDOM, and
THE NATIONAL COALITION FOR
SEXUAL FREEDOM FOUNDATION,
Plaintiffs,

-against-

JOHN ASHCROFT,
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA, and
THE UNITED STATES OF AMERICA;
Defendants.

01 Civ. 11476 (RMB)
PLAINTIFFS' RESPONSES
AND OBJECTIONS
TO DEFENDANTS' FIRST
SET OF INTERROGATORIES
AND REQUEST FOR
DOCUMENTS

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Plaintiffs Barbara Nitke ("Nitke") and the National Coalition for Sexual Freedom ("NCSF"), by their attorney, John F. Wirenius hereby respond and object to Defendants' First Set of Interrogatories and Request for Documents (collectively, the "Requests") as follows:

 

GENERAL OBJECTION AND RESERVATIONS

  1. Plaintiffs object to Defendants' Requests to the extent they purport to require the disclosure of documents and information beyond the scope of that mandated under the Federal Rules of Civil Procedure and other applicable law.
  2. Plaintiffs object to Defendants' Requests to the extent that they seek the production of documents and information that are exempt from discovery under the attorney-client or work product privileges, or that are otherwise privileged or protected from disclosure.
  3. Plaintiffs object to Defendants' Requests to the extent that they seek the production of documents and information that are not relevant to the subject matter of this litigation and are not reasonably calculated to lead to the discovery of admissible evidence, that cannot be produced without undue burden to Plaintiffs, and/or that require an unreasonable investigation on the part of Plaintiffs in order to be produced.
  4. Plaintiffs object to Defendants' Requests to the extent that they seek the production of documents and information already in the possession of, publicly available to, or readily obtainable to Defendants and their counsel, on the ground that with respect to such production, Defendants' Requests are thereby rendered unduly burdensome.
  5. Plaintiffs object to Defendants' Requests to the extent that they seek the production of documents and information in the possession, custody or control of entities other than Plaintiffs, on the ground that such demanded production is beyond the scope of Rule 34 of the Federal Rules of Civil Procedure and other applicable rules and law.
  6. Plaintiffs object to Defendants Requests to the extent that they seek the production of identic documents and information more than once, on the ground that such production is unduly burdensome. Where documents are responsive to more than one request, an effort has een made to avoid duplicative production.
  7. Plaintiffs object to Defendants' Requests to the extent that they seek the production of documents and information that implicates the privacy interests and rights of freedom of association of non-parties to this litigation, and of members of plaintiff NCSF, pursuant to the First Amendment to the United States Constitution, other applicable statutory law (including but not limited to, the Privacy Act, 5 U.S.C. §552a), as applied in decisions including but not limited to NAACP v. Alabama, 357 U.S. 449, 462-463 (1958); Watchtower Bible and Tract Society of New York v. Village of Stratton, 536 U.S. 150 (2003).
  8. Plaintiffs object to Defendants' interrogatories in toto as violative of Local Rule 33.3 of the United States District Court of the Southern District of New York.
  9. Plaintiffs expressly reserve the right to supplement, clarify, revise or correct any or all of the responses herein at any time. By making any response to Defendants' Requests. Plaintiffs do not waive, and hereby expressly reserve, the right to assert any and all objections as to the admissibility of such responses into evidence at the time of trial of this action, or in any other proceeding, on any and all grounds, including but not limited to, competency, relevance, materiality and privilege. Further, Plaintiffs provide the responses herein without in any manner express or implied admitting that the items in Defendants' Requests or in any response thereto is relevant or material to the subject matter of this action.

SPECIFIC INTERROGATORIES RESPONSES AND OBJECTIONS

Interrogatory No. 1 Identify all persons with knowledge and information relevant to the subject matter of this action, including but not limited to:

  1. All witnesses or other persons with knowledge or information regarding the alleged infringement of plaintiffs' First Amendment rights;

    RESPONSE: Plaintiffs object to this interrogatory as vague, ambiguous, overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs further object to this interrogatory on the ground that it calls for information outside of the possession, custody or control of the Plaintiffs, and publicly available, or in the possession, custody or control of the Defendants.

    Notwithstanding these objections, Plaintiffs refer Defendants to the Specific responses below.

  2. All members of plaintiff organization NCSF who
    1. Claim their potential Internet-based speech has been chilled by the threat of prosecution for obscenity;

      RESPONSE: Plaintiffs object to this interrogatory as vague, ambiguous, overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. This interrogatory is further objected to on the ground that it calls for the production of information protected by the constitutional right to freely associate for lawful purposes without fear of reprisal or public exposure at the hands of the Government. NAACP v. Alabama, 357 U.S. 449 (1958); Watchtower Bible and Tract Society of New York v. Village of Stratton, 536 U.S. 150 (2003); see also Conroy v. New York State Department of Correctional Services, 333 F.3d 88, 95 (2d Cir. 2003) (complainants need not expose themselves to injury to challenge injurious policy; ADA claim).

      Notwithstanding these objections, members of NCSF or its constituent organizations whose speech has been chilled by their concerns that they could be subject to prosecution were they to publish materials via the Internet which they desire to publish, and whom Plaintiffs anticipate calling as witnesses at trial include:

      • Barbara Nitke
      • Michele Serchuk
      • "Amity Harris"
      • Michele Buchanan
      • Jack McGeorge
      • The Eulenspiegel Society (by its webmaster, Dov Hechtman)
      • Tristan Taormino
      • Theresa Reed
      • Carol Queen
      • Females Investigating Sexual Terrain ("FIST")
    2. Has ever been arrested, indicted, charged or otherwise prosecuted for violating any obscenity law on account of the transmission of allegedly obscene material over the Internet, and, for each such member, identify the material alleged to have been obscene.

      RESPONSE: Plaintiffs refer Defendants to Response to Interrogatory 1.b.i, supra. This Interrogatory is further objected to on the ground that is overbroad, unduly burdensome, and not reasonably likely to lead to the production of admissible evidence. In addition, this interrogatory is further objected to on the ground that it seeks information and/or documents revealing information privileged under the Fifth Amendment to the United States Constitution, and of the constitutional and statutory right to privacy.

    3. Has been notified that the member is or ever has been a target or subject of any criminal investigation for violating any obscenity law on account of the transmission of obscene material over the Internet, and, for each such member, identify the material alleged to have been obscene;

      RESPONSE: Plaintiffs refer Defendants to Response to Interrogatory 1.b.ii, supra.

    4. Has refrained from transmitting any material over the Internet because of any actual or perceived threat of prosecution for violating any obscenity law and, for each such member, identify the material that was not transmitted.

      RESPONSE: Plaintiffs refer Defendants to Response to Interrogatory 1.b.i, supra.

  3. Any person known to plaintiffs, other than persons identified in response to Interrogatory 1.b, who has ever refrained from transmitting any material over the Internet because of any actual or perceived threat of prosecution under any obscenity law, and for each such person, identify the material that was not transmitted.

    RESPONSE: Plaintiffs refer Defendants to Response to Interrogatory 1.b.i, supra. In addition to the persons identified in response to interrogatory 1.b.i. supra, Plaintiffs at present anticipate calling as witnesses the following individuals responsive to this interrogatory:

    • Deborah Christian
    • Patrick Califia
    • Deborah Addington
    • Nina Hartley
    • Gloria Brame
    • Candida Royalle
  4. All witnesses or other persons who created or developed, assisted in the creation or development of, have knowledge or information regarding the creation or development of Internet sites on behalf of plaintiff Nitke; RESPONSE: Plaintiffs refer Defendants to Response to Interrogatory 1.b.i, supra. This interrogatory is further objected to on the ground that it is overbroad, unduly burdensome, and not reasonably likely to lead to the production of admissible evidence
  5. All witnesses or other persons who created or developed, assisted in the creation or development of, have knowledge or information regarding the creation or development of Internet sites on behalf of each member of plaintiff NCSF identified in plaintiffs' response to Interrogatory No. 1.b and set forth individually for each member so identified; RESPONSE: Plaintiffs refer Defendants to Response to Interrogatory 1.d, supra.
  6. Any witness plaintiffs intend to call at trial regarding:
    1. The total amount of speech implicated by the Communications Decency Act ("CDA");

      RESPONSE: Plaintiffs object to this interrogatory as premature, especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to create such a list, and as beyond the scope of permissible interrogatories pursuant to Local Civil Rule 33.3. Subject to, and not waiving these objections, Plaintiffs at present intend to call the following witnesses, in addition to those identified in response to interrogatory number 1.b.1 and 1.c, supra:

      • Jeffrey J. Douglas, Esq.
      • Linda Williams, Phd.
      • Arthur C. Danto
      • Dov Hechtman
      • Glenda Ryder
      • Susan Wright
      • Leigha Fleming
      • Robert Thomas
      • Carleen Thomas
    2. The total amount of material not protected by the "serious societal value" prong of the test for obscenity enunciated in Milller v. California, 413 U.S. 15 (1973);

      RESPONSE: Plaintiffs object to this interrogatory as premature, especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to create such a list, and as beyond the scope of permissible interrogatories pursuant to Local Civil Rule 33.3. Subject to, and not waiving these objections, Plaintiffs at present intend to call the following witnesses, in addition to those identified in response to interrogatory number 1.b.1 and 1.c, supra:

      • Jeffrey J. Douglas, Esq.
      • Linda Williams, Phd.
      • Arthur C. Danto
      • A.D. Coleman
      • Dov Hechtman
      • Robert Thomas
      • Carleen Thomas
      • Charles Moser, M.D.
      • David Steinberg
      • Katherine Ramsland, Phd.
    3. Community standards in various localities regarding whether material appeals to the prurient interest;

      RESPONSE: Plaintiffs object to this interrogatory as premature, especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to create such a list, and as beyond the scope of permissible interrogatories pursuant to Local Civil Rule 33.3. Subject to, and not waiving these objections, Plaintiffs at present intend to call the following witnesses, in addition to those identified in response to interrogatory number 1.b.1 and 1.c, supra:

      • Jeffrey J. Douglas, Esq.
      • Arthur C. Danto
      • Susan Wright
      • Barbara Nitke
      • Howard Rheingold
      • Leigha Fleming
      • Robert Thomas
      • Carleen Thomas
    4. Community standards in various localities regarding whether material depicts or describes sexual conduct in a patently offensive way;

      RESPONSE: See Response to Interrogatory No 1.f.iii

    5. The technological or practical possibility of limiting the geographic distribution of online materials;

      RESPONSE: Plaintiffs object to this interrogatory as premature, especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to create such a list, and as beyond the scope of permissible interrogatories pursuant to Local Civil Rule 33.3. Subject to, and not waiving these objections, Plaintiffs at present intend to call the following witnesses, responsive to this Interrogatory:

      • Barbara Nitke
      • Bennet Laurie
      • Seth Finkelstein
      • Howard Rheingold
      • Amity Harris
    6. The protection offered by the affirmative defenses enumerated by the CDA, i.e., good faith effective measures to restrict access by minors and credit-card verification;

      RESPONSE: Plaintiffs object to this interrogatory as premature, especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to create such a list, and as beyond the scope of permissible interrogatories pursuant to Local Civil Rule 33.3. Subject to, and not waiving these objections, Plaintiffs at present intend to call the following witnesses responsive to this Interrogatory:

      • Barbara Nitke
      • Bennet Laurie
      • Seth Finkelstein
      • Jeffrey J. Douglas
      • Amity Harris
    7. The technological or practical possibility of implementing the affirmative defenses enumerated by the CDA, i.e., good faith effective measures to restrict access by minors and credit-card verification;

      RESPONSE: See Response to Interrogatory No 1.f.vi

    8. The potential deterrent effect on Internet users of the affirmative defenses enumerated by the CDA, i.e., good faith effective measures to restrict access by minors and credit-card verification;

      RESPONSE: See Response to Interrogatory No 1.f.vi. In addition to the witnesses therein designated plaintiffs at present intend to call the following witnesses:

      • Charles Moser
      • Jack McGeorge
      • Susan Wright
      • Nina Hartley
      • Amity Harris
      • Theresa Reed
      • Leigha Fleming
      • Carol Queen
      • Eva Norvind
      • Betty Dodson
      • Gloria Brame
      • Michele Buchanan
  7. Any other individual likely to have discoverable information that plaintiffs may use to support their claims;

    RESPONSE: Plaintiffs object to this interrogatory as overly broad, unduly burdensome, and premature , especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to create such a list, and as beyond the scope of permissible interrogatories pursuant to Local Civil Rule 33.3. Subject to, and not waiving these objections, Plaintiffs at present intend to call the following witnesses with respect to the issue of social value of sexually explicit speech, especially as to speech concerning non-mainstream sexual practices:

    • Linda Williams
    • Arthur C. Danto
    • A.D. Coleman
    • Candida Royalle
    • Barbara Nitke
    • Amity Harris
    • Patrick Califia
    • Katherine Ramsland
    • Charles Moser, M.D.
    • Gloria Brame
    • Carol Queen
    • Nina Hartley
    • Betty Dodson
    • Deborah Addington
    • Eva Norvind
    • Tristan Taormino
    • Glenda Ryder
    • David Steinberg
    • Michael Rosen
    • Janet Hardy
    • Deborah Cristian
    • Michele Serchuk
    • Michele Buchanan
    • Theresa Reed

    Additionally, with respect to the issue of the importance of anonymity to those accessing or publishing materials online, and the potential social costs of becoming publicly known as member of a community interested in non-mainstream sexual practices/expression, Plaintiffs at present intend to call the following witnesses:

    • Charles Moser
    • Jack McGeorge
    • Amity Harris
    • Betty Dodson
    • Carol Queen
    • Katherine Ramsland
    • Eva Norvind
    • Gloria Brame
    • Nina Hartley
    • Susan Wright
    • Leigha Fleming
  8. Any other individual not listed above with knowledge or information concerning the subject matter of this action. RESPONSE: See Response to Interrogatory No. 1.g, supra.

2. Identify each and every expert witness that plaintiffs will call to testify at trial, and for each expert state:

  1. His or her field of speciality or expertise;
  2. Any sub-specialities of the witness within his or her field of expertise;
  3. The subject matter on which he or she is expected to testify;
  4. All opinions that he or she is expected to express and the basis and reasons for such opinions;
  5. The data or other information he or she considered in in forming his or her opinion(s);
  6. Any exhibits to be used as a summary of or support of his or her opinion(s);
  7. His or her qualifications, including a list of all publication he or she authored within 10 years preceding the date of this request;
  8. The compensation paid and to be paid to him or her for the study and the testimony; and
  9. All other cases in which he or she has testified as an expert at trial or by deposition within four years preceding the date of this request.

RESPONSE: Plaintiffs object to this interrogatory as overly broad, unduly burdensome, and premature , especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to create such a list, and as beyond the scope of permissible interrogatories pursuant to Local Civil Rule 33.3. Subject to, and not waiving these objections, Plaintiffs at present intend to call the following expert witnesses:

  • Arthur C. Danto
  • Linda Williams
  • A.D. Coleman
  • Katherine Ramsland
  • Bennet Laurie
  • Seth Finkelstein
  • Jeffrey J. Douglas
  • Gloria Brame
  • Charles Moser
  • Howard Rheingold
  • Candida Royalle
  • David Steinberg
  • Susan Wright
  • Michele Buchanan

By agreement between the parties, the affidavits of Arthur C. Danto, Howard Rheingold, and Candida Royalle submitted by Plaintiffs in opposition to the motion to dismiss have been accepted as expert reports. That of Susan Wright is supplemented herewith by a second report addressing the other issues as to which Plaintiffs will adduce her testimony.

The expert reports of the individuals above listed, submitted under separate cover, respond to the various subparts of the above interrogatory, to the extent said interrogatory is proper and/or seeks information discoverable at this time.

 

SPECIFIC REQUESTS FOR DOCUMENTS RESPONSES AND OBJECTIONS

  1. All documents, data compilations, and tangible things that plaintiffs may use to support their claims.

    RESPONSE: Plaintiffs object to this request as vague, ambiguous, overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs further object to this request to the extent that it calls for information outside of the possession, custody or control of the Plaintiffs, and publicly available, or in the possession, custody or control of the Defendants. Finally, Plaintiffs object to this request as premature, especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to craft an appropriate response.

    Notwithstanding these objections, Plaintiffs refer Defendants to the Specific responses below.

  2. All photographs, images, and other depictions or documents that plaintiff Nitke desires to publish on the Internet, but has refrained from publishing on the internet due to any actual or perceived threat of prosecution for obscenity.

    RESPONSE: Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, calls for legal conclusions, and is not reasonably likely to lead to the discovery of admissible evidence.

    Notwithstanding these objections, responsive documents accompany in "Folder 1."

  3. All photographs, images and other depiction or documents that each member of plaintiff NCSF identified in plaintiffs response to Interrogatory No. 1.b, and set forth individually for each such member so identified, desires to publish on the Internet, but has refrained from publishing on the Internet due to any actual or perceived threat of prosecution for obscenity.

    RESPONSE: Plaintiffs refer Defendants to the objection and response to Interrogatory No. 1.b for their objections and response to the instant request. Plaintiffs additionally object to the instant request on the ground that the request appears to be in effect a contention interrogatory requesting Plaintiffs to provide not documents but information beyond the scope permitted by Local Civil Rule 33.3, and is in any event overbroad, unduly burdensome, not calculated to lead to the discovery of admissible evidence.

    Notwithstanding these objections, Plaintiffs will provide under separate cover responsive documents to the extent that such exist and are not publicly available.

  4. All photographs, images, and other depictions authored or created by plaintiff Nitke that have been found by a court or jury to be obscene.

    RESPONSE: Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, calls for legal conclusions, and is not reasonably likely to lead to the discovery of admissible evidence.

    Notwithstanding these objections, Plaintiffs are unaware of the existence of any responsive documents to this request.

  5. All photographs, images or other depictions or documents of which plaintiffs are aware lack serious literary, artistic, political or scientific value in all communities and are considered obscene in some communities but not in others.

    RESPONSE: Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, calls for legal conclusions, and is not reasonably likely to lead to the discovery of admissible evidence. Plaintiffs additionally object to the instant request on the ground that the request appears to be in effect a contention interrogatory requesting Plaintiffs to provide not documents but information beyond the scope permitted by Local Civil Rule 33.3, and further object to this request as premature, especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to craft an appropriate response.

    Notwithstanding these objections, Plaintiffs refer Defendants to the accompanying expert report of Jeffrey J. Douglas, to the affidavits previously submitted of Robert and Carleen Thomas, and the underlying court documents and evidence referred to therein, which is in the possession, custody or control of Defendants, and to the affidavit previously submitted of Candida Royalle, and the publicly available documents referred to therein, which were authored by and published by Defendant the United States of America, and are therefore within its possession, custody and control.

  6. All contracts, agreements, or other documents describing the relationship between plaintiff Nitke and any Internet Service Providers through which Nitke publishes her Internet sites.

    RESPONSE: Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, calls for legal conclusions, and is not reasonably likely to lead to the discovery of admissible evidence.

  7. All contracts, agreements, or other documents describing the relationship between each member of plaintiff NCSF identified in plaintiffs response to Interrogatories No. 1.b, and set forth individually for each such member so identified, and any Internet Service Providers through which each such member publishes his/her Internet sites.

    RESPONSE: Plaintiffs refer Defendants to the response to interrogatory No. 1.b. Additionally, Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence. Plaintiffs additionally object to the instant request on the ground that the request appears to be in effect a contention interrogatory requesting Plaintiffs to provide not documents but information beyond the scope permitted by Local Civil Rule 33.3.

  8. All documents describing or otherwise demonstrating income received or sales of goods and services or otherwise from Internet sites operated or published by plaintiff Nitke.

    RESPONSE: Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence.

  9. All documents describing or otherwise demonstrating income received or sales of goods and services or otherwise from Internet sites operated or published by each member of plaintiff NCSF identified in plaintiffs response to Interrogatories No. 1.b, and set forth individually for each such member so identified, and any Internet Service Providers through which each such member publishes his/her Internet sites.

    RESPONSE: Plaintiffs refer Defendants to the response to interrogatory No. 1.b. Additionally, Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence. Plaintiffs additionally object to the instant request on the ground that the request appears to be in effect a contention interrogatory requesting Plaintiffs to provide not documents but information beyond the scope permitted by Local Civil Rule 33.3.

  10. All documents describing or otherwise demonstrating expenses incurred in publishing or maintaining an Internet site by plaintiff Nitke.

    RESPONSE: Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence.

  11. All documents describing or otherwise demonstrating expenses incurred in publishing or maintaining an Internet site by plaintiff Nitke.

    RESPONSE: Plaintiffs refer Defendants to the response to interrogatory No. 1.b. Additionally, Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence. Plaintiffs additionally object to the instant request on the ground that the request appears to be in effect a contention interrogatory requesting Plaintiffs to provide not documents but information beyond the scope permitted by Local Civil Rule 33.3.

  12. All documents reflecting any effort undertaken or expense incurred by plaintiff Nitke or any NCSF member identified in response to interrogatory No. 1.b to restrict, by geography or otherwise, the community that would receive transmissions over the Internet from Nitke or such member.

    RESPONSE: Plaintiffs refer Defendants to the response to interrogatory No. 1.b. Additionally, Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence.

    Notwithstanding these objections, no responsive such documents exist within the possession, custody or control of plaintiff Nitke.

  13. All documents concerning the creation or development of any Internet site published, created, or maintained by each member of plaintiff NCSF identified in plaintiffs' response to Interrogatories No. 1.b, and set forth individually for each such member so identified plaintiff Nitke.

    RESPONSE: Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence.

  14. All documents concerning the creation or development of any Internet site published, created, or maintained by each member of plaintiff NCSF identified in plaintiffs' response to Interrogatories No. 1.b, and set forth individually for each such member so identified.

    RESPONSE: Plaintiffs refer Defendants to the response to interrogatory No. 1.b. Additionally, Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence. Plaintiffs additionally object to the instant request on the ground that the request appears to be in effect a contention interrogatory requesting Plaintiffs to provide not documents but information beyond the scope permitted by Local Civil Rule 33.3.

  15. All prior or current versions of the Internet site or sites maintained by plaintiff Nitke, and all photographs, images, depictions or other documents published on such Internet sites since their inception.

    RESPONSE: Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence.

  16. All prior or current versions of the Internet site or sites maintained by each member of plaintiff NCSF identified in plaintiffs response to Interrogatories No. 1.b, and all photographs, images, depictions or other documents published on such Internet sites since their inception.

    RESPONSE: Plaintiffs refer Defendants to the response to interrogatory No. 1.b. Additionally, Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence.

  17. All correspondence or other documents from any law enforcement or prosecutorial official regarding the investigation, prosecution, or potential prosecution of plaintiff Nitke for any offense related to obscenity.

    RESPONSE: Plaintiffs object to this request as vague, ambiguous, overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs further object to this request to the extent that it calls for information outside of the possession, custody or control of the Plaintiffs, and publicly available, or in the possession, custody or control of the Defendants.

    Notwithstanding these objections, no responsive documents are in the possession, custody or control of plaintiff Nitke.

  18. All correspondence or other documents from any law enforcement or prosecutorial official regarding the investigation, prosecution, or potential prosecution of each member of plaintiff NCSF identified in plaintiffs response to Interrogatories No. 1.b, and set forth individually for each such member so identified, for any offense related to obscenity.

    RESPONSE: Plaintiffs refer Defendants to the response to interrogatory No. 1.b. Additionally, Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence. Plaintiffs additionally object to the instant request on the ground that the request appears to be in effect a contention interrogatory requesting Plaintiffs to provide not documents but information beyond the scope permitted by Local Civil Rule 33.3.

  19. All documents plaintiffs intend to introduce into evidence at trial regarding:

    1. The total amount of speech implicated by the Communications Decency Act;
    2. The total amount material not protected by the "serious societal value" prong of the test for obscenity enunciated in Miller v. California, 413 U.S. 15 (1973).
    3. Community standards in various localities regarding whether material appeals to the prurient interest;
    4. Community standards in various localities regarding whether material depicts or describes sexual conduct in a patently offensive way;
    5. The technical or practical possibility of limiting the geographic distribution of online materials;
    6. The protection offered by the of the affirmative defenses enumerated by the CDA, i.e., good faith effective measures to restrict access by minors and credit-card verification;
    7. The technological or practical feasibility of implementing the affirmative defenses enumerated by the CDA, i.e., good faith effective measures to restrict access by minors and credit-card verification;
    8. The potential deterrent effect on Internet users of the affirmative defenses enumerated by the CDA, i.e., good faith effective measures to restrict access by minors and credit-card verification.

    RESPONSE: Plaintiffs object to this request as premature, especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to craft an appropriate response. Accordingly, Plaintiffs have not yet been able to determine what documents they intend to introduce at trial.

  20. All documents concerning the matters set forth in your response to Interrogatory No. 2, including but not limited to:

    1. All reports prepared or written by persons identified therein;
    2. All documents reflecting the opinions that the persons are expected to express and the basis and reasons for such opinions;
    3. The data or other information the persons were given, considered, or relied upon in forming his or her opinion(s);
    4. Any exhibits to be used as a summary of or support for his or her opinion(s);
    5. A list of his or her qualifications, including a list of all publications that he or she has authored within the 10 years preceding the date of this request;
    6. A statement of the compensation paid and to be paid to him or her for the study and testimony;
    7. A list of all other cases in which he or she has testified as an expert at trial or by deposition within the four years preceding this request; and
    8. Each person's current curriculum vitae and resume.

    RESPONSE: Plaintiffs object to this request as premature, especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to craft an appropriate response. Accordingly, Plaintiffs have not yet been able to authoritatively determine each experts they intend to call at trial, or to retain. Additionally, the request goes beyond the requisite disclosure for expert witnesses set forth in the Federal Rules of Civil Procedure, and is, to that extent, unduly burdensome, overbroad and not calculated to lead to the discovery of admissible evidence.

    Notwithstanding these objections, the expert reports of Plaintiffs' expert witnesses as identified in response to Interrogatory No. 2 constitute such responsive documents, and are either being produced herewith or will be produced within a reasonable time after retention of such experts.

  21. All materials identified in response to the foregoing interrogatories. Plaintiffs refer Defendants to the response to Request No. 1.

Dated: New York, New York
November 17, 2003

By: _____________________________

JOHN F. WIRENIUS (JFW-1788)
Attorney for Plaintiffs
Barbara Nitke and the National Coalition for Sexual Freedom
52 Broadway-9th Floor
New York, New York 10004
(212)533-6300

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Presentations

  • Approaching Your Local Authorities
    Approaching Your Local Authorities The purpose of this presentation is to educate law enforcement, prosecutors, or other authorities about SM-Leather- Fetish and/or swing practices on behalf of a local group(s). …
  • Child Custody & Divorce: Considerations for Alternative Lifestyles
    Child Custody & Divorce: Considerations for Alternative Lifestyles The problems that arise in child custody disputes between spouses and partners create special concerns for members of the SM/leather/fetish/poly communities. In…
  • Doing SM Related Legal Research
    Doing SM Related Legal Research The law is interpreted – sometimes to our favor, and sometimes not.  For example, while the NCSF firmly believes that consensual SM activity between adults…
  • Event/hotel negotiation
    The purpose of this material is to assist SM/Leather/Fetish groups who are considering hosting an alternative lifestyle event. The goal in presenting this material is to assist in developing a…
  • Field guide for law enforcement
    The following is a handout prepared by The National Coalition for Sexual Freedom aimed at educating law enforcement on the realities of SM. The purpose of this handout is to…
  • How to choose an attorney
    Choosing a lawyer can be difficult, especially if you have to do it at the time you are arrested.  If at all possible, establishing a working relationship with an attorney…
  • Juvenile/CPS/Child Services for BDSM Parents
    Juvenile/CPS/Child Services for BDSM Parents The concerns that result from contact with local and state child welfare authorities are occasionally troublesome for members of the SM/leather/fetish/poly communities. It is often…
  • Life & Death Issues for the Alternative Community
    The purpose of this presentation is to acquaint members of the alternative lifestyle communities  with issues that may arise from the nature of their relationships both during life as well…
  • Police Interactions ? What to do when you deal with police
    Police Interactions ? What to do when you deal with police Your basic legal rights and responsibilities may not always be clearly defined by law enforcement officials. If stopped or…
  • Protecting Your Event
    Protecting Your Event There are many considerations organizers must contend with when planning a large event. Large events include educational and social conferences, leather contests, weekend play parties, vendor markets,…
  • Protecting Yourself Legally
    Protecting Yourself Legally Members of the SM/leather/fetish communities have always had some level of concern regarding the issues of privacy, discretion, and personal security. The Radical Right, employers, ex-partners, and…
  • SM Groups & Law Enforcement: Group Issues
    SM Groups & Law Enforcement: Group Issues It is important for SM/leather/fetish groups to have an understanding of the relationship between the SM community and law enforcement and of the…
  • Swing Groups & Law Enforcement: Group Issues
    Swing Groups & Law Enforcement: Group Issues It is important for swing groups and businesses to have an understanding of the relationship between the swing community and law enforcement, as…
  • The Alleged Domestic Violence Call
    The Alleged Domestic Violence Call It is important for SM/leather/fetish persons to have an understanding of the relationship between the SM community and law enforcement and of the numerous legal…
  • Traveling With Toys
    Traveling With Toys While there have always been security issues involved in travel, the current political climate, as well as new legislation, has changed the procedures used to achieve security,…
  • What is SM Presentation
    For detailed information about the content of this presentation, please visit What is SM?
  • Zoning for SM & Swing Groups and Businesses
    Zoning for SM & Swing Groups and Businesses Zoning and permit issues are commonly used as a tool of local governments when seeking a method to attack SM groups and…

Request a workshop for your local
community, event or group.

Educational Outreach: We're Making a Difference

  • Over 20 different workshops available for presentation by trained professionals.
  • Over 400 EOP workshops presented across the country in the last 12 years.

About Educational Outreach

The Education Outreach Program is designed to help educate those inside and outside the community about important issues relevant to those who practice consensual BDSM, swinging and polyamory.

Program Goals:
  • To assist SM-Leather-Fetish, swing and polyamory groups and communities in their efforts to educate themselves about issues that affect their communities and individual relationships
  • To provide law enforcement and other government authorities with information about alternative sexuality as appropriate
  • To assist alternative sexuality groups and communities in their efforts to educate and work with their local law enforcement and other authorities
Contacts:

EOP@ncsfreedom.org
Or please complete the
Presentation Request Form

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