DATE SIGNED: March 19, 2020 PDF LEONARD POZNER:
Electronically signed by Frank D Remington
Circuit Court Judge
STATE OF WISCONSIN CIRCUIT COURT DANE COUNTY
* * * * * * * * * * * * * * * * *
Plaintiff
vs
JAMES FETZER, et al.,
* * * * * * * * * * * * * * * * *
TRANSCRIPT OF ORAL ARGUMENTS PROCEEDINGS
commencing on the 17th day of March 2020, at approximately
1:33 p.m. before the
HONORABLE JUDGE FRANK D. REMINGTON
APPEARANCES:
LEONARD POZNER appeared by Attorneys at
Law, JACOB ZIMMERMAN, Meshbesher &
Spence, Minneapolis, Minnesota, EMILY
FEINSTEIN and EMILY STEDMAN, Quarles & Brady,
Madison, Wisconsin, appearing telephonically
JAMES FETZER appeared with Attorney at Law,
RICHARD BOLTON, Boardman & Clark, Madison,
Wisconsin, appearing telephonically
Reported by: Colleen C. Clark, RPR Official Court Reporter, Branch 8 Dane County Circuit Court 215 S. Hamilton Street Room 4109 Madison, WI 53703-3290
(Proceeding began at 1:33 p.m.)
THE COURT: Okay. Great. This is case
18-CV-3122, Leonard Pozner versus James Fetzer.
Mr. Pozner appears by Counsel Zimmerman,
Feinstein, and Stedman. And, James Fetzer appears in
person, by phone, along with counsel, Richard Bolton.
Thank you, gentlemen — ladies and gentlemen,
appearing by phone. Actually, it’s probably easier for
you, as the way it works out, Mr. Zimmerman. But in
between the time I scheduled this matter and today,
obviously, the events on the national or international
stage unfolded and the new word being social distancing
applies to the courts and this and other cases have been
moved on — continued but moved on by phone. So I
appreciate your telephonic appearances.
We’re on the court’s calendar for oral
arguments. I’ve read the briefs and the file and, in
addition, somebody filed today Mr. Fetzer’s e-mail to the
Colorado Licensing Agency regarding suspended attorney,
Alison Maynard.
I have some questions I’d like to ask and then
I’d like to work through the issues, but before I do that,
as I usually do, I reach out to the lawyers to invite if
there are any additional preliminary comments, you’re
welcome to make them at this time.
I’ll start with the plaintiff. Who would be speaking, Ms. Zimmerman, Feinstein
— Mr. Zimmerman, Ms. Feinstein, or Ms. Stedman?
MR ZIMMERMAN: Yes, Your Honor. I’ll take the
lead on it. We don’t have any additional comments at this time.
THE COURT: Mr. Bolton, same invitation.
MR. BOLTON: Um, one question I have. We filed
a supplemental affidavit for Professor Fetzer this
morning. I don’t know if the Court has seen that or not?
THE COURT: I have not. Let me look for it. As
you know, while my clerk looks for it, the way the
e-filing system works, these things get put into a queue
and then don’t come to the judge’s desk until they receive
it. So in that circumstances, you’re always welcome to
call the court on the phone and alert us to the fact that
there’s a late filing and we can dig it out that way.
MR ZIMMERMAN: And, Your Honor, I don’t think we’ve seen that either.
MR. BOLTON: Yeah. Well, I apologize. When we
filed it electronically, I had assumed, because I got — I
got an e-mail from the Court saying that it had been
received and associated with the case. I assumed
that that at that point went to everyone who was appearing
electronically as well as the Court. And I may — I may
Page 4 of 46
not correctly understand the process then, but we did
receive an acknowledgment — I thought we received an
acknowledgment that it had been received and associated,
whatever the language it is they use, and maybe — maybe
I’m — maybe I’m wrong on that.
THE COURT: Well, I — Mr. Zimmerman, let me
just read to you what’s been provided. In the end,
because of my preliminary thoughts, I’m not sure it’s
going to make any difference, but my assumption is
Mr. Fetzer is responding to the plaintiff’s suggestion
that the Court should order an independent examiner to
examine the files — electronic files of Dr. Fetzer to verify what he’s saying.
To that end, this is what James Fetzer says in his affidavit:
I make this affidavit as a supplement to my affidavit of February 11, 2020.
I previously indicated that I have deleted all texts
and video versions of the deposition of Leonard Pozner, which I believed to be true.
I subsequently have sought professional input from Jack
Mullen, the webmaster from my blog, who is a cybersecurity
engineer, to verify that all copies of the Pozner
deposition had been deleted from my desktop and my laptop
computers. These are my only computers.
Page 5 of 46
I asked Mr. Mullen to assist me in searching both my
desktop and laptop computers for any video and transcript versions of Mr. Pozner’s deposition.
Using an application called AnyDesk.com, Mr. Mullen and
I searched my desktop computer, an iMac, on March 13,
2020, which search was video recorded at that time.
We found one remaining PDF file of the deposition
transcript on my desktop, but no copies of the video
deposition, which I promptly deleted from my computer.
A true and correct copy of the recording of our search
and deletion will be filed with the Court separately.
Realizing that we had not searched my e-mail or my
laptop, Mr. Mullen and I did a subsequent search of my
laptop and e-mail using AnyDesk.com of both on March 15th, 2020.
When we searched my laptop and e-mail for copies, we
found two additional copies of the deposition transcript, which I then deleted.
A true and correct copy of the recordings of our search
of my laptop and e-mail deletions will likewise be filed separately by the — with the Court.
Based on these — based on the searches conducted by
Mr. Mullen and me, I believe that all video and/or text
versions of Mr. Pozner’s depositions have been deleted
from any and all — from all of my computers and e-mail.
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I apologize for the mistaken statement in my prior
affidavit, which statement I sincerely believed to be true
and subsequently sought to verify.
I also am aware Mr. Pozner seeks to have me jailed
which, my doctor, Zorba Paster, M.D., advises would worsen
major medical conditions affecting me.
Attached to this Supplemental Affidavit as Exhibit 1 is
a true and corrected version of the statement from Dr. Paster.
That didn’t — that didn’t print out, so I’m not
sure it was attached. Oh, wait. Here it is.
To Whom It May Concern: —
MR. BOLTON: Yeah, I think —
THE COURT: It is. I found it. It says: RE: James Fetzer
“To Whom It May Concern:
“Patient should not be in jail as he has major medical
problems that would worsen if he was in jail.
“If you have any questions concerning this matter
please do not hesitate to call me.
“Robert Zorba Paster, M.D.”
All right. So we can return to that, if necessary.
Is there anything else you’d like to say preliminarily, Mr. Bolton?
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————————————————————————————————————————————————————————————————————————————————————-
MR. BOLTON: Only that we have been acting in
all good faith to make sure that any version of the — of
the Pozner deposition has been deleted from the possession
or control of Professor Fetzer.
Having said that, I will also note that — that
I feel — I do still have a copy of the deposition
transcript, which — which I do not have any intention to — to release it to anyone.
So in terms of trying to, you know, further
verify or confirm — let me — let me add — I need to
back up. In terms of the video of what — of that search
and — that they conducted, I’m going to apologize. I —
a link to it was sent to me. I haven’t been able to open
the link yet, which probably doesn’t surprise certainly
any of my partners given my computer skills, but there’s
hard — as you can imagine, there’s hardly anybody here at
the office. So I do have it, but I have not filed that —
those videos with the Court, which I don’t think can be electronically filed in any event.
But in terms of any further attempt to verify,
you know, such deletion, we’re not — we’re not opposed to
that. But what I — what I would say in that respect is
simply — is this. While we’re not opposed to it, to
the extent that that process is held up, for instance, by
Professor Fetzer, you know, paying a forensic expert, the
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ability to make such payment is — is — if I said
uncertain, I probably would be overstating his ability to
make such — such a payment. So while we’re not — we’re
not opposed to that process, I just want the Court to know
that to the extent that that’s dependent on him being able
to pay for such a forensic examination, I do not believe that’s within his capability.
I would give — and I may be wrong on some of
this. I attempted to get information here in Madison
from — from different forensics computer experts as to
what the cost would be for what we were looking for, and
what I was told — quoted, and I — I don’t have this in
writing, but what I was quoted orally was that we were
probably looking at something between $4,000 and $5,000,
which is not something that Professor Fetzer can come up with at this time.
So but in terms of trying to satisfy the Court
and opposing counsel about the sincerity and desire to
fully comply with getting — getting rid of this, you
know, we’re not opposed to that, and we’ll — we’re trying
to do everything we can to, in fact, accomplish that ourselves.
THE COURT: Okay. Mr. Bolton, I’ve got a couple
questions. So you recall that the plaintiff had
previously filed a motion to hold Dr. Fetzer in contempt,
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and we had a hearing on September 13th and at that hearing
I did hold him in contempt and then I set purge
conditions, among other relief, including that then as it
related to the videotape deposition he — I think you were
the one that said put the cat back in the bag or
unscramble the egg or I can’t remember your — but the
plan on September 13 was Dr. Fetzer was charged with
recalling that which he inappropriately sent out, correct?
MR. BOLTON: I do recall that, Your Honor.
THE COURT: Okay.
MR. BOLTON: The only — and you corrected my
memory. I was recalling that the hearing was on September
12th, but I do recall now that it was on Friday, September
13th, I believe.
THE COURT: Okay. And at the time of the first
motion, Mr. Pozner’s concern was not only was Dr. Fetzer’s
action in direct violation of the court order, but it
compounded and exacerbated his concern for his safety and
well-being because now his picture is out on the internet
for everyone to see; isn’t that correct?
MR. BOLTON: I recall.
THE COURT: Okay.
MR. BOLTON: Yes, it is, Your Honor.
THE COURT: Okay. And did I not make it clear
to Mr. Fetzer that — to Dr. Fetzer that in the Court’s
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opinion, disseminating the videotape deposition violated the Court’s order?
MR. BOLTON: I believe you made that clear, Your Honor.
THE COURT: All right. So my question is, if I
understand it correctly, reading Dr. Fetzer’s deposition,
that notwithstanding all that was done on September 13th,
on October 27th he sent Ms. Maynard a copy of the
deposition; is that true?
MR. BOLTON: It is true, but I — but I need to
make the answer a little more full.
THE COURT: Okay. Well, in a moment.
MR. BOLTON: Um —
THE COURT: In a moment — in a moment, please.
MR. BOLTON: Oh, okay.
THE COURT: So isn’t it also true that the
deposition transcript was watermarked confidential?
MR. BOLTON: I don’t recall if it’s watermarked
confidential, but what I do recall, if I — and I don’t
have it in front of me right now, Your Honor, is that it
is — it is marked confidential at the top of the paginations.
THE COURT: Okay. So about one month after he
was held in contempt for disseminating the videotape
version of his deposition, in direct violation of it being
Page 11 of 46
marked confidential, he sends out a copy of the written
deposition, similarly marked confidential. Please explain.
MR. BOLTON: Um, he — he — that is true. And
I — and I do not make any apology for it.
Professor Fetzer, as the Court knows, has
consulted with Ms. Maynard over the course of time, and my
understanding is that he sent her the transcript, which
does not include any additional image of Mr. Pozner,
related to basically ongoing any consultation or
information that she might provide as to — as the case
continues, including potentially for appeal.
THE COURT: Okay. Let’s stop there and address that tangential issue.
Ms. Maynard is currently suspended or disbarred
in the State of Colorado and is not legally authorized to
practice law, correct, Mr. Bolton?
MR. BOLTON: I believe that’s true.
THE COURT: And this recently filed Exhibit A
e-mail from Dr. Fetzer to the regulatory authorities in
Colorado seems to recognize that Dr. Fetzer should not,
did not, and could not seek legal advice from Ms. Maynard.
And, in keeping with that, then should I not
make a reasonable inference that sharing the confidential
transcript with Ms. Maynard on — on or about October 27th
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had no litigation or law-related purpose by virtue of the
fact that she’s suspended and/or disbarred?
MR. BOLTON: I don’t know that — I would
disagree with that. But what I — I would say is that in
terms of whether or not, you know, what — what that —
for instance, what the — what constitutes the practice of
law or whether or not he is prohibited from conferring
with her, I don’t believe that that’s something that
Professor Fetzer knows the answer to.
THE COURT: Okay. Mr. —
MR. BOLTON: I believe — I believe that he
considered that — that advice or consultation that she
provided to him wouldn’t necessarily constitute, you know,
per se legal advice, but that he was not prohibited from
at least conferring with her.
THE COURT: Okay.
MR. BOLTON: He understood at that point that he
certainly could not — that she certainly could not appear
in court or draft legal documents or sign legal documents or anything like that.
THE COURT: Mr. Bolton, as a licensed lawyer in
the State of Wisconsin in good standing for over 30 years
and regularly practicing in the courts, I ask you this
question. As a lawyer, if you were asked by an individual
to review a deposition transcript for purposes of advising
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and giving advice and information on a pending appeal, do
you believe you would be engaged in the practice of law?
MR. BOLTON: I — I don’t — I haven’t
considered that before, but what I’ll say is I’ve never
been, obviously, in that situation, and I can say that in
my personal — my personal view is that I would — I would not do that.
THE COURT: Well you might not do that and
thankfully, you don’t have ethic issues in regard to your license.
But I will say this, as I proceed to articulate
my thoughts and my rulings on the pending motion, there’s
no doubt in my mind that sending a deposition transcript
to an individual for purposes of advice and information on
a pending appeal is tantamount to asking that person to
practice law. It’s something that I cannot recognize for
purposes in Wisconsin as a valid reason for sharing the
deposition transcript with her. But be that as it may, as I said, that was tangential.
Is not — is Mr. — is Dr. Fetzer sharing the
written deposition transcript with Ms. Maynard another
violation of the Court’s order — protective order?
MR. BOLTON: I believe it is, and I have not —
and I don’t believe I argued otherwise, Your Honor.
THE COURT: You did not.
Page 14 of 46
And being that it is a violation, Mr. Zimmerman,
are you asking as to that act Dr. Fetzer be held in contempt?
MR ZIMMERMAN: Yes, Your Honor, we are.
THE COURT: And the Court will make that finding.
Dr. Fetzer, this is separate and distinct from
the hearing and the contemptuous behavior that was
discussed on September 13th. It’s separate and distinct
for — from what you said in regard to that hearing and
information you had. This is a new and additional example
of a complete and utter disregard for the order of the
Court, and therefore, I am going to hold you in contempt.
MR. BOLTON: Your Honor?
THE COURT: Yeah?
MR. BOLTON: Okay. May I — Professor Fetzer
would like to speak to one or more of the questions posed
by the Court. Do you have any objections to — to him —
THE COURT: Here —
MR. BOLTON: — being heard?
THE COURT: Let me tell you what my plan is and
then I’ll come back to that, depending on where we go.
Mr. Zimmerman, in your brief you asked for
various forms of relief. Principally, I think to address
the ongoing issues regarding the failure of Dr. Fetzer to
Page 15 of 46
successfully purge his earlier contempt and retrieve all
copies of the videotape deposition. Isn’t that correct?
MR ZIMMERMAN: With one exception, Your Honor.
The relief we requested was directed both to the videotape
deposition but also to copies of the transcript that has now been released.
THE COURT: Okay. And is it a correct statement
of the facts, as I believe you’ve related to the Court,
that as of today, Dr. Fetzer has not cured all of the
problems caused by his release of the confidential
videotape and written deposition transcript?
MR ZIMMERMAN: That is correct, Your Honor. He
has not. Copies of portions of the deposition transcript
are still publicly available. In particular, Alison
Maynard — Alison Maynard and Defendant Fetzer both filed
ethics complaints against me in Minnesota, and Ms. Maynard
attached a portion of the deposition to her ethics
complaint. In addition, Wolfgang Halbig attached excerpts
from the deposition to a document that he filed in court in California.
So at this point we know the deposition transcript is out there.
It has not been retrieved, it has not been deleted, and at least portions of it are
being used by Defendant Fetzer and his (unintelligible).
THE COURT REPORTER: Can he repeat that last word?
Page 16 of 46
THE COURT: Last word — my court reporter asked —
MR. BOLTON: Your Honor, may I —
THE COURT: — for clarifications,
Mr. Zimmerman, repeat that, the last sentence.
MR ZIMMERMAN: Copies of the deposition
transcript are being used by Defendant Fetzer and his colleagues.
THE COURT: Mr. Bolton, do you agree that as of
today the problems caused by the inappropriate release of
the videotape and written deposition have not been cured?
MR. BOLTON: I believe that Professor Fetzer has
done what he is capable of within his control to cure.
THE COURT: That’s not my question. That may
very well be true, but the question is more than just what
Dr. Fetzer can do. My question is do you agree that the
facts are established that as of today, the problems
caused by Dr. Fetzer’s inappropriate sharing of the
videotape and written deposition have not been fully cured?
MR. BOLTON: I don’t — in terms of the problems
caused by it, I don’t agree with that, Your Honor.
THE COURT: You think the problem–
MR. BOLTON: I understand —
Page 17 of 46
THE COURT: You think — Mr. Zimmerman says,
Well, if the Court’s purge order from the earlier hearing
was for Dr. Fetzer to retrieve everything that he sent
out, Mr. Zimmerman is saying that, of course, that’s not
true at all because copies of the deposition are now
appearing in Minnesota and elsewhere. Is — do you have
information to contradict those statements by Attorney Zimmerman?
MR. BOLTON: I — I — in terms of my
understanding, and — and I may be incorrect, my
understanding is that in terms of any public posting or
otherwise of the — of either the transcript or the
deposition video by Ms. Maynard have been withdrawn. If
I’m wrong on that, I don’t know. I — you know, he can
tell me otherwise. I don’t — but my understanding is
that any public posting has been removed.
THE COURT: But other —
MR. BOLTON: In terms of anything — Go ahead.
THE COURT: I don’t — I just want to make for
clarity sake, the Court’s earlier purge condition was not
to simply just be limited to removing the public postings
of this confidential information. It was obviously to
remove all public postings of the confidential information
and then to have all copies in possession of those not
authorized to possess it destroyed or returned.
Page 18 of 46
So my question to you back, Mr. Bolton, is if
Mr. Zimmerman is telling the facts accurately, it appears
that confidential pages from the deposition transcript are
still in the possession of people who are not authorized
to possess them. Do you disagree with that factual proposition?
MR. BOLTON: My understanding, and I don’t
know — my understanding is that Ms. Maynard has at
least — I don’t remember just what the date of her
affidavit or declaration was — but has at this point in
time destroyed or deleted any electronic version, video or
written transcript, or otherwise. That’s my
understanding. And my understanding is that Professor
Fetzer has also done that. That’s — that’s my understanding.
THE COURT: Your response, Mr. Zimmerman?
MR ZIMMERMAN: Respectfully, Your Honor. We’ve
heard that before. We heard that last time. The last
time we were told that Ms. Maynard deleted all the copies
of the videotape deposition. We know that she did not,
because she posted them to a Vox.com account in
retaliation for our reporting her to the Colorado regulatory source.
So on some level, we hear these people say
they’ve returned the documents, they’re complying, they’re
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complying, but frankly, we don’t believe them and nor do I
think they’re in a position to be believed.
THE COURT: All right.
MR. FETZER: Your Honor, if I might address the Court?
THE COURT: Dr. Fetzer, in a moment. I want to
continue my train of thought on the process.
Obviously, the purpose of a motion for contempt
and the non-summary remedial contempt is to terminate
the — to take such steps as necessary, designed to
terminate the continuing contempt.
Mr. Zimmerman, I believe, based on my experience
and in review of the facts of this case and in
consideration of the point that you just last made about
we’ve been told this before, I believe that the truth of
the matter is, is that because Dr. Fetzer released the
videotape deposition and the written transcript in
violation of the Court’s order, Dr. Fetzer will not ever
be able to retrieve every copy or have every page and copy
destroyed. And that I accepted that representation in
September, and experience tells us based on the evidence
that you’ve presented, without regard to the sincerity of
his intent or the motive behind what he did, he was not
able to do it. And at this point in time, frankly, I am not
Page 20 of 46
optimistic that these most recent representations from
Ms. Maynard are sufficient to assure the Court that she
can be trusted to have done what she claims she will do.
That doesn’t even address the fact that other
individuals have in their current possession copies of
these documents in violation of the Court’s order,
although the Court has no jurisdiction to sanction these
individuals outside the parties in this case, who don’t even reside in Wisconsin.
And so, Mr. Zimmerman, what I will say is with
due respect, I think relentlessly pursuing the retrieval
or destruction of this information, in my opinion, may
very well be a hopeless task. That doesn’t mean that
Mr. Pozner’s without remedy.
The burden of proof in a non-summary contempt
procedure is against the person against whom contempt is
charged to show that the person’s conduct is not
contemptuous. Well, I’ve already concluded that the — as
indicated from the Court’s earlier ruling, Dr. Fetzer’s
sharing of the videotape deposition was contemptuous, and
I made the finding today that his sharing the written transcript is contemptuous.
The sanctions under 785.01(1)(a) is including but not limited to the following remedies:
1. Is a payment to compensate the loss or injury
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suffered by a party as a result of the contempt.
2. Imprisonment, six months or as long as contempt continues, whichever is shorter.
3. Forfeiture not to exceed $2,000 per day for each day contempt continues.
4. An order designed to ensure compliance with prior order of the Court.
5. If the Court finds the preceding sanctions would be
ineffectual to terminate contempt, Court may fashion a
different sanction. That’s under 785.04(1)(e).
Obviously, based on the facts, Mr. Zimmerman,
that you presented for the Court, the public dissemination
and current possession of his image associated with the
videotape deposition is, in Mr. Pozner’s mind, caused him injury; is that correct?
MR ZIMMERMAN: Yes, Your Honor. That is correct.
THE COURT: And the dissemination — likewise,
the dissemination now of the written transcript is
similarly injurious to Mr. Pozner, correct?
MR ZIMMERMAN: That is correct, Your Honor.
THE COURT: So rather than set off about to hire
individuals to go through computers, rather than try to
figure out whether Mr. Fetzer’s cyber security engineer
has the qualification and talents to do what he says he’s
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done, even if we assume that Mr. Pozner — excuse me,
Dr. Fetzer has done the things he said and he doesn’t have
it any longer, as long as others do, that’s a continuing contempt of the Court.
What I propose is that, Mr. Zimmerman, I
schedule an evidentiary hearing and that we hear from
Mr. Pozner as to the nature and extent of his loss or
injury, much as the jury heard about the damages as a
result of the defamatory statements. 785.04(1)(a) allows
the Court to conduct a bench trial for the purposes of
considering what loss or injury — the magnitude of the
loss or injury and the requested compensation for the loss or injury as a result.
Now, that loss or injury due to Mr. Pozner may
not simply be confined to the facts now relating
retrospectively to the release of his image on the
videotape but prospectively as to the continuing and the
like — the injury of the continuing dissemination,
publication, and access to his image on the internet and
what loss or injury he suffered as a result of others now
having possession of that which they are not entitled to.
Then I would consider the evidence and I would
consider whether Dr. Fetzer should make any payment or if
he should make a payment, in what amount as compensation
of the loss or injury suffered by Mr. Pozner,
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understanding that no amount of time imprisonment will
enable him to do what he’s set loose and unable to undo.
But, keeping that in mind, that’s the way I’d
like to proceed, although, Mr. Bolton says Dr. Fetzer is
not financially able to, that’s an entire — to bear the
additional costs associated with the remedies sought by
the plaintiff, may not be financially able to pay the
judgment as a result of the loss or injury he exacted upon
Mr. Pozner, but that’s secondary to the question of we
know he did which what was — he should not have done, and
he’s been unable to fix the problem, and the question is,
is what consequences should he bear by them.
Your response, Mr. Zimmerman, as to proceeding
with a trial — an evidentiary hearing to fix the loss or
injury to Mr. Pozner and for such other and further relief
as you would deem appropriate under the circumstances?
MR ZIMMERMAN: Your Honor, I guess my initial
reaction is I think in some sense it’s an illusory
judgment or — or gain. We have conducted post-verdict
discovery into Dr. Fetzer’s finances. It’s clear that he
has nothing approaching the amount of money that will be
required to satisfy the jury’s judgment already. So we
can add an additional amount onto it based on the harm
that Mr. Pozner has received or, you know, incurred as a
result of the contempt, but I don’t think that really does
Page 24 of 46
anything because Dr. Fetzer can’t pay it. And so it —
it — you know, it requires us to incur additional costs
and expenses without any hope of actually recovering any
money for it, nor do I think it would dissuade Dr. Fetzer
from any future dissemination of this information, which I
think is really the purpose of the remedial contempt.
I think that what he said at the last contempt
hearing when we had him on the stand holds more truth
today than it did then. The Court may remember, we showed
a series of texts between Dr. Fetzer and the individual
from Wrongs Without Wremedies, and in that series of texts
he said, among other things, “What are they going to do?
They’re already suing me for a million dollars.” And I
think the outcome here is exactly that. What are we going
to do? Tag more money onto a judgment that he already
can’t pay? So I — I don’t think that meets the
requirements or the needs of the remedial contempt nor do
I think it would help Mr. Pozner in any way.
THE COURT: Well, it is a remedy available to
Mr. Pozner under the statutes, and be — and it is of
course something that he, and with the advice of counsel,
could consider. I mean, it’s not for me to say what
relief you want. I note only that it’s in the statutory
framework the first item of sanctions associated with
contemptuous behavior.
Page 25 of 46
And, as I think demonstrated in this case
already, there is some deterrent — general deterrent
function associated with fixing the consequences of the
loss or damages based on not just defamation but violation
of the Court’s order. But, you’re right. I don’t suggest
that — you would know more than anyone else as to whether
that is actually money that’s going to be paid, but I
might offer it only in the sense that there are other
benefits associated with fixing the loss or damages. But
that’s why I raise it and that’s why I cut Mr. —
Dr. Fetzer off, because if that’s what we were going to
do, I think in fairness we would not be able to do that
today. It would require a hearing, because under the
common law, hearing evidence and findings of fact are
required, and that would — I think from my perspective,
need some kind of evidentiary hearing.
The problem I have, under 785.04(1)(b), that’s
true, I can put Dr. Fetzer in jail for six months or as
long as the contempt continues, whichever is shorter.
The — Mr. Bolton, as a practical matter,
accepting for the moment that Dr. Fetzer has done all that
was in his power, if there are still copies out on the
internet, isn’t it your position that he would not be able
to retrieve or require those be destroyed? He’s done
everything he can. He can do no more. Isn’t that what
Page 26 of 46
you’re presenting to me?
MR. BOLTON: I believe so, Your Honor.
THE COURT: So, Mr. Zimmerman, my hesitation is,
is to say that I should use imprisonment as a sanction,
there is no purge condition that appears to be within
Dr. Fetzer’s ability. Now, Dr. Fetzer doesn’t deserve any
sympathy for that, because he alone is responsible for his
intentional disregard for the Court’s order on the
dissemination of both the videotape deposition and the
written deposition. But I think we ought to be realistic
in terms of having — I believe he appears to have, at
least as of today, exhausted his abilities and he simply
is unable to undue what he’s done.
A forfeiture similarly is not, I think,
Mr. Zimmerman — Mr. Zimmerman, a forfeiture is — just
adds $2,000 per day for each day. That would be starting
today and run up the cash register, so to speak, and I
don’t know what — what date in the future that would end.
I didn’t — you know, you had suggested the
Court appointing some individuals to oversee this. That’s
not a remedy that’s set forth explicitly in 785.04(1)(a)
through (d). I don’t know whether that’s within the scope
of my authority under subsection (e). But I don’t know
that Dr. Fetzer would have to come up with funds in
advance to pay for that, and Mr. Bolton is telling me that
Page 27 of 46
he doesn’t have any money anyway.
So I think, Mr. Zimmerman, I mean, I can do the following simple things.
Mr. Bolton, Mr. Zimmerman asked that Dr. Fetzer
be required to turn over to the plaintiff — I’m looking
for my note here. Here it is. Turn over to the plaintiff
any correspondence between Dr. Fetzer and anyone having
access to Pozner’s deposition, including but not limited
to Halbig and Maynard. Now, Mr. Bolton, you say that
Dr. Fetzer has destroyed the — or deleted the actual
videotape and written deposition. Does he have any
correspondence between any individuals, including
Mr. Halbig and Ms. Maynard, relating to those two documents?
MR. BOLTON: Judge, I’m not sure the answer to that.
THE COURT: Well why don’t you —
MR. BOLTON: I —
THE COURT: Okay. Assuming —
MR. BOLTON: What I —
THE COURT: — that he does, your response to
the Court’s order under 785.04(1)(e) that he be ordered to
produce all documents and records relating to the
videotape deposition and the written transcript of the
deposition. Your response to the request that I order him
Page 28 of 46
to disseminate — produce all those documents.
MR. BOLTON: I don’t have — no. I don’t object to that.
THE COURT: All right. The Court’s going to
order within the next 30 days, Dr. Fetzer, for you to go
through your entire files and produce every document of
any kind discussing or relating to Mr. Pozner’s
deposition, including but not limited to discussions. The
only exception would be is those that are protected by
attorney-client privilege. But any letter, e-mail, blog
post, or any kind of written document that discusses those
document — that discusses Mr. Pozner’s deposition in any
way. And that is not limited to Halbig or Maynard, it
applies to any person. You will search your files and
you’ll produce those within 30 days.
The Court’s also, having now found a second
contemptuous act by Dr. Fetzer is, as appropriate, going
to award costs and fees associated with this second
motion. Like I said, it deals less with the accuracy of
what was said and when it was said, but certainly is a
motion that is proper and has been granted as it relates
to the inappropriate dissemination of the written
transcript. What fees and costs are you asking for
associated with bringing this motion, Mr. Zimmerman?
MR ZIMMERMAN: Your Honor, the total attorney
Page 29 of 46
time spent on this second contempt is in excess of 35
hours. I — if it would be acceptable to the Court, need
to follow up with Quarles and Brady lawyers to determine
the hourly rate that applies to the hours that they spent on this issue.
THE COURT: Okay.
MR ZIMMERMAN: My standard hourly rate is $450 an hour.
THE COURT: All right. I believe Mr. Bolton did
not object to the hourly rate that was asked for and
awarded last time, but have that — when do you — when
can you have filed your bill of costs and fees?
MR ZIMMERMAN: We should be able to do that tomorrow, Your Honor.
THE COURT: How many days do you need,
Mr. Bolton, to respond to that?
MR. BOLTON: Ten days, Your Honor.
THE COURT: Ten days. Then I’ll — if there’s
no objection, then, Mr. Zimmerman, with your filing,
submit a proposed order as well.
Additionally, if you would please submit an
order articulating in words that you would like, the order
that Dr. Fetzer produce any document between him and any
other person relating to the deposition of Mr. Pozner.
That then brings us to what other and further
Page 30 of 46
such relief is appropriate. I guess, just to make sure we
have a clear record, although you, I think, had some
reticence, if I would entertain Mr. Leonard Pozner’s
request for a sum of money to compensate him for the loss
or injury associated with this — Dr. Fetzer’s contempt,
if you’d like, what would you like to do on that element
of damages or sanctions under 785.04(1)(a), Mr. Zimmerman?
MR ZIMMERMAN: Again, if I could ask the Court’s
indulgence, I’d like to talk to Mr. Pozner and see whether
he is interested in going forward with that or not.
THE COURT: Okay. I think that’s fair. I’m not
wedded to the procedure. It could be — I don’t believe
there — I think what I would say, Mr. Zimmerman, if you’d
like to proceed for an evidentiary hearing, which would
produce findings, tell me how you would — how you or
Mr. Pozner would like to proceed. It doesn’t necessarily
have to be in live testimony. It could be by some other
form. The only disadvantage is — well, the only
advantage of a hearing in court is there would be an
opportunity for cross-examination. So consult with your
client, ask him what he wants and how he wants it, and
then why don’t you have that response to me by when?
MR ZIMMERMAN: Again, I should offer the Court a
response to that by tomorrow.
THE COURT: Well, I want you to give some
Page 31 of 46
thought to the procedure, because I haven’t researched the
cases on the procedure — I’m looking at the Judicial
Benchbook chapter on contempt, but it talks about — all
it talks about is a hearing, evidence, and findings
required. I’m satisfied that it’s a hearing before the Court.
Why don’t we do it by — have your position on
such further proceedings for damages, how about by the end
of next week. So it’s March 17th, by March 27th.
MR ZIMMERMAN: Yes, Your Honor. That’s acceptable.
THE COURT: Mr. Bolton, we’ll give you two
weeks, by April 10th to respond.
THE CLERK: What was the first date?
THE COURT: March 27th, April 10th, and then for
a response — and then a reply April 17th from you,
Mr. Zimmerman, and that — really, I’m interested in
understanding the parties’ positions as to how.
We know that Mr. Pozner says he has been
injured. I believe that the injury is ongoing. I don’t
know how much his injury — the magnitude of the injury or
what it is he’s asking for in compensation. I do know
that he’s entitled to payment to compensate the loss or
injury suffered by him as a result of Dr. Fetzer’s
contempt. So in that respect, then that moves on that track.
Page 32 of 46
I said earlier on, if we’re going to have a
hearing, I have some hesitation to utilize the remedy of
imprisonment at this time. My information — my belief
on — or my understanding of a purge condition on an
imprisonment might be better once I understand really the
details and intricacies of how far and wide Mr. Pozner’s
deposition has been disseminated and whether there is
truly any possible remedies or actions he can take to
mitigate the loss or injury to Dr. — excuse me, to Mr. Pozner.
That’s what I was prepared to do today.
Mr. Zimmerman?
MR ZIMMERMAN: Yes, Your Honor.
THE COURT: It’s not everything you wanted. I’m
not — today I’m not going to appoint a court-appointed
forensic computer person. I’d like just to — I’d like to
address that after the evidentiary hearing on the
magnitude of the loss or injury to Mr. Pozner.
It appears, and I know I read it to you, that
maybe Mr. — Dr. Fetzer has done everything he can do. I
don’t even know who this person is. I mean, I don’t even
know — do you know — does this — Mr. Bolton, does this
individual have any professional qualifications other than
helping Mr. — Dr. Fetzer run his blog?
Page 33 of 46
MR. BOLTON: I don’t have that at my fingertips.
I do — I do believe that he — he’s — he designs websites. He’s —
MR. FETZER: He has multiple degrees and high
qualifications, Your Honor, which he’d be glad to submit
for the benefit of the Court.
THE COURT: Okay. Then I’m going to order
within ten days, Mr. Bolton, if you’re going to ask me to
rely on this so-called expert, I’m going to ask you within
the next ten — I’ll require, before I consider anything
that he says, that you provide an expert report.
I’d like that report, as with any other expert
report, to detail who he is, what his training, knowledge,
qualification, what educational degrees he has, and what
opinions he’s offering to the Court as to the success in
consultation with Dr. Fetzer as to the mining and
stripping of his personal computers.
Then that gives some better information to
Mr. Zimmerman than simply Dr. Fetzer saying, This is my
buddy, Jack Mullen, who’s a so-called cyber security engineer.
If you don’t provide that report, then I’m going
to completely disregard the hearsay statements associated
with Mr. Mullen.
MR. FETZER: May it please the Court?
Page 34 of 46
THE COURT: I’m sorry? Who said something?
MR. FETZER: The whole —
MR. BOLTON: Wait. Wait. Wait, Dr. Fetzer. If
the judge — the judge needs to agree to let you speak
before you may proceed.
And, Your Honor, obviously, Professor Fetzer has
wanted to speak at least briefly.
THE COURT: Okay. Dr. Fetzer, what —
MR. BOLTON: If —
THE COURT: Dr. Fetzer, what would you like totell me.
MR. FETZER: The whole confidentiality business,
Your Honor, was done without my informed consent. It was
negotiated between Mr. Zimmerman and the fellow who is
representing, Dave Gahary, Wrongs Without Wremedies. I
was, as it were, coaxed into it, but I did not understand
its ramifications and I most certainly would not have
agreed to it had I properly understood.
Second, the — the fact is the content of this
deposition is what is crucial. On two different
occasions, first in relation to Dave Gahary’s attorney and
second in relation to me, Mr. Pozner, the plaintiff,
agreed that the copy of the death certificate we published
in the book was the same as the copy of the death
certificate he had made available to my researcher
Page 35 of 46
associate, Kelley Watt.
This means that Mr. Zimmerman is not acting here
altruistically or on behalf of his client but seeking to
protect himself from a fraud upon the court that he
falsely testified during the summary judgment that that
was not the death certificate that his client had provided
but another, which was in fact a fifth fake death
certificate, which I contested at the time was a shell
game, but it was in fact a bait and switch. I have no
doubt. I’ve examined that death certificate with a
magnifying glass. It is a fake, Your Honor.
MR. BOLTON: Stop. Let me interrupt you.
Professor Fetzer, I — I don’t believe that we’re speaking
to the immediate issue before the Court. And so, I’m not going —
MR. FETZER: Your —
MR. BOLTON: I’m not going to tell you not to
proceed, but I don’t know that there’s — that it’s productive.
MR. FETZER: Your Honor, I’ve — I’d like to add
a couple of additional points. The —
THE COURT: I think that — Dr. Fetzer —
MR. FETZER: The —
MR. BOLTON: You —
THE COURT: Doctor — Dr. Fetzer. I think you
Page 36 of 46
should listen to your lawyer. Everything you just told me
is completely immaterial and, in fact, mildly offensive to
the Court. So if you want to go ahead and keep speaking
extemporaneously on issues that are off-topic and show me
that if anything is clear, you haven’t learned anything
from being sued and the lessons that the Court had
attempted to — or the court system had attempted to engender.
But, as your lawyer says, is if you’re intent on
doing that, I’ll give you a little bit more time, but my
recommendation is, is you have — you wanted a lawyer, you
worked hard to get a lawyer, you have a lawyer who’s
respected in the community and he’s giving you advice.
What would you like to do, Dr. Fetzer?
MR. FETZER: Because these occurred when I was
pro se, Your Honor, I have been very exacerbated by the
form of events here where I have sought to conform to the
Court’s directives here. I initially believed that it was
the video deposition and the images that were at stake.
And it was not until late December, when I was
in Las Vegas en route to the Rose Bowl that I learned that
Ms. Maynard had published the — the written transcript
that then — and I immediately consulted — Dave Gahary so
informed me. I immediately consulted with Mr. Bolton who
confirmed to me that was correct. I was shocked.
Page 37 of 46
I had — that had not been my understanding.
I immediately reached out to Ms. Maynard and
asked her to take down the transcript, that even that was
covered by the Court’s order. I have acted in every way
possible in conformity with the Courts’s directive.
Mr. Zimmerman has made another false
representation in suggesting I’m using the transcript now
in relation to complaints against him. Alison Maynard did
a whole separate affidavit to explain why she had her own
reasons for the — challenging the conduct of
Mr. Zimmerman as unethical.
I did not use any aspect of the transcript, but
I most certainly have cited the fact that in two different
instances in that video deposition Mr. Pozner confirmed
that the death certificate we published in the book was
indeed the same death certificate he had given to Kelley
Watt, and since that happens to be the central issue in
this case, I have been frankly dumbfounded that there has
been no way I’ve been able to bring this to the attention
of the Court and get an appropriate response.
I understand that defendants have rights as well
as plaintiffs, but I’m hearing a great deal about the
plaintiff’s rights and none about my own.
Wolfgang Halbig made it clear from the beginning
he wasn’t going to surrender the video deposition, but
Case 2018CV003122 Document 410 Filed 03-19-2020
Page 38 of 46
Mr. Zimmerman’s been going after me as if I could control
Wolfgang Halbig.
I’ve done everything I can with Sunny Maynard.
She’s not an attorney. She never represented herself to
be an attorney to me except that in my own mind because
she was a lawyer, when I drafted certain things I — I
said it was because, you know, with the assistance,
because she and I have discussed these matters, but since
she’s not technically a lawyer, she cannot be practicing
law, she can only be exercising her First Amendment right
to share her — her research and the results which
included the determination that according to statutes in
Connecticut, not even parents can be the possessors of
uncertified death certificates, which was the major
blunder that Mr. Zimmerman sought to compensate by
introducing two new fabricated death certificates during
the summary judgment.
That is the facts of the matter, Your Honor.
I’m dedicated to the truth, and I would be most
appreciative if the Court would take judicial notice of
what I had just reported.
THE COURT: I’ll ask you one question,
Dr. Fetzer. You’ve tried to convince me that although you
signed the document indicating your agreement with it,
that you — had you not as you understood the contours and
Page 39 of 46
requirements of the Court’s protective order, being
unrepresented at the time, you say you would not have
agreed to it. You’re telling me that, correct?
MR. FETZER: Yeah. That I understand the
ramifications of that, I would not have agreed to it —
THE COURT: Okay.
MR. FETZER: — at the time, Your Honor. Yes.
THE COURT: All right. But on October — on
October — in October, when you shared the confidential
written transcript, you were represented, and the written transcript —
MR. FETZER: Your Honor —
THE COURT: — and the — and the written
transcript says on its face that it’s confidential, does it not?
MR. FETZER: Well, it does, Your Honor, but I
had not understood. I thought the whole issue was the
video. That the images — honestly, I’m being as sincere
as I could possibly be, Your Honor. I did not understand
until 30 December that it covered the written transcript as well as the video.
THE COURT: Since you’re complaining about —
since you’re asking to be excused for the decisions you
made while unrepresented, why should I excuse you for
misunderstanding for the decisions you made when
Page 40 of 46
represented, with my assumption, is that you never
consulted your lawyer to ask whether you could share a
confidential document with another individual?
MR. FETZER: That — that was my misjudgment, and I take responsibility.
Therefore, Your Honor, I — I did not consult
with Mr. Bolton about whether Ms. Maynard was entitled to
it. I believed she did because I was seeking her
assistance in preparation for the appeal. She knows the
court — the case very thoroughly. She had also assisted
Wolfgang Halbig and knows his case very thoroughly. And I
thought it was fully appropriate in order to elicit her
First Amendment right expression of concern which I had
conveyed to Mr. Bolton repeatedly that I wanted, as we
prepared our appeal, that he would consult with her among several of the parts.
THE COURT: Okay. Mr. — Dr. Fetzer, would you raise your right hand.
MR. FETZER: Yes.
JAMES FETZER,
called as a witness, being first duly sworn in
the above cause, testified under oath as follows:
EXAMINATION
BY THE COURT:
Q Now, Dr. Fetzer, you just told me a number of things.
Page 41 of 46
I hadn’t anticipated that you were going to be communicating
facts to me, but now that you’re under oath, has all that
you told me in every respect been truthful and accurate?
A It has, Your Honor.
THE COURT: All right. Based on the testimony
you provided to me, I’m going to make a finding of fact
that you shared the deposition transcript of Leonard
Pozner for the purposes of seeking legal advice and that
legal advice from a person not authorized to practice law
in Wisconsin.
Now, that’s not a crime for you in Wisconsin,
Dr. Fetzer, but having made that finding, based on your
sworn testimony, that is a problem for Ms. Maynard, who in
this Court’s opinion continues to present herself as an
attorney in the practicing of law.
Two other things. Mr. —
MR. FETZER: Just a —
THE COURT: — Mr. Zimmerman, in your — in
your — when you get back to the Court, I am considering
one other possible remedy under 785.04(1)(e). As I
indicated in the court — in a written decision, I denied
the plaintiff’s request for attorney’s fees because I did
not believe you were able to obtain your attorney’s fees
under the American Rule for an action at law.
My question to you is because now here, so far
age 42 of 46
after the trial in this matter, Mr. Pozner is — has not
sought — has not obtained the full relief that he
intended by stopping the utterance of the defamatory
statements and the harassment that he testified to, my
question to you I’d like you to address is whether the
Court should award your attorney’s fees for the entire
case within the Court’s authority under 785.04(1)(e).
MR ZIMMERMAN: Your Honor, we do think that
that’s an appropriate remedy in this instance, using the
Court’s power — sanctions power rather than the initial
grounds that we briefed in our post-trial motions.
THE COURT: And then, Mr. Bolton, you’ll have an opportunity to respond.
I bring it up because it occurred to me, though
I am satisfied with the ruling that I made on the
unavailability of the actual attorney’s fees for the
underlying defamation case, I do believe — I mean, it’s
very clear that 785.04 does allow the payment of
attorney’s fees, and the payment of only — the only
nexus, of course, that I — Mr. Zimmerman, you should
address is that the nexus between the fees incurred in the
underlying case as it relates now to the actual
contemptuous behavior. Because it — the language in
785.04(1)(e) is if the Court finds the preceding sanctions
would be ineffectual to terminate contempt, the Court may
Page 43 of 46
fashion a different sanction. And I guess that sanction
would be is then, essentially, Dr. Fetzer reimbursing
Mr. Pozner for all the fees and costs associated with
bringing this action as against him in light of his
post-trial, post-verdict contemptuous behavior — repeated
contemptuous behavior.
All right. Then after I receive those
documents, I’ll send out a new notice for a — depending
upon what I hear from you as to how you’d like to proceed.
Just bear in mind, nobody knows what the court
systems — how they’re going to be operating. I am
handling — holding hearings in open court by telephone.
If the — there’s further restrictions on court
proceedings, I’ll let you know. It’s not anticipated
that — it’s unclear as to how quickly the courts will
reopen for evidentiary purposes, but we’ll proceed to
address this matter as quickly as possible.
Mr. Zimmerman, is there anything more that you’d
wanted me to address or accomplish here today? I have
listened — I’m granting your motion and holding
Dr. Fetzer in contempt for a second time. I have
indicated, I’ve awarded your costs and fees associated
with bringing the motion, and I’ve ordered Dr. Fetzer to
turn over any correspondence or documents relating to his
communications in any way with anyone regarding the
Page 44 of 46
deposition transcripts.
Is there anything else that you’d like the Court
to do here this afternoon?
MR ZIMMERMAN: No, Your Honor. We appreciate
your attention.
THE COURT: Mr. Bolton, have I addressed all the
issues you wanted to bring before the Court?
MR. BOLTON: Yes, Your Honor.
THE COURT: Is there anything else you’d like to say?
MR. BOLTON: No, Your Honor.
THE COURT: Okay. Well then we’ll adjourn.
I’ll — for further proceedings upon receipt of the
written documents ordered by the Court.
Thank you very much. Have a good rest of the day.
(Proceeding concluded at 2:45 p.m.)
Page 45 of 46
STATE OF WISCONSIN )
ss. )
COUNTY OF DANE )
I, COLLEEN C. CLARK, Registered Professional
Reporter, Official Court Reporter, Branch 8, Dane County
Circuit Court, hereby certify that I reported in Stenographic
shorthand the proceedings had before the Court on this 17th day
of March, 2020, and that the foregoing transcript is a true and
correct copy of the said Stenographic notes thereof.
On this day the original and one copy of the
transcript were prepared by pursuant to Statute.
Dated this 19th day of March, 2020.
Electronically signed by:
Colleen C. Clark
COLLEEN C. CLARK, RPR
OFFICIAL COURT REPORTER
The foregoing certification of this transcript
does not apply to any reproduction of the same by
any means unless under the direct con