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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
AMERICAN TELEPHONE AND ) Civil Action No. 93-1824
TELEGRAPH COMPANY, )
)
Plaintiff, ) JUDGE ZIEGLER/MAGISTRATE
) MITCHELL
V. )
)
KEITH MAYDAK, SHAWN KOVACK, )
ZANKLE INVESTMENT GROUP, INC.,)
and CONFIDENTIAL SERVICES OF )
AMERICA, INC., )
)
Defendants. )
NOTION FOR A PROTECTIVE ORDER
AND NOW COMES Plaintiff, AT&T Corp. (formerly known as
American Telephone & Telegraph Company) ("AT&T"), by and through
its attorneys, Thorp, Reed & Armstrong, and files the following
Motion for a Protective Order.
1. Keith Maydak ("Maydak") has represented both to this
Court and to counsel for AT&T that the Keith Maydak Foundation (the
"Foundation") is providing financial and legal support to him in
connection with this case. Maydak thus controls, for all intents
and purposes, the Foundation.
2. Given the relationship between Maydak and the
Foundation, the Foundation is privy to information otherwise not
available to the general public (i.e., discovery responses).
3. It was recently discovered that the Foundation has
a World Wide Web cite at http://www.epinet.com/introduction.html.
A copy of the information available at this cite is attached hereto
as Exhibit A.
4. The World Wide Web cite makes repeated reference
both to this action and the related criminal action at C.R. No. 93-
133. As detailed in the accompanying Brief in Support, which is
hereby incorporated by reference, the cite is littered with
defamatory remarks concerning AT&T and blatant mischaracterization
of the facts relevant both to the related criminal proceeding and
this action.
5. The web cite identifies Michael R. Bucci, Jr.'s name
and address as AT&T's counsel. Mr. Bucci has been contacted as a
result of the inflammatory remarks contained in the web cite. A
copy of the message is attached hereto as Exhibit "B."
6. Pennsylvania Rule of Professional Conduct 3.6
prohibits an attorney from making an "extrajudicial statement that
a reasonable person would expect to be disseminated by means of
public communication if the lawyer knows or should know that it
will have a substantial likelihood of materially prejudicing an
adjudicative proceeding."
7. Rule 3.6(b) explains that statements relating to the
character, credibility or reputation of a party are likely to
materially prejudice an adjudicative proceeding.
8. Accordingly, the Foundation's statements violate
Rule 3.6.
9. Maydak's status as a pro se litigant should not
afford him greater leniency with respect to pretrial publicity than
AT&T's attorneys are afforded.
WHEREFORE, AT&T respectfully requests that this Honorable
Court assess Keith Maydak and/or the Keith Maydak Legal Foundation
costs and fees associated with the filing of this Motion and order
Keith Maydak to remove or cause the removal of any information
pertaining to this action or the related criminal action at C.R.
No. 93-133 from World Wide Web/Internet, and prohibit Defendants,
or anyone affiliated with the Defendants, from publishing any
similar information in the future.
Respectfully submitted,
THORP, REED & ARMSTRONG
By:
Michael R. Bucci Jr.
Pa. I.D. 133394
Carolyn A. Holtschlag
Pa. I.D. 170547
Dated: December 13, 1995 One Riverfront Center
Pittsburgh, PA 15222
(412) 394-2366
Attorneys for AT&T
VOICE MAIL RE: Maydak - 10/30/95
Hi. My name is David. I'm in Los Angeles. I'm reading
on the WEBB about a case regarding AT&T and Keith Maydak and I have
checked up on quite a bit of the reference material and can't find
any discrepancies at all other than what AT&T has done to this poor
individual.
I've worked in the studios all of my life and I'm
forwarding all of this information onto my employer - Channel 4 NBC
- and I'm also getting rid of AT&T. I am an AT&T customer although
I am no longer an AT&T customer.
I am also forwarding this to all of the news groups on
the Internet that I think would be interested in this and I find
this highly despicable and disgusting that anyone would do
something like this in my nation when my fathers have died and my
grandfathers have died fighting to make sure that things like this
don't happen. I think that every lawyer joke in the country as I
see it most likely applies to yourself and the lies and the way
that you treat American citizens. I think its just disgusting that
men across this country have died so that people like you can put
innocent men in jail for crap. For bills that have already been
paid.
Thank you very much for your time and I hope you like
everyone knowing what it is that AT&T and Thorp, Reed & Armstrong
have to do with American justice. Thank you sir.
EXHIBIT "B"
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
AMERICAN TELEPHONE AND Civil Action No. 93-1824
TELEGRAPH COMPANY,
Plaintiff, JUDGE ZIEGLER/MAGISTRATE
MITCHELL
V.
KEITH MAYDAK, SHAWN KOVACK,
ZANKLE INVESTMENT GROUP, INC.,
and CONFIDENTIAL SERVICES OF
AMERICA, INC.,
Defendants.
BRIEF IN SUPPORT OF NOTION FOR A PROTECTIVE ORDER
AND NOW COMES Plaintiff, AT&T Corp. (formerly known as
American Telephone & Telegraph Company) ("AT&T"), by and through
its attorneys, Thorp, Reed & Armstrong, and files the following
Brief in Support of Motion for a Protective Order.
ARGUMENT
(1) Pennsylvania Rule of Professional Conduct 3.6
Prohibits Certain Pretrial Publicity.
Because "the right to a fair trial necessarily entails
some curtailment of the information that may be disseminated about
a party prior to trial, particularly where trial by jury is
involved," (see Comment to Rule 3.6 of the Pa. Rules of Prof.
Conduct) certain pretrial publicity is prohibited.
Rule 3.6 of the Pennsylvania Rules of Professional
Conduct provides, in relevant part:
(a) A lawyer shall not make an extrajudicial
statement that a reasonable person would
expect to be disseminated by means of
public communication if the lawyer knows
or reasonably should know that it will
have a substantial likelihood of
materially prejudicing an adjudicative
proceeding.
(b) A statement referred to in paragraph (a)
ordinarily is likely to have such an
effect when it refers to a civil matter
triable to a jury. . . and the statement
relates to:
(1) the character, credibility,
reputation or criminal record of a
party, suspect in a criminal
investigation or witness, the
identity of a witness, or the
expected testimony of a party or
witness;
. . . (or]
(5) information the lawyer knows or
reasonably should know is likely to
be inadmissible as evidence in a
trial and would if disclosed create
a substantial risk of prejudicing an
impartial trial. . . .
Pa. R. Prof. Conduct 3.6.
Thus, any statements that impinge upon the character,
credibility, reputation or criminal record of either a party or a
witness are presumed to materially prejudice an adjudication
proceeding. Such statements are therefore prohibited.
(2) Rule 3.6 Should Apply to Pro Se Litigants.
Rule 3.6 was enacted to ensure the right to a fair trial.
Absent Rule 3.6's limitations, "the result would be the practical
nullification of the rules of forensic decorum and the exclusionary
rules of evidence." See official Comment to Pa. R. Prof. Conduct
3.6. Failure to evenly apply the restrictions set forth in Rule
3.6 would thus thwart the goal of an impartial trial.
Specifically, were pro se litigants immune from Rule
3.6's prohibitions, a fair trial would be only a remote
possibility. Indeed, the pro se litigant would be free to attack
and defame the opposing party, while the opposing party would be
without recourse. To avoid this illogical result, Rule 3.6 must,
therefore, apply to pro se litigants as well as to attorneys.
(3) The World Wide Web Cite Contains Numerous
Violations of Rule 3.6.
The World Wide Web cite is nothing more than a
compilation of attacks on AT&T, blatant misrepresentations of the
factual circumstances surrounding this case, and derogatory remarks
about the federal judicial system and the individuals involved in
the prosecution of the related criminal case.
The following represents only a selection of the inflam-
matory remarks contained in the World Wide Web cite:
(1) "Why is Keith in Jail? Because AT&T
Framed Him." See Exhibit A, Title:'
(2) "One company orchestrated this frame-up
(though they had help). We can only
speculate on their reasons, but avoiding
paying CSA the $1,200,000 they claim to
hold in escrow, keeping another four
million that was paid to them by Local
Exchange Carriers, and distracting
federal agencies from AT&T's own
$261,000,000 liability to the Federal
Government for violating their tariffs
seem like powerful incentives." See
Exhibit A, pg. 1;
(3) "We need your help to spread the word
about AT&T's shams. You can do so much
to help. Write to the Attorney General--
demand an investigation into AT&T's
perjury and cover up. . . . (Demand that
the Attorney General) investigate why
U.S. Attorney Paul Hull isn't concerned
about AT&T's perjury. . . . See Exhibit
A, pg. 2;
(4) "Call or write to AT&T's attorneys in
Pittsburgh. Ask them why AT&T didn't
explain that they weren't allowed to bill
for the calls from the Flying J's at
Keith's trial. Ask them why AT&T didn't
tell the government that they were paid
for those calls." See Exhibit A, pg.
2.
-------------------------------------
1 Exhibit A is attached to the Motion for Protective Order.
2 The Web cite identifies Michael R. Bucci, Jr.'s name and
address as AT&T's counsel. Mr. Bucci has been contacted as a
result of the inflammatory remarks included in the Web cite.
copy of the message is attached as Exhibit B to the Motion for
(5) "Complain to the FCC. Demand they
investigate AT&T's production of illegal
bills in violation of 47 U.S.C. 203 and
their use at Keith's trial. Demand they
investigate whether AT&T's tariffs
allowed those calls (it didn't.)" See
Exhibit A, pg. 3.
(6) "Apparently AT&T drops their contracts at
the drop of a hat. See Exhibit A, pg.
4.
(7) (Referencing a witness appearing at the
criminal trial.) "One person was Nick
Campbell, a 16-year old thug.
Interestingly, Campbell was previously
arrested for breaking into a vehicle
owned by CSA and stealing Maydak's
wallet. I'm sure this incident has
nothing to do with his subsequent
testimony against Maydak. Because
Campbell was a juvenile, Maydak's
attorney was prohibited from telling the
jury about Campbell's past." See Exhibit
A, pg. 5;
(8) (Referencing another witness) "(W]e will
never know how much those who approached
this clerk told him about Maydak before
he remembered Maydak's proposal. But of
course, what reason would he have to lie?
Read on. Before trial, this clerk drove
himself into a pole and died. The Oregon
State Police ruled the accident a
suicide. A further investigation by OSP
revealed that the potential witness was
arrested several times on child
molestation charges (the ideal person to
entrust with the keys to hotel rooms,
right?), had drug convictions, and had a
civil judgment against him in excess of
$1,000,000 as well as several pending
charges." See Exhibit A, pg. 5;
--------------------
Protective Order.
#227191 5
(9) "The Keith Maydak Foundation was formed
after the trial. It was organized by
friends of Keith Maydak who were shocked
at the deception that the government and
AT&T has gotten away with." See Exhibit
A, pg. 7;
(10) "It sounds to us like AT&T was defrauding
Pacific Bell by accepting payments for a
service when it was not properly
disbursing those same payments according
to its contractual obligations." See
Exhibit A, pg. 7;
(11) "Who's the thief? . . . . Even if you
assume AT&T is completely correct and
protected itself from Keith's evil scheme
by withholding payments to CSA, why have
they still not allowed the real victims
(those billed for the calls and who paid
for them) to share in the financial
benefits of their wisdom?" See Exhibit
A, at pg. 10;
(12) "Who's the lawbreaker? . . . . Based upon
AT&T's own allegations, they owe the
government $261,000,000.00. AT&T
fraudulently billed for calls not
permitted by its tariff. They then
collected the funds and held them,
neither distributing them to CSA as
required by their contract nor refunding
them to those who paid them. Is there
any question now why AT&T must maintain
that these calls were part of some scheme
to defraud them?" See, Exhibit A, pg.
10;
(13) "Who's the victim? . . . . Using this
figure, AT&T would still owe CSA $110,000
over the $552,000 they have already paid.
This calculation assumes that 54% of both
the calls AT&T did and did not reimburse
CSA for were fraudulent. Meanwhile, AT&T
withheld payments to CSA totaling about
$1,200,000. Is there any question now
why AT&T needs Maydak's conviction to
stand? Is there any question who the
victim is?" See Exhibit A, pgs. 10-11;
#227191 6
(14) "Do not send Keith Maydak money. The
government will take it and apply it to
the bogus $433,000 restitution order, and
$75,000 fine. If you want to help Maydak
financially, send your contribution to:
The Keith Maydak Foundation, Inc.
613 Cross Street
East McKeesport, PA 15035.11
See, Exhibit A, pg. 13;
(15) (Referencing call forwarding services)
"Did the government and AT&T not know
that this service was unavailable? Did
they not think to cheat? Or did they
lie?" See, Exhibit A, pg. 19;
(16) "AT&T was paid for the 43,500 calls
allegedly made from the Flying J's Travel
Plaza. They were paid by GTE Northwest
long before Maydak was even indicted.
AT&T never informed the government or
Maydak.
The following two excerpts are from
AT&T's Plaintiffs Responses and
objections to Defendant Keith Maydak's
and Shawn Kovack's Request for Answers to
Interrogatories Directed to Plaintiff.
Keith asks AT&T to answer the following
question: 'Did GTE Northwest transmit
payment to AT&T for the 900-prefix calls
which GTE Northwest billed on behalf of
AT&T regarding the Flying J telephones?'
AT&T responds: 'GTE purchased from AT&T
a block of AT&T's receivables which
included those accounts pertaining to the
Flying J telephones. When it was
subsequently determined that the Flying J
accounts were involved in the fraudulent
scheme perpetrated by the defendants in
this action, GTE filed a claim requesting
refund of the payment. The parties are
presently engaged in a dialogue
concerning payment for these accounts.
#227101 7
AT&T and GTE Northwest have not entered
into a settlement of any kind. AT&T will
disclose the substance of its dialogue
with GTE Northwest only under court
order.'
In other words, AT&T was paid before
Maydak was even indicted. Again, Maydak
was indicted for defrauding AT&T. Here
we see that AT&T profited from these
calls and still has kept the money.
Later, Keith asks: 'Did AT&T notify any
federal agent or government employee of
the fact that AT&T was paid by GTE
Northwest prior to July 26, 1993 for the
900 prefix calls by GTE Northwest
regarding Flying J telephones? If so,
please state the person notified.'
To which AT&T responds: " No, because
AT&T and GTE Northwest have not yet
resolved the issue of who is entitled to
the money.'
If this isn't the height of arrogance --
like killing your parents and then asking
for mercy on the grounds that you are an
orphan. AT&T accuses Keith Maydak of
defrauding them and obtains a conviction
and order of restitution and then they
have the gall to refuse to reimburse GTE
Northwest for the calls because they
don't know who should take the loss!
If Keith Maydak defrauded them -- their
accusation -- they should reimburse GTE
Northwest. If AT&T was defrauded, why
should GTE pick up the tab? Clearly,
they haven't been defrauded of one penny
-- they made $33.33 on each call. They
not only kept the portion of that money
they were entitled to, but also the
portion they should have remitted to the
service operator, Keith Maydak."
#227191 8
Through this Web cite, Maydak accuses AT&T of fraud,
perjury, and deception. Each remark is thus in direct violation of
Rule 3.6's prohibition against making statements relating to the
character, credibility or reputation of a party.
Maydak does not, however, restrict his attacks to those
on AT&T. Indeed, he attacks the reputation of Nick Campbell
(referring to him, in part, as a "thug"), an individual listed as
a witness on both AT&T's and Defendants' pretrial statements. In
revealing information about Mr. Campbell's juvenile record, Maydak
not only makes prohibited remarks concerning a witness' credibility
and character, but divulges information which he knows would be
inadmissible in court.
Finally, the cite contains blatant factual
misrepresentations. The fact that this information is available to
anyone with access to the Internet or World Wide Webb means that
potential jurors may, in fact, be reviewing this propaganda.
Maydak's Web cite is nothing more than another in
Maydak's exhaustive attempts to harass AT&T and the individuals
which it employees. The information contained in the cite
undoubtedly materially prejudices AT&T's right to a fair trial. As
such, the information should be removed, and Maydak (or anyone
under his control) must be prohibited from engaging in such conduct
in the future.
Respectfully submitted,
THORP, REED & ARMSTRONG
By:
Michael R. Bucci, Jr.
Pa. I.D. 133394
Carolyn A. Holtschlag
Pa. I.D. #70547
Dated: December 13, 1995
Copyright © 1996-1997 -- The Friends of Keith Maydak
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