Bourne Co. v. Twentieth Century Fox Film Corporation et al

Filing 34

DECLARATION of Paul M. Fakler in Support re: 28 MOTION for Summary Judgment.. Document filed by Bourne Co.. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibits E-G, # 6 Exhibit Exhibit H, # 7 Exhibit Exhibit I, # 8 Exhibit Exhibits J-K, # 9 Exhibit Exhibits L-M, # 10 Exhibit Exhibits N-O)(Fakler, Paul)

EXHIBIT I

Page i
TERESA TINGLE-HEPPNER

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

BOURE CO.,

Plaintiff,
CIVIL ACTION FILE

VS.
NO. 07 Civ. 8580 (DAB)

TWNTIETH CENTURY FOX FILM CORPORATION, FOX BROADCASTING COMPANY, TWNTIETH CENTURY FOX TELEVISION, INC., TWNTIETH CENTURY FOX HOME ENTERTAINMNT, INC., FUZZY DOOR PRODUCTIONS, INC., THE CATOON

NETWORK, INC., SETH MACFAR,
WALTER MUPHY,

Defendants.

DEPOSITION OF

TERESA TINGLE-HEPPNER
March 13, 2008
9:29 a.m.

600 Peachtree Street, NE
Suite 5200

Atlanta, Georgia Jennifer D. Hamon, CCR-B-2287, RPR

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1

Q.

(By Ms. Stark) You can answer.
I would consider Fox a broadcast

2

A.

3 network.
4

Q.

These are not trick questions.

I'm

5 just trying to get my terminology correct.

6 So I will refer to it as a telecast,
.1 then, when I'm referring to Cartoon Network.

8 Does the Cartoon Network
9

MR. RIMOKH: One second.

I'm sorry.

10 11
12

Let her finish her question and
pause before you answer.

Q.

(By Ms. Stark) Does Cartoon Network

13 telecast the show "Family Guy"?
14

A.

Adul t Swim telecas ts the show

15 "Family Guy." They share channel space wi th
16 Cartoon Network.
17

Q.

Can you explain the relationship to

18 me between Adult Swim and Cartoon Network.
19

A.

The way I view it, they are two

20 separa te program services that share the same 21 channel space, sort of like in the daytime
22 hours, it's Cartoon Network, and

23 post 11:00 p.m., it's Adult Swim.
24
Q.
Adul t Swim is not owned by Turner?
Yes, it is.

25

A.

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TERESA TINGLE-HEPPNER
.

1

Q.

Is Cartoon Network also owned by

2 Turner?
3
4

A.
Q.

Yes.
Do they share the same office space?

5 6

A.
Q.

No.
Where are Adult Swim's offices

7 located?

8 A. Adult Swim is located on Williams
9 Street. I don't know the street numer.

10 Q. And Cartoon Network's office is
i 1 loca ted where?
12 13

A.
Q.

1050 Techwood Drive.

How far away are the offices,

14 approximately?
15

A.
Q.

A mile.

16

Tell me about your posi tion at

17 Cartoon Network. At the time of the airing of
18 the Weinstein episode, what was your position?
19

A.

My ti tle at that time was senior

20 vice president standards and practices for the
21 Turner En tertainmen t Group.
22

Q.

So what was your responsibility with

23 respect to the Weinstein episode?
24

A.

My responsibility for that episode,

25 as for all programing, is to ensure

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TERESA TINGLE-HEPPNER

compliance with our standards and practices

2 guidelines.
3

Q.

So it didn't matter that the program

4 was part of Adul t Swim as opposed to part of

5 Cartoon Network, did it?
6
7 8

MR. RIMOKH: Obj ection .
Q.

(By Ms. Stark) You can answer.
It does matter, because the

A.

9 standards are different for the two services.
10

Q.

I'll rephrase the question, then.

1 i Your responsibility to review a

12 program does not differ regardless of whether
13 the program airs on Adult Swim or Cartoon

14 Network; is that correct?

15 The criteria may differ, but your
i 6 responsibili ty to review a program does not

17 change; is that correct?
18

A.
Q.

That is correct.
When did Adul t Swim s tart the

19

20 telecast of "Family Guy"?
21

A.
Q.

I don't rememer exactly.

22 23

Was it in 1999? 2000?

A.

I don't rememer exactly. I think

24 it was after that.
25
Q.

2001 ?

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TERESA TINGLE HEPPNER

i briefly discussed in the beginning, when we 2 were talking about your conversations before

3 the episode aired.

4 Before Adult Swim aired the episode,
5 take me through the steps that you went
6 through one by one to make the decision
7 whether or not it would go on Adul t Swim and

8 be telecast.
9 What was the very first thing you 10 did?
11 12 13
14

MR. RIMOKH: Just to be clear, when
you say "you," do you mean her, or do you

mean

MS. STAR: I mean the company.
She's here's as a representative of the

15 16
i7

company. She's here identified to discuss
that particular issue.

18

Q.

(By Ms. Stark) Please tell me what

19 the company did step by step.
20
I'll help you a little bit. How did

21 it come to be that this episode was going to

22 be telecast on Adult Swim?
23

A.

As is the case in general, James

24 Bagley, in my department, was the first to see
25 the program. He screened the program and

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TERESA TINGLE-HEPPNER

1 wrote the e-mail that you have to Mike Lazzo 2 and Keith Crawford, giving his opinion of the

3 program from a standards and practices point

4 of view and outlining what he thought

5 appropriate next steps were.

6 At some point after that, I recall
7 that Mike Lazzo called me to discuss it and
8

asked me to take a look at it.

I screened it

9 and gave Mike my thoughts.

10 Sometime after that, alternate lines
1 i were presented for review, and we reviewed

12 those, according to our practice.
13 And then I wrote a memo in an
14 e-mail, which you have, giving my opinion

15 abou t the program and how it should be
16 handled. And then the decision was made by

17 the network to move forward.
18

Q.

Who made the decision?
I believe that ultimately -- this is
I believe ul tima tely it was Jim

19

A.

20

my opinion.

21 Samples.
22
Q.

Who is Jim Samples?

23

A.

Jim Samples, at that time, was the

24 head of Cartoon Network.
25
Q.

And what does he do now?

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TERESA TINGLE-HEPPNER

1

A.
Q.

Jim is no longer wi th the company.

2

So going back to the answers that

3 you gave, you said -- and I may be
4 paraphrasing, so please correct me if I'm not

5 stating it correctly -- as always, James

6 Bagley screened the program.

7 Why is James Bagley the one to
8 always screen the program?
9

A.

James's role in the department is to

10 support Cartoon Network and Adul t Swim, and he

11 is identified as the first point person to
12 look at programing for those networks.
13

Q.

And was Adult Swim/Cartoon Network

14 aware that this episode had not aired on Fox?
15

A.
Q.

Yes.
And had you, meaning the company,

16

17 had conversations with Fox about why it had

18 not aired?
19 20
21

A.
Q.

I did not.

The company.

A.

I do not know who in the company may

22 have spoken to Fox. I don't know.
23

Q.

Did you, in preparation for this

24 deposi tion , talk to anybody who may have had

25 conversations with Fox about why the episode

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21
TERESA TINGLE-HEPPNER

1 didn't air on Fox?
2
3

A.
Q.

No.
Did the fact that the episode didn't

4 air on Fox enter into your decision-making

5 process?
6
7 8

A.
Q.

No.
Why is that?

A.

We make decisions based on the

9 content of the program. We don't know what

10 other networks' standards and practices
11 guidelines or decision-making is.
12

Q.

So just to clarify, you don't know

13 whether anyone spoke wi th Fox or you don't
14 think anyone spoke with Fox regarding why the

15 episode didn't air on Fox?
16
17

A.
Q.

I don't know.

Wi th respect to the alternate lines

18 in the program, did Cartoon Network/Adult Swim

19 request the alternate lines?
20

A.

My department will identify content

21 that cannot air and refer that back to the
22 network. I do not know what conversations

23 anyone else had in terms of requesting those
24 lines. I wasn't a part of that process. I

25 merely identified the line that I wasn't
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TERESA TINGLE-HEPPNER

1 comfortable with airing.
2 3

Q.

And what line was that?

A.

That was the line "Even though they

4 killed my Lord."
5 6
7

Q.

In the song?
In the song.

A.
Q.

Was there any other con ten t that you

8 identified in the episode or in the song that

9 you were uncomfortable with?
10
11

A.
Q.

No.
So you testified that you identified

12 this line in the song that you were not

13 comfortable wi th . Who proposed the al terna te
14 line? Who proposed an alternate line?
15

MR. RIMOKH: Objection.

16
17

MS. STAR: Basis?
MR. RIMOKH: It's vague and

18

amiguous.
Q. (By Ms. Stark) Was an alternate

19

20 line proposed for the song?
21

A.

An alternate line was presented to

22 me at some later point. And it was

23 acceptable.
24

Q.

Who presented the line to you?

25

A.

Mike Lazzo.

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TERESA TINGLE-HEPPNER

1

MR. RIMOKH: Thank you.
Q.

2

(By Ms. Stark) Can you tell me what

3 this is, what this document is.
4

A.

This e-mail has the memo I wrote on

5 the Weins tein episode.
6
7
8

Q.

The one that you just testified to?
The one that I just referred to.

A.
Q.

And just so we can get the record

9 clear, is that on page TCN-000l4, there on the

10 bottom right?
11 12

A.
Q.

Yes.

Okay. Continue.
And I see comments from other people

13

A.

14 and discussion about how we would move

15 forward.
16
Q.

When you print e-mails, it goes from

1 7 the bottom up. So did you receive this full
18 chain here on this first page, TCN-00013?
19 20

A.
Q.

Yes.
I see your name appears on each one

21 of these back and forth. So you received

22 this.
23
24

A.
Q.

Yes.
Turning to your memo on the second

25 page that you were discussing, I just want to
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TERESA TINGLE-HEPPNER

1 go back to -- I want to go back to exploring

2 and learning about after you wrote this
3 memo -- and this memo, you testified that you

4 wrote this after the alternate line was

5 approved; correct?
6
7

A.
Q.

That is my memory, yes.

At the very bottom, in the last

8 paragraph before it says, "Please call," it
9 says, I do believe CN should use one of the

10 edi ted versions that lose -- I assume that
11

means loses

the line, quote, even though

12 they killed my Lord.

13 Does this refresh your memory as to
14 the circums tances concerning the edi ted

15 version of the episode?
16

A.

I rememer that there were al terna te

17 lines available and that they satisfied my 18 need for an alternate line that was
19

approvable .

I do not know where they came

20 from.
21
Q.

Is it fair to characterize this memo

22 to Jim as stating that you recommend airing

23 this program with that line revised?
24

A.
Q.

Yes.
And if you look at the date of this

25

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TERESA TINGLE-HEPPNER

1 memo, itls dated October 27th, 2003. Does
2 tha t refresh your memory as to when the

3 program aired?
4

A.
Q.

I'm sorry. No.
Not a month later or six months

5

6 later?
7 8

A.
Q.

No.
But it is your testimony that you

9 know that it did air.
10
11

A.
Q.

Yes.
After you wrote this memo, what

12 happened between this memo and the time

13 al though you can i t rememer when - - the time

14 that the episode aired?
15

A.

I don i t have much memory of what
I don't

16 happened once the decisions were made and they
17
had my inf orma tion . I i m sorry.

18 rememer much.
19
Q.

If you look at the first page, just

20 take a minute to read this chain and see if
21 tha t refreshes your memory at all.
22

A.

My memory is very vague.

I mean,

23 all of this is familiar.
24

Q.

Can you just tell me generally what

25 this is discussing.
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TERESA TINGLE-HEPPNER

1 between any of the other defendants in this

2 case, Fox, Fuzzy Door, MacFarlane, and the

3 Anti-Defamation League, or any other
4 organizations representing the Jewish
5 communi ty regarding the Weinstein episode?
6
7 8

A.
Q.

No.
So I just want to go back to these
Is it

changes that were made to the episode.

9 your testimony that you don't know how these
1 0 change s were made?
11

I i m sorry. Thi s one change.
A.

Is

12 tha t this one change to the line of the song?
13

I am not clear whether you mean

14 technically or what you mean.
15

Q.

Let's go through it, then. You

16 testified that you wanted to change that one

17 line of the lyric, and you asked for it to be 18 changed; is that correct?
19

A.
Q.

Yes.
Take me through the steps of how

20

21 tha t got changed.
22

A.

Our department communicated to Adult

23 Swim that that line was not acceptable for
24 air. At some point later, they came back to
25 us with alternate lines which were acceptable.

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32
TERESA TINGLE-HEPPNER

i And subsequently, a final was produced with

2 the al terna te dialogue in its place, and that
3 was approved for air.
4

Q.

And did it air with the alternate

5 dialogue?
6
7

A.
Q.

Yes.
The first airing aired with the

8 alternate dialogue?
9

A.
Q.

Yes.
Does "Family Guy" have closed

10

1 1 captioning?
12

A.
Q.

I don't know that for a fact.

13

So would you know whether the lyric

14 had been changed in the closed captioning of

15 the episode?
16
17

A.
Q.

I do not know.

Should it have been if there were

18 closed captioning?
19

A.
Q.

Yes.

20
21 22 23
24

Are you

still
in

in standards and

practices?
A.
Q.

Yes.
Were you
' 04?

A.
Q.

Yes.
Would you have been

25

responsible for

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TERESA TINGLE HEPPNER

1

A.
Q.

I don i t see August l3th.
(By Ms. Stark)
If you look at the

2

3 subject line in the middle of the second page,

4 it says, TBS viewer comments for the period

5 8/l3 to 8/20.
6 So my presumption is that the
7 comment came in sometime between that time

8 period. That's why I'm listing that date.
9

So you rememer this happening?

10

A.
Q.

Yes.
And can you just tell me the details

11

12 of what happened.
13

A.

Apparently, in the library, the

14 original Fox version was never pulled from the
15 shelf when the replacement mas ter was created.

16 And when TBS scheduled the episode, the wrong

17 master was pulled -- we were not aware of the

18 wrong master still being in the library -- and

19 aired.
20 We became aware of it because we 21 recei ved this viewer complaint, and
22 immediately afterwards, we had the wrong

23 version that does not have the alternate
24 dialogue removed from the library and

25 destroyed.
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TERESA T NGLE-HEPPNER

1 Q. And on the first page of this
2 document, it says this is from Karen Cassell

3 to you. It says, "My gut is to apologize."
4

Who is Karen Cassell?

5

A.

Karen Cassell is the senior vice

6 president of public relations for TBS and TNT.
'7

Q.

Is she still?

8

A.
Q.

Yes.
And did somebody apologize to this

9

10 viewer?
11

A.

It is my understanding that they

12 did.
13
14

Q.

It wasn't you, though.
It was not me.

A.
Q.

15

So you don i t know specifically how
I don't know specifically.

16 that happened, this apology?
i7

A.
Q.

18

How does Cartoon Network or Turner

19 normally apologize to a viewer?
20

A.

If the complaint comes bye-mail, we

21 generally respond to their e-mail, because
22 that i s the only contact information we have

23 for them.
24

Q.

Other than destroying the master and

25 responding to the complain t by the viewer by
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EXHIBIT PL 40

EXHIBIT FILED WITH THE COURT UNDER SEAL PURSUANT TO PROTECTIVE ORDER