Magistrate Suggests Fining RIAA Lawyers

NewYorkCountryLawyer writes "Angered at the RIAA's 'gamesmanship' in joining multiple 'John Does' in a single case without any basis for doing so, a Magistrate Judge in Maine has suggested to the presiding District Judge in Arista v. Does 1-27 that the record companies and/or their lawyers should be fined under Rule 11 of the Federal Rules, for misrepresenting the facts. In a lengthy footnote to her opinion recommending denial of a motion to dismiss the complaint (PDF, see footnote 5), Judge Kruvchak concluded that 'These plaintiffs have devised a clever scheme to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined.' She noted that once the RIAA dismisses its 'John Doe' case it does not thereafter join the defendants when it sues them in their real names. Arista v. Does 1-27 is the same case in which student attorneys at the University of Maine Law School, "enthusiastic about being directly connected to a case with a national scope and significance", are representing undergrads targeted by the RIAA."

What if my name REALLY is "John Doe"

Can you imagine if your name really was "John Doe"? Imagine the fun you could have showing up for court dates with alibi's for everything. "No, your honour... I was at a marriage ceremony on that date and I have 200 witnesses as well as photographic and video evidence"

Re:What if my name REALLY is "John Doe"

an you imagine if your name really was "John Doe"?

Or if your license plate was NO PLATE [snopes.com]? It would be hell dealing with all the John Doe warrants that will pop up in automated systems whenever you try to do anything.

Sorry to those of you who follow the above link and get Zango adware [slashdot.org].

I misread the headline

I thought it said the magistrate suggested FIRING the attorneys. It seems that would be useful too, but there'd be ten more to replace them.

Re:I misread the headline

We could fire the attorneys into space, couldn't we? Please?

Re:I misread the headline

Into the Sun would also work.

I'd rather not fire them into the Sun right now; it's busy doing the payroll. Would it be OK if I fired them into one of the Dells? None of them are doing anything mission critical.

Do you get the feeling?

Do you get the feeling that judges are tired of dealing with the RIAA now? I know what they have been doing is crap legal tactics to intimidate people, but I would have to guess its very rare for a judge to recommend fining a lawyer for their tactics.

Unfortunately, I assume not even a fine like this will slow down the RIAA. They will probably just move on to their next questionable tactic and keep going.

Not really

The judge noted a clever tactic being used by the RIAA to obtain the lists of names from the captured ip addresses. A joint submission was being made to the court to gain clearance for this discovery process. Upon gaining the real names, the RIAA went on to sue them as individuals and ignored the group-status declared to the court.

RIAA lawyers were bending the law to get names--this was seen as being done in bad faith. Hence the footnote and the news article.

You may now resume your activity of reading further into the judge's remarks.

Cheers.

Re:Not really

So, if I'm reading this properly, the RIAA would be forced to do one of two things:

1 - Sue the batches of people as a group. This wouldn't stand long as it would be easy to prove that their alleged wrongdoings weren't connected in nature.

2 - Submit the John Doe suits separately. This would backfire as judges wouldn't be too happy to see a giant stack of individual lawsuits being added to their docket. The RIAA would quickly see their lawsuits getting tossed out by judges and perhaps even fines issued for wasting the court's time.

NewYorkCountryLawyer, if you're reading this, can you verify whether I'm reading this right?

Re:Not really

So, if I'm reading this properly, the RIAA would be forced to do one of two things: 1 - Sue the batches of people as a group. This wouldn't stand long as it would be easy to prove that their alleged wrongdoings weren't connected in nature. 2 - Submit the John Doe suits separately. This would backfire as judges wouldn't be too happy to see a giant stack of individual lawsuits being added to their docket. The RIAA would quickly see their lawsuits getting tossed out by judges and perhaps even fines issued for wasting the court's time. NewYorkCountryLawyer, if you're reading this, can you verify whether I'm reading this right?

What it would mean is that instead of bringing one "John Doe" suit to get the names and addresses of the 27 people, they would have to bring 27 different "John Doe" suits.

Re:Not really

Well according to procedures, that is how it is supposed to be. If 200 people have wronged you, you can bring 200 lawsuits if the people had nothing to do with each other. It is a lot cheaper for the RIAA to file for one lawsuit and tack on 200 John Does. And this is not the first time the RIAA has been told not to lump all the defendants together. A federal court told the RIAA in Fonovisa vs Does 1-41 (2004) that they may not file all unrelated John Does together.

Yes, that is "how it is supposed to be". In a society of laws, that is. The RIAA lawyers think they are above the law.

Re:Not really

Yes, in my opinion they have been violating the court order in Fonovisa v. Does 1-41 [blogspot.com] since November, 2004.

Hold a lit candle under their scrotum instead.

There's no point in fining rich lawyers and even richer multinational media corporations pathetically small amounts of money. Instead of a fine, maybe a lit candle should be held under the scrotum of each laywer and board member. It doesn't have to be held there long. Ten to fifteen seconds should do the trick.

Typical

This is typical. Lawyers go after the most vulnerable members of our society, trying to score the big win that will elevate them to next political office or paycheck. Children are targeted, thrown in jail for decades to 'make the streets safe'. Why is it the streets are safe in Europe, Australia, Canada, or Japan and not here? Why is there a need for vile men like Paul Morrison of Kansas to put 16 year old girls in jail for a decade because they defended themselves from beatings and sexual abuse?

Until we're willing to elect leaders to make a change, until we are willing to demand that the education system educate, until we vote with our pocketbooks and with our protest signs, this will continue. How long are we going to let the law abuse us? How long will our children be tossed in jail among adults to be murdered and sexually abused?

Re:Please cite link for Paul Morrison and 16 yr. o

Esmie Tseng [bbc.co.uk]. She was a 15 year old girl who was physically, sexually, and emotionally abused by her immigrant parents. (Emotional abuse is BS in my opinion, except in this case. The crap they did to her was awful.) One day, when she was getting beaten by her mother, she grabbed a knife. Her mother took it away from her. Esmie grabbed another knife and stabbed her mother 5 times. She then ran to her bedroom. Esmie's mother called Esmie's father who was at work. He got home, spoke to Esmie's mother, called 911, and then Esmie's mother died. She had been afraid to call 911 because she might have been put in jail for abuse.

So what does Paul Morrison do? He throws the book at an abused 15 year old girl. At 16, she is placed in an adult prison. The 16 year old girl is forced to strip on a weekly basis in front of male guards. She's surrounded by women and transgender men who are in jail for trafficking drugs, violent crimes, prostitution, and other violent crimes. She is not allowed to take college courses. At 15, her life was over, all because she did not want to be abused any longer.

As you know, Paul Morrison is now AG. He used the misery of a little girl to catapult himself to statewide office.

Rule 11

Federal Rules of Civil Procedure - Rule 11

The judge specifically wants to fine them under Rule 11(b)(3), which states:

(b) By presenting to the court a pleading, written motion, or other paper -- whether by signing, filing, submitting, or later advocating it -- an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery

Basically, it's a serious ethics violation, and even being called on it without a penalty is going to kill these lawyers' reputations, and effectiveness in a courtroom.

Re:Rule 11

Whoops. I forgot the link:
Federal Rules of Civil Procedure - Rule 11 [cornell.edu]

Re:Rule 11

Getting called out on it BY THE JUDGE is really bad. Parties accuse each other of Rule 11 violations quite frequently, and judges usually ignore these claims--after all, your job is to think outside the box to advocate for your client and this usually pisses off the other side. But for a judge, even a magistrate judge, to say that there may be a Rule 11 violation is out of the ordinary. Wowie.

Re:Rule 11

Whenever a lawyer applies for admission to something, such as a new court, he or she is asked if he or she has ever been subject to sanctions. It's a real bad thing to have happen to you if you're a lawyer and want to continue being one. The firm's malpractice carriers won't be happy, the firm's management won't be happy, and the lawyer who gets sanctioned will be real unhappy.

The lengthy footnote 5

I share the Doe Defendants' concern over the absence of individualized allegations, but for a different reason. My concern has to do with the rules of joinder, see Rule 20(a), and whether it is appropriate for the Plaintiffs to join claims against disparate defendants concerning disparate (albeit similar) conduct, even if only for the purpose of gaining the authority to serve subpoenas to obtain the defendants' names and contact information. I assume they have done so in order to limit their filing fees and make their discovery work more manageable, but I am not convinced that it is proper. See, e.g., DirecTV, Inc. v. Adrian, 2004 U.S. Dist. LEXIS 8922, 2004 WL 1146122 (N.D. Ill. May 17, 2004) (involving claims that defendants separately pirated satellite TV services, without any allegation of concerted action, concluding that joinder was improper, and severing all but the first named defendant from the action). In particular, paragraph 20 of the complaint alleges that the claims against all defendants arise from the "same series of transactions or occurrences" because the Doe Defendants have the same ISP (the University of Maine) and all engaged in file-sharing over the Internet using that ISP. The complaint wants, however, any allegation of concerted conduct. The allegation that all of the claims arise from the same series of transactions or occurrences because all of the defendants used the same ISP sounds good, but makes little sense when one appreciates that having a common ISP says nothing about whether the use of that service by two or more people amounts to the same transaction or occurrence. Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. Separately, the Court may sever defendants sua sponte, pursuant to Rule 21, although dismissal of the action is not authorized. I appreciate that increased costs may redound to the defendants' detriment eventually, but it is difficult to ignore the kind of gamesmanship that is going on here with respect to joinder. Suppose, instead of university students, the record companies chose to target all individuals within the District of Maine who had used these P2P services and had TimeWarner Cable for their ISP. Would all those individuals be properly joined in a single complaint? I think the Plaintiffs know the answer to that question because on May 5, 2007, many of these same plaintiffs filed a very similar lawsuit, Atlantic Recording Corp., et al. v. Does 1-22, 1:07-cv-057-JAW. A procedure similar to the one used in this case was adopted in that case, but no motions to dismiss or motions to quash were filed and presumably the plaintiffs obtained the discovery they sought. The case was voluntarily dismissed on July 16, 2007. Following that dismissal the same counsel filed at least three separate cases in this court: Atlantic Recording Corporation, et al. v. Anna Lenentine, 1:07-cv-133-JAW, on September 4, 2007 (still pending); Capitol Records Inc. v. Cara Laude, 2:07-cv-154-GZS, on September 4, 2007 (settled and dismissed on January 22, 2008); and Atlantic Recording Corp. v. Christopher Leavitt, 2:07-cv-156-DBH, on September 4, 2007 (voluntarily dismissed with prejudice on October 16, 2007). The relevant allegations in the respective complaints simply state that the defendants were "identified as the individual[s] responsible for that IP address at that date and hour" without reference to how the identification was made. However, there is certainly a "plausible inference" that the identifications were made as a result of the May lawsuit. It is curious that no attempt was made to join these cases as arising from the same transaction or occurrence if my plausible inference is accura

Re:The fat lady

Rule 11 sanctions may possibly be an effective deterrent. Rule 11 sanctions are levied against the attorneys, not the clients. I doubt that the RIAA's lawyers are going to condone their client's behavior for very long if the RIAA's courtroom tactics forces their own lawyers to pay money to the court.

Re:The fat lady

And the lawyers don't just tack the fines onto the bills they submit to the RIAA because...?

Re:The fat lady

People, please remember that the RIAA doesn't sue anyone. The actual labels are the named plaintiffs in the file sharing lawsuits. You know, Sony BMG, EMI, etc.

Re:Outrage! RIAA blames economic downturn on pirac

Congratulations sir! Excellent Rickrolling.

If the trolls were all like you, the internet would be a more fun place ;)

Re:The judge

It looks like someone either forgot to pay that judge off!

More important is the fact someone didn't do their homework. The PDF is dated this year! It admits using Media Sentry. Isn't the legal status of using an unlicensed investigator already in question? This case could have been thrown back with so much holes exposed it could get laughed out of court. They even seem to get away with calling the infringement copyright piracy. Wow. At least they have toned it down and didn't call it outright theft. Dudes.. It's copyright infringement.

Re:This Would End Immediately If...

Actually, existing law -- were it applied -- would stop the John Doe cases easily. Under existing law, (a) the proceedings would not be ex parte but would be on notice, and (b) the plaintiffs could not get the John Doe's identity unless they had
-evidence
-in a form that would be admissible at trial
-sufficient to establish each and every element of
-a legally sufficient claim for copyright infringement.

The RIAA has none of the above.