In Motown v. Nelson, pending in federal court in Port Huron, Michigan (Eastern District of Michigan, Southern Division), the defendants -- Mr. and Mrs. Nelson -- have made a motion for attorneys fees against the RIAA attorneys, pursuant to 28 U.S.C. 1927 for unreasonable and vexatious litigation and improperly interfering and/or obtaining false testimony from a prospective witness.
The Nelsons, represented by attorney John Hermann of Berkley, Michigan, have alleged that:
1. Over the past several years many of the major recording labels have attempted to combat the use of peer-to-peer file sharing programs to exchange digital music recordings.
2. Utilizing provisions of the Digital Millennium Copyright Act, the record labels along with their representative trade association (the Recording Industry Association of America hereinafter referred to as the “RIAA”) have filed suit against thousands of “John Doe” defendants seeking to obtain the identity of unnamed individuals whose internet addresses have been identified as being used to download and/or exchange protected music files.
3. However, the RIAA is unable to substantiate whether the owner of the internet address or someone else using their account (i.e. teenage child, household member, or someone else using the individual’s identity) was engaged in the alleged activity since the information obtained only denotes the identity of the account holder.
4. The risk of wrongful identification is magnified – and made more probable — by the fact that the companies hired by the record labels are compensated based on the number of internet accounts identified by their search results.
5. Over the past several years the potential for abuse of the RIAA’s legal initiatives has caused concern among several internet services providers. On August 11, 2003, the members of Net Coalition (an association of several internet service providers) urged the RIAA to explain what “due diligence” methods it was taking to ensure the accuracy of its information and what compensatory actions were in place for individuals who were wrongfully targeted. Not surprisingly, the RIAA failed to respond to Net Coalition’s request and its lack of investigation into such claims has led to a widespread number of cases where individuals have been wrongfully sued:
§ RIAA issued a Section 512(h) subpoena, obtained the identity of an anonymous individual, and filed a federal copyright infringement action seeking damages of up to $150,000.00 per song, based on its belief that the defendant had illegally downloaded over 2,000 copyrighted songs, including the song, “I’m a Thug,” by rapper Trick Daddy. As it turned out, the defendant, Sarah Ward was a 66 year-old grandmother who has never downloaded any songs nor did she own a computer capable of running the file sharing software allegedly used. See C. Gaither, Recording Industry Withdraws Suit, Boston Globe, Sep. 24, 2003 Cl.
§ RIAA obtained the identity of a Los Angeles resident through a Section 512(h) subpoena and filed a lawsuit against him seeking millions of dollars in damages from the defendant’s alleged downloading of music. As it turns out, the IP address allegedly used for the downloading is not the defendant’s, and the defendant did not have the file sharing software allegedly used. In addition, the allegedly infringed songs were primarily Spanish language songs; the accused individual did not understand Spanish and did not listen to songs in Spanish. See Men, Group Contends Records Labels Have Wrong Guy, Los Angeles Times, Oct 14, 2003.
§ Warner Brothers sent out a notice to an ISP that alleged that an illegal copy of the film “Harry Potter and the Sorcerer’s Stone” was being made available on the internet. The notice stated that the requesting party had the belief that copyright infringement had taken place over the ISP’s connection at a specific time, and demanded the that ISP terminate the anonymous users account. As it turned out, the material in question was a child’s book report.
§ RIAA sent a notice to Penn State’s Department of Astronomy and Astrophysics, accusing the University of unlawfully distributing songs by the pop singer Usher. In fact, the RIAA mistakenly identified the combination of the word “Usher” – identifying faculty member Peter Usher – and a capella song performed by astronomers about a gamma ray as an instance of copyright infringement. The RIAA blamed a “temporary employee” for the error and admitted that it does not routinely require its “Internet copyright enforcers” to verify whether the infringing material is in fact what is alleged. See McCullah, RIAA Apologizes for Threatening Letter, CNET News, May 12, 2003.
§ RIAA sent out a cease an desist notice to ISP customer alleging illegal activity on a subscriber’s site devoted to the Commodore Amiga computer stating that the site “offers approximately 0 sound files for download,” which contain copyrighted materials owned by its member companies. See McCullah, RIAA Apologizes for Threatening Letter, CNET News, May 12, 2003
§ Priority Records v. Candy Chan Case No. 04-cv-73645-DT U.S. District Court Eastern District of Michigan Southern Division Case No. Several of the major record labels sued Ms. Chan who has no experience or knowledge of computers. Throughout the course of discovery it was established that Ms. Chan (1) did not know how to operate a computer, (2) never heard of a peer-to-peer file sharing program, (3) never used the e-mail address of spicybrwneyedgrl@fileshare associated with the downloading activity, (5) has never downloaded any music recordings. Prior to Defendant filing a Motion for Summary Judgment, Plaintiff voluntarily moved to dismiss their complaint against Ms. Chan.
§ RIAA filed a federal copyright infringement action against David Andora seeking damages of up to $150,000.00 per song, based on their claims that he had illegally downloaded hundreds of songs using a file sharing program known as Limewire. As it turned out, Mr. Andora residence was equipped with a wireless internet router which unbeknownst to him enabled anyone within the immediate vicinity to use his internet access including patrons of an internet cyber café in a Boarder’s book store located 100 feet from his home. In addition, the software program and shared files that the RIAA claims were used by Mr. Andora were never on his computer nor were they capable of being operated on his computer equipment.
6. On June 22, 2004, several of the above caption Plaintiffs filed suit against 213 John Doe defendants based allegations of copyright infringement linked to identifiable customer IP addresses maintained by Charter Communications. (Loud Records, L.L.C., et al. v. Does 1-213, United States District Court for the Eastern District of Missouri Case No. 04-04-cv-00769)
7. On June 24, 2004, Plaintiffs sought leave to conduct discovery in order to determine the identity of the account holders for each of the 213 fictitious John Doe defendants. On July 7, 2004, the court entered its order allowing Plaintiffs to conduct immediate discovery and on July 8, 2005, Plaintiff issued a subpoena to Charter Communications seeking to disclose the identity of the 213 Doe defendants.
8. On July 15, 2005, Charter Communications sent Mr. Nelson a notification letter informing him that his internet account had allegedly been used to download and/or exchange copyrighted sound recordings without permission from the copyright owner(s). (Exhibit 1; Charter Communications Letter)
9. The letter urged Mr. Nelson that if he had any questions or wished to discuss this matter in further detail to contact a representative of the record company. (Exhibit 1)
10. Immediately thereafter, Mr. Nelson and his wife contacted the number and spoke with a representative of the “Settlement Support Group” (“SSG”) who insisted that Mr. Nelson owed his clients several hundred thousand dollars because their computer was used to download and/or exchange hundred of music files using a peer-to-peer file sharing program registered under the username alex7@KaZaA.
11. Mrs. and Mrs. Nelson responded by explaining that (1) Mr. Nelson did not own or know how to operate a computer, (2) neither of them had ever heard of KaZaA or any other peer-to-peer file sharing program, (3) and neither of them had ever downloaded or exchanged any copyrighted music recordings.
12. When questioned further, Mrs. Nelson explained that she operates an in-home day care center and did not know whether any of her employees or children may have used the KaZaA program on the computer which she uses for her business.
13. At that time, the SSG representative instructed Mrs. Nelson to delete the songs from her computer and provided a technical “walk through” on how to remove the KaZaA program from her hard drive.
14. Mrs. Nelson also provided the representative with the name and address of all of the individuals who had access to her computer including their seven year old daughter Alex and fifteen year old employee Eammtia Granado. After fully cooperating with their investigative efforts, the SSG representative insisted that it didn’t matter whether other individuals were involved since it was their computer that was used to “illegally steal” music.
15. Over the next several weeks, SSG representatives continued to harass Mr. and Mrs. Nelson with threats that if they did not pay thousands of dollars they would end up owing hundreds of thousands of dollars in fines and could face criminal charges.
16. On September 20, 2004, Plaintiffs filed suit against Mr. Nelson accusing him of copyright infringement by making “copyrighted sound recording owned by the record company plaintiffs available for mass distribution over a peer-to-peer network.”
17. After being served with a copy of the complaint, counsel for Mr. Nelson contacted Plaintiffs’ national representative in an effort to resolve the matter. Counsel for Mr. Nelson again re-iterated that Mr. Nelson (1) does not own or know how to operate a computer, (2) has never heard of a peer-to-peer file sharing program, (3) has never used the username of alex7@KaZaA, (4) has never downloaded any music recordings.
18. Plaintiffs’ national representative insisted that Defendant’s lack of involvement was irrelevant and that he could be liable for hundreds of thousands of dollars whether or not he was engaged in the file sharing of music recordings simply because the internet account was in his name.
19. In response, counsel for Mr. Nelson then asked Plaintiffs’ representative to provide a factual and legal basis for its position. Plaintiffs’ representative responded that “It didn’t matter, someone is going to be responsible and someone is going to have to pay.” Plaintiffs’ representative further threatened that unless Mr. Nelson paid $4,000.00 immediately, his client authorized him to conduct extensive discovery which would only increase the amount that he would eventually owe.
20. On March 10, 2005, Mr. Nelson sought to depose the agent and/or representative with knowledge as to the procedures in place to verify that those individuals who have been identified using online media distribution systems to exchange copyrighted sound recordings were, in fact, the individual(s) who used, controlled, or had access to such online media distribution systems.
21. Plaintiffs responded by designating a representative of MediaSentry, Inc. as the entity responsible for discussing the methods used discover the identity of potential infringers. (Exhibit 3, Letter from Matthew Krichbaum)
22. After being deposed, MediaSentry’s own president readily admitted that their investigative measures cannot actually identify the person responsible for the suspected infringement since the information they obtain only denotes the identity of the internet account holder. (Exhibit 4; Deposition of Gary Millin pp. 47, 56-58)
23. In addition, MediaSentry’s president testified that their investigative efforts cannot verify whether the program files identified in the screen shot exhibits are copies of actual sound recordings or program files that look like they might be a sound recording by virtue of their name, title, or other description. (Exhibit 4; Deposition of Gary Millin pp. 47, 56-58)
24. Other than matching an internet IP address to a “suspected” file, no other investigation or due diligence is performed to ascertain the identity of the actual infringer. (Exhibit 4)
25. Based on the Nelsons previous statements to the SSG investigators, Plaintiffs counsel contacted the fifteen year old employee who had access to the Nelsons’ computer and scheduled her deposition for the same date and time as the Nelsons.
25. On April 7, 2005, Mr. and Mrs. Nelson testified that they (1) have never utilized a peer-to-peer file sharing program, (2) have never used the username or address of alex7@KaZaA, (3) and have never downloaded or shared any music recordings, (4) nor were they aware of anyone else engaged in the downloading or exchange of copyright material on the computer.
27. On the same day, Emma Granado, the fifteen year old employee previously identified by Ms. Nelson offered the first of several contradictory statements with regard to her involvement in the alleged infringement.
28. In her original deposition, Ms. Granado admitted that she listened to many of the songs identified in Plaintiffs’ complaint using the KaZaA program but also stated that she had observed Mr. and Mrs. Nelson listening to some of those songs using the same KaZaA program.
29. Based solely on the deposition testimony of Ms. Granado, Plaintiffs filed a motion for leave to amend their complaint to include Mrs. Nelson as a named Defendant and to include an additional cause of action for “secondary theories” of copyright infringement. (Exhibit 5, Plaintiffs’ Motion for Leave to File an Amended Complaint, p. 3)
30. On June 30, 2005, Plaintiffs deposed several additional witnesses who either lived with the Nelsons or had access to their computer. All of the witnesses confirmed that the Nelsons never participated in any infringing activity nor did they know about the use of the KaZaA program on their computer until receiving a notification letter from their internet provider.
31. On that same day, Ms. Granado was present and wanted to clarify several inaccuracies in her earlier deposition. Although Mr. Granado had arrived with Mr. Nelson she indicated that she had consulted with her mother and was given permission to speak with the attorneys involved. (Exhibit 6, Affidavit of John Hermann; Exhibit 7, Affidavit of Natalie Pruett; Exhibit 8, Affidavit of James Nelson; Exhibit 9 Deposition Transcript of Eammtia Granado Dated December 16, 2005, pp. 75-78, 83-86)
32. Prior to discussing the facts of case, counsel for Mr. and Mrs. Nelson inquired as to whether Ms. Granado had been threatened in any way or promised anything in exchange for her appearance. In each instance, Ms. Granado stated that she was doing this on her own in order to “set things right.” (Exhibit 6, 7, 8, and 9)
33. At all relevant times Mr. Nelson and his counsel cautioned Ms. Granado that they did not want her to do anything that she didn’t want to do and insisted that they only wanted her to tell the truth with regard to what occurred. (Exhibit 6, 7, 8, and 9)
34. Upon obtaining her consent to discuss the facts of the case, Ms. Granado offered a second version of her involvement in which she claimed that Nelsons did not use the KaZaA program or listen to music on the computer.
35. Over the next several months Plaintiffs counsel represented to this court that Mr. Nelson and his attorney used coercive measures to obtain Ms. Granado’s June 30th statement and/or testimony.
36. In Plaintiffs’ motion to strike the ex parte deposition of Ms. Granado, counsel attached an unsigned affidavit (attached hereto as exhibit 10) which he alleged was an accurate rendition of the facts according to Ms. Granado and her mother.
Plaintiffs’ counsel called Miss Granado’s parents to find out what was going on. After an initial discussion, Plaintiff’s counsel prepared an affidavit to be signed by Ms. Granado and her parents.
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Miss Granado’s mother agreed that the draft affidavit was accurate. Exhibit 11, Plaintiffs’ Motion to Strike, p. 8)
37. In addition, Plaintiffs counsel represented that according to her parents, Ms. Granado’s original deposition testimony was also accurate. (Exhibit 11, p. 8)
38. In subsequent correspondence, Plaintiffs national counsel stated that they have spoken with Ms. Granado who confirmed that her first deposition was, in fact, largely, accurate and suggested that both Mr. Nelson and his attorney had improperly tampered with a witness and induced Ms. Granado to commit perjury.
As you are aware, we have had conversations with Ms. Granado since your unnoticed and ex parte deposition of her on June 30, 2005. Those conversations, as further related in Plaintiffs’ Motion to Strike Ex Parte Deposition, to Re-Open Deposition, and to Extend Deadlines, have confirmed her testimony at her first deposition was, in fact largely, accurate…Second, if you or your clients encouraged Ms. Granado to alter her prior testimony in an effort to protect the Nelsons, this certainly raises the specter of witness tampering, and you and/or you clients may well have induced her to commit perjury… Should her testimony confirm her conversations with Matthew Krichbaum regarding the above statements that you or your clients made to her, we will take action accordingly. (Exhibit 12; Letter from Matthew Miller)
39. Upon order of the court, the parties conducted another deposition of Ms. Granado on December 16, 2005, inquiring into the facts and circumstances surrounding the conflict in her previous statements and/or testimony.
40. When asked why at her original deposition she stated that she and the Nelson’s had used KaZaA program to listen to music, Ms. Granado testified that Plaintiffs’ counsel was “placing words in her mouth” and trying to get her to say things that weren’t true. (Exhibit 9, pp. 52)
41. Ms. Granado went on to testify Plaintiffs local counsel Matthew Krichbaum had urged her to provide false and inaccurate testimony with regard to the entire portion of her original testimony implicating the Nelsons. (Exhibit 9, pp. 49-65)
42. Even before giving her original deposition testimony, Ms. Granado was contacted by Mr. Krichbaum and told to stick to her story implicating the Nelsons even though it wasn’t true. (Exhibit 9, pp. 68-69)
43. Ms. Granado went on to testify that after making her second statement in which she corrected certain inaccuracies in her original deposition testimony she was repeatedly contacted by Mr. Krichbaum and told that she needed to go back to original story regardless of the truth otherwise he would lose his case. (Exhibit 9, pp. 69-71)
44. After urging Ms. Granado to change her story to comport with her original false testimony, Mr. Krichbaum mailed her an affidavit (Exhibit 10) which he attached he later attached in support of his Motion to Strike. (Exhibit 9, pp. 71-73)
45. In addition to supplying Ms. Granado with a false affidavit, Plaintiffs’ counsel also provided her with portions of depositions transcripts so that she could make her statements consistent with other witnesses. (Exhibit 9, pp. 79-82)
46. Despite efforts to try and downplay Mr. Krichbaum’s coaching of the witness by Plaintiffs’ national counsel, Ms. Granado continued to assert that the statements Mr. Krichbaum was trying to get her to make were false and that he knew that they were false. (Exhibit 9, pp. 90-91)
47. In contrast to Mr. Krichbaum’s efforts to obtain false sworn testimony, Ms. Granado repeatedly testified that neither Mr. Nelson nor his counsel asked her to do anything but tell the truth. (Exhibit 9, pp. 83-86)
48. Throughout the course of Ms. Granado’s deposition, her mother who was present via telephone conference neither objected nor disputed the accuracy of her daughter’s statements.
49. Upon conclusion of the deposition, Plaintiffs’ national counsel Matthew Miller conferred with Defendants’ counsel about his ethical obligations as a practitioner regarding the use of Ms. Granado’s original statements and the impact of those statements on the case. At that time, Mr. Miller insisted that he was ethically obligated to withdraw the complaint against Mr. and Mrs. Nelson and would do so promptly.
50. On December 20, 2005, Mr. Miller informed Defendants’ counsel despite his ethical obligations as a practitioner his clients had instructed him to continue to pursue their claims against Mr. and Mrs. Nelson notwithstanding Ms. Granado’s recent deposition testimony.
51. From the commencement of this action Plaintiffs have relied almost exclusively on the statements and/or testimony of a fifteen year old witness to support their claims that Mr. and Mrs. Nelson were somehow engaged in distribution of copyrighted sound recordings.
52. After reviewing Ms. Granado’s most recent statements, it is apparent that even before her first deposition Plaintiffs’ counsel went beyond the realm of acceptable conduct in order to coach, coerce, manipulate the witness’s testimony in order to “fabricate” a case against Mr. and Mrs. Nelson.
53. After being confronted with the falsity of Ms. Granado’s statements, Plaintiffs’ counsel refused to accept the truth and instead launched a counterattack accusing both Mr. Nelson and/or his attorney of a criminal conspiracy. (Exhibit 10, 11, 12, 13)
54. In their efforts to cover up their own wrongdoing, Plaintiffs’ counsel (1) harassed both the witness and her parents, (2) encouraged them to sign false declarations under oath, (3) threatened Defendants and their counsel to refrain from contacting Ms. Granado (4) participated in numerous meetings with the witness to re-establish her original testimony despite their knowledge and awareness that the testimony was false. (Exhibit 9, pp. 68-71, 79-82, 90-91; Exhibit 13)
55. As a result of said actions, Defendants have spent over fourteen months defending this action based on evidence that Plaintiffs and their counsel knew was either unreliable and/or improperly obtained.
56. 28 U.S.C. § 1927 provides a similar statutory structure to Rule 11 and provides in pertinent part:
“Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”
57. A court may impose sanctions pursuant to 28 U.S.C. § 1927 personally upon any attorney who “multiplies the proceedings in any case unreasonably and vexatiously” where the attorneys conduct amounts to a serious and studied disregard for the orderly process of justice.” Barney v. Holzer Clinic, Ltd., 110 F. 3d 1207, 1212 (6th Cir. 1997)
58. Moreover, sanctions under 28 U.S.C. § 1927, are “warranted when an attorney has engaged in some sort of conduct that, far from an objective standpoint, “falls short of the obligations owed by a member of the bar to the court and which as a result, causes additional expenses to the opposing party.” Ruben v. Warren City Shc., 825 F.2d 977, 984 (6thCir. 1987)
In his brief Mr. Hermann further argued as follows:
28 U.S.C. § 1927 provides a similar statutory structure to Rule 11 and provides in pertinent part:
“Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”
A court may impose sanctions pursuant to 28 U.S.C. § 1927 personally upon any attorney who “multiplies the proceedings in any case unreasonably and vexatiously” where the attorneys conduct amounts to a serious and studied disregard for the orderly process of justice.” Barney v. Holzer Clinic, Ltd., 110 F. 3d 1207, 1212 (6th Cir. 1997) Moreover, sanctions under 28 U.S.C. § 1927, are “warranted when an attorney has engaged in some sort of conduct that, far from an objective standpoint, “falls short of the obligations owed by a member of the bar to the court and which as a result, causes additional expenses to the opposing party.” Ruben v. Warren City Shc., 825 F.2d 977, 984 (6thCir. 1987)
Throughout the course of this proceeding, Defendants have adamantly denied utilizing an on-line media distribution program to download and/or exchange protected sound recordings as alleged in Plaintiffs’ complaint. On April 7, 2005, Mr. and Mrs. Nelson testified that they (1) have never utilized a peer-to-peer file sharing program, (2) have never used the username or address of alex7@KaZaA, (3) and have never downloaded or shared any music recordings, (4) nor were they aware of anyone else engaged in the downloading or exchange of copyright material on the computer. On the same day, Emma Granado, the fifteen year old employee previously identified by Ms. Nelson who offered the first of several contradictory statements with regard to her involvement in the alleged infringement.
In her original deposition, Ms. Granado admitted that she listened to many of the songs identified in Plaintiffs’ complaint using the KaZaA program but also stated that she had observed Mr. and Mrs. Nelson listening to some of those songs using the same KaZaA program. Based solely on the deposition testimony of Ms. Granado, Plaintiffs filed a motion for leave to amend their complaint to include Mrs. Nelson as a named Defendant and to include an additional cause of action for “secondary theories” of copyright infringement.
On April 7, 2005, both the Nelsons and their former employee Granado were deposed. During those Depositions Granado identified both the Nelsons as having listened to music on KaZaA. (Ex. 2 p. 31, 32, 56, 61) In addition, Granado testified that there were distinct, saved playlists from KaZaA for James Nelson and Angela Nelson (Ex. 2 pp. 34-35, 44-45, 67-68) While James Nelson and Angela Nelson denied using (sic) KaZaZ, they had no explanation as to how over 538 mp3 files were on their computer (Ex. 3 53-55, 66) Both the Nelsons denied ever using KaZaA, creating a very dramatic factual dispute in this case. Granado also admitted that, while working as an employee of the Nelsons, she herself “saved” songs to the Nelson’s computer. (Ex. 2 pp. 34-35, 44-45, 67-68) The Nelsons are thus also (sic) liability under secondary theories of copyright infringement. (Exhibit 5, Plaintiffs’ Motion for Leave to File an Amended Complaint, p. 3)
On June 30, 2005, Plaintiffs deposed several additional witnesses who either lived with the Nelsons or had access to their computer. All of the witnesses confirmed that the Nelsons never participated in any infringing activity nor did they know about the use of the KaZaA program on their computer until receiving a notification letter from their internet provider. On that same day, Ms. Granado was present and wanted to clarify several inaccuracies in her earlier deposition. Although Mr. Granado had arrived with Mr. Nelson she indicated that she had consulted with her mother and was given permission to speak with the attorneys involved. (Exhibit 6, Affidavit of John Hermann; Exhibit 7, Affidavit of Natalie Pruett; Exhibit 8, Affidavit of James Nelson; Exhibit 9 Deposition Transcript of Eammtia Granado Dated December 16, 2005, pp. 75-78, 83-86)
Over the next several months Plaintiffs’ counsel represented to this court that Mr. Nelson and his attorney used coercive measures to obtain Ms. Granado’s June 30th statement and/or testimony. In Plaintiffs’ Motion to Strike the Ex Parte Deposition of Ms. Granado, counsel attached an unsigned affidavit (attached hereto as exhibit 10) which he alleged was an accurate rendition of the facts according to Ms. Granado and her mother. In addition, Plaintiffs’ counsel represented that according to her parents, Ms. Granado’s original deposition testimony was accurate. (Exhibit 11, p. 8)
Plaintiffs’ counsel called Miss Granado’s parents to find out what was going on. After an initial discussion, Plaintiffs’ counsel prepared an affidavit to be signed by Ms. Granado and her parents.
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Miss Granado’s mother agreed that the draft affidavit was accurate. Exhibit 11, Plaintiffs’ Motion to Strike, p. 8)
In subsequent correspondence, Plaintiffs’ national counsel again stated that they have spoken with Ms. Granado who confirmed that her first deposition was, in fact, largely, accurate and suggested that both Mr. Nelson and his attorney had improperly tampered with a witness and induced Ms. Granado to commit perjury.
As you are aware, we have had conversations with Ms. Granado since your unnoticed and ex parte deposition of her on June 30, 2005. Those conversations, as further related in Plaintiffs’ Motion to Strike Ex Parte Deposition, to Re-Open Deposition, and to Extend Deadlines, have confirmed her testimony at her first deposition was, in fact largely, accurate…Second, if you or your clients encouraged Ms. Granado to alter her prior testimony in an effort to protect the Nelsons, this certainly raises the specter of witness tampering, and you and/or you clients may well have induced her to commit perjury… Should her testimony confirm her conversations with Matthew Krichbaum regarding the above statements that you or your clients made to her, we will take action accordingly. (Exhibit 12; Letter from Matthew Miller)
Upon order of the court, the parties conducted another deposition of Ms. Granado on December 16, 2005, inquiring into the facts and circumstances surrounding the conflict in her previous statements and/or testimony. When asked why at her original deposition she stated that she and the Nelson’s had used KaZaA program to listen to music, Ms. Granado testified that Plaintiffs’ counsel was “placing words in her mouth” and trying to get her to say things that weren’t true.
Q. What other areas do you feel that Mr. Krichbaum put words in your mouth?
A. I don't remember any specifically. Just trying to get me to say that Angie and Jim or I had ripped the music off.
Q. So you felt Mr. Krichbaum was trying to get you to say that Angie –
A. Yes.
Q. -- Jim and yourself had ripped the music off?
A. Yes.
Q. And that wasn't true, was it?
A. Correct.
Q. Correct that it wasn't true?
A. It wasn't true, yes.
Q. It wasn't true. And you felt that Mr. Krichbaum was trying to get you to say something that wasn't true?
A. Yes.
Q. And did he get you to say something that wasn't true?
A. From the statement I read, yes. (Exhibit 9, pp. 52)
Ms. Granado went on to testify that Mr. Krichbaum had urged her to provide false and inaccurate testimony with regard to the entire portion of her original testimony implicating the Nelsons.
Q. Okay. My question was today you testified that you've never seen Ms. Nelson listening to music on the computer and you answered, yes, that you'd never seen Angie listen to music on the computer. What I'm wondering is why you would have stated that she did listen to music back in April of last year?
A. I'm not sure.
Q. Okay. Would that statement in April of 2005 to Mr. Krichbaum, would that be an inaccurate statement?
A. Yes.
Q. And that statement was made under oath?
A. Yes.
Q. Okay. And that statement wasn't true?
A. Correct. It wasn't.
Q. And that was a statement that wasn't true that you felt Mr. Krichbaum was putting words in your mouth?
A. Yes.
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Q. And on page eighteen you indicated that Jim Nelson knew about KaZaA and Mr. Krichbaum asked you Jim knew about it before you did. And you answered yeah. Was that statement that you gave to Mr. Krichbaum about Mr. Nelson knowing about the KaZaA program, was that accurate?
A. No.
Q. That was a false statement?
A. Yes.
Q. And that was a false statement that was given upon the urging of Mr. Krichbaum?
A. Yes.
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Q. And on page nineteen of your deposition transcript of April 2005, you testified that Jim and Angie had already, gone onto KaZaA on their computer before you did. And the question that Mr. Krichbaum asked you was, okay, do you know if they were -- they had -- either Jim or Angela had already gone onto KaZaA before you did on the computer? And your answer was Jim. And then Mr. Nelson -- or excuse me, Mr. Krichbaum asked you Jim had and you said yes. Was that statement back in April of 2005, was that a false statement?
A. Yes.
Q. And that was a false statement that was given upon the urging of Mr. Krichbaum?
A. Yes.
Q. Earlier today that you said, you testified that you'd never seen Mr. Nelson listening to music on the computer?
A. Yes. That's correct.
Q. That's correct, you never have?
A. Yes. Yes. I've never seen him.
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Q. On page twenty of your deposition transcript in April of 2005, Mr. Krichbaum asked you has, has, have you ever seen Jim listening to music on the computer and you answered yes. Was that a false statement that was given in April of 2005?
A. Yes.
MR. MILLER: I want to object because you haven't shown her her testimony.
MR. HERMANN: I will show it to her.
MR. MILLER: To confirm it with her.
MR. HERMANN: And that's on page twenty.
MR. MILLER: Was that a yes?
THE WITNESS: Yes.
BY MR. HERMANN:
Q. And that was another false statement that was given under oath upon the urging of Mr. Krichbaum?
A. Yes.
Q. Earlier today you also testified that you'd never seen Jim or Angie playing any music on the computer?
A. Correct.
Q. And again, correct in the sense that you haven't seen them playing any music on the computer?
A. Yes.
Q. Okay. And I'm going to point you to page twenty-one of your deposition that was taken on April 7, 2005, in which Mr. Krichbaum asks you about whether Jim and Angie had played CDs on your computer. And Mr. Krichbaum asked did either Jim or Angela make CDs that way, and by that way, there's an earlier question about blank CDs and mixing them. And your answer was yeah, of their own. And Mr. Krichbaum asked you right. And you, responded yeah. And I will hand you that page on twenty-one. And that statement in April of 2005 in which you stated that Mr. and Mrs. Nelson made CDs on their computer, that was a false and inaccurate statement?
A. Correct.
Q. And that was another false and inaccurate statement that was made under oath upon the urging of Mr. Krichbaum?
A. Yes.
Q. And again, I'm going to refer you to a page, on page twenty-four of your deposition transcript that was taken on April 7th, 2005 in which Mr. Krichbaum asked you about whether or not the Nelsons had used KaZaA on their computer. And Mr. Krichbaum asked you, okay, but in terms of when you first learned about KaZaA and you mentioned it to the Nelsons, right? And you answered yes. And Mr. Krichbaum then asked you and at the time you learned that Jim Nelson knew about KaZaA and you answered yes. And I'm going to hand the deposition transcript to you and that's on page twenty-four. And that statement on page twenty-four about you and Mr. Nelson knowing about the KaZaA on their computer, was that a false and inaccurate statement?
A. Yes.
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Q. And in your deposition taken on April 7, 2005, on page twenty-five Mr. Krichbaum asked you whether or not the Nelsons allowed you to go onto the KaZaA site to listen to music. And he asked you did they say it was okay or not to go on KaZaA. And you answered they said it was okay. And I'll hand you the deposition transcript and that's on page twenty-five. Was that another false and inaccurate statement made under oath?
A. Yes.
Q. And was that another false and inaccurate statement made under oath upon the urging of questions by Mr. Krichbaum?
A. Yes.
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Q. And later on on both page thirty-one and page thirty-two you testified that there were times where Nicky would also listen to songs using KaZaA on the Nelsons computer. Specifically Mr. Krichbaum asked you on the bottom of page thirty-one, sure, let me do it this way. There were times when Nicky would be over to the house and she would be on the KaZaA website listening to music? And you answered yes. And then his next question was and you seen her doing that? And you answered yes. And you -- Mr. Krichbaum then asked you and there were times when Angie was on KaZaA website and you seen her doing that? And you answered yes. And I'll draw your attention to again the bottom of page thirty-one and page thirty-two. And that statement that Nicky and Angie had used KaZaA on the Nelsons computer, that was a false and inaccurate statement under oath?
A. Yes.
Q. And that was a false and inaccurate statement under oath upon the urging of a question by Mr. Krichbaum?
A. Yes.
***
Q. Now, in your deposition taken in April of 2005, Mr. Krichbaum also asked you about saving songs on play lists using the KaZaA program. And he asked you did anybody ever show you how to save a song onto a playlist on KaZaA? And you answered no. And then he asked you that was something you figured out on your own and you responded yeah. And then he next asked you did you ever see anyone else at the Nelsons home save a song since you were doing it? And you answered yeah, but they were already doing it, so I didn't save it. And I'm going to hand you the deposition transcript and that portion is at the bottom of page forty-four and top of page forty-five. And was that statement that you made to Mr. Krichbaum under oath at your deposition, was that a false and inaccurate statement about your familiarity with how to use KaZaA to save songs on a play list?
A. Yes.
Q. And that was another false and inaccurate statement made under oath at the urging of questions asked by Mr. Krichbaum?
A. Yes. (Exhibit 9, pp. 49-65)
Even before giving her original deposition testimony, Ms. Granado was contacted by Mr. Krichbaum and told to stick to the story implicating the Nelsons even though it wasn’t true.
Q. Okay. What did Mr. Krichbaum do to make you say that you used the KaZaA program back in April of 2005?
A. He had talked to me about it and said that since I made a statement that I used it, that I should just stick with what I had already said.
Q. Even though it wasn't true?
A. Yes.
Q. And he told you since you made that statement, you should just stick with it even though it wasn't true?
A. Yes.
Q. And when did he tell you that?
A. Before I made my first statement.
Q. And this is before your first statement?
A. Yes. Before we started it.
Q. And this is months before we ever get to the statement where Mr. Nelson brought you here along with myself for your second statement?
A. Yes.
Q. So months before the second statement, Mr. Krichbaum was urging you to stick with a version of the facts that was false and inaccurate?
A. Yes.
Q. And he was urging you to stick with a version of the facts that was false and inaccurate and to give sworn testimony under oath to do that?
A. Yes. (Exhibit 9, pp. 68-69)
Ms. Granado went on to testify that after making her second statement in which she corrected certain inaccuracies in her previous deposition testimony she was repeatedly contacted by Mr. Krichbaum and told that she needed to go back to original story regardless of the truth otherwise he would lose his case.
Q. Now, after you gave your second statement, did Mr. Krichbaum ever try and contact you to talk about your various statements in connection with the case?
A. Yes.
Q. How many times did Mr. Krichbaum contact you?
A. A lot.
Q. How much is a lot?
A. More than five.
Q. Did he telephone you?
A. Yes.
Q. And what did he tell you when he telephoned you?
A. That I, I needed to stay with my statement that I had made.
Q. So he told you that you needed to stick with that original story that you gave in April that was false and inaccurate?
A. Yes.
Q. And even though you told him that you had given another statement, he told you that you needed to go back to your original false statement?
A. Yes.
Q. Did he tell you why you needed to testify falsely?
MR. MILLER: Objection. Misstates her testimony.
MR. HERMANN: Fair enough.
Q. Did he tell you why he needed you to stick with your original false story?
A. Because he said he didn't have a case unless I did.
Q. So, he told you that he didn't have a case unless you stuck with the original false story?
A. Yes. (Exhibit 9, pp. 69-71)
After urging Ms. Granado to change her story to comport with her original false testimony, Mr. Krichbaum mailed her an affidavit (Exhibit 10) which he attached he later attached in support of his Motion to Strike.
Q. Did he ever say or send you any paperwork that he tried to get you to sign?
A. Yes.
Q. And do you know if that statement or paperwork was something called an affidavit?
A. Yes.
MR. MILLER: Yes, you know; or yes, it was?
THE WITNESS: Yes, it was.
BY MR. HERMANN:
Q. And what did he try to get you to say in that affidavit?
A. Everything that I had already said in the statement and he wanted me to sign it and my mom to sign it too.
***
Q. In that statement that he gave you and your mom to sign, was that a statement in which he wanted you to say the same things that you said at your original statement that were false and inaccurate?
A. Yes.
MR. HERMANN: Where are we up to?
MR. MILLER: G I think it would be. (Exhibits G and H are marked.)
BY MR. HERMANN:
Q. Ms. Granado, I'm going to hand you a Deposition Exhibit that I've pre-marked as Exhibit G and ask you to take a couple minutes to look at that. Was this the statement that Mr. Krichbaum gave for you to sign and have your mom sign that contained the false statements that he wanted you to sign?
A. Yes.
Q. And in particular in that statement, can you tell me what was false?
A. We didn't know anything about this paper. He just sent it. My mom had like no idea about it. And A through D are all false statements on number seven.
Q. And were these the statements that he said that without those statements he didn't have a case?
A. Yes.
Q. And when he sent you this statement, did he tell you or did you tell him that you couldn't sign this?
A. Yes.
Q. And why did you tell him that you couldn't sign it?
A. Because I told him it wasn't true and that I wasn't going to sign something that I knew wasn't true.
Q. Okay. And he sent you this after your second statement?
A. Yes.
Q. And at any time did you sign this statement?
A. No.
Q. And at any time did you ever tell Mr. Krichbaum that the allegations in this statement were true?
A. No.
Q. So, if Mr. Krichbaum were to make representations to the court that you had affirmed all of the allegations in this statement as being true, that would be an inaccurate statement?
A. Yes. (Exhibit 9, pp. 71-73)
In addition to supplying Ms. Granado with a false affidavit, Plaintiffs’ counsel also provided her with portions of depositions transcripts so that she could make her statements consistent with other witnesses.
Q. In addition to the statement that Mr. Krichbaum mailed to you in which he wanted you to sign otherwise without those statements he would have no case, did they send you or your mother any other paperwork?
A. No.
Q. Did they send you anyone else's deposition transcripts or –
A. Yes.
Q. They did?
A. Yes.
Q. Okay. Do you know who sent you those deposition transcripts?
A. I'm not sure. I think it was Mr. Krichbaum.
Q. Okay. How many deposition transcripts did he send you?
A. It was one that had mine on there and then bits and pieces of Angie and Jim's statement.
Q. Okay. Just bits and pieces of Angie and Jim's statement?
A. Yeah. Not the whole thing.
Q. Not the whole thing?
A. Uh-uh.
Q. And did he draw your attention to bits and pieces of their statements?
A. Yes.
Q. Highlight them or draw or point reference to those?
A. Yes.
Q. Okay. And he didn't give you the entire transcript?
A. No.
Q. Okay. And this is something that came in the mail?
A. Yes.
Q. Was it a rather thick package?
A. Yes.
Q. Did you read all of it?
A. No.
Q. Was it a lot of material?
A. Yes.
Q. Did your mom read all of it?
A. I think she did, yes.
Q. She did. And after you received those deposition -- oh, let me clarify just, and I'll strike that question. When you got those deposition transcripts, was that after your second statement?
A. Yes.
Q. And this was after Mr. Krichbaum indicated to you that unless you went with your original story, he didn't have a case?
A. Yes.
Q. Do you think that's why he was sending you those transcripts?
MR. MILLER: Objection. Calls for speculation.
MR. HERMANN: Fair enough. I will withdraw the question.
BY MR. HERMANN:
Q. Did he tell you why he was sending you the transcripts?
A. He only said that I needed to stick with my first statement and that I should see what everybody was saying about what happened.
Q. So, he wanted you to get your story consistent with everyone else?
A. Yes.
Q. Okay. Did he tell you that he wanted you to get your story consistent with everyone else?
A. Not in those exact words but yeah.
Q. But when you got those transcripts, that's what you thought he was doing?
A. Yes.
Q. And you needed to know or you thought that he needed you to know what everyone else was saying so that all your stories were on the same page?
A. Yes.
Q. And without those transcripts, if you made another false statement, it may be inconsistent with what someone else was saying?
A. Yes.
Q. And that might look funny?
A. Yes.
Q. And that might be bad for Mr. Krichbaum's case?
A. Yes. (Exhibit 9, pp. 79-82)
On re-examination by Plaintiff’s counsel, Ms. Granado again re-iterated that the statements Mr. Krichbaum was trying to get her to make were false and that he knew that they were false.
RE-EXAMINATION BY MR. MILLER
Q. When he called you after your second statement, he asked you why you had given a second statement, right?
A. Yes.
Q. What did you tell him?
A. Because I needed to give another one because my first one was incorrect.
Q. Okay. Did you tell him that someone had, had told you to go ahead and admit to having done it because you were a minor and wouldn't get in trouble?
A. No.
Q. Did he tell you he wanted you to lie?
A. He told me he wanted me to stick to my first statement.
Q. Do you believe that he thought that was the correct set of facts?
A. I believe that is the same that he thought that he would win the case with, so he wanted me to stay with it.
Q. Okay. That's not quite an answer to my question, so I'll ask it in a little bit different way, I think. Do you think he knew that the first statement was false? That's terrible too. Let me try again.
Do you think Matthew Krichbaum knew when he talked to you by telephone after your second deposition that the statements you had made in your first deposition were incorrect?
A. Yes.
Q. Why?
A. Because I told him they were.
***
Q. When Matthew Krichbaum spoke to you and asked you to stick with your original statement, did he tell you that he wanted to hear the truth?
A. No.
Q. Do you remember?
A. He just wanted me to stick with my first statement. He didn't ask if it was true or if it wasn't. (Exhibit 9, pp. 90-91)
In contrast to Mr. Krichbaum’s efforts to obtain false sworn testimony, Ms. Granado repeatedly testified that neither Mr. Nelson nor his counsel asked her to do anything but tell the truth.
Q. Now, I'd like to talk a little bit about the circumstances that took place at your second statement. And if you recall that statement took place in this very room, correct?
A. Yes.
Q. And that was in June of this year?
A. Yes.
***
Q. I'd like to hand you an affidavit and I'll represent that that woman that was there when we had talked about the case, her name is Natalie Pruett. She's a student at Michigan State University. And I'd like to ask you about the truthfulness of some of the things that she has stated in connection with this case.
MR. MILLER: Give me one more second here. Here's Exhibit H.
BY MR. HERMANN:
***
Q. Okay. I'd like to bring your attention to item number three which says prior to the depositions, and this being the depositions of Mr. Nelson's friends and family, Emma Granado appeared along with James Nelson. Would you agree that that is an accurate statement?
A. Yes.
Q. And later on in paragraph three of Ms. Pruett's affidavit she said at that time Ms. Granado indicated that she wanted to, quotation, set things right, end quotation, in order to clarify certain inaccuracies in her previous deposition testimony. Would you agree with that statement?
A. Yes.
Q. And in paragraph four, Ms. Pruett alleged and states under oath that although Ms. Granado had arrived with Mr. Nelson, both she and Mr. Nelson indicated that she had consulted with her mother and was given permission to speak with the attorneys involved?
A. Yes.
Q. That's a fair and accurate statement?
A. Yes, it is.
Q. Okay. And in paragraph five, Ms. Pruett alleges that before Mr. Hermann spoke, and that's me, spoke with Ms. Granado, he inquired as to whether she had been threatened in any way or promised anything in exchange for her appearance. Do you recall that?
A. Yes.
Q. And would that be a fair and accurate statement?
A. Yes.
Q. Okay. And later on in paragraph five, Ms. Pruett alleges and states under oath that in each instance Ms. Granado, and that's you, stated that she was doing this on her own in order to set things right?
A. Yes.
Q. And that's a fair and accurate statement?
A. Yes.
Q. And later on in paragraph six, Ms. Pruett alleges that at all relevant times Mr. Hermann cautioned Ms. Granado that he did not want her to do anything that she didn't want to do and insisted that he only wanted her to tell the truth with regard to what occurred. Do you think that's a fair and accurate statement?
A. Yes.
Q. Okay. And later on Ms. Pruett alleges and states under oath that at no time did Mr. Hermann inform Ms. Granado, which is you, that nothing could be done or happen to her if she admitted to using the KaZaA program on the Nelsons computer. And is that a fair and accurate statement?
A. Yes.
***
Q. Ms. Granado, I'm just going to ask you a couple more questions about the circumstances surrounding that second statement that was taken. And earlier today we had talked about how Mr. Nelson picked you up at your house with your mom present?
A. Yes.
Q. And he drove to your house and picked you up?
A. Yes.
Q. Did he call beforehand and say what he wanted you to do or that there were attorneys involved or what did he tell you?
A. He said that he wanted to talk to my mom to make sure it was okay for me to make another statement.
Q. Okay. And did your mom say that it was okay?
A. Yes.
Q. Okay. So she knew you were going to give that second statement?
A. Yes.
***
Q. Okay. And what types of things did he [Mr. Nelson] tell you during both the meeting and the car drive?
A. Just to tell the truth.
Q. Okay. Nothing else?
A. Just to tell the truth.
Q. And he didn't threaten you or coerce you or do anything
to make you say anything, did he?
A. No.
Q. He didn't promise you anything?
A. No.
Q. He didn't say anything about, well, we'll get you back at the daycare center and get a good job for you if you say these things?
A. No.
Q. He just wanted you to tell the truth?
A. Yes. (Exhibit 9, pp. 83-86)
After Ms. Granado’s latest deposition, Plaintiffs’ counsel Matthew Miller conferred with Defendants’ counsel about his ethical obligations as a practitioner regarding the use of Ms. Granado’s original statements and the impact of those statements on the case. At that time, Mr. Miller insisted that he was ethically obligated to immediately withdraw the complaint against Mr. and Mrs. Nelson. On December 20, 2005, Mr. Miller informed Defendants’ counsel that his clients had instructed him to continue to pursue their claims against Mr. and Mrs. Nelson notwithstanding Ms. Granado’s recent deposition testimony.
From the commencement of this action Plaintiffs have relied almost exclusively on the statements and/or testimony of a fifteen year old witness to support their claims that Mr. and Mrs. Nelson were somehow engaged in the distribution of copyrighted sound recordings. After reviewing Ms. Granado’s most recent statements, it is apparent that even before Ms. Granado’s first deposition Plaintiffs counsel went beyond the realm of acceptable conduct in order to coach, coerce, manipulate the witness’s testimony in order to “fabricate” a case against Mr. and Mrs. Nelson.
After being confronted with the falsity of Ms. Granado’s statements, Plaintiffs’ counsel refused to accept the truth and instead launched a counterattack accusing both Mr. Nelson and/or his attorney of a criminal conspiracy. (Exhibit 10, 11, 12, 13) In their efforts to cover up their own wrongdoing, Plaintiffs’ counsel (1) harassed both the witness and her parents, (2) encouraged them to sign false declarations under oath, (3) threatened Defendants and their counsel to refrain from contacting Ms. Granado (4) participated in numerous meetings with the witness to re-establish her original testimony despite their knowledge and awareness that the testimony was false. (Exhibit 9, pp. 68-71, 79-82, 90-91; Exhibit 14) As a result of said actions, Defendants have spent over fourteen months defending this action based on evidence that Plaintiffs and their counsel knew was either unreliable and/or improperly obtained.
See Granado Deposition Transcript Excerpts (Published at Internet Law & Regulation)
Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3
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