Monday, March 06, 2006

Mystery Deepens: Dismissal as to John Doe #8 Vacated; Case Reinstated; John Doe's Lawyers Not Told Why

The mystery deepens.

We previously reported that the RIAA had discontinued its case against John Doe #8 in Atlantic v. Does 1-25 (The case in Manhattan federal court before Judge Swain, in which defendant John Doe #8 had moved to vacate the court's ex parte discovery order, affidavits of programmer Zi Mei were presented challenging the Jonathan Whitehead declarations, and Mr. Whitehead later corrected an "error" in his submissions).

Notice of Voluntary Dismissal*

We (Mr. Doe's counsel) were never told why this discontinuance had occurred.

We were concerned, because usually the RIAA discontinues only when the name and address information of "John Doe" has been turned over. But for that to have occurred here, it would probably mean that the ISP and the RIAA would have been violating a court-ordered stay.

We made several inquiries to the RIAA's counsel, as to what was going on, but they did not respond.

Today all of a sudden we received, from the Court, a copy of an order indicating that the earlier dismissal has been vacated -- i.e., the case has been reinstated as to John Doe #8. The proposed order, which the Judge signed, appeared to have been drafted by the RIAA's lawyers.

Order Vacating Voluntary Dismissal*

While it is not unusual for a proposed order to be prepared by the attorneys for a party, and submitted to the Court with an application for the Court to sign the proposed order, it is highly unusual for it to be submitted to the Court without notifiying the other side and without sending copies to the other side of the basis for the application.

We will keep you posted if we get any additional information.


* Published online at Internet Law & Regulation by Pike & Fischer.

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