Thursday, March 15, 2007

RIAA Ordered To Turn Over Its Attorneys Billing Records in Capitol v. Foster

The RIAA has been ordered to turn over its attorneys' billing records in Capitol v. Foster by March 26, 2007. The order requires the RIAA to produce the attorneys' time sheets, billing statements, billing records, and costs and expense records. The Court reviewed authorities holding that an opponent's attorneys fees are a relevant factor in determining the reasonableness of attorneys fees, quoting a United States Supreme Court case which held that "a party cannot litigate tenaciously and then be heard to complain about the time necessarily spent by his opponent in response" (footnote 11).

March 15, 2007, Decision and Order Directing Production of RIAA's attorneys' billing records*

* Document published online at Internet Law & Regulation

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Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

46 comments:

AMD FanBoi said...

I trust this is a significant win, and one which will have long term bad repercussions for the plantiffs in other cases.

Scott said...

Sweet! :-)

Scott said...

Will the RIAA's bills be entered into the public record?

Dreddsnik said...

They won't do it, I guarantee it.
Legally ordered or not, they will
stall.

Scott said...

Been reading the interesting discussion on Slashdot. Educated speculation (of Mr. Beckerman's colleague?) is that the RIAA will stipulate that the defendant's attorney fees are reasonable and will pay up, rather than document their own attorney charges for the court.

Of course, the RIAA could continue to be petulant; but I'm betting that this is the end of the road for them in this battle. Wonderful!

Ray Beckerman said...

Yes, I think this is big. And I think that they will stipulate to the reasonbleness of Ms. Foster's attorneys fees, rather than let this go any further. (That is, if they have any brain remnants left.)

tekel said...

Ray Beckerman said... I think that they will stipulate to the reasonbleness of Ms. Foster's attorneys fees, rather than let this go any further.

Therefore applying the restatement doctrine of holes, which is: "When you find yourself in a hole, the first thing to do is stop digging."

Ray Beckerman said...

But then there is the RIAA theory....


When you've dug yourself into a hole, start digging twice as fast.

Anonymous said...

I'm afraid I don't understand the consequences. Why is it such a problem for the RIAA to disclose this information?

Bacon Bits said...

I thought the RIAA's tactic was: When you find yourself in a hole, lobby lawmakers to change the maximum height above sea level for top soil and then sue everyone who doesn't clear the way for you to walk.

Dreddsnik said...

" I'm afraid I don't understand the consequences. Why is it such a problem for the RIAA to disclose this information? "

IANAL,
my guess ....

The RIAA likely shell out an incredible amount of cash to attack these folks.
If, for example ( and example only ) the RIAA pay there lawyers $ 300,000 US they have no cause to call a claim of $ 100,000 US unreasonable.
If the RIAA pays 6 figures for their representation ?? ,,, heh heh. What do you think will happen WHEN they lose future cases and get socked for fees ;)

Ray Beckerman said...

bacon_bits..... you're right... that's they're other theory... they have 2... they do the lobbying while they do the digging...

actually the answer to anonymous is "i guess you'll have to ask the riaa what it is they are trying to hide"... with all due respect to dreddsnik, we don't actually know what they they're trying to hide, or why they're fighting so hard to hide it....

Ray Beckerman said...

maybe they don't want us to see that they hired the most cut rate lawyer in oklahoma city... or maybe they don't want us to see they hired the highest priced guy... maybe they don't want us to see that 90% of the work came from Holme Roberts & Owen rather than the local counsel... i could go on and on guessing...

Mike said...

I think it has to do with the amount of money being extorted from citizens and the cost to obtain that money. $5000 return on a $100,000 investment that you dont get back. I don't have an ivy league degree, but if that were my investment manager, heads would roll...

Bryon said...

I dout very little time is actully spent on each case. The lawyers must have it down to a science by now.

Sanji Himura said...

Then there's that little matter of the reconsideration motion. Let's face it, the RIAA isn't going to do much, let alone cut a check for Ms. Foster's attorney, until that reconsideration motion is decided, however, Judge West has already decided that the motion arguements and the discovery on attorney's fees could go hand in hand.(see Feb. 27 Order Denying Plaintiff's "Clarification" motion)

This is a deliberate stone wall tactic by the RIAA to get the court to play ball by their rules, but this matter is out of their hands to begin with, and they are complaining about the amount of money that they have spent and how none of that should be relevent to this matter, just like the example that the footnote in the Riverside case explained.

assasin said...

"But then there is the RIAA theory -
When you've dug yourself into a hole, start digging twice as fast."

No The RIAA theory is:

When you've dug yourself into a hole, Lobby congress to pass legislation mandating that the public provide ladders to be supplied by RIAA Ladders INC.

Ray Beckerman said...

wrong, bryon, a lot of time was put into this particular case, hounding down this poor woman who never shared a file in her life...... that's hard work, man...

sanji, you've got to be kidding.... the riaa has to turn over the documents by march 26th... if they don't they'll be in even deeper trouble than they are now...

Anonymous said...

Nonono! Yer sposta dig up, stupid!

Anonymous said...

An interesting point in the order arose my suspicion. It seems the RIAA are claiming that since they are litigating in bulk, their total costs are not relevant as to individual plaintiffs. It seems to me, however, that since they are litigating in bulk, every plaintiff has to face the RIAA total legal reserach for all cases, and hence that this is very relevant. It's true that the plaintiff's lawyers are also co-operating (e.g. via this blog) but clearly they can't realize the same cost savings.

Anonymous said...

Screw you RIAA - I hope you and all of your kind die horrible deaths.

Ray Beckerman said...

Comment was deleted for violation of this policy: -no unsupported anti-lawyer or anti-judge insults (if you know of something specific that a lawyer or judge did, with which you disagree, and you want to comment fairly upon it fine, but I don't want people here denigrating the legal profession with undocumented insults; I think that is a tactic used by RIAA trolls and some other big corporations who are trying to discourage ordinary people from talking to lawyers and learning about their legal rights, or from going to court to fight for their rights, thinking the system is stacked against them; lawyers and judges are the cornerstone of the rule of law, which is the cornerstone of our democracy, and they are the closest thing we have to an equalizer in our society)

Anonymous said...

Is there any chance at all that the riaa might be stalling in order to fudge some records? Would they be capable of trying such a tactic? And what might be the consequences of that if found out.

Ray Beckerman said...

no anonymous, i don't think so... the consequences would be prison time, disbarment, etc.

BloggerBob said...

With the wholesale lawsuits that RIAA has mounted for the collected recording industry it almost seems that they could be subject to the RICO standards.

Tim said...

Maybe it's just me, but there seem to be a lot more contested suits going on right now than I remember in recent history. And it also occurs to me that more and more judges seem to be getting tired of the tactics of the RIAA and its legal team.

I think this is a HUGE win for the "everyman." I don't know that there's any legal basis for knowing with the RIAA spent on their lawyers, however the fact that a defendant filed the discovery and the judge accepted the motion speaks volumes as to how these cases are going.

Ray Beckerman said...

Yes there is a legal basis for it. The judge cited just a few of the hundreds of decisions he could have cited, including from the United States Supreme Court.

Yes more people are fighting back and I think the RIAA's litigation machine is crumbling.

Scott said...

"...lawyers and judges are the cornerstone of the rule of law, which is the cornerstone of our democracy, and they are the closest thing we have to an equalizer in our society"

True, Ray, but the Dutch and Canadian courts were able to stop the recording industry's crap a lot sooner. Would anyone say that these countries have unjust or oppressive courts?

In this case (and please correct me if my perception is wrong) we're seeing a judge who is forced to bend over backwards to accommodate a plaintiff whose attorneys are acting in ways that many reasonable people would consider unacceptable; and that one significant effect of such behavior is to run up everybody's costs -- the plaintiff's, the defendant's, and the taxpayers'.

In many other well-governed, free countries with good courts, this case would have ended at least a year ago. Are we better served by justice that is a lot slower and stunningly more expensive?

It seems to me that the RIAA is using this very characteristic of our courts to engage in what a number of defense lawyers have called "akin to extortion." They present kids and working people and retired folks the Hobson's choice of paying the extortion money, or paying a much, much larger amount to take it to courts. With all due respect, Mr. Beckerman, that's not justice.

I sincerely hope that people in your profession are not just throwing up their hands and saying, "Well, that's the way it is, get used to it." There have to be men and women of goodwill who are at least thinking of structural changes to the justice system that would make it harder for plaintiffs like the RIAA to game the courts. And I would love to know who they are, since from this vantage point they are invisible.

Ray Beckerman said...

scott, i'm not going to sit here and defend the american legal system to you.... i never said it's perfect...

but your simplistic pontification doesn't do a thing for me... if you have great ideas on how to make it better, why aren't you doing something about it instead of just ragging on others....

if you want to make it cheaper and faster i can tell you how to do that... get rid of jury trials... they're the costliest drain on our resources...

but if you got rid of jury trials you might as well get rid of america as far as i'm concerned...

the countries you're talking about don't even have jury trials...

Ray Beckerman said...

on this page, which is about capitol v. foster, a case where you have a working class woman with no dough getting far better legal representation than some of the biggest corporations in the world who are arrayed against her, and you see her kicking their teeth in, and you see a great judge handing down rulings of which all americans should be proud... your whining is off topic, in my book....

when you get to a page where a judge does something wrong, or a lawyer plays a cheap trick, and you want to take a shot at it, fine...

but don't start in with the 'ambulance chasing' rhetoric here, there are enough other places on the web for that bull... here you should be thanking marilyn barringer-thomson for her selflessness and courage, judge lee west for his fairness and wisdom, debbie foster for not taking the easy way out, but standing and fighting for a principle, and the aclu, public citizen, eff, aall, and aclu-oklahoma for coming to the aid of an american citizen standing up against a cruel cartel and its gang of attack dogs....

this story is a place to celebrate what's right with our system...

Ray Beckerman said...

as for the judge bending over backwards, that's what a good judge does... it's called a judicial temperament.... that's his way of making sure he's giving every one a fair shake and a level playing field....

obviously he's not happy with the riaa's conduct of this case... but he's keeping an open mind on everything... that's what you would want if you were a litigant....

Scott said...

Did I miss something, Ray? Has this case come to trial? Has any of the RIAA cases ever been heard by a jury?

How about if we keep the jury, and find a way to cut to the chase in the discoveries? Isn't that what's generating almost all of the billable here? In this case, maybe a quarter million dollars of cost will end up being incurred by all parties in this dispute, including the court itself, and it hasn't even come to trial.

But I guess that's all "ambulance chasing rhetoric." My apologies.

Don't confuse simplistic with simple.

Ray Beckerman said...

no there's been no jury trial...

but that's an illustration of the biggest single factor that makes our system "a lot slower and stunningly more expensive".... without jury trials, cases would move faster, there would be much more resources to devote to other things, like judges... the system would be much faster and less expensive....

democracy is inconvenient, man....

get over it....

at least celebrate when you see a victory for the common man... and for democracy....

and save the bitching and moaning for those other instances where the system DOESN'T work....

Ray Beckerman said...

and if you have ideas for how to improve it... go for it...

Dreddsnik said...

" at least celebrate when you see a victory for the common man... and for democracy.... "

I will ...
When that victory is actually acheived.
When they have actually cut a check and PAID ms Foster.
Victory, while it seems close
still isn't here, no singing
fat lady yet.

So far, they are still able to
'game' the system, without fear
of any consequences.

I'll dance when it's over, not before.

Ray Beckerman said...

if that's what you call gaming the system, i'll play poker with you anytime...

i don't know when's the last time i've seen someone screw up as badly as they are screwing up here...

in the end they're going to be paying a check for 100k+ to ms. foster's attorneys, not counting the 200k or 300k they will have dropped on their own attorneys.... only to have created a string of precedents that are going to be biting them in the butt at every turn in every contested case from here on out in the riaa v. consumer wars....

and they still haven't figured it out, and they just keep on making more good decisions for me to cite...

'game on', holme roberts & owen...

Alter_Fritz said...

"and they still haven't figured it out, and they just keep on making more good decisions for me to cite..."

but Ray, Mr. Gabriel objected to this behaviour of yours. ;-)

P.S. in comics, (glowing) lightbulbs are typicly associated with "having an idea". In real life a lightbulb might be associated with the process of seeing, or with eyes.
What have lightbulbs to do with the process of listening (Mr. Gabriel is listening since 1987) or with ears?
Does it mean those responsible in this company have no clue or just a bad taste for sitedesign?

Alter_Fritz said...

LOL
Now I know where HRO's sitedesigner got his idea from:
http://despair.com/cluelessness.html

LOL. What a mean webdesigner that he foooled the HRO guys into using lightbulbs as expression for guys that listen!

Anonymous said...

Canada does have trials by jury, the Ntherlands do not, but sayingthat without jury trials you don't have democracy is just not right. both country's have a democracy that is not bought by the highest bidder.
That'sthe main problem with the RIAA which is supposed to be independent and not working just for the big company's.

Ray Beckerman said...

I think trial by jury is a fundamental right. Sorry to differ with you.

Dreddsnik said...

Yes.
gaming the system.

I don't think they really intended
any of this to come to a real
courtroom.
I suspect they counted on everyone
rolling over on their backs.

But, now that some are fighting ..
the game is using the system to
stretch the opponnets financial
resources to the limit.
ruin them financially, in essence,
punishing them for daring to fight.
Each motion filed, costs the defendant more. The longer the fight
lasts, the closer to bankruptcy
the victim gets, until the have to
quit, simply because they have no
more cash to fight with.

The RIAA can afford to 'play' as
long as no actual binding precedents are set.
The money doesn't matter as much to them, as long as none of these
'trials' actually finish. The RIAA member
labels can easily absorb the expense, the way
Microsoft can afford to sell their
Xbox at a loss.

These 'trials' are the RIAA members 'loss leaders'.

If that isn't a game, i'm not sure
what is.

Ray Beckerman said...

dreddsnik

Yes, but I'm going to ask you in the future to keep your posts on topic to the post. This is a post about the RIAA losing the game. Your general exposition on their overall litigation philosophy isn't on point.

If you want to talk about them gaming the system, do it in a context where they score a point or two, not in a context where they're getting crushed.

I'm familiar with your previous posts, and I know you're highly cynical about the legal system in general. But in those instances when the system does work, you need to recognize it. I don't want you to continue with a one-note diatribe against the legal system. I can read that kind of stuff all over; we don't need it here.

Dreddsnik said...

My apologies if I seem off base.

But for me, I will count it as a win when they actually do what the
judge has ordered them to do.

Ray Beckerman said...

I deleted a comment by a poster who hadn't read any of the earlier posts or litigation documents and was under the impression that this was a plaintiffs' attorneys fee award, rather than an award of attorneys fees for defendant.

Anonymous said...

What if the contracts read like this:

You keep what you win, you pay us if you loose 10x.

I then could see why they like to use these extortion letters.

Alter_Fritz said...

anonymous, it is very likely something like that!

The fact that the Holme Roberts & Owen Lawyers (and NOT(!) the RIAA as the mouthpiece for Sony BMG et al.) are the registrants for the "original" settlement domain name back those days, might be a further indicator that its just a profit orientated extortion sheme by the lawyers!
RICO anyone?!!!