The RIAA's ex parte motion to compel the University of New Mexico to disclose the identities of its students has been denied, in the District Court of New Mexico, by Magistrate Judge Lorenzo F. Garcia, in Capitol v. Does 1-16.
The Judge ruled that there was no reason for the motion to be ex parte, reasoning as follows:
Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian “suspension of disbelief” to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member’s Internet files can be equally harmful.
As the Plaintiffs do not presently know the identity of the Defendants, there is no reasonable way to ensure that those prospective Defendants are given notice or even an opportunity to respond in opposition to the request for disclosure. Rather, Plaintiffs seek to obtain information directly from the University of New Mexico. Plaintiffs propose that the University will be able to notify subscribers that a subpoena was served. However, the Court needs to ensure that subscribers actually receive notification and are given a reasonable opportunity to intervene in order to stop the disclosure of sensitive information.
In any event, the Court[...] sees no need to act on an ex parte application. Rather, it would appear appropriate that Plaintiffs and the University of New Mexico confer on an appropriate process to ensure that, if a subpoena is served, the University not turn over information until it has given notice to individual subscribers that a subpoena has been issued and allow those subscribers to intervene in this proceeding to protect disclosure of sensitive information. Moreover, ex parte proceedings should be the exception, not the rule. Accordingly, the Court declines to grant Plaintiffs’ request for ex parte application.
Further, the federal rules prohibit discovery until the parties have met and conferred, formulated an appropriate discovery plan, and made arrangements for disclosure of information. Fed. R. Civ. P. 26. Here, of course, the individual subscribers are unknown, have not been sued and cannot “meet and confer” with Plaintiffs. However, the University of New Mexico, the entity from which discovery is sought, has a right to be heard on this matter.
Accordingly, the Court directs Plaintiffs to contact University counsel, apprise the University that it is seeking discovery from the University, and attempt to agree on a fair and reasonable process that would allow Plaintiffs to identify limited information about the subscribers. If Plaintiffs and the University can agree on a process that includes prior notification to subscribers and a reasonable period of time to intervene or object, a proposed consent order should be submitted. If Plaintiffs and the University cannot agree, the Court will conduct a status conference with Plaintiffs’ counsel and University counsel on the appropriate manner to initiate discovery and provide notice to affected individuals. Once Plaintiffs’ counsel confers with the University of New Mexico legal division, Plaintiffs’ counsel is to notify the Court concerning the status of their agreements, if any.
IT IS THEREFORE ORDERED that Plaintiffs’ Ex Parte Application for Leave to Take Immediate Discovery [Doc. 4] is DENIED.
May 24, 2007, Order, Denying Ex Parte Discovery Motion*
* Document published online at Internet Law & Regulation
Commentary & discussion:
Geek News Central
Heise Online (German)
Chronicle of Higher Education (Wired Campus)
New Mexico Daily Lobo
Punto Informatico (Italian)
Slashdot (Story on multiple cases)
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