The article I wrote for the Judges' Journal was written primarily in March of this year.
In June I submitted a brief epilogue, specifically referring to the magazine's "Equal Access to Justice" theme, and reporting on some late breaking news. The Judges Journal didn't have room to add it in, but here it is:
New “access to justice” issues arise on a daily basis in these cases.Were I writing the epilogue today I would add this sentence to the last paragraph:
E.g., in the Capitol v. Thomas case in the District of Minnesota, which resulted in a $222,000 jury verdict, the defendant being represented by a reluctant attorney whose motion for leave to withdraw had been denied, the Judge has now issued an order to the effect that he believes he may set aside the verdict because he committed a “manifest error of law” by having submitted the case to the jury under an improper theory. He stated that both defendant’s lawyer and plaintiffs’ lawyers had failed to bring to his attention a controlling contrary 8th Circuit case. Needless to say, with the right kind of representation, defendant’s counsel would have mentioned the case, and the plaintiffs’ counsel’s duties as officers of the Court would not have been tested. “Judge in Capitol v. Thomas says "manifest error of law" may have been committed by incorrect "making available" instruction”, Recording Industry vs. The People, May 15, 2008.
In the Atlantic v. Andersen case in the District of Oregon, where the RIAA doggedly pursued an obviously innocent defendant for 3 years, ultimately throwing in the towel and being assessed with attorneys fees, the Magistrate Judge awarded only 2/3 of the lodestar, and declined any multiplier. Defendant explains in detail, in her reply declaration* in support of her attorneys fee motion, the difficulty she had experienced in finding a lawyer – any lawyer – to take her case, and argues, in her objections to the Magistrate Judge’s denial of a multiplier, that a multiplier is necessary to encourage lawyers to take on such “undesirable” representations. See defendant’s objections at pp. 7-8. “Parties file objections to Magistrate Judge's attorneys fee award in Atlantic v. Andersen”, Recording Industry vs. The People, May 30, 2008.
And the RIAA’s indiscriminate use of ex parte applications, and many Courts’ indiscriminate granting of such applications without meaningful inquiry into whether they are properly substantiated, continue. Fortunately, we occasionally learn of a court exercising a little bit more skepticism, as in the case of Magistrate Judge Margaret Kravchuk in the District of Maine in BMG v. Does 1-11, a “John Doe” case targeting University of Maine students. Judge Kravchuk had signed ex parte discovery orders on the first two go-arounds, but, when the third lawsuit was launched, apparently realized her mistake, observing, as she could have observed in the first two cases, and as every judge could just as well have observed in every one of the other cases targeting America’s colleges and universities, that “I see no reason for the court to take immediate action in this case as there is no evidence that records are about to be destroyed.” “RIAA brings third proceeding against University of Maine "John Does"; this time Court does not sign ex parte discovery order”, Recording Industry vs. The People, May 29, 2008.
And in a North Carolina case targeting students at NC State, Magistrate Judge Louise W. Flanagan -- who confessed to having signed the ex parte orders in the past -- indicated she was now going to take a "fresh look", in Elektra v. Doe. "North Carolina court to take a "fresh look" at the NC State "John Doe" cases, issues stay of subpoena to NC State in Elektra v. Doe", Recording Industry vs. The People, July 4, 2008.
* Document published online at Internet Law & Regulation
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