In two new "John Doe" cases in Connecticut, one targeting students at Yale, the other students at the University of Connecticut, District Judge Janet Bond Atherton has granted the RIAA's ex parte motion for discovery of the identities of the students, but sua sponte severed as to all John Does except John Doe #1.
December 9, 2008, decision, granting ex parte discovery motion, and sua sponte severing as to all John Does other than John Doe #1 (Also at : 2008 U.S. Dist. LEXIS 99791)
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Tuesday, December 16, 2008
In new cases targeting Yale and U. Conn. students, Judge Atherton grants discovery but sua sponte severs misjoined John Does
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12 comments:
Certainly this man sees this as a cup half full - rather than the empty ones so often served up to defendants. Maybe there is still time to correct that.
Would have been nice, as in Motown Record Co. v. Doe in Los Angeles, that any identity information provided be restricted to only this case and "proper" purposes. That would have filled the glasses to two-thirds at least.
Now the battle, since no defendant, nor the university itself, was represented in this decision, goes to the illegality of the method of evidence gathering, the lack of any cause of action because actual distribution to any unauthorized party is not demonstrated, and the inability of the Universities involved to accurately identify any single person from the evidence provided, should commence.
This judge has, so far, shown far more care than nearly any other judge at this stage to balance her protection for the rights of all involved here. I can only hope that, once it is properly pointed out to her that there is no actionable case here, or that identification is far less than certain, or that none of this so-called "evidence" was legally gathered, that she will continue forward and shut down these egregious misuses of the law.
And please someone challenge the Lineries declaration since no opposition to it has been presented in these cases yet.
{The Common Man Speaking}
I have to say I like what I see recently specialy from this judge!
She really got it.
But there are two tiny points where i respectfully love to note she could do a bit better.
Regarding the footnote where she mentions the "warning":
Please judge don't hesitate to slap plaintiffs lawyers next time they do this. They got warned now more then enough time not to do this joinder thingy. (Remember in Texas they were not only "warned" not to do it again, they were ORDERED not to do so! But plaintiffs lawyers don't care about orders it seems!
The second thing I would like to see mentioned next time by you your honorable Judge is the fact that some of your collegues have already noted that "it is a lie" by plaintiffs lawyers when they claim that they need this thingy ex parte and so fast since the university might destroy the records/evidence.
I understand your honor in part granted the imediatly thingy by beleiving plaintiffs argument about destroying of those records.
Maybe your honor can telefon the Universities counsel or the head oftheir IT-department to verify that the records are NOT imediatly about to be destroyed.
If your Honor would do that, you even could level the playing field more by ordering that the information you granted now will not be disclosed to plaintiffs unless the Does had a chance to interact with your chamber in this proceedings too.
In other cases it is established that there is no emergency situation once the university knows that Evil4 plaintiffs want that information and then they secure them even without that the judge agrees with plaintiffs argument about the urgency of their expedited ex-parte discovery thingy.
Non the less thank you your honor Bond, you gave me again a quantum of solace by showing common sense in your order!
P.S.
Excuse me, I think I understand now that your honor indeed gave the does the chance to appear before you before Plaintiffs get the information they want (to extract money and not just an injunction like we have now seen the other day in another case!)
i know other courts have issued warnings but the one cited was not taken seriously by the district court judge.
are any of the does in does 1-27 (Maine) appealing the joinder issue? There is a definite split as both Maine and Connecticut are in the first circuit.
-B
"The Plaintiffs will not, however, be entitled to discovery of any
other electronic information or materials associated with the Defendants—including but not
limited to electronically stored documents, e-mail messages, and activity logs."
It seems to me that Plaintiffs have already accessed electronically stored documents and activity logs through their secret MediaSentry investigations. Investigations which took place long before any of the suits were filed.
Will the judge accept the previously harvested data as legitimate?
"Will the judge accept the previously harvested data as legitimate?"
Irrelevant. Plaintiffs plan to drop the case as soon as they get the Doe names.
XYZZY
It was interesting that Atherton invited U Conn and Yale to decline to provide names unless they have a "reasonable degree of technical certainty" that the individuals were using the I.P. addresses, borrowing from Gertner's London Sire v. Doe.
Dear Fan of this Blog...
Yes, I found that interesting as well. But not surprising, as Judge Atherton has demonstrated great character. She was the first judge of which I am aware to explicitly reject the RIAA's nonsensical 'making available' allegations. And she did it on her own, without any help from any defendant or defendant's lawyer.
She's the kind of judge we dreamed judges would be like when we were in law school.
[T]he Court also notes that, contrary to Plaintiffs’ contention, it appears that the majority of district courts who have addressed the issue of joinder and were faced with the same allegations to connect doe defendants in other music downloading lawsuits have concluded that those allegations were insufficient to satisfy the transactional requirement of Fed. R. Civ. P. 20(a)(2) and that joinder was therefore improper.
Is this diplomatic legalspeak for saying you lied to me - or at least intentionally attempted to mislead the court?
{The Common Man Asking}
I wonder whether the universities will be required to turn over information for Does 2 through N, if Plaintiffs haven't submitted new filing fees for the new cases.
The court would be well within its rights to impose such a requirement, especially given the certainty with which the cases will be dropped the moment the names come in.
Matt Fitzpartick,
If the Plaintiffs wish to pursue these severed cases, they must pay the requisite filing fees. Plaintiffs’ Rule 45 subpoenas shall remain valid in these newly opened cases to the same extent as in the original two actions.
This man believes that the above statement says that these plaintiffs must pay filing fees for each severed case in order to pursue it. If they do pay those fees then those subpoenas move forward under the same terms as for Doe #1 (i.e. proper notice to the university, serving of the individual Does, time allotted for replies).
This man also adds that it would be difficult for Plaintiffs to "punish" these Does with higher settlement demands as is their wont for "fighting for your rights" given that in this case it was the judge alone who severed the cases and raised the costs to these plaintiffs.
{The Common Man Speaking}
Well, we already know plaintiffs won't pursue the cases once they get the names.
So it'll come down to whether the court requires payment of fees before that point, or after that point. Given the court's apparent knowledge of this pattern of cases, though, I have a feeling it's meant to be before.
Still, if the wording is vague even in the slightest, the plaintiffs could take advantage. Since when do RIAA plaintiffs let court decisions on joinder get in the way of cheap subpoenas? The court might need to clarify this decision if plaintiffs press on with the subpoenas in full without paying new filing fees.
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