Thursday, January 22, 2009

RIAA threatens Prof. Nesson with Rule 11 sanctions, then opposes motion to compel Matthew Oppenheim deposition in SONY BMG Music v. Tenenbaum

In SONY BMG Music v. Tenenbaum, the RIAA has filed its papers opposing the defendant's motion to compel the deposition of Matthew J. Oppenheim and requested that the Court award monetary sanctions under Fed. R. Civ. P. 37.

Attached to the papers is a January 21, 2009, letter in which Timothy M. Reynolds threatened Prof. Nesson with Rule 11 or Rule 37 sanctions.

Plaintiffs' Response to Defendant's Motion to Compel Deposition of Matthew J. Oppenheim
Exhibit A -- January 21, 2009, Letter of Timothy M. Reynolds Threatening Rule 11 Sanctions

Commentary & discussion:

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Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

33 comments:

Eric said...

Tenenbaum says he was served, the RIAA claims he was not. I wonder who is telling the truth and who is full of it, like they have been in every other case they have filed.

Alter_Fritz said...

thanks ray, that was fast.
now can you get in contact too with someone that has the lottery numbers for tomorrow ;-)

Shane said...

Well, this should be interesting. The RIAA seems fond of "Rovian" tactics, that is, accusing your opponent of your own greatest weakness, in this case, for improper service, for ignoring local court rules and for not conferring with opposing council in good faith. (IMO)

I'll be interested to see what the defense has to say about this...

Ray Beckerman said...

Alter_Fritz, sorry, no, but I can get you yesterday's lottery numbers. Is that good enough?

Alter_Fritz said...

shane wrote about improper service on behalf of "Evil4"

I guess he had stuff in mind like this one for example:

http://recordingindustryvspeople.blogspot.com/2008_04_01_archive.html#7064246425145031007


Oh, and Ray I fear not. So no thanks, no need for such services you probably would bill me, would you not? :-P
And since the jackpot wasn't hit Wednesday I need the numbers for Saturday so I can donate 12.5 million Euros (50%) to the RIAA defense fund :-)

Matt Fitzpatrick said...

Hi there, this is the RIAA returning your call. We heard you wanted to depose one of our lawyers, so just leave a voicemail on our machine, and we'll get back to you on whether the information you want is privileged or not. Don't worry. You can trust our judgment on this.

Dinger said...

Help a poor non-lawyer out (Yes, like any good American citizen, I read all four volumes of Blackstone, but that was a long time ago, and I only remember the part about the whalebone).

As near as I can figure it, their citation of Federal Rule 37 and of Local Rule 26.2 all go back to the references therein to Fed. R. Civ. P. 26(a)(1). Yet, the only document they can cite where the court suggests that Tenenbaum has not fulfilled the rules of discovery goes back to before he had counsel, to last January. So, while not having access to the documents mentioned, the fact that the good folks at HRO used e.g. for their example, and referred to a document filed by the plaintiff (that is, by themselves), suggests that Plaintiff's failure to cite any court authorities means that this failure is a bare assertion, probably related to their own failed motion to compel the parents to surrender their computer. And this is in a case where, from what I understand, Plaintiff and Defendant agree that the alleged infringement occurred, and Plaintiff further asserts that Parents' computer was not purchased at the time of alleged infringement. So what are they looking for?
Oh, and speaking of questionable tactices, why threaten Rule 11 sanctions (and "Rule 37(a)(4)(sic)(B)"), and then ask for 37(a)(5)(B), which is rather discretionary, and only gives reasonable attorney's fees in opposing the motion, which, HRO's imagination notwithstanding, will have to take into account the obvious conclusion that the person drawing up the letter to Prof. Nesson was working from memory rather than taking the time to consult the rule in question. The only other way you get a typo in a citation is when the citation is plagiarized from someone else working from memory.

But then again, I have no legal training, and I'm often surprised by what happens.

Anonymous said...

"If we do not receive confirmation immediately that Defendant will withdraw the Motion, Plaintiffs will file their opposition and seek sanctions under Rule 37(a)(4)(B) and/or Rule 11."

From a cursory examination of the FRCP on http://www.law.cornell.edu/rules/frcp/Rule37.htm as quoted by Mr. Reynolds in his letter to Professor Nesson, Rule 37(a)(4)(B) purportedly giving authority for sanctions of the Defendant doesn't appear to exist. Subdivision (a)(4) doesn't appear to have any subordinate clauses in particular a subclause (B).


Dio G.

Ray Beckerman said...

The one redeeming virtue of the RIAA's lawyers is their sheer and utter stupidity.

RedShirt said...

I assume that one would have to sign for a supoena or have a designated agent, either a secretary or family member sign for it.

If that is the case and it was properly served (which I have no reason to doubt from what I have seen so far), then I would love to see Joel show up in court with a copy of the supoena signed by either Oppenheim or one of his flunkies.

Alter_Fritz said...

Ray you are unfair!

Come on, "RIAA-Tim" just made a typo; 4 or 5 who cares beside some integer lawyers and judges that take their choosen profession serious and not only as a means to get rich fast?

You can't attribute such a little typo to stupidity.

To incompetence maybe, since after all it seems these lawyers that Evil4 has hired don't wanted to be lawyers in the first place!

The guy that these "b-kamw-rrcitUSatw"* for example collusively designated to be their settlement principal, this Mad J. Oppenheim wanted to be a dentist not a lawyer and the "c?wclftHR&OLlfwa240aioiDBCSLLAMSLCaSF"** that wrote this threatening letter wanted to be a kindergardener instead of a lawyer as HRO admitted in Anderson!

*
best-known and most well-respected record companies in the United States and the world

**
criminal(?) wrongdoings committing lawyers from the Holme Roberts & Owen LLP law firm with approximately 240 attorneys in offices in Denver, Boulder, Colorado Springs, London, Los Angeles, Munich, Salt Lake City and San Francisco

(P.S. and yes, A_F has noticed that they have assimilated already 10 "lawyers" and a city more according to the text on their "About usABOUT US" page. But the important data for search engines on that page had still the values when I last visited the page that I quote above!
Seems noone of their 250 lawyers wanted to be an html guru though and they don't pay the guy that does their page enough to keep their pages up to date with their cancer like growing rate!)

Ray Beckerman said...

Isn't it possible no one visits their site, since -- in view of the excellent job they've done for the RIAA -- they're basically unemployable?

Would you want them as your lawyer?

Please don't blame the webmaster.

Ray Beckerman said...

The webmaster is probably the one person at HRO who does know what he's doing.

Alter_Fritz said...

Yes, he probably does!
That's why I was not blaming him, but attributed the inconsistencies to the alleged fact that they might not pay him as much as they pay their "first year trainees" for example.

But non the less Ray, be honest where you a serious company doing webdesign, would you want to have a company like HR&O on your CV?
While money does not stink, I for example would not want to have my company (had i one!) associated with them!

Anonymous said...

What is Oppenheim's position in this case? Is he a case attorney for plaintiffs in this case? Is he a supervisor or employer of someone?

qwerty

Ray Beckerman said...

Mr. Oppenheim is a shadowy figure, who changes his stripes according to what he thinks the judge wants to hear. I.e., he will say whatever is most advantageous for him to say. He has claimed at various times to be:

-the client
-the client representative
-the industry representative
-the principal
-the only person in the world who has settlement authority
-the attorney

It is clearly true that he was the person who has controlled these cases, and who had complete authority to settle the cases. He is the enforcer of whatever unholy agreement these 4 supposed competitiors made among themselves, and he is instrumental in whatever trickery was developed to ensure that only the Big 4 -- and no other RIAA members -- were permitted to participate in this litigation war. He is the enforcer.

As to all of his alleged roles, take your pick.

In my opinion he's a bloodless ghoul.

The Prince of Darkness.

Alter_Fritz said...

well it seems he himself is not so sure what role he plays because on the Tennenbaum[sic!] tapes part 1, at 5:58 Oppenheim introduced himself as "good morning my name is Matthew Oppenheim on behalf of the client ...ähm ... the plaintiffs"
http://blogs.law.harvard.edu/cyberone/2008/09/25/thoughts-on-joel-tenenbaums-deposition/

Donald said...

Hasn't this become one of the latest practices of the RIAA legal team? Whenever they seem to be caught behind the 8ball to threaten any lawyer who dares stand up to them and question their tactics with Rule 11 and Rule 37.

David Emery said...

IANAL, but isn't there a clear distinction between being "the attorney" and most of the rest of the roles listed above?

Also (not specifically related to this matter), is there a good guide to Attorney conflict of interest rules for the layman? I'm involved in a (totally unrelated) legal action where the same law firm seems to be wearing a bunch of hats (representing the CEO as an individual defendant, representing the corporation, etc) and understanding the rules of what does and does not constitute conflict of interest would be at least of academic interest to me. (I suspect many others would be interested in the same thing...)

Thanks much, I've learned a lot from reading your posts!

Scott said...

Regardless of the merits of the RIAA's threats, it does seem consistent with their apparent strategy in many cases of filing endless garbage motions to cause the defendant to run out of money before the case can come to trial. IANAL so I don't know what would motivate him, but I can't imagine that this kind of lawyering is something that Mr. Reynolds is particularly proud of.

Anonymous said...

Ah, Oppenheim, "the prince of the power of the Air". I read about him in a Good Book once...

Jeff Flowers said...

Ray,

While I can understand opposing the motion to compel, what I don't understand is the justification of a request for monetary sanctions. Can you explain why they would be asking for this?

Ray Beckerman said...

Yes, Donald.

It is another illustration of the axiom which I have always found to be true: all bullies are cowards.

As soon as these low lifes find someone fighting back, they lash out in the most vicious and underhanded way they can think of.

Then they crawl away with their tails between their legs.

Ray Beckerman said...

Jeff, the reason they do stuff like that is because they are bad lawyers and bad human beings. They are a disgrace to the legal profession.

Anonymous said...

David:

It matters a lot what role Oppenheim plays because when he changes roles from "RIAA's attorney" to "the client" to anything else, what he can legally do or not do and say or not say changes.

If he's RIAA's attorney, he can claim attorney client privilege, so that's advantageous to him. But if he's also their representative, he can't claim it on himself. Clearly he is an attorney, but is he representing the RIAA in this case?

If he plays too many roles, he may have conflicts of interest, but more importantly he'll also have no way of avoiding deposition. So it's of great interest to Tenenbaum to find out.

I think.

qwerty

Anonymous said...

Make Charlie's day!

Anonymous said...

This man's observation is that the RIAA certainly loves Rule 11 - at least when they can try to club their opponents with it.

{The Common Man Speaking}

Anonymous said...

Alter_Fritz,

I need the numbers for Saturday so I can donate 12.5 million Euros (50%) to the RIAA defense fund :-)

Given what this man knows of European taxes in general that would leave you absolutely nothing afterwards. Clearly a most magnanimous gesture on your part.

{The Common Man Speaking}

Andres said...

In all seriousness, wouldn't the RIAA lawyers be liable for Rule 11? I'm not a lawyer either, but from what I read about it, it seems they should avoid mentioning it.

Then again, the RIAA lawyers make stupidity seem like such a redeeming quality.

Alter_Fritz said...

TCMS, I'm happy to inform you that lottery winnings itself don't fall under income tax in germany.
So if I manage to get the ~ 25 million euro (25 Euros = 32.12 U.S. dollars) spend in the first year so that I have no interest income from it in the second year the "Finanzamt" will not see a single cent. :-)

Doyle said...

In the Plaintiffs' Response to Defendant's Motion to Compel Deposition of Matthew J. Oppenheim, the introduction states that the deposition was never conferred about. However, the last sentence of the 1st paragraph of the "Statement of relevant facts" they state that "Plaintiffs also informed Defendant that "Mr. Oppenheim was not available for a deposition on January 20."

They have contradicted themselves.....the deposition WAS conferred about.

Oops.

ScrewMaster said...

Jeff, the reason they do stuff like that is because they are bad lawyers and bad human beings. They are a disgrace to the legal profession.

Don't mince words, Ray, tell us you you really feel.

Christopher said...

Anonymous qwerty said "It matters a lot what role Oppenheim plays because when he changes roles from "RIAA's attorney" to "the client" to anything else, what he can legally do or not do and say or not say changes."
That is exactly right and what Nesson would like to nail down at deposition. If he is in fact "de client", he can be treated quite differently by both the defense and the court.