In SONY BMG Music Entertainment v. Tenenbaum, the Court rejected the proposed protective order submitted by the RIAA yesterday, for failure to comply with the May 6, 2009, decision and order of the Court.
The Court rejected many of the RIAA's suggestions, including suggestions that things like "playlists" and "videos" be included in the production.
Also, for the first time of which we are aware, in the history of RIAA litigation, the judge has ordered that "the Examining Expert shall be required to disclose both the methods employed to inspect the hard drive and any instruction or guidance received from the Plaintiffs".
The Court also entered a separate order stating:
Judge Nancy Gertner: ELECTRONIC ENDORSEMENT entered "The Court has made a number of modifications to the Plaintiffs' Proposed Protective Order [830-2]. As a general matter, the purpose of compelling inspection is to identify information reasonably calculated to provide evidence of any file-sharing of Plaintiffs' copyrighted music sound files conducted on the Defendant's computer. Once this data is identified by the computer forensic expert, however, any disclosure shall flow through the Defendant subject to his assertion of privilege and the Court's authority to compel production, just as disclosure would occur in any other pre-trial discovery setting. Thus, the procedure outlined by the Court permits the Plaintiffs to obtain relevant, targeted discovery while protecting personal and non-relevant data from disclosure. In aid of this balance, the final Protective Order reflects the following: (1) As should have been clear from the Court's May 6, 2009 Order , although the Plaintiffs may select experts of their choosing, these individuals are not to be employees of the Plaintiffs or their counsel, but must be third-parties held to the strictest standards of confidentiality; (2) the inspection is limited to music sound files, metadata associated with music sound files, and information related to the file-sharing of music sound files -- it shall not include music "playlists" or any other type of media file (e.g., video); (3) the Examining Expert shall be required to disclose both the methods employed to inspect the hard drive and any instruction or guidance received from the Plaintiffs." (Gaudet, Jennifer)May 19, 2009, protective order for inspection of defendant's hard drive
[Ed. note. While the protective order retains the concept of the RIAA selecting its own experts, rather than using mutually agreed upon independent experts, the Judge makes it pretty clear that she expects the experts to act as independent experts and will hold them to that standard. I wouldn't want to be in their shoes if the judge catches them acting the way the RIAA's experts usually act. And fortunately the judge caught much of the funny business in the RIAA's proposed order, which my readers were discussing in the comments section of yesterday's post, and excised it.
Also, it is very important that the Judge included in her order that "the Examining Expert shall be required to disclose both the methods employed to inspect the hard drive and any instruction or guidance received from the Plaintiffs". This is very important, and hopefully is a harbinger of her requiring the same from MediaSentry in preparation for the trial. -R.B.]
Commentary & discussion:
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