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 [826], 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.]
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9 comments:
Hm, seems Judge Gertner is either as smart as we commenters here are sinc e she might came to the same conclusions as we did on her own, or she blatently "stole" our "intellectual property" *kidding*
It feels good to believe I and the other commentors here might have been of real value as amicus curiae :-)
P.S. And this Geek stuff regarding sectors and clusters instead of filenames and paths...
I'm confident she will work on that issue in other cases before her when Harddrive inspections become an issue there. ;-)
In addition, complete copies of all guidance and direction related to the Inspection
that the Examining Expert receives from the Plaintiffs or their counsel shall be
attached as an appendix to the Report.
- Protective Order.... par. 2.f et seq.
So, plaintiffs have to reveal what the told their 'examining' expert. Let's hope the judge pays close attention to that appendix looking for over-reaching by plaintiffs, then acts as necessary.
-Quiet Lurker
Judge Gertner wrote:
[..]the final Protective Order reflects the following: (1) As should have been clear from the Court's May 6, 2009 Order [826], 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[...]I interpret this clarification by her as to what should have been clear, as a directly related statement to my nitpicking comment May 6, 2009 9:31:00 PM EDT. I like to state here that it was absolutely NOT my intention to be disrespectful or even lecture the honorable Judge with that comment.
I wanted to show an argument that I thought would be likely used by Plaintiffs lawyers since they have shown to be this sneaky with plain meaning of wordings and that they game the judicial system with vocabulary and sentence meanings ambiguity when ever there is even the slightest chance for them to do just that.
Of course the intentions of Judge Gertner were clear and logical and could not lead to any other interpretation of what she meant with it then what she now so clearly restated and clarified.
I allege any reasoned mind has seen that in the first place, but unfortunately are Plaintiffs and their counsel IMO not reasonable persons/minds and that's why I think every order that they are supposed to follow must be spelled out in the most clear and unambiguous way that is possible.
Judge Gertner did a fine Job in doing so with this Electronic Endorsement here.
I don't think that the courts are anywhere near getting the electronic information thingy right.
Imagine if this was a case with paper documents, say a file cabinet with 500 folders and a variable amount of documents in each folder. Maybe 5 folders and 100 documents had anything to do with the case.
I find it hard to believe that the court would authorizing copying of every document in the file cabinet by the plaintiff and justifying it by having them attach sticky notes saying "do not read" on all of the privileged and irrelevant documents.
Just a biased observer
@Biased observer:
The problem with your analogy is one of tampering protection. Any change in the raw data compromises the integrity of the evidence.
Look at it like a crime scene. You can't touch anything until it's fully investigated because any tampering may hamper the case.
SAR
Please remember this is not about a "crime". This is a plaintiff that alleges that it has been damaged by a copyright infringement. And that they are entitled to the statutory damages. The defendant is not entitled to the normal criminal law protection. Only the court's prudence prevents the plaintiff from abusing the defendant.
@SAR
It is not a crime scene, and the court order is not a search warrant. It should be a request for documents.
Once the privileged files are copied to the 2 new hard drives, it is difficult to remove them completely. The privileged files should never be copied to the "Examination" copy. If they are "removed", this would only falsely indicate to the examiner that the file system had been tampered with. Tampering is just as easy with paper documents, but I don't see the courts assuming that they have been with paper documents.
What value does privilege have if a party has to turn it over anyway?
Just a biased observer
This man would like to know how much trouble the Examining Expert could get into if s/he were to violate the Judge's order by going beyond its parameters? Slap on the wrist? Strong admonition? Jail and fines? Revocation of any licenses?
And can the Defendant inquire into the background of the EE before the examination?
What if the Mirroring Expert is bought off and makes 3 mirror images instead of the specified 2?
In short, how much mischief can be tolerated here?
{The Common Man Speaking}
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