In new "John Doe" case directed at University of Maine, John Doe #10 moves to strike Linares declaration for illegality, and to vacate ex parte order

The RIAA has brought yet another case seeking to obtain the identity of students at the University of Maine, Atlantic v. Does 1-14.

John Doe #10 has made motions to (a) strike the declaration of Carlos Linares bases on the illegality of MediaSentry's unlicensed investigatory activity, and (b) vacate ex parte discovery order and quash subpoena.

The papers, drafted by Portland, Maine, lawyer Bob Mittel, made the following point about the RIAA's professed need for "ex parte" procedures and circumvention of the Rule 26(f) discovery conference:

As pointed out above, F.R.Civ. P. 26(f) requires a discovery conference before discovery can be initiated. A number of courts have addressed this subject and equitable considerations determine whether there should be an exception to Rule 26(f). McMann v. Doe, 460 F. Supp. 2d 259, 265 (D. Mass. 2006). The court should make a good cause determination and should consider whether the plaintiff shows “irreparable harm without the discovery, the plaintiff's likelihood of success on the merits, the burden of discovery on the defendant, and the degree of prematurity.” Plaintiffs failed the first two parts of the test. They offered no admissible evidence to allow the Court to determine that they would suffer irreparable harm and none to show they had a likelihood of success.
It is black letter law that those who seek equity must do equity. What is said in ¶¶ 23 and 24, when read together, is the most revealing assertion in the declaration because it shows that plaintiffs were not doing equity. Those paragraphs mean that “if we don’t get this Order and do expedited discovery the University System will loose or destroy the information we need to identify and then serve the Doe defendants as identifiable defendants”.
That is just false. This is at least the 3rd case brought by these plaintiffs against various Does; the first of which the undersigned is aware of was filed on May 3, 2007. It was Atlantic et als v. Does 1-22, Dkt No. 07-00057. It has terminated. The second is 07-162 which is presently before Judge Woodcock. 07-162 has been hotly contested and there was ample opportunity for plaintiffs to do something to protect their interests as respects the records they seek from the University System.
However, as far as one can tell from the Linares Declaration, plaintiffs have never inquired of the University System as to the nature of its retention policy. That means they have never sought an agreement that the University System would retain records long enough for the plaintiffs to obtain the information without ex parte discovery. That means they have never learned, even though they had almost a year, what the actual policy might be.
Also, if there was such a need for speed, why did the plaintiffs wait over 90 days to sue these defendants who were identified as targets beginning on September 9 and ending on October 31? They waited because they knew there was no urgency. They probably knew the University System would not destroy records they were seeking once it was notified of the pendency of this action. They most likely knew the records would be there if and when this Court said they could have them.
This Court has already noted in the 07-162 case that the plaintiffs play fast and loose with Rules as respects joinder. Decision Recommending that Defendants’ Motion to Dismiss be Denied, at 11, n5 (Document 39). They have played fast and loose with the truth in the Linares declaration and in that declaration they relied on one or more witnesses who engaged in illegal conduct. Those who seek equity, which is the basis for expedited relief of the type plaintiffs sought here, must do equity. The plaintiffs have not done equity. They have not even tried.
The questions that the Magistrate could have asked at the time he was considering whether to issue the ex parte order were threefold. First, should I issue this order knowing that Mr. Linares knows nothing about the technical material on which he is opining and is relying for that opinion on someone who may not be an expert and who broke the law to obtain it? Second, should I rely on a witness who is so obviously making false allegations about the need for urgency and the likely conduct of a witness, the University System and its employees. And third, should I deny the ex parte Motion for Expedited Discovery and require the plaintiffs to provide more evidence to support their Motion and also require that their evidence be admissible?
The answers seem to be obvious: “no, I should not rely on Mr. Linares Declaration and I should not issue the ex parte Order” and “yes, I should order that much more evidence be submitted for me to consider.” In McMann, supra at 263, Judge Tauro did just that when confronted with an inadequate factual and legal showing at the beginning of a John Doe proceeding.

Motion to strike Linares declaration*
Affidavit of Theodore G. Fletcher*
Motion to vacate and quash*
Exhibit B*

* Document published online at Internet Law & Regulation

Keywords: 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