Friday, July 17, 2009

Miscellaneous pre-trial rulings in SONY BMG Music Entertainment v. Tenenbaum; also RIAA moves to exclude Pouwelse test'y on economics/markets

The Court has handed down several 'housekeeping' rulings on the various trial-related motions in SONY BMG Music Entertainment v. Tenenbaum:

-motion by defendant to add ethnomusicolgist as expert witness: denied as untimely
-joint motion for lawyer questioning of jurors: granted but with strict limits
-motion by defendant to waive witness fees: denied

Also the RIAA has made a motion to exclude any testimony from Prof. Pouwelse on economic and market factors.

We are not aware of any ruling yet on defendant's motion for internet access for demonstration purposes, but plaintiffs have not opposed it.

Judge Nancy Gertner: Electronic ORDER entered denying [860] Motion for leave to serve Expert Report: the motion is simply too late. The deadline for identifying experts was 3 months ago and the deadline for supplementing expert reports was June 22, before the witness that was the subject of this motion was even proposed as an expert. (Gertner, Nancy)

Judge Nancy Gertner: Electronic ORDER entered granting [879] Motion for Lawyer Conducted Voir Dire subject to certain limitations. Each side shall have 10 minutes per juror; for the most part, the subject matter of the questions may not concern legal issues which would be the subject of the court's instructions. The parties are to submit questions -- or the areas which the questions will cover -- to the court by the date of the final pretrial conference. (Gertner, Nancy)

Judge Nancy Gertner: Electronic ORDER entered denying [878] Defendant's Motion to Waive Witness Fees. This motion is denied for two reasons: First, the Defendant has not submitted an affidavit in support of his Motion to Waive Witness Fees detailing the potential costs relative to his lack of funds, nor has he so much as sought to meet the requirements of the in forma pauperis statute, 28 U.S.C. 1915 (applying to all indigent litigants, not only prisoners). See Haynes v. Scott, 116 F.3d 137, 140 & n.2 (5th Cir. 1997); Floyd v. United States Postal Service, 105 F.3d 274, 277 (6th Cir. 1997). A proper showing of indigence is a prerequisite to the type of relief that Tenenbaum seeks, as illustrated by the very case that he cites in support of his position. See Hadsell v. C.I.R.,107 F.3d 750 (9th Cir. 1997) (addressing waiver of fees for in forma pauperis defendant). To be sure, in an effort to reduce such costs, if the two witnesses' testimony remains relevant at the time of trial, the Court would permit the Defendant to obtain their testimony via video-conferencing pursuant to Fed. R. Civ. P. 43(a). That Rule provides: "For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location." But videoteleconferencing raises a second problem. As currently written the Federal Rules seem to only permit this Court to subpoena trial testimony -- whether in-person or video -- from non-parties who are within this judicial district or within 100 miles of the Court. See Fed.R.Civ.P. 45(b)(2), (c)(3)(A)(ii); In re Methyl Tertiary Butyl Ether Products Liability Litigation, 2009 WL 1840882 (S.D.N.Y. June 24, 2009). Nor can any other court subpoena testimony for a trial in Massachusetts. See Fed.R.Civ.P. 45(a)(2)(A). While this limitation is obviously illogical as it pertains to videoteleconferencing as distinguished from physical testimony, because videoconferencing does not require a witness to travel from outside the jurisdiction to Massachusetts -- the Court is obviously not in a position to amend the Federal Rules. If the witnesses are outside the zone of this Court's subpoena power, and do not consent to videoteleconferencing, the Court cannot compel them to testify. The parties are invited to confer to determine if the testimony could be obtained by consent, or if agreement is not possible, whether there is any other authority for videoteleconferencing outside the jurisdiction which the Court may have overlooked. (Gertner, Nancy)

Plaintiffs' consent to lawyer-conducted voir dire
Plaintiffs' opposition to motion for waiver of witness fees
Plaintiffs' motion to exclude testimony of Prof. Pouwelse on economics and market issues

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


Joel Tenenbaum said...

Disappointing :( but thanks for the update. What do you make of the rulings?

raybeckerman said...

I did not see anything out of the ordinary in any of the rulings.

The only thing I would do differently, if I were the judge, is move the trial back, give the plaintiffs the opportunity to depose the ethnomusicologist prior to trial, and let the guy testify. Based on his report, and knowing how many different uses are made of p2p file sharing software, I think his testimony would have been quite relevant to the fair use defense. But it is certainly not inappropriate to reject the expert testimony on a principal -- as opposed to rebuttal -- issue, where the expert witness disclosures were not made in a timely fashion in accordance with the Court's rules and scheduling orders.

Unknown said...

I get the feeling that the Judge is tired of shenanigans in general and might have been more lenient if she had not already felt abused by both sides.