Friday, March 05, 2010

Tenenbaum & his attorney ordered to pay costs of RIAA's motion to compel

In SONY BMG Music Entertainment v. Tenenbaum, Judge Gertner has granted the RIAA's motion for costs and fees incurred in connection with its motion to compel production regarding dissemination of mp3 song files by the defendant's counsel during the lawsuit:

Judge Nancy Gertner: Electronic ORDER entered granting [851] Motion for Costs and Fees Under Rule 37(a)(5). Plaintiffs request that the Court order the defense to pay the reasonable expenses they incurred in filing a motion to compel (document #842) that the Court granted on June 16, 2009. Federal Rule of Civil Procedure 37(a)(5)(A) provides that if a court grants a motion to compel a response to a discovery request, "the court must... require the party... whose conduct necessitated the motion, the... attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees." An award of costs and fees to the prevailing party is mandatory unless the court finds that (1) "the movant filed the motion before attempting in good faith to obtain the... discovery without court action"; (2) "the opposing party's nondisclosure... was substantially justified"; or (3) "other circumstances make an award of expenses unjust." Fed. R. Civ. P. 37(a)(5)(A); see also Midland-Ross Corp. v. Ztel, Inc., 113 F.R.D. 664, 666 (D. Mass. 1987) (quoting M&D Builders, Inc. v. Peck, 109 F.R.D. 410, 411-12 (D. Mass. 1986)). The defendant has not filed an opposition to plaintiffs' motion for costs and fees, and the Court concludes that the plaintiffs' motion should be granted. As indicated in their motion to compel, the plaintiffs attempted to resolve their discovery dispute with the defendant, but the defense refused to disclose the requested information. The defense also has made little effort to show that its nondisclosure was "substantially justified." Defense counsel's terse response to plaintiffs' motion to compel merely stated that, in his personal opinion, the plaintiffs' requests were not relevant to this litigation. As indicated in this Court's June 16, 2009, order, plaintiffs' request for information relating to the defense's unauthorized distribution of the very copyrighted works on which plaintiffs' claims were based was clearly relevant to such issues as the willfulness of the defendant's conduct and the amount of damages to be awarded by the jury. Finally, the Court concludes that there are no extenuating circumstances in this case that would make the award of attorneys' fees and other costs unjust. Accordingly, the Court will hold both the defendant, Joel Tenenbaum, and his attorney, Charles Nesson, jointly and severally liable for the reasonable expenses that plaintiffs incurred in filing their motion to compel. See 8A Charles Alan Wright, Arthur Miller & Richard Marcus Federal Practice and Procedure § 2288, at 662 (2d ed. 1994) (noting that an award of reasonable expenses under Rule 37(a) may be made against both the losing party and his attorney and citing cases in which an attorney has been ordered to pay an award). The plaintiffs are ordered to file an affidavit containing an itemized statement of the expenses they incurred in filing the motion to compel by March 8, 2010. (Hourihan, Lisa)

Commentary & discussion:

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


Anonymous said...

OK, so let me get this straight. Judge Gertner essentially appoints counsel for Tenenbaum. Some time later, the proceedings progress to the point where the attorney himself is now being help liable for Plaintiff's attorney's fees on a motion. Did I get that right? It all seems so strange to this non-lawyer...

- Andrew

raybeckerman said...

There are a lot of strange things in this case.

To my mind, it's all a sideshow.

I would have stopped covering it, except that in a little poll I conducted among some of my regular commenters, they voted something like 13-1 for me to continue covering it.

Xetheriel said...

This award doesn't seem unreasonable, even if this case has been somewhat of a travesty of justice.

Nesson, as a lawyer, should know the rules, and the consequences of his actions, or lack thereof.

I'm not defending the court, but in this case, it seems they got it right.

Anonymous said...

The fact that Nesson was "essentially appoint[ed]" in no way relieves him of his ethical duties or obligations to the court, opposing counsel, or to the law. Perhaps a refresher as to why he is liable for costs is in order. Quoting from the court's 6/16/09 Order:

"The Court's indulgence is at an end. Too often ... the important issues in this case have been overshadowed by the tactics of defense counsel: taping opposing counsel without permission (and in violation of the law), posting recordings of court communications and emails with potential experts (who have rejected positions counsel asserts) on the internet, and now ... replicating the acts that are the subject of this lawsuit, namely uploading the copyrighted songs that the Defendant is accused of file-sharing."

Given the unnecessary delays, extra motion practice, and unnecessary litigation surrounding defense counsel's actions, I find it curious that anyone would describe the award of costs and fees as "strange." Considering he barely opposed the motion to compel, I'd call the result completely reasonable.


Anonymous said...

Nesson was correct. Actions by Tennebaum's attorney are unrelated to the admitted infringements dating to 2004, or whenever exactly it was. The Motion to Compel should have been denied. If Plantiffs wanted discovery on this matter, they could have brought an action against Nesson for copyright infringement. Then, and only then, would the discovery Plantiffs moved to compel be relevant to some action. Gertner erred. She allowed her frustration with Nesson's tactics and procedural lapses to interfere with a proper determination. The order of June 16 bleeds with that frustration. Approval of the subsequent sanctions motion is puzzling in that Gertner failed to realize her initial error regarding the motion to compel having the benefit of the intervening elapsed time.


Anonymous said...

Isn't it a Conflict of Interest that Judge Gertner publishes a blog on the commercial advertising media site SLATE?
Owned by the Industry suing the defendant?

The Washington Post Company

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