p2pnet news | RIAA News:- Lawyers working with RIAA victim Tanya Andersen have just filed their third amended complaint in what’s becoming the seminal Vivendi Universal, EMI, Warner Music and Sony BMG case as they and their RIAA continue their mission to hunt down and sue their own customers into becoming compliant consumers.

Andersen and her attorneys, Lory Lybeck and Ben Justus, have so far kept the labels and their legal attack dogs at bay.

Now they’ve further streamlined their case, focusing on the racketeering and corruption, abuse of the legal process, wrongful civil prosecution, deceptive business practices, negligence, fraud, and civil conspiracy components.

Last month, Andersen re-refiled after what amounted to a detailed briefing by federal judge Anna Brown.

However, one of the facets of this and all RIAA cases is delay, delay, delay.

Lybeck is still waiting for his corporate music industry opposite numbers to supply documents and other information which should have provided long ago.

To keep moving ahead with discovery in view of the court’s instructions, they’ve dropped certain class action claims which depend on still-missing RIAA data.

The court has explained the components which have been dropped can be re-entered once the RIAA material is in hand.

Below is Andersen’s report in anticipation of an April 21 status conference >>>

Pursuant to the Court’s Order dated March 31, 2008 (Doc. No. 53) and its Order dated April 1, 2008 (Doc. No. 54), Plaintiff Tanya Andersen has filed her Third Amended Complaint. Ms. Andersen’s Third Amended Complaint fully complies with FRCP 8 and 9, this Court’s Orders, and its direction to the parties at the hearing which occurred on February 13, 2008. At the Court’s request, the allegations of the complaint have been streamlined and stated even more simply and directly. The allegations also focus on Ms. Andersen’s direct claims, leaving additional claims on behalf of a broader class to be further stated and alleged after class certification. Further delay or unnecessary process is unwarranted in view of the Court’s prior Orders and instructions. Ms. Andersen urges the Court to direct the parties to proceed with scheduling long delayed discovery immediately.

BACKGROUND

Ms. Andersen filed her First Amended Complaint making claims against each of these Defendants on August 15, 2007. On February 13, 2008 a hearing was held to consider Defendants’ FRCP 12(b)(6) motion filed on September 12, 2007. On March 14, 2008, plaintiff filed her Second Amended Complaint (Doc. No. 50). In response, Defendants filed their motion (Doc. Nos. 51, 52), nominally requesting a status conference and/or requesting additional time to respond to the pleading. The Court directed that Ms. Andersen revise her complaint to more specifically comply with this Court’s February 19, 2008 Order and direction at the February 13, 2008 hearing. She has done so.

Defendants’ proposal that Ms. Andersen now be additionally required to “proffer” evidence in addition to her now well pleaded Third Amended Complaint is without legal authority, contrary to the court’s February 19, 2008 Order prohibiting additional pleading motions (Doc. No. 48), and is an obvious attempt to further avoid discovery. Discovery, including interrogatories, requests for production, requests for admission, and the scheduling of depositions, should be allowed to immediately commence.

SUFFICIENCY OF THIRD AMENDED COMPLAINT

The Third Amended Complaint fully complies with the Court’s directions as provided in its prior Orders and oral instructions during the hearing on February 13, 2008. The allegations included are more than sufficient to state claims for relief pursuant to applicable common law, statutes, and Federal Rules of Civil Procedure. The allegations also more than clearly define the claims so as to allow effective and efficient discovery to immediately proceed.

Ms. Andersen has deleted the second, tenth, eleventh, thirteenth, fifteenth, sixteenth and seventeenth claims for relief set forth in her Second Amended Complaint. She does so with the specific understanding that she may reassert these claims as may be appropriate following discovery and/or at class certification. These claims included, respectively, her former claims for intentional infliction of emotional distress, defamation, false light, negligent misrepresentation, invasion of privacy, computer fraud and abuse, and trespass to chattels. The Third Amended Complaint clearly and plainly sets forth Ms. Andersen’s distinct claims for relief arising from each Defendant’s actions in concert with the others to create, implement and operate an unlawful enterprise that included a flawed and illegal investigation scheme, extortive threats, and sham litigation. All of these activities were carried out on an unprecedented nationwide scale. The length of the pleading has been substantially reduced. However, Ms. Andersen’s claims cannot be understood or adequately presented in a vacuum. Her claims require a description of the nature of this complex, multi-faceted enterprise including detailed allegations showing Defendants’ knowledge of the illegality and technological flaws inherent in the investigation scheme and the conspiratorial intimidation of Ms. Andersen and others. These factual allegations are set forth as plainly and simply as the described conduct allows and fully comply with Rule 8 pleading standards.

Ms. Andersen’s Third Amended Complaint also appropriately states a fraud claim and RICO claims consistent with FRCP 9. Although Ms. Andersen never believed that she had personally engaged in copyright infringement, she relied, to her detriment, on Defendants’ misrepresentations that they had actually invaded her computer and/or otherwise obtained evidence from her personal computer that exposed her to legal liability and financial ruin. She had little knowledge of computers and even less knowledge about file sharing, digital spoofing, or Defendants’ flawed and illegal investigations and their larger campaign of intimidation. These claims are clearly and appropriately pleaded and are consistent with the holding of Oregon Public Employees’ Retirement Bd. ex rel. Oregon Public Employees’ Retirement Fund v. Simat, Helliesen & Eichner, 191 Or.App. 408, 427-428, 83 P.3d 350, 361-362 (Or. App. 2004)(considering for reliance purposes whether or not a party is “a large and sophisticated organization that has at its disposal a small army of attorneys, accountants, and hired experts…”) Ms. Andersen’s reliance on Defendants’ fraudulent statements was reasonable and understandable in light of Defendants’ threats, adamant insistence, vastly superior resources, sophistication and apparent means of support for their false claims.

Similarly, Ms. Andersen has appropriately pleaded all elements of a claim for violation of Oregon’s Unlawful Trade Practices Act. She has identified the particular statutory provision Defendants violated and the provision giving rise to her civil action. Again, any evidentiary contention that Ms. Andersen was not in fact harmed by Defendants’ deceptive practices as alleged is untrue and also not appropriately considered at the pleadings stage.

Despite the Court’s correct analysis and ruling that a special relationship is not required to state a claim for intentional infliction of emotional distress (IIED), Ms. Andersen has deleted this claim pending additional discovery. The facts alleged in the complaint demonstrate certain conduct of Defendants which exceeds all bounds of social decency. Despite knowing of Ms. Andersen’s innocence, and the physical and psychological harm she was suffering as a result of their persecution, Defendants continued to engage in defamation, threats of financial ruin, humiliation, harassment, and other abuses. Ms. Andersen will seek to reallege a claim for IIED once evidence revealing the full extent of Defendants’ knowingly malicious and outrageous conduct is disclosed in discovery.

DISCOVERY PLAN

The Court clearly instructed the parties to meaningfully participate in creating a joint discovery plan. Ms. Andersen’s counsel has attempted to discuss scheduling without success. Defendants should be directed to answer the complaint and immediately participate in a discovery conference with counsel. Continued attack on the pleadings through a vague “proffer” of evidence process not cognizable under the Federal Rules of Civil Procedure will accomplish nothing more than continued delay.

Ms. Andersen is entitled to allege all claims that are necessary and appropriate to obtain full relief and compensation for the harm that Defendants have caused her to suffer. At this stage, her well pleaded claims are necessarily deemed to be true and all inferences reasonable to be drawn from them are to be granted in her favor. She is entitled to propound written discovery and conduct depositions despite Defendants’ desire for continued secrecy and delay. She should not be subjected to extraordinary and unusual procedures (i.e. evidentiary “proffer”) or inordinate delay simply because Defendants are well-funded entities that do not wish to answer her claims or to engage in appropriate discovery.

Weeks ago Ms. Andersen’s counsel suggested to Defendants’ counsel a very ordinary plan for discovery consisting of written interrogatories and document production requests followed by deposition of certain persons scheduled at mutually convenient times. Defendants declined to discuss even setting aside time or future dates for discovery depositions. Instead, counsel suggested that no discovery would be necessary because each of Ms. Andersen’s claims could be dismissed, even before any discovery is allowed. To support this arrogant proposal, Defendants suggested that Ms. Andersen be required to provide evidentiary “proffers” to support all aspects of her well pleaded claims. Such a process is without legal support, contrary to the purpose of civil discovery, and an obvious effort to avoid this Court’s direction to move forward with discovery without additional delay.

As this court has directed, Ms. Andersen is prepared to conduct discovery initially only on claims personal to her, deferring class action issues for later disposition. She is open to all reasonable discussion leading to efficient completion of necessary discovery consistent with the Court’s direction.1 She rejects Defendants’ suggestion and their intent to unduly limit her rights to discovery. Ms. Andersen is entitled to obtain discovery demonstrating Defendants’ conspiracy to develop and conduct a multiparty national enterprise for the purpose of harassing and intimidating her, in part by pursuing sham litigations against her and others. Defendants’ knowledge of the illegality and technological flaws inherent in the scheme they devised and employed is the subject of perfectly appropriate discovery.

On this point, Ms. Anderson quotes counsel for the RIAA and Record Company Defendants in his March 26, 2008 letter to the Honorable Robert Levy, U.S. Magistrate in an RIAA case now pending in the Eastern District of New York. Mr. Gabriel writes:

“Fed. R. Civ. P. 26(b)(1) provides that a party ‘may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party”.’ ‘Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.’ The scope of discovery under Fed. R. Civ. P. 26(b) is broad, encompassing any matter that bears on, or that reasonably could lead to, other matters that could bear on any issue that is or may be in the case. Accordingly, the scope of discovery should be liberally construed.”

Mr. Gabriel’s characterization of the scope of appropriate discovery is correct. What is good for the goose is good for the gander. Any discovery “plan” or procedure which prohibits Ms. Andersen from obtaining the discovery she seeks regarding Defendants’ conspiracy and their knowledge is contrary to the broad scope of appropriate discovery. Defendants’ discovery proposal represents one more poorly disguised effort to deny Ms. Andersen her right to fairly participate in the federal judicial process.

Ms. Andersen respectfully requests that this Court accept the filing of her Third Amended Complaint and require Defendants to file their Answers to it. She also requests that this Court reject the baseless proposal that she engage in additional unnecessary process by “proffer” of evidence as is suggested by Defendants. Ms. Andersen proposes that the parties immediately propound written discovery. She further proposes that the parties immediately begin scheduling depositions of fact witnesses at mutually convenient times, to begin no later than 60 days after written discovery is propounded.

Stay tuned.

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This entry was posted on Friday, April 18th, 2008 at 11:59 am and is filed under Music, RIAA News. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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