RIAA deposition blackout
p2pnet.net News:- Brooklyn, New York, home health aide Marie Lindor literally doesn’t know one end of a computer from another.
But according to the RIAA (Recording Industry Association of America) she’s been using an “online distribution system” to “download, distribute, and/or make available for distribution” copyrighted music and right now, the case has reached the deposition stage.
A deposition is evidence given under oath for use in a court at some future date and in the US, it’s part of the discovery process through which both sides get information from each other for the upcoming trial.
The trouble is, the Big Four Organized Music cartel’s RIAA is demanding Lindor’s lawyers only be allowed to take depositions under a total blackout so the contents of the transcripts would be kept secret.
But the move represents yet another freedom of speech issue because if the RIAA is successful, important disclosures could be hidden, against public interest.
On top of that, it would set a precedent which would inevitably be quoted in other cases where openness, not secrecy, is of critical concern to the public good.
“In view of the strong public interest in these cases, Ms. Lindor’s lawyers refused to agree to such a stipulation,” says Ray Beckerman on Recording Industry vs The People. “Instead they have made a motion to compel the plaintiffs to appear for their depositions, without any preconditions.
“In the alternative, Ms. Lindor’s lawyers said they would consent to a limited order that would give the RIAA 10 days after receiving a copy of the transcript to object to specific portions of it being disclosed.”
Meanwhile, Beckerman has written to Magistrate Judge Robert M. Levy at the US District Court, Eastern District of New York, on UMG Recordings, Inc, et al v Lindor.
In his letter he says:
Dear Magistrate Levy:
This is a motion to compel the depositions of plaintiffs SONY BMG and Warner Bros. Records. The depositions have been scheduled for September 6th and 7th, but plaintiffs are imposing an unacceptable precondition to their appearance: they are refusing to produce the witnesses unless defendant agrees to an advance blanket stipulation of confidentiality as to the entire contents of the deposition transcripts. Plaintiffs have refused to cite any legal authority for their omnibus protective order request other than the Seattle Times case, a completely distinguishable Supreme Court case which granted a limited protective order as to certain specified classes of documents, based on a traditional showing of “annoyance, embarrassment, [and] oppression” of the individuals whose information would be disclosed. Fed. R. Civ. P. 26(c).
We have offered to stipulate to keep the deposition transcripts confidential for a limited period of time sufficient to give plaintiffs’ counsel time to make a protective order motion, but they have rejected that offer outright, are insisting upon a sweeping blanket stipulation of confidentiality, and state that they will move for a blanket protective order.
As your honor knows, any such application would be premature. The appropriate procedure in seeking confidentiality of deposition transcripts is for plaintiffs to make an application, susbsequent to the taking of the deposition, for a protective order as to those portions and only those portions as to which plaintiffs feel they can sustain their burden of “good cause”.
See, e.g. In re Texaco Inc., 84 B.R. 14, 15 Media L. Rep. 1201, 17 Bankr. Ct. Dec. 396 (Bankruptcy Court, SDNY 1988); Northern States Power Co. V. Westinghouse Electric Corp., 156 F.R.D. 168, 22 Media L. Rep. 2218, 30 Fed. R. Serv. 3d 683 (E.D. Pa. 1994). As noted in Northern States, “The question of what, if any, discovery the intervenor will be permitted to see can best be decided in the context of concrete disputes over particular discovery requests”. 156 F.R.D. at 19. In shielding discovery responses the Northern State court ruled that “the party whose response at issue shall have the burden to establish that the response is entitled to protection under Rule 26(c)”, and as to the deposition transcripts it ruled: “Intervenors … shall have access to deposition transcripts, subject to the right of any party to seek a protective order under Rule 26(c) with respect to any particular deposition transcript or portions thereof. The party seeking the protective order shall have the burden of showing that a protective order is required.”
The general principles governing any protective order motion of this nature are well enunciated in In re “Agent Orange” Product Liability Litigation, 821 F. 2d 139 (2 Cir. 1987):
Magistrate Scheindlin, in an opinion adopted by the district court, determined that both Rule 26(c) and Rule 5(d) of the Federal Rules of Civil Procedure “require that discovery is presumptively open to public scrutiny unless a valid protective order directs otherwise,” Protective Orders Opinion, 104 F.R.D. at 568, and that, as a result, appellee had a statutory right of access to the subject discovery materials.
……..
Rule 26(c) provides, in pertinent part, that “[u]pon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court … may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense….”
Fed.R.Civ.P. 26(c). A plain reading of the language of Rule 26(c) demonstrates that the party seeking a protective order has the burden of showing that good cause exists for issuance of that order. It is equally apparent that the obverse also is true, i.e., if good cause is not shown, the discovery materials in question should not receive judicial protection and therefore would be open to the public for inspection. Cf. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 37, 104 S.Ct. 2199, 2209, 81 L.Ed.2d 17 (1984) (approving trial court’s finding, under Washington state statute identical to *146 Rule 26(c), that party seeking protective order had shown good cause for issuance of order; implicit conclusion that information would have been available to public absent demonstration of good cause). Any other conclusion effectively would negate the good cause requirement of Rule 26(c): Unless the public has a presumptive right of access to discovery materials, the party seeking to protect the materials would have no need for a judicial order since the public would not be allowed to examine the materials in any event.
……
Therefore, we agree with Magistrate Scheindlin’s determination, adopted by the district court, that Rule 5(d) and Rule 26(c) provide a statutory right of access to the discovery materials in question.
821 F.2d at 139-146.
As the Court knows, there is a strong public interest in these cases. The litigation documents are being hosted, and made available to the public for free, as a public service, by legal publisher Pike & Fischer, through its online publication “Internet Law and Regulation”. The undersigned publishes a blog which has had over 435,000 unique visits, which collects information on the litigations going on all across the country, and contains an index of litigation documents with links to those documents, as well as brief news stories on significant legal events. I have been interviewed about these cases on national television, by wire services and major newspapers, news magazines, radio shows, the National Law Journal, Variety, Lawyers Weekly, and various internet sites, internet radio stations, and other publications. Just yesterday I was interviewed by Newsweek concerning these cases. The cases have been the subject of law review articles, and amicus briefs have been submitted by various organizations such as the U.S. Internet Industry Association, the Electronic Frontier Foundation, the Motion Picture Association of America, the U.S. Computer & Communications Industry Association, the American Civil Liberties Union, and Public Citizen.
The only reason the RIAA seeks confidentiality is to give itself yet another strategic advantage against its mismatched victims. There are 20,000 or more litigations which are either going on, or have been concluded, in the RIAA’s wave of litigation, and of course an infinite number of new cases waiting to be commenced. Millions of people across the world are hungry for information on the RIAA cases, and lawyers and litigants across the country are intensely interested in learning what is going on in the other 19,999 cases in which they are not involved.
The RIAA’s “national counsel” has at its command knowledge of the details of every single case; the defendants have none, but for the smattering of information which I have managed to assemble and which Pike & Fischer is hosting. Clearly the enhancement of the RIAA’s strategic tactical advantage against other litigants is not an appropriate basis for a protective order, although it is clearly the only reason for the RIAA’s recalcitrance.
In sum, we request an order from the Court directing the plaintiffs to appear for their depositions without the imposition of any preconditions.
In the alternative we would consent to an order akin to what I offered in the first place, which would provide as follows:
1. Plaintiffs are directed to appear for their depositions without any preconditons;
2. Pursuant to Fed. R. Civ. P. 5(d) it is ordered that the transcripts of the depositions of plaintiffs may be filed by the defendant, except that any contact information of any witness such as addresses or telephone numbers, and any personal background information of any witness, shall first be redacted;
3. Defendant shall give plaintiffs 10 days advance written notice of her intention to file any deposition transcript, providing a copy of the redacted version intended to be filed;
4. The parties may without further order of the Court mutually agree to extend said 10 day period in order to resolve any confidentiality issues consensually; and
5. If prior to the expiration of the 10 days, or extended period, defendant shall receive a copy of a motion for a protective order as to any portions of such redacted transcript, defendant shall refrain from filing those portions as to which a protective order has been requested, until the Court’s determination of said motion.
Thank you.
Respectfully submitted,
Ray Beckerman
Also See:
literally doesn’t know – New RIAA promo tool: Kazaa, July 26, 2006
Recording Industry vs The People – RIAA Asks for Blanket Gag Order Before Attending Depositions in UMG v. Lindor; Ms. Lindor’s Lawyers Refuse, Ask Judge to Compel Depositions, August 10, 2006
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August 11th, 2006 at 8:53 am
They want to keep everything that they do a secret now that they have been getting some bad press in the media.
August 11th, 2006 at 3:27 pm
They can’t afford to have everyone see that they have no evidence.