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RIAA Says It Doesn't Have Enough Evidence 208

NewYorkCountryLawyer writes "In Elektra v. Wilke, the Chicago RIAA case in which defendant Paul Wilke has moved for summary judgment, the RIAA has responded to the summary judgment motion by filing a motion for 'expedited discovery', alleging that it needs expedited pretrial discovery because it does not have sufficient evidence to withstand Mr. Wilke's motion. The RIAA's lawyer said: 'Plaintiffs cannot at this time, without an opportunity for full discovery present by affidavit facts essential to justify their opposition to Defendant's motion.' The motion and supporting affidavit are available online."
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RIAA Says It Doesn't Have Enough Evidence

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  • by Watson Ladd ( 955755 ) on Sunday September 10, 2006 @07:47AM (#16075121)
    Paul Wilke wants the case settled now. The RIAA say they don't have enough evidence, and so are asking for a faster discovery. Basically the RIAA didn't have evidence before the suit, and so want more time to come up with something.
  • by Watson Ladd ( 955755 ) on Sunday September 10, 2006 @07:51AM (#16075129)
    IANAL, but I belive that that standing has to be proven when the suit is filed, and the judge can throw it out for lack of standing if he belives that the person filing it wasn't harmed by the claimed actions of the defendant. Of course, this is a very low threshold.
  • by Anonymous Coward on Sunday September 10, 2006 @08:37AM (#16075203)
    OK, I'll give it a try.

    RIAA: Your honor, to the best that we can tell at this point, the defendant or someone using his account was sharing copyrighted materials on the internet
    Defendant:Your honor, I am not liable because:

    1. They spelled my name wrong
    2. I don't have some of those songs on my computer
    3. The ones that I do have I ripped myself from my own CDs
    I would like you to decide this right now based on what we have seen so far.
    RIAA:Your honor, there is way too much that needs to be checked yet to make a valid decision one way or the other. Would you at least let us have discovery so that we can check to see if what he says is true?
  • by denebian devil ( 944045 ) on Sunday September 10, 2006 @08:42AM (#16075214)
    Actully I think you mean shouldn't they have evidence before they file a lawsuit...

    In which case the answer is no. The RIAA should have a good faith basis for suing, but part of the legal process is that once the suit is initiated, there is a phase called "discovery" where both sides attempt to obtain evidence that supports their position, exchanges that evidence, requests access to certain things (e.g. the defendant's harddrive), and essentially tries to collect everything necessary to put on a case. Then there's the opportunity to file a Motion for Summary Judgment, if the evidence appears to show that the facts are undisputed (or fails to show anything of relevance). Then there's the trial. Obviously this is a highly simplified explanation, which leaves out other potential steps (or mis-steps) that are not currently relevant to my short summary as it pertains to this case, but that's the gist of it.
  • by cpt kangarooski ( 3773 ) on Sunday September 10, 2006 @08:46AM (#16075223) Homepage
    Before filing the suit, RIAA must have gathered some amount of evidence which led them to believe that the defendant was breaking the law to begin with. However, this could be very little evidence, far less than would actually be needed to prove it in court. This is because once you file a suit, you then get to engage in discovery so as to get sufficient evidence. All you need in order to file, pursuant to Rule 11 is "to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances ... the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery."

    Having filed, they're entitled to gather evidence more easily, by getting testimony, physical evidence, etc. They generally have a right to gather it for the suit, rather than merely asking for it. Federal civil trials in the US are big on discovery. The idea is that there should be no surprises in court; both sides will have ample opportunity to determine precisely what happened. Hopefully, there won't even be a dispute over the facts, making the trial go faster, and ideally it'll get the parties to settle or the case to get dropped, since court time is a valuable commodity.

    In any event, what has happened here is that the defendant has filed for summary judgment to dismiss the case. In a trial, there are questions of fact (e.g. did A stab B?) and questions of law (e.g. is it against the law for A to stab B?). In a summary judgment motion, the moving party is saying that there are no questions of fact which will have any bearing on the case, or some portion thereof. Therefore, the case (or the portion of the case for which summary judgment is sought) can be decided by the judge immediately, based purely on the law and the facts for which there is no question. (e.g. A and B agree that A stabbed B, so accepting that, the only issue is whether it was against the law, not whether it happened)

    However, often both sides will dispute whether there are material factual questions remaining or not, that is, whether there are disputed facts where a reasonable jury could go either way, and which are important to the case. For instance, if A says that the knife was a toy knife, and B disagrees, this is likely material. But a dispute over the color of the knife likely is not.

    Here, defendant is asking for summary judgment because he says RIAA sued the wrong person, and anyway, he didn't infringe. RIAA is saying that they need to gather more evidence so that they can show it to the judge, show that there are material questions of fact which are in dispute, and that they should go to a jury. In order to do this, they need to engage in discovery to find out some of these facts, since they weren't required to have them prior to filing the suit. N.b. that all RIAA has to do is show that there are still issues that need to go to a jury -- they do not need to show that the jury would find in their favor, or that they'd win the eventual case. Even highly disreputable and unbelievable evidence is sufficient to defeat the motion if a reasonable jury might believe it. In summary judgment matters, the court will look at all the facts in the light most favorable to the non-moving party, who is in this case, RIAA. This is because it's the moving party that wants no trial, and so should be required to prove it. The moving party isn't allowed to use summary judgment as a railroad to get the case dismissed before crucial evidence can be gathered, as that would run contrary to the rules allowing for discovery and setting the low threshold for filing.

    Honestly, this is all fairly ordinary stuff. I don't think it's really news.
  • by quentin_quayle ( 868719 ) <`quentin_quayle' `at' `yahoo.com'> on Sunday September 10, 2006 @08:57AM (#16075255)
    Motion for Summary Judgment means asking the judge to dismiss the case now, because there is (and i may recall this inexactly, but this is the essence of it) "no genuine issue of material fact or law". In other words, defendant says, there are no relevant facts in dispute, and on the known facts the law is in my favor. So please dismiss.

    Discovery is a process where each side submits lists of documents and other evidence (worded as broadly as they can get away with) and the court will force the other side to supply what's listed, if it's arguably relevant to proving or disproving a claim (or counterclaim, bla bla).

    Courts generally supposed to frown on "fishing expeditions". Theoretically you have to have some evidentiary basis for a suit in the first place, before you can use the suit to compel discovery. Who knows what the RIAA can get away with, though.

    (not a lawyer, did the jd, but this is not legal advice, yada yada)

  • by nosilA ( 8112 ) on Sunday September 10, 2006 @09:17AM (#16075298)
    IANAL, but I am a third year law student:

    Standing is different from having enough evidence to make a case. Standing, in this type of case, means that the plaintiff is alleging harm to itself by the defendant. I, for instance, would lack standing trying to sue Joe for hitting Jane with his car. But, if someone hit my car, and I think it was Joe, but I don't know for sure - I have standing, but perhaps no case.

    In this case, the defendant has filed a motion saying that the plaintiffs (RIAA) do not have any evidence against him, and no reasonable judge or jury would find in the plaintiffs' favor. Unlike standing, RIAA could clear this hurdle merely by finding more facts that would implicate the defendant. The question is whether the plaintiff can use the discovery process to build a case if they have no evidence in the first place.

    A defendant can be compelled to turn over any documents and records to the opposition that the opposition specifically asks for. However, RIAA needs to show that it has some basis for filing the suit, and that it isn't simply harassing the defendant. RIAA does not need to show it has enough evidence to proceed to trial. I'm not sure where they are on this case.
  • by Barny ( 103770 ) <bakadamage-slashdot@yahoo.com> on Sunday September 10, 2006 @01:32PM (#16076375) Journal
    You will find, after reading the case in question, that the reason they had the book thrown at them was because they were asked by the court to supply their computer as evidence, THEN they wiped the HDD.

    They were given default judgement because by destroying evidence asked for by the court (the destruction being done after the asking) is very very wrong.
  • by cdn-programmer ( 468978 ) <terr@nospAM.terralogic.net> on Sunday September 10, 2006 @01:59PM (#16076527)
    You are probably correct that the judge will allow this witch hunt to proceed.

    What this illustrates is that a law suit can be used to expose someone's trade secrets and confidential work. Suppose Paul Wilke is a programmer and he is working on a secret project that he intends to flog as a product in the not too distant future.

    If the RIAA is allowed to go trapsing through his hard drives, then they will find the source code he is working on even if they do not find the copyrighted music they claim might be present. Thus they are breaching the defendant's rights by exposing his copyrights which he has every right to keep confidential.

    Once the genie is out of the bottle its out and even though I personally greatly disagree with patents, what this can do is compromise Paul Wilke's ability to patent things in the future.

    While the legal system is suppose to honour confidentiality it often does not do so. Lawyers offices are very leaky and generally very insecure.


    I had one lawyer send me his enitre client list. I could have contacted each and every one of them.


    Another lawyer received a confidential tape containing source code for a rather large project which was involved in a litigation. This lawyer agreed to keep the tape confidential. This was an "undertaking".

    The next thing the lawyer did was to call up a third party company that does software development in exactly the same area as the project in question - IE - a competitor and a strong one at that. This company was given the tape and asked to read it. They were not told what was on the tape and thought it was data and not source code.

    After the company received the tape they handed it to one of their employees who happened to have worked for me on a project a couple years before and she tossed the tape in her napsack and peddled her bike across town and delivered it to me - and I _ALSO_ do software development in this area and thus ALSO am a competitor.

    I had the correct operating system which her employer did not have running.

    I was also not told what was on the tape.

    Over the course of a week I was able to read the tape and lo and behold what came up was all of these copyright notices.

    Thus - I was put in the position of seeing unwanted source code which could expose me to a law suit if I were to do anything that happened to fall even remotely in the same area as the source code on the tape. The short of it is that if a programmer even sees someone else's source code they can be sued for copyright infringement just as George Harrison was found guilty of plagerism and copyright infringment on the basis that he might have heard the song "He's So Fine" playing on the radio before he wrote "My Sweet Lord".

    Leaky law office! You bet. The answer here is that if you are a programmer then don't let anyone hire you to read a tape and if you are a song writer then you better not listen to the radio or buy any CD's. The world we live in is just aweful in some ways.


    The next example of leaky law offices is that most use windows systems which are not secured and most are too damn cheap to hire a sysadmin let alone a security consultant much less put in a fire wall. Generally they cannot understand why there might be black hat crackers out there, yet most of them take on clientel which would be overjoyed to hire a black hat and certainly do have the motivation to do so.

    This is like connecting every keyboard in the world to their computers with no attempt at security. This is like taking their file cabinates full of confidential documentation on the cases undergoing litigation and putting these file cabinates in an open parking lot without so much as using a key to lock them or anyone to guard them. Clearly if the files are accessed they have no idea who might have done it. Of course we all know that in a lot of litigation there is a complete disrespect of the law.


  • Re:IANAL (Score:5, Informative)

    by ari_j ( 90255 ) on Sunday September 10, 2006 @02:14PM (#16076604)

    Summary judgment is appropriate when there is (to quote nearly every summary judgment motion and order ever drafted) "no material fact in dispute." It's slightly different from a demurrer or, in modern parlance, motion to dismiss (typically called a "12(b)(6)" because of the Federal Rule of Civil Procedure by that number which provides for it), which is where every fact in the plaintiff's complaint is assumed to be true and still does not state a cause of action upon which relief can be granted.

    In summary judgment, the court can look at affidavits filed by the parties, deposition testimony, interrogatories, and other evidence made available to it through the discovery process and determine whether any material fact is in dispute. A material fact is one that changes the outcome of the matter. For instance, the parties in a libel case may dispute whether the remark was printed in the New York Times or in New Yorker Magazine, but if all the evidence available shows that there is no dispute as to the truth of the remark, then where it printed is immaterial to the case. You can't just go claiming that there are disputed facts unless those disputed facts matter.

    Summary judgment can, interestingly, be granted to either party in a lawsuit. The plaintiff can get summary judgment, too, although it is less common to see that happen. (Defense lawyers are paid to find material facts in dispute.)

    Another note: the reason that summary judgment works is because judges make decisions of law and juries make decisions of fact. If there is no material fact in dispute, then there is no reason to bring a jury in to make factual decisions. The same thing can happen with stipulated facts (which happens a lot in business law cases, such as in bankruptcy court) - the parties agree on the facts but disagree on the law, and a judge makes a decision for them.

    I hope that helps. As to the present case, it appears that the RIAA may have sat on its laurels waiting for the defendant to settle under an assumption that he would, and then were surprised by a motion for summary judgment. You don't need expedited discovery to beat an MSJ. What you do need is a diligent attorney who did discovery early and often rather than only at the last minute. There was nothing stopping the RIAA from taking depositions and sending interrogatories and requests for production to the plaintiff starting on the day that they filed suit. The fact that they didn't do that falls under the ODF rule - it's their own damn fault.
  • Re:IANAL (Score:3, Informative)

    by theophilosophilus ( 606876 ) on Sunday September 10, 2006 @02:28PM (#16076692) Homepage Journal

    As to the present case, it appears that the RIAA may have sat on its laurels waiting for the defendant to settle under an assumption that he would, and then were surprised by a motion for summary judgment.

    It's also possible the MSJ was filed right after the complaint and so there wasn't time for the RIAA to do discovery (I had this happen during my clerkship this summer). Rule 56 requires that ample time for discovery be given.

  • Re: ah-ha (Score:5, Informative)

    by oclawgeek ( 861555 ) on Sunday September 10, 2006 @02:46PM (#16076786)

    I doubt Defendant will prevail.

    The parties have a right to conduct pre-trial discovery. See, for example, Federal Rules of Civil Procedure, Rules 26-37 [cornell.edu]. See also, Federal Rules of Civil Procedure, Rule 56 [cornell.edu], which allows the Plaintiff to simply file affidavits from its investigators, along with the subpoenaed information, showing that the ISP states that Defendant was using the relevant IP address at the relevant time and that he was allowing others to infringe on copyrighted material owned by Plaintiff. If all these things are set out, RIAA will probably win, since this should probably be enough evidence to show that there exists "a genuine issue as to any material fact" (Rule 56(c)) or at least convince the court to permit discovery before hearing the Motion for Summary Judgment.

    Rule 56 provides that summary judgment motions can be made at any time primarily because some defenses can be asserted such that it would be unfair to subject the defendant to the cost and burden of the discovery process, for example an immunity defense. A motion which doesn't assert some legal defense, but instead relies on the lack of a developed factual record is premature before the parties have engaged in discovery. Courts deny these kinds of motions all the time. See, for example, Behrens v. Pelletier, 516 U.S. 299 (1996) [cornell.edu]("The court also denied petitioner's summary judgment motion, without prejudice, on the ground that it was premature given the lack of discovery.")

    Moreover, Rule 56(f) clearly permits the District Court to deny the motion or to continue the motion until after discovery.

    Defendant is going to lose this motion. Tactically, it's questionable whether this is a good idea - if the court continues the motion, it may expedite discovery and fast-track the case. On the other hand, if Defense counsel thought she was going to win on this motion, she's a moron. FWIW, she's been a lawyer in Illinois for less than two years [iardc.org]. Draw your own conclusions.

    It's clear from the discussions here on /. that most of the commentators, as usual, haven't read any of the documents actually linked to in the summary. Basically, RIAA says everything I've said, but provides better authority (my comment would be clearly better, if only I was billing someone $250/hr to write this... ;-) for the proposition that the parties have a right to discovery before Summary Judgment Motions are heard. Moreover, the case they cite for this proposition, Celotex is well known to even neophyte civil litigators. (Except, of course, for Defendant's counsel.)

    What's most interesting about this whole thing is not that Defendant will lose this motion, but that Defendant is probabl going to get his case set on an expedited schedule, have his deposition taken, and then fight over the inevitable discovery compliance motion RIAA will file when Defendant tries to avoid allowing an expert to examine his hard drive [cornell.edu] to see whether he actually downloaded the tunes, or ripped them as he stated under oath. Defendants have lots of legitimate reasons not to want to allow someone to inspect their hard drive, of course, so it will be interesting to see how the court strikes a balance between Defendant's privacy in irrelevant data with Plaintiff's right to discovery.

  • Re:IANAL (Score:3, Informative)

    by ari_j ( 90255 ) on Sunday September 10, 2006 @05:47PM (#16077534)
    According to the MSJ here, it the suit was filed in May, 2006, and the motion was filed on August 9, 2006. Three months is not a lot of time to do discovery, but it's certainly enough for a diligent and well-paid legal team to get enough to avoid summary judgment.
  • Lost cause. (Score:2, Informative)

    by insomniac8400 ( 590226 ) on Sunday September 10, 2006 @05:58PM (#16077574)
    The thing I don't get is, he can easily give them a computer that never had music on it. There is no way to prove the computer he gives them was even on or not on his internet connection or in or not in his house when the downloading/uploading occured. The person who deleted files was an idiot, it's simple have two computers, one for downloading and one for surfing. In the event of subpoena let a friend hold onto the downloading computer and turn over the clean one. Basically the only way the RIAA will be able to catch anyone, is if they can raid houses before notifying people in advance that they have identified their connection as a one used to download music.
  • by Anonymous Coward on Sunday September 10, 2006 @06:29PM (#16077671)
    Quick note and I didn't get a chance to read the parent article or pleadings, but...

    The plaintiff has a duty to ascertain that there is a reasonable basis for the complaint being filed with the court, including performing any research necessary. That doesn't mean they need ironclad evidence in their possession when the complaint is filed; that's what the discovery process is for. If the complaint was frivolous, the defendant would have filed a motion to dismiss prior to the discovery phase of the litigation, and it is potentially entitled to sanctions if the complaint was the result of flawed or unreasonably inadequate investigations on behalf of the attorney filing the complaint.

    In this instance, the defendant has filed a motion for summary judgement, which ordinarily occurs after discovery is complete. Here the plaintiff is asking for additional discovery, and alleges that it is needed in order to defend a summary judgement motion. Case law is clear on barring discovery that is essentially a "fishing expedition" but my guess is the plaintiff in this case will be allowed to proceed with the discovery it wants (the judge may limit the scope, however).

    Basically, if the opposition in a motion for summary judgement claims it is unfairly prejudiced by not receiving discovery that it requests and has a reasonable basis for believing that it will support it's opposition - and that no real harm or prejudice would be incurred by the defendant if the requested discovery was granted - the judge will usually give wide latitude to the request for discovery. Then, the plaintiff has no excuses anymore, and if the request is denied it has an almost sure-fire reversal awaiting it in appellate court. Appellate courts don't take circumventing the judicial process lightly, and denying a litigant's right to discovery generally will entail an appellate court remanding the case back to trial court to conduct the requested discovery and allowing any motions for summary judgement upon completion of discovery.
  • Re:IANAL (Score:3, Informative)

    by NewYorkCountryLawyer ( 912032 ) * <ray AT beckermanlegal DOT com> on Sunday September 10, 2006 @09:16PM (#16078179) Homepage Journal

    einhverfr said: ..... Summary judgement is appropriate where any disagreement about the nature of the facts in a case is insufficient to overrule the legal standing. In short, summary judgement is like saying "Your honor, even if everything they say is true, the law is still on my side." ......

    No, that's a dismissal motion, not a summary judgment motion, that you're referring to.

    A summary judgment motion is "Your honor, here are the facts which support your dismissing the case." Then it is up to the plaintiffs to come up with opposing evidence raising genuine, triable, material issues of fact.

    The plaintiffs here said to the judge "We don't have enough evidence to successfully oppose the motion unless you give us pretrial discovery. Then maybe we'll find evidence with which to oppose the motion (and maybe we won't)."

Experience varies directly with equipment ruined.