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RIAA Says It Doesn't Have Enough Evidence
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."
Since almost everyone just settles *cough*extortion*cough*, they rarely have to prove anything.
... could'nt he just fucking translate the submission into english before posting ...
"Nul n'est sensé ignorer la loi", but who the fuck he supposed to understand legalese, I wonder.
Is this saying that RIAA sued someone, and the defendant actually fought back with a motion for dismissal? And the RIAA says that they don't actually have the evidence they need to prove anything, but just give them a minute, and they'll scrounge something up? Shouldn't the RIAA have thier evidence BEFORE the trial??
Three days from now?? Thats tomorrow!! ~Peter Griffin
Let's try to translate:
RIAA: Hey yr honor, this dude stole my stuf, i know 'cause a guy i pay to hang on the net told me so!
DUDE: Nope, i didn't.
RIAA: Sure, they all claim the same, and actually by now i've got no evidence, but if you let me go his home and
put everything upside-down i bet my "experts" will find something!
Well, i hope this is not the way the USA justice works.
And if i were Defendant i'd ask RIAA in return (and before giving anything to them) to let me do forensics on computer their investigators used to identify my IP and computers they used to exchange mails and every other piece of equipement i could think off (like routers of their ISP). And it'd
take me 10 years or so, and of course at the expense or RIAA (i mean, forensics is a hard work, i intend to get payd for it) if i figure that they made a mistake.
The US has liberal pleading rules, and as such, has wide discovery as well. This is good when a small person tries to sue a large company. Say a company is dumping chemicals into your water, and your kid gets cancer. There is no way the company is going to give you the evidence you need to get a civil verdict. That is why you can file a claim with little to no evidence, and then through discovery, the court can force the company to provide you with types and quantities of what they are dumping into the water. If they refuse, they can be brought up on criminal charges. Rule 11 in the federal laws of civil procedures is designed to prevent lawyers from filing civil suits just to get discovery priviliges. If I was the gentleman in question, I would ask my lawyer to evaluate a Rule 11 charge in addition to the summary ruling. I am reading the rule right now, and a judge could impose on the party involved monetary penalties that would prevent the conduct in the future. I don't see that happening, but even if the judge just fined the law firm representing the RIAA, it would make them less likely to help the RIAA in the future.
It also means that their supporting tort wasn't very strong, and might set precedent to require greater revelation in the tort to support their accusation before messing with both the court and the defendent(s).
It's a smelly, scummy sort of ambulance chaser that doesn't have his/her ducks in a row before they baste some poor person in oil and fry them before the bench.
This bodes badly for whatever hacks the RIAA has employed to enforce their ex-foreclosure bar-bells. I doubt they're embarrassed, as it is impossible to embarrass sociopaths.
Now mod me down for troll-- or be enlightened and understand that the poster actually got some most interesting and relevant information: the RIAA's enforcers are starting to sputter.
---- Teach Peace. It's Cheaper Than War.
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.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
When a plaintiff files suit in court, it does not necessarily need to have all of the evidence it needs to win. This is the purpose of the discovery phase of a lawsuit.
If a plaintiff believes it has been wronged but the information necessary to sufficiently prove their case is somehow privileged, there is no way for them to possess that information as evidence without discovery. That's why it's called "discovery". Plaintiffs frequently believe that internal documents or sworn testimony of the defendant will prove their case, but without discovery, they will never be able to read those documents or obtain that testimony.
In this case, the RIAA needs access to defendant's computer to prove its case. It has no such access without a subpoena, which it cannot obtain without a lawsuit. Plaintiff has filed that lawsuit and is now asking the court for permission to obtain the evidence needed to prove it.
I would be very surprised if the court denied their motion.
I notice in reading the .pdf version of the motion that the RIAA lawyers didn't even have the man's name right in their initial filing of the lawsuit. His own attorney had to straighten that out. I'm glad Mr. Wilke's pockets are deep enough that he can afford astute legal counsel who knows how to handle a fight like this. I suspect that's not the case for the single mothers, recently-bereaved orphans, and elderly grandparents who are the RIAA's usual prey.
It's disconcerting to think they can sue when they have no real evidence that they've been injured. I suspect they do this more often than not. Let's hope this motion succeeds and that other defendants and lawyers take note of it.
"Here's what's happening. You're starting to drive like your Dad..." - Red Green
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.
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. See also, Federal Rules of Civil Procedure, Rule 56, 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)("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. 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 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.
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