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Judge Says RIAA Can't Have Hard Drive
NewYorkCountryLawyer writes "A Texas judge has refused to allow the RIAA untrammelled access to the defendant's hard drive in SONY v. Arellanes. The court ruled that only a mutually agreeable, neutral computer forensics expert may examine the hard drive, at the RIAA's expense, and that the parties must agree on mutually acceptable provisions for confidentiality."
No, probable cause is not relevant in a civil case. However, this does strike the balance that the Federal Rules of Civil Procedure are supposed to provide between a plaintiff's ability to use discovery procedures to get access to the evidence he needs to prove his case and the defendant's interest in keeping his private information private. This is a very common-sense decision that probably has no real precedential value (because it's what most lawyers agree on anyhow), and it's good to see a judge using the rules and common sense to tell the RIAA that it is just like any other plaintiff in any other case, and just because it can bully Congress around doesn't mean that it can ignore the civil procedure rules and bully a court or civil defendant around.
If this were a criminal matter, then things would be different.
It just means that a court has ruled the plaintiff can't be the one examining the defendant's hard drive. Why it took so long for a judge to decide the one filing complaint isn't exactly a neutral party... maybe this is the first time someone has complained.
This isn't a matter of legal debate, it's simply compliance with the Federal Rules of Civil Procedure. In order to compel the defendant to produce the hard drive, the plaintiff (Sony) had to show that the information contained therein is relevant (under FRCP 26(a)). In this case it certainly was, as the court stated. The defendant brought up some legitimate concerns about privacy of documents not in dispute on the hard drive, and the judge agreed that to allow a mirror of the hard drive by Sony would be overly broad. This strikes a fine compromise between the concerns of both sides.
-Alex
I checked the court's order here and it looks like Rule 26(c) was invoked, oddly by the plaintiff RIAA. Apparently the defendant refused to produce her hard drive and the RIAA claimed that a mirror image of it was necessary, and that any privacy concerns could be dealt with under a Rule 26(c) protective order. Normally, a plaintiff makes a motion under Rule 26(c), so this looks a tad unusual to me but it works. The judge did not explicitly rely on Rule 26(c) in making his order, but everything about the order says it's a Rule 26(c) order.
... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... that the disclosure or discovery may be had only on specified terms and conditions ...; that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters; [or] that discovery be conducted with no one present except persons designated by the court[.]" See the text of Rule 26 for more.
:)
Rule 26(c) provides that, when certain prerequisites are met, "the court
Long story short - like I said, the court is just applying the rules and common sense. The RIAA is going to kick and scream about it, but there's nothing out of the ordinary about what just happened.
Yes, but the RIAA says this is the very first time this has happened to them. So I wouldn't diminish its significance. I predict that this decision will be the gold standard for future hard drive analyses in the RIAA v. Consumer litigations, and that the RIAA is not at all happy with it, since the RIAA's ability to manipulate the results of the analysis is greatly diminished. These are not the kind of lawyers that are on a quest for the truth.
A similar, slightly more restrictive, decision was handed down awhile back in Atlantic v. Andersen in Oregon, but the RIAA fought it, kicking and screaming. The judge wound up letting the RIAA have the hard drive. They found nothing, but still haven't turned in their report and still haven't dropped the case either. Most likely they'll claim that Ms. Andersen, a disabled, impoverished woman who never even used file sharing in her life, switched the hard drives on them, as they're now claiming with Marie Lindor, a home health aide who has never even used a computer.
Ray Beckerman +5 Insightful
Now that this ruling has occurred, and has been made available publicly, most defendants who are represented by lawyers won't be handing anything over without a similar protective order.
Ray Beckerman +5 Insightful
I do believe that they have had communications with the hard drive experts which they have never disclosed to their adversaries, which they were required to disclose. They have an erroneous conception of (a) what communications with their experts are "privileged" and (b) what it means for a communication to be privileged. They think anything they're afraid of getting out there is privileged; the law doesn't agree with that. They think that if they think something is privileged it doesn't have to be mentioned at all; the law is that even if you think a communication is privileged, you are supposed to disclose its existence in a privilege log, and let your adversary know about it, and let the Court decide if it's privileged or not.
In UMG v. Lindor, they were supposed to disclose all documents concerning MediaSentry's investigation. They turned over some printouts MediaSentry had made, and a privilege log falsely claiming privilege for three engagement agreements between the RIAA and MediaSentry. They never turned over a single memo, email, invoice, letter, or any other form of communication between MediaSentry and the RIAA or its counsel. Do you really believe that there was no such communication? I don't.
I have seen a great deal of sharp practice and frivolous conduct by the RIAA's lawyers, and I do expect it to start catching up with them, now that a handful of litigants are starting to push back.
Ray Beckerman +5 Insightful
There are probably references galore to those files' existence on your sys drive. Do you run a media player from your sys drive? Do you run a p2p app from your sys drive? If on MS Windows, do you browse to your media files using Windows Explorer? All of these activities will leave a history trail as evidence of a media file's existence.
It would actually be pretty difficult to run a system that used media files but accumulated no traces of them. Every app that touches media in any way would need to be run in portable mode, and those apps themselves would need to be launched in a way that didn't generate any MRU entries.
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