Sunday, September 11, 2011

Messy Mass Litigation in the USA - "staggering chutzpah involved" - Should Canadian Courts use "assessors" in some cases?

A recent dramatic development in the USA shows just how messy some mass file sharing litigation can become in that country.

According to Ars Technica, "A federal judge has fined Texas lawyer Evan Stone $10,000 for sending out subpoenas and then settlement letters to people accused of sharing a German porn film called Der Gute Onkel—all without the judge's permission."  Here's the ruling.

The Judge stated that:

To summarize the staggering chutzpah involved in this case: Stone asked the Court to authorize sending subpoenas to the ISPs. The Court said “not yet.” Stone sent the subpoenas anyway. The Court appointed the Ad Litems to argue whether Stone could send the subpoenas. Stone argued that the Court should allow him to – even though he had already done so – and eventually dismissed the case ostensibly because the Court was taking too long to make a decision.10 All the while, Stone was receiving identifying information and communicating with some Does, likely about settlement. The Court rarely has encountered a more textbook example of conduct deserving of sanctions. (emphasis added).
An interesting aspect of this ruling is that the Court appointed three attorneys ad litem (the “Ad Litems”) to represent the Does. The "chutzpadik" attorney was ordered to pay their costs in bringing the motion for sanctions.

The subpoena process is very different in the USA than in Canada, where it is mercifully much less susceptible to misuse or abuse.

However, it may be worth considering that Federal Courts Rule 52 allows a Federal Court judge to appoint a neutral "assessor" in certain types of situations to provide impartial expert advice to the Court. If no ISP or other entity is prepared to look out for the potential John and Jane Does in these types of situations, at least with respect to assessing the sufficiency of the evidence for the production order, this procedure may be worth considering.

Indeed, the late Gordon F. Henderson specifically recommended the use of "assessors" in appropriate circumstances in IP cases. Historically, they had been used mainly in admiralty cases, but there is no inherent reason why their use should be so limited.  This is discussed at page 41 of his 1991 report entitled Intellectual Property Litigation, Legislation and Education. (I was privileged to have worked very closely with him on that prescient document).


No comments:

Post a Comment