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Lawyer's Blog Posts Not Sanctionable, Court Says

At his blog Recording Industry vs. The People, New York lawyer Ray Beckerman makes no bones about his distaste for the recording industry and its spate of file-sharing lawsuits. But his blog posts about the industry, even as he defended against one of its copyright lawsuits in federal court in New York, did not constitute bad faith conduct that would warrant sanctions, a magistrate-judge has decided.

Plaintiffs also accuse defendant’s counsel of misconduct, stressing statements he made on his personal blog that now appear to have been inaccurate. ... Throughout their submissions, they fault defense counsel for taking actions that, in their view, were intended "to thwart Plaintiffs' search for the truth," such as objecting to plaintiffs' discovery demands and moving to compel discovery, to preclude evidence, or to quash or narrow plaintiffs' subpoenas. ... Although defendant’s counsel took an unusually aggressive stance and, at times, veered into hyperbole and gratuitous attacks on the recording industry as a whole, I do not find clear evidence of bad faith on counsel’s part.

The Oct. 9 report and recommendation from U.S. Magistrate-Judge Robert M. Levy in Brooklyn came in the file-sharing case brought by the music industry against Marie Lindor. The industry sued Lindor, a home health aide, in 2005 after it traced an IP address allegedly used for file sharing to her home. The discovery process that followed, by Magistrate-Judge Levy's description, was "long and contentious."

Levy's report and recommendation involved the latest stage in that lengthy litigation, a motion by the recording companies to sanction Lindor and her counsel Beckerman and to dismiss the case without prejudice to their ability to refile it at a later time. They sought to dismiss the case because they learned through discovery that the computer allegedly used for the file sharing had been discarded and could not be inspected.

Levy concluded that Lindor had not shown bad faith that would justify sanctions. "This court is intimately familiar with the length and tenor of this litigation and with the combative tone that has predominated since its inception," he wrote. "Although I am concerned that defendant and her counsel were less than forthcoming at times, both sides bear some responsibility for escalating the hostilities and turning what should have been a routine file sharing case into an unnecessarily protracted dispute."

Although he declined to recommend sanctions, Levy agreed with the music industry that it should be able to dismiss the case without prejudice, even as he acknowledged that the likelihood of re-litigation "is minimal."

Posted by Robert J. Ambrogi on October 13, 2009 at 02:44 PM | Permalink | Comments (0)

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