In Teter v. Glass Onion, Inc, 2010 WL 2945520 (W.D. Mo. July 22, 2010), the court considered a motion pursuant to Rule 37(c) of the Federal Rules of Procedure to exclude from evidence images culled from the internet and Internet Archive after the discovery cutoff.
Rule 26(e) of the Federal Rules of Civil Procedure provides:
(e) Supplementation of Disclosures and Responses.
(1) In General.
A party who has made a disclosure under Rule 26(a) — or who has responded to an interrogatory, request for production, or request for admission — must supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or
(B) as ordered by the court.
In Teter, the plaintiff requested all documents that were to be used at trial during a formal discovery request.
Rule 37(c) of the Federal Rules of Civil Procedure provides:
(c) Failure to Disclose; to Supplement an Earlier Response, or to Admit.
(1) Failure to Disclose or Supplement.
If a party fails to provide information or identify a witness as required by Rule 26(a) or 26(e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).
[ * * * ]
In this case, the materials were provided 20 days after the close of discovery. The court found that the images were publicly available to both sides from a public domain source, the adversary could not possibly be prejudiced.
I cover Discovery in Chapter 14 of the Copyright Litigation Handbook. Not every judge takes Teter's common-sense view. And Teter should not be seen as a free pass from a discovery cut-off. When discovery has already been produced and new materials come in, scan the new materials, privilege review/redact/log them, and get them out right away with a cover letter saying you are supplementing pursuant to Rule 26(e). Not every judge will permit documents produced after a discovery cutoff to be used in a trial.
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Showing posts with label motion in limine. Show all posts
Showing posts with label motion in limine. Show all posts
Saturday, September 4, 2010
Sunday, March 21, 2010
Why Did Congress Write the Copyright Act's Criminal Provisions Without Using the Words "Music Piracy"?
Daniel Defoe, Author of Robinson Crusoe - Attacked By Pirates Since 1703
IV. MOTION IN LIMINE REGARDING THE TERM “MUSIC PIRACY”
Defendants seeks to exclude any use of the terms “music piracy” from the jury. They argue that this term is not evidentiary, has no probative value, and is highly inflammatory such that it will create undue prejudice. The Government, in response, argues that this term would be highly probative of the Defendants' knowledge of the unlawful object of the conspiracy. The Court finds that, because this term was and is commonly used to refer to the conduct in question, it will be difficult for witnesses and lawyers to generate an adequate substitute during questioning. It need not, therefore, be entirely excluded. However, the Court invites counsel for Defendants to suggest any possible limiting instructions which, if offered to the jury, might mitigate any possible prejudice that the term might create.
I have litigated many copyright infringement cases without the need to refer to the word "piracy" though as a civil plaintiff it is a nice synonym referring to a person who makes multiple exact duplicates, rather than someone who borrowed portions of a copyrighted work. But it certainly is not necessary in a civil proceeding and would appear to me to be highly improper to use in a criminal proceeding.
From Wikipedia's definition of "Copyright Infringement"
Copyright infringement (or copyright violation) is the unauthorized or prohibited use of works covered by copyright law, in a way that violates one of the copyright owner's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.
For electronic and audio-visual media, unauthorized reproduction and distribution is also commonly referred to as piracy (an early reference was made by Daniel Defoe in 1703 when he said of his novel True-born Englishman : "Its being Printed again and again, by Pyrates"). The practice of labeling the act of infringement as "piracy" actually predates copyright itself. Even prior to the 1709 enactment of the Statute of Anne, generally recognized as the first copyright law, the Stationers' Company of London in 1557 received a Royal Charter giving the company a monopoly on publication and tasking it with enforcing the charter. Those who violated the charter were labeled pirates as early as 1603.
The legal basis for this usage dates from the same era, and has been consistently applied until the present time. Critics of the use of the term "piracy" to describe such practices contend that it is pejorative and unfairly equates copyright infringement with more sinister activity, though courts often hold that under law the two terms are interchangeable.
Let's get the prosecutor a thesaurus, call the crime by the name Congress selected in drafting 17 U.S.C. Section 506 and let's leave the pirate stuff to Johnny Depp.
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