The time between filing the lawsuit and the trial is used to prepare for trial. To prepare a case for trial, the litigants may conduct “discovery.” Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. The goal is to learn everything that you can about your opponent’s case, even if it may not be admissible at the trial, as long as the discovery appears reasonably calculated to lead to the discovery of admissible evidence.
Some of the discovery is obtained via written methods, which will be addressed here. Discovery via other means will be addressed in a future blog entry.
As previously discussed, federal courts require the parties to provide “Initial Disclosures” to each other at or within 14 days after the parties’ Rule 26(f) conference unless a different time is set by stipulation or court order. After that, each party decides what discovery tools it will use.
Written discovery may be conducted through:
Rule 31. Depositions by Written Questions – This seldom-used discovery tool is like an oral deposition except the questions and responses are in writing. While it’s a cheaper method to obtain information from someone who isn’t a party to the case, your attorney can’t follow up on questions and the respondent may take time to carefully craft a response. But if you need information that is fairly straight-forward, this can be a useful method.
Rule 33. Interrogatories to Parties – This discovery method is to ask other parties to answer questions in writing. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories. Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath. Interrogatories are a great way to obtain preliminary information from another party.
Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes – This discovery tool allows a party to ask other parties or anyone else to produce and permit the requesting party to inspect, copy, test, or sample any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form or any designated tangible things. The kinds of documents requested in a copyright infringement lawsuit are copies of the infringements, correspondence, and business records.
Rule 36. Requests for Admission – While technically not a discovery method, this tool is used to ask the other party to admit to certain things so to eliminate issues that are not in dispute, so that further discovery can be directed to only those matters need to be resolved at trial. If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest. For example, a photographer plaintiff may ask the defendant to admit that it published a photograph in a book. The remaining issue for trial may then be whether the use was a fair use.
Objections – Those who are responding may object to any discovery requests on certain grounds, such as the request is vague, argumentative, ambiguous, overbroad, burdensome, oppressive, or not likely to lead to admissible evidence. The grounds for objecting to an interrogatory must be stated with specificity. If a respondent asserts and objections, the parties must try to resolve the dispute whether the discovery request is appropriate. If they can’t resolve their differences, the party requesting the discovery can ask the court for assistance through a motion to compel the discovery.
Effective use of written discovery tools allows the parties to determine the other side’s case so that each can prepare more effectively for trial. In the process, it may encourage the parties to settle when they uncover the pros and cons of their case.
In his efforts to battle copyright infringement, he has sent DMCA Takedown Notices to YouTube via YouTube’s online form. But YouTube has replied that it requires a corporate email address (instead of his gmail address) and a publicly-documented phone number (he has a cell phone):
Thank you for your notification. We require verification that you are affiliated with the corporate entity listed as the copyright owner in your notice. Please understand that content will remain live on the site until we have received this information. In order to verify your position at your business, please forward this message to your corporate email address and then re-forward to copyright@youtube.com, preserving the ticket number in the subject line. Corporate notifications may not be accepted from generic email providers (Gmail, Hotmail, Yahoo! Mail, etc.) In addition to this, please provide a publicly listed telephone number on which we may contact you – including documentation (such as a URL link) of the publishing of that number. Please note that under DMCA Section 512(f), any person who knowingly materially misrepresents that material or activity is infringing may be liable for damages. Abuse of the copyright notification process will result in the termination of your YouTube account.
- The YouTube Team
But the DMCA doesn’t require this information. Instead, it requires only that the Notice:
Be in writing;
Be signed by the you, as the copyright owner, or your agent (your electronic signature is sufficient);
Identify the copyrighted work that you claim has been infringed (or a list of infringements from the same site);
Identify the material that is infringing your work;
Include your contact information;
State that you are complaining in “good faith;”
State that, “under penalty of perjury, that the information contained in the notification is accurate;” and
State that you have the right to proceed (because you are the copyright owner or the owner’s agent).
So Alex asked YouTube:
Out of curiosity, since the DMCA makes no mention of a copyright infringement notification having to include a corporate email address, on what legal grounds do you demand one? As best as I can tell, if I don’t provide YouTube such an address, I’ve still satisfied the requirements of the DMCA, and YouTube would lose the DMCA protection and be liable for the infringement.
And YouTube replied:
Hi there,
Thank you very much for your notification. The content has been removed.
As previously reported, Congress asked the U.S. Copyright Office (“CO”) to investigate the handling of small copyright claims. As part of the process, the CO recently conducted hearings in New York and last week in Los Angeles. Of note, the U.S. Patent and Trademark Office also is looking into small clams for patent and trademark matters.
I was honored to be on each of the panels at the LA hearings. Jacqueline Charlesworth, Senior Counsel to Register of Copyrights, and Catherine Rowland, Senior Counsel for Policy and International Affairs for the CO, led the hearing. A variety of interested persons attended, including representatives from NPPA (Alicia Calzada), Independent Film and Television Alliance, the National Writers Union, California Lawyers for the Arts (Alma Robinson and Erin Kunze), Peermusic (an independent music producer), and APA (Michael Grecco).
The panel members discussed the issues related to the possible tribunal, including the nature of tribunal, voluntary versus mandatory participation, the location of the tribunal or tribunals, the claims, defenses, and damages that would be litigated in the tribunal and how. Constitutional challenges seem to be the biggest hurdle to establish such a tribunal. But, in sum, the panelists appeared to deem a one-day mini trial or small claims hearing (similar to state court small claims matters) to be viable options.
The panels were recorded and a transcript of the hearings will be available to the public. The CO will take under advisement the panelists’ suggestions and will produce a report in September 2013. More information about the process is available at www.copyright.gov/docs/smallclaims.
The Copyright Office is extending the deadline for filing comments in response to its October 22, 2012, notice of inquiry regarding issues relating to orphan works and mass digitization. Comments are now due by 5:00 p.m. EST on February 4, 2013. Reply comments are now due by 5:00 p.m. EST on March 6, 2013. To submit comments, go to www.copyright.gov/orphan.
Join me at the Practicing Law Institute’s Basic Negotiation Skills 2013 Workshop scheduled for January 14, 2013 in San Francisco and via live webcast. Details are available at:
The Copyright Office is investigating potential alternatives for handling copyright claims that have a relatively small economic value. As part of the process, the Office conducted hearings in New York last week and will be in Los Angeles on November 26 and 27. More information about the hearings is available at www.copyright.gov/docs/smallclaims.
I’ll have the honor of being on the panels for the LA hearings and need your input. What are your thoughts on the creation of a small copyright claims tribunal?:
Join Carolyn E. Wright as she leads a small group of photographers for her 4th workshop at the Silver Salmon Creek Lodge in Lake Clark National Park, Alaska, to photograph Coastal Brown Bears (large grizzly bears), puffins, other wildlife, and beautiful landscapes. We will have some of the best available photographic access to wildlife. There are no crowds and no platforms. At times, you may be standing a few feet from the bears. Get more information. Spaces are extremely limited! Contact Carolyn to sign up today!!!
As previously reported, the Copyright Office is investigating potential alternatives for handling copyright claims that have a relatively small economic value. As part of the process, the Office is conducting hearings in New York on November 15 and 16 and in Los Angeles on November 26 and 27.
I will attend and report on the hearing in Los Angeles. Please let me know at photoattorney (at) gmail (dot) com if you will attend the hearing in New York and would report the results here. Also let me know if you will be at the LA hearing — I’d love to meet you there!
Welcome to the website for the Law Office of Carolyn E. Wright, LLC. The information here is for educational purposes only and does not constitute legal advice.
