RIAA Wants Student Deposed On School Day

NewYorkCountryLawyer writes "In a Houston, Texas, case, UMG v. Hightower, the RIAA has served a subpoena on the defendant's son, a high school student, on one day's notice, telling him to be at a lawyer's office at 9:00 a.m. the next day, a school day, for a deposition. The defendant's lawyer objected (PDF)."

Prays?

[jakosc (649857)]

From the Motion to Quash:

Defendant prays that the court grants this motion

Prays?? Is that what's necessary now?

Re:Prays?

[FlatLine84 (1084689)]

I dunno, but this excuse beats the "My dog ate my homework" line.

Re:

[aadvancedGIR (959466)]

I don't quite remember (sorry, I don't live in the USA). Isn't Texas one of the state where you can't work as a government official if you're a bloody atheist?

Re:Prays?

[Frymaster (171343)]

I don't quite remember (sorry, I don't live in the USA). Isn't Texas one of the state where you can't work as a government official if you're a bloody atheist?

i don't know about the 'bloody' part, but article 1 section 4 of the bill of 'rights' of the texas constitution states that people may not hold office if they don't "acknowledge the existence of a Supreme Being".

the full text is:

"No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being."

my source is here [state.tx.us].

Re:Prays?

[Elemenope (905108)]

And while I'm not sure if that segment of the Texas con. has specifically been challeneged, but other states that have similar provisions have had them struck down unanimously by the USSC [Torcaso v. Watkins (1961)]. The Article VI language preventing religious tests or oaths for federal office was ruled to apply to the states.

Re:Prays?

[hax0r_this (1073148)]

Yes, I did some research on the topic last year and it seems that Texas doesn't enforce that clause in order not to dirty their image. If they were to enforce it they would be challenged, and if they took it all the way to the Supreme Court they would lose there, so rather than going through all that they just keep the clause for the warm fuzzy feeling it gives them, but don't bother to enforce it.

Re:Prays?

[BrokenHalo (565198)]

I knew a Texan once. He was so big that when he died, no-one could make a big enough coffin to bury him in.

So they gave him an enema, and buried him in a shoe-box...

*ducks* :-D

Re:Prays?

[Xtravar (725372)]

There are nuts everywhere. Most don't become too nutty until you start pointing out things that are wrong and differences that nobody noticed before.

The Texas constitution was made a long time ago by the people of the time. So were the original designs for US currency, and protocol for swearing on a bible before testifying in court. Do people look at currency and think, "Gee golly, it's right! In God I trust!"? Do they swear on the bible and actually feel compelled to tell the truth more so than otherwise? No.

Most nonsense that people complain about is left over tradition. Yes, sometimes tradition has to go. Other times, it doesn't, as it really means nothing to the people anymore. The moment someone complains about something like the Texas constitution, it starts a shoving battle between people who feel like their culture is being attacked and people who feel the need to fix something that isn't broken. IMO, in some cases it's better to let tradition and culture, remnants of the past, fade out silently than to attack them and renew interest in them.

Re:Prays?

[InsaneProcessor (869563)]

It is most often misstated but the bottom line here is that there is nothing in the United States constitution stating "separation of church and state". The constitution states that the government shall not tell the public what religion they MUST practice. If one reads and understand plain English, this would be understood and not contorted into something that it is not.

Atheism is as much a religion as not collecting stamps is a hobby.

Re:Prays?

[ameoba (173803)]

While it's great fun to argue the constitutionality of such of law, what are the chances that an atheist actually could get elected to any position of importance in TX?

Re:Prays?

[bazorg (911295)]

he acknowledge the existence of a Supreme Being."

Michael Jordan is real enough for me to sign that contract.

Re:Prays?

[Bogtha (906264)]

article 1 section 4 of the bill of 'rights' of the texas constitution states that people may not hold office if they don't "acknowledge the existence of a Supreme Being".

No it doesn't. Read it again. It says that people who acknowledge the existence of a supreme being are not subject to any other religious requirements. It doesn't say anything about people who do not acknowledge the existence of a supreme being.

It's a statement restricting what the government can demand of public officials who believe in a deity. It's practically the opposite of a requirement to hold office — it's a loophole, not a demand.

It's a stupid law alright, but it doesn't forbid atheists from holding office per se, it just doesn't give them the same loophole as everybody else.

Re:Prays?

[Bogtha (906264)]

You could probably get away with Diana Ross.

Re:Prays?

[wesmills (18791)]

I do live in Texas, and the use of the word "pray" in a legal document, at least in the American legal system, does not imply communications with a religious deity. "Pray," as a verb, has at least two meanings that are distinctive here:

4. to make earnest petition to (a person).
5. to make petition or entreaty for; crave

(See: dictionary.com [reference.com])

The legal "pray" simply is a formal way to ask the Court for an action. You will find this phrase [google.com] in many [google.com] legal filings, not just in Texas courts.

Thanks for the slam, though; always good to see the myths and legends preserved.

Re:Prays?

[gEvil (beta) (945888)]

What, pray tell, is your problem with the word?

Re:Prays?

[eln (21727)]

humor, noun: a comic, absurd, or incongruous quality causing amusement

oblivious, adjective: see FooAtWFU

Re:Prays?

[sjf (3790)]

The words court, curia and curate are cognates. Early European courts were indeed held in church. Hence 'pray' is not strictly secular.
(Of course, the origin of the word curia is even earlier and during roman times simply meant a division of the people, then the term was applied to the people meeting as a body in order to make civil and judicial decisions. It is through the Catholic church that "curia" acquired its eclesiatical meaning.)

School Day == Work Day?

[rsmith-mac (639075)]

Uhh, I hate to even sound like I'm agreeing with the MAFIAA on anything, but when exactly are they supposed to depose him if not on a school day? The school week and the work week are pretty well aligned, and forcing them to either work on a weekend or wait until he's on vacation is stretching things. Their actions are certainly deplorable, especially giving a one-day notice, but doing it on a school day isn't one of those deplorable actions.

Re:School Day == Work Day?

[tomstdenis (446163)]

How about do it after class? Unless it's a serious deposition (bah music lawsuit != worth ditching school) it can wait till after. Or better yet, bring the lawyer to the school, do it during a lunch break.

Why does the music industry feel it should tamper with the education of our minors just to placate some facile legal action?

Shows what you know

[Mateo_LeFou (859634)]

"Why does the music industry feel it should tamper with the education of our minors just to placate some facile legal action?"

Dude, get a clue: these are *pirates, they don't care about education. All they care about is stealing, stealing, stealing other people's intellectual property.

If anything is tampering with their education, it's the alien viruses in their brains, which impel them to download our songs for *nothing, thereby descrating our intellectual property. The same intellectual property provided for in the Constitution, section IV, which says

"Intellectual property rocks. We should have lots of it."

Re:

[rob1980 (941751)]

I suppose scheduling the deposition for after 3pm is probably out of the question.

Re:School Day == Work Day?

[pla (258480)]

and forcing them to either work on a weekend or wait until he's on vacation is stretching things.

THEY want his deposition. Not the other way around.

Why should he suffer an inconvenience to suit their schedule?

In the same situation, if I had to lose a day's pay to humor the RIAA, I'd feel mightily pissed off. OTOH, I have very little doubt that some hungry young lawyer would work OT on the RIAA's dollar to take the deposition on Saturday or some weeknight.

Re:School Day == Work Day?

[by Anonymous Coward]

Why should he suffer an inconvenience to suit their schedule?

Because this is one of the RIAA file sharing lawsuits. Making people suffer is their primary objective. The greater inconvenience in the initial stages, the less likely someone will actually challenge them. This is the RIAA saying "We can make life miserable for you and your entire family, and it's completely legal. So cough up whatever amount of money _we_ think is fair, and we won't keep you dangling in legal hell for the next decade."

Re:School Day == Work Day?

[hazem (472289)]

Or lose good money paid as tuition. Let's suppose he's paying $2000 for each class and it meets 16 times (a semester), he's losing $125 for each class session they make him miss.

If they're going to force him out of class for their benefit, they need to pay him for his losses.

They work weekend anyway.

[GodInHell (258915)]

Lawyers work weekends as a matter of course. Asking them to put off the deposition till a mutually useful time is no injustice - giving 24hrs notice is.

-GiH

Re:School Day == Work Day?

[mass (65691)]

The day in question was one in which the student was required to show up to take the TAKS [wikipedia.org] test, a state-wide standardized test that's required for graduation.

Re:School Day == Work Day?

[rah1420 (234198)]

At the risk of getting ensnared on your hook, you could've read the article and discovered that for yourself.

Re:School Day == Work Day?

[cprael (215426)]

The 24 hour notice thing is called abuse of process. It goes beyond the fishing expedition aspects, and gets into "now we're going to use this to screw up your life."

BTDT.

Re:School Day == Work Day?

[UnknowingFool (672806)]

Uhh, I hate to even sound like I'm agreeing with the MAFIAA on anything, but when exactly are they supposed to depose him if not on a school day? The school week and the work week are pretty well aligned, and forcing them to either work on a weekend or wait until he's on vacation is stretching things. Their actions are certainly deplorable, especially giving a one-day notice, but doing it on a school day isn't one of those deplorable actions.

Well special provisions are afforded to minors as opposed to adults. Also one of the objections was that the deposition would be during school hours. Certainly the plaintiff could have done it on a weekend or after school hours, but didn't do so.

Reading the motion, it appears that the subpoena was done in a very sloppy manner which explains the short notice. It appears that the plaintiff tried to email the subpoena (not legal from what I recall) and to the wrong attorney at first. The plaintiff finally sent a subpoena to the defendants home with less than 24 hours. Now, if it is true that the plaintiff's attorney failed to deliver a subpoena in a timely manner, they should have moved back the deposition to accomodate. It appears that they didn't do that either.

Re:School Day == Work Day?

[BlueNoteMKVI (865618)]

How about some time after 3 PM? That's when school lets out around here - most businesses are open until at least 5. The motion also specifically noted that the student was supposed to take the TAKS test today. TAKS is our statewide standardized test which must be passed for promotion to the next grade or for graduation at the end of high school. If he misses the TAKS test he'll have to make it up at some point, forcing him to miss another day of school. TAKS days are only ~5 days out of the school year depending on grade level. Asking for a deposition on a non-TAKS day would be much less of a burden.

Re:School Day == Work Day?

[ec_hack (247907)]

when exactly are they supposed to depose him if not on a school day?

Well, it's not just any school day they picked. It's TAKS testing day - a statewide test in Texas that has to be passed to graduate from high school. They picked one of the worst possible days of the year to compel him to show up. They are either evil or ignorant, in my opinion.

Re:School Day == Work Day?

[LoveGoblin (972821)]

They are either evil or ignorant, in my opinion.

These are not mutually exclusive.

In Other News...

[stevens (84346)]

An RIAA lawyer today tipped poorly at the diner where he eats breakfast.

June Dawson, 43, waited on him this morning. She is a single mother of two, battling cancer. She was not enthusiastic about the tip: "He left a stinking dime. Next time I'm going to spit in his eggs."

The RIAA did not respond to enquiries at press time.

Go figure.

[Mockylock (1087585)]

RIAA is basically becoming an automated bot nowadays, anyway. I'd be surprised if they don't show up in court as robots with brief cases as well.

Someone needs to start doing something about RIAA's boundaries and arrogance, considering they're getting so careless with who they're attacking nowadays. How long will it be, before Judges and courtrooms are sick of these petty charges, and start only allowing the larger criminals who actually sell and distribute?

Right now, you're paying less when distributing marijuana or posessing cocaine, than you are to host MP3's.. EVEN if you're a child!

There HAS to be a line drawn somewhere.

Re:Go figure.

[mpcooke3 (306161)]

How long will it be, before Judges and courtrooms are sick of these petty charges, and start only allowing the larger criminals who actually sell and distribute?

Or they could spend their time prosecuting price fixing media cartels.

Wow

[EvilGoodGuy (811015)]

RIAA is realy getting out of hand with their bullying. It's good to hear news about their losses, but their abviosly winning enough to keep harassing.

Why would they need a deposition anyway?

[aadvancedGIR (959466)]

With their own lawyer and without giving enough time to prepare anything. There is only one possible explanation: what they really want is an intimidation session.
Since he would not be facing a policeman but the opposition lawyer, can he simply walk away anytime he wants or refuse to sign anything?

What happened?

[jakosc (649857)]

Also, I just realized '9:00 am the next day' was two days ago, so...what happened?

hmm

[nomadic (141991)]

The fact that it's scheduled on a school day is no big deal. I've never seen a depo scheduled on a weekend.

One day notice is pretty weird, though. Traditionally you clear dates with opposing counsel as professional courtesy, or you at least set it far enough in advance to work things out.

TAKS Test

[FerociousFerret (533780)]

The real kicker here is not that it is a school day, but it is during Texas Assessment of Knowledge and Skills (TAKS) test week as well and the one day notice.

RIAA's fishing expedition

[t35t0r (751958)]

The defendent's attorney said:

The subpoena is being used for patently improper purpose, namely as a fishing expedition by plaintiffs'

That sums up the RIAA's entire strategy.

School's wasted on the kid anyway

[Shadow Wrought (586631)]

His dad is obviously a music pirate, otherwise the RIAA wouldn't be bringing the lawsuit. Since we all know that pirates' sons always takeover the family business, it doesn't take a genius to see that the only thing this kid needs from school is enough math to count all the billions of doallars he's going to steal from the hard working middle managers of the music business.

They're doing him a favor. Really.

It's intentional

[dkgasaway (468339)]

I'm convinced the school-day deposition request is very intentional. They want the other kids to know the boy missed an important school day because he was in hot water over file sharing. It's all part of their perverse scare tactics.

Response:

[debrain (29228)]

Say your lawyer is busy. You are entitled to your choice of legal representative.

Serving a notice for a sworn deposition on one day's notice is contrary to the rules of professional conduct, and can (and should) result in penalties against the lawyers' clients in court, as well as with with the lawyer regulatory disciplinary authority.

How to avoid RIAA entanglements

[kimvette (919543)]

1. Quit downloading RIAA music
2. Do not share RIAA music (help prevent the spread of mindshare) (ugh, I hate buzzwords)
3. Do not buy RIAA music (or if you do, stick to back catalogues from USED CD/record stores)
4. Do not tune to new RIAA music on the radio so you can avoid being tempted to buy new product from RIAA

By doing so, RIAA members will eventually either go broke or go independent, and the independent labels will rise in popularity as their buying power increases beyond that of the dying RIAA cartel.

Judge Atlas will sort this out.

[by Anonymous Coward]

OK - I am posting anonymously because I am a lawyer. First - When you subpoena someone to appear for deposition, Rule 30(b)(1) says you must give them reasonable notice. The Court is very, very likely to say that 24 hours notice is not reasonable notice. Second - It is extremely bad form, though not actually improper, to just notice someone for deposition without talking to them first about the date. Just leads to exactly this kind of problem. Third - RIAA is represented by lawyers who know better. Gardere Wynn is a Really Big Firm. They know better than to behave this way in front of Judge Atlas. Shame on them. Federal Court practices demands a higher standard of behavior on the part of the lawyers. Fourth - You have to properly serve the witness. Emailing the mom's lawyer in an attempt to serve the kids is not proper service. However, it does make sense to email mom's lawyer and ASK whether he would accept service so that you don't have to send a process server out to serve the kids. All in all, I would not expect Judge Atlas to be pleased with Gardere, Wynn's behavior here. Judge Atlas is a good judge. I'd expect her to make RIAA play according to the rules here. One of the great things about federal court is that the judges are generally of very high caliber, are extremely/proudly independent, and don't take no shit off of nobody. As long as you play by the rules, are prepared and don't waste the judge's time the solo lawyer with a brand new law license will be treated the same as hordes of grey haired lawyers from a mega-firm.

Re:School day

[Himring (646324)]

It is odd. Lawyers, and especially the riaa, are so typically thoughtful....

Re:3:30 is far better

[cyphercell (843398)]

I think either way, having to show up at court in less than 24 hours is terrifying at any age. Personally, I hate showing up for traffic tickets with a months advance. This just seems like an attempt at disrupting the defendants home life.

Re:Just say no?

[Shadow Wrought (586631)]

You automatically lose the case.

I may not be a lawyer, but I know this to be false. Don't give the RIAA any more power of fear than they already enjoy. Deponents can object, if a witness refuses the moving party can ask for a motion to compel, there are lots of rememdies other than automatically losing. The biggest problem isn't that the kid is going to miss school, its that they are attempting to take his deposition with only 24 hours notice. In my experience as a paralegal, again- IANAL, that is simply poor if not abusive practice.

What happens when a disposition is blown off

[Pi3141592 (942724)]

Dispositions are required attendance, which is why a subpoena is generally issued to enforce them. If he blows off showing up, the consequences (if any) are entirely up to the judge who issued the subpoena.... who, if particularly pissed off that day, could find him in contempt of court and sentence him to jail time. Under the circumstances, though, I can't see any (reasonable) judge doing this.