NewYorkCountryLawyer writes "The RIAA has been ordered to turn over its attorneys' billing records by March 26, 2007, in Capitol v. Foster in Oklahoma. The 4- page decision and order, issued in connection with the determination of the reasonableness of Ms. Foster's attorneys fees, requires the RIAA to produce the attorneys' time sheets, billing statements, billing records, and costs and expense records. The Court reviewed authorities holding that an opponent's attorneys fees are a relevant factor in determining the reasonableness of attorneys fees, quoting a United States Supreme Court case which held that 'a party cannot litigate tenaciously and then be heard to complain about the time necessarily spent by his opponent in response' (footnote 11 to City of Riverside v. Rivera)."
This is another win for little guys trying to defend themselves. Foster wanted the RIAA to pay her legal fees, they bulked trying to claim that her lawyer inflated his fees. The Judge basically called them to the mat and said that if they are spending [large sums of money] persecuting Foster, then she is entitled to have her expensive lawyer's fees paid. Inversely, if the RIAA was paying a first year law grad to handle the case all on their own, and Foster had hired a $2500/hr dream team, the Judge would likely come down in the opposite way.
This isn't a win, this isn't an anything. Wait until we see what the judge actually awards. He may decide "aww gee you guys sure spent a lot fighting this, you must have had a strong good faith belief in your claims, therefore Ms Foster isn't entitled to that much".
He may decide "you guys are assholes and I dont like you wasting my time, so bend over, here comes da gavel".
This news by itself means nothing. It's like a sports announcer announcing "and Manning throws the ball... " and then going to commercia
The throw is meaningless, we need to know if it's caught, fumbled, intercepted, or what.
Even your analogy misses the point. You can't fumble the throw. The next step can be one of only a few things, an incomplete pass (and we even know where the next play will be from if that happens), a completed pass (with the run or fumble or whatever after), or an interception. It can't be a running play. It can't be a fumble (except after the pass is complete, which is some future step not covered here).
This case has decided that there will be lawyer fees decided for the defendant. The plaintiff claimed the lawyers fees are too high. The judge said "oh, if they are so high, tell me what you spent so I can get an idea of what you think is fair for a side in this case." This presumes several things. First, the intention is to still award fees to the defendant, as originally stated. The claim of the fees being too high is being considered. If the fees the defendant claimed are in line with the actual expenses of the plaintiff, the award will stand. If they are not in line with the plaintiff, the defendant will have to defend the high charges.
As I see it, it is a win. We expect that the plaintiff's fees are high. That means that anything close to the legal fees can be named in the countersuit by all future defendants.
They never saw it as trivial. They just never expected to lose on it. They are seeing this as very very major. They brought in their top lawyer to try to stop the bleeding, but from what I can see he's just taken the situation from bad to worse.
Chalk one big one up for the good guys.
If this was trivial you wouldn't have seen ACLU, Public Citizen, Electronic Frontier Foundation, American Association of Law Libraries, and ACLU Foundation of Oklahoma come in with an amicus curiae brief explaining the importance of the attorneys fee award here.
In the UK an award of 1p damages would almost certainly lead to the plaintiff having to pay costs. If you go to the high court and you're awarded damages less than the maximum from the next court down then you usually have to pay expenses. Also if the defendant offers to settle and you are awarded less than the offer, you pay costs. It's fair.
This action by the RIAA is about precedent. They've almost certainly paid far, far more in legal fees than they stood to gain. The defendant would have been liable for such costs and the RIAA would have pursued them aggressively. They lost and they're trying to weasel out of paying costs, not because they care about the money (it's a drop in the ocean to them): it's purely punitive for them. Any expense and hassle they can cause will discourage people from exercising their rights to defend themselves. They don't care about losing a million or two on this case as long as it doesn't affect their other cases.
What it's about is: -the judge said the RIAA has to reimburse Ms. Foster for her reasonable attorneys fees -the RIAA said it wanted to challenge the 'reasonableness' of the fees Ms. Foster's lawyer charged -the judge says that the amount the RIAA paid its lawyers is relevant to seeing if Ms. Foster's lawyer charged too much
Don't be surprised if the RIAA now abandons its challenge to the 'reasonableness' of Ms. Foster's fees, rather than allow its own financial arrangements
You are so wrong. The last thing in the world the RIAA wants is for an opponent like Marilyn Barringer-Thomson to know (a) how much they pay their lawyers and (b) what the financial arrangement is with the lawyers. I imagine that they will stipulate to the reasonableness of Ms. Foster's fees now, rather than actually disclose the billing records.
Witty. Yet you forget that this is slashdot... you should've used a car analogy instead of a sports analogy. Woulda got more +1 insightfuls that way.:)
Court cases are about details. Most court cases, criminal or civil, do not always end in a Perry Mason moment. Little details can reveal much that becomes important later In this case, the amount of money and work that the RIAA has spent in one case can show much about their modus operandi . If they spend very little money or time on a lawsuit, does that not show that they really don't do their homework when sueing someone? Lawsuits are costly and take forever. If one of their lawyers is suing hundreds of people at once, how can that lawyer really get all the details right. They can't. Mistakes will be made. Other plaintiffs can use this information to show that the RIAA did not do the due diligence before filing (something which we expected but is now proved.) My two cents.
We can't. But purjury is a felony, and I presume that the attorney in question would rather not be brought up on those charges. A false set of books presented as evidence would be purjury.
We're just asking the MAFIAA to prove that these lawsuits aren't a legal scam, designed to put money in lawyer's pockets. How can we trust such an organization's motives if they won't tell us how much money their lawyers are making?
Because the person who presents the amounts will (hopefully) be a CPA, who would not only be risking contempt and perjury charges, but also losing their professional license.
I assume the records themselves would confidential, but is it acceptable to publish a summary of the hours? Are there rules about the level of detail allowed?
I hope this hurts them (the RIAA) in a place where they didn't want to be hurt. And that it somehow helps out in other trials as well. It least we might find out just how much effort they're willing to put into a case like this.
Now if you could only get a hold of the procedures Media Sentry is trying so desperately to keep secret.
It'll be interesting to see how much the RIAA is willing to spend on a single copyright infringement lawsuit. If they are putting huge resources into suing individual customers, it will look very bad on them.
Well, worse than they already look I guess. The public already sees these as David vs Goliath lawsuits. But now we'll be able to put a number on how big and bad Goliath really is.
Or if it's a very small amount per lawsuit, then it will show that they're not really researching enough per lawsuit to actually have a legitimate claim. This seems to be lose-lose for them, unless they've spent some "golden" number in between the two extremes (but what this number is will vary wildly in the eyes of different observers).
There's another downside to it for them: If the amounts are outrageous, and they still offer to settle for reasonably small amounts and/or any judgements in their favor does not cover their costs, it means the risk of illegal copying will be seen as low. They simply won't be prepared to or able to suffer the losses of large numbers of lawsuits if they lose large amounts of money on each lawsuit.
So it may turn out to dramatically reduce the deterrent effect of their threats to sue.
Is the RIAA now obligated to turn over this information (and presumably make it part of the public record), or do they have the option to refuse disclosure and simply pay the opposing legal bills without contesting the amount any further?
Naturally, ianal, but my guess is they can probably avoid disclosure if they scratch a check to Foster's lawyers. From my limited experience in litigation (I offer expert witness testimony in my field of expertise), usually it's fair game to cut and run when things turn against you. At this point, Capitol's best move probably is to just call butterfingers and pay up. No matter how they play this, they come out looking like fools. Their billings are either too large, in which case Foster gets her fees, or too small, and everybody knows they're running lean in these cases. There is no middle ground, by the way. It's either too much or too little. Finally, they still lose if they pay up without disclosure because the perception is that they are hiding one of the two aforementioned cases. The only advantage to them is that there's no telling which it is, which will keep up the guessing game for future defendants.
I don't mean to ask a stupid question, but I will anyway. Why will the amount necessarily seem too large or too small? Why isn't there a good reasonable middle number?
Actually, there are multiple ranges here: Those in industry, those for lawyers on the various sides, and the general public. Their ranges will all overlap, so that what may be middle ground to the industry group, may be high to the general public.
I suppose there's a small window of "about right" where the fees match the defense within about 10-15%, but that chance is pretty small, imho, without suspecting that they cooked the books. Actually, to most consumers, the fees will always be mind boggling. It's amazing how fast the legal fees on the simplest of cases can just destroy either/both sides. I happen to be a structural engineer, and if there is a dispute less than about $20k, it's usually not even worth filing. I'm not privy to all of the costs, but hours add up quickly, and lawyer hours are darned expensive. I'm usually the cheapest guy in the room, and it still costs a grand, minimum, if I'm going to be deposed, double that if I end up in the courtroom, too, and more than double again even if there's a simple onsite observation. Remember - these folks are usually fighting over $50k-$500k structures, and my fees alone could run 5-10% of the dollars in play on a small job. And, again, I'm the cheap one.
I didn't write the comment, but it's probably significant that they've already established that $4,000 is "enough" to settle the cases and to recover whatever was "lost" to the music bandits.
So, they are rational actors if they spend up to $4,000, and no more, to bring each complaint. But nobody wins all the time. If they expect to win, say 3 cases out of 4, then they can rationally drop only up to $3,000 per case, but no more.
The problem is, you can't get much lawyerin', research or expert assistance for $4,000... even less for $3,000.
So if they're spending a rational amount, then they aren't proceeding to court with very good data (a single, simple letter from an ordinary neighborhood attorney can cost $200 to $400).
And if they're spending lots more than $4,000, that's bad too. Nobody with clean hands and honest motives spends $40,000 to recover $4,000.
Civil courts can't do much more than award cash to fix boo-boo's. Considering that, the settlement amounts, and the cost of attorney-time, there's a strong suggestion that the RIAA has some unspoken motive and is simply using the court to advance it. That sort of thing doesn't look good at all, and IMO tends to catch the attention and ire of courts.
Look at how much stuff in the SCO case is 'under seal' and we don't get to see it. I strongly suspect that this information will not become public. (But IANAL.)
You're 100% on target. If they stipulate to the reasonableness of Ms. Foster's fees, then the issue becomes moot. Which is what I'm betting they will do, rather than let their adversary know the financial details of the relationship with the attack dogs... I mean attorneys.
One suggestion I've seen for making the legal system fairer is that the loser would pay the winner legal fees equal to their own. If you want to spend $2m litigating against someone, and they defend themselves, then if you win you are out of pocket $2m for legal fees. If you lose, then they get $2m. This encourages litigants to not spend more on legal expenses than the other can afford.
Y wins, gets Z$ from X + the greater of Attorney Fees(X, Y)
Currently there is no incentive NOT to sue. You sue, you lose, more often than not, you are only out Attorney Fees.
Further, I would remove plaintiffs from collecting "Punitive Damages" as those should go to the State or into a fund to compensate victims of similar crimes/losses, where there is no Plaintiff to be found.
As the current system is empowered, most people view lawsuits like a rigged lottery.
-- then only very very very rich people would ever dare to sue anyone. Sometimes people who aren't so well-off have cause to sue big wealthy corporations; under your system they would be absolutely totally screwed for life if they lost. The current system favours the incredibly wealthy; so does the system you propose.
I realize that it isn't for everyone, but there ARE enough people winning large awards to make it hard or impossible for doctors to get insurance in some states. For a high-profile example, John Edwards won a $2.75 million dollar award (the jury awarded $6.5 million but it was reduced on appeal) against a hospital for an infant born with cerebral palsy. He also settled for $1.5 million with the OB. If we forget for a moment the really... interesting tactics he used in the case and just assume that the docto
I believe that actually will happen, because the judge has specifically provided [blogspot.com] that Ms. Foster can supplement her fee application after the RIAA is done with its fake 'discovery' on 'reasonableness', and denied [blogspot.com] the RIAA's application to change that provision [blogspot.com].
Look, I'm no fan of RIAA, but this is judicial activism at its best. These records are clearly covered by attorney-client confidentiality and this order is going to get slapped down on appeal faster than you can say denied (IAAL).
So by that reasoning, how much Ms. Foster paid her attorneys is covered by attorney-client confidentiality, and RIAA should just shut up and pay the bill? RIAA decided to make an issue of Ms. Foster's attorney fees being unreasonable. The judge, in a "one person cuts the cake, the other person picks the piece" stroke of wisdom, decided to use RIAA's attorney fees as a measuring stick for what was reasonable.
No, not exactly. She's trying to recover the fees so that way she ends this with only a headache and no money lost or gained. They submitted how much her legal fees were, the RIAA complained and said it was too much, so the judge is saying, "And how much did you spend?"
It's very relevant if her fees were $10,000, the RIAA said it was too much, and then we find out they spent $50,000 suing her.
The post is only partly correct. Yes, a party normally cannot be compelled to divulge communications with counsel. This is an exception to/variation on that rule. First, no advice is being revealed, although perhaps some trial strategy (ie, an entry like, "research New York law on defenses to malicious prosecution") would be revealed. BUT, the substantive part of the case is over, so the other party gets no tactical advantage from seeing the billing records. Second, when the issue is attorney fees, parties have to produce the records to the court - simple as that. Here, the defendant (prevailing party, entitled to some award of fees) had to produce fee and cost records in order to ask for fee shifting. When plaintiff (losing party, facing the prospect of paying) objected to the reasonableness of defendant's request, the court decided to look at both sides' expenditures to get a sense of scale. No judicial activism (code for "a judge doing something I don't like") here, just a judge following SOP for fee requests.
Disclaimer: I am a lawyer, but I have NO involvement in this case whatsoever.
The fee arrangement isn't covered by attorney-client privilege. An attorney and a client conducting a business transaction (i.e., paying for the legal work) aren't protected, because it is only legal advice and the information the legal advice is based on that is protected.
These records are clearly covered by attorney-client confidentiality and this order is going to get slapped down on appeal faster than you can say denied (IAAL).
Yet again, this is proof that when someone says clearly, they're trying to snow you. Here [law.com]'s my narrow refutation - care to provide something of equal or greater value?
1. Whenever someone starts out "I'm no fan of RIAA, but......" that's a dead giveaway.
2. Any one with any legal knowledge knows that (a) attorneys' bills, statements, time records, and expense records are NOT privileged (b) the order is not an appealable order and (c) if it were appealable there is no basis for reversing it.
3. What rights and privileges is he/she/it talking about that were denied? The RIAA was a year in default in responding to the discovery notices. After the motion was made, it submitted its papers 2 days late, the judge accepted them anyway and read them carefully, and knocked down each frivolous argument the RIAA was making.
So? (Score:2, Interesting)
Re:So? (Score:5, Informative)
-Rick
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He may decide "aww gee you guys sure spent a lot fighting this, you must have had a strong good faith belief in your claims, therefore Ms Foster isn't entitled to that much".
He may decide "you guys are assholes and I dont like you wasting my time, so bend over, here comes da gavel".
This news by itself means nothing. It's like a sports announcer announcing "and Manning throws the ball... " and then going to commercia
Re:So? (Score:5, Insightful)
Even your analogy misses the point. You can't fumble the throw. The next step can be one of only a few things, an incomplete pass (and we even know where the next play will be from if that happens), a completed pass (with the run or fumble or whatever after), or an interception. It can't be a running play. It can't be a fumble (except after the pass is complete, which is some future step not covered here).
This case has decided that there will be lawyer fees decided for the defendant. The plaintiff claimed the lawyers fees are too high. The judge said "oh, if they are so high, tell me what you spent so I can get an idea of what you think is fair for a side in this case." This presumes several things. First, the intention is to still award fees to the defendant, as originally stated. The claim of the fees being too high is being considered. If the fees the defendant claimed are in line with the actual expenses of the plaintiff, the award will stand. If they are not in line with the plaintiff, the defendant will have to defend the high charges.
As I see it, it is a win. We expect that the plaintiff's fees are high. That means that anything close to the legal fees can be named in the countersuit by all future defendants.
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Re:So? (Score:4, Funny)
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Re:So? (Score:5, Informative)
Chalk one big one up for the good guys.
If this was trivial you wouldn't have seen ACLU, Public Citizen, Electronic Frontier Foundation, American Association of Law Libraries, and ACLU Foundation of Oklahoma come in with an amicus curiae brief explaining the importance of the attorneys fee award here.
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I believe it's perfectly legitimate to make a loss pursuing legal action.
One case in the UK a couple of years back, an actor sued a media organisation for libel. He claimed and was awarded 1p damages.
Legal fees on both sides were a little more.
The win in court was the important factor, not the financial reparation.
And as for many divorce cases..
Re:So? (Score:4, Insightful)
This action by the RIAA is about precedent. They've almost certainly paid far, far more in legal fees than they stood to gain. The defendant would have been liable for such costs and the RIAA would have pursued them aggressively. They lost and they're trying to weasel out of paying costs, not because they care about the money (it's a drop in the ocean to them): it's purely punitive for them. Any expense and hassle they can cause will discourage people from exercising their rights to defend themselves. They don't care about losing a million or two on this case as long as it doesn't affect their other cases.
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What it's about is:
-the judge said the RIAA has to reimburse Ms. Foster for her reasonable attorneys fees
-the RIAA said it wanted to challenge the 'reasonableness' of the fees Ms. Foster's lawyer charged
-the judge says that the amount the RIAA paid its lawyers is relevant to seeing if Ms. Foster's lawyer charged too much
Don't be surprised if the RIAA now abandons its challenge to the 'reasonableness' of Ms. Foster's fees, rather than allow its own financial arrangements
Re:So? (Score:5, Interesting)
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Re:So? (Score:4, Funny)
Witty. Yet you forget that this is slashdot... you should've used a car analogy instead of a sports analogy. Woulda got more +1 insightfuls that way. :)
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Re:So? (Score:5, Funny)
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Re:So? (Score:5, Insightful)
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Before the law changes there has to be widespread knowledge and outrage.
so my question (Score:5, Funny)
So my first question is, do they get a volume discount?
Re:so my question (Score:4, Funny)
yup.
it goes up to eleven.
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PURjury? (Score:3, Funny)
Is purjury like when your guilt is decided by a swarm of cats?
Re:PURjury? (Score:4, Funny)
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Transparency necessary for Credibility (Score:5, Interesting)
Re:Transparency necessary for Credibility (Score:4, Insightful)
-Rick
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Confidentiality Question (Score:4, Interesting)
Re:Confidentiality Question (Score:5, Informative)
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Hope (Score:4, Interesting)
Now if you could only get a hold of the procedures Media Sentry is trying so desperately to keep secret.
Could be horrible PR for the RIAA (Score:3, Insightful)
Well, worse than they already look I guess. The public already sees these as David vs Goliath lawsuits. But now we'll be able to put a number on how big and bad Goliath really is.
Re:Could be horrible PR for the RIAA (Score:5, Insightful)
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So it may turn out to dramatically reduce the deterrent effect of their threats to sue.
Question for the lawyers... (Score:5, Interesting)
Re:Question for the lawyers... (Score:5, Insightful)
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(Also, what is your field?)
Re:Question for the lawyers... (Score:4, Interesting)
I suppose there's a small window of "about right" where the fees match the defense within about 10-15%, but that chance is pretty small, imho, without suspecting that they cooked the books. Actually, to most consumers, the fees will always be mind boggling. It's amazing how fast the legal fees on the simplest of cases can just destroy either/both sides. I happen to be a structural engineer, and if there is a dispute less than about $20k, it's usually not even worth filing. I'm not privy to all of the costs, but hours add up quickly, and lawyer hours are darned expensive. I'm usually the cheapest guy in the room, and it still costs a grand, minimum, if I'm going to be deposed, double that if I end up in the courtroom, too, and more than double again even if there's a simple onsite observation. Remember - these folks are usually fighting over $50k-$500k structures, and my fees alone could run 5-10% of the dollars in play on a small job. And, again, I'm the cheap one.
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Re:Question for the lawyers... (Score:5, Insightful)
So, they are rational actors if they spend up to $4,000, and no more, to bring each complaint. But nobody wins all the time. If they expect to win, say 3 cases out of 4, then they can rationally drop only up to $3,000 per case, but no more.
The problem is, you can't get much lawyerin', research or expert assistance for $4,000... even less for $3,000.
So if they're spending a rational amount, then they aren't proceeding to court with very good data (a single, simple letter from an ordinary neighborhood attorney can cost $200 to $400).
And if they're spending lots more than $4,000, that's bad too. Nobody with clean hands and honest motives spends $40,000 to recover $4,000.
Civil courts can't do much more than award cash to fix boo-boo's. Considering that, the settlement amounts, and the cost of attorney-time, there's a strong suggestion that the RIAA has some unspoken motive and is simply using the court to advance it. That sort of thing doesn't look good at all, and IMO tends to catch the attention and ire of courts.
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Re: (Score:3, Funny)
Re: (Score:3, Interesting)
Re:One can only hope for this outcome.. (Score:5, Interesting)
X sues Y for Z$
X wins, gets Z$
Y wins, gets Z$ from X + the greater of Attorney Fees(X, Y)
Currently there is no incentive NOT to sue. You sue, you lose, more often than not, you are only out Attorney Fees.
Further, I would remove plaintiffs from collecting "Punitive Damages" as those should go to the State or into a fund to compensate victims of similar crimes/losses, where there is no Plaintiff to be found.
As the current system is empowered, most people view lawsuits like a rigged lottery.
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Re:One can only hope for this outcome.. (Score:4, Insightful)
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Re:This is judicial craziness (Score:5, Insightful)
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Re:This is judicial craziness (Score:4, Funny)
The first rule of lawyer fees is you don't talk about lawyer fees.
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Re:This is judicial craziness (Score:5, Informative)
The judge is now saying "put up or shut up."
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Re:This is judicial craziness (Score:5, Insightful)
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Re: (Score:3, Interesting)
It's very relevant if her fees were $10,000, the RIAA said it was too much, and then we find out they spent $50,000 suing her.
Re:This is judicial craziness (Score:5, Informative)
Disclaimer: I am a lawyer, but I have NO involvement in this case whatsoever.
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Re:This is judicial craziness (Score:4, Informative)
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These records are clearly covered by attorney-client confidentiality and this order is going to get slapped down on appeal faster than you can say denied (IAAL).
Yet again, this is proof that when someone says clearly, they're trying to snow you. Here [law.com]'s my narrow refutation - care to provide something of equal or greater value?
Re:This is judicial craziness (Score:5, Informative)
1. Whenever someone starts out "I'm no fan of RIAA, but......" that's a dead giveaway.
2. Any one with any legal knowledge knows that (a) attorneys' bills, statements, time records, and expense records are NOT privileged (b) the order is not an appealable order and (c) if it were appealable there is no basis for reversing it.
3. What rights and privileges is he/she/it talking about that were denied? The RIAA was a year in default in responding to the discovery notices. After the motion was made, it submitted its papers 2 days late, the judge accepted them anyway and read them carefully, and knocked down each frivolous argument the RIAA was making.
4. Ignore this troll.
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Re:hmm (Score:4, Interesting)
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