I was working on a future article when I decided to revisit the issue of Copyright Troll depositions conducted prior to naming/serving a defendant. Actually this article also applies for those depositions that could occur in the discovery phase of a trial – highly unlikely IMO. This topic rehash came about when CopyrightClerk posted an article about Troll Timothy Anderson being granted Early Discovery and Rule 30 Deposition authority in 12 copyright infringement cases in Virginia. Disc_Rule30Depo_01272(VA)
This is not a new thing for the Trolls, as Prenda tried this on a couple CA cases previously. Some judges will allow it, while others tell Plaintiff to just name and serve the defendant if you are serious. Here are some articles dealing with the issue of depositions. Gibbs Whines Sneaky Troll Judge Denies Request
Detail on FRCP – Rule 30 Deposition from the Cornel University Law School Web site. One interesting aspect of Rule 30 is section (2)(A)(i):
(2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(2):
(A) if the parties have not stipulated to the deposition and:
(i) the deposition would result in more than 10 depositions being taken under this rule or Rule 31 by the plaintiffs, or by the defendants, or by the third-party defendants;
Section (i) appears to be the reason why Troll Anderson asked the court to consolidate the 11 “Openmind Solution” cases. Note: On 27 Nov 12, the court (Judge Rebecca Smith) denied his motion to consolidate the cases. MotionDenied_Consol_01272(VA) So this denial may actually kill the Rule 30 Depositions, as it is extremely unlikely that more than 10 depositions will come from each separate case. That would mean at least 11 people per case is expected to be deposed. It would have to be a big family (7 members) and at least 4 guests used the Internet connection at the date/time of the alleged infringement. As the order granting the Rule 30 deposition is still in place, it may take a defendant to challenge this order.
This attempt to consolidate the cases could have allowed him Rule 30 Deposition authority, but it may have other consequences. As the Troll has now stated these cases are all related, ALL parties are likely jointly and severally liable for this alleged infringement. MemoSuppConsol_01272(VA) All of these defendants may have information that is relevant to the defense of each other. Also of note is the settlement details of any of these defendants (if they settle) is relevant to the judgment against any of the remaining defendants who lose/default. If this is a large swarm hash file group, these cases can be relevant to other cases located in and outside this jurisdiction.
As many of us know, the 5th Amendment of the US Constitution protects us against “involuntary” self-incrimination of a criminal act. If you chose to “voluntarily” admit to a criminal act, then that is your problem – Yes people do voluntarily confess at times. Note: As these cases are a civil matter, you will not be given a “Miranda” warning/advisement.
But then the Troll hiding in the shadows yells out, “That only applies to ‘criminal’ acts you freetard! This is a civil matter.” On 20 Oct 1924, the US Supreme Court, in McCarthy v. Arndstein, ruled that it applies to both criminal and civil matters where the answer “might” subject the deposed party to “criminal” prosecution.
The Government insists, broadly, that the constitutional privilege against self-incrimination does not apply in any civil proceeding. The contrary must be accepted as settled. The privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. The privilege protects a mere witness as fully as it does one who is also a party defendant. It protects, likewise, the owner of goods which may be forfeited in a penal proceeding. See Counselman v. Hitchcock, 142 U.S. 547, 563-4.
“But Copyright Law is only a civil matter.” NO. Copyright Law has civil and criminal aspects to it. Sections 506 & 507 address the criminal aspects of it. Criminal Code – 18 USC § 2319 – Criminal infringement of a copyright. Note: For the criminal side of copyright infringement, the statute of limitations is 5 years. It doesn’t matter if the Troll/Plaintiff is only pursuing this in a civil court, there is the possibility it could be taken up as a criminal matter. As far as the US Supreme court is concerned, this is all that is required to allow a person to invoke his right not to possibility incriminate themselves.
Now if you happen to find yourself facing a deposition subpoena, I would strongly suggest you get an attorney who knows about Copyright Trolls to represent you. Please don’t let your ego tell you that you are smarter than the Troll. You are going into their “home turf” and are at a disadvantage. I was a seasoned investigator in my “past life” and have conducted many interviews and interrogations, so I know firsthand the dangers involved.
If you do find yourself in a copyright infringement deposition alone and are not comfortable in answering certain question, you have every right to invoke your right against self-incrimination. It cannot be used against you in a trial. Note: the Troll may take it as a sign of weakness and then push harder by actually naming and serving you. It still does not change the fact that their evidence is weak (Public IP address) and they have to find some sort of supporting evidence or they have a good chance of losing a judgment.
Here is a video from a previous Fightcopyrighttrolls.com article – It is long, but well worth watching.
DieTrollDie :) “The hard part about playing chicken is knowin’ when to flinch.”