Defendant Sanctioned For Discovery Tactics

There is a growing tendency of defendants in BitTorrent litigation to demand excessive discovery with the idea they can make cases too expensive for plaintiffs. It is a neat idea, but fails in practice for a number of reasons, not the least of which is you have to pay to play that kind of game. And some defendants are writing checks they can’t cash.

Some things parties need to remember include that a requesting party needs to pay reasonable costs for discovery. It might only be $0.25 per page, but if you ask for 100,000 pages just to force a rights holder to do all that work, at the end of the day there is going to be a $25,000 bill just for the paper.

Another point is that using BitTorrent to copy works is a willful infringement of rights. All the time and expense of producing those 100,000 pages will be added on to the award at the end, making it maybe another $25,000. And those defendants that think they can run up a bill and then have it discharged in bankruptcy may be in for a shock. In Sailor Music v. Walker, No. 14-6012, (8th Cir. 2014) the courts have found that when you willfully infringe you are “maliciously” denying the copyright holder of royalties and thus the infringement is not discharged in bankruptcy.

Back to the initial requests that needlessly drive up these costs, the courts are starting to nip these in the bud. In the case of Malibu Media, LLC v. Michael Harrison, (1:12-cv-01117, S.D. Ind.) the defendant was just ordered to pay $7,000.00 for making such requests.  And while a $7,000 bill half way through the case may be a bitter pill for a defendant, it is probably better than an extra $50,000 added on to what they would pay at the end.  And that case is not yet over.

 

Relevant Order: Malibu Media, LLC v. Michael Harrison, 1:12-cv-01117, Dkt. 262 (S.D. Ind., October 23, 2014)

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