Your client should carefully consider whether it has probable cause to proceed at this point. Mr. Merchant’s hard drive is available for immediate, carefully supervised inspection by your client; a carbon copy of the drive has been made by technicians to insure that the evidence is well backed-up.
I have evidence of one letter dated June 5, 2005 from an attorney in your firm who is not licensed to practice law in California to Mr. Merchant claiming copyright infringement and demanding settlement negotiations. There is no other record of any kind.
Your office has a duty of good faith independent factual investigation and legal research sufficient to support a finding of probable cause to sue.
Such facts were known or reasonably should have been known to you and your law firm before suit against Mr. Merchant was filed. Thus, unless you and your office undertook additional independent investigation to identify Mr. Merchant as a person who actually has engaged in copyright infringement by illegal downloading, good faith basis for a Rule 11-compliant probable cause finding consistent with the Williams line of cases cited above simply did not exist to file the action. . . and does not exist now for it to be maintained.
If your client (and your law firm?) are seeking probable cause shelter in a settlement negotiations house of straw (as suggested by your March 23 letter), all of you should consider the prevailing winds of the Evidence Code before making yourselves too comfortable. Straw is will burn.
It is not too late to correct your clients’ (and your law firm’s) mistakes.
2. Apology on your firm’s letterhead by your supervising partner for inappropriately filing and maintaining an action against Mr. Merchant without probable cause and for the emotional hardship that such litigation caused;
Once the case is moved to the Fresno Branch, your clients should consider cleaning up their complaint. The FRCP and collateral estoppel from other RIAA law and motion matters require much greater specificity in pleading than your clients provided in the complaint I reviewed. Dates of the alleged downloads, which plaintiff (or affiliate) holds which copyright to which track, etc. must be specifically pleaded and proven. You are as familiar as I am with the results in other cases where RIAA’s general allegations have been challenged. Let’s get over that hurdle without unnecessary law and motion practice.
Thank you for your continued professional courtesy. It is no fun becoming a litigation target as the result of your clients’ widely-discredited tactics. Although I have a client to represent, I will do everything I can to keep that aspect of the case at the lowest level possible. You have a hard-nosed client to represent too; and I completely respect that.
Slam, bang and fold!
The lawyer of one of RIAA’s victims managed to send a letter to the RIAA’s lawyers so striking they immediatly folded and filed for voluntary dismissal.
The best thing is that this letter can be used as a boilerplate for other victims of the RIAA’s lawsuit-mania.
The full letter can be read here.
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