shouting loudly

In response to a sternly worded letter threatening a costly countersuit, the RIAA’s attorney dropped a peer-to-peer suit against a mourning family.

The letter, sent yesterday via email, got the RIAA to drop the suit on the same day.

The letter’s author, Attorney Merl Ledford III, has created a veritable treasure-trove of the kinds of things many of us have long wanted to say to the RIAA. Examples include:

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.

At the time of inspection, we will expect your clients to be prepared to dismiss all claims with prejudice. The pleadings may be e-filed from my office the same day. Although dismissal will not avoid your clients’ exposure to attorneys’ fees under the Copyright Act, it will certainly mitigate damages to Mr. and Mrs. Merchant and the possibility of escalating the issues by counter-claim on federal grounds that have been successfully pleaded in other states as well as on pendant California claims that have, thus far, tempered your clients’ California zeal for litigating in this state. …

Your office has a duty of good faith independent factual investigation and legal research sufficient to support a finding of probable cause to sue.

In Williams v. Coombs (1986) 179 Cal. App. 3d 626, the California Court of Appeal held that attorneys who participate in the filing or maintenance of litigation without probable cause are personally liable for malicious prosecution of a civil action. …

I know of no facts on which a good faith finding of probable cause by either your clients or your law firm could be based to support a claim for relief against Mr. Merchant.

It is well documented that your clients’ reliance on MediaSecurity (an admitted “non-expert;” UMG v. Lidor, East Dist NY No. 1:05-cv-01095-DGT-RML) and its overall method of identifying P2P copyright infringers is wholly unreliable and inadequate. …

Your clients apparently argue that Mr. Merchant’s failure to respond to “settlement” demands justifies their lawsuit without other basis on which a finding of probable cause to sue could be claimed. You devoted the bulk of your letter advocating that position. As you know, however, that posture is repugnant to both Rule 408, Fed.Rul.Evid. and California Evidence Code §§ 1152 and 1154.

The Evidence Code sections are quite clear: settlement negotiations of all kinds may not be used to prove the validity of any claim or defense. Mr. Merchant has and had no more duty to respond to attempts to “sell” him one of your clients’ boilerplate, non-negotiable $3750 settlements than he has to return cold calls from pushy life insurance salespeople. 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 will burn.

Your client take the position that my middle-aged, conservative clients should speculate regarding the identity of persons your clients’ claim used their AOL account to download pornographic-lyric gangsta rap tracks as predicate to possible case resolution. In an age of Wintel-virus created bot-farms, spoofs, and easily cracked WEP encrypted wireless home networks (among other easy hacks), the only tech-savvy response to such a request is, “You’ve got to be kidding.” The extensive press that has been generated over computer security (and the insecurity of Windows XP and its predecessors) underscores the complete absence of facts on which probable cause to sue my clients could be established and your clients’ willingness (even insistence) that others be implicated in Big Music’s speculative, “driftnet” litigation tactics. Sorry: Mr. Merchant cannot and will not expose himself to still more litigation by speculating. …

Your reminder about preservation of evidence, of course, cuts both ways. Since my client’s hard drive completely exculpates him, functionally compels dismissal, and opens the door to substantial recovery, he is doing everything in his power to preserve and protect his evidence. In our part of the world, that is a mid-six to low seven figure piece of computer gear. …

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.

If you are or ever intend to become an attorney, you should learn how to lay this kind of smack down. Likewise, if you’re ever sued by the RIAA, and if you can afford it, I recommend you call Mr. Ledford or figure out a way to find somebody half as rugged. Of course, that’s a big if: Ledford’s retainer is a mere $6,880.25.