Dallas Buyers Club Obtains Sanctions Where Defendant Skips Deposition


Source: DALLAS BUYERS CLUB, LLC v. DOE-67.170. 167.29, Dist. Court, D. Oregon 2015 – Google Scholar

Dallas Buyers Club is a plaintiff in a number of copyright infringement cases across the United States. In this case, it obtained an order requiring Julia Baldino to participate in a non-party deposition. After some back and forth the court ordered Baldino to give a deposition. Baldino disregarded the order of the court and the court awarded “Dallas reasonable expenses, including attorney fees, incurred in seeking compliance with the court order.”

Baldino denied downloading the movie but her efforts to avoid being deposed were not a good idea. This excerpt shows the lengths to which copyright trolls will go to ruin someone’s life.

 

“On May 6, 2015, the court granted Dallas’s motion for leave to issue a Rule 45 subpoena allowing Dallas to depose Baldino on matters related to access to, and use of, the IPA (the “May Order”). Dallas’s multiple attempts to personally serve Baldino with the Rule 45 subpoena at her place of employment were unsuccessful. (Crowell Decl. dated May 21, 2015 (“May 21st Crowell Decl.”) ¶ 5.) Baldino’s co-workers were “very uncooperative,” refusing to confirm or deny Baldino’s employment. (May 21st Crowell Decl. ¶ 5.) On May 22, 2015, the court granted Dallas’s motion to permit alternative service of the Rule 45 subpoena on Baldino, including service by United States Mail or Federal Express.

Dallas accomplished service of the Rule 45 subpoena on Baldino at her employer’s address by United States Mail on June 2, 2015. (Crowell Decl. dated June 12, 2015 (“June 12th Crowell Decl.”) ¶ 6, Exs. 1, 2.) The Rule 45 subpoena, and an accompanying letter, advised Baldino of her deposition scheduled on June 12, 2015, at 1:30 p.m. at the offices of Dallas’s legal counsel in Salem, Oregon. (June 12th Crowell Decl. ¶ 8.) Baldino did not appear for her deposition. (June 12th Crowell Decl. ¶ 8.) Dallas immediately moved for an order compelling Baldino to respond to the Rule 45 subpoena and allowing service of such order by United States Mail. After providing Baldino time to respond to Dallas’s motion and not receiving any response, the court granted Dallas’s motion by minute order on July 20, 2015, directing “Julia Baldino of Corvallis to respond to plaintiffs subpoena for a FRCP 45 deposition. . .” (the “July Order”).

Dallas mailed a copy of the court order compelling her attendance at a Rule 45 deposition to Baldino at her place of employment on July 20, 2015. (August 24th Crowell Decl. ¶ 5.) In an accompanying letter, Dallas indicated a desire to complete the deposition within twenty-eight days and asked Baldino to contact Dallas’s legal counsel to schedule the deposition. (August 24th Crowell Decl. Ex. 1.) On July 28, 2015, having received no response to the July, 20, 2015 letter, Dallas mailed to Baldino, again at her place of employment, a Rule 45 subpoena setting a deposition date of August 19, 2015, at 3:30 p.m. and a letter offering to reschedule the Rule 45 deposition based on Baldino’s availability. (August 24th Crowell Decl. Ex. 2.) Dallas asked Baldino to contact its legal counsel by telephone or email with her available dates and advised Baldino “[s]hould you fail to appear or cooperatively reschedule I will be forced to move for sanctions.” (August 24th Crowell Decl. Ex. 2.) Baldino did not attempt to reschedule her Rule 45 deposition and did not appear for the deposition scheduled on August 19, 2015. (August 24th Crowell Decl. ¶ 13.)[1]

Dallas filed their motion for order to show cause seeking Rule 37 sanctions on August 24, 2015. On August 27, 2015, the court set a show cause hearing for September 21, 2015, at 10:00 a.m. and mailed a copy of the order to Baldino at her place of employment. On September 10, 2015, James E. Geringer filed a notice of appearance on behalf of Baldino. Baldino appeared for her Rule 45 deposition on September 18, 2015.

At her deposition, Baldino admitted to being the subscriber for the IPA at issue but denied downloading the Movie. (Baldino Dep. 12:6-17; 19:12-20:15.) She provided the names of current and past roommates, and those residing in the lower apartment in the last eighteen months, all of whom used the IPA during the relevant period. (Baldino Dep. 7:8-8:4; 8:13-9:3; 15:10-16:7.)

Baldino identified her current address as 188 North Jefferson Alley, Eugene, Oregon, and represented she has lived there since March 2014. (Baldino Dep. 6:11-15.) She acknowledged receiving the March 2015 letters from Dallas and directing her roommate to write “return to sender, does not live here” on the envelope. (Baldino Dep. 26:12-27:12.) Baldino explained she knew the letter came from a lawyer, but she did not know what the letters were for and did not want anything to do with a lawyer. (Baldino Dep. 27:13-15.) Baldino confirmed Dallas had her correct work address, she received mail from Dallas at that address, and she has unopened letters from Dallas which she received at work. (Baldino Dep. 28:20-30:5.) She represented she rarely looks in her mailbox at work and it is quite possible some of Dallas’s letter are still there. (Baldino Dep. 34:7-14.) Baldino was told a process server attempted to serve her at work but when she contacted him by telephone, he indicated he did not have anything for her. (Baldino Dep. 32:3-17.)

Baldino testified she received the Rule 45 subpoena served June 2, 2015, when she returned from a two-week vacation on June 22, 2015 (Baldino Dep. 32:18-24; 33:5-6.) On two occasions, Baldino called Dallas’s counsel after receiving a letter and left a message and return phone number but never spoke to anyone about rescheduling her Rule 45 deposition. (Baldino Dep. 36:23-37:13.) She did not attempt to contact Dallas’s counsel by letter or email. (Baldino Dep. 37:16-23.) Baldino received letters from the court and Dallas in her mail box at work directing her to appear at a hearing but did not open them until after the August 19, 2015, date had passed. (Baldino Dep. 39:3-40:3; 42:20-25.) Baldino explained she ignored this matter because “I just wanted it to go away because I didn’t do anything. I didn’t want to be involved in this because I didn’t do anything and I don’t know who did.” (Baldino Dep. 43:7-13.)”

Comment: Baldino may well be right that one of her roommates downloaded the movie without paying for it. This opinion demonstrates the obvious – when copyright trolls are involved they will spare no expense to inflict misery on other people.

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