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Counsel Concerns

By ALM Staff | Law Journal Newsletters |
June 28, 2007

Downloading Suits/Rule 11 Sanctions. The U.S. District Court for the Northern District of Texas denied a defense motion in an Internet downloading case for sanctions against record-company plaintiffs' counsel. The court instead assessed sanctions against the defendant's lawyer. Atlantic Recording Corp. v. Heslep, 4:06-CV-132-Y. The record companies sued Diane Heslep, alleging copyright infringement by peer-to-peer file sharing. The district court noted: 'Heslep argues that Plaintiffs' attorneys should be sanctioned because she has established that she was at work at the exact date and time the amended complaint alleges she was online infringing on Plaintiffs' copyrights, that AOL has confirmed that she was not herself online at the specific date and time in question, and that AOL could not identify the specific computer in use at the date and time in question. The evidence suggests that these assertions are disingenuous, and they certainly do not support sanctioning Plaintiffs' attorneys.'

The court added: '[W]hether AOL can or cannot confirm what specific computer was on the internet on the date and time in question does not establish that Plaintiffs' attorneys committed sanctionable conduct under Rule 11 [of the Federal Rules of Civil Procedure] ' Moreover, the conduct of Plaintiffs' attorneys in attempting to resolve this dispute with Heslep has also been more than reasonable ' Rather, the court concludes that sanctions are appropriate against Heslep's attorney, Thomas Kimble. Among the many prohibitions contained in Rule 11, is one prohibiting an attorney from filing a motion for the purposes of harassment and unnecessarily increasing the cost of litigation.'

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