MPAA Argues That Sony Emails Shouldn't Be Used As Evidence In Google Lawsuit

from the oh-really? dept

Mon, Jul 6th 2015 1:37pm — Mike Masnick

We've already covered some of the details coming out in the flurry of legal filings in the dispute between Google and Mississippi Attorney General Jim Hood (helped along by the MPAA which financed and ran Hood's investigation). However, there is one little tidbit mentioned towards the end in one of the MPAA's many filings resisting subpoenas from Google to turn over internal documents. The MPAA's lawyers at Jenner & Block not only argue that much of the material being requested is "privileged," and thus allowing the requests will lead to lawsuits over the legality of those requests, but further argues that the emails in the Sony hack are similarly privileged and should not be available for use in lawsuits:

Quite apart from the policy concerns that arise if lawyers are allowed to use confidential documents first obtained by hackers, the fact that some privileged documents were published in the wake of the Sony hack will trigger subsequent litigation over privilege assertions. Privileged documents obtained by hackers and later published nevertheless remain privileged. Presumably, given Google’s apparent interest in the documents, Google will contest the privilege assertions.

This seems like a pretty longshot legal argument. It's pretty typical in business settings that once documents are out there in the public, any legal restrictions on them vanish. The idea that these documents, widely discussed publicly and in the press, would magically be banned from use in a legal case that was brought on because of those revelations is a huge stretch.

268872480 Mpaa Response (PDF)268872480 Mpaa Response (Text)

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Filed Under: evidence, jim hood, mississippi, privileged information, sony hack
Companies: digital citizen's alliance, google, jenner & block, mpaa

51 Comments

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SolkeshNaranek (profile), 6 Jul 2015 @ 1:45pm

"stretch"
"The idea that these documents, widely discussed publicly and in the press, would magically be banned from use in a legal case that was brought on because of those revelations is a huge stretch."

Everything else in the "reality" of the MPAA is a stretch for any normal person... why should this be any different?
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Baron von Robber, 6 Jul 2015 @ 1:48pm

"Privileged documents obtained by hackers and later published nevertheless remain privileged."

If there is one thing Hollywood is good at is make-believe.
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That One Guy (profile), 6 Jul 2015 @ 2:00pm

Someone's been taking notes
Seems like they're trying the same argument that the government does, where even when something is widely known to the public, it still remains 'classified'.

Now, in both cases, I can certainly understand why they would argue this point, as it eliminates probably the most damning information possible to bring, that being their own data and communications. Remove that and you take away a very strong pieces of evidence, damaging if not entirely eliminating cases as the central piece of evidence is barred from use.

Hopefully the judge will shoot this attempt down by reasonably pointing out that public documents are not 'privileged' ones, and that it's fair to use them as evidence.
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David, 6 Jul 2015 @ 2:01pm

Uh WHAT?
Privileged documents obtained by hackers and later published nevertheless remain privileged.

Uh, are they privileged because the MPAA is the attorney of Hood, or is Hood the attorney of the MPAA? Both would indicate the improper collusion that Google wants to show. So this argument is of the "Your Honor, the reason this evidence cannot be admitted is because I'm guilty as charged" kind.

This is likely to go down so well.
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Anonymous Coward, 6 Jul 2015 @ 2:03pm

Take a combined look at all the troubles Google is having with copywrite and the DMCA. Then look at the attempt to get a state attorney general into the action through court. The paper trail leads right back the MPAA. Problem with this is it exposes a willful plan to do this not only in Mississippi but in other states as well.

Plainly the problem the MPAA now has is the further exposure of just how far the rabbit hole goes with their plotting and meddling. Especially after it's been shown they had direct involvement in the actions of that attorney general. The real issue here appears that the MPAA does not want caught in the web of it's own scheming.
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Anonymous Coward, 6 Jul 2015 @ 2:08pm

Plus if Google were hacked and documents against it released you know the MPAA would argue that they should be allowed to use them.
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ChurchHatesTucker (profile), 6 Jul 2015 @ 2:25pm

Re: Someone's been taking notes
Watch the government declare them secret.
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Baron von Robber, 6 Jul 2015 @ 2:32pm

MPAA: "What we need is a attorney general that is so greedy, that thinly veiled bribery doesn't make them blanch. Somebody so stupid they can't even write legal documents without us writing it for them. But where would find such a person......................Aha! Mississippi"
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Anonymous Coward, 6 Jul 2015 @ 2:33pm

Google has them by the taint, now they are just squirming like the wriggly parasites they are trying to get out.
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Digitari, 6 Jul 2015 @ 2:39pm

wow
no ootb here either, how....odd!
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Anonymous Coward, 6 Jul 2015 @ 2:48pm

if denied, all Google needs to then do is ensure that they are told the truth, the whole truth and nothing but the truth. we all know that no one who is a member of or a party to the MPAA would lie! then i suppose if the situation were to be reversed, would the MPAA go after Google? HELL YEAH!!!!

then also think about the various trials the MPAA and others have been involved in and the information that they have not just asked for but DEMANDED is given to them (i seem to believe the on going case against Dotcom being one of them) so as to aid their case.

funny how the game changes when the advantage could easily be taken by the opposite side to the entertainment industries!!
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Lord_Unseen (profile), 6 Jul 2015 @ 2:53pm

Re: wow
Sorry, I'm not as fast as OOTB at this stuff.

Obviously, the documents were secret and should always be secret. Just because some hackers STOLE the documents doesn't mean they're not still Sony's property and Google shouldn't be allowed to use them. If you don't agree then obviously you're a Google SHILL.

How'd I do?
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Anonymous Coward, 6 Jul 2015 @ 3:07pm

Your Honor
I would like to have this evidence barred on the grounds that it makes me look bad.
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PRMan, 6 Jul 2015 @ 3:18pm

Re: "stretch"
Well, they do live in a fantasy world...
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Anonymous Coward, 6 Jul 2015 @ 4:19pm

This is AWESOME!

Welcome back, 4th Amendment!
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mattshow (profile), 6 Jul 2015 @ 4:25pm

Because I just love to get yelled at and told I'm an idiot, I'll put forth the opposing argument: this doesn't sound like THAT ridiculous an argument to me.

Where privilege exists, it can usually only be waived by the privilege holder. I know there have been some Canadian cases that have held that an accidental disclosure of documents does not waive privilege over those documents. So an argument that getting hacked does not waive privilege doesn't sound THAT ridiculous.

Of course, I write this without doing any research into those specific cases or any relevant US cases on the law of privilege.
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dr evil, 6 Jul 2015 @ 4:31pm

wait, is it a copy or ?
I agree with the MPAA, the ORIGINAL document is subject to privilege while they have it in their control .. I disagree about the privilege on the copy, since it is NOT the original and belongs to others. Does this mean I can beat any rap by just releasing some documents on it myself? Maybe Sony should sue Sony for failing to secure such important information. Funny, I encrypt all of my own documents, and those aren't nearly as interesting (or damning) as Sonys. Perhaps they could use someone with brains working for them?
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madasahatter (profile), 6 Jul 2015 @ 4:39pm

Re:
If the collusion is proven the MPAA could be nailed as criminal organization.
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Anonymous Coward, 6 Jul 2015 @ 5:04pm

Re: Re: wow
You are far too coherent.
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Karl (profile), 6 Jul 2015 @ 5:40pm

Re: Re: wow
How'd I do?

Not terrible, but it has far too few KEY WORDS in ALL CAPS, with "phrases" followed by double-dashes -- and lots of exclamation points!!!

Still, A for effort, and it's definitely more coherent than the real thing.
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Anonymous Coward, 6 Jul 2015 @ 5:47pm

Re: Re: wow
Not enough "greater than" symbols. You also need to have a condescending summary of what you want to say, condensed into the post subject, so it shows up whenever people respond to you.

Honestly, I wish people who kick the out_of_the_dog would remember to remove his subject taglines, so all of his useless drivel need not be repeated.
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Anonymous Coward, 6 Jul 2015 @ 5:56pm

Their biggest fear
The thing that makes them worry most is that internal emails going over collusion not only on this, but on Kim Dotcom and other Piratebay prosectutions and dozens of things we weren't aware they were involved in.
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Anonymous Coward, 6 Jul 2015 @ 6:20pm

Re: Your Honor
It's essentially an admission that the evidence probably works against them, that there is evidence that works against them.
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Anonymous Coward, 6 Jul 2015 @ 6:32pm

Re:
I think the question here is how long until the justice department comes after Hood for some sort of abuse of office charge.
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Anonymous Coward, 6 Jul 2015 @ 7:20pm

Re: Re:
I think the question here is how long until the justice department comes after Hood...
Don't kid yourself.

Please. It doesn't help things to spin wild fantasies.
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Anonymous Coward, 6 Jul 2015 @ 7:22pm

Re: Re:
MPAA could be nailed as criminal organization.
Right.

That would cut off a significant campaign contribution flow, wouldn't it.
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R.H. (profile), 6 Jul 2015 @ 7:38pm

Re: Re: Re:
Don't forget, American federal judges aren't elected. So, there's no campaign to finance.
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Anonymous Coward, 6 Jul 2015 @ 7:53pm

Re: Re: Re: Re:
Don't forget, American federal judges...
Don't forget that U.S. Attorneys, and their assistants (AUSAs) belong to the executive branch.

The judiciary is a different branch of government. The judges do not bring cases before grand juries.
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ahow628 (profile), 6 Jul 2015 @ 8:21pm

Re:
In case their client base is running thin, Indiana is known as the Mississippi of the North. Greg Zoeller is an idiot and would be happy to break any law necessary.
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ahow628 (profile), 6 Jul 2015 @ 8:29pm

Re:
But in this specific case, I think the whole issue is that Google is saying that Hood and the MPAA were working in cahoots and Hood and the MPAA are saying, "No way, dude!!!" Meanwhile they are saying that the communication between an attorney and their client is privileged and shouldn't be disclosed. All to say, the reason they don't want it disclosed is the exact reason they are being sued by Google in the first place.

Basically, this sounds like a last ditch effort to stay the execution.
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David, 6 Jul 2015 @ 9:17pm

Re: Re:
Well, Hood is claiming attorney/client privilege in order to have the evidence not admitted. There is no attorney/client relation between a DA and a private corporation without collusion.

To speak in zombie movie terms, this is like trying to have no brain and eat it, too.
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jrfoster01 (profile), 6 Jul 2015 @ 9:30pm

Privilege
If they are referring to legal professional privilege, and there is a valid claim for that, then the documents cannot be used.

LPP can only be waived by the party who enjoys the benefit of that privilege (ie the client). It cannot be waived simply because it has been leaked. That is sound law.
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Anonymous Coward, 6 Jul 2015 @ 9:58pm

Re: Re:
Greg is that you?
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That One Guy (profile), 6 Jul 2015 @ 10:03pm

Re: Privilege
Here's the funny thing though, at the same time as they're trying to invoke client-attorney privilege, both sides(Hood and the MPAA) are insisting that they had no connection to each other beyond maybe small chats, and certainly nothing that would be related to legal matters.

Their own claims mean that there is no client-attorney privilege to be invoked, unless they want to admit that either Hood was working for them, or they were working for Hood, and so far they've continued to insist that the relationship between each other was casual at best, despite the evidence to the contrary.
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Anonymous Coward, 6 Jul 2015 @ 10:57pm

Re: Re:
This is less likely than aliens announcing to the world that they exist, they're here, and the Men in Black was a documentary all along.
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PaulT (profile), 6 Jul 2015 @ 11:59pm

Re:
"Because I just love to get yelled at and told I'm an idiot, I'll put forth the opposing argument"

My experience on this site is that if you put forward an opposing argument that's backed with some kind of logic and/or evidence then you'll be dealt with in a polite debate, and even change some minds if your argument is convincing. The ones who get shouted down are regular trolls or people who come in here calling people names and/or blatantly lying. I think you'll be fine.

"I know there have been some Canadian cases that have held that an accidental disclosure of documents does not waive privilege over those documents"

Were those private or government documents? It varies between nations, but government documents often tend to be considered classified even after everyone in the world has read them, unless their public release was due to declassification.

But, the argument is ultimately a technical one rather than a logical one. Logic would dictate that a document can't really be considered privileged information once it's public, regardless of who released it. Legal/technical might dictate that unauthorised releases don't count against the document's status, but in reality it's public whether you like it or not.

I also don't know how the law works specifically in this example, but it depends on which side you're arguing from. Of course, the MPAA is going to argue to silliest legal definition regardless of reality.
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Anonymous Coward, 7 Jul 2015 @ 12:12am

Re: Re: Privilege
What I'd really like to see is the MPAA and Jim Hood plead the fifth.

And then whine about how they were denied due process rights.
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Anonymous Coward, 7 Jul 2015 @ 12:23am

40 of the 50 U.S. state's Attorney Generals signed an amicus last week in support of Jim Hood.

Rather surprised Google has only payed off 10 state ATs...
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Pragmatic, 7 Jul 2015 @ 5:06am

Re: Re: Re:
But it's entertaining nonetheless.
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Pragmatic, 7 Jul 2015 @ 5:10am

Re:
Oh! So they did: http://variety.com/2015/biz/news/google-mpaa-jim-hood-piracy-jack-conway-1201530911/
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Ed (profile), 7 Jul 2015 @ 5:13am

"Of course we're weasely lying SOBs with no morals and a total contempt for humanity and rule of law. But, you're not allowed to have that evidence proving we're weasely lying SOBs with no morals and a total contempt for humanity and rule of law." -- MPAA
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cpt kangarooski, 7 Jul 2015 @ 6:04am

Re: Re:
Well, as it happens we do have a similar rule. Rule 4.4 of the Model Rules of Professional Conduct (the ethics rules that attorneys in the U.S. are required to follow their state versions of) has this:
(b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.

It's really meant for situations where the opposing counsel's secretary accidentally sends something to the wrong people. When you get something like that, you're supposed to stop reading it when you realize what it is, and to tell the other side and return it.

For deliberate leaks by third parties, it doesn't provide great guidance.

You may also be interested in this: http://www.lexisnexis.com/communities/corporatecounselnewsletter/b/newsletter/archive/2013/09/02/att orney-client-privilege-in-the-age-of-digital-leaks-peeks-and-breaches.aspx
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Lex Noctem (profile), 7 Jul 2015 @ 7:10am

Re: Privilege
I'm a lawyer, but I'm not your lawyer. AC is right -- waiver of the privilege doesn't happen just because something is leaked. It has to be an intentional disclosure or really, really negligent. A massive hack by pro attackers isn't negligent.
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Anonymous Coward, 7 Jul 2015 @ 7:49am

Re: Re: Privilege
So, in this situation, who is the client and who is the attorney?

ooh, i see the problem, that looks bad either way.
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Karl (profile), 7 Jul 2015 @ 8:06am

Re:
Rather surprised Google has only payed off 10 state ATs...

It's the other way around. From the leaked emails, it was the MPAA that was (is?) funding multiple AG's across the country.

Jim Hood was just the most prominent. Also, at the time, Hood was the president of the National Association of Attorneys General. He set the tone for the rest of the state AG's. (His Presidential Initiative? "Protecting Our Digital Lives: New Challenges for Attorneys General.")

So, it's hardly a surprise that stat AG's would stand behind their leader.

Not only that, but state AG's have a long history of attacking Internet companies, and they don't want that to be threatened. This story has some details:
Attorneys General Close Ranks Against Google
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Anonymous Coward, 7 Jul 2015 @ 10:13am

Re: Re: Re:
Why not, as that is how the MPAA/RIAA operate.
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Anonymous Coward, 7 Jul 2015 @ 11:39am

Re: Re:
"It's the other way around. "

No it isn't.

You pirates are hilarious- whoring yourselves out to an Orwellian mega-corporation just so you can steal music and movies.

Are your parents aware of how pathetic you've become?
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Karl (profile), 7 Jul 2015 @ 12:53pm

Re: Re: Re:
No it isn't.

Exactly the response I'd expect from a child. No discussion of the evidence, no counter-evidence, just idiotic ad hominems and baseless, prejudicial insults.
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Anonymous Coward, 7 Jul 2015 @ 6:40pm

Re: Re: Re: Re:
I think it's funnier when you consider that he's been whoring himself out to an Orwellian government arm, the NSA - just so he can find people to charge them with movies and music they didn't steal.

It's pathetic.
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nasch (profile), 8 Jul 2015 @ 3:01pm

Re: wait, is it a copy or ?
I agree with the MPAA, the ORIGINAL document is subject to privilege while they have it in their control .. I disagree about the privilege on the copy, since it is NOT the original and belongs to others.

I doubt that's how privilege laws work. Otherwise if the prosecution somehow got a copy of a privileged communication between defendant and attorney, they could use it at trial. I'm hoping that is not the case.
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Lex Noctem (profile), 9 Jul 2015 @ 6:28pm

Re: Re: wait, is it a copy or ?
Nope, that's not how privilege works. Copies are covered.
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