Originally published in the New Daily Report, an ALM Media publication, on September 28, 2017.
By: Colby Hamilton
A subpoena being driven by attorney “paranoia” in a Georgia-based copyright violations case should be quashed, according to a motion filed in the U.S. District Court for the Southern District of New York on Wednesday.
William Rosenblatt, an expert witness in digital music cases, is trying to keep a one-time potential client from deposing him in Manhattan, over what he alleges is “the very epitome of litigation paranoia.”
Rosenblatt, represented by New Jersey-based Tenaglia & Hunt name attorney James Hunt Jr., says he was approached by Georgia-based private attorney David Lilenfeld as a potential expert witness in an ongoing copyright violations case, Atlantic Recording v. Spinrilla,
17-cv-00431, in the U.S. District Court for the Northern District of Georgia.
Lilenfeld’s clients operate a music website, Spinrilla.com, which has been sued by four record companies, including Sony and Warner Bros., over copyright violations. The companies allege that the defendant, Spinrilla owner Jeffery Copeland, knowingly allowed users to upload music copyrighted by the defendants that were then downloaded for free.
According to the motion filed in Manhattan federal court, Lilenfeld approached Rosenblatt in late August as a potential expert witness on behalf of the defendants. After initially expressing interest, Rosenblatt says that two matters that he’d already been engaged on, but which were unrelated to Lilenfeld’s litigation, arose shortly after their initial conversation. Given the new time constraints, Rosenblatt said he told Lilenfeld he wouldn’t be available, but went so far “as a courtesy to Lilenfeld” to make recommendations for other potential experts, according to the motion.
That’s when things took a turn, according to Rosenblatt. Allegedly believing Rosenblatt had been contacted and coerced by plaintiffs in the Georgia case—and refusing to believe Rosenblatt’s repeated denials to the contrary—Lilenfeld subpoenaed Rosenblatt for a deposition on Sept. 8 in New York City.
According to the motion, the subpoena demands copies of telephone records, emails and text messages over an eight-day period in August. Rosenblatt claims to have offered an affidavit that he wasn’t contacted by anyone, including the plaintiffs in the Georgia case, but was rebuffed by Lilenfeld. Through counsel, Rosenblatt says he then offered to provide the information under a series of conditions, including a promise that Lilenfeld would not contact any of the phone numbers, and that Lilenfeld never contact Rosenblatt again. Lilenfeld allegedly refused that offer as well.
Lilenfeld could not be reached for comment.
“Indeed, Lilenfeld’s invasion of Rosenblatt’s privacy knows no bounds,” the motion states.
Lilenfeld’s actions are an abuse of subpoena power, seeking irrelevant information that is private and confidential—including communications between Rosenblatt and third-party clients—while subjecting a nonparty in the original litigation to an undue burden, according to Rosenblatt.
Additionally, Rosenblatt asked the court for sanctions under Rule 45(d) for “this bizarre attempt to subpoena a person they sought to hire as an expert witness.”
“The subpoena served by defendants on non-party Rosenblatt is nothing more then a fishing expedition on an innocent non-party that has absolutely nothing to do with the underlying action and appears to have been pursued in bad faith,” Rosenblatt stated in the motion.
Rosenblatt’s counsel Hunt could not be reached for comment.