Attorney Steve® - Strike 3 Torrent Defense Lawyer - 2020 Updates - Early Neutral Evaluations in Northern District of California

VIDEO:  Click here to hear Attorney Steve® the Copyright Lawyer, discuss preparing for an ENE.  Make sure to SUBSCRIBE to join over 20,000 other people who love our videos. 

Introduction

One of the promising sides of torrent adult pornography internet file sharing litigation is the ENE.  The ENE stands for "early neutral evaluation."  This is where an unbiased third party hears evidence and arguments from both attorneys in a case and provides them with valuable input that may help the parties either settle their case, or at least "sharpen the issues" as we say.  Here is some basic rules in regard to the Northern District Court of California.  Check the rules in your jurisdiction which may differ.

What are the Local ADR Rule 5 requirements?

After a copyright infringement lawsuit is filed, the court may order the parties to an ENE.  This takes places early on in a case and can be helpful to settle the case, especially if you were not the one who did the video download and sharing (yes, their technology for proving infringement is not always 100% accurate).   Innocent people can be dragged into the Court system.  The ENE can help make this point early on before each of the parties has to spend thousands of dollars in litigation fees.

According to the Northern District Court website:

(c) Content of Statement. The statements must be concise, may include any information that may be useful to the Evaluator, and must, unless otherwise directed by the Evaluator:

1. (1) Identify, by name and title or status:
   1. (A) The person(s) with decision-making authority, who, in addition to counsel, will attend the ENE session as representative(s) of the party, and
   2. (B) Persons connected with a party opponent (including an insurer representative) whose presence might substantially improve the utility of the ENE session or the prospects for settlement;

   (2) Describe briefly the substance of the suit, addressing the party's views of the key liability issues and damages and discussing the key evidence;

2. (3) Address whether there are legal or factual issues whose early resolution would reduce significantly the scope of the dispute or contribute to settlement negotiations;
3. (4) Identify the discovery that is necessary to equip the parties for meaningful settlement negotiations; and
4. (5) Include copies of documents out of which the suit arose (e.g., contracts), or whose availability would materially advance the purposes of the Evaluation session, (e.g., medical reports or documents by which special damages might be determined).

Notice it says to be "concise" which means you should not ramble on about the origins of copyright law, and other things that are not pertinent to the case at hand.

Benefits of a Early Neutral Evaluation in a Strike 3 Holdings case

One of the features I like best about the ENE in the San Francisco Bay area, including San Jose is the copyright provision in Local ADR rule 5-9 which says:

(b) Copyright Cases. To the extent then known or readily available and feasible, a party who bases a claim on copyright must include as exhibits the copyright registration (or, if there is no relevant copyright registration yet, the relevant copyright application) and one or more demonstrative exemplars of the copying and infringement. Such party must also present whatever direct or indirect evidence it has of copying, and shall indicate whether it intends to elect statutory or actual damages. Each party in a copyright case who is accused of infringing shall set forth in its written statement the dollar volume of sales of and profits from the allegedly infringing works that it and any entities for which it is legally responsible have made.

This means the Plaintiff has to bring some evidence of infringement to the hearing.  In other words: "let's see what you have for proof of copyright adult movie piracy."  If Strike 3 Holdings cannot produce the evidence (which it usually claims to have), this is the time to ferret that out.  To my knowledge, and according to the last time I asked their settlement attorney if they have ever taken one of these cases to trial, the answer was NO.  So, its good to see what is behind the curtain if you can.

Contact a BitTorrent file sharing infringement law firm

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