RIAA to LimeWire judge: Stand firm on wording

Top labels and technology advocacy group disagree on whether federal judge should remove an eye-opening passage she wrote about a well-known attorney.

Greg Sandoval Former Staff writer
Greg Sandoval covers media and digital entertainment for CNET News. Based in New York, Sandoval is a former reporter for The Washington Post and the Los Angeles Times. E-mail Greg, or follow him on Twitter at @sandoCNET.
Greg Sandoval
2 min read

The trade group for the top four record companies is ratcheting up the pressure on a pro-technology attorney who may have offered controversial advice to file sharing service LimeWire.

Fred von Lohmann EFF

U.S. District Judge Kimba Wood, in the Southern District of New York, last week ruled in favor of the music industry in its copyright case against the company that operates LimeWire. Wood included in her 59-page decision a reference to Fred von Lohmann, senior staff attorney at the Electronic Frontier Foundation, an advocacy group for tech companies and Internet users.

In describing testimony from Lime Wire founder Mark Gorton, Wood wrote: "[von Lohmann] gave [LimeWire executives] confidential legal advice regarding the need to establish a document retention program to purge incriminating information about LimeWire users' activities."

To some legal experts, the phrase "purge incriminating information" sounds like Wood is suggesting that von Lohmann tried helping LimeWire destroy evidence. Under the law, no one is allowed to destroy evidence once litigation is expected and lawyers are forbidden to help clients with such an undertaking. On Tuesday, Cindy Cohn, EFF's legal director, sent Wood a formal request to remove that section about von Lohmann from the record. "We believe the materials in the record do not support the inclusion of the phrase 'to purge incriminating information,'" Cohn wrote. In an interview with CNET earlier this week, von Lohmann denied any wrongdoing.

In response to Cohn's letter, an attorney for the Recording Industry Association of America filed a letter opposing a modification to the passage about von Lohmann.

"We respectfully submit that EFF has presented no basis [for] altering or amending the Court's Opinion," wrote Glenn Pomerantz, an attorney working for the RIAA. "Plaintiffs further submit that there is no basis for allowing EFF to submit a more detailed analysis."

Among the reasons the RIAA gave for not wanting Wood to make any modifications is that the destruction of evidence is an important issue that will likely come up again.

"Defendants' intentional destruction of relevant evidence will be relevant to the willfulness of Defendants' infringing conduct," Pomerantz wrote, "which is directly related to the appropriate amount of statutory damages.

The RIAA said that if the judge finds LimeWire did destroy evidence, that determination could lead to sanctions.

Wood has scheduled a status conference in the LimeWire case for June 7.