When the Judge Feels She Must Publicly Note "the Utter Hypocrisy of Both Sides" ….

Words from Judge Naomi Reice Buchwald (S.D.N.Y.) Wednesday in Filsoof v. Cole:

Finally, the Court cannot conclude this decision without noting the utter hypocrisy of both sides shifting positions on the issue of personal privacy depending on their view of litigation advantage.

Of course, lawyers always try to spin things in their favor, and sometimes they end up trying to distinguish the indistinguishable. At the same time, you'd like to avoid reactions like this, both for the sake of your future success in the litigation, and your future credibility with the judge more generally.

Comments

[Krayt]

When Dr. Laura's ex supposedly released nude shots of her, her lawyers claimed it wasn't her, and that nobody could show them because she owned the copyright on them. When asked why she owned the copyrights on nude shots of some redhead who wasn't her, they said they were just being good lawyers covering everything. Good times.

[bernard11]

A question from this non-lawyer:

Let's say they stick with "It's not her," and don't mention copyright. Then if it turns out to be her, have they lost the right to raise the copyright issue at at some point?

[Krychek_2]

It would largely turn on when in the litigation it was established that it is her. If the case goes to a jury, and the jury comes back and says that it's her, at that point the case is over and it's too late to amend your legal theories. If it's determined to be her before judgment is entered (say, on a motion for partial summary judgment), then the court probably would allow the plaintiff to amend her complaint and allege copyright. But even then it would be up to the discretion of the judge.

And this is why lawyers plead "in the alternative." While I agree it is amusing to say that it's not her, but if it is her she owns the copyright, the reason lawyers do that is to be sure their bases are covered because you can't always predict the direction in which the case will go.

I have a case right now in which a contractor is swearing up and down that he's properly licensed despite state records showing otherwise. The complaint claims that he's unlicensed and therefore the contract is void; however, if the court determines that he is licensed, then he breached the contract. Obviously both of those theories can't be right, but since it can't be predicted at this point how the court will rule on the licensing issue, we had to plead both just in case.

[Dilan Esper]

One problem with that strategy in the specific case of nude photos is the person is going to know whether she posed for the nude photos. There's no particular reason to allow extreme pleading in the alternative when the client knows that one of the claims is based on a lie.

That's very different from pleading in the alternative where the fact that is pleaded in the alternative is not in control of the defendant. For instance a government contractor pleading both government contractor immunity (in the event she is held to be a mere contractor) and qualified immunity (in the event she is held to be a state actor)- she doesn't know whether her relationship with the government is going to legally be held to be a contractor or a employee. So she can plead defenses in the alternative.

But when you know the facts and want to plead a lie in the alternative, you shouldn't get the benefit of this.

[David Nieporent]

There's no particular reason to allow extreme pleading in the alternative when the client knows that one of the claims is based on a lie.

I mean, that's less about the issue of pleading in the alternative and more about candor toward the tribunal.

[Rossami]

From what little I can tell, this isn't a case of "arguing in the alternative" but a case of "I demand X from the other guy in discovery while simultaneously asserting that I don't have to produce my own Xs because they're private".

Arguing in the alternative is a legitimate tactic because you're admitting up front that you think A but might be wrong (but that even if you're wrong, should still win because B). There's no such automatic logic for "my sexual proclivities are none of your business but yours are fair game".

[Krychek_2]

Not necessarily. It depends on why someone's sexual proclivities are at issue. I can think of several situations in which one side's sexual proclivities might be relevant but the other's would not:

One party is being sued for sexual misconduct and there are no claims of sexual misconduct by the other.

One party is using as an alibi that he couldn't have been there because he was attending an orgy at the other end of town at the same time.

If only one party's sexual proclivities are at issue in the case, then the other side's sexual proclivities would be no one else's business.

[Rossami]

I agree that there can be hypothetical reasons why one party's data could be relevant to a particular case but the other's not - but those hypotheticals would not have generated the judge's comment about about "the utter hypocrisy of both sides".

[John F. Carr]

A model ordinarily does not own the copyright on pictures of her. She has state law privacy rights while the photographer owns the federal law copyright. This can be changed by contract or by taking a mirror selfie, but ordinarily the ex who took the pictures owns the copyright and the naked woman owns the right to stop revenge porn.

When a copyright dispute gets to court, the claimaint has to prove registration of copyright although not the circumstances under which the pictures were taken or the identity of the human subject.

[BravoCharlieDelta]

Who here thinks lawyers, in general, are one step below pond scum?

Especially D.C. lawyers and judges. Some of the worst people ever to walk this Earth. I can only think of one other group that's worst than lawyers.

[wolfefan]

David Behar agrees with you.

[Krayt]

You've got a long way to go to even begin to approach Behar's near Mark Twainian creative prose and direct pithiness.

"Pond scum"? What is this, a Star Wars quote?

[Queen Amalthea]

" creative prose and direct pithiness."

One way to describe madness I guess.

[Queen Amalthea]

" I can only think of one other group that's worst than lawyers."

Is it conspiracy theorists?

I mean, the only take lazier than 'lawyers suck' is 'Congress is a bunch of clowns'

https://www.youtube.com/watch?v=IC3W1BiUjp0

[Bored Lawyer]

Parties to litigation contradict themselves and act hypocritically?

OMG! I AM SHOCKED!

[Dilan Esper]

And judges sometimes call them out and push back. OMG, I AM FURTHER SHOCKED!

[John F. Carr]

How often is this low grade discovery dispute decided by a judge instead of a magistrate?

[rsteinmetz]

How would the subject of a photo own the copyright in the photo?
Shouldn't the photographer own the copyright?
I suppose if it was a delayed exposure set up by the subject then the subject might.

[bernard11]

Normally I think the photographer owns it.

I learned this the hard way, when I discovered that even though I paid for the film, paid the photographer to shoot the film, and paid to have it developed and printed, I couldn't reuse the images without an additional fee. (No. They weren't nude images of me, which would have (not much) amusement value only, just some dull standard pictures of a business conference - speakers, handshakes, people drinking coffee, etc.)

[Bored Lawyer]

"people drinking coffee"

That's obscene right there.

[jb]

Wouldn't that be a work for hire? But in any event, presumably when you sign a contract with the photographer you'd specify ownership up front so that there's no misunderstanding on the point.

[David Nieporent]

I practice in the SDNY, so I am limited in what I can say. Let me put it this way: Judge Buchwald is… opinionated.

[SKofNJ]

If a judge is properly judging, a good argument surrounded by bad invective should win the day no matter how put off the judge might be by the invective.