Friday, October 12, 2007

Analysis of the Court....10/19

I was flipping through the Googled hits, and happened across the "Citizen Media Law Project":

The Citizen Media Law Project (CMLP) is jointly affiliated with Harvard Law School’s Berkman Center for Internet and Society, a research center founded to explore cyberspace, share in its study, and help pioneer its development, and the Center for Citizen Media, an initiative to enhance and expand grassroots media.
What they had to say about the case was interesting, to say the least, and may help on the 24th, when arguments are presented:
Not surprisingly, Judge McDowell's September 14 letter ruling in the Essent case makes a muddle of all this. First of all, it is bizarrely formatted -- the legal analysis is contained in two paragraphs that are italicized and indented from the rest of the letter, giving the impression that these paragraphs are quoted material, but without any indication of their source. Some independent researched turned up the following observations:

The first paragraph comes almost verbatim from Polito v. AOL Time Warner, Inc., 2004 WL 3768897, at *5 (Jan. 28, 2004), a case involving a subpoena to uncover the identities of anonymous AOL subscribers who allegedly sent the plaintiff harassing e-mail messages. The language that Judge McDowell quotes from Polito, however, relates exclusively to another case, In re Subpoena Duces Tecum to America Online, Inc. (noted above). Specifically, Judge McDowell appears to be invoking the standard applied by that court -- namely, that "the pleadings or evidence" satisfy the court "that the party requesting the subpoena has a legitimate, good faith basis to contend that it may be the victim of conduct actionable in the jurisdiction where suit was filed." In re Subpoena Duces Tecum to America Online, 2000 WL 1210372, at *8. In that case, the court considered evidence outside the plaintiff's complaint, but it did not make clear whether that was required by its standard.

The second paragraph comes verbatim from Alvis Coatings, Inc. v. Does, 2004 WL 2904405, at *3 (W.D.N.C. Dec. 2, 2004), a case which applied an especially weak version of the "prima facie" standard. There, the court was content that the plaintiff had "averred that the statements are both false and damaging to the Plaintiff's trademark and to its business generally." Id. at 4.

McDowell's letter never explains which standard he is choosing to apply -- Polito, In re Subpoena Duces Tecum, Alvis -- they're all different standards, especially if you look at them closely. Worse, McDowell never even tries to apply the (as yet unknown) standard to the facts of the case. The letter ruling says only:

After considering the above [i.e., the two paragraphs taken nearly verbatim from different decisions], the Court hereby concludes that good cause has been shown and the burden by the plaintiff has been met to meet the requirements of the exceptions to the [Cable] Communication[s] Act to grant the request by Plaintiff for the Internet service provider to furnish the name and address of the subscriber.

Apparently, Judge McDowell believes that no evidence to support Essent's claim is required. That is bad enough, but it is a debatable proposition under the case law. He apparently also believes that no analysis of the allegations in the complaint for facial sufficiency is required. Whatever the standard, this is surely wrong.

10 comments:

Anonymous said...

So Kevin, are you the real SLIM FAC_P???????????? PLEASE STAND UP, PLEASE STAND UP!!!!

Anonymous said...

When is the next election when we can replace McDowell with a real judge?

fac_p said...

If you're so sure, ammend the lawsuit....frank

However, Kevin might return the favor and sue you for defamation, and I have a front row....

Anonymous said...

The problems we have with judges seems to arise from the fact they all start out as lawyers.

Anonymous said...

Does the First Amendment to the Constitution of the UNITED STATES not apply to the legal system of Paris, Lamar County, Texas? What a scary thought that a JUDGE would be blinded to his responsibility to uphold the legal protection of the people. The powers that be are claiming that their image has been tarnished by the comments made on this site.

The truth is, they were tarnished by their actions and inability to maintain a positive morale attitude in a hospital system dogged by infighting between departments and mini power struggles between RN's and other staff members.

If some of these nurses want to be this controlling ---- go get your MD Degree and then you can tell everyone else what to do in a legitimate way.

Essent should take their dog and pony show and go on down the road. You were not even a half-baked bunch of goofballs when you walked in and you are no closer to being done now.

There are High School students who would be more capable of taking those two hospital buildings and making them into well oiled machines.

By the way, I had two children born at the old MRMC and two sisters born there also. I lost a beloved Grandmother there and I almost cry when I see what these hospitals have sunk to in the last four years. Lamar County deserves better.

Anonymous said...

Frank:

I didn't understand the comment from Hud or his bud regarding Kevin until I heard today he had been fired and was escorted out of the hospital after being mistaken for you, the dastardly Cape Crusader! I also understand his wife was suspended for sleeping with the enemy.

Please give me and the others who were sodomized by E$$ent a heads up with some accurate information.

It's a shame, and who knows, he might have commented (I really don't know), but this is typical of Essent. I'd say, "Look at Holly", but a few have said that was over stated. Well, look again!

One thing in our favor, however, he'll be a creditable witness. Who could doubt the veracity of an IT guy who was fired and could testify to the very soul of Essent when subpoenaed? And, it would have to be a subpoena, since he could not voluntarily give that information.

The video monitoring of all the geographically separated offices.

The new DVR equipment.

The monitoring of the workstations.

I'm not sure if he would have had knowledge of it, but the pencil-whipping of records. Possibly, the distruction of electronic records, as well.

Thanks, Essent. Your actions speak far louder than words....frank

Woot said...

>>>Apparently, Judge McDowell believes that no evidence to support Essent's claim is required. That is bad enough, but it is a debatable proposition under the case law. He apparently also believes that no analysis of the allegations in the complaint for facial sufficiency is required. Whatever the standard, this is surely wrong.<<<<

Glad someone else sees this as just plain wrong

fac_p said...

Ok, I'll let you have one: Should have been "credible". Lucky I'm not texting it.

Only took you 13 pageloads to find it.... What are they paying you for???....frank

Anonymous said...

From what I hear, the other IT guy that worked with Kevin was also let go earlier in the year after being accused of the same thing. I sure hope there's someone left down there in the IT department that knows what they're doing. Apparently this is the Essent way. They'd rather fire loyal employees based on accusations than actually give people the benefit of the doubt.

From what I understand, Kevin had been there for a long time (10+ years) and probably knew the systems there better than anyone. It's a shame that experience like that is now gone due to Essent's paranoid delusions and "witch hunt" tactics.

The grass is heck of a lot greener on the other side. Kevin may not realize it right now but what happened to him is probably a blessing.

Annonyomus said...

I would bet that a lot of former employees would come forward to testify of the conditions before and after the Essent purchase. I would be one of them. They have done nothing but destroy their own image in the public's eyes. The employees try to do what is expected of them, but it is very hard to do when the rules change daily, and most never make in to writing. Six months after Essent came we still had no Policy & Proceedure book that did not still contain Christus Pages. Most of the Policies were happhazard, call Admin. when you needed one and they would write it for you. Of course it is cheaper to get rid of the experienced employee's and fill in with Temps and new grads. NOT!!! In the long run it costs double. Who is there to do the training and orienting? No one is left. What happens is the customer is left standing out in the cold. Their image is besmerched by their actions on all accounts. If you sit in an office and hand down rules and have have no idea if they are feasible, you might as well get your own hanging rope ready. I don't know about Judge McDowell being a real Judge or not, but what part of "freedom of speech" does he not understand? Just because I write on this blogg does not mean I am against Essent or anyone else. These are my opinions from personal observations.