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Damiano v. Sony Music Entertainment

November 4, 1999


The opinion of the court was delivered by: Simandle, District Judge:



This matter came before this Court upon motion by defendants, Sony Music Entertainment, Inc. and Bob Dylan, for an order to hold plaintiff, James A. Damiano, in contempt and for related relief. This Court considered the parties' submissions in support and opposition. Additionally, this Court scheduled a hearing on the return date of October 29, 1999. Defendants' counsel appeared at the hearing; though plaintiff did not attend, despite this Court's denial of a stay, plaintiff was able to participate with the Court and defendants' attorneys by telephone upon the record.

At the October 29, 1999 hearing, after consideration of the parties' arguments, this Court determined that plaintiff willfully violated this Court's March 14, 1996, and August 6, 1996, Orders which kept confidential all information, documents, and depositions produced during discovery. Specifically, this Court noted that plaintiff placed information on websites that he obtained solely by discovery in this case, despite his awareness that he was forbidden to do so, and this Court informed the parties that this Court would file a more detailed Memorandum Opinion to explain the bases of the decision. Thereafter, this Court entered an Order, dated October 29, 1999, which holds the plaintiff in contempt and provides for interim relief, including a prohibition on disseminating confidential discovery information and an affirmative commandment that plaintiff shall expunge all confidential discovery material from existing websites and other sources.

The Court now files this Memorandum Opinion in order to elaborate on the bases of this Court's determination that plaintiff, James A. Damiano, is in willful contempt of this Court's confidentiality orders. The following constitute this Court's findings of fact and conclusions of law upon defendants' motion for contempt.


On March 14, 1996, Magistrate Judge Joel B. Rosen entered a Protective Order regarding the confidentiality of information produced during discovery. That Protective Order prohibits the public dissemination of any material that was designated as confidential or highly confidential, and it provides that "Any violation of the provisions set forth in this Order is punishable as contempt of this Court." Defendants later moved to expand the reach of the Protective Order to include all deposition transcripts and discovery material, presenting evidence that plaintiff's past behavior indicated that he intended to publicize material obtained in discovery. In an August 6, 1996 memorandum opinion and order, Magistrate Judge Rosen catalogued some of the evidence of plaintiff's past of commercially exploitative behavior, including writing a manuscript containing plaintiff's allegations, entering into a written commercial agreement with a friend concerning the manuscript in order to make money from the allegations, placing an advertisement in Rolling Stone magazine to sell his unpublished manuscript, and submitting copies of his manuscript to the tabloid television show "A Current Affair" and The New Yorker magazine. Damiano v. Sony Music Entertainment, Inc., 168 F.R.D. 485, 489, 492 (D.N.J. 1996). Agreeing with the defendants that it was likely that plaintiff would publicize depositions and other documents for financial profit, and determining that "using raw discovery materials for financial profit is not what this court considers to be a legitimate purpose for disclosure," Judge Rosen modified the original Protective Order to designate all discovery materials as confidential. Id. at 492- 493. Reading the March 14, 1996 and August 6, 1996 orders together, then, all parties were ordered to keep confidential all discovery materials, and any violation of the confidentiality orders would be punishable by contempt. *fn1

It bears noting that these discovery materials would not have even come into Mr. Damiano's possession had it not been for the existence of these confidentiality orders because of the strong probability, which has since been confirmed by Mr. Damiano's conduct, that the discovery from Sony and Bob Dylan was being undertaken to harass these defendants and to publicize and commercially exploit these items.

Following completion of discovery, on December 16, 1996, this Court dismissed plaintiff's case, 975 F. Supp. 623 (D.N.J. 1996). This Court found that plaintiff's claims of copyright infringement and related federal and state claims lacked merit because there was no evidence of substantial similarity between plaintiff's and Dylan's verses. Id. at 630. Indeed, plaintiff's proofs failed to demonstrate that his works attained a threshold of originality sufficient to be protectable, the Court finding, "The lyrics he claims were infringed are nothing more than protectible phrases and cliches, and even when taken as a whole, they are not substantially similar to Dylan's works." Id. The Court found in multiple instances that plaintiff's complaint was deceptive, a "cut and paste job," that portrayed plaintiff's verses as if they were contiguous writings when in fact he rearranged his verses and gave them titles to attempt to resemble Dylan's works. Id. at 627. His complaint also attempted to rearrange Dylan's lyrics to enhance the perception of similarity. Id. at 628 n.5. Without summarizing the entire opinion, it suffices to say that this Court found that plaintiff presented no triable issues of fact to back up his allegations that defendants appropriated or copied his work, or that they violated the Lanham Act, the RICO Act, or state law. Id. at 625-33. Plaintiff's motion for reconsideration was denied on August 20, 1997. Id. at 633-38. The Third Circuit dismissed plaintiff's appeal. 166 F.3d 1204 (3d Cir. 1998). *fn2

Recent Activities In Contempt of the Orders

Plaintiff's conduct since Judge Rosen entered the Protective Orders confirms that defendants' and Judge Rosen's fears of plaintiff's proclivity for publicizing case materials, including for financial gain, were right on the mark. In the years since this Court entered the orders of March 14, 1996 and August 6, 1996, plaintiff has upon occasion widely disseminated confidential documents and deposition testimony obtained during discovery and protected by the Protective Orders. Largely, he has done so over the Internet. In 1997, plaintiff maintained a website at on which he disseminated substantive information, including material obtained during discovery. After a series of discussions which took place at the Court's order during which defense counsel made plaintiff aware that his dissemination violated the Protective Orders, plaintiff apparently removed that particular site or made it inactive, and defendants did not press for any further Court action.

Plaintiff did not, however, stop disseminating information, but rather continued those activities at a new website, The website advertised plaintiff's manuscript and provided a host of information in support of plaintiff's allegations against Bob Dylan, specifically including material obtained in discovery which is subject to the Protective Orders. By way of example, the following deposition transcripts and discovery-produced documents are cited in the geocities website alone: the deposition testimony of Tony Tiller, the deposition testimony of Pam Damiano, deposition testimony of Mr. Dylan's attorney, deposition testimony of Katheryn Baker, deposition testimony of Brad Wright, a discovery- produced letter from Thomas Ruff (Damiano's attorney in 1990), ticket stubs produced during discovery, a certified mail receipt from discovery, deposition testimony of Elliot Mintz, records of a telephone conversation between Tony Tiller and James Damiano produced during discovery, and a letter from plaintiff's musical expert. (Snyder Certif. Ex. J.) The geocities website also included an order form through which viewers could order copies of the deposition testimony. (Id. at Ex. K.) As of September 28, 1999, this website had been viewed 1,423,054 times. (Id. at Ex. J, page 1.)

Plaintiff also established at least one other website in which he disseminated confidential discovery material, located at, including portions of the deposition testimony of Mohammad Marhoumy and Elliot Mintz. (Id. at Ex. N.) The last page of this site, as updated on September 4, 1999, noted that the video of depositions called "the impeachment of Elliot Mintz" could be seen later that week at the geocities site. (Id. at Ex. N.) Additionally, plaintiff posted e-mails in Internet "chat" rooms in which he again quoted from the deposition testimony of his musical expert and of Scott Patterson. (Id. at Ex. Q.) *fn3

On October 4, 1999, defendants wrote this Court a letter, which was copied to plaintiff, in order to inform the Court of plaintiff's recent behavior and to ask leave to file a motion seeking to hold plaintiff in contempt. This Court granted such leave, and, on October 15, 1999, defendants filed this contempt motion. On October 17, 1999, thirteen days after defendants first brought plaintiff's conduct to this Court's attention, plaintiff again ...

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