IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
November 4, 1999
JAMES DAMIANO, PLAINTIFF,
SONY MUSIC ENTERTAINMENT, INC. AND BOB DYLAN, DEFENDANTS,
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 email@example.com 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, www.geocities.com/SOHO/Gallery/1238. 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 www.themusicvine.com/users/JAGGAR/Virt34385, 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 disseminated confidential information, sending e-mail to a chat room which contained protected deposition testimony. *fn4
Plaintiff could not have had more notice from the defendants that they considered his behavior to violate the March 14, 1996 and August 6, 1996 orders. Despite that notice, plaintiff continued his behavior, telling this Court and defendants two days before the hearing that he removed his websites. He may have removed those websites, but he has not yet attempted to remove his e-mails to chat rooms and other sites, and his response comes too little too late. Plaintiff dared defendants to bring this motion, noting in his geocities website page:
Please note that for everyday this web site is up and running the fact is documented that the defendants do not contest the issues of fact, the evidence of solicitation or the statements set forth in this web site declaration.
Therefore the reader can conclude that the statements and evidence set forth in this web site are true.
Otherwise Bob Dylan's attorneys would download this site, send it to Judge Simandle and then ask to hold James Damiano in contempt. (Snyder Certif. Ex. J, page 30.)
Defendants took that dare, and this Court now finds, based on the evidence that plaintiff did post confidential discovery materials on websites and in e-mail chat rooms (including as an attempt to profit from sales of videotaped depositions), that plaintiff is in willful contempt of the March 14, 1996 and August 6, 1996 protective orders.
At the October 29, 1999 hearing, plaintiff expressed his desire to "end it all" (meaning these continued efforts to disparage defendants despite losing his case) and gave his word that "it's over," suggesting that he intended to put up an apology on his websites. That may well end up being some part of the remedy, but it does not change this Court's decision that plaintiff's past behavior constitutes willful contempt of the protective orders of this Court.
In this Court's Oral Opinion and Order of October 29, 1999, this Court set a plenary hearing date of Friday, November 12, 1999, at which time defendants may present evidence as to the appropriate remedy and relief for plaintiff's misconduct, which may well include, as a part of equitable relief for civil contempt, restitution of lost profits or disgorgement of profits gained by plaintiff. For the interim period, this Court has ordered plaintiff, and those acting on his behalf: to stop disseminating protected discovery materials; and to expunge confidential discovery material from all existing websites and chat rooms, providing this Court and defense counsel with a letter within ten days of October 29th which explains his efforts in this regard (such that the parties may work together to remove the material). For each willful violation of this interim order, plaintiff will be fined not less than $1,000, and each day that a violation continues will be considered a separate violation for these purposes. *fn5 Other remedies will be considered on November 12.
Consistent with this Opinion, the appropriate Order for Contempt and Injunctive Relief was filed on October 29, 1999.
JEROME B. SIMANDLE U.S. District Judge