To annoy, embarrass, oppress, and unduly burden.

"Zawinski objects to the subpoena to the extent that the requests for production of documents included in the subpoena fail to adequately and specifically describe the matter sought, are vague, overly broad, or are calculated to or would operate to annoy, embarrass, oppress, unduly burden, or unduly cause expense to Zawinski."

I just spent six hours in a deposition, beginning at a truly uncivilized hour of the morning, wherein some schmuck grilled me about hallway conversations I may or may not have had fifteen years ago.

Apparently there is this shitbag company called "ValueClick" who are patent trolls. I gather that they have some patent related to cookies, and sued AOL for patent infringement. AOL responded with, "Surely you must be joking, please choke on our cookie patent", and counter-sued. So ValueClick dragged me in to a deposition looking for a way to invalidate the AOL/Netscape patent.

A software patent being used to attack a software patent troll.

There are no winners here.

Tags: ,

44 Responses:

  1. mackys says:

    > Music: Submerged - Last Gasp of the Shitbat

    A better theme song for patent trolls I've never heard...

  2. harryh says:

    There are no winners here.

    Sure there are. How much do you think the lawyers are going to rack up in legal fees during this ordeal? Maybe not honorable winners, but winners nonetheless.

  3. mc_kingfish says:

    This is definitely the time whip out the "OUT OF ORDER?? YOUR HONOR, _YOU'RE_ OUT OF ORDER!! THIS WHOLE DAMN _COURTROOM_ IS OUT OF ORDER!!"

    Big scene, lay it on thick, Oscar-worthy material --totally apropos of nothing.

    Then sit back down and noisily drink your Slurpee and act like nothing happened...

  4. niten says:

    Having never been dragged to court, did being forced to give a deposition come with any kind of monetary compensation?

    • jwz says:

      Oh yes, apparently my day was worth $42.20. The subpoena came with a check. I'm not kidding.

      • allartburns says:

        oh crap. I've been told that I'd be "properly compensated" or something like that if I had to testify for a civil suit.

      • mc_kingfish says:

        _And_ you can spend that money any way you want. So how about that, huh?

      • baconmonkey says:

        more money for tentacle-dozer-kill-bots fund!

      • funjon says:

        I don't think you even got minimum wage for that shit (including travel time).

        Thats just disgusting.

        Besides, last time I was deposed, I didn't get paid!

      • elusis says:

        Well, I got paid nothing at all for my time in depositions when some dirtbag sued a (bigger dirtbag) former supervisee of mine who lied and said I was supervising her when she slept with him a month after ending therapy. When in fact I hadn't seen her in six months at that point.

        Don't buy too many gumballs with that there pocket money, young fella.

      • gryazi says:

        Varies by jurisdiction. In my state there is a requirement to compensate nonparty witnesses for travel, but for depositions there's also a requirement they be held within N miles of the witness (and it's already a small state), so that usually takes the form of $1 stapled to the subpoena if anyone bothers to comply. That's the price we pay for having a legal system (with the right to do this kind of discovery if we ever get in an equivalent jam). I'm not really sure how the statute's written here or anywhere else - so this part is out my ass - but chances are you can compensate for time at the same rates as jury duty but not more, since anything further would look like bribery.

        Being brought in as an "expert," however (and anyone can be an expert if the other side doesn't object; it's a technical thing about the type of testimony - subject matter vs. being a direct witness to some action) entitles you to charge a substantial fee - and that's permitted because both sides can hire as many as they want to try to prove a particular point, and one that shills too obviously will be brought down by objection or entry of evidence to that effect. (If the other side wants to make the point that the expert's a shill, they can ask, for instance, how much of his income is made from expert fees on cross-examination, and let the judge or jury weigh that. But that doesn't really matter to the 'expert' in the instant, because experts don't work on contingency and are owed their fee no matter what. Some of them still freak out at the attack on their reputations, though.) Of course, that means there's a competitive market, so if your quote is really sky-high the people who wanted you will find a cheaper expert.

        [So if you're a direct witness - like Jamie here - grumble, but if some lawyer wants you in re: best practices in an industry or how something works or should be interpreted, that's probably decent money.]

        • gryazi says:

          P.S.: That "annoy, embarrass, oppress" language re: undue burden [i]is[/i] standard boilerplate (on the other side of the country as well), though I have no idea where the hell it comes from. It's fun to write and just serves to state that there's an objection [to be followed by clear reasons if you want a snowball's chance of getting it granted].

          Also, fun fact: CA may be the last state where anyone can sit for the bar exam and Become A Lawyer based solely on competence without precondition of having graduated from An Accredited Law School. Related to this, it is said to be the hardest exam to pass in the country. This provokes much grumbling from lawyers elsewhere who want to be admitted in CA, so at least Cali's doing one thing right. [Apparently CA is one of many states where you have to pay a filing fee to Answer a Complaint - that is, to respond when somebody sues you - which blows, though.]

          • pickyfix says:

            It's from the Federal Rules of Civil Procedure 26(c)(1), in pertinent part:

            "The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:"

            blardy, blargh...

          • dasht says:

            Yes, you have to pay to answer a suit in CA. It is fairly easy to ask for and be granted a "payment plan". It is possible, less automatic, to request and be granted a waiver.

            Considerable gamesmanship results from the "first papers" fee (what you pay when answering) and from other aspects of the system. Sleazy serial plaintiffs seem, in my experience, to find and work with sleazy, fraudulent service processors (the kind of people who will swear tot he court that they handed you a subpoena when, in fact, they did not). The game is to obtain a court date before the defendant knows they are being sued or, even if they know, hasn't yet been able to make formal communication with the court. The judge will often then enter a summary judgment for the plaintiff. The plaintiff then walks down the hall and says to a different judge "Hey, I've got this judgment and the deadbeat defendant is trying to evade it!" That judge then rubber stamps a salary attachment or asset seizure, which the local sheriff is then duty bound to help you enforce.

            The net effect is that, especially in debt related cases, the very first thing the poor schmuck of defendant hears about the case at all is that his paycheck has been reduced to $20/week and it will take 6 months and a few thousand dollars to correct that with no real assurance of even recovering the missing pay, nevermind legal and court fees.

            Bottom line: at the slightest hint that you are about to or are being sued, get on top of it quickly and thoroughly.


            • gryazi says:

              Uck! Over here the process servers realize honesty has a financial incentive, because they can charge for attempted service and again (and again and again and again) until the attorney nails the person's whereabouts down. Plus, it is a small state, so nobody has to drive more than an hour to attempt.

              We did have a similar problem with "e-filing" letting banks' counsel swoop in and move for default on foreclosures before homeowners had a chance to receive notice and find counsel. But legislation giving foreclosure defendants the right to demand mediation has reduced the incentive to snipe.

      • hasimir says:

        That's an absolutely useless amount of money. If I were you I'd invoice this ValueClick mob at some hideously inflated consultancy rate since they're clearly wanting your technical expertise as well as knowledge (which you may or may not recall) on technical discussions.

        Also, wouldn't your employment contract from back in the mists of time be of some use in keeping you out of this shit? Well, probably not, but there's no reason why you can't find a way to make these litigous bastards spend more money trying to work it out.

        Finally, you can always resort to the tactic used quite effectively by Oliver North, "I have no recollection of that at this time, sir."

      • niczar says:

        What was the venue? East Texas?

    • latemodel says:

      The transitive verb you're looking for is depose. As in, "did being deposed come with any kind of monetary compensation?"

      Mostly, I like it because it makes Jamie sound like some sort of monarch.

  5. argonel says:

    Well it does have the side effect of being less likely to physically injure or kill innocent bystanders than pistols at dawn and much easier to clean up after than the morally satisfying duel of explosive suicide vests.

  6. jope says:

    For the past week I've had some patent attorney leaving me voicemails at work twice-daily, with the dubious claim of having been referred to me by a former co-worker for undefined work I did fifteen years ago. Unless I get confirmation from said former co-worker that this guy is representing starving orphans, no effing way am I acknowledging his calls in any way. Memo to front desk: "If this guy calls again, tell him I'm on vacation. 'Til 2038." Ugh.

    So, condolences on having been sucked into such a fracas.

  7. xenogram says:

    Oh dear. Maybe this will cheer you up.

  8. Out of interest, what would have happened if you had just ignored it and not showed up?

    • mhoye says:

      If you pursue that line of reasoning for not very far, men with guns come to your home to ask you about it.

  9. pikuorguk says:

    I like the "annoy" part, it's so vague :)

    "I refuse to answer your stupid questions because they annoy me"

  10. ammonoid says:

    I'm pretty sure the lawyers are in fact winning.

    • dasht says:

      Their souls are suffering.

      "The intuition of the moral sentiment is an insight of the perfection of the laws of the soul. These laws execute themselves. They are out of time, out of space, and not subject to circumstance. Thus; in the soul of man there is a justice whose retributions are instant and entire. He who does a good deed, is instantly ennobled. He who does a mean deed, is by the action itself contracted. He who puts off impurity, thereby puts on purity. If a man is at heart just, then in so far is he God; the safety of God, the immortality of God, the majesty of God do enter into that man with justice. If a man dissemble, deceive, he deceives himself, and goes out of acquaintance with his own being. A man in the view of absolute goodness, adores, with total humility. Every step so downward, is a step upward. The man who renounces himself, comes to himself." -- R. W. Emerson

      • gryazi says:

        "This job would be great if it weren't for the fucking customers."
        -- Randal Graves, Clerks

        Applies to any occupation where people are involved, really. But nobody's ever really happy to pay their lawyer, compared to buying a shiny new toy or getting into an 'exclusive' nightclub. (And those hourly rates are, in part, subsidizing all the people who aren't paying their bills.)

  11. niczar says:

    Sure you don't want to get fined for contempt or something, but if it's good enough for Congress, it's gotta be good enough for a lowly court to answer every single fucking question with "I don't recall."

    • gryazi says:

      Entirely acceptable if it's the truth. You're swearing to tell the truth, not to be a perfect human recording device. Meanwhile, the lawyers are pretty free to try to jog your memory in the hopes of getting something useful out of you. (Statistically, if you're getting deposed you're probably more likely to be subpoena'd to produce records rather than testimony alone -- which obliges you to bring everything you have, but not create what you don't.*)

      Just don't be a Scooter Libby [who at some point must have made a provably false statement beyond just not remembering].


      *Footnote: The way it's played around here, things like online banking or eBay records are treated as something you 'have' if you're a party in the suit, since it's not an undue burden to produce them. But if you're a nonparty witness and they're just fishing, an objection can often get you out of it.

  12. violentbloom says:

    That's fucked that is.