subpoenas

[lowenstat]

California.

What does it take to get a subpoena and serve it on an ad agency for the document used to claim infringement and have my ads removed? It was signed under penalty of perjury and provided to the ad agency by company x to have my ads removed.

What facts are the courts looking for in this case to provide me with a subpoena?

What is the court I go to for this type and what process is in place that I will have to go through?

Does company x get notified while I am trying to get the subpoena so they can defend against it?

I imagine that an actual court case must be filed before I can get a subpoena or is it a side procedure in which I can use to get the document to see what they claimed to the ad agency?

Is there some other legal process that would allow me to get that document from the ad agency? Freedom of information act? Gosh, I never realized I knew so little about what these two types of procedures really are.

Thanks

 

[divgradcurl]

What does it take to get a subpoena and serve it on an ad agency for the document used to claim infringement and have my ads removed? It was signed under penalty of perjury and provided to the ad agency by company x to have my ads removed.

Subpoenas are issued by a court. An attorney, as an officer of the court, can ssiue a subpoena for the court. A case must have already been filed for a subpoena to be valid.

What facts are the courts looking for in this case to provide me with a subpoena?

If you want to issue a subpoena, you ask the clerk of the court to issue the subpoena for you, then it has to be served, etc.

What is the court I go to for this type and what process is in place that I will have to go through?

If the subject of the subpoena is within the jurisdiction of the court in which the case is filed, then you go through the court in which the case is filed. If the subject of the subpoena is outside of the jurisdiction, you need to determine whether or nto you can get what you want out of the subpoena in the first place, then the subpoena must be issued out of a court that does have jurisdiction over the subject.

Does company x get notified while I am trying to get the subpoena so they can defend against it?

The company's notification is when the receive the subpoena. They then, of course, will have the opportunity to move to quash or modify the subpoena. Usually, though, if the subpoena is for a third party (not a party to the suit), you usually try and work out what you need with them amicably, then file a subpoena as a backup, rather than suprising them with the subpoena.

I imagine that an actual court case must be filed before I can get a subpoena or is it a side procedure in which I can use to get the document to see what they claimed to the ad agency?

You need a court case to be filed. And in this instance, rather than a subpoena to get the info from the third party, you would simply get a copy of the letter they sent (and a reponse) from the other side through normal discovery channels.

Is there some other legal process that would allow me to get that document from the ad agency? Freedom of information act? Gosh, I never realized I knew so little about what these two types of procedures really are.

All you can do is ask. FOIA is only going to help if you are talking about a government agency. Once a lawsuit is filed, then you can get these documents from the opposing party through discovery, or from the agency via a third-party subpoena if necessary.

 

[lowenstat]

Thank you for the very clear answers. I appreciate your knowledge, time and careful thought given to my questions.

So a court case must be filed otherwise no way else to get a document from a company that won't provide it. Ad angecy says that will not provide me with a copy of the "Sworn delcaration under penalty of perjury that the ad infringes..." to me unless I have a subpoena.

No other way to get it and a case has to be filed?

Curious, when you ask the court clear to do this there must be a judge that says, that is allowed or that is not allowed? Or can you ask for anything and then the other side has to quash it?

Wow, now that is some power that could be used against someone that does not know better. They see the document and figure well must be true to got to hand it over.

I know you do not know the document, and I barely know about it either, but the ad agency says the company x fills it out under pentalty of perjury. Is this some kind of court existing document probably used related to Digital Millennium Act or can an ad agency create something like this with their attorneys that somehow makes this a legal document? I am speaking of the one submitted to ad angecy from company x swearing that infringement occured. It is a simple document that ad angecy provides to company x. Company x fills it out, and faxes it back.

If this is just a company document then I guess just like any contract the company can create which turns it into a legal document if they in turn want to take it to court and enforce it.

Honestly and straight to the point, what happens if company x renigs on this action and apologizes for any problems created and asks company x to relist the item as originally listed prior to termination? I know I can take them to court or ask for damages, etc, but what is the likleyhood of it going my way in a suit now. I want to point out that our customers were notifed that this problem had occured hinting at our fault and we do not get a chance to respond in such a way that the customer can see.

Does the court allow for leeway - the same leeway they would give me for infringement verses willful infringement which is pretty reasonable I must say, or since they signed under penalty of perjury then they have sealed a case against them if I choose to more forward on it? I never signed anything that says I wouldn't infringe if you know what I mean. They however signed under penalty of purjury that based on good faith...blah blah which is a pretty easy to slip out of of course.

Did the tables just turn in that case? Am I now at a greater advantage legally in this scenario?

What actions might I want to consider to secure my rights since I plan on doing this as a serious business and trying to grow for the future? What might I want an attorney look into for this to grasp ans solidify the postion I would hold in this scenario?

 

[divgradcurl]

No other way to get it and a case has to be filed?

If they won't give it to you voluntarily, then the only way to legally compel them to do so is through a court order -- and you can't get a subpoena, or any other sort of court order, without a lawsuit.

Curious, when you ask the court clear to do this there must be a judge that says, that is allowed or that is not allowed? Or can you ask for anything and then the other side has to quash it?

Wow, now that is some power that could be used against someone that does not know better. They see the document and figure well must be true to got to hand it over.

The judge is not involved. A lawyer can send a subpoena on their own. If you are representing yourself, you have the clerk of the court do it. Yes, you can ask for anything, and it is the other side's responsibility to move to quash. However, if your actions are egregious, you can be sanctioned by the court, so this is not a free pass to do with what you wish.

I know you do not know the document, and I barely know about it either, but the ad agency says the company x fills it out under pentalty of perjury. Is this some kind of court existing document probably used related to Digital Millennium Act or can an ad agency create something like this with their attorneys that somehow makes this a legal document? I am speaking of the one submitted to ad angecy from company x swearing that infringement occured. It is a simple document that ad angecy provides to company x. Company x fills it out, and faxes it back.

All this means is that whatever document there is, the person signing it "swears" that it is the truth. The "under penalty of perjury" part is a term of art, basically just brings home the fact that if you say something in a written declaration, and it's not the truth, you could get in trouble later.

Honestly and straight to the point, what happens if company x renigs on this action and apologizes for any problems created and asks company x to relist the item as originally listed prior to termination? I know I can take them to court or ask for damages, etc, but what is the likleyhood of it going my way in a suit now. I want to point out that our customers were notifed that this problem had occured hinting at our fault and we do not get a chance to respond in such a way that the customer can see.

Well, once they say "mea culpa," that ends any chance of obtaining declaratory judgment jurisdiction. You could potentially sue them under B&P 17200 for unfair business practices, or maybe sue them for tortious interference, but that would depend entirely on the actual facts of the situation.

Does the court allow for leeway - the same leeway they would give me for infringement verses willful infringement which is pretty reasonable I must say, or since they signed under penalty of perjury then they have sealed a case against them if I choose to more forward on it? I never signed anything that says I wouldn't infringe if you know what I mean. They however signed under penalty of purjury that based on good faith...blah blah which is a pretty easy to slip out of of course.

All that document means is that if you can prove that they had NO good faith basis for making those claims, you may have a cause of action for unfair business practices or tortious interference. Don't read too much into this -- they don't have to "believe," or have enough evidence to prove, that they would win in infringement case in court -- they only have to show that there is a chance they could win, or at least enough evidence to bring a lawsuit. That's all that they need to show for "good faith," and that's a pretty low bar.

What actions might I want to consider to secure my rights since I plan on doing this as a serious business and trying to grow for the future? What might I want an attorney look into for this to grasp ans solidify the postion I would hold in this scenario?

You need an attorney to become familiar with your business plans, and the competitive landscape, and advise you based on the actual facts of your situation. There is only so much you can do to protect yourself -- companies get sued all of the time, it's just a cost of doing business in many cases.

 

[lowenstat]

Very good, thanks for the replies. Helps me start to understand what is happening to me.

I'd like the ask the last question again but I will try to be clearer.

"What actions might I want to consider to secure my rights since I plan on doing this as a serious business and trying to grow for the future? What might I want an attorney look into for this to grasp ans solidify the postion I would hold in this scenario?"

I agree and will have an attorney review what I am doing. This case really has taught me a great deal about what I didn't know. Not all of it is finished however, but time will tell.

But what I was trying to ask is given the scenerio of company x backing off on the specific ads I was pushing them hard on, (which left out certain type of ads that are more complicated), what might I want an attorney do tactically to push this into a formal situation now that I might have the upper hand and they see it. You know how it is - it might be easier to work a deal with them in general now that they have changed their position. However, who even knows if an attorney was behind this and reviewed anything to do with any of this at all - they just hide behind a company name and officially named infringement type of department. So if I push it further then they might change their minds again - easy come, easy go.

Question is this: What smart path might I want to look into while I am over them. Now might be the time to have the attorney make fast contact, given what just happened in the scenario I presented, and do what ??? - court suit, agreement to C&D, friendly exhange to show my intentions. it just feels like if there is something I need to secure my position now is the time. For example, they only gave up on one set. No one ever brought up the otehr set of ads yet. I could still maybe DJ and force the issue and see what they bring.

I know what to do very well in a situation that I do know about. This is not one of them. But I can feel it here. But just don't know what "action" I should look into with an attorney. There is something smart to do next I just don't know what it is. I am hoping it is less then a DJ suit but if not then I am sure a lot closer to winning that now by their own admission.