Damiano v. Sony Music Entertainment, Inc.

Full title: JAMES DAMIANO, Plaintiff, v. SONY MUSIC ENTERTAINMENT, INC. and BOB DYLAN…

Court: United States District Court, D. New Jersey

Date published: Nov 13, 2000

Civil Action No. 95-4795 (JBS) (D.N.J. Nov. 13, 2000)

Opinion

Civil Action No. 95-4795 (JBS)

Filed: November 13, 2000

MR. JAMES DAMIANO, Mine Hill, New Jersey, Plaintiff Pro Se.

STEVEN D. JOHNSON, ESQ., HECKER BROWN SHERRY JOHNSON Haddonfield, New Jersey, Attorneys for Defendants.

ORIN S. SNYDER, ESQ., PARCHER, HAYES SNYDER New York, NY, Attorneys for Defendants.

OPINION

SIMANDLE, District Judge.

This matter comes before the Court upon plaintiff Damiano's motion for reconsideration of this Court's December 16, 1996 Order granting summary judgment in favor of defendants, plaintiff's motion for reconsideration of this Court's November 23, 1999 and August 18, 2000 Orders finding plaintiff in contempt of earlier confidentiality orders issued in this case, and plaintiff's motion to vacate such confidentiality orders entered by Magistrate Judge Joel B. Rosen in 1996. For the reasons stated herein, plaintiff's motions will be denied.

I. BACKGROUND

The present case commenced over five years ago when plaintiff Damiano filed a complaint alleging that the acts of defendants Sony Music Entertainment, Inc. and Bob Dylan ("Defendants") constituted copyright infringement in violation of federal copyright law, 17 U.S.C. § 101, (Compl. Count I), and false designation of origin, misappropriation of property, breach of confidence, fraud, and mail fraud in violation of section 43(a) of the Lanham Act, 15 U.S.C. § 1051, et seq. (Compl., Counts II, III, IV, V, VI). On March 14, 1996, Magistrate Judge Joel B. Rosen issued the first of two protective orders in this case designating certain information and proprietary material possessed by defendants as confidential. On August 6, 1996, Judge Rosen granted Defendants's motion to designate all discovery materials and deposition transcripts as confidential. See Damiano v. Sony Music Entm't, 168 F.R.D. 485, 493 (D.N.J. 1996) (finding that evaluation of the facts under the Pansy ¹ balancing test supported a blanket protective order). Judge Rosen concluded that a blanket protective order was appropriate because it was likely that plaintiff would publicize depositions and other documents for financial profit and further reasoned that "using raw discovery materials for financial profit is not what this court considers to be a legitimate purpose for disclosure." Damiano, 168 F.R.D. at 492-93. The two confidentiality orders issued by Judge Rosen instructed all parties to keep all discovery materials confidential, and directed that any violation of the Orders would be punishable by contempt.

1 Pansy v. Borough of Stroudsberg , 23 F.3d 772 (3d Cir. 1994).

On September 16, 1996, Defendants filed a motion for summary judgment on all of plaintiff's claims. In a December 16, 1996 Opinion and Order, this Court granted Defendants' motion for summary judgment after finding that no reasonable jury could conclude that the words and phrases allegedly copied by Dylan and published by Sony were quantitatively or qualitatively important to the whole of plaintiff's allegedly infringed works or that the melodies contained in Defendant Dylan's "Dignity" were substantially similar in total concept and feel to Damiano's "Steel Guitars." This Court found that plaintiff's proofs failed to demonstrate that his works attained a threshold of originality sufficient to be protected by the copyright laws, and that no reasonable factfinder could conclude that there was an appropriation by defendants of the lyrics or melodies that Damiano had created. The Court further found that plaintiff's complaint was a deceptive "cut and paste job" that portrayed plaintiff's verses as if they were contiguous writings when in fact the verses had been edited, rearranged and titled in a misleading attempt to more closely resemble Dylan's works for purposes of this litigation.Damiano v. Sony Music Entm't, 975 F. Supp. 623 (D.N.J. 1996).²

2 Plaintiff's original motion for reconsideration of this Court's grant of summary judgment was denied on August 20, 1997. See 975 F. Supp. 633 (D.N.J. 1997) (Opinion upon reconsideration). Plaintiff's appeal was dismissed by the Third Circuit in 1998. See 166 F.3d 1204 (3d Cir. 1998).

At an October 29, 1999 hearing, after plaintiff published by use of the Internet confidential discovery materials protected under Judge Rosen's August, 1996 Order, this Court found plaintiff to be in contempt of the protective Orders and directed him to immediately cease all such dissemination. (See Order filed October 29, 1999.) At the hearing on October 29, 1999, Mr. Damiano apologized to defendants and to the Court for his contempt of the confidentiality orders,³ and asked for the Court to be lenient, indicating, "It makes no sense. I want to come on — off — I don't want to be on the internet. It's senseless, it's senseless and I don't want to hurt — I just want to forget the whole thing. I give you my word I won't even put up the story. I just want to end it, I really do," by which he meant discontinuing his Internet war against Sony and Dylan. (See Tr. Oct. 29, 1999 at 26:19-24.)

3 Typical of the contrition expressed by Mr. Damiano at the hearing on October 29, 1999 is this exchange with the Court, at Tr. Oct. 29, 1999 at 24:12 to 25:13:

THE COURT: . . . I'm also hearing Mr. Damiano say that he's anxious to stop doing these offending things and to put the whole thing behind him and to promise to never again, in the future, violate the orders of this Court.

MR. DAMIANO: Yes, your Honor. I give you my word to you, your Honor, that this is over now.

I spent all week, besides trying to prepare for the court, I was also trying to get all — as many websites that were linked to my website off the internet too, and that's not very easy. And if someone could supply me with a little help to do that, I could even work more efficiently in getting everything that I could possibly get off the internet. I could do that, but I need a little help because I don't have that expertise as far as computers are concerned. I've gotten a lot off and I think I would comply with anything that you see fit. I really do want to end everything now. And I hope you Honor understands that I was very hurt that they took my songs for 11 years and then they did that to me. But now I understand that I just want to — I just want to continue my life and forget about this whole thing, I really do. I was hurt that they even admitted that they lied to me, you know, in depositions and I wasn't able to post that on the internet. I mean, that hurt. But it doesn't matter any more. I understand the severity of this at this point, and I can comply. I give your Honor my word that it's over on my part. . . .

In a November 4, 1999 Memorandum Opinion, augmenting the Oral Opinion of October 29, 1999 (see id. at 38:8 to 47:24), this Court reviewed the full scope of plaintiff's contemptuous activities, which included the posting of confidential discovery materials on various websites, disseminating such confidential discovery information via e-mail and in chat rooms, and offering such materials for sale, just as Judge Rosen had predicted three years before when entering the confidentiality order.⁴ Further, the Court explicitly relied upon Mr. Damiano's promise to completely discontinue his publication of protected materials, deciding to not impose a contempt fine at the October 29, 1999 hearing.⁵ On November 23, 1999, following a final hearing to determine the appropriate contempt remedy on November 18, 1999, this Court Ordered plaintiff to pay defendants' attorney fees related to the contempt proceeding, which were calculated as $14,651.69 in this Court's Judgment filed December 20, 1999. That remedy did not suffice to deter Damiano's violations, as became apparent this year.

4 Indeed, as found in the Memorandum Opinion of November 4, 1999, slip op. at 9, Damiano defiantly posted the confidential discovery material at his website in 1999 and dared the attorneys for Sony and Dylan to download the materials and seek a contempt remedy before this Court.

5 The Court found on October 29, 1999, inter alia :

I'm imposing no fine today, though, because the purpose of my order that I'm entering today is to look forward. I'm taking Mr. Damiano at his word that he intends to never again violate this Court's order, that he wants to put this behind him, but I do find that it is necessary that there be this additional inducement to comply with this Court's order under penalty of financial fine being imposed.

Tr. Oct. 29, 1999 at 44:16-22.

On August 1, 2000, after learning that plaintiff had resumed posting confidential discovery materials on his websites, defendants again requested that Plaintiff be held in contempt, and in response this Court entered an Order to Show Cause directed to Damiano, filed on August 3, 2000. On August 11, 2000, this Court conducted a hearing at which plaintiff was to show cause why he should not be held in contempt for his continued activities in violation of the Confidentiality Orders. (Order, Aug. 3, 2000.) Plaintiff Damiano submitted no substantive opposition and admitted that his conduct violated this Court's orders despite his promises in 1999 not to do so. At the hearing, plaintiff again represented to the Court his desire to end his contemptuous activities and promised that he would permanently remove the subject websites in their entirety, including the confidential discovery materials contained therein. (Order, Aug. 18, 2000.) On August 18, 2000, this Court issued an Order finding plaintiff's continued dissemination of court ordered confidential discovery materials via his websites to be willful contempt of this Court's October 29, 1999 Order for Contempt and Injunctive Relief. (Order, Aug. 18, 2000.) Further, the court found that plaintiff had made no payment toward the 1999 contempt judgment which had required him to pay the reasonable legal fees of defense counsel which his contempt had provoked, in the sum of $14,651.69. The August 18, 2000 Order thus also directed plaintiff to pay to defendants the previously imposed civil contempt judgment (from December 20, 1999) in the amount of $14,651.69, which remained unpaid, together with a civil contempt fine of $1,000.00 to the Clerk of the Court. The same Order directed plaintiff to pay an additional sum for Defendants's attorney's fees associated with the second contempt hearing, which was calculated as $14,967.31 in the Court's Order filed October 18, 2000.

Plaintiff filed the present reconsideration motions on August 30, 2000, for reconsideration of this Court's December 16, 1996 Order granting summary judgment to defendants, for reconsideration of this Court's November 23, 1999 and August 18, 2000 Orders, and for relief from Judge Rosen's 1996 Confidentiality Orders. On October 16, 2000, this Court issued an Order sealing plaintiff's instant motion and all the supporting documentation, since some of plaintiff's submissions themselves included confidential discovery material protected by the prior Orders of Judge Rosen and this Court. Although sealed, the Court has reviewed these documents.

For the reasons stated herein, plaintiff's motions will be denied.

II. DISCUSSION

Plaintiff now moves for reconsideration of this Court's December 16, 1996 Order granting summary judgment in favor of defendants, for reconsideration of this Court's November 23, 1999 and August 18, 2000 Orders, and for relief from Judge Rosen's 1996 Confidentiality Orders. In support of his motions, plaintiff argues that there are genuine issues of material fact to be decided regarding his copyright infringement claim against Defendants and that his actions during the course of this litigation did not constitute contempt. (Pls.' Certification at 101.)⁶ Defendants maintain that plaintiff never created anything that copyright laws protect and cite to this Court's summary judgment opinion and the Third Circuit's dismissal of plaintiff's appeal to that decision. For the reasons stated herein, plaintiff's motions will be denied.

6 Instead of submitting a separate brief in support of his motion for reconsideration, plaintiff included it at the end of his certification with continuous pagination. The brief runs from page 99 to 105 of the package of documents submitted by plaintiff and this opinion will cite to the brief using those page references.

A. Standards for Reconsideration and Reargument

According to Fed.R.Civ.P. 59(e), a party seeking to alter and amend a judgment must file a motion within ten days of the judgment and must show one of the following grounds: (1) an intervening change in the controlling law; (2)the availability of new evidence that was not available when the court granted the motion for summary judgment; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. Max's Seafood Café by Lou-Ann, Inc. v. Quinteros, 176 F.3d 669,677 (3d Cir. 1999) (citing North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). Similarly, pursuant to Local Civil Rule 7.1(g),⁷ a motion for reargument (often referred to as a "motion for reconsideration") will be granted only when "dispositive factual matters or controlling decisions of law" were presented to the court but not considered. Damiano v. Sony Music Entm't, 975 F. Supp. 623, 634 (D.N.J. 1997) (quoting Pelham v. United States, 661 F. Supp. 1063, 1065 (D.N.J. 1987)). Only where the district court overlooked matters that might have led to a different result had they been considered will a motion for reconsideration be granted. G-69 v. Degnan, 748 F. Supp. 274, 275 (D.N.J. 1990) (quoting Carteret Savings Bank, F.A. v. Shushan, 721 F. Supp. 705, 709 (D.N.J. 1989)).

7 See N1 Indus. v. Commercial Union Ins. Co . , 935 F. Supp. 513, 515-16 (D.N.J. 1996) (noting similarity of motion to alter and amend judgment under Rule 59(e) and motion for reargument under the predecessor of L. Civ.R. 7.1(g)).

1. December 16, 1996 Summary Judgment Opinion

On December 16, 1996, following a hearing and full consideration of all plaintiff's claims, this Court granted defendants' motion for summary judgment and dismissed the complaint in its entirety. Damiano v. Sony Music Entm't, 975 F. Supp. 623 (D.N.J. 1996), recons. denied, 975 F. Supp. 633 (D.N.J. 1997), app. dism'd, 166 F.3d 1204 (3d Cir. 1998). Plaintiff's motion for reconsideration under Fed.R.Civ.P. 59(e) and reargument under L. Civ.R. 7.1(g) of this Court's December 16, 1996 grant of summary judgment in favor of defendants, which is his second motion for such reconsideration, is time barred and therefore must be denied.

Plaintiff first filed a motion for reconsideration of this Court's December 16, 1996 summary judgment opinion on January 21, 1997, after this Court permitted an extension of the time in which such a motion could be filed. At that time, plaintiff was represented by attorney Steven M. Kramer. This first motion for reconsideration was denied by this Court on August 20, 1997. See Damiano v. Sony Music Entm't, 975 F. Supp. 633 (D.N.J. 1997). On September 25, 1998, the Third Circuit dismissed plaintiff's appeal to that decision. See 166 F.3d 1204 (3d Cir. 1998).

In his present motion for reconsideration of this Court's 1996 Opinion granting summary judgment, filed almost four years after the challenged Order was issued and over two years after his appeal to the Third Circuit was dismissed, plaintiff does nothing more that recycle arguments previously considered by this Court in his opposition to the motion for summary judgment and in his first motion for reconsideration. For example, plaintiff argues that this Court should allow him to amend his complaint to include a different version of his song, "Steel Guitars," so that it might be compared to Dylan's song "Dignity," see Damiano, 975 F. Supp. at 630-31; Pls.' Certification at 101-03, and that summary judgment was improper because "[t]his court never addressed the similarity of the background melodies" in "Dignity" and "Steel Guitars." (Pls.' Certification at 100). There is no complaint to amend; it was dismissed in 1996. This type of conduct is typical of this plaintiff's inability to accept that his claims were litigated carefully and fully and found to be without merit. Because plaintiff has not cited an intervening change in controlling law, the availability of new evidence, or the need to correct a clear error of law by this court, no reopening or reconsideration of this Court's December 16, 1996 Judgment is appropriate, and the motion is denied for untimeliness under Fed.R.Civ.P. 59 and L. Civ.R. 7.1(g).

2. The November 23, 1999 Order Imposing Contempt Sanctions

Plaintiff's motion for reconsideration under Fed.R.Civ.P. 59(e) and reargument under L. Civ.R. 7.1(g) of this Court's November 23, 1999 Order is time barred because it was filed more than ten days after the entry of the order being challenged. Any Motion for Reconsideration or Reargument of this Court's November 23, 1999 Order was due no later than December 7, 1999. Plaintiff filed the instant motion on August 30, 2000, more than eight months late. This lateness is compounded by the fact that Damiano appeared before this Court in the intervening period on August 11, 2000 and never raised objection to the November 23, 1999 Order.

Further, if Damiano actually presented some issue that the Court had overlooked, in deference to his pro se status this Court could relax the strict timetable for a reconsideration motion concerning the 1999 contempt order, but he has not done so. Plaintiff simply seeks to relitigate stale issues. Even assuming that plaintiff had timely filed this motion, plaintiff would be unable to meet his burden of showing that reconsideration was proper. Plaintiff has not cited an intervening change in controlling law, the availability of new evidence, or the need to correct a clear error of law. Because plaintiff has not met his burden under Fed.R.Civ.P. 59(e) or L. Civ.R. 7.1(g), no reconsideration of the November 23, 1999 Order is appropriate.

3. The August 18, 2000 Order Imposing Contempt Sanctions

Plaintiff also moves for reconsideration of this Court's August 18, 2000 Order. Although this motion was timely filed within the requisite ten day period, it must nonetheless be denied because plaintiff fails to meet either the burden under Fed.R.Civ.P. 59(e) or under L. Civ.R. 7.1(g) and he argues only that this Court improperly found him to be in contempt of Confidentiality Orders entered by this Court in 1996. Plaintiff offers no evidence of an intervening change in law, the availability of new evidence, or a clear error of law in support of his motion to alter this Court's judgment. Plaintiff argues only that "[i]t is illegal and unconstitutional for this court to accept as truth the biased contention of Bob Dylan's attorney, Orin Snyder, when no unbiased facts exist to support Mr. Snyders [sic] contention that James Damiano attempted to commercially exploit his claims against Mr. Dylan" (Pls.' Cert., para. 1), and reargues his position that no confidentiality orders should have been granted and that he was improperly held in contempt of such orders. This Court did not "overlook" arguments that Damiano never made at the August 11, 2000 hearing. Plaintiff, therefore, has not met his burden of demonstrating that the court "overlooked" a dispositive factual matter or a controlling decision of law and his motion to alter and amend this Court's judgment must be denied.⁸ 4. Judicial Estoppel

8 Independent of this Court's denial of reconsideration of the contempt findings made at the August 11, 2000 hearing and memorialized in the August 18, 2000 Order, this Court will consider whether the confidentiality orders under which Damiano received discovery should continue in the future to preclude his distribution or use of the protected information, or whether the need for such protection, while present in 1996, has dissipated over time so that the public interest is better served by dissolving the confidentiality orders, in section B, subpart 2 below.

In addition to being time barred and without merit, plaintiff's motion for reconsideration of this Court's November 23, 1999 and August 18, 2000 Contempt Orders is barred by judicial estoppel. Plaintiff presently seeks to have this Court reconsider the imposition of contempt sanctions in 1999 and 2000, despite the fact that plaintiff himself recently agreed with the Court that his claim lacked merit and promised in October, 1999 and August, 2000 to refrain from publishing protected discovery materials against Sony and Dylan in order to secure more lenient treatment from the Court. Because the Court finds that plaintiff previously relied on a position inconsistent with his instant motion for reconsideration in bad faith, plaintiff is judicially estopped from moving for reconsideration of the Contempt judgments from November 23, 1999 (including the Order determining the amount of the attorney fee sanction filed December 20, 1999) and August 18, 2000 (including the Order determining the amount of the attorney fee sanction and contempt fine filed October 18, 2000).

The doctrine of judicial estoppel is "an equitable doctrine which vests considerable discretion in the court," McNemar v. Disney Store, Inc., 91 F.3d 610, 617 (3d Cir. 1996), and "serves a consistently clear and undisputed jurisprudential purpose: to protect the integrity of the courts." Id., 91 F.3d at 616. When finding that a party is judicially estopped from raising a particular position, a district court must "focus attentively on the particularity distinctive features of the case before the court, since `each case must be decided on its own particular facts and circumstances.'" Klein v. Stahl GMBH Co., 185 F.3d 98, 108 (3d Cir. 1999) (quoting McNemar, 91 F.3d at 617) (citing Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 360 (3d Cir. 1996)). Further, the sanction of judicial estoppel should be "tailored to address the harm identified." Republic of the Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 73 (3d Cir. 1994).

Judicial estoppel may be invoked "to preserve the integrity of the judicial system by preventing parties from playing fast and loose with the courts in assuming inconsistent positions." McNemar, 91 F.3d at 617. The Third Circuit articulated a two prong test to be used by a district court prior to applying the doctrine of judicial estoppel; the district court must first determine whether the litigant's present position is inconsistent with a position formerly asserted, and must next determine whether either or both of the inconsistent positions were asserted in bad faith. Ryan Operations, 81 F.3d at 361.

Plaintiff's own words clearly show that he has attempted to reap the benefits of adopting two inconsistent positions before this Court, each when it suited him, in bad faith. For example, at the August 11, 2000 contempt hearing, Damiano stated:

I do give you my word, your Honor, it's over. I know I gave it to you before, and, like I said, I felt bad about saying that to you and I'm very sincere at this point — I respect what you are giving me at this point. So I would not renege on my word to you.

(Contempt Hr'g, Aug. 11, 2000, T 101-18 to 101-22.) By his own admission, plaintiff previously "promised" the court that he would cease disseminating confidential discovery information and end his campaign against defendants in exchange for the Court's leniency. The Court relied upon Mr. Damiano's professed contrition. Despite his earlier promises in 1999, quoted at length at pp. 5-6, above, Mr. Damiano again began disseminating information protected by the confidentiality Orders, which led to the second contempt hearing on August 11, 2000. When faced with the prospect of another judgment imposing severe fines, plaintiff adopted the above-quoted repentant position in another attempt to minimize his liability. This Court accepted Mr. Damiano's last promise to "end it all" and imposed a minimum contempt fine of $1,000.00. Additionally, defendants' attorneys relied on Mr. Damiano's promise and did not seek to have more severe contempt fines imposed by this Court. Then, just nineteen days later, as predicted by defendants' attorney at the second contempt hearing, plaintiff changed his position again in the instant "certification" and motion for reconsideration.

In his brief in support of the instant motion, plaintiff admits that the position he adopted at the August 11, 2000 contempt hearing was inconsistent with his current position and that he used the repentant position to gain leniency. Plaintiff now attempts to persuade the Court that he should nonetheless be permitted to continue on with his crusade in violation of law. Specifically, plaintiff wrote:

I apologize to Judge Simandle for making a decision to drop everything as far as this situation however I was under duress in court knowing that I was unrepresented by counsel during my hearing for contempt and the outcome could have been incarceration.

(Pls.' Certification at 103.) Again, Plaintiff's own words reveal that he is attempting to resurrect and perpetuate this meritless lawsuit indefinitely and disregard this Court's confidentiality orders, all while avoiding more severe contempt sanctions. Plaintiff's actions demonstrate his utter bad faith and are a prime example of a litigant playing "fast and loose with the court," and will not be tolerated.

Plaintiff's chamaeleon-like conduct concerning his position regarding the merits and continuance of this litigation is inconsistent, and his continued contemptuous behavior, including his persistent inability to tell the Court the truth, even about his home address,⁹ demonstrates the requisite bad faith for imposition of judicial estoppel on the issue of reconsideration. Plaintiff's disturbing behavior throughout the duration of this litigation chronicles his efforts to "play fast and loose with the courts," even in the face of monetary sanctions. Plaintiff's twice-repeated broken promises to "end it all" and his false apologies for "wasting [the Court's] time," interspersed with his claims that "[t]his court cannot ignor [sic] defendants [sic] massive eleven year solicitation of plaintiff James Damiano's songs, defendants [sic] admissions of guilt and the similarities between works," (Pls.' Certification at 105), clearly warrant preclusion of the instant motion for reconsideration.

9 It is appropriate to note that plaintiff has caused ongoing confusion about his own address. On November 29, 1999, plaintiff advised the Court that he had not received the Court's recent Orders. Plaintiff then indicated that his address was 215 Route 46, Mine Hill, New Jersey, 07803. At the August 11, 2000 hearing, plaintiff was asked, on the record, to clarify his address. Plaintiff stated that he lived at "115 Route 46, Mine Hill." The Court confirmed that plaintiff lived at "115" and confirmed his telephone number. In his brief in support of the instant motion, plaintiff listed his address as "215 Rt 46" in Mine Hill, New Jersey. (Pls.' Certification at 99.) This Court will accept plaintiff's sworn testimony on August 11, 2000 relating to his address as the truth and will direct all correspondence to 115 Route 46, Mine Hill, New Jersey.

As the Third Circuit recently wrote, "[j]udicial estoppel is one arrow in the quiver of sanctions at the court's disposal. Each of those arrows is a defensive weapon, loosed to protect the integrity of the court's processes." Klein, 185 F.3d at 109. This Court has fully considered plaintiff's claims and has attempted to halt his contemptuous behavior by repeatedly imposing monetary sanctions. Even after being fined by the Court, plaintiff returns now with his motion for reconsideration, in another attempt to make a mockery of the integrity of this Court. Such blatant disregard for the judicial process will not be tolerated and clearly justifies this Court's decision to bar his current motion for reconsideration of the November 23, 1999 and August 18, 2000 Orders imposing contempt sanctions.

Based on the law of the Third Circuit concerning judicial estoppel, this Court holds that a plaintiff, such as Mr. Damiano, who twice adopts one position that is relied upon by a court in his favor, namely, his promise to cease harassment of defendants through violation of this Court's Orders, is judicially estopped from contradicting that position in a bad faith attempt to repeatedly reargue meritless positions while contemning the prior judgments of the court. Plaintiff is therefore estopped from asserting a position inconsistent with the one relied on by this Court at his October, 1999 and August, 2000 contempt hearings.

B. Motion to Vacate the 1996 Confidentiality Orders

1. Standard for relief from judgment or order under Rule 60(b)

According to Fed.R.Civ.P. 60(b)(1), the court may relieve a party from a final judgment or order for, among other reasons, mistake, inadvertence, surprise or excusable neglect, and, under Fed.R.Civ.P. 60(b)(3), the court may relieve a party from a final judgment or order for fraud, misrepresentation, or other misconduct of an adverse party. The rule also requires that any motion for relief "be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken." Fed.R.Civ.P. 60(b). Relief under Fed.R.Civ.P. 60(b) is available "only under such circumstances that the `overriding interest in the finality and repose of judgments may properly be overcome.'" Dietsch v. United States, 2 F. Supp.2d 627, 631 (D.N.J. 1998) (citing Harris v. Martin, 834 F.2d 361, 364 (3d Cir. 1987)). The Rule 60(b) remedy is "extraordinary, and [only] special circumstances may justify granting relief under it." Dietsch, 2 F. Supp.2d at 631 (quoting Moolenaar v. Government of Virgin Islands, 822 F.2d 1342, 1346 (3d Cir. 1987)).

Plaintiff moves to vacate the 1996 Confidentiality Orders entered by Judge Rosen, which will be analyzed by this Court under Fed.R.Civ.P. 60(b)(1) as a Motion for Relief From the 1996 Orders. Plaintiff argues that Judge Rosen's decision to grant the confidentiality orders was incorrect and that the orders were based only on defense counsel's unsubstantiated allegations. (Pl.'s Cert., para. 2.) In his motion plaintiff essentially recapitulates arguments previously considered and ruled upon by this Court.

Plaintiff's Motion to vacate the 1996 Orders of Judge Rosen first appears to be time barred. Although plaintiff does not cite to a particular subsection of Fed.R.Civ.P. 60(b), his argument suggests that he is alleging mistake under Rule 60(b)(1) or fraud under Rule 60(b)(3). As set forth above, motions for relief under those two sections must be filed not more than a year after the order was entered. In the instant case, Judge Rosen's Confidentiality Orders were entered on March 14, 1996 and May 10, 1996, and the time for filing motions for relief from those orders passed over two years ago.

Even if plaintiff's motion was timely under Rules 60(b)(1) or 60(b)(3), plaintiff would be unable to successfully overcome his burden of demonstrating that the overriding interest in the finality and repose of judgments may properly be overcome by vacating the confidentiality orders. Plaintiff claims that the court erred when it took the statement made by defense counsel that "[f]or several years preceding this lawsuit, Mr. Damiano sought to commercially exploit his meritless allegations against Bob Dylan" (Pl.'s Cert., para. 2), as the truth when considering defendants' motion to hold Damiano in contempt, and that the court should now correct that error. In fact, as discussed in subpart 2 below, it has been plaintiff's own contemptuous actions since the inception of this litigation that have justified the need for continuing protection of confidential discovery information. The Court next considers whether the confidentiality orders of 1996 should be vacated due to changed circumstances or other reasons.

2. Pansy Analysis: Whether the 1996 Confidentiality Orders Should Have Continuing Validity

In the interest of completeness, this Court will now evaluate the continuing validity of the confidentiality orders originally issued in 1996 and maintained during the long duration of this litigation. Under the law of the Third Circuit, this Court finds that the continuation of the confidentiality orders issued by Judge Rosen in 1996 was necessary and proper to protect the privacy interests of the parties in this litigation. It is well established law that courts have the power to grant confidentiality orders over discovery materials. The Supreme Court in Seattle Times Co. v. Rhinehart, held that there is "no question as to the court's jurisdiction to [enter protective orders] under the inherent `equitable powers of courts of law over their own process, to prevent abuses, oppression, and injustices.'" 467 U.S. 20, 35 104 S.Ct. 2199, 2209, 81 L.Ed.2d 17 (1984) (quoting International Products Corp. v. Koons, 325 F.2d 403, 407-08 (2d Cir. 1963)).

The power to grant confidentiality orders, however, is not unlimited, and the Third Circuit has written that such orders should not be granted arbitrarily. Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994). Specifically, the Third Circuit directed that "whether an order of confidentiality is granted at the discovery stage or any other stage of litigation, including settlement, good cause must be shown to justify the order." Pansy, 23 F.3d at 786. The Pansy opinion requires district courts to clearly articulate the good cause justifying that the subject discovery be protected, id. at 786, and that the district court's analysis reflect a balancing of private and public interests. Id. Specifically, the court wrote:

Discretion should be left with the court to evaluate the competing considerations in light of the facts of individual cases. By focusing on the particular circumstances in the cases before them, courts are in the best position to prevent both the overly broad use of [protective] orders and the unnecessary denial of confidentiality for information that deserves it.

Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995) (quoting Arthur R. Miller, "Confidentiality, Protective Orders, and Public Access to the Courts," 105 Harv. L. Rev. 427, 492 (1991)); see also Damiano v. Sony Music Entm't, 168 F.R.D. 485 (D.N.J. 1996).

The Pansy court articulated several factors, which are neither mandatory nor exhaustive, to be considered by a district court when determining whether "good cause" exists. Those factors include:

i. whether disclosure would violate the privacy interests of the party seeking protection;

ii. whether the information is being sought for a legitimate purpose;

iii. whether disclosure of the information will cause a party embarrassment;

iv. whether confidentiality is being sought over information important to public health and safety;

v. whether the sharing of information among litigants will promote fairness and efficiency;

vi. whether a party benefitting from the order of confidentiality is a public entity or official; and

vii. whether the case involves issues important to the public.

Pansy, 23 F.3d at 787-91; Glenmede, 56 F.3d at 483; Damiano, 168 F.R.D. at 490-91. When Judge Rosen modified the initial protective order in August, 1996, and directed that all discovery material in this case be kept confidential, he thoroughly weighed the factors against disclosure with the factors in favor of disclosure. See Damiano, 168 F.R.D. at 491-93 (weighing that Dylan is a private citizen involved in a private case of no legitimate public concern and that both parties have equal access to all discovery materials against plaintiff's intent to inappropriately exploit discovery materials for financial gain).

As noted previously in this Court's November 4, 1999 Memorandum Order, Judge Rosen's determination that plaintiff sought the discovery material so that he could publicize and commercially exploit those materials was absolutely correct.¹⁰ Beginning in 1997 and continuing through the present time, plaintiff has attempted to disseminate discovery materials covered by the protective orders in a number of different ways. In 1997, plaintiff posted confidential discovery material on virtue@planet.net and, after this Court advised plaintiff that such postings violated the Protective Orders, plaintiff removed the information from that site and later re-posted the same information onwww.geocites.com/SOHO/Gallery/1238. That site, which is now unavailable, had been viewed 1,423,054 times between 1997 and September 28, 1999.Damiano, No. 95-4795, slip op. at 7 (D.N.J. Nov. 4, 1999). Plaintiff also offered confidential discovery information atwww.themusicvine.com/users/JAGGAR/Virt34385. Plaintiff continued this type of exploitative behavior after he was first held to be in contempt of court by posting protected deposition testimony in a chat room. During the year 2000, plaintiff "broadcast" e-mail transmissions to several thousand attorneys, including the confidential discovery information, purporting to be seeking legal representation but in fact succeeding only in an artifice in violation of this Court's orders.

10 The evidence catalogued by Judge Rosen in his August 6, 1996 Opinion that supported this determination included plaintiff's manuscript about plaintiff's allegations, a written contract to sell the manuscript, an advertisement in Rolling Stone magazine offering to sell the unpublished manuscript, and plaintiff's submission of the manuscript to "A Current Affair" and The New Yorker magazine.

Now it appears that plaintiff, after being held in contempt for again violating the clear and thoroughly discussed protective orders, is again trying to defeat the procedures implemented by this Court by submitting confidential materials as a part of his certification in support of the instant motion and related exhibits in an attempt to have such materials included in the public record. Plaintiff Damiano's present application (baldly publishing the protected materials), just like his conduct in fabricating lyrics to resemble Dylan's and then claiming infringement, demonstrates bad faith and fraud.

Furthermore, plaintiff's sole purpose for gaining access to the commercially sensitive information about Sony and Dylan, including the organization of their business, profit and royalty information, and private financial data, in addition to the creative process of Dylan, was to inflict harm on defendants by embarrassing them and exposing confidential business information. Exposure of Sony and Dylan's business practices could threaten their competitiveness and financial position within the recording industry. See Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986) (requiring businesses to show with some specificity that embarrassment and dissemination will result in financial harm); Glenmede, 56 F.3d at 484. This, coupled with the plaintiff's continued attempts to publish the confidential materials on his websites and with the Clerk of this Court, although such materials pertain only tangentially to his claims and motions, show that this Court was justified in continuing the confidentiality orders.

In addition to the Pansy factors previously articulated by Judge Rosen and carefully considered by this Court, it is now necessary to highlight two points which further demonstrate plaintiff's continuing bad faith and improper motives for accessing the discovery in this case and weigh heavily in favor of this Court's decision to affirm the continuing validity of the 1996 Confidentiality Orders and deny plaintiff's motions. First, Plaintiff gained access to many of the discovery materials in this case solely because of the confidentiality orders issued by Judge Rosen. He would not otherwise have gained access to materials relating to Sony and Dylan's business, both professional and private, were it not for the existence of the protective orders, for the reasons found by Judge Rosen. If anything, the passage of time has not dissipated the need for continued confidentiality, but has instead enhanced that need in view of Mr. Damiano's continued harassing conduct and attempts to sensationalize and exploit these discovery materials gathered in his meritless case. By willfully disseminating these confidential materials to the public which had been disclosed to him for the sole purpose of litigating his claims against Defendants, in direct contravention to this Court's orders, Plaintiff attempts to tailor the procedures of this litigation as he alone sees fit. This type of behavior is completely improper and supports Defendant's request for continuing confidentiality.

Second, Plaintiff is not now, and has never been, prohibited under the confidentiality orders from using the discovery materials from this litigation in his motion practice, so long as the portions of such motions containing protected material are filed under seal with the Clerk of this Court. Indeed, as Defendants themselves profess, plaintiff may exercise his First Amendment right to speak about his claims with whomever he so desires, and he is only prohibited from exploiting the discovery materials obtained during the course of this litigation for publicity, profit or collateral gain. Irrespective of these facts, plaintiff chose to file the instant motion, buried deep inside a "certification" made up of discovery materials protected by the orders.¹¹ By doing so without filing the confidential portions of the motion under seal, Plaintiff attempts once again to circumvent the protective orders in this case by having such confidential materials become part of the public record, which could then be posted on Plaintiff's website by anyone who chooses to view the Clerk's file. This type of behavior justifies this Court's continuation of the existing protective orders in this case.

11 In connection with the instant motion, Plaintiff has filed a 105 page certification, plus exhibits, and a 322 page supplemental certification, plus exhibits with the Clerk of this Court. The bulk of these "certifications" are the gross text of deposition transcripts and other protected discovery material produced in connection with this case, which do not directly support the motions before the court. This conduct, when considered in conjunction with his past willful disregard of this Court's orders, demonstrates once again that Plaintiff's motives for filing such "certifications" are not proper.

Finally, the limited nature of the 1996 protective orders does not preclude Damiano from publishing his own version of reality to whomever he chooses, so long as the materials and testimony that came to Damiano under the discovery process in this case are not themselves disclosed. He remains as free as ever to continue his diatribes on any subject of his choice.

Because plaintiff was permitted to use any and all of the discovery obtained during the course of this litigation for purposes of this case, plaintiff cannot claim that this Court has in any way hindered his ability to fully and exhaustively litigate the merits of his claims.

Because plaintiff is unable to meet his burden for relief from Judge Rosen's 1996 Confidentiality Orders under Fed.R.Civ.P. 60(b)(1), his motion will be denied.

III. CONCLUSION

For the reasons set forth above, plaintiff's motion for reconsideration of this Court's December 16, 1996 Order granting summary judgment in favor of defendants, plaintiff's motion for reconsideration of this Court's November 23, 1999 and August 18, 2000 Orders finding plaintiff in contempt of earlier confidentiality orders, and plaintiff's motion to vacate the confidentiality orders entered by Judge Rosen on March 14, 1996 and August 6, 1996 must be denied.

The accompanying Order has been entered.

ORDER

This matter having come before the court upon the plaintiff's motion for reconsideration of this Court's December 16, 1996 Order granting summary judgment in favor of defendants, for reconsideration of this Court's November 23, 1999 and August 18, 2000 Orders finding plaintiff in contempt of earlier confidentiality orders, and plaintiff's motion to vacate such confidentiality orders entered by Judge Rosen on March 14, 1996 and August 6, 1996; and the court having considered the submissions of the parties; and for the reasons set forth in the Opinion of today's date;

It is this ___ day of November 2000, hereby

ORDERED that plaintiff's motion for reconsideration of this Court's December 16, 1996 Order granting summary judgment in favor of defendants be and hereby is DENIED ; and it is

FURTHER ORDERED that the plaintiff's motions for reconsideration of this Court's November 29, 1999 and August 18, 2000 Orders be, and hereby are DENIED ; and it is

FURTHER ORDERED that plaintiff's motion to vacate the confidentiality orders entered by Magistrate Judge Rosen on March 14, 1996 and August 6, 1996 be, and hereby, is DENIED , and those Orders remain in full force and effect.