Judge in YouTube case rebukes Google, Viacom

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NEW YORK -- The judge presiding over the Google-Viacom lawsuit slapped down both sides Friday for what he essentially described as gamesmanship, citing Viacom in particular for "misguided behavior" in its latest maneuver.

The litigants, in a Manhattan courtroom for a Friday hearing in the lawsuit's discovery phase, were each forced to defend a procedural tactic that the judge frowned upon.

Google lawyers, led by well-known litigator Phil Beck, asked that the hearing be made private out of fear that Viacom in its presentation refer to data that Google classified as "highly confidential." Beck said he was forced to do so because Viacom had failed to indicate to Google the subject of its presentation.

Viacom argued that Google's claim of confidentiality was an attempt to throw up a smokescreen; lawyers for the company also said that they could not make available details of their presentation ahead of time for fear of tipping their hand on their litigation strategy.

The presiding judge, Louis Stanton of the Southern District Court, reacted strongly to the Google request, saying that he would take hearings private only under extreme circumstances.

But he reserved sharper words for Viacom and its lead counsel, Donald Verrilli. Stanton said that the company's decision not to make available the specifics of its presentation was a "ridiculous position" in the discovery phase, which generally calls for more collaboration and less strategic withholding. "You're using my time and a public forum to gain a perceived advantage," the judge said. "I think that's a problem. It's not a way to run a litigation."

Then, also referring to the Viacom tactic, he added, "Things are complex enough (in this case) without being made more complex by misguided behavior by counsel." Verrilli made several attempts to apologize to the judge but Stanton essentially waved them away.

With the judge not satisfied with the degree of collaboration on Viacom's part, he adjourned the hearing and instructed sides to meet outside a courtroom next week to hash out discovery-related issues, with a courtroom hearing likely to follow if the sides can't reach a resolution on those procedural issues.

Viacom is suing Google and its YouTube subsidiary over alleged piracy of Comedy Central, MTV and other Viacom-owned content. Google has said that it cooperates with any takedown notice and can't be expected to police its entire site in advance to ensure no infringing material is posted.

While reps cautioned that the lawsuit was still at an early stage, Stanton's comments to both parties suggested to experts that he wanted the case to move forward with relative speed while also avoiding the shrewdness and tactical positioning that have marked the case practically from the start. The very presence of a judge at this stage of a lawsuit suggests a more active interest on Stanton's part; discovery proceedings are usually delegated to a lower-ranking magistrate judge.

Viacom and Google have met what one source described as "dozens of times" so far on issues of discovery but remain far apart on several key issues relating to the pretrial exchange of information. Friday's hearing marked the second courtroom appearance -- the first also was a discovery hearing -- because the suit was filed last spring.

The two sides are in the early stages of what's expected to be a long legal battle. Barring a settlement, discovery is expected to last until the end of 2008, with a trial potentially taking place after that.

Observers have said that it's generally in the interest of Google to keep the matter in the court as long as possible, when new technologies and realities will make the current piracy concerns less relevant. On the other hand, Viacom, as the plaintiff, is interested in a speedier and more public trial that could either force a settlement or sway public perception in their favor.
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