Buckle up, because we’ve got a new entry in the “no, you can’t file copyright claims over something you put on the public docket” sweepstakes. A Texas-based researcher named Lindsay Olson was paid $30,000 by a law firm representing a January 6 defendant to conduct a “community attitude” survey about D.C. jurors’ feelings toward the Capitol rioters. Her conclusion was that D.C. residents felt about as much sympathy for insurrectionists as they do for telemarketers if those telemarketers also tried to hang the Vice President on livestream.
Those attorneys did what lawyers do: they filed it with their venue change motion on the public docket. From there, the lawyers for other defendants did what they do: they pulled the public filing, attached it to their own motions, and also argued that D.C. jurors were unduly biased against people attempting to overthrow the government.
All of these motions failed.
But now Olson has sued a couple attorneys for including the report in their own motions claiming they “pirated” her expert report without paying her the requisite $30,000 fee that she charged the first lawyers.
She’s also suing the Trump administration to the extent federal public defenders used the report — which she claims happened at least 11 times — and there’s a satisfying irony to Trump pardoning all these people and still being potentially on the hook for how they were defended.
There shouldn’t be any argument that the report was a valuable work of intellectual property. It reflects Olson’s expertise, judgment, and effort. She could absolutely claim copyright protection over it… until it entered the public domain.
This is a topic we’ve had occasion to deal with before, when a boutique law firm sued Winston & Strawn over cribbing from a motion to dismiss filed in a related case. That case tried to bootstrap protections against online legal research databases profiting off motions to a claim against any lawyer copying another firm’s filed motion. The argument was quite dumb, though we’ll never know how it turned out because Winston settled for undisclosed terms.
This time it’s not a rival law firm, but an expert report, but the conclusion is the same. If authors could claim intellectual property rights over their explicitly intended for litigation work product after it enters the docket, it defeats the whole purpose of a common law legal system. These venue motions were consistently unsuccessful, but imagine if one had prevailed. In such a world, the law could not be such an ass as to tell similarly situated defendants “the court has found that the jury pool is biased… but please deposit your $30,000 before we give you access to that legal conclusion.”
Access to justice is baked into any case that involves experts, but the idea that a relatively deep-pocketed litigant can commission a report and poorer litigants have to pay an additional toll to access it creates a dystopian justice model.
Upon hearing about these lawsuits, my first instinct was that Olson is suing the wrong parties, and that her claim must rest against her original clients who posted the report because — I assumed — the terms of that deal had to include some provision that they would not post it in full on the public docket. Alas, that’s not the case! From the complaint in Olson v. Webb, one of the suits filed in the Southern District of Florida:
After Plaintiff delivered a copy of the Report to the Requesting Attorneys, they and [sic] uploaded a copy of the Report to the Court’s public docket in 1:22-cr-00015-APM (Dkt. 654-1) and in 1:21-cr-00028-APM (Dkt. 93-1) (otherwise known as the Oath Keepers case consolidated for trial and jury selection), causing a public display of the Report in support of a motion to transfer venue, as authorized by Plaintiff in exchange for the required $30,000 payment.
She authorized the publication on the docket!
The fact that Defendants made an authorized copy of the Report from the Internet (PACER) and downloaded a copy which was available through PACER, does not mean that the Report was in the public domain or unconditionally free to publicly display a copy of the Report for the very same purpose it was created and offered in the market.
It kinda does, though. Any other outcome would undermine the purpose of a legal system based upon delivering consistent outcomes for parties. It also quickly becomes a silly argument because Olson concedes — as she must — that other lawyers were free to refer to the report on the docket when defending other clients, but claims it went too far when those lawyers attached the report:
Notably, other lawyers representing J6 defendants who filed motions to transfer venue only referenced that the Report existed but did not copy and upload for public display the Report in its entirety and instead summarized the lawyer’s conclusion of the Report.
So, the intellectual property can be invoked, but only if lawyers tell a federal judge, “You have PACER, look it up your own damn self!” That strikes me as… untenable. Judges appreciate having all the relevant material in one packet as opposed to lawyers referencing evidence as “a surprise tool that can help us later.”
And it’s not like the lawyers paying her fee aren’t getting value above and beyond anyone simply attaching the report to their own motions. When there’s oral argument, Olson’s clients can consult with her about the finer points of the report. If a judge wants further briefing, her paying customers will have access to her expertise. In the event some judge seeks limited testimony, the lawyers who’ve ponied up the cash will end up having access to her as a witness. All of that matters.
It’s hard not to feel for Olson. She did a lot of work. She got paid once, and now her product is circulating freely among the defense bar like a bad chain email from 2003. But that’s the natural life cycle of a publicly filed document in the legal system. If someone tried to snake it off the docket and use it for a non-legal purpose, it raises different concerns. But this is, fundamentally, a piece of legal advocacy, and if lawyers aren’t free to use it to advance similar legal advocacy, the system breaks. Legal arguments can’t be hoarded to the exclusive benefit of one party once they’re out there. Was she planning to sue the judges if they quoted from the report in their opinions? See how none of this makes sense the more you game it out?
If she wanted to limit the circulation of the full breadth of her work, she could’ve put more limits on the license she gave the first attorneys. Or, better, she should’ve negotiated for more money up front knowing that she was providing her clients with a first actor advantage.
She deserves to get paid. But this should not become an intellectual property issue.
(The Webb complaint available on the next page…)
Attorneys for Jan. 6 defendants face lawsuits for plagiarism [CBS News]
Earlier: Boutique Sues Winston & Strawn For Violating ‘Copyright’ In Rule 12 Brief
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
The post Expert Sues Jan. 6 Lawyers For Attaching Her Publicly Filed Report Without Paying $30K appeared first on Above the Law.
Buckle up, because we’ve got a new entry in the “no, you can’t file copyright claims over something you put on the public docket” sweepstakes. A Texas-based researcher named Lindsay Olson was paid $30,000 by a law firm representing a January 6 defendant to conduct a “community attitude” survey about D.C. jurors’ feelings toward the Capitol rioters. Her conclusion was that D.C. residents felt about as much sympathy for insurrectionists as they do for telemarketers if those telemarketers also tried to hang the Vice President on livestream.
Those attorneys did what lawyers do: they filed it with their venue change motion on the public docket. From there, the lawyers for other defendants did what they do: they pulled the public filing, attached it to their own motions, and also argued that D.C. jurors were unduly biased against people attempting to overthrow the government.
All of these motions failed.
But now Olson has sued a couple attorneys for including the report in their own motions claiming they “pirated” her expert report without paying her the requisite $30,000 fee that she charged the first lawyers.
She’s also suing the Trump administration to the extent federal public defenders used the report — which she claims happened at least 11 times — and there’s a satisfying irony to Trump pardoning all these people and still being potentially on the hook for how they were defended.
There shouldn’t be any argument that the report was a valuable work of intellectual property. It reflects Olson’s expertise, judgment, and effort. She could absolutely claim copyright protection over it… until it entered the public domain.
This is a topic we’ve had occasion to deal with before, when a boutique law firm sued Winston & Strawn over cribbing from a motion to dismiss filed in a related case. That case tried to bootstrap protections against online legal research databases profiting off motions to a claim against any lawyer copying another firm’s filed motion. The argument was quite dumb, though we’ll never know how it turned out because Winston settled for undisclosed terms.
This time it’s not a rival law firm, but an expert report, but the conclusion is the same. If authors could claim intellectual property rights over their explicitly intended for litigation work product after it enters the docket, it defeats the whole purpose of a common law legal system. These venue motions were consistently unsuccessful, but imagine if one had prevailed. In such a world, the law could not be such an ass as to tell similarly situated defendants “the court has found that the jury pool is biased… but please deposit your $30,000 before we give you access to that legal conclusion.”
Access to justice is baked into any case that involves experts, but the idea that a relatively deep-pocketed litigant can commission a report and poorer litigants have to pay an additional toll to access it creates a dystopian justice model.
Upon hearing about these lawsuits, my first instinct was that Olson is suing the wrong parties, and that her claim must rest against her original clients who posted the report because — I assumed — the terms of that deal had to include some provision that they would not post it in full on the public docket. Alas, that’s not the case! From the complaint in Olson v. Webb, one of the suits filed in the Southern District of Florida:
After Plaintiff delivered a copy of the Report to the Requesting Attorneys, they and [sic] uploaded a copy of the Report to the Court’s public docket in 1:22-cr-00015-APM (Dkt. 654-1) and in 1:21-cr-00028-APM (Dkt. 93-1) (otherwise known as the Oath Keepers case consolidated for trial and jury selection), causing a public display of the Report in support of a motion to transfer venue, as authorized by Plaintiff in exchange for the required $30,000 payment.
She authorized the publication on the docket!
The fact that Defendants made an authorized copy of the Report from the Internet (PACER) and downloaded a copy which was available through PACER, does not mean that the Report was in the public domain or unconditionally free to publicly display a copy of the Report for the very same purpose it was created and offered in the market.
It kinda does, though. Any other outcome would undermine the purpose of a legal system based upon delivering consistent outcomes for parties. It also quickly becomes a silly argument because Olson concedes — as she must — that other lawyers were free to refer to the report on the docket when defending other clients, but claims it went too far when those lawyers attached the report:
Notably, other lawyers representing J6 defendants who filed motions to transfer venue only referenced that the Report existed but did not copy and upload for public display the Report in its entirety and instead summarized the lawyer’s conclusion of the Report.
So, the intellectual property can be invoked, but only if lawyers tell a federal judge, “You have PACER, look it up your own damn self!” That strikes me as… untenable. Judges appreciate having all the relevant material in one packet as opposed to lawyers referencing evidence as “a surprise tool that can help us later.”
And it’s not like the lawyers paying her fee aren’t getting value above and beyond anyone simply attaching the report to their own motions. When there’s oral argument, Olson’s clients can consult with her about the finer points of the report. If a judge wants further briefing, her paying customers will have access to her expertise. In the event some judge seeks limited testimony, the lawyers who’ve ponied up the cash will end up having access to her as a witness. All of that matters.
It’s hard not to feel for Olson. She did a lot of work. She got paid once, and now her product is circulating freely among the defense bar like a bad chain email from 2003. But that’s the natural life cycle of a publicly filed document in the legal system. If someone tried to snake it off the docket and use it for a non-legal purpose, it raises different concerns. But this is, fundamentally, a piece of legal advocacy, and if lawyers aren’t free to use it to advance similar legal advocacy, the system breaks. Legal arguments can’t be hoarded to the exclusive benefit of one party once they’re out there. Was she planning to sue the judges if they quoted from the report in their opinions? See how none of this makes sense the more you game it out?
If she wanted to limit the circulation of the full breadth of her work, she could’ve put more limits on the license she gave the first attorneys. Or, better, she should’ve negotiated for more money up front knowing that she was providing her clients with a first actor advantage.
She deserves to get paid. But this should not become an intellectual property issue.
(The Webb complaint available on the next page…)
Attorneys for Jan. 6 defendants face lawsuits for plagiarism [CBS News]
Earlier: Boutique Sues Winston & Strawn For Violating ‘Copyright’ In Rule 12 Brief
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
