AN INSIGHT INTO HOW AT LEAST ONE "EXPERT" WITNESS WORKS

The bastard should go to jail for conspiring to pervert the course of justice

The emails from the Clayton Utz lawyers were hardly subtle. "Keith, there is a problem in your exhibit," one of the firm's senior associates, Nicholas Tyacke, wrote to the man he planned to use as an expert witness in the biggest copyright infringement case in Australian legal history. "What's (sic) you are observing and reporting is, strictly speaking, true - but it is leading to the wrong conclusion."

Mr Tyacke's firm was acting for Sharman Networks, makers of the controversial music-swapping software program marketed as Kazaa. Sharman was being sued by the music industry in a case that would decide who controlled the future of online music, as well as hundreds of millions of dollars in revenue. And Clayton Utz needed an expert to tell the Federal Court in Sydney how much, or preferably how little, control the company maintained over the pirated music exchanged over the internet by more than 300 million Kazaa users worldwide. In turning to computer science professor Keith Ross from Polytechnic University in New York, the lawyers found a suitably pliable expert.

"Dear Dr Ross, I attach a draft document that is intended to be a skeleton or starting point for your report," another Clayton Utz senior associate, John Fairbairn, wrote in an email. Having provided the initial "skeleton", the firm went on to demand technical changes. Evidence tendered showed that Professor Ross admitted he had not tested propositions Clayton Utz's solicitors had inserted in his draft report, but accepted them anyway. "I was not aware of this even after our testing," Professor Ross wrote to Clayton Utz. "But if you say so, then fine with me." After "a revised and cleaned-up draft" had been returned to Clayton Utz, Professor Ross wrote: "Feel free to make any changes, delete entire paragraphs etc."

Judge Murray Wilcox ruled that he could not accept Professor Ross's explanation for these exchanges, and discounted his evidence on controversial issues. "I am forced to conclude that Professor Ross was prepared seriously to compromise his independence and intellectual integrity. After this evidence, I formed the view it might be unsafe to rely upon Professor Ross in relation to any controversial matter."

In closing submissions, Clayton Utz partner Mary Still addressed the music industry's demand that Professor Ross be discredited for taking directions from Mr Fairbairn and Mr Tyacke when he was supposed to be an independent witness. "The applicants' submissions do not address the fact that the suggestions put to Professor Ross were exactly that. They were requests, not 'directives'."

Clayton Utz declined to discuss the case beyond issuing a statement. "As you know, with the judgment subject to appeal, the matter is not concluded. In these circumstances it is obviously inappropriate to enter into any discussions," it said. "I can, however, tell you Clayton Utz rejects any suggestion that any of its lawyers have acted inappropriately in the conduct of these proceedings."

Professor Ross, who was paid for his testimony, did not respond to questions.

On Monday, the Federal Court stopped short of granting the music industry full victory by allowing Kazaa to continue operating. But the service has been given two months to stop the swapping of pirated music files between its customers. Sharman has said it would appeal against the decision, but industry experts are unsure if the company can remain viable without the estimated 3billion pirated songs available to customers every month.

NSW Legal Services Commissioner Steve Mark said solicitors often put pressure on witnesses to come up with a particular result, and his office took a firm stand on lawyers who coached witnesses or attempted to influence their findings. "A lawyer's primary duty is to the court," he said.

Report here



(And don't forget your ration of Wicked Thoughts for today)