Can records be subpoenaed if a lawsuit has not been filed?

Asked about 3 years ago - Lincoln, AL

I was accused of Trademark infringement on Ebay, which is not true. Ebay will not give me a copy of the supposed sworn statement from the company who accused me of this. I want to pursue this matter with the company, however I have not yet filed suit. I would like to have the Ebay records first and proceed from there. Is this possible?

Attorney answers (4)

  1. Mark Christopher Wolfe

    Pro

    Contributor Level 13
    Best Answer
    chosen by asker

    Answered . A subpoena is a court order and therefore there can not be a subpoena issued without a legal action pending. A party to the legal action requests the Court issue the subpoena and if the Court agrees, it will issue the subpoena with the appropriate instructions, i.e., witness to appear, company to produce records, etc. Then if the recipient of the subpoena fails to abide by the Order, the Court can impose appropriate sanctions. Since you are not involved in a lawsuit with the company at this point, there can be no subpoena issued for the records or documents in question.

    At this point I would suggest writing the company explaining what has been told to you by e-bay and then asking them to confirm if they in fact did send notice to e-bay of your alleged "trademark infringement." I would also ask them to send you a copy of any such statement or correspondence they sent to e-bay. Finally, I would suggest asking that they specifically maintain and preserve all relevant information and documentation related to this matter until said time as the issues have been resolved. (This is known as a preservation of evidence request.)

    Not sure how much money is in dispute in this matter, but litigation with the company would probably be expensive and could subject you to a counterclaim for trademark infringement. Good luck and I hope this was helpful.

  2. Pamela Koslyn

    Contributor Level 20

    2

    Lawyers agree

    Answered . No. Subpoenas require lawsuits.

    And anyway, I'm not sure you have very much to gain here. I'm guessing that eBay removed some listing you had based on this company's claim of trademark infringement, presumably because they believe whatever you were selling to be counterfeit.

    Generally there's a "litigation privilege" that prevents a party from suing another party for false allegations, and this includes statements made in anticipation of litigation. Also, when someone is accused of trademark infringement, they're interested in avoiding being sued. Here it appears you haven't been, so why not leave well enough alone?

    See an IP litigator for help. You need to consult a professional about whether there are grounds for the claim, or whether you have a valid defense.

    PLEASE READ THIS BEFORE YOU COMMENT, EMAIL ME OR PHONE ME. I'm only licensed in CA. This answer doesn't make me... more
  3. Daniel Nathan Ballard

    Contributor Level 20

    1

    Lawyer agrees

    Answered . You may have skipped a step. eBay's VERO program permits sellers to file a counter notice to a rights holder's take down notice. Once a counter notice is filed the disputed listing will be reinstated in 10 days absent a proper response from the rights holder.

    Visit http://pages.ebay.com/help/policies/programs-ve... and click on "I need to file a counter notice" for instructions. Be careful, however: you should have an intellectual property attorney review your listing before filing the counter notice to evaluate whether your listing does infringe or otherwise violate some right owned by the rights holder.

    The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and... more
  4. Maurice N Ross

    Pro

    Contributor Level 20

    1

    Lawyer agrees

    Answered . My colleagues have given you excellent advice. But I want to emphasize the importance of consulting with and retaining intellectual property counsel before doing anything further on this matter. One of my colleagues suggested that you communicate directly with E-bay, but at this point I believe that your communications should be solely through counsel, especially if you intend to invest resources to sue e-bay as a matter of moral principles. Further, if you want to pursue this matter you definitely should retain counsel.

    I must also warn you to be careful about your conclusion that you are innocent of trademark infringement. I commonly find that clients who believe in their heart that they are innocent of trademark infringement turn out to be mistaken. Before accusing E-bay or the company which accused you of infringement of doing something wrong, you should review the situation with counsel. If you have a license agreement allowing you to use or display the trademark at issue, you should review that agreement with counsel. If you otherwise claim that you had the right to use or display the trademark at issue on a product that you listed on e-bay, you need to discuss with counsel. By the way, one of the most frustrating problems is that many people purchase items from apparently legitimate sources only to find that the items are counterfeit, and that the manufacturer or seller had no right to use the trademark that appears on the item. Finally, if you claim that you are not the party responsible for listing the item on E-bay you may have a problem if someone else used the IP address associated with your computer to list the item on E-bay---the presumption is that the owner of an IP address associated with illegal computer downloads and/or illegal listings of items is responsible for such listings.

    You should know that there are quite a few very legitimate law firms that are retained by their clients to review listings on E-bay to determine whether they violate copyright or trademark law. It is rare that these firms and their clients submit take-down notices and/or accuse consumers of trademark infringement without having a good faith basis for doing so. Law firms and their clients who protect their IP rights in these situations have no incentive, whatsoever, to pursue invalid or false claims. You should be very careful before making allegations that wrongful claims were made against you. In general, courts are hostile to claims for malicious prosecution, and these claims will be entertained only in the most extreme of circumstances.

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