A reader pass this document on to me concerning Brett Gibbs, Prenda Law, whining to the court that a Doe defendant (that he has the subscriber information on) would not respond to his repeated attempts to talk to him. Further reading disclosed this case is finally over, but the Troll can still file separately on the previously dismissed Does.
The case is 3:11-CV-01566, Hard Drive Productions Inc., v. Doe (IP Address 184.108.40.206), Northern District of California.
Background on this case – RECAP Archive - My SCRIB Collection - Case was initially filed on 31 Mar 11, against 188 Does (Complaint). The case saw some activity back and forth until 23 Aug 11, when the court ruled on Doe 220.127.116.11′s Motion to Quash the subpoena, dated 21 Jun 11 (Order). The court ruled:
For the reasons stated above, the Court severs all Doe Defendants except Doe Defendant at IP address 18.104.22.168 (the first Doe Defendant listed in Exhibit A to the Complaint that has not been dismissed from the action). Because the Doe Defendant at IP address 22.214.171.124 has been dismissed from the action, the subpoena against that Doe Defendant is no longer in effect. Accordingly, the Motion to Quash is Granted on that basis. Moreover, because all severed Doe Defendants have now been dismissed, all subpoenas seeking discovery regarding all Doe Defendants except Doe 126.96.36.199 are ordered QUASHED. The claims against the severed Doe Defendants are DISMISSED without prejudice to refiling in separate actions.
Case Management Confrence Statement
Following the severance of Does 2-188, Gibbs went after the only remaining Doe (IP Address 188.8.131.52. In the 11 Nov 11, Case Management Conference Statement, Gibbs whines to the court that he is trying to contact the Doe, but they will not respond to him. He tells the court that he knows the personal information of the ISP subscriber for this Public IP address, but isn’t sure if it is the actual infringer.
While Plaintiff has received the Subscriber’s identifying information, the Subscriber has refused to communicate with Plaintiff’s counsel whatsoever, despite numerous good-faith efforts by Plaintiff’s counsel to meet and confer with him. Although a subscriber and doe defendant will often be one-and-the-same, it can be the case that they are different people. In cases, such as the present action, where the subscriber completely refuses any form of communication with Plaintiff’s counsel, limited additional discovery is often needed to confirm that the subscriber may be named as a Doe Defendant. Plaintiff is aware that the Court is very hesitant to grant expedited investigate discovery with respect to a nonparty. However, the tenor of the Court’s prior orders suggests to Plaintiff’s counsel that the Court is primarily concerned with the intrusive nature of forensic discovery with respect to the subscriber’s digital devices. Plaintiff believes it can address the Court’s concerns by filing a motion for leave to serve a deposition subpoena on the subscriber that will at least compel the subscriber to testify about the nature of his home network. Only if the deposition fails to reveal the information Plaintiff requires to form a reasonable basis to determine whether the subscriber is—or is not—the Doe Defendant would Plaintiff contemplate requesting leave from the Court to take what may be more intrusive discovery. Obviously, Plaintiff cannot proceed in this litigation against the Subscriber if the Subscriber adopts an ostrich posture with respect to the litigation.
On 21 Nov 11, the court allowed Gibbs to serve a disposition suboena on Doe IP Address 184.108.40.206, for up to 4 hours (Order). Note: At no time was there any information/documents to show this Doe ever got an attorney. Take heed brothers and sisters! There is a time and place for everything.
On 8 Dec 11, Gibbs served the deposition subpoena on the Doe IP Address 220.127.116.11. On 21 Dec 11, the deposition of this Doe took place. The following information comes from the voluntary dismissal (with prejudice) of the this Doe, filed on 27 Dec 11.
The corresponding deposition of Doe 1 was held on December 21, 2011, and lasted just over two and a half hours with no papers being examined. At the deposition, Plaintiff’s counsel focused his questioning on inquiries that would likely to allow Plaintiff to identify the infringer in this case—whether that individual is Doe 1 or another individual. The deposition revealed that: (1) the subscriber was not likely to be Doe 1; and (2) it is likely that the subscriber’s adult child was Doe 1. After the deposition, arms-length settlement talks ensued, and Doe 1 and Plaintiff agreed upon a mutually beneficial settlement that would avoid any further litigation in this matter.
What Does this Mean?
1. I liked the statement from Gibbs that “Although a subscriber and doe defendant will often be one-and-the-same, it can be the case that they are different people.” Thank you Brett for stating the obvious. This is actually good for the Does as it comes straight from the Troll - good to use as a cite and reference in your documents. This actually goes against what the Steele Hansmeier/Prenda state in their settlement letter – as an ISP subscriber, you are guilty – Pay Up! As far as this last Doe, the adult child residing in the house shows how weak the “Public” IP address is in identifying the actual infringer. Even in the dismissal, the Troll only hints that “maybe” the Doe 1 wasn’t responsible.
Some notable reasons why the ISP subscriber may not be the infringer -
- Home WiFi access point run open (like at an airport or coffee bar) and abused by an unknown person.
- Guest at the residence abusing the Internet connection without the owner knowing.
- Neighbor connects (knowingly or unknowingly) to the network and the owner doesn’t know of this activity.
- IP address is part of a group residence (roommates), apartment building, or small home business where a user (not the ISP subscriber) downloaded/shared copyright protected movie.
- Home system infected by a Trojan Horse malware program and controlled by unknown personnel.
- Unknown person hacks the WiFi security settings of the firewall/router to abuse the ISP subscriber’s Internet connection. ***
2. If you are a single Doe and you receive a summons, subpoena (to you, not the one to your ISP), or other official legal document, GET A LAWYER. Gibbs may have thought twice about going forward if the Doe (with a lawyer OR without) replied to him (and the court) and stated, I Didn’t Do it & I will Fight This! Based on what I read, I think the Troll still would have pushed for a deposition. What I think would have been different for this Doe, is a lawyer would have better prepared him for the deposition and the doubtless slimy methods the Troll would use to elict incriminating responses and/or exploitable information from the ISP subscriber. I would love to hear or read the transcript of the deposition, but I doubt it will ever come to light.
I’m not sure if separate cases for the remaining Does have or will be filed, but it is sure going to cost Gibbs/Prenda more to try it. This just goes to show how weak their evidence is and how NOT to respond to them.