Brett Gibbs Whines & An End to 3:11-CV-01566, Hard Drive Productions, Inc., v. Doe (IP Address 173.55.54.77)

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 173.55.54.77), Northern District of California. 

Background on this caseRECAP 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 24.5.180.56’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 173.55.54.77 (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Doe Defendant at IP address 24.5.180.56 has been dismissed from the action, the subpoena against that Doe Defendant is no longer in effect.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 173.55.54.77 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 173.55.54.77.  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 173.55.54.77, for up to 4 hours (Order).  NoteAt 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.

Limited Deposition

On 8 Dec 11, Gibbs served the deposition subpoena on the Doe IP Address 173.55.54.77.  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. ***

  *** FYI – Recent News – If you haven’t seen this.  The WPS option in most new WiFi Access Points (WiFi Firewall/Router) is vulnerable to hacking.   Ars Technica ArticleSlide Show on this Hack.

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. 

DieTrollDie  :)

About John Doe (DieTrollDie)

I'm one of the many 'John Does' (200,000+ & growing in the US) who Copyright Trolls have threatened with a civil law suit unless they are paid off. What is a Copyright Troll? Check out the Electronic Frontier Foundation link - http://www.eff.org/issues/copyright-trolls
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10 Responses to Brett Gibbs Whines & An End to 3:11-CV-01566, Hard Drive Productions, Inc., v. Doe (IP Address 173.55.54.77)

  1. DieTrollDie says:

    “…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.”

    Reading this again made it clear that after 2.5 hours of talking to the Troll, the ISP subscriber decided to settle for some amount. That is why it doesn’t say who the actual did this – Just that the Troll got his money. As the Troll did not just name and summon the Doe, their evidence was obviously weak. They were more comfortable with talking to the Doe (Without a lawyer – FOOLISH IMO) to get the settlement.

    DieTrollDie :)

  2. pornodoe says:

    “… and (2) it is likely that the subscriber’s adult child was Doe 1.” – My questions is why, if they do not know the identity of the infringer, did they not send out a take-down notice to the ISP? It could have been a minor.

    It was not foolish to talk to the troll without a lawyer, but extremely stupid!

  3. Raul says:

    You are right the Doe should have, at the least, contacted the court and the court’s Pro Se Office for guidance in this matter and I am surprised that the court did not advise the Doe to do so as a protective measure. Shame on the Judge for being so lazy with a pro se defendant and a notorious avaricious plaintiff’s counselor! .

  4. Doe #1 says:

    Geez… Poor lady. She had to talk to Gibbs for 2.5 hours. Maybe that can be their new FUD. Pay us or you will have to spend 2.5 hours of your life talking to us. It is great to see the truth about these cases start to play out. This person screwed up royally by not hiring a lawyer at the proper point and fingering a household family member. In the end she still was able to settle for a “mutually beneficial” amount. These trolls have no interest in even taking ANY case to trial no matter the circumstances it seems. All they want is the quick buck. Again another worse case scenario situation that didn’t end up ruining the Does life or future. Considering 99% of us would make the proper decision and lawyer up if things proceeded to this point then there is little reason to fear these clowns. Just BE SMART and stay educated on the ongoing cases!

  5. Raul says:

    Love your graphic at the top of this topic and want to make it my screensaver but only if you promise not to haul my ass off to Federal Court on a bunch of BS non-provable, legally tenuous allegations. (Wink). Old man’s humor.

  6. CTVic says:

    LMAO!!! <– 3 exclamation points mean that I really *did* laugh my ass off!
    Ohhh. Hooo. Aaahhahaaahhaaaha!!!
    Oh, that is just too good to be true! John Steele picked the *wrong* man when he chose Brett Gibbs to be his proxy trollawyer douchebag in California! Could it be that Mr. Gibbs actually has a conscience? That he actually LEARNS something from the judges who slice and dice his cases in the courthouse? Isn't Gibbs the lawyer who about shit his pants when the judge threatened sanctions a month or so ago? Maybe he's still trying to scrape his under-grundies clean or something.
    That bit of legal literature is the BIGGEST example I have ever seen of a lawyer pussy-footing around, trying to tip-toe past a sleeping dragon! "Plaintiff is aware that the court is very hesitant…" "the tenor of the court's prior orders…" "plaintiff cannot proceed … if the Subscriber adopts an ostrich posture"

    Excuse me for just a moment …
    BWAAAHAHAHAHAHAHAHAHAHAHAHAHAAAAAAA!!! HAAAHAAHAHAHAAAAA!!!

    Ok. I'm better now.
    Maybe that's just so funny because it's impossible to read without my inner voice putting it into a very effeminate, breathless, scared voice. Remember Hooks from the Police Academy movies? I wonder what Marion Ramsey is doing these days? Maybe we could hire her to give us a voice recording of this document? That would be great!
    This is just too freaking good for words. All of the fear and uncertainty and intimidation that our good friend John Steele likes to impose with his fancy legal mumbo jumbo, strong jaw and false impressions of being the mighty "Pirate Slayer" has just been completely and totally deflated by his hired gun in California!
    John Steele privately tells his victims that if they put their head down and ass up, they're going to ram them a good one right up the poop chute! His hired gun publicly tells the court that if his victim goes head down, ass up they fall helplessly before them! Steele wanted a shark, but he hired himself a flounder!
    AAAHAHAHAHAHAHAAHAAAAAAA!!!
    John Steele was trolling around fightcopyrighttrolls.com the other day, wondering what his new name for 2012 should be, because the "Pirate Slayer" is so 2010. Gibbs just gave it to us: John Steele: Ostrich Chicken!

    • Anonymous says:

      Don’t know if I’d go so far as conscience, but maybe a sense of self preservation.

      Considering the lack of success he has had in Northern Cali he’s probably starting to wonder what he’s gotten himself into. Gibbs is a pawn and if he makes too many mistakes he will be left out in the cold; maybe being one of the guys with his own @wefightpiracy.com email makes him more of a partner but I doubt Steele gives the soldiers too big of a cut. Of course failing to litigate a case is arguably no problem for these guys as long as they get contact info, but that still requires enough goodwill on the part of the courts to allow them to get there. His name is on all their filings in CA and if things start to get bad like sanctions, counter-suits or class actions Gibbs should be wondering what he’s going to have left when he’s the one fighting and Prenda ends up like Righthaven.

      Gibbs already seems to have dug himself in pretty good, in particular there are a couple interesting cases being overseen by Magistrate Judge Donna M. Ryu (see Pacific Century International LTD., v. Does 1-101) where she severed all but one Doe and forbid Gibbs from taking any action against Doe 1 once he is identified (specifically forbid sending settlement letters) until Gibbs files additional requests for discovery.

      Prenda also apparently has decided to pack up and move the scam to the California Eastern District where he recently filed a new batch of mass Doe suits. Slightly different formula, they are titled Plaintiff v. Unknown and the complaints have one Doe and the remaining IPs are “Co-conspirators” but it looks like essentially the same formula although IANAL. I think they literally are just trying to avoid filing more cases with titles like “X v. Does 1-150″ because the scam has become so recognizable to the courts and because we are keeping an eye on them. Same way Steele | Hansmeier changed names to Prenda and Steele went to ground and made Duffy the front man. I think they actually think this stuff will fool people and put us off their scent.

      Also interesting to note that in this case, even going so far as to depose the Doe was a reactive move. I suspect they would have preferred to stall more, maybe keep working on the Doe with more calls and letters and not have to actually spend time on this case for just one Doe, but the court forced his hand and he had to do something to save face. With the rep he is earning for himself I don’t think he wants to be too blatant about dismissing a case *every* time a judge expects him to actually litigate it.

  7. Pingback: Your 5th Amendment Rights At A Copyright Troll Deposition | DieTrollDie

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