Judge Denies Troll Request to Depose an Unnamed Doe (But Known to the Troll) in case S-11-3074 KJM, Hard Drive Production v. Doe

Troll Thinks Twice About Naming a Doe

Thank you Doe#1 for posting the link to this court order on the Robert Cashman Blog – (http://torrentlawyer.wordpress.com/2012/01/09/what-to-do-when-you-are-named-as-a-defendant-in-your-bittorrent-lawsuit/).  This order (11 Jan 11) is for case # S-11-3074 KJM, Hard Drive Production v. Doe (Amateur Allure – Violet), filed on 21 Nov 11.  Order_Denied_DepositionSubp

During the course of this case, the Troll obtained the name and other personal information one of the Does.

According to plaintiff, it has already determined that a person named Jeff Goldberg is the account holder of the IP address involved. (Dkt. No. 7 at 5.) During initial discussions with Mr. Goldberg, Mr. Goldberg was allegedly combative and indicated that he did not unlawfully download or distribute the Video. (Id. at n.1) However, he did not offer any explanation as to why his IP address was logged as unlawfully downloading or distributing the Video. (Id.) Since the initial discussions with Mr. Goldberg, he has apparently ignored all further correspondence from plaintiff.

The Troll told the court that based on Mr. Goldberg’s reluctance to talk further with them, they were requesting the court authorize a deposition subpoena be issued so they could question Mr. Goldberg.

Plaintiff now requests the court to authorize service of a deposition subpoena on Mr. Goldberg. Plaintiff states that, in some cases, an account holder may be able to offer a
credible explanation for why he or she is not the infringer and may be able to identify the actual infringer, such as another household member or tenant. (Dkt. No. 7 at 5.) As such, plaintiff contends that it cannot proceed in the action without ascertaining the likely infringer’s identity, and that Mr. Goldberg is the only person with information that can allow plaintiff to identify the actual infringer and permit service of process on that individual. (Id.)

The court stated Plaintiff did have good cause for the initial expedited discovery against the ISP, to obtain the subscriber information.  But since Plaintiff knows who this John Doe is, they do not have good cause for this expedited discovery request – Deposition Subpoena.

Here, plaintiff has not demonstrated good cause for the expedited discovery requested. Unlike the plaintiffs in UMG Recordings, Inc. and Arista Records LLC, plaintiff has already discovered the name and contact information of the account holder of the IP address involved. Therefore, assuming plaintiff has a good faith basis for its claims, plaintiff can name Mr. Goldberg as a defendant and serve him with process. Simply put, plaintiff is not unable to pursue its lawsuit to protect its copyrights absent expedited discovery.

The court went on to say that even if Plaintiff had good cause for this request (IT DOESN’T), it would be outweighed by the potential prejudice to Mr. Goldberg.

“Expedited discovery may be inappropriate where defendants are required to unwarily incriminate themselves before they have a chance to review the facts of the case and to retain counsel.” Pod-Ners, LLC, 204 F.R.D. at 676 (citations omitted). To be sure, courts frequently allow expedited discovery in copyright infringement cases involving peer-to-peer (“P2P”) networks to allow identification of Doe defendants. But, the expedited discovery requested is usually a narrowly tailored document subpoena seeking the minimum amount of information needed to identify defendants, such as names, addresses, phone numbers, and e-mail addresses of account holders associated with the IP addresses.

The judge stated that if Plaintiff has a “good faith basis” for its claims against this Doe, then it needs to formally name Mr. Goldberg as a defendant, serve him with a summons, hold the Rule 26(f) conference, and conduct any necessary discovery.  The court also stated that “Procedural vehicles exist to later add and/or dismiss defendants based on additional facts discovered, if necessary.”

What Does this Mean

It means the court told the Troll to quit crying and to officially name the Doe – if they have a good faith basis for their allegation.  They don’t have a good faith basis, just the Public IP address collected by a questionable company hired by the Troll.  It amounts to “Put Up OR Shut Up!”

Depending on what additional information the Troll has gathered, they may name Mr. Goldberg and proceed with the case.  If all they have is the Public IP address, then they are really taking a chance that Mr. Goldberg will cave-in after being named.  If he doesn’t cave in and hires an attorney, the Trolls could be in a world of hurt.  I assume (could be wrong) that after the troll formally names someone in a suit, they can be subject to a court ruling to pay the attorney fees of the defendant if they eventually dismiss the case at some stage.

I think this order shows how weak the Trolls feel about actually naming a Doe and moving forward.  Just remember that this is a money-making operation and a full-out court battle is a losing option for the Trolls.  A full trial is not only going to show how weak the Public IP address is, but that their collection methods and personnel are not experts that a court or jury should have any reasonable trust in.

This also shows you what you should be saying to the Troll when they contact you.  1. I didn’t do it.  2. There is no evidence on my system.  3. I will fight you in court.  4. Please leave me alone and don’t call back.  Make sure you document all attempt by the Troll to contact you and what/how they say it.  The troll tried to tell the court that Mr. Goldberg was rude to them.  What should the Troll expect from someone once they are told they are guilty, no excuses, maybe even negligent, Pay up a couple thousand dollars, and sign the non-disclosure agreement; OR we will name you in a Federal law suit and take everything you own.

DieTrollDie :)

About 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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23 Responses to Judge Denies Troll Request to Depose an Unnamed Doe (But Known to the Troll) in case S-11-3074 KJM, Hard Drive Production v. Doe

  1. ADoe says:

    If I tell them to stop calling me, do they have to cease contact?

    • DieTrollDie says:

      I would say “No,” but I could be wrong. Still, document your all their calls/contacts and the fact that you have told them to leave you alone. Their continued action of harassment and their decision NOT to name Does shows the court what this is truly about – Money-Making-Scam using copyright infringement as its cloak of deception.

    • CTVic says:

      No. They’re “negotiating settlement” … I think there’s certain protections built into that activity, similar to bill collection. You can tell a bill collector to stuff it & not call back, then your phone will be ringing 10 minutes later.
      Now if you retain legal representation, and you inform the douchebags blowing up your phone, they WILL have to stop calling you. Once you lawyer up, all the negotiations will have to go through your lawyer – thus leaving you alone. The question is, is it worth paying a lawyer’s retainer fee just to have your phone stop ringing?

  2. anothervictim says:

    well my case is a bit weird. originally they sent the whole subpoena thing so i contacted an attorney and retained their counsel to discuss settlement terms as i thought this would be the best course of action since i can not afford to fight it. this process went back and forth for awhile since my family is pretty strapped for money and eventually the case got dismissed. however, they are still contacting the attorney i was with threatening to file suit. the attorney wants to know what i want to do and im really at a loss right now! this process has been going back on forth for around half a year now. im under so much stress from this and other monetary constraints.

    • DieTrollDie says:

      If your attorney is still under retainer, I would tell him to inform the Troll that you are not willing to settle and to go away. I don’t know the details of your situation, but I would tell them (1) you didn’t do it, (2) there is no evidence on your system, & (3) you will fight them in court. If the case was dismissed and they haven’t refiled against you, THEY DON’T WANT TO. All they want is easy money from you. Remember that if they actually move forward with a summons, deposition, etc., they risk exposing their very weak case in public. IMO they are less likely to try to even get a judge to authorize a limited deposition, as your lawyer will make it extremely hard for them to get anything useful out of you.

      DTD :)

      • anothervictim says:

        thanks for the reply DTD! however, i dont have that attorney on retainer anymore because originally they were only there to help discuss settlement terms. but because the case was dropped they switched to bothering my attorney about my case and basically dropping hints that they were threatening to file suit. the most recent thing they did was asking if my attorney would accept service for me or i would accept it. i told the attorney that i would accept it if it came down to that so now im still kinda nervous. i wish i could counter sue them for all this stress they’re causing me.

      • Doe X says:

        anothervictim,

        YOU CAN possibly receive damages for stress down the road. I’m not sure what plaintiff your dealing with but if its not K-beech/Patrick collins( who have actually been naming and suing individuals then I would assume that this is complete FUD. These plaintiff lawyers know that Does who lawyer up will have to be notified by their counsel every time they say we are going to sue you next week or where do you want the service. This usually is just FUD to try and make the Doe and his lawyer decide to settle before things escalate.

  3. Thanks DTD. It was one of the topics I wanted to post about, but you did the job for me :) One particular thing amuses me:

    However, he did not offer any explanation as to why his IP address was logged as unlawfully downloading or distributing the Video.

    – a sheer impudence of this statement: same if I would call Mr. Gibbs and ask hem to give me an explanation why in my records he is listed as a camel. And no, I wouldn’t take the absence of humps as a valid explanation. Only a deposition where I would try to feed him raw cotton would possibly clear his homo sapiens status.

  4. CTVic says:

    Great follow-up to the last Gibbs story! Steele’s resident flounder in California is a laugh a minute!
    First he confesses to the judge that his evidence is flawed, and that it’s common knowledge that yes, they sometimes do hit the wrong people. Then he whines that he is powerless to proceed if the defendant refuses to confess outright. So he begs the judge for permission to haul him into a deposition booth and try to coerce a confession out of him.
    So the court tells him “Tough shit, the court’s not here to strongarm people for you. Sue him or walk.”
    Ohhhh good stuff.
    I wonder if Gibbs would’ve recruited Steele in from Florida so they could play Good Flounder, Bad Flounder on this poor guy?
    Tell us you did it!
    No.
    Please?
    No.
    Say you did it or else!
    No.
    Guess he didn’t do it. Let’s pack it in, guys.

  5. R C says:

    Isn’t the posting of pornographic movies for downloading illegal? If the Troll does this or cause it to be done through third parties as part of their “business plan” to entice unwitting victims into activity they claim is illegal, should not the case be thrown out since they are inducing the very activity which is the basis of the suit. There is no reason to believe that any downloader knew the movie was copyrighted. And there is a dispute as to whether porno is entitled to copyright protection. Also, what are the trolls doing to prevent the downloading of their movies by underage children? Shouldn’t someone file a complaint about the criminal actions of the trolls?

    • DieTrollDie says:

      No it isn’t illegal. Porn movies can be purchased and downloaded just as regular ones can. Depending on the movie, many of them have a title page that clearly states the movies is copyrighted. If someone removes the copyright title page, there is some argument that someone might not know, but that will only come up at an actual trial. If the movie has a true copyright (Reg # etc.), then there is no argument if it is entitled to copyright protection. To prevent underage persons from accessing these movies, the porn producers only make it available after paying with a credit card (a child isn’t going to have one), as well as well as a “Warning Banner” page telling someone if they are under 18 years old, that they are not allowed to access the movies. Yes the banner is a weak protection, but no porn producers (that I have heard of) have been successfully taken to court for it.

      • Still, we should try to sting trolls at every opportunity:

        I’m going to write about Lightspeed “hacking” cases soon, and one of the ideas is to accuse Lightspeed in allowing minors to access their material by allowing them logging in using apparently leaked password instead of disabling the compromised account.

  6. R C says:

    I understand it’s legal to download porn if the viewer pays for it and certifies he or she is over 18.

    Do the trolls post, or cause the porn movie to be posted free of charge to download? Do they certify that the down loader is over 18?

    • DieTrollDie says:

      Some trolls may post portions of their movies on Tube sites. Most of the tube sites do use a warning banner – if under 18, go away. They are not required (as far as I know) to have to certify to this. They just have to take the minimum steps to keep from being brought to court on criminal charges.

  7. R C says:

    How does a downloader know for certain that the movie is copyrighted or that the web site from which it was downloaded did not have the right to post the movie, and is compensated through the advertising on the web site they way you are permitted to record a commercial TV program?

    • DieTrollDie says:

      Bottom line – they (the Does) don’t know for certain. Your thoughts do raise some questions, but I certainly wouldn’t go into a trial with that defense. But who are we kidding, the Trolls are not going to take someone to a full-out trial. You could raise it in Motions, but isn’t likely to be the main basis of a dismissal (IMO).

  8. Doe X says:

    The good news keeps rolling in from Eastern Cali…. Gibbs had two motions of discovery in the Prenda psuedo named cases denied. I am pretty sure the other pink lotus motion for discovery was also denied but can’t confirm.. don’t want to run up the pacer bill.

    • DieTrollDie says:

      Thank you for putting up on SCRIBD. I know what you mean about running up your PACER account. :( I will take a look at it.

    • DieTrollDie says:

      Yes, looks like the same analysis and ruling as in my previous posting. There is a couple of points that may indicate where the Trolls may try next.

      “The undersigned is also troubled by plaintiff’s failure to substantiate certainclaims made in its moving papers. For instance, in arguing that plaintiff has “exhausted all other means of discovery to identify John Doe” (App. for Expedited Discovery at 9) plaintiff representsthat its counsel “attempted to contact Mr. Polan . . . to further determine the identity of theinfringer . . . [but] Mr. Polan was entirely non-responsive, and, in fact, merely ignored all of Plaintiff’s counsel’s attempts to meet and confer.” (Id. at 5 n.1; 9.) However, plaintiff’s counseldid not file an accompanying declaration in support of these representations, leaving the court toaccept them on faith alone. Similarly, plaintiff repeatedly argues that the requested third party deposition subpoena will be “narrowly tailored to be the least intrusive” to Mr. Polan and“reasonably calculated” to lead to discovery of the infringer’s true identity. (Id. at 7.) However, plaintiff did not file a copy of any draft proposed deposition subpoena to Mr. Polan, so the court is left to guess at the precise verbiage and scope that plaintiff would ultimately employ in the actual subpoena.”

      As I stated before, if you are a single or named Doe, don’t just ignore the Troll. Be curtious and tell them (1) you didn’t do it, (2) there is no evidence on your system, & (3) you will fight them in court. Tell them to have a good day. This will make it harder for them to claim you are unresponsive and your actions are not those of an innocent person.

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

  10. Pingback: Update To The “Richard Pryor Response” OR What To Tell The Troll When He Calls | DieTrollDie

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