*** 14 Mar 12 Update —
On 13 March 2011, the EFF filed an Amicus Brief in support of a Motion to Quash the ISP subpoena (third-party) in AF Holdings LLC, v. Does 1-1058, case 1:12-cv-00048-BAH (DC). The American Civil Liberties Union Foundation and the ACLU of the Nation’s Capitol joined EFF in the amicus brief. 12cv00048BAH.Amici_.Brief_ Only 20 Does in this case live in the DC court jurisdiction. Imagine that – I’m shocked. The EFF goes on to tell the court:
- Plaintiff Has Not and Cannot Demonstrate Personal Jurisdiction Over Most Of The
- Venue Is Improper As To Most Of The Defendants
- Plaintiff Has Improperly Joined Thousands of Individual Defendants Based on Entirely
Disparate Alleged Acts
- Plaintiff Has Not Met Its Burden Under the First Amendment
- If The Court Declines To Quash The Subpoenas, Immediate Appeal Is Appropriate
I still have to give it a good read and review, but here is the conclusion.
While a rightful copyright owner may certainly seek legal redress for alleged infringement, this plaintiff has failed to comply with fundamental due process. Subpoenas to the ISPs are not required to show what AF Holdings could have determined readily and inexpensively before filing suit, namely that it cannot maintain an action against approximately 1,038 of the 1,058 Doe defendants in this Court, and should never have included them. Nor will the subpoenas and identification of the defendants cure the fundamental venue and joinder problems of this lawsuit. The Court should exercise its supervisory role over discovery to quash the subpoenas and prevent these due process problems from arising. If it chooses not to do so, given the importance of the issues raised here and the wide divergence of opinion both in this District and around the country, as well as the likelihood that appellate review would result in the termination of the litigation due to the fundamental due process violations upon which it is premised, amici urge the Court to certify this matter for immediate appeal.
I came across this document while seeing if my last torpedo (declaration) was filed in the Prenda Law (AKA Steele Hansmeier) case AF Holdings LLC, v. Does 1-1058, case 1:12-cv-00048, District of Columbia. I didn’t have too much hope it would stand in the DC court, but what the hell. Here is the text of the declaration – please feel free to use any and all parts of it to support your motions/declarations, etc. (DTD_Unsigned_00048_DC, Exhibit_A, Exhibit_B). The main focus of this declaration was to refute the declaration of Peter Hansmeier, the “technician” for 6881 Forensics LLC (6881 post). The declaration of these technicians is key to the court granting them the subpoena for ISP subscriber information. Right now the court believes the Trolls are showing prima facie evidence that infringement occurred and that it has been tracked back to the public IP addresses they obtained with their proprietary forensic software.
While looking for any new documents filed on this case, I came across a “Motion to Compel Compliance With Subpoena,” from Paul Duffy, Prenda Law, filed on 17 Feb 12. (Motion_to_Compel_00048 – SCRIBD below – Also been uploaded to RECAP)
Duffy (Prenda) appears to be having some problems with COMCAST.
“On February 2, 2012, AF Holdings served the Subpoena on Comcast. Fourteen days later, on February 16, 2012, Comcast objected to the Subpoena on four separate grounds: inadequate time for compliance, inadequate assurance of payment, improper joinder and lack of personal jurisdiction. After a good faith meet-and-confer conference on the same day, Comcast agreed to withdraw its objection regarding assurance of payment, but indicated it would stand on its remaining objections.”
On 16 Feb 12, Duffy and COMCAST held a telephonic conference and tried to resolve the issues. The only thing they were able to resolve was an assurance of COMCAST getting paid for it efforts. COMCAST would not budge on the issues of inadequate time for compliance, improper joinder, and lack of personal jurisdiction.
Duffy goes on to whine to the court that COMCAST is wrong in the standard Prenda/Steele way, stating that their views are erroneous, unavailing, premature, as well as factually baseless. It is the same old Prenda view that seems to be working for them in the DC court.
What is more interesting is the COMCAST objection letter – skip to page 35 of the motion. It appears COMCAST hired a DC law firm to assist them in this matter – Davis Wright Tremaine LLP, Washington DC (DWT Site). I don’t know this firm, but maybe one of our legal readers can comment on this. They list offices in Nine different location; looks like a big firm.
In the letter, John D. Seiver, tells Duffy that until a valid and specific court order is issued, they (COMCAST) will not produce the subscriber information. Seiver goes on to tell Duffy that in Northern CA and other locations, these cases have been dismissed and due to improper joinder and lack of jurisdiction. Seiver tells Duffy that the time frame to accomplish this effort is too short and it will not give their subscribers enough time to respond and file motions. One funny thing in the letter is that Seiver mentions that he knows of the name changes from one firm to another (Steele Hansmeier to Prenda). COMCAST did state they would preserve the subscriber information for 90 days.
This will be an interesting one to follow. I’m sure there is more to come. The DC courts may be more on the side of the Trolls, but COMCAST has finally realized that this is not going away and the Trolls are going to abuse the S#$%! out of them. It is time for COMCAST to jump into the fight! I know the interests of COMCAST are strictly financial, but if we can both help each other, so much the better. If you are a Doe in this case, please file a motion to quash; this will help COMCAST fight this.
*** BTW – Here is a link a Doe passed to me on how COMCAST deals with various legal requests for information. COMCAST Law Enforcement Handbook 2007 ***
Sorry but I haven’t done a full analysis, I wanted to get it out. Please review and provide comments – Yes you to John. ;) Guess what firm I’m going to call right now?