Well I got to give it to the sneaky minds at Prenda Law. As you may have notice the case title in this post is missing the “v. Does 1-XX” or “swarm associated with hash # XXXXXXXXXXXXXXX.” That isn’t an error or omission on my part. I didn’t hear of this one until a recent Tweet alerted me to what was attempted by Brett Gibbs in the Eastern District of California. In the Matter of a Petition By INGENUITY 13 LLC, case 2:11-mc-00084.
To keep this ship afloat and viable with the constant attacks from all sides, Prenda (and the rest of the Trolls) are constantly looking for new ways to obtain Doe subscriber information with a minimal cost and legal wranglings. Bret Gibbs recently tried to use a specialized federal rule to do this. It almost worked for the Troll, but Four ISPs decided to fight this new attempt. It would have probably failed eventually after review, but having lawyers from Four ISPs really helps in putting forward a solid argument to the court. I’m sure we (as Does) would have brought forward a motion to quash/dismiss on this abuse, but it seems many judges have at least a small amount of disdain for Pro Se defendants. Sad, as wealth should not be the main factor to determine if you should fight a federal lawsuit or at least have a chance.
On 28 Oct 11, Gibbs filed a “verified ex parte petition seeking an order pursuant to Rule 27 of the Federal Rules of Civil Procedure authorizing the issuance of subpoenas duces tecum to various Internet Service Providers (“ISPs”) requiring the production of
account holder information associated with certain Internet Protocol (“IP”) addresses.” Petition_Rule27_00084(CA) Rule 27 is titled, Depositions to Perpetuate Testimony (http://www.law.cornell.edu/rules/frcp/rule_27). This rule is designed to force the deposition of someone the Plaintiff believes will be a defendant in an action (case). It is generally only allowed by the court if not doing it will prevent or delay justice. When the normal legal means are available to a Plaintiff, this rule is usually not allowed.
So Gibbs petitions the court stating his client wants to depose the registered public IP address owners, as they have allegedly illegally downloaded/shared Plaintiffs copyright protected movie, “Anything for Daddy” (Copyright Reg # PA0001739839, Date 5 Jul 11- Copyright_Reg_00084(CA)). Plaintiff requested the court to issue a subpoena to the ISP, who have the identifying information on the public IP address owners (38 John Does). The troll states they have geo-located each of the public IP addresses and believe they all reside within the district. The court grants the petition and Gibbs sends out the subpoena to the ISPs. IPAddresses_00084(CA)
The reasons to perpetuate the testimony are multiple. First, without this information Petitioner has no means to name and serve a complaint on the infringing parties. Second, on information and belief, this information is destroyed in the regular course of business and will be unavailable to Petitioner after it is destroyed. An example of an ISP’s data retention policy is shown as Exhibit C. Finally, under the Cable Communications Policy Act, 47 U.S.C. § 551(c)(2)(B), a court order is necessary to discover an account holder’s identity.
The petition also has a small section on how they obtained the public IP addresses. 6881 Forensics LLC used the forensic software, “BitTorrent Auditor” to audit a swarm for the presence of infringing transactions. No real details as usual.
On 28 Nov 11, four of the ISPs (Cox/Road Runner, SBC Internet Services, ATT&T, and Verizon responded to this petition/subpoena by asking the court to reconsider its decision to grant Plaintiff the subpoena. ISP_MTRecon_00084(CA)
The grounds for this motion include that the Order is clearly erroneous and contrary to law in that it ignores mandatory requirements of Rule 27(a), as well as a long line of cases holding that Rule 27 is not a proper vehicle for seeking pre-suit discovery for the purpose of naming defendants in a potential future lawsuit, which Petitioner Ingenuity seeks to do here. In addition, the Order was entered without a noticed hearing and without the benefit of briefing from the Internet Service Providers or the expected adverse parties in Ingenuity’s contemplated lawsuit, and the Petitioner failed to present on-point authority to the Court.
On 22 Dec 11, Gibbs filed a response to the ISP’s Motion to Reconsider. Troll_Response_00084(CA) In the response, Gibbs to ignore the ISP’s motion, as the are “Nonparties” to this case (They have no standing to bring this motion) and they failed to cite any cases that shows Rule 27 was being applied incorrectly. Gibbs also claims the ISP’s are unjustly attacking Plaintiff (ad hominem) when they referred to Petitioner as a “vexatious litigant.” Gibbs was correct, as this was IGENUITY 13 LLC’s first filing. As they hired Prenda to represent them, that stink is bound to transfer over to them – so deal with it!
On 29 Dec 11, The ISPs filed a response to Gibbs’ response and again state the history of Rule 27 is to used to preserve evidence and not as a method of pre-suit discovery. ISP_Response_Troll_00084(CA) The only reason Plaintiff feels they cannot bring a normal suit against the Doe defendants is because several districts in California realize that the standard civil suits by Prenda and other Trolls have the potential for abuse and do not comply with Federal Rules. They also state that this petition is nothing more than an “end-run around” the important protections granted ISPs and their subscribers. In addition, they also provided a copy of a 31 Jan 12, Florida District Court Order denying a similar Rule 27 Petition from SSC Group, LLC, 1:11-mc-23891-KMM. CourtOrder_Deny_Rule27_23891(FL)
On 23 and 26 Jan 12 , Doe #8 and Doe #1 filed motions to quash respectively. I don’t have copies of these documents yet.
On 20 Mar 12, the court ruled it made an error in granting Plaintiff’s petition and issuing the subpoena. Order_Deny_Rule27_00084(CA) It found the two main cases Gibbs used to justify the subpoena were not persuasive. The court found it is well-established that Rule 27 is not a vehicle for pre-suit discovery. The court did say Rule 27 “may be used in instances where as a result of time the witness’s testimony might become unavailable. It is not a method of discovery to determine whether a cause of action exists; and, if so, against whom action should be instituted.”
Rather, at its heart the ex parte petition represents an effort by petitioner to engage in pre-suit discovery to enable petitioner to determine whether a cause of action exists and, if so, against whom the action should be instituted. This is not the proper purpose of a Rule 27 petition and is certainly outside the heartland of that provision.
The court found that if Plaintiff wants to go after the Doe defendants, it should file a copyright infringement case as it has done in previous instances.
Accordingly, IT IS HEREBY ORDERED that:
1. Respondents’ November 28, 2011 motion for reconsideration (Doc. No. 9) is granted;
2. The November 14, 2011 order granting the petition (Doc. No. 8) is vacated;
3. Petitioner’s October 28, 2011 petition (Doc. No. 1) is denied;
4. The motion to quash filed January 23, 2012, by Doe 8 (Doc. No. 19) is granted; and
5. The motion to quash filed January 26, 2012, by DOE 1 (Doc. No. 20) is granted.
After this denial, Prenda may just go ahead with a normal case, but the failed attempt to use Rule 27 may leave a “mark” on the new case that an alert judge may take notice of. This just goes to show everyone that keeping up the pressure on the Trolls by filing motions and exposing their methods is working. Keep up the great work.