Sneaky Troll Attempts a Flanking Move and is DENIED, In the Matter of a Petition By INGENUITY 13 LLC, case 2:11-mc-00084 (Troll Gibbs)

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.   

DieTrollDie :)

http://archive.recapthelaw.org/caed/231023/

http://ia600708.us.archive.org/34/items/gov.uscourts.caed.231023/gov.uscourts.caed.231023.docket.html

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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17 Responses to Sneaky Troll Attempts a Flanking Move and is DENIED, In the Matter of a Petition By INGENUITY 13 LLC, case 2:11-mc-00084 (Troll Gibbs)

  1. It’s great that you wrote about this important case. I watch it from the beginning and wanted to bring some attention to it (even have a draft of an article) but failed to do so. A mere fact that 4 ISPs fought this case underlines its significance. It’s good news that this new potentially devastating avenue was closed down so unambiguously.

    I “congratulated” Steele in the ArsTechnica’s comment section:

    By the way, congratulations on the Ingenuity Rule 27 fiasco.

    He replied:

    Rule 27 didn’t work in CA. Darn, only 49 other states to try it in.

    …which is a total bullshit: the ruling in CA effectively makes it unfeasible for trolls to exploit Rule 27 elsewhere on the federal level.

    The only place where Prenda succeeded was notoriously corrupt Illinois St. Claire county court (Lightspeed hacking case), I still want to write about it one day exposing the troll, a former judge Michael O’Malley.

    • DieTrollDie says:

      Actually it didn’t work in FL either. As this now has become a success for the ISPs, trying it in any State is going to be hard for it to stand a MTR/legal review. Yes I saw the Lightspeed hacking case. Funny how Prenda would claim Does that did not secure their WiFi are liable, but Lightspeed isn’t partially responsible for the hack of his system, as he obviously didn’t take adequate steps to secure it.

      DTD :)

    • sloopjohnd says:

      Does Steele have nothing better to do than to troll comments forums on trolls? And how is it that he is so keenly aware of the goings on of these cases, isn’t he “retired”? Considering his world is crumbling around his ears right now, he sure is delusional about how things really are for him and his ilk.

      • anonymous says:

        People like Steele enjoy hearing themselves talk, and in this case read their own comments.

        He is delusional. It will be fun to watch his world implode, fake boobs and all.

  2. Anonymous says:

    I’m really curious about these Lightspeed hacking cases as they are a little bit of a different beast than the Bittorrent cases. I think all of the people caught up in these cases simple used a login/password they found on the net and there is no real hacking involved. Also, unlike a bittorrent case there isn’t any “sharing” or uploading of content so how do they calculate damages? I see in the St Clair case they are claiming the Does allegedly “disseminated that information to other unauthorized individuals” but how can they possibly prove that? Also, what is their criteria for joinder? The fact they all used the same compromised login? Clearly the website could have shut down the offending account at any time but they just keep it open to suck in more victims!

  3. Anonymous says:

    Okay, I’m not a lawyer but what does the second part of section 4 mean? Does it mean that in order to be guilty of this you would have had to have obtained something of value greater than $5000? If someone uses a hacked password to log on to a website and poke around, isn’t the damage the cost of a membership to the site? Or are they trying to claim that the Does shared the login details and the damages are multiplied by the number of users who used the hacked password? If so, how would they ever prove that?!? Are these cases even weaker than the bittorrent cases from a trial point of view?

  4. Raul says:

    Yes, to make the threshold to bring this statutory claim you have to prove over 5K in “economic loss” a/k/a actual damages. I glanced over this troll’s complaint and he is claiming statutory damages where the statute has none!? As to damages he is also claiming, among other things, “reputational harm”?! This is a POS complaint if I ever saw one BUT it is going to frighten Does and it is in (clubby) state court so it may survive longer than it would in a federal court.

  5. Anonymous says:

    So in other words, the troll is trying to suggest that an act equivalent to sneaking into a movie at a movie theater has caused them great economic and repetitional harm? That’s some real fiction right there!

    Would they not have to file a federal suit in the Does home state if they actually pursued it though? Or can this be done at the state level? Has there ever actually been a case of this type filed against an individual Doe? Beyond the initial discovery lawsuit that is…

  6. Raul says:

    I think they would have to file a federal or state suit against the Doe in his home state unless Illinois’ long arm statute would somehow apply which would be unlikely http://www.kentlaw.edu/perritt/courses/civpro/il-long-arm-stat.htm This single case looks like it is being vigorously litigated (with 5 Does being represented by counsel) but the state court docket does not allow access to court documents so it is hard to get a complete picture http://www.circuitclerk.co.st-clair.il.us/Civil+Court+Records.htm You can view the complaint here http://torrentlitigation.com/cases/Lightspeed%20Media%20Corp.%20v.%20Doe,%20Case%20No.%2011-L-683%20(St.%20Clair%20County,%20IL).pdf If anyone can add anything to this picture it would be appreciated as this looks like a sleazy troll who is trying to avoid the rigors of a federal suit and is instead making a putative federal suit into a state one so as take advantage of his local connections and the less rigorous atmosphere.

  7. Raul says:

    I know this is off topic but more great news!
    In what I believe is the first Eastern District of Michigan decision granting a Does motion to sever and quash Judge Steeh found and held that:
    “Based on plaintiff’s failure to sufficiently allege that the Doe defendants engaged in
    the same series of transactions with respect to their alleged infringing conduct, the court
    concludes that the Doe defendants have been improperly joined and severs Doe
    defendants 2-23 from this action under Rule 21. The court rejects plaintiff’s argument that
    allowing severance of the Doe defendants will prevent copyright holders from being able
    to protect their ownership rights. The court’s decision does not prevent plaintiff from
    bringing separate actions against each individual Doe defendant. See Lightspeed v. Does
    1-1000, No. 10-C-5604, 2011 U.S. Dist. LEXIS 35392, * 6 (N.D. Ill. March 31, 2011)
    (rejecting the plaintiff’s argument that joinder at this stage of the litigation serves the
    interests of judicial economy); see also, K-Beech, Inc. v. John Does 1-41, 2012 U.S. Dist.
    LEXIS, at *14-15 (rejecting plaintiff’s argument that severing the Doe defendants would
    prevent plaintiff from being able to enforce its copyright.) That many ISPs do not retain
    accurate records which may thwart plaintiff’s efforts to identify significant numbers of
    infringing defendants is immaterial to this court’s analysis of the propriety of permissive
    joinder under the Federal Rules of Civil Procedure. Likewise, plaintiff’s desire to keep its
    litigation costs low also fails to persuade the court that severance is inappropriate. As one
    court stated:
    Plaintiff’s motive for seeking joinder, therefore, is to keep its own litigation
    costs down in hopes that defendants will accept a low initial settlement
    demand. However, filing one mass action in order to identify hundreds of
    Doe defendants through pre-service discovery and facilitate mass settlement,
    is not what the joinder rules were established for.”

    There is much more to read and enjoy in what I hope is the precedent that will get Hone back to chasing ambulances. http://ia600800.us.archive.org/16/items/gov.uscourts.mied.264671/gov.uscourts.mied.264671.8.0.pdf

  8. Raul says:

    More good news today (actually a few weeks ago)! On 3-2-12 in the Arizona case entitled Third Degree Films Incorporated v. Unknown Party (case no. 2:12-cv-00108) Judge Teilborg while deciding the troll’s motion for expedited discovery severed Does 2-131 from the action because, in part (the judge cites several reasons),:

    “The Court finds that a user participating in the same swarm is not the same transaction
    or occurrence or series of transactions or occurrences. The Court bases this finding on the
    fact that a particular swarm, including the swarm at issue in this case, can last for many
    months. During those months, the initial participants may never overlap with later
    participants. Additionally, because pieces and copies of the protected work many be coming
    from various sources within the swarm, individual users might never use the same sources.
    Finally, in Plaintiff’s effort to ensure this Court’s jurisdiction, Plaintiff has included only
    Arizona IP addresses from this particular swarm. However, the Court presumes many users
    from many other jurisdictions participated in this swarm. Because of the ease with which all
    of the various users can be separated, the Court finds it would be inconsistent to find a single
    transaction or occurrence for joinder based solely on Plaintiff’s litigation goals of bringing
    a single lawsuit against the Arizona defendants. In other words, there is no logic to
    segregating the Arizona based members of the swarm from the non-Arizona based members,
    except Plaintiff’s convenience. The Court finds this is not a basis for allowing permissive
    joinder.”

    This is a particularly well reasoned and more or less balanced order which,in part, reasonable minds might disagree (his reasoning to issue a subpoena on Doe 1for example) and might merit closer examination. The docket and order can be found here http://ia600801.us.archive.org/27/items/gov.uscourts.azd.670985/gov.uscourts.azd.670985.docket.html:

    • DieTrollDie says:

      Thanks Raul. It is good to see the recent rulings in AZ & MI. It is going to get harder and harder for the Trolls to keep cases together with only weak justification for mass joinder. Please Mr. Troll, provide the court more details on how the public IP addresses actually interacted in the “swarm.” I will say it is a bit annoying to see a judge finally see what we have been stating for some time.

      Now if they can only get away from the BS line the Trolls love to put in the complaint concerning that the public IP address they have is tied to a specific computer. For a vast majority of people, the public IP address only means the WiFi Firewall/Router, not any system that ever used it.

      DTD :)

  9. Good news. Judge denies troll’s motion for reconsideration. I think it was a bad idea for Gibbs to claim that judge had exceeded the Magistrate Judge’s statutory authority, especially with first-rate opposing attorneys. What an arrogant prick…

    In addition, judge adds to the case law that a person whose information is being sought does have a standing: Prenda recently pushes the opposite idea, they even specifically and deliberately seek discovery orders not from the court where a case is pending, but from a different court — to argue the lack of a fighting Doe’s standing, which is a blatant abuse of the rule 45 (we’ll hear about this particular sleaziness soon).

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

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