Grounds For Sanctions – Inaccurate And/Or False Statement from Jon Nicolini, CEG, 4:11-CV-00583, Digital Sin Inc., v. Does 1-208

While looking at a very similar case to the one I recently filed a declaration on (DTD Torpedo Hits Case # 4:11-CV-00584, Digital Sin, Inc., v. Does 1-145, FL, Troll Terik Hashmi), I came across a Motion to Dismiss/Quash/Protective Order from Doe #58 (via his attorney Robert George), filed on 29 Dec 11.  The big thing that caught my attention was the Attorney identified some questionable information from Jon Nicolini, CEG, that calls into question the entire case, as well as all the other “experts” used by the Trolls.  The Troll armor is to show its true character.  As I stated before, we will attack their weak points. 😉  Read on and enjoy.

Motion to Dismiss/Quash/Protective Order & Attachment

The motion states that Doe #58 disputes the IP address the Trolls have associated with him.  He essentially states the Public IP address COMCAST claims he was using during the date/time of Troll allegation is wrong.   

Misjoinder

The Motion goes on to state the joinder of the 208 Does is wrong due to:

The allegation that the same copyrighted work was misappropriated by hundreds of individuals on separate dates, at separate times, and in separate locations over a period of months does not warrant joinder of the 208 “Doe” defendants in this action. The claims against the 208 separate “Doe” defendants in this matter clearly do not involve the same “transaction or occurrence” required for joinder under Rule 20. Each incident of misappropriation is in itself a separate “transaction or occurrence” involving separate defendants, and occurring at separate times, dates and locations.

The motion also cites a Northern District of California case (Digital Sin Inc., v. Does 1-5698, 4 Nov 11), where the joinder of the of 5698 Does (for the same movie as here) was denied. 

Lack of Personal Jurisdiction

 The Motion states that the Declaration of Mr. Jon Nicolini, CEG, claims that all the Does are in the proper jurisdiction of the Court.  Doe #58 claims that has not (and currently does not) reside within the jurisdiction of the Northern District of Florida.

Cloud of Suspicion on the Evidence Collection & Jon Nicolini, CEG

The really interesting bit to read in this Motion is the statement claiming Jon Nicolini, CEG,  provided inaccurate data and a false statement concerning the evidence he collected.   

What is concerning is that Mr. Nicolini’s declaration, signed under penalty of perjury, is dated October 22, 2011, while many of the alleged misappropriations identified in Exhibit A of the Complaint took place after that date. In fact, according to Exhibit A of the Complaint (upon which Mr. Nicolini relies) of the 208 “Doe” defendants who allegedly misappropriated the copyrighted work, 72 downloaded the file at issue on or after the date of Mr. Nicolini’s declaration. How Mr. Nicolini (and Plaintiff) can certify that he has undertaken various efforts to identify, notify, and attempt to settle with alleged infringers before the misappropriation at issue even occurred is unclear. Further, though he repeatedly relies upon and refers to “Exhibit A” to the Complaint in his declaration, “Exhibit A” could not have existed at the time Mr. Nicolini signed his declaration, as approximately 1/3 of the instances of misappropriation identified in Exhibit A occurred after Mr. Nicolini’s declaration was executed. The apparent falsity of Mr. Nicolini’s declaration – at a minimum – raises a cloud of suspicion as to the validity of Plaintiff’s claims. (Footnote: Plaintiff’s use of this false declaration in support of its “verified” Complaint is grounds for sanctions.)

Motion to Quash Subpoena

This clearly states that because the court granted the subpoena based on the inaccurate information (Bad Faith) provided by Jon Nicolini, CEG, the subpoena should be quashed. 

Motion for Protective Order

The Doe requested the court issue a protective order requiring Plaintiff not to disclose his personal information until he is able to file a motion with the court & the court rules on the motion.  The Motion also brings up the fact that Plaintiff failed to mention to the court the previous ruling on a relevant similar case (Digital Sin, Inc. v. Does 1 – 5698).

In its Motion for Leave to Take Discovery Prior to Rule 26(f) Conference [Doc. 3] and supporting memorandum, Plaintiff failed to inform this Court of the decision in the its previously filed companion case pending in the Northern District of California (Digital Sin, Inc. v. Does 1 – 5698, 2011 WL 5362068 (N.D.Ca. Nov. 4, 2011)), in which the Court entered a protective order requiring any information obtained from non-party subpoenas identifying “Doe” defendants to be kept confidential. In support of its ruling, the district court noted that a protective order was warranted because “the ISP subscribers may be innocent third parties, the subject matter of the suit deals with sensitive and personal matters, and the jurisdictional and procedural complications might otherwise dissuade innocent parties form contesting the allegations.” Id. at *4. All of those concerns are present in the instant matter.    

Should be very interesting to see what the judge does to address these allegations that Jon Nicolini, CEG, provided a false statement.  How many other case have used declarations from Jon Nicolini and CEG to provide “Expert” information?  Even if future documents from CEG are accurate, this will continue to be brought up to show they are sloppy, inaccurate, and not to be trusted to provide the court unbiased information.  Not a big surprise for all of us 😉

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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27 Responses to Grounds For Sanctions – Inaccurate And/Or False Statement from Jon Nicolini, CEG, 4:11-CV-00583, Digital Sin Inc., v. Does 1-208

  1. CTVic says:

    Nice catch by defense counsel! I’d say Doe 58’s investment in his lawyer was money well spent!
    It’s little inconsistencies like that which insinuate some kind of fraud and get massive multi-million dollar lawsuits thrown out – let alone cheap-ass copy/paste troll scam lawsuits.

    I’ve got a feeling we’ll be seeing a lot more examples like this, where some minor detail gets overlooked by plaintiff trollawyers who will have to suck it up and dismiss quickly, else risk sanctions and fraud hearings against themselves. When you’ve got a ton of cases active, and more waiting in the queue, it only makes sense to cut your losses rather than waste time patching every little hole.
    It’s a natural result of their business model of mass-filing cheap lawsuits to collect as many names as possible, with keeping their own costs as low as possible. When you run a copy/paste settlement sweatshop with hundreds of cases against thousands of defendants, you’re GOING to fuck some up. Each mistake takes another chip out of their legal credibility.

    Another block from the jenga tower is removed.

  2. Euclid says:

    I was “named” in this subpoena and will be using this MTD and another from 584.

    I just want this to be as cheap as possible. Is it at all likely anything will happen if I just do nothing? Should I at least file a motion to require my identity to be held confidential when it is eventually disclosed?

    • DieTrollDie says:

      Here is what the Troll will initially do. Get your subscriber information from the ISP and start the process of trying to contact you via telephone, email, and letter. Many will only call and not send a letter with details. I think the best thing to do then is tell the Troll you didn’t do this and you will fight them in court. Don’t discuss details of you, your family, your computer network set-up, who uses it, your finances, etc. You only want to state to them you didn’t do this, there is no evidence to show this, and you will fight them in court. If you are up to it, please file a motion to quash/dismiss/sever, etc. Be advised, that there is no guarantee the motion will work and it may annoy the Troll. Also note that some Trolls will voluntarily dismiss you from the mass case and then immediately file against you as a single Doe. This is a scare tactic that doesn’t change the fact they only have weak evidence (Record of the “Public” IP address) – a member of a mass-Doe suit OR as a single Doe doesn’t change this.

      DieTrollDie 🙂

  3. Anonymous says:

    While I think it would be overly optimistic to expect to see sanctions for this one misstep considering how much abusive behavior these guys get away with, it will add up and it is very important to keep track of these things and to keep an eye out for them when we read filings from these cases.

    Even if they never make this mistake or any other mistake again (unlikely) they still have at least a year’s backlog of copy and pasting cases together against thousands of people. That means when the momentum against them picks up in the form of sanctions, counter-suits, class action suits, etc. each and every incident like this will be another nail in their coffin. And every Doe they have ever sued will be able to use every mistake to sue these Trolls for fraud, misrepresentation and extortion. There is no taking any of this back, it’s all on the public record and when the defenses start to mount and lawyers start going over the Troll’s filings with a fine-toothed comb there will be much more to work with.

    Think about how many more outright lies these guys have told the courts, and then think about how they will look when every one is enumerated in a complaint.

  4. DieTrollDie says:

    A Doe sent me some information that allegedly Terik Hashmi is not licenses to practice law in Florida. NOTE: I have not confirmed this. In the complaints Hashmi files in Florida, he lists a Miami Beach address as his office address (and the name of his firm is also a Florida company). The Doe claims Hashmi is not admitted to practice law in Florida, and therefore, is not permitted to establish an office in Florida. If this is the case, the Does should contact The Florida Bar, 850-561-5600, and request the form for filing an unlicensed practice of law complaint.

    If anyone can shed some light on this allegation – authorized to practice in FL???? Please assist. Thanks

    DieTrollDie 🙂

  5. Rich says:

    Terik Hashmi is supposedly licensed to practice law in Ohio since 1994, but if you go to the Ohio Bar’s website and search his name, you get the response: “We are sorry, but your search did not yield any results” Mr. Hashmi’s signature block on his complaints says he’s admitted to the Northern District of Florida Bar. Checking PACER Docket does not reveal any Pro Hac Vice motions filed by Mr. Hashmi. Perhaps contacting the Ohio Bar on this Lawyer? to verify whether he is admitted there or not might also be appropriate.

  6. anon says:

    I like this letter. Whats the contact info for this attorney?

  7. 2ndnorthernfloridacasedoes1-43 says:

    my research has pulled up this
    http://www.sconet.state.oh.us/attysvcs/attyreg/Public_AttorneyDetails.asp?ID=0064329

    then read the local rules under section 11.1

    RULE 11.1 Attorneys

    (A) Qualifications for Admission. An attorney is qualified for admission to the bar of
    this district if the attorney: (1) is currently a member in good standing of The Florida Bar or the
    Bar of any state; and (2) has successfully completed the tutorial on this court’s local rules, located
    on the district’s Internet Home Page, http://www.flnd.uscourts.gov. To participate in the court’s
    17
    Electronic Case Filing, the attorney must also have successfully completed the computer based
    training tutorial on the CM/ECF System, available on the district’s Internet Home Page,
    http://www.flnd.uscourts.gov.

    Attorneys admitted as of January 1, 2004, are not subject to any new admission requirements and remain members in good standing, but will be required to successfully complete the computer-based training tutorial on the CM/ECF System before they will be able to participate in the court’s Electronic Case Filing.

    (B) Procedure for Admission and Proof of Qualifications. Each applicant for
    admission shall submit a verified petition setting forth the information specified on the form
    provided by the Clerk of this Court, together with an application fee in the amount set by the
    court by administrative order and payable to the Clerk, a signed oath of admission, and a current certificate of good standing from The Florida Bar or the bar of any state. Each applicant must successfully complete the tutorial on local rules, located on the district’s Internet Home Page, http://www.flnd.uscourts.gov. To participate in the court’s Electronic Case Filing, the attorney must also have successfully completed the computer based training tutorial on the CM/ECF System, available on the district’s Internet Home Page, http://www.flnd.uscourts.gov.
    (C) Appearances.

    (1) Who May Appear Generally. Only members of the bar of this district may
    appear as counsel of record in this district.

    (2) Pro Hac Vice Appearance. Prior to any appearance, any attorney who is not a
    member of the bar of this district must request permission in writing to appear, certifying
    that he or she has successfully completed the computer-based tutorial on local rules of the
    Northern District of Florida and the computer-based tutorial on this court’s CM/ECF
    System, available on the district’s Internet home page, http://www.flnd.uscourts.gov. In addition,
    a copy of a certificate of good standing date dated within the last six months from The
    Florida Bar, from the bar of any state, or from the United States district court to which
    said attorney has been admitted, together with an admission fee in the amount set by the
    court by administrative order, shall accompany said request. Upon completion of these
    requirements the attorney will be admitted to the bar of this district. With the advent of
    electronic case filing, this court no longer draws any substantive distinction between
    membership in the bar of this district and pro hac vice admission. An attorney admitted
    pro hac vice will be treated as a member of the bar of this district and will remain a
    member, even after termination of the case, until such time as the attorney affirmatively
    withdraws from the bar of this district or no longer meets the admission qualifications.

    • none says:

      what you forgot was:

      (E) Disbarment and Discipline.
      (1) Professional Conduct. Except where an act of Congress, federal rule of
      procedure, Judicial Conference Resolution, or rule of court provides otherwise, the
      professional conduct of all members of the bar of this district, with respect to any
      matter before this court, shall be governed by the ****Rules of Professional Conduct of
      the Rules Regulating The Florida Bar****

      thus, regardless of the loophole, he may not hold himself out to practice law in florida, render legal services in FL, etc etc… and is thus subject to discipline under FL pro. conduct rules.

  8. 2ndnorthernfloridacasedoes1-43 says:

    Here is the 2nd florida case – that subpoena came out last week for ISP info.

    1:12-cv-00003

    • none says:

      hi, i cant reply to last thread.. because three is the max replies…

      can someone please post their demand letter, if there is one. redacting identifying information is fine.. the point is, if Hashmi’s address is printed on the letterhead and doesn’t say admitted to ohio only OR not admitted to practice law in FL, it’s very likely UPL, unless he’s been admitted by the supreme court of FL and theres no indication of that. thanks in advance.

      • 2ndnorthernfloridacasedoes1-43 says:

        at least in the 2nd case – no demands letters sent out prior submitting case for ISP info.

      • Hashmihater says:

        My case was filed late last year. I have not received a notice from ISP nor a demand letter from Hashmi.

  9. jd says:

    A bunch of oppositions to motions up on PACER. All the same and trying to get around the date issue.

  10. anon says:

    Anyone one involved with 12-CV-00004-SPM-GRJ or have info on it? email me at terikhashmisucks@hotmail.com

  11. HashmiHater says:

    If Terik Hashmi is not legally allowed to practice law in Florida then all of the cases he filed in Florida have to be dropped (dismissed with prejudice).

    Am I correct in this?

    If so this would be a relief for all does in cases he has signed his name to in Florida anyway.

    • jd says:

      The investigation process probably takes a few months to work out. Hopefully someone submits a complaint to Ohio as well – as of this week – they have no complaints.

      I wonder if the Judge in ND/F can be made aware of an investigation by the Florida Bar?

  12. Doe says:

    I have a case from teh same lawyer and plantiff and cannot afford a lawyer. Has anyone else tried to file a MTQ by themselves and can you basically use this one here with the details of your case replaced? Or should you create one from scratch

  13. Euclid says:

    Dismissed!!!!

  14. vforvictory says:

    “Under these circumstances, requiring the plaintiffs to start over and do it
    right is not too harsh a sanction.”

    Just what I thought. Great news for all involved.

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