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.
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.
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 😉