Troll Thinks Twice About Naming a Doe
Thank you Doe#1 for posting the link to this court order on the Robert Cashman Blog – (http://torrentlawyer.wordpress.com/2012/01/09/what-to-do-when-you-are-named-as-a-defendant-in-your-bittorrent-lawsuit/). This order (11 Jan 11) is for case # S-11-3074 KJM, Hard Drive Production v. Doe (Amateur Allure – Violet), filed on 21 Nov 11. Order_Denied_DepositionSubp
During the course of this case, the Troll obtained the name and other personal information one of the Does.
According to plaintiff, it has already determined that a person named Jeff Goldberg is the account holder of the IP address involved. (Dkt. No. 7 at 5.) During initial discussions with Mr. Goldberg, Mr. Goldberg was allegedly combative and indicated that he did not unlawfully download or distribute the Video. (Id. at n.1) However, he did not offer any explanation as to why his IP address was logged as unlawfully downloading or distributing the Video. (Id.) Since the initial discussions with Mr. Goldberg, he has apparently ignored all further correspondence from plaintiff.
The Troll told the court that based on Mr. Goldberg’s reluctance to talk further with them, they were requesting the court authorize a deposition subpoena be issued so they could question Mr. Goldberg.
Plaintiff now requests the court to authorize service of a deposition subpoena on Mr. Goldberg. Plaintiff states that, in some cases, an account holder may be able to offer a
credible explanation for why he or she is not the infringer and may be able to identify the actual infringer, such as another household member or tenant. (Dkt. No. 7 at 5.) As such, plaintiff contends that it cannot proceed in the action without ascertaining the likely infringer’s identity, and that Mr. Goldberg is the only person with information that can allow plaintiff to identify the actual infringer and permit service of process on that individual. (Id.)
The court stated Plaintiff did have good cause for the initial expedited discovery against the ISP, to obtain the subscriber information. But since Plaintiff knows who this John Doe is, they do not have good cause for this expedited discovery request – Deposition Subpoena.
Here, plaintiff has not demonstrated good cause for the expedited discovery requested. Unlike the plaintiffs in UMG Recordings, Inc. and Arista Records LLC, plaintiff has already discovered the name and contact information of the account holder of the IP address involved. Therefore, assuming plaintiff has a good faith basis for its claims, plaintiff can name Mr. Goldberg as a defendant and serve him with process. Simply put, plaintiff is not unable to pursue its lawsuit to protect its copyrights absent expedited discovery.
The court went on to say that even if Plaintiff had good cause for this request (IT DOESN’T), it would be outweighed by the potential prejudice to Mr. Goldberg.
“Expedited discovery may be inappropriate where defendants are required to unwarily incriminate themselves before they have a chance to review the facts of the case and to retain counsel.” Pod-Ners, LLC, 204 F.R.D. at 676 (citations omitted). To be sure, courts frequently allow expedited discovery in copyright infringement cases involving peer-to-peer (“P2P”) networks to allow identification of Doe defendants. But, the expedited discovery requested is usually a narrowly tailored document subpoena seeking the minimum amount of information needed to identify defendants, such as names, addresses, phone numbers, and e-mail addresses of account holders associated with the IP addresses.
The judge stated that if Plaintiff has a “good faith basis” for its claims against this Doe, then it needs to formally name Mr. Goldberg as a defendant, serve him with a summons, hold the Rule 26(f) conference, and conduct any necessary discovery. The court also stated that “Procedural vehicles exist to later add and/or dismiss defendants based on additional facts discovered, if necessary.”
What Does this Mean
It means the court told the Troll to quit crying and to officially name the Doe – if they have a good faith basis for their allegation. They don’t have a good faith basis, just the Public IP address collected by a questionable company hired by the Troll. It amounts to “Put Up OR Shut Up!”
Depending on what additional information the Troll has gathered, they may name Mr. Goldberg and proceed with the case. If all they have is the Public IP address, then they are really taking a chance that Mr. Goldberg will cave-in after being named. If he doesn’t cave in and hires an attorney, the Trolls could be in a world of hurt. I assume (could be wrong) that after the troll formally names someone in a suit, they can be subject to a court ruling to pay the attorney fees of the defendant if they eventually dismiss the case at some stage.
I think this order shows how weak the Trolls feel about actually naming a Doe and moving forward. Just remember that this is a money-making operation and a full-out court battle is a losing option for the Trolls. A full trial is not only going to show how weak the Public IP address is, but that their collection methods and personnel are not experts that a court or jury should have any reasonable trust in.
This also shows you what you should be saying to the Troll when they contact you. 1. I didn’t do it. 2. There is no evidence on my system. 3. I will fight you in court. 4. Please leave me alone and don’t call back. Make sure you document all attempt by the Troll to contact you and what/how they say it. The troll tried to tell the court that Mr. Goldberg was rude to them. What should the Troll expect from someone once they are told they are guilty, no excuses, maybe even negligent, Pay up a couple thousand dollars, and sign the non-disclosure agreement; OR we will name you in a Federal law suit and take everything you own.