Thanks to the Doe that passed onto me this Prenda Law case from the Eastern District of California. This case was originally filed on 30 Dec 11, and it differs from the normal Prenda/Gibbs/Steele crap by listing ONE Doe defendant (126.96.36.199) and 115 co-conspirators Does.
It appears Gibbs was trying something different in the CA courts to avoid possible problems with multiple Doe defendants – improper joinder. The complaint states that they used geolocation to determine that John Doe lives in the proper jurisdiction. FTV v. John Doe, Complaint 11-cv-03478
In standard form, Gibbs then submitted an application for leave to take expedited discovery – Subpoena to COMCAST for subscriber information. On 19 Jan 12, Judge Edmund Brennan, granted the subpoena for John Doe and denied it for all the co-conspirators/other ISPs. 19Jan12_Order_03748 Note: many of the 115 co-conspirators had ISPs other than COMCAST. There is also the same declaration from Peter Hansmeier, 6881 Forensics LLC (Previously MCG, LLC), stating he was the technician that collected the BitTorrent information on John Doe and the co-conspirators.
On 31 Jan 12, Gibbs refilled the application for leave to take expedited discovery Revised_Discovery_03478 –
On January 31, 2012, plaintiff filed a renewed application to conduct expedited discovery. Dckt. No. 10. Plaintiff again seeks leave to serve discovery on the other third party ISPs to determine the identities of John Doe’s co-conspirators. Id. Plaintiff makes the same arguments it made in the initial application, but it attaches a revised Hansmeier declaration in order “to clarify the two ambiguities in the Hansmeier declaration that ostensibly caused the Court to partially deny Plaintiff’s original application.” Id. at 1.
The Judge goes on to state that Plaintiff did show good cause to grant expedited discovery for John Doe, but not for the co-conspirators.
Although the revised Hansmeier declaration clarifies that he observed the coconspirators’ IP addresses engaged in the same downloading and uploading as John Doe, the declaration still does not establish that none of the internet subscribers whose information plaintiff seeks to obtain are innocent internet users. The concern remains that potentially nonoffending users’ information is being sought. As many courts have noted, “the ISP subscriber to whom a certain IP address was assigned may not be the same person who used the Internet connection for illicit purposes.” SBO Pictures, Inc., 2011 WL 6002620, at *3; Pac. Century Int’l Ltd., 2011 WL 5117424, at *2; IO Group, Inc. v. Does 1–19, 2011 WL 772909, at *1 (N.D. Cal. Mar. 1, 2011). “For example, ‘[ISP] subscriber John Doe 1 could be an innocent parent whose internet access was abused by her minor child, while John Doe 2 might share a computer with a roommate who infringed Plaintiff’s works.’” SBO Pictures, Inc., 2011 WL 6002620, at *3 (quoting Third Degree Films v. Does 1–3577, 2011 WL 5374569 (N.D. Cal. Nov. 4, 2011)). Because plaintiff seeks information about the “ISP subscribers who were assigned certain IP addresses, instead of the actual Internet users who allegedly engaged in infringing activity, ‘Plaintiff’s sought-after discovery has the potential to draw numerous innocent internet users into the litigation, placing a burden upon them that weighs against allowing the discovery as designed.’” Id. (quoting Hard Drive Prods., 2011 WL 5573960, at *2). Additionally, as numerous other courts have noted, if the undersigned were to grant plaintiff’s renewed request for expedited discovery regarding the alleged co-conspirators, “[p]plaintiff would likely send settlement demands to the individuals whom the ISP identified as the IP subscriber. ‘That individual—whether guilty of copyright infringement or not– would then have to decide whether to pay money to retain legal assistance to fight the claim that he or she illegally downloaded sexually explicit materials, or pay the money demanded. This creates great potential for a coercive and unjust ‘settlement.’” SBO Pictures, Inc., 2011 WL 6002620, at *3 (quoting Hard Drive Prods., 2011 WL 5573960, at *3).
After laying down that much background to support his decision, the judge then states that Plaintiff didn’t bother to address the concern of the court (19 Jan 12) that plaintiff will name conspirators as defendants in the future –
the fact that plaintiff has not named the alleged co-conspirators in its complaint. See Dckt. No. 6 at 1, 9 (naming only one doe defendant, John Doe, and asserting that plaintiff will “seek leave of the Court to amend this complaint to join John Doe’s co-conspirators as defendants . . . .”). Although plaintiff contends that it may seek leave to join the coconspirators, plaintiff has not done so, and it is not clear that the court would permit such joinder.
I think the judge knows that Plaintiff is not going to name any of the co-conspirators, much less the single John Doe. He is obviously well-informed to the general nature of these cases. The Judge then issues the Order (7Feb12_Order_03478_CA) with a final bit of “too bad, try again.”
Although the court acknowledges that there is at least some risk that the ISPs used by the alleged co-conspirators could destroy the information plaintiff seeks and thereby preclude plaintiff from discovering their identities, in light of the entirety of the record, and for the reasons outlined above, the request to conduct expedited discovery regarding all of the alleged co-conspirators is not reasonable and is not supported by good cause.
I have added the revised Peter Hansmeier (6881 Forensic LLC) declaration (P_Hansmeier_Decl_03748), as it gives a little more information on how the monitoring/data collection is accomplish. It is still hidden under a veil of obscurity, but it will reach the light of day eventually. So much for the following John Steele (Prenda Law) claim – …”not many articles out there about how a certain Miami firm is having any problems with the courts. I guess we will see.” Yes you will 😉
Thanks Raul for the Update on the Liuxia Wong v. Hard Drive Productions case – 5:12-cv-00469-HRL (PLAINTIFF LIUXIA WONG’S OPPOSITION TO DEFENDANT HARD DRIVE PRODUCTIONS, INC.’S MOTION TO DISMISS) http://ia700809.us.archive.org/15/items/gov.uscourts.cand.250725/gov.uscourts.cand.250725.10.0.pdf No problems in the courts???…. I beg to differ.