Hurt Locker Makers Subpoena ISPs for Non-Defendants

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This is a guest post by BitTorrent defense lawyer Blair Chintella. More news on the case here.

I have been practicing in the area of copyright infringement and specializing in bittorrent cases essentially since they started in the District of Columbia.  I wanted to write this short anecdote to raise awareness to an important issue regarding the Voltage Pictures case (and possibly other cases as well).

I frequently have prospective clients who contact me because their Internet account information is being subpoenaed by Voltage Pictures.  Before I do a consultation, I always verify that the IP address listed on the letter is indeed part of the lawsuit – i.e. that it’s listed in the complaint or a similar document.  However, recently I’ve been contacted by one or more people whose alleged IP addresses aren’t listed in the court records. As I’ll explain below, this appears to be not only an ethical violation but a legal issue giving rise to one or more claim under state or federal law. To better understand it’s useful to know the procedural background for the case.

The initial Voltage Pictures complaint didn’t include a list any “John Doe” IP addresses even though the case was styled: “v. Does 1-5,000.” Usually a plaintiff will attach to a complaint a list of IP addresses in these types of lawsuits so there is at least a “putative” defendant that is being sued as a John Doe. The fact that the plaintiff didn’t do this is arguably improper, but I won’t go into detail on this point.

Needless to say, the first time that the plaintiff mentions any specific IP address is on Exhibit C to the plaintiff’s June 7, 2010 motion that seeks permission to subpoena various ISPs. The motion asks permission to subpoena Internet account information for over 600 IP addresses attached as Exhibit C as well as “any other infringers that plaintiff identifies during the course of this litigation, as Plaintiff’s infringement monitoring efforts are on-going and continuous”. The motion concludes by asking the Court to issue an order permitting discovery in substantially the same form as the “proposed order” attached to the motion. The only problem, however, is that the plaintiff failed to attach a proposed order.

For reason unexplained (perhaps a simply mistake – judges are human too), the Court nonetheless granted the plaintiff’s motion on June 25, 2010. In doing so, it didn’t specify whether it was giving the plaintiff permission to conduct discovery regarding any IP addresses detected in the future (apart and in addition to those listed on Exhibit C). Perhaps unsurprisingly, the plaintiff either didn’t notice or – or noticed and didn’t seek clarification from the Court, and continued to subpoena the information for thousands of IP addresses in addition to those listed on Exhibit C.

For reasons unexplained yet again, it was not until April 4, 2011, approximately ten month later, that the Court clarified its previous order by stating the following:

. . .the plaintiff construes the June 25, 2010 . . . Order . . . as not restricted to the 687  specific IP addresses listed in Exhibit C to the motion. Rather, plaintiff construes this order as granting plaintiff leave to “conduct discovery on all of the Doe Defendants . . . that Plaintiff Voltage identifies during the course of this litigation . . .  The basis for this  broad interpretation of the June 25, 2010 Expedited Discovery Order apparently stems from a  footnote that the plaintiff included in its original motion. . . . The broad subpoena authority sought by the plaintiff in a footnote in its motion filing, however, was not specifically addressed, let alone expressly sanctioned, in the June 25, 2010 Minute Order approving expedited discovery. In short, the plaintiff’s broad interpretation of the June 25, 2010 Expedited Discovery Order is incorrect.  The plaintiff has only been granted leave to seek identifying information for those IP addresses that have been specifically proffered as relevant to this action by being listed on Exhibit C of plaintiff’s mot ion for expedited discovery. ECF No. 4.

In response to this new order, the plaintiff filed an amended complaint on May 31, 2011 listing over 24,500 IP addresses and on July 19, 2011 asked the Court for permission to conduct discovery regarding them. On July 25, 2011, the Court clarified that a previous order entered on March 31, 2011 had already given it permission to subpoena ISPs for the contact information regarding any IP address listed in an amended complaint (the Court mistakenly says March but the order was actually entered on May 31). Following this clarification, the plaintiff continued to subpoena the account information for thousands of Internet subscribers.

I wanted to write this short analysis because recently I’ve been contacted by one or more people whose alleged IP address isn’t listed in Exhibit C to the plaintiff’s motion seeking to conduct discovery nor the amended complaint. This is a serious issue because the Court’s July 25, 2011 order should have clarified that the plaintiff is only permitted to conduct discovery with respect to the IP addresses listed in the lawsuit as John Does. If this has happened to you, please speak with an attorney in your jurisdiction because may have a claim for “abuse of process” (versus the plaintiff or DGW) or a claim under the Electronic Communications Privacy Act, 47 U.S.C. § 551 or other federal or state laws (versus the plaintiff, DGWor your ISP).

Unfortunately, if you’ve already settled you likely don’t have a claim because Dunlap, Grubb & Weaver (the plaintiff’s counsel) usually insists on completely one-sided settlement agreements (another good reason to hire an attorney to negotiate for you). If you’ve already settled and feel gipped, you might consider filing a bar complaint with the District of Columbia to make sure that this doesn’t happen to others. I recommend speaking with an attorney beforehand, however, to ensure that you aren’t breaching any confidentiality provision.

With everyone’s help, we may not be able to kill these ugly troll lawsuits altogether but at least we can level the playing field a little.

Yours truly,

Blair Chintella
www.chintellalaw.com

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