Earlier this year, adult studios Malibu Media and Patrick Collins were criticized by a New York District Court for using “abusive litigation tactics” against John Doe defendants. The claims were that plaintiffs had, amongst other things, subjected defendants to harassing telephone calls demanding $2,900 to end the cases against them.
In order to deal with these complaints but also allow the cases to progress, the Court decided that it would allow limited discovery, but would also take measures to uphold the defendants’ rights.
To that end the Court said that while ISPs would still have to hand over the identities of two John Does, they would have to do so directly to the Court. Plaintiffs would then be able to access that information at a status conference attended by the Does, which would give them a chance to be heard and obtain counsel.
But as detailed in an order filed yesterday in the United States District Court for the Eastern District of New York by Judge Gary R. Brown, things clearly didn’t go to plan. The order starts badly and only gets worse.
“Less than three months after addressing concerns about potentially abusive litigation tactics by plaintiffs in these actions, this Court is again confronted with indicia of improper conduct by plaintiffs’ counsel,” Judge Brown begins.
It turns out that despite the orders of the Court put in place to protect everyone’s rights, the studios simply ignored them and in May served two subpoenas on the ISP Cablevision.
“Notwithstanding this Court’s unambiguous order that the identities of two John Doe defendants should be produced only to the Court, it appears that plaintiffs’ counsel issued subpoenas directing the relevant Internet Service Provider to produce names and addresses of the John Doe defendants directly to plaintiffs’ counsel,” Judge Brown wrote.
Fortunately, Cablevision did manage to follow the instructions by sending the information to the Court in a sealed submission as required.
“This Court’s Order cataloged abuses tactics by plaintiffs in related actions against John Doe defendants, and expressed, in no uncertain terms, this Court’s concerns about the conduct of this litigation going forward, particularly in light of the serious questions about plaintiffs ability to properly identify defendants based solely upon their IP addresses,” Judge Brown wrote in yesterday’s order.
“As such, it is astonishing that counsel failed to observe the precautions established in the Order. On this record, it is difficult to ascertain whether this apparent failure was deliberate, or simply the result of gross inattention.”
Before deciding on any sanction, Judge Brown has now ordered the studios’ counsel to declare under oath exactly what has been going on in advance of a status conference to be held in September.
Separately, in an order filed late last month in the United States District Court for the District of Columbia, Judge Ellen Segal Huvelle details a development in a case between adult studio Bubble Gum Productions and Comcast.
After much back and forth concerning the unmasking of a Doe defendant, Judge Huvelle declared that Bubble Gum has filed at least one, and possibly two, motions to compel Comcast to comply with an invalid subpoena.
“Accordingly, it is further ordered that, by August 3, 2012, Bubble Gum shall show cause why sanctions should not issue against it for attempting to perpetrate a fraud upon the Court,” Judge Huvelle concludes.
Last month, lawyer Evan Stone was slammed for sending subpoenas to ISPs without the permission of the court.