August 01, 2012
P2P Infringement Lawyer Faces Possible Sanctions For Disregarding Court Order Regarding Subpoenas – In re: Bittorrent Adult Film Copyright Infringement Cases
[Post by Venkat Balasubramani]
In re: Bittorrent Adult Film Copyright Infringement Cases, 12-1147(JS)(GRG) and 12-1154(ADS)(GRB) (E.D.N.Y.; July 31, 2012)
P2P lawyers have come under a lot of fire lately for their tactics. As detailed here by Ars, the Fifth Circuit recently upheld a sanctions order in the amount of $10,000 against Evan Stone for issuing unauthorized subpoenas. (Added: the total amount was actually $32,000 when you also include the fees Stone was ordered to pay EFF.) Bizarrely, Stone offered the following comment to Ars:
I'm just going to move on from this whole sanction thing. I think it's bullshit and I think it shouldn't have happened.
(???) Separately, I blogged about another case in New York where the Court slammed copyright plaintiffs for their tactics in pressuring Doe defendants to settle, and severed the cases against the Doe defendants because joinder was improper—plaintiffs had to go after the Doe defendants one at a time or make a better showing as to how the defendants' actions were sufficiently related to support joinder. (“New York Judge *Slams* Bittorrent Copyright Plaintiffs – K-Beech; Malibu Media; and Patrick Collins v. Does.”)
In that case the court in no uncertain terms indicated that it was unhappy with plaintiffs’ conduct:
[t]his course of conduct indicates that the plaintiffs have used the offices of the Court as an inexpensive means to gain the Doe defendants’ personal information and coerce payment from them.
The order (issued on May 1) granted early discovery but imposed certain restrictions. Plaintiffs were granted early discovery as to one Doe defendant in each case, but the court was clear that the ISP should produce the information concerning the Does' identity to the court, not to counsel for plaintiffs. This would allow the court to adequately protect the Does’ rights and, if necessary, appoint pro bono counsel to protect their interests.
According to the court, a week after this order was issued, counsel for Malibu Media and Patrick Collins (Jason Kotzker) served two subpoenas seeking the names and addresses of two Doe defendants on Cablevision. Both subpoenas required production of the sought after information to plaintiffs' counsel, rather than to the court, in contravention of the court's May 1st order. Kotzker later moved for an extension of time to serve the complaint and summons, indicating that although he had issued subpoenas, Cablevision hadn't provided the subpoenaed information.
A few weeks later, the court issued an order raising the question of why plaintiffs’ counsel issued a subpoena seeking production of the Does’ identity to counsel rather than to the court. The order does not appear to be a result of a motion filed by any party. (I could be wrong about this, there are a slew of cases involved and they aren't consolidated on Pacer.) The court says that it will give Kotzker a chance to explain. It’s possible that the subpoenas (the face of which indicated that information should be produced to Kotzker) were accompanied by cover letters explaining the mechanics of the court’s May 1st order. (This seems unlikely, given that Kotzker filed a pleading requesting an extension and mentioned that he had not received the information requested from Cablevision.) The court says it’s difficult to ascertain whether the failure to “observe the precautions established in the Order . . . was deliberate, or simply the result of gross inattention.” The court orders Kotzker to file a declaration or affidavit explaining what happened, whether he reviewed the subpoenas and signed them, and to identify everyone involved who prepared the subpoenas. Kotzker is also directed to provide the court with all correspondence with Cablevision.
Ouch. This could result in counsel falling on his sword and getting a stern lecture from the court. It could also result in more severe sanctions. The subpoena process places a fair amount of power in the hands of lawyers. As this case among others (including the Fifth Circuit sanctions order and Theofel v. Farey-Jones) indicate, this power should be used wisely and judiciously. Judges are not happy when it's misused.
(h/t Ray Beckerman)
New York Judge *Slams* Bittorrent Copyright Plaintiffs – K-Beech; Malibu Media; and Patrick Collins v. Does
Court Nukes Another Mass Defendant File-Sharing Lawsuit -- Digiprotect v. Does
Copyright Doe Defendant Can’t Quash Disclosure Subpoena Anonymously—Hard Drive Productions v. Does (Guest Blog Post)