Judge reconsiders his order to allow early discovery, forbids Prenda to harass “co-conspirators”

Posted: June 29, 2012 by SJD in Prenda, Troll of the week
Tags: , , , , , , , , , , , ,

Magistrate judge John Moulds

I’m glad to report a significant victory in the Eastern District of California: on Wednesday Magistrate Judge John F. Moulds granted a Motion for Protective Order and Reconsideration in one of Prenda’s lawsuits that employ a slimy trick of suing a single Doe but trying to obtain personal in formation of numerous co-conspirators in order to harass them later (Pacific Century International, Ltd v. Unknown, 2:11-cv-03479).

We don’t often witness a judge changing his opinion. For some reason many perceive this as a weakness, while I think that changing an opinion under compelling arguments is a sign of courage and wisdom. In this case judge finds that troll Brett Gibbs’s “arguments” were erroneous and he shouldn’t have allowed early discovery back in January.

One of the predatory features of this type of shake-down lawsuits is that at the time when fishing expeditions are approved by judges, there is no one to oppose worm-tongued trolls, and in many cases they experience no resistance up to the point when Doe identifying information is handed out to them. Fortunately for the Does in this case, an experienced attorney was able to crush trolls’ lies into pieces in the judge’s eyes. Moreover, judge went an extra mile and barred Prenda from contacting even those Does, whose information may have been already released.

Given the apparent mess in Prenda’s bookkeeping (need a proof? — read about their disastrous robocalling campaign), one of the alleged “co-conspirators” in this case will receive a call from an intelligent robot or not-so-intelligent Mark Lutz — it is just a matter of time. Stay alert, record and report to the court when it happens.

At least one more Prenda’s case is pending before this judge (CP Productions v. Unknown, 2:12-cv-00616), and it is a no-brainer to predict its outcome.

One thing worth noting: in this case subpoena was issued by another court, and judge denied an earlier motion to quash because “federal courts do not have authority to quash or modify a subpoena issued from another district, Fed. R. Civ. P. 45(c)(3)(A).” We can’t blame him for that. In my opinion, it’s the Illinois Bar Association who should investigate a clear violation of the rules of professional conduct:

4.4 (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

Prenda (and some other trolls) very often secure subpoenas out of a court other than the one where their mass lawsuit is pending. This is per se a legitimate tactic: many respectable lawyers would use the same technique if they had to obtain testimony from a witness who lived in another state. The federal rules only permit a court to have personal jurisdiction over those persons and entities that are within 100 miles of the court according to FRCP 4(k)(1)(B). Where Prenda’s tactic falls apart is that entities, such as Comcast, Verizon or AT&T, generally are registered to do business in multiple states (and of course in California). Therefore, the subpoena could be issued out of the court where the action is pending without prejudicing anyone.

As we see, as soon as a motion to quash is filed by a pro se party in the court where the case is filed (and that’s a natural thing assume that this is the right court, isn’t it?), Prenda’s lawyers immediately point out that the movant should have filed that motion in the court that the troll chose to issue the subpoena, and they almost always succeed in getting the judge to deny the motion. So, it can’t be clearer that the reason to issue subpoena out of a different court is a dirty trick with the sole purpose to create confusion and burden defendants and their attorneys with necessity to argue different defenses in two courts rather than one.

This tactic does not go unnoticed though: Judge Wilkins recently expressed his concern in his recent historic ruling:

…there is nothing in the record showing why this forum was appropriate to issue a subpoena for personal identifying information for all 351 Comcast subscribers. Engaging in “one stop shopping” in the District of Columbia for the personal identifying information for all Comcast subscribers may be convenient, for whatever reason, to the Plaintiff. Nonetheless, this approach hardly demonstrates compliance with the Plaintiff’s affirmative duty pursuant to Rule 45 to take “reasonable steps” to avoid undue burden and territorial inconvenience to the 348 (among the 351 total) subscribers residing outside of the District of Columbia.

[...]

Forcing the Comcast subscribers to litigate their objections in a distant forum is completely unnecessary, since the Plaintiff can serve a subpoena upon Comcast in any judicial district where Comcast subscribers reside.

In the meantime, the Illinois Bar Association remains silent as usual: it’s hard to talk with the head deep in the sand.

Comments
  1. Raul says:

    Agreed that it is a rare but beautiful thing when a federal judge admits that he/she erred initially and this Order reminds me of MDD Chief Justice Chasanow’s change of mind:

    “It was initially expected that these defense related
    issues would become apparent only after the Doe
    Defendants were identified and officially appeared in the
    action. At that point, this court predicted, severance would
    likely be necessary. See Third Degree Films, Inc., 2012 WL
    669055, at *5 n.5. Contrary to expectations, however, the
    motions to quash and sever have themselves presented a wide
    variety of factual and legal issues pertinent to this case. For
    example, in her motion to quash, Doe 100 identifies the family
    members who had access to her computer on the relevant date and
    explains that no one in her household could have downloaded the
    Work. (ECF No. 17). In contrast, Doe 102 explains that the IP
    address of his personal computer does not correspond with the IP
    address that his ISP used to identify him as a Doe defendant.
    (ECF No. 20). These starkly disparate factual scenarios
    immediately call into question whether the claims against Doe
    Defendants are “reasonably related” and should “be tried in a
    single proceeding.” See Saval, 710 F.2d at 1031. Thus, the
    timeline for reconsidering permissive joinder has accelerated,4
    and the circumstances now tip the scales in favor of severance.”

    http://ia600807.us.archive.org/6/items/gov.uscourts.mdd.195265/gov.uscourts.mdd.195265.40.0.pdf.

  2. doecumb says:

    Good news, showing how awful troll actions are, making a judge to reconsider a case from December 2011. Note that Gibbs filed this case on 12/30/11. It seems common for trolls to file new cases at the end of a work week, or just before/after a holiday. It would go along with previous patterns of trying to slip things by the courts.

    To be clear, the title of the “creative” “useful work” here is “Amateur Creampies−Laney Boggs”.

    There are over 110 alleged co-conspirators. This is obviously a case with improper jurisdiction. It’s doubtful there are 110 people in the entire district or state have ever heard of this video. By the way, on web search, no retail listing at all for this title can readily be found. Was this title “released” for troll entrapment schemes?

    It’s also a case of forum shopping. Gibbs’s office is 27 minutes drive time from the California Northern District court in San Francisco, and 97 minutes from the California Eastern District court in Sacramento. The Gibbs/Pretenda scam has been squashed in the Northern District. Gibbs is driving to the nearest Eastern District court, hoping to avoid scrutiny .

    According to the plaintiff, “Pacific Century International, Ltd.”, “is a partnership organized and existing under the laws of the Republic of Malta.” Nowhere in the original or the amended complaint is there any contact or further identifying information about the plaintiff business. You think this plaintiff, which will not even list an address, would want to undergo legal discovery in civil litigation? The Amateur Creampies “series” appears to be the “product” of a studio in Canoga Park, California. What’s next ? Will the porn purveyors be off shoring their cash and questionable activities on Mars?

  3. The rules concerning the proper court from which a federal subpoena should issue from, when the underlying action is in a distant forum, become somewhat unworkable where the subpoenaed party is not named in the lawsuit and the party moving to quash the subpoena is not the party upon whom the subpoena was served. This issue was addressed yesterday in a Report and Recommendation rendered in the Middle District of Florida. William R. Wohlsifer, PA obtained two Report and Recommendations on June 29, 2012, to quash subpoenas in favor of five of the Doe defendants it represents in Nu Image, Inc. v. Doe 1-2,515, and in Celestial, Inc. v. John Does 1-252. What is unique about these rulings is that they both refer in a footnote to the subpoena served upon Comcast, in Moorestown, New Jersey, as being issued from the wrong court. This is consistent with the argument raised in each motion to quash/sever/dismiss filed on behalf of the Doe defendants William R. Wohlsifer, PA represents. The plaintiff filed these underlying actions in, and issued the subpoenas from the U.S. District Court for the Middle District of Florida. We contended that since the subpoena was to be served upon Comcast’s records custodian in New Jersey, the subpoena should have been issued from a U.S. District Court in New Jersey, and provided the court a legal argument, which reads, in part, as follows:

    The Subpoena is facially invalid since it is issued from the improper court, a defect that may not be waived. Falicia v. Advanced Tenant Servs., Inc., 235 F.R.D. at 5, 11 (D.D.C. 2006). Courts have typically held that a subpoena is void or invalid on its face under rule 45 when it issued from the wrong court. See, e.g., Monsanto Co. v. Victory Wholesale Grocers, 2008 WL 2066449 *4 (E.D.N.Y. 2008) (subpoena facially invalid); Falicia v. Advanced Tenant Servs., Inc., 235 F.R.D. 5, 11 (D.D.C. 2006) (holding that the Court was unable to issue a subpoena that would require a party to produce documents in another district); James v. Booz-Allen & Hamilton, Inc., 206 F.R.D. 15, 19 (D.D.C. 2002) (subpoena quashed as improper); Echostar Commc’ns Corp. v. The News Corp., Ltd., 180 F.R.D. 391, 397 (D.Colo. 1998) (invalid); Kremen v. Cohen, 2007 WL 119396 (N.Cal. 2007) (holding that subpoenas were defective on their face “because they were not issued from the court for the district where the productions were to be made” in violation of Rule 45(a)(2)(C)); Products Mistolin, S.A. v. Mosquera, 141 F.R.D. 226, 229 (D. Puerto Rico 1992) (subpoena void on its face). . . .

    The argument continues on pages 9-11 of one of our motions, a copy of which has been available on our firm’s Web site since June 11, 2012 (and is still available at http://wohlsifer.com/bittorrentlawsuits.html). Although the court recognized in its footnote that “a motion to quash must be made in the issuing court,” the court noted that “Comcast sent letters to the Doe Defendants indicating that they must file ‘something with the Middle District of Florida’” . . . and therefore concluded that “[e]ven though the issuing Court is incorrect, the Court will proceed with its analysis on the merits.” I look forward to further rulings on this issue.

    • Anonymous says:

      I think it is also necessary to review the language used in the order granting early discovery (if it’s gotten this far) I have seen this language or something similar in many cases.

      The subscriber whose identity
      has been subpoenaed shall have thirty (30) calendar days from the date of such notice
      to challenge the disclosure to the Plaintiff by filing an appropriate pleading with this
      court
      contesting the subpoena.

      (My emphasis) In these cases it seems the judge has left it open to challenge the subpoenas in the court where the complain is filed regardless of where the subpoena is issued from.

      • That’s a nice catch, and if I was an earlier movant and case was not effectively dismissed, I would file for reconsideration based on that, but fortunately it is not necessary. I think the reason for this blooper is that at the time of the initial order it did not cross judge’s mind that crooks would go and issue subpoena from a different court…

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