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, CAED 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.