On 6/16/2016 there was a hearing on the defendant’s motion to quash subpoena in Malibu Media v John Doe (CAND 16-cv-1006, defense attorney: Thomas Pedreira). Malibu’s attorneys on the record, Brenna Erlbaum and Brian Heit, failed to appear, and the motion was taken under advisement. Today Judge Alsup ruled on the motion. While finding the majority of the defendant’s arguments (namely, burden of compliance and denial of liability) insufficient to quash the subpoena, he nonetheless stayed this subpoena pending a sworn declaration from Malibu’s experts — that their geolocation tech is accurate. The judge mentioned recent rulings by the California Southern District’s three magistrates, who didn’t allow early discovery in at least 17 cases) and Judge Locke’s decision to stay all the Malibu Media cases in the New York Southern District.
This order holds that Malibu Media’s failure to include a sworn record on the reliability of its IP address geolocation methodology is fatal and constitutes cause to quash the instant subpoena on Comcast. Accordingly, compliance with the subpoena will be STAYED, pending further proceedings.
While this is a welcomed development, there is a long way to a happy day when the porno-trolling collective is ousted from the district for good. The judge explicitly noted that at this time Malibu’s failures are mendable:
At this point, it is not necessary to conduct an evidentiary investigation into the reliability of Malibu Media’s geolocation technology. A sworn first-hand declaration describing the process used in this case and its reliability will first be considered, subject possibly to proof later. The undersigned may revisit this decision in future cases if circumstances cast doubt on the reliability of Malibu Media’s methodology.
Malibu Media should take this ruling to heart in any future or pending requests to serve third-party subpoenas.
In addition to questioning the geolocation reliability, Judge Alsup also expressed skepticism over the possibility that defendant’s dynamic IP didn’t change for a long period of time and demanded a clarification:
At oral argument, defense counsel noted that the extended duration of the alleged pattern of infringement indicates that the above-named IP address is likely a static address (generally reserved for business customers), rather than a dynamic address, which changes over shorter periods of time. Nothing in the record currently addresses the differences between static and dynamic IP addresses, or the frequency at which dynamic IP addresses change, but to the extent that bears on Malibu Media’s geolocation methodology, any sworn declaration should address that issue as well.
Meanwhile, in the Southern District of California, Malibu filed a response to Magistrate Skomal’s order for supplemental briefing: the magistrate was also skeptical about the geolocation reliability (Malibu Media v John Doe, CASD 16-cv-00781). This response was not accompanied by an expert’s declaration: the only declaration attached was attorney Erlbaum’s. A proper adjective to describe this missive is “weak”: not only is it mainly comprised of naked assertions, but the reference to IP matching service provider (MaxMind) didn’t strongly support Malibu’s claims: the 90% likelihood of an IP address being resolved to a proper state is way too low.
The attached report that lists 102 instances of purportedly correct matchings, was lame too: when a judge asks you for a proof, and you reply by listing more than a hundred examples, only 6 of which are from his district, “weak” is probably an understatement.
But “we won in poker once, which makes this game 100% winnable” Right?
Apparently, Malibu’s “experts” possess a proprietary technique of magically improving accuracy from 90% to 100%.
Judge Alsup is likely familiar with this half-assed response in the neighboring district. Did you notice that he requested not any declaration but a “first-hand declaration”? Seems to me that this type of response won’t likely fly in this judge’s chambers.
In the follow-up post linked above I expressed my skepticism regarding Malibu’s geolocation accuracy claim, which was purportedly supported by sworn affidavits that listed cases in which IP addresses resolved to the putative defendants’ district. Due to the incompleteness of the list, I strongly suspected cherry picking:
Without seeing the subpoena results, all I wrote above is no more than a speculation. I don’t have a power to request results for the omitted cases. However, judges have, and I really hope for a sua sponte order compelling Malibu to fill the gaps. Also, defense attorneys can petition judges to allow them to subpoena the ISP for very limited information: municipality is enough.
In any case, apparent cherry-picking should raise judicial brows, and the troll must explain why those particular IP addresses (60% of total) and not the others were chosen to prove the accuracy.
Today I was excited to discover Judge Alsup’s order denying (albeit without prejudice) ex-parte discovery in 53 CAND cases exactly for the same reason:
[…] Attorney Mosesi appended an spreadsheet to back up that data, but the spreadsheet omitted dozens of cases filed in this district alone.
It appears those cases were omitted because Malibu Media never received a response from the Internet service provider in those cases, but the failure to address so many cases in this United States District Court For the Northern District of California district (and presumably elsewhere in California) casts significant doubt on counsel’s personal knowledge of the accuracy of the Maxmind database. Maxmind’s own statements of its accuracy, restated in counsel’s declaration, are hearsay. Malibu Media has failed to provide sworn evidence to support the reliability of the Maxmind database, which is necessary to show that this Court has personal jurisdiction over each of the defendants and that venue is proper here. Accordingly, Malibu Media’s motions are DENIED.