copyrightclerk

On issues of internet copyright law

Early discovery AND Rule 30 depositions?

with 13 comments

Some news in the Eastern District of Virginia.

Curiously, attorney Timothy Anderson has asked the court to consolidate 11 cases for Openmind Solutions. These are cases against individual John Doe defendants.

 

 

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Next, in the same district, Judge Davis granted early discovery in 12 cases, but more importantly, he additionally granted permission to conduct Rule 30 depositions “to identify John Doe.”

 

 

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I think this is a disturbing trend, where Plaintiff is granted leave to conduct Rule 30 depositions in conjunction with early discovery, and I hope the judges that permit this understand EXACTLY what they’re doing/allowing.

13 Responses

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  1. Ehhh… seems like the right way to do it. Since an IP address isn’t a person, they depose the John Doe associated with the IP address to reasonably identify the infringer.

    The big criticism of these lawsuits is that the wrong people were being named and pursued. This arguably puts innocents out of harms way right at the outset.

    I’m not sure what the problem is.

    Jordan Rushie

    November 27, 2012 at 2:33 pm

    • Plaintiffs often argue that the account holder is liable even if they are not the infringer. Is this a change by Plaintiffs in that philosophy? I hope it’s not just another method to scare people into settling.

      copyrightclerk

      November 27, 2012 at 3:12 pm

      • Off topic: On this note, I read yesterday that the six-strikes program now states that the “ISP account holder is responsible for activities on his account.” Trolls will no doubt use this to revive the failed negligence claim (elements simplified: 1) “duty,” 2) “breach,” 3) “damages”). I am pointing this out now before plaintiffs try this strategy that a “duty” is imposed upon a defendant by the LAW or a COURT, not an ISP. 1) ISP stating that “subscriber is liable for activity on his account” does not equate to the LAW imposing a “duty” (although it will make it easier for them to do so). Judges might make this distinction in favor, [especially if they try to sue grandma again]. 2) “Damages” for a negligence claim does not equal $150K per title, which are the statutory damages for copyright infringement. A court finding a defendant guilty of negligence, but not copyright infringement, might yield a “retail cost of the DVD” “damages” since an account holder cannot be held liable for copyright infringement unless he personally infringed the copyright. All this up for discussion, and probably not here. More of an FYI for upcoming issues.

        houstonlawy3r

        November 28, 2012 at 10:20 am

        • Thanks Rob. Prenda previously tried to claim an ISP user agreement meant the subscriber was responsible. Pure dribble. How many people trully read the end user agreement for software or other online services or even trully understand their Wireless Firewall/Router. Oh yeah, if the ISP don’t abide by or try to uniformally enforce this “responsibility,” in the 6-Strikes program, the courts are going to see that also. Also the protections provided by the Communication Deceny Act (DCA) is going to kick the crap out of any “negligence” claim from these Bozos.

          DTD :)

          DieTrollDie

          November 28, 2012 at 10:41 am

    • I agree that trying to find the actual infringer is better than simply sending settlement letters, but let’s be honest about who will be conducting the depositions – The Trolls. As integrity and fairness is not in their character, it doesn’t matter if the Doe (or a family member, friend, etc.) did it. The Troll will claim they are responsible and make threats to name them in a law suit. The Troll and Plaintiff make money will every settlement – regardless of guilt or innocence. These interviews will simply be used as a tool to get a Doe to make some sort of admission or find out what they can use to “motivate” them into settling or assisting them going after the true infringer. These are the same people/firms who claimed Does were responsible because negligence of running an “Open” WiFi when they knew it wasn’t true.

      Hypothetical Scenario: The Troll interviews the ISP subscriber (let’s say “Dad”). Dad tells the Troll he doesn’t know what the hell they are talking about. The Troll finds out there is a 16 year old son and 14 year old daughter who uses the Internet connection. The Troll asks the Dad if they have ever found pornography on the kids’ computers. “Yes,” Dad tells them the son has visited porn tube sites (Normal and NOT indicative of guilt). Dad also informs the troll he searched all the computers and found no trace of the Plaintiff’s movie or BT software. The Troll then finds out Dad has a nice job with a US government agency (security clearance). Dad doesn’t agree to pay the settlement and the Troll decides to mention that they will conduct a forensic exam of all the systems in the house and if they find anything, HE or SON could be liable. People are bound to be pressured into settling just to avoid the possibility of a law suit affecting their livelihood or that of their children. The troll isn’t going to go the route of getting authorization to conduct a forensic exam until after they try to “settle” with the Doe. Even then there is no guarantee they will find any evidence. Yes they can drop the case, but that just sends a clear message to the other Does on what to do – the Troll hates that.

      Here is a simple scenario I hope the Troll have to face. ISP subscriber denies any wrongdoing or knowledge of who the infringer is. ISP subscriber informs the Troll that the WiFi Firewall/Router (WFR) was “Open” and he had observed unknown systems using it after he received notification from the ISP regarding a subpoena for his subscriber information. The ISP subscriber has since secured the WFR with an access password. An examination of the WFR is only going to show what the current configuration is. As the logs on these devices are supper small (if even turned on), there is going to be nothing. But that will not stop the Troll from claiming otherwise.

      DTD :)

      DieTrollDie

      November 27, 2012 at 3:31 pm

  2. Why is the judge allowing this?

    Rule 30. Depositions by Oral Examination
    Cite: http://www.law.cornell.edu/rules/frcp/rule_30

    (a) When a Deposition May Be Taken.

    (1) Without Leave. A party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2). The deponent’s attendance may be compelled by subpoena under Rule 45.

    (2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(2):

    (A) if the parties have not stipulated to the deposition and:

    (i) the deposition would result in more than 10 depositions being taken under this rule or Rule 31 by the plaintiffs, or by the defendants, or by the third-party defendants;

    (ii) the deponent has already been deposed in the case; or

    (iii) the party seeks to take the deposition before the time specified in Rule 26(d), unless the party certifies in the notice, with supporting facts, that the deponent is expected to leave the United States and be unavailable for examination in this country after that time; or

    (B) if the deponent is confined in prison.

    houstonlawy3r

    November 27, 2012 at 2:49 pm

  3. Thanks copyright clerk for raising this alarming point. It’s a significant departure. Maybe we’ll see posts with additional perspective on the SJD, DTD, or other sister blogs.

    doecumb

    November 27, 2012 at 5:39 pm

  4. And thanks for all you do, copyright clerk !

    What’s wrong with Rule 30 Depositions here ? For starters:

    (1) It essentially initiates discovery, only for the trolls, without an actual individual filing. It also deprives the court of the $350 filing fee for each individual. Technically, discovery is supposedly to “identify John Does.” But that gets to other points:
    (2) Proper application would depend on Troll good faith.
    How many thousand cases do we need to verify bad actions by Trolls? Where are the takedown notices and full notable case trials really arguing the merits of these claims? This is no movement to protect artists. These cases have always been to shakedown frightened and uninformed people.
    Trolls are certain to use this rule not simply to “identify Does” but, as DTD outlines, to intimidate and gather information to raise their shakedown demands.
    (3) There is the “inequality of arms” that SJD pointed out in the outbreak of trolling scams:

    http://fightcopyrighttrolls.com/about/

    Trolls get to start legal discovery. Does get nothing. In fact, all of SJD’s general points apply here:
    Weak evidence, distortion of the spirit of the Law, incentive to settle, even if innocent, breech of due process, heavy legal weaponry against the unprepared, etc.

    (4) The innocent remain at risk.
    DTD described some possibilities. Here are a few more where innocent people are vulnerable:
    (a) Unfamiliarity: Most people have little experience with the legal system and have never been deposed. They may fear a bad outcome even when innocent, and view it safer to settle for a few thousand than to lose a hundred thousand. The innocent may feel exaggerated and inaccurate descriptions of risk. Trolls have no incentive to describe the situation impartially.
    (b) Disgrace: The taking of deposition itself may put the Doe at risk ONLY because of the NATURE of the allegation. Even false allegations make great trouble for people in public jobs or with public visibility. Allegations, even when false, can cause harm to family and personal relationships. These things have happened frequently in other kinds of false allegations.
    (c) Invasion of privacy and embarrassment: It’s easy to imagine questions and revelations that people would try to avoid, with NO history of file sharing. For instance, a defendant might get asked in a deposition if they watch pornography. While a majority of adult in the U.S. do, most would not want it on the record. Inexperienced defendants may fear discovery means outsider access to everything on their computer. What if there are sensitive but lawful items on computer, where a defendant fears disclosure? For instance, there could be a diary about a crush on the boss, or another person’s spouse. Some defendants will fear disclosure even with assurances that discovery will be limited to certain computer forensics.

    (5) Pure hypocrisy: The trolls want to expose Doe defendants and extort settlements. How about the discovery going the other way? In many if not most porn purveyor Troll cases, some combination of these groups remains unknown: major overseer-profiteer, business owners, location and articles of incorporation, pseudo-forensic technologists, and rings of lawyers.
    I can’t think of any other example where essentially hidden plaintiffs have filed hundreds of Federal cases, let alone distasteful Federal cases. It’s bad enough that the cases bog down the courts. On top of that, they are being conducted by or for unknowns. Accountability works both ways.

    doecumb

    November 27, 2012 at 5:49 pm

  5. [...] of a trial – highly unlikely IMO.  This topic rehash came about when CopyrightClerk posted an article about Troll Timothy Anderson being granted Early Discovery and Rule 30 Deposition authority in 12 [...]

  6. I have a deposition in 2 weeks. I am innocent and have no money for a lawyer to even go with me. I was given some advice to bring in my hard drive to offer as evidence which I plan on doing. Anyone got any ideas on what to do?

    die scum trollz

    December 1, 2012 at 7:59 pm

  7. I Just got back from depostion with one of Andersons troll underlings (Brian Harrison?). Told the truth and gave them my hard drive from the time of alleged download which I got back from my grandma who died recently. I hope there is a special place in hell for this scum sucking rat clan. Took about 20 mins with no terrible questions. I guess next these douches will wanna talk to my wife, and try to get some conflicting answers on purpose of course… I still pray to go Jeff Fantalis on these parasites, if they wanna keep pushing an innocent man.

    die scum trollz

    December 13, 2012 at 10:55 am

  8. Maybe they will settle for a cage fight? Thats how fu*king pissed I am…

    die scum trollz

    December 13, 2012 at 10:57 am


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