How many depositions does it take to find an infringer?
Despite all the controversy with Prenda Law and AF Holdings, AF Holdings still has some active cases.
One such case is AF Holdings LLC v. John Does 1-4, Case No. 3:12-cv-00055-GEC-BWC in the Western District of Virginia. I’ve written about this case before where I mentioned that it seemed attorney Plaintiff attorney Timothy Anderson was on a deep sea fishing expedition with depositions. That the number of defendants is small, and Anderson has asked for depositions in his motions for discovery, makes this case a bit different from many of the other “copyright trolling” cases.
As I mentioned in my previous post, one defendant was deposed by Plaintiff attorney Anderson, which led Anderson to believe that a friend of a family member had infringed. Anderson filed a second motion for discovery, seeking to depose the newly identified family member. That motion was granted by the Magistrate Judge. The newly identified family member, identified as “Z.L.”, retained counsel and put up a fight, filing a Motion to Quash on 1/15 through counsel and asking the court to reconsider its previous order granting early discovery and allowing a deposition.
Two weeks later, the Judge denied the MTQ.
Not giving up, “Z.L.” appealed the magistrate Judge’s decision, and additionally entered a Motion to Stay the deposition. The 8-page appeal argues that there are no unusual circumstances warranting early discovery, Plaintiff did not show “good cause” or “reasonableness” for early discovery, and so early discovery should not be allowed prior to a Rule 26 conference. The appeal is embedded below.
Of course, AF Holdings opposed. On 2/25/13, the appeal and motion were denied, deciding that because a deposition led to “Z.L.”, sufficient justification exists to depose “Z.L.” The order is below.
It’s worth noting that Anderson believes a friend of “Z.L.” is the infringer, meaning “Z.L.” will likely have to provide a name at the deposition, Anderson may finally – after two depositions – be able to name a defendant in this case.