Boy Racer v. Does 1-52 Could Be Up In Smoke
The case of Boy Racer v. Does 1-52, 5:11-cv-02329-PSG, now renamed to simply Boy Racer v. John Doe had an Order to Show Cause hearing today following Magistrate Judge Paul Grewal’s Order to Show Cause why the case should not be dismissed pursuant to Federal Rule of Civil Procedure Rule 4(m) which basically says every filed case must name and serve the defendant within 120 days. I attended the hearing, which was shorter than the previous hearing in this matter, but the tone was the same. Magistrate Judge Grewal struggled to understand how he could balance the early discovery requests of Boy Racer with the privacy rights of unnamed individuals who may merely be accused by IP Address Holders of using their wireless internet. Judge Grewal did not make a ruling at the hearing but clearly appeared to feel that Boy Racer was simply asking for too much prior to even naming the single identified person in this case.
Below are my contemporaneously-taken notes from the hearing:
In Judge Grewal’s courtroom. Brett Gibbs is present for Boy Racer. At 2:27pm Boy Racer hearing is called.
Grewal notes that Gibbs has filed an application for leave to take further discovery and a filed a response to Grewal’s OSC.
Grewal: “I think it is fair to say that I have discretion to dismiss this case within 120 days, correct?” Gibbs concedes that is correct.
Gibbs says his response explains that excusable neglect has occurred here (he means Boy Racer/John Steele’s asking for only IP address holder info at the outset and not initially including these broader discovery requests). Gibbs notes how fast his firm is able to file expedited discovery requests and Order to Show Cause briefs. Gibbs says that, the way these cases are, and trying to identify infringers, and trying to receive rulings on expedited discovery applications and giving the ISPs “70 days” to comply with subpoena requests, pushes the Rule 4(m) requirements to their limits.
Grewal says he isn’t concerned about Rule 4m. Concerned that Gibbs asked for, what he said at the time was enough to identify the alleged infringers, and then asking later for even more discovery prior to actually naming a defendant.
Grewal: When you ask for expedited discovery you must tell me what you intend to do. I was never told of additional discovery plans.
Gibbs reiterates that the IPs could all be the same person.
Grewal says not disclosing all the discovery you needed at the outset of the case is not “diligently pursuing” the case. Gibbs says subpoenaing the ISP gives the plaintiff “the opportunity to determine the extent of expedited discovery needed” in these cases. [In other words, IP Address is just the first step to asking for more early discovery].
Re Boy Racer’s renewed early discovery application, Grewal wants Gibbs to walk through their staged discovery process.
Gibbs: Step 1,depose identified Does. Step 2a or 2b (the step that would be pursued depends on the circumstances): 2a is to depose others who may have used the wireless and ask to inspect the hard drives.
Grewal asks how it can be done without rooting through the hard drive. Gibbs says they have experts who can do that. Grewal reiterates: How do you mitigate the risk that every file and bit of data will be looked at? Gibbs says it’s not invasive because it will not be made public. Grewal says that accused people who are totally innocent will then have their drives searched and seen by Gibbs and his expert, which the law sees as enough of an invasion.
Grewal says the law is clear that the fact Gibbs and his expert have seen this information “at all” is the concern. Gibbs says there is a good likelihood that the deposition will yield who may have used the identified individual’s wifi and whether the signal is contained within the house. Grewal is concerned that any IP holder’s accusation could lead to a neighbor’s computer being searched or that neighbor being deposed. Grewal says “There needs to be a balance here” to protect both the individuals and the rights of the plaintiff to pursue their case.
Grewal asks for any precedent that has authorized third party discovery in this manner. Gibbs is unable to cite any.
Gibbs says “that’s fine” if you want to deny this order, we only ask that you certify the decision so we can take it to the 9th Circuit.
SRK Note: I personally hope one (or more) of these cases is brought to the Circuit Court level at this John Doe stage. Maybe then we will have a better understanding of how the District Courts may rule on early discovery and joinder from one file-sharing case to the next.
P.P.S. I had a chance to talk with Brett Gibbs after the case. He himself is a nice guy, even though his firm’s behind-the-scenes tactics leave something (OK, everything) to be desired. Although I hope every single one of his current cases implode and this business model dries up (or is otherwise declared illegal), I wish him the best in his non-file-sharing endeavors.