Boy Racer v. Does 1-52 – Plaintiff Admits in Court that ISP info is Insufficient Proof

Boy Racer’s Lawyer Admits ISP Subscriber info Does Not Prove who Allegedly Downloaded Its Work

Boy Racer CMC Didn't Go So Well

Today, September 6, 2011, I attended the Case Management Conferences (“CMCs”) of Boy Racer v. Does 1-52, 5:11-cv-02329-PSG (now severed to a single defendant) and Millennium TGA v. Does 1-21, 5:11-cv-01739-PSG (also severed to a single defendant). While the Millennium Case looked like it was heading towards an uneventful resolution (out of court confidential settlement of some type) the Boy racer case yielded some much more noteworthy information.

About Case Management Conferences: Prior to any CMC, the parties’ attorneys in the case are required to meet and confer about things such as how the case will proceed, what type of discovery each side will request and what motions will likely be filed.  Together the parties are to submit a Case Management Statement identifying these points so the case may run smoothly and predictably.  Unique situations arise where no defendant has been named in the case but the scheduled CMC goes on as planned and the plaintiff writes a unilateral Statement.

Such is the case with the now-entitled Boy Racer v. Doe, where on August 30, 2011 the plaintiff filed a Statement admitting they know who the ISP Subscriber is but that they still don’t know who allegedly downloaded the work at issue.  Boy Racer’s solution?  To ask for the Court for even more discovery, including searches of every computer in the ISP Subscriber’s house!

Boy Racer wrote in their Case Management Statement: “While Plaintiff has the identifying information of the subscriber, this does not tell Plaintiff who illegally downloaded Plaintiff’s works, or, therefore, who Plaintiff will name as the Defendant in this case. It could be the Subscriber, or another member of his household, or any number of other individuals who had direct access to Subscribers network. While Plaintiff is confident that such a group is limited and clearly defined, Plaintiff will require further discovery in this case.”

All of this begs the question:  If the ISP Subscriber info is insufficient to show who allegedly downloaded the file at issue, then why does every demand letter sent out name the ISP Subscriber and essentially say “YOU downloaded this file so YOU must pay our settlement demands or YOU will be sued”?  Needless to say, Magistrate Judge Paul Grewal didn’t sound too happy about this request for even more discovery prior to the plaintiff naming anyone in the case.

Below are my notes for today’s CMC in the Boy Racer v. Does 1-52  as well as the less-noteworthy Millennium TGA v. Does 1-21 CMC.

Contemporaneous Notes from the Case Management Conference:

Millennium TGA v. Does 1-21 (now a single Doe after severance) is called.  Brett Gibbs appears for Millennium and Mr. Matlock (yes, Matlock) for defendant.

Defendant has not yet been named or served in the case. Gibbs says he’s close to an agreement to “shut down the case “. Gibbs says at this time no service seems necessary, asks for one week continuance. Judge Grewal gives the parties two weeks. No objectionable from defense counsel. The end.

Gibbs stays up front for Boy Racer case. Gibbs gives an update: “let me distinguish between Doe defendant and subscriber.” Gibbs says “We don’t know for sure” whether the Doe is the subscriber.  Whether Doe is the subscriber remains to be seen. Gibbs doesn’t think the subscriber will be showing up to court any time soon, Gibbs says he isn’t being cooperative.  Doe denies he downloaded the file but Plaintiff doesn’t take factual denials at face value.

Grewal notes ISPs compliance and points out that Gibbs said in his initial request for early discovery subscriber info is incomplete to identify the Does for service. Gibbs says he would first need to subpoena ALL the computers from the subscriber and all computers in their household to find out the true Does.

Grewal confirms that Gibbs is saying the ISP info is not enough to ID the Doe. Gibbs says yes, identifying the Does requires the plaintiff get on the computers and analyze them. Gibbs says “without them we don’t have enough proof to go to trial.”  Grewal responds by saying “you don’t [even] have enough proof to name a defendant.”

Grewal asks, if the ISP subpoena info is insufficient, why did Boy Racer only ask for that? Judge Grewal thought it was made clear from the expedited discovery that the ISP info would be sufficient to allow this case to succeed and now I’m hearing that is not true. Gibbs says there is a distinction between “identifying” the Doe and “verifying” that the Doe is the downloader.

Grewal is getting stern, says: now I’m hearing the early discovery is insufficient, now I’m hearing you need doc requests and interrogatories, that’s a whole lot more discovery than I was lead to believe, isn’t it?  You can’t get this discovery without a court order correct? Gibbs admits that is correct.

Grewal reminds Gibbs that “until you get permission from this court you are entitled to no discovery prior to a 26f conference.”  Gibbs says to name and serve Doe would be unfair “at this stage of the game.” (!)  Grewal says again that plaintiff told this court ISP info would be sufficient but is now saying it’s not enough.  Gibbs says they weren’t trying to hold things back from the Court.  Grewal says he thinks Gibbs may be holding things back from the Court and his colleagues because they are saying they now need additional discovery.

Gibbs is asking to inspect the subscriber’s hardware and any systems in the household. Grewal asks: what if there are 5 computers in the residence that accessed the IPs? What if there are half a dozen smart phones? Grewal notes that in his house there are at least a dozen connective devices.  Gibbs says the plaintiff should at least be able to search the computers and make a determination of which pother devices to search.

Grewal says if we allow this type of discovery in a case that hasn’t been severed, we’re looking at the search of potentially hundreds or thousands of devices without anyone yet being named.

Gibbs says he’ll “tell the Court the truth about how these cases go” and proceeds to give a hypothetical: A case with 100 IP Addresses as Does.  The 100 are cut down to at least 40 people off the bat from duplicates Does being tied to multiple IP Addresses.  From there you have dead ends where you can’t get a hold of the Does (the plaintiffs give up if they can’t get a hold of a Doe defendant?!).  The remaining Does either settle and want to get out of it or don’t.  Gibbs says they go easy on broke people, only ask for a signature (I have yet to experience this “going easy” tactic).  Many of the IP hits are duplicates. Mentions Chicago case where 27 ip addresses were the same person. “In every single one of these cases it comes down to just a few people.”  Gibbs concludes by saying that in every case they can either name them or get their info in a separate case. “[Paraphrased quote:] It’s not like we’re setting with all these people.  Most of them disappear.”

Grewal suspects there are many reasons to settle and Gibbs is only mentioning favorable ones.  Grewal also notes that they are not talking about joinder here but about the new discovery requests.  Grewal says he does need to issue an order and he will issue a short order setting forth his views this matter and setting a schedule.

Gibbs’ closing comment: we need info from their computers to know whether they are the ones to name. If there are too many devices, we can figure out where to go from there and we may just drop it.

Grewal takes matter under submission.

My Two Cents:

I think Judge Grewal isn’t buying the “more early discovery” approach and will likely deny this early discovery.  Judge Grewal cited the 9th Circuit case of Gillespie v. Civiletti which says that discovery prior to a Rule 26(f) conference is only granted in exceptional circumstances.   If Judge Grewal denies this discovery request, it will probably prompt the Steele Law Firm to name the ISP Subscriber and go from there.  If the subscriber didn’t download the file and it is shown after he’s named and discovery is conducted, the case would then likely have to be dismissed with prejudice.  Note well: These are all “IF”s, Judge Grewal could go 180 degrees in the opposite direction in which case we’ll have to see what happens then.