What to do about these smaller Doe bittorrent cases?

The bittorrent cases are speeding up, both in number of cases filed, and in the issues relating to the cases. Judges are smartening up to what is going on, and I am seeing the smaller “Does 1-23” cases ripped to shreds in the courts. But, because they are so small, the activities in each case are falling below the radar.

These smaller cases are now filed in the multiple courts across the country — the correct courts — with the John Doe Defendants often living in the states in which they are sued. Thus, there are no more motion to quash issues, and there are no more “wrong jurisdiction” arguments.

However, while NEARLY ALL the smaller lawsuits still have “improper joinder” issues (meaning, suing Does together in the same lawsuit who did not participate in the same swarm; thus, they did not take part in the same transaction at the same time), THE CASES ARE SIMPLY NOT GOING TO TRIAL and thus defendants are not getting the chance to contest improper joinder.

The problem with these smaller cases is that 1) the settlement amounts are elevated, and 2) the risk of being named as a defendant goes through the roof because all that is required to name defendants in these smaller cases is that the plaintiff merely needs to amend the complaint against a particular Doe (thus the case will change from Patrick Collins, Inc. v. Does 1-30 to Patrick Collins v. “Elliot Hendel” and Does 1-29 [this name is merely fictitious]), and then someone comes knocking at Elliot’s home and serves him a copy of the complaint. At that point if he has not already done so [and he should have hired an attorney immediately upon having notice from his ISP that he was one of the Does in this case], he has to hire an attorney to respond within 20 days with his answer and his counterclaims, or he will default (which means the court can enter a default judgment against him for the full $150,000).

However, the BIG SECRET is that for the most part, these defendants do NOT get named as defendants, and they remain anonymous as far as what is visible from the court’s eyes. Instead, the plaintiff attorneys scare the b’jeebies out of them and cause them in some cases to sign [in many cases] an “I’m guilty, I’m sorry, I’ll never do it again” settlement agreement. The end result is that they end up paying significantly more than they would have if they merely called an attorney and had that attorney negotiate on their behalf. To make matters worse, defendants do not realize that there are really three-tiers of settlement prices (not two) — 1) the plaintiff attorney’s asking price (the “pay us $X by this date or else we’ll name you as a defendant in this case” amount), 2) defendant-negotiated price, and 3) attorney-negotiated price.

When the defendant tries to negotiate his settlement on his own, the likelihood is that he will probably say something incriminating about his case. (For example, not knowing the case law, he may say, “it wasn’t me; it was probably my son — he uses the internet all the time; I keep telling him not to watch that porn,” or “I let my neighbor / son / guest / roommate use my internet,” or “I didn’t realize it was illegal to download — I thought it was only illegal to upload!” etc.) The result is that the plaintiff says, “thank you for telling me you are guilty; the offer is now off the table and I will see you in court <click>,” only to call back shortly afterwards and, in the graces of his heart, he will offer a new settlement amount which is nearly double the asking price of the original settlement amount.

It is not only important to have an attorney negotiate your settlement amount 1) because he can, and 2) he won’t incriminate you while you would likely incriminate yourself, but also, the attorney knows the case law [which is not so obvious], and he knows what to put into a settlement agreement so that the settling defendant does not later get sued for the same claim, attorney fees, etc. It kills me to see so many people turn around and try to settle on their own without reading what they are agreeing to. What burns me more is when attorneys don’t read the contracts they have their clients agree to.

…In short, the plaintiff attorney mops up the floor with the defendants, and many of the defendants (if not most of them) turn over and lay dead while they capitulate and settle their cases. Had they lawyered-up, they would have known how to protect themselves. Better yet, their lawyer would have stepped in their shoes and the plaintiff attorneys would not have even been allowed to contact the defendants in the first place. No letters, no scare tactics; no threats.

Everything being said, one thing that most don’t even bother to find out is who exactly their plaintiff attorneys are. In more cases than not, the plaintiff attorney is merely a guy in a room with a laptop and a phone. Sometimes there is a second lawyer guy in the room making phone calls scaring the defendants into settling — a two-man show. …Do you really think this one or two-man show actually has the ability to sue more than just a few defendants, and if you defendants lawyered-up, do you think the plaintiff attorneys would have the time to name each and every one of you? AND if they named each and every one of you (which is literally impossible because to serve each one of you with service of process would be nearly impossible to track and there are bound to be significant errors), do you think they would have time to respond to each and every one our discovery requests?

As your attorney, when I defend you, I have a duty to properly protect your interests. That means that us attorneys must establish evidence that calls into question their so-called experts’ methods in collecting IP addresses (see here for just a taste). We need to call into question their methods of suing multiple Does in one lawsuit. We need to fight them procedurally with motions to dismiss, motions for summary judgement, and in some cases, motions for sanctions.

Do you think that the one-man show attorney and their underlying plaintiff (too often, the porn production company) can handle the hours of deposition time that EACH OF YOU DEFENDANT would be entitled to? What about their so-called experts? Do you think they have the time to answer all our in-person depositions for each defendant? What about our interrogatories? What about our other discovery motions? Do you really think the one-man show — the attorney guy in the room with a laptop — has the time to spend going after each one of you when he can instead go after the unrepresented defendants who roll over and settle their cases?

To make these cases merely insulting, these plaintiff attorneys have been hiring no-name local-counsel attorneys to file their cases on their behalf (no disrespect to any of them; I understand they are doing it solely so that they can make a commission off of those who settle). As far as I understand, the local counsel often know absolutely NOTHING about these cases, but they talk a big game and then sheepishly refer you to someone else — an “in-house” negotiator, or the attorney behind the curtain — so that they can “close” the deal for them and scare you into settling. If you actually had us attorneys defend your cases rather than merely have us settle them, do you really think the BIG-8 ATTORNEYS (listed below) would have the time and the patience to babysit these local counsel when they ask for assistance after we file our own motions for discovery?

Thus, a client in these smaller Does 1-20 (or 1-50, or 1-80) cases does not need to settle, especially if they do not live in the jurisdiction in which they are sued. This is true regardless of whether the plaintiff attorney is Dunlap Grubb & Weaver (Nicholas Kurtz or Ellis Bennett), Steele Hansmeier (John Steele or Mark Lutz), Gill Sperlein, Ira Siegel, Keith Lipscomb, or even Marc Randazza.

We do know how to defend these smaller cases.

22 thoughts on “What to do about these smaller Doe bittorrent cases?”

  1. Great information! Thank you for all your work. BTW did you see that Steele has filed change of address for his company? He has a new address in FL. Anything sneaky about this move? Start filing cases in FL courts? New judges? Just wondering. Have a great day.
    ———
    John L. Steele
    Steele Hansmeier PLLC
    1111 Lincoln Rd, Suite 400
    Miami Beach, FL 33139
    305.748.2102
    [email protected]

    1. Florida copyright attorneys sue in state court using something called a “bill of discovery” which allows them to get your information from the ISPs. That way, they can send you the “we will sue you” scare letters without having to sue you in federal court and they hope you might just settle.

      1. OK. Thank you. So do the copyright attorneys just send the FL offices of the ISP in question (say COMCAST) the “Bill of Discovery?”. I assume that many of the ISPs will blindly hand over the subscriber information of an out of State customer without much thought.

  2. Anon, tried your link

    Notice
    This is a Restricted Web Site for Official Court Business only.

    Nice giving me a heart attack…lol

    1. You can see it here (#26) – http://archive.recapthelaw.org/cand/238954/

      Beyond the personal interest I had in this case, I think it is exciting that not only did Spero deny permissive joinder under Rule 20(a), but he also denied it under his discretionary severance. His remarks talking about the need to pack every defendant and their legal team(s) into the court room and at depositions, adding that each defendants unique defense would require it’s own mini trial.

  3. Update,
    1;10-cv-455 Call of the Wild
    now only has ONE John Doe left, all other Does dismissed Strange, wonder how the One hold out managed to not have info released after One year.

  4. At least 10 individual lawsuits filed on August 25th by West Coat Productions in Georgia have named those individuals. Each filing has paid the $350 filing fee. Assuming an average return of $3000 to $3500 (and probably more now that they’ve been named) from each person not wanting to go to trial, the DGW TEAM (operating through a local law firm) has still netted a nifty profit! Even if Half the people don’t pay this extortion, a pretty penny has STILL been made from fear mongering and threats and the local numbers across the country are only going to grow. It makes fiscal sense- invest $350 per person, ask for $5000 per person, accept reduced offer of $2500 per person out of the goodness of your heart. They can’t lose. Only WE lose. Somebody has got to stop them BEFORE it gets to this point. Oh, too late.

  5. [email protected] says:

    So one of my Friends cases had his IP address voluntarily dismissed from the case by the Plaintiff, but they are still go the standard letter from Dunlap after they filed the Dismiss motion. Is that legal?

  6. One possible reason for these smaller lawsuits is that the EFF is less likely to get involved since their website says they typically pick cases that would help far more than one party by litigating. This probably means the more defendants, the more likely they’ll get involved.

  7. Pingback: 2013, A Year In Review. | Federal Computer Crimes (CyberLawy3r)

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