Judge Bates “removed” from Hard Drive Productions, Inc. v. Does 1-1,495 case. Potentially bad news for defendants.

Like most of you, we here at the Cashman Law Firm, PLLC have been watching the Hard Drive Productions, Inc. v. Does 1-1,495 (1:11-cv-01741) case in the US District Court for the District of Columbia.

To our surprise and against the 1+ year trend of the DC Court, earlier this month, Judge Bates went against the trend to remain silent about the validity of these cases and inquired about whether or not John Doe Defendants in the case actually lived in DC. In short, we understand that if the judge came to the conclusion that this is yet one more of John Steele’s mass bittorrent cases (but filed in DC as a result of forum shopping), then the judge would have likely come to the conclusion that the DC court did not have jurisdiction to try the case. As a result, he would have likely SEVERED AND DISMISSED the case, giving Steele|Hansmeier, PLLC (now Prenda Law, Inc., a story in itself) the opportunity to file against defendants in their home states. As you have read in previous posts, as a result of such a dismissal, Steele would have three years from the alleged date of infringement to file these lawsuits in defendants’ home states.

What no doubt concerned Steele (and what caused an overflow of conversations on the various bittorrent forums) is that six days ago, Judge Bates took the extra step and invited Doe Defendants to file motions to quash with the Clerk’s office, stating that they would be put under seal (meaning, hidden from view).

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However, in spite of the judge’s invitation, I have not been advising people as to whether they should or should not file the motion to quash — and in fact I have been overly cautious about his invitation to do so — because historically, the District of Columbia Court has typically UNSEALED motions to quash when they deny them, leaving all the formerly sealed motions unsealed and naked for everyone to see.

The DC court has historically been AGAINST accused internet downloaders. Yes, we have certainly had our fair share of victories, but then again, many of the original cases are still alive (and because of this, plaintiffs have added perhaps thousands of new defendants to various DC cases, hence the new subpoena letters for older cases). I do not see why Judge Bates would be bold enough to go against former judges’ orders for essentially identical cases [See, Stare decisis (Anglo-Latin pronunciation: /ˈstɛəri dɨˈsaɪsɨs]) is a legal principle by which judges are obliged to respect the precedents established by prior decisions.], and the fact that Judge Bates was willing to go against Judge Beryl Howell and the others made me optimistic, but still cautious.

As much as this invitation to file appeared to signal a victory for the accused internet users, for whatever reason — political pressure, angry judges, etc. — today Judge Bates has essentially stepped down presiding over the case and he has handed the case over to Judge Facciola. This magistrate judge has seen bittorrent cases before, and in my opinion this could be a sad moment for the accused Does. To be clear, I understand that this transfer might not have been done with the permission or consent of Judge Bates. In fact, his order explicitly states, “Consent of the District Judge [him] is not necessary.” So perhaps we can piece together what has happened behind closed doors.

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While it remains my opinion that this case suffers from issues of improper jurisdiction and improper joinder, Judge Bates is no longer making the decisions as to whether the case will be dismissed or not. Similarly, it is no longer clear whether it is in Does’ best interests to file the motions to quash, or whether they will suffer the same fate as all the other motions to quash filed in the DC court over the past year.

As for what defendants should do — I would probably wait and see what Judge Facciola does. Will he continue in Bates’ footsteps and kill the case? Or will he deny the motions to quash and move forward? We can only wait and see.

34 thoughts on “Judge Bates “removed” from Hard Drive Productions, Inc. v. Does 1-1,495 case. Potentially bad news for defendants.”

  1. Could you explain what this ** means?

    “The parties are reminded that…this action may be referred for all purposes, including any trial, **upon the filing of an executed notice of consent by all parties.**”

    What is a notice of consent? Is the court saying the change requires the consent of the Plaintiff + all Doe defendants?

    1. You might not like this answer, but I understand “consent by all parties” to mean “consent by all [named] parties.” Remember, the D.C. court has been holding that you are not a party to the action (and thus you have no standing to file motions, e.g., motions to quash) until you are named as a defendant. Until then, in Judge Beryl Howell’s words, you’re a “putative defendant.” And I have no reason to believe Steele would object to this case going to anyone… as long as the judge is not Judge Bates.

  2. Thanks! What if I filed motions to quash under my full name, but under seal? Do I then become a named defendant?

    On a related note, do I need to send Plaintiff’s lawyers a copy of my motions, even if they were filed under seal? Several of us on SJD’s forum have this question.

    1. I’m sorry JDS. Because I am an attorney and I am potentially held liable for everything I write, I never give legal advice on these websites. I simply report what is going on and I give my opinion and interpretation so that you can understand what is going on in your case. I can never tell you what to do. I also do not monitor the comment forum regularly, and I usually let readers answer each others’ questions.

      All that being said, to answer your question, you become a named defendant when they decide to amend the complaint and name you as a defendant. Someone will knock on your door and serve you with paperwork at which time you’ll have 20 days to respond in federal court with an answer. This does not happen frequently, (if ever, with some plaintiffs). You do not become a named defendant when you file a motion to quash. However, you DO become part of the court’s record and other people can see your filing (unless it is under seal).

      Generally, you are supposed to send a copy of the motion to the plaintiff attorney (and to all parties, for that matter). However, in the case you are referring to, Judge Bates indicated that you do not need to follow the rules (except what he outlined in his order) suggesting that you would not need to send a copy to Steele — that would logically defeat the purpose of filing something under seal. Again, if you have read this article, you will know that Judge Bates is no longer presiding over this case, and Judge Facciola is now in charge. Thus, the invitation to file motions to quash may or may no longer be on the table. You would be best served calling Judge Facciola’s chambers and asking them directly; that phone number is (202) 354-3130.

  3. One more thing, and I am posting this as a response to a comment I received on one of my other websites from a frustrated Jane Doe. Remember, even though I think that Judge Bates had the case taken from him (I believe that he was sincere in his efforts to kill the case), there is always the possibility that there was no conspiracy by the legal system, and it was just that time to switch out judges. Similarly, we do not know what Judge Facciola will be doing. It is also possible that he will continue Judge Bates’ efforts, and that he was assigned the case so that he can process and respond to all of the motions to quash and to quickly dispose of the case — we simply don’t know until we start seeing how he reacts to the case in his orders. Remember, my own opinion about the DC courts is based on my experiences with them in all of the cases I have written about over the past year. That does not mean that this was an evil conspiracy to dethrone Judge Bates. This could have merely been a coincidence and bad timing. -Rob

  4. In Document 6, Judge Bates specifically says “The Motions to Quash will remain under seal even if they are ultimately denied.” Do you still think this could be reversed after people have sent in their MTQ? Is it possible (or even likely) that the new judge will essentially wipe out Docs 5-7 and open the previously sealed motions?

  5. Perhaps you’ve answered these questions begore, but my reading of Judge Bates’s order in Doc. No. 5 is that Judge Bates on November 2, 2011, stayed the subpoenas and ordered plaintiff to serve a copy of the order on the ISPs. I do not see an order lifting the stay, and I note that at least one ISP rep stated to me on November 15, 2011, they had not been provided with the order stayng the subpoenas. I faxed them the order, but don’t know what they are doing with it. Is the stay still in effect? Can Duffy/Steele be held in contempt for not serving a copy of the stay order on the ISPs? Also, the subpoena was issued from the Northern District of Illinois and signed by Steele, even though he is not entered as attorney of record in the DC filing. Does that invalidate the subpoena under Rule 45(a)(3)?

    1. AJD, sorry for the incomplete response; I will leave it for other users to fill in where I have left off. In short, there is no order lifting the stay, so it should still be in effect. The fact that Duffy/Steele did not comply is a problem, and yes, perhaps they could be held in contempt for not notifying the ISPs (obviously depending on how the judge reacts if in fact they did not comply). I’m not addressing the validity of the subpoena issue because that would be a much more detailed response which would be chock full of legal advice of what to do, etc. -Rob

      1. Thanks for the answers. I realize the Rule 45 question was a bit specific. However, although there is speculation as to how the magistrate now handling the case will rule on the motions to quash, my question is whether any have actually been filed, either under seal or not? I don’t see them in the record, obviously they would not be public if filed under seal, but there would be some notation that one was filed, would there not? Judge Bates denied leave to file the first motions to quash, and I don’t see where these John Does refiled their motions. So, is there anything actually before the magistrate judge for him to rule on with regard to either the subpoenas or the case itself? Have any of the John Does hired counsel to appear for them or file anything on their behalf? The motions to quash are due November 23, 2011, as I read the orders.

  6. A quick check of the Illinois Secretary of States corporation database:

    Prenda Law, Inc. was incorporated on 11/07/2011

    Paul Duffy is the primary agent

    116 N Clark St, Suite 3200 Chicago, IL (same address as John Steele)

  7. What is the deal with Prenda Law, Inc. ? is it just to reshuffle and add more lawyers or is this some sort of delay tactic to prevent judges from getting angry that cases are rotting on their dockets?

    1. To the best of my knowledge, Prenda Law, Inc. has taken over all of Steele|Hansmeier, PLLC’s cases. This is not another name change, as it was just a few months ago from “Steele Law Firm, PLLC” to “Steele|Hansmeier, PLLC”. This is a new plaintiff attorney that we will be seeing more from as these cases advance. Paul Duffy appears to be the one in charge now.

  8. what if all the Does after being dismissed without prejudice request their attorneys fees reimbursed? Is this possible, and if so, is it a way to go? I have been dismissed but am considering recouping my sweet moola!

    File individual suits in the Does home states against the Plaintiffs, IP collection company, and the copyright owner. I read a while back about an ongoing lawsuit in MA against DGW. I looked up the docket and it seems they have had to hire local counsels and am pretty sure the bill is adding up, as you can tell from the amount of motions. And the judge has not even begun ruling on the majority of them.

    And what ever happened to Evan Stone, Ken Ford, DGW? Are they still in the game?

    1. Lots of questions (I’ll let others fill in what I left off). Being dismissed generally does not get you attorney fees unless the dismissal is on the merits of your case (e.g., based on the evidence, not procedure). Most of the dismissals are procedural. The MA class action suit is against Dunlap Grubb & Weaver (“DGW”), and the name of the plaintiff (off the top of my head for those of you who want to look it up) is Shirokov. Evan Stone still files, but he is not a major player anymore. Ken Ford had issues in W.Va., and now DGW is now filing cases “on his behalf” in DC. The reason you haven’t heard much from DGW is because they’re sending out letters to the thousands of people who have been dismissed from their various cases. You can learn more about what they’re up to by typing their cases into the http://www.rfcexpress.com website.

  9. I noticed that a Motion to Quash has been filed under seal in Hard Drive Productions, Inc. v. John Does 1-1,495, by an attorney from Illinois on behalf of a John Doe. The Notice of Filing (Document 9) was filed and posted today. When I spoke to Judge Facciola’s law clerk yesterday, she said they had not yet received the file from Judge Bates, so she could provide no information on the case or its status.

  10. Rob,

    If you get a chance could you explain what you think this means?

    MINUTE ORDER staying plaintiffs obligation to respond to the motions to quash referenced in Judge Bates 11/2/11 Order 5 pendite lite. Signed by Magistrate Judge John M. Facciola on 12/12/11. (SP, ) (Entered: 12/12/2011)

    Is the judge preparing his own ruling so the plaintiff’s response no longer matters?

    1. It’s very simple (and I’ll probably write a quick blurb on it later). In short, the judge is pretty much telling Prenda, “we know what you will say… don’t bother saying it.” In short, the response to the motions to quash are “we never named so-and-so as a defendant; they are not a party to this action; thus they have no standing to file the motion to quash — judge, please deny their motion to quash.” I have no opinion yet whether the “don’t bother” order (which is essentially what this is) is telling them “don’t bother — we know what you are going to say,” or “it is my pleasure to serve you, Prenda. I’ll save you the hassle of writing up an answer to these since we are going to deny them anyway.” We’ll see which way he goes. -Rob

  11. All the judge has to do is geolocate a couple IPs and see that most of them aren’t even near DC. Then there’s the issue of improper joinder. The complaint lists the IPs and times and there’s a range of something like 3 months, that hardly makes a conspiracy.

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