May 26, 2024

The Latest in Nationwide Internet User Identification – Part 2 (the All-New, So-Called Federal Co-Conspirator Theory)

Since Part 1 in this series a few months ago, Plaintiffs have continued to file “pure bill of discovery” suits in Florida state court. These proceedings typically involve “John Does” who are accused of copyright infringement via peer-to-peer networks. The Plaintiffs (copyright-holders or their delegates) have continued to name as defendants in those “pure discovery” proceedings not the entities from whom they seek discovery (i.e., the Internet service providers) but instead John Does, from whom no discovery is sought. After filing their suits, Plaintiffs promptly seek and obtain an ex parte order for expedited discovery of the John Does’ names from the ISPs, even though the ISPs are not then represented or present in the proceeding. Because the ISPs are not technically parties, the Plaintiffs can use these orders to issue subpoenas to ISPs from across the country regardless of whether the ISPs or their subscribers would be subject to the jurisdiction of a Florida state court.

The Plaintiffs’ lawyers certainly must know that this is not right. For one thing, they tend to withdraw their subpoenas whenever it appears a court is actually going to hear the reasons why their use of the proceeding is improper.

Recently, several ISPs stood firm and proceeded to a hearing on their motions for protective order in a couple of these proceedings. The Plaintiffs’ lawyers, in typical fashion, tried to withdraw their subpoenas and argued that the judges should not listen to the ISPs’ arguments. Not surprisingly, the Plaintiffs did not fare well in an adversarial proceeding.

Both judges not only granted the ISPs’ motions, but went farther. One of the judges dismissed the case, also quashing all outstanding subpoenas. The court also noted that, if the Plaintiff should amend (to name the ISPs as defendants, subject to their personal jurisdiction and other defenses), the Plaintiff must certify that the Does as to which discovery is sought committed a tortious act in the State of Florida. In the other case, the court quashed all subpoenas and required the Plaintiff to notify all ISPs of the court’s order and an opportunity to object. If a given ISP, in turn, notifies the court that the ISP objects, then the subpoena will remain quashed. (In this manner, the court compensated for the cost and inconvenience to many of the ISPs of a challenge to this improper proceeding in a Florida state court.) Hopefully, this is the beginning of the end of this flagrant abuse of an equitable state-law proceeding.

On a similar theme, the Plaintiffs have also been trying a new tactic in federal courts, transparently designed to avoid procedural details such as personal jurisdiction, venue, and joinder. In this scheme, the Plaintiffs’ lawyers sue a single John Doe defendant (who is believed to reside in the forum), and then seek expedited discovery not only as to that defendant but also as to hundreds of other John Does on the theory that they could be “co-conspirators” with the named John Doe. In such a manner, the Plaintiffs seek identification of the long list of so-called “co-conspirators” without any need to show that those Internet subscribers are properly joined and are subject to the jurisdiction of the Court.

Not surprisingly, when a federal judge was able to scrutinize such a tactic (outside the context of an abbreviated, one-sided, ex parte discovery hearing), it was solidly rejected as improper. Ruling on several motions to compel, Chief Judge Holderman of the U.S. District Court for the Northern District of Illinois held that the discovery sought as to the so-called “co-conspirators” in several cases was not relevant to the claims asserted against the single John Doe defendants in those cases. The Court noted that the true purpose of the discovery sought was not to litigate the Plaintiffs’ claims in these lawsuits, but rather “to either sue the individuals whose identity they uncover, or, more likely, to negotiate a settlement with those individuals.” The Court pronounced that “[w]hat the plaintiffs may not do” is “improperly use court processes by attempting to gain information about hundreds of IP addresses located all over the country in a single action.” The Court also took note of the aggregate burden imposed by virtue of the volume of subpoenas being generated by these Plaintiffs’ lawyers in their numerous lawsuits.

Fictional pleading for the purpose of gathering names in order to pursue settlements should not be tolerated by the courts. The courts are likely to agree, as long as both sides of the arguments have the opportunity to be heard.


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  2. Presumably, the judges in future bill of discovery proceedings will pay attention to what other judges have done, if brought to their attention. It is particularly significant that, in one of the orders, the court required that all subpoenaed ISPs be notified of the court’s order quashing subpoenas. The federal decision is significant as a judicial pronouncement that the plaintiffs’ recent “co-conspiracy” theory is not an appropriate basis for mass discovery. Notably, the plaintiff’s lawyers have now moved for reconsideration of that decision.

  3. So other than losing these particular cases, is there any other bad fallout to this? If all that happens is that the plaintiffs get another chance in front of a judge who may not be quite as attentive, then these rebuffs are just a small addition to the cost of doing business. (And we’ve already pretty well established that that cost isn’t a factor iin the continuing of the litigation attempts.)