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.