Category Archives: Electronic Discovery

Court labels copyright plaintiff as a troll and shuts down efforts to ID anonymous infringer

When a copyright plaintiff does not know who a particular alleged infringer is, it must first send a subpoena to the ISP assigned the IP address used to commit the alleged infringement. But the rules of procedure do not allow the sending of subpoenas until after the 26(f) conference – a meeting between the plaintiff and defendant (or their lawyers) to discuss the case. A plaintiff cannot have a 26(f) conference if the defendant has not been served with the complaint, and the complaint cannot be served unless the defendant’s identity is known.

So you can see the conundrum. To break out of this not-knowing, plaintiffs in situations like this will ask the court’s help through a motion for leave to take early discovery. That way the plaintiff can learn who the defendant is, serve the complaint, and move the case forward.

In the recent case of Strike 3 Holdings v. Doe, Judge Royce Lamberth of the U.S. District Court for the District of Columbia put a stop to the efforts of a plaintiff that it called a copyright troll right to its face (or at least right in the text of the opinion). The court denied Strike 3’s motion for leave to take early discovery to learn the identity of an unknown BitTorrent user accused of downloading pornography.

The court held that the plaintiff’s request was not specific enough, and the privacy interests of the unknown defendant, together with the social harm of being wrongfully accused of obtaining “particularly prurient pornography” were not outweighed by the trollish plaintiff’s need for the information.

Key to the court’s ruling was the idea that a subpoena in circumstances like this must be able to actually identify a defendant who could be sued. The court noted, however, that

Strike 3 could not withstand a 12(b)(6) motion in this case without resorting to far more intensive discovery machinations sufficiently establishing defendant did the infringing—examining physical evidence (at least the computers, smartphones, and tablets of anyone in the owner’s house, as well as any neighbor or houseguest who shared the Internet), and perhaps even interrogatories, document requests, or depositions. Strike 3’s requested subpoena thus will not—and may never—identify a defendant who could be sued.

The opinion is an entertaining read and conveys the judge’s clear frustration with copyright troll plaintiffs. Below are some of the more memorable quips.

Regarding the flaws of using IP addresses to identify people:

[Plaintiff’s] method [of identifying infringers] is famously flawed: virtual private networks and onion routing spoof IP addresses (for good and ill); routers and other devices are unsecured; malware cracks passwords and opens backdoors; multiple people (family, roommates, guests, neighbors, etc.) share the same IP address; a geolocation service might randomly assign addresses to some general location if it cannot more specifically identify another.

Regarding the public shame of being accused of infringing porn:

… But in many cases, the method is enough to force the Internet service provider (ISP) to unmask the IP address’s subscriber. And once the ISP outs the subscriber, permitting them to be served as the defendant, any future Google search of their name will turn-up associations with the websites Vixen, Blacked, Tushy, and Blacked Raw. The first two are awkward enough, but the latter two cater to even more singular tastes.

How trolls are quick to flee:

Indeed, the copyright troll’s success rate comes not from the Copyright Act, but from the law of large numbers. … These serial litigants drop cases at the first sign of resistance, preying on low-hanging fruit and staying one step ahead of any coordinated defense. They don’t seem to care about whether defendant actually did the infringing, or about developing the law. If a Billy Goat Gruff moves to confront a copyright troll in court, the troll cuts and runs back under its bridge. Perhaps the trolls fear a court disrupting their rinse-wash-and-repeat approach: file a deluge of complaints; ask the court to compel disclosure of the account holders; settle as many claims as possible; abandon the rest.

It’s pretty much extortion:

Armed with hundreds of cut-and-pasted complaints and boilerplate discovery motions, Strike 3 floods this courthouse (and others around the country) with lawsuits smacking of extortion. It treats this Court not as a citadel of justice, but as an ATM. Its feigned desire for legal process masks what it really seeks: for the Court to oversee a high-tech shakedown. This Court declines.

The court’s decision to deny discovery is anything but the rubber stamp approach so many judges in these kinds of cases over the past several years have been accused of employing.

Strike 3 Holdings v. Doe, 2018 WL 6027046 (D.D.C. November 16, 2018)

Court takes into consideration defendant’s privacy in BitTorrent copyright infringement case

Frequent copyright plaintiff Strike 3 Holdings filed a motion with the U.S. District Court for the District of Minnesota seeking an order allowing Strike 3 to send a subpoena to Comcast, to learn who owns the account used to allegedly infringe copyright. The Federal Rules of Civil Procedure created a bootstrapping problem or, as the court called it, a Catch-22, for Strike 3 – it was not able to confer with the unknown Doe defendant as required by Rule 26(f) because it could not identify the defendant, but it could not identify defendant without discovery from Comcast.

The court granted Strike 3’s motion for leave to take early discovery, finding that good cause existed for granting the request, and noting:

  • Strike 3 had stated an actionable claim for copyright infringement,
  • The discovery request was specific,
  • There were no alternative means to ascertain defendant’s name and address,
  • Strike 3 had to know defendant’s name and address in order to serve the summons and complaint, and
  • Defendant’s expectation of privacy in his or her name and address was outweighed by Strike 3’s right to use the judicial process to pursue a plausible claim of copyright infringement.

On the last point, the court observed that the privacy interest was outweighed especially given that the court could craft a limited protective order under Federal Rule of Civil Procedure 26(c) to protect an innocent ISP subscriber and to account for the sensitive and personal nature of the subject matter of the lawsuit.

Strike 3 Holdings, LLC v. Doe, 2018 WL 2278110 (D.Minn. May 18, 2018)

About the Author: Evan Brown is a Chicago technology and intellectual property attorney. Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases. Read Evan’s other blog, UDRP Tracker, for information about domain name disputes.

Court allows Microsoft to unmask unknown Comcast users accused of infringement

A federal court in Washington state has given the green light for Microsoft to subpoena records from Comcast to discover the identity of the person or persons associated with an IP address used to activate thousands of unauthorized copies of Microsoft software.

Statue_of_Anonymus_(Budapest,_2013)

Generally, in federal court litigation, a party cannot serve discovery requests or subpoenas until after the plaintiff and defendant have conferred (in a Rule 26(f) conference). But when the plaintiff does not know the identity of the defendant, there is a bootstrapping problem – discovery needs to be taken to find out the defendant with whom to conduct the conference. In situations like this, the plaintiff seeking to unmask an unknown defendant will file its complaint against one or more “John Does,” then ask the court for leave to serve discovery prior to the Rule 26(f) conference.

That is what happened in this case. It is a common tactic used by parties legitimately seeking to enforce intellectual property, as well as parties that may be considered copyright trolls. See, e.g., this early bittorrent case from 2011.

Microsoft filed its complaint and also filed a motion for leave to take discovery prior to the Rule 26(f) conference. Finding that good cause existed for the early discovery, the court granted the motion.

It held that

(1) Microsoft had associated the John Doe Defendants with specific acts of activating unauthorized software using product keys that were known to have been stolen from Microsoft, and had been used more times than were authorized for the particular software,

(2) Microsoft had adequately described the steps it took in an effort to locate and identify the John Doe defendants, specifically by utilizing its “cyberforensics” technology to analyze product key activation data, identifying patterns and characteristics which indicate software piracy,

(3) Microsoft had pleaded the essential elements to state a claim for copyright and trademark infringement, and

(4) the information proposed to be sought through a subpoena appeared likely to lead to identifying information that would allow Microsoft to serve the defendants with the lawsuit.

Microsoft Corp. v. John Does 1-10, 2017 WL 4958047 (W.D. Wash., November 1, 2017)

Image courtesy Dmitrij Rodionov under Creative Commons Attribution-Share Alike 3.0 Unported license. Licensed granted hereby under same terms.

Another court puts an end to a social media discovery fishing expedition

480px-Old_photo_of_woman_holding_a_fisherman_caught_fishPlaintiff sued a construction company and certain municipal authorities for negligence and loss of parental consortium after her toddler son was seriously injured in front of a construction site. Defendants sought broad discovery from plaintiff’s Facebook account, to which plaintiff objected in part. But the trial court required plaintiff to answer the discovery. So plaintiff sought review with the appellate court. On appeal, the court overturned the trial court.

It held that defendants’ discovery requests were overbroad and compelled the production of personal information that was not relevant to plaintiff’s claims.

Defendants had sought copies of postings on plaintiff’s Facebook account dealing with:

  • Any counseling or psychological care obtained by plaintiff before or after the accident
  • Relationships with [her injured son] or her other children, both prior to, and following, the accident
  • Relationships with all of plaintiff’s children, “boyfriends, husbands, and/or significant others,” both prior to, and following the accident
  • Mental health, stress complaints, alcohol use or other substance use, both prior to and after, the accident
  • Any lawsuits filed after the accident by plaintiff

The court observed that one of the defendants’ arguments to the trial court essentially conceded it was on a fishing expedition. The attorney stated, “These are all things that we would like to look under the hood, so to speak, and figure out whether that’s even a theory worth exploring.” And the magistrate judge in the trial court (though ordering the discovery to be had) acknowledged that “95 percent, or 99 percent of this may not be relevant,” and expressed some misgivings at the possibility that large amounts of material might have to be reviewed in camera.

Finding that the trial court order departed “from the essential requirements of the law” because it was overbroad and required the production of irrelevant personal information, the court quashed the discovery requests.

Root v. Balfour Beatty Const. LLC, — So.3d —, 2014 WL 444005 (Fla.App. 2 Dist. February 5, 2014)

Bullied student did not have to hand over all of his social media content in lawsuit against school district

A student sued the school district in which he attended high school for failing to protect him against bullying. The school district served discovery requests on the student seeking electronic copies of everything he did on social media during the time period of the alleged bullying. When the student refused to produce all of his social media content, the school district moved to compel.

picardThe court held that the student did not have to produce all of his social media content, but had to produce any materials that revealed, referred, or related to any “emotion, feeling, or mental state.” The court looked to the case of E.E.O.C. v. Simply Storage Management, LLC, 270 F.R.D. 430 (S.D.Ind.2010) to find that the mere fact that the student had social communications was not probative of any mental or emotional state. Rather, the school district would be entitled to discover whatever communications were relevant to the claims or defenses in the matter.

In the social media discovery context, this meant something less than the student’s entire social media history:

To be sure, anything that a person says or does might in some theoretical sense be reflective of her emotional state. But that is hardly a justification for requiring the production of every thought she may have reduced to writing or, indeed, the deposition of everyone she may have talked to.

Despite this attempt by the court at limitation, one is left to wonder whether the scope of the court’s order — requiring production of materials that revealed, referred, or related to any “emotion, feeling, or mental state” — is so vague as to be of no real help. Scarcely anyone’s casual social media content (let alone the content of the typical teenager) contains material that is void of emotion, feeling or mental state. Tweets, comments, status updates and wall postings drip with pride, humor, loneliness, angst, and the rest of the spectrum of human sentiment.

D.O.H. ex rel. Haddad v. Lake Central School Corp., 2014 WL 174675 (N.D.Ind. January 15, 2014)

Related: Plaintiff has to turn over emotional social media content in employment lawsuit

Evan Brown is a Chicago attorney helping businesses and individuals identify and manage issues dealing with technology development, copyright, trademarks, software licensing and many other matters involving the internet and new media. Call him at (630) 362-7237 or email ebrown@internetcases.com

Court allows expedited discovery to identify website hijackers

Indigital Solutions, LLC v. Mohammed, 2012 WL 5825824 (S.D.Tex. November 15, 2012)

Plaintiffs alleged that one or more unknown defendants used malware to gain access to plaintiffs’ email account, web hosting account and domain registration account. From a message in plaintiffs’ email account, the defendants acquired an image of one of the plaintiff’s signature, which defendants used to forge a domain name transfer agreement. Plaintiffs sued under the Computer Fraud and Abuse Act and other theories. They sought leave to take expedited discovery to learn the identity of the unknown defendants. The court granted the motion.

The court found that plaintiffs had made a prima facie showing of harm by setting forth a valid claim under the Computer Fraud and Abuse Act. The discovery request was specific, in that they sought third party subpoenas to specified recipients seeking particular information. All alternative means of discovering the defendants had been exhausted, and the case could not move forward without the information. And the court found no privacy interest on the part of the defendants to be at stake, especially given the evidence that the defendants were not U.S. citizens, thus not subject to any First Amendment interest in anonymity.

Trial court erred in ordering defendant to turn over his iPhone in ediscovery dispute

AllianceBernstein L.P. v. Atha, — N.Y.S.2d —, 2012 WL 5519060 (N.Y.A.D. 1 Dept., November 15, 2012)

Plaintiff sued its former employee for breach of contract alleging he took client contact information on his iPhone when he left the job. The trial court ordered defendant to turn the iPhone over to plaintiff’s counsel so plaintiff could obtain the allegedly retained information.

Defendant sought review of the discovery order. On appeal, the court reversed and remanded.

The appellate court found that the lower court’s order that defendant turn over his iPhone was beyond the scope of plaintiff’s request and was too broad for the needs of the case. Ordering production of defendant’s iPhone (which, the court observed, has built-in applications and internet access) “was tantamount to ordering the production of his computer.” The iPhone would disclose irrelevant information that might include privileged communications or confidential information.

So the court ordered that the phone and a record of the device’s contents be delivered to the court for an in camera review to determine what, if any information contained on the phone was responsive to plaintiff’s discovery request.

Court orders in camera review of injured plaintiff’s Facebook content

Richards v. Hertz Corp., — N.Y.S.2d —, 2012 WL 5503841 (N.Y.A.D. 2 Dept. November 14, 2012)

Plaintiff sued defendant for personal injury. Defendant saw a photo plaintiff had publicly posted on Facebook of herself skiing. When defendant requested plaintiff to turn over the rest of her Facebook content (presumably to find other like-pictures which would undermine plaintiff’s case), plaintiff sought a protective order. The trial court granted the motion for protective order, but required plaintiff to turn over every photo she had posted to Facebook of herself engaged in a “sporting activity”.

woman skiing

Defendants appealed the entry of the protective order. On review, the appellate court reversed and remanded, finding that defendants had made a showing that at least some of the discovery sought would result in the disclosure of relevant or potentially relevant evidence.

But due to the “likely presence” of private and irrelevant information in plaintiff’s account, the court ordered the information be turned over to the judge for an in camera review prior to disclosure to defendants.

Whether the plaintiff effectively preserved her Facebook account information may be an issue here. The facts go back to 2009. One is left to wonder whether and to what extent plaintiff has not gone back and deleted information from her account which would bear on the nature and extent of her injuries. It goes to show that social media discovery disputes can take on a number of nuances.

Photo courtesy Flickr user decafinata under this Creative Commons license.

Plaintiff has to turn over emotional social media content in employment lawsuit

Court holds that Facebook, LinkedIn and MySpace postings relating to plaintiff’s emotional state must be produced in discovery.

Robinson v. Jones Lang LaSalle Americas, Inc., 2012 WL 3763545 (D.Or. August 29, 2012)

Plaintiff sued her former employer for discrimination and emotional distress. In discovery, defendant employer sought from plaintiff all of her social media content that revealed her “emotion, feeling, or mental state,” or related to “events that could be reasonably expected to produce a significant emotion, feeling, or mental state.”

emotional on social media

When plaintiff did not turn over the requested content, defendant filed a motion to compel. The court granted the motion.

The court relied heavily on the case of E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D.Ind. 2010) in ordering plaintiff to produce the requested social media content. The Simply Storage court found that:

It is reasonable to expect severe emotional or mental injury to manifest itself in some [social media] content, and an examination of that content might reveal whether onset occurred, when, and the degree of distress. Further, information that evidences other stressors that could have produced the alleged emotional distress is also relevant.

Consistent with the principles of Simply Storage the court in this case ordered production from plaintiff all social media communications:

that reveal, refer, or relate to any significant emotion, feeling, or mental state allegedly caused by defendant’s conduct;

The production of this category of communications was meant to elicit information establishing the onset, intensity, and cause of emotional distress allegedly suffered by plaintiff because of defendant during the relevant time period.

The court also ordered plaintif to produce all social media materials concerning:

events or communications that could reasonably be expected to produce a significant emotion, feeling, or mental state allegedly caused by defendant’s conduct.

This second category was meant to elicit information establishing the absence of plaintiff’s alleged emotional distress where it reasonably should have been evident (i.e., under the rubric of Simply Storage, on her social media accounts).

The court observed how counsel for the parties plays an important role in the discovery of social media. As the court in Simply Storage recognized, it is an “impossible” job for the court to define the limits of social media discovery with enough precision to satisfy the producing party. To address this impossible situation, it falls to the lawyers to act in good faith to produce required materials, inquire about what has and has not been produced, make the appropriate challenges, and seek revision of the discovery order as appropriate.

Photo courtesy Flickr user xdxd_vs_xdxd under this Creative Commons license.

Employer not allowed to search for porn on employee’s home computer

In re Jordan, — S.W.3d —, 2012 WL 1098275 (Texas App., April 3, 2012)

Former employee sued her old company for subjecting her to a sexually hostile workplace and for firing her after she reported it. She claimed that she had never looked at pornography before she saw some on the computers at work. During discovery in the lawsuit, the company requested that employee turn over her home computer so that the company’s “forensic computer examiner” could inspect them.

The trial court compelled employee to produce her computer so that the forensic examiner could look for pornography in her web browsing history and email attachments. The employee sought mandamus review with the court of appeals (i.e., she asked the appellate court to order the lower court not to require the production of the hardware). The appellate held that she was entitled to relief, and that she did not have to hand over her computer.

The appellate court found that the lower court failed to consider an appropriate protective order that would limit inspection to uncover specifically-sought information in a particular form of production. In this case, the company had merely asked for the hardware without informing employee of the exact nature of the information sought. And the company provided no information about the qualifications of its forensic examiner. Though the trial court tried to limit the scope of the inspection with carefully chosen wording, the appellate court found that was not sufficient to protect the employee from the risks associated with a highly intrusive search.

Photo credit: Jakob Montrasio (CC BY 2.0)