No deposition of account holder allowed until he is named as defendant in BitTorrent copyright case

Hard Drive Productions, Inc. v. Doe, 2012 WL 90412 (E.D. Cal. July 11, 2012)

In a mass copyright infringement suit, plaintiff served a subpoena on an internet service provider and got the identifying information for the account holder suspected of trading a copy of a movie via BitTorrent. The account holder was uncooperative with plaintiff’s offers to settle, and denied downloading the file.

Instead of simply naming the identified account holder as a defendant in the case and proceeding with ordinary discovery, plaintiff asked the court for leave to take “expedited discovery,” namely, to depose the account holder to learn about:

  • the account holder’s involvement with the alleged distribution
  • his computers and network setup
  • his technical savvy
  • other users who may have had access to the computers or network

The court denied plaintiff’s request for leave to engage in the expedited discovery. It found that unlike other copyright cases in which anonymous infringers were identified, the efforts in this case “went far beyond seeking to identify a Doe defendant.” Instead, the court observed, it would be “a full-on deposition during which [the account holder] who plaintiff admits is likely not represented by counsel, may unwarily incriminate himself on the record before he has even been named as a defendant and served with process.”

Computer Fraud and Abuse Act case against hard drive destroying director goes forward

Deloitte & Touche LLP v. Carlson, 2011 WL 2923865 (N.D. Ill. July 18, 2011)

Defendant had risen to the level of Director of a large consulting and professional services firm. (There is some irony here – this case involves the destruction of electronic data, and defendant had been in charge of the firm’s security and privacy practice.)

After defendant left the firm to join a competitor, he returned his work-issued laptop with the old hard drive having been replaced by a new blank one. Defendant had destroyed the old hard drive because it had personal data on it such as tax returns and account information.

The firm sued, putting forth a number of claims, including violation of the Computer Fraud and Abuse Act (CFAA). Defendant moved to dismiss for failure to state a claim upon which relief can be granted. The court denied the motion.

Defendant argued that the CFAA claim should fail because plaintiff had not adequately pled that the destruction of the hard drive was done “without authorization.” The court rejected this argument.

The court looked to Int’l Airport Centers LLC v. Citrin, 440 F.3d 418 (7th Cir. 2006) for guidance on the question of whether defendant’s alleged conduct was “without authorization.” Int’l Airport Centers held that an employee acts without authorization as contemplated under the CFAA if he or she breaches a duty of loyalty to the employer prior to the alleged data destruction.

In this case, plaintiff alleged that defendant began soliciting another employee to leave before defendant left, and that defendant allegedly destroyed the data to cover his tracks. On these facts, the court found the “without authorization” element to be adequately pled.

Court shifts half of cost of forensic search to producing party in ediscovery case

[This is a post by Jonathan Rogers. Jon is a licensed attorney in California, with a focus on technology and entertainment law. You can reach him by email at or follow him on Twitter at @jonarogers.]

IWOI, LLC v. Monaco Coach Corporation, N.D. Ill. May 24, 2011

Plaintiff sued claiming breach of warranty and violations of certain state laws against consumer fraud stemming the sale of a motor coach. Plaintiff sought permission to search defendants’ hard drives to locate critical email which appeared to be missing from the original discovery production. Defendants contended that the email was not “reasonably accessible” under Federal Rule of Civil Procedure 26(b)(2)(B) and, therefore, they were under no obligation to produce it.

The court specified that the burden was on the party responding to discovery to identify whether there may be materials responsive to discovery requests that are stored on its system, but because of burden or cost are not reasonably accessible. However, that party cannot simply provide documents which are easily obtained and then assert that they have produced everything that is responsive to the request. If other relevant and responsive documents exist (or may exist), the party must say so and then say why those documents cannot or should not be produced.

Here, the defendants submitted only materials that were quickly accessible on employees’ desktops and made no effort to look further, even when they became aware that there was a possibility that there may be missing documents. A forensic expert asserted that he found the critical email in two separate locations on the computer network: on a local hard drive in an orphaned, but not deleted, storage file and also on a network hard drive that had been manually backed up. The expert concluded that a native Microsoft windows search of defendants’ computers would have uncovered the email and could be undertaken by an individual with no advanced computer knowledge.

The Court did not find the failure to produce the document to be a deliberate act by defendants, but that the document could have been found with minimal effort. It recognized that plaintiff (and the court) expended additional time and effort and incurred significant additional expenses searching for this document. Therefore, the court shifted half of the cost of the electronic discovery search to defendants.

Texas supreme court says identities of anonymous bloggers should not be disclosed

In re Does, — S.W.3d —, 2011 WL 1447544 (Texas, April 15, 2011)

The issue of anonymity is a hot topic in internet law. The question of whether an internet user known only by an IP address or username or website name should be identified arises fairly often in the early stages of internet defamation and certain copyright infringement cases. For example, the issue is a big one in the numerous copyright cases that have been brought recently against BitTorrent users who get subpoenas after being accused of trading copyrighted works online.

The supreme court of Texas has issued an opinion that protects the anonymity of a couple of bloggers who were accused of defamation, copyright infringement and invasion of privacy by another blogger. The court ordered that a subpoena served on Google (who hosted the Blogger accounts in question) be quashed.

Texas rules of procedure (Rule 202) allow a petitioner to take depositions before a lawsuit is filed in order to investigate a potential claim. The petitioner in this case filed such an action, and Google agreed to turn over the information about the anonymous Blogger users.

But the anonymous bloggers objected, and moved to quash the deposition subpoena, arguing that the findings required for the discovery to be taken had not been made.

The trial court was required to find that:

(1) allowing the petitioner to take the requested depositions may prevent a failure or delay of justice in an anticipated suit; or

(2) the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure.

Neither of these findings were made. Petitioner had tried to argue that the findings were not necessary because he had gotten the agreement of Google to turn over the information.

But the court saw how that missed the point. It held that without the required findings, the discovery could not be taken in the face of objections brought by other interested parties (the parties whose identities were at risk of being revealed).

While many courts have evaluated this kind of question using a first amendment analysis (i.e., is the John Doe’s interest in speaking anonymously outweighed by the plaintiff’s right to seek redress), the court in this case looked to more general concerns of avoiding litigation abuse. Citing to a law review article by Professor Hoffman, the court observed that there is “cause for concern about insufficient judicial attention to petitions to take presuit discovery” and that “judges should maintain an active oversight role to ensure that [such discovery is] not misused”.

1 2 3 4