Judge Slams Porn Lawyer for Ignoring BitTorrent Case Instructions

The fallout from Brown’s May order has affected at least one related BitTorrent suit by a plaintiff in nearby Manhattan federal court. It was a bad July all around for porn lawyers, with the 5th U.S. Circuit Court of Appeals upholding sanctions against a Texas attorney for sending unauthorized subpoenas to ISPs to identify defendants.

Brown had expressed concern the plaintiffs were filing suit solely to discover the identities of defendants only identified as Doe and pressure them into settlements. The judge had “reviewed, in detail, coercive settlement efforts tactics by the plaintiffs, which involved, among other things, ‘negotiations’ between a self-proclaimed negotiator for plaintiff and various John Doe defendants in related actions,” he said. “Notwithstanding this Court’s unambiguous order that the identities of two John Doe defendants should be produced only to the Court, it appears that plaintiffs’ counsel issued subpoenas directing [Cablevision] to produce names and addresses of the John Doe defendants directly to plaintiffs’ counsel,” Brown said in the July 31 order (http://xrl.us/bnjbad).

The two subpoenas Cablevision received listed Kotzker’s office “as the place for producing the documents” on the Doe defendants, Brown said: “Nowhere in the subpoena does counsel advise Cablevision that the documents should, pursuant to the Order, be produced only to the Court, or that the submission should be made ex parte and under seal. Fortunately, counsel for Cablevision apparently read the Court’s order and carefully complied with the procedure set forth,” giving the materials and names and addresses of the defendants directly to the court. Kotzker said in a subsequent filing asking for more time to serve the complaints that he hadn’t received Cablevision’s response to the subpoena by the June 22 deadline.

Several other courts followed Brown’s lead in setting up protective procedures for defendants in BitTorrent porn cases, so they could understand their legal rights and get pro bono representation if needed, he said. Brown had told the plaintiffs “in no uncertain terms” what the procedure would be, “particularly in light of the serious questions about plaintiffs’ ability to properly identify defendants based solely upon their IP addresses,” he said: “On this record, it is difficult to ascertain whether this apparent failure” to comply with the procedure “was deliberate, or simply the result of gross inattention.” Unless there was a cover letter explaining Brown’s procedure in the subpoenas sent by Kotzker, it was up to Cablevision’s lawyer “to discern, after reading the attached 26-page decision, how to appropriately handle the material consistent with this Court’s order,” Brown said.

Brown ordered Kotzker to file a declaration under oath explaining “the facts and circumstances” around the botched subpoenas and “the rationale behind issuing subpoenas” to give Doe identities directly to the plaintiffs. He also ordered the lawyer to reveal “the extent of Mr. Kotzker’s review of the subpoenas and the Order, and whether he signed them,” the identities of all people involved in preparing the serving the subpoenas, and “any other facts counsel believes might be pertinent in assessing whether sanctions, costs or other remedial relief should be imposed.” The judge ordered Kotzker to produce all correspondence with Cablevision, and the same to that cable ISP’s lawyer as well as a statement on legal and other costs incurred from the “improper subpoena ... which the Court may consider as part of a resolution of this matter.” They both have until Aug. 15 to turn in the documents, with a status conference featuring the Doe defendants scheduled for Sept. 10.

Kotzker told us the “response address in the subpoena was inadvertently not changed to reflect the court’s address from my office’s address, which is prepopulated in subpoenas prepared in my office.” There was “never and never will be an attempt to ignore, circumvent or diminish the safeguards set in place by Judge Brown or any judge for that matter,” as judges in other cases he has handled have issued “similar orders,” Kotzker said. “And I have gladly complied.” The botched subpoena was “simply a mistake that went unnoticed,” he said.

Brown’s description of “abusive litigation tactics” showed up in a case brought by Patrick Collins against 45 defendants who have yet to be identified in nearby Manhattan federal court. In Patrick Collins’ July 29 response to one Doe’s motion to quash (http://xrl.us/bnjbas), the company disavowed Kotzker’s actions. The defendant’s reference to the Kotzker subpoena in Central Islip is among “many gratuitous allegations that are not important as to the substance of the matter,” but to clear the air, Patrick Collins is a “large studio that has contracted with various different law firms all over the U.S.,” in this case Mike Meier of the Virginia-based Copyright Law Group, Meier said. Meier said he “does not have anything to do with any other law firm that may have employed abusive litigation practices” and hasn’t initiated contact with Doe defendants “by telephone or through a call center. ... It is disturbing” the defendant “makes these statements in light of the fact that his attorney knows better."

In the most severe punishment given a porn lawyer in recent memory, the 5th Circuit upheld sanctions by the U.S. District Court in Dallas totaling $32,000 against Texas lawyer Evan Stone, representing Mick Haig Productions. Because the Dallas court “did not immediately rule” on Mick Haig’s motion to expedite discovery -- instead ordering the relevant ISPs to preserve records and appointing lawyers from the Electronic Frontier Foundation and Public Citizen to represent the Doe defendants -- Mick Haig voluntarily dropped the case, saying “the delay in ruling on its motion foreclosed any relief,” the 5th Circuit ruled July 12 (http://bit.ly/OG7CjQ).

Just before Mick Haig dropped the case, though, some of the Doe defendants contacted the court-appointed attorneys “because they had received notices of subpoena from their ISPs and feared that their names had been disclosed to Mick Haig,” the appeals panel said: Stone “even communicated with some of the Does without the presence or knowledge” of the court-appointed attorneys. Stone confirmed he had served subpoenas on the ISPs but “disputed the merits of the motion [for sanctions], claiming that the Copyright Act permitted him to serve the subpoenas on the ISPs independently of any authorization from the district court, all the while again criticizing” the Dallas court’s handling of the case, the panel said. There was “no effort on Stone’s part to brief the court further on the legal issues related to the Does’ motion” for three month, at which point the Dallas court issued sanctions, the panel said.

The 5th Circuit waived all of Stone’s issues, saying they were “untimely” -- one was first made on appeal, and the others raised in a motion to stay sanctions in the Dallas court after he had filed an appeal with the 5th Circuit. Stone said “at oral argument and for the first time” that the 5th Circuit “can consider his arguments because his appeal is one of ‘extraordinary circumstances,’ involving only ‘pure question[s] of law [in which] a miscarriage of justice would result from our failure to consider [them],'” but that didn’t pass muster with the panel. “Stone committed those violations as an attempt to repeat his strategy of suing anonymous internet users for allegedly downloading pornography illegally, using the powers of the court to find their identity, then shaming or intimidating them into settling for thousands of dollars -- a tactic that he has employed all across the state and that has been replicated by others across the country,” the panel said. Stone later told the tech news site Ars Technica the sanctions were “bullshit” and he would issue more copyright infringement subpoenas, bring them to district court and go back to the 5th Circuit if they're denied.