Bethany Krajelis Apr. 17, 2013, 7:05am




A new wave of “John Does” whose identities are being sought in a St. Clair County lawsuit have asked a judge to quash subpoenas that seek to reveal who they are.

Filed separately by several different attorneys last week, the new motions come on the heels of similar quash requests brought by other John Does and Internet Service Providers (ISPs) Comcast, Verizon and CenturyTel that also asked the court to look into possible collusion between plaintiff LW Systems LLC and defendant Christopher Hubbard.

LW Systems in January sued Hubbard, who at this time is the only named defendant in the case. Hundreds of ISPs have been subpoenaed seeking the identities of John Does whom LW Systems has recognized through their Internet Protocol (IP) addresses. The suit accuses them of hacking into LW Systems’ computer system that supplies content for adult Web site operators.

Circuit Judge Andrew Gleeson has been assigned to the case and is scheduled to hear arguments over motions to quash in June.

Less than two weeks after the case was first brought, Chief Judge John Baricevic signed an agreed discovery order that allowed LW Systems to subpoena the names, addresses, phone numbers, email addresses and Media Access Control addresses associated with particular IP’s from 325 ISPs.

The agreed discovery order was reached between LW Systems attorney Paul Duffy of Prenda Law in Chicago and Hubbard’s attorney, Adam Urbanczyk, also of Chicago.

In the recently filed motions to quash, some of the John Does claim LW Systems’ lawsuit puts them in the situation of either having to settle or face the humiliation they say would come along with being publicly named as defendants in litigation over illegally downloaded porn.

“[T]his discovery is part of a publicly subsidized business practice that harvests Internet subscribers’ identifies and contact information in order to engage them in a pay or shame settlement negotiation,”  one of the John Does alleges in a motion filed by Jonathan Phillips, a shareholder at Shay Kepple Phillips in Peoria.

Referring to a similar copyright infringement case in California that attorneys at Duffy’s firm are also involved with, the motion adds, “Through LW’s, and other similar companies’ previous behavior in bringing these suits, it is apparent that there is no real desire on their part to litigate the claims.”

In addition to this argument, as well as one focusing on the defendants’ right to privacy, some of the John Does who filed motions to quash the subpoenas claim that LW Systems doesn’t even have a right to even bring the suit.

The John Doe represented by St. Charles attorney Michael Clancy asserts in his motion that under the Illinois Business Corporation Act “no foreign corporation transacting business in Illinois without the authority to do so is permitted to maintain a civil action in any court of this State.”

According to the motion submitted by Clancy, there is no record with the Illinois Secretary of State that LW Systems is authorized to do business in Illinois. It goes on to say the plaintiff’s “failure to identify the state in which it is organized is a strange departure from the general convention of civil pleading” and “is no accident.”

In addition to quashing the subpoenas, Clancy’s client asked the court to order LW Systems to disclose its state or nation of organization and its principal place of business, saying that if the plaintiff doesn’t have a standing to sue, then the court won’t have to go any further in examining the John Does' other arguments.

On behalf of another John Doe named as a defendant in the suit, Christopher Helt of Helt Law Group in Chicago argued in his client’s motion that LW Systems “cannot seek discovery on matters that are not in any way relevant to the action it has brought against Hubbard.”

“Casting such a net, blindly hoping to ‘shakedown’ and locate potential defendants is a fishing expedition explicitly prohibited in Illinois,” the motion asserts. “The Illinois Supreme Court has limited discovery to those matters relevant to the subject matter of litigation.”

According to the motion submitted by Helt, the only allegation that LW Systems made that the discovery it seeks is relevant is that information held by the ISPs is “relevant and material.” This, the motion contends, “is not enough to show that the information is relevant.”

Several of the John Does further argue that the Illinois Supreme Court has already addressed the issue in Lightspeed v. Doe, a similar suit previously filed in St. Clair County.

“This Court has seen this situation before, and the Illinois Supreme Court entered a supervisory order to vacate discovery orders and quash subpoenas,” the motion filed by Phillips states. “There is no reason to even begin down that path again.”

According to the motion, LW System’s previous suit was also “part of the nationwide shakedown plan that made use of an agreed order having no legitimate purpose, which sought information with no relevant to any claim brought.”

In the Lightspeed case, the motion filed by Phillips states, the ISPs intervened and challenged the subpoenas. After their motions were denied, they filed a Rule 383 motion with the Illinois Supreme Court, which then issued the supervisory order quashing the subpoenas.

“In a sense, due to the indistinguishable nature of this case and previous litigation, the Supreme Court of Illinois has already seen this case, and already decided that this motion to quash should be granted,” Phillips’ client asserts in his motion.

Besides the Lightspeed case, many of the John Does assert in their motions that other courts have quashed subpoenas.

Clancy wrote in his client’s motion that typically, these types of lawsuits have been filed in federal court.

“Unfortunately for them, plaintiffs like [LW Systems] and Lightspeed are encountering a ‘stiffing judicial headwind’ to this kind of litigation in federal courts across the country,” the motion states. “These courts have, in rapidly increasing numbers, quashed subpoenas, severed mass defendants, imposed sanctions and generally increased their supervision and skepticism over these lawsuits.”

Clancy adds in his client’s motion, “Stymied in many federal courts, plaintiffs have begun turning to state courts, where they present the same issues and objectives – sometimes repackaged in the form of non-copyright claims, but still seeking to coerce mass settlements.”

The suit brought by LW Systems “is an example of the latest effort to secure mass discovery from a single court,” Clancy alleges on his client’s behalf.

Representing another John Doe, Chicago attorneys Stephen Hall and J. Ryan Hinshaw submitted a motion to quash that claims LW Systems’ attorneys have filed more than 100 lawsuits in the past two years that seek to identify internet users.

In addition to the same arguments brought up by the other John Does, Hall and Hinshaw claim that issues over venue and proper subpoena service also call for the subpoenas to be quashed.

They further argue that disclosure of their client’s personal information “will neither prove nor disprove any issue in this case, because an IP address identifies only the subscriber, not the individual who committed an alleged act.”

In his client’s motion to quash, Chicago attorney Jeffrey Antonelli points to a similar case in another jurisdiction where a judge dismissed the matter based on “grave concerns of the accuracy of the geo-location tools employed by plaintiff.”

Antonelli also argues that the connection between an IP address and an ISP subscriber “is even more tenuous because too often the IP address has simply been faked (‘framed’) by the real infringer.”

“Much like the person who wishes to get a job but has a criminal history and uses a fake social security number on its employment application, in cases of wrongful online conduct an IP address is often ‘made up’ and that made up IP address just happens to belong to somebody, an innocent stranger,” the motion states. “There is a strong possibility that happened with petitioner’s IP address.”

Like Comcast, Verizon and CenturyTel did earlier this month, Antonelli also points to possible collusion between LW Systems and Hubbard.

“[T]he unusual collaboration of plaintiff and defendant in expediting wholesale discovery to hundreds of ISPs within a few weeks of the filing of the complaint, without even an answer of dispositive motion being filed, raise grave concerns regarding the conduct of counsel which must give this court pause,”  the motion states.

Antonelli notes in his client's motion that in a similar copyright infringement case in California, Ingenuity 13 LLC v. John Doe, LW Systems’ attorneys earlier this month invoked their Fifth Amendment privilege to remain silent under questioning from U.S. District Otis Wright.

Wright was quoted as saying at the hearing, “It should be clear by now that this court’s focus has shifted from protecting intellectual property rights to attorney misconduct. Such misconduct brings discredit to the profession.”

One of the issues in the California case, according to Wright, deals with the identify of a person named Alan Cooper.

Cooper is also named as a defendant in a complaint that Prenda Law filed in February in St. Clair County.

That suit accuses Cooper, his Minnesota attorney, Paul Godfread, and 10 John Doe defendants, of making false and libelous statements about his firm.

The defendants in that complaint, which was later amended to include the Alpha Law Firm in Minnesota, removed the matter to the U.S. District Court for the Southern District of Illinois.

The two law firms have since asked the court to remand it back to state court.

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