Ann Maher May 23, 2013, 10:42am

Anonymous individuals seeking to quash the release of their identities in a St. Clair County lawsuit that accuses them of illegally downloading pornography have failed to identify “a single valid basis under the law” on which the court should sustain their objections.

Belleville attorney Kevin Hoerner makes that argument in response to dozens of motions to quash subpoenas of the movants’ names, addresses and other identifying information from more than 300 Internet service providers (ISP).

Hoerner, acting as local counsel for Chicago attorney Paul Duffy of Prenda Law, stated in his omnibus motion that the release of their information will not act as a judgment against them, “it will simply allow Plaintiff to begin its investigation into Movants’ activities.”

He states that it is impossible for plaintiff to determine who is guilty and who might have had their Internet accounts hijacked without the information.

Hoerner also counters what he describes as movants’ nine arguments for quashing, first among them that the suit seeks to coerce settlement. He says movants “go to great length to portray themselves as the victims in this matter…”

“Movants further argue that their identifying information should not be released because they will be embarrassed if their names are linked to the adult content associated with Plaintiff,” the motion states. “Movants are essentially arguing that because Plaintiff’s business is associated with adult content, Plaintiff should not be allowed to protect its rights through the legal system. Plaintiff is deeply disturbed by the prospect of inferior access to the courts by virtue of its participation in the adult industry. Plaintiff has a constitutional right of access to the courts.

Duffy filed the case, LW Systems v. Christopher Hubbard, in January alleging Hubbard and his co-conspirators hacked into LW Systems’ computer system that supplies content for adult Web site operators.

Shortly after the case was first filed, Chief Judge John Baricevic signed an agreed discovery order to allow LW Systems to subpoena personal information associated with certain IP addresses.

Several ISPs and dozens of individuals identified as “John Doe” are fighting the subpoenas on a number of fronts. Comcast, Verizon, CenturyTel and other ISPs argued in April that the suit is “feigned” and asked the Court to investigate possible collusion between plaintiff and the defendant.

St. Clair County Circuit Judge Andrew Gleeson will hear the ISPs’ motion on June 6 and the John Doe motions on June 27.

In Hoerner’s May 20 omnibus response he states that movants are attempting to argue the merits of the complaint, which is “premature.”

He also counters movants’ arguments that information sought from the ISPs is not relevant; that First Amendment protections prevent release of their identities; that an Internet Protocol (IP) address does not necessarily identify the person that committed unlawful activity; that subpoenas subject them to an undue burden; that the court lacks personal jurisdiction; that plaintiff has improperly joined movants; that challenge merits; and that since other courts have quashed subpoenas, this one should too.

On May 20, the objecting ISPs asked Gleeson to take judicial notice of an order entered in a California federal court that sanctioned Duffy and other attorneys.

In that order, U.S. District Judge Otis D. Wright II ordered John Steele and Paul Hansmeier of Steele Hansmeier in Chicago and Brett Gibbs of San Francisco to pay $81,000 in sanctions finding that they engaged  in “brazen misconduct and relentless fraud” in a copyright infringement case. He also held that attorneys Duffy, Steele and Hansmeier created business entities for the sole purpose of litigating copyright infringement cases.

Representing the ISPs in the St. Clair County case, Troy Bozarth of HeplerBroom in Edwardsville included a portion of Wright’s order in a supplement supporting the providers’ motion to quash and/or motion for protective order.

“Plaintiffs have demonstrated their willingness to deceive not just this Court, but other courts where they have appeared,” the order states. “Plaintiff’s representations about their operations, relationships, and financial interests have varied from feigned ignorance to misstatements to outright lies. But this deception was calculated so that the Court would grant Plaintiffs’ early-discovery requests, thereby allowing Plaintiffs to identify defendants and exact settlement proceeds from them. With these granted requests, Plaintiffs borrowed the authority of the Court to pressure settlement.”

After missing a May 21 deadline to pay $81,000 in sanctions – which amounted to attorney’s fees incurred by the defense – Wright ordered Prenda Law to show cause as to why it didn’t pay up.

Wright also imposed a penalty of $1,000 per day, per person or entity, until this attorney’s fee award is paid or a bond for the same amount is posted.

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