On the last day plaintiff lawyers were given to explain why they shouldn't have to pay fees and costs, or be held in contempt or sanctioned for their conduct in a St. Clair County porn hacking case, Paul Duffy and John Steele filed a 17-page memo championing their credibility.
“Respondents categorically deny that [plaintiff] Guava engaged in sanctionable conduct towards anyone in this case...," the lawyers wrote on Feb. 18.
Circuit Judge Andrew Gleeson had given Duffy, Steele and others 90 days from Nov. 18 to show why they shouldn't have to pay cable provider Comcast $26,280 for producing the identities of nearly 300 of its subscribers in a case the lawyers brought for plaintiff Guava LLC, a distributor of pornographic films represented by the now-dissolved Chicago-based Prenda Law firm.
Based on Internet Protocol (IP) addresses it had obtained, Guava sued Comcast claiming "John Does" hacked their porn sites. In December 2012, Gleeson ordered Comcast to provide the names, addresses, phone numbers, email addresses and media access control addresses of its customers who were alleged to have accessed the sites unlawfully.
“John Doe” Comcast customers who objected to having their identities turned over to Guava appealed, and last May the Fifth District Appellate Court ordered Gleeson to dismiss Guava’s pre-suit discovery petition.
The Fifth District also ordered Gleeson to compel the attendance of those named in the petition to show cause.
The petition named Guava LLC and Lightspeed Media Corp., as well as their officers and directors; Duffy, Belleville attorney Kevin Hoerner who acted as local counsel, Steve Jones, a purported agent of Lightspeed; and Allan Mooney, a purported principal of Guava whose signature is listed on the pre-suit discovery petition.
Duffy, Steele and Paul Hansmeier were behind Prenda Law. They have been accused by a few judges of "brazen misconduct" and creating shell companies in order to file copyright infringement and computer hacking suits to exploit the court's subpoena powers and extort settlements.
On the date their response were due, Duffy and Steele addressed 10 topics Gleeson ordered them to answer.
Among the issues was whether Guava ever intended to make efforts to uncover sufficient facts to form a basis to state a cause of action against the John Does or whether its purpose in filing suit was to “harass or extort the Does without forming a reasonable basis” to believe they were the culpable parties.
Duffy and Steele responded that Guava used computer software similar to what is used by the FBI to catch people downloading child pornography. They wrote that then Guava used geolocation technology to find the alleged hackers, many of which appeared to live in or near St. Clair County.
“Respondents would respectfully inform this court that they are not aware of any harassment that was conducted against any John Doe in this case, any hacker of plaintiff’s works, or anyone else associated with this case," they wrote.
In response to whether Guava is a true limited liability company with standing to file suit, and, if not, whether its representatives or attorneys had knowledge of this fact, Duffy and Steele wrote:
“Guava is a true limited liability company … It had standing to institute this action."
They wrote that Guava is a Nevis "entity." Nevis is a small island east and southeast of Puerto Rico. It forms part of the inner arc of the Leeward Islands chain of the West Indies
"In fact, due to Guava being a Nevis entity, and due to the bizarre claims of lack of corporate existence, Mr. Steele has actually traveled to business registrar in Nevis to inquire about the status of Guava LLC.”
In response to whether the verification of the petition for discovery before suit was forged, Duffy and Steele wrote that Guava principal Allan Mooney's verification of the petition for discovery was “unquestionably authentic.”
They wrote that perhaps a video of Mooney signing the document would “help opposing counsel get over their obsession with proving Mr. Mooney does not exist.”
“Thus, for this court to believe the active doe parties’ forgery accusation, it would have to believe that multiple bank employees, that have no known association with anyone involved in this litigation, decided to commit multiple felonies, lie under oath in their duty as notaries public,” they wrote.
In response to whether Guava knew its allegation that at least one of the IP addresses listed in the petition for discovery was associated with a Comcast subscriber who resided in St. Clair County, was false, they wrote:
“Without knowing the actual names and addresses of the subscribers associated with the IP addresses listed in the petition for discovery before suit, it is not possible for respondents to know with absolute 100 percent certainty how many of the subscribers were located in St. Clair County, versus one of the surrounding counties,” Duffy and Steele wrote.
They also wrote that they believe the geotechnology used by Guava was able to determine the location of 81 percent of U.S. IP addresses within a 100 kilometer radius.
They indicated that geolocation placed one or more of the subscribers in St. Clair County prior to the initiation of Guava’s petition for relief, and that the use of geolocation gave Guava a “good faith basis for residence” of one or more of the IP address subscribers in St. Clair County.
Regarding whether Guava was the real party of interest in this action, Duffy and Steele denied accusations that Guava is a "front" for Lightspeed Media Corp., a large adult content company in the industry for 15 years.
“This accusation is frankly so utterly bizarre that there could not possibly be a single document on the planet Earth from the beginning of time to the present that could possibly give rise to even an inference of corporate overlap between Guava and Lightspeed,” they wrote.
Gleeson's order also imposed three additonal requirements
The first was a requirement that the respondents depose Guava principal Mooney on three weeks’ written notice.
Duffy and Steele argued that would mean they would have to depose their client for 14 hours while discussing attorney-client privileged information.
“A careful reading of this requirement appears to suggest that respondents are being put in a position of exposing their client to an increased risk of liability, or face an increased risk of liability themselves,” their answer states.
“Thus, to the extent the court’s order requires respondents to violate their ethical obligations as attorneys, respondents would respectfully ask for relief from this requirement.”
Gleeson's order also required Guava to submit an independent response and the respondents to submit testimony regarding issues under dispute, converting respondents into witnesses.
Duffy and Steele responded in that case they would have to withdraw as counsel for Guava.
Finally, the respondents were required to admit or deny whether they have any kind of interest in Guava.
They denied any personal or pecuniary interest outside of the ordinary attorney-client relationship.
Andrew Toennies of St. Louis represents Comcast.
The John Doe real parties are represented by attorneys Laura Beasley, Erin Russelll, Morgan Pietz and Thomas Leverso.
St. Clair County Circuit Court case number 12-MR-417