ISPs join fight against St. Clair County subpoena; Defense attorney wants Court to check for 'collusive ploy'

By Ann Maher | Apr 11, 2013


Internet service providers have joined a fight to quash subpoenas seeking customer identities in a sweeping St. Clair County lawsuit that could potentially name 10,000 Internet users as defendants.

Comcast, Verizon and CenturyTel filed court papers April 5 calling it a “feigned" suit and ask the Court to investigate possible collusion between plaintiff LW Systems LLC and defendant Christopher Hubbard.

Hubbard and his alleged co-conspirators are accused of hacking into LW Systems’ computer system that supplies content for adult Web site operators.  The suit filed in January does not indicate where Hubbard resides, other than in Illinois.

An agreed discovery order signed by Chief Judge John Baricevic less than two weeks after the case was first entered has allowed LW Systems to subpoena the names, addresses, phone numbers, email addresses and Media Access Control addresses associated with particular Internet Protocols (IPs) from more than 300 ISPs.

More than a dozen Internet users so far identified as “John Does” – alleged co-conspirators who have gained unauthorized access to adult content – have formally challenged the subpoenas. Some of these John Does, who identify themselves in court filings by their IP addresses, say the litigation is “extortion” and a “shakedown” designed to coerce settlement.

California attorney Morgan Pietz, who represents dozens of John Does in similar litigation filed by the same group of attorneys in California, recently joined the defense in the St. Clair County case. Pietz said that up to 10,000 Internet users’ records could be subpoenaed in the LW Systems case because of the broad scope of the discovery order.

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.

Duffy has said he would not comment. Urbanczyk had not returned a message.

On behalf of Comcast, Verizon and CenturyTel, Edwardsville attorney Troy Bozarth of HeplerBroom wrote that the suit should be dismissed and that attorneys’ fees should be awarded to the ISPs and Internet subscribers who have been forced to respond.

“At a minimum, the Agreed Discovery Order should be vacated or stayed pending an inquiry by the Court into the circumstances that led to its being presented to the Court as an agreement by adversarial parties rather than a collusive ploy by non-adversarial parties to secure the names and contact information of the ISPs customers,” Bozarth wrote.

Bozarth’s motion also calls the defendant in the case “plaintiff-friendly,” and one who has “agreed” to “open-ended discovery from three hundred and twenty-five ISPs located across the country.”

“It also appears that Plaintiff is actually owned and operated by individuals and entities associated with Plaintiff’s attorneys Prenda Law, Inc.,” Bozarth wrote.

Very little information can be ascertained in an online search of LW Systems LLC, a company that was incorporated in Delaware in 2009, but is not registered in Illinois.

In LW System’s suit, it claims that Hubbard installed malware on its computers which allowed Hubbard unauthorized access to content. The company also claims that Hubbard “belongs to a community of individuals who have agreed to assist one another in gaining unauthorized access to computers and then share with one another the information stored on those systems.”

Bozarth argues that “In reality, the invocation of a loosely-worded ‘conspiracy’ theory by Plaintiff’s lawyers is a familiar and repeatedly rejected tactic in their tireless efforts to generate numerous ‘settlement’ targets from a single lawsuit in which it is alleged that multiple individuals improperly downloaded or accessed pornographic materials ‘owned’ by the plaintiff.”

Circuit Judge Andrew Gleeson is assigned to the case. He will hear arguments involving motions to quash on June 27.

Prenda problems

In a similar copyright infringement case playing out in federal court in California, Duffy and other attorneys from his firm on April 2 invoked their Fifth Amendment privilege to remain silent under questioning from U.S. District Otis Wright in the Central District of California.

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.”

Some of the issues at play in the case before Wright, Ingenuity 13 LLC v. John Doe, is whether attorneys associated with Prenda Law misappropriated the identity of a Minnesota man as being the head of a company it represents in another lawsuit and filing suit based on an invalid copyright assignment.

In advance of the hearing where Prenda attorneys took the Fifth, Judge Wright wrote in an order to show cause regarding sanctions for Rule 11 and Local Rule 83-3 Rule violations:

“Upon review of papers filed by attorney Morgan E. Pietz, the Court perceives that Plaintiff may have defrauded the Court. At the center of this issue is the identity of a person named Alan Cooper and the validity of the underlying copyright assignments. If it is true that Alan Cooper’s identity was misappropriated and the underlying copyright assignments were improperly executed using his identity, then Plaintiff faces a few problems.

“First, with an invalid assignment, Plaintiff has no standing in these cases. Second, by bringing these cases, Plaintiff’s conduct can be considered vexatious, as these cases were filed for a facially improper purpose. And third, the Court will not idle while Plaintiff defrauds this institution.”

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