ISPs' motion to quash subpoenas in Prenda case to be argued Thursday

By Ann Maher | Jun 5, 2013


Internet service providers (ISPs) seeking to prevent the forced release of customer ID information to a plaintiff in St. Clair County litigation will argue a joint motion to quash subpoenas on Thursday before Circuit Judge Andrew Gleeson.

Comcast, Verizon and CenturyTel and other ISPs say that a suit filed in January by LW Systems is “feigned” and want the Court to investigate possible collusion between the plaintiff 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.

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.

Dozens of Internet users so far identified as “John Does” – alleged co-conspirators who have gained unauthorized access to adult content – have also 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, also represents John Does 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.

That agreed discovery order - which on its face appears contrary to the interests of defendants - was reached between LW Systems attorney Paul Duffy of Prenda Law in Chicago and Hubbard’s attorney, Adam Urbanczyk, also of Chicago.

Duffy and Urbanczyk have not commented.

Local counsel for Duffy, Kevin Hoerner of Belleville, has argued that individuals seeking to quash the release of their identities have failed to identify valid legal reasons why the Court should grant their motions to quash.

Hoerner argues that the release of their information will not act as a judgment against them, but will rather “simply allow Plaintiff to begin its investigation into Movants’ activities.”

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

“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."

On behalf of Comcast, Verizon and CenturyTel and others, 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.”

The ISPs’ motion will be heard at 10 a.m. Thursday. Gleeson will hear arguments involving motions to quash filed on behalf of John Does on June 27.

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