LW Systems ordered not to re-issue subpoenas to major ISPs; Arguments set again for June 27

By Ann Maher | Jun 6, 2013

Internet Service Providers who were in court today to argue motions to quash subpoenas and/or for protective orders on customer ID information didn’t get the opportunity to make their case.

They were successful, however, in eliminating the threat of subpoena.

St. Clair County Circuit Judge Andrew Gleeson denied their motions as moot after attorneys for plaintiff LW Systems LLC agreed not to re-issue subpoenas that had already been withdrawn from Century Link, Inc., Century Tel, Century Tel Services Group LLC, Cox Communications, Inc., Quest Corp., SBC Internet Services d/b/a AT&T Internet Services, Verizon Online LLC, Verizon Wireless Services, LLC and Wayport or any of their affiliates.

Gleeson also ordered that leave of court is required for any additional subpoena issued by plaintiff LW Systems LLC, and that plaintiff must provide 14 days notice of a “hearing requesting leave to any ISP against whom a subpoena is sought.”

LW Systems filed suit against 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 filed, Chief Judge John Baricevic signed an agreed discovery order to allow LW Systems to subpoena personal information associated with certain IP addresses from 325 ISPs.

Today’s 10 a.m. hearing came to a halt soon after it began when the attorney for Comcast, Andrew Toennies of St. Louis, told the judge that a subpoena issued to his client was not valid because it was “styled” or issued out of Cook County. A subpoena is only valid if it is issued in the court where litigation is initiated.

Attorneys for LW Systems – Kevin Hoerner of Belleville and John Steele of Florida – acknowledged after a short recess that subpoenas had been issued out of Cook County.

“I don’t think they are valid orders,” Hoerner said.

Steele said there were only two outstanding subpoenas – to Comcast and Windstream – and that 10 subpoenas had already been withdrawn including the ones issued to nine of the parties represented in court today.

He said the Cook County subpoena mistake was a clerical error.

Toennies said the attorneys for the plaintiff have “known about it for months.”

Troy Bozarth, representing the ISPs which are subject to Gleeson’s order, said that all of the subpoenas have come out of Cook County.

Hoerner said, “I’m pretty sure they told them to respond in St. Clair County.”

In his order, Gleeson also allowed LW Systems leave to re-issue the subpoenas previously issued that were invalid.

Gleeson will hear all motions at 9:30 a.m. on June 27. Dozens, if not hundreds, of persons identified by their Internet Protocol addresses - "John Does" - also are fighting the litigation through motions to quash the release of their identities.

Steele’s appearance in court was somewhat unexpected in that his name has not appeared prominently in filings in the voluminous court record. Attorney Paul Duffy of Prenda Law in Chicago filed the suit and Hoerner has acted as local counsel and filed briefs.

Steele, Duffy and other lawyers face sanctions in a California court where they are ordered to pay $81,000.

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

Steele said he disagrees with Wright’s order, saying it is under appeal and that it doesn’t point to evidence and facts. He said there is no evidence that he misrepresented himself to the court.

Steele, 42, said he is semi-retired, involved in other business interests besides the practice of law.

He said that he has no financial interest in LW Systems, but even if he did, “So what.”

He likened those accused of hacking into LW Systems' site to bank robbers and "bad guys."

The ISPs' objections over the issuance of subpoenas in Cook County rather than in St. Clair County was done to avoid "talking about the merits" of the case, Steele said.

While the agreed discovery order allows for the subpoenaing of 325 ISPs, Steele said only 10 had been issued and only the ones against Comcast and Windstream were still outstanding. He said his client does not intend to issue subpoenas to all of the hundreds of ISPs identified in the discovery order.

Up until recently, very little information could be ascertained about the business. Steele showed a registration document filed with the Illinois Secretary of State’s office on June 5 indicating that Mark Lutz is head of the company, based in Belleville.

The business was originally registered in the Island of Nevis in December 2012, a month before the lawsuit was filed.

Also in court today was defendant Hubbard’s attorney, Adam Urbanczyk of Chicago, who sat behind Steele.

Urbanczyk did not speak at the hearing, nor identify himself after Gleeson asked if those in the audience were present as observers.

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