P2P Shakedown Lawyers Apparently Still Sending Subpoenas To Get Info On Defendants Who Had Cases Dismissed

from the there's-an-ethical-issue-here dept

Fri, Feb 25th 2011 10:32am — Mike Masnick

About a month ago, we pointed out an effort by an anonymous concerned citizen who has been tracking the massive increase in these P2P file sharing shakedown lawsuits, that are all about sending "pre-settlement" letters and getting people to pay up, rather than really taking all these people to court. So far, the courts have been pretty good about dumping many of the cases that involved thousands of defendants, noting that it makes little sense to put them all together in a single case. The person who made that epic spreadsheet is continuing to keep it updated, and it shows about 110,000 people sued:

Of course, what this also shows is that approximately 40,000 defendants have been dropped from these cases, mainly after judges pointed out how bogus it was to join so many defendants into single cases. However, the EFF is noting that it's received reports that some of the law firms involved in these schemes may still be sending subpoenas to defendants already dismissed from cases. Similar to Evan Stone's sending subpoenas before a judge had okayed it, this suggests a massive breach of legal ethics. Sending a subpoena on someone that a judge has already dismissed from the case? That seems like a strategy for trouble.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: ethics, file sharing, lawyers, shakedown, subpoenas

28 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

The eejit (profile), 25 Feb 2011 @ 10:33am

That seems like a ripe opportunity for them to be cock-punched in the wallet.
[ link to this | view in chronology ]
Anonymous Coward, 25 Feb 2011 @ 10:35am

A subpoena is only a summons for you to appear at court. It does not mean that you have been charged with anything. For example a witness can be served a subpoena to appear in court
[ link to this | view in chronology ]
- The eejit (profile), 25 Feb 2011 @ 10:44am
  
  Re:
  The issue is that, for some of those subpoenas, there is no need to attend court, as a judge has dismissed the case completely. And that's ethically wrong.
  [ link to this | view in chronology ]
- Anonymous Coward, 25 Feb 2011 @ 11:10am
  
  Re:
  Right. And the potential defendants themselves aren't being subpoenaed. Their ISPs are. The potential defendants are only receiving notice from their ISPs that their subscriber information is the target of a subpoena issued to that ISP. (I say "potential" defendants, since technically, they're not named defendants yet.)
  
  Cutting through the FUD, the only real issue is whether any law firm is submitting new subpoenas to ISPs related to potential defendants who have already been dismissed. Show me that and you've shown me a headline. (Like with Mr. Stone (allegedly).)
  
  For all we know, these are subpoenas that were issued before the Doe defendants in question were dismissed, right?
  [ link to this | view in chronology ]
  - Anonymous Coward, 25 Feb 2011 @ 11:53am
    
    Re: Re:
    Even if they can show it, Mike would also have to show that the lawyers know exactly what defendants match which IP / date that they are asking the ISPs to provide. It's sort of hard to match the Does to the IP numbers until you have the information.
    
    Seems like someone (techdirt like) is jumping the gun, looking for a fast slam.
    [ link to this | view in chronology ]
    - Anonymous Coward, 25 Feb 2011 @ 12:39pm
      
      Re: Re: Re:
      Well, in the complaints, each Doe defendant is identified by their IP address and by their ISP. I think it's a simple matter to keep track of which Doe defendants are identified in any given subpoena. Once a Doe defendant is dismissed, is it anyone's duty to inform an ISP that has already been issued a subpoena of the dismissals? If so, whose duty is it, the clerk of the court or the plaintiff? I dunno.
      [ link to this | view in chronology ]
      - Anonymous Coward, 25 Feb 2011 @ 4:36pm
        
        Re: Re: Re: Re:
        Only if the reply with the IP, date, and their name and information. If it is like some of the examples we have seen here, they provide their names and claim innocence, but don't seem to provide the data required to match.
        
        The subpoena will resolve the issue, as at that point they may actually have names to match to dates and IPs to work from.
        
        It's nice to know that Mike thinks that the lawyers are somehow able to devine things out of thin air.
        [ link to this | view in chronology ]
        
        vivaelamor (profile), 26 Feb 2011 @ 6:24am
        
        Re: Re: Re: Re: Re:
        "If it is like some of the examples we have seen here, they provide their names and claim innocence, but don't seem to provide the data required to match."
        
        You don't appear to understand what's going on. The 'shakedown' lawyers are being forced to drop certain Does (potential defendents) from the lawsuits, at which point they only have the IP details and haven't necessarily been contacted by anyone. Some of these Does are apparently receiving letters from their ISP that correspond to case ID's that are listed in the database of dismissed cases.
        
        Further information, apart from the date of the subpeaona, is irrelevant. The lawyers are apparently issuing subpeaonas for cases which have been dropped or dismissed. The cases wouldn't, in all logic and common sense, be dismissed by the subscriber details (which are unknown at that point), but by the case IDs.
        
        Please please tell me you understand now and aren't claiming the lawyers need to have special powers to read the case IDs.
        [ link to this | view in chronology ]
  - harbingerofdoom (profile), 25 Feb 2011 @ 2:50pm
    
    Re: Re:
    wanna know how i can tell you didnt read the article linked in this story?
    [ link to this | view in chronology ]
  - vivaelamor (profile), 26 Feb 2011 @ 6:04am
    
    Re: Re:
    "Show me that and you've shown me a headline. "
    
    The EFF claim to have received reports from Does (potential defendents) whose cases have been dismissed. I can understand if you don't believe the EFF's claims, but otherwise I'm unsure what you're getting at.
    
    "For all we know, these are subpoenas that were issued before the Doe defendants in question were dismissed, right?"
    
    I believe the EFF wouldn't be bringing the issue up if that were a likely case. Again, maybe you don't trust the EFF, but there has been no serious suggestion so far that they're making the issue up.
    [ link to this | view in chronology ]
    - Anonymous Coward, 26 Feb 2011 @ 4:34pm
      
      Re: Re: Re:
      The EFF claim to have received reports from Does (potential defendents) whose cases have been dismissed. I can understand if you don't believe the EFF's claims, but otherwise I'm unsure what you're getting at.
      
      I believe the EFF wouldn't be bringing the issue up if that were a likely case. Again, maybe you don't trust the EFF, but there has been no serious suggestion so far that they're making the issue up.
      
      The EFF is only claiming "that some Does are still receiving notices from their ISP�s informing them that their identities are being sought in relation to" cases where that Doe was dismissed.
      
      The EFF is not saying that any lawyer is inappropriately submitting any new subpoenas to any ISPs after such a dismissal. The only one suggesting that is Mike. The EFF wouldn't ever stoop that low.
      
      The fact is we don't know either way whether any lawyers are doing anything wrong here.
      
      It seems just as likely to me--in fact more likely--that these subscribers are receiving notices pursuant to subpoenas that were issued before these Doe defendant's were dismissed. It takes time for the ISP to get the subpoena, look up the subscriber's information, and then inform the subscriber that they are the target of the subpoena.
      
      This is just a standard Techdirt FUD piece.
      [ link to this | view in chronology ]
      - vivaelamor (profile), 27 Feb 2011 @ 11:58am
        
        Re: Re: Re: Re:
        'The EFF is only claiming "that some Does are still receiving notices from their ISP�s informing them that their identities are being sought in relation to" cases where that Doe was dismissed.'
        
        Was that an echo?
        
        "The EFF is not saying that any lawyer is inappropriately submitting any new subpoenas to any ISPs after such a dismissal."
        
        I guess they're just looking into the issue for fun then.
        
        "The fact is we don't know either way whether any lawyers are doing anything wrong here."
        
        I don't see where Mike implied that any definite wrongdoings were going on.
        
        "It seems just as likely to me--in fact more likely--that these subscribers are receiving notices pursuant to subpoenas that were issued before these Doe defendant's were dismissed. It takes time for the ISP to get the subpoena, look up the subscriber's information, and then inform the subscriber that they are the target of the subpoena."
        
        Why does that seem more likely? You haven't given us any new information and there is no logic I can see to support the statement.
        [ link to this | view in chronology ]
- Anonymous Coward, 25 Feb 2011 @ 11:15am
  
  Re:
  By the way... Way to go really FUDing this one out! Unless you can show us a subpoena that was dated subsequent to the Doe defendants in question being dismissed, there is not necessarily foul play. I know you qualified your statements, but the implication of what you think is perfectly clear. You are quite good at what you do. :)
  [ link to this | view in chronology ]
  - Anonymous Coward, 25 Feb 2011 @ 11:16am
    
    Re: Re:
    To Mike, of course. :)
    [ link to this | view in chronology ]
  - :Lobo Santo (profile), 25 Feb 2011 @ 11:18am
    
    Re: Re:
    (Psst! FUD is an acronym for "From Urban Dictionary", right?)
    [ link to this | view in chronology ]
    - Anonymous Coward, 25 Feb 2011 @ 11:22am
      
      Re: Re: Re:
      FUD: Fast....Underground...Donut...
      
      Uhhhmmmm, Donuts...(drools)
      [ link to this | view in chronology ]
      - Dark Helmet (profile), 25 Feb 2011 @ 11:24am
        
        Re: Re: Re: Re:
        FUD: Female...Underwear....Design...
        
        Uhhhmmmmm, designing slingshots...(drools)
        [ link to this | view in chronology ]
    - Anonymous Coward, 25 Feb 2011 @ 11:37am
      
      Re: Re: Re:
      I THOUGHT IT WAS SHORT FOR FUDDRUCKERS?!?
      [ link to this | view in chronology ]
- Adam Wasserman (profile), 25 Feb 2011 @ 3:04pm
  
  Summons to appear in court. OR....
  Actually there are two types of subpoenas and I suspect the ones served on the ISPs are subpoena duces tecum, which is an order to produce evidence.
  
  What that would mean is the lawyers are fraudulently obtaining confidential information. That of course is an abuse of judicial process and is frowned upon. A lot.
  [ link to this | view in chronology ]
  - Anonymous Coward, 25 Feb 2011 @ 4:04pm
    
    Re: Summons to appear in court. OR....
    That's right. This is an ISP being hit with a subpoena duces tecum to produce its subscribers' identifying information.
    
    It's only fraudulent if the subpoena is issued after the plaintiff has lost his ability to issue it. We don't know if that's the case for sure.
    [ link to this | view in chronology ]
Thomas (profile), 25 Feb 2011 @ 11:18am

lawyers..
are far more concerned with "earning" money rather than paying any attention to such silly silly things as ethics or legal procedures. As long as they can get away with it most of the time there's no reason for them to change their tactics. If they collect 500,000 from pre-settlements while being fined 25,000 by judges for improper behavior they are still ahead of the game.
[ link to this | view in chronology ]
- Christopher (profile), 25 Feb 2011 @ 11:21am
  
  Re: lawyers..
  Correction: SOME layers are more concerned with earning money, and they give the vast majority of lawyers a bad name because of it.
  [ link to this | view in chronology ]
  - :Lobo Santo (profile), 25 Feb 2011 @ 11:24am
    
    Re: Re: lawyers..
    Lawyers produce nothing which benefits the GNP or the GDP; therefore they do not earn money, they only take it from others.
    [ link to this | view in chronology ]
    - The eejit (profile), 25 Feb 2011 @ 1:48pm
      
      Re: Re: Re: lawyers..
      Lawyers, when done right, are a service to the community.
      
      When done badly, bowever, they are nothing more than tapeworms on the societal cause. These guys mooch more than your average student.
      [ link to this | view in chronology ]
      - el_segfaulto (profile), 25 Feb 2011 @ 3:29pm
        
        Re: Re: Re: Re: lawyers..
        Lawyers are like maggots, they are a necessary part of life. But if you see too many of them it's an indication that something is amiss.
        [ link to this | view in chronology ]
      - Anonymous Coward, 25 Feb 2011 @ 4:43pm
        
        Re: Re: Re: Re: lawyers..
        Lawyers, when done right, are medium to medium rare and cooked on an open fire!
        [ link to this | view in chronology ]
        
        Ron Rezendes (profile), 25 Feb 2011 @ 4:44pm
        
        Re: Re: Re: Re: Re: lawyers..
        Sorry - forgot to log in for that recipe!
        [ link to this | view in chronology ]
Jackie, 25 Feb 2011 @ 10:31pm

Patentable business scheme?
I just thought of something! And I am NOT saying that these people are doing it. But it would be a great business model to buy an ISP, buy a few videos with really skanky titles (the type people would be embarrassed do let their friends, family and business associates know about), use lousy software so that people could download the videos and then sue them for piracy. It would be a kind of high tech badger game!!! Can I patent this idea?
[ link to this | view in chronology ]