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.

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

28 Comments

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

That seems like a ripe opportunity for them to be cock-punched in the wallet.
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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
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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.
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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?
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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. :)
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Anonymous Coward, 25 Feb 2011 @ 11:16am

Re: Re:
To Mike, of course. :)
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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.
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:Lobo Santo (profile), 25 Feb 2011 @ 11:18am

Re: Re:
(Psst! FUD is an acronym for "From Urban Dictionary", right?)
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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.
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Anonymous Coward, 25 Feb 2011 @ 11:22am

Re: Re: Re:
FUD: Fast....Underground...Donut...

Uhhhmmmm, Donuts...(drools)
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Dark Helmet (profile), 25 Feb 2011 @ 11:24am

Re: Re: Re: Re:
FUD: Female...Underwear....Design...

Uhhhmmmmm, designing slingshots...(drools)
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: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.
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Anonymous Coward, 25 Feb 2011 @ 11:37am

Re: Re: Re:
I THOUGHT IT WAS SHORT FOR FUDDRUCKERS?!?
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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.
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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.
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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.
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harbingerofdoom (profile), 25 Feb 2011 @ 2:50pm

Re: Re:
wanna know how i can tell you didnt read the article linked in this story?
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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.
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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.
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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.
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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.
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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!
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Ron Rezendes (profile), 25 Feb 2011 @ 4:44pm

Re: Re: Re: Re: Re: lawyers..
Sorry - forgot to log in for that recipe!
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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?
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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.
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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.
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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.
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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.
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