A brief look at CP Productions suits

CP Productions has a number of suits ongoing. Let’s check in on a random selection of them.

There’s nothing special about the first suit, 1:12-cv-01505 in the Northern District of Illinois, CP Productions v. Does 1-38, litigated by Paul Duffy. Early discovery was granted and the court noted:

“Plaintiff’s motion for leave to take discovery prior to the Rule 26(f) conference 6 is granted, without prejudice to the ISPs or the Does objecting to the discovery Plaintiff would like to take.”

In May, Plaintiff reported that subpoenas were issued to the ISPs. Nothing of note has happened since. No defendants have been dismissed from the case. If defendants were settling, I’d expect to see dismissals with prejudice. Perhaps the ISPs have yet to respond to the subpoenas.

The parties in this case probably feel like they’re playing “Ring Around the Judge”, as the case was reassigned from Judge Feinerman to Judge Lee, to form Judge Lee’s initial calendar. A few days later, Judge Lee recused himself from the case and it went back to Judge Feinerman.

The second suit, 2:12-cv-00616 in E.D. Cal. and litigated by Gibbs, is far more interesting (RECAP docket). It employed a different strategy. Rather than filing against a number of John Doe defendants, the suit was filed against a single John Doe, and 115 “co-conspirators” (Complaint). The co-conspirator’s allegedly infringed over a period of about three months (Exhibit B, IP Addresses). For the “settlement business model” to work with this strategy, Plaintiff has to essentially convince the court that it should allow early discovery to learn identifies of the one defendant AND the co-conspirators. Note the co-conspirators  are not parties to the suit.

An Ex Parte application for discovery was filed and it was granted by the court on 3/19/12.

Nick Ranallo, representing two of the John Does co-conspirators, entered a Motion for Protective Order for each of his clients. Ranallo’s motions not only ask the court to prohibit the relevant ISP from disclosing his client’s information, but to dismiss the case in entirety. Of course, Gibbs opposed. A joint statement was entered by Gibbs and Ranallo. Ranallo makes some great arguments in this document and it’s worth a look.

Indeed, Congress has specifically recognized that ISP subscribers have a privacy interest in the personally identifying information kept by ISPs, and explicitly stated the same in the H.R. 98-934 at *79 (The Congress is recognizing a right of privacy in personally identifying information collected and held by a cable company…”).

Judge Moulds granted the motions.

The order deserves further attention, as it decimates the co-conspirator strategy:

“…the court finds that reconsideration is warranted on the ground that the co-conspirator discovery is unnecessary to identify the named John Doe defendant.”

“…the court finds that, even when acknowledging the risk that the ISPs used by the alleged co-conspirators could destroy the information plaintiff seeks and thereby preclude plaintiff from discovering their identities, plaintiff failed to show good cause to seek discovery as to the co-conspirators.”

“The March 19, 2012 order is vacated to the extent it grants plaintiff leave to conduct expedited discovery as to the non-party co-conspirators.”

“Insofar as any personal identifying information of the non-party co-conspirators has already been provided to plaintiff from the ISPs, plaintiff is prohibited from communicating with these subscribers.”

This wasn’t the end, though. Gibbs continued to go after the defendant, entering a Motion for an Order Holding Defendant in Civil Contempt.

I’ll leave the formation of any opinions on this motion to the reader; my own may be unpleasant to read.

The non-party co-conspirator model seems to have failed in this case. How far will Gibbs pursue the last defendant?

Let us head to the south west and examine a suit in Arizona, 2:12-CV-01183. This suit, litigated by Steven Goodhue, was filed against a single John Doe defendant. The complaint included a number of joint tortfeasors. In other words, the strategy is the same as I mentioned in the prior suit; joint tortfeasors and co-conspirators can be considered one and the same.

The court allowed ex parte discovery for only the John Doe defendant and NOT the joint tortfeasors. Because this is surely a threat to the “settlement business model”, Goodhue asked the court to amend its order to allow him to serve subpoenas on the joint tortfeasor’s ISPs as well, or at a minimum, to compel the ISPs to protect the joint tortfeasor information. Both requests were denied by Judge Gleason.

Goodhue wasn’t giving up. Shortly later, he filed an ex parte Motion for Protective Order, again requesting that the ISPs be compelled to preserve the joint tortfeasors’ information. This motion was granted.

Enter the ISPs. On 9/14/12, eleven ISPs entered a joint Motion for Reconsideration. It’s worth a read, for this motion attacks the “settlement business model” and asks the court to vacate the prior order of protection.

“This particular case is another example of current plaintiff’s counsel’s relentless ‘mass discovery’ efforts.”

“In reality, what CP seeks is not “discovery” at all. Similar to the plaintiffs in hundreds of comparable cases, CP is actually pursuing a shopping list of names and contact information that it can use to coerce settlement.”

The court granted the motion for reconsideration.

With the joint tortfeasors seemingly protected and their identifies safe, will Goodhue pursue the remaining defendant?

In conclusion, of the three suits CP Productions suits discussed, one used the familiar joined-Does strategy, and the other two were filed against single John Does and listed non-party co-conspirators. The joined-Doe strategy appears to be working in the first case, unless the ISPs intervene or something else happens. The co-conspirator strategy seems to have failed in the latter two cases.

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