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MEMORANDUM IN SUPPORT OF MOTION TO QVASH AND/OR MOTION f'OR PROTECTIVE
Internet service providers ("ISPs") denoted by Plaintiff as Embarq Communications, Inc. and Verizon Online quashing Plaintiffs
(collectively, the "Moving ISPs") move this Court for an order
Subpoenas for Deposition and/or granting a protective order with respect to of them in this action. AT&T Internet Services,
and all subpoenas that have been or may be served on because Exhibit
B of Plaintiffs
Bellxouth.net, Cellco Partnership d/b/a Verizon Wireless, Century tel Internet Holdings Inc., Cox Communications, Inc., Qwest Communications Company ISPs") as entities from whom the Plaintiff, Lightspeed also
and Wayport.Inc. (the "Joining Media Corporation ("Plaintiff" or relief as set on referred to
join in this Motion or may be are
to any subpoenas that Moving and
BACKGROUND At last count. Plaintiff s counsel Prenda
its predecessor "John Doe" subscribers
lawsuits implicating thousands
11 L 10f121
it handful or to account subscribers into paying embarrassment thousand so dollars to avoid the can coerce the identified of engaging explicit material individuals
counsel In the absence to damages, to scrutiny or
with the sexually
of adversarial litigation, nor the evidence debate.
neither the plaintiffs' implicating
alleged rights or alleged entitlement are subject
the "John Doe" defendants
As a number of courts have observed. to the jurisdiction lawsuit. Moreover,
the "John Does" are often not likely
or venue of the forum court and/or are not properly joined the "John Does" that Plaintiffs counsel seeks to identify
together in a
(and then coerce would not be
are the ISPs' Internet account subscribers, who in many instances , a roommate.
the same person as the user of an Internet account etc.) with respect to any allegedly acts.
spouse, child, Wi-fi
proceeding thousands individual are likely to is nothing more than a a connection to proceeding without to whether joined in
forum or to be
of Bart Huffman
of Lauren M. Fincher
11 L 683 2 of 121
Rule defendants have appeared" Plaintiff's and unless
the furtherance not constitute "good cause" for
counsel's nationwide settlement campaign
the discovery sought. Assuming arguendo that Plaintiff could demonstrate "good cause" to identify single
John Doe defendant discovery seeking the identification of numerous other alleged wrongdoers does not have any relevance to the pending action against ]01131 Doe. Further, Plaintiff cannot create relevance or "good cause" as to thousands of unrelated, unidentified individuals by
suggesting that they may have "conspired" with John Doe. Plaintiff's suggestion in this regard is untenable on In suing face and falls far short of asserting an actionable conspiracy under Illinois law. one John Doe. Plaintiff
serious personal jurisdiction, venue, of other rights In essence.
and joinder problems, and to deprive the so-called "co-conspirators" were parties in
Plainti ff wants to
individuals not want
personally identifiable information, but individuals to be actually considered by the COUli.
reveals that a sample Complaint are associated with locations in fourteen (
II L 6~3 Page 3 of 121
an and Order Granting to grant Persons
et al., No. l1-L-583
(Cir. C1. of Sf. Clair
. 9, 2011), Huffman All. ~ 4, and the proceeding has been staved
3. Certain of the Objecting the appellate
ISPs have appealed Order of December
that order 29, 201 I,
T .::; _-
Lightspeed Media Corp.
,1 " et G., N·0,
11 - ()')6"l1 (Ill r\.pp .. C+'::; tn i, .• ..
Dis . ist.),
Ex. 4; see also Order
Internet Servs., et aT., No. 5-11-0566
reconsider grant of stay pending Huffman
(Ill. App. Ct. 5th Dist.) (denying Petitioner's motion
Petitioner's to dismiss
motion to appeal
appeal and denying ~ 4,
lack of jurisdiction),
Plaintiff has also attempted to abuse a similar procedure in Florida known as a "pure bill e.g., Complaint in Pure Media No. I lth Cir. Ct. Oct Because thai procedure also requires notice and an opportunity for the discovery to be Plaintiff its "bill naming numerous John Doe course does not seek sought and obtained an ex parte order purporting to permit the service identification subpoenas on numerous ISPs, See ~ 5, Ex. 6. 0ppOS1l1g a that and three other improper "bill of to a single judge, the Prenda firm sent a letter to counsel the for subscriber House that such "immediately withdraw" their motions to quash and for a protective order in those proceedings. See id. ~ 5.
!I L 683
AT are aware
Undated Subpoena to Verizon Online LLC with a corresponding check in the amount of $20.20 payable to Verizon. The Subpoena Attachment lists approximately one hundred (100) IP addresses. A spot check of ten (10) of those IP addresses reveals none that are associated with - rather. are associated with "Qwest" and one (1) is associated with "T'elus".4
Undated Subpoena to Verizon with a corresponding check in the amount payable to AT&T Internet Services.5 The Subpoena Attachment references approximately three hundred and seventy-five (375) IP addresses. Undated Subpoena to Verizon with a corresponding check in the amount 820.20 payable to Comcast Cable Communications Management." The Subpoena Attachment references approximately one thousand one hundred (1,1 (0) IP addresses. A spot cheek of ten of those IP addresses reveals none that are associated with Verizon rather, all ten (10) are associated with "Comcast Cable Communications Holdings".! Fincher AfC IJ 5. True and correct copies of the above-described subpoenas arc attached as Exhibits Affidavit that to
11 appears thai
Fincher submitted herewith. Those subpoenas
any other subpoenas
or may be served on any as
the Objecting ISPs in this proceeding arc
Because the tendered check is made payable to an fails to comply the witness requirement set
, this Court Rule 204.
( Because the tendered check is made to an other the entity, fails to with the witness fee requirement set forth in Supreme Court Rule 204. It appears that this subpoena was issued to the wrong ISP.
11 L 683 Page 5 of ]21
or more pornographic cause set Plaintiff "used location to information ~l 5.) and belief' technology to trace Defendant's
" (ld ,;, 4, 1
Plaintiff alleges that venue is proper because "upon "resides in Clair County. Illinois."
the single John Doe Defendant
With respect to some sixty-five information geolocation jurisdiction
Exhibit B of the Complaint), to determine whether
does not allege that it has "used
it has "good cause for asserting that personal
is proper" as to any of them.
4-6, 18.) Nor does Plaintiff say where it is
informed and believes any of the so-called "co-conspirators" Plaintiff Complaint Plaintiff alleges that it "may elect, after learning "to include never Defendant's co-conspirators it
facts" to seek to amend the
as defendants to learn that
in this action,"
states what "additional than
the 50-called to
s other contentions to a
f7 1 1
ii j j_
are as follows:
683 6 of 121
"Defendant Defendant's co-conspirators.. used [unspecified, multiple] hacked passwords to gain unlawful access to the member's section Plaintiffs [unspecified, multiple] websites." (Id. ~ 1 "They even downloaded Plaintiffs [unspecified] private content and disseminated that information (sic) to other unauthorized individuals." (ld.; see also id. ~ 4 .) that it engaged Arcadia Data Security called Trader Hacker and password Consultants, and Intruder sharing LLC Arcadia"). Finder
and that Arcadia utilized forensic
2.0 to "detect
on Plaintiffs allegedly
(ld. ~~ 14, 15.) Although
and files allegedly downloaded
Plaintiff provides by the
a partial listing of websites Plaintiff
J01m Doe Defendant,
does not provide A and or was
any such information Plaintiff
for any of the so-called "co-conspirators."
does not specify any password
that was allegedly hacked by the John Doe Defendant nor does Plaintiff state whether users. any B.) password
any of the so-called "co-conspirators," shared among particular group of
iei. ~~ 1 18.
Finally, Plaintiff identified
as well as tile
by their IP addresses
times they unlawfully above, courts repeatedly IP address) at a given date
multiple] websites." using an Internet account
that the individual
11 L 683 7ofl21
that also as
~". , 6
Plaintiff does not withdraw all pending subpoenas at this point, but decides to do so after the ISPs file motions for a protective order and/or to quash (as has been our experience in other, similarly improper proceedings), please advised that the will nonetheless continue to seek recovery of their costs and attorneys because those costs and attorneys' fees could have been minimized or avoided had Plaintiff withdrawn the subpoenas before such motions were prepared and finalized for filing. In response Objecting
Paul Duffy of Prenda principal
Law, Inc. contacted passed
and OW11er had
Id. ~ 6. 27
Mr. Duffy asked for a couple of additional letter.
days to respond to the Objecting
ld. The Objecting ISPs agreed, and the agreement among counsel was memorialized
Id. ~ 6, 8.
ISPs to withdraw support occasioned by the the subpoenas,
letter dated February 28,2012.
Mr. Duffy did not thereafter even to address the apparent principal was used to Instead, communications lack
of PlaintifT and the author ,; 6. indicated
There Good Cause to Quash the Subpoenas, in that the Seck Information That Not Relevant to Plaintiff's Claims Against the Single Doc Defendant and Cause is Lacking as to the Discovery Concerning Thousands of So-Called "Co-Conspirators". as
quash any subpoena "for
Plaintiff has not demonstrated good cause conspirators" because Defendant
early discovery as to the so-called "co-
such discovery is not relevant to Plaintiff's case against the John Doe claims in this court against the so-called "coimproper discovery demands on the Objecting ISPs
Plaintiff has not asserted voluminous,
conspirators," and (iii)
would be unduly burdensome.
Supreme Court Rule 201(b)( 1) limits discoverable material to that "relevant to the subject matter involved in the pending action." The right to discovery is limited to the disclosure of
matters that will be relevant to the case at hand in order to protect against abuses and unfairness, and a court should deny a discovery request discovery is relevant or 3d 3 8 . 811 1 lead to there is an insufficient
II L 683 9 of] 21
3d 3 L 317
must liable to commences in a ' ... It no a
in worthwhile information. Plaintiff not anything more than conclusory, and inconsistent
allegations concerning the so-called "co-conspirators."
Plaintiff does not specify that any
particular "co-conspirators" interacted with any other "co-conspirators" - or for that matter that of the "co-conspirators" even knows who some or all of the other "co-conspirators" arc. best, Plaintiffs assertions and evidentiary support are limited to alleged wrongdoing bv
individuals acting separately, and are devoid of any indicia of conspiracy. Civil conspiracy is an intentional tort. Eeuter ". Master/lard Intern, Inc., 397 IlL App, 3d 915, 927, 1
1205, 1216 (5th Dist. 2(10). It is defined as "a combination of two or accomplishing by concerted action either an unlawful purpose or Id. (citing v. Owens Corning Fiberglas clements of a conspiracy are
more persons for the purpose
a lawful purpose by unlawful means." 188 IlL 2d 102, 1 720
2d 242, 258 (IlL 1
agreement between two or more persons to participate in an unlawful act, or a manner: an by an unlawful overt act performed
act in an
that Plaintiff has is particularly forensic Compl.,1 4 ("Plaintiff retained of Disclosure Security LLC C Arcardia') to identify used also the owner and Plaintiffj.) Furthermore, as discussed below, Plaintiffs counsel indicated that Plaintiffs owner and purported forensic has recently passed away,
the limited evidentiary
owner is also its purported
683 Page 10 ofl21
measures are no can use a single hacked password... otherwise. Lightspeed ') On Plaintiff s Problems Page, individuals that Plaintiff indicates
eWe track all traffic in our
membership areas, and we use special software to detect when different people are using the same membership password. In fact, Plaintiff has made no showing of any communication or contact at all between the John Doe defendant and any of agreement as to any common scheme. 91 924. 874 2d thousands alleged "co-conspirators," Inc.. let alone any Ill. App. 3d
Redelmann v. Claire
(1 st Dist. 2007) (civil conspiracy complaint must allege
an agreement); see also Buckner v. Atlantic Plant Maintenance, Inc.. 182 Ill. 2d 12, 1 (Ill. cause unsupported 998) (in Illinois, must plead the to his
Plaintiff s civil summarily
a indication that so-called "co-
1 j L 683
as 1 as , 375 Ill. court's "unwillingness" to permit plaintiff to 91 to claims.
927 (Ist Dist. 2007) (noting the where plaintiff "failed to that plaintiff
on a fishing expedition
explain how discovery
will help him overcome the pleading deficiencies'v=-namely
all the elements in his conspiracy counts')
failed to "plead facts that establish
Evitts v. Daimler
Corp., 359 Ill. App. 3d 504, 514 (2005) ("Discovery
cause action has not been stated. 2012 conduct Dist. 15810 regarding
is not necessary
accord First Time
LLC v. Doc. No. CIV
Cal. Feb. 8, 2012) (finding that plaintiff's all of the alleged co-conspirators
"request to and is
is not reasonable
not supported by good cause").
There is No Good Cause for Asserting that Personal Jurisdiction and Venue is Proper as to the So-Called "Co-Conspirators'" or that They Could be Properly Joined in this Proceeding.
the Complaint, Plaintiff that it technology cause on to determine the
John Doe is proper" as to that defendant.
11 L 683 120f121
Millenium v. Doe,
1) (dismissing Doe defendant on personal jurisdiction and venue grounds): Lightspeed Corp. v. Does 1-1000, No. 10-cv-05604
.D. IlL Mar. 31,2(11),
(severing all but
one Doe defendant on the basis Inc. v. lO-cv-06255
improper joinder); Mem. Op. & Order at 2,CP Productions.
.D. IlL Feb. 24, 2011),
No. 32 (denying motion for
reconsideration of the court's earlier order dismissing without prejudice all 300 Doe defendants in part because "there is no justification for dragging into an Illinois federal court,
basis, a host of unnamed defendants over whom personal jurisdiction clearly does not exist more importantly - as to whom [plaintiffj's counsel could have readily ascertained that fact. Plaintiff concedes that it mass discovery herein prior to any assessment whether
joinder is proper as to the thousands conspirators. for
implicated individuals artf-ully referred to as Discov., ("Plaintiff
. suit so long as their joinder is the
L 68] 13 of 121
Plaintiff does not
for a Proper Purpose. to amend suit to sue
across coerced "co-conspirator million dollars identifying information
any the so-called Plaintiff and its counsel could
Courts dealing with similar suits have repeatedly recognized that a given Internet subscriber may not be the individual who was actually using the Internet account in question. Digital Cal.
Inc. v, Doe . ("[Plaintiffs]
S Dist. LEX1S 128033, at *5-6 (N.D,
stated that the true offender
... or the boyfriend if it's a lady:" "Alternatively, the perpetrator might turn out to be a neighbor
in an apartment building that uses shared IP addresses or a dormitory
that uses shared wireless
Courts have also recognized that the sexually explicit subject matter involved, as costs legal counsel, may lead an individual to
regardless of at
culpability. 8 named
L 2011 U.S. Dist. LEXIS
about a suit cases
11 L 683 14 of 121
good cause for involved. IV.
The Suspect Evidentiary Basis of Plaintiffs Evidently No Longer Available to Plaintiff. Plaintiffs Motion Steve Jones.
Motion to Take Early Discovery Is
Leave to Take Early Discovery was supported by the verified According to Mr. Jones' Declaration, he is the owner and sole
Arcadia Data Security Consultants ("Arcadia") and the programmer of the Security System". (Jones Decl, ~ 2.) ..
Hacker and Intruder Evidence Finder 2.0 ('T.H.I.E.F.')
Evidently, Mr. Jones is also the owner of Lightspeed Media Corporation, the Plaintiff in this matter. (Certif of Disclosure); see also Lightspeed Media Corporation Facebook Page,
available at http.z/www.facebook.com/pages/Li ghtspeed- Media-Corporati on/1123 033821 9060 ("Lightspeed Media Corporation of
a company from Glendale,
that operates many Internet pornography . Jones' company Arcadia and obtained IP Plaintiffs thousands so-called "co-conspirators". (Cornpl., 5~ 17 ~
According to Plaintiff s Complaint, are date, time, the Doe Defendant
11 L 6X3
5 of 121
trial or 1).Accordillg1y, it
s Motion to on inadmissible statements
Discovery, and its entire Complaint for that matter, are based contained in an affidavit the evidently deceased Mr. Jones.
Assuming that Mr. Jones has passed away, as represented by Plaintiffs Jones Declaration must be disregarded under Illinois law. serve to support "good cause"
Mr. Jones' Declaration cannot
discovery in this matter. The absence of an evidentiary
Plaintiffs contentions constitutes additional good cause to quash the Subpoenas.
suit sufficient to warrant expedited over
discovery to obtain the personally identifiable information who are not even who are not
thousand Internet single
to have any particular association with alleged to have
involved in any actionable were using the
not even be the individuals were allegedly committed: personal as 10 or venue;
as to and
11 L 61\3 16
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