Case: 1:11-cv-09062 Document #: 37 Filed: 07/30/12 Page 1 of 6 PageID #:202


HARD DRIVE PRODUCTS, Plaintiff, v. DOES 1-48, Defendants.

Case No. 1:11-cv-09062 Honorable Robert M. Dow, Jr.

Magistrate Judge Young B. Kim


Defendant identified as Internet Protocol Number (November 30, 2011), through his counsel Greer, Burns & Crain, Ltd., moves this Court for a protective order, and states as follows: FACTS The present Defendant previously filed a Motion (Dkt. 14) and a Supplemental Motion (Dkt. 19) to quash a subpoena sent to AT&T, in order to protect his personal information. On June 14, 2012, this Court denied Defendant’s motion (Dkt. 28), however, on page 12 of the Memorandum Opinion and Order, this Court stated that the circumstances in this case “might be particularly appropriate for the issuance of a protective order allowing any information released by the ISPs to be treated as confidential for a limited duration.


Case: 1:11-cv-09062 Document #: 37 Filed: 07/30/12 Page 2 of 6 PageID #:203

The Court may recall that in the Motion and Supplemental Motion described above, the Defendant, while remaining anonymous, provided a declaration explaining his innocence relative to the accusations contained in the Complaint. In fact, the Court cautioned the Plaintiff against continuing against this defendant under the strictures of rule 11 by stating: “Going forward, however, Hard Drive should be particularly mindful that this defendant has submitted evidence casting doubts on the merits of its allegations with respect to him. Before naming this defendant in an amended complaint or otherwise moving forward against him, Hard Drive must consider long and hard whether doing so will comport with Rule 11(b), which states that an attorney submitting any filing to the court certifies that it is not ‘presented for any improper purpose, such as to harass’ and that ‘the factual contentions have evidentiary support.’ Naming the defendant in violation of those certifications could subject Hard Drive to sanctions. F.R.C.P. 11(c).” (Dkt. 28). This Defendant, in the motion to quash and in his declaration stated the need for confidentiality to protect his personal information. (Dkt. 14-1 paragraphs 16-18). Defendant, through counsel, has offered to the Plaintiff to have a court appointed expert examine his computer equipment (See Exhibit 1 to Declaration of Kevin W. Guynn) and also to confidentially depose the Defendant to explore the basis for his declaration (see Exhibit 2 to Declaration of Kevin W. Guynn). Plaintiff has refused both offers by the Defendant. Also, following receipt of the Court’s Memorandum Opinion and Order, Defendant sought the Plaintiff’s agreement to a protective order, as suggested in the Court’s decision, but the Plaintiff also refused this request.


Case: 1:11-cv-09062 Document #: 37 Filed: 07/30/12 Page 3 of 6 PageID #:204

Attached as Exhibit 3 to the Declaration of Kevin W. Guynn is a copy of the correspondence from Defendant’s counsel to Plaintiff’s counsel providing the terms of a potential protective order. In response, Plaintiff’s counsel provided a phone message which stated “Hello this is John Steele. I received, or our office received, your letter asking that we somehow agree to keep your client’s information confidential. Um, no. You guys have filed your silly motions to quash which were thrown out, of course, like they all are, and when we get your client’s information back we’re going to name him. So, that’s what we do here. If you think somehow Judge Kim can somehow do a protective order on a case he’s not even involved in, that will be a first in judicial history. Otherwise, you know, either your client can settle or move forward with the litigation. That’s how our judicial system works. Alright, thank you.” (Declaration of Kevin Guynn, Paragraph 5). Also, Plaintiff’s counsel sent a letter to Defendant’s counsel refusing the request which is attached as Exhibit 4. ARGUMENT Defendant requests that the Court issue a protective order in this case which maintains Defendant’s personal information (name and address) confidential until the Plaintiff presents this Court with prima facie that this individual defendant, and not just his wireless modem, which Defendant has stated in his declaration apparently was used without his consent if copyrighted material of the Plaintiff’s was downloaded though that modem. Defendant has offered to Plaintiff the Defendant’s computers to review and has also offered Defendant’s testimony via a deposition to be taken by Plaintiff’s attorney, which are the two avenues through which Plaintiff needs to explore if it is to establish that this Defendant, and


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not someone else, actually downloaded the copyrighted material of the Plaintiff, if in fact that occurred at all. Since Plaintiff has refused both of these offered approaches, it appears that the Plaintiff is not interested in determining the truth of the allegations of the Complaint, but rather is planning to threaten the Defendant with public exposure and accusation in an attempt to coerce this Defendant to pay money to the Plaintiff to settle this lawsuit. This Defendant requests that this Court not be a party to such an obvious shake down of this Defendant, and instead, exercise the Court’s discretion and inherent authority to maintain this Defendant’s identity under seal until the Plaintiff can present evidence to this Court that this Defendant individually downloaded the copyrighted material as asserted by the Plaintiff in the Complaint and as required to successfully assert a claim of copyright infringement. The Court has the inherent authority to maintain the Defendant’s identity under seal pending a determination that the Defendant has actually infringed Plaintiff’s copyright. While it is true that judicial proceedings are to be public and open, and the concealment of a party’s identity impedes public access to the facts of the case, the Seventh Circuit has recognized that a party can rebut this by showing the harm to the defendant exceeds the harm from concealment. Doe v. City of Chicago, 360 F. 3d 667, 669 (7th Cir. 2004). While in that case the Court did not permit the plaintiff to remain anonymous, it was only because the Court found that the plaintiff had no basis for proceeding anonymously. In the present case, the Plaintiff has alleged that the Defendant downloaded an adult video, an act that the Defendant has stated in his declaration is repugnant to him and his religion. The mere association of the defendant by name, with this type of activity would be extremely harmful to this Defendant, as he has declared (Dkt 14-1) and the harm to the public of not learning the identity of this Defendant during the proceedings of this litigation would be of only


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minimal harm. If the Plaintiff is unable to establish copyright infringement by this Defendant, just the association of his name with the proceedings would still be harmful to the Defendant, and the public would not be benefited at all. Only if the Plaintiff is able to establish liability of Defendant of the alleged acts would the public possibly have any interest or benefit in learning Defendant’s identity. Therefore, a balancing of the harms, at least up through a determination of liability for acts actually performed by this Defendant, results in a finding that this Defendant would have a greater harm if his identity were publically associated with this litigation than the harm to the public in not being aware of his identity during the proceedings. Hence, the identity of this Defendant should remain anonymous during the litigation and until the Plaintff can establish actual infringement by this Defendant. In conclusion, Defendant requests that this Court require that any personal information relating to Defendant provided to Plaintiff be maintained confidential and under seal in Court documents during the pendency of this action. Dated this 30th day of July, 2012. Greer, Burns & Crain Ltd. Attorneys for Defendant, Internet Protocol Number (November 30, 2011),

_____/s/ Kevin W. Guynn_____________ Kevin W. Guynn Greer, Burns & Crain, Ltd. 300 South Wacker Drive, Suite 2500 Chicago, Illinois 60606 312.360.0080 312.360.9315 (facsimile)


Case: 1:11-cv-09062 Document #: 37 Filed: 07/30/12 Page 6 of 6 PageID #:207

CERTIFICATE OF SERVICE I hereby certify that on the 30th day of July, 2012, I will electronically file the foregoing with the Clerk of the Court, using the CM/ECF system. I will also serve a copy of the foregoing Notice and Motion on AT&T Internet Services via their fax number 919-319-8154, as per their Notice letter.

Greer, Burns & Crain Ltd. Attorneys for Defendant, Internet Protocol Number (November 30, 2011)

_____/s/ Kevin W. Guynn_____________ Kevin W. Guynn Greer, Burns & Crain, Ltd. 300 South Wacker Drive, Suite 2500 Chicago, Illinois 60606 312.360.0080 312.360.9315 (facsimile)


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