P2P lawyer accused of issuing ISP subpoenas without court approval

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A few weeks ago, a man headed home from work and found that his wife had already opened a letter from their ISP, Comcast. The letter said that the man's IP address had been fingered by Mick Haig Productions, a German film producer suing 670 people in a Dallas federal court. Mick Haig suspected our unnamed protagonist of sharing a pornographic film called Der Gute Onkel (The Good Uncle) and had gone to Comcast in order to unearth his identity. Awkward conversations between husband and wife no doubt ensued.

The man tried to find out exactly what was going on. He eventually got in touch with Paul Allen Levy at Public Citizen, a DC nonprofit that had been asked by the judge in the Mick Haig case to step in and stand up for the rights of the anonymous defendants.

The man "was really quite alarmed," Levy tells me, to be accused of downloading "this junk." Now he's "living in fear" of what might come next—and he denies even downloading the film in the first place.

But it wasn't the protestation of innocence that caught Levy's attention; it was the very fact that subpoenas in the case had already been mailed to Internet providers. The judge in the Mick Haig case had not yet allowed expedited discovery to proceed, Levy says, and had therefore never signed off on subpoenas. Yet Mick Haig's lawyer, the Denton, Texas-based Evan Stone, appeared to have sent them out anyway.

"He acted as if it didn't matter what the judge said," Levy says. He began calling around to the ISPs, who hadn't questioned the documents; indeed, at least one had begun to turn the names over to Stone.

Levy was furious. He dashed off a tough letter (PDF) to Stone, accusing him of concealing from Comcast and others "the fact that Judge Godbey had never granted you permission to serve subpoenas in the case… We are very disturbed by this information… It is, as well, arguably a serious abuse of process that may be independently actionable."

Several days later, Stone withdrew the entire case with prejudice, meaning that it can't be brought again. His motion to dismiss took the unusual step of blaming the judge for putting Levy and a pair of EFF lawyers on the case in the first place:

The Court appointed attorneys ad litem for the Defense. Rather than choosing competent local counsel experienced in intellectual property law, the Court appointed a trio of attorneys renowned for defending Internet piracy and renowned for their general disregard for intellectual property law. Additionally, instead of instructing these attorneys to engage Plaintiff's counsel in a discovery conference which would allow the case to move forward, the Court ordered attorneys for the Defense to respond to Plaintiff's Motion, for which the Court has yet to make a ruling.

The response of the Defense was largely beyond the scope of the Discovery Motion at issue, raising defenses as absurd as the notion that a Defendant's choice of what movie to illegally download from the Internet is "protected speech" under the First Amendment. Moreover, the Defense provided no alternatives for Plaintiff to cure the harm inflicted on it by Defendants.

Now, four months after the initial filing of this case, with little chance of discovery in sight, Plaintiff feels it has lost any meaningful opportunity to pursue justice in this matter. As such, Plaintiff has notified all relevant Internet service providers that this case is being dismissed and hereby notifies the Court of the same.

Not that dismissal will necessarily get Stone off the hook if he did abuse the legal process. Levy could ask for attorney fees, or request sanctions against Stone. "I'm inclined to make him answer our questions," Levy says, about just how these subpoenas were sent and whether Stone managed to collect settlement money from anyone.

I spoke with Stone at length by phone about his business, though he declined to address any of the specific allegations resulting from the Gute Onkel case.

To Levy, the case shows the importance of due process. Without it, lawyers are free to "terrify people," he says.

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