Monday, November 2, 2015

Dallas Buyers Club Update

Judge Jones is becoming increasingly leery of the Dallas Buyers Club folks here in Seattle.  So let me start by recapping some of the goings on so far.

Dallas Buyers Club started suing John Does here in Seattle back in July of 2014.  Over the subsequent months, Dallas Buyers Club filed about a dozen cases here.  They did the ordinary thing where they asked the judge for authority to get subscribers' names from their ISPs so they could name them in the suit.  The judge granted that request because on in its face it is a reasonable request.  Anyone engaged in legitimate litigation might ask for the same thing.

But after it got those names, DBC didn't amend its complaints to name anyone.  It pushed its “settle or ruin” policy but never actually did what it told Judge Jones it was going to do.  Then later DBC went back to the judge and asked for even more power.  It asked the judge to allow it to force the subscribers – whose names it now had – to provide testimony under oath.  Initially the judge denied that request because DBC didn't provide any details about what exactly it would be asking.  Instead, the judge told DBC to serve whatever subpoena it wanted and either the people served would object or they wouldn't.  But until there was some real definition to exactly what DBC was asking for, there was nothing the judge would do.

DBC chose to interpret the judge's order as authorizing it to serve any subpoena it wanted to demand anything it wanted, no matter how unreasonable.  When people started receiving those subpoenas, a few came to us and asked for help.  The subpoenas DBC was serving were patently unreasonable. For instance, all of them demanded that the subscribers appear for a deposition on less than a week's notice, and that the subscribers bring with them all manner of documents like information about their routers and software installed on their computers.  There was nothing even remotely proper about them, so we filed some motions to quash.

The judge agreed with us and quashed all those subpoenas, and then he expressed some real concern about how the cases were progressing.  The judge authorized DBC to move forward with drastically less onerous subpoenas, but he also cautioned DBC to either get their cases moving forward or risk having them dismissed.

So now several more months have gone by and still no one has been served.  Business as usual for DBC.  Since that $105,000 attorneys fees slap down in Eastern Washington, DBC – or whoever their real puppet master is – just has no stomach for an actual fight.

Not to be dissuaded, DBC pushed its luck and went back to the judge and asked again for even more authority to get more information from the subscribers.  More specifically, DBC is asking the judge to sanction several subscribers who just refused to attend their depositions and to give it more time to continue putting pressure on those subscribers to try and extract more settlements.

Well Judge Jones is having none of it.  He penned an order denying DBC any more subpoena power until DBC either demonstrates that this is legitimate litigation or starts dropping cases.  Particularly interesting is Judge Jones' reference to a Whitaker Law Group client, Jeff Pleake, who has been very vocal with his dissatisfaction over being wrongly accused of downloading movies he's never even seen.

And one more thing.  The DBC folks have been threatening to move forward on some sort of "ratification" theory of liability.  Basically, DBC is arguing that if a subscriber refuses to voluntarily give DBC whatever information DBC asks for, the subscriber should be liable for "ratifying" the copyright infringement even if the subscriber had nothing to do with it.  Well thankfully, Judge Jones is again having none of it.  In no uncertain terms, Judge Jones shut that down in a big way.  Bottom line, Judge Jones said "that theory is incomprehensible and rejected. This Court could not find
any case supporting such a theory."

See the order below.