Monday, September 26, 2016

Michael Wilson Needs To Respond To The Court

I posted earlier about a Cobbler Nevada case pending against a guy named Michael Wilson. I discussed how easy it actually is to avoid a default judgment and showed that even a simple one-page letter is enough to do so. Michael Wilson basically scribbled his defense of "I didn't do it" on a sheet of paper and mailed it to the Court. But now that Mr. Wilson has appeared, he cannot just bury his head in the sand and pretend the case is not pending against him. Unfortunately for him, that appears to be what he is doing.

Below is an Order to Show Cause directing Mr. Wilson to explain why he is not participating in the litigation process.  As I mentioned before, you don't need a lawyer to help you with these matters, but if you don't use one you better read up on what you are supposed to do.

ORDER Directing Michael Wilson to Show Cause by John Whitaker on Scribd

Mr. Wilson is supposed to be participating in something called a Rule 26(f) conference. That is basically just a phone call where both sides talk about when the case should be ready for trial and what sort of evidence each side is going to be demanding from the other side. This is just a formal procedural phone call that has to happen but isn't, itself, all that interesting. The thing that makes the Rule 26(f) conference interesting is that it is the official start of the so-called "discovery" stage of the litigation. Discovery is where each side gets to demand documents from the other side and ask the other side certain questions to try and build either an offense or a defense depending on the party.

I'm posting this to demonstrate that even if you think the plaintiff in these cases is evil, you need to understand that the judge is not. The judge will just try to make sure you get a fair opportunity to defend yourself.  So when the judge orders you to do something, you better do it. Because if you are trying to go this alone, the judge will try to keep the proceedings fair. But if you ignore the judge, expect bad things to happen. You won't have anyone on your side.  I'm not suggesting the judge will be on your side, but he or she will at least try to prevent the plaintiff from abusing the rules to harass or trick you.

Bottom line, if you chose to go this alone, DON'T IGNORE THE JUDGE'S ORDERS.

Tuesday, August 23, 2016

Defending Against Accusations of Bittorrent Downloading

Often people accused of illegal bittorrent downloading call me and have a fatal misunderstanding of how our legal system works. Many times people call and say "but I didn't do it so this case should be dismissed."  While at first blush that statement seems to make sense, it actually fails to appreciate how a lawsuit works.  So here is a very simple explanation.

When you and someone else are in a dispute that can't be resolved privately, you can file a lawsuit to have a court resolve it. That process is called litigation. In our country, we use a so-called adversarial litigation procedure. What that basically means is that one party makes a formal complaint with the court that accuses a second party of some wrongdoing. Then the second party formally responds by answering the complaint either admitting or denying the accusations. If the second party denies the wrongdoing, then the court is responsible for figuring out which side is telling the truth.

But what you have to understand is that the adversarial process requires that the second party actually deny having done anything wrong. In other words, once someone files a formal complaint, you can't just ignore it because you don't think you did anything wrong. Once you are formally accused, you must formally respond.  If you don't, then the court will make a determination of who is telling the truth. Common sense should tell you that if the only person in court talking is saying that you did something wrong, and you aren't there to defend yourself, then guess who is going to win.

This may sound insultingly obvious, but it pains me how many people fail to grasp this simple concept. These bittorrent cases proceed along the same trajectory each time.  They all start with a complaint, then some subpoenas, then more documents and letters, then many end up with default judgments. I usually get calls from people at every stage of these proceedings. Most times they tell me that someone told them they could just ignore the letters and the case would eventually go away.


As I mentioned earlier, if someone accuses you of doing something wrong in a formal lawsuit, and you just ignore it, at some point the plaintiff is going to ask the judge to enter a judgment against you because you just ignored it. And since the judge has never heard from you, the judge is going to give the plaintiff what the plaintiff is asking for.  Bottom line:  You cannot just ignore a federal lawsuit and think it will go away. It will not. Period. Anyone who tells you differently has no idea what they are talking about.

So the next thing people almost always say is "I can't afford a lawyer." I can understand that objection. Lawyers are not cheap. But do you need a lawyer? Most people think they do, and it is always better to have someone help you who knows how to do what you need done. But is it required? No.

Just ask Michael Wilson.

Like many people here in Seattle, Mr. Wilson has been accused of illegally downloading the Cobbler Nevada movie. Mr. Wilson received the same letters as everyone else, and apparently he can't afford to hire a lawyer. Fine. But did he just bury his head in the sand and ignore it? No, he didn't. Just below is the first document that Mr. Wilson filed with the court where he just asked for more time to answer the complaint against him. Note how simple this request is. No lawyer involved, no excuses, just a one-page request asking for some time.

Seem too simple?  Doesn't look like it was written by a lawyer. Is there any way a judge would grant that request?  Of course there is. Here is the judge's equally reasonable order granting Mr. Wilson more time.

Mr. Wilson denies that he did anything wrong so he would like the matter dismissed. Does he need a lawyer to do that?  Again, take a look at what he sent to the court.

Not elegant, not elaborate, just a request to dismiss the case. One page. Now as I said above, we have an adversarial litigation process. One party accuses, the other party denies, then comes the proof. Both sides have to pull together their case, then show up in front of the judge and make their cases. In other words, it's not enough to just accuse someone of doing something, you have to prove it.  And if that person comes forward with evidence that you did something wrong, it's also not enough to just deny doing it. You have to rebut that evidence. You don't have to prove your innocence, but you do have to cast some doubt on the evidence against you.

And that is exactly what the judge told Mr. Wilson in his case. Below is the judge's order denying Mr. Wilson's "motion to dismiss" but telling him that the proper way to challenge the plaintiff's complaint is by way of something called a summary judgment motion.

What that means is Mr. Wilson will have to demonstrate that he did not do what he is accused of. At a minimum he will have to challenge the evidence (if there is any) against him. There will be a formal proceeding, and both sides will get to have their say.

But the point is both sides have a chance to pull their case together before either side can ask the judge to pick a winner. That process is called discovery. It is a painful process but it is necessary to give each side an opportunity to gather their evidence and marshal their exhibits.

And here is the last thing Mr. Wilson mailed apparently after reading the judge's order denying his motion to dismiss.

So Mr. Wilson feels like the system is failing him. Unfortunately, the system is working exactly as it is supposed to. It is not enough to just say "I didn't do it" for the judge to throw the case out. Do you imagine any criminal defendant would ever be convicted if his case were thrown out just because he said "I didn't do it"?  Of course not.  "I didn't do it" is a valid defense for sure. But in an adversarial proceeding, there will be an opportunity for both sides to present their evidence. Then, once the judge (or jury) has seen all the evidence and heard all the arguments, someone will win and someone will lose.

But the point is that you don't need a lawyer to do all this for you. Mr. Wilson may be frustrated, but he is handling this process all by himself. It is a complex process full of safeguards for both sides. But it's still just a process intended to allow both sides an opportunity to make their case.

Tuesday, May 24, 2016

Dallas Buyers Club, Cobbler Nevada, and Malibu Media update

So there has been a lot of action in the local Dallas Buyers Club and Cobbler Nevada cases here in Seattle.  I'm getting lots of calls right now from people who just got served with formal process asking what to do.  It seems like I'm answering the same questions over and over, so what I would like to do is point you to a great post over on DieTrollDie that pretty much breaks down how these cases go and what to expect along the way.

Please, go read that post and it will probably answer tons of your questions. It's very detailed and comprehensive.  He's not a lawyer, but he is a great resource for understanding these cases.

On another note, those of you who follow these bittorrent cases closely are probably aware of the apparent rift forming between Malibu Media and their counsel. Just below is a recent order (as in today, recent) dismissing the entire case because Malibu Media's old counsel withdrew and they didn't get new counsel in time. Expect an attorneys fees motion next.

Monday, March 14, 2016

Dallas Buyers Club & Cobbler Nevada: Sample Pro Se Answer

So the Dallas Buyers Club and Cobbler Nevada people have been filing amended complaints and naming tons of people here in Seattle. I'm getting quite a few calls from people who just don't know what they're supposed to do. Everyone has started getting so-called Rule 4 letters, which are letters requesting that the subscriber waive formal service of process. In my experience, if you get one of those letters and it's properly addressed to you, the best thing to do is sign it and return it. Lot's of people want to be difficult and refuse to agree to anything, but in this case that will back fire. If you get the letter and it's properly addressed to you, if you refuse to sign it the service process will still move forward, you'll just have to pay for it yourself. Nothing good comes from refusing to sign those waiver letters.

Next, folks want to know what they're supposed to do after they waive service. Well, you have to do exactly what that letter tells you to do: Answer the Complaint. What that means is for every numbered paragraph in the Complaint, you have to either admit it is true, deny it is true, or say that you don't have sufficient information to either admit or deny.  Resist the urge to tell your story in the Answer.  Just don't do it.  Admit. Deny. Insufficient information.  Nothing else.

Bottom line, you can pay me to put together an answer that is tailored to your case and that is carefully drafted to ensure you deny everything you should and admit everything you must. But I'm not cheap. So lots of people choose to move forward on their own. That's certainly fine by me. But I worry about people trying to defend themselves in federal litigation without any experience. So I try to give you some information to help you out. To that end, below is a sample of an answer that an individual filed in a Dallas Buyers Club case that I think is pretty good. First is the Answer, followed by the Complaint that it answers.
But don't just download this document, change the name, and file it yourself. You need to understand it. Take a look at how each numbered paragraph of the Answer is actually a response to the similarly-numbered paragraph of the Complaint. That's what yours should look like.  Read each paragraph of your Complaint, then add a corresponding paragraph in your Answer.  Your response should be short and direct, like these.

If this is not something you feel comfortable handling yourself -- and as someone who handles these all the time, I can understand why you would not -- then you need to get some help.  Don't just wade in to federal litigation blind the way that Mr. Lessere did.

Good luck.

Wednesday, March 9, 2016

Cobbler Nevada: Meet the Lucky Contestants

As with the Dallas Buyers Club cases, the Cobbler Nevada folks have begun naming people in several amended complaints that have been filed recently. Below are the names I have so far. Are you on the list?

Case No. 2:15-cv-01435-TSZ
  • Azucena Rivera
  • Jesse Rosenfield
  • Alva Godfrey
  • Russell Jenkins
  • Kayla Norberg
  • Mariya Mudryak
  • Shannon Torgerson

  • Jorge Herrera
  • Bernice Cain
  • Don Vanderhule
  • Kristin Comstock
  • Betty Damos
  • Paul Snow
  • Jackie Elhard
Case No. 2:15-cv-01614-TSZ
  • Andy Chapman
  • Chuck Warren
  • Katelyn J. Martin
  • Laura Klein

  • Tien Tran
  • Rick Perkins
  • David Norwood
  • Sabrina Britt
Case No. 2:15-cv-01408-TSZ
  • Kamaljit Lidder
  • Cassandra Wallace
  • Daniel Rueda

  • Emily Crowe-Goldberg
  • Sandra L. Groves
  • Eric Furgeson
Case No. 2:15-cv-01616-TSZ
  • James Hamilton
  • Jeff Lockey
  • Samantha Duffy
  • Michael Wilson
  • Deena Krona
  • Doreen Walior
  • Scott Egbert
  • Jose F. Cruz
  • Bradley Nugent
  • Vitaliy Kravchenko
  • William Skibitzke

  • Chris Pinero
  • Max Mamotyuk
  • Kathryn Stapleton
  • Derek Agee
  • Yelena Michenko
  • Thomas Morrison
  • Gary Truman
  • Jeffery Kelson
  • Dana Gibson
  • Imee Hamilton
Case No. 2:15-cv-01406-TSZ
  • Tapeh Godo
  • Edward Straw
  • Richard Saya
  • Philip Lambert

  • Raymundo Caballero
  • Phillip Lewis
  • Jane Kim
Case No. 2:15-cv-01404-TSZ
  • David McReynolds
  • Monyrin Oun
  • Eric Hazen

  • Richard Rikard
  • Pedro Alonzo
Case No. 2:15-cv-01420-TSZ
  • Jennifer Tu
  • Penny Galen
  • Bern Synder-Dillenbeck
  • Kang Hang
  • Kevin Frazier-Oswalt
  • John Kehrli

  • Rita Camorlinga
  • Andrew Moberg
  • Scott Amundsen
  • Steven White
  • Pamela Nix
  • Swetha Kamman
Case No. 2:15-cv-01443-TSZ
  • Derek Currie
  • Jackie Durao
  • Joe Eddie
  • Elissa Eddie
  • Elizabeth Dowling
  • Michael Thomas

  • Jason Shim
  • Sarah Christmann
  • Maricris Mayor
  • David Currey
  • Veronica Suarez
  • Chris Carlucci

Understand that this list may not be complete and this page is not an official court record. You need to verify your status and should not rely on this list being complete. I am doing this only as a service to those affected.

Friday, March 4, 2016

Dallas Buyers Club: Meet the Lucky Contestants

So Judge Jones earlier ordered the Dallas Buyers Club people to move these cases forward.  Today they apparently started doing that by filing a few amended complaints naming quite a few people.  I don't have much time right now, but here is a list of the lucky people:

Case No. 14-cv-01926RAJ
  • Peter Pham
  • Sophanna Pheap
  • Michele Cheung
  • Gerald Hefley
  • Taylor Merisko 
  • Andy Bui
Case No. 14-cv-01684RAJ
  • Mike Curtis
  • Allegra Rege
Case No. 15-cv-00133RAJ
  • Ying-Bin Zhao
  • Bethany Iocca
  • Mike Jovanovich
Case No. 15-cv-00576RAJ
  • Taylor Bland
  • Gene Yiu
  • Anthony Florio
  • Teal Williams
  • Susan Rath
  • Brooke D. Weller
  • Gerry Amburgey
  • Ravina Singh
  • Anna Lipman
  • Sadie Kennedy
Case No. 15-cv-00582RAJ
  • David Muckala
  • Nicholas Peltchie
  • Robert Rodi
  • Sharon L. Stenzinger
  • Jacob Stickley
  • Amy Rayl
  • Yuhon Wong
  • Patrick Armstrong
  • Mihn Nguyen
  • Katherine Debacker
  • Mike Miles
Case No. 15-cv-00581RAJ
  • Laurie Trout
  • Vu Nguyen
Case No. 15-cv-00579RAJ
  • Ji Lee
  • Cory Hanger
  • Brian James
  • Michael Mastin
  • Stuart Hirshhorn
If you are on the list, now is the time you need to start thinking about how to deal with this case.  Ignoring it is no longer the right answer.

A couple of the amended complaints are below.

Saturday, February 13, 2016

Justice Scalia Found Dead In Room In Texas

It's a sad day for jurisprudence.  U.S. Supreme Court Justice Antonin Scalia was found dead this morning in his room at a Texas resort.  No foul play is suspected, and it appears he died of natural causes.

Justice Scalia was definitely known as having a strong voice for his opinions.  Not everyone liked those opinions, but you have to respect his commitment to them.  No one ever wondered where Scalia stood on an issue. 

I for one will miss his wit.

Thursday, February 11, 2016

Dallas Buyers Club: Court Orders Case to Move Forward

Lots has happened here in Seattle in the Dallas Buyers Club cases.  So here's the latest.  Judge Jones just handed down an omnibus order disposing of a ton of co-pending motions in the several DBC cases here.  Honestly, I couldn't even tell you what all the motions are, but there were many.  They included motions for contempt against people who did not appear for their "subscriber depositions"; motions for alternative service against people who DBC had yet not served; motions for more time to take more depositions; motions to reconsider the denial of subpoena power; motions to continue cases with "Doe" defendants.  I'm sure I missed some.  Bottom line: Lots of motions.

The order demonstrates that Judge Jones' patience is at its end.  He basically walked through the development of the cases and expressed some real concern that they just aren't progressing like one would expect from legitimate litigation.

The order is pasted below.  It is definitely worth a read.  Bottom line: DBC needs to either fish or cut bait.

Who knows what DBC will do.

Thursday, February 4, 2016

The Curious Case of Anthony Reale

This story is actually worth highlighting.  There have been several Dallas Buyers Club cases filed here in Seattle.  My last count is about 13 or 14. One of the things that the DBC folks like to suggest is that their "forensic software" is so advanced and accurate that it never makes any mistakes.  DBC files a declaration of someone named Daniel Macek in every case that goes on for 8 pages about how sophisticated the software is.

So against that background, consider the curious case of Anthony Reale.

One of DBC’s earliest cases filed here in Seattle started with ten “John Does.”  Pretty quickly after getting the names of those Does from their ISPs, DBC filed an amended complaint naming eight of them.  DBC included some exhibits with the FAC that had a table associating the names with their IP addresses.  One of the named individuals is Anthony Reale, associated with IP address

When DBC filed its amended complaint, it included a lengthy listing of a bunch of movies that DBC says were all being shared by the respective defendants at about the same time as the Dallas Buyers Club movie.  There was one listing for each named defendant. DBC alleged that Mr. Reale was “observed” downloading the Dallas Buyers Club movie on or about June 14, 2014. 

If you look at those listings, sure enough you see tons of movies being downloaded with bittorrent.  In most cases, there is a listing that starts months before the Dallas Buyers Club movie shows up.  But still, the listings always include the Dallas Buyers Club movie in there somewhere.

Or do they?

When I started writing the brief that I mentioned in an earlier post, I started looking through the tables because I was very troubled by the fact that DBC was apparently monitoring all these people for months before the Dallas Buyers Club movie is apparently "observed" being shared.  I believe that is a pretty clear violation of the Federal Wiretap Act, and as soon as any case I have moves forward I want to make sure I have my evidence marshaled.

So as I was looking through those listings, I got to the listing for Mr. Anthony Reale.  The first thing I noticed is that DBC apparently started "observing" his IP address on October 31, 2013, which is about seven months before he is even alleged to have downloaded the Dallas Buyers Club movie.  That greatly concerned me.  Why was his bittorrent activity being monitored for seven months?  Who are these people who just record all the bittorrent activity for everyone regardless of what they are downloading?  That CAN'T be legal.

The second thing I noticed about Mr. Reale's listing is that I didn't find the Dallas Buyers Club movie may first pass through the list.  Not the second pass through it either.  Nor the third or fourth.  The text is really small so I did a "find" with the software and it didn't show up then.  So I actually printed the whole listing for Mr. Reale and painstakingly walked through each individual movie.

Guess what?  Mr. Reale didn't download the Buyers Club Movie.  At least not at any time during the ten months that DBC was "observing" him. 

This is troubling.  Very troubling.  DBC is so brazen in its litigation tactics that it will shamelessly name someone in a Federal lawsuit, throw in some massive table of downloads to try and make Mr. Reale look like the next Jimmy Hoffa or something, and in doing so admit that it doesn't have a shred of evidence that Mr. Reale did what he is being accused of.

And understand that this is just the first table like this I have even reviewed.  DBC hasn't filed any more like this to my knowledge here in Seattle.  But if you are aware of similar situations, please let me know.  I'm compiling these instances in order to support that Federal Wiretap Act claim I mentioned earlier.

If you want to take a look at the table and try to find the Dallas Buyers Club movie yourself, I pasted it in below.

Wednesday, February 3, 2016

Dallas Buyers Club: Amicus Brief re: Default Judgment

So we just filed the amicus brief on statutory damages awards that I mentioned earlier.  The brief is below.

If you're reading, you should pay particular attention to the "Curious Case of Anthony Reale."

Friday, January 29, 2016

Did this really just happen?

So I represent quite a few defendants in the Dallas Buyers Club and Cobbler Nevada cases here in Seattle. These cases are going pretty much the same way they go everywhere else. One case got slightly interesting today.

One subscriber ignored everything, so of course he got a default entered against him. [Don't do that!] And then DBC filed a motion for a default judgment today, which I just couldn't abide. It came with a proposed order that is nothing except a ridiculous marketing document filled with extreme results in other cases set out like they are the norm. But it's a default judgment so the guy can't defend it. But I've had enough, so I filed a simple request to the Court to let me submit a short brief to give the Court more context than the slanted, one-side monstrosity that is DBC's proposed order.

A little surprising, DBC's lawyer *opposed* my request! DBC's lawyer is actually telling the judge that he should deny my request because there's no authority for me filing such a brief. Like the judge doesn't have the authority to accept briefs in his own courtroom from whomever he wants. Crazy!
The back and forth is below.