US Judge not happy with Malibu Media’s “fishing expedition” – and neither are Verizon

November 2015



Porn producer Malibu Media, which has filed more than 4,000 copyright lawsuits since 2009 — several times more than any other company — is currently trying to compel Verizon to reveal the identities of Internet users Malibu believes are illegally sharing its movies. But lawyers for the telecom company  have told a court that they’ve had enough of Malibu’s “defective” and “unenforceable” subpoenas. As TechDirt rightly tells us that the giant telco has a history of protecting its users against so called “copyright trolling” and other forms of attacks: Verizon led the way in fighting back against the RIAA when it started demanding ISPs hand over information on customers before any lawsuits were filed. Verizon won.
FightCopyrightTrolls details the case before Judge Katherine Forrest where Malbu were trying to ascertain the identity of a ‘John Doe’ defendant: Malibu’s counsel propounded a morass of irrelevant questions concerning, inter alia, Doe’s educational background (including factual and technical details about the courses Doe studied), the identity and location of Doe’s family members, the identity and location of Doe’s employers years before the relevant period herein (including factual and technical details about Doe’s job roles and responsibilities), the location of Doe’s residences years before the relevant period herein, the existence of Doe’s resume/CV, identity and location of persons in Doe’s personal and social life. Indeed, Doe answered questions about two decades’ worth of his life. This line of questioning lasted for more than 2.5 hours.
Techdirt tells us “Dissatisfied with the lack of evidence of infringement and existence of testimony denying same, Malibu’s counsel falsely accused Doe of destroying evidence and reiterated her intention to depose Doe’s significant other (wrongly identified by Malibu as Doe’s wife). In person, at the deposition, the undersigned reiterated Doe’s objection to producing Doe’s significant other and indicated that no evidence exists as to infringement by Doe, such that testimony from any other person concerning same has no probative value and would be pursued only for purposes of harassment. Malibu’s counsel reiterated Malibu’s intention to depose Doe’s significant other and potentially other parties.”


Judge Forrest was not impressed and ordered that the Plaintiff would not be allowed to subpoena neighbors “or Defendant’s significant other based on the current record. As to the neighbours, Plaintiff would be engaged in a fishing expedition and/or harassment of defendant (by way of causing embarrassment/humiliation)”. 
And now Verizon has joined the critics of Malibu Media and has made it clear that Malibu Media’s subpoena attempt is not just “defective” but flat out ridiculous saying:
Here, Plaintiff has not demonstrated “good cause” for extending the discovery cut-off. Its subpoena suffers from multiple defects. It was served on the eve of the discovery cut-off without affording Verizon any meaningful opportunity to investigate the alleged facts. The subpoena was issued from this district but served in Texas and purports to command the appearance of Verizon’s representatives—who reside in or near Arlington, Virginia—to testify on six days’ notice in Texas, i.e., outside the 100-mile radius for commanding testimony of a witness…. And, the subpoena seeks information far beyond that contemplated by the Cable Communications Policy Act (“Cable Act”) as discoverable from an ISP — i.e., more than the name and address of the subscriber associated with an IP address, which Verizon already provided in response to an earlier subpoena in this action. Verizon objected in writing to the current subpoena within six days of service, yet Plaintiff has made no real attempt to address those objections. 
At bottom, Malibu Media’s subpoenas impose a significant, cumulative burden on Verizon, while “us[ing] the offices of the Court as an inexpensive means to gain the Doe defendants’ personal information and to coerce payment from them.” K-Beech, Inc. v. Does, 2011 U.S. …; see also Northwestern Mem’l Hosp. v. Ashcroft,… (rejecting argument that a subpoena causes no undue burden merely because “the administrative hardship of compliance would be modest,” but considering instead “the rash of suits around the country” and the publicity generated). Given the defects in the subpoena and other problems addressed herein, Verizon respectfully submits that Plaintiff’s request for relief should be rejected.

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