Last October, we blogged about Mick Haig’s lawsuit against 670 “John Doe” defendants who allegedly illegally downloaded Mick Haig’s adult film, thereby allegedly committing copyright infringement. We noted that Mick Haig’s counsel intended to obtain the names of the John Doe defendants, then send demand letters to them offering to settle the case for between $1,500 to $2,500.
But things did not go as planned for Mick Haig. Mick Haig filed a motion to serve discovery on the John Does’ Internet Service Providers (“ISPs”), which would have allowed it to send subpoenas to the ISPs seeking the true names of the John Doe defendants. Judge Godbey issued an Order requiring the ISPs to retain their records identifying the John Does. Judge Godbey also appointed Cindy Cohn and Matt Zimmerman, both of the Electronic Frontier Foundation, and Paul Alan Levy, of Public Citizen Litigation Group, to represent the anonymous John Does’ interests with respect to Mick Haig’s discovery motion. The John Doe defendants’ attorneys filed a brief opposing Mick Haig’s discovery motion, to which Mick Haig replied.
With its motion still pending, Mick Haig filed a notice dismissing the case with prejudice. We typically see very brief notices of dismissal with prejudice, which, in essence, simply say that the case is being dismissed with prejudice. Mick Haig’s notice (available here), however, was more colorful. It stated, among other things:
Subsequent to Plaintiff’s filing of said Discovery Motion, 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. . . .
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.
Usually, a notice of dismissal with prejudice would end of the case. But days later, the John Doe defendants’ attorneys filed a motion seeking attorney fees or sanctions (motion available here). The motion claims that Mick Haig’s counsel “engaged in serious misconduct” and states that:
[N]otwithstanding the clear prohibition on issuing discovery prior to a Rule 26(f) discovery conference and the implicit acknowledgement of that prohibition in Plaintiff’s “Memorandum of Points and Authorities in Support of Plaintiff’s Motion for Leave to Take Discovery Prior to Rule 26(f) Conference,” [Mick Haig’s counsel] surreptitiously issued unauthorized subpoenas to an unknown number of internet service providers (“ISPs”), demanding the disclosure of the identities of anonymous Defendants so that he could pressure the alleged downloaders of pornography into settlement. Incredibly, months later [Mick Haig’s counsel] participated in the briefing of the very question of whether he should be allowed to issue discovery (see Plaintiff’s Response to Opposition for Plaintiff’s Motion for Leave to Take Discovery (DN 7)), all the while allowing ISPs to process the improperly issued subpoenas. [Mick Haig’s] counsel’s behavior demonstrates blatant contempt for the rule of law and the authority of this Court. . . .
Defendants ask this Court to impose some sanction for [this] conduct to send a message that should hardly be necessary: abusing the Court’s authority to improperly investigate and push settlements onto litigation opponents will not be tolerated.
Mick Haig has yet to file its response brief. A Dallas Observer blog post suggests that Mick Haig may have been motivated to file its notice of dismissal due to a letter sent to Mick Haig’s counsel by the John Does’ counsel. That letter (available here) claims that Mick Haig’s counsel’s service of subpoenas on the ISPs, in light of Judge Godbey’s Order, was improper and constituted an “abuse of the discovery procedure[.]” Mick Haig filed its notice of dismissal with prejudice days after receiving the letter.
We’ll continue to monitor the sanctions motion, and will blog about its result.