Strike 3 Early Discovery Argument in San Diego District Court

1
1 UNITED STATES DISTRICT COURT
2 SOUTHERN DISTRICT OF CALIFORNIA
3
STRIKE 3 HOLDINGS, LLC, )
4 ) CASE NO. 19CV2452-JAH(LL)
PLAINTIFF, )
5 ) SAN DIEGO, CALIFORNIA
VS. ) TUESDAY,
6 ) MAY 5, 2020
JOHN DOE SUBSCRIBER ASSIGNED ) 11:02 A.M.
7 IP ADDRESS 70.95.76.252, )
)
8 DEFENDANT. )
_________________________________)
9
10
REPORTER'S TRANSCRIPT OF PROCEEDINGS
11
TELEPHONIC HEARING
12
BEFORE THE HONORABLE JOHN A. HOUSTON
13 UNITED STATES DISTRICT JUDGE
14
15 APPEARANCES:
16 FOR THE PLAINTIFF: LAW OFFICES OF LINCOLN D. BANDLOW

BY: LINCOLN D. BANDLOW, ESQ.
17 1801 CENTURY PARK EAST
SUITE 2400
18 LOS ANGELES, CALIFORNIA 90067
19 FOR THE DEFENDANT: LAW OFFICES OF STEVEN C. VONDRAN, PC

BY: STEVEN C. VONDRAN, ESQ.
20 8880 RIO SAN DIEGO
SUITE 800
21 SAN DIEGO, CALIFORNIA 92108
22
23 REPORTED BY: CAMERON P. KIRCHER

CSR NO. 9427, RPR, CRR, RMR
24 333 W. BROADWAY, SUITE 420
SAN DIEGO, CALIFORNIA 92101
25 E-MAIL: CPKIRCHER@GMAIL.COM
COMPUTER-AIDED TRANSCRIPTION
2
1 SAN DIEGO, CALIFORNIA - TUESDAY, MAY 5, 2020
2 11:02 A.M.
3 THE CLERK: ALL RIGHT. CALLING MATTER NO. 1 ON THE
4 CALENDAR, 19CV2452, STRIKE 3 HOLDINGS, LLC VS. DOE.
5 THE COURT: GOOD MORNING, COUNSEL.
6 MR. BANDLOW: GOOD MORNING, YOUR HONOR.
7 THE COURT: MAY WE HAVE YOUR APPEARANCES FOR THE
8 RECORD, PLEASE.
9 MR. BANDLOW: YES, YOUR HONOR. THIS IS LINCOLN
10 BANDLOW APPEARING ON BEHALF OF PLAINTIFF, STRIKE 3 HOLDINGS,
11 LLC.
12 THE COURT: GOOD MORNING.
13 MR. VONDRAN: AND THIS IS STEVE VONDRAN APPEARING ON
14 BEHALF OF JOHN DOE DEFENDANT SUBSCRIBER I.D. 70.95.76.252.
15 GOOD MORNING.
16 THE COURT: GOOD MORNING, SIR.
17 WE'RE HERE ON DEFENDANT'S MOTIONS TO QUASH A
18 THIRD-PARTY SUBPOENA, THE MOTION TO DISMISS AND MOTION FOR
19 SANCTIONS.
20 I'VE REVIEWED THE PLEADINGS, COUNSEL. I'D LIKE TO
21 HEAR FROM -- MR. VONDRAN, I'D LIKE TO HEAR FROM YOU FIRST
22 WITH RESPECT TO THE MOTION TO QUASH.
23 FROM MY REVIEW OF THE RECORD, PLAINTIFF REQUESTED A
24 SUBPOENA, A THIRD-PARTY SUBPOENA BE ISSUED. FIRST, DEFENDANT
25 DID NOT OBJECT AND HE ESSENTIALLY CONSENTED TO THE ISSUANCE
3
1 OF THE SUBPOENA WITH -- PROVIDED THAT PRIVACY PROTECTION
2 PROVISIONS WERE INCLUDED. PLAINTIFF DID NOT OBJECT TO THE
3 PRIVACY PROTECTION PROVISIONS.
4 THE MAGISTRATE JUDGE GRANTED THE ORDER FOR SERVING
5 THE SUBPOENA AND INCLUDED DEFENDANT'S REQUESTED PRIVACY
6 PROTECTION LANGUAGE. AND IT APPEARS THAT ANY RISK OF
7 EMBARRASSMENT OR ANNOYANCE WOULD BE ELIMINATED. NOW
8 PLAINTIFF -- DEFENDANT MOVES TO QUASH.
9 EXPLAIN WHY.
10 MR. VONDRAN: OKAY. THANK YOU, YOUR HONOR.
11 WELL, YOU HAVE TO LOOK AT THE STANDARDS FOR GRANTING
12 EARLY DISCOVERY. THE CASE LAW IS CLEAR THAT THIS IS TO BE
13 GRANTED ONLY IN RARE CIRCUMSTANCES. THIS IS NOT SOMETHING
14 THAT ANYTIME SOMEBODY WANTS TO FILE A LAWSUIT, YOU JUST GO
15 SEEK EARLY DISCOVERY.
16 THE COURT: EXCUSE ME, SIR. BUT WHY DID YOU NOT
17 FIRST CONTEST IT, AS OPPOSED TO CONSENT WITH PROVISIONS FOR
18 PRIVACY PROTECTION?
19 MR. VONDRAN: WELL, I'M NOT SURE I CAN ANSWER THE
20 QUESTION. I BELIEVE WE OPPOSED THIS THE FIRST OPPORTUNITY
21 THAT WE LEARNED OF IT.
22 YOU HAVE TO UNDERSTAND, THERE WAS TWO CASES THAT
23 WERE FILED. ONE IS IN MIAMI STATE COURT. THAT WAS OPPOSED,
24 THAT WAS OPPOSED WITH THE MOTION TO QUASH. STRIKE 3
25 DISMISSED THEIR CASE VOLUNTARILY, PROBABLY TO AVOID RES
4
1 JUDICATA PROBLEMS, AND THEN CAME AND FILED THIS CASE.
2 THE FIRST NOTICE THAT WE GOT, WE CAME IN AND WE
3 FILED OUR MOTION. SO I'M NOT SURE IF THAT'S HITTING ON YOUR
4 QUESTION OR NOT.
5 THE COURT: ALL RIGHT. PROCEED. I'D LIKE TO HEAR
6 MORE.
7 MR. VONDRAN: SO, YOU KNOW, THESE EARLY DISCOVERY
8 MOTIONS PER LAW, PER THE STATUTE, PER FRCP 26, AND LOOKING AT
9 RULE 45 FOR THE ISSUANCE OF SUBPOENA, IF WE LOOK AT THE
10 STANDARDS, THE STANDARDS ARE NOT MET HERE.
11 AND SO THE COURT HAS THE DISCRETION, AND UNDER
12 FRCP 26 AT THIS STAGE -- AND THEY ARE GOING TO ARGUE, WELL,
13 COBBLER SAYS SOMETHING DIFFERENT, BUT AT THIS STAGE, THE
14 CRITERIA FOR EARLY DISCOVERY IS, ONE, THAT THEY HAVE TO SHOW
15 THAT THEY ARE ABLE TO WITHSTAND A MOTION TO DISMISS.
16 AND IT'S CLEAR SUING AN INTERNET SUBSCRIBER IS JUST
17 LIKE -- IS LIKE SUING SOMEBODY FOR FLYING A DRONE OVER MY
18 BACKYARD. I DON'T KNOW WHO IT IS, SO I SUE MY NEIGHBOR. YOU
19 KNOW, SO IT'S REALLY JUST THROWING DARTS WITH A BLINDFOLD ON.
20 SO THEY CAN'T MEET THAT STANDARD. THAT'S CLEARLY
21 ESTABLISHED.
22 IF WE'RE NOT GOING TO LOOK AT THAT STANDARD, THEN IT
23 SHOULDN'T BE PART OF THE NINTH CIRCUIT THREE-FACTOR TEST,
24 WHICH THE OTHER JUDGES HAVE -- IN SOME OF THE SUPPLEMENTAL
25 AUTHORITY WE PUT OUT, IT'S CLEAR THERE IS A THREE-FACTOR
5
1 TEST. IT'S CLEAR THAT'S ONE OF THEM. THERE IS NO POSSIBLE
2 WAY THEY CAN MEET THAT STANDARD.
3 SO THE EARLY DISCOVERY THAT THEY ARE SEEKING SHOULD
4 BE GRANTED IN RARE CIRCUMSTANCES. RULE 45 ITSELF IN REGARDS
5 TO SUBPOENAS SAYS, IT SHOULDN'T BE GRANTED IF THERE ARE LESS
6 EXPENSIVE WAYS TO DO IT OR WHERE PEOPLE AREN'T SUBJECT TO
7 UNDUE BURDENS. AND THAT'S WHAT IS GOING ON WITH WHAT I CALL
8 THIS EAST COAST/WEST COAST LITIGATION STRATEGY.
9 JUDGE, THEY ARE FILING BASICALLY HUNDREDS OF THESE
10 CASES, WHERE IT'S CALLED A BILL OF DISCOVERY. THEY ARE
11 ALLUDING TO THEIR COPYRIGHT CLAIM. A SMART FLORIDA LAWYER, A
12 COUPLE OF THEM, HAVE FIGURED OUT THIS IS COMPLETELY IMPROPER,
13 THE USE OF THE BILL OF DISCOVERY ITSELF IS IMPROPER, SO THEY
14 ARE RAISING COSTS TO A LITIGANT WHO MAY BE AN INFRINGER, MAY
15 NOT BE AN INFRINGER, JUST TAKING A SHOT AT IT.
16 SO THEY HAVE TO HIRE A LAWYER. THE LAWYERS OUT
17 THERE FILE A MOTION TO QUASH. STRIKE 3 DOES NOT OPPOSE IT.
18 IT'S WHAT I CALL A CUT-AND-RUN STRATEGY. AND THEN THEY COME
19 AND THEN THEY -- HERE WE ARE SEVEN MONTHS, SEVEN MONTHS INTO
20 THIS NOW, AND NOW THEY ARE FILING A FEDERAL COURT MOTION,
21 WHERE THEY TELL ME AND THEY WILL TELL YOU, THEY KNEW WITH
22 99-PERCENT CERTAINTY THAT THIS PERSON WAS IN SAN DIEGO. WHY
23 ARE THEY FILING THIS IN FEDERAL -- IN STATE COURT IN MIAMI
24 AND NOT OPPOSING IT, HAVING NO INTENTION OF GOING THROUGH
25 WITH WHAT THEY ARE DOING OUT THERE.
6
1 SO THEY ARE RAISING THE COST TO THE LITIGANT. NOW
2 THERE IS AN UNDUE BURDEN. THERE IS ADDITIONAL DELAYS IN
3 BRINGING THIS ACTION, AND I THINK THEY WILL TESTIFY
4 THEMSELVES, THESE ISP'S DON'T HOLD INFORMATION FOREVER.
5 THEY -- IP ADDRESSES CHANGE.
6 YOU KNOW, SO THIS WHOLE PROCESS OF WHAT THEY ARE
7 DOING, TO ME, IT'S A CASE OF FIRST IMPRESSION. I'VE NEVER
8 SEEN THIS BEFORE. AND THEY ARE ABUSING THE PROCESS. I THINK
9 THIS IS A CLEAR ABUSE. AND I JUST DON'T THINK COURTS SHOULD
10 SANCTION THIS SORT OF EAST COAST/WEST COAST, AND IF THIS ONE
11 DOESN'T WORK, MAYBE THEY GO TO ARIZONA. THERE IS A BILL OF
12 DISCOVERY IN ARIZONA.
13 SO IF YOU APPLY THE STANDARD, JUST LOOK AT THE
14 STANDARD, THEY DON'T MEET THE CRITERIA. OKAY. AND --
15 THE COURT: BUT, TELL ME, SIR, WHERE IS THE
16 HARASSMENT? WHERE IS THE EMBARRASSMENT HERE? WHAT'S
17 HAPPENED HERE -- ONCE PLAINTIFF RECEIVES THE IP SUBSCRIBER,
18 IT'S GOING TO BE PLACED UNDER SEAL FOR THIS FURTHER
19 INVESTIGATION.
20 WHERE IS THE EMBARRASSMENT FOR EVEN THE SUBSCRIBER
21 TO GO THROUGH ALL THIS TROUBLE NOW?
22 MR. VONDRAN: WELL, I DON'T KNOW IF EMBARRASSMENT IS
23 THE RIGHT WORD. I THINK WE NEED TO FOCUS ON UNDUE BURDEN.
24 THE COURT: WHERE IS THE BURDEN? I MEAN, WHERE IS
25 THE BURDEN FOR OBTAINING THE IP ADDRESS? LAW ENFORCEMENT
7
1 DO -- DOES IT ALL THE TIME IN CRIMINAL INVESTIGATIONS.
2 MR. VONDRAN: RIGHT. BUT I WOULD ASSUME THEY HAVE A
3 PROBABLE CAUSE.
4 THE COURT: WELL, THE PROBABLE CAUSE IS -- LISTEN, I
5 WANT TO HEAR YOU OUT, AND I'M NOT PRE-JUDGING HERE. BUT IT
6 IS NOT UNCOMMON IN CHILD PORNOGRAPHY CASES, THERE IS A UNIT
7 DEDICATED BY LAW ENFORCEMENT TO WATCH IP ADDRESSES THAT
8 CONNECT TO UNLAWFUL WEBSITES.
9 AND THEY USE THAT IP ADDRESS TO OBTAIN -- AND THAT'S
10 ENOUGH FOR PROBABLE CAUSE TO SEARCH A HOUSE, SEARCH THE
11 COMPUTER AND ARREST THE PERSON IF THE PERSON SAYS, THAT
12 COMPUTER IS MINE.
13 SO HERE WE'RE TALKING ABOUT A CIVIL ACTION WHERE THE
14 PLAINTIFF IS SIMPLY SEEKING -- IN A CRIMINAL CASE, A CRIMINAL
15 AGENT CAN DO IT BY AN ADMINISTRATIVE SUBPOENA; NEED NOT EVEN
16 GO TO A JUDGE IN YEARS PAST. HERE, THEY ARE SEEKING A
17 SUBPOENA JUST TO FIND OUT WHO THE OWNER IS. NOTHING FURTHER.
18 NOTHING MORE.
19 WHERE IS THE EMBARRASSMENT? WHERE IS THE
20 HARASSMENT? FOR AN INNOCENT OWNER OF A COMPUTER WHO IS NOT
21 AN INFRINGER, WHERE IS -- WHERE IS THE -- I'M NOT CERTAIN I
22 FIND --
23 MR. VONDRAN: WELL, UNDERSTOOD, YOUR HONOR.
24 I MEAN, I WOULD SAY, IF YOU HAD TO PAY SOMEBODY
25 2,000 OR 2500 DOLLARS IN FLORIDA, AND THEN YOU HAVE TO COME
8
1 BACK HERE AND NOW PAY ME TO COME DO THIS, IS THAT NOT SOME
2 KIND OF IMPROPER UNDUE BURDEN? I MEAN, THAT WOULD BE MY
3 ARGUMENT, TO BE ACCEPTED OR TO NOT BE ACCEPTED.
4 BUT MORE IMPORTANTLY, I'LL READ IT RIGHT HERE FROM
5 THE JUDGE'S ORDER FROM YOUR OWN DISTRICT, JUDGE BURKHARDT.
6 IT SAYS, DISTRICT COURTS IN THE NINTH CIRCUIT APPLY A
7 THREE-FACTOR TEST TO DETERMINE WHETHER GOOD CAUSE EXISTS TO
8 ALLOW FOR EXPEDITED DISCOVERY TO IDENTIFY DOE DEFENDANTS.
9 FIRST, THE PLAINTIFF SHOULD IDENTIFY THE MISSING
10 PARTY WITH SUFFICIENT SPECIFICITY SUCH THAT THE COURT CAN
11 DETERMINE THAT DEFENDANT IS A REAL PERSON OR ENTITY WHO COULD
12 BE SUED. OKAY. WE'RE FINE WITH THAT.
13 SECOND, THE PLAINTIFF SHOULD IDENTIFY ALL PREVIOUS
14 STEPS TO LOCATE THE DEFENDANT TO ENSURE THE PLAINTIFF HAS
15 MADE A GOOD-FAITH EFFORT TO IDENTIFY. WELL, THEY DIDN'T MAKE
16 ANY GOOD-FAITH EFFORT IN FLORIDA. IT DOESN'T COST ANYTHING
17 IN FLORIDA. WHY DON'T THEY PROCEED WITH THOSE CASES AND
18 IDENTIFY THE DEFENDANT, AND THEN THE LITIGANT WOULDN'T BE OUT
19 $2,000.
20 THIRD -- AND MORE IMPORTANTLY, THIRD, THE PLAINTIFF
21 SHOULD ESTABLISH TO THE COURT'S SATISFACTION THAT THE
22 PLAINTIFF'S SUIT AGAINST THE DEFENDANT COULD WITHSTAND A
23 MOTION TO DISMISS. THEY ARE NOWHERE NEAR THAT STANDARD.
24 THEY ARE NOWHERE NEAR THAT STANDARD. AND, YOU KNOW, COBBLER
25 WAS -- EVERYONE WILL SAY COBBLER, BUT COBBLER WAS NOT A
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1 DISCOVERY CASE. IT WAS A MOTION TO DISMISS AND WHAT'S THE
2 STANDARD. SO IT SHOULD NOT BE READ BROADLY.
3 BUT APPLYING THE RULES FOR EARLY DISCOVERY, THAT'S
4 WHAT WE'RE TAKING ISSUE WITH, THAT'S WHAT WE'RE TAKING ISSUE
5 WITH, THE EAST COAST/WEST COAST STRATEGY. WE BELIEVE IT'S A
6 BURDEN. YOU CAN LOOK AT SOMEBODY THAT WOULD HAVE TO GO
7 THROUGH THIS PROCESS. THEY WOULD BE GOING, WHAT'S GOING ON?
8 I'M BEING SUED HERE, NOW I'M BEING SUED HERE. WHAT THEY HAVE
9 DISMISSED HERE, AND NOW THEY DON'T WANT TO BE DISMISSED HERE.
10 THAT'S OUR POINT, YOUR HONOR.
11 THE COURT: I UNDERSTAND, SIR. BUT IN COBBLER
12 NEVADA, THE LOWER COURT AUTHORIZED A POST-COMPLAINT EARLY
13 SUBPOENA. AND IT WAS ONLY ON THE MOTION TO DISMISS -- AND
14 THAT WASN'T DISCUSSED IN COBBLER. THE EARLY SUBPOENA WASN'T
15 DISCUSSED IN COBBLER.
16 IT WAS ONLY AFTER RECEIVING THE SUBPOENA THAT
17 PLAINTIFF COULD NOT SHORE UP ITS CASE AND THE MOTION TO
18 DISMISS WAS GRANTED; CORRECT?
19 MR. VONDRAN: CORRECT. BUT I DON'T THINK THAT
20 STANDS FOR THE PROPOSITION THAT THERE -- YOU KNOW, THAT YOU
21 MUST -- YOU MUST OVERLOOK THE THREE-FACTOR TEST THAT I JUST
22 GAVE YOU AND OVERLOOK THAT COMPLETELY. THIS IS THE STANDARD
23 FOR EARLY DISCOVERY. THAT WAS NOT THE HOLDING. THAT'S NOT
24 THE ESSENTIAL HOLDING OUT OF COBBLER.
25 THE COURT: ALL RIGHT. ANYTHING ELSE ON MOTION TO
10
1 QUASH?
2 MR. VONDRAN: NO, YOUR HONOR.
3 THE COURT: ALL RIGHT. MR. BANDLOW.
4 MR. BANDLOW: YES. THANK YOU, YOUR HONOR.
5 THERE IS A LOT HERE, AND I'LL TRY TO GO PIECE BY
6 PIECE. FIRST OF ALL, THIS NOTION THAT HE DIDN'T RESPOND TO
7 THE INITIAL REQUEST OF THE SUBPOENA SORT OF MISSES SOME OF
8 THE TIMING HERE.
9 SO MR. VONDRAN AND I HAVE HAD A NUMBER OF THESE
10 CASES AGAINST EACH OTHER OVER THE YEARS. WE'RE VERY FAMILIAR
11 WITH EACH OTHER. AND LONG BEFORE WE FILED THE ACTION AND
12 BEFORE WE FILED OUR REQUEST FOR A SUBPOENA, I HAD LONG,
13 DRAWN-OUT COMMUNICATIONS WITH MR. VONDRAN IN WHICH HE SAID,
14 YOU SUED IN FLORIDA, THAT'S NOT APPROPRIATE, YOU NEED TO SUE
15 US WHERE MY GUY LIVES.
16 WE MAY NOT AGREE WITH THAT POSITION, BUT THAT'S WHAT
17 HE SAID. HE SAID, GETTING THIS INFORMATION FROM FLORIDA IS
18 NOT APPROPRIATE. YOU SHOULD DO IT IN CALIFORNIA. AND WE
19 SAID, OH, OKAY. IF THAT'S HOW YOU WANT TO HANDLE THIS FOR
20 YOUR CLIENT, WE'LL JUST BRING THE LAWSUIT WHERE YOU'RE ASKING
21 US TO BRING IT. BUT, OF COURSE, YOU COULD JUST GIVE US THE
22 NAME AND ADDRESS, PURSUANT TO A CONFIDENTIALITY AGREEMENT OR
23 PROTECTIVE ORDER, SO THAT WE COULD DO OUR FURTHER
24 INVESTIGATION, AND HE SAID, NO. I WON'T GIVE YOU THAT.
25 SO WE -- WE'RE LEFT WITH THIS IS OUR MEANS TO GET
11
1 THE INFORMATION. AS YOUR HONOR APPROPRIATELY POINTED OUT,
2 THAT COBBLER AND OTHER CASES, AND THE NUMEROUS CASES TALKING
3 ABOUT COBBLER IN THIS CONTEXT, THAT SAID COBBLER STANDS FOR
4 THE POSITION AT A MINIMUM YOU GET THE NAME AND ADDRESS AT THE
5 BEGINNING OF THE CASE.
6 SO -- AND, IN FACT, ALTHOUGH YOUR HONOR SAID COBBLER
7 DOESN'T MENTION THE EARLY SUBPOENA, IN FACT, IT SORT OF DOES.
8 IT TALKS ABOUT HOW THE LOWER COURT GRANTED THAT SUBPOENA.
9 AND IN COBBLER, THE NINTH CIRCUIT CALLED IT, QUOTE, PART OF
10 THE PUZZLE. IT'S EXACTLY THAT. IT'S PART OF THE INITIAL
11 PUZZLE YOU NEED TO GET TO FIGURE OUT WHO IS THE ACTUAL
12 INFRINGER.
13 SO WE'VE ASKED FOR THAT BASIC INFORMATION, AND JUST
14 EVERY TIME -- AND, AGAIN, WE SAY, WE'LL PUT CONFIDENTIALITY
15 IN PLACE, JUST GIVE US THAT INFORMATION. MR. VONDRAN SAYS,
16 NO, I WON'T. OKAY. SO THEN OUR HANDS ARE TIED. WE MUST
17 BRING A FEDERAL ACTION BECAUSE HE'S OBJECTED TO FLORIDA BY
18 SAYING IT'S NOT APPROPRIATE.
19 WE'VE SET FORTH HOW THE FLORIDA ACTION IS MORE THAN
20 APPROPRIATE. THERE IS NO BURDEN IN THE FLORIDA ACTION AT ALL
21 TO A DEFENDANT BECAUSE THEY ARE NOT EVEN REALLY A DEFENDANT
22 IN FLORIDA. IT IS A BILL OF DISCOVERY ACTION, SO IT REALLY
23 IS AN ACTION TO GET INFORMATION FROM THE ISP SO WE CAN DO
24 FURTHER INVESTIGATION. GIVE US THE NAME AND ADDRESS SO WE
25 CAN PLUG THAT INTO SOME PUBLICLY AVAILABLE INFORMATION AND DO
12
1 A FURTHER INVESTIGATION.
2 THE DEFENDANT IS NOT SUBJECT TO ANY MONETARY
3 DAMAGES, ANY CLAIMS, ANY ANYTHING. THE ACTUAL ISP
4 SUBSCRIBER, THEY ARE NOT SUBJECT TO ANY CLAIMS BECAUSE IT'S
5 JUST AN ACTION FOR DISCOVERY IN FLORIDA. ONCE WE GET THAT
6 INFORMATION, WE CAN DECIDE WHETHER WE WANT TO PROCEED WITH
7 FILING A LAWSUIT IN FEDERAL COURT. AND SOMETIMES WE DO;
8 SOMETIMES WE DON'T.
9 WHEN WE DO, UNDER THE FLORIDA ORDER AND UNDER OUR
10 OWN POLICY, WE FILE THOSE ACTIONS ANONYMOUSLY. WE DON'T EVER
11 NAME THE DEFENDANT. WE ALWAYS AGREE TO PROTECTIVE ORDERS.
12 WE'RE NEVER GOING TO ENGAGE IN SHAME SETTLEMENTS OR
13 EMBARRASSMENT OR ANYTHING OF THAT NATURE. WE'RE FINE WITH
14 DEFENDANTS REMAINING ANONYMOUS THROUGHOUT BEING IN THIS
15 LITIGATION. WE JUST SIMPLY WANT TO GO AFTER PEOPLE WHO ARE
16 ILLEGALLY DISTRIBUTING AND DOWNLOADING OUR FILMS.
17 SO YOUR HONOR IS CORRECT AS WELL THAT THERE IS NO
18 UNDUE BURDEN. THE DEFENDANT DOESN'T HAVE TO DO ANYTHING.
19 THE DEFENDANT DOESN'T HAVE TO PRODUCE ANYTHING. IT'S THE ISP
20 THAT HAS THE BURDEN, IF AT ALL. THEY HAVE TO GO CHECK THEIR
21 FILES AND GIVE US THE NAME AND ADDRESS, WHICH WE PAY THEM TO
22 DO. AND THEY GIVE US A BILL, AND THEN THEY GIVE US THAT
23 INFORMATION. THEY ARE THE ONES WITH THE BURDEN. THEY ARE
24 NOT OBJECTING AT ALL.
25 AS YOU SAID, WE AGREED -- WE AGREED NOT ONLY TO A
13
1 PROTECTIVE ORDER, TO THE ONE DEFENDANT'S COUNSEL PROPOSED, WE
2 STIPULATED TO IT; BECAUSE WE'RE, AGAIN, FINE WITH THAT.
3 SO AS YOUR HONOR POINTED OUT, THIS IS DONE ALL THE
4 TIME WITH CHILD PORNOGRAPHY CASES AND LAW ENFORCEMENT UNDER A
5 PROBABLE CAUSE STANDARD. THIS IS MUCH LESS THAN A PROBABLE
6 CAUSE STANDARD. THIS IS JUST SIMPLY, IS IT PLAUSIBLE. THAT
7 IS THE 12(B)(6) STANDARD, IS IT PLAUSIBLE THAT THE SUBSCRIBER
8 IS THE INFRINGER? IT CERTAINLY IS PLAUSIBLE THAT IT IS.
9 BUT AT A MINIMUM, THAT INFORMATION IS GOING TO LEAD
10 TO ADDITIONAL INFORMATION THAT PERHAPS IT IS SOMEBODY IN THE
11 HOUSEHOLD. BUT CERTAINLY KNOWING WHO THE SUBSCRIBER IS --
12 AND AT THE TIME OF FILING THE LAWSUIT, THAT'S THE ONLY HUMAN
13 BEING WE KNOW EXISTS ON THE PLANET, THE SUBSCRIBER. ARE
14 THERE TWO PEOPLE IN THE HOUSEHOLD, TEN PEOPLE, A HUNDRED
15 PEOPLE? WE DON'T KNOW. BUT WE DO KNOW A SUBSCRIBER EXISTS
16 ON PLANET EARTH, AND THAT'S WHO WE'RE ASKING FOR THE
17 INFORMATION OF.
18 SO THERE IS NOTHING UNUSUAL ABOUT THIS. IT'S NOT A
19 CUT-AND-RUN. IT'S NOT ANYTHING OF THAT NATURE. WE -- BASED
20 ON SUGGESTIONS BY SOME FEDERAL COURTS THAT SAID, HEY, IS
21 THERE OTHER WAYS YOU CAN GET THIS INFORMATION WITHOUT HAVING
22 TO NECESSARILY BURDEN THE FEDERAL COURTS?
23 WE WENT AND LOOKED, AND BECAUSE OUR SERVERS ARE IN
24 FLORIDA, AND WE HAVE A CONNECTION THERE, WE DETERMINED THAT
25 THE BILL OF DISCOVERY MECHANISM IS A VIABLE OPTION TO TRY TO
14
1 GET ADDITIONAL INFORMATION BEFORE WE FILE FEDERAL LAWSUITS.
2 BUT THEN PEOPLE LIKE MR. VONDRAN COME IN AND SAY,
3 NO, MOTION TO QUASH. FLORIDA IS NOT PROPER. FEDERAL
4 PREEMPTION, ALL KINDS OF ARGUMENTS. AGAIN, WE THINK THOSE
5 ARGUMENTS ARE WRONG, BUT THEY BASICALLY SAY, WE DON'T WANT
6 YOU TO SUE US HERE. WE WANT YOU TO SUE US IN CALIFORNIA.
7 OKAY. SO WE WILL.
8 SO WE'RE NOT TRYING TO DELAY. WE'RE NOT TRYING TO
9 MAKE THEM HAVE A DOUBLE EXPENSE. THERE IS NOTHING THEY HAVE
10 TO DO IN FLORIDA. ALL WE'RE GOING TO DO IS GET THE NAME AND
11 ADDRESS. BUT IF THEY WANT TO DO IT, THEY DO IT.
12 SO THIS IS A REALLY EARLY PART OF THE CASE. WE'RE
13 TRYING TO GET SOME BASIC, EARLY INFORMATION SO WE CAN PROCEED
14 FURTHER. THERE IS NO UNDUE BURDEN HERE. CLEARLY THIS WILL
15 WITHSTAND A MOTION TO DISMISS. AND NUMEROUS CASES IN
16 CALIFORNIA, IN SAN DIEGO AND IN L.A. AND IN THE NORTHERN
17 DISTRICT AND IN SACRAMENTO, THEY HAVE ALL LOOKED AT COBBLER,
18 THEY HAVE ALL LOOKED AT THESE ARGUMENTS AND SAID, THIS EASILY
19 AT THIS VERY EARLY STAGE WITHSTANDS A MOTION TO DISMISS.
20 SO THE MOTION TO QUASH I THINK JUST SIMPLY SHOULD
21 NOT STAND.
22 THE COURT: ALL RIGHT. THANK YOU.
23 ANY RESPONSE, SIR?
24 MR. VONDRAN: WELL, YES, YOUR HONOR.
25 FIRST OF ALL, WE DIDN'T HANDLE THE FLORIDA CASE, SO
15
1 TO SAY THAT I SAID, NO, DON'T SUE THEM IN FLORIDA, SUE THEM
2 IN CALIFORNIA BECAUSE WE'VE HAD EARLIER DISCUSSIONS, THAT
3 KIND OF MISSES THE POINT AND IS KIND OF A LITTLE BIT
4 MISLEADING.
5 THE COURT: EXCUSE ME, SIR. WHY ARE YOU UTILIZING
6 YOUR CLIENT'S INFORMATION IN THAT REGARD TO CHALLENGE THE
7 SUBPOENA? YOU WERE INVOLVED IN IT.
8 MR. VONDRAN: RIGHT.
9 THE COURT: CAN YOU DIRECTLY REFUTE THE INFORMATION
10 PROVIDED BY PLAINTIFF'S COUNSEL AS TO WHY HE DID THAT AND WHY
11 HE WAS LED TO BELIEVE FROM YOUR CLIENT'S COUNSEL IN FLORIDA
12 TO FILE A LAWSUIT HERE AND HE DID THAT. SO WHY IS THAT
13 VINDICTIVE OR WHY IS THAT PROLONGING THE INVESTIGATION OR THE
14 ACTION HERE IN CALIFORNIA?
15 MR. VONDRAN: OKAY. SO WHY IS THAT DELAYING?
16 BECAUSE THEY -- IT'S SIMPLE. THEY ARE FILING -- THEY ARE
17 TELLING YOU RIGHT NOW HOW VIABLE THE OPTION IS IN FLORIDA.
18 JUDGE, THEY HAVE NEVER -- THEY HAVE NEVER TAKEN IT THROUGH
19 AND PROVED THAT. THEY CUT AND RUN ON EVERY SINGLE CASE.
20 OKAY.
21 SO IT'S NOT VIABLE TO -- IT'S NOT VIABLE UNLESS
22 NOBODY CHALLENGES IT. TO ME, THAT'S AN ABUSE OF THE PROCESS,
23 WHEN YOU FILE SOMETHING AND YOU KNOW YOU HAVE NO INTENTION --
24 HERE WE ARE, SEVEN MONTHS LATER STILL TALKING ABOUT THIS;
25 THAT'S A DELAY, AND THAT'S A PREJUDICIAL DELAY.
16
1 AND THE PROBLEM IS --
2 THE COURT: OKAY. OKAY. EXCUSE ME, SIR.
3 PREJUDICIAL DELAY. WHAT WITNESSES HAVE BEEN LOST?
4 MR. VONDRAN: WE DON'T -- THEY ARE LOOKING FOR
5 INFORMATION. THE SUBPOENA THEY ASKED CHARTER COMMUNICATIONS
6 FOR IS A SNAPSHOT ON ONE DAY, SEPTEMBER 24TH, 2019.
7 THE COURT: WELL, WOULDN'T THE DEFENDANT HAVE
8 INFORMATION AS TO WHO WAS USING THE COMPUTER OR WHO WAS IN
9 THE HOME AT THAT TIME? I MEAN, WHY IS THAT A DELAY?
10 MR. VONDRAN: WELL, THE DELAY IS WE MAY NOT EVER
11 FIND OUT WHAT CHARTER HAS. WE MAY HAVE INFORMATION, A
12 BROWSING HISTORY THAT ON 9/24/19, MY CLIENT WAS NEVER ON THE
13 INTERNET. OKAY. IF THAT INFORMATION IS NOT THERE ANYMORE, I
14 GUESS WE DON'T HAVE THAT INFORMATION.
15 SO WE'RE ENTITLED TO THE SAME INFORMATION, DISCOVERY
16 THAT THEY ARE LOOKING FOR, AND SO, YOU KNOW -- BUT I THINK,
17 AGAIN, I THINK WE GET LOST WHEN WE DON'T FOCUS ON THE
18 STANDARDS FOR GRANTING EARLY DISCOVERY, WHICH IS SUPPOSED TO
19 BE RARE IN REGARDS TO THIS TWO-STATE PROCESS.
20 THEY DON'T PURSUE ANYTHING IN FLORIDA. IF YOU
21 CHALLENGE THEM, THEY RUN. THEY ARE OUT OF THERE. BUT THEY
22 ARE TELLING YOU HOW VIABLE IT IS. OKAY. BUT I DON'T THINK
23 HE'S ALLOWED TO GO INTO OLD COMMUNICATIONS. I NEVER SAID ON
24 THIS PARTICULAR CASE, HEY, WHY DON'T YOU SUE THEM IN
25 CALIFORNIA WHERE YOU KNEW WITH 99 PERCENT THEY ARE LOCATED.
17
1 WHY DON'T -- I NEVER TOLD HIM THAT ON THIS CASE. IS
2 THAT WHAT HE'S REPRESENTING?
3 THE COURT: COUNSEL, WHAT WOULD BE UNUSUAL
4 CIRCUMSTANCES IN YOUR VIEW TO WARRANT EARLY DISCOVERY UNDER
5 THE RULE?
6 MR. VONDRAN: WELL, THEY WOULD HAVE TO MEET THE
7 STANDARDS. ONE, THAT RULE 45 IS THE FIRST STANDARD. CAN
8 THEY SHOW THAT THERE IS A LESS EXPENSIVE WAY TO DO THIS?
9 THIS IS CLEARLY IN THE LAW. YES. HE'S TELLING YOU MIAMI IS
10 A LESS EXPENSIVE WAY TO DO IT. IT'S FREE TO FILE, BUT THEY
11 WON'T PURSUE IT. SO THEY CAN'T EVEN MEET THE LESS EXPENSIVE.
12 I WOULD CONTINUE TO ARGUE IT'S UNDUE BURDEN TO
13 SUBJECT PEOPLE TO TWO ACTIONS WHEN THE FIRST ACTION YOU HAVE
14 NO INTENT ON PURSUING.
15 I WOULD LOOK THEN TO THE THREE-FACTOR TEST, WHICH I
16 DID NOT SEE ARTICULATED IN COBBLER SAYING THE THREE-FACTOR
17 TEST DOES NOT APPLY. IS THAT WHAT THEY ARE SUGGESTING?
18 THE COURT: NO. YOU MENTIONED THE THREE-FACTOR
19 TEST, THAT FACTOR NO. 2 DEALT WITH IT SHOULD BE UTILIZED ONLY
20 IN UNUSUAL CIRCUMSTANCES.
21 SO I'M ASKING YOU, IF THIS IS NOT AN UNUSUAL
22 CIRCUMSTANCE, WHAT MIGHT -- IF THIS IS NOT AN UNUSUAL
23 CIRCUMSTANCE WHERE THERE -- ONE COULD INFER FROM THE
24 COMPLAINT THERE IS SOME HIDE-AND-SEEK BY THE DEFENDANT AND
25 HE'S UTILIZING THE RULES TO HIS -- AS A SWORD AND A SHIELD.
18
1 SO WHAT WOULD BE AN UNUSUAL CIRCUMSTANCE?
2 MR. VONDRAN: WELL, I DON'T KNOW. YOU'RE ASKING ME
3 TO GIVE YOU A -- SPECULATE ON THAT, AND I MEAN, I'M TRYING TO
4 FOCUS HERE. BUT IT CLEARLY SAYS, PLAINTIFFS MUST SHOW IT'S
5 MADE A GOOD-FAITH EFFORT TO IDENTIFY.
6 THEY ARE NOT MAKING A GOOD-FAITH EFFORT TO IDENTIFY
7 IF THEY ARE FILING ACTIONS IN STATE COURT THAT THEY HAVE NO
8 INTENTION OF PURSUING AND JUST RAISING THE COST AND EXTENDING
9 THE LITIGATION. SO --
10 THE COURT: IF YOU ASKED COUNSEL, WHAT IS THE NAME
11 AND ADDRESS, WE'LL KEEP IT CONFIDENTIAL, WE WANT TO DO THIS
12 AND COUNSEL SAYS NO, IS THAT A GOOD-FAITH EFFORT TO IDENTIFY
13 OR NOT?
14 MR. VONDRAN: WELL, DID HE DO THAT IN THIS CASE?
15 THE COURT: THAT'S THE REPRESENTATION I HEARD A
16 MOMENT AGO.
17 MR. VONDRAN: IS THAT THE REPRESENTATION?
18 MR. BANDLOW: I'VE DONE IT IN EVERY SINGLE CASE I'VE
19 HAD WITH MR. VONDRAN. EARLY ON I SAY, WOULD YOU VOLUNTARILY
20 GIVE ME THE NAME AND ADDRESS? IT'S A MATTER OF COURSE.
21 MR. VONDRAN: DID YOU ASK IN THIS CASE?
22 MR. BANDLOW: I BELIEVE WE HAD COMMUNICATIONS ABOUT
23 THESE FLORIDA ACTIONS THEN BEING TRANSLATED INTO CALIFORNIA
24 ACTIONS, IN WHICH I SAID IN EVERY ONE OF THOSE, RATHER THAN
25 YOU FILING --
19
1 MR. VONDRAN: SOUNDS LIKE A NO.
2 MR. BANDLOW: -- A MOTION TO QUASH IN FLORIDA. I DO
3 BELIEVE THERE IS CORRESPONDENCE ABOUT THIS PARTICULAR CASE.
4 I WOULD HAVE TO LOOK FOR IT.
5 BUT THIS WAS A SERIES OF ABOUT TEN CASES WHERE YOU
6 SAID AS TO ALL TEN, YOU WERE GOING TO MOVE TO QUASH IN
7 CALIFORNIA BASED ON THIS, THAT AND OTHER GROUNDS. AND I
8 SAID, WHY DO THAT? WHY NOT GIVE ME THE NAME AND ADDRESS.
9 MR. VONDRAN: SOUNDS LIKE A NO.
10 THE COURT: I'LL INTERPRET IT, SIR.
11 ANYTHING ELSE?
12 MR. VONDRAN: WELL, NO, JUDGE. I THINK YOU HAVE OUR
13 ARGUMENT IN THE PLEADINGS AND IN OUR ORAL ARGUMENTS.
14 IF THIS -- YOU KNOW, IF THIS IS THE WAY IT GOES, YOU
15 KNOW, MIAMI WILL BECOME THE COPYRIGHT UNMASKING HOME, EVEN
16 THOUGH THEY WON'T -- THEY WON'T -- WHEN CONTESTED WITH A
17 LEGAL BRIEF, THEY CUT AND RUN.
18 AND, YOU KNOW, ADDING TO THE DELAY, ADDING TO THE
19 BURDENS, IT JUST -- LIKE I SAID, I THINK YOU KNOW WHERE WE
20 STAND. I THINK IT'S COMPLETELY IMPROPER. I THINK IT SHOULD
21 BE DISMISSED FOR UNNECESSARY, INTENTIONAL DELAY, AND I THINK
22 THE SUBPOENA SHOULD BE QUASHED FOR THE REASONS STATED.
23 THE COURT: OKAY.
24 MR. BANDLOW: YOUR HONOR, THIS IS MR. BANDLOW. CAN
25 I RESPOND TO A COUPLE OF THOSE POINTS THAT ARE IMPORTANT?
20
1 THE COURT: YES. AND I'D LIKE FOR YOU ALSO TO
2 SPECIFICALLY RESPOND TO THE REASONS WHY A RULE 41 DISMISSAL
3 WOULD NOT BE APPROPRIATE.
4 MR. BANDLOW: OH, YEAH. WELL, SO FIRST OF ALL, IN
5 TERMS OF DELAY, THE FILING OF A MOTION TO QUASH IN FLORIDA IS
6 ENTIRELY FOR DELAY, BECAUSE EVERY SINGLE TIME THOSE ARE
7 FILED, INCLUDING IN THIS CIRCUMSTANCE, THE COUNSEL THERE IN
8 FLORIDA DOES NOT NOTICE A HEARING.
9 THEY DON'T WANT A HEARING BECAUSE THEY KNOW THAT THE
10 FLORIDA COURTS WILL TAKE SIX OR EIGHT OR SO -- A LONG TIME TO
11 EVEN SET THESE THINGS FOR A HEARING. AND RATHER THAN HAVE
12 THE PREJUDICE OF THAT KIND OF DELAY, WE THEN SAY, WELL, LOOK,
13 IF YOU FILE THAT, YOUR BASIC ARGUMENT IS, YOU SHOULD SUE ME
14 IN FEDERAL COURT. OKAY. HERE WE GO.
15 AND IT CUTS OFF THE DELAY BECAUSE THEN WE CAN GO ASK
16 THE FEDERAL COURT, LET'S GET THIS INFORMATION RIGHT NOW
17 BECAUSE WE DON'T WANT TO WAIT TEN MONTHS OR ELEVEN MONTHS IN
18 FLORIDA. AS FOR THIS NOTION THAT THE DELAY -- FIRST OF ALL,
19 THAT DELAY IS CAUSED BY THEM; NOT BY US. WE WANT TO GET THE
20 INFORMATION AS QUICKLY AS POSSIBLE.
21 BUT SECONDLY, WHEN WE FILED THE ACTION IN MIAMI, WE
22 SENT COLD LETTERS TO THE ISP, SO THEY ARE HOLDING INFORMATION
23 ANYWAY; SO THERE IS NO PREJUDICE OR LOSS OF INFORMATION. AND
24 AS YOUR HONOR POINTED OUT, THE DEFENDANT STILL HAS ALL THEIR
25 INFORMATION. SO I DON'T SEE HOW THAT ARGUMENT WORKS.
21
1 REGARDING A RULE 41 PROBLEM, I MEAN, THIS IS NOWHERE
2 NEAR GROUNDS FOR A RULE 41 DISMISSAL. THERE IS NO KIND OF
3 DISOBEDIENCE. THERE IS NO VIOLATION OF ANY COURT ORDER. WE
4 HAVE NOT VIOLATED ANY ORDER OF THIS COURT OR OF THE
5 MAGISTRATE. WE FILED THIS ACTION AS SOON AS POSSIBLE, AS
6 SOON AS WE REALIZED THAT THEY WERE GOING TO TRY TO DO
7 ANYTHING THEY COULD TO THWART US FROM GETTING INFORMATION
8 PURSUANT TO THE FLORIDA ACTION.
9 SO THERE IS NOTHING EVEN CLOSE TO THE GROUNDS FOR A
10 RULE 41(B) SANCTION OF DISMISSAL OF AN ACTION, WHICH IS, OF
11 COURSE, A QUITE DRACONIAN REMEDY FOR AN ALLEGED WRONGDOING OF
12 WHICH THERE IS NOT. SO I THINK THAT'S AN ENTIRELY
13 INAPPROPRIATE GROUNDS FOR DISMISSING THE ACTION.
14 THE COURT: ALL RIGHT. THANK YOU.
15 AND YOUR THOUGHTS WITH RESPECT TO SANCTIONS
16 REQUESTED BY DEFENDANT?
17 MR. BANDLOW: RULE 11, YEAH. I WOULD JUST ECHO WHAT
18 WE SAID IN OUR PLEADING. FIRST OF ALL, THERE IS NOT THE SAFE
19 HARBOR PROVISION BEING FOLLOWED WITH; AND SECONDLY, AS THE
20 NORTHERN DISTRICT HAS HELD AND THE CENTRAL DISTRICT HAS HELD,
21 THERE IS NO CONDUCT HERE THAT EVEN REMOTELY APPROACHES A
22 RULE 11 VIOLATION.
23 THE COURT: ALL RIGHT. MR. VONDRAN, THIS IS YOUR
24 MOTION. YOU GET THE LAST WORD, SIR.
25 MR. VONDRAN: WELL, I WOULD SAY RULE 11 ALSO WOULD
22
1 INCLUDE, YOU KNOW, FILING -- SUING SUBSCRIBERS AND CALLING
2 THEM INFRINGERS WHEN THEY HAVE ABSOLUTELY NO IDEA IF THEY ARE
3 OR THEY AREN'T. HE JUST ADMITTED THERE COULD BE TEN PEOPLE
4 IN A HOUSE, YOU KNOW, THAT KIND OF THING.
5 BUT ANYWAY, YOU KNOW, BOTTOM LINE IS, I THINK THE
6 COURT NEEDS TO LOOK AT THIS FOR WHAT IT IS. IT'S A
7 SHAKEDOWN. THEY ARE TRYING TO USE THE COURTS AS A COLLECTION
8 ARM TO THEIR PRACTICE. THEY DON'T KNOW WHO THESE PEOPLE ARE.
9 THEY ARE HARASSING A LOT OF PEOPLE, GOOD PEOPLE, YOU
10 KNOW, THAT HAVE NOTHING TO DO WITH THIS, AND THEY ARE BEING
11 FORCED TO DIG INTO THEIR POCKETS, PAY NOT ONCE, PAY NOT
12 TWICE. THEY DON'T UNDERSTAND THE LEGAL SYSTEM, HOW YOU CAN
13 FILE SOMETHING THAT YOU HAVE NO INTENT TO PURSUE AND GET
14 DISMISSED ON ONE CASE ONLY TO BE PURSUED IN ANOTHER CASE.
15 OKAY.
16 SO IT'S JUST -- TO US, THIS IS ABUSIVE. IT'S
17 PREJUDICIAL. THEY DON'T MEET THE THREE-FACTOR TEST. THEY
18 CANNOT SHOW THEY MADE A GOOD-FAITH EFFORT TO IDENTIFY. THEY
19 HAD A CHANCE. THEY DIDN'T DO IT. THEY CUT AND RUN. AND
20 THEY CAN'T SHOW THAT THEY WERE ANYWHERE NEAR SURVIVING A
21 MOTION TO DISMISS. WE BELIEVE THE COBBLER CASE IS A MOTION
22 TO DISMISS CASE, NOT A DISCOVERY CASE.
23 SO WE THINK THAT THIS IS ENTIRELY IMPROPER.
24 THE COURT: SIR, WOULD YOU AGREE THAT TECHNOLOGY AND
25 THE ABUSE OF TECHNOLOGY CREATES A UNIQUE OVERLAY IN THE
23
1 APPLICATION OF ESTABLISHED PRINCIPLES OF FEDERAL LAW?
2 MR. VONDRAN: I WOULD AGREE, YOUR HONOR. I WOULD
3 AGREE. IT IS UNIQUE TIMES, AS IS OFTEN SAID THAT LAW LAGS
4 BEHIND TECHNOLOGY. BUT I THINK WE HAVE PRINCIPLES THAT,
5 UNLESS CHANGED, STILL NEED TO APPLY.
6 THE COURT: ALL RIGHT. THANK YOU VERY MUCH.
7 COUNSEL, I APPRECIATE YOUR INPUT. THE COURT WILL
8 TAKE THE MATTER UNDER SUBMISSION. AN ORDER WILL BE ISSUED IN
9 THE NEAR FUTURE.
10 MR. VONDRAN: THANK YOU, YOUR HONOR.
11 MR. BANDLOW: THANK YOU SO MUCH, YOUR HONOR.
12 THE COURT: YOU'RE WELCOME.
13 WE'RE IN RECESS.
14 (PROCEEDINGS CONCLUDED AT 11:28 A.M.)
15 --O0O--
16 C E R T I F I C A T I O N
17 I HEREBY CERTIFY THAT I AM A DULY APPOINTED,

QUALIFIED AND ACTING OFFICIAL COURT REPORTER FOR THE UNITED
18 STATES DISTRICT COURT; THAT THE FOREGOING IS A TRUE AND
CORRECT TRANSCRIPT OF THE PROCEEDINGS HAD IN THE
19 AFOREMENTIONED CAUSE; THAT SAID TRANSCRIPT IS A TRUE AND
CORRECT TRANSCRIPTION OF MY STENOGRAPHIC NOTES; AND THAT THE
20 FORMAT USED HEREIN COMPLIES WITH THE RULES AND REQUIREMENTS
OF THE UNITED STATES JUDICIAL CONFERENCE.
21
DATED: MAY 7, 2020, AT SAN DIEGO, CALIFORNIA.
22
S/CAMERON P. KIRCHER
23 CAMERON P. KIRCHER
24
25

Strike 3 Early Discovery Argument in San Diego District Court

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Strike 3 Early Discovery Argument in San Diego District Court

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1

1 UNITED STATES DISTRICT COURT

2 SOUTHERN DISTRICT OF CALIFORNIA

16 FOR THE PLAINTIFF: LAW OFFICES OF LINCOLN D. BANDLOW

19 FOR THE DEFENDANT: LAW OFFICES OF STEVEN C. VONDRAN, PC

23 REPORTED BY: CAMERON P. KIRCHER

1 SAN DIEGO, CALIFORNIA - TUESDAY, MAY 5, 2020

3 THE CLERK: ALL RIGHT. CALLING MATTER NO. 1 ON THE

4 CALENDAR, 19CV2452, STRIKE 3 HOLDINGS, LLC VS. DOE.

5 THE COURT: GOOD MORNING, COUNSEL.

6 MR. BANDLOW: GOOD MORNING, YOUR HONOR.

7 THE COURT: MAY WE HAVE YOUR APPEARANCES FOR THE

9 MR. BANDLOW: YES, YOUR HONOR. THIS IS LINCOLN

10 BANDLOW APPEARING ON BEHALF OF PLAINTIFF, STRIKE 3 HOLDINGS,

12 THE COURT: GOOD MORNING.

13 MR. VONDRAN: AND THIS IS STEVE VONDRAN APPEARING ON

14 BEHALF OF JOHN DOE DEFENDANT SUBSCRIBER I.D. 70.95.76.252.

16 THE COURT: GOOD MORNING, SIR.

17 WE'RE HERE ON DEFENDANT'S MOTIONS TO QUASH A

18 THIRD-PARTY SUBPOENA, THE MOTION TO DISMISS AND MOTION FOR

20 I'VE REVIEWED THE PLEADINGS, COUNSEL. I'D LIKE TO

22 WITH RESPECT TO THE MOTION TO QUASH.

23 FROM MY REVIEW OF THE RECORD, PLAINTIFF REQUESTED A

24 SUBPOENA, A THIRD-PARTY SUBPOENA BE ISSUED. FIRST, DEFENDANT

25 DID NOT OBJECT AND HE ESSENTIALLY CONSENTED TO THE ISSUANCE

1 OF THE SUBPOENA WITH -- PROVIDED THAT PRIVACY PROTECTION

2 PROVISIONS WERE INCLUDED. PLAINTIFF DID NOT OBJECT TO THE

3 PRIVACY PROTECTION PROVISIONS.

4 THE MAGISTRATE JUDGE GRANTED THE ORDER FOR SERVING

5 THE SUBPOENA AND INCLUDED DEFENDANT'S REQUESTED PRIVACY

6 PROTECTION LANGUAGE. AND IT APPEARS THAT ANY RISK OF

7 EMBARRASSMENT OR ANNOYANCE WOULD BE ELIMINATED. NOW

8 PLAINTIFF -- DEFENDANT MOVES TO QUASH.

10 MR. VONDRAN: OKAY. THANK YOU, YOUR HONOR.

11 WELL, YOU HAVE TO LOOK AT THE STANDARDS FOR GRANTING

12 EARLY DISCOVERY. THE CASE LAW IS CLEAR THAT THIS IS TO BE

13 GRANTED ONLY IN RARE CIRCUMSTANCES. THIS IS NOT SOMETHING

14 THAT ANYTIME SOMEBODY WANTS TO FILE A LAWSUIT, YOU JUST GO

15 SEEK EARLY DISCOVERY.

17 FIRST CONTEST IT, AS OPPOSED TO CONSENT WITH PROVISIONS FOR

19 MR. VONDRAN: WELL, I'M NOT SURE I CAN ANSWER THE

20 QUESTION. I BELIEVE WE OPPOSED THIS THE FIRST OPPORTUNITY

21 THAT WE LEARNED OF IT.

22 YOU HAVE TO UNDERSTAND, THERE WAS TWO CASES THAT

23 WERE FILED. ONE IS IN MIAMI STATE COURT. THAT WAS OPPOSED,

24 THAT WAS OPPOSED WITH THE MOTION TO QUASH. STRIKE 3

25 DISMISSED THEIR CASE VOLUNTARILY, PROBABLY TO AVOID RES

1 JUDICATA PROBLEMS, AND THEN CAME AND FILED THIS CASE.

2 THE FIRST NOTICE THAT WE GOT, WE CAME IN AND WE

3 FILED OUR MOTION. SO I'M NOT SURE IF THAT'S HITTING ON YOUR

5 THE COURT: ALL RIGHT. PROCEED. I'D LIKE TO HEAR

7 MR. VONDRAN: SO, YOU KNOW, THESE EARLY DISCOVERY

9 RULE 45 FOR THE ISSUANCE OF SUBPOENA, IF WE LOOK AT THE

10 STANDARDS, THE STANDARDS ARE NOT MET HERE.

11 AND SO THE COURT HAS THE DISCRETION, AND UNDER

12 FRCP 26 AT THIS STAGE -- AND THEY ARE GOING TO ARGUE, WELL,

13 COBBLER SAYS SOMETHING DIFFERENT, BUT AT THIS STAGE, THE

15 THAT THEY ARE ABLE TO WITHSTAND A MOTION TO DISMISS.

16 AND IT'S CLEAR SUING AN INTERNET SUBSCRIBER IS JUST

17 LIKE -- IS LIKE SUING SOMEBODY FOR FLYING A DRONE OVER MY

18 BACKYARD. I DON'T KNOW WHO IT IS, SO I SUE MY NEIGHBOR. YOU

19 KNOW, SO IT'S REALLY JUST THROWING DARTS WITH A BLINDFOLD ON.

20 SO THEY CAN'T MEET THAT STANDARD. THAT'S CLEARLY