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Attorney Evan Stone Fined $10K Over 'Improper' Subpoenas

Attorney Evan Stone Fined $10K Over 'Improper' Subpoenas
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Sep 13, 2011 10:00 AM PDT    Text size: 

DALLAS — A federal judge has fined attorney Evan Stone $10,000 for sending out subpoenas before getting court approval.

But Stone told XBIZ he plans to appeal the ruling and said that people have lost sight of why these BitTorrent suits are happening in the first place.

"Years ago, we in the entertainment industry made a deal with the nation’s largest Internet service providers," Stone said. "Part of this deal stated that we wouldn’t sue ISPs for unlawfully distributing content through their networks [at the behest of their customers] provided that the ISPs would help us identify the individuals engaged in these unlawful activities.  The problem now is that the ISPs have welshed on their end of the deal."

Stone, who earlier this year filed a BitTorrent lawsuit at U.S. District Court in Dallas targeting 670 John Does on behalf of Mick Haig Productions , asked the court to allow him to send out subpoenas to Internet service providers to find out the identities of the infringers.

But the court never made a ruling on the request and instead ordered the ISPs to store the information for a later date.

Stone said that the only alternative seems to be is to file a federal lawsuit and obtain a court order specifically granting discovery that IPSs had originally promised to comply with on their own volition. 

"This 'sue first and ask questions later' approach we are left is far from ideal for everyone involved, but the copyright holder’s right to conduct discovery to identify wrongdoers should not be in question," Stone said.

The Electronic Frontier Foundation represented the defendants in the case and asked the court to disallow subpoenas seeking the identities of the accused Does.  The judge ruled that Stone was not to send out any subpoenas until after the court ruled if it was proper to do so.

However, Stone sent out the subpoenas anyway, and began identifying individuals, even though the court had not ruled if it was proper.

By serving invalid subpoenas, Stone necessarily, “imposed an undue burden or expense on each ISP and the putative Does,” the court said. “To say that the subpoenas imposed an undue burden on their targets fails to capture the gravity of Stone’s abdication of responsibility because Stone obtained information that he had no right to receive.”

Stone was ordered by the court to pay $10,000 in sanctions and take remedial steps outlined by the judge.

"Discovery can, most certainly, be guided by the court," Stone said. "But for an order to be issued at the outset of a case that discovery itself should be opposed continues to perplex me."

Stone added that Congress had some notion of the "volume of piracy we would be experiencing now and noone, even today, could suggest with a straight face that the simple, essential step of matching an account holder to an IP address merits the scrutiny of a federal judge every time someone unlawfully downloads the content of another.  That scrutiny should be reserved for the merits of the case."

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