2005 Anonymity and Litigation Strategies

A presentation on anonymity in litigation and discussing internet service providers, plaintiffs, and does. Additionally, I discussed litigation strategies.

1. 2008 Copyright Mudd Law Offices
Anonymity and Litigation Strategy
Presented to:
Chicago Bar Association’s
Cyberlaw and Data Privacy Committee
March 18, 2008
12:15pm

2. 2008 Copyright Mudd Law Offices
Parties Involved
•Internet Service Providers (ISPs)
•Plaintiffs
•Does

3. 2008 Copyright Mudd Law Offices
ISP Issues
•Disclosure Policies
–www.TheAnonymousEmail.com
•Privacy Policies
•Statutes

4. 2008 Copyright Mudd Law Offices
ISP Issues (cont’d)
•Compliance Is Tantamount

5. 2008 Copyright Mudd Law Offices
Plaintiff Issues
•Litigation Strategy
•Standards
•Preparation

6. 2008 Copyright Mudd Law Offices
Litigation Strategy
•Petition for Pre-Suit Discovery
•Doe Defendant

7. 2008 Copyright Mudd Law Offices
Litigation Strategy (cont’d)
•Petition for Pre-Suit Discovery
–Plaintiff v. ISP
–Origination
–Disfavored

8. 2008 Copyright Mudd Law Offices
Litigation Strategy (cont’d)
•Doe Complaint
–Plaintiff v. Doe
•…..and possibly ISP
–Involves all parties
–Favored Approach

9. 2008 Copyright Mudd Law Offices
Litigation Strategy (cont’d)
•Doe Complaint (cont’d)
–Complaint (Make Sure Factually Sound)
–Motion for Expedited Discovery
–Subpoenas

10. 2008 Copyright Mudd Law Offices
Standards
•Early Standards
–Motion to Dismiss
Columbia Insurance Co. v. Seescandy.com
185 F.R.D. 573, 578 (N.D. Cal. 1999)

11. 2008 Copyright Mudd Law Offices
Standards (cont’d)
•Motion to Dismiss -Seescandy (cont’d)
–Identify defendant with sufficient particularity
–Show previous efforts to locate the defendant
–Demonstrate Could Survive Motion to Dismiss
–Justify Request and Identify Those with
Information

12. 2008 Copyright Mudd Law Offices
Standards (Cont’d)
•Dendrite Int’l, Inc. v. John Doe No. 3
342 N.J. Super. 134, 775 A.2d 756, 760-761 (N.J. App. 2001)
–Notification
–Specify Exact Statements
–Prima Facie Cause of Action
–Produce Sufficient Evidence to Support Each Element
–Balance Strength of Prima Facie Case against Necessity
for Disclosure

13. 2008 Copyright Mudd Law Offices
Standards (cont’d)
Doe v. Cahill, 884 A.2d 451 (Del. 2005)

14. 2008 Copyright Mudd Law Offices
Standards (cont’d)
•Mobilisa, Inc. v. John Doe 1, et al.
170 P.3d 712 (November 27, 2007)

15. 2008 Copyright Mudd Law Offices
Standards
•Determine the Standard
•Apply to the Claims
Best Western v. Doe, 2006 US Dist Lexis 56014, (D. Ariz. July 25, 2006)

16. 2008 Copyright Mudd Law Offices
Standards (cont’d)
•Determined standard based on nature of conduct giving rise to ability to obtain the
anonymous individual’s identity (eg communications containing pur expression for which
the authori’s identity was being sought)
After Adopting Cahill
•Later examined whether Plaintiffs claims for breach of contract and covenants of good
faith fair dealing would survive summary judgment
Best Western v. Doe, 2006 US Dist Lexis 77942, (D. Ariz. October 24, 2006)

17. 2008 Copyright Mudd Law Offices
Preparation
•Prepare for Mobilisa
•Prepare for Motion for Summary Judgment
•Notification

18. 2008 Copyright Mudd Law Offices
Doe Issues
•Due Diligence
•Responsiveness
•Standards

19. 2008 Copyright Mudd Law Offices
Doe Issues (cont’d)
•Involve the ISPs

20. 2008 Copyright Mudd Law Offices
Questions and Answers

21. 2008 Copyright Mudd Law Offices
Thank You
Charles Lee Mudd Jr.
Mudd Law Offices
3114 West Irving Park Road
Chicago, Illinois 60618
773.588.5410 Telephone
773.588.5440 Facsimile
[email protected]
www.muddlawoffices.com