Thursday, May 17, 2012

Shocking development in Malibu Media v Does 1-13; Verizon answers subpoena BEFORE return date

In Malibu Media v. Does 1-13, a subpoena addressed to Verizon, calling for the identities and addresses of John Doe defendants, was returnable May 12th.

On May 10th the Court stayed enforcement of the subpoena, and directed plaintiff's counsel to immediately notify Verizon of the stay.

Unfortunately, as it turns out, Verizon had responded to the subpoena FIVE (5) DAYS BEFORE THE SUBPOENA'S RETURN DATE, on May 7th.

Plaintiff's "motion for clarification"

[Ed. note. I find this astonishing and quite troubling. If I were the Court I would take serious measures against Verizon for responding to a subpoena prior to its return date, thus preventing judicial review of the subpoena. Verizon has some 'splainin' to do'. I'm also wondering why plaintiff's counsel took ten (10) days to notify the Court of Verizon's misconduct, but perhaps there was a valid reason for that. I don't know. - R.B.]

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Anonymous said...

Sorry for the stupid question, but why is this troubling? I guess it's not like paying your bill before it's due?

Anonymous said...

Why is this shocking behavior? What is my non-legal mind missing?

raybeckerman said...

Because it deprives the Court of its ability to judicially review the subpoena.

Anonymous said...

Interesting. I would have thought that the subpoena would have been reviewed PRIOR to it's being sent. I guess I should read up on this. Thanks for the explanation.

raybeckerman said...

No, judges don't sit around reviewing documents sent out by attorneys. They would only review a subpoena when a motion regarding the propriety of the subpoena has been made.

Anonymous said...

But is it actually against the law to file a response before the 'returnable' date? And what is the date actually called? "Returnable" sounds a bit off.

raybeckerman said...

Whether it was technically "illegal", or just amounted to "sharp practice", on the part of Verizon and plaintiff's counsel, is something I can't answer without greater knowledge of the underlying facts, but I believe it was clearly misconduct because:

-they were giving out confidential private information about their subscribers which, once disclosed, could never be recalled

-based upon the notices I've seen from Verizon & other ISP's in the past, the notice given by Verizon to its subscribers probably represented specifically that the response would be made on May 12th, and that the subscribers had until May 12th to take action to prevent the disclosure

-the Court clearly expected Verizon to wait until May 12th, or else it would not have bothered issuing the stay order and directing plaintiff to immediately serve a copy on Verizon

-in these circumstances, the Court's ability to quash the subpoena before Pandora's Box had been opened is now lost

-when the disclosure was made on May 7th there was a motion to quash pending the Court should have been notified immediately

-it is customary when there is a motion to quash a subpoena pending to notify the subpoena recipient of the motion

-it is customary when there is a motion to quash a subpoena pending to wait for the Court to rule on the motion, rather than taking action which would render the Court's decision moot.

Anonymous said...

Mistakes do happen, I know, but, well, smell smoke, look for fire. I'm suspicious.

Not a lawyer here, but my understanding from reading various rulings is, a stay would not be granted unless there was at least a chance the motion to quash would stand up for x, y, and or z reasons.

And if the motion to quash does/would stand, would the does have any recourse against this if this is more than simple human error?

--Quiet Lurker