Case 3:12-cv-00055-GEC-BWC Document 27

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA Charlottesville Division AF HOLDINGS, LLC, Plaintiff, vs. JOHN DOES 1-4, Defendants. ) ) ) CIVIL ACTION NO.: 3:12CV55 ) ) ) ) JOHN DOE 2S OBJECTIONS TO ) MAGISTRATE JUDGES ORDER ) ) ) ) )

JOHN DOE 2S OBJECTIONS TO MAGISTRATE JUDGES ORDER COMES NOW Defendant John Doe 2, a.k.a. Z.L. (Z.L.), by counsel, and, pursuant to 28 U.S.C. 636(b)(1)(A) and Fed. R. Civ. P. 72(a), hereby submits the following objections to Magistrate Judge B. Waugh Criglers non-dispositive order dated February 6, 2013 (February Order) (Doc. 26). For the foregoing reasons, the magistrate judges decision to grant early discovery to Plaintiff and to permit the deposition of Z.L. is clearly erroneous and contrary to law, so the Court should set aside those parts of the February Order. A. Introduction Plaintiff filed a motion to conduct early discovery and depose Z.L (Motion for Leave). Doc. 18. The Court granted Plaintiffs Motion for Leave in an Order dated December 20, 2012 (December Order). Doc. 19. Plaintiff prepared a deposition subpoena to Z.L. (Subpoena), setting a deposition date for January 16, 2013 and demanding that Z.L. produce certain documents. On January 13, 2013, Z.L. filed a motion for reconsideration of the December Order and a motion to quash the Subpoena (Motion to Quash). Docs. 20-21. The Motion to Quash was referred to Magistrate Judge B. Waugh Crigler. A telephonic motion hearing was held with Judge Crigler on January 31, 2013 (Doc. 24-25), and on February 6, 2013, he entered the
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February Order denying Z.L.s Motion to Quash and ordering that a deposition of Z.L. take place on February 28, 2013 (Deposition). Pursuant to 28 U.S.C. 636(b)(1)(A) and Fed. R. Civ. P. 72(a), Z.L. is filing objections to the February Order because the magistrate judges decision to deny Z.L.s Motion to Quash and to order the Deposition is clearly erroneous and contrary to the law. B. Standard of Review Per Fed. R. Civ. P. 72(a), [w]hen a pretrial matter not dispositive of a partys claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge must promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision. A party may serve and file objections to the order within 14 days after being served with a copy. ... The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law. See also 28 U.S.C. 636(b)(1)(A) (A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judges order is clearly erroneous or contrary to law). A court's finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Tafas v. Dudas, 530 F.Supp.2d 786, 792 (E.D. Va. 2008) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). Although demonstrating that a magistrate decision should be changed is generally difficult, an abuse-of-discretion attitude need not curtail the power of the district judge to make needed modifications in the magistrate judges directives. Id. (quoting 12 Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure 3069 (2d ed.1997)).

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C. Argument The February Order denying Z.L.s Motion to Quash and ordering the Deposition were clearly erroneous and contrary to the law because the magistrate judge did not make any findings of fact or provide any legal analysis to support those holdings. As such, the Court should set aside those parts of the February Order. Plaintiff applied for leave to take early discovery prior to the Fed. R. Civ. P. 26(f) conference (i.e., the Motion for Leave). Doc. 18. Per Fed. R. Civ. P. 26(d)(1), [a] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except when authorized by these rules, by stipulation, or by court order (emphasis added). As explained in Z.L.s Motion to Quash, federal courts have held that [t]he discovery rules contained in the Federal Rules of Civil Procedure provide tools for a court to adjust the discovery time outlined by Rule 26, and if warranted, to expedite the time for responding to the discovery sought. ForceX, Inc. v. Technology Fusion, LLC, 2011 WL 2560110, at *3 (Miller, M.J.) (E.D. Va. June 27, 2011) (quoting Physicians Interactive v. Lathian Sys., Inc., 2003 WL 23018270, at *4 (E.D. Va. Dec. 5, 2003)) (emphasis added). Courts have found that immediate discovery should be granted when some unusual circumstances or conditions exist that would likely prejudice the party if he were required to wait the normal time. Id. (quoting Fimab Finanziaria Maglificio Biellese Fratelli Fila, S.p.A. v. Helio Import/Export, Inc., 601 F.Supp. 1, 3 (S.D. Fla. 1983)) (emphasis added). Thus, it is clear that discovery should follow the timeline set forth in the Federal Rules of Civil Procedure, with deviations granted only under unusual circumstances that would otherwise result in prejudice to the moving party. Z.L. outlined two different legal tests used by courts in the Fourth Circuit to determine whether to grant early discovery: the stricter standard preliminary injunction test, which was

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adopted by the Eastern District of Virginia (Doc. 21, pp. 5-7) and the reasonableness or good cause test, which was adopted by the Eastern District of North Carolina (Doc. 21, pp. 6-7). However, Plaintiff did not provide factual or legal support for either test in its Motion for Leave to depose Z.L. (Doc. 18), instead relying on a previously-filed motion to depose W.L., Z.L.s father and whom Plaintiff originally alleged to be John Doe 2 (Docs. 4-5). The primary basis for Plaintiffs Motion for Leave was that W.L. provided information that leads the Plaintiff to believe that [Z.L.] may have indeed been the infringer, or at the very least may have pertinent information about the infringement activity. Doc. 18, pp. 1-2. The Court, in granting Plaintiffs Motion for Leave, did not cite to either the stricter standard test or the good cause test. Doc. 19. Because Z.L. has not been named as a defendant in this case and was not given a copy of the Motion for Leave, he was unable to oppose the Motion for Leave before it was granted; Z.L.s first opportunity to challenge the ruling was after he was served with the Subpoena, whereupon he filed the Motion to Quash. As explained in the Motion to Quash, Plaintiff failed to meet either test for early discovery. Doc. 21. Plaintiff did not show reasonableness or good cause, as it already had Z.L.s name and contact information at the time that it filed the Motion for Leave; there was, and is, no time sensitivity to this case, which was demonstrated by Plaintiffs own decision to wait 10 months before refiling the lawsuit after having previously dismissed it without prejudice; Plaintiff offered no actual evidence that any alleged copyright infringement was still continuing, simply stating so in conclusory fashion; Plaintiffs document production requests upon Z.L. were irrelevant and overly broad; and Z.L. would be unfairly prejudiced by being subjected to what amounts to Plaintiff engaging in discovery without being open to discovery requests in return and without having to follow normal litigation procedures (i.e., naming and serving Z.L., arguing

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a motion to dismiss, waiting for an Answer, and engaging in a case management conference). Doc. 21, pp. 7-11. Z.L. believes that Plaintiff wants early discovery to avoid the cost and time of following proper litigation procedure as set forth under the Federal Rules of Civil Procedure, in the hopes of inducing a settlement out of Z.L. Doc. 21, pp. 8, 10, 16. Plaintiff also did not meet the stricter standard test because it did not show that it was likely to succeed on any of its copyright infringement or negligence claims, and it did not show that irreparable harm was likely (as opposed to merely possible), which would necessitate early discovery. Doc. 21, pp. 11-12. Plaintiff filed an opposition to Z.L.s Motion to Quash but did not address either test for early discovery; Plaintiff instead focused on whether Z.L. was procedurally barred from moving to quash or otherwise objecting to the Subpoena.1 Doc. 22. Despite Z.L. citing two different tests used by federal district courts to evaluate the need for early discovery, the magistrate judge did not refer to either test in either the telephonic hearing or in the February Order. Doc. 26. The magistrate judge did not make any findings of fact pertaining to either legal test, and he did not make any legal analyses under either test. He also did not refer to any other legal test in determining whether early discovery should be granted. Rather, the magistrate judge concluded that he had discretion, but he provided no further explanations as to what led him to exercise his discretion in favor of the Plaintiff. It appears that the magistrate judge based his ruling to deny the Motion to Quash and to order the Deposition solely on the fact that Plaintiffs counsel claimed during the telephonic hearing that it had identified Z.L. based on the deposition of W.L., which took place on December 12, 2012. Plaintiff did not provide a transcript of W.L.s deposition with any of its filed papers or any declaration or affidavit. (The February Order requires Plaintiff to submit a transcript of W.L.s
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The Court properly held during the telephonic hearing that Z.L. had standing to challenge the Subpoena, per Schaaf v. Smithkline Beecham Corp., 233 F.R.D. 451, 453 (E.D.N.C. 2005).
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deposition in camera and under seal for the Courts review. Doc. 26.) Thus, the magistrate judge relied solely upon Plaintiffs counsels allegations of what W.L. said during his deposition. Although Plaintiff has represented that the only basis for identifying and deposing Z.L. is information from the deposition of W.L (Doc. 18), the sole evidence that Plaintiff provided was its counsels oral representation during the hearing that, upon information and belief, W.L. indicated at his deposition that Z.L. lived at W.L.s house; that Z.L. was 25-years-old; and that W.L. stated he did not download Plaintiffs pornographic movie. Plaintiff did not provide any other information beyond that. Therefore, the magistrate judge seems to have decided that because Z.L. was 25-years-old and lived with W.L., Z.L. must have downloaded the pornographic film, and this was sufficient for Plaintiff to conduct a deposition of Z.L. prior to the Rule 26(f) conference. Z.L. notes that he can only speculate as to the magistrate judges rationale because the magistrate judge did not provide factual findings for his ruling and did not go through any legal analysis, instead only basing his decision upon his discretion. Even if Z.L.s speculation is correct, the factual bases are obviously weak and insufficient to support a finding that Plaintiff met either of the early discovery legal tests. Thus, it is clear that the February Order pertaining to the Motion to Quash and the Deposition was erroneous and contrary to the law. Furthermore, Plaintiffs counsel neglected to reveal at the telephonic hearing that W.L. said during the deposition that his wireless router was unsecured and did not have a password on it; that he stated Z.L. had not downloaded pornography and would not do so; that W.L. had neighbors nearby; and that W.L. had not provided any logs for the router because he stated he did not know how to access them. See W.L.s declaration, a true and correct copy of which is attached hereto and made a part hereof as Exhibit A. Thus, Plaintiffs claim that Z.L. is the

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infringer or has information about the infringement (Doc. 18, pp. 1-2) is even more tenuous, given that anyone could have used W.L.s unsecured Internet connection to download Plaintiffs movie. Plaintiff relies solely upon statements made by W.L. during W.L.s deposition to justify its need for early discovery, yet Plaintiff failed to reveal important information to the Court that could have differently affected the magistrate judges ruling. Thus, Z.L. also believes that the magistrate judges decision to rely solely upon Plaintiffs counsels oral representations of W.L.s statements, without having seen the deposition transcript or any declarations or affidavits, was an error. Z.L. also pointed out that the Subpoena demands were overly broad, ambiguous, and irrelevant; that the documents demanded may be in the possession of another party; that service was defective because Plaintiff had not tendered attendance fees to Z.L.; and that Plaintiffs intent in serving the Subpoena was to harass Z.L. Doc. 21, pp. 13-15. Plaintiff did not address any of these arguments in its opposition. Doc. 22. The magistrate judge did not make any findings as to these arguments, except to state during the telephonic hearing that Plaintiff could tender the attendance fees to Z.L. at the deposition. Again, the magistrate judge did not offer any factual findings or legal analyses to support his ruling, other than to rely upon his discretion. Therefore, the magistrate judges decision to deny Z.L.s Motion to Quash and to order the Deposition was clearly erroneous and contrary to the law. The magistrate judge relied solely upon his discretion to make his decisions, and he did not support them with factual findings, explanations, or legal analyses.

C. Conclusion For the foregoing reasons, Z.L. respectfully requests that the Court set aside both the

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denial of Z.L.s Motion to Quash and the ordering of the Deposition from the magistrate judges February Order. Z.L. further requests that the Court grant Z.L.s Motion to Quash, deny Plaintiff leave to conduct early discovery, and cancel the Deposition.

Dated: February 19, 2013

JOHN DOE 2 (Z.L.) _____/s/ Domingo J. Rivera_________________ Domingo J. Rivera, Esq. (VSB #71407) Domingo J. Rivera, Attorney at Law, PLC 8527 Mayland Drive, Suite 107 Richmond, VA 23294 Telephone: 804-332-6585 Fax: 866-651-2004 Email: djr@cyberinternetlawyer.com Counsel for Defendant John Doe 2 (Z.L.)

CERTIFICATE I hereby certify that on the 19 th day of February, 2013 I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing to the following: Timothy V. Anderson Anderson & Associates, PC 2492 North Landing Rd Ste 104 Virginia Beach, VA 23456 757-301-3636 Tel 757-301-3640 Fax timanderson@virginialawoffice.com Attorney for Plaintiff _____/s/ Domingo J. Rivera_________________ Domingo J. Rivera, Esq. (VSB #71407)