The strength of a mass copyright lawsuit against hundreds or thousands of Does depends very heavily on the early reception it enjoys from the federal district court which manages it. As was mentioned in a prior post regarding challenges to ISP subpoenas in certain cases from the U.S. District Court in D.C., an individual court’s approach to entertaining–or rejecting–motions to quash and other challenges should factor into the strategy employed in responding to the lawsuits during the Doe phase.
Judges in the D.C. district court have shown a considerable tendency to reject challenges to subpoenas on grounds of lack of personal jurisdiction over the Does or improper joinder and venue, including, most notably, Judge Beryl Howell (Voltage Pictures, LLC v. Does 1-5,000, No. 1:10-cv-00873-BAH, Call Of The Wild Movie, LLC v. Does 1-331, No. 1:10-cv-00455-BAH, and Maverick Entertainment Group v. Does 1-2,115, No. 1:10-cv-00569-BAH).
Continuing this trend, just on June 10 Judge Colleen Kollar-Kotelly issued an opinion in West Coast Productions, Inc. v. Does 1-5,829, No. 1:11-cv-00057-CKK, which largely followed Judge Howell’s reasoning on these issues and rejected 59 motions to quash and other subpoena challenges. The opinion even instructs the court clerk not to accept motions filed by Does seeking to proceed anonymously.
However, during the same week Judge Robert Wilkins expressed a decidedly different attitude regarding the joinder and venue issues in NuImage, Inc. v. Does 1-23,322, No. 1:11-cv-00301-RLW. The NuImage case, which involves the Sylvester Stallon action movie “The Expendables,” has become infamous as the largest Bittorrent lawsuit in U.S. history (via Wired). Readers can view the first amended complaint and its massive exhibit listing 23,000-plus IP addresses implicated in the lawsuit.
On June 7, Judge Wilkins issued an order requiring NuImage to show cause “why venue and joinder is proper for all 23,322 putative defendants” in the case. In the process he vacated his own prior March order permitting the subpoena process. He also scolded NuImage for its delay and having not served any of the subpoenas he already authorized (via ArsTechnica). NuImage’s response is due on June 21.
Observers waiting on his ultimate decision are left to wonder why Judge Wilkins has raised issues in NuImage that have already been addressed in some detail in his colleague’s several earlier opinions, reversing himself in the process. Is it the sheer size of the NuImage case that matters? Perhaps only additional time will tell.