Doe 1 et al v. Ciolli et al

Filing 21

MOTION to Expedite Plaintiffs' Motion for Expedited Discovery by Doe 1, Doe 2. (Attachments: # 1 Memorandum in Support Plaintiffs' Memorandum of Law in Support of Motion for Expedited Discovery, # 2 Affidavit Declaration of Doe I, # 3 Affidavit Declaration of Doe II, # 4 Affidavit Declaration of Doe II (Part 2 of 2), # 5 Affidavit Declaration of Steve Mitra. (Additional attachment(s) added on 4/11/2008: # 1 Memorandum in Support Plaintiffs' Memorandum in Support of Motion for Expedited Discovery, # 2 Affidavit Declaration of Doe I, # 3 Affidavit Declaration of Doe II, # 4 Affidavit Declaration of Doe II (Part 2 of 2), # 5 Affidavit Declaration of Steve Mitra, # 7 Affidavit of Steve Mitra Part 1, # 8 Affidavit of Steve Mitra Part 2) (Kunofsky, L.). Modified on 4/11/2008 (Kunofsky, L.). (Additional attachment(s) added on 4/11/2008: # 9 Proposed Order) (Kunofsky, L.). Modified on 10/6/2008 to correct text (S-D'Onofrio, B.).

Doe 1 et al v. Ciolli et al Doc. 21 Att. 5 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT DOE I, and DOE II, Plaintiffs, v. Individuals, whose true names are unknown, using the following pseudonyms: pauliewalnuts; neoprag; STANFORDtroll; :D; lkjhgf; yalelaw; Spanky; ylsdooder; HI; David Carr; vincimus; Cheese Eating Surrender Monkey; A horse walks into a bar; The Ayatollah of Rock-n-Rollah; DRACULA; Sleazy Z; Whamo; Ari Gold; Ugly Women; playboytroll; Dean_Harold_Koh; kr0nz; reminderdood; r@ygold; who is; Joel Schellhammer; Prof. Brian Leiter; hitlerhitlerhitler; lonelyvirgin; Patrick Zeke ; Patrick Bateman ; [DOE I] got a 157 LSAT; azn, azn, azn; Dirty Nigger; leaf; t14 gunner; kibitzer; yalels2009; AK47, Defendants. Case No. 3:07CV00909(CFD) Date: January 24, 2008 DECLARATION OF STEVE MITRA IN SUPPORT OF MOTION FOR LIMITED EXPEDITED DISCOVERY I, Steve Mitra, declare as follows: 1. I am duly licensed to practice law in the State of California and am an associate with the law firm of Keker & Van Nest, LLP, counsel for plaintiffs Doe I and Doe II in the above-captioned proceeding. I am admitted pro hac vice to appear before this Court in this action. I have knowledge of the facts set forth herein, and if called to testify as a witness thereto, could do so competently under oath. 406829.07 1 2. is an Internet discussion board targeted at law students and lawyers, describing itself as "[t]he most prestigious law school discussion board in the world." Attached hereto as Exhibit A is a true and correct copy of a printout of the URL, dated November 2, 2007. 3. AutoAdmit has a "mirror site," containing the same or almost the same content as the original site. This site is located at A true and correct copy of a printout of the URL is attached hereto as Exhibit B. The site is a web log that republishes information from the Autoadmit mirror site located at 4. The AutoAdmit website is administered by Jarret Cohen and was moderated for some time by Anthony Ciolli. The site was launched in 2004 and, according to Cohen and Ciolli, draws between 800,000 and one million visitors per month. Attached hereto as Exhibit C is a true and correct copy of an article "Harsh Words Die Hard on the Web" by Ellen Nakashima, published in the Washington Post, and dated March 7, 2007, which describes the history of the site's development, as well as a true and correct copy of a transcript of a National Public Radio Broadcast on June 18, 2007. 5. Anyone who uses the Internet and goes to the AutoAdmit site, either directly or via an Internet search engine such as Google, may view the messages posted to the discussion board. After a participant posts a new message, any further comments or responses to the subject area of that message are collected as a "thread." Message threads can be quite lengthy depending on the level of interest in a particular subject. 6. Only registered AutoAdmit users may post new messages and respond to the messages of other registered users. Individuals who register with the AutoAdmit site may, but are not required to provide their real names. It appears that posters can adopt multiple user names. The AutoAdmit website appears to use "persistent pseudonymity," which means that changes in pseudonyms retroactively change previously-stored posts to reflect the changed 406829.07 2 pseudonym. A true and correct copy of the registration page for, located at, is attached hereto as Exhibit D . 7. Posters on the AudoAdmit site are sometimes "outed" for a brief period of time before the outing information is removed. It is believed that the outing information is removed by, or at the direction of the moderators of the board and that therefore they may have knowledge of some of the defendants' identities. 8. The threads on the AutoAdmit site can be found by searching on the site or through search engines such as Google. By entering a person's name as a search term, a search engine will list various threads in which that name appears in search results. Attached hereto as Exhibit E is a true and correct copy of results from a search for "Doe II's" name on Google. 9. AutoAdmit users will sometimes take steps to insure that message threads containing statements about an individual appear as one of the first search results returned by Google--a practice commonly known as "google-bombing." See Doe II Decl. Ex. 22 (see p.7). Plaintiffs' Efforts to Identify and Serve the Defendants 10. Plaintiffs have made repeated efforts and expended considerable resources and time in order to identify and serve the pseudonymous defendants in this case. 11. In particular, my firm has sought information relating to the identities of the defendants from several different sources, including, Domains by Proxy, GoDaddy, PenTeleData, Microsoft (owner of Hotmail), HighBeam Research, University of North Carolina, VLEX, ServInt Internet Services, University of Virginia, Yale Law School, AT&T/SBC and Embarq. These entities are believed to have assigned Internet Protocol ("IP") addresses to defendants, to have been used by defendants to send email, or to have IP addresses because defendants have visited their web sites. Attached hereto as Exhibit F are true and correct copies of correspondence sent by my firm to these entities, asking them to disclose information relating to the identities of any of the defendants, or at a minimum to preserve that information for future discovery. My firm contacted Yale Law School, Embarq and AT&T by telephone. 406829.07 3 12. My firm has contacted Jarret Cohen and Anthony Ciolli through their counsel. Attached hereto as Exhibit G are true and correct copies of correspondence sent to both through their counsel. 13. In early January 2008, my colleague Ben Berkowitz contacted Ryan Mariner, an individual who is believed to have information regarding one or more of the defendants, to voluntarily provide relevant discovery. Mr. Mariner has not provided any information. 14. None of the entities or persons that we have contacted agreed to provide the information requested. Attached hereto as Exhibit H are true and correct copies of responses we received from the various entities and individuals we contacted. 15. On November 9, 2007, I posted a notice on requesting that defendants come forward for the purpose of being served with the complaint and conducting a meet and confer. The notice included my and my colleague Ashok Ramani's contact information. To date, neither I nor Mr. Ramani has received any response. A true and correct copy of the November 9, 2007 notice that I posted on AutoAdmit is attached hereto as Exhibit I. 16. stated: Plaintiffs' counsel hereby renews the previously-posted request that individuals who have used, or currently use, the above pseudonyms on this web site provide identifying information and/or the identity of counsel representing them so that plaintiffs' counsel may serve them with the complaint and conduct a Fed. R. Civ. P. 26(f) conference. Plaintiffs' counsel may be contacted at (415) 391 5400. Please ask for Ashok Ramani or Steve Mitra. In addition, plaintiffs' counsel may also be contacted by email at Plaintiffs' counsel also hereby notifies individuals who have used the above pseudonyms that plaintiffs intend to move the U.S. District Court, District of Connecticut, to allow plaintiffs to conduct expedited discovery to uncover defendants' identities. A true and correct copy of the November 27, 2007 notice posted on AutoAdmit is attached hereto as Exhibit J. 17. 18. No defendants have come forward as of the date of this filing. Attached hereto as Exhibit K are true and correct copies of subpoenas that On November 27, 2007, I posted another notice on That notice 406829.07 4 Plaintiffs intend to seek from AT&T/SBC, AutoAdmit, Anthony Ciolli, Jarret Cohen, Domains by Proxy, Embarq Corporation,, HighBeam Research, Inc., Ryan Mariner, Microsoft Corporation, PenTeleData, Inc., ServInt Internet Services, University of North Carolina, University of Virgina, VLEX LLC, and Yale Law School Information Technology. 19. My understanding is that Internet Service Providers and the other entities that plaintiffs seek identifying information from delete such information on an ongoing basis. For instance, PenTeleData, Inc. deletes identifying information every 60 days. Microsoft preserves information for 90 days from a request for preservation. 20. I declare under penalty of perjury that the foregoing is true and correct, and executed this 24th day of January, 2008. /s/ Steve Mitra_________ STEVE MITRA 406829.07 5