Openmind Solutions, Inc. v. Does 1-2925

Filing 26

MOTION to Supplement AMICUS CURIAE THE ELECTRONIC FRONTIER FOUNDATIONS SUPPLEMENTAL BRIEF AND PETITION TO TEMPORARILY ENJOIN PLAINTIFF FROM SETTLING WITH DOE DEFENDANTS UNTIL THE COURT HAS RESOLVED THE OUTSTANDING DISCOVERY DISPUTE by Electronic Frontier Foundation. (Mudd, Charles)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
OpenMind Solutions, Inc.,
Plaintiff,
v.
DOES 1-2925,
Individually, and as Representatives of a
class,
Defendants.

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Case No. 3:11-cv-00092-GPM-SCW
Judge: Hon. G. Patrick Murphy
Magistrate Judge: Hon. Stephen C.
Williams

AMICUS CURIAE THE ELECTRONIC FRONTIER FOUNDATION’S
SUPPLEMENTAL BRIEF AND PETITION TO TEMPORARILY ENJOIN
PLAINTIFF FROM SETTLING WITH DOE DEFENDANTS UNTIL THE
COURT HAS RESOLVED THE OUTSTANDING DISCOVERY DISPUTE

On March 25, 2011, following the Court’s acceptance of the Electronic Frontier
Foundation’s (“EFF”) proposed amicus curiae brief in which it identified what it believes
are serious procedural and substantive flaws in Plaintiff OpenMind Solutions’ efforts to
unmask the nearly 3,000 accused (and unrepresented) Defendants as part of a purported
“defendant class action,” this Court ordered that all discovery be stayed pending a
hearing on EFF’s motion, with any failure of the Plaintiff to abide by such a stay
“punishable by contempt.” Docket No. 22.
Since the Court’s stay Order of March 25, amicus EFF has learned that Plaintiff
has already obtained (via subpoenas issued prior to the Court’s stay order) the identities
of at least some of the 2,925 Defendants in this case and has issued settlement demand
letters to at least some of those now-identified Defendants, with some settlement offers set

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to expire prior to the date of the Court’s scheduled hearing on this matter. As the
upcoming hearing on April 11, 2011, necessarily includes a consideration of the viability
of Plaintiff’s underlying suit – and may result (as has resulted in other recent cases) in
one or more Defendants being dismissed from the case – amicus urges the Court to enjoin
the Plaintiff from entering into any further settlement agreement with any Defendant at
least until the Court has resolved the outstanding discovery disputes, so that the status
quo may be maintained.
A full stay temporary blocking Plaintiff’s settlement efforts is appropriate for at
least three reasons. First and foremost, the Court has already recognized the benefit of
halting discovery until the thousands of thus far unrepresented Defendants can benefit
from some sort of adversarial hearing in which their interests can be presented to the
Court. The only reason that Plaintiff has been able to issue any settlement letters at all is
that at least some ISPs have apparently complied with discovery requests that the Court
has now halted pending further argument and consideration. Permitting Plaintiff to settle
its claims against any further Defendants, now that a discovery stay has been imposed,
without the benefit of at least a preliminary reconsideration of the viability of Plaintiff’s
litigation strategy, would be unfair and does not reflect the changed posture of the case.
Second, a full stay preventing the Plaintiff from settling any claims with any
Defendants in this case would not in any way harm the Plaintiff. If the Court later
determines that the Plaintiff may proceed with its case, the Plaintiff can again extend the
same offers it has already issued. Conversely, a subsequent determination that the
Plaintiff’s claims and/or discovery strategy cannot proceed will be of little comfort to a

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pro se Defendant who settled his or her claim without knowledge of the discovery stay
issued immediately on the heels of his or her identifying information being produced.
Third, and perhaps most troublingly, Plaintiff’s attempts to settle individual
claims against some now-identified Defendants undermine a central premise offered to
explain Plaintiff’s purported need to seek expedited discovery in the first place: that
“contact information is necessary to identify potential class representatives.” Plaintiff’s
Memorandum of Law In Support of Plaintiff’s Ex Parte Motion for Leave to Take
Expedited Discovery (Docket No. 4) at 9. Instead of “solicit[ing] volunteers from the
defendant class to serve as willing representatives” once given the chance to obtain
discovery (see id.), Plaintiff apparently instead sought to leverage that information – and
unproven accusations of downloading pornographic films levied against far-flung
residents outside of the jurisdiction – into prompt settlement. This is precisely the tactic
that has been used by Plaintiff’s counsel and other plaintiffs in cases around the country,
a tactic that an increasing number of courts have rejected. See EFF’s Request for Judicial
Notice of March 15, 2011 (Docket No. 12). Especially given the Court’s discovery stay,
there is no reason why any Defendants should be rushed into settling highly charged and
potentially embarrassing claims based on such a justification.
Amicus is grateful that the Court has seen fit to give the Defendants an
opportunity to raise appropriate objections to Plaintiff’s discovery strategy and, by
extension, to the underlying suit as well. Given that Plaintiff may nevertheless be
attempting to obtain monetary settlements with some Defendants during this short,
critical period between the issuance of the Court’s discovery stay order and the April 11th

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hearing, amicus urges the Court to further order Plaintiff to cease all efforts at settling
claims with any of the Defendants until the Court has resolved the outstanding motions.

Respectfully submitted,
Dated: April 1, 2011

By /s/ Charles Lee Mudd, Jr.
Charles Lee Mudd Jr.
Mudd Law Offices
3114 West Irving Park Road, Suite 1W
Chicago, Illinois 60618
[phone]
Cook County Attorney No.: 38666
ARDC: 6257957
[e-mail]
Julie Samuels
Electronic Frontier Foundation
454 Shotwell St.
San Francisco, CA 94110
[phone]
[e-mail]
James Grimmelmann
Associate Professor
New York Law School
185 West Broadway
New York, NY 10013
[phone]
[e-mail]
Attorneys for Amicus Curiae EFF

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CERTIFICATE OF SERVICE
I, Charles Lee Mudd, Jr., do hereby certify that service of AMICUS CURIAE
THE ELECTRONIC FRONTIER FOUNDATION’S SUPPLEMENTAL BRIEF
AND PETITION TO TEMPORARILY ENJOIN PLAINTIFF FROM SETTLING
WITH DOE DEFENDANTS UNTIL THE COURT HAS RESOLVED THE
OUTSTANDING DISCOVERY DISPUTE was accomplished pursuant to Electronic
Case Filing as to ECF Filing Users and shall be served upon all other parties listed in the
attached Service List by sending said documents via postage pre-paid U.S. mail on this 1st
day of April 2011.

/s/Charles Lee Mudd, Jr.
Charles Lee Mudd, Jr.

Charles Lee Mudd, Jr.
Mudd Law Offices
3114 W. Irving Park Road
Suite 1W
Chicago, Illinois 60618
773.588.5410 (Telephone)
773.588.5440 (Facsimile)
[e-mail]
ARDC: 6257957

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SERVICE LIST
Nancy Waddell
801 South Street
Burlington, Iowa 52601
Pro Se

All Other Parties Are Represented by ECF Users.

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