eDiscovery Daily Blog

• March 14, 2016

In Malibu Media, LLC v. Doe, Case No. 13-6312 (N.D. Ill., Feb. 8, 2016), in a case of dueling summary judgment motions, Illinois Magistrate Judge Geraldine Soat Brown denied the plaintiff’s motion for summary judgment, but granted the defendant’s summary motion in its entirety, concluding that the plaintiff had not presented sufficient evidence to prove its allegations of illegally downloading movies.

Case Background

The plaintiff alleged that the defendant, identified through his Internet Protocol (“IP”) address, downloaded its copyrighted work, specifically, twenty-four adult movies from the plaintiff’s site, using BitTorrent.  In this matter, the defendant was allowed to proceed anonymously as “John Doe.”  With regard to the identification of the defendant via the IP address, the defendant claimed that, during the time in question, he had many guests at his house, and any number of people could have downloaded from his IP.

In a forensic examination of the defendant’s hard drives from his computer, the plaintiff’s expert did not find any evidence that the plaintiff’s copyrighted works, or the BitTorrent software, had been on the defendant’s computer.  However, he did find evidence that one external storage device and one internal hard drive that were capable of storing files downloaded via BitTorrent had been connected to the defendant’s computer, but they had not been produced by the defendant.  He also found several virtual machines on one of the defendant’s hard drives, but not the program “VMWare” he believed was used to create them.

The defendant retained his own expert to conduct a forensic examination of his hard drive.  The defendant expert also concluded that there was no evidence that the plaintiff’s copyrighted works, or the BitTorrent software, had been on the defendant’s computer.  With regard to the two devices identified by the plaintiff’s expert, the defendant’s expert determined that they were last used in 2012 (which was before the infringement period and before the date the plaintiff says the works at issue were created) and the virtual machines were last used no more recently than September 2010, which was the expiration timeframe for the one-year student license for VMWare that the defendant would have received as a graduate student.  The defendant also moved to strike declarations from plaintiff’s experts regarding the forensic and IP evidence, as the plaintiff never served any Rule 26(a)(2) disclosure – in response, the plaintiff characterized them as “lay witnesses — not experts”.

The plaintiff and defendant filed cross-motions for summary judgment in the case.

Judge’s Ruling

Stating that “[u]nlike other cases, Malibu has no evidence that any of its works were ever on Doe’s computer or storage device”, Judge Brown denied the plaintiff’s summary judgment motion, as follows:

“Considering all of Malibu’s evidence, including the Fieser, Patzer, and Paige declarations Doe has moved to strike, in the light most favorable to Doe, Malibu’s summary judgment motion must be denied. Even if those contested declarations are considered, Malibu has not eliminated all material questions of fact about whether there was actionable infringement and, if so, whether Doe was the infringer.”

With regard to the defendant’s motion to strike declarations from plaintiff’s experts, Judge Brown granted the motion pursuant to Fed. R. Civ. P. 26(a)(2) and 37(c)(1).  As a result, Judge Brown ruled “[w]ithout the evidence of Fieser’s and Patzer’s declarations, there is no evidence linking Doe or even his IP address to Malibu’s works. Paige’s evidence, which depends entirely on the finding of IPP using Excipio’s system, does not contain any evidence based on his personal knowledge that Doe copied or distributed any of Malibu’s works. Doe’s motion for summary judgment is, accordingly, granted.”

So, what do you think?  Should the defendant’s summary judgment motion have been granted?  Please share any comments you might have or if you’d like to know more about a particular topic.

Here are links to two previous cases we have covered regarding this plaintiff.

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