Lawyer Nailed for Abuse of Subpoena Power

     (CN) – An attorney who shames Internet users suspected of having illegally downloaded pornography into paying thousand-dollar settlements owes hefty sanctions, the 5th Circuit ruled.
     “No miscarriage of justice will result from the sanctions imposed as a result of [Evan] Stone’s flagrant violation of the Federal Rules of Civil Procedure and the district court’s orders,” Judge Jerry Smith wrote for a three-member panel. “Stone committed those violations as an attempt to repeat his strategy of suing anonymous internet users for allegedly downloading pornography illegally, using the powers of the court to find their identity, then shaming or intimidating them into settling for thousands of dollars – a tactic that he has employed all across the state and that has been replicated by others across the country.”
     Stone faces sanctions for his conduct in a copyright infringement lawsuit against 670 unnamed individuals whose Internet protocol addresses and Internet service providers appeared in connection to the file-sharing program Bit Torrent.
     The John Does allegedly used BitTorrent to illegally download “Der Gute Onkel,” a pornographic film produced by Germany-based Mick Haig Productions.
     Though Stone hoped to expedite discovery and identify the unknown users by serving subpoenas on the ISPs, U.S. District Judge David Godbey instead ordered the ISPs to preserve their records.
     He also appointed the Electronic Frontier Foundation and Public Citizen Litigation Group to defend the Does ad litem.
     Mick Haig had 30 days to inform the ISPs of his preservation order, but it dismissed the case voluntarily instead.
     “The notice of dismissal claimed that the delay in ruling on its motion foreclosed any relief, and it criticized the court’s handling of the case,” the federal appeals court said.
     Soon thereafter, however, it became apparent that Stone had subverted the court’s order to subpoena some of the ISPs, which in turn sent notice of the subpoenas to its implicated clients.
     Godbey imposed $10,000 in sanctions against the Denton, Texas-based Stone in September 2011.
     “To summarize the staggering chutzpah involved in this case: Stone asked the court to authorize sending subpoenas to the ISPs,” Godbey wrote. “The court said ‘not yet.’ Stone sent the subpoenas anyway. The court appointed the ad litems to argue whether Stone could send the subpoenas. Stone argued that the court should allow him to – even though he had already done so – and eventually dismissed the case ostensibly because the court was taking too long to make a decision. All the while, Stone was receiving identifying information and communicating with some Does, likely about settlement. The court rarely has encountered a more textbook example of conduct deserving of sanctions.”
     “The adage ‘it is easier to ask forgiveness than it is to get permission’ has no place in the issuance of subpoenas,” the judge added.
     When Stone ignored the sanctions, Godbey assigned a $500 daily fine for further delays and tacked on an additional $22,000 in attorneys’ fees.
     After staying the sanctions and expediting Stone’s appeal, the New Orleans-based federal appeals court affirmed all penalties and vacated its stay last week.
     The State Bar of Texas says Stone was licensed to practice law there in May 2010 and graduated from Texas Wesleyan University School of Law.
     Stone’s now inactive profile on the social-networking website LinkedIn says he obtained his law degree in 2008.

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