pietz's reply to wright's osc

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    A N D R E W J. W A X L E R , S B N 113682W O N M . P A R K , S B N 194333W A X L E R * C A R N E R B R O D S K Y L L P1960 East Grand Avenue, Suite 1210E l Segundo, California 90245Telephone: (310)416-1300Facsimile: (310)416-1310e-mail: [email protected]: [email protected] Appearing for RespondentB R E T T L. G I B B S

    U N I T E D S T A T E S D I S T R I C T C O U R TC E N T R A L D I S T R I C T OF C A L I F O R N I A

    I N G E N U I T Y 13 L L C , ) Case No . 2 T 2 - C V - 8 3 3 3 - O D W (JCx)Plaintiff, 1 [Assigned to Judge Otis D. Wright, II ]

    vs. / JDEC^L^ ^RL^ O F B I ^ E T T L ) G I B B S I N S U P P O R T O FJ O H N D O E , ) R E S P O N S E T O F E B R U A R Y 7, 2013) O S CDefendant. )) [Filed Concurrently W i t h Response ToThe Court's February 7, 2013 OSC AndRequest For Judicial Notice In SupportO f Response]

    [Complaint F i l e d : August 1, 2012]Date: March 11,2013Time: 1:30 p.m.Dept: 11T r i a l date: None set

    D E C L A R A T I O N O F B R E T T L . G I B B SI, Brett L. Gibbs, declare and state as follows:1. I am an attorney at law duly licensed to practice before all of the courts

    in the State of California and the United States District Court for the Central Districto f C a l i f o r n i a . I am "O f Counsel" to Prenda Law, Inc., counsel of record forPlaintiffs A F Holdings, L L C ("AF Holdings") and Ingenuity 13, L L C ("Ingenuity")in the actions entitled AF Holdings, Inc. v. Doe, United States District Court for the

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    Central District of California Case No. 2:12-cv-6636-ODW(JCx) ("Case No.6636"), AF Holdings, Inc. v. Doe, United States District Court for the CentralDistrict of California Case No. 2:12-cv-6669-ODW(JCx) ("Case No. 6669"),Ingenuity 13 LLC v. Doe, United States District Court for the Central District ofCalifornia Case No . 2:12-cv-6662-ODW(JCx) ("Case No. 6662"), Ingenuity 13 LLCv. Doe, United States District Court for the Central District of California Case No .2:12-cv-6668-ODW(JCx) ("Case No. 6668") and Ingenuity 13 LLC v. Doe, UnitedStates District Court for the Central Distric t of California Case No. 2:12-cv-8333-O D W ( J C x ) ("Case No. 8333" and collectively the "Copyright Litigations"). I havepersonal knowledge of the facts set forth below, and I could and would competentlytestify to them if called upon to do so.

    2. I make this declaration in support of Brett L . Gibbs' Response to theCourt's February 7, 2013 Order to Show Cause.

    3. I am and have never had an ownership interest in the copyrightsinvolved in the Copyright Litigations. As discussed in greater detail below, I did notmake strategic decisions l i k e whether to f i l e actions, who to sue, and whether tomake a certain settlement demand or accept an off er of settlement in the CopyrightLitigations. These types of decisions were made by the clients, after consulting withsenior members of the law firms that employed me in an "o f counsel" relationship.

    4. I am very sorry that the Court is concerned with my conduct. I havestrived to be honest and forthright with this Court, and all courts during my legalcareer.

    5. I am a 2007 graduate of the University of C a l i f o r n i a , Hastings Collegeo f L a w . I began practicing law in December 2007 at a small tax f i r m in Oakland,C a l i f o r n i a , Taggart and Hawkins P . C . ("Taggart and Hawkins").

    6. M y employment with Taggart and Hawkins was abruptly terminated onJuly 10, 2009 when I was diagnosed with inoperable/incurable Grade III/IV braincancer. I stopped practicing law for almost two years while focusing on my health

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    10. On or around June 21, 2011,1 filed my first copyright case representingA F Holdings entitled, AF Holdings LLC v. Does, United States District Court for theNorthern District of California Case No. 1-97, 4:1 l-cv-03067-CW ("Case No.3067"). I had never heard of A F Holdings prior to representing it in Case No. 3067.When filing Case No. 3067 and representing A F Holdings in other cases, I had onlyone clearly defined relationship with A F Holdings: I was a contracted outsideattorney representing A F Holdings in California on behalf of S & H (and laterPrenda) in my role as Of Counsel to those law firms. I was informed and believedand s t i l l believe that A F Holdings is and was a company that owns the rights tocopyrighted movies that were and are being uploaded and downloaded over theInternet by anonymous infringers.

    11. I have never met A l a n Cooper, and do not know what the extent of M r .Cooper's role is in A F Holdings aside from seeing a signature from an " A l a nCooper" on the copyright assignments and pleadings. Based on the assignmentagreement, A F Holdings held the v a l i d and exclusive rights to reproduce anddistribute the film Popular Demand. I was not present when the assignmentagreement was executed. I also never had any direct contact with either RaymondRogers or A l a n Cooper. I have never executed a document as " A l a n Cooper." I didnot play a role in or have knowledge of the assignment transaction at issue. Seniormembers of S & H provided the assignment agreement to me and informed me thatthe copyright assignment was a true and correct copy of the copyright assignmentand to include it as an exhibit in complaints filed on behalf of A F Holdings L L C .Before f i l i n g any such complaints, I confirmed that A F Holdings L L C was in factlisted as the v a l i d copyright holder.

    12. Ingenuity was, and is, a limited l i a b i l i t y company formed and existingunder the laws of the Federation of Saint Kitts and Nevis. As explained to me,Ingenuity was and is a v a l i d company with assets including, but not limited to, thecopyrights at issues in these cases. I have never had a financial or fiduciary interest

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    (i.e., ownership) in Ingenuity. Ingenuity was a client of S & H and then Prenda. Theface-to-face and direct interactions between S & H and later Prenda with Ingenuitywere handled by the senior members of the law firms and not me.

    13. On or around October 28, 2011,1, as counsel for Ingenuity, f i l e d thefirst copyright infringement case on behalf of Ingenuity entitled In the Matter ofIngenuity 13 LLC, United States District Court for the Eastern Distric t of C a l i f o r n i a ,Case No. 2:11 - m c - 0 0 0 8 4 - JA M - D A D ("Case No. 84"). I had never heard ofIngenuity before representing Ingenuity in Case No. 84 and other copyrightinfringement actions. When f i l i n g Case No 84 and representing Ingenuity in othercases, I had only one clearly defined relationship with Ingenuity: I was acting as acontracted outside attorney representing Ingenuity in California in copyrightinfringement actions on behalf of S & H (and later Prenda) in my role as O f Counselto those law firms. I was informed and believe that Ingenuity is and was a companythat owns the rights to copyrighted movies that were being uploaded anddownloaded over the Internet by anonymous infringers.

    14. Case No. 84 was based on a verified petition to perpetuate testimonyand, as stated therein, was intended to allow Ingenuity to ident ify alleged copyrightinfringers of Ingenuity's copyrighted works. The petition was verified through anelectronic signature by " A l a n Cooper". Pursuant to Eastern District of CaliforniaL o c a l Rule 131(f), I confirmed that counsel for Ingenuity had a signed originalnotarized verification for the petition.

    15. Prior to f i l i n g any verified petitions on behalf of Ingenuity, it was mycustom and practice to confirm that the verification of the authorized agent of theclient existed. I confirmed the existence of the client-executed verification either byseeing a copy of the signed verification, or at the very least, being informed by arepresentative of S & H or Prenda that a signed verification was in the possession ofS & H or Prenda.

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    16. In Case No. 84, Mr. Pietz first asked for a copy of M r . Cooper'sverification to the petition to perpetuate testimony on or about December 2012, w e l lafter the petition had been discharged. G i v e n the length of time since the case wasdischarged, I was informed and understand that S & H (and later Prenda) no longerhas a copy of M r . Cooper's verification to the petition to perpetuate testimony.

    17. Mr . Pietz made a similar claim that the verified petition was improperor possibly fraudulent in another action he contested entitled Guava, LLC v.Comcast Cable Communications, LLC, In the C i r c u i t Court for the TwentiethJudicial C i r c u i t , St. C l a i r County, Illinois Case No. 12-MR-417. However, theverification in that case was notarized.

    18. On August 30, 2012, A F Holdings issued a subpoena to defendant'sISP, V e r i z o n Online L L C , in order to obtain information regarding the subscriberassociated with the IP address in Case No . 6669. On September 5, 2012 andSeptember 6, 2012, A F Holdings issued a subpoena to ISP, V e r i z o n Online L L C , inorder to obtain information regarding the subscriber associated with the IP addressin Case No. 6636.

    19. The subpoenas to the ISPs in Case Nos. 6669 and 6636 were issued bya Prenda attomey from the U . S . District Court for the Northern District of I l l i n o i s .A n y responses to the subpoenas from the ISPs were mailed by the ISPs to a mailboxlocated in Chicago and not to me. After the responses to the subpoenas areprocessed, the information associated with these responses would then be madeavailable to me through a computer database.

    20. On October 19, 2012, the Court, issued its Order Vacating Prior EarlyDiscovery Orders and Order to Show Cause in Case Nos. 6636 and 6669 (the"October 19, 2012 Orders"). In light of the requirement of Rule 4(m) to identifyand serve the infringers within 120 days of the f i l i n g of the complaints, I reasonablyinterpreted the October 19, 2012 Orders to cease "discovery" to preclude AFHoldings from pursuing formal discovery related to the Rule 45 subpoenas, but did

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    not preclude A F Holdings from informal investigation to identify and name theinfringers. In other words, I believed and interpreted the October 19, 2012 Ordersas only precluding formal discovery efforts such as pressuring the ISPs to respond tothe subpoenas that had been served and precluding serving any additionalsubpoenas.

    21. F o l l o w i n g receipt of the October 19,2012 Orders, I caused the Court'sOctober 19, 2012 Orders to be served on the registered agents for service of processo f V e r i z o n Online L L C to ensure that V e r i z o n Online L L C had notice not torespond to the subpoenas that had already been served.

    22. In preparation to draft A F Holdings' response to the Court's October19, 2012 Orders, I made a reasonable investigation by accessing the computerdatabase to determine what information, i f any, had been returned in response to thesubpoenas. W i t h respect to Case No. 6636 and 6669,1 determined based on theinformation in the computer database that the ISPs had not responded to thesubpoenas for the subscriber information.

    23. On or about November 7, 2012, after A F Holdings f i l e d its November1, 2012 Report in response to the Court's October 19, 2012 Orderand afterserving each ISP of notice of the Court's orderinformation in response to thesubpoenas issued to V e r i z o n Online L L C in Case No. 6636 and Case No. 6669 wasuploaded to the computer database.

    24. In November 2012, A F Holdings was s t i l l faced with the 120 day Rule4(m) deadline to serve the complaints in Case No . 6636 and Case No . 6669. Thus, Ibelieved I had a duty to perform further informal investigation to comply with theRule 4(m) deadlines. I believed that the Court's October 19, 2012 Orders did notprevent A F Holdings from attempting to identify the infringers in Case Nos. 6636and 6669 through informal means. Thus, I conducted an informal investigation inan attempt to identify the infringers in Case Nos. 6636 and Case No. 6669.

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    25. I did not appreciate that the Court, through its December 20, 2012 andDecember 21, 2012 O S C s re: L a c k of Service in Case Nos. 6662 and 6668, had anexpectation that Ingenuity would provide a complete recitation of a l l specific steps Itook to indentify the infringers. I only understood the Court to be requestingIngenuity summarize why the defendants in each case had not been served.Accordingly, Ingenuity's December 27, 2012 responses to the O S C s was intended toprovide a summary of my efforts regarding service of the complaints and not acomplete recitation of the steps I took to identify the infringers.

    26. On August 28, 2012, Ingenuity issued a subpoena to defendant's ISP,V e r i z o n Internet Services, in order to obtain information regarding the subscriberassociated with the IP address in Case No . 6662. The subpoena return identifiedD a v i d Wagar as the Internet subscriber whose IP address had been observeduploading and downloading Ingenuity's movie, " F i v e Fan Favorites."

    27. On November 7, 2012,1 sent a letter to D a v i d Wagar informing himthat he had been identified by V e r i z o n , and his IP address assigned to him had beenobserved i l l e g a l l y downloading and sharing Ingenuity's movie. A true and correctcopy of the November 7, 2012 letter is attached hereto as Exhibit 2. The letterfurther explained why the subscriber information had been requested/released;explained that, in light of the infringement, a lawsuit was l i k e l y to ensue against theinfringer; informed him that he was "not being directly accused of committing theinfringement" himself; notified he "or a member of [his] household" could benamed in the suit; reached out to D a v i d Wagar on any information he had that couldallow us to identify the infringer; and encouraged him to c a l l me to "meet andconfer prior to bringing any further litigation."

    28. On November 8, 2012,1 followed up the November 7, 2012 letter bycalling D a v i d Wagar and spoke with him. In response to my question regarding theinfringement, D a v i d Wagar stated that he was not the infringer. Mr. Wagar alsoinformed me that it was only he and his wife in the household. I also inquired about

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    the specific time period surrounding the date and time of the alleged inf ringement-i.e. June 28, 2012 at 7:19 U T C a n d D a v id Wagar stated that he and his wife werethe only ones at the house during that time, and had been for years.

    29. F o l l o w i n g my November 8, 2012 telephone discussion with D a v i dWagar, I conducted a further investigation of D a v i d Wagar. Based on theinformation obtained from the subpoena return from V e r i z o n , D a v i d Wagar l i v e d at1411 Paseo Jacaranda, Santa M a ri a , California 93458. I conducted a publicinformation search of D a v i d Wagar that revealed, among other things, that despiteD a v i d Wagar's claim that his household only consisted of he and his wife, that thehouse was also occupied by their son, Benjamin Wagar, who according to the searchhad been l i v i n g at 1411 Paseo Jacaranda, Santa M a r i a , California 93458 since 1999.

    30. I thereafter conducted a web 2.0 search which revealed that, amongother interactions with the Internet, Benjamin Wagar had a Facebook page wherebyhe showed interest in online video games which demonstrated that Benjamin Wagarl i k e l y had access to an Internet connection during this time while he appeared to bel i v i n g at 1411 Paseo Jacaranda, Santa M a ri a , California 93458.

    31. In addition, in order to rule out neighbors of the 1411 Paseo Jacaranda,Santa M a ri a , California 93458 location u t i l i z i n g the internet connection, I performeda Google map search and obtained a satellite picture of the corner house located at1411 Paseo Jacaranda, Santa M a r i a , California 93458. A further public searchrevealed that the house was approximately 1,200 sq. ft. which sat on a 6,534 sq. ft.lot. Considering the position of the house on the lot, and its position away from theneighboring houses, it seemed clear that, should the household have wirelessinternet, it would not have been accessible by the neighbors.

    32. D a v i d Wagar did not respond to the November 7,2013 letter.Therefore, on November 21, 2013,1 sent a second letter to D a v i d Wagar. A true andcorrect copy of the November 21, 2013 letter is attached hereto as Exhibit 3. TheNovember 21, 2013 letter recommended that D a v i d Wagar "retain an attorney;" and

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    again encouraged him, or his attorney, to contact me to discuss the matter. A g a i n ,neither D a v i d Wagar, nor anyone else f rom his household, responded to myinquiries.

    33. On December 11, 2012,1 made a further attempt to telephone theWagar household. I was not able to reach anyone in the household and lef t amessage on the answering machine stating that M r . Benjamin Wagar would benamed in Case No . 6662 unless someone in the household could provideinformation that Benjamin Wagar was not the alleged infringer. Although Irequested and encouraged Benjamin and/or D a v i d to respond with any potentialfacts to the contrary, the c a l l was never returned.

    34. On August 28, 2012, Ingenuity issued a subpoena to, CharterCommunications, in order to obtain information regarding the subscriber associatedwith the IP address in Case No . 6668. The subpoena return identified M a r v inDenton as the Internet subscriber whose IP address had been observed uploadingand downloading Ingenuity's video, " F i v e Fan Favorites." On October 28, 2012,1called M a r v in Denton. However, the phone number provided by Charter in itssupboena return was no longer in service.

    35. On November 8, 2012,1 sent a letter to M a rv in Denton. A true andcorrect copy of the November 8, 2012 letter is attached hereto as Exhibit 4. TheNovember 8, 2012 letter informed M a r v in Denton of the information that had beenreleased by his ISP and why it was requested/released; explained that, in light of theinfringement, a lawsuit was l i k e l y to ensue against the infringer; informed him thathe was "not being directly accused of committing the infringement" himself;notified he "or a member of [his] household" could be named in the suit; reachedout to M a r v in Denton on any information he had that could allow Ingenuity toidentify the infringer; and encouraged him to c a l l me to "meet and confer prior tobringing any further litigation." I did not receive a response to the November 8,2012 letter.

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    36. I also conducted a further investigation to identify the infringer. Thereturn in response to the subpoena from Charter Communications stated that M a r v inDenton l i v e d at 635 S. Vanderwell Avenue, West Covina, California 91790. Iconducted a public information search of M a r v in Denton. The public informationsearch revealed, among other things, that there were three other individuals whowere l i v i n g in the house located at 635 S. Vanderwell Avenue, West Covina,California 91790: two females (ages 65 and 33), and Mayon Denton (age 31).

    37. I performed additional research as to Mayon Denton which revealedthat he had been involved in, or the owner of, four different movie productioncompanies during, or prior to, the alleged date of the infringement (i.e. July 4,2012). At least one of those production companies was active and operating(according to the public database search) before, during and beyond July 7, 2012and the business was located at the same address as the residence that Charter hadprovided Internet access to - 635 S. Vanderwell Avenue, West Covina, California91790. This company, Against the Grain F i l m , L L C , which listed Mayon Denton asa "Member", has a website~http://www.againstthegrainfilm.com/-- that has videocontent on the site which directly stated that Mayon Denton was the " F i l m Editor"o f the film advertised on the site and also that the film had been "ExecutiveProduced by" Mayon Denton. In light o f the fact that activities such as film editingare now almost exclusively performed on the computer, this suggested that not onlyd id Mayon Denton have home Internet access through his father's Charter account,but also that he had a large amount of computer expertise with regard to onlinefilms. In addition, according to the public look-up investigation I performed, D R GFilms L L C was also being operated f rom 635 S. Vanderwel l Avenue, West Covina,California 91790 ~ Mayon had also been involved with another company, InfamousMoney, which had also been involved in the film production industry.

    38. In order to rule out neighbors of the property located at 635 S.Vanderwell Avenue, West Covina, California 91790 u t i l i z i n g the internet

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    connection, I utilized Google maps and obtained a satellite picture of the property.The satellite photo revealed that the property was a very large estate consisting of agate for entry and multiple separate houses/structures on the property. Further,through another publically available search, I was able to identify that the house wasapproximately 1,304 sq. ft. sitting on a 7,620 sq. ft. lot. Considering the position ofthe house and the neighboring properties, including the seemingly main house onthe lot, it seemed clear that, should the household have wireless Internet, it l i k e l ywas not accessible by its neighbors.

    39. M a rv in Denton did not respond to the November 8, 2013 letter.Therefore, on November 22, 2013,1 sent a second letter to M a rv in Denton. A trueand correct copy of the November 22, 2013 letter is attached hereto as Exhibit 5.The November 22, 2013 letter recommended that M a r v in Denton "retain anattorney;" and again encouraged him, or his attorney, to contact me to discuss thismatter. A g a i n , neither M a rv in Denton, nor anyone else from his household,responded to my inquiries.

    40. Although the respective complaints in Case No. 6662 and 6668 referredto a "snapshot observation", the reference was not intended to be a completerecitation of a l l of Ingenuity's pre-filing evidence of copyright infringement. Theallegations of the complaints were only intended to satisfy Ingenuity's obligation toallege the basis for jurisdiction with a short and plain statement of the claim anddemand for relief as required by Fed. R. C i v . P. 8. In the ex parte applications forearly discovery in Case N o . 6662 and 6668, Ingenuity submitted the declaration ofPaul Hansmeier who stated in relevant part:

    "In this case, I personally observed John Doe 's IP address, listed in theComplaint ( E C F N o . 1 \ 4), downloading and uploading the Video in aBitTorrent swarm. Once obtaining a full version of the Video file,John Doe (then a 'seeder') shared pieces of the copyrighted Video

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    file (i.e. 'seed') with other individuals (i.e. 'peers')." (Emphasisadded).

    The fact that the infringers in Case No. 6662 and 6668 had completely downloadedthe movies in question and had viewable copies of the movies was also confirmed inmonitoring reports provided by 6881 Forensics.

    41. I compiled a list of cases filed in 2012 in the United States DistrictCourt for the Northern District of California in which I have been counsel forcopyright holders alleging copyright infringement. In 2012,1 filed 41 cases in theUnited States District Court for the Northern District of California as counsel forcopyright holders alleging copyright infringement. O f those 41 suits, 10 weredismissed because there was no viable candidate that could be identif ied as theinfringer, 6 were dismissed because the ISP fa iled to respond to a subpoena and thealleged infringer was identified in 16 suits of which 11 were served with anamended complaint.

    4 2 . The fact that the Wagars and Dentons ignored my requests forinformation that would potentially preclude members of their households as theinfringers was significant. In other cases of alleged copyright infringement that Ihave prosecuted, I have been contacted by the alleged infringer who explained thatthey were not the infr inger and provided information such as an unsecured Internetconnection or possible unidentified third party guests to the residence. In thoseinstances, the respective complaints were dismissed without naming a defendant.

    4 3 . I first became aware of a question regarding the identity of A l a nCooper when it was raised by M r . Pietz. I have never been accused by A l a n Coopero f misappropriating his identity or forging his signature.

    44. A similar issue regarding the val idity of the copyright assignments toA F Holdings was raised in a case entitled AF Holdings, Inc. v. Does 1-96, UnitedStates District Court for the Northern District of California Case No. C - l 1-03335J S C ("Case N o. 3335"). In Case No . 3335, an issue arose regarding whether there

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    1 ^a . alicf assignment from Heartbreaker to A F Holdings because while the2 i . s i ment was signed by a representative of Heartbreaker, it was not signed by a3 ten :, -mauve o f A F Holdings. Instead, the assignment was signed by a4 ' .. p>e ontative o f A F F i l m s , L L C . Relying on 17 U . S . C . 204 and Effects

    Associates, Inc. v. Cohen, 908 F.2d 555, 557 (9th Cir. 1990). the Magistrate Judgedetermined that the inconsistency did not prevent a prima facie showing ofcopyright owner ship because the la w only requires the assignment to he signed bythe assignor. G i v e n the court's finding that the copyright assignment in Case No .3335 was prima facie v a l i d despite an issue regarding whether the assignee hadproperly executed the assignment. I had and have a good faith belief that theassignments in Cas e No . 6636 and 6669 are v a l i d despite any alleged isstteregarding the identity o f A l a n Cooper.

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    1 declare unuc die penults of pet ',ur\ under the |aw> ohthe United States ofAmerica that the io tegnng w true ano. coueet. Ihw deehiuii.on is executed on the19th day o f Febru.uw ^ 0 ; 2. .,, > * Cdrotiw

    BRf1 f I GIBBS

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