robby3333
01-12-2009, 11:12 AM
It looks like Echostar may be getting ready to send out demand letters. They are demanding theses dealers provide customer names and addresses, phone number and your email address. The email address could be used to verify that someone using that IP downloaded third party files for their Pansat.
They already have obtained 11 dealers customer lists and are demanding five other dealers cough up their customer lists also.
...
Case 2:07-cv-05897-SGL-PLA Document 104 Filed 01/07/2009 Page 1 of 4
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
ECHOSTAR SATELLITE L.L.C., et al.,
Plaintiffs,
v.
PANAREX, INC., et al.,
Defendants.
))))))))))
No. CV 07-5897-SGL (PLAx)
ORDER RE: PLAINTIFF’S MOTION TO
COMPEL THIRD PARTY PRODUCTION
In this action, plaintiff alleges that defendant is in the business of trafficking in “free-to-air”
(“FTA”) receivers that are primarily designed and marketed to enable the piracy of plaintiff’s DISH
Network programming. Complaint, at 36. Plaintiff further asserts that the receivers, which are
distributed through defendant’s authorized dealers, contain firmware and components that enable
the devices to accept the download of illegal pirate software, a capability that has no practical
application other than to circumvent plaintiff’s security system. Id., at 30. Among others, plaintiff
served two such authorized dealers of defendant -- El Sembrador Ministries (“ESM”) and Kimaco
Communications (“Kimaco”) -- with two subpoenas each pursuant to Fed.R.Civ.P. 45. One
subpoena sought the identity of each person who purchased or obtained a receiver from the
dealer from January 1, 2003, to June 30, 2008, including the person’s name, address, phone
number, email address, as well as the purchase date and other information concerning the
Case 2:07-cv-05897-SGL-PLA Document 104 Filed 01/07/2009 Page 2 of 4
receiver (hereinafter referred to as the “user subpoena”). The other subpoena sought information
concerning, among other things, defendant Panarex, plaintiff’s security system, third party
software, as well as advertising information (hereinafter referred to as the “general information
subpoena”). Neither ESM nor Kimaco have produced responsive documents to either subpoena.
Plaintiff has now filed a Motion to compel production of documents pursuant to the subpoenas.
The Court has considered all of the documents filed in connection with the Motion,1 as well as the
oral argument presented at the hearing on January 6, 2009.
ESM asserts that the approximately 4,000 Pansat receivers it provided to its members were
reprogrammed so that the members could only view ESM’s broadcasts and no other
programming. Declaration of Noel Diaz in opposition to Motion. Kimaco contends that it sells
Pansat receivers to its member customer base to enable individual purchasers to view
programming from their native countries in their language of origin. Declaration of Kima Sami in
opposition to Motion. Neither ESM nor Kimaco have been contacted by their customers inquiring
how to reconfigure the receivers to enable them to receive restricted programming. Id. ESM and
Kimaco fear that plaintiff will in the future threaten legal action against those individuals whose
names it obtains through the instant subpoenas, and that innocent individuals will be “swept up”
in litigation campaigns and will have little choice but to pay settlements or face costly litigation.
They further fear that enforcing the Court’s limitations on the use of the customer information
would be “next to impossible,” and that plaintiff’s assurance that it has no interest in pursuing
litigation “is simply not worthy of belief.”
ESM and Kimaco further contend that the discovery being sought by plaintiff threatens the
privacy interests of their members and customers, who have done nothing wrong. Despite this
1 Defendant Panarex, Inc., submitted a “Supplemental Brief” in support of the opposition filed
by ESM and Kimaco, in which it argues that the discovery at issue should not be compelled.
Plaintiff filed a Response to the Supplemental Brief. The Court has already considered the
arguments raised by defendant in denying its earlier request for a protective order. To the extent
the Supplemental Brief can be construed as a motion for reconsideration of the Court’s October
15, 2008, Order, it does not meet the requirements of Local Rule 7-18. Indeed, the bulk of the
information concerning the burden being suffered by defendant contained in the Declaration of
Won Tak Kim submitted with the Supplemental Brief was available prior to the issuance of the
October Order.
2
Case 2:07-cv-05897-SGL-PLA Document 104 Filed 01/07/2009 Page 3 of 4
Court’s Order of October 15, 2008, denying defendant Panarex’s motion for a protective order in
connection with the user subpoenas, these non-parties argue that this dispute is “uniquely
different” in that neither they nor their members are parties to this litigation.2 But that is precisely
the issue that the Court considered in its previous Order, when it “balanced the asserted right to
privacy against the relevance and necessity of the information being sought,” which included the
fact that the responding entities were third parties. October 15, 2008, Order, at 4. In prohibiting
plaintiff from seeking any information from the customers whose identities are obtained concerning
the specifics of the programming viewed by them, and limiting the purchaser information to use
in this action (and prohibiting plaintiff from using that information to initiate litigation, threaten
potential litigation, or seek to resolve potential litigation based on suspected signal piracy), the
Court specifically addressed the privacy concerns presented by ESM and Kimaco. The Court
holds the power of contempt should plaintiff violate the Court’s directive.
As discussed in the Court’s previous Order, plaintiff has asserted violations of, among other
things, the Digital Millennium Copyright Act (17 U.S.C. §§ 1201(a)(2) and (b)(1)) and the
Communications Act of 1934 (47 U.S.C. §§ 605(a) and (e)(4)). The Digital Millennium Copyright
Act protects against products that are “primarily designed” to circumvent a technological measure
that controls access to a protected work, or are marketed for use in circumventing an access
control system. 17 U.S.C. §§ 1201(a)(2), (b)(1). The Communications Act of 1934 addresses the
manufacture and sale of a device that “is primarily of assistance” in the unauthorized decryption
of direct-to-home satellite services, and also targets individuals who receive or assist others to
intercept satellite signals. 47 U.S.C. §§ 605(a), (e)(4). The Court previously found that the
sought-after user information could lead to discovery relevant to these issues. However, in light
of the representations contained in the Diaz Declaration that the receivers provided to ESM’s
members were reprogrammed so that its members could only view ESM’s broadcasts, the
relevance to this action of the information being sought by plaintiff by the ESM user subpoena is
2 ESM and Kimaco do not present any arguments in the Joint Stipulation as to why they did
not, or should not have to, comply with the general information subpoenas. As such, and based
on a finding of relevance, the Court will order production as to those subpoenas.
3
Case 2:07-cv-05897-SGL-PLA Document 104 Filed 01/07/2009 Page 4 of 4
greatly diminished, if not eliminated. As for the Kimaco user subpoena, the Court concludes that
the relevance of the information being sought therein may also be eliminated if the parties are able
to stipulate to various conditions concerning the use of the user information obtained by plaintiff
from other dealers also subpoenaed.3
Accordingly, the Court denies the portion of the Motion dealing with the user subpoena
issued to ESM, without prejudice to plaintiff renewing its Motion in this regard should further
discovery provide a showing of relevance. The Court denies the portion of the Motion dealing with
the user subpoena issued to Kimaco, without prejudice to plaintiff renewing its Motion in this
regard if the parties, no later than January 21, 2009, are unable to resolve the use of the subject
information (see fn. 3). Plaintiff’s Motion is granted as to the general information subpoenas
issued to ESM and Kimaco. Within ten (10) business days of the date of this order, ESM and
Kimaco shall each provide all information and documents responsive to the general information
subpoenas, without objection.
Plaintiff’s request that ESM and Kimaco pay its reasonable attorneys fees and costs is
denied.
DATED: January 7, 2009
PAUL L. ABRAMS
UNITED STATES MAGISTRATE JUDGE
At the hearing, counsel for plaintiff represented that plaintiff had obtained user information
from 11 other dealers, and expected to receive user information from 5 additional dealers, and that
this data may be sufficient for evaluation by plaintiff’s expert. If the parties are able to agree to
plaintiff’s satisfaction that defendant will not challenge the sufficiency of the data based on the
absence of additional user information from other dealers, the need for the information sought by
the user subpoenas in this Motion may be diminished. The Court believes it prudent to give the
parties an opportunity to resolve this issue in such a manner.
They already have obtained 11 dealers customer lists and are demanding five other dealers cough up their customer lists also.
...
Case 2:07-cv-05897-SGL-PLA Document 104 Filed 01/07/2009 Page 1 of 4
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
ECHOSTAR SATELLITE L.L.C., et al.,
Plaintiffs,
v.
PANAREX, INC., et al.,
Defendants.
))))))))))
No. CV 07-5897-SGL (PLAx)
ORDER RE: PLAINTIFF’S MOTION TO
COMPEL THIRD PARTY PRODUCTION
In this action, plaintiff alleges that defendant is in the business of trafficking in “free-to-air”
(“FTA”) receivers that are primarily designed and marketed to enable the piracy of plaintiff’s DISH
Network programming. Complaint, at 36. Plaintiff further asserts that the receivers, which are
distributed through defendant’s authorized dealers, contain firmware and components that enable
the devices to accept the download of illegal pirate software, a capability that has no practical
application other than to circumvent plaintiff’s security system. Id., at 30. Among others, plaintiff
served two such authorized dealers of defendant -- El Sembrador Ministries (“ESM”) and Kimaco
Communications (“Kimaco”) -- with two subpoenas each pursuant to Fed.R.Civ.P. 45. One
subpoena sought the identity of each person who purchased or obtained a receiver from the
dealer from January 1, 2003, to June 30, 2008, including the person’s name, address, phone
number, email address, as well as the purchase date and other information concerning the
Case 2:07-cv-05897-SGL-PLA Document 104 Filed 01/07/2009 Page 2 of 4
receiver (hereinafter referred to as the “user subpoena”). The other subpoena sought information
concerning, among other things, defendant Panarex, plaintiff’s security system, third party
software, as well as advertising information (hereinafter referred to as the “general information
subpoena”). Neither ESM nor Kimaco have produced responsive documents to either subpoena.
Plaintiff has now filed a Motion to compel production of documents pursuant to the subpoenas.
The Court has considered all of the documents filed in connection with the Motion,1 as well as the
oral argument presented at the hearing on January 6, 2009.
ESM asserts that the approximately 4,000 Pansat receivers it provided to its members were
reprogrammed so that the members could only view ESM’s broadcasts and no other
programming. Declaration of Noel Diaz in opposition to Motion. Kimaco contends that it sells
Pansat receivers to its member customer base to enable individual purchasers to view
programming from their native countries in their language of origin. Declaration of Kima Sami in
opposition to Motion. Neither ESM nor Kimaco have been contacted by their customers inquiring
how to reconfigure the receivers to enable them to receive restricted programming. Id. ESM and
Kimaco fear that plaintiff will in the future threaten legal action against those individuals whose
names it obtains through the instant subpoenas, and that innocent individuals will be “swept up”
in litigation campaigns and will have little choice but to pay settlements or face costly litigation.
They further fear that enforcing the Court’s limitations on the use of the customer information
would be “next to impossible,” and that plaintiff’s assurance that it has no interest in pursuing
litigation “is simply not worthy of belief.”
ESM and Kimaco further contend that the discovery being sought by plaintiff threatens the
privacy interests of their members and customers, who have done nothing wrong. Despite this
1 Defendant Panarex, Inc., submitted a “Supplemental Brief” in support of the opposition filed
by ESM and Kimaco, in which it argues that the discovery at issue should not be compelled.
Plaintiff filed a Response to the Supplemental Brief. The Court has already considered the
arguments raised by defendant in denying its earlier request for a protective order. To the extent
the Supplemental Brief can be construed as a motion for reconsideration of the Court’s October
15, 2008, Order, it does not meet the requirements of Local Rule 7-18. Indeed, the bulk of the
information concerning the burden being suffered by defendant contained in the Declaration of
Won Tak Kim submitted with the Supplemental Brief was available prior to the issuance of the
October Order.
2
Case 2:07-cv-05897-SGL-PLA Document 104 Filed 01/07/2009 Page 3 of 4
Court’s Order of October 15, 2008, denying defendant Panarex’s motion for a protective order in
connection with the user subpoenas, these non-parties argue that this dispute is “uniquely
different” in that neither they nor their members are parties to this litigation.2 But that is precisely
the issue that the Court considered in its previous Order, when it “balanced the asserted right to
privacy against the relevance and necessity of the information being sought,” which included the
fact that the responding entities were third parties. October 15, 2008, Order, at 4. In prohibiting
plaintiff from seeking any information from the customers whose identities are obtained concerning
the specifics of the programming viewed by them, and limiting the purchaser information to use
in this action (and prohibiting plaintiff from using that information to initiate litigation, threaten
potential litigation, or seek to resolve potential litigation based on suspected signal piracy), the
Court specifically addressed the privacy concerns presented by ESM and Kimaco. The Court
holds the power of contempt should plaintiff violate the Court’s directive.
As discussed in the Court’s previous Order, plaintiff has asserted violations of, among other
things, the Digital Millennium Copyright Act (17 U.S.C. §§ 1201(a)(2) and (b)(1)) and the
Communications Act of 1934 (47 U.S.C. §§ 605(a) and (e)(4)). The Digital Millennium Copyright
Act protects against products that are “primarily designed” to circumvent a technological measure
that controls access to a protected work, or are marketed for use in circumventing an access
control system. 17 U.S.C. §§ 1201(a)(2), (b)(1). The Communications Act of 1934 addresses the
manufacture and sale of a device that “is primarily of assistance” in the unauthorized decryption
of direct-to-home satellite services, and also targets individuals who receive or assist others to
intercept satellite signals. 47 U.S.C. §§ 605(a), (e)(4). The Court previously found that the
sought-after user information could lead to discovery relevant to these issues. However, in light
of the representations contained in the Diaz Declaration that the receivers provided to ESM’s
members were reprogrammed so that its members could only view ESM’s broadcasts, the
relevance to this action of the information being sought by plaintiff by the ESM user subpoena is
2 ESM and Kimaco do not present any arguments in the Joint Stipulation as to why they did
not, or should not have to, comply with the general information subpoenas. As such, and based
on a finding of relevance, the Court will order production as to those subpoenas.
3
Case 2:07-cv-05897-SGL-PLA Document 104 Filed 01/07/2009 Page 4 of 4
greatly diminished, if not eliminated. As for the Kimaco user subpoena, the Court concludes that
the relevance of the information being sought therein may also be eliminated if the parties are able
to stipulate to various conditions concerning the use of the user information obtained by plaintiff
from other dealers also subpoenaed.3
Accordingly, the Court denies the portion of the Motion dealing with the user subpoena
issued to ESM, without prejudice to plaintiff renewing its Motion in this regard should further
discovery provide a showing of relevance. The Court denies the portion of the Motion dealing with
the user subpoena issued to Kimaco, without prejudice to plaintiff renewing its Motion in this
regard if the parties, no later than January 21, 2009, are unable to resolve the use of the subject
information (see fn. 3). Plaintiff’s Motion is granted as to the general information subpoenas
issued to ESM and Kimaco. Within ten (10) business days of the date of this order, ESM and
Kimaco shall each provide all information and documents responsive to the general information
subpoenas, without objection.
Plaintiff’s request that ESM and Kimaco pay its reasonable attorneys fees and costs is
denied.
DATED: January 7, 2009
PAUL L. ABRAMS
UNITED STATES MAGISTRATE JUDGE
At the hearing, counsel for plaintiff represented that plaintiff had obtained user information
from 11 other dealers, and expected to receive user information from 5 additional dealers, and that
this data may be sufficient for evaluation by plaintiff’s expert. If the parties are able to agree to
plaintiff’s satisfaction that defendant will not challenge the sufficiency of the data based on the
absence of additional user information from other dealers, the need for the information sought by
the user subpoenas in this Motion may be diminished. The Court believes it prudent to give the
parties an opportunity to resolve this issue in such a manner.