Last week I wrote about Prenda’s new “invention” — sending out letters requesting informal discovery and threatening to file a motion to compel if a recipient does not act. Anyone who follows these cases immediately recognized the real goal behind these letters: to play the number game and hope that at least few uneducated Does would contact Prenda for clarifications, and be conned as a result. As I repeatedly state, talking to a troll is a big no-no: you cannot outfox seasoned fraudsters. Although these letters are absolute hogwash and do not deserve to be taken seriously, the discomfort of tedious waiting is not for everyone, and some recipients will want to reply formally. David Kerr, an IP attorney from Colorado, who defended many troll victims, has drafted a reply that is featured below for your reference. If you (or your attorney) is resolved to reply to Steele’s Halloween greeting card for whatever reason, this is an excellent template to consider. In any case, it is useful to read this reply as it complements my emotional speculations with solid legal argument.

We are in receipt of you letter dated _____. Based on our understanding of this correspondence your client is seeking to propound informal discovery requests including, but not limited to the production of documents, informal deposition testimony and even access to my client’s private computer network. Your letter further indicated that failure to comply with these informal discovery requests will precipitate a formal motion to compel compliance. Please note that these requests do not comport with the Federal Rules of Civil Procedure and are invalid on their face. Further, based on a review of relevant Court documents, it appears that such informal requests are not being made within the context of an active and on-going civil lawsuit. As such, my client can only assume that these invalid requests are being offered in bad faith and for a vexatious and harassing purpose. However, providing the maximum benefit of the doubt, my client will assume that you have merely failed to conduct any serious legal inquiry into the issue and have overlooked the great weight of clear case law on the matter. To better inform all parties of their rights, my client’s formal response to your invalid request is as follows:

PLAINTIFF’S INFORMAL REQUEST FOR DISCOVERY IS NOT RECOGNIZED UNDER THE LAW AND CANNOT FORM THE BASIS OF A MOTION TO COMPEL

Please note that previous attempts to circumvent formal discovery in this manner has been universally rejected by the Courts. For example, as the court in Sithon Maritime Co. v. Mansion explained:

the Federal Rules of Civil Procedure provide necessary boundaries and requirements for formal discovery. Parties must comply with such requirements in order to resort to the provisions of Fed. R. Civ. P. 37, governing motions to compel. Informal requests for production lie outside the boundaries of the discovery rules. Formal requests may be filed under some circumstances, not letter requests. Formal requests require certificates of conferring and service. Letters do not. Formal requests certify representations of counsel under Fed. R. Civ. P. 11(b). Letters do not. Formal requests clearly implicate the duties of opposing parties to respond, pursuant to Fed. R. Civ. P. 34. Letters do not. Formal requests may occasion sanctions. Letters usually do not. To treat correspondence between counsel as formal requests for production under Rule 34 would create confusion and chaos in discovery…” 1998 U.S. Dist. LEXIS 5432, 1998 WL 182785, *2 (D. Kan. 1998).

Similarly the court in Schwartz v. Marketing Publishing Co., — specifically rejecting the notion that a party may offer an informal letter requesting discovery — noted that:

it is far easier and quicker to make a formal document request pursuant to Rule 34 than it is to construct and articulate an argument why an informal letter should be treated as a Rule 34 request so as to enable it to be enforced under Rule 37. When parties fashion their own procedure, they remove their cases from the litigative stream and, when a dispute later arises, almost invariably consume more than their fair share of judicial time.” 153 F.R.D. 16, 21 (D. Conn. 1994).

Many other courts have echoed the Sithon Maritime Co. and Schwartz courts’ views and have denied motions to compel because the underlying discovery request was not a formal one. See, e.g., James v. Wash Depot Holdings, Inc., 240 F.R.D. 693, 694-95 (S.D. Fla. 2006); Susko v. City of Weirton, 2011 U.S. Dist. LEXIS 3134, 2011 WL 98557, *2 (N.D. W. Va. 2011); Tex. Democratic Party v. Dallas Cnty., 2010 U.S. Dist. LEXIS 130939, 2010 WL 5141352, *1 (N.D. Tex. 2010) (citing Ledbetter v. United States, 1996 U.S. Dist. LEXIS 20039, 1996 WL 739036, *2 (N.D. Tex. 1996); Garrison v. Dutcher, 2008 U.S. Dist. LEXIS 28267, 2008 WL 938159, *2 (W.D. Mich. 2008)); and Britton v. Dallas Airmotive, Inc., 2010 U.S. Dist. LEXIS 19502, 2010 WL 797177, *9-10 (D. Id. 2010) (citing Suid v. Cigna Corp., 203 F.R.D. 227, 229 (D.V.I. 2001).

THERE EXISTS NO OBLIGATION TO RESPOND TO PLAINTIFF’S INVALID REQUEST

In this instance, Plaintiff’s informal and improper request circumvents the Parties obligations and rights under the Federal Rules of Civil Procedure. Under similar circumstances courts have held that a Parties’ non-response was appropriate and, in fact, justified. See Fleisher v. A 1990 53′ Viking Sport Fishing Vessel, 2011 U.S. Dist. LEXIS 137618 (S.D. Fla. 2011) (“there is nothing sanctionable about a party’s refusal to provide discovery that is only informally requested.”). Our client will respond to, and comply with all legitimate discovery obligations offered in the context of an active civil case. Our position is firm that any motion to compel based on your informal discovery request would be contrary to the clear weight of law, unnecessary, frivolous, and a waste of judicial and client resources. If you wish to address the matter personally feel free to contact me directly.