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FAQ for Bittorrent Cases: Or, “I got a letter from my ISP and…”

9.      What’s this about a Motion to Quash?

A motion to quash may or may not be successful.  To even attempt to defend yourself at this stage might not be the most economical use of your dollars.  To locate an attorney to file a motion to quash, you should find one that is close to the area where the action is filed.   If you choose to ignore the right to file a motion to quash, you should hire a local attorney to represent you.

The poker analogy:

The Plaintiff’s lawyer is sitting at the card table.  If you are Doe #41 of a total of 261 Does it means that the lawyer assumes you will be one of the people joining his poker game.  He has 261 empty chairs, has 261 decks of cards, and has dealt 261 hands of five cards to each person. 

For those familiar with poker, the Plaintiff’s lawyer would be the house.  House odds can be calculated or approximated based upon the reputation of the lawyer, and their past mistakes and successes.  For those familiar with the actual statistics of poker, and how often cards come up, the house always plays like they have two pair.  They believe they only have a 3% chance of losing before you ever show up.  So, they’re pretty sure you’re going to lose.  This is why they are comfortable raising you in the first demand letter, when they tell you that if you don’t respond by a certain timeframe, you will owe them more.

Filing a motion to quash makes the house angry, because they have to bet again before you even sit down at the table.  They have two pair, they will likely win, and they believe you have nothing.  It causes them extra work, it causes them headaches in the court, and sometimes, it is a good idea because it is effective, and other times it is not.  An attorney should always be contacted regarding filing one of these motions.  Hiring an attorney so that you don’t have to attend the poker game can be costly.

The other option is to willingly sit down at the table, identify yourself, and state that you’re willing to play the game.  In other words, you are showing up at the poker table, and then immediately raising them.  If they want to see your cards, it is going to cost them.  They have 260 other games going….statistically it is better for them to fold on your game, and move on to the others. If you win your case, they will end up paying your attorney.

To end the analogy with the straightforward explanation, it will cost a Plaintiffs lawyer quite a bit to see if you actually have downloaded these materials or not.       


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