Thursday, May 1, 2008

The initial filings in the Eclipse Aviation vs. Does case

The primary subject matter of this blog is Eclipse Aviation Corporation v. John Doe et al., No. D-202-CV-2008-02624, New Mexico Second Judicial District Court, Bernalillo County, filed March 18, 2008.

I'm not sure that there will ever be more than one or two entries in this blog. I created it mostly just to have a place to post some documents I had obtained that I wanted to share with anyone else who was interested in the case. I first threw them into a directory under my domain, but I thought I should also make them available through an URL that's easier to spell and remember. A blogspot URL seemed appropriate for this case.

I would like to start by giving a summary of the plaintiff's complaint. Unfortunately, the complaint is sealed, and all I really know about it is that the case information from the court's website lists the causes of action as "Breach of Contract" and "Injunction - Not Contract/Tort". I believe the order sealing the complaint is a public document, and I imagine it gives at least a cursory reason for the sealing, but I have not seen that order yet.

The main document that I have seen is the "Deposition Subpoena for Production of Business Records" that was issued on April 14, 2008 from California Superior Court, Santa Clara County, under case number 1-08-CV-110380.

The subpoena seeks:

Subscriber, Poster or Member information and details from the Web Log (BLOG) account of ECLIPSE AVIATION CRITIC NG (HTTP://WWW.ECLIPSECRITICNG.BLOGSPOT.COM/) for the individual or individuals using the posting identity/identities of [... a list of twenty-eight different aliases ...] including, but not limited to: first name, last name, zip code, and email address given when registering the account and also any and all records pertaining to user login information including, but not limited to: all remote IP addresses with corresponding dates and times logged by your system on each occurrence of the account being accessed, and remote IP address, date and time logged by your system when the account was created and all other information pertaining to the account in the custody of Google, Inc. and/or

(Deposition subpoena, at attachment 3)

Oddly, the deponent at whom the subpoena is directed is not the well-known legal person named Google Inc. (Delaware corporation #3582691), but is, instead, "Google Legal Support, Blogger CMCA [sic] Complaints":

This wording is apparently traceable to the page at, which says that Digital Millennium Copyright Act notices (a category of documents to which this subpoena clearly does not belong) should be sent to "Google, Inc., Attn: Google Legal Support, Blogger DMCA Complaints".

The other documents on file in Santa Clara are the "Declaration of Angela F. Storey in Support of Order to Issue Subpoena in California For Action Outside State" (dated April 14) and the attached "Commission to Issue and/or Obtain Subpoena in California" (dated April 10) from the New Mexico Court.

There was almost a month's delay from when the case was opened (on March 18) until the California subpoena was issued (on April 14), and you can see that this was partly because Eclipse's New Mexico counsel first served Google with a New Mexico subpoena and was apparently surprised to learn that that wasn't going to get him anywhere. As Eclipse's California counsel declares:

3. On or about March 21, 2008 ECLIPSE'S New Mexico attorney, David T. Thuma of Jacobvitz, Thuma & Walker, P.C., issued a subpoena to Google, Inc. located in Mountain View, California, Santa Clara County.

4. On or about March 26, 2008, Google, Inc. objected to the above subpoena on the grounds that said subpoena [was] not valid as it was not issued from the Santa Clara County Court.

5. ECLIPSE thereafter retained this law firm as local counsel to assist in obtaining a subpoena from the Santa Clara County Superior Court.

(Storey Declaration, at page 2)