The 5th U.S. Circuit Court of Appeals has affirmed a $10,000 sanction against Denton solo Evan Stone (pictured), finding he waived his argument that U.S. District Judge David Godbey of Dallas had no power to issue the sanction against him.
Godbey sanctioned Stone last year in Mick Haig Productions v. Does 1-670 after ruling that Stone had issued subpoenas in a case in violation of a court order while Stone was attempting to determine the names of people who allegedly had been improperly downloading his client’s adult movie.
Stone appealed the sanction, arguing that Godbey had no power to sanction him under Federal Rules of Civil Procedure 26, 45 or 11 or under the inherent power of the district court. After finding Stone waived that argument, the court noted that Stone asserted for the first time at oral argument that the 5th Circuit could "consider his arguments because his appeal is one of 'extraordinary circumstances,' involving only 'pure question[s] of law [in which] a miscarriage of justice would result from our failure to consider [them].' "
“We conclude, however, that no miscarriage of justice will result from the sanctions imposed as a result of Stone’s flagrant violation of the Federal Rules of Civil Procedure and the district court’s orders. Stone committed those violations as an attempt to repeat his strategy of suing anonymous internet users for allegedly downloading pornography illegally, using the powers of the court to find their identity, then shaming or intimidating them into settling for thousands of dollars — a tactic that he has employed all across the state and that has been replicated by others across the country,” concluded Judge Jerry Smith, in a decision joined by Judges Emilio Garza and Leslie Southwick.
Stone says he will file a motion for rehearing with the 5th Circuit “because there are express provisions of law allowing what I did, and both he [Godbey] and the appellate court have chosen to ignore that.”
Matt Zimmerman, a staff attorney with the Electronic Frontier Foundation who Godbey appointed to represent the Does in the case and who argued in support of the sanction against Stone at the 5th Circuit, is pleased with the decision. “What Mr. Stone did was improper, and we think that the sanctions were proper and fair and look forward to him complying,’’ Zimmerman says.
-- John Council