Doe v. Verizon Online

• Court: District Court, District of Columbia
• Decided: May 21, 2010
• Docket: Misc. No. 2010-0171
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHN DOE 4,

Petitioner, Misc. Action 10-00171 v. HHK/DAR

VERIZON ONLINE,

Respondent.

MEMORANDUM OPINION AND ORDER

Pending for determination by the undersigned is the Motion to Quash Subpoena filed by

“John Doe #4” (“Motion to Quash”) (Document No. 3). Upon consideration of the motion,

Worldwide Film Entertainment, LLC’s Opposition to Motion to Quash Subpoena Filed by

Anonymous Defendant John Doe #4 (Document No. 7) and the entire record herein, said motion

will be denied.

BACKGROUND

On January 8, 2010, Worldwide Film Entertainment, LLC (“Worldwide”) brought an

action for damages and injunctive relief for alleged copyright infringement. Complaint, Civil

Action No. 10-0038 (Document No. 1), ¶ 1. Worldwide states that it is a creator and distributor of

motion pictures, including “The Gray Man[.]” Id., ¶ 6. Worldwide alleges that 749 unidentified

defendants, “[t]he true names of [which] are unknown to Plaintiff at this time[,]” infringed its

exclusive rights under copyright law by “copying and distributing to others over the Internet John Doe #4 v. Verizon Online 2

unauthorized copies of [said] motion picture[.]” Id., ¶¶ 6, 8, 12. Worldwide submits that each

defendant is now known to Worldwide “only by the Internet Protocol (“IP”) address assigned to

that Defendant by his or her Internet Service Provider [“ISP”] on the date and at the time at which

the infringing activity of each Defendant was observed.” Id., ¶ 8. Worldwide states that

“information obtained in discovery will lead to the identification of each Defendant’s true name

and permit the Plaintiff to amend this Complaint to state the same.” Id.

On January 17, 2010, Worldwide filed a Motion for Leave to Take Discovery Prior to the

Rule 26(f) Conference (Document No. 3). By said motion, Worldwide sought leave of the court to

serve discovery through the issuance of subpoenas pursuant to Federal Rule of Civil Procedure 45

on the ISPs which provided internet access to each defendant in order to determine the defendants’

identities. See Plaintiff’s Memorandum of Points and Authorities in Support of Motion for Leave

to Take Discovery Prior to Rule 26(f) Conference (Document No. 3) at 6-7. On January 26, 2010,

the court granted the motion, and provided, inter alia, that Worldwide “may [immediately] serve

[a Rule 45 subpoena] [on] any ISP identified by the same means detailed in the Declarations and

Motion, or identified as providing network access or online services to one or more Doe

Defendants,” for “information sufficient to identify each Doe Defendant[.]” See Order

(Document No. 5) at 1-2.

Six of the individuals or entities whose identifying information was sought by subpoena

served upon an ISP moved in the civil action to quash the subpoena. In the instant miscellaneous

action, a seventh motion was filed by an individual who identifies himself or herself as “John

Doe #4. By said motion, the movant seeks to quash the subpoena served on Verizon Online for

certain of the movant’s identifying information. Motion to Quash at 1. In support of the motion, John Doe #4 v. Verizon Online 3

movant submits that the subpoena is “procedurally defective[,]” and denies knowledge of the

alleged infringement. Id.

Worldwide, in its opposition, submits that the motion to quash is “procedurally

defective[,]” and that the movant has not provided justification for the relief requested.

Plaintiff’s Opposition at 3-9.

DISCUSSION

Rule 45(c)(3)(A) of the Federal Rules of Civil Procedure provides, in pertinent part, that

on timely motion, the court must quash or modify a subpoena that “(i) fails to allow reasonable

time to comply; . . . (iii) requires disclosure of privileged or other protected matter, if no

exception or waiver applies; or (iv) subjects a person to undue burden.” Fed. R. Civ. P.

45(c)(3)(A)(i), (ii), (iii). Additionally, Rule 45(c)(3)(B) provides, in pertinent part, that a court

may quash or modify a subpoena “if it requires . . . disclosing a trade secret or other confidential

research, development, or commercial information[.]” Fed. R. Civ. P. 45(c)(3)(B)(i).*

The undersigned finds that movant has failed to demonstrate that the subpoena served

upon Verizon Online must be quashed or modified in accordance with Rule 45(c)(3)(A), or that

the court should exercise its discretion to do so in accordance with Rule 45(c)(3)(B). Movant

characterizes the subpoena as “procedurally defective[,]” but identifies no ground cognizable

under Rule 45 which would permit the court to quash or modify the subpoena.

* Verizon Online has not moved to quash or modify the subpoena, or otherwise object to it. The undersigned assumes, for the purposes of this motion, that the individual or entity whose subscriber information was the subject of the subpoena has standing to move to quash it. Cf. Covad Communications Co. v. Revonet, Inc., No. 09-M C-102, 2009 WL 3739278, at *3 (D.S.D. Nov. 4, 2009) (while “[o]rdinarily a party does not have standing to object to a subpoena served on a non-party, . . . a party does have standing to object to a subpoena served upon a non-party which requires the production of privileged information.”) (citation omitted). John Doe #4 v. Verizon Online 4

Moreover, movant’s denial of knowledge of the alleged infringement cannot be evaluated

in the context of the motion to quash the subpoena served upon Comcast. This court has

observed that “factual and technical arguments . . . are unrelated to any appropriate inquiry

associated with a motion to quash.” Arista Records LLC v. Does 1-19, 551 F. Supp. 2d 1, 8

(D.D.C. April 28, 2008); see also Fonovisa, Inc. v. Does 1-19, No. 07-1515, 2008 WL 919701, at

*8 (W.D.Pa. April 3, 2008) (holding that if the individual or entity whose identifying information

was sought by a subpoena served on an ISP “believes that it has been improperly identified by

the ISP, [the individual or entity] may raise, at the appropriate time, any and all defenses, and

may seek discovery in support of its defenses.”).

CONCLUSION

For all of the foregoing reasons, the undersigned finds that movant has failed to

establish a basis upon which to quash or modify the subpoena consistent with Rule 45 of the

Federal Rules of Civil Procedure. Accordingly, it is, this 21th day of May, 2010,

ORDERED that the Motion to Quash filed by “John Doe #4" (Document No. 3) is hereby

DENIED.

________/s/________________ DEBORAH A. ROBINSON United States Magistrate Judge