LHF Prods., Inc. v. Boughton

299 F. Supp. 3d 1104
CourtDistrict Court, D. Nevada
DecidedOctober 23, 2017
Docket2:16–cv–01918–JAD–NJK
StatusPublished
Cited by5 cases

This text of 299 F. Supp. 3d 1104 (LHF Prods., Inc. v. Boughton) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
LHF Prods., Inc. v. Boughton, 299 F. Supp. 3d 1104 (D. Nev. 2017).

Opinion

Groups of peers that download and upload the same file during a given period are known as a "swarm," with each peer being identified by a unique series of alphanumeric characters known as "hashtag" that is attached to each piece of the file. The swarm's members are relatively anonymous, as each participant is identifiable only by her Internet Provider (IP) address. Overseeing and coordinating the entire process is a computer or server known as a "tracker" that maintains a record of which peers in a swarm have which files at a given time. In order to increase the likelihood of a successful download, any portion of the file downloaded by a peer is available to subsequent peers in the swarm so long as the peer remains online.
But BitTorrent is not one large monolith. BitTorrent is a computer protocol, used by various software programs known as "clients" to engage in electronic file-sharing. Clients are software programs that connect peers to one another and distributes data among the peers. But a peer's involvement in a swarm does not end with a successful download. Instead, the BitTorrent client distributes data until the peer manually disconnects from the swarm. It is only then that a given peer no longer participates in a given BitTorrent swarm.8

LHF alleges that its film has been pirated by BitTorrent users 79,404,331 times worldwide, 16,799,795 times in the United States, and 113,962 times in Nevada.9 Of those 113,962 alleged infringers, LHF identified the 1-2% most egregious offenders and filed suit against them in sets of 10-30 Does per case.10 Once those 10-30 Does in each case are identified, LHF somehow narrows them down even further to 10 or fewer, and then, allegedly, to the extent that any defendant raises a distinct defense or cause of action, that defendant would be severed into a separate cause of action.11 LHF claims that this process "is designed to impose the least expense on all parties involved-including the Court."12 LHF brought this particular case against 18 initially unidentified defendants. After learning their identities, LHF amended its complaint against 11 named defendants, and then LHF proceeded to dismiss them from the case.13 Only five defendants now remain: Derrick Boughton, Jose Gallego, Tom Gyarfas, Daniell Templeton, and Kristina Walsh.

*1108Discussion

A. Standard of review

When a party objects to a magistrate judge's findings and recommendations, a district court judge must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made."14 The district court judge "may accept, reject, or modify in whole or in part, the findings or recommendations made by the magistrate."15

B. The swarm-joinder split of authority

Joining multiple John/Jane Doe participants in a BitTorrent swarm into a single action is commonly referred to as "swarm joinder."16 Because the defendants are initially unidentified, the plaintiff files an ex parte motion for expedited discovery to subpoena internet service providers (ISPs) for the names and addresses of defendants associated with specified IP addresses. The motion raises two issues: (1) whether the defendants are properly joined; and (2) whether the court should permit the expedited discovery.17 "Courts have dealt with the issue in several ways: denying the discovery requests, severing all but the first Doe defendants, delaying the severance decision until after the Does have been identified, or approving both joinder and pre-service discovery."18

The procedural posture of this case tracks the delay-severance-decision option. Magistrate Judge Koppe granted LHF's expedited discovery requests,19 and then she ordered LHF to show cause why the identified defendants shouldn't be severed from the first defendant and dismissed in each of its cases.20 Judge Koppe, after conducting her own extensive research on swarm joinder, ultimately recommended that I sever and dismiss from this case the claims against all defendants except defendant Boughton.21 LHF objected to that recommendation, so I now determine whether the defendants were properly joined and whether severance is appropriate.

There is a major split of authority on this issue. Only one circuit court-the D.C. Circuit-has ruled on the issue, finding that swarm joinder does not satisfy FRCP 20(a)(2) because the defendants' use of the same BitTorrent protocol to download the same file does not arise out of the same transaction or occurrence.22 The district courts in every other circuit and even the *1109judges within some districts widely disagree on whether to permit swarm joinder. Some courts hold that swarm joinder is appropriate under FRCP 20(a)(2).23 Other courts hold as the D.C. Circuit does.24 And still others exercise their discretion to manage their dockets and sever the defendants even if swarm joinder would technically be permissible under the FRCP because other factors outweigh the benefits conferred by joinder: judicial economy, the high burden on the defendants, the risk of inappropriate settlement leverage, and filing-fee evasion.25 The Ninth Circuit has not yet decided the issue, so I am not bound by any authority.

My exhaustive research on the issue uncovered no clear majority rule. The D.C. Circuit is the only circuit court to have addressed the issue (it doesn't allow swarm joinder),26 5 districts permit swarm joinder under Rule 20(a)(2),27 12 districts do not,28 18 districts have judges on both sides of the debate,29 and the remaining 58 *1110districts have not addressed the issue. Within the Ninth Circuit alone, the District of Arizona,30 the Central District of California, and the District of Oregon do not allow swarm joinder. The Eastern and Western Districts of Washington both permit swarm joinder under Rule 20. The Eastern, Northern, and Southern Districts of California have judges on both sides of the fence. And the Districts of Alaska, Hawaii,31 Idaho, Montana, and Nevada have not yet addressed the issue. The only *1111thing that is firmly established about this issue is that there is no uniform protocol.

I do not decide today whether the defendants' actions were part of the same transaction or occurrence to satisfy Rule 20(a)(2). Even if Rule 20(a)(2) were satisfied, I would still exercise my discretion under Rule 2132 and sever all defendants except the first one, Derrick Boughton, because joining them causes more harm than good.33

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Bluebook (online)
299 F. Supp. 3d 1104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lhf-prods-inc-v-boughton-nvd-2017.