Malibu Media, LLC v. John Does 1-14

287 F.R.D. 513, 2012 WL 6115653, 2012 U.S. Dist. LEXIS 174384
CourtDistrict Court, N.D. Indiana
DecidedDecember 10, 2012
DocketCause No. 1:12-CV-263
StatusPublished
Cited by27 cases

This text of 287 F.R.D. 513 (Malibu Media, LLC v. John Does 1-14) is published on Counsel Stack Legal Research, covering District Court, N.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Malibu Media, LLC v. John Does 1-14, 287 F.R.D. 513, 2012 WL 6115653, 2012 U.S. Dist. LEXIS 174384 (N.D. Ind. 2012).

Opinion

OPINION AND ORDER

ROGER B. COSBEY, United States Magistrate Judge.

I. INTRODUCTION

This copyright infringement action is before the Court on Defendant John Doe No. 12’s Motion to Dismiss or Sever for Misjoin-der and Motion to Quash Plaintiffs Subpoena. (Docket # 24.) Plaintiff Malibu Media, LLC, responded to the motion (Docket # 38), but Doe No. 12 did not file a reply, and the time to do so has since passed. As such, the motion is now ripe for ruling. For the following reasons, the portions of the motion seeking to sever Doe No. 12 and quash the subpoena will be DENIED.1

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Malibu Media, LLC, a producer of adult entertainment content, owns the copyright for a motion picture entitled “Romantic Memories.” (Compl. ¶ 11; Pl.’s Mem. in Opp. to John Doe 12’s Sealed Mot. to Dismiss or Sever for Misjoinder & Sealed Mot. to Quash Pl.’s Subpoena (“Pl.’s Mem. in Opp.”) 1.) Plaintiff alleges that each of the Doe Defendants unlawfully downloaded and shared this copyrighted work using the Bit-Torrent file sharing protocol. {See Compl. ¶¶ 10, 33.) According to the Complaint, Bit-Torrent is one of the most common peer-to-peer file sharing protocols used for distributing large amounts of data. (Compl. ¶ 14.) It is able to distribute a large file without creating a heavy load on the source computer and network by allowing users to join a “swarm” of host computers to download and upload from each other simultaneously. (Compl. ¶ 15.)

Plaintiff retained computer investigators to identify the Internet Protocol (“IP”) addresses associated with the people using the Bit-Torrent protocol to reproduce or distribute its copyrighted works, including “Romantic Memories,” which was identified by a “Unique Hash Number.” (Compl. ¶ 36; see Compl. ¶¶ 38-39.) The investigation revealed that the 14 IP addresses attached as Exhibit A to the Complaint had copied a piece of “Romantic Memories,” as identified by its Unique Hash Number. (Compl. ¶¶ 38-39; see Compl. Ex. A.) The individuals using these 14 IP addresses engaged in these transactions on different dates or times between May 22, 2012, and June 23, 2012. {See Compl. Ex. A.) But Plaintiff maintains that each Defendant was part of the same series of transactions (Compl. ¶ 39(B)), stating that “each Defendant peer member participated in the same swarm and directly interacted and communicated with other members of [516]*516that swarm through digital handshakes, the passing along of computer instructions, uploading and downloading, and by other types of transmissions” (Compl. ¶ 33).

As such, on July 30, 2012, Plaintiff brought a single copyright infringement suit against all 14 Doe Defendants, alleging that each Defendant was jointly and severally liable for the infringing activities of each of the other Defendants; that the infringement was part of a series of transactions, involving the exact same torrent file of the copyrighted work, and was accomplished by Defendants acting in concert with each other; and that there were common questions of law and fact. (CompU 10.) Because the Defendants were only known by their IP addresses, Plaintiff-after receiving leave from this Court to do so (Docket # 5, 6) — served third party subpoenas on the Internet Service Providers (“ISPs”) (Comcast and Embarq) that assigned these IP addresses to discover the name, address, telephone number, e-mail address, and Media Access Control address of the Defendant associated with each IP address (see Docket # 32, 33).

Doe No. 12 subsequently moved, in the same motion, to be dismissed or severed from the case for misjoinder and to quash the subpoena to the ISP that references him. (Docket # 24.)

III. THE MOTION TO QUASH

Although Plaintiff has issued two subpoenas in this case, one directed to Comcast Corporation and a second directed to Em-barq Corporation, Doe No. 12 moves to quash only the one referencing him, which is the subpoena directed to Comcast seeking the subscriber information of Does No. 1-13 (see Docket # 12-1).

A. Standard

Federal Rule of Civil Procedure 45(a) permits the issuance of subpoenas to produce documents and other tangible things in the custody or control of a person. Richter v. Mut. of Omaha Ins. Co., No. 06-Misc.-011, 2006 WL 1277906, at *2 (E.D.Wis. May 5, 2006); see Fed.R.Civ.P. 45(a). Under Rule 45, a court must quash or modify a subpoena if it fails to allow a reasonable time to comply; requires a person who is neither a party nor a party’s officer to travel more than 100 miles; requires disclosure of privileged or other protected matter, if no exception or waiver applies; or subjects a person to undue burden. Fed.R.Civ.P. 45(c)(3)(A)(i)-(iv). Furthermore, to protect a person subject to or affected by a subpoena, a court may quash a subpoena if it requires disclosure of a trade secret or other confidential information, disclosure of an unretained expert’s opinion, or a person who is neither a party nor a party’s officer to incur substantial expenses to travel more than 100 miles to attend trial. Fed. R.Civ.P. 45(e)(3)(B)(i)(iii).

The party seeking to quash a subpoena under Rule 45(c)(3)(A) bears the burden of demonstrating that the information sought is privileged or subjects a person to an undue burden. Illiana Surgery & Med. Ctr. LLC v. Hartford Fire Ins. Co., No. 2:07 cv 3, 2012 WL 776694, at *3 (N.D.Ind. Mar. 7, 2012) (citation omitted); see Pettit v. City of Columbus, No. 104CV1464JDTTAB, 2005 WL 2218373, at *1 (S.D.Ind. Sept. 9, 2005); Jones v. Hirschfeld, 219 F.R.D. 71, 74-75 (S.D.N.Y.2003) (“The burden of persuasion in a motion to quash a subpoena ... is borne by the movant.”); Wauchop v. Domino’s Pizza, Inc., 138 F.R.D. 539, 543 (N.D.Ind.1991). As with other discovery issues, deciding whether to grant a motion to quash lies within the sound discretion of the district court. Sullivan v. Gurtner Plumbing, Inc., No. 11-cv-6261, 2012 WL 896159, at *1 (N.D.Ill. Mar. 13, 2012) (citing United States v. Ashman, 979 F.2d 469, 495 (7th Cir.1992)).

B. Standing

Although Plaintiff does not raise the issue, the Court will briefly address Doe No. 12’s standing to quash a subpoena to Com-cast, a third party to this action. As a general rule, “a party lacks standing to quash a subpoena issued to a nonparty unless the party has a claim of privilege attached to the information sought or unless it implicates a party’s privacy interests.” Hard Drive Prods, v. Does 1-48, No. 11 CV 9062, 2012 WL 2196038, at *3 (N.D.Ill. June 14, 2012); see Brady v. Cent. Ind. Reg’l Blood Ctr. Inc., No. 199-MC-19, 1999 WL 33912610, at *1 [517]*517(N.D.Ind. Oct. 6, 1999) (citations omitted); see also United States v. Raineri, 670 F.2d 702

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287 F.R.D. 513, 2012 WL 6115653, 2012 U.S. Dist. LEXIS 174384, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malibu-media-llc-v-john-does-1-14-innd-2012.