Malibu Media, LLC v. John Doe subscriber assigned IP address 76.126.99.126

Filing 130

***REDACTED*** ORDER RE DEFENDANT'S MOTION TO QUASH SUBPOENAS re 121 . Signed by Judge Alsup on 12/23/16. (whalc1, COURT STAFF) (Filed on 12/23/2016)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 9 MALIBU MEDIA, LLC, 11 For the Northern District of California United States District Court 10 12 13 14 15 Plaintiff, v. JOHN DOE Subscriber Assigned IP Address 76.126.99.126, ORDER RE DEFENDANT’S MOTION TO QUASH SUBPOENAS Defendant. / And All Related Cross-Actions. / 16 17 18 No. C 15-04441 WHA INTRODUCTION In this copyright infringement action involving alleged piracy of pornographic videos on 19 the Internet, plaintiff served five third-party subpoenas on companies that operate online public 20 forums allegedly used by defendant. Defendant moves to quash the subpoenas. For the reasons 21 stated below, defendant’s motion is DENIED. 22 23 STATEMENT The facts of this case have been set forth in prior orders and need not be set forth in full 24 here (Dkt. Nos. 44, 34). Briefly, plaintiff Malibu Media, LLC, a maker and distributor of 25 pornographic videos accuses defendant John Doe Subscriber Assigned IP address 26 76.126.99.126 of using his Internet connection to download, copy, and distribute twenty-three 27 of its copyrighted works using the BitTorrent file-sharing protocol. (Malibu Media has 28 obtained defendant’s identity, but his identifying information is subject to a protective order and need not be used in this order.) 1 Throughout discovery, defendant, who is represented by Attorneys J. Curtis Edmondson 2 and Robert Steven Robinson denied nearly every material allegation in this case. For example, 3 he responded to one interrogatory by stating, “No. I have not knowingly downloaded a song, 4 movie, game software program or computer file using BitTorrent or any Peer-to-peer file- 5 sharing program” (Pl.’s Exh. A, Response to Interrogatory No. 13). In response to another 6 interrogatory asking if he has “ever searched for any torrent file on the Internet,” he responded, 7 “No” (id., Response to Interrogatory No. 17). In response to another interrogatory asking if he 8 had every watched adult content such as pornography, he averred “I watched adult content 9 twice in high school” (id., Response to Interrogatory No. 18). Finally, defendant generally described his experience with computers as basic and introductory (id., Response to 11 For the Northern District of California United States District Court 10 Interrogatory No. 3).1 12 Malibu Media’s forensic computer analyst, Patrick Paige, examined three hard drive 13 images produced by our defendant. In that investigation, he allegedly found evidence of other 14 hard drives that have not been turned over (Paige Rpt. ¶ 42). In his examination, Paige 15 discovered that the user name 16 saved in auto-fill settings on one of defendant’s hard drives, and that the user name 17 been used to log into Overclock.net, a website operated by Wikia Inc. Paige also found that 18 defendant used that hard drive to access an email account with the address 19 (Paige Rpt. ¶¶ 31–32). 20 and the email address Malibu Media also contends that the user identified as were both posted about purchases he 21 made, his job, and his residence, all of which comport with evidence already produced in 22 discovery. But Malibu Media fails to produce the corroborating evidence at all, much less 23 24 1 25 26 27 28 This order notes that Malibu Media simply appended its exhibits to its opposition brief, without providing a sworn record averring that the exhibits were indeed the responses served by our defendant. Moreover, the responses are signed simply by “John Doe,” not with our defendant’s real name. Nevertheless, defendant does not dispute the authenticity of these responses. This order accepts, for the sake of this motion, that the interrogatory responses are indeed those served by our defendant, but reserves on whether they will be accepted as such at summary judgment or at trial and on whether they are properly sworn to by our defendant. Counsel for Malibu Media must take greater care to provide a sworn record and to follow the procedural rules of this Court. 2 had 1 supported by a sworn record. Accordingly, this order does not consider that contention as a 2 basis for the relevance of information relating to 3 . Malibu Media served subpoenas on four companies that host websites containing public 4 forums with posts appearing to have originated with our defendant’s accounts. Specifically, 5 it served subpoenas on (i) Wikia Inc., which operates the website Overclock.net, 6 (ii) VerticalScope USA Inc., which operates the website SocialAnxietySupport.com, (iii) 7 Piriform, Inc., which operates the website Piriform.com, and (iv) Interactive Life Forms, which 8 operates the website Fleshlight.com. The subpoenas seek records of all IP addresses associated 9 with the username , records of the personal identifying information for that username, all postings on the respective website, records of the total number of posts by 11 For the Northern District of California United States District Court 10 Malibu Media accessed the respective website, and records of any posts deleted since that date 12 (Edmondson Decl., Exhs. 2–5). Here are several examples of posts made by 13 above-named websites:2 14 15 In June 2012, as of the date on the posted about his “daily” frequency of visiting pornographic websites in a forum on Overclock.net (Pl.’s Opp., Exh. B at 2) (errors in original): 16 17 18 In May 2012, 19 the BitTorrent protocol) (id. at 3) (ellipsis and errors in original): posted about his usage of torrents (the files used to initiate a download on 20 21 22 23 In a post in July 2012 on SocialAnxietySupport.com, identified 24 and as three things he was addicted to (id., Exh. C at 26). 25 26 27 28 2 Although Malibu Media offered no sworn declaration averring that the websites appended to its opposition were in fact the websites represented, the Court independently verified that the websites appended to Malibu Media’s opposition indeed contained the posted contents. Accordingly, since the contents of those sites can accurately and readily be determined from the websites themselves, judicial notice is taken of the contents of the websites as they appeared on December 12, 2016, which did not differ materially from the appended screenshots. FRE 201(b)(2). 3 1 2 In a post on Fleshlight.com, responded to the question as follows, in pertinent part (id., Exh. D at 2) (errors in original): 3 4 5 Malibu Media identifies numerous other posts by the user on the forgoing 6 websites and others, not set forth in detail in this order, many of which refer to masturbation, 7 pornography, voyeurism, downloading television shows and movies, torrents, building his own 8 computer, and ownership of computers with specifications different from those produced in 9 discovery. Malibu Media also served a fifth subpoena on Microsoft Corporation, which operated 11 For the Northern District of California United States District Court 10 the email server, live.com, which Paige attributed to our defendant. In addition to seeking the 12 same information sought from the online forums, Malibu Media also sought records of devices 13 associated with the 14 searches with specific terms relating to torrents and Malibu Media’s website on Microsoft’s 15 search engine by the user of that account, records of deletion by that account of search history 16 between November 2015 and now, and billing information (Edmondson Decl., Exh. 1). 17 18 account and the specifications thereof, the history of Defendant moves to quash the subpoenas. This order follows full briefing and oral argument. 19 ANALYSIS 20 Rule 45(d)(3)(A) provides several bases for quashing a subpoena. Notably for our 21 purposes, a subpoena must be quashed or modified if it “subjects a person to undue burden.” 22 Additionally, any discovery subpoena remains subject to the relevance requirements of Rule 26. 23 24 Here, compliance with these subpoenas would not cause plaintiff undue burden, and 25 plaintiff offers no evidence that this would cause any of the recipients undue burden. (Indeed, 26 the fact that no recipient of a subpoena has moved to quash implies that no undue burden would 27 be suffered.) Thus, this order only addresses the question of relevance. 28 4 1 Defendant argues that the subpoenaed information is irrelevant, because he never posted 2 about Malibu Media’s content. Furthermore, he argues that any request should be tailored to 3 the period of infringement, rather than open-ended. Defendant ignores the fact that Malibu 4 Media has a right to develop circumstantial evidence as well as impeachment evidence, which 5 may not necessarily pertain to Malibu Media’s videos. Indeed, as the examples set forth above 6 show, a user with the name 7 defendant’s own statements in response to interrogatories, if 8 9 made numerous statements that would directly contradict was our defendant. True, many of the most salient statements came years before the period of infringement, and some might fall in the category of inadmissible habit or character evidence. But defendant’s earlier posts may impeach his often absolute and unequivocal denials. Moreover, 11 For the Northern District of California United States District Court 10 the subpoenaed information may lead to information about additional hard drives that defendant 12 failed to produce. Defendant’s relevance arguments are simply unavailing. 13 Nor is defendant’s argument that he himself can provide the subpoenaed information 14 persuasive. Given defendant’s outright denials, these subpoenas may be the only means for 15 Malibu Media to authenticate the posts by 16 defendant admits to using the 17 recovered at all, there is little reason to believe that our defendant would actually have 18 maintained records of those posts. . (In fact, there is no indication that our account.) Moreover, to the extent deleted posts can be 19 Defendant vaguely refers to the “Anonymous Speech Doctrine” but cites no authority 20 relating to anonymous speech that would prohibit the instant subpoena on that basis. Counsel 21 for Malibu Media state that they have “not been able to locate any caselaw or authority 22 explaining or citing to the Anonymous Speech Doctrine, nor has Defendant provided any in 23 support” (Pl.’s Opp. at 13). The “Anonymous Speech Doctrine” appears to be academic 24 shorthand for a collection of decisions that balanced the private interest of anonymity against 25 the public interest in disclosure, though no court has referred to such a “doctrine.” Defendant 26 abandons this argument in his reply. This order will not guess at the substance of defendant’s 27 unsupported argument. 28 5 1 Defendant also argues that the subpoena on Microsoft violates the Stored 2 Communications Act because “Microsoft is statutorily prohibited from revealing email 3 communications” (Def.’s Mtn. at 6). But Malibu Media does not seek email communications. 4 Defendant also abandons this brief argument in his reply. Additionally, to the extent the 5 subpoenas are directed at any communications covered by the Stored Communications Act 6 (beyond the “emails” mistakenly identified by defendant), the recipients of the subpoenas 7 remain free to raise this concern. 8 9 Defendant also argues that Malibu Media was required to affirmatively seek leave to serve the third-party subpoenas at issue herein. Specifically, he contends that the order granting leave to serve a third-party subpoena on defendant’s Internet service provider required Malibu 11 For the Northern District of California United States District Court 10 Media to seek leave to serve any third-party subpoenas on any provider of any service. He cites 12 the following paragraph from the order (Dkt. No. 12): 13 14 15 In its proposed order (but not in its motion) Malibu Media also sought leave to serve subpoenas on “any service provider that is identified in response to a subpoena as a provider of Internet services to Defendant.” Malibu Media mus seek leave to serve subpoenas on any other service provider besides Comcast in this matter. 16 Plainly, defendant’s interpretation of that order is incorrect. Malibu Media sought leave 17 to subpoena on Comcast because it was required to do so by law. The order made clear that, 18 despite the language in Malibu Media’s proposed order, it did not have blanket authority to 19 serve more Internet service providers for whom it had not yet offered any basis for serving a 20 subpoena. The order did not impose a requirement to seek leave to serve beyond that imposed 21 by the law. Defendant’s argument to the contrary is rejected. 22 Nevertheless, Malibu Media appears to seek to embark on a fishing expedition with 23 regard to Microsoft’s records of defendant’s online postings using his live.com email address, 24 inasmuch as it has failed to identify even a single probative item it expects to find on such 25 forums, to the extent any such forums exist. Similarly, Malibu Media has offered no indication 26 whatsoever of the importance of the Piriform.com subpoena. (Indeed, except to note that it has 27 sent a subpoena to Piriform, Malibu Media does not mention that company at all.) 28 6 1 Rule 26 now requires discovery to be “proportional to the needs of the case, considering 2 the importance of the issues at stake in the action, the amount in controversy, the parties’ 3 relative access to relevant information, the parties’ resources, the importance of the discovery in 4 resolving the issues, and whether the burden or expense of the proposed discovery outweighs its 5 likely benefit.” Malibu Media’s failure to even address the importance of certain aspects of its 6 proposed discovery is fatal as to those issues. Malibu Media’s request for “online postings” 7 from Microsoft and its entire request from Piriform.com are simply out of proportion with the 8 needs of this case (on the present record). Therefore, the subpoenas must be quashed to that 9 extent only. 11 For the Northern District of California United States District Court 10 CONCLUSION For the reasons stated above, defendant’s motion to quash is DENIED as to the 12 subpoenas served on Wikia Inc. (Overclock.net), VerticalScope USA Inc. 13 (SocialAnxietySupport.com), and Interactive Life Forms (Fleshlight.com), GRANTED IN PART 14 AND DENIED IN PART 15 GRANTED as to Piriform, Inc. (Piriform.com). as to the subpoena served on Microsoft Corporation (Live.com), and 16 In a separate filing after filing his reply, defendant raised several evidentiary objections. 17 Notwithstanding the fact that Civil Local Rule 7-3(c) requires “[a]ny evidentiary and procedural 18 objections to the opposition must be contained within the reply brief or memorandum,” 19 defendant’s evidentiary objections are of no moment here. To the extent there is any merit to 20 the objections, this order assumes that Malibu Media will be able to offer the cited facts in an 21 admissible form on summary judgment or at trial. Moreover, Malibu Media need not rely on 22 admissible evidence to support its argument that the subpoenaed materials are discoverable. 23 Accordingly, defendant’s objections are OVERRULED. 24 25 26 27 28 7 1 This order will be temporarily filed under seal, visible only to the parties. By 2 DECEMBER 23 AT NOON, any party wishing to redact portions of this order shall submit a 3 motion supported by sworn statements explaining good cause for redacting any portion of the 4 order. The motion shall include a proposed redacted version and may not rely on the protective 5 order already in place. 6 7 IT IS SO ORDERED. 8 9 Dated: December 16, 2016. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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