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