Sunlust Pictures, LLC v. John Doe
ORDER. Movant S. Shaw [sic] (126.96.36.199) 73 Motion for Leave to Proceed Anonymously is granted. Movant Shaw and the remaining Movants are permitted to proceed anonymously for the limited purpose of presenting the motions addressed in this order . John Doe #1's 44 Motion to Quash, Sever, and Dismiss;John Doe #2's 71 Motion to Sever Doe 188.8.131.52 as a Defendant, Motion to Quash the Subpoena Served Upon RCN Telecom Services, LLC, and Motion for a Protective Order; and Mova nt Sebastian Shaw's 74 Motion to Quash the Subpoena and Accompanying Memorandum of Authorities are denied. Robert Roe's (IP Address 64.2343.216.188) 15 Motion to Dismiss and/or Issue a Protective Order, and Incorporated Memorandum of Law; the 19 Motion by Richard Roe (Identified as IP Address 184.108.40.206) to Quash Subpoena and/or Issue aProtective Order, and Incorporated Memorandum of Law; and Sam Soe's (IP 16 Address 220.127.116.11) 32 Motion to Dismiss and/or Issue a Protective Order, and Incorporated Memorandum of Law are granted in part and denied in part. By Magistrate Judge Kathleen M. Tafoya on 10/19/12.(mnfsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 12–cv–00656–CMA–KMT
SUNLUST PICTURES, LLC,
This matter is before the court on the following pending motions:
“Robert Roe’s (IP Address 18.104.22.168) Motion to Dismiss and/or Issue a
Protective Order, and Incorporated Memorandum of Law” (Doc. No. 15, filed
May 11, 2012 [hereinafter “Robert Roe Mot.”]);
“Motion by Richard Roe (Identified as IP Address 22.214.171.124) to Quash Subpoena
and/or Issue a Protective Order, and Incorporated Memorandum of Law” (Doc.
No. 19, filed May 17, 2012 [hereinafter “Richard Roe Mot.]);
“Sam Soe’s (IP Address 126.96.36.199) Motion to Dismiss and/or Issue a Protective
Order, and Incorporated Memorandum of Law” (Doc. No. 32, filed May 21, 2012
[hereinafter “Soe Mot.]);1
The court notes that Movants Richard Roe’s and Soe’s Motions are essentially identical
to Movant Robert Roe’s Motion. It appears that Movant Richard Roe and Soe are pro se parties
who elected to simply “cut and paste” Robert Roe’s Motion, which was filed by an attorney,
rather than craft original motions on their own behalf.
John Doe2 (IP Address 188.8.131.52)’s (hereinafter “Doe #1”) “Motion to Quash,
Sever, and Dismiss” (Doc. No. 44, filed May 22, 2012 [hereinafter “Doe #1 Mot.]);
Doe 184.108.40.206’s (hereinafter “Doe #2) “Motion to Sever Doe 220.127.116.11 as
a Defendant, Motion to Quash the Subpoena Served Upon RCN Telecom
Services, LLC, and Motion for a Protective Order” (Doc. No. 71, filed June 27,
2012 [hereinafter “Doe #2 Mot.]);
“Movant S. Shaw [sic] (18.104.22.168) Motion for Leave to Proceed Anonymously”
(Doc. No. 73, filed June 29, 2012 [hereinafter “Shaw Mot. Proceed
“Movant Sebastian Shaw’s Motion to Quash the Subpoena and Accompanying
Memorandum of Authorities” (Doc. No. 74, filed June 29, 2012 [hereinafter
“Shaw Mot. Quash”]).
“Plaintiff’s Omnibus Response to Movants’ Motions to Dismiss and/or Issue a Protective
Order,” which is responsive to Movants Richard Roe’s, Robert Roe’s, and Sam Soe’s Motions,
was filed on May 25, 2012. (Doc. No. 53.) Plaintiff filed a response to Movant Doe #1’s
Motion on June 4, 2012 (Doc. No. 61); a response to Movant Doe #2’s Motion on July 11, 2012
(Doc. No 78); and responses to Movant Sebastian Shaw’s Motion to Proceed Anonymously and
Motion to Quash on July 11, 2012 (Doc. Nos. 79 & 80). Although Movants Robert Roe and Doe
#1 filed replies in support of their Motions on June 8, 2012 and June 18, 2012, respectively
(Doc. Nos. 64 & 66), none of the remaining Movants filed replies. Accordingly, this matter is
ripe for the court’s review and ruling.
To be clear, although this Movant has identified himself as “John Doe,” neither he or
Doe 22.214.171.124 are the “John Doe” identified in Plaintiff’s original Complaint (Doc. No. 1,
filed Mar. 15, 2012 [hereinafter “Original Compl.”]). Plaintiff has since filed an Amended
Complaint, which substitutes William Cisa for the original John Doe defendant. (Doc. No. 90,
filed Sept. 90, 2012 [Am. Compl.]).
In this case, Plaintiff alleges that Defendant William Cisa, formerly identified as John
Doe, and his “joint tortfeasors” unlawfully reproduced and distributed copies of Plaintiff’s
copyrighted video “Sunny Leone – Goddess” (hereinafter “the Video”) using BitTorrent
technology. (See Am. Compl. ¶¶ 1, 3.) Bit Torrent technology has been described as follows:
In the BitTorrent vernacular, individual downloaders/distributors of a particular
file are called “peers.” The group of peers involved in downloading/distributing a
particular file is called a “swarm.” A server which stores a list of peers in a
swarm is called a “tracker.” A computer program that implements the BitTorrent
protocol is called a BitTorrent “client.”
The BitTorrent protocol operates as follows. First, a user locates a small “torrent”
file. This file contains information about the files to be shared and about the
tracker, the computer that coordinates the file distribution. Second, the user loads
the torrent file into a BitTorrent client, which automatically attempts to connect to
the tracker listed in the torrent file. Third, the tracker responds with a list of peers
and the BitTorrent client connects to those peers to begin downloading data from
and distributing data to the other peers in the swarm. When the download is
complete, the BitTorrent client continues distributing data to the peers in the
swarm until the user manually disconnects form [sic] the swarm or the BitTorrent
client otherwise does the same.
Diabolic Video Prods., Inc. v. Does 1–2099, 2011 WL 3100404, at *2 (N.D. Cal. May 31, 2011);
(see also Am. Compl. ¶¶ 12-13). Plaintiff alleges that Defendant Cisa and his “joint tortfeasors”
downloaded a torrent file specific to the Video, loaded that torrent file into their BitTorrent
clients, entered a BitTorrent swarm particular to the Video, reproduced a copy of the Video, and
distributed the Video to numerous third parties. (Id. ¶ 22.) Importantly, while Plaintiff has
named Mr. Cisa as a defendant, it has not named any of the “joint tortfeasors” as additional
defendants. (See id.; see also Orig Compl.) Additionally, although Mr. Cisa has been
substituted for the John Doe defendant, he has not yet been served, and therefore regularly
scheduled discovery has not yet commenced.
On March 16, 2012, Plaintiff filed a Motion for Leave to Take Discovery Prior to the
Rule 26(f) Conference. (Doc. No. 6, filed Mar. 16, 2012 [hereinafter “Early Discovery Mot.”].)
Therein, in an effort to identify Defendant Cisa and his “joint tortfeasors,” Plaintiff requested
permission to serve limited, immediate discovery on Defendant’s and the “joint tortfeasors’”
Internet Service Providers (“ISPs”). (See id.) On March 22, 2012, the court determined that
Plaintiff had shown good cause for limited expedited discovery, and granted Plaintiff’s Motion
in part. (Order, Doc. No. 10 [hereinafter “Order Granting Early Discovery”].) In particular, the
court authorized Plaintiff to serve third-party subpoenas, pursuant to Fed. R. Civ. P. 45, on
Defendant’s and his “joint tortfeasors’” ISPs prior to the Rule 26(f) conference for the limited
purpose of ascertaining Defendant’s and his “joint tortfeasors’” identities. (See id.)
Consistent with the court’s Order Granting Early Discovery, on various dates, Plaintiff
served subpoenas on Movants Robert Roe’s, Richard Roe’s, Sam Soe’s, Doe #1’s, Doe #2’s, and
Sebastian Shaw’s (hereinafter, collectively, “Movants” or “the Movants”) ISPs.3 Because Mr.
Cisa has since been substituted for the John Doe defendant, Movants, by process of elimination,
are necessarily Defendant Cisa’s alleged “joint tortfeasors.” Many of the Movants were notified
by their ISPs that their identifying information would be released unless an objection or motion
(See Robert Roe Mot., Ex. A, Declaration of Robert Roe [“Robert Roe Decl.”] at Ex. 2;
Richard Roe Mot., Ex. A., Declaration of Richard Roe [Richard Roe Decl.] at Ex. 2; Soe Mot.,
Ex. A, Declaration of Sam Soe [“Soe Decl.”] at Ex. 2; Doe #1 Mot., Ex. A; Doe #2 Mot., Ex. A
at 6; Shaw Mot. Quash ¶ 2.)
to quash was filed with the court. (See, e.g., Robert Roe Decl., Doc. No. 15-1, at Ex. 1.)4
Accordingly, Movants filed their respective motions listed above. In those motions, Movants
seek either to quash the subpoenas served on their ISPs or, alternatively, a protective order from
the same. In addition, several of the Movants seek to be dismissed or severed from this action.
Finally, Movants Robert Roe, Richard Roe, and Sam Soe seek reconsideration of the court’s
Order Granting Early Discovery. These and other arguments are addressed in turn below.
Requests to Proceed Anonymously
As a threshold matter, the court notes that Movants are all proceeding by
pseudonym—although only Movant Shaw affirmatively filed a motion to proceed anonymously.
(See Shaw’s Mot. to Proceed by Pseudonym.) Plaintiff objects to the court permitting Movants
to proceed anonymously.
“Proceeding under a pseudonym in federal court is, by all accounts, an unusual
procedure.” Femedeer v. Haun, 227 F.3d 1244, 1246 (10th Cir. 2000) (citing M.M. v. Zavaras,
139 F.3d 798, 800 (10th Cir. 1998)). Indeed, “there does not appear to be any specific statute or
rule supporting the practice. To the contrary, the Federal Rules of Civil Procedure mandate that
all pleadings contain the names of the parties, see Fed. R. Civ. P. 10(a), and Rule 17(a)
Plaintiff argues that the court should strike Movants’ Declarations. (See Omnibus Resp.
at 12-13.) However, as this argument effectively constitutes a motion to strike, Plaintiff was
required to file this by separate paper. D.C.COLO.LCivR 7.1C (“A motion shall not be included
in a response or reply to the original motion. A motion must be made by separate paper.”) In
any event, the court notes that it relies on Movants’ respective declarations in this order only to
provide background, and never in a manner that could be considered adverse to Plaintiff.
specifically states that ‘[e]very action shall be prosecuted in the name of the real party in
Nevertheless, permitting a party to proceed anonymously may be warranted in
“exceptional circumstances,” such as cases involving “ matters of a highly sensitive and
personal nature,  real danger of physical harm, or  where the injury litigated against would
be incurred as a result of the disclosure of the plaintiff’s identity.” Id. The court must also
“weigh the public interest in determining whether some form of anonymity is warranted.” Id.
Whether a party may proceed anonymously is subject to the discretion of the trial court. See
M.M., 139 F.3d at 799 (district court decision’s denying leave to proceed under a pseudonym is
reviewed under the abuse of discretion standard).
The court finds that the third “exceptional circumstance” is present in this case. Here, in
their respective motions, Movants, inter alia, move to quash the subpoenas issued to their ISPs
for the very purpose of protecting their personal identifying information from disclosure.
Requiring Movants to proceed without anonymity would effectively moot the very relief they
seek and would provide Plaintiff a “backdoor” route to the information sought through the
subpoenas issued to Movants’ ISPs. Moreover, assessing these preliminary matters without
knowing the Movants’ identifies will not cause Plaintiff any cognizable harm. The court
emphasizes that this is by no means a substantive finding that the Movants have a cognizable
right of privacy in their identifying subscriber information. Rather, “it is a procedural decision
allowing these early motions to proceed anonymously when there is little if any harm to the
plaintiff.”5 Cinetel Films, Inc. v. Does 1,052, 853 F. Supp. 2d 545, 547 (D. Md. 2012).
Accordingly, the court will grant Movant Shaw’s Motion for Leave to Proceed Anonymously
and will likewise permit the remaining Movants to proceed anonymously.
Motions to Dismiss and/or for Severance
All of the Movants, save for Sebastian Shaw, seek to either be dismissed from this action,
to have some or all of Plaintiff’s claims dismissed, or to be severed from this action. For
example, Movants Robert Roe, Richard Roe, and Sam Soe seek to have the court dismiss sua
sponte “Plaintiff’s claim of civil conspiracy and/or all causes of actions pursuant to Fed. R. Civ.
P. 12” (see, e.g., Robert Roe Mot. at 18), and Doe #2 seeks to be “sever[ed] from all other
defendants and alleged joint tortfeasors” (Doe #2 Mot. at 11). However, because Movants are
not parties to this action, at least at this juncture, they do not have standing to seek to have this
action dismissed. See Fed. R. Civ. P. 12(b) (“[A] party may assert [Rule 12(b)] defenses by
motion . . . .”) (emphasis added); see also Fed. Sav. & Loans Ins. Corp. v. Tullos-Pierremont,
894 F.2d 1469, 1475 (5th Cir. 1990) (under common law, unserved parties are nonparties);
Wasson v. Riverside Cnty., 237 F.R.D. 423, 424 (C.D. Cal. 2006) (a nonparty lacks standing to
bring a motion to dismiss); Kimes v. Laboratory Corp. of America, Inc., 1:00-cv-01093, 2002
WL 31812919, at *1 (M.D.N.C. Dec. 13, 2002) (same).
Indeed, the only likely harm that might result from allowing the Movants to proceed
anonymously is “diminution of the threat of publicly disclosing [Movants’] identit[ies] (thereby
embarassing [Movants]) as leverage to force a settlement.” Sunlust Pictures, LLC, 12 C 1546,
2012 WL 3717768, at *5 (N.D. Ill. Aug. 27, 2012) (unpublished).
Similarly, because Movants have not been named as defendants and, therefore, Plaintiff
has not asserted any claims against them, as both a logical and legal matter, the court cannot
sever Movants or the “claims” against them from this action. See Fed. R. Civ. P. 21 (“On motion
or on its own, the court may at any time, on just terms, add or drop a party. The court may also
sever any claim against a party.”) (emphasis added). Accordingly, the court will deny Movant
Robert Roe’s, Richard Roe’s, Sam Soe’s, Doe #1’s, Doe #2’s Motions without prejudice as
premature to the extent that they seek either to dismiss Plaintiff’s claims or to sever Movants
from this action.
Motions to Quash and/or Issue a Protective Order
For various reasons, Movants seek for the court to either (1) quash the subpoena issued to
their respective ISPs, pursuant to Fed. R. Civ. P. 45; or (2) enter a protective order, pursuant to
Fed. R. Civ. P. 26(c) and/or Fed. R. Civ. P. 30(d). However, as a procedural matter, the court
finds that these rules cannot provide Movants with the relief they seek.
First, Fed. R. Civ. P. 26(c)(1) provides that “[a] party or any person from whom
discovery is sought may move for a protective order” in order to “protect a party or person from
annoyance, embarassment, oppression, or undue burden or expense.” (emphasis added). Here,
as discussed above, Movants are not yet parties to this action. Furthermore, no discovery has
been sought from them; rather, Plaintiff was authorized to seek discovery from Movants’ ISPs.
As such, Rule 26(c)(1) is an improper vehicle for providing Movants’ with the relief they seek.
Second, although a protective order may be sought under Rule 30(d), see McClelland v.
Blazin’ Wings, Inc., 675 F. Supp. 2d 1074, 1082 (D. Colo. 2009), that rule is only applicable to a
deposition that is “ being conducted in bad faith or in a manner that unreasonably annoys,
embarrasses, or oppresses the deponent or party.” Fed R. Civ. P. 30(d)(3)(A). Because no
deposition has been authorized or otherwise occurred in this case, Rule 30(d) is plainly
Finally, the court finds that it would be procedurally improper to quash the subpoenas
issued to Movants’ ISPs pursuant to Rule 45(c)(3). That rule plainly provides that only “the
issuing court” may quash or modify a subpoena. Fed. R. Civ. P. 45(c)(3)(A) (emphasis added);
see also In re Sealed Case, 141 F.3d 337, 341 (D.C. Cir. 1998) (only the issuing court has the
power to act on its subpoenas); In re Digital Equip. Corp. 949 F.2d 228, 231 (8th Cir. 1991)
(court in district where underlying action was pending did not have jurisdiction to rule on
objections to deposition subpoenas obtained in another district). “Subpoenas are process of the
issuing court, and nothing in the rules even hints that any other court may be given the power to
quash or enforce them.” In re Sealed Case, 141 F.3d at 341 (internal citations omitted). Here,
the subpoenas issued to Movants’ ISPs all appear to have been issued from outside this district.6
To be sure, this court has previously opined that “[i]t is beyond cavil, however, that the
broad outlines of discovery in a civil case are controlled by the court where the case is filed.”
Straily v. UBS Fin. Servs., No. 07-cv-00884-REB-KMT, 2008 WL 5378148, at *2 (Dec. 23,
Concededly, there is some dispute as to where the subpoena served on Movant Shaw’s
ISP was issued from—Movant Shaw contends that this district issued the subpoena (Shaw Mot.
Quash at 2), whereas Plaintiff contends that it was issued from the District Court for the District
of Columbia. (Resp. Shaw Mot. Quash at 2.) However, because Movant Shaw has not attached
a copy of that subpoena to his Motion to Quash, the court is unable to conclude that it has
jurisdiction under Rule 45(c) to quash the subpoena issued to his ISP.
2008); see also Static Control Components, Inc. v. Darkprint Imaging, 201 F.R.D. 431
(M.D.N.C. 2001) (court in district where case was pending had authority to issue protective
order, pursuant to its right to control general outline of discovery, even though the particular
discovery dispute arose from a subpoena issued in another district); Best Western Int’l, Inc. v.
Doe, No. CV-06-1537-PHX-DGC, 2006 WL 2091695, at *2 (D. Ariz. July 25, 2006) (Rule 45(c)
provides that subpoenas should be enforced by the district court which issued them, but this rule
does not alter the broader concept that the district court in which an action is pending has the
right and responsibility to control the broad outline of discovery); Platinum Air Charters, LLC v.
Aviation Ventures, Inc., No. 2:05-cv-01451-RCJ-LRL, 2007 WL 121674, at *3 (D. Nev. Jan. 10,
2007) (same). Thus, it is within the court’s authority to reconsider its Order Granting Early
Discovery—which, if vacated, would have the effect of nullifying any outstanding subpoenas
issued from outside this district. However, the court finds that it lacks authority under Rule
45(c) to quash these subpoenas. Accordingly, the court denies Movants’ Motions to the extent
that they seek (1) to quash the subpoenas issued to their respective ISPs pursuant to Rule 45(c),
and (2) a protective order pursuant to Rule 26(c) and/or 30(d).
Reconsideration of the Court’s Order Granting Early Discovery
As previously noted, Movants Robert Roe, Richard Roe, and Sam Soe seek
reconsideration of this court’s Order Granting Early Discovery to the extent that it permits
expedited discovery about their and the other alleged “joint tortfeasors’” identities. Other courts
have found that non-parties may seek reconsideration of a previously-entered court order under
these circumstances. Pacific Century Int’l, Ltd. v. John Doe, No. Civ 2:11-cv-3479-KJM-JFM,
2012 WL 2522146, at *3-4 (E.D. Cal. June 28, 2012); CP Prod. v. John Doe, No. 12-cv-0616
WBS JFM, 2012 WL 3205621, at *2-3 (E.D. Cal. July 31, 2012). Indeed, because the court’s
Order Granting Early Discovery authorized Plaintiff to seek Movants’ personally identifying
information from their respective ISPs, equity favors allowing Movants to challenge that order.
Cf. Malibu Media v. John Does 1-6, No. 12-cv-00845-MSK-MEH, 2012 WL 3590906, at *2 (D.
Colo. Aug. 21, 2012) (A party has standing to challenge a subpoena served on a third party on
the basis of privilege, personal interest, or proprietary interest); Cinetel Films, Inc. v. Does 11,0152, 853 F. Supp. 2d 545 (D. Md. 2012) (quoting Third Degree Films, Inc. v. Does 1-108,
No. DKC 11-3007, 2012 WL 669055, at *2 (D. Md. Feb. 23, 2010)) (A party need only have
some personal right or privilege in the information sought to have standing to challenge a
subpoena to a third party.)
Although not mentioned in the Federal Rules of Civil Procedure, motions for
reconsideration are “not uncommon in federal practice.” Shields v. Shetler, 120 F.R.D. 123, 12526 (D. Colo. 1988). “A motion for reconsideration must do two things: First, it must
demonstrate some reason why the court should reconsider its prior decision. Second, it must set
forth facts or law of a strongly convincing nature to induce the court to reverse its prior
decision.” Id. at 126 (citation and internal quotations marks omitted).
The three main grounds that justify reconsideration are “(1) an intervening change in the
controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error
or prevent manifest injustice.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
2000). A motion to reconsider must, “among other things, present matter that is material and of
such importance that it would likely alter the outcome . . . .” Aldrich Enters., Inc. v. United
States, 938 F.2d 1134, 1143 (10th Cir. 1991). Put simply, a motion to reconsider is appropriate
when “the court has misapprehended the facts, a party’s position, or the controlling law.”
Servants of the Paraclete, 204 F.3d at 1012. A motion to reconsider “should be denied unless it
clearly demonstrates manifest error of law or fact or presents newly discovered evidence.”
National Business Brokers, Ltd. v. Jim Williamson Products, Inc., 115 F.Supp.2d 1250, 1256
(D.Colo.2000) (internal citations and quotation marks omitted).
The court finds that reconsideration is warranted to correct clear error as the court now
concludes that discovery into the identities of the “joint tortfeasors” was unnecessary to identify
the sole John Doe defendant, now identified as Mr. Cisa. In the court’s Order Granting Early
Discovery, the court found that good cause existed to permit early discovery because Plaintiff
would be unable to identify Defendant’s and his “joint tortfeasors’” identities without the benefit
of formal discovery mechanisms. This conclusion was correct as to Defendant Cisa. The
Complaint identified him as a John Doe defendant; as such, without obtaining discovery into his
identity, Plaintiff would not be able to proceed with this lawsuit.
However, as already discussed, the original Complaint named only Mr. Cisa as a John
Doe defendant; it did not include the alleged “joint tortfeasors” as additional defendants. Nor
does Plaintiff’s more recently-filed Amended Complaint name the alleged “joint tortfeasors” as
defendants. Although Plaintiff contended in its original Complaint that it would “seek leave of
the Court to amend this complaint to join John Doe’s joint tortfeasors as defendants in this
action” (Orig. Compl. ¶ 46), it is far from clear that the court would permit such joinder. See,
e.g., Malibu Media, LLC v. Does 1-28, No. 12-cv-2599-WJM-MEH, 2012 WL 4755358 (D.
Colo. Oct. 5, 2012) (finding allegations that defendants participated in the same BitTorrent
swarm insufficient to satisfy Fed. R. Civ. P. 20’s permissive joinder standard).
Further, because the court granted Plaintiff’s request for expedited discovery regarding
Defendant Cisa’s identity, Plaintiff’s argument that it could not proceed with this action without
discovering the identities of the alleged “joint tortfeasors” is unconvincing. Plaintiff was given
authority to issue a subpoena to Defendant Cisa’s ISP, and ostensibly was provided with
sufficient information not only to identify Cisa, but also to serve process and proceed with this
action. Plaintiff does not need additional expedited discovery to proceed with this action and,
therefore, the court finds that it erred in concluding that Plaintiff had demonstrated good cause to
conduct early discovery into the alleged “joint tortfeasors’” identities.
In its Early Discovery Motion, Plaintiff also argued that early discovery into the “joint
tortfeasors’” identities was supported by the risk that the “joint tortfeasors’” ISPs would erase
data relating to the “joint tortfeasors’” identities. (Early Discovery Mot. at 4-5.) However,
unless and until Plaintiff actually names the alleged “joint tortfeasors” as defendants, and sets
forth sufficient facts to permit their joinder in this action, information relating to the their
identities is irrelevant to Plaintiff’s claims. Pacific Century Int’l, Ltd. v. Does 1-37, 282 F.R.D.
189, 195 (N.D. Ill. 2012). Although the “joint tortfeasors’” actions may be relevant to Plaintiff’s
civil conspiracy and contributory infringement claims against Defendant Cisa, their identities are
not because, “BitTorrent users remain anonymous to other BitTorrent users, and have no
connection to them beyond the mere fact that they downloaded the same file.” Id. Indeed, as
Plaintiff admits (see Orig. Compl. ¶ 16), “a BitTorrent user will have no information about other
users other than their IP addresses, the same information that [Plaintiff] already possesses.” Id.
195 n.13 (citing MCGIP, LLC v. Does 1-30, No. C11-03680 HRL, 2011 WL 3501720, at *1
(N.D. Cal. Aug. 10, 2011)) (emphasis added). In other words, Plaintiff can prove its allegations
of civil conspiracy7 and contributory infringement against Defendant Cisa without obtaining the
“joint tortfeasors’” identities. Thus, Plaintiff did not require discovery relating to the joint
tortfeasors’ identities on an expedited basis and also did not have any interest in preserving that
information from destruction. Accordingly, although not directly considered in the Order
Granting Early Discovery, this argument also falls short of demonstrating good cause to conduct
early discovery regarding the “joint tortfeasors’” identities.
Finally, Plaintiff also asserted that expedited discovery into the “joint tortfeasors’”
identities was necessary because the infringement of the Video “is ongoing and continuous” and
thus Plaintiff needs to “take quick actions to prevent further irreparable harm.” (Early Discovery
Mot. at 5.) This concern is clearly unconvincing as, again, Plaintiff did not include the “joint
tortfeasors” as defendants in its original Complaint, and has still not done so in its Amended
Complaint. Simply put, if the threatened harm was indeed “ongoing” and “irreparable,” Plaintiff
would have at least attempted to name the “joint tortfeasors” as defendants by now.
The court also notes that a number of courts have held that “a state law civil conspiracy
claim is preempted by the federal Copyright Act.” See, e.g., Millenium TGA, Inc. v. Comcast
Cable Commc’ns LLC, --- F.R.D. ----, 2012 WL 1371426, at *6 (D.D.C. June 25, 2012)
Altogether, upon reconsideration, the court finds that Plaintiff failed to show good cause
to seek expedited discovery inquiring into the identities of Defendant’s “joint tortfeasors.”
Accordingly, the court will vacate that portion of the Order Granting Early Discovery as to the
non-party alleged “joint tortfeasors.”
Therefore, for the foregoing reasons, its is
ORDERED that “Movant S. Shaw [sic] (126.96.36.199) Motion for Leave to Proceed
Anonymously” (Doc. No. 73) is GRANTED. Movant Shaw and the remaining Movants are
permitted to proceed anonymously for the limited purpose of presenting the motions addressed in
It is further
ORDERED that John Doe #1’s “Motion to Quash, Sever, and Dismiss” (Doc. No. 44);
John Doe #2’s “Motion to Sever Doe 188.8.131.52 as a Defendant, Motion to Quash the
Subpoena Served Upon RCN Telecom Services, LLC, and Motion for a Protective Order” (Doc.
No. 71); and “Movant Sebastian Shaw’s Motion to Quash the Subpoena and Accompanying
Memorandum of Authorities” (Doc. No. 74) are DENIED.
It is further
ORDERED that “Robert Roe’s (IP Address 64.2343.216.188) Motion to Dismiss and/or
Issue a Protective Order, and Incorporated Memorandum of Law” (Doc. No. 15); the “Motion by
Richard Roe (Identified as IP Address 184.108.40.206) to Quash Subpoena and/or Issue a
Protective Order, and Incorporated Memorandum of Law” (Doc. No. 19); and “Sam Soe’s (IP
Address 220.127.116.11) Motion to Dismiss and/or Issue a Protective Order, and Incorporated
Memorandum of Law” (Doc. No. 32) are GRANTED in part and DENIED in part as follows:
The Motions (Doc. Nos. 15, 19, and 32) are DENIED to the extent that they seek
(1) to dismiss Plaintiff’s claims of civil conspiracy and/or all causes of actions
pursuant to Fed. R. Civ. P. 12, and (2) a protective order pursuant to Fed. R. Civ.
P. 26 and/or 30(d).
The Motions (Doc. Nos. 15, 19, and 32) are GRANTED to the extent that they
seek reconsideration of the court’s Order Granting Early Discovery (Doc. No.
10). The Order Granting Early Discovery (Doc. No. 10) is VACATED to the
extent it grants Plaintiff leave to conduct expedited discovery as to Defendant’s
“joint tortfeasors.” All outstanding subpoenas seeking discovery as to the nonparty “joint tortfeasors” are hereby QUASHED. Plaintiff is directed to serve a
copy of this order on all ISPs named in Exhibit A of the Original Complaint (Doc.
No. 1-1). The ISPs may then serve a copy of this order upon its relevant
subscribers. Insofar as any personal identifying information of the
non-party “joint tortfeasors” has already been provided to Plaintiff
from the “joint tortfeasors’” ISPs, Plaintiff is prohibited from
further communicating with these subscribers.
Dated this 19th day of October, 2012.
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