Khumba Film Pty. Ltd. v. Doe 1 et al

Filing 22

ORDER denying 19 Motion to Quash filed by John Doe Subscriber Assigned IP Address 71.211.210.43, by Magistrate Judge Michael E. Hegarty on 9/12/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02075-WYD-MEH
KHUMBA FILM (PTY.), LTD.,
Plaintiff,
v.
DOES 1-14,
Defendants.

ORDER

Michael E. Hegarty, United States Magistrate Judge.
Before the Court is a [Renewed] “Motion to Quash” [filed September 9, 2014; docket #19]
filed by Defendant John Doe Subscriber Assigned IP Address 71.211.210.43 (hereinafter
“Defendant”). The motion has been referred to this Court for disposition (docket #19). Pursuant
to D.C. Colo. LcivR 7.1(d), the Court decides the motion without a response from Plaintiff. For the
reasons that follow, Defendant’s motion is denied.
I.

Background
Plaintiff initiated this action on July 25, 2014, alleging that Defendants, identified only by

their Internet Protocol (“IP”) addresses, infringed on Plaintiff’s copyrighted works by using the
internet and a “BitTorrent” protocol to reproduce, distribute, display, or perform Plaintiff’s protected
films.
In an effort to identify the alleged infringer, Plaintiff requested permission from the Court
to serve limited, immediate discovery on Defendants’ Internet Service Providers (“ISP”) prior to the
Rule 26(f) conference. (Docket #7.) The Court determined that Plaintiff had shown good cause for

limited expedited discovery and granted Plaintiff’s motion in part. (Docket #11.) In particular, the
Court authorized Plaintiff to serve third-party subpoenas pursuant to Fed. R. Civ. P. 45 on the
identified ISPs for the limited purpose of ascertaining the identity of the Defendants based on the
IP addresses named in the Complaint. The Court directed that the subpoena be limited to providing
Plaintiff with the true name, address, telephone number, and email address of the Defendant to
whom the ISP has assigned an IP address. With the subpoena, the Court directed Plaintiff serve a
copy of its order. Finally, the Court emphasized that Plaintiff may only use the information
disclosed in response to the subpoena for the purpose of protecting and enforcing its rights as set
forth in its Complaint [docket #1]. The Court cautioned Plaintiff that improper use of this
information may result in sanctions.
In accordance with the Court’s order, Plaintiff served a Rule 45 subpoena on Defendant’s
ISP, Comcast, on or about July 29, 2014. (Docket #12.) Presumably upon receiving notice of the
subpoena from Comcast, Defendant first moved to quash the subpoena on August 21, 2014. (Docket
#14.) The Court denied the original motion to quash on procedural grounds [see docket # 16], and
Defendant filed the present motion on September 8, 2014, arguing that the subpoena should be
quashed to protect Defendant from “a chain of unfair events, such as harassing phone call and letters
trying to use scare tactics to try to get [Defendant] to pay a settlement,” and because Plaintiff does
not “even know how to download a movie from the Internet,” and the litigation “could have
enormous impact to [her] reputation.” (Docket #18).
II.

Discussion
Fed. R. Civ. P. 45(c)(3)(A) requires the Court to quash or modify a subpoena that: (i) fails

to allow a reasonable time to comply; (ii) requires excessive travel by a non-party; (iii) requires

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disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects
a person to undue burden. No other grounds are listed.
In this district, a party has no standing to quash a subpoena served on a third party, except
as to claims of privilege or upon a showing that a privacy issue is implicated. Windsor v.
Martindale, 175 F.R.D. 665, 668 (D. Colo. 1997) (“[a]bsent a specific showing of a privilege or
privacy, a court cannot quash a subpoena duces tecum”); see also Broadcort Capital Corp. v.
Flagler Secs., Inc., 149 F.R.D. 626, 628 (D. Colo. 1993). Other courts in the Tenth Circuit have
held that a party has standing to challenge a subpoena served on a third party only on the basis of
privilege, personal interest, or proprietary interest. Howard v. Segway, Inc., No. 11-CV-688-GFKPJC, 2012 WL 2923230, at *2 (N.D. Okla. July 18, 2012) (citing Washington v. Thurgood Marshall
Acad., 230 F.R.D. 18 (D.D.C. 2005)). Objections unrelated to a claim of privilege or privacy
interests are not proper bases upon which a party may quash a subpoena. Windsor, 175 F.R.D. at
668; see also Oliver B. Cannon & Son, Inc. v. Fidelity & Cas. Co. of New York, 519 F. Supp. 668,
680 (D. Del. 1981) (movant lacks standing to raise objections unrelated to any right of privilege).
Thus, even where a party has standing to quash a subpoena based on privilege or a personal right,
he or she lacks standing to object on the basis of undue burden. Howard, 2012 WL 2923230, at *2
; see also Malibu Media, LLC v. John Does 1-15, No. 12-2077, 2012 WL 3089383, at *8 (E.D. Pa.
July 30, 2012) (noting that a defendant seeking to quash a subpoena on an internet service provider
“is not faced with an undue burden because the subpoena is directed at the internet service provider
and not the [d]efendant.”).
The ISP, the recipient of the subpoena, has not objected to its terms. Defendant mentions
nothing about whether he/she has standing to quash based on claims of privilege or privacy;

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however, the Court will assume that, because Defendant seeks to block Plaintiff’s ability to learn
Defendant’s identifying information, Defendant here claims a personal and/or proprietary interest
in his/her identifying information. Thus, the Court may consider Defendant’s motion to quash, but
must limit its analysis to whether the subpoena served on the ISP requires disclosure of privileged
or other protected matter, if no exception or waiver applies. See Fed. R. Civ. P. 45(c)(3)(A)(iii).
This Court agrees with those courts finding that internet subscribers do not have an
expectation of privacy in the identifying information they conveyed to their ISPs. See AF Holdings,
LLC v. Does 1–162, No. 11-23036-Civ, 2012 WL 488217, at *4 (S.D. Fla. Feb.14, 2012); First Time
Videos, LLC v. Does 1–18, No. 4:11-cv-69-SEB-WGH, 2011 WL 4079177, at *1 (S.D. Ind. Sept.13,
2011). As for privilege, the burden rests squarely on the moving party to demonstrate that privilege
exists and that the subpoena would disclose such information. Malibu Media, LLC, 2012 WL
3089383 at *5.
In this case, Defendant’s motion does not address whether the information sought is
privileged or otherwise protected. Instead, Defendant asks the Court to quash the subpoena to
protect Defendant from “a chain of unfair events, such as harassing phone call and letters trying to
use scare tactics to try to get [Defendant] to pay a settlement,” and because Plaintiff does not “even
know how to download a movie from the Internet,” and the litigation “could have enormous impact
to [her] reputation.” The Court has considered variations of each of these arguments before and
reiterates its findings as follows.
Defendant, like many of the litigants in his/her position, alleges that the subpoena should be
quashed because Plaintiff is primarily interested in settling rather than litigating its claims.
Defendant’s argument is insufficient under Rule 45. Though Defendant expresses a concern

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regarding the fairness of Plaintiff’s settlement practices, Rule 45 does not contemplate quashing a
subpoena on this basis. Even if it did, however, the Court has not observed nor been made aware
of any particular Defendant in the cases before this Court who has experienced “coercive” settlement
tactics by the Plaintiff. As the Court noted in a similar case, Plaintiff “may be understandably and
even reasonably skeptical of a defendant’s assertion of innocence.” See Malibu Media, LLC v.
Maness, No. 12-cv-01873-RBJ-MEH, 2012 WL 7848837, at *6 (D. Colo. Dec. 4, 2012). Even if
there is no ultimate liability, “Plaintiff has a constitutional right to file a lawsuit to and engage in
discovery to determine whether a defendant or someone using a defendant’s IP address infringed
on its protected works,” provided Plaintiff has a good-faith basis under Rule 11 for bringing suit.
Id. Similarly, Plaintiff shares the same right as all litigants to settle or dismiss its claims before
engaging in discovery and prior to the filing of any dispositive motions. Id.
Aside from Plaintiff’s right to vindicate its claims through a federal lawsuit and ultimately
reach a settlement, Rule 45 does not contemplate quashing a subpoena on the basis of a party’s
litigation strategy. Equally outside its scope is a party’s concern that being named as defendant in
a federal lawsuit may injure his/her reputation. Indeed, “it is a rare civil lawsuit in which a
defendant is not accused of behavior of which others may disapprove.” Malibu Media, LLC, 2012
WL 3089383, at *9 (citations and quotations omitted) (declining to quash a subpoena on the basis
of a defendant’s embarrassment over the pornographic content of the work allegedly infringed).
Thus, the Court declines to quash the subpoena based on the litigation tactics alleged in the motion.
Likewise, Defendant’s second argument does not persuade the Court to grant the motion
because Rule 45 does not contemplate quashing a subpoena based on a factual dispute between the
parties, such as Plaintiff’s ability to download a movie from the Internet.

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III.

Conclusion
For the reasons stated above, the Court finds that Defendant has not met his/her burden of

showing that the subpoena served on Comcast must be quashed. Therefore, the Motion to Quash
[filed September 8, 2014; docket #19] filed by John Doe Subscriber Assigned IP Address
71.211.210.43 is denied.
Entered and dated at Denver, Colorado, this 12th day of September, 2014.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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