Dallas Buyers Club, LLC v. Does 1 - 20

Filing 20

ORDER denying 18 Defendant John Doe Subscriber Assigned IP Address 98.245.130.156 Motion to Quash, by Magistrate Judge Michael E. Hegarty on 10/17/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02481-WYD-MEH
DALLAS BUYERS CLUB, LLC, a Texas Limited Liability Company,
Plaintiff,
v.
JOHN DOES 1-20,
Defendants.

ORDER

Michael E. Hegarty, United States Magistrate Judge.
Before the Court is a letter to the Court, construed as a Motion to Quash [filed October 14,
2014; docket #17] filed by Defendant John Doe Subscriber Assigned IP Address 98.245.130.156
(“Doe #18”). The motion has been referred to this Court for disposition. (Docket #19.) For the
reasons that follow, Defendant’s motion is denied.
I.

Background
Plaintiff initiated this action on September 7, 2014 against twenty Doe Defendants. (Docket

#1) Plaintiff alleges that the Doe Defendants, identified only by their Internet Protocol (“IP”)
addresses, infringed on Plaintiff’s copyrighted work by using the internet and a “BitTorrent”
protocol to reproduce, distribute, display, or perform Plaintiff’s protected film. In an effort to
identify the alleged infringers, Plaintiff requested permission from the Court to serve limited,
immediate discovery on the Doe Defendants’ Internet Service Providers (“ISPs”) prior to the Rule
26(f) conference. (Docket #9.) The Court determined that Plaintiff had shown good cause for
limited expedited discovery, and granted Plaintiff’s motion. (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 identities of the Doe Defendants as identified by the
twenty (20) IP addresses listed in Docket #1-1. The Court directed that the subpoena be limited to
providing Plaintiff with the true name, address, telephone number, email address, and Media Access
Control address of the Defendant to whom the ISP has assigned an IP address. With each subpoena,
the Court directed Plaintiff also to serve a copy of its order. Finally, the Court emphasized that
Plaintiff was only permitted to use the information disclosed in response to the subpoenas for the
purpose of protecting and enforcing its rights as set forth in its Complaint. The Court cautioned
Plaintiff that improper use of this information would result in sanctions.
In accordance with the Court’s order, Plaintiff served a Rule 45 subpoena on Doe #18’s ISP,
Comcast, on September 9, 2014 (hereinafter “the subpoena”). (Docket #17-1 at 4.) Doe #18 filed
a letter with the Court requesting “a motion for dismissal, quashing and vacating of this Subpoena”
on the basis that the IP address was not assigned to him. (Docket #12.) The Court construed that
letter as a motion to quash and denied it without prejudice on October 9, 2014 for failure to attach
the subpoena. (Docket #15.) Plaintiff submitted the present motion on October 14, 2014 with the
attached subpoena.
II.

Discussion
Fed. R. Civ. P. 45(d)(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
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

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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.C. 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.”).
Comcast, the recipient of the subpoena, has not objected to its terms. Doe #18’s letter
requests that this Court quash or dismiss the subpoena; however, Doe #18 does not address the basic
standards the Court must apply in determining whether to quash a subpoena. He states only that his
motion to quash is “based on the incorrect IP address.” (Docket #17.) Doe #18 does not claim
privilege or privacy interests as a basis for his motion, and, indeed, he includes his name and address
in the letter. Thus, Doe #18 lacks standing to challenge the subpoena, and the Court may not
consider his request.
III.

Conclusion

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For the reasons stated above, the Court finds that Doe #18 has not met his burden of showing
that the Court should quash the subpoena served on Comcast. Therefore, the Motion to Quash [filed
October 14, 2014; docket #17] filed by Defendant John Doe #18 is denied.
Entered and dated at Denver, Colorado, this 17th day of October, 2014.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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