Cobbler Nevada, LLC v. Doe 1 et al

Filing 16

ORDER denying 14 Motion to Quash by Magistrate Judge Michael E. Hegarty on 11/06/2015.(mdave, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02065-WYD-MEH
COBBLER NEVADA, LLC,
Plaintiff,
v.
DOES 1-21,
Defendants.

ORDER

Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Defendant John Doe’s [Motion] to Quash [filed November 4, 2015;
docket #14].1 The Motion has been referred to this Court for disposition. (Docket #15.)
Pursuant to D.C. Colo. LCivR 7.1(d), the Court decides the motion without a response from
Plaintiff. As an initial matter, the Motion is improperly titled as a motion to quash a subpoena as
well as a motion to dismiss; as its contents exclusively focus on a request to quash the subpoena,
the Court construes it as such.

For the reasons that follow, John Doe’s Motion to Quash or

Modify Subpoena is denied.
I.

Background
Plaintiff initiated this action on September 18, 2015, alleging that Defendants, identified

only by their Internet Protocol addresses, infringed on Plaintiff’s copyrighted work (here, a
motion picture) by using the internet and a bittorent protocol to reproduce, distribute, display, or
perform Plaintiff’s protected film.
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The John Doe who filed this Motion fails to note his/her assigned number.

In an effort to identify the alleged infringer, Plaintiff requested permission from the
Court to serve limited, immediate discovery on Defendants’ Internet Service Providers (ISPs)
prior to the Rule 26(f) conference. (Docket #4.) 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 upon the IP addresses named in the Complaint. Id. The Court directed that
each 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 each
subpoena, the Court directed Plaintiff to 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 this John
Doe’s ISP sometime between the issuance of the Court order on September 22, 2015, and
November 4, 2015, the date of the filing of this Motion [docket #14].
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 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-688GFK-PJC, 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.).
Here, no ISP – the recipient of a subpoena in this case – has objected to its terms.
However, this John Doe argues s/he has standing to quash based on a personal and/or proprietary
interest in his/her identifying information. Plaintiff does not appear to dispute this interest.
Thus, the Court may consider this John Doe’s motion to quash, but must limit its analysis to
whether the subpoena served on the ISP requires disclosure of privileged or other protected

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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 1B162, No. 11-23036-Civ, 2012 WL 488217, at *4 (S.D. Fla. Feb.14,
2012); First Time Videos, LLC v. Does 1B18, 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, John Doe’s Motion does not address whether the information sought is
privileged or otherwise protected. Instead of addressing the grounds cited in Rule 45, John Doe
asks the Court to quash the subpoena on the assertion that Plaintiff had someone else at his/her
home at the time of the alleged infringement and, thus, Plaintiff has not performed sufficient
investigation to justify granting a subpoena for subscriber information the Plaintiff seeks. The
Court has considered variations of this argument before and reiterates its findings as follows.
Plaintiff’s attempt to obtain information from the ISP is a necessary first step in
Plaintiff’s process of discovering the identities of the alleged infringers for the purpose of
enforcing its copyright. The fact that the information Plaintiff seeks will not conclusively
establish liability does not persuade the Court that the subpoena should be quashed. To hold
otherwise would impose a standard inconsistent with the Federal Rules of Civil Procedure.
Thus, the Court will not quash the subpoena based upon the alleged attenuation between this
John Doe’s possible participation in a swarm and actual copyright infringement.

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III.

Conclusion
For the reasons stated above, the Court finds that this John Doe has not met his/her

burden of showing that the subpoena served on him/her ISP must be quashed. Therefore,
Defendant John Doe’s [Motion] to Quash [filed November 4, 2015; docket #14] is denied.
Entered and dated at Denver, Colorado, this 6th day of November, 2015.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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